THE QUEEN v. WAN YIU LING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 662 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial by a magistrate at Eastern Magistracy of conspiracy to offer an advantage to a public servant.

2. The offence was alleged to have taken place in January 1990. The appellant was arrested in September 1990 but was only charged some time this year, that is, almost three years later. The prosecution evidence against him consisted of his alleged verbal admission to the investigation officer of the ICAC at the time of his arrest and a cautioned statement which was taken from him some time later.

3. The circumstances relating to his arrest, the taking of the statement and the contents thereof are clearly most relevant in this case.

4. In September 1990, the ICAC had been making investigations for some time into alleged briberies of the officers of the Television and Entertainment Licensing Authority. They had some information relating to the owner of Hoi Sum Kai Amusement Games Centre. On 12th September 1990, early in the morning, at 5:50 am, a team of investigation officers led by PW1 and armed with a search warrant went to certain premises in Hong Ling Building which was the home of a Mr Wan Yiu Sun who was the younger brother of the appellant. They had instructions to search the place and to arrest Mr Wan.

5. When the officers were there, they arrested Mr Wan and searched the premises. They did not find anything of interest and indicated that they wished to search some other premises in Portland Street. According to PW1, after some conversation with Mr Wan, he came to know that the appellant was the owner of the Hoi Sum Kai Amusement Games Centre. PW1 said that because of this piece of information, he released Mr Wan because according to his information, it was the owner of that games centre which was under suspicion. That was, he said, about 7:35 am. However, notwithstanding such release, the team of officers went with Mr Wan to the hair-dressing salon in Portland Street to conduct a search. They could not gain entry to the salon. Again, although the officers said Mr Wan was no longer under arrest, they returned to his home in Hong Ling Building. It was there that PW1 paged the appellant. He later spoke to the appellant on the telephone telling him that he was suspected to be involved in offering bribes to officers of the Television and Entertainment Licensing Authority. The appellant was asked to come over to his brother’s home where the officers were waiting. Meanwhile whilst waiting, the officers however took a statement from Mr Wan.

6. When the appellant arrived, PW1 arrested and cautioned him for the offence of offering bribes. They then went to the salon in Portland Street to conduct a search which took about one hour. Some bank documents were seized. Following that, they went to the Hoi Sum Kai Amusement Games Centre in Quarry Bay to conduct another search. Some other bank documents were also seized. None of the seized documents were produced in court. The appellant was then taken back to the ICAC headquarters in Central.

7. According to PW1, while the appellant was in the salon at Portland Street, he admitted to PW1 that the offering of bribes was arranged by a Mr Wong Kwok Hung but that he was not clear how this was done. In the ICAC office, an interview of the appellant commenced at about 1:30 pm, after he had been provided with lunch. The statement was made under caution and was exhibited as Pl. It was said that such statement contained admissions of the appellant’s involvement in the offer of bribes. I shall come to the contents of this statement at a later stage.

8. The learned magistrate in his statement of findings said that he was satisfied that the oral admission and the statement were made voluntarily and that he found nothing unfair in admitting them in evidence. However, he said that he was not sure as to the accuracy of the oral admission and he therefore did not rely on that as an admission of guilt. He was nevertheless satisfied upon the admissions contained in the cautioned statement that it was safe to act on them as establishing an agreement between the appellant and the said Mr Wong to offer bribes to the officers. He therefore convicted the appellant.

