HKSAR v. FUN TSZ YIN, BENNY AND ANOTHER

HCMA 978/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 978 OF 2001

(ON APPEAL FROM SPCC 7839/2000)

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J U D G M E N T

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1. On 30 July 2001, Benny Fun Tsz Yin, the 1st Appellant, and Andy Chong Cheuk Wah, the 2nd Appellant, were convicted after trial before Mr. C. K. Chan, Permanent Magistrate, sitting at San Po Kong Magistrates Court, of a joint charge of offering an advantage to an agent, contrary to s.9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. On 13 August 2001, the 1st Appellant was sentenced to 7 months' imprisonment and the 2nd Appellant to 6 months' imprisonment. On the same day, both Appellants were granted bail pending the hearing of their appeals.

3. Both Appellants now appeal against their convictions. Mr. Andrew Macrae SC represents them. He was not their counsel at trial.

Facts

4. It was the prosecution's case that, pursuant to an arrangement between Law Kang Fai (PW4) and both Appellants, marketing survey forms completed between 22-24 April 2000 at an exhibition in the Hong Kong Convention & Exhibition Centre by staff of Sail and Soar Excursion (HK) Co. Ltd. (S&S), containing details of persons who had expressed an interest in purchasing time-share holidays, would be left secretly at a designated location for a rival company, Grand Pacific Vacation (HK) Ltd. (GP) to inspect and copy. The 1st Appellant was the sales and marketing director and the 2nd Appellant the executive director of GP. PW4, who was a supervisor of S&S at the time, was to be paid $2 for every form he provided to the Appellants. He intended to start to work for GP soon after the exhibition ended.

5. The matter came to light when staff at S&S discovered that a considerable number of the survey forms contained inaccurate contact telephone numbers of potential customers. They suspected that these had been altered. S&S's management narrowed the suspects who might have been responsible for doing this down to two staff members. One was PW4. On 28 April 2000, Wan Pak Tun (PW2), S&S's manager and his immediate supervisor interviewed him. In the course of the interview PW4 confessed his part in the agreement with the Appellants and wrote and signed a confession letter.

6. S&S reported the matter to the ICAC, and both PW4 and the Appellants were arrested. In due course, PW4 was given an ICAC caution and later gave evidence against the Appellants at trial under immunity from prosecution.

7. Both Appellants elected to give evidence and call witnesses. The 1st Appellant denied that there had been any agreement for the delivery by PW4 of S&S survey forms to GP and that he had offered PW4 a reward of $2 for each form delivered. The 2nd Appellant made a similar denial. He said that he had only met PW4 on one occasion before the exhibition and their conversation had been no more than gossip about S&S's affairs.

Grounds of appeal

8. Mr. Macrae advances ten grounds of appeal in support of his general contention that the Appellants' convictions are both unsafe and unsatisfactory. I summarise them as follows:

(1) There was a material irregularity in the conduct of the trial when prosecuting counsel introduced into evidence as part of the prosecution case PW4's signed confession implicating the 1st Appellant. Such evidence was inadmissible in as much as:

(i) it went to the consistency of PW4's account;

(ii) it was involuntary, having been obtained as the result of a threat and/or inducement held out to PW4 by PW2;

(iii) it was unfairly obtained by a trick practised upon PW4 by PW2.

(2) Alternatively, the confession was of no weight and should have been ignored by the Magistrate.

(3) Having been improperly and unfairly relied upon as evidence of PW4's consistency by prosecuting counsel in his closing address, the Magistrate cited and relied upon the signed confession in both his oral verdict delivered in open Court and in his written Statement of Findings. In the circumstances, the Magistrate erred in law in taking into account, on the vital issue of PW4's credibility, evidence which was inadmissible or, alternatively, worthless.

(4) There was a further material irregularity in the conduct of the trial when both PW1 and PW2 gave hearsay evidence of the alteration of a number of survey forms on the basis of what they were told by others who did not give evidence. Since the Magistrate accepted the evidence of PW1 and PW2, he must wrongly have accepted and relied upon such hearsay evidence.

