Chan Chuen-kam and Others v. R.

IN THE COURT OF APPEAL

1991 No 186

(Criminal)

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J U D G M E N T

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Kempster, V-P:

1. On 17 April 1991 on the verdicts of a second jury, the first having been discharged, Chan Chuen-kam, Yip Man-kui and Chu Kwok-wah were convicted by Deputy High Court Judge Evans on two counts of conspiracy to forge Ren Min Bi and US dollar bank notes, contrary to s 70(1) (c) of the Crimes Ordinance (Cap 200), one count of conspiracy to forge travellers' cheques, contrary to s 70(2), and two counts of conspiracy to utter forged Ren Min Bi and US dollars, contrary to s 74(1) of that ordinance; all with intent to defraud. Chan Chuen-kam and Yip Man-kui were also convicted on a further count of conspiracy to forge passports, contrary to s 42(2) (a) (i) of the Immigration Ordinance (Cap 115), and Yip Man-kui of possessing, to his knowledge, a forged US passport, contrary to s 76(3) of the Crimes Ordinance, as well. Two other men were convicted on one or more of such counts; one of them on his own plea and the other on the verdict of the jury. Against their respective convictions Chan Chuen-kam, Yip Man-kui and Chu Kwok-wah seek leave to appeal. That there was ample evidence warranting conviction for each of these offences, alleged to have been committed between 28 July 1988 and 21 July 1989, is not in dispute. The matters relied upon by the applicants are more technical in nature.

2. By the first of the ostensible written grounds in his Notice of Application for Leave to Appeal and in a similar document submitted to us at the hearing Chan Chuen-kam complained that the judge had failed to consider whether or not the evidence adduced on behalf of the prosecution was fairly "collected". At the trial, in which he gave evidence, it had been his case that pieces of paper, one bearing Bank of America travellers' cheque numbers, were not found at his home on the night of his arrest. He claimed that they were found in his handbag or, at one stage at least, had nothing to do with him. But the police officer who produced the most incriminatory of these documents was not challenged on the point and we cannot go to into the conduct of this applicant's counsel without reference to him. The issue remained a matter for the jury to determine. I find no substance in this ground.

3. The second matter relied upon by Chan was that the judge gave his own opinions when directing the jury so that they could not make independent and fair decisions. This shows a misunderstanding as to the law and practice in criminal cases. Providing that he makes it clear to the jury that the facts are a matter for them a judge is entitled to express his views. In the instant case Deputy Judge Evans said:-

"What I shall do, hopefully, which will help you, is deal with and mention various parts of the evidence and various aspects of the evidence, those parts and aspects that I consider to be the most significant, and you can consider what I say in relation to the evidence just as you will consider anything that the counsel has said to you about the evidence ... But here is the point; you are the sole judges of fact here and it is for you to decide what evidence you think is significant and what evidence you accept and what evidence you reject. So if some fact or point I have put you, or that counsel has put you, doesn't appeal to you or if you think some other matter about the evidence is significant, or if you view the evidence differently, then it is your duty to reject views which do not appeal to you and that is the point. Once again you are the sole judges of the facts."

I find no substance in this ground of appeal either.

4. In his third and final ground Chan Chuen-kam complains that although the judge had directed the jury that there was no evidence corroborating the testimony of the accomplice witnesses, "the jury did not give careful consideration to this point and thus accepted what they shouldn't. Thus they made an unfair decision." This is purely speculative. In my view this last ground is also without substance as are Chan's further complaints that the judge neglected to remind the jury of evidence favourable to him and that the sentences passed on him for previous convictions, including one for possessing a forged Thai passport, were disclosed to the jury. It was an essential part of his defence that he had been arrested for these offences by Yip Man-kui and later agreed to become his informer.

