HKSAR v. SIT KAM TAI

HCMA 1355/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1355/2000

(On appeal from of ESCC 1739/2000)

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JUDGMENT

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Introduction

On 6th December 2000 the Appellant was convicted after trial on two charges of Conspiracy to offer an advantage to a public servant, contrary to sections 4(1)(c) & 12(1) of the Prevention to Bribery Ordinance, Cap. 201 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. He was sentenced to 10 months imprisonment on each charge, 5 months on each charge to run consecutively, making a total of 15 months imprisonment.

He now appeals against conviction.

Brief facts

2. The Appellant was a principal in Shing Shun Engineering Factory ("Shing Shun"), which had dealings with the Housing Department. The prosecution case was that the appellant was a party to an agreement on two occasions to offer $5,000 by way of cheques to a public servant ("Stella") for Stella's assisting or having assisted Shing Shun in its dealings with the Housing Department. The first cheque was handed to Stella by an employee of Shing Shun ("Irene") and the second by another employee ("Donna"). The appellant did not have any lawful authority or reasonable excuse for doing so.

Grounds of appeal

3. Mr. Andrew Bruce, SC, leading counsel for the appellant advanced 6 grounds of appeal, with particular emphasis on Grounds 2 and 3:

(1) failure to properly evaluate the prosecution witnesses;

(2) "pre-trial admission" of Stella;

(3) evidence of terms of immunity;

(4) unwarranted speculation by the learned magistrate;

(5) irrelevant matters taken into account; and

(6) treatment of accomplice witnesses.

Ground 2 - "Pre-trial admission"

4. Mr. Bruce submitted that the learned magistrate had wrongly taken into account what he described as "pre-trial admission" of Stella.

5. Although the appellant faced two charges, they were in fact the 3rd and 4th Charges on the charge sheet, the 1st and 2nd charges were against Stella for accepting advantage as a public servant. Stella pleaded guilty to the charges and gave evidence for the prosecution in the trial of the appellant.

6. There is no dispute that the learned magistrate had taken into account the so-called "pre-trial admission" of Stella (p.7 of the Statement of Findings at p.29 of the bundle):

"Her testimony clearly contradicts her pre-trial admission of the prosecution case against her for "tipping off Irene, a clerk of Shing Shun, with other tenderers' information including bidding prices." She is trying to scale down her involvement in the illicit scheme to get a lighter sentence. I reject Stella's testimony where it is inconsistent with the counterparts of Irene and Donna."

When using the term "pre-trial admission" the learned magistrate appeared to be referring to the Summary of Facts upon which Stella had pleaded guilty to the 1st and 2nd charge.

7. Mr. Bruce submitted that the learned magistrate wrongly took into account such "pre-trial admission". The admission was never tendered and could not be evidence against the appellant. Stella was never cross-examined on such admission. In fact the learned magistrate mentioned his reliance on the pre-trial admission for the first time when he was considering the verdict, thus not availing Mr. Haynes, who was appearing for the appellant during the trial, a chance to cross-examine Stella on "previous inconsistent statement" and/or to make submissions. Further, Mr. Bruce complained that the theory of the learned magistrate (i.e. scaling down of involvement) was entirely speculative as Stella was never given a chance to answer this criticism. Such theory was only one of the possibilities and it was also possible that her "pre-trial admissions" were untrue. Lastly, Mr. Bruce pointed out that for a defendant who was awaiting sentence to testify before the sentencing magistrate in a manner apparently inconsistent with the "pre-trial admission" was hardly calculating to reduce the sentence. Mr. Bruce submitted that the approach by the learned magistrate to the issue of the credibility of Stella was flawed.

8. Mr. McWalters conceded that it was prima facie a material procedural error for the learned magistrate to have taken into account the "pre-trial admission". He submitted, however, that since it was an admitted fact that Stella had pleaded guilty to the 1st and 2nd charge during the trial, it was an admission for the purpose of the appellant's trial that Stella had admitted to:

(i) being a public servant;

(ii) without lawful authority or reasonable excuse,

(iii) accept an advantage being a gift of $5,000,

(iv) as a reward for her having assisted Shing Shun Engineering Factory in the transaction of business with the Housing Department.

He submitted that that was evidence in the trial and the learned magistrate was entitled to use it for the purpose of assessing the credibility of Stella. Mr. McWalters conceded that the learned magistrate was not entitled to go to the Summary of Facts where Stella admitted to "tipping off...etc." He contended that the passage cited was no more than factual allegation behind element (iv) above. The learned magistrate was entitled to use Stella's admission of element (iv). Since there was no meaningful distinction between the statement in the Summary of Facts and this element of the offence, the learned magistrate would have undoubtedly come to the same conclusion (that Stella was trying to scale down her involvement) had he used element (iv) instead. Mr. McWalters relied on the Court of Final Appeal's judgment in Ching Kwok-yin v HKSAR [2000] 4HKC 164 and submitted that the learned magistrate would have come to the same conclusion notwithstanding the error.

9. It is quite clear that the learned magistrate had wrongly used the "pre-trial admission" of Stella as complained by the appellant. An important issue at trial was whether the appellant knew the purpose of the payments and whether he had agreed to them as co-conspirator. The appellant was not present when the two payments were made. His evidence that he did not know of the status of the recipient of the payments clashed with those of Irene and Donna. Stella provided evidence of payments made but also contradicted the evidence of Irene and Donna. It does appear the only reason the learned magistrate gave for preferring Irene and Donna's evidence over Stella where there were conflicts was upon his theory of Stella "trying to scale down" her involvement.

