THE SECRETARY FOR JUSTICE v. LEE WAI MAN

HCMA871/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.871 OF 1999

(On appeal from Eastern Magistracy Case No. ESC3680 of 1998)

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REASONS FOR JUDGMENT

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1. This is an appeal by way of a case stated against a decision of Permanent Magistrate Mr R.B. McNair who on 4th February 1999 acquitted the Respondent Lee Wai-man of an offence contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap.455. His acquittal inevitably followed a ruling by the learned Magistrate that the evidence of Chan Tsz-kong ("PW1") in that trial, was inadmissible, there being no other evidence against him.

2. In this appeal the Appellant argues just one point, namely, that the exclusion of the evidence of PW1 was wrong in law. On 23rd September 1999, I heard submissions from Mr A. Bruce, SC, leading Mr G. Di Fazio for the Appellant and Mr A. Macrae, SC, for the Respondent. I ruled in the Appellant's favour on 24th September. I now give my reasons.

3. The exclusion of PW1's evidence came about in unusual circumstances and it is plain that the learned Magistrate gave the matter his careful and anxious consideration. The Magistrate permitted an application to be made by the Respondent's counsel, Mr J Chandler, that he should rule that PW1's evidence was inadmissible before the trial started and before PW1 had given any evidence, based on documents presented to the court. The application was strenuously opposed.

4. In outline, PW1 and the Respondent were two of five footballers who, when representing Hong Kong against Thailand in Bangkok in March 1997 it was alleged cheated at gambling by placing a bet in Thailand on Hong Kong losing the match. Apparently the winnings would be greater if they lost 2-0. It is alleged that PW1 and the Respondent and three others contributed, by their play, to the defeat and the winnings were duly collected in Hong Kong. It is the Respondent's receipt of his winnings which forms the basis of the charge against him, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, namely, dealing with the proceeds of an indictable offence. PW1 had in June 1998 pleaded guilty to the offence of conspiracy to cheat at gambling and had been sentenced to 12 months' imprisonment. He was an accomplice who, at the time of the trial, was about to be released from custody having served eight months of his 12 months' sentence.

5. The material upon which the Magistrate ruled that PW1's evidence was inadmissible was five documents : firstly, PW1's detention records when he was being held by the ICAC; secondly, a copy of his immunity from prosecution; thirdly, a record of a conversation between an ICAC officer and the Respondent's lawyer; fourthly, a schedule of contacts between PW1 and ICAC officers; and fifthly, a document headed "Memory Refreshing of Chan Tsz-kong".

6. The submission made to the learned Magistrate was that, based on the above material, he should conclude that this was a case where the trial magistrate should exercise his discretion to exclude the evidence of the accomplice on the basis that its admission would "potentially prejudice a fair trial". It was further submitted that PW1 had not been "finally dealt with" (because he had an arguable point to appeal his conviction even though he had pleaded guilty and had not lodged any notice of appeal) and therefore the principle in R v Pipe (1967) 51 Cr App Rep, 17 should be applied. It was further submitted that there was a risk that PW1's evidence would be unreliable because his memory had been refreshed and it was finally submitted that the use of PW1 as a witness was contrary to the public interest.

7. After hearing all submissions and considering authorities, the learned Magistrate made a series of findings which he said were based on the materials tendered by Mr Chandler as follows :-

"(1) The circumstances of PW1's guilty plea were a relevant consideration.

(2) PW1's conviction was predicated on threats and inducements made by the ICAC investigator.

(3) PW1's guilty plea was not voluntary notwithstanding his receiving legal advice.

(4) If PW1 gave evidence defence counsel would have an opportunity to fully cross-examine him on the circumstances of his bargain and his plea of guilty.

(5) Threats and inducements were not disclosed to prosecuting counsel in a timely manner. In addition the Chief Executive's order was not disclosed to the court in a timely fashion, contrary to the explicit directions of the court.

(6) The quality of the guilty plea and conviction of PW1 was not of a high order.

(7) PW1's guilty plea was eminently reversible and highly likely to be a nullity if PW1 chose to take steps to reverse it."

He went on to conclude that if PW1 testified, he would "potentially prejudice a fair trial" partly because he was an accomplice who had not been finally dealt with. He went on to say that he found PW1's evidence to be unsafe. He based this finding, prior to either hearing the evidence or reading his statement, on "the shaky conviction, the conditional immunity, his lengthy incarceration, the continued interviews and memory refreshing exercises whilst in ICAC custody, and the threats and inducements held out to him".

8. At the conclusion of his written case stated, he posed the following three questions to be answered on this appeal :-

"(1) Did I have a discretion to exclude the evidence of PW1?

(2) If the answer to question (1) is yes should I have held a voir dire or some other procedure in order to have an evidential basis for the exercise of the discretion?

