THE QUEEN v. CHAN MAN NUNG AND OTHERS

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JUDGMENT

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McMullin, V.-P. :

1. The three applicants were convicted by Judge Ryan in the District Court of a number of offences under the Prevention of Bribery Ordinance Cap. 201. At the time of the events with which the case was concerned CHAN Man-nung (D1) was a Senior Inspector, HO Yee-san (D2) was a Sergeant and MO Chiu-keung (D3) a Detective Constable, all three being serving officers in the Royal Hong Kong Police Force.

2. On the 28th of September 1983 the Eurosil Electronic Company in the Houston Centre, Tsimshatsui was entered by a number of armed men who robbed the company of a large quantity of electronic equipment to a total value of some $4,000,000. A- police reward of $10,000 for information leading to the arrest of each of the persons involved was offered. This reward was overshadowed by an offer on the part of the victim company itself of 10% of the value of the stolen goods to be paid for information leading to the recovery of these goods and the arrest of the offenders.

3. Two teams under the direction of Senior Inspector Taylor were set up to investigate the crime. The three applicants were members of one of these teams.

4. From the outset the magnitude of these rewards would seem to have somewhat upset the moral equilibrium of some of the police officers concerned in the investigations. On the Crown's case the arrest of a man called CHU Wai-hung, through information supplied by an inspector LAU Yuk-wan and a detective constable called Ko Lo Kai, was tainted with the suspicion that the arrest was part of an endeavour on the part of those officers to gain a share of the reward in collusion with the man arrested.

5. Subsequent to the arrest of CHU he was visited at Lai Chi Kok Remand Centre by a man called WOO Shek-wing (PW1), a boyhood friend who had known him in their native village in China. This man had a brother WOO Shek-kau whom he had reason to suspect had been involved together with CHU in the Eurosil robbery. The case against all three applicants rested mainly upon the testimony of WOO Shek-wing.

6. WOO (PW1) decided to turn in his brother for the reward. He got into contact with D3 through a police hot-line and as result of his information his brother, WOO Shek-kau, was arrested on the 18th of November 1983 and some of the stolen goods were recovered. CHU and Ah Kau were-subsequently given bail and they absconded.

7. Prior to this PW1 had visited his brother on several occasions in the Remand Centre and there, on at least one such occasion, had seen another man who was also visiting his brother and who he recognized as NG Shu-fat, a former fellow villager and a person whom he reckoned to be a triad leader.

8. During his, dealings with the police PW1 became aware that this man NG suspected him of being the person whose information had led to the arrest of WOO Shek-kau. Whether NG's interest in the matter was due to a desire for revenge or for a share in the reward never became clear, but at all events PW1 was greatly concerned lest his identity as the informer should be disclosed to this man. These events form the background to the several charges.

9. The first charge concerns the events of the 9th of March 1984: It is common ground that on that day PW1 received a sum of $224,606.71 from Senior Inspector Taylor at Kowloon Police Headquarter, this being the reward put up by the victim company and confided to the dare of the police.

10. PW1 told the court that prior to collecting this money D3, who had conducted him to the police station, solicited from him several sums totalling $90,000 to be paid out of the reward money on the basis that he and D1 and D2 and also Senior Inspector Taylor and some others had done a lot to enable PWl to collect the reward. According to PW1 20,000 of this would be for D1, 10,000 for D2, 40,000 for D3 himself and 20,000 for Inspector Taylor and-some others

11. After the money was paid over to him PW1 went with D3 in a car to Tsimshatsui. There, on the instructions of D3, he put $50,000 in one envelope and $40,000 in another. He left D3 together with these envelopes in the car and went to a nearby Hong Kong and Shanghai Bank where he banked $120,000. He had left D3 making a phone call from a shop near where they had parked. When he returned D3 had disappeared with the money in the envelopes but shortly after that he located D3 and was told by him that the 50,000 had been collected by D2 on -behalf of himself and D1.There was no independent evidence to confirm this and, although all three had been named in the charge, only D3 was convicted of this offence. He was also convicted of accepting the same sum (6th charge).

