ATTORNEY GENERAL v. CHAN WAI LIM

IN THE COURT OF APPEAL

1987, No. 21
(Civil)

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. The Appellant is one of five persons charged with criminal conspiracy in connection with the running of horses in events organised by the Royal Hong Kong Jockey Club. Together with the other four Defendants he has elected to have the charge heard first by a magistrate at a preliminary inquiry. That is their right under Section 80c of the Magistrates Ordinance.

2. One of the witness' statements served in compliance with the committal procedure was a statement by one Mr. Y.L. Yang. The Appellant has notified the Magistrate and the Attorney General that he desires Mr. Yang to be called as a witness at the inquiry. That is also his right under the Ordinance.

3. Mr. Yang, many people may recall, was convicted in September last year on his own plea of six counts of conspiracy to cheat at gambling. That cheating was connected also with horse racing organised by the Royal Hong Kong Jockey Club. Mr. Yang was fined a substantial sum of money and sentenced to a term of imprisonment, although the term was suspended. One factor which the trial judge took into account in passing sentence was that Mr. Yang had undertaken to assist the Crown in its intended prosecution of other persons involved.

4. Mr. Yang now lives in Jamaica, where he has business interests, but appears to spend a great deal of time in the United States of America, both for business reasons and to attend a specialist cancer clinic near Los Angeles. At Mr. Yang's trial, the judge accepted that Mr. Yang was a very sick man. In an interview with a Mr. Anderson, who is an officer of the Independent Commission Against Corruption and who saw him in America earlier this year, Mr. Yang gave his medical condition as the reason for declining to come to Hong Kong to give evidence at the inquiry concerning the Appellant and the other four charged with him. Mr. Yang's doctor had advised against stressful situations and long distance travel Mr. Yang did however express his willingness to give evidence outside Hong Kong.

5. The Attorney General therefore applied for Letters of Request, under Section 77E of the Evidence Ordinance, with a view to Mr. Yang's being examined on oath in California. His application was opposed by the Appellant and those charged with him. The hearing came before Jones J. on the 27th February. The judge concluded from the evidence before him, principally that of the ICAC officer, firstly, that Mr. Yang was a vital witness to the inquiry, and secondly, that it was abundantly clear that Mr. Yang would not return to-Hong Kong because of the medical advice that he had received. The judge appreciated the cost of taking evidence on commission, but even so he had no hesitation in acceding to the Attorney's application.

6. The Appellant, by his amended notice of appeal, asks us to set aside that decision: or to stay it upon conditions. The notice contains four grounds:-

"1. There is no evidence or no admissible evidence that Y.L. Yang is refusing or unwilling to give evidence in Hong Kong;

2(a) The two letters from Howard N. Allen (that is Mr. Yang’s doctor in America) are not properly attested to and should not be received by the Court;

(b) In any event, Howard N. Allen did not exhibit any credentials of expertise in an area in which he purported to express an opinion and therefore the said two letters should not have been received by the Court.

3. The material part of the evidence of Peter Winston Anderson is inadmissible in law in that it was hearsay and should have been excluded by the Court;

4. There is no evidence to show that Y.L. Yang is willing and/or physically capable of giving evidence on commission."

7. Mr. Lee, who appears for the Appellant, no longer maintains that the evidence of Mr. Anderson is not admissible. He accepts that the hearsay nature of some of it is a matter which goes only to its weight. That disposes of Grounds 1 and 3. He has not pursued Ground 2.

8. That leaves only Ground 4 and we hope we do no injustice to Mr. Lee's argument when we say that it basically comes down to this: ''Mr. Yang is an absolute rogue; the judge should not have trusted his reported word that he would appear before a commission in America; and that, if such a commission should be set up, there is every likelihood that Mr. Yang will find some further medical or other excuse for not appearing before it."

9. In the circumstances it would be naive to think that such a possibility did not exist. Should it in fact occur then much time and effort will have been wasted, and in view of the Attorney General's undertaking as to costs, so will a certain amount of public money. It is conceded however that there would be no significant prejudice to the Appellant.

10. The judge was obviously aware of that possibility. He spoke of Mr. Yang's "perhaps …… resiling from his previous promises of assistance". But the judge must have taken the view that the public interest nevertheless made the risk worthwhile. That was a matter for his discretion and we see no reason to interfere.

11. Having come to that conclusion on the merits it is not necessary to deal with the objection raised first thing this morning by Mr. Findlay for the Crown. He relied on the English authorities of Ex Parte Alice Woodhall[1] and Bonalumi v. Secretary of State for the Home Department[2] for the proposition that proceedings of this kind are in substance criminal proceedings, and not falling then within any of the specific classes set out in Section 13 of the Supreme Court Ordinance, any appeal therefrom is beyond the jurisdiction of this Court. Mr. Lee had notice of the objection only at the last minute and although he has mounted an able defence we think it wiser to express no firm opinion but to leave the question open until a decision should be necessary. We might however add, in deference to the arguments that have been presented, that as at present advised we are inclined to think that there is force in Mr. Findlay's objection.

12. For these reasons the appeal is dismissed.

Note

13. Subsequent to the delivery of judgment the Court observed, at the request of Mr. Findlay for the Attorney, that as far as the actual conduct of the inquiry was concerned it would be desirable that the magistrate holding it in Hong Kong should also be the person holding the Commission in the U.S.A., but expressed no further opinion, being unaware of practical or other considerations that might be involved.