5. I would dismiss Chan Chuen-kam's application for leave to appeal against conviction.

6. In his "Perfected Grounds of Appeal against Conviction" Yip Man-kui, who was a police officer attached to the Commercial Crimes Bureau and an expert on counterfeiting, first complains about the judge's two stage direction in relation to the standard of proof resting upon him to show "... lawful or reasonable authority, purpose, cause or excuse ... " for the possession of a forged passport by reason of s 94A of the Criminal Procedure Ordinance (Cap 221). The direction impugned reads as follows:

" Now the first question you need ask yourself, remembering the burden of proof on this issue that I have told you about, the first question is, 'Is the 2nd accused's story a likely story?', that is, 'Is it probably true?' If you decide that he has not shown you that he has probably told you the truth, then that is the end of it. ...

On the other hand, if you think his account probably is the truth, then you have to go on from there to the second question and the second question is - and this is entirely a matter for you to decide bearing in mind what I have told you about the defence of excuse - whether or not on the facts as you find them to be that constitutes an excuse for having a forged document in his possession."

This applicant had said that he had received the passport in question, with others, from an informer and put them into a sports bag which he had stowed in the boot of his car and then forgotten. The judge's analysis of the requirements of s 94A and the illustrations he provided cannot be faulted. If the jury had thought that the applicant's account of the matter was probably true they could not have failed to find that he provided an excuse. In my opinion this ground of appeal fails.

7. It was next contended on behalf of Yip Man-kui, who also elected to give evidence, that "the trial judge erred in law in that he failed properly or adequately to direct the jury of the four essential factors of each of which they needed to be satisfied before they could treat lies told by an accused as corroborative evidence of guilt." The material direction of the learned judge read as follows:

"Now if it should be that you do not believe ... the 2nd accused ... and conclude (he has) told lies from the witness-box or ... in a statement to the police after his arrest and I am speaking of course of the exhibit P.234, the record of his interview that you know about and I will turn to in more detail later, you should not just conclude that he is guilty because he has lied. It does not necessarily follow.

The mere fact that an accused person tells a lie, if you find it to be such, is not of itself evidence of guilt. You are entitled, however, to ask yourself a question. You are entitled to ask yourself the question: Why did he tell a lie? What prompted him to do so?

Now an accused may lie for various reasons. He may lie out of panic. He may lie out of confusion. He may think, perhaps stupidly, that by telling a lie he will somehow or other advance an otherwise truthful case. He may, because he is involved, albeit perhaps honestly, with somebody in business and does not want that known, he may lie in that situation. He may lie because he is cheating on his wife. He may lie because he thinks himself exposed to some sort of discipline or censure in relation to his employment, discipline or censure for something that is unrelated to the matters that are before you. He may lie, as has been suggested by Mr Westbrook, if you found it a lie, in relation to the 1st or 3rd accused or Chan Hang-on, that of simple loyalty to them because he knew, if you accept his case, that they had been involved in something.

So there are all sorts of reasons why an accused person may lie. What you must look at is the reason for the lie. If you think there is or may be some innocent explanation for his lie, then you should pay no attention to it. But it you are sure in your own mind that he has lied and that lie is relevant to the allegations made against him and you are sure that that lie was told deliberately in an endeavour to deceive you about events due on his part to a consciousness of guilt, then that is a matter going to proof of quilt and as such a matter which you can legitimately take into account with the other evidence you have heard."

This is accepted as a proper direction, where corroboration is required or desirable, save for the absence of reference to the fact that the evidence of an accomplice must not be relied upon in concluding that a lie has been told.

8. While, at first blush, no question of the corroboration of the evidence of accomplices arose at this trial because the judge, in an extremely favourable direction from the point of view of the accused, instructed the jury that there was no such corroboration the effect of his direction was to suggest that lies could, in some circumstances, be regarded as evidence of guilt and, therefore, provide corroboration. In the present case it was not necessary to refer to the basis for any conclusion that the applicant had lied. What was relied upon by the Crown was not the contradictory evidence of the accomplices but the inconsistencies in this applicant's own oral evidence at trial and its variance from his previous written statement.