12. D3 was also convicted of two other offences, one of soliciting and one of accepting an advantage (7th and 8th charges), contrary to the Provisions of Section 3 Cap. 201. Originally, he, like the other two applicants, sought leave to appeal against all of these convictions but subsequently served notice of abandonment of his application.

The Case of D1

13. In the second charge, Dl is charged alone with soliciting, contrary to Section 4(2)(a) of Cap. 201, a sum of $20,000 from WOO Shek-wing as an inducement or reward etc. for maintaining the secrecy of WOO Shek-wing's identity as a police informant. In the third charge he is charged with accepting that sum on a date between the 9th of March and the 6th of September 1984.

14. The evidence against him on these charges is primarily that of the informer, PWI. He described how, having begun to fear that his identity might be disclosed to NG Shu-fat, he reported this to D2 and D3 and a meeting was arranged at the Kam Lai Sze Restaurant in Kowloon for the 16th of January. All three applicants were present at this meeting.

15. There had been various meetings between PW1 and D3 in January and these related in part to his collection of the police reward of $10,000 on the 10th of January from Senior Superintendant Mumford. According to PW1 D3 retained $9,000 of this $10,000 to cover his "boss's expenses". This was the subject of the 5th charge but the trial judge did not find the evidence sufficient to support that charge and it was dismissed.

16. There had, also according to PW1, been various reference by D3 to D1 - also known as "Old O" - as his boss. None of this was evidence against Dl in respect of the charges with which he was concerned and it was not so treated by the learned judge.

17. The primary evidence against him concerned what transpired at the meeting at the Kam Lai Sze Restaurant on the 16th of January. According to PW1 he told D1 about his fears concerning NG who had previously asked PW1 to meet him at Kowloon Police Headquarters. There ensued a conversation between PW1 and D1 the gist of which was that the party headed by NG was offering $10,000 in return for the desired information. The record of PW1's evidence thereafter goes as follows:-

"He asked me Ah Wing what are you going to do. I asked what did he want and he replied $20,000. He did not say why, he wanted the $20,000. He said Ah Wing set your heart at case nothing will happen to you. I said OK no problem.

 

Nothing was mentioned about why the payment of the money was to be made. I agreed to pay because I wanted my identity kept secret which he agreed."

That was the evidence as to the soliciting by D1 of the $20,000. It was the Crown's case that this sum had actually been accepted by D1 add that it was part of the $50,000 placed in an envelope by PW1 at the request of D3 on the occasion when the witness had collected his major reward on the 9th of March 1984. There was no direct evidence of that but the Crown relied upon a conversation which, according to PW1, took place between himself and D1 in the presence of D3 and a certain sergeant Ngan at the Flower Lounge Restaurant in Kowloon on the 5th of September 1984.

18. By this time PW1 had reported the approaches made to him by these various police officers to the Independent Commission Against Corruption and he was working in conjunction with certain officers of that Commission in an endeavour to obtain evidence against the three applicants. PW1 said that he had asked D3 to arrange this lunch party at the restaurant and before he went, there he was equipped with a tape-recorder with the purpose of obtaining some admission from D1 as to his receipt of the corrupt money. PW1 said that he was told by D3 that the new-comer Sergeant Ngan had replaced D2 upon the team and he was also warned not to talk too much in the presence of "Old O".

19. He and D3 got to the restaurant first and were then joined by D1 and Sergeant Ngan. There ensued, by his account, a somewhat cryptic conversation which was described by him in the following terms:

"I asked D1 if those things had been handed to him by Keung Chai that is D3. He said early in the morning which I understood to mean a long time ago. I was referring to the $20,000 I had been asked to give at Kam Lai Sze Restaurant. I said that I had given him information about the third person why did he not carry on with the work. I was referring to the third robbery of the Centre at Tsimshatsui. He said so far so good. D3 told me to stop talking and we talked about fish breeding. We stopped talking about the case because there was a third person I did not know."

He was asked in cross-examination why he had not specifically referred to the $20,000 when putting the question to Dl and he replied that he had been nervous.

