HKSAR v. CHAN CHEUNG CHOR

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 441
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. The applicant was convicted of three charges of offering an advantage to a public servant. The charges alleged the applicant in June 1995, offered $10,000, in July 1995 offered $10,000 and in September 1995 offered $11,000 to a Senior Health Inspector LEE Hon-sun of the Urban Services Department as an inducement or reward for or otherwise on account of the inspector performing or abstaining from performing any act in his capacity as a public servant.

2. It is not disputed that the applicant has interests in a number of restaurants in the name of Hoover Restaurant. He took part in the management of the Hoover Restaurant at Waterloo Road in the Kowloon City District and personally managed the Hoover Restaurant in Shaukeiwan.

3. The prosecution case is mainly based on the evidence of PW1 LEE Hon-sun a former Senior Health Inspector of the Urban Services Department. PW1 and the applicant knew each other well and they occasionally went out for dinner together. In 1995 PW1 was posted to Kowloon City District. In 1995, PW1 was convicted of corruption offences after he pleaded guilty. He was sentenced to 15 months' imprisonment and by the trial of the present case had served his sentence. PW1 was an accomplice witness giving evidence in this case under immunity and the judge was aware of this.

4. PW1's evidence as summarised by the judge in his Reasons for Verdict is this:

5. In 1995, he was instructed by his former superior, Chief Health Inspector YU Ka-foo to make certain approaches involving corrupt practices. On YU's instruction, PW1 approached the Hoover Restaurant and he arranged for YU to meet the defendant. The reason for YU to meet with the proprietor of the Hoover Restaurant was to find out if YU's help was required. Such help, according to PW1 included the avoidance of prosecution of the restaurant by the USD.

6. The first meeting took place in April 1995 in which the applicant and his brother, PW1 and YU met. At this meeting, the two brothers asked YU how to improve their restaurant. YU told them to keep the place tidy. After the meeting, they all went to the China City Night Club for entertainment. The bill of $6,000 was paid by the applicant.

7. In May 1995, PW1 at the suggestion of YU, met the applicant for lunch. During lunch, PW1 told the applicant need not accompany him and YU to go for entertainment if the applicant only paid for it. The applicant after considering this suggestion, agreed to it. Arrangement was then made for the three to meet. This meeting took place at the Lee Yuen Restaurant in Mongkok. At this second meeting, the applicant, PW1 and YU met and the applicant told them that he agreed to pay them $10,000 every one and half month for entertainment. After the meeting PW1 and the applicant left in a taxi and on the way, the applicant handed to him an envelope containing $10,000.

8. About two months later, in July, 1995, PW1 and the applicant met in King's Palace Restaurant. The applicant gave PW1 an envelope containing $10,000 cash for him and YU to have fun.

9. Two months later, in September, 1995 PWl and the applicant met in Garden Restaurant. PWl told the applicant he did not want to take the money directly from the applicant. He told the applicant to give the money to a third party and for the latter's service, the applicant should pay an additional $1,000 - $2,000. A few days later, the applicant told PW1 he would agree to pay $1,000 only to the third party. PWl agreed and gave the applicant the number of a bank account in the Standard Chartered Bank for the applicant to deposit $10,000 and the service charge of $1,000 into it. This account belonged to PW3. Subsequently, a sum of $11,000 was duly deposited in this account.

10. An important part of the prosecution case is the entries in the three note books of the applicant, two in the form of a diary P4 and P5 and the remaining one in the form of the applicant's personal account P6. These notebooks were seized by the ICAC after the arrest of the applicant and in a search of his premises conducted afterwards. The applicant admitted the entries in those note book were made by him.

11. The prosecution relied on the entries on 10 September 1995 in P4, the entry on 10 June 1995 and on 14 July 1995 in P5 and the entry on 14 July 1995, and on 21 and 22 September 1995 in P6. These relevant entries are set out below:

"Exhibit P4 - 10 September 1995 'LEE invited to have tea in the morning and suggested delivery of vegetables. He requested for an increase by $3,000. When CHAN Yan heard of it, he became very angry. It is very difficult to handle. WAI is leaving for Britain this evening to further her study. I wish her every success.'