(5) The Magistrate, as a result of defence counsel's argument that such evidence was hearsay, was wrong in purporting to find that PW1's observation of some of the forms was sufficient to determine whether or not they had been altered, particularly when both PW1 and PW2 apparently saw different methods of alteration.

(6) The Magistrate erred in law by failing to make any mention whatsoever during his evaluation of the evidence of the fact that PW4 was an accomplice witness in circumstances where, as the Magistrate accepted, PW4 had been shown to be suspect and unreliable on such vital matters as the number of meetings he had attended, who was present, when they had taken place, and what was discussed at them.

(7) The Magistrate gave unsatisfactory reasons for rejecting the Appellant's evidence. In particular, he appears to have misunderstood the evidence relating to the survey forms found in the 1st Appellant's and the 2nd Appellant's desks. Had he properly understood the Appellants' evidence, together with the evidence of the defence witnesses whose testimony he accepted, he should not have rejected their account of how and why they were in possession of the forms nor would he, as a result, have gone on to reject their evidence generally.

(8) Furthermore, the Magistrate was only able to say:

"Still, I find it hard to believe D2's explanation of how he came by the original form. i.e. Exhibit CWN-2. Therefore, I do not accept D2's evidence either."

In so saying, the Magistrate appears to have placed too high an onus of proof on the 2nd Appellant's (and by implication the 1st Appellant's) evidence by rejecting that which he did not disbelieve.

(9) There was insufficient evidence of the 2nd Appellant offering any advantage to PW4 as charged, in circumstances where he was not even present during the 1st Appellant's alleged offer of a reward to PW4.

(10) There was a further material irregularity in the conduct of the trial in that PW4 was asked by prosecuting counsel if he was of good character.

9. Grounds 4 and 5 were not argued at the hearing of the appeal.

Grounds 1 to 3

10. PW4's confession letter of 28 April 2000 was first produced in evidence during the examination-in-chief of Cheung Fung Nin (PW1) (one of the directors of S&S) without objection from defence counsel.

11. In his evidence, PW2 accepted that he had tricked PW4 into admitting his guilt by telling him that the Appellants had already confirmed that it was he who had released the information in the survey forms to them. He said that PW4 then admitted he had provided the survey forms at the 1st Appellant's request in return for a reward of $2 per form, and wrote out and signed the confession letter. Prosecuting counsel asked PW2 if he had threatened, or used violence upon, or offered any inducement to PW4 to obtain those admissions and the letter. PW2 answered that he had told PW4 that

"... if he won't said it out, then I will report the case to the police'(sic)."

The letter was than made an exhibit. Defence counsel raised no objection to that; neither did he raise any questions about the voluntary nature of the letter during his cross-examination of PW2.

12. PW4 was asked in examination-in-chief about the interview that preceded his writing the letter. He said he had only related the events because of PW2's promise not to disclose the matter to a third person, or make a report to the police. Prosecuting counsel then asked PW4 'Are the contents true?' to which he replied 'Yes, true.'

13. It is Mr Macrae's contention that the letter is inadmissible on two bases.

14. Firstly, PW4 made it under duress, it was an involuntary document. Defence counsel's acquiescence in its admission into evidence could not alter that fact. The Magistrate had no discretion to admit it as it was involuntary. The Magistrate had a duty to ensure that inadmissible evidence was not admitted whatever the views of both counsel at trial about the matter may have been.

15. Secondly, its admission breached the general common law rule that a witness may not be asked in examination-in-chief whether he has formerly made a statement that is consistent with his present testimony.

16. I am not with Mr. Macrae on his argument on voluntariness. PW4 was not on trial and the confession letter was not being used in evidence against him. No issue of voluntariness arose. The letter's status was no different from that of a witness statement.

17. However, I am with Mr. Macrae on his second argument. As was said by Lord Hoffman in White v. R [1999] AC 210 (PC), the general rule at common law is that that a witness may not be asked in examination-in-chief whether he has formerly made a statement consistent with his present testimony. He cannot narrate such a statement if it was oral, or refer to it if it was in writing (other than to refresh his memory) and other witnesses may not be called to prove it. There are only two common law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant's consistency and to negative consent. The second is that a witness may testify to an earlier consistent statement to rebut an imputation that his evidence is a recent invention. Neither exception applies in this case.