20. After the lunch meeting he reported to the officers of the Independent Commission but it was then discovered that the tape-recorder had not functioned and on the following day the 6th of September, at the instance of the I.C.A.C. officers, he telephoned D1 from a flat at Wah Fu Court. The purpose of this was clearly to confirm what, according to PW1, had been said to him at the restaurant on the previous day. The substance of this telephone conversation was given in evidence by PW1 in the following terms:

"I asked to speak to CHAN SIR. Then Chan spoke on-the phone. I recognized the voice as that. of D1. He said SIR CHAN speaking. 'I said CHAN SIR AH WING. I said there was someone honest yesterday and inconvenient to talk. I asked if KWONG CHAI had given him two pei that is $20,000. I used words two pei. I did not say $20,000 two pei is a term commonly used by them. At Kam Lai Sze Restaurant he also said two pei that is D1. He said early in the morning.

In cross-examination he once again explained that he understood the phrase "early in the morning" to mean "a long time ago". He said that he understood that D1 spoke in this way because of the presence of the stranger there. On this occasion the recording device did work properly and a certified English translation of the recorded conversation was introduced in evidence.

21. Dl gave evidence and he said that the purpose of this meeting at the Flower Lounge Restaurant on the 5th of September was to gain information from PW1 which might lead to the re-arrest of the absconded robbers and the reference to money was to be understood in the context of a request by PWl for $10,000 in return for information leading to their arrest. This, he said, was something which he had cleared with his superior officer.

22. The meaning of the taped phone conversation was thus strongly in issue and Dr. Simon CHAU Sui-cheung, a lecturer in the Translation Department of the Chinese University, was called as an expert witness to comment upon the certified translation of the conversation produced by the Crown in comparison with the actual words used by the participants as recorded upon the tape.

23. A certain amount of ingenuity was devoted to this issue both at the trial and upon the hearing of the appeal. So far as the $20,000 is concerned the principal focus of attention in this matter is one particular sentence spoken in the course of the conversation. That sentence in the certified translation appears in the following form:

A. and B. represent respectively PW1 and Dl. Dr. Chau said that that could be a correct translation of that part of the conversation but he favoured the following version:

	"A.	Hey! Yesterday, it was inconvenient to talk. I wish to ask has Keung Chai's matter been handled clearly or not (the said '2 bucks').
	B.	Clear."

According to the defence the latter version would better favour the defence contention that this conversation was all about PWl's request for a further $10,000 in return for information concerning the absconded robbers. a request which Dl alleged had been conveyed to him by D3 on the afternoon of the day upon which they all met at the Flower Lounge Restaurant.

24. Dr. Chau acknowledged that either of these versions could be regarded as correct and that that could also be said of the certified translation of the remainder of the telephone conversation as against his own gloss thereon. This was an exchange in equally guarded and covert terms concerning D3's alleged appropriation of $9,000 out of the $10,000 police reward So far as that part of the conversation is concerned it is clear that D1 was denying that he had received any part of that money and maintaining that D3 must have kept it for himself.

25. The trial judge did not believe the version given by Dl and D3 of the reason for the Flower Lounge meeting. It appears that by this time the Chief Inspector had fixed a limit of $5,000 for such information and the judge was understandably reluctant to accept that either D1 or D3 would be prepared to go behind that authority on their own account. He said:

"I reject their evidence on this as untrue. Perhaps, I should add that even if I had accepted Dr. Chu's evidence that there are two acceptable translations of the relevant Chinese characters I would still, given my findings on the conversation in full and on Dl and D3's evidence regarding the reasons for D1's replies, have found the certified translation, in the circumstances of the case, to be the correct translation to apply."

26. One of the grounds of appeal put forward by Mr. Martin Lee on behalf of DI alleges that the judge too lightly dismissed the evidence of Dr. Chau and we were referred to the current practice direction which covers the procedure to be followed when English translations of Chinese documents are challenged. It is unnecessary to refer to that. The judge was fully entitled to consider the true meaning of the spoken words in the context of the circumstances under which they had been spoken and more especially in the light of the credibility to be attached to the explanation given by Dl and D3. Dr. Chau himself, as one would expect of a man of his qualifications and attainments, candidly admitted in cross-examination that the question of context made a difference. Though closely argued we find no substance in this ground of appeal.