(3) If the answer to question (1) is yes did I err in the exercise of this discretion in excluding the testimony of PW1?"

The arguments on appeal

9. Both counsel on appeal greatly assisted the court with a review of many authorities on the matter. The starting point was an agreement that a discretion does exist to exclude relevant and otherwise admissible evidence if its reception would produce an unfair trial. With the exception of the rules governing the admission of statements against interest by an accused, this is a single self contained discretion. There is no special category of accomplice evidence. In the appeal case of R v Oscar Lai Ka-to 1992, No.229, Power V-P dealt with the issue of whether Mr Warwick Reid's evidence should have been excluded in the following way :-

            "There can be no doubt that a judge's discretion to make orders necessary to ensure a fair trial may extend to the power to exclude evidence or a witness before the trial begins even though such an order is outside the experience of counsel in this case. We add that it is also outside the experience of any member of this court. This serves to indicate that such orders are likely to be extremely rare. Indeed, we find it difficult to envisage the circumstances which would warrant its making. Without hesitation we conclude that the circumstances in this case did not warrant the exclusion of Reid's evidence before the trial began."

10. Mr Bruce made the valid point, that in the Oscar Lai case, as in virtually all the cases cited when the admissibility of accomplice evidence has been discussed, the quality and character of the witnesses themselves (who in every case were allowed to testify) was significantly lower and the individuals greatly more unpleasant and criminal than Mr Chan Tsz-kong. In one case the accomplice was described as "one of the most dangerous and craven villains who had ever given evidence for the Crown".

11. Mr Justice Power V-P was emphatically asserting the principle in R v Sang [1980] AC 402 in which five of the most respected Law Lords of our time each gave lengthy judgments. There are some minor differences but even taking the widest definition of the discretion as stated by Lord Scarman it is as follows :-

"(1) that there is one general discretion, not several specific or limited discretions;

(2) ....

(3) that the formula of prejudicial effect outweighing probative value, which has been developed in the 'similar fact' cases, is not a complete statement of the range or the principle of the discretion;

(4) that the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the 'unfair use' of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution's case admissible evidence, however obtained."

12. This final point had earlier been made with some force by Lord Diplock :-

      "... the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason."

13. Thus, that a discretion exists is clear and so is it also, that the circumstances in which it would be properly invoked approach the unimaginable.

14. The essential thrust of Mr Macrae's submission was that the discretion exists and although the exercise of it may have been unusual or even unique, it cannot be said that, provided it was exercised judicially, it was plainly exercised wrongly. He argued that the learned Magistrate made findings of fact upon which he based his decision and based on those findings, it cannot be said that his decision was plainly wrong so as to amount to an error in law.

15. He placed some reliance, as had the Magistrate, on the case of R v Pipe [1967] 51 Cr App Rep, 17 but also on R v Turner (1975) 61 Cr App Rep, 67. It was plain that Mr Macrae, with his familiar realism and ability to recognize a poor point, did not suggest that the ratio decidendi of Pipe should be followed by this court. He was nonetheless obliged to give it some house room which he skilfully did by directing the court's attention to observations of it by Lawton LJ in R v Turner (supra).

16. The least charitable assessment of R v Pipe is that it was a bad decision from the outset. More charitable is the view that even if it may have been supportable at the time it was soon to become out of date and is wrong and unsupportable now and has been for some time. It purports to be authority for saying that either an accomplice's testimony is inadmissible until he has been finally dealt with or that if he has not been finally dealt with, the discretion to exclude his testimony should be exercised.

17. It is apparent from the Magistrate's written case stated that the issue of whether PW1 had been finally dealt with or not caused him much concern. The fact that he concluded wrongly that PW1 had not been finally dealt with is neither here nor there. It was an issue about which he simply should not have been concerned. PW1 was an accomplice and judicial thinking for some time now has been that it is usually preferable to defer sentencing an accomplice until after the trial in which he gives evidence has been completed so that the judge has the best chance of assessing the whole picture.

18. R v Turner, which was decided in 1975, was prayed in aid, not because it supported R v Pipe, but because Lawton LJ stresses the distaste and disquiet which inevitably attaches to accomplice evidence. It suggests that mere existence of an inducement to ingratiate himself might be sufficient grounds to exclude his evidence :-

"... The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude (the accomplice's) evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it."

and later :-

            "If the inducement is very powerful, the judge may decide to exercise his discretion; but when doing so he must take into consideration all factors, including those affecting the public. It is in the interests of the public that criminals should be brought to justice; and the more serious the crimes the greater is the need for justice to be done. Employing Queen's evidence to accomplish this end is distasteful and has been distasteful for at least 300 years."

