HKSAR v. LU XIUYU

HCMA 841/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 841 OF 2011

(ON APPEAL FROM STCC 4601 OF 2010)

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J U D G M E N T

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1.  The appellant faced one charge of conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200, the particulars of which are as follows:

“LU, XIUYU, you are charged that between an unknown day in 1996 and 18 November 2002, in Hong Kong or elsewhere, you conspired together with CHAN, CHEUNG KAM and other persons not in custody to defraud the Immigration Department of the Government of the Hong Kong Special Administrative Region, by you and CHAN, CHEUNG KAM entering into a marriage and by dishonestly and falsely representing to Immigration officers that your entries to Hong Kong were for the purpose of visiting and reunion with your husband, namely CHAN, CHEUNG KAM, and hereby induce the said Immigration Department to act contrary to its public duty, namely to permit you to enter Hong Kong.”

2.  The appellant pleaded not guilty to the charge.  She was convicted after trial and was sentenced to 18 months’ imprisonment.  She now appeals against conviction.

3.  As the trial before the magistrate was conducted in English and all the submissions were written in English, I was all set to conduct the appeal in English.  However, it so happened that the Fuzhou interpreter does not speak English proficiently.  To avoid the need of having two interpreters doing “double interpretation”, I granted leave for the hearing to be conducted in Chinese.  I am of the view, however, that it is more appropriate for my judgment to be in English.

Case for the prosecution and the defence

4.  Mr Michael Tsang, Public Prosecutor for the respondent, has very helpfully set out the case for the prosecution and the defence, which I adopt as follows:

“Prosecution’s case

2. The Prosecution’s case relied wholly on the admissions by the Appellant in the Record of Interview (P2). In gist, what the Appellant had admitted in P2 was that her marriage with Chan was bogus and she had paid a middle man for the arrangement of a bogus marriage between her and Chan and the purpose of the bogus marriage was to enable herself and her two daughters to obtain one-way permits to enter and live in Hong Kong [References were made to the Q&A in P2] The Prosecution called the Immigration Officer (PW2) who conducted the cautioned interview with the Appellant and the interpreter present at the interview (PW1) to testify at trial. In gist, PW1 and PW2 testified that the Appellant had given the answers in P2 voluntarily and that the contents of P2 had been properly explained to the Appellant.

Defence’s case

3.       The Appellant challenged the admissibility of P2 and she testified in both the special issue and the general issue.  She testified that when she entered the interview room, PW2 shouted at her and threatened her and accused her of having entered into a bogus marriage.  She was not allowed to make phone calls during the interview and she was also asked to turn off her mobile phone during the interview.  She had told PW2 that her marriage was genuine and the incriminating answers in P2 were not provided by her.  When she signed on P2, she did not read the contents of P2 as she could not read traditional Chinese characters and PW1 did not properly explain the contents of P2 to her.  She testified that her marriage with Chan was a genuine one.  She came to know Chan through a friend of Chan and since then she had frequent contacts with Chan and they fell in love and subsequently got married in December 1996.”

Grounds of appeal

5.  Mr William Hui, counsel for the appellant, advanced a total of four grounds of appeal.  The first ground concerns the way the magistrate dealt with the admissibility of the Record of Interview (P2) by way of the “alternative procedure”.  The second and third grounds relate to the way the magistrate dealt with the appellant’s application to re-open the prosecution case after the magistrate ruled that there was a case to answer.  The fourth one is the usual all-embracing ground that the conviction was unsafe and unsatisfactory.

6.  For the purpose of disposing of this appeal, it is only necessary for me to deal with the first ground of appeal — though I will deal briefly with the other two grounds as well.

1^st Ground of appeal

7.  Mr Hui relied on the Privy Council case of Thongjai[1] and the Hong Kong cases of Chiu Kin Wah[2] (translation) and Yip Poon Kiu[3] (translation) to support his contention that the magistrate should have only ruled on the admissibility of the alleged admission on the assumption that the appellant had indeed made it.  The magistrate was therefore in error when he actually made a finding that the appellant had in fact made the admission when dealing with the special issue by way of the alternative procedure.