27. Furthermore we think the judge legitimately regarded the absence of any mention of the setting up of such a meeting or authorization by his superior officer of such an offer in the notebook of D3 as lending support to the interpretation which he placed upon this phone conversation. Though primarily touching the behaviour of D3 this was a point which necessarily touched the case of Dl as well since the evidence of both applicants was identical upon this matter.

28. There was in the evidence of PWl as to the Kam Lai Sze episode and the Flower Lounge episode - the latter amplified and supported by the record of the phone conversation on the following day - enough to justify the conviction of D1 on the second and third charges. There remain to be considered however in his regard several other grounds of appeal.

29. The first and second grounds relate to the admission in evidence of records of interviews between officers of the Independent Commission and Dl. It must be said at once that nowhere in the course of these interviews did D1 ever admit to the malpractice alleged against him by PW1. On the face of them, all the statements that he made to the officers of the Commission were entirely self-exculpatory. These were of use to the Crown, however, insofar as the prosecutor was able to point out that nowhere in any of those statements had Dl ever put forward the explanation for the telephone conversation of the 6th of September which he advanced when giving evidence at the trial. The judge specifically referred to this fact when coming to his conclusion on the events of the 5th and 6th of September as described by PWl and as to the meaning of the conversation which took place on those days.

30. At the outset of the trial counsel for the Crown and counsel for the defence took a somewhat unusual course. It was never suggested that any of the statements made by Dl in the course of these interviews was a product of fear induced by threats or other improper means exerted against him nor yet by hope of advantage offered to him by those who interviewed him. What was said was that the behaviour of the officers of the Commission had been oppressive in that it consisted of a kind of lengthy cross-examination of the applicant extending over several occasions. Counsel for the defence with the compliance of counsel for the Crown prevailed upon the judge to consider the contents of the records of these interviews, it being the case for the defence that oppressive questioning was patent upon the face of the documents themselves and that he should therefore exercise his discretion to exclude them.

31. No separate enquiry as to the voluntariness of what had been said by the applicant in the course of these interviews was entered upon. The judge accepted the invitation to deal with the matter in this way but having considered the form which the interrogations had taken in the case of all three applicants- all of whom had made various answers to questions under caution - he was satisfied in relation to all of them that nothing in the nature of conduct so oppressive as to sap the will of any of the several applicants could be discerned in the material to which he had been asked to restrict his scrutiny. He evidently regarded what had been said by the applicants in the course of interrogation as being voluntary in its character and he declined to exclude the records of these interviews in the exercise of his discretion.

32. Mr. Lee resting upon the authority of cases such as KWOK Kwan Ho v. Reg. ⁽¹⁾ and WAT Kwok-leung v. Reg. ⁽²⁾ points out that there was wanting here the necessary minimal affirmative proof of voluntariness which, on the authority of these decisions, must be shown by the prosecution before such statements are admitted. He relies also upon the decision of the Full Court in LEE Fat v. The Queen⁽³⁾ where it was held that even where the defendant does not object to the admission of a statement which the prosecution seek to produce in evidence there must be some positive proof from the side of the prosecution to show that the statement was voluntary, even though such proof need not, as the Court held, amount to anything more than a scintilla.

33. In Reg: v. LEUNG Lai-bor and others⁽⁴⁾ Huggins, J. (as he then was) delivering the decision of the Full Court endorsed the earlier decisions in WAT Kwok-leung and KWOK Kwan-ho and went on to say:

"That no objection is taken to the admissibility of a piece of evidence does not constitute an admission of any fact upon which the admissibility of that evidence rests: an absence of objection must be clearly distinquished from an admission that the evidence is admissible, which in a criminal case can now be made under the provisions of Section 65C of the Criminal Procedure Ordinance."

The Court held that evidence that a caution had been administered might, in Hong Kong as in England, afford the necessary scintilla.

