R. v. WONG SIU TAT

IN THE COURT OF APPEAL

1991, No. 531
(Criminal)

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J U D G M E N T

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Headnote : Prosecution duty to disclose relevant material

Silke, V.-P. :

1. This is the judgment of the court.

2. The applicant, Wong Siu Tat, was convicted after trial before His Honour Caird of eight charges on a 15-charge Charge Sheet. These were respectively the 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th and 15th charges. Two of those charges - charges 3 and 11 - alleged a conspiracy to accept an advantage, contrary to common law and to section 4 (2) (a) of the Prevention of Bribery Ordinance, Cap. 210. The first conspiracy was stated to have run between the 11th day of March and the 20th of July 1990 and named as co-conspirators Ng Po Lung and Lam Yuk Kuen. The second conspiracy charge ran from the 14th day of June to the 26th day of July 1990 and named as co-conspirators Ng Po Lung, Tong Kin Wah and Lam Yuk Kuen. The named co-conspirators were Executive Officers of the Television and Entertainment Licensing Authority and Civil Servants. The remaining charges were all of offering an advantage to a public servant, contrary to section 4 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201. The applicant now seeks leave to appeal against those convictions.

3. This matter has a somewhat unfortunate history. The convictions were recorded on 2nd October 1992. On 2nd December 1991 the transcript, which was a lengthy one, was ordered and became available on 8th January 1991. A document called "Substantive Grounds of Appeal" was filed on 4th March 1992. This document did not comply with the Practice Direction entitled "Criminal Appeals" and which, in its paragraph 4, sets out the requirements in respect of perfected grounds. The solicitors concerned were reminded to conform with the Practice Direction but this was not done. As a result there was a Direction hearing on 29th April 1992 when various directions were given. The matter came on for hearing on 2nd September 1992 when the time estimate for the hearing was clearly inaccurate and various transcripts of certain tape and video recordings were thought necessary for the proper determination of the application. On 14th September the court was informed by the applicant's solicitors that the transcripts were no longer required. Perfected grounds of appeal were filed on 16th September and the matter was then listed. At the hearing itself a further ground of appeal was added.

4. Ground 1 of the perfected grounds reads as follows:

"1. That there was a material irregularity in the course of the trial in that the prosecution has failed to disclose to the defence timely or at all 122 audio/video tapes of meetings among the main prosecution witness, Mr. So Kon Ming (PW2) and other corrupt Tela officers and/or amusement game centre operators which have bearing on the offences charged and the surrounding circumstances of the case, and in particular the credibility and role of So Kon Ming."

There is then a submission which should not appear in perfected grounds at all. The additional ground of appeal reads :

"2. If, contrary to the Applicant's submission, it was found that there was no material irregularity since the existence of the remaining tapes were made known to the Defence by the disclosure of So Kon Ming's notebooks after trial had commenced, or that any material irregularity was thereby remedied; the convictions were nevertheless in the circumstances of this case rendered unsafe and unsatisfactory by the prosecution's failure to voluntarily disclose the contents of those remaining tapes at any time during trial."

5. It was the case for the Crown - and none of the trial judge's findings in respect of the evidence before him are now contested - that the Television and Entertainment Licensing Authority - "TELA" - dealt with the licensing of amusement games centres - "AMGC licences". These were either applications for new licences; applications for renewal of existing licences; or applications for an increase in the number of machines permitted to be installed by the licensee. Licensing officers would make site visits to inspect for irregularities and each games centre was allocated a file and a file number. It was never disputed that certain officers of TELA were corrupt. They overlooked violations of licensing conditions, expedited applications or assisted in the making of applications - all these for monetary reward.

6. The applicant was employed as an architectural draftsman with a firm of architects. That firm was an "authorised person" as defined in the Buildings Ordinance. All layout plans in relation to amusement games centres, which plans were required when applications were made for new licences or for increase in the number of machines, had to be provided by an authorised person. The applicant, although not himself an authorised person, provided these plans under the name of the firm which employed him.

7. An ICAC officer, Mr. So Kon Ming, went to work in TELA where he was ostensibly employed as a licensing officer under the name of "Ho Chi Ming". It was as a result of his investigation that these charges, and indeed many charges against other persons which do not directly concern us here, were brought.

8. Mr. So gave evidence in relation to many meetings he held with the applicant and with licensing officers. These meetings were held in various places. Two were made the subject of recordings using audio equipment. The tape of those recorded interviews, the transcripts and the translations were available prior to trial.

9. So's evidence at trial was virtually unchallenged other than for some minor discrepancies. The trial judge was of the view that the evidence he gave was supported by the tapes to which we have made reference. The contents of those tapes were not challenged.

10. The applicant gave evidence at the trial and he followed generally the line of the evidence given by Mr. So. Indeed, Mr. Chain, who appeared for the applicant both here and below, had submitted at trial that a comparison between the two showed the evidence to be completely consistent. The issue at trial was: did the applicant have a guilty mind?

