HKSAR v. WONG SHIU YEE

CACC 286/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 286 OF 2000

(ON APPEAL FROM DCCC 283 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 23 June 2000, following a trial in the District Court before Judge Whaley, the Applicant, who was aged 40 and a detective sergeant in the Hong Kong Police Force, was convicted of eight charges of accepting an advantage as a public servant, contrary in seven cases to section 4(2)(a) and in one case (charge 14) to section 4(2)(b) of the Prevention of Bribery Ordinance, Cap. 201. The convictions were on charges 1 to 4, 6, 8, 12 and 14. The most serious was the last one and it is only necessary to set out in full the particulars of this charge which read that the Applicant:

".... being a public servant, namely a detective police sergeant of the Hong Kong Police Force, on a day unknown between 20th day of January 1997 and the 6th day of February 1997, in Hong Kong, accepted an advantage, namely, a gift, fee, loan, reward or commission of $20,000.00 Hong Kong currency from Kwok Chak-kan, the then manager of Club Scandinavia O'wien, as an inducement to or reward for or otherwise on account of the said Wong Shiu-yee's delaying, hindering, preventing or expediting or having delayed, hindered, prevented or expedited the performance of acts by himself or other public servants, namely police officers of the Hong Kong Police Force, in his or that other public servants' capacities as public servants, namely by informing the said Kwok Chak-kan of impending police action, activity and investigation on unlicensed restaurant inspections."

2. On charge 11, no evidence was offered and the Applicant was acquitted at the conclusion of the trial of the remaining five charges he faced.

3. Remarkably, for offences of this gravity, the Applicant was sentenced to only fourteen months' imprisonment. He has now completed his sentence, having earlier abandoned an application for leave to appeal against its length. His application is now confined to seeking leave to appeal against conviction.

4. Six perfected grounds of appeal against conviction were filed on 20 October 2000. These generally complained that the judge had failed to consider the discrepancies between various witnesses. However on 9 January 2002, two additional grounds were added by Mr McLanachan, on the Applicant's behalf, in a further document which was received by the court on that day, erroneously entitled "Perfected Grounds of Appeal". Where amendments are made to the perfected grounds, the document should be properly described, and the amendments themselves should be clearly underlined in red.

5. Although a direction was given on 23 November 2000 that the Applicant's written argument should be served fourteen days prior to the hearing, nothing more was heard from the Applicant's solicitors or counsel in this regard until yesterday, 21 January 2002, when, without any explanation or apology for the delay, they arrived at court at some stage during the mid-afternoon. Mr McLanachan's excuse this morning was that he was ill last week. This provides no explanation whatsoever for not having prepared the written argument at least two weeks ago. We regard this non-observance of the directions of the court to have been the height of discourtesy. Conduct of this kind is not only an inconvenience to the court but also to counsel for the Respondent who, before knowing what the Applicant's arguments were going to be, nevertheless attempted to provide a written skeleton. The skeleton argument produced by Mr McLanachan added, as it happened, practically nothing to his amended perfected grounds of appeal and the application was thus able to proceed.

Grounds of appeal

Ground 1: character direction

6. Ground 1 reads:

"The judge failed (at page 38 of the transcript) to give himself an effective character direction on propensity by use of wording which rendered the direction a nullity."

7. The judge had to consider what amounted to two sets of offences. The first set concerned the Applicant soliciting and accepting from Ms Cheung Yuk-wah, the operator of Dynasty Health Spa, various sums of money (charges 1 to 3) and from Mr Kwok Chak-kan, the manager of Club Scandinavia O'wien, the sum of $20,000.00 (charge 14). The other set of offences related to the remaining charges where the Applicant had allegedly accepted services without payment to Dynasty Health Spa.

8. The judge reminded himself that the Applicant was of good character and specifically stated that he bore this in mind throughout his assessment of the evidence. He said that:

"In assessing the evidence I have borne in mind throughout the defendant's clear record and his good record of service." (Appeal bundle p. 29)

9. Earlier in his Reasons for Verdict, the judge had referred to the clear record of the Applicant, indicating that he had in fact "an excellent service record" (Appeal bundle p. 21).

10. After the judge had found the first set of offences had been proved against the Applicant, he then went on to consider the second group of offences. At p. 38 in the appeal bundle, in the passage which Mr McLanachan specifically criticized, the judge said:

"I have also borne in mind in assessing these matters the defendant's clear record and good record of service, which make it less likely that he would have committed these offences or have falsified his notebook.

