HKSAR v. POON HOI WING AND ANOTHER

CACC 313/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 313 OF 2000

(ON APPEAL FROM DCCC 1182/1999)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The allegation

1. These applicants were respectively the 1st and 6th defendants on trial before HH Judge Saunders in the District Court. They faced one charge of conspiracy to defraud, the particulars of which alleged offence were that, between early 1998 and 7 September 1998, they, as well as four other defendants and two further alleged accomplices named Cheung and Lau, conspired to defraud the Social Welfare Department. What was alleged was that these men agreed that one of them would deliberately crash a motor vehicle, that there would be made a report to the police giving false details as to how the accident occurred and then, pointing to injuries actually or supposedly sustained in the accident, some would make a claim for financial assistance under the Traffic Accident Victims Assistance Scheme (TAVAS). In making the claim itself, representations were made about the accident and the injuries, and such a claim is made the easier because payment under the scheme does not depend upon establishing fault on the part of a third party. The applicants (to whom it is convenient to refer as D1 and D6 respectively) as well as the other defendants were convicted. The applicants were each sent to prison for two years. They now appeal against conviction. D1 does not appeal against sentence. D6 has abandoned his appeal against sentence.

The evidence

2. The case against the applicants depended heavily upon the evidence of the two witnesses Lau (PW1) and Cheung (PW2) who had been arrested for the same alleged conspiracy and who gave evidence under immunity.

3. PW1 had, at the time of and before the crash, worked for a newspaper and one of his subordinates there was D4. His evidence was that in March 1998 he was in sore financial straits, and that D4 suggested to him that he should consider joining in a scheme to defraud the Social Welfare Department by faking a car accident, and he was offered a fixed sum if he did so. There were, according to this evidence, a number of discussions, and he agreed to do as asked. He said that on 18 March he met the other defendants as well as PW2 and he was asked to drive a vehicle, a Ford. Another vehicle was driven by D5. A number of persons were picked up in the course of the evening by these vehicles, and then there was a gathering of the group at which (according to PW1) D4, D5 and D6 took turns to teach them what they were to do, which was to take the car to Sai Kung, crash it, report the matter to the police, pretend to be injured and then seek sick leave certificates from a doctor. They were to tell the police that they had crashed in trying to avoid a dog. This was all said in the presence of the men, who included D1. In the car, which was then driven to Sai Kung and crashed, were PW1 who was the driver, PW2, D1, D2 and D3. They were followed in a car which contained D4, D5 and D6. PW1 said that he tried to crash the vehicle but that something went wrong and he alighted and that D5 took over and finished the job. PW1 made a report to the police. All five occupants of the Ford were eventually taken to hospital where they received attention. When they left the hospital, they saw D4, D5 and D6 again and were given a name card of a doctor by D4. This was the doctor who, in due course, gave sick leave certificates to certain of the defendants, and upon the basis of which claims were made. On D4's instructions, PW1 then opened a bank account. He obtained a passbook to that account and he gave the book as well as a cash withdrawal card to D4. Claims were then made to the Social Welfare Department under the TAVAS scheme; and this witness then received, periodically, payments in satisfaction of the claims. He credited the payments to the bank account. The bank account was in fact operated by D4, and not by PW1.

4. The prosecution case was that as a result of this fraud, the total sum of $243,670 was paid to PW1, PW2 and D1 of which PW1 only saw $18,000. In other words, individuals such as PW1 and D1 were engaged to assist in the fraud for which they were paid a fixed sum, whereas those who planned the whole venture took the bulk of the monies received from TAVAS.

5. PW2 was an ex-college friend of D1. He gave evidence about a meeting with D5 and D1 in early 1998 at which D5 put the idea of the fraud to him. He said that about one month later D1 telephoned him and asked whether this witness was interested in the idea. Eventually he agreed to it. He then gave evidence about events on 18 March when he met D1, D5 and several other males and of a trip in two vehicles to Sai Kung that night with D1, PW1, D5 and others present. He gave evidence about the car being crashed, the police being called, and so on.

