LIU SUNG WAI v. HKSAR

FACC No. 2 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACC No.14 OF 1997)

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J U D G M E N T

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Chief Justice Li:

1. I have read the judgment of Mr Justice Bokhary PJ and agree with it. For the reasons he gives, I would allow the appeal so as to quash all the convictions, with no order as to costs.

Mr Justice Litton PJ:

2. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Ching PJ:

3. I agree with the judgment about to be delivered by Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

4. This case concerns the obtaining of evidence abroad for use in criminal proceedings in Hong Kong, which is a matter governed by Part VIIIA of the Evidence Ordinance, Cap.8. Of the six charges which the appellant faced, five, being the 2nd to 6th charges, could not be proved without the evidence so obtained. How such evidence affected the 1st charge is something to which I will come later.

5. All six charges were laid under the Theft Ordinance, Cap.210. The first ("the entry charge") was of procuring an entry in the record of a bank by deception, contrary to s.18D. The other five charges ("the property charges") were of obtaining property by deception, contrary to s.17(1).

6. The trial took place before Deputy Judge Day in the District Court. On 16 December 1996 the judge convicted the appellant on all six charges, and sentenced him to a total of three years' imprisonment.

7. On 15 May 1998 the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA) refused the appellant leave to appeal against conviction. And on 27 May 1998 that court refused to certify the involvement of any point of law of great and general importance. Whereupon, on 25 June 1998, the appellant went to the Appeal Committee, which certified the involvement of three such points and gave the appellant leave to appeal against conviction to this Court. Such leave was given upon those three points and also on the basis of a reasonably arguable case of substantial and grave injustice having been done.

Three certified points

8. All three certified points concern evidence obtained abroad for the purpose of criminal proceedings here. They are the points raised by the following three questions.

9. The first two questions are both predicated on the premise - asserted by the appellant but disputed by the respondent - that the foreign court has not made any order pursuant to the relevant letter of request to it from the Hong Kong court. On that premise: the first question is whether the evidence obtained abroad was admissible here; and the second question is whether such evidence constituted a "deposition" within the meaning of Part VIIIA of the Evidence Ordinance. The second question, which was formulated by my brother Litton in the Appeal Committee, is really a more focused way of putting the first one. That is because, as one sees from s.77F(1) of the Evidence Ordinance, it is as a "deposition ... received by the Registrar pursuant to a letter of request" that evidence obtained abroad is admissible in criminal proceedings here.

10. As for the third question, it arises in these circumstances. The lawyer who had been heavily engaged in the preparation of the prosecution's case went to the United States and acted as one of the two examiners before whom prosecution evidence was taken there on two occasions. At the appellant's trial before Deputy Judge Day, this lawyer, who had acted as one of the two examiners, went into the witness-box as a prosecution witness and gave evidence about the second examination. Thereafter he signed the re-re-re-re-amended charge sheet against the appellant. The question is whether those circumstances amounted to a material irregularity.

The entry charge

11. Turning to the charges, I begin by noting the particulars to the entry charge. These read:

" LIU Sung-wai, on or about the 6th day of March 1995, in Hong Kong, dishonestly with a view to gain for yourself or another or with intent to cause loss to another, procured the making of an entry in the record of a bank, namely a debit in the sum of $500,000 Hong Kong currency to account numbered 20-02-01490-5 in the name of Tin Chung United Transportation Company with the Chekiang First Bank Limited by deception, namely by falsely representing:

(i) that you would obtain a Letter of Credit in the sum of $1,998,196.80 United States of America currency in favour of Tin Chung United Transportation Company, Hong Kong;

(ii) that a cheque numbered 000034 and dated 28th March 1995 in the sum of $500,000 Hong Kong currency, drawn on Tai Lee Jewellery Hong account numbered 835-818-768491-001 with the Wing Hang Bank, would be a good and valid order, if presented for payment on or after the date thereon."

12. That debit entry resulted from the clearing of a cheque in favour of the appellant. He got that cheque as the first instalment of the payment he was to receive for obtaining for Tin Chung a letter of credit such as the one mentioned. The Wing Hang Bank cheque was one which he had caused another party to give as security for repayment of that instalment if he failed to obtain such a letter of credit for Tin Chung. This he failed to do. He did obtain two letters of credit; and they totalled $1,998,196.80. But they were the two letters of credit mentioned in the 2nd charge. And the prosecution alleged that they were false. The Wing Hang Bank cheque proved worthless.

13. The appellant's evidence on these matters was to this effect. He believed that he would be able to obtain such a letter of credit for Tin Chung. And he also believed that the Wing Hang Bank cheque was good. The judge, however, did not accept any of that. He felt irresistibly drawn to the inference that the appellant had not really believed either of those two things.