11. It was the applicant's defence that he operated a legitimate decoration business and that the TELA officers concerned were acting for him in their private capacity as distinct from their official capacity. Money did change hands but this was for the expenses of the TELA officers to supervise decoration contracts. Further, the defence was that a TELA officer, James Ng Po Lung, had had dealings both with the applicant and with other TELA officers. It was accepted that Mr. So was unaware of the arrangements between Ng and the others and further that the applicant had never told So of the nature of those transactions. It was the Crown's case that those transactions involved corrupt payments for favours to be done by the TELA officers in overlooking violations of licence conditions, expediting applications or assisting the applicant with such licence applications in other ways. James Ng gave evidence at trial but the trial judge took the view that that evidence was of no value whatsoever to the Crown.

12. It was, of course, of importance to the defendant in his decoration business, the bulk of it concerning AMGCs, that that work coordinated with TELA requirements. This included the supervision of such decoration. As the judge said of the defendant's evidence at page 13:

"He asserted that normally there would be six months to complete re-decoration but that his partnership could do this in three months 'because we knew the internal policy, such as know about initial U.S.D. letters, we could work quicker to cope with it.' Early notice according to Defendant meant they could start work in advance of receipt of a TELA letter because they would have had received advice of a refusal instead."

13. We note that the final words of that paragraph are not clear as to their meaning. The judge accepted that the applicant was carrying out some form of decoration business. But he took the view, having directed himself upon the law and upon the evidence, that those TELA officers who were working with him and who received payments for that work were not working in their private capacity, as the applicant alleged, but were doing acts directly concerned with their official capacity. He accepted the evidence of So, coupled with the tapes and the translations thereof, as establishing the guilt of the applicant on the section 4 charges irrespective of the presumption contained in section 25 of the Prevention of Bribery Ordinance. He further accepted that the generality of the evidence established the applicant's guilt in respect of the conspiracy charges.

14. As we have indicated, none of those findings is challenged.

15. The issues raised by Mr. Chain stem from a record - which came to be called "the notebook" - kept by So of his steps in the investigation and which contained references to conversations he had with a multitude of people and, in certain cases, a synopsis of tape recordings of those conversations. Basically the case that Mr. Chain has argued before us is that there is a duty and upon the Crown to make full disclosure. If he had been aware of the other tapes and videos - incidentally there were some 156 of them covering 6,000 pages of transcript - this would have affected the defence raised at trial. Because these were not available and had not been disclosed the applicant was therefore deprived of a fair trial. When it was pointed out to him that it was very difficult to make this point without knowing what the contents of the tapes actually were, he took instructions and applied to this court to grant the applicant legal aid to permit him to look at the videos and tapes and examine the translations. The reason for this was that it would take several weeks to perform the exercise and the applicant's money was running out - which was why the exercise had not been carried out before now.

16. We did not consider that it would be right to have the applicant, in effect, doubly represented; further that we could not make such an order at that time of the hearing of the appeal as it would have been necessary for the hearing to be adjourned, the instructed solicitors come off the record and the applicant to make application for legal aid. Were that application to be refused then it might, depending on the circumstances of the refusal, have been necessary to make application to the court to grant him legal aid at a later time. The adjournment was refused.

17. Mr. Chain accepted that on the second day of the trial he had been given the entirety of the notebook. Further, that he was given an adjournment from a Thursday afternoon to a Monday morning to consider its contents and any application which he might think it necessary to make. Mr. Chain accepted that the notebook disclosed the existence of the other tapes, that is tapes which related to conversations between So and various corrupt TELA officers but which did not go directly to the applicant. As we have indicated, the tapes which directly concerned the applicant had been supplied prior to trial as had witness statements. Being apprised of the existence of these other items, Mr. Chain, consciously, decided not to ask for any further adjournment when the trial resumed. He felt, as we understand it, that to make such an application would delay the trial for a considerable period of time and he thought it better, a decision taken in the heat of the conflict, to go on.

18. Had the actual tapes been provided, the only use, as we understand it, that would have been made of them would have been to attack the credibility of Mr. So. In the light of the applicant's acceptance at trial that the evidence of So and his own evidence coincided, we find this a little difficult to understand. It cannot surely be the point that the applicant would have tailored his evidence in some fashion had he been aware of everything that was contained in the other tapes and videos. Further, we do not see how the defence of innocent association, innocent employment and innocent dealings - which were, in effect, the gloss sought to be placed by the defence upon the Crown's evidence directly concerning the applicant - was something which could have been affected by a consideration of the contents of all the other items.