Exhibit P5A - 10 June 1995 10:00 a.m. 'Went to Hang Lai Yuen to view new flats ... ; 12:30 p.m. Lok Wah ... ; 1:30 p.m. Tai Yuen ... ; 2:30 p.m. Castle Peak Road Hoover ... ; 3:00 p.m. Appointment with Villain LEE at Hoover ... '

Exhibit P5B - 14 July 1995 '11:00 a.m. Lok Wah ... ; 12.00 noon LEUNG treated me to lunch at Tai Yuen ... ; 5:00 p.m. Castle Peak Road Hoover ... ; 5.30 p.m. Went home; 5:30 p.m. Tai Yuen Lee Sun...'

Exhibit P6A - 14 July 1995 '.... Payment for Hoover 10,000 ...'

Exhibit P6B - 21 & 22 September 1995 'Mei Foo 203511 Cashed at Shaukei (wan) 11,000 ...'"

12. These were relied upon to support PW1's evidence of the meetings with the applicant and of the payments made by the applicant and the later arrangement for payment agreed between PW1 and the applicant.

13. Further evidence against the applicant is from the Standard Chartered Bank Branch in Shaukeiwan and P7 which indicated that a sum of $11,000 was deposited in PW3's account on 21 September 1995.

14. In his defence, the applicant denied he had offered any money to PW1. As to the entries in the three note books, he gave explanations that the money was paid for innocent purposes. The entries in these note books about his meeting with PW1 related PW1 pressing him to purchase vegetables from a Wah Hing Hong and marine food such as shrimps and fish from a Lee Sik Kin Company. These companies were admitted by PW1 that they were operated by his father and his brother-in-law. The applicant explained that the 10 September 1995 entry in P4 was about PW1 pressing him to increase the purchase of shrimps and fish by 3,000 pieces and that had nothing to do with any payment of money. The applicant also said he was in Taiping on 14 August 1995 which is evidenced by the record of phones made to his home at Taiping on that day by PW1. The applicant denied the entry on 21 and 22 September 1995 was about a deposit of $11,000 into PW3's account.

15. The judge accepted the evidence of PW1 after cautioning herself of the danger of convicting on the uncorroborative evidence of PW1 who is admittedly a tainted witness. She rejected the evidence of the applicant and his explanations on the entries. The judge relying on the evidence of PW1 and the entries in the note books, convicted the applicant of the charges.

16. There are three grounds of appeal. The main ground of appeal is Ground 1 and that is the trial judge relied on matters which are not part of the evidence to make findings relating to facts and credibility of the appellant. These matters are neither in the prosecution case nor the defence case. The complaint is that the materials were introduced in the course of the delivery of the judge's Reasons for Verdict at the end of the trial. These are matters which were unknown to the prosecution and to the defence so that the applicant was deprived of the right to explain or answer to these matters. Because of such irregularity, the convictions cannot stand.

17. Ground 2 relates to the judge's finding on the credibility of PW1 and Ground 3 relates to the judge's failure to resolve the discrepancies between the evidence of PW1 and the entries in P4.

18. Mr. Egan for the applicant concentrated his argument on the 1st Ground. In her Reasons for Verdict, the judge dealt with the entries in the note book. She said this:

"The two entries in Exhibits P6A and B clearly coincided with the dates of payment to PW1 when compared to Exhibit P5B, the 14 July 1995 entry of the defendant's meeting with PW1 on that day at Tai Yuen Restaurant, and P4, the bank record of deposit of $11,000 into PW3's bank account at Shaukeiwan."

19. Given the rejection by the judge of the applicant's explanations on these entries she was entitled to conclude that these entries coincided with the time and occasions referred to in PW1's evidence on his meetings with the applicant and their subsequent agreement and eventual payment by the applicant to him pursuant to their agreement.

20. If the judge had not proceeded further on the entries in the notebook, she would be entitled to draw proper inferences from the entries referred to and make use of the inferences that may be drawn. However, the judge went on to say:

"I have gone through Exhibit P4, the diary of the defendant and I have found other references to PW1, for example, entries on 4, 5 and 9 May and 13 November 1994. An entry on 18 August 1993 recorded his meeting with a 'Mr. YU' introduced by PW1. This entry also described YU to be a real gourmet, and a man of greed. The evidence of the defendant at the trial was that he only met YU twice; the first time was in the China City Night Club occasion and the 2nd occasion was the Lee Restaurant lunch and that it was at a later Lee Yuen Restaurant lunch that YU talked to him about the appreciation of good food. It is obvious from Exhibit P4 entry that the defendant had met YU sometime before the China City Night Club meeting and this confirmed PW1's evidence that the defendant had already met and knew YU before the China City Night Club meeting.