The property charges

14. I will illustrate the nature of the property charges by noting the particulars to the first of them, the 2nd charge. These particulars read:

" LIU Sung-wai, on the 6th day of April 1995, in Hong Kong, dishonestly obtained from LING Wan-shun $400,000 Hong Kong currency, with the intention of permanently depriving the said LING Wan-shun thereof, by deception, namely by falsely representing:

(i) that a Dah Sing Bank cheque numbered 014228 and dated 20th of April 1995, in the sum of $570,000 Hong Kong currency drawn on account numbered 4130301765 with the aforesaid Bank would be a good and valid order, if presented for payment on or after the date thereon;

(ii) that the two Letters of Credit dated 22nd and 27th of March 1995, bearing serial numbers C LSA9503225 and C LSA9503226 in the sums of $314,238 United States of America currency and $1,683,958.80 United States of America currency respectively, were issued by the Tokai Bank, Los Angeles."

15. The nature of the prosecution's case on the property charges and how it depended on evidence obtained abroad is outlined in this succinct passage from the Court of Appeal's judgment delivered by Stuart-Moore JA:

"In essence, the prosecution alleged that two businessmen (the victims), who knew very little about letters of credit, were introduced to the [appellant] as someone who would make arrangements for these in order to facilitate payments for equipment on an overseas contract. The [appellant's] arrangement fee was ten per cent of the value of the letters of credit, payable by instalments.

Put very simply, the prosecution's case [on the property charges] was that the American banks, which the [appellant] had said would be issuing letters of credit, never did so. However, the [appellant] caused what purported to be genuine copies of letters of credit to be faxed to the victims. These faxed copies (exhibits P4, 5, 9 and 11) led the victims to believe that the letters of credit existed, which resulted in the [appellant] being paid the instalments due under the arrangement.

In order to prove their case, it was essential for the prosecution to prove that the American letters of credit were false. For this purpose, the prosecution had evidence taken in Los Angeles by way of deposition under the provisions of section 77E of the Evidence Ordinance, Cap.8.

The main thrust to the grounds of appeal relates to procedural complaints about the way in which the depositions came to be taken from Anne Elder (PW11) of the Tokai Bank as regards exhibits P4 and 5, and Marissa Bautista (PW12) of the Standard Chartered Bank (acting for First Interstate Bank) in relation to exhibits P9 and 11."

16. At the trial the appellant said that he believed that the letters of credit were genuine. He did not accept that they were in fact false. So such falsity had to be proved. And he challenged the admissibility of the evidence thereof obtained abroad. This challenge failed in the courts below. And it now forms the essence of the present appeal.

How evidence is obtained abroad for use in criminal proceedings in Hong Kong

17. I have already noted that the obtaining of evidence abroad for use in criminal proceedings in Hong Kong is governed by Part VIIIA of the Evidence Ordinance. That Part consists of ss 77E to 77G. As one sees from s.77E(1), the Hong Kong court's power in this regard is to "order that a letter of request shall be issued and transmitted in such manner as [it] may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong requesting such court or tribunal to assist in obtaining evidence for the purpose of [Hong Kong] criminal proceedings."

18. Section 77E(4) provides that the letter of request "shall be issued by the Registrar of the High Court (in this Part referred to as 'the Registrar') under the seal of the High Court". And, as I have already noted, s.77F(1) provides that it is as a "deposition ... received by the Registrar pursuant to a letter of request" that evidence obtained abroad is admissible in criminal proceedings here.

The nature of letters of request

19. As to the nature of letters of request (whether civil or criminal), it suffices for the purpose of the present appeal to say this much. Letters of request are aptly named, for such a letter is one by which a court communicates to another court its request for that other court's assistance. The requesting court seeks, for use within its own jurisdiction, evidence to be taken within the requested court's jurisdiction. And if the appropriate request is made and met, then such evidence will be obtained: (i) under the auspices of the requested court; (ii) without any violation of or affront to the requested state's sovereignty; and (iii) by means of the requested court's facilities including, if necessary, its coercive powers.

How the prosecution went about taking evidence abroad in the present case

20. In the present case the prosecution went about taking evidence abroad in the following way.

21. The appellant was first charged with the six offences on 8 December 1995. On 15 January 1996 the prosecution, upon its ex parte application, obtained an order from Burrell J which ordered, pursuant to s.77E(1) of the Evidence Ordinance, that a letter of request be issued to an American court, namely the United States District Court for the Central District of California. The request was for the American court's order that the responsible officers of the American banks in question, namely the Tokai Bank of California in Los Angeles and the First Interstate Bank of California also in Los Angeles, give evidence about the letters of credit alleged by the prosecution to be false.