19. Mr. Chain has referred us to the guidelines issued by the Attorney General in the United Kingdom contained in Volume I of the 44th edition of Archbold paragraphs 4/265 at page 546 which, while they have no official standing in Hong Kong - there being no similar type of guidelines here - are certainly matters which any court in this territory would bear in mind. Mr. Chain argues that these guidelines in no way derogate from the common law duty which lies on the Crown to make available to the defence all relevant material. He relies onR. v. Ward (The Times 8 June 1992) and provided us with a transcript of the full judgment. He also relies on R. v. Maguire and Others [1992] 2 WLR 767. Both of these cases were what we might term "the IRA cases" and, while they are deeply concerned with the issue of disclosure, the situations there were not analogous to the situation which had arisen here. He further suggests that the Crown was under a duty to do more than merely letting counsel become aware of the existence of the other material and then permitting counsel to make his own decision as to what course he wished to take.

20. Mr. McMahon who appeared for the Crown in this court accepted that the existence of this other material was disclosed in every other trial - and there were many after this one. Counsel were told of their existence and opportunity was afforded to counsel to come and look at and hear them and to take copies of the transcripts which had been made. In those cases, there were different defences raised.

21. There seemed to be two issues raised by Mr. Chain one of which went to the duty to disclose and the duty to produce: the second, in relation to the duty to disclose, that disclosure must be made at an early date. He urges upon us generally that there is a presumption in favour of disclosing all "unused material" that has some bearing on the offences charged and their surrounding circumstances and cites as his authority Henry J. in R. v. Saunders and Others. We have been supplied with a full transcript of the shorthand note of the judgment - the ruling being given on Friday, 29th September 1989.

22. Mr. McMahon has drawn our attention to page 23 of the transcript in Ward where Glidewell L.J. in delivering the judgment of the court said this

" It is now settled law, in this court at least, that the failure of the prosecution to disclose to the defence evidence which ought to have been disclosed is an 'irregularity in the course of the trial' within the meaning of section 2(1) (c) [The Criminal Appeal Act 1968]. We refer in this connection to R. v. Maguire and Others 94, Cr App Rep 133, 146, where, after a reference to earlier authorities, the judgment continues:

'The court has now consistently taken the view that a failure to disclose what is known or possessed and which ought to have been disclosed is an 'irregularity in the course of the trial.' Why there was no disclosure is an irrelevant question, and if it be asked how the irregularity was 'in the course of the trial' it can be answered that the duty of disclosure is a continuing one.'

It follows that if the irregularity is 'material', then for this reason alone the appeal must be allowed unless the proviso applies. In the sentence immediately following the passage which we have quoted from the Maguire judgment the court said:

'If categorisation is necessary we are content to categorise a failure to disclose as a 'procedural' irregularity, and because that which was not disclosed ought to have been disclosed, we would accept the irregularity to be one which usually satisfied the adjective 'material.''

We share this expectation. The obligation to disclose only arises in relation to evidence which is or may be material in relation to the issues which are expected to arise, or which unexpectedly do arise, in the course of the trial. If the evidence is or may be material in this sense, then its non-disclosure is likely to constitute a material irregularity. The proviso makes it plain that 'material' means something less than 'crucial', because it contemplates that although there may have been a material irregularity, yet a verdict of 'guilty' can be upheld on the ground that it involves no miscarriage of justice."

23. We accept, as a general proposition, that evidence which is or may be material in relation to issues which are expected to arise in a trial ought to be disclosed to the defence. The expression "unused material" in Saunders is perhaps too wide. However, it is for the defence to make their decision and they should be given an opportunity to make it (Saunders). We accept that, in an adversarial system such as ours, the parties are not necessarily evenly matched in resources; that disclosure must be timely (Ward and R. v. Sansom [1992] Crim App R 115); and that the duty of disclosure is a continuing one (Maguire p.782E).

24. Here, the disclosure of the existence of the other material should have been made prior to the commencement of the trial. The investigation diary, or notebook, should itself have been made available prior to the start of the trial. In the future matters of that kind should be brought to the attention of the defence so that they can examine them and decide what course they wish to take - and this well before any trial begins. However we do not consider that late disclosure of itself is necessarily a ground for considering a subsequent conviction to be either unsafe or unsatisfactory. The sheer volume of items here is something which we bear in mind. Disclosure of their existence was made, albeit late in the day. It would at that time have been physically impossible to produce and hand over to the defence all the transcripts of all the tapes and all the videos - not to speak of the necessary translations.

25. That having been said, the defence in this trial could, had they been so minded, have asked for further time when the trial recommenced after the long weekend adjournment so that they could take time to consider the contents of the entirety of the material when it became available. That they did not decide to take that course, and this is not intended as a criticism of counsel's decision, cannot now be prayed in aid.

26. We have given careful consideration to all the submissions made to us by Mr. Chain, the manner in which the trial itself was conducted and the evidence which was led at it. Accepting that disclosure was late we however do not come to the conclusion urged upon us by Mr. Chain that this conviction was either unsafe or unsatisfactory. We do not think, in the circumstances here, that the late disclosure and non-physical production of the material amounted to a material irregularity. There was no miscarriage of justice.

27. These matters were fit for the consideration of this court. We would give leave, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.