9. In my opinion this ground of appeal also fails.

10. It is next contended that the judge erred in law in that he failed properly or adequately to direct the jury "on the legal significance of evidence of good character on the part of an accused person." Once more the learned judge's direction may be quoted:

"... he ... (has) no criminal record at all. The 2nd accused is, as you know, a police officer. ... (A man) of good character and that is a matter which you should bear in mind when you are considering the evidence and ask yourself whether you think it likely that notwithstanding ... good character, (he) would have committed the offences charged."

There is an obvious lacuna in this direction in that, while properly directing the jury in relation to good character and propensity, the judge failed specifically to tell them of the relevance of good character to credibility as, howsoever-clearly-described, was required of him. Was such a failure fatal to the fairness of his summing in relation to this applicant overall? In R v Bravery 1991 Crim LR 443 the English Court of Appeal set aside a conviction for indecent assault on a boy of 15 because the judge had failed to refer to the previous good character of the accused at all. This omission amounted to a material misdirection. In R v Marks Cohen (1990) 91 Cr App R 125 at p 131 that court, by Farquharson LJ, explained that the appellant might expect to have reflected in the summing up the words:

"I am a man of good character and I am entitled to your assessment of my credibility in the light of that good character."

In R v Vye [1993] 1 WLR 471 at pp 479 and 475 the English Court of Appeal further stated, as a matter of principle, that a "direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements ... It is no longer sufficient for the judge to comment in general terms." However, in R v Kabariti (1991) 92 Cr App R 362 the same court had applied the proviso to s 2(1) of the Criminal Appeal Act 1968 (the equivalent of that found in s 83(1) of the Criminal Procedure Ordinance) where the trial judge had neglected to give the required direction on character and credibility but the evidence against the appellant was overwhelming. Further, in Berry v The Queen [1992] 2 AC 364 at p 381, an authority not cited in R v Vye and where failure to direct the jury on the relevance of good character to credibility was one of the grounds relied upon, Lord Lowry, giving the opinion of the Board said: "Had this been the only ground of complaint their Lordships (who allowed the appeal of the convicted appellant) might have reached a different conclusion on the appeal."

11. Last week, in another division of this Court, complaint was made of the failure of the trial judge to give any direction on good character. Had this been the only ground of appeal that division would have applied the proviso. R v Lai Hon-man Cr App No 421 of 1992 (Unreported). I propose to return to this ground of appeal in due course. Assuming it to be necessary, having regard to s 82(2) (a) of the Criminal Procedure Ordinance, I would grant this application for leave to appeal against conviction meanwhile.

12. The fourth ground of appeal is based on the failure of the judge, in the absence of any objection on the part of defending counsel, to prevent the cross-examination of the appellant about possible breaches of Police General Orders arising from his involvement in the various business enterprises, culminating in the handbag project alleged to be a cover for forgery, about which he had given evidence in chief. At the very least these enquiries went to credit and, in my opinion, were germane to the overall assessment of the evidence by the jury and, in context, they would have had little prejudicial effect.

13. The fifth ground of appeal is that the judge erred in law in inviting the jury to speculate about the provenance of certain Ren Min Bi notes found in the appellants' possession. Unlike the Summing-up as a whole the passages complained of are obscure in their meaning. I cannot imagine that they would have had any effect on the minds of the jury for or against the appellant.

14. I would not sustain either of these two grounds.

15. Consideration of the final ground of appeal, that the convictions were unsafe and unsatisfactory in the absence of corroboration of the evidence of the accomplice witnesses, necessarily recalls for consideration the judge's failure adequately to direct the jury on good character and credibility.