22. Pursuant to Burrell J's order, a letter of request was, on the same day, issued by the Registrar under the seal of the High Court. The transmission to the American court of the letter of request was left to the prosecution, which in due course so transmitted the same.

23. On 28 February 1996, the American court (Magistrate Judge Wistrich sitting in the United States District Court for the Central District of California) made the order requested, appointing two persons as joint commissioners to obtain the evidence requested. One of the persons so appointed was Ms Lisa Feldman, an Assistant United States Attorney. The other was Mr Richard Turnbull, then a Senior Assistant Crown Prosecutor in the Attorney General's Chambers here in Hong Kong. He is the lawyer to whom the third certified point relates.

24. On 1 March 1996 in Los Angeles the joint commissioners took the requested evidence: being that of Ms Anne Elder and Ms Marissa Bautista, the two witnesses mentioned in the passage which I have quoted from the Court of Appeal's judgment.

25. Back in Hong Kong the appellant's trial commenced before HH Judge Chung in the District Court on 9 July 1996. The deposition containing Ms Elder and Ms Bautista's evidence was tendered. But on 16 July 1996 it was excluded under s.77F(1)(d) of the Evidence Ordinance for unfairness to the defence. As the Court of Appeal put it, this was "because of what may neutrally be termed an 'oversight' by the prosecution in failing to notify the defence of the procedure they were adopting."

26. On 18 July 1996 Judge Chung ordered that the appellant's trial start afresh before another judge. The fresh trial was initially fixed to commence on 30 September 1996 but was later put back to commence on 3 December 1996.

27. Meanwhile the prosecution set about obtaining again the foreign evidence which it had earlier obtained in fatally flawed circumstances. To this end, it went before Wong J ex parte on 24 July 1996 and obtained from him an order identical to the one which it had obtained from Burrell J on 15 January 1996. And on 25 July 1996, pursuant to Wong J's order of the day before, the Registrar duly issued a letter of request identical to the one which he had issued on 15 January 1996 pursuant to Burrell J's order of that date.

28. I pause to note the following for the sake of completeness. The criminal proceedings in the District Court were the same proceedings throughout, both before Judge Chung and before Deputy Judge Day, namely, DCCC No. 100092 of 1995. But Wong J's order and the letter of request pursuant thereto were made and issued in proceedings separate from the proceedings in which Burrell J's order and the letter of request pursuant to it had been made and issued. Burrell J's order and the letter of request pursuant to it were made and issued in Miscellaneous Proceedings No. 134 of 1996. Wong J's order and the letter of request pursuant to it were made and issued in Miscellaneous Proceedings No. 2408 of 1996.

29. Just as Burrell J's order had done, Wong J's order left it to the prosecution to transmit the letter of request to the requested court. But this time no transmission was made. Just as the first request had been, the second one was a request for the American court's order that the responsible officers of the American banks in question give evidence, within the American court's jurisdiction, about the impugned letters of credit. But the second request never reached the American court, so it made no order pursuant thereto. As one sees from its judgment, the Court of Appeal was under the impression that what it called the "American authorities in Los Angeles" had, in reliance on what it called Magistrate Judge Wistrich's "continuing order" of 28 February 1996, made a fresh order in the same terms. In truth, however, nothing of that kind happened. Deputy Judge Day, it should be added in fairness to him, may well have been given erroneously to believe that the American court had made a second order.

30. What really happened amounted to no more than this. Ms Feldman and Mr Turnbull simply got hold of Ms Elder and Ms Bautista and, on 18 October 1996, got them to confirm what they had earlier said. In addition Ms Elder was questioned on a further matter.

The relevant letter of request

31. Counsel for the respondent invites this Court to form the view, simply by looking at Magistrate Judge Wistrich's order of 28 February 1996, that under American (presumably federal) law, such order authorised the second examination in Los Angeles even without any further American order. I do not see how a Hong Kong court can form such a view in the absence of properly adduced evidence of American federal law in support of it. No such evidence was adduced in this case.

32. In any event, I am of the view that the relevant letter of request for present purposes is the one relevant in the eyes of the Hong Kong court which requested the evidence in question. That court is the High Court, which is the court having responsibility under our law for obtaining evidence abroad for use in criminal proceedings here.

33. Plainly, therefore, the relevant letter of request is the second one. For there would have been no basis for its issuance if the requesting court had considered the first letter of request still extant. And it is equally plain that if an admissible deposition from the two American witnesses is to be found, it would have to be found in the record of the evidence which they gave on the latter occasion. And that is so even though the evidence which they gave on that occasion incorporated the evidence which they had given on the earlier occasion. For their earlier evidence had been, by reason of the circumstances under which the same had been taken, ruled inadmissible. So the earlier evidence was a dead letter unless revitalised by what happened on the later occasion.