However, it is clear, for the reasons I have already given, that the defendant had by this time embarked on a course of exploiting his position to solicit the advantages in question from Madam Cheung, at around the time that these offences in relation to his accepting free services at the club were allegedly committed - and against that background, his clear record and good record of service do not weigh heavily in his favour, in my view." (Emphasis added)

11. The judge had made it clear that he had borne in mind that the Applicant's good character made it less likely that he would have committed the offences or falsified his notebook. The relevance of the Applicant's notebook was that it recorded times when he was on duty, some of which conflicted with the times recorded in vouchers of Dynasty Health Spa showing that he was present having massages there. The judge went on to say that in the light of his findings in relation to the first set of offences, which occurred around the time of the second set of offences, the Applicant's good character did not weigh heavily in his favour.

12. As Mr Zervos correctly observed, the first and obvious point was that this complaint could not extend to the first set of offences as the comment made by the judge was only said in relation to the second set of offences. The judge had given himself the correct character direction as to the first set of offences at the passage we have already cited at p. 29 of the appeal bundle. The second point was that if the judge is taken as finding that the other discreditable matters concerning the Applicant were revealed, then it was appropriate for him to say that as a consequence the Applicant's good character did not weigh heavily in his favour. See Tang Siu-man v HKSAR [1998] 1 HKLRD 351 at 359E-G and 368J-369A; and R v Fok Tin-yau [1995] 2 HKC 450 at 456A-B. The third point made by Mr Zervos was that the judge can be taken as saying that he gave the Applicant the benefit of a good character direction as to propensity, notwithstanding his good character did not weigh heavily in his favour.

13. There is no merit whatsoever in this ground of appeal.

Ground 2: use of summaries in closing submissions

14. The second ground of appeal Mr McLanachan described as his "most arguable" ground. This read that:

"The judge erred in allowing a material irregularity to occur during the course of the trial by accepting from those instructing the prosecution 'typed summaries of the evidence with amazing speed after the conclusion of the evidence which were of great assistance to me'. Such summaries were not exhibits at the trial nor were they submitted with the prior approval of the defence but were apparently treated as part of the prosecution closing submissions. Since the judge appears to have relied upon them they should have been exhibits or admitted facts as to their accuracy and completeness. The judge does not mention whether or not he compared them with any notes of the evidence of his own and a more appropriate procedure, had he required it, would have been for him to ask for the court recording system to transcribe the evidence of the witnesses. In the event, the production by one side of summaries of evidence upon which the judge relied (at p. 47C-H of the appeal bundle) in considering his verdict means there exists the appearance of bias from the point of view of the Appellant." (Emphasis added)

15. The judge in his sentencing remarks had acknowledged the assistance by ICAC officers in the provision to him of typed summaries of the evidence, various charts and other aides-mémoire. As can be seen from this ground of appeal, the summaries formed part of the prosecution's closing submissions and, therefore, it was on that basis that they were put before the judge. As described by the judge, they were an aide-mémoire. It is to be observed that the summaries were provided with the knowledge of the defence and obviously on the basis that the judge's notes would obviously prevail if there was any conflict.

16. There has been nothing whatsoever to substantiate any complaint of bias. On the contrary, in an affidavit supplied at the Applicant's request by Mr David Boyton, who appeared for the defence in the court below, Mr Boyton made plain, through correspondence exhibited to the affidavit, that he had known about the summaries before they were given to the judge and that they were included in the prosecution's submissions.

17. The course adopted by counsel on both sides at trial was eminently sensible and responsible, and there is not the least appearance of bias by its adoption. Closing submissions, which are made orally, will usually make reference to the evidence. If, through inadvertence, an inaccuracy occurs, counsel on the other side will be able to correct it. In any event, there is no reason to assume that a judge will blindly accept a summary of the evidence, disregarding his own recollection of the evidence coupled with the notes he has made. Plainly, it will depend on the case as to whether a summary is of assistance to the judge.

18. Perhaps the most extraordinary feature of this ground is that Mr McLanachan did not ever suggest that the summaries were inaccurate. They were never placed before us and their content was at no stage criticized.

19. This ground lacks even the semblance of merit and is utterly misconceived.

Ground 3: PW7's evidence

20. In his third ground, Mr McLanachan submitted:

"The judge relied upon the evidence of PW7 who claimed to have personally served the Applicant and, on each of the occasions cited in the charges, filled in supporting vouchers, in which the Applicant's nickname was used. However, the judge acquitted the Applicant of charges 5, 7 and 13 because of the discrepancies between the times recorded on the vouchers and the Applicant's police notebooks produced by the prosecution, which suggested that the Applicant was on police duty and not inside Dynasty Health Spa at the material times recorded in those vouchers. The judge, in distinguishing between charges 4, 6, 8 and 12 on which he convicted and 5, 7 and 13 on which he acquitted:-

(i) failed to consider at all the police occurrence book (Exh. P.23) whose entries not only supported the accuracy and authenticity of the police notebooks but further indicated that the Applicant could not have been present at the Dynasty Health Spa at the times recorded on the vouchers by PW7;

(ii) ought to have found that 'the benefit of doubt' arising from the police notebooks (Appeal bundle p. 39 B-D) as well as the police occurrence book extended to all of the charges which relied solely upon the evidence of PW7."