6. The prosecution case rested also on certain facts that were admitted by all defendants pursuant to the provisions of section 65 of the Criminal Procedure Ordinance, Cap 221. They included the facts of the identification by PW1 and PW2 of the defendants at identification parades; of medical treatment received by D1 in relation to the accident; of the fact that there had been a payment of money from PW2 to D1, to the details of which we shall shortly refer; and that the Ford vehicle was registered in the name of D6.

Statements

7. There were also produced cautioned statements made by D1 and D6. The grounds of these applications for leave to appeal centre upon these statements and their treatment by the trial judge. It is necessary therefore to outline their content and effect.

8. D1 first made a statement to the police on 19 March 1998 at 4 a.m. This was a witness statement in which he said to the police that he was a passenger in the vehicle when the vehicle unexpectedly rammed into the hillside and that he sprained his neck. He was in the front passenger seat, and he was told by the driver that the accident was caused by a dog in front of the car.

9. The next statement was made much later, almost a year later, on 8 February 1999. This was a statement under caution. The allegation was first put to him directly by the police officer that he was party to a deliberate fraud, and the nature of the fraud was described. He told the police that PW1 had borrowed the vehicle in question on the day of the crash, for a joyride. He said that he was half asleep at the time of the crash. (One notes in passing that in his witness statement he had said that at the time of the crash he was looking out the window toward a hillside). He was injured, he said, and he described the injury, the treatment he received, and the sick leave he was granted. He said that he applied for aid from TAVAS, because he had learnt it about from a television advertisement. He said that the welfare officer had told him to tell the others involved in the crash to apply also for aid. He did so. He gave figures of the amounts of TAVAS aid he had received. He was asked about money that PW2 had transferred to him. He was told that the police had information that PW2 had transferred the sum of $35,430 to him, and wanted to know what had happened. He said that it was in repayment of a debt.

10. D6 was also interviewed under caution on 8 February 1999. He said that he had bought the vehicle in which the crash had taken place, and that he had lent it to D5 in the early morning of 19 March 1998. He said that later D5 had told him that the car had been involved in a crash. He had no idea why D5 had borrowed it. He spoke about repair of the vehicle and its insurance. He said that he knew nothing personally about the crash, and did not know the people who were with D5 at the time of the crash.

11. He was interviewed again on 11 February 1999. He was told that he was under arrest because it was believed that he conspired with others deliberately to cause a traffic accident to cheat the TAVAS section of the Social Welfare Department. After caution he said: "I didn't do it." He said that he was at home at 25 minutes past midnight on 19 March 1998 (the time of the accident). He said that he had owned a vehicle which bore the registration number of the Ford which had been in the accident. He knew none of the defendants save D5. He had met none of them that evening nor did he go to the hospital later. He had to have his car scrapped because it was in an accident, and he did not know the doctor from whom sick leave certificates were obtained by the others.

The verdict

12. All the defendants were convicted. In his reasons for verdict the judge described the scheme and the evidence of PW1 and PW2. He said that he considered the case against each defendant separately. He pointed out that if the evidence of the prosecution witnesses was accepted then undoubtedly the defendants were guilty. He dealt in detail with suggested inconsistencies between and within the evidence of PW1 and PW2. He accepted the evidence of those witnesses in their material parts. He noted that none of the defendants elected to give evidence, although D4 called a witness on his own behalf.

13. He then turned to the cautioned statement of those defendants from whom such statements had been taken, including the statements of D1 and D6. He said that:

"D1 made a cautioned statement to the police on his arrest. In that statement he claimed that he was a participant in a joyride and was asleep when the accident occurred. He denied being involved in a scheme to defraud TAVAS. D3's cautioned statement was in similar terms. D6 even denied being present at the time of the incident. None of these accused gave evidence. Their cautioned statements to the police were entirely exculpatory. They are merely evidence of what they told the police. In the absence of any evidence from the defendants, I place no weight at all on the contents of the statements."