16. I do not underrate the gravity of this omission in a trial where the appellant's word stood against those of the accomplices though, at the same time, I bear in mind that according to his own story the appellant had, while serving as a full-time police officer and, ex hypothesi, having no previous conviction, agreed to go into the business of manufacturing handbags in concert with his informers nearly all of whom, to his knowledge, had criminal records. There was no evidence of the production of or of documents relating to such articles but much evidence of the forgery of bank notes, travellers' cheques and passports. Forged Ren Min Bi notes and negatives required for printing bank notes were found in the appellant's possession while a forged passport was found in his car. It was common ground that all the alleged conspirators knew and telephoned each other.

17. I am satisfied in the circumstances that a proper direction on good character and credibility would not have affected the material verdicts of this or any other reasonable jury and, for this reason and generally, that no miscarriage of justice actually occurred. Nothing raised in argument or appearing on the papers gives rise to a lurking doubt as to the safety or satisfactory nature of the appellant's convictions. I would dismiss his appeal accordingly.

18. Two submissions were made on behalf of Chu Kwok-wah; first that the judge erred in law in permitting the Crown to adduce in evidence a photograph of him in his living room, pointing to a cupboard in which forged Bank of America 100 US dollar travellers' cheques were found, when that photograph had been taken following an inadmissible confession which the prosecution did not seek to adduce in evidence. Reference was made to Lam Chi-ming v The Queen [1991] 2 AC 212. But it was Chu's defence, as the judge reminded the jury, that he had indeed helped to produce these cheques and forged notes in the belief that he was assisting Yip Man-kui, to whom the cost was invoiced, in a legitimate covert operation; having, therefore, no intent to defraud. If there was any error here on the part of the judge it is of academic concern only.

19. The other submission was that the judge erred in permitting counsel for Yip Man-kui to introduce in evidence a document purporting to be Chu's proof of evidence. This was done in the course of Yip's re-examination following cross-examination on behalf of Chu whereby it was sought to establish the defence, which he did not give evidence to further, that Chu was assisting the police in the manner just described. The "proof" was wholly inconsistent with the line of cross-examination which had been pursued.

20. The document in question was properly adduced in evidence and there was no call for the judge, in the absence of contemporaneous objection on behalf of Chu, to initiate an inquiry before so doing.

21. The verdicts against this applicant were neither unsafe nor unsatisfactory and his application for leave to appeal against conviction should, in my opinion, be dismissed.

Litton, J.A.:

22. I agree with my Lord the Vice-President that the verdicts of the jury in respect of the three applicants must be upheld. I differ with him on one point, concerning the second applicant Yip Man-kui. In my judgment, the trial judge did not err in directing the jury in relation to good character. More specifically, he did not fail to tell the jury of the relevance of Yip's previous good character to credibility.

23. To set the matter in its context, this is what the judge said:

"Now let us turn to look at the evidence as regards the 2nd accused, but before in fact concentrating on him, let me remind you that both he and the 3rd accused have no criminal record at all. The 2nd accused is, as you know, a police officer. The 3rd accused is a graphic arts businessman with his own company. They are both men of good character and that is a matter which you should bear in mind when you are considering the evidence and ask yourself whether you think it likely that notwithstanding their good character, they would have committed the offences charged."

24. The judge then went on to deal with the evidence bearing upon the 2nd applicant and, a few pages further on in the summing up, he said :

"The 2nd accused's case is that at no time did he believe he was involved in anything other than a genuine business ..... he told you it is difficult to keep informers and, in effect, one has to stay sweet with them by trying to help them as much as possible. He thought, he told you, that if he could get them together, it would help his relationship with them and at the same time they could get a business going together. Initially it seemed to work out well and for his part, as he put it, he was killing three birds with one stone. Then it happened that he got interested in the business himself. He could see that they needed management which he believed he could supply and at the same time he hoped that he could make some money".

25. In my judgment, where the judge said "they are both men of good character and that is a matter which you should bear in mind when you are considering the evidence" this must have been understood by the jury to mean the evidence bearing upon the case against this appellant, including obviously the testimony he gave in court. Assume that, instead of saying "when you are considering the evidence", the judge had said "when you are considering their evidence", there could not have been the least doubt that the judge was telling the jury that good character was relevant to credibility. When the jury is invited to consider someone's evidence, what could that possibly mean except to weigh the credibility of the witness? To weigh it, in other words, by a number of factors: demeanour, inherent probabilities and, in this case the fact that the applicant was of good character.

26. It is true that the judge did not use the expression "credibility". But, as was put to counsel in the course of argument, is this a word much used in the vocabulary of the average juror in Hong Kong? If the judge had, in his summing up, conveyed to the jury the essence of what the law requires, I cannot see that the failure to use a "magic word" could amount to misdirection.

27. It was put to us in argument that the summing up by the judge in the case of Regina v. Vye [1993]1 WLR 471 at 480, held by the English Court of Appeal to have been inadequate, was akin to the summing up in the present case. In Reg. v. Vye this is what the judge said:

"It occurred to me after you had gone to your retiring room that I had not reminded you of the evidence that the accused man was a man of clean record. I should have done so and it is my fault that I did not. It is something of course which cannot be conclusive one way or the other, but nonetheless, it is something which in fairness you could have in mind when considering the evidence. Thank you very much."

28. Counsel for the applicant argues before us that except for transposing the word "should" for "could", the direction to the jury in this case is in terms almost identical to that of the judge in Reg. v. Vye. I cannot accept this submission. The judge in Vye did not say to the jury in clear terms that, when considering the evidence of the accused, they must bear in mind the fact that this was a man of clean record. On the contrary, he watered down that proposition by saying that it could not be "conclusive one way or the other".

29. Obviously, where the trial judge told the jury that they should bear good character in mind when considering the evidence, he was not confining the proposition simply to the testimony given by the 2nd applicant in the witness box. But should he be criticised for this? When considering, for instance, the accusations of the accomplices, should the jury not be asked also to bear in mind the fact that the applicant was of good character? In practical terms, how can the proper evaluation of evidence be broken up into separate components? Surely, the very process of weighing the testimony of an accused person necessarily means that the jury has in mind the testimony of his accusers. Counsel for the applicant argued that, in the passage impugned, the judge was simply giving a direction on the "second limb" in Reg. v. Berrada [1991] Cr.App.R. 131 at 134, regarding propensity, and gave no direction on credibility at all.

30. For my part, I do not see why the sense of the passage should be confined in this way. The judge was, in the context of that part of his summing up, dealing with the evidence "concentrating" on the 2nd applicant. Surely it goes without saying that if the jury believed the evidence of the 2nd applicant, bearing in mind the fact of good character, he could not have been guilty of the offences charged.

31. It is always possible to improve upon the language in a summing up. If the judge had said "that is a matter which you should bear in mind when you are considering the evidence and also ask yourself whether you think it likely that notwithstanding their good character, they would have committed the offences charged", I imagine that this ground of appeal would not have been raised. Can the sense of the summing up to the jury be so altered by the omission of one adverb?

32. In my judgment the summing up, though not ideal, was adequate for the purpose.

33. I agree with my Lord the Vice-President's observation that the 2nd applicant being a full-time police officer was, by definition, a man with no previous conviction. The evidence against the 2nd applicant was overwhelming. Apart from the evidence against him as summarised by my Lord there is this additional fact: on his own admission he had visited the premises at 18A Wah Tat Industrial Building in mid-May 1989, supposedly to see whether it was suitable for a handbag factory: premises which in mid-July were found to have been used for producing counterfeit bank-notes. Assuming that the judge had failed to direct the jury on the issue of good character in the way my Lord the Vice-President has found, I too would have held that no miscarriage of justice has occurred.

34. I agree in any event that Yip Man-kui's application for leave to appeal should be allowed but that the appeal itself be dismissed.

Bokhary J.A.:

35. I concur in the judgment which my brother Litton has just delivered. All these convictions must, in my view, be upheld.