18. Ms. Mary Sin, for the Respondent, accepted that the letter was inadmissible as evidence of consistency, she also accepted that its contents were hearsay.

19. The facts of the English case of R v. Brewer (Unreported) (Court of Appeal 26 July 1999) are similar to those in this appeal. The evidence against Brewer on a murder charge came in the main from a single witness, a young man called Maloney. During Maloney's examination-in-chief prosecuting counsel produced, without objection from either the Judge, or defence counsel, a letter that Maloney had written to his foster mother claiming that while Brewer and he were in a young offender's institution, Brewer had confessed to him that he had committed the murder. Defence counsel cross-examined Maloney on the veracity of the contents of the letter along similar lines to defence counsel's cross-examination of PW4 in the present case. The English Court of Appeal, citing White with approval, allowed the appeal on the sole ground of the inadmissibility of the letter.

20. I agree with Mr. Macrae when he says that the circumstances of this case make the irregularity of the admission of PW4's confession letter comparatively worse than the admission of Maloney's letter. The letter in this case directly implicated the 1st Appellant in the making of corrupt payments, whilst the verbal admission to PW2 implicated both Appellants. Maloney's letter on the other hand contained no details of the murder.

21. I do not agree with Ms. Sin's contention that Brewer can be distinguished because it concerned an appeal from a jury trial, whereas this trial took place before a professional judge. The status of evidence as 'admissible' or 'inadmissible' does not change with the composition of the tribunal of fact. If evidence is inadmissible, then it is inadmissible for all purposes and before all tribunals. In this case, the Magistrate must have had regard to it in his evaluation of the evidence because he expressly referred to it when outlining the prosecution case at page 2 of his Statement of Findings (page 37 of the bundle). He also accepted the evidence of PW2, who had extracted the letter from PW4. If a single judge, or magistrate, cites certain parts of the evidence in his Reasons for Verdict, it can be taken either that he considered it to be admissible evidence, or that he failed to give thought to the question of its admissibility. See: the comments of O'Connor J in R v. Lee Hing Yuk Magistracy Appeal No. 123 of 1980 (unreported), referred to in R v. Tsui Yip-Kei [1988] HKC 682, at page 683.

Ground 6

22. It is clear from PW4's evidence that he was in no sense an unwilling party to the alleged corrupt agreement. It was his evidence that he was to provide sight of the survey forms to GP (his future employer) in exchange for $2 per form. Accordingly, s.22 of the Prevention of Bribery Ordinance did not prevent him from being regarded as an accomplice.

23. Mr. Macrae acknowledged that s.60 of the Criminal Procedure Ordinance, Cap. 210, abrogated the common law requirement of a routine accomplice warning in a criminal trial, but argued that the abrogation does not, in appropriate cases, relieve judges and magistrates from giving a warning, or warning themselves, about the dangers of acting on the evidence of accomplices. Mortimer J.A. explained the effect of the abrogation in R v. Chiu Ip-Pui [1997] HKLRD 549, itself a corruption case, as follows:

"Accomplices have not by this reform suddenly became more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge."

24. It was Mr. Macrae's argument that PW4 was clearly unreliable as to the number of meetings he had had with the Appellants; who was present at them; and what was discussed at them. The meetings and their contents were vital evidence going to proof of the particulars of the charge, yet the Magistrate found himself having to rely on PW4's final answers in re-examination for the findings that he ultimately made at page 12 of his Statement of Findings (page 47 of the bundle).

25. It was PW4's evidence-in-chief that both Appellants were present at the meeting at which his reward of $2 per form was discussed. He resiled from this in re-examination, conceding that the 2nd Appellant was not present at the time the reward was discussed, but not before asserting (also in re-examination) that both Appellants were present when the reward was mentioned.

26. PW4's evidence on these matters was also at variance with that of Li Kin Fai (PW3), whose evidence as to the subject of the discussions at two of these meetings was accepted by the defence. This is a matter I turn to later.