Was this a deposition?

34. But was what happened on the later occasion capable of generating a deposition within the meaning of Part VIIIA of the Evidence Ordinance?

35. In my judgment, the answer is "No". To be a deposition within that meaning it would, as we have seen from s.77F(1) of the Evidence Ordinance, have to have been received "pursuant to a letter of request". It was not. It could not have been. The relevant letter of request had not even been communicated to the court for which it was meant.

36. Section 77F(5) of the Evidence Ordinance provides that:

"A certificate purporting to be signed by the Registrar and certifying that any deposition to which such certificate is attached, together with any document or thing exhibited or annexed thereto (if any), has been received by him pursuant to a letter of request issued by him under section 77E in respect of any criminal proceedings referred to in the certificate, shall on its production without further proof be admitted in those criminal proceedings as conclusive evidence of the facts contained therein."

There is in existence a document dated 27 November 1996 which the prosecution had put before the Court of Appeal as a s.77F(5) certificate in respect of the evidence taken at the second examination in Los Angeles. Counsel for the appellant invited the Court of Appeal to give him an opportunity to apply for an order of certiorari to quash that purported certificate: if convenient by sitting as a Full Bench of the High Court to entertain that application there and then.

37. The Court of Appeal adjourned for a sight of the original certificate. It was then discovered that the product of the second examination in Los Angeles was not annexed to the certificate. From that moment and for that reason, the prosecution abandoned reliance on that certificate. In any event, the facts which have now emerged leave no room for allowing such a certificate to remain extant.

38. For the foregoing reasons, the appellant has made good his case on the first two certified points. The evidence of the two American witnesses did not constitute a deposition within the meaning of Part VIIIA of the Evidence Ordinance, and was therefore inadmissible. So there was no evidence that the impugned letters of credit were false. And on this basis alone there can be no doubt that the convictions on the property charges must be quashed since those charges could not be proved without evidence of such falsity.

39. What about the entry charge? The evidence from America was relevant to the appellant's honesty even though not essential in proof of this charge. The finding that the impugned letters of credit were false must have coloured the judge's view of the appellant's credit and credibility. In my judgment, the misreception of the evidence of the falsity of the impugned letters of credit worked substantial and grave injustice against the appellant even on the entry charge. So the conviction thereon, too, must be quashed as a consequence - albeit a less immediate one - of such misreception.

Notice to the appellant of the second examination

40. There is a dispute as to whether the appellant had been given adequate notice of the second examination in Los Angeles. But it is unnecessary for me to resolve this dispute. As I have already said, I have come to the conclusion that the product of that examination was not a deposition within the meaning of Part VIIIA of the Evidence Ordinance.

This conclusion is independent of any question of whether the appellant had been given adequate notice of that examination.

41. Counsel for the respondent was prepared to argue that no miscarriage of justice would have occurred if the only flaw in the case was a lack of adequate notice to the appellant of the second examination in Los Angeles. Rightly he was not prepared to argue that no miscarriage of justice would have occurred if, independently of any question of notice, the product of that examination was not a deposition within the meaning of Part VIIIA of the Evidence Ordinance.

The multiple roles played by Mr Turnbull

42. This appeal must therefore be disposed of in the appellant's favour whatever view is taken on the third certified point. And in all the circumstances it is better to say no more than the following in regard to the multiple roles played by Mr Turnbull.

43. First of all, fairness to Mr Turnbull calls for an express acknowledgment of the fact that he obviously believed that it was in order for him to do as he did: for everything which he did was done openly.

A course never to be repeated

44. That having been said, I feel bound to say that the course which he took is not a course to be repeated. In particular it should be clearly understood that where a witness or witnesses are to be examined abroad for the purpose of obtaining evidence for use in criminal proceedings in Hong Kong no one should seek or accept appointment as an examiner, whether sole or joint, unless he or she is independent of both the prosecution and the defence. As to the fact that Mr Turnbull's appointment as one of the two examiners was by the order of the American court, it should be recognized that, for all we know, the American court may have thought that the appointment sought was odd or worse, and acceded to it only in the mistaken belief that it was acceptable in Hong Kong.

Result

45. In the result, I would allow the appeal so as to quash all the convictions. I would make no order as to costs. All of the cheques which the appellant gave were dishonoured. By giving those cheques he

brought suspicion upon himself, so as to make it appropriate to withold costs from him despite his success.

Sir Anthony Mason NPJ:

46. I agree with Mr Justice Bokhary PJ.