8.  Mr Hui further submitted that by making a finding of facts at that stage that the prosecution witnesses were credible and reliable while the appellant was not a credible witness, the defence case and the appellant’s credibility on the general issue were jeopardized and the appellant did not have a fair trial.

Respondent’s response to the 1^st Ground

9.  Mr Tsang has no dispute that on the authorities, what the magistrate should have done was to rule on the admissibility of the alleged admission on the assumption that it was indeed made.  The magistrate should not have made a ruling that the appellant had indeed made the admission at that stage of the proceedings.

10.  Mr Tsang drew my attention to a recent Court of Appeal decision in Wong Kam Chan[4] on this point.  Mr Tsang’s contention was that even though the magistrate was in error, the ruling had no operative effect on the appellant who had subsequently given evidence on the general issue denying making the admission.  Mr Tsang submitted that the appellant was not deprived of a fair trial.

Ruling of the magistrate

11.  In relation to the special issue, the magistrate made the following ruling:

“20. I have carefully considered all the evidence. I am [satisfied] and I am sure full weight is to be attached to the evidence given by PW1 and PW2. During the examination in chief of both PW1 and PW2, they gave clear and straight forward answers, their evidence were not [shaken] during cross examination.

21. I found that both PW1 and PW2 are honest and reliable. I was sure that PW1 and PW2 had acted in a proper and professional manner, that the content of P1 had been interpreted to the defendant and all the answers in P2 were also given by the defendant in a voluntary manner, and that the content of P2 had been properly interpreted and read to the defendant and P2 was also properly acknowledged by the defendant as an accurate record.

22. I have no hesitation in rejecting the evidence and explanation given by the defendant. The defendant said that she was not allowed to use the mobile phone and was asked to turn it off. However, she agreed that the mobile phone was not seized.

…

28. I do not find credible the defendant’s explanation that she failed to understand the content of P1 and P2 in full, the defendant said that PW1 had not threatened her if she did not understand, there was no reason why she did not even bother to ask PW1.

29. After careful consideration of all the evidence relating to the manner and circumstances in which the interview was conducted, including the allegations made by the defendant and her evidence, I was in no doubt as to the voluntary nature of P2, and that there were no other grounds upon which I should exercise my discretion to exclude P2.” (Emphasis added)

My consideration

12.  It is quite clear that the magistrate had made an actual finding that the appellant had made the admission, and had not made his ruling “on the assumption that the alleged admission has been made”.

13.  In the well-known case of Thongjai, their Lordships held (at p 679 D-J):

“Where the prosecution alleged that the defendant made an oral admission, and the case was raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues were raised which were not mutually exclusive. The first issue, which was for the judge to decide, was whether, on the assumption that the alleged admission was made, it was inadmissible as being involuntary. The second issue, which was for the jury to decide if the judge ruled that the alleged admission was admissible in evidence, was whether the admission was in fact made.”

14.  Thongjai was of course a trial before the High Court with a jury.  Chiu Kin Wah dealt with the position when a District Court Judge adopted the alternative procedure to consider the admissibility of an alleged admission. The Court of Appeal held (at para 12 of the judgment):

“ In this case, the trial judge adopted the alternative procedure to deal with the issue of voluntariness of the 2^nd Defendant’s admission. Generally, in such a procedure, the judge will - after the close of the prosecution case - rule whether the defendant’s admission was made voluntarily. If it was made voluntarily, the admission will become part of the prosecution’s evidence. The judge will then decide whether the prosecution’s evidence (including the defendant’s admission) is sufficient to establish a prima facie case of the charge, and whether there is a case to answer for the defendant. At this stage, other than the voluntariness of the defendant’s admission, the judge shall not make any finding of facts; otherwise, the judge is reaching a conclusion before hearing the defendant’s answer to the case. This will render the trial unfair, and the verdict will also be unsafe and unsatisfactory.[5]” (Unofficial translation)

15.  The same principles were adopted in an appeal from a magistrate：see Yip Poon Kiu[6].

16.  In Wong Kam Chan, the Court of Appeal upheld the principles in Thongjai and held that the District Court judge erred in making a finding that the applicants had made the admissions when he ruled on their admissibility.  Nevertheless, the Court of Appeal was satisfied that such an error was not material in the context of that particular case (in view of the ample evidence against the defendants apart from the alleged admission and the way the case was conducted before the court).  The Court of Appeal also held that it would have no hesitation in applying the proviso even if such an error were material.

