R. v. LAU YIU KWAN

IN THE COURT OF APPEAL

1996, No. 394
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant was charged with conspiring to offer advantages between July 1993 and July 1994 contrary to common law and section 4(1)(a) and (b) of the Prevention of Bribery Ordinance, Cap. 201. He was convicted by His Honour Judge Sweeney after trial and now seeks leave to appeal against conviction. After the close of the prosecution case and the case for the defence, Particulars of the Charge were amended as follows:

Statement of Offence

Conspiracy to offer advantages, contrary to Common Law and Section 4(1)(a) and (b) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

LAU Yiu-kwan, between the 1st day of July 1993 and the 31st day of July 1994, in Hong Kong, conspired with LAI Kin-keung, SO Man-on and TONG Wing-keung and other persons unknown that LAU Yiu-kwan without lawful authority or reasonable excuse, to offer advantages, namely gifts, fees, and rewards of sums of money, and payment, release, discharge and liquidation of a loan, obligation or other liability owed by the said SO Man-on and LAI Kin-keung to the said LAU Yiu-kwan, to public servants namely Senior Inspector of Police in the Royal Hong Kong Police Force LAI Kin-keung and Sergeant of Police in the Royal Hong Kong Police Force SO Man-on, as an inducement to or reward for or otherwise on account of the said LAI Kin-keung and SO Man-on, abstaining from performing or having abstained from performing acts in their capacities as public servants, namely the taking of police action and police investigation into vice-related activities at the Kam Pik Villa and Lok Kung Guest House and hindering or preventing the performance of acts by other public servants in their capacities as public servants, namely informing the said LAU Yiu-kwan of impending police action against the Kam Pik villa and Lok Kung Guest House. (Amendments underlined).

2. What featured prominently in the case was the evidence of a corrupt police inspector, K.K. Lai (Lai). He was the Assistant District Operations Officer in a Special Duty Squad monitoring vice activities in Mongkok. From time to time, the inspector acted as the District Operations Officer. This inspector had been convicted on his own plea of two serious corruption charges. He was serving a term of imprisonment which had been reduced from five years to four years on appeal for the assistance he rendered in prosecuting both police officers and civilians. In office, Lai had accepted money from vice establishments for improper favours. He either abstained from taking action against them or sent them advance signals of police raids or decoy exercises. It was downright greed. There was possibly a self interest in his testifying against the applicant as that would allow him to petition the Governor for a further sentence reduction. An alleged co-conspirator, Sergeant SO Man-on (So) worked under him. The Sergeant was taken to court on conspiracy charges in a separate trial but was acquitted. Lai gave evidence against the applicant but So did not.

3. The prosecution case is that the applicant was a partner of what is commonly known as an apartment house or villa, the Lok Kung Guest House (Lok Kung). On Lai's evidence, particularly that of his personal visits to it for the services of prostitutes, Lok Kung was a vice establishment. Lai became familiar with the applicant who enquired of him how the villa could receive police protection. Nothing came out of this initial enquiry because Lai's offer apparently did not provide enough incentive. Later in about August, 1993, the applicant offered Lai a share in another villa the applicant was about to set up, called the Kam Pik Villa (Kam Pik). Lai agreed to take an equal share. Lai brought in So as a co-owner. Later, the applicant came to know of their co-ownership. The half share of Lai and So was later reduced to 40% because the applicant had to sell off 20% to one Pui Chai to raise capital. Subsequently, with the consent of Lai, the applicant himself re-purchased such 20%. Lai contributed no cash. The applicant agreed to and did pay Lai a monthly sum of $7,000 taken from Lok Kung. These monthly amounts were diverted to Kam Pik for funding the acquisition by Lai and So of its 40% allocated capital. Nothing would go to these corrupt officers until that capital was fully paid up. In return, Lai was expected to and did supply operational information, including details of police decoy operations. He abstained from taking actions against these villas. On one occasion, Lai withheld a prosecution file on Lok Kung. That really did not concern the conspiracy charged. What transpired was that in August or September 1993, the applicant told Lai that the Lok Kung had lately been raided and its keeper successfully prosecuted. Within two weeks after a conviction, the police would forward the address of the premises involved and other particulars to the authority for the posting and publication of a statutory notice. If a similar conviction is secured on the selfsame premises within a given time after the posting and publication of that notice, a closure order may be sought to close them down for six months. See sections 153A and 153B of the Crimes Ordinance, Cap. 200. The service rendered by Lai was that he detained the prosecution file on Lok Kung until the 14 days had expired and then left the file in a pile of other files. The police were unable to supply the requisite information to the authority in time. For that Lai was paid $20,000 in cash out of $30,000 taken by the applicant from Lok Kung. The evidence of Lai covered the whole period and contained much circumstantial matter, some of which was quite peripheral.