I find Exhibit P4 to 6 corroborated the evidence of PW1, the date of the 14 July 1995 and 21 September 1995 payment clearly matched.

The defendant's diary P4 is extremely revealing. It showed the defendant state of mind at times, particularly when PW1 tried to get more money out of him and what he thought of PW1 and their relationship. Examples can be found in the entries on 4 and 9 May and 13 November, 1994."

21. Complaint is made that the judge had made use of other entries in these exhibits which are not relied upon by either side and not made evidence to find against the credibility of the applicant and to bolster up the credibility of a tainted witness and further to corroborate the entries admitted in evidence.

22. Mr. Egan submits that the judge's reference to entries on 4, 5 and 9 in May and 13 in November 1994 are only examples of entries which are not evidence at the trial. The judge having gone through, as she said, the whole of P4 might have other entries not in evidence taken into consideration. To what extent she had done so and was influenced by them is not known. The judge had used these as examples to show that the applicant was not credible and to confirm the prosecution's interpretation of the admissible entries.

23. Mr. Egan refers to R v CHOW Kin-lam [1993] 2 HKC 386 where the admissibility of a video recording of an interview of the defendant containing the defendant's confession was challenged on the ground of threats during the interview. The judge in that case listened to the tape in the privacy of her room and made findings which were not revealed to counsel who had no opportunity to address the judge on that issue. In the Reasons for Verdict, the judge referred to her findings after listening to the tape. It was held that that was a material irregularity in that the judge had inadvertently but fatally deprived herself of the assistance of hearing the defence on her findings in respect of the video tape and their relevance to the case itself. And concomitantly, the defence had been deprived of the opportunity of being aware of and addressing her on those maters which were troubling her.

24. Mr. Egan says that in the present case, the defence was deprived of the opportunity to address to the entries which were not in evidence but which the judge had taken into consideration and this is a material irregularity which is fatal to the conviction.

25. Mr. Egan further submits that if that is so in the real question now is whether this court should apply the proviso under s. 83 of the Criminal Procedure Ordinance.

26. Mr. Fazio for the Government submits that even if there is a material irregularity at the trial, the court should apply the proviso under s. 83 if there is no miscarriage of justice and in order to do so, the court must be satisfied of the inevitability of the verdict notwithstanding the material irregularity.

27. Mr. Fazio submits that even without the entries, a conviction is inevitable. He invites us to apply the proviso and to dismiss this application.

28. The sample entries referred to by the judge are clearly not relevant to the offences. The prosecution had never relied on these to establish their case. Clearly these entries were not intended to be evidence at the trial. As may be seen from the transcripts of the trial, only specific entries but not the whole note books were put in evidence. This is made even more clear by the fact that there are no translations certified or otherwise of the other entries in the note books. The judge should not have gone through all the entries contained in the three note books to find supporting evidence. The applicant was never asked about them at the trial. If he were, he might have an innocuous explanation to them. The judge had relied on extraneous matters to conclude that the applicant was telling lies in his evidence and to find the applicant was not credible despite his clear record and to form her opinion of the relationship between PW1 and the applicant. The defence had been deprived of the opportunity to address to these matters. This is a material irregularity which is fatal to the conviction.

29. The present case depends not only on the credibility of PW1, but also to a large extent on the entries in the note books. Whether a conviction will result depends on what interpretation is given to those entries and the inference that may be drawn from them. In the absence of the entries what view is taken on the credibility of PW1 and the applicant is not known.

30. In those circumstances we are not satisfied that the case is one that despite the irregularity a conviction is inevitable. It is not one that we should apply the proviso in s. 18 (3).

31. For the above reasons, we grant the application for leave to appeal against conviction and treat the application as the hearing of the appeal. We allow the appeal and we quash the conviction.