21. Charges 4 to 13 concerned the Applicant attending the Dynasty Health Spa between 8 August 1996 and 11 July 1997 and receiving massages on various days between those dates without paying for them.

22. The judge turned his mind to the issue concerning the reliability of the times recorded in the vouchers in relation to the Applicant's presence and use of the facilities at Dynasty Health Spa. The judge did not specifically mention the police occurrence book (Exh. P.23) but he was clearly mindful of the point that the vouchers recorded the Applicant as being present at Dynasty Health Spa when police records recorded him as being on duty. Nothing has been put before this court by Mr McLanachan, not even a copy of the police occurrence book, to suggest that this book raised anything of significance which was overlooked by the judge on this point.

23. The judge had dealt with the discrepancies between the times recorded by Tam Chun-man (PW7) in vouchers showing that the Applicant had received massages at Dynasty Health Spa and the times recorded by the Applicant in his notebook showing himself to be on duty. As to this, the judge gave the Applicant the benefit of the doubt in relation to charges 5, 7 and 13. Despite these acquittals, no doubts were raised in the judge's mind as to PW7's honesty.

24. PW7 gave evidence about the times when the Applicant utilised the massage service at Dynasty Health Spa. The judge believed him and was satisfied that his testimony was the truth. The judge explained that in the cases where PW7 had seen and served the Applicant and had filled in the relevant vouchers, he was satisfied, so far as charges 4, 6, 8 and 12 were concerned, that the Applicant had received the services as alleged.

25. This again was a baseless ground of appeal.

Grounds 4 and 5 not advanced

26. As to the 4th and 5th grounds of appeal, we were informed only yesterday that these would not be advanced. All we need to say about them is that they should never have featured in the perfected grounds, as amended, in the first place.

Grounds 6 and 7

27. Grounds 6 and 7 can be dealt with together. They read:

"6. The judge found (at p. 33 of the appeal bundle) in relation to PW10 and PW11 that the judge:

'Notwithstanding the various conflicts between different witness statements given by them and between some of those witness statements and their evidence, I am satisfied beyond a reasonable doubt that they told the truth about the events concerning the defendant.'

However, he failed to deal at all with vital discrepancies between PW10 and PW11 as to, inter alia,

(i) the approach by the Applicant in relation to the alleged bribe;

(ii) the terms and conditions of the alleged payment to the Applicant;

which clearly suggested that the two witnesses could not have both 'told the truth'."

7. The judge did not sufficiently evaluate the evidence of PW10 and PW11 whose evidence, character and credibility were seriously open to question."

28. The judge had dealt in his Reasons for Verdict with the evidence of Kwok Chak-kan (PW10) and Ho Man-fai (PW11) in some considerable detail. He was aware that there was confusion in some parts of their evidence. The judge also addressed the credibility of those two witnesses at p. 33 of the appeal bundle where he said:

"The same possible dangers were inherent in their evidence as I adverted to in relation to Madam Cheung (PW1)."

29. There is not the slightest merit in this or any of the other grounds.

Conclusion

30. There is nothing to suggest that the verdicts in this case were unsafe or unsatisfactory and the application is dismissed.

Costs

31. After judgment had been delivered, Mr Zervos applied for costs in circumstances which are a little unusual. His application was made under section 13 of the Costs in Criminal Cases Ordinance, Cap. 492 which reads:

"13. Prosecution costs where judge or Court of Appeal dismisses unmeritorious appeal by defendant

Where a defendant unsuccessfully-

(a) ....................

(b) appeals to the Court of Appeal against-

(i) his conviction of an offence or any other finding or verdict made in respect of him; ......

and ..... the Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, ...... the Court of Appeal may order that costs be awarded to the prosecutor."

32. However, it is clear, as Mr Zervos appreciated, that the convictions under consideration by this court, other than charges 12 and 14, related to offences committed before 17 January 1997, which was the operative date for the purposes of the Costs in Criminal Cases Ordinance.

33. In these circumstances, we propose to make an order in these terms, namely, that the Applicant shall pay to the 'prosecutor' (the Respondent) the costs of and incidental to this application insofar as they related to charges 12 and 14, to be taxed if not agreed. It is to be noted that all the grounds of appeal which were argued were relevant to these two charges.