THE QUEEN v. CHAN YAM-FAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 176 of 1985

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BETWEEN

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JUDGMENT

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1. In Criminal Case No. 23838/84, the second appellant and P.W.1 were jointly charged with attempting to pervert the course of justice. On 4th October, 1984 a nolle prosequi was entered in respect of P.W.1.

2. In Criminal Case No. 29940/84 the appellants were two of the five people originally jointly charged with conspiracy to pervert the course of justice. The first appellant was D1, and the second appellant D5. On 20th November, 1984, the Crown offered no evidence against D3.

3. Both these cases were consolidated and tried together against the remaining four defendants, who were eventually convicted of the offences as charged.

4. The two appellants now appeal from those convictions.

5. The particulars of the charge of attempting to pervert the course of justice which was against the second appellant alleged that on 30th July, 1984 he knowingly made a false statement, viz., that SHUM Kam-por (P.W.1) recovered a sum of $1,230.00 from his car.

6. The particulars of the charge of conspiracy alleged that both appellants and two others named therein had, on the 30th July, 1984, conspired together to pervert the course of justice by agreeing that P.W.1 should make a false statement to the police investigating an allegation of theft against CHENG Yum-shing, who was D3 in that case.

7. D3 and P.W.1 were colleagues working at the warehouse of the Hong Kong Air Cargo Terminal Ltd. The supervisor of P.W.1 was the second appellant.

8. The first appellant is the younger brother of D3 and, at the material time, was a policeman of three years' standing. D2 is their mother, and D4 their brother-in-law.

9. On 30th July, 1984, P.W.1 lost his wallet shortly after 4 p.m. while working on a fork-lift truck. In the wallet were his driving licences, his identification card and a sum of $1,230.00 of which $1,130.00 was in notes of Hongkong & Shanghai Bank, i.e. one of $500.00; six of $100.00; three of $10.00; and one of $100.00 of the Yau Lee Bank which no longer issues notes. Later the wallet was found in a dustbin, without the money. D3 was one of the suspects and, during a search of his locker, the Security Manager (P.W.3) found $1,130.00, the Yau Lee Bank note being missing. D3 was arrested and handed to the police. As P.W.1 came out of the Airport Police Station after making his statement (Ex. P1), he was accosted by the second appellant, who asked P.W.1 if he wanted D3 to be done in and how much he wanted as a reward to help D3. P.W.1 was introduced to D3's mother and his younger brother, the first appellant who told P.W.1 that if he helped him, he would help him if ever he became involved in something.

10. They went up to the Miramar Restaurant above the departure lounge where, according to the prosecution, an agreement was reached to tell the police that P.W.1 had found the money in his car and withdraw his complaint. The money was fetched by D2, and the other defendants, including D3 who was brought there by the first appellant, participated in the discussion. P.W.1 rang his wife at about 11.30 p.m. asking her to bring six notes of $100.00 and one of the Yau Lee Bank which D2 had not been able to find, and the second appellant had failed to locate despite his telephone calls to some people.

11. The second appellant and P.W.1 then returned to the police station where P.W.1 made another statement on the lines suggested by the second appellant and what had been agreed at the restaurant. This was just after midnight and, at about 2 p.m., the second appellant went to the police station where he made a statement, following which he made a cautioned statement for having abetted P.W.1 to make a false report - Ex. P6 - which was admitted after a voir dire. It was in the nature of a confession. On 15th August the first appellant made a cautioned statement - Ex. P7 - which also was admitted after a voir dire. In it he said that he and his mother had begged P.W.1 for favour in cancelling his report and the latter agreeing, D2 provided the money. He denied taking any part in connection with this case.

12. Both appellants denied ever going to the Miramar Restaurant as alleged by P.W.1. The second appellant maintained that P.W.1 in fact found his money in the brown envelope inside the glove compartment of his car. Both alleged that they were induced into making their statements to the police.

13. Learned Counsel for the appellants submitted that the various inconsistencies in the evidence of P.W.1 and his previous statements to the police make his testimony totally unreliable. Mr. Fok said that a nolle prosequi having later been entered, there were good reasons for him to try to save himself. It is true that under cross-examination, P.W.1 admitted that certain parts of his evidence were not mentioned in his statements, for example, the paper napkin on which the second appellant wrote the details of the missing money, that the first appellant followed him when he telephoned his wife, that at about 11.30 p.m. D2 and D4 left first whereas he had said D1 and D4 were the first to leave. Mr. Fok also commented on his failure to make a complaint to the police at the first opportunity, his failure to frustrate the scheme when he telephoned his wife, and on his replies that he was confused and upset, that he was only a little man and that he thought they would let him go if his wife could find another Yau Lee Bank note.

14. It is quite obvious that these inconsistencies refer at their highest to matters of detail. I do not view them as so material as to effect his credit. This and the other matters concerning his failure to do certain things do not detract from the fact that a report contrary to the first was made. These were matters which, as learned Crown Counsel submitted, were thoroughly canvassed before the learned trial magistrate who had seen and heard the witnesses, including P.W.1's wife (P.W.2) who was criticized for not enquiring of her husband about why the money was required so urgently and late at night. It must be said however that under cross-examination she did say that she asked P.W.1 about the matter the following day. He found in paragraph 16 of his findings:

That reflects the measure of the credibility which he placed on the veracity of P.W.1 and I am not persuaded having considered the matters put forth on this issue that the learned trial magistrate's conclusion can be faulted.