27. Mr. Macrae submitted that, in the light of PW4's evidence about these meetings, it is 'astonishing' that the Magistrate did not even give himself even a cautionary reminder concerning PW4's status as a witness. Mr. Macrae did not suggest that the Magistrate should have gone so far as to look for evidence corroborating PW4's allegation of corrupt payments by the Appellants (of which there was none), but submitted that it was, in the circumstances, incumbent upon the Magistrate to at least acknowledge - and be seen to acknowledge - the dangers inherent in PW4's testimony. Instead, he extended PW4 the latitude and generosity of being viewed as:

"...only a young man of 19 at the time of this incident, which happened more than a year before trial. I accept that it may only be a momentary lapse of his memory when he testified as to two meetings only in his evidence-in-chief" (see: Statement of Findings page 12, bundle page 47).

28. Had the Magistrate not made that comment, I may have been inclined to agree with Ms. Sin's contention that as the trial was before a professional judge it must be taken on trust that he gave proper consideration to PW4's role and the reliability of his evidence. Without more, the fact that the Magistrate failed to mention PW4's status as an accomplice would not necessarily have indicated that he failed to pay sufficient regard to it. But, in the light of the generous finding in PW4's favour that he made in the passage just quoted, there are justifiable grounds for an appellate court harbouring a suspicion that he failed to appreciate both the fact that PW4 was an accomplice and the dangers inherent in his testimony.

Grounds 7 & 8

29. The 7th & 8th grounds of appeal relate to ten blank and one half-completed S&S survey forms found in the 1st Appellant's desk at GP's offices - exhibits CWN 1-11. The 1st Appellant testified that the 2nd Appellant had given them to him at the exhibition for 'reference purposes'. The 2nd Appellant testified that he had found one of them (exhibit CWN2) on the last day of the exhibition '...scrunched up' in a ball on a desk in a rest area provided by the organisers of the exhibition. It is not clear whether this area was a public area or one reserved for exhibitors. He had made copies of it after 'tip-exing' out various entries on it. Prosecuting counsel did not challenge the 2nd Appellant on his account of how he came by this form and what he did with it.

30. Ms Leung Lok Man (PW5) who had worked for S&S at the exhibition, confirmed that she had written on exhibit CWN2 on 23 April 2000. She could not remember whether or not she had '...filled in something wrong and then just rolled it up and thrown it away.'

31. The Magistrate accepted the evidence of Ms Yung So-fan (DW4), who worked as a part-time market researcher for GP, that after the exhibition the 2nd Appellant and she had a practice session filling in the S&S survey forms. The purpose appears to have been to time how long it took a researcher to complete one. He also accepted that exhibit CWN2 had crease marks on it. DW4 had said that the original form was '...full of crease(s).' She also said that the 2nd Appellant had only been to the exhibition on the last day, 24 April 2000, at around 12 noon.

32. Having correctly directed himself on the 2nd Appellant's good character, the Magistrate went on to say:

"Still, I find it hard to believe D2's explanation on how he came by the original form, i.e. Exhibit CWN-2. Therefore, I do not accept D2's evidence either". See: Statement of Findings page 10, bundle page 45)."

33. PW5's and DW4's evidence was consistent with the 2nd Appellant's unchallenged account of how he came by exhibit CNW2 and made copies from it. Bearing in mind that, on the prosecution's own evidence, the 2nd Appellant was neither party to the discussions with PW4 about a reward, nor present at the exhibition, save on the last day, I am bound to agree with Mr. Macrae that this was a tenuous reason for the Magistrate to reject the 2nd Appellant's evidence.

Ground 9

34. PW4 gave evidence in re-examination that there were three meetings between the Appellants and himself. The first was on 12 April 2000 at GP's offices. At this meeting a woman (whose identity he could not recall) Li Kin Fai (PW3), the 1st Appellant and he were present. The second was sometime between 18 to 20 April 2000. At this meeting only both Appellants and he were present. There were discussions about providing survey forms, but no mention of $2 passing for each completed form. The third meeting was one day before the exhibition started: 21 April 2000. At this meeting initially both Appellants and he were present, but only the 1st Appellant remained when the question of a reward was mentioned.

