R. v. LAU MAN CHING & OTHER

IN THE COURT OF APPEAL

1994, No. 581

(Criminal)

- HEADNOTE-

Evidence - Previous consistent statement - It was an irregularity to allow witness to refer to previous statement given to the police - But, normally, a District Judge would assume that a witness who was not cross-examined on a previous inconsistent statement had "come up to proof", accordingly the harm was minimal.

Held (Court of Appeal): No material irregularity such as to engage the proviso to s83(1) Criminal Procedure Ordinance. Appeal dismissed.

IN THE COURT OF APPEAL

1994, No. 581

(Criminal)

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. There are two applicants before us: Lau Man-ching (A1) and Miss Mok Pui-chee (A2). They were convicted after trial before His Honour Judge Hawkes in the District Court on one charge of conspiracy to defraud. Additionally A1 was convicted on 15 separate charges of obtaining property by deception contrary to section 17(1) of the Theft Ordinance. A1 was sentenced to a total of three years' imprisonment. A2 on the conspiracy charge alone was sentenced to four years' imprisonment. They seek leave to appeal against their convictions.

2. As Mr Michael Lunn, QC, counsel for A2 said at the outset of his submissions, there was overwhelming evidence in this case of a classic "long firm fraud". A bogus company was established. The confidence of suppliers was built up and goods were obtained. Massive deceptions then occurred and huge losses were suffered by the suppliers. The issue at trial was not whether a fraud had happened but what were the roles of the parties involved.

3. A2 had apparently an established reputation as a buyer for a well-known company called Rainbow. The brief facts found by the judge were these:

(1) In April 1992 a firm under the sole proprietorship of A1 called Century Enterprises Company was registered with an address at Room 14, 3/F, Block C, Wah Lok Industrial Centre, Shatin.

(2) In July 1992 the firm purported to start business.

(3) A1 was hardly ever present at the firm's premises. The actual part he played after the initial formalities of registering the business was to sign blank cheques.

(4) The operations of the firm such as contacts with suppliers, requests for credit etc were in A2's hand.

(5) Although the firm was buying electronic goods from local suppliers and supposedly selling them to buyers in China no records of sale or delivery were found by the police when the office was raided.

(6) At least 25 companies supplied goods to the firm over a period of months. They were paid for by post-dated cheques or not paid for at all. Before the cheques fell due the suppliers received phone calls from A2 asking them to delay presentation of the cheques. Others who had not been given cheques were put off when they asked to be paid. A2 gave various excuses for non-payment, none of which A2 sought to sustain at the trial as she elected not to give evidence. The judge found that those excuses were lies.

(7) The 15 cheques signed by A1 covered charges 2 to 16 on the charge sheet. They were post-dated to a period ranging from 18 October 1992 to 15 December 1992 and totalled approximately $1.372m. The cheques were dishonoured on presentation. None of the goods or the proceeds have been found or accounted for.

(8) When A2 realised in December 1992 that the police wanted to interview two former employees, Lam Ching-man (PW7) and Chan Bing-chuen (PW8), she asked them to lie to the police concerning the management of the firm.

(9) A1 made a number of statements to the police. In one of them, on 16 December 1992, he made in effect a full confession of guilt, that is to say, that he admitted he had participated in the scheme to defraud the suppliers of the goods - goods which had been ordered by A2 after the confidence of the suppliers had been built up.

Grounds of appeal

4. On behalf of A2 Mr Michael Lunn, QC, advances in effect one ground of appeal. To understand it something of the background needs to be filled in. When the prosecutor examined PW7 in-chief he led evidence to the effect that the statement made by PW7 to the police on 5 December 1992 was untrue in a number of respects : all of these tended to distance A2 from the management of the firm and to suggest that A1 played a leading role. That was untrue and PW7 said in-chief that it was A2 who had asked her to tell those lies. She said:

"When I made my first statement to the police on 5th December I told the police the things Winnie (A2) had asked me to say. I said these things because I was frightened."

