HKSAR v. LAU CHI YUEN

HCMA 553/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 553 OF 1999

(ON APPEAL FROM ESCC 4014/1998)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of 4 charges of Conspiracy to Cheat at Gambling, contrary to Common Law and section 16(1)(a) of the Gambling Ordinance, Cap. 148 and was sentenced to 15 months on each charge; the sentences were ordered to run concurrently.

2. He appealed against his conviction and sentence. At the appeal hearing leave was sought and granted for him to abandon his appeal against sentence. After hearing argument from the Appellant and the Respondent I dismissed the appeal against the convictions and advised that reasons would be given at a later date. I now advise those reasons.

Facts

3. The Appellant was a professional football player. The prosecution case was that he conspired with another player, Chan Tsz-kong, who was named in the charges as a co-conspirator, and with other persons to win at gambling by placing bets with a bookmaker on the results of various matches played by their club when they were on the team. The bet was that their club would lose the matches and to ensure those results they did not play to the best of their abilities.

4. In the 4 matches to which these charges related the club lost and part of the gambling winnings were paid by Chan to the Appellant. The main concern of the court was whether, from the evidence, the agreement necessary to sustain the charges of conspiracy had been made out.

5. Chan gave evidence against the Appellant under an immunity. The other evidence against the Appellant was a covert recording of a conversation between him and Chan, made prior to Appellant's arrest and a video-taped interview, under caution, given to 2 ICAC officers after Appellant was arrested.

6. In that interview Appellant made admissions which, if accepted as true by the Magistrate, amounted to full admissions of the conspiracies. The admissibility of the interview was challenged and was canvassed at trial by way of the alternative procedure. The interviewers and other ICAC officers were called as witnesses. The Appellant did not give evidence or call witnesses on the special issue. The Magistrate admitted the interview into evidence.

7. The thrust of this appeal is that the Magistrate erred in admitting the interview into evidence, because the circumstances of obtaining it were oppressive or, alternatively, it was obtained on the basis of a trick and should have been excluded in the exercise of the Magistrate's discretion.

8. It was submitted that the Magistrate erred in relying on the evidence of Chan, the accomplice, on the special issue when he did not do so on the general issue and that the Magistrate's findings of fact were based on an incomplete and incorrect analysis of the evidence, in that he should not have relied on the credibility and reliability of the investigating officers, whose evidence was undermined by the way they obtained the interview.

9. The circumstances under which the Applicant made his admissions were these. Chan was arrested on the 11 June 1998 and later agreed with ICAC to meet the Applicant at a meeting which was covertly recorded - the tape of that meeting was admitted in evidence at the trial of the Appellant. At that meeting Appellant was heard discussing Chan's position vis-à-vis the ICAC investigation of the match-fixing allegations.

10. After the meeting the Appellant was arrested, taken to ICAC and, after he had seen his solicitor, was interviewed from 15:14 to 15:33. He made no admissions at that interview.

11. Chan made a request at about 16:15 to see the other players arrested in respect of this case, ostensibly because he felt guilty and upset at having betrayed his erstwhile team mates. Permission was granted by a senior ICAC officer for this to be done. The visits were to be short and confined to an apology by Chan. The arrestees were not asked whether they wanted to see Chan in this manner. No note was made on the record of the prisoners visited about these visits, although Chan's Arrest and Detention sheet showed the time he was out of the cell. The reason for his absence was noted simply as "Welfare Visit".

12. The visit to the Appellant took place at about 17:30 in the absence of the guarding officers who were asked to wait outside, but in the presence of the two officers escorting Chan. The visit lasted 3 to 4 minutes and Chan was very upset and emotional. The apology to which the meeting was to be confined extended to slightly more than that.

13. The ICAC officers termed the visit a "Welfare Visit", it being accepted that it was for the welfare of Chan the potential witness, rather than the welfare of the person visited and to whom apology was made. The ICAC officers gave evidence that a welfare visit, for this purpose, had no known precedent.

14. Counsel for the Appellant submitted that the nature of the visit was oppressive and designed to elicit admissions from the Appellant. Support for this theory was garnered from the fact that the Appellant made admissions against interest at an interview he, allegedly, requested shortly after the welfare visit. That interview was from 18:43 to 19:07. It was submitted that this visit was a deliberately engineered by the ICAC officers to put pressure on the Appellant and did not result from a genuine request by Chan.

15. The court was invited to depart from the Magistrate's finding of admissibility because, according to the Appellant, the circumstances of the Welfare Visit and various discrepancies in the evidence of the prosecution witnesses indicated that the visit was oppressive by its very nature and that it may have, or did, constitute an inducement to Appellant to make admissions.

16. All the matters raised on appeal relating to the interview were argued before the Magistrate. The Magistrate clearly had in mind the possible problems relating to the admissions obtained, as they were, so soon after the Welfare Visit. He set out all the allegations in respect of the interview at Paragraph 14 (a) to (j) of his Statement of Findings. From Paragraphs 15 to 34 inclusive he gave detailed findings in respect of each of the objections. He concentrated on the question of the Welfare Visit; the reasons for it; what occurred during it; the discrepancies that arose from the evidence of the various ICAC officers and that of Chan. He was fully cognisant of the gravity of these allegations, the canvassing of which took up the greater part of a 9-day hearing.