17.  In the present case, it is quite clear that the magistrate was in error in making an actual finding that the appellant had made the admissions at that stage.  I have to consider whether the magistrate’s error was material or immaterial.  Bearing in mind the only evidence against the appellant came from her alleged admission contained in Record of Interview (P2) which she denied making, the erroneous ruling by the magistrate at that stage of the proceeding cannot be said to be immaterial.

18.  To a certain extent, requiring a magistrate to “assume” that a defendant has made an admission — when that same magistrate will have to decide on both the law and the facts of the case — has some degree of artificiality about it.  Nevertheless, that is the law and a magistrate would be in error if he/she makes an actual finding that the admission has been made at that stage of the proceeding.

19.  Had the magistrate in this case ruled the Record of Interview (P2) admissible on the assumption that the appellant had in fact made it, no criticism could be made on the magistrate’s assessment of the evidence of the two prosecution witnesses.  After all, the magistrate had to be satisfied beyond a reasonable doubt that the alleged admission contained in Record of Interview (P2) — assuming the applicant has made such an admission — was made by the appellant voluntarily.  Where the allegation against the prosecution witnesses relate to alleged improper treatment of the appellant while being interviewed, the credibility and reliability of the prosecution witnesses must necessarily be assessed by the magistrate.

20.  The problem in this case is that where the only evidence against the appellant came from the alleged admission made by her, the erroneous premature finding of facts by the magistrate at this stage of proceedings: (a) the prosecution witnesses were credible and reliable; (b) the appellant was not credible; and (c) the appellant did make the admission, does have the effect, or perceived effect, that the appellant’s later testimony on the general issue relating to the denial of making the admission would not be believed.

21.  As a result of such an error, I am satisfied that the appellant did not have a fair trial before the magistrate and the conviction was unsafe and unsatisfactory.

22.  For this reason alone, I allow the appeal.

2^nd and 3^rd Grounds of Appeal

23.  There is no need for me to deal, in great details, with these two grounds in view of my decision in respect of the 1^st ground of appeal.

24.  I would, however, like to make some general comments as to the way a magistrate should handle the situation when the defence asked for the prosecution case to be re‑opened.

25.  Very briefly, what has happened in the present case was that after the magistrate has ruled that there was a case to answer, the case was adjourned to another date for hearing.  When the case resumed, the appellant was represented by a new set of lawyers, having dismissed the legal team formerly representing her.

26.  There was an application from the defence to re-open the prosecution case.  The reason given was that the appellant’s former counsel failed to put certain questions to the prosecution witnesses, contrary to her instructions.

27.  What followed was a very lengthy hearing in which the magistrate heard evidence (by way of affidavits and live testimonies from the appellant’s former solicitor and counsel, and from the appellant) to determine whether the appellant’s former counsel was guilty of incompetence.  The magistrate eventually found the appellant not credible and rejected her version of the events on this issue.  He refused to re‑open the prosecution case.

28.  With respect to the magistrate, I do not think it proper for him to handle the case in such a manner.

29.  A magistrate has a complete discretion whether the prosecution case should be re‑opened and whether any particular witness should be recalled: see McKenna[7], applied in Lei Pei Chi[8].

30.  When the defence made an application to re-open the prosecution in this case, all the magistrate had to decide was whether the area the defence intended to explore — should the prosecution case be re‑opened — was relevant to any issue in the case.  If the magistrate finds that the area was already explored, but may be not as detailed as the appellant herself would have wished or liked, it would certainly be open to the magistrate to refuse the application.  On the other hand, if a particular relevant area has not been explored by the defence, then it matters not whether that was due to an oversight or alleged incompetence on the part of the defence counsel.