4. If Lai's evidence was believed, it warranted the applicant's conviction. The Judge properly reminded himself of the dangers of convicting upon it. The Judge was alive to Lai's character, the role he played, his convictions and the situation he faced. Having so alerted himself, he was nevertheless satisfied beyond reasonable double that Lai gave a truthful account. The applicant himself elected to give or call no evidence. The reality was that Lai's evidence stood uncontradicted. We are not persuaded by anything submitted in this appeal that the Judge was wrong in convicting Lai upon the evidence he accepted.

5. The particulars of the charge are not easy to follow. Criticism had been levelled at charges which were similarly formulated and laid against other persons involved in the conspiracy. On behalf of the applicant, the like criticisms were raised at the trial. The Judge expressed the view that on the evidence, the applicant ought to have been charged with bribery rather than conspiracy. Unbeknown to the applicant, Constable Tong Wing-keung (Tong) was recruited by Lai. Only when Lai was posted out of Mongkok, was Tong's recruitment accepted by the applicant. Tong was also named a conspirator but the evidence about what he did was not reflected in the particulars of the charge in the case. Nevertheless the prosecution did not apply to drop his name from the charge. The Judge saw fit to ignore the evidence implicating merely Tong in any alleged conspiracy. At the close of the prosecution case and the case for the defence, on counsel's submissions the charge was held defective. The prosecution did not and still do not concede that the charge as laid was bad. What seemed to be troubling the Judge was that the charge could be read to include an allegation against the named conspirators agreeing to both offer and to accept advantages to themselves. The amended particulars confined the charge to one against Lai for having conspired with others to have advantages offered by him to Lai and So. From start to finish that was the Crown's case, as given in the opening and sought to be proved by the evidence led by the prosecution. The applicant was the giver and Lai and So were the recipients.

6. Counsel was highly critical of the change in the formulation of the particulars, from the original to that as amended. It was submitted that a wholly different conspiracy was introduced. In fact it was the same conspiracy with the same conspirators except for its much narrower scope. The applicant could not have been misled as to what the prosecution case against him was. However trying it was to follow the wording in the particulars of the charge, it was clearly understood on all sides that in the conspiracy the applicant was alleged to have offered and paid bribes to Lai and So for the purposes stated and that those payments were made in furtherance of a prior illegal agreement. It does not appear that the applicant could be or was materially prejudiced by the amended charge. After the amendment was made, the applicant was given an opportunity to recall witnesses for further cross-examination and to reconsider his option of giving or calling evidence. The defence attitude, however, was that the applicant was unsure that the prejudice he claimed to have suffered could be cured by further cross-examining witnesses or revoking his election not to give or call evidence. The court's power to amend may be exercised at any stage of a trial. See s.23(1) Criminal Procedure Ordinance, Cap. 221. In all these circumstances, the amendment in this case was clearly not one which could not be made without injustice.

