HKSAR v. TSANG YAU CHOO

HCMA 774/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 774 OF 2008

(ON APPEAL FROM ESCC 3460/2006)

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J U D G M E N T

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1.  This is an appeal by way of case stated.  The Respondent had been prosecuted for an offence contrary to section 8 of the Prevention of Bribery Ordinance.  The evidence against him had consisted of what he had said in two interviews given to the ICAC.  The admissibility of those records of interview was challenged and the challenges were mounted on a factual basis of inducements held out and the like.  Those objections to admissibility are listed in the case stated.

2.  What occurred at the close of the prosecution case on the special issue was that the Respondent, in the capable hands of leading counsel, was about to call some evidence.  The magistrate intervened and suggested that there had been an inducement.

3.  It arose in this way, that the interviews were about an alleged loan of $50,000 that had been made by the Respondent to a public officer serving in the Customs & Excise Department, a department with whom he had business dealings.  The arrest and interviews proceeded on the basis of suspicion of a section 4 offence, namely that there was a quid pro quo for the $50,000 loan.  As I have already related, in the end he was prosecuted under section 8, which did not require proof of the quid pro quo.

4.  The magistrate found that there was an inducement in the way that the questioning had proceeded.  He did not decide this case on the basis of it being unfair that the caution had been in terms of a section 4 offence and the subsequent prosecution had been for a section 8 offence.  He specifically disavowed that in the case stated. 

5.  What this court therefore has to look at, at the invitation of the appellant, was whether there was any evidence before the court upon which a reasonable magistrate could find that there had been an inducement.  The conclusion I come to on the material before me - and today I have actually seen the interview itself - is that there is no such evidence.

6.  I am not asked in this case to interpret, decide or deal with matters of principle.  It is a case-sensitive question that is asked in relation to the specific evidence.  It seems to me that to say that merely asking questions about what the relationship was between the Respondent and the public officer in question, the nature of the business and the like, which occurs in the transcript of the interview in the first 300 or so counters before the loan is dealt with, cannot on any basis, or any sensible basis, be viewed as inducing the man to give the answer that he had in fact made the loan in question. 

7.  There was one specific matter upon which the magistrate placed reliance, which is to be found at counter 133.  The officer is speaking at this point to explain the mechanics of the video recording.  It was the usual explanation with which these courts are familiar.  But at 133 he said: “Of course it”, referring to the tape, “need not be produced if the need does not arise.”  The magistrate took that, (and the Respondent has sought to argue) that this has to be read in a way that implies that the ICAC would not rely on the interview if they did not prosecute under section 4.”  The words simply do not mean what the magistrate contended them to mean either by expressly or by implication.

8.  So the resolution of the issue in this case stated is in favour of the Appellant.  The questions asked by the magistrate, namely, “Did he err in finding there was no case to answer,” the answer is, “Yes, he did.”  “Did he therefore err in acquitting the Respondent?”  The answer to the first question being, Yes, it follows the answer to the second question, is yes.  That disposes of the issue in the case.  It was not a difficult decision.

9.  The more difficult decision arises as to what the disposal should now be.  This brings me to the unfortunate topic of delay in appeals by way of case stated.  The fact is that the date of the alleged offence here was in January of 2005.  The arrest was made in May of 2005.  It then took 19 months, with legal advice taken, before the Respondent was charged.  That delay of 19 months, on the face of it - and I have not had this investigated in detail before me so I am going to be careful in what I say - but on the face of it that delay of 19 months is much much too long. 

10.  The delay that occurred there was compounded because after the acquittal the Department of Justice took 10 months to draft the case stated.  Again that is much too long.  As has been said in interchange between Bench and Bar in the course of the hearing today, appeals adopting the alternative procedure under section 113 of the magistrates ordinance proceed to a timetable that has much more dispatch.  No one would particularly commend that side of the appeals as being particularly speedy, but at least they go at an acceptable rate.  It seems to me when the appeals arise by way of case stated there is a complete lack of urgency displayed by those involved in the process. 

11.  This case is now extremely stale.  I have got to balance the interest of society in seeing people charged with the significant crime being prosecuted, and punished if that should be necessary, against how the delay, taken with other matters which I shall come to, impact upon the individual Respondent. 

12.  One can identify four factors which militate against sending the case back to the magistracy now for the case to be tried.  Firstly, the nature of the case itself.  It is accepted that the loan that was made was made to an officer who had, by a matter of years, ceased to have any dealings with the Respondent or the companies with which he was associated.  Mr McWalters S.C. very fairly acknowledges that as section 8 cases go this was not a particularly bad case.  Trying to be realistic about it, it would be highly unlikely that if the case did go back and it resulted in a conviction that the Respondent would receive an immediate custodial sentence.  So the significance of the case to society and to him is the first factor I weigh. 

13.  The second factor is the significant delay I have already dealt with.

14.  The third factor is this, that I cannot shut my eyes entirely to the way in which this case stated arose.  It was not the Respondent taking a bad point below.  This was a point taken by the magistrate.  I do not shy from saying it was a bad point.  So in effect the Respondent was put in a difficult position.  If he had been left to carry on with the case in the way in which he had intended and called his evidence, given the attitude of the magistrate to the facts as displayed in his case stated, the result would probably have been an acquittal back in 2007, which would not have been amenable to appeal.  So that is a factor I would take into account.

15.  The final factor is this, that if there is a retrial now there is bound to be a prima facie case, I would have thought, on the special issue.  That would engage factual issues.  There were dealings between members of the legal profession and ICAC officers which would need to be resolved.  Those matters are now thoroughly stale and the parties would be seeking to cross-examine about matters of detail, I suspect, which are four years old.  Putting that into the scales with the other points I have mentioned I have come to the conclusion that justice does not require me to send this case back to the Magistrates’ Court.