9. Counsel for the appellant, Mr Sanguinetti submitted that the conviction was unsafe and unsatisfactory. He relied on a number of grounds in this appeal. He pointed out that the learned magistrate had applied the wrong test with regard to the existence of a conspiracy when he said at page 89 of the appeal bundle that “it was safe to draw the inference” that there was a meeting of the minds. Counsel relied on the cases of R. v. Chung Kam To, unreported Cr. App. 393 of 1969; R. v. Chan Sau-tai [1969] HKLR 214; and R. v. Kwan Ping Bong, [1979] HKLR 1. These cases clearly established the principle that an inference to be drawn against an accused must be an irresistible or compelling inference. Counsel further submitted that the learned magistrate had misdirected himself in holding that there was no basis, apart from unfairness, for exercising his discretion to exclude the cautioned statement. It was wrong to restrict the discretion to unfairness alone. Counsel submitted that there had been several breaches of the Judges’ Rules when the cautioned statement was taken by the ICAC officers. He pointed out that although the 1964 Judges’ Rules were not expressly applied in Hong Kong, they were in fact common law principles which had always been applicable in these courts. Counsel alleged that there had been a fundamental breach of these common law principles which have now been enshrined in the Hong Kong Judges’ Rules 1992 and that the learned magistrate had failed to consider properly the breaches of the rules, such as rules II, III, IV and V. Counsel submitted that the learned magistrate should have regard to the background facts, the time the appellant had spent in custody before the statement was taken, the appellant not being given any opportunity to write-his own statement and the lack of certification by the appellant at the end of the statement. There was also a complaint by the appellant and his solicitors on the very day on which the statement was taken. The learned magistrate had failed to assess properly the oppressive nature of the questions asked. Counsel argued that the compliance of these common law principles and the Judges’ Rules was all the more important when the only piece of evidence against the appellant was his cautioned statement. The learned magistrate, it was argued, had never considered all these. Counsel further submitted that the learned magistrate was wrong to infer the existence of a conspiracy. Counsel said that mere intention was not sufficient and that there must be proof of an agreement. The learned magistrate had wrongly applied the case of Lloyd v. Powell Duffoyn Steam Coal Co. (1940) A.C. 733 and Phipson on Evidence 14th Edition, Chapter 16. These authorities should not be applicable to criminal cases. It was further argued that the learned magistrate had failed to consider carefully the relationship between the appellant and Mr Wong which might be perfectly legitimate. The learned magistrate had used these to support the inference of guilt after he had already decided there was a conspiracy. Counsel relied on the case of R. v. Hodge (1838) 2 Lewin 227. Counsel said that where the Crown relied on circumstantial evidence and the drawing of an inference, it was vitally important that the inference drawn must not only be consistent with guilt, but must be inconsistent with any other conclusion. Counsel summed up that in the circumstances of this case, there was a lurking doubt and that the conviction must be unsafe and unsatisfactory.

10. Counsel for the Crown submitted that the Judges’ Rules did not affect the learned magistrate’s discretion, such rules not being rules of law. He relied on the case of Leung Lai-por, which held that breaches of the rules alone were not sufficient to invoke the judge’s discretion if the statement was voluntarily made. Compliance or non-compliance of the Judge’s Rules was only one factor to be considered. Counsel relied on the cases of Lo Sun-wa; Lam Yip-ying [1984] HKLR 419; Lai Kin-ming, unreported, Cr. App. No.380 of 1983. He argued that the appellate court should not substitute its own discretion for that of the magistrate. It was only when the magistrate’s conclusion was one which no reasonable tribunal could have reached or was manifestly wrong that the appellate court should interfere. Counsel argued that the time spent by the appellant waiting before the taking of the cautioned statement did not and should not have the effect of sapping his will. Counsel submitted that the learned magistrate had not applied the wrong test. This was not a case of purely circumstantial evidence. The magistrate was asked to decide whether he was satisfied that there was an agreement. There was the evidence of the appellant in the statement from which the learned magistrate was entitled to conclude that there was an agreement. He was also entitled to look at the surrounding circumstances including the relationship between the appellant and Mr Wong to draw his conclusion. Counsel submitted that the magistrate had carefully considered all the evidence and had come to the correct conclusion which was clearly stated in the Statement of Findings.

11. The only evidence against the appellant was the alleged verbal admission made to the investigation officer in the salon at Portland Street and his cautioned statement made in the office of the ICAC. Both statements were admitted by the learned magistrate. He said that there was no ground for him to exercise his discretion to exclude the statements. He said that the appellant was a mature man and should be in a position to say what he wanted to say when he was questioned. The magistrate also said that he considered the pace and nature of the questions and answers and thought that they were perfectly proper and that they did not amount to any oppression or objectionable cross-examination. He said that he was mindful that counsel for the appellant in the lower court had made some useful points on the operational log as to mistakes and inconsistencies. But he found the officers to be credible witnesses, and that nothing in the case had raised any doubt in his mind. He also added that although he admitted the oral admission made during the search in the Portland Street salon, he could not be sure of the accuracy of what was said because there was no contemporaneous record. He therefore did not rely on that verbal statement as admission of guilt.