14. In the circumstances the trial judge convicted the defendants.

The grounds

15. The grounds of appeal are, in their central effect, the same for both applicants. It is contended that the judge misdirected himself in stating that the statements made upon arrest were entirely exculpatory whereas, say the applicants, they were mixed statements; and that, by so misdirecting himself, the judge wrongly failed to take into consideration the exculpatory parts of these statements, a step it is said which he should have taken since the applicants did not give evidence. In the grounds of appeal it is asserted, in the alternative, that if the statements were wholly exculpatory, the judge failed properly to consider the reaction of the applicants when they were first taxed about the alleged offence. There was another ground raised by the first applicant about suggested disparities in the evidence of the prosecution witnesses which ground is not pursued.

Analysis

16. It is asserted, correctly, that as a matter of law both the inculpatory and the exculpatory parts of a mixed statement are admissible as evidence of their truth (see R. v. Sharp [1988] 1 WLR 7; R. v. Aziz [1996] 1 A.C. 41; R. v. Chan Chi-wai [1992] 1 HKCLR 1).

17. That does not, however, mean that the two parts must carry the same weight. On the contrary, a tribunal may well take the view that the inculpatory part is more likely to be true and therefore give it great weight, and the exculpatory part, being self-serving, worthy of less, or even little, or even no weight. It is important to appreciate that the exculpatory part is admissible as evidence of its truth not in some vacuum. It is admissible to that end because without it the tribunal of fact is less able fairly to evaluate the facts admitted. (see R. v. Sharp [1988] 1 WLR 7, page 15d-e; and R. v. Donaldson (1976) 64 Cr App R 59, at page 64).

18. It is said by both counsel for D1 and D6 that the cautioned statements made in this case were mixed. Mr Chapman for the respondent was minded in his skeleton argument to argue that they were not, and that the trial judge was correct in his conclusion that they were wholly exculpatory, primarily on the basis that such so-called admissions as there were - and we shall come to them shortly - did not constitute admissions against interest in relation to any live or central issue in the case.

19. In this regard we have studied the judgment in R. v. Garrod [1997] Crim. L.R. 445, the full transcript of which judgment we also have, a case which discussed the issue: when is a statement a mixed statement, and when is it not. We note, in particular, the comment of that court that:

"... it is almost impossible to conceive of any series of answers - i.e. something more than a bare denial - which cannot be regarded as containing some admission of relevant fact as well as a statement of innocence and denial of guilt ... (the so-called 'exculpatory' part of a mixed statement). The question is how to identify the kind of interview which contains enough in the nature of admissions to justify calling it a 'mixed' rather than an 'exculpatory' statement."

20. That court held that, in the circumstances of that case, the limited admissions by the appellant were not significant in relation to the central issue, were admissions that he was bound to make; and that, essentially and realistically, the statement was wholly exculpatory. Given the admissions of fact and the real issues in the case before us, we did wonder whether the cautioned statements here could properly be labeled as mixed statements.

21. In relation to D1, Mr Grounds says that there were admissions which turned the cautioned statement into a mixed statement. They were, he asserts:

1. The statement by the defendant that he was in the vehicle on the night in question.

2. His statement that he attended the hospital and other private doctors.

3. The statement that he applied for assistance from TAVAS and obtained financial assistance.

4. The statement that he had obtained $35,430 from PW2 in July 1998.

22. The relevant admissions which counsel for D6 says are contained in the cautioned statements are these:

1. That the defendant said that his name was Joey. That is said to be relevant because the witnesses PW1 and PW2 said that one of the men was called Joey.

2. That the defendant said that he owned the vehicle which was involved in the accident; and

3. That the defendant admitted that he knew D5. This is said somehow to support the prosecution case of complicity in the conspiracy.

23. Much in these admissions was not truly at issue between prosecution and defence, covered as most were by admitted facts. That said, there was material there that could well be said to be in the nature of confession and avoidance - for example: I was in the vehicle but for an innocent reason. It was my vehicle in the accident but I was not there. We think, in all the circumstances, that the judge ought to have treated the statements as mixed. There was no express finding that the prosecution did not rely on the admissions in them, and we are told that the prosecution was anxious to put them in, although it is well known that a prosecutor might wish to lead evidence of such statements for reasons wholly disconnected from any admission in them - indeed they will sometimes put in statements which are clearly entirely exculpatory so that they might utilize them in cross-examination. That the judge did not, in convicting the applicants, rely on any of the listed admissions in the statements is clear enough and to that we shall return. But, in the event, argument has proceeded before us on the basis that the judge should have treated these statements as mixed.