35. Li Kin Fai (PW3) said that he was present - as indeed PW4 said he was - at the 12 April 2000 meeting. He also said in examination-in-chief that he was present at a second meeting with PW4, at which PW4 explained to the 1st Appellant that he could not start working for GP until after the exhibition had ended. In cross-examination, PW3 confirmed that he was present throughout this second meeting and said that at no stage did anyone ask PW4 for survey information obtained by S&S, or make any mention of buying information from PW4.

36. It is true that PW3, when pressed by prosecuting counsel, said that the first meeting took place a few weeks before the exhibition. At first, he said he could not remember the date, but when he was shown his application form for employment with GP (exhibit PYY-1) he confirmed that the meeting took place on the day he signed the form: 12 April 2000. PW3 went on to say that the second meeting took place a few days after the first. There would therefore appear to be no inconsistency in times or dates between PW3 and PW4. What PW4 did not agree with was that PW3 was present at the second meeting.

37. As the Magistrate accepted that both PW4 and PW3 were honest and reliable witnesses, his explanation for the divergence between their evidence - that PW3 must have been mistaken as to dates - does not explain or invalidate PW3's evidence that (a) he was present at the second meeting, and (b) there was no discussion at that meeting about PW4 providing GP with survey forms filched from S&S.

38. Put shortly, if PW3 was telling the truth - and the defence appears to have accepted he was - there was no evidence that the 2nd Appellant was present at any meeting he attended at which survey forms were discussed. And if PW4 was also correct about the 2nd Appellant's absence from the third meeting at the time the question of a reward was discussed, there was no evidence against the 2nd Appellant at all. In fact, during cross-examination of the 2nd Appellant, the transcript shows the Magistrate intervening to say, at page 396:

"Yes. I agree with Mr. Mayne. I think there's no evidence at all that this witness (A2) has been told of the payment."

39. The grounds pleaded in the 7th to 9th Grounds of Appeal have involved my considering and reviewing the evidence led at trial and the Magistrate's findings of fact based on it. I am fully aware that a plethora of authority has held that an appeal to the Court of First Instance, in which no witnesses are heard (save in exceptional circumstances), is not a rehearing of the case. That Appellants should not regard appeals from decisions of Magistrates on questions of fact as simply another attempt to re-try the facts. That a Magistrate is himself the jury and is not duty bound to set down precisely what evidence he accepts, what evidence he rejects and what weight he attaches to every piece of evidence; or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion. That an appellate court should not, except in the most exceptional circumstances, interfere with findings which depended on the credibility of witnesses. That when a Magistrate draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute, but also depend partly on the credibility of witnesses and facts which are very much in dispute, an appellate court should act with the greatest caution before interfering with the Magistrate's findings if, having regard to the whole of the evidence, those findings appear reasonable. But none of that is to say that in the appropriate case, where quite demonstrably there has been a failure to analyse and deal with evidence properly, the Court of First Instance cannot intervene to quash the conviction.

Ground 10

40. Prosecuting counsel asked PW4 in examination-in-chief to confirm that, prior to the events giving rise to the prosecution of the Appellants, he had no criminal record and was of good character, PW4 so confirmed.

41. That should not have been done, as Ms Sin concedes. In R v. Hamilton (unreported) (Court of Appeal 26 June 1998;); (1998) Times L.R. 25 July 1998, the English Court of Appeal held that such evidence has no probative value in relation to any issue in the case and is rightly excluded on the grounds of collaterality. And so far as issues of the witnesses' character are concerned, those are concluded, without recourse to any such evidence, by the finality of the witness's answer to specific allegations.

Decision

42. Part VII of the Magistrates Ordinance, under which I derive my appellate powers, provides no test by which decisions under s.119(1)(d) of the Ordinance are to be made. The Court of Final Appeal in Ching Kwok Yin v HKSAR (2000) 3 HKCFAR 387, held that a judge hearing Magistracy Appeals has to decide whether there has been an error in the Magistrates Court which makes it 'just' that that the appeal should be allowed and the conviction set aside. For the reasons given above, I am satisfied that there were errors, both at trial and in the Magistrate's analysis of the evidence, which render it just that that the Appellants' respective appeals should be allowed and their convictions set aside.