The Court's decision

19. In law therefore a very narrow discretion exercisable only in wholly exceptional cases does exist.

20. To deal with its application to this particular case, I refer again to paragraphs 32 to 35 of the learned Magistrate's written case stated (at pages 3 and 4 of this judgment). The general complaint about those paragraphs, with which I agree, is that even if his decision to make those findings were correct, they are nonetheless irrelevant to the issue of whether the extremely narrow discretion should be exercised. I should add that this court does not accept that those findings could, in any event, have been made on the information available to him at the time. However it is their irrelevance which is more important. I refer to them in turn :-

(a) That PW1 had not been finally dealt with. In fact he had been, but it is nonetheless not a factor to take into account when exercising the discretion. It is of course highly relevant to the weight to be attached to his evidence once given.

(b) That his conviction was "shaky" and of "a quality which was not of a high order". The same criticism applies. He, further, was not in a position to make such a judgment.

(c) That he had been given a conditional immunity. Mr Macrae conceded that this alone cannot warrant exclusion of accomplice evidence.

(d) That PW1had been threatened prior to pleading guilty. There was simply no proper evidence upon which he could have made this finding.

(e) That PW1 had been "prepared" by the ICAC as to what evidence to give. Again there was no investigation by the Magistrate or evidence heard by the Magistrate which could have led him to conclude that PW1 had been coached to give certain evidence.

(f) That allowing PW1 to testify would not only prejudice a fair trial but would be unfair to PW1 as well. There is no authority for fairness to the accomplice being a relevant factor which the trial judge should take into account on the issue of discretion. It is not relevant.

(g) That PW1's evidence would potentially prejudice a fair trial. This necessarily includes a finding that the Magistrate judged PW1 to be potentially unreliable. His potential to prejudice the fairness of the trial or the potential unreliability of his evidence, in the context of this case could only be assessed by hearing and evaluating his evidence, which he did not do. The "potential" effect of a man's evidence gleaned only from documents cannot be enough.

(h) Potential unreliability can only be relevant to weight not admissibility.

21. Before giving the court's brief and specific answers to the three questions posed in the case stated, there is a final matter I should deal with :-

The role of the Professional Magistrate or Judge sitting alone

22. The learned Magistrate was both Judge and jury. Mr Bruce submitted, and I agree, that the circumstances in which a single tribunal should exclude evidence, seen or unseen, are even more remote than when the verdict is in the hands of a jury. The reasoning is straightforward. A professional legally trained magistrate or judge sitting alone is able to distinguish between prejudice and probative value. However clear and correct a direction to a jury maybe there is a risk that they fail to put out of their minds matters which they are directed so to do and that they fail to heed warnings given to them about the inherent dangers of certain types of evidence. In Attorney General v Siu Yuk-shing [1989] 2 HKLR at p 102, the Privy Council stated :-

"The risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by a judge alone the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is admissible. If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that it is admissible."

The three questions

(1) Did I have a discretion to exclude the evidence of PW1?

23. There is a discretion to exclude relevant and otherwise admissible evidence if its reception would produce an unfair trial. However this court knows of no situation when the unheard evidence of an accomplice would qualify for exclusion by the exercise of this discretion. The question posed concluded with the words "the evidence of PW1". The question is confined to the facts of this case and this accomplice.

24. The answer to that specific question is 'No'. The Magistrate had not heard or read his evidence. In those circumstances the time when a Magistrate might be able to exercise the very narrow discretion had not arrived. He could not have applied the principles correctly based purely on the documents that were placed before him. In my judgment, he made an error in law in making the findings he did based on those documents. Further, and for the sake of completeness, even if he had heard the evidence and thereafter made the same findings, they are substantially findings which are relevant to weight not admissibility.

25. The answers to questions (2) and (3) do not arise because they begin with the words "If the answer to question (1) is 'Yes' ....." However, in order to provide an answer to question (2), I will amend the wording slightly. The court's answer is - in order to determine whether the discretion arises and if so whether it should be exercised, there must be an evidential basis to make such a determination. Similarly in answer to question (3) - if, having heard some evidence on the issue, the Magistrate had made those findings which appear in the written case stated, he would have been in error to thereafter rule the evidence inadmissible. They are matters relevant to weight only.

26. I now invite further submissions from Counsel on two further matters, firstly, the future disposal of this case in the light of this decision and secondly, costs.

27. Having heard submissions from Counsel, I now make the following orders :-

(1) The Respondent Lee Wai Man be tried on the same charge of an offence contrary to s.25(1) of Cap.455 as soon as is practicable and before a different Magistrate. The exercise of this discretion is, as with all discretions, a balancing exercise. The factor which has tipped the balance in favour of ordering a re-trial is that the need for justice to be seen to be done outweighs the fact that because of possible difficulties in the evidence against the Appellant the prospects of a successful conviction may be slim. That is not for this court to speculate about but for the Magistrate to decide.

(2) There be no order as to costs.

Representation: