R. v. MAK CHUN KA

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

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D E C I S I O N

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1. This is an appeal against conviction and sentence. The appellant was charged with three counts of accepting an advantage as a public servant, one count of accepting an advantage as a Crown Servant and four alternative counts of obtaining property by deception. He was convicted of the four bribery charges and sentenced to a total of two years' imprisonment. At the end of the hearing of this appeal, I allowed the appeal and gave brief reasons therefor. I now reduce them into writing.

2. The appellant was a police officer. He was a member of the Special Duty Squad of the Tsuen Wan District in 1992 and 1993. He is now a sergeant. On 16th November 1992, the appellant and his team members conducted an anti-drug operation. They went into a flat in Tsuen Wan and found a quantity of a dangerous drugs therein. They arrested 2 suspects inside the flat : PW1 in the present case and another person. It appeared that PW1 upon arrest by the appellant said something to the police officers. After PW1 was brought to the Police Station, the appellant took a post-record statement from him with regard to what he had said inside the flat. PW1 was later released on police bail. A few weeks later he was charged with possession of the dangerous drugs found.

3. In the present case, it was alleged that the appellant had approached PW1 on four different occasions in November and December 1992, February and May1993. The prosecution case was that on each occasion, the appellant said he would help PW1 at his trial and asked for money. PW1 alleged that he had given the appellant a total of more than $17,000 on these occasions. It was in July 1993 that PW1 reported the matter to the ICAC. A meeting was then arranged between PW1 and the appellant on 14th October 1993, a few days before the trial of PW1. Their conversation was taped on a concealed recorder provided by the ICAC.

4. At the trial of PW1 on the drug charges, the appellant, together with the other members of the team, gave evidence against PW1. It was accepted by the prosecution in the present case that there was nothing unusual or surprising in the appellant's testimony at that trial and that the appellant did not appear to deliberately say or omit anything in order to help PW1. PW1 was convicted after trial but on appeal, his conviction was quashed on a ground which was unrelated to the evidence of the appellant.

5. The appellant was later interviewed by the ICAC. He denied all the allegations made against him and in particular he denied having seen PW1 on the four alleged occasions and soliciting and accepting money from PW1. He also denied meeting PW1 on 14th October 1993. Upon further questioning, he explained that he had contacts with PW1 because the latter wanted to be an informer but he, the appellant, could not remember the dates of such contacts. He was subsequently charged with the present offences.

6. In his Statement of Findings, the learned magistrate said that he believed PW1's evidence which was not damaged under cross-examination. He accepted him as a good witness, giving evidence naturally and speaking truthfully. He gave two examples as illustration. He noted that PW1 had changed his evidence over the date of the first meeting with the appellant from the 18th to the 17th November 1992. He accepted that this was due to a genuine mistake on the part of PW1. He also accepted PW1's explanation with regard to the ATM cash dispenser and thought that it had the ring of truth.

7. The learned magistrate had, of course, the advantage of watching PW1 give evidence in court and was in a position to rely on PW1's demeanour in assessing his credibility. He had apparently taken that into account. With regard to reliance on the demeanour of a witness, I need only refer to the dicta in two previous cases. Litton J.A. in R. v. NG Wing Ming, Cr. App. No.280 of 1994 said at page 2 of his judgment :

"Demeanour is a notoriously uncertain guide to the truth for obvious reasons. A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or 'body language' indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort."

O'Connor J. sounded a similar warning in the case of R. v. Lo Shu Chuen [1991]1 HKLR 36 at pages 38 to 39 :

"Judicial opinions differ as to the value of demeanour as a test of credibility....However it is generally accepted that demeanour can be a valuable aid to a judge of fact. Before relying on demeanour it should be tested against all the evidence, Uyill v. Uyill [1945]1 All ER 183 at 190. Where the evidence comes in through an interpreter, from the language that the judge does not understand, particular caution should be exercised."

8. I would respectfully agree with these comments which are particularly appropriate in the present case.

9. Having looked at the notes of proceedings, I would, with respect to the learned magistrate, come to the view that there is more than a lurking doubt in PW1's evidence which was the only oral evidence against the appellant, notwithstanding the advantage which the learned magistrate had in hearing the witness in court. It was not disputed that PW1 was a person of dubious character as acknowledged by the learned magistrate. He started a life of crime since the age of 13 or 14 and had several criminal convictions. He had obviously had some experience testifying in court and was, as leading counsel for the appellant described, "court wise". One would therefore have to look at his evidence with great caution. With respect, I think the learned magistrate had taken too simplistic a view of PW1's evidence. There are many important aspects of his evidence which are far from satisfactory.

10. First, the date of the alleged first meeting with the appellant and payment to him was obviously very important. When one analyses the evidence, it is not difficult to notice that PW1's change of date from the 18th to the 17th of November was more than a genuine mistake and quite suspect. PW1 was arrested at about 16:14 hours on 16th November 1992. His statement which was a record in the notebook of the appellant commenced at 20:25 hours on that day. It is not clear when police investigation on PW1 with regard to the alleged drug offences had completed on that evening. Anyway, after the investigation, he was released on police bail. It was therefore probable that PW1 was released earliest at about midnight of the 16th and in the early hours of the 17th, or even later in the day on the 17th. According to PW1, he had to withdraw money from the bank through the ATM to give it to the appellant. He purported to support this by producing his bank statement which showed that there were withdrawals on 17th November of money amounting to $6,000 which was the amount alleged to have been given to the appellant. In other words, if what he said was correct, the appellant contacted PW1, met him, solicited money from him and obtained the $6,000 on the same day as PW1 was released from the Police Station. If PW1 could remember even the details of the conversation on that day, one would expect that he would remember that the offence in relation to the 1st count was committed on 17th, the very day of his release from the Police Station. Yet in evidence, PW1 quite clearly and unequivocally said:

"It was in the afternoon of 18th November 1992.

Two days after (the day of arrest).I was arrested on 16th.I saw him on 18th."

11. If it was indeed the 17th when the meeting and payment took place, there was no reason why PW1 could be so firm in saying that it took place two days after his arrest on the 16th. If, on the other hand, the meeting and payment took place on the 18th, then this was not supported by his bank book because it showed only a withdrawal of $2,000 on the 18th and not $6,000. Hence, judging from the circumstances of this case and the way he gave evidence, I do not think his change in evidence on the date of the alleged first meeting could be described simply as a mistake on his part. It had a bearing on the reliability of his evidence.

12. Second, PW1's evidence on the payment of money on the alleged first occasion also raised some doubts. He said that he paid the appellant $6,000 by withdrawing twice from the ATM, once for $4,000 and then another $2,000. He explained that the limit of the particular ATM he used was only $4,000 and so he had to withdraw twice. The learned magistrate said that this was reasonable and acceptable. However, it is important to note that nowhere in his evidence did PW1 say how much money the appellant had allegedly asked of him although he gave details of the conversation. He said that the appellant only asked for money because he was in some financial difficulty but did not mention any specific amount. Nor did PW1. If that was the case, how did the figure of $6,000 come about? If neither PW1 nor the appellant had mentioned any specific figure, why should PW1 take the trouble of withdrawing $6,000 and what is more making two withdrawals? Why would $4,000, the alleged maximum amount for one withdrawal, not be sufficient for the purpose of satisfying the appellant who did not ask for any particular amount ? The point is not whether or not it was reasonable to withdraw 2 amounts on the same day, but why it was necessary to withdraw $6,000 and in 2 sums.

13. Similarly, it can also be noted that with regard to the three subsequent alleged payments, PW1 did not, anywhere in his evidence, say that the appellant had requested any specific amount on any of these alleged occasions. Furthermore, it is interesting to note that on the alleged 2nd and 3rd occasions, although there was no mention by anyone as to how much was asked for by the appellant, PW1 happened to have $5,000 cash on his person on each of these two occasions and he gave the money to the appellant. And on the alleged last occasion, he happened to have $1,500 cash on him and he gave it to the appellant. I do not think his explanations, if any, could be regarded as satisfactory.

14. Third, there was the failure on the part of PW1 to tell his lawyer or laywer's clerk shortly after he had made those payments to the appellant. He said that he did not tell the clerk of the solicitors who were to represent him in the drug trial of his payments after these occasions and only did so about one month after the fourth or last payment. That was only in June. One would perhaps accept that a victim of a bribery would be reluctant to tell anyone about it. However, this was a case where a law enforcment officer had told the alleged victim of bribery that the police had framed him up on some drug offences and solicited for payments of money so that nothing incriminating would be said at the trial. It was not payment of a bribe on an isolated incident, but on four different occasions one after another. If PW1 was to be believed, he had been framed up and was to face a criminal trial. He had instructed a firm of solicitors to represent him and to advise him. If the arresting officer had told him that the police had framed him up, one would expect that he would tell his lawyer about it immediately after the first occasion. He would no doubt seek the advice of his lawyers as to why he should be charged and have to attend trial if he was indeed framed up. One would expect him to ask his lawyer to do something about it in order to avoid a trial on offences of which he was wrongly accused. Yet he said he did not tell his lawyer about such alleged contacts with and payments to the appellant until one month after the last payment. With respect, the learned magistrate did not, in his Statement of Findings, sufficiently deal with this aspect in assessing PW1's evidence.

15. Furthermore, if PW1 had indeed told his lawyer's clerk about these bribes and/or payments, one would expect that the clerk would tell the lawyer, and the lawyer would report the matter to the police, ICAC or the Attorney General or at least do something. After all, the lawyer was supposed to act in his interest and to advise him of his rights. Yet it was not his lawyer who reported to the ICAC. It was only in July, after another month had elapsed, that PW1 saw fit, upon the advice of a friend, to report to the ICAC. Another important thing is that after he reported to ICAC, a meeting was arranged by the ICAC between PW1 and the appellant a few days before the trial. That meeting was recorded on tape. In other words, before the criminal of trial of PW1 on the drug offences, the ICAC had obtained the same evidence against the appellant as that adduced before the learned magistrate. No further evidence was gathered against the appellant. Under such circumstances, one would expect that PW1's lawyer at the hearing of the criminal trial on the drug offences would put all these matters to the appellant and/or his colleagues who testified at the trial against PW1. That would certainly cast doubt on the credibility of the appellant as well as the other police officers. This was not done. No mention was ever made at that trial about these solicitation, payments and conversations. His counsel conducted his trial as if nothing had happened. As it turned out, PW1 was convicted on the evidence of these officers including the appellant. It was on some other ground that his conviction was quashed on appeal. Again the learned magistrate seemed to have failed to deal with this aspect of the case in assessing the evidence and credibility of PW1.

16. All these matters, in my view, would cast grave suspicion on the reliability of PW1 when he testified against the appellant. One would find it difficult to be satisified beyond reasonable doubt that he was telling the truth.

17. Apart from these, the learned magistrate seemed to have attached much importance to the failure of the appellant to give evidence. In his Statement of Findings, he said :

"Such failure was of course no evidence of guilt, but it left the evidence of PW1 uncontradicted. It left the failure to protest at the 14th October meeting unexplained by evidence. It left the initial denial of that meeting unexplained by evidence."

At a later stage, however, he stated that he had considered the appellant's denials of accepting money in the interview with the ICAC. He said that:

"These assertions were unsworn and self-serving and were robbed of much of their weight by the damage done to the appellant's credibility by the denial of the meeting."

18. It is correct that the appellant did not give evidence in court. However he was interviewed by the ICAC officers and such interview was recorded on tape. The tape was adduced in evidence by consent. During the interview, the appellant was questioned about the alleged meetings and payments. He denied all of them. When one looks at the record of the interview, it is clear that the appellant had been questioned at length. In other words, what he had said during the interview in answer to the allegations made against him had been adduced as part of the evidence by the prosecution. I fail to understand how it can be said on the one hand, that PW1's evidence was left uncontradicted and, on the other hand, that his denials were self-serving. With respect to the learned magistrate, it seems to me that he had attached undue weight to the failure of the appellant to give evidence and had failed to attach sufficient weight to his denials and assertions given during the ICAC interview which had been adduced in evidence by the prosecution.

19. The learned magistrate had also placed much weight to the appellant's failure to protest at PW1's allegation of payment of money to him at the meeting on 14th October. In his Statement of Findings, the learned magistrate said:

"As regards the mention of the monies paid to the appellant in the taped conversation, I bore in mind that there was no expressed adoption by the appellant. However I consider that in the circumstances some protest or denial was to be expected and that the failure to contradict or query the assertions supported an inference that he accepted what was said to be true."

He further added that:

"The two parties were speaking on even terms and guilt may be inferred from unreasonable behaviour of a defendant when confronted with facts which seem to accuse. The suggestion that he did not hear what was said remained only his suggestion. There were no evidence to this effect. There was nothing to suggest that this piece of the conversation differed from the rest of what they said to each other in a way that would affect its audibility."

20. The meeting which took place on 14th October 1993 admittedly took place in a very busy and crowded restaurant. PW1 had a recorder strapped onto his chest. The whole meeting was recorded. I think it is quite clear and was indeed not disputed that the quality of the tape was extremely poor. It was so poor that the ICAC found it necessary to engage the service of an expert and used an enhancer to help in transcribing what was said. It appears that what was done was to suppress the surrounding noises and to enhance what was said by PW1 and the appellant. The transcript was of course in Chinese. It was then translated into English. I understand that the learned magistrate had the English translation of the transcript and had heard the crucial part of the tape in court. I also had the chance of listening to some parts of the tape including the crucial part.

21. When dealing with evidence in the form of tape recording, I think I ought to sound a word of caution. It is very often necessary to listen to the tape itself. This is because listening to the tape makes a lot of difference from reading only the transcript. There are the pauses, the emphases, the accent and the intonation which simply cannot be picked up on a transcript. If the conversation which was recorded was conducted in Chinese, a person reading the English translation of the transcript is another step further away from listening to the original tape. For a magistrate who is not conversant with the Chinese language, he would be handicapped in dealing with such type of evidence particularly when what was exactly said during the recorded conversation is in dispute.

22. In the present case, I have the advantage of being able to listen to the taped conversation and to read the transcript both in Chinese and in English. After having heard some parts of the tape and read the Chinese transcript as well as the English translation, I noticed the following. There are 3 places in the transcript where the appellant indicated to PW1 that he could not hear clearly; 50 places where, even with the use of an enhancer, what was said was "inaudible"; another 3 places where the transcript said there were noises around and 4 places where it said there were other voices - a total of 60 places where there was one type of problem or another. This indicates the kind of difficulty the listener had in listening to the tape, let alone a person who could read only the English translation of the transcript.

23. With regard to the crucial part of the conversation, I note the situation as follows. The appellant finished quotation 103. Then PW1 started quotation 104. A large part of it however seemed to be a monologue. He was complaining to himself about this and that. There were at least two pauses in this quotation and one place where it was inaudible. What is more important is that when one listens to the tape, there seems to be a long pause after PW1 had finished quotation 104 but before the appellant uttered quotation 105 which was in fact not a response but a question regarding PW1's chances at his own criminal trial. There is no evidence as to the circumstances under which PW1 said quotation 104 and how he said it. The long pause between quotations 104 and 105 could not be picked up on the transcript. It could only be heard on the tape. The relevant part as appeared from the transcript with regard to "PW1's allegation that he had paid the appellant money" was like that :

"Yours, 4 times, total nearly 17-18 thousand dollars."

24. Under such circumstances, with such poor quality of the taped conversation, there is at least a serious doubt as to whether the appellant could at the time of the meeting pick up what was said by PW1 with regard to the payments of money. If the appellant could not, it was reasonable that he did not response to the so-called allegation of payments. It is difficult, in my view, to come to the conclusion as the learned magistrate did that "guilt may be inferred from the unreasonable behaviour of a defendant when confronted with facts which seem to accuse." It was not a clear allegation made by PW1 in the first place. It was not clear under what circumstances and how he said it. It was not clear whether that message had been put across clearly to the appellant. And more impotantly, it was not clear whether the appellant had heard clearly what was said. When one considers the circumstances of the meeting, the surroundings, and the quality of the tape and transcript, I think there was clearly some evidence which might go to show that the appellant had not heard clearly what was said. That was certainly more than "a mere suggestion" as the learned magistrate thought. In my view, it would be dangerous to rely too much on this part of the evidence. The lack of response by the appellant in the circumstances prevailing does not necessarily infer guilt.

25. The learned magistrate also relied on the lie made by the appellant with regard to the meeting with PW1 on 14th October 1993. The appellant, during the interview with ICAC, denied at first that he had met PW1 on that day. When he was shown the tape, he explained that he could not remember the date. The learned magistrate said that this denial was "flustered and weak and unsatisfactory". He applied the criteria set out in the case of R.v. Lucas 73 Cr. App.R.159. He concluded that this denial was told for fear of the truth and a realisation of guilt. With respect to the learned magistrate, I think he had overlooked other parts of the evidence including the other explanations given by the appellant during the ICAC interview. First, there was what was called the cautioned statement alleged to have been made by PW1. It seems that upon arrest, PW1 told the officers that he would like to "keep the case" to the police which was understood to mean that he was prepared to act as an informer.

Second, this was also confirmed by some police officers who testified at PW1's trial. Third, the appellant also said several times during the ICAC interview that police officers were required to deal with informers. He mentioned at some stage that PW1 wanted to act as an informer. It seems, therefore, that the possibility of PW1 acting as an informer could not be ruled out. It is not surprising that police officers such as the appellant would, from time to time, make contacts with informers. There might be many reasons for a police officer not telling clearly that he had made contacts with an informer and/or the identity of the informer. And reluctance to reveal an informer might well be one of the reasons for the appellant not disclosing his contacts with PW1 in the earlier part of the ICAC interview. If that was the case, there was a possible reason for his lie but I put it no higher than that. In other words, it is possible that the lie might not have been told for fear of the truth and/or realization of guilt. The learned magistrate had placed undue weight on this part of the evidence and omitted the other explanations given by the appellant.

26. Having looked at all the evidence and considered the points which I have dealt with above, I am left with the conclusion that the convictions are not safe or satisfactory. In the circumstances, I would allow the appeal, quash the convictions and set aside the sentences.