31.  The magistrate’s duty is to ensure that there is a fair trial.  If a relevant area was indeed not explored, then the magistrate should allow the prosecution case to be re‑opened but the questions should be confined to such a relevant but unexplored area.

Application for re-trial

32.  Mr Tsang indicated to me during the hearing that the prosecution would ask for a re‑trial should the appeal be allowed, while Mr Hui indicated that the appellant would oppose such an application.  Both parties have since submitted written submission with authorities for my consideration.

33.  Again, there is no dispute between parties as to the principles or factors involved in the consideration of a re-trial.  Both referred to Ting James Henry[9], in which the Court of Final Appeal has the occasion to consider what the correct approach to ordering a re‑trial is.  Mr Hui also referred me to Wing Yiu Kut[10] (translation), where the Deputy High Court Judge hearing the appeal categorised the factors which should be taken into consideration for a re‑trial.  The only difference is the application of those principles or factors to this particular case.

34.  In considering whether there should be a re‑trial, I have to balance the interests of the appellant, the prosecution and the public.  I need to consider all the surrounding circumstances, which include the seriousness of the offence, the history of the proceedings, the evidence of both the prosecution and the defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and the length of sentence which the appellant has already served.  I have to weigh the public interest in ensuring those guilty of serious crime are brought to justice and punished against the effects of putting a successful appellant through the ordeal of a further trial: see Ting James Henry, Holgate (No 2)[11] and Wing Yiu Kut,

35.  In advocating for a re‑trial, Mr Tsang emphasized that the appellant was charged with and convicted of a very serious offence of conspiracy to defraud.   All the grounds of appeal centred on procedural irregularity committed by the magistrate during the course of the trial.  The appeal was allowed due to the error committed by the magistrate.  The appellant should not be allowed to escape from justice for such a reason.

36.  Mr Tsang also submitted that the evidence against the appellant was overwhelming.  The appellant admitted in the Record of Interview that her marriage with Chan was bogus and that she had paid a middle man to arrange for such a bogus marriage so that she and her daughters could come to Hong Kong by means of one-way permits.  The prosecution case is straight‑forward, with only two prosecution witnesses.  The exhibits involved are also only limited.  The re‑trial would not result in any unjustified delay or prolonging of the proceedings.  By the time the re‑trial takes place, the appellant should still have to serve a substantial part of her 18‑month‑sentence.

37.  Mr Hui submitted that the appellant has served more than seven months of her sentence which, taking into account the credit usually given for holidays, would translate to a substantial part of her sentence having been served.  The appellant could expect to be released in less than four months but there would be some months before the re‑trial could take place.

38.  Mr Hui submitted that the offence date was between 1996 and 2002, a matter of about 10 years ago.  The prosecution only relied on the admission made by the appellant.  There is a reasonable chance for an acquittal should there be a re‑trial.  Mr Hui also relied on the fact that the appellant had experienced an 11‑day hearing and had been cross-examined on three different stages of the proceedings in his opposition to a re‑trial.

39.  The offence charged is a serious one.  Persons engaged in bogus marriages to deceive the authorities in order to enable them to come to stay in Hong Kong must be punished.  In the present case, the only evidence against the appellant came from the alleged admission contained in the Record of Interview, which the appellant denied ever making.  The magistrate made an error in his handling of the special issue.  He further refused to allow a re‑opening of the prosecution case for the wrong reasons and embarked on an inquiry into the competency or otherwise of the appellant’s former legal team, which unfortunately, unnecessarily prolonged the trial.  The appellant has served seven months of the 18‑month sentence, which cannot be said to be insubstantial when taking into account the usual 1/3 discount enjoyed by a prisoner on account of the public holidays.  Should there be a re‑trial the appellant would most likely be required to serve another four to five months imprisonment.

40.  After balancing all the factors, I am of the view that this is not a proper case for me to order a re‑trial.