12. With respect to the learned magistrate, I am not sure I find it easy to understand his reasoning.

13. The learned magistrate acknowledged that counsel for the appellant was right in pointing out the discrepancies in the operational log with regard to the arrest and release of the appellant’s brother. The operational log was compiled and kept by the investigation officers. One would therefore expect that these discrepancies might affect the officers’ credibility. Yet the learned magistrate said that he found the officers to be good and reliable witness. It appears that these discrepancies were not simply careless mistakes.

14. First, according to the officers, they had been investigating into this case for several months. They were aware that the owner of Hoi Sum Kai Amusement Games Centre was involved in the corruption case. One would have thought that it was not too difficult to find out who the real owner of the games centre was. However, the officers said that they thought it was Mr Wan, the appellant’s younger brother, who was the owner. And so they searched Mr Wan’s home in the early hours of the morning and arrested him. After the search, but before they went to the salon in Portland Street, they were told by Mr Wan that the appellant was the owner. According to the officers, they thereupon released Mr Wan. I found this rather amazing. After nine months of investigation, they thought Mr Wan was the suspect. Yet they could so easily accept Mr Wan’s words and released him without even proceeding to make further investigation or to search the other premises, particularly the games centre.

15. Second, according to the officers, Mr Wan was released at about 7:35 am. There was however no record of this in the operational log. On the contrary, the log had an entry saying that Mr Wan was released at about 8:30 am. The explanation given was that it was another officer who might have forgotten to put down such an entry in the log at 7:35. That is not convincing. Even if Mr Wan was indeed released at 7:35 and it was only an omission in the log, one wonders why there was an entry at 8:30 of his release. That entry was clearly incorrect. Was it another oversight? Was Mr Wan released at 7:35 or 8:30 am?

16. Third, although the officers said Mr Wan was released at 7:35 am, they went with him to the hairdressing salon in Portland Street. If Mr Wan was no longer under any suspicion and was released, there was no reason why he should be brought along to the salon.

17. Fourth, after the fruitless trip to Portland Street, it was surprising that the officers returned with Mr Wan to his home in Hong Ling Building. Mr Wan should have nothing to do with the case or their investigation. Why did they return there? It was there that the officers paged the appellant and subsequently spoke to the appellant on the telephone and asked him to come. The explanation given by the officers for returning to Mr Wan’s home was to get a telephone to ring up and contact the appellant. I do not think that is convincing either.

18. According to the officers, the appellant was told on the telephone that he was suspected to be involved in bribing the officers of the Television and Entertainment Licensing Authority. He was asked to go to Mr Wan’s home where the officers were waiting for him. One would not expect that an experienced officer would disclose to a suspect on the telephone that he is under suspicion until he, the officer, sees the suspect or has the means of ensuring that the suspect would come. As it turned out, the appellant did go there. It was put to the officers that an inducement was made by the officers to the appellant that if the appellant did not co-operate, his brother, Mr Wan, would be affected in his application for immigration to Canada. This was of course denied by the officers. But why would the appellant go knowing full well that the officers were waiting there to arrest him? Was it because the officers had made such an inducement to the appellant and hence had expected him to      come Mr Wan’s home upon being told on the phone? Then there was the complaint made by the appellant’s solicitors on the very day of the interview.

19. Another thing which I found difficult to understand was that during the time when the officers were waiting for the appellant to come, they took a statement from Mr Wan. If the officers had accepted that Mr Wan was not involved and had indeed released him earlier, I do not understand why they had taken that statement from him. What would be the use of such a statement? The explanation given by the officers was that that was done to “clarify that Mr Wan was not the owner” of the games centre. If they had earlier accepted that he was not, there was simply nothing to clarify. If they had wanted a confirmation in writing, they should have done so before they “released” him at 7:35 or at least before they all went to Portland Street for the first time.

20. Finally on this aspect of the case, it appears that the officers went at about 9:10 am to the hairdressing salon with not only the appellant but also Mr Wan, the brother. The operational log even said that they went with the “Wans”. If Mr Wan had indeed been released, why should he go again with them? It was said that Mr Wan went there on his own volition. This might be true since the appellant was his elder brother and he might have been concerned for him. It is not disputed that Mr Wan did go together with them. However, none of the officers who gave evidence knew what Mr Wan was doing in the Portland Street salon or where he was.

21. Most if not all, of these points had been raised by counsel before the learned magistrate who remarked that such were useful points. The court was of course only dealing with the appellant and not his brother Mr Wan. However, these were the circumstances under which the appellant was arrested and investigated. This was the evidence given by the officers. One would have thought that in the absence of satisfactory explanations on these points and discrepancies, the credibility of the officers should have been put in doubt. I must say these are points which have made me feel rather uncomfortable with their evidence.

22. I am also concerned about the evidence relating to the oral admission alleged to have been made by the appellant during the search in the Portland Street salon. The learned magistrate was aware that there was no contemporaneous record of this and that there were significant differences in what was said by PW1 and PW2. He said that although he was sure that something along these lines was said, however he could not be sure as to the accuracy of what was said. At the end, he said he did not rely on that as an admission of guilt.

23. It is clear that there was nothing about this admission in the operational log made by the officers. None of them had made any post-record of it. Furthermore, when a cautioned statement was taken from the appellant, there was no reference at all to this oral admission made at the scene. The statement started and finished as if no such admission was made. I can find no satisfactory explanation as to why there was no record of this important piece of evidence. That oral admission was also under challenge by counsel for the appellant. If the learned magistrate had admitted it in evidence, it should follow that he must have been, as he said he was, satisfied beyond reasonable doubt that such admission had been made. If so, I fail to see how it can be said that he was satisfied that something was said, but was not sure as to the accuracy of what was said. What then had he admitted in evidence? In these circumstances, in view of the discrepancies between the two prosecution witnesses the fact that the magistrate was not satisfied as to the accuracy of what was said and the total lack of record of such oral admission, I am not sure that one could be satisfied beyond reasonable doubt that such an oral admission had indeed been made. This also casts doubt on the reliability of the officers’ evidence.

24. Then, there is also the submission by counsel that the cautioned statement was apparently taken in breach of the Judges’ Rules. I accept that these Rules which were applied in Hong Kong in 1992, are not rules of law. However, I agree that they are factors which the common law requires the judge to take into consideration when exercising his discretion as to whether the alleged admission or confession should be admitted or not. In the present case, it is quite clear from the evidence that the appellant was informed on the telephone by PW1 that he was involved in offering bribes to civil servants. The appellant was therefore under suspicion. He was later questioned and it was alleged that he had made a verbal admission. However, there is no evidence that before he uttered such admission, he was cautioned. (See Rule II of the Judges’ Rules.) If he had made a verbal admission, why was it that this was not reduced into writing? If there had been evidence against the appellant he should be asked whether he would like to make a statement or to answer questions put to him. Apparently this was not done when the cautioned statement began. (See Rule III of the Judges’ Rules.) At the end of the statement, he should be asked to read it and to make any corrections, alterations or additions as he wished. In other words he should be asked to confirm that the statement taken was true. (See Rules IV and V of the Judges’ Rules.) Yet in the present case this was not done. All the investigation officers did was to say :

“I have no further question to ask you, please take a look at the above record and please also initial at each answer and correction underneath each page. If you have any addition you can do so.”

This in my view was certainly different from asking him to confirm the truth and accuracy of the statement.

25. The learned magistrate dealt with all these by saying that he was sure there was no ground upon which he could exercise his discretion to exclude the statement on the basis of unfairness. He seemed to suggest that because the appellant was a mature man, he could say what he wanted to say to the interviewer. That, however, was to ignore the reality of the situation. He was interviewed in an office in the ICAC headquarters. He was questioned. He was not given the option to make a statement or to answer questions. In these circumstances, one would not expect a layman to refuse to answer questions but to insist on making his own statement. What also concerns me is that the learned magistrate appeared to say that he had considered the pace and nature of the questions asked and that he thought that this was perfectly proper and that it did not amount to any oppression or objectionable cross-examination. With respect, I find it difficult to understand how the learned magistrate could make the comment that 23 questions in just over two hours reflected the slow speed of contemporaneous handwriting recording in Chinese characters and that it also demonstrated that this was not interrogation in the oppressive sense. Looking at the evidence and the statement, I am not free from doubt that the statement was taken properly and that the appellant was treated in a fair manner.