34. Mr. Lee is clearly right when he says that in Hong Kong there are only two ways of adducing evidence in a criminal trial:

(a) By calling a witness to give oral evidence; and

(b) by admissions made under various statutory provisions including Section 65C of the Criminal Procedure Ordinance.

We are not persuaded that what was done in this case can be said to be covered by the provisions of Section 65C(ii)(b) as Mr. Lugar-Mawson sought to maintain. Clearly the relevant officers should have been asked to produce these statements in the usual way.

35. We are satisfied however that this cannot have occasioned any miscarriage of justice. What was done, although irregular, was done at the instance of counsel who in effect made it clear that the ground of oppression, resting wholly upon the manner of interrogation as displayed in the records, could not be amplified by anything said by or on behalf of the individual applicants.

36. Grounds 3 and 7 may be taken together. It is said that the trial judge, although he warned himself in general terms as to the quality of the witness. PW1, ought to have regarded him as an accomplice in these corrupt dealings or at least to have addressed his mind to the issue "accomplice vel non".

37. Mr. Lugar-Mawson on the other hand asks us to say that such considerations were rendered unnecessary by virtue of the provisions of Section 22 of the Prevention of Bribery Ordinance Cap. 201 which provides as follows:

"Notwithstanding any rule of law or practice to the contrary, no witness shall, in any proceedings for an offence under Part II, be regarded as an accomplice by reason only of any payment or delivery by him or on his behalf of any advantage to the person accused...."

Both counsel referred to the decision of Trainor J. in LI Tit-chuen v.The Queens⁽⁵⁾who held that an accomplice, in the context of Section 22, is one who "freely offers, gives or pays something to a willing recipient to do or refrain from doing something which he ought or ought not to do ..."

38. We are of the view that Trainor J. has correctly interpreted the intention of the Legislature in Section 22.

39. Another possible view is that anyone who participates in the offence of bribery is, by reason of that participation, part of the crime willing or not and that Section 22 has been inserted in the legislation to avoid the necessity for the normal accomplice direction to be given in respect of him.

40. But nothing turns on this in the light for the view we take of the complainant here.

41. It seems reasonable to assume that this legislation is aimed primarily at the suppression of the kind of corruption which involves two satisfied parties. Where something in the nature of duress enters in, it would seem to be counter-productive to the scheme of the Ordinance to hedge about the testimony of someone who can clearly be seen to be a genuine complainant, in respect of a corrupt scheme, with the same safeguards that would reasonably be applied in the case of the initiator of such a scheme.

42. Then Mr. Lee says that this complainant was in any event a willing participant. We do not agree. Although it is true that D1 only made his complaint to I.C.A.C. some three months after the initiation of these events, he is nevertheless a complainant who has on his own showing, had over one-third of his bounty-money filched from him by persons whom he feared to oppose, at least in part because of the danger that his identity would be disclosed to a man whom he clearly feared. In these circumstances it was not necessary for the judge to consider the testimony of PW1 in the light of the possibility that he was an accomplice.

43. It is true that PW1 was a man with a possible interest of his own to serve. When he brought his tale to the Independent Commission he gained an immunity from prosecution for himself on the basis that he would implicate several police officers in a corrupt scheme. But Reg. v. Beck ⁽⁶⁾ is sufficient authority to dispose of the contention that, merely upon that ground, the accomplice type of warning ought to have been directed by the trial judge to himself. Mr. Lee put it that such a direction was necessary if the witness had a purpose of his own to serve and if he could also be regarded as in some sense a participant in the offence.

44. The evidence given by PW1 did not disclose him as a participant in the alleged soliciting (the second charge) nor, by reason of the provisions of Section 22, is he to be so regarded in relation to the third charge the charge which covers the paying and accepting.

45. The judge was well aware that PWl was. as he put it, a man "whose evidence must be approached with caution as he has been shown to be a man motivated by greed, being prepared to report his brother for the reward, and a man who was prepared to lie if he thinks he can get away with it."

46. In any event, the judge, although not obliged to do so, did in effect find corroboration of the testimony of PW1 in the certified translation of what was recorded over the telephone upon tape and we are satisfied that he was entitled so to find. These grounds likewise fail.