The proviso

24. The categorization by a judge of a statement as wholly exculpatory when it ought to have been categorized as mixed will almost inevitably constitute a material irregularity, and we proceed on the basis that there was in this case such a material irregularity. But it does not inevitably follow in every such case that the verdict will be set aside. It depends on the case, the evidence, and the judgment. In this case, we are satisfied that there has actually occurred no miscarriage of justice; and that we can justly apply the proviso under section 83 of the Criminal Procedure Ordinance. As was said in Western v. Director of Public Prosecutions [1977] 1 Cr App R 475, at page 484G:

"... if having given an account to the police a defendant fails to give evidence in support of it, and there is no other evidence to support that account, it is highly likely that the weight to be attached to what the defendant has said [in a mixed statement] will be minimal...."

25. There was in this case no evidence at all to support what either defendant said by way of excuse or defence. In relation to D6, it was not even suggested in cross-examination that he was not present at the scene of the accident or at the material meeting before the accident. The evidence against the applicants was overwhelming. It is suggested that had the judge given some regard to the cautioned statements, it might have undermined the view he took about the inconsistencies in the evidence of PW1 and PW2. That is quite unrealistic. The judge was fully aware of the stand taken by the applicants, that D1 was saying he went for a joyride (the judge mentions it), that D6 was asserting that he was not even there (he mentions that too), and aware that it was suggested that PW1 and PW2 were unreliable; and he examined in particular detail, and in his judgment has dealt with, the suggested inconsistencies. We cannot see that the unsupported exculpatory assertions could, in the circumstances of this case, in reality, carry weight or such weight as would undermine the judge's findings. It is noteworthy, too, that the judge in this case has self-evidently not relied on any of the cautioned statements as against the applicants.

26. Our attention has been drawn to HKSAR v. Kong Siu-ming [2000] 2 HKLRD 449, and to the fact that in that case the proviso was not applied. That case is not authority for the proposition that the proviso is inappropriate in all such cases. Each case is to be examined on its own facts, the nature of the admissions and excuses, the central issues in the case, the admitted facts, whether the exculpatory part of a statement is in truth forwarded by way of explanation or qualification to an inculpatory statement or stands on its own, the weight of the evidence, what weight, if any, the exculpatory part should carry, and so on. Taking all these factors into account, we are satisfied that in this case the judge would inevitably have arrived at the same verdict, and that no miscarriage of justice has occurred, and that, accordingly, it is an appropriate case in which to apply the proviso.

Other grounds

27. There was an alternative ground, namely, that if the statements were wholly exculpatory, the judge failed to give sufficient weight to the statements as reactions of the applicants when first confronted by the police. That ground does not now arise because we have treated the statements as mixed. But we do say that that ground would not have succeeded. These statements were made nearly a year after the events in question and the account given by D1 was the very account he gave when he reported the supposed accident to the police. Spontaneity, and whether the statement adds any weight to other testimony, are key factors in such an exercise, and neither factor in this case falls in favour of the applicants.

28. We note too that in the grounds of appeal for D6, it is said, that the judge, whilst acknowledging the fact of D6's previous good character, has failed to have proper regard to that good character in assessing the cautioned statement . This is not a ground that was developed or even mentioned in argument before us. But in so far as it is there, it is part and parcel of the ground in respect of which we accept that there was a material misdirection. Nonetheless, we are of the same opinion, namely, that there has in the event been no miscarriage of justice.

Result

29. In the circumstances of this case and for the reasons provided, we grant each applicant leave to appeal against conviction. We treat the hearing as the appeal and, applying the proviso under section 83 of the Criminal Procedure Ordinance, the appeal against conviction in the case of each applicant is dismissed.