Then she added:

"On the 19th May 1993 I gave another statement which was the last statement that I gave the police. On that occasion I told the police what the real situation was concerning the matters I have just told the Court about. I decided to tell them the real circumstances because the police said that Winnie (A2) was also a bad person. I also decided to tell the truth as I did not want any troubles."

5. When evidence was led by the prosecutor from Chan Bing-chuen (PW8), it was to a similar effect : That PW8 had first told lies to the police in December 1992 at A2's request and then in his evidence-in-chief he added:

"In a later statement to the police I changed that. I changed that part of my statement, subsequently, as I was thinking that the Police might say what I said was false. Therefore I told them what was true."

6. Mr Lunn, QC submits that for the prosecution to lead evidence from PW7 and PW8 that each of them had made a statement to the police prior to the trial, the contents of which were consistent with their testimony in court, was to breach a fundamental rule of evidence : That previous consistent statements are self-serving, irrelevant and inadmissible.

7. But as the courts have repeatedly stressed, the purpose for which evidence is adduced is the paramount test of admissibility. Here the prosecutor's primary purpose, as is apparent, was to show how in December 1992 A2 was prepared to induce PW7 and PW8 to lie to the police. This was being put forward as proof of a guilty mind regarding the subject-matter of the charge. To that extent no complaint can be (or has been) made with regard to that evidence. Having established by evidence that A2 had procured the witnesses to lie about the subject-matter of the charge, it was in fact unnecessary for the prosecutor to go further; to lead evidence from PW7 and PW8 that they had changed their stories subsequently was wholly unnecessary. That would, in any case, have been amply clear to the judge from the nature of their testimony in court.

8. It is difficult to see how the bare fact that each of these two witnesses PW7 and PW8 had made statements consistent with their testimony in court prejudiced the fair trial of the charge against A2. Normally a District Judge would assume that if a witness was not cross-examined on a previous inconsistent statement the witness has in effect "come up to proof"; but that still leaves the court with the task of determining whether the witness is telling the truth.

9. The present case is not on all fours with R. v. Weekes [1988] Crim.L.R. 244 where a witness was cross-examined on a previous inconsistent statement and the prosecutor then sought to rehabilitate him by adducing other consistent statements. This was clearly in breach of the normal rule of evidence and the appeal was allowed.

10. This having been said the fact remains that the previous consistent statements made by PW7 and PW8 might conceivably be thought to have had the tendency of bolstering their testimony, even though the contents of those statements were never sought to be adduced in court. In our judgment there should not have been a reference to them in the evidence-in-chief, and to this extent there was an irregularity at the trial.

11. But was it a material irregularity?

12. In this context it may be helpful to refer to a statement of principle by Lord Radcliffe in Fox v. General Medical Council [1960]3 All E.R. 225 at 230:

"Generally speaking, as is well known, ... confirmatory evidence is not admissible, the reason presumably being that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent and, as was remarked by HUMPHREYS, J., in R. v. Roberts (5), it does not help to support the evidence of the witness who is the accused person to know that he has frequently told other persons before the trial what his defence was. Evidence to that effect is, therefore, in a proper sense immaterial."

13. In our judgment what has occurred amounted to an irregularity, but it was not such an irregularity as to have affected the fair trial of the charge against A2. There is, therefore, no question here of a material irregularity such as to engage the proviso to s83(1) of the Criminal Procedure Ordinance on which Mr Bruce counsel for the respondent has addressed us this morning.

14. As to A1 who acts in person he complains that, prior to the trial, statements made by a person called Lo Wai-keung had not been provided by the prosecutor and this was a material irregularity. All these matters were in fact canvassed at the trial, long before the judge gave his verdict. If Lo Wai-keung's evidence had been material he could have been called. In fact the statements were adverse to A1's case and it is perhaps not surprising that he did not call Lo to testify. In our judgment there are no merits in the applications before us and they must be dismissed.