15. Mr. Fok then submitted that the learned trial magistrate was wrong to have ruled the cautioned statement of the second appellant admissible. He said that this was made about an hour after an earlier one in which this appellant had made no mention of having been in the Miramar Restaurant between 8 p.m. and 11 p.m. that night. He said that the confession an hour later, without anything intervening in the meantime to make trim change his mind was beyond belief and incredible. He submitted that in the absence of any good reason either from the police or any other source, it could hardly be said that it would be safe and satisfactory to accept and rule that this statement was made voluntarily, bearing in mind that the police did not have any sufficient evidence at that stage and such an admission was thought to be necessary. This appellant is a man of reasonable education and has worked in the security field for a number of years. In accepting the evidence of the recording officer the learned trial magistrate found him honest and convincing. In so far as the other submission of Mr. Fok is concerned as to a good reason being for this appellant to confess within the hour, I need only refer to what Huggins, J. (as he then was) had to say in YEUNG Tai-kin v R., Criminal Appeal No. 874/72:

"If a statement is proved not have been induced by improper means it is voluntary and if a statement is voluntary it is in law admissible. If there be a discretion not to admit admissible evidence it must be exercised judicially and there was no ground here which could support the rejection of the statement. In this jurisdiction a judge is not entitled to reject a confessional statement made to a police officer simply because it has subsequently been retracted. At least in Hong Kong it is a fallacy to assume that a confession necessarily results from penitence or remorse; very often it results from the shock of being found out and the belief thereby aroused (which may later be displaced) that it is useless to deny the truth."

16. In the circumstances, I am of the opinion that the statement of the second appellant was properly ruled to be admissible. Mr. Fok complains further, however, that no weight should have been placed on it. I do not understand why this should be so. In ruling it admissible the learned trial magistrate had in the process invoked his discretion not to exclude it in the exercise of his residual powers and it was open to him to place such weight upon it as he thought he properly might.

17. With regard to the cautioned statement of the first appellant, it was submitted that his first statement which was not under caution and contained a denial was thrown away, and he was asked to make another to save his own neck. Mr. Fok submitted that his contention that he believed the sergeant in making this statement was highly likely and probable. Now, this appellant is himself a policeman and has been trained in taking such statements, and had received some training in the relevant law during his days at the police training schools. What I find as incredible is that in trying to save his own neck, as Mr. Fok said, he would cast some blame on his own mother. The learned trial magistrate believed the recording officer and I cannot say that he was wrong in that respect. The reason given above about the subsequent use of such a statement applies to this one also.

18. Lastly, Mr. Fok referred to the cross-examination of these appellants during which they were asked whether they would call their respective spouses to testify on their behalf. He said that if the prosecution cannot comment on such a matter by virtue of section 54(1)(b) of the Criminal Procedure Ordinance, they have to be careful about it in cross-examination. It is submitted that because the learned trial magistrate had not intervened to stop that line of cross-examination it indicated that either he did not realise a breach had occurred or that he could rely on it, which was fatal to these convictions. He relied on Reg. v. Naudeer, The Times, May 24, 1984. Learned Crown Counsel said that this matter was not raised before the trial magistrate. He submitted that there was nothing improper in establishing that a witness existed who could in fact give alibi evidence and to undermine such alibi witness. He said that a professional magistrate could be expected to deal with that kind of comment in a proper manner.

19. It is true that the appellants were cross-examined about this matter, the second appellant more than the first. Mr. Fok conceded that had the matter stopped after being told that the spouses were not being called, there would have been no cause to complains. This matter has caused me: some concerns. Section 54(1)(b) of Cap. 221 does say that such failure "shall not be made the subject of any comment by the prosecution". With regard to the first appellant the matter was not pursued any further after he said that his wife was expecting. With the second appellant the cross-examination on this matter was more extensive, during which he was asked whether he had told her if he was in Court, or that he had been suspended from work and it was put to him that he had lied to his wife about the real reason for his suspensions.

20. It seems to me that, even in the absence of any objection from the defence counsel at the trial, the learned trial magistrate should have intervened to stop this line of cross-examination. But no comment was made subsequently on the failure of the appellants to call their wives and there is certainly nothing in the learned trial magistrate's statement of findings to suggest that he had taken this failure into account or attached any weight to it. The trial was before a professional magistrate who is the judge of law and fact; on the other hand, with a jury such a situation would have called for a sufficiently clear direction in order to remedy the breach as is clear from the case of Naudeer where the counsel for the prosecution had made an adverse comment upon a defendant's failure to call his wife to give evidence on behalf of his defence. It is however recognized that there may be exceptional circumstances where a judge himself may exercise his discretion to make such a comment. However, the appellants were represented at the trial and although the learned trial magistrate did not specifically say that he had disabused his mind of this part of the evidence, he does not seem to have relied on it in any way in reaching his conclusions. Considering the extent of that cross-examination I do not think that any prejudice was done to the case of the appellants which had received exhaustive and careful consideration.

21. For these reasons, I do not find any merit in the appeals of these two defendants, and they are dismissed.