17. The Magistrate concluded that there had been no deliberate concealment by the ICAC officers of the meeting. He accepted, as indeed did the officers, that a record should have been kept of the Welfare Visit on the record sheets of those persons visited by Chan. However the Magistrate also recognised what was obvious, that if there was an intention to conceal the visits no record would have been kept on Chan's own record sheet.

18. At Paragraphs 26, 27 and 28 of the Statement of Findings the Magistrate sets out his reasons for accepting that the visit was a genuine welfare visit requested by Chan and not a deliberately engineered confrontation to put pressure on Appellant. He accepted, as he was entitled to do, the positive denials of the officers of alleged threats and inducements. He was satisfied that the meeting did not amount to an inducement or oppression and had no bearing on the admissibility of the interview.

19. I have considered the Magistrate's Statement of Findings very carefully and cannot agree, as Appellant's counsel submitted, that his findings were based on an incomplete and incorrect analysis of the evidence. The Magistrate had the opportunity of seeing and hearing the witnesses and listening to the way they dealt with the matters put to them in cross-examination. Particular complaint is made, at Ground 5 of Appellant's grounds, of factors the Magistrate is alleged to have ignored in deciding whether the credibility and reliability of the investigating officers had been undermined.

20. In respect of PW3 these were submitted as being the exclusion of investigating officers from the room during the Welfare Visit; the failure to prevent Chan from saying more than a simple apology to Appellant; the permitting of a visit to Appellant after Chan had gone beyond the words permitted on an earlier visit to another player and the deliberate absence of any written records. There is no substance in such complaints. The Magistrate dealt with specific aspects of PW3's evidence at Paragraphs 17, 18, 22 and 25 and properly assessed it in the light of the discrepancies which were apparent between his evidence and that of other officers. He concluded that PW3's evidence was truthful and accurate.

21. A further limb of this ground was that the Magistrate should have found that contradictions of evidence between PW2 on one hand and that of PW5 and PW6 on the other and contradictions between PW3 and PW9 were such that he could not rely on the evidence at all. It is apparent from the Statement of Findings that the Magistrate was aware fully of the discrepancies and contradictions in the evidence and that he resolved them where necessary and where such were material.

22. The remaining ground was that the Magistrate had been wrong in law to place any reliance on the evidence of Chan in respect of the special issue, he having been declared a hostile witness when he gave evidence on the general issue. At paragraph 35 the Magistrate explains the basis on which he allowed the prosecution to treat Chan as a hostile witness. At Paragraph 36 he stated;

"PW1's evidence on the general issue remained at large for me to determine what, if any, weight to attach to it. However, I decided that no reliance should be placed on his account even though he adopted some of the relevant matters under cross-examination. His evidence retained some value on the special issue where the contradictions did not arise, particularly where it was supported by other evidence which I accepted".

23. The Magistrate was entitled to believe some, all, or none of Chan's evidence. He was aware of the difficulties inherent in dealing with the evidence of the hostile witness. The Magistrate having seen and heard Chan assessed his evidence and chose not to accept it in relation to the general issue, even where Chan had adopted some of the matters put to him in cross-examination. It was a matter for him to decide what weight, if any, he put on any of the evidence given by Chan.

24. Chan's evidence on the special issue related to the initiation by him of the series of welfare visits that were put in train and to that extent was of a more formal nature, unlike the evidence on the general issue which was directly relevant against his erstwhile teammate in relation to the conspiracy and acts in support thereof and thus central to the Magistrate's assessment of guilt.

25. Having considered the facts of the case, the Magistrate's Statement of Findings and having heard the submissions made on behalf of this Appellant I cannot see that any ground of appeal has been established that warrants a reversal by this Court of the voir dire decision, or which indicates the Magistrate fell into error in dealing with the evidence in this case. Accordingly I dismiss the appeal against conviction on these charges.

26. I must comment however on the matter of the "Welfare Visit". The ICAC officers were extremely ill-advised to accede to Chan's request to see the persons arrested as a result of his information. Regardless of how sorry Chan was feeling for himself and regardless of how remorseful he felt at informing on his team-mates, the Welfare Visits should have been recognised as having the potential to endanger the investigation that was going on at the time the visits were made.

27. It appears to be a serious error of judgment for a senior officer to countenance these visits and worse, having permitted them, to fail to ensure that they were recorded properly on the arrest and detention sheets of those persons visited. It was clearly insufficient to record the visit period only in relation to Chan.

28. The visit inevitably provided a base from which to attack the interview and made the conduct of the eventual trial more difficult and time-consuming both for prosecution and defence than it need have been. It is noteworthy that the greater part of this trial was taken up with matters relating to the Welfare Visit.

29. In attempting, as it appears they were, to keep a potential immunity witness happy, the ICAC officers appear to have lost sight of the importance of scrupulous handling of arrested persons.

30. It is difficult to see any justification for such a visit, particularly not in the haphazard and unrecorded form this and other visits took.