10. In Ching Kwok-yin v HKSAR [supra], the Court of Final Appeal confirmed that since there was no equivalent of section 83 of the Criminal Procedure Ordinance in the Magistrates Ordinance, there was no proviso which requires that the appellant should be dismissed if no miscarriage of justice actually occurred. The Court of Final Appeal held that a judge, on appeal from a magistrate, had to decide whether an error had occurred in the magistracy that made it just that the appeal should be allowed and conviction set aside. The error could have been immaterial if the magistrate would undoubtedly have entered the same verdict notwithstanding the error.

11. Having considered the circumstance of the case and the importance of the credibility of the various witnesses, in particular conflicts between prosecution witnesses, I cannot say that had the learned magistrate not committed the error of relying on the "pre-trial admission" of Stella he would have undoubtedly entered the same verdict as I do not know how he would have resolved those conflicts in the prosecution case.

Ground 3 - evidence of terms of immunity

12. It was an agreed fact that Irene and Donna testified under immunity. There is no dispute that the terms of the immunity was never disclosed to the learned magistrate. Mr. McWalters conceded that he was not in a position to contradict the defence allegation that they were not served with the respective immunity.

13. Mr. Bruce referred to R v McDonald (1983) 77 Cr App R 196 to support his contention that the witness much be shown to be aware of the terms of the document; and to R v Hui Sing-keung Cr App 468/86, R v Tsui Lai-ying [1987] HKLR 857, and R v Hwa Tak-ming [1996] 2 HKC 62 that the terms of the immunity must be disclosed to the trier of facts. Mr. Bruce submitted that there was no evidence that either Irene or Donna understood the effect of their undertakings. The terms of their immunity were relevant in the learned magistrate's assessment of these witnesses. Just saying in the admitted facts that they were testifying under immunity was not enough. Further, although section 60 of Criminal Procedure Ordinance has abolished the requirement to give the corroboration warning formerly required of the court, the dangers inherent in these accomplice witnesses has not gone away. The evidence of Irene and Donna were of vital importance to the prosecution case.

14. Mr. McWalter only accepted that it is "a best practice" to have the terms of the immunity made known to the court. He thought it desirable to take the witness through the gist of the immunity but he did not accept that being a 'legal requirement'. He contended that the learned magistrate well knew that both witnesses were testifying under immunity. In an adversarial system, it is up to defence counsel to decide whether to explore the terms of the immunity.

15. There is certainly nothing before the learned magistrate to indicate that either Irene or Donna understood the terms of the immunity. In R. v Tsui Lai-ying [supra], a case involving offences in relation to dangerous drug, the Court of Appeal said (at page 8730:

"It is clear beyond peradventure that in cases like this the accomplice should be presented to the Court warts and all. The defence is entitled to know everything about him, the terms of the immunity and any matters surrounding it which could affect the credibility of his evidence."

16. In R v Hwa Tak Ming [supra], Duffy J said (at page 63):

" His second ground of appeal was that it transpired in the course of the cross-examination of PW1 that she had been given an immunity. The Crown had not adduced any evidence of that. At no stage throughout the rest of the trial, despite many requests, could the Crown produce a copy of this immunity. This was an irregularity in the course of these proceedings. To withhold the terms of an immunity granted to such a witness is to prevent the defence from cross-examining the witness to the fullest extent on the benefits accruing to that witness from giving evidence for he prosecution. This is particularly significant when she is the only prosecution witness to incriminate the appellant. I did not think such a matter could be overlooked...."

17. The law, in my view, does not require the prosecution to physically tender the immunity document to the trial judge/magistrate. Nevertheless, the contents of the terms of the immunity must be made known to the court as they are relevant to the assessment of the credibility of such tainted witnesses. The witness testifying under immunity should also be shown that he/she understood the terms and his/her undertaking. The failure to disclose the terms of the immunity to the learned magistrate amounted to an irregularity. The present case differs from what had transpired in R v Hwa Tak Ming [supra] in that it was an admitted fact that Irene and Donna were testifying under immunity. However, since the respondent was not in a position to contradict the defence contention that the terms of the immunity was never actually communicated to them, Mr. Haynes was effectively deprived of the opportunity to cross-examine these two witnesses, quite apart from the point that the learned magistrate could not take into account the extent of the immunity in his evaluation of the undoubted 'accomplice' evidence. Applying the test propounded in Ching Kwok-yin v HKSAR (supra), on this ground alone I am not convinced that the learned magistrate would have undoubtedly entered the same verdict had there been no such irregularity. Coupled with the error under Ground 2, I certainly cannot say that the result would have been the same notwithstanding the irregularity.

Other grounds of appeal (Ground 1,4,5,6)

18. Mr. Bruce in his written submission listed various instances where he alleged the learned magistrate had made improper speculations, taking irrelevant matters into account. He also complained that the learned magistrate failed to evaluate the evidence of Irene and Donna with caution contrary to what he said he would do.

19. For the purpose of this appeal, it is not necessary for me to set all those allegations out. Mr. Bruce had quite properly conceded that those incidents, standing alone, would not have been seriously enough to warrant a success on appeal. He, however, was relying on their accumulative effect, and his main grounds of appeal were Grounds 2 and 3.

20. Since I am unable to say that the learned magistrate would have undoubtedly convicted the appellant had he not committed the error and irregularity under Grounds 2 and 3, the convictions are unsafe and unsatisfactory and the appeal is allowed, with both convictions quashed and sentences set aside.