47. Then it is said (grounds 4 and 5) that the learned trial judge did not adequately consider the case against D1 separately from that against D3 but allowed his extensive consideration of the evidence against D3, and his rejection of D3's own story, to influence him unduly in rejecting the defence of D1.

48. It is true that the greater part of the reasons for decision is taken up with a close consideration of the testimony of PW1 as it bore against D3. But, as Mr. Lugar-Mawson pointed out; the case presented by PWl disclosed D3 as his principal police contact with whom he had a number of meetings and conversations in the course of which reference was made to the other two applicants. Had that been the only evidence against Dl or D2, then, clearly the charges against them could not have been sustained and it is, very unlikely that such charges would have been preferred.

49. The case against D1 rested firstly upon the fact that he was admittedly a member of the investigating team which included D3 and D2 and secondly - and principally - upon PW1's evidence concerning the meetings in the Kam Lai Sze Restaurant in January 1984 and in the Flower Lounge Restaurant in Septemeber of the same year, the latter incident being supported by the record of the conversation which then took place.

50. The account of the whole affair given by PW1 presented D3, the constable, in the role of go-between in what amounts to a police conspiracy. On this story there were only two occasions when PW1 actually encountered D1 and it would not have been possible for the judge to estimate the truth or falsehood of the evidence given by the witness against Dl without a careful analysis of the quality of that evidence as it bore against D3. When he came to consider the case against D1 and D2, there was little more that he could add, more especially in the case of D2 who did not give evidence, to the considerations which had already moved him to believe the truth of what PW1 had said in relation to his dealings with D3. So far as Dl was concerned he was confirmed in his view of the reliability of that evidence by the testimony of the taped conversation and we cannot say that he was wrong in so finding.

51. In one particular only did he err in this regard. It was suggested to D1 that he had actually set up the meeting at the Kam Lai Sze Restaurant on the 16th of January and he denied that that was so. The trial judge held that to be untrue and he specifically referred to an entry in the notebook kept by D3 in which it was recorded that Dl had asked for the meeting. It was conceded by the Crown that this was an error but the judge's analysis of the evidence of PW1 was, on the whole, a close and careful one and we cannot say that that single error betokens a wrong approach or anything in the nature of a failure to consider the case of all the applicants independently.

52. Finally (ground 8) it is said that the trial judge should have rejected the evidence of PW1, quite independently of anything that he found to corroborate it, on the basis that he was inherently so suspect a witness that his testimony should not have been regarded as reliable. This ground, as Mr. Lee concedes. is one which, in effect, invokes the lurking doubt We have considered the several elements in the background and behaviour of PW1 to which our attention has been drawn  but we are satisfied that these matters must have been present to the mind of the judge and that he concluded, and was entitled to conclude, quite apart from any corroborative matter, that the witness had told the truth.

The Case of D2

53. The case against this applicant once again rested on the testimony of PW1 in respect of the following matters: firstly, the presence of D2 during the conversation between Dl and PW1 at the Kam Lai Sze Restaurant on the 16th of January; secondly, the handing over to D3 of an envelope containing $50,000 which PW1 believed was intended to gratify several other persons including D2; and' thirdly, the conversation described by PWl and which according to him, took place on the 12th of October 1984 when he met D2 at the Yee Fung Restaurant, Mong Kok in the afternoon. On this occasion he was once again equipped with a tape recording device.

54. According to PW1 D2 told him that he, D2, had had to press D3 for some time after PW1 had received the reward money before he, D2, received his $10,000. On this occasion the recording device did work properly and the certified translation of the lengthy conversation, lasting about 45 minutes, was put in evidence.

55. The contents of this record suffers not only from the inherent difficulty that the conversation took place under unfavourable circumstances, between two not particularly articulate participants, but also because its inherent infelicities of grammer are heightened by an obsessive flow of expletives which at times almost wholly obscures the meaning of what is sought to be conveyed. There is no clear reference in the transcript to the receipt of $10,000 but in the course of a series of rambling and only partly coherent monologues, concerning the difficulty of "chasing after" D3 for payment, there are references to having received something from somebody, luridly described, who in the context was probably D3.