26. What also causes me concern is the way in which some of the questions were put to the appellant. The statement began by the officer PW1 telling the appellant that he was suspected of the alleged offence and that he wanted to ask him some questions. Then he cautioned the appellant. The interview proceeded in the form of questions and answers. In question 6, the officer told the appellant the allegations against him. The appellant gave an answer which I shall deal with later, Although this answer may be regarded as somewhat incriminating, I do not think it is so clear or unequivocal as to amount to an admission that the appellant had actually paid or agreed to pay any bribes. Yet the next question appeared to assume that he had already admitted such payment. It asked :

“Then after you had paid money to the staff of the Licensing office via Wong Kwok-hung, what advantage did you have in return?”

The appellant then answered that Wong Kwok-hung had successfully applied for extra game machines for him and had helped him to tidy up the place before the inspection by officials from the Licensing office. But the following question asked :

“Then how much was the bribe that you paid for this incident?”

At a later stage the officer asked :

“Who proposed bribing the officials of the Licensing office?”

Question 15 also asked :

“Then did you offer advantage to the officials of the Licensing office via Wong Kwok-hung?”

27. Having looked at the cautioned statement, I have the impression that some of the questions were not only in cross-examination style but also amounted to leading questions as well. In many places, the questions had assumed that the appellant had committed the alleged offence and had twisted the answers which preceded them. In my view, this line of questioning could not be described as fair.

28. I agree with Counsel for the appellant that where the only evidence against an accused consists of a cautioned statement, it is all the more important to comply with the rules of fairness including the Judges’ Rules. I am not satisfied that this had been done in the present case.

29. I now come to the contents of the cautioned statement. It is not disputed that the Crown had to show that there was an agreement between the appellant and Mr Wong Kwok-hung to offer bribes to the officers of the Television and Entertainment Licensing Authority. The learned magistrate said that he was sure that it was safe to draw the inference that there was an agreement between the appellant and Mr Wong. He added that the evidence was all one way. When one looks at the questions and answers contained in the cautioned statement, one would find that the gist of the answers was to the effect that the appellant had lent money from time to time to Mr Wong, that Mr Wong had from time to time helped the appellant in his business at the games centre, that Mr Wong had helped the appellant in obtaining a licence for an additional 27 machines at the games centre, that Mr Wong was familiar with the officers of the Authority, that the appellant knew that Mr Wong had dealings with the officers of the Authority but that he did not know exactly what Mr Wong had done, how much he had given the officers and that the appellant did not want to know.

30. Out of the 23 answers I think there are only four answers which might be said to implicate the appellant. Answer 6 said, inter alia, “it was Wong Kwok-hung who did it for me”. It seems from the answer that the appellant had lent Mr Wong money and that he knew that Mr Wong used part of the money to bribe the officers. However, when he said that Mr Wong “did it for me”, it might refer to the paying of bribes or the making of the application. This was because in his subsequent answers, the appellant did mention that Wong had helped him in the business and in making applications for licence. Then there are answers 13 and 14 both of which mentioned that Mr Wong would “buy off ” the personnels in the Licensing Office. That alone would seem to be incriminatory. Yet answer 13 also said : “I don't know if he had paid in fact, may be he had lied to me which I am not aware of.” Furthermore, answer 15 recorded this : “I don’t know how he used the money which he had taken from me. Sometimes I didn’t want to know or want to ask him either because I have no knowledge of how he used the money to ‘socialize’ with the officials.” Socializing the officials is clearly quite different from buying them off. What then did the appellant mean by buying off and/or socializing?

31. When one looks at all the answers as a whole, as the learned magistrate said he had, I doubt if one can say that the appellant had unequivocally agreed with Mr Wong to bribe the officials. I accept that one of the inferences that can be drawn from this statement is that the appellant had agreed with Mr Wong to bribe the officers. Yet the test is whether that inference was the only irresistible or compelling inference to be drawn or that it must be an inference which no reasonable tribunal would have failed to draw. I am not sure that the learned magistrate had applied the correct test when he said it was safe to draw that inference. Taking the statement as a whole, I am not sure that the inference drawn by the learned magistrate was the irresistible inference.

32. Having considered all the circumstances and the way in which the investigation officers had carried out the investigation and taken the cautioned statement, and bearing in mind what I have said earlier in this judgment, I would agree with counsel for the appellant that the conviction was not safe or satisfactory. In my view, at the end of the day, there was a lurking doubt in my mind as to whether the appellant had been fairly treated by the officers and whether he had been rightly convicted. For the reasons which I have given above, I would allow the appeal. The conviction would be quashed and the sentence set aside.