7. Furthermore, the Judge was invited to recuse himself and declare a mistrial. There was then no mention of the applicant's inability to fund the re-trial applied for. In that invitation, three reasons were advanced. First, since defence counsel had commented that the applicant might well have been guilty had he faced a substantive offence or even a different conspiracy, there was an erosion of confidence reposed in the applicant's counsel. There is no substance in this. In addressing a court, counsel not infrequently submits that other than the count impugned, his client may well be found guilty of a properly formulated or some other charge. Further, the assertion that this may have so undermined his client's confidence was no justification for inviting the Judge to disqualify himself or to abort the trial.

8. The second reason was that since counsel had advised his client to focus on a technical defence rather than one on the merits, the applicant was concerned that the Judge might have been irreversibly deflected from a proper adjudication on the merits. We can see nothing in this. A successful objection on technicalities alone may be all that is required in a trial but in making such a submission, a defendant would risk a possible reformulation of the charge to remedy the defects complained of, for instance, by amendment. In this case, an amendment was so made and the applicant was offered a proper opportunity to take the aforesaid consequential measures, which he declined.

9. The third reason was that the defence was placed at an unfair disadvantage because counsel had conceded the applicant's two cautioned statements as voluntary statements and had allowed to go in under s.65C of the Criminal Procedure Ordinance the evidence of the police inspector who took over from Lai. This inspector's evidence related to a missing file. The admitted facts showed that there had been a raid on Lok Kung leading to a conviction of the person in charge upon his own plea on 10th August, 1993, and that the file had vanished. We do not see how the admission of this evidence under section 65C could truly embarrass the applicant. This was not central to the alleged conspiracy and Lai also gave evidence on it. In any case, the admission could be readily withdrawn with leave under S.65C(4). As to the applicant's cautioned statements, they consisted mainly of denials except for the admission that Lok Kung was a vice establishment, but that also came from Lai. Again it is not apparent how the admission as to the voluntariness of these statements could have put the applicant at an appreciable disadvantage. If these cautioned statements had been involuntary, so Mr Zervos contended, the applicant would not have been likely to join the prosecution in staging a false scenario for the court.

10. We turn finally to the grounds of appeal. The first ground of appeal complains that the Judge erred in allowing the prosecution to amend the charge to cause what was claimed to be the irremediable prejudice to the applicant. We have already tried to demonstrate that no case of real prejudice has been made out. The second ground of appeal was not pursued. Evidently, once the evidence of Lai was accepted, a conviction would inevitably ensue. The third ground of appeal is that because defence counsel misconceived the nature of the conspiracy alleged in the original charge, he had totally disabled himself from properly conducting or presenting the case for the applicant. In truth, on instructions counsel had embarked on what subsequently turned out to be an inapt strategy in the light of the amended charge. Mr Poll who did not represent the applicant before the Judge submitted that in the curtailed cross-examination of Lai, counsel then representing the applicant was "to get him to give evidence that the conspiracy that [Lai might] have been involved in with the [applicant] was not the conspiracy charged" and that "if he could get [Lai] to give such evidence, that (sic) [he] would call no further evidence". Mr Poll informed us that the original counsel had disclosed to the Judge that he was in possession of material in four box-files for cross-examination. Counsel did not specify the nature of any other strategy or outline the cross-examination he would have attempted, nor did he explain the extent of claimed prejudices. Indeed, the defence took no advantage of the court's offer to receive evidence from further cross-examination after the amendment had been effected. It is also important to note that counsel's mandate had never been withdrawn, and the applicant continued to be so represented until the end of the trial. The applicant had his day in court. A party or his counsel often regrets not having taken another or a wiser stance in hindsight or in retrospect, but that is not flagrant incompetence and could not be a good cause for complaint, particularly when an accused person had, as the applicant in this case did, an ample opportunity to recall witnesses and/or adduce evidence after the amendment. We do not accept that the applicant was materially prejudiced. In a criminal trial, the question is always whether the defendant had effectively no trial at all on account of the matters complained of. On the claimed shortfalls, the applicant cannot maintain that he did not have a proper trial. In all the circumstances, the verdict is neither unsafe nor unsatisfactory. We dismiss his application.