56. In addition to that, however, there is the very important fact that in his first interview with I.C.A.C. D2 having initially denied ever mentioning the receipt of $10,000, PW1 totally reversed that position in the afternoon of the same day. In this, the second interview, he was referred to the contents of the taped conversation and it was put to him that he had told PW1 that he had received the $10,000 (see question 14 on page 100 of the record).At this point, D2 admitted that there had been such a meeting and that he had said that he had received $10,000 but did so only to lead PW1 on in order to discover what trick he was up to. Throughout that interview, and in the third interview on the following day, he maintained that he had only pretended to have received $10,000 in order to lead PW1 on. This strongly supports PW1's testimony on the point notwithstanding the deficiencies in the recording.

57. Mr. CHENG Huan who appeared for D2 upon the appeal adopted the arguments of Mr. Lee in relation to the admission of the I.C.A.C. interviews with D2 and the "accomplice vel non" issue, and also in relation to the allegation that the case against D2 was not considered on its own merits but was lumped together with that of D3, so that the stronger evidence concerning him was allowed to tip the scales against D2. With due respect to counsel we can find no stronger substance in these contentions in the case of D2, who did not give evidence.

58. Mr. CHENG Huan also maintained that the judge did not show a sufficiently lively awareness of the deficiencies of PW1 as a witness. In addition to the several points alleged by Mr. Lee as telling against the credibility of PW1 Mr. CHENG Huan advances two further considerations. Firstly, he says that the judge's comment on the failure of D2 to give evidence trespassed beyond the bounds of fairness. We are satisfied that that contention is unsustainable. What the judge said was:

"While his election not to give evidence cannot help to prove the case against him it is nevertheless difficult to understand why, if he had an explanation for the contents of the conversation with PW1, which are on the face incriminating, he did not go to the witness box to explain."

This is a reference to the fact that in the course of cross-examination it was put to PW1 that the subject of the conversation between D2 and the witness, when D2 made his several diffuse and obscure references to "chasing after" somebody, was to be understood as a reference to "tasking money" paid to the witness. We understand that this "tasking money" was money allegedly paid by D2 and D3 to the witness in the course of his co-operation with them in fulfilling his role as informer. It was therefore the case of D2 and D3 that this money had been legitimately paid to him as an advance which they expected to be made the subject of a refund from police resources later on.

59. In fact D3 did lodge a claim for a refund of some $14,000 after, the arrest of PW1's brother, claiming to have expended this amount in various ways in relation to the services supplied by PW1 to the investigation. The claim was dismissed out of hand by D3's superior officer. In the circumstances the judge's comment upon the applicant's silence was a perfectly proper one.

60. The second point which Mr. CHENG Huan made in this connection was that the judge was wrong in having drawn an adverse inference from the fact that the taped conversation makes no reference to any such "tasking money". Once again we cannot regard that is being in any way an improper comment. The applicant's "defence" remained at the level of suggestion, put by counsel in cross-examination. The point was of vital importance to D2's case and in the absence of such an explanation it is not to be wondered at that the judge should regard his silence as fortifying the conclusion that PW1 had spoken truly when he said the $50,000 had been put in one envelope for the gratification of several officers including D2 and that D2 had eventually, however ambiguously, admitted to having received his share.

61. For these reasons we find no substance in the grounds put forward in favour of either applicant. We find that there was no material miscarriage of justice in the irregular procedure whereby the statements to the officers of the I.C.A.C. were admitted and applying the proviso to Section 83 of the Criminal Procedure Ordinance we grant the applications for leave to appeal against conviction of both applicants and we dismiss their appeals.

(1)    (1973) H.K.L.R. 231

(2)    Cr. App. 880 of 1972 (unreported)

(3)    (1969) H.K.L.R. 349

(4)    (1975) H.K.L.R. 202

(5)    (1977) H.K.L.R. 71

(6)    (1982) 74 Cr. App. Rep. 221