HKSAR v. LOK KAR WIN AND OTHERS

HCMA501/99

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H E A D N O T E

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Held :

(1) Reference to "any person" in s.25(1) of the Organized and Serious Crimes Ordinance, Cap.455 includes the person or persons who committed the indictable offence from which the proceeds came.

(2) To prove an offence under s.25(1) of the Organized and Serious Crimes Ordinance, Cap.455 where it is alleged that the conduct complained of occurred outside Hong Kong, it is not necessary to prove that the conduct was a criminal offence in the country where it occurred.

(3) It is open to a Judge or Magistrate to change or reverse an earlier ruling made by him in the same proceedings when information or evidence comes to light which causes the Judge or Magistrate to conclude that -

(a) his earlier ruling was wrong and

(b) to continue the proceedings based on the earlier ruling would not be in the interests of justice and

(c) to continue the proceedings based on the new ruling would not prejudice a fair trial.

HCMA501/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 501 OF 1999

(On appeal from Eastern Magistracy Case No. ESC3680 of 1998)

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J U D G M E N T

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This is an appeal by Lok Kar Win ("D2"), Chan Chi Keung ("D3") and Wai Kwan Lung ("D4") who, on 16th March 1999, were each convicted of an offence of dealing with the proceeds of an indictable offence, contrary to s.25(1) of the Organised and Serious Crimes Ordinance and sentenced to 22 months' imprisonment following a trial which spanned two months before Mr R.B. McNair, a permanent Magistrate sitting at Eastern Magistracy.

The trial involved an allegation that the three Appellants, who were all professional footballers, were involved in a match-fixing scheme when they were representing Hong Kong against Thailand in a World Cup qualifying match in Bangkok in 1997. It was alleged they were parties to a plan whereby Hong Kong would lose the match, preferably by a score of 2-0 and they would then collect gambling winnings as a result. These convictions under s.25(1) were based on the fact that they received $30,000 each as winnings upon their return to Hong Kong. A key feature of the trial before the learned Magistrate was that an accomplice in the scheme, who I shall refer to as "PW1", was at first excluded from giving evidence as a result of a preliminary decision made by the Magistrate, but later the learned Magistrate reversed his decision and PW1 did give evidence both in the voire dire proceedings involving D3 and D4 and also on the general issue.

A number of matters have been argued on appeal. Broadly speaking, they fall into four categories :-

1) Legal arguments concerning s.25, Cap.455.

2) That the learned Magistrate's reversal of his decision to exclude PW1's evidence was a material irregularity.

3) Complaint that the Magistrate was wrong to admit into evidence and rely on the records of interview made by each Appellant.

4) Complaint that PW1's evidence was not properly evaluated and was relied on in support of the convictions.

I will endeavour to deal with all the matters raised in the appeal under these four headings.

1. Section 25, Cap.455

The relevant parts of s.25 provide as follows :-

"25. Dealing with property known or believed to represent proceeds of an indictable offence

(1) Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property.

....

(4) In this section and section 25A, references to an indictable offence include a reference to conduct which would constitute an indictable offence if it had occurred in Hong Kong."

All three Appellants contend that the convictions were wrong in law for two reasons. Firstly, that the section is not designed to catch the person who deals in the proceeds of his own offence. It is only intended for the person who deals in the proceeds of an indictable offence committed by another person. Secondly, it is submitted that before a person can be found guilty under s.25(1) where it is alleged that conduct took place outside Hong Kong it must be proved that that conduct constituted a criminal offence in the country where it happened. In this case the allegation was that there had been a conspiracy to cheat at gambling in Thailand but because no evidence was adduced to prove that that was a criminal offence in Thailand an essential ingredient of the offence had not been proved and the Appellants had no case to answer. I find in the Respondent's favour on both these issues for the following reasons :-

(a) Does the section include the original perpetrator as a person who might deal in the proceeds of his own offence?

Mr Lawrence Lok, SC for D2 argued this point on behalf of all three Appellants. He submitted that the whole scheme of Cap.455 was to catch money launderers. He submitted it was not the intention of the legislators to make an offender, such as a bank robber, guilty of not only robbing the bank but also under s.25(1) if he in some way dealt with the proceeds later. He argued that such an interpretation could give rise to absurd results. In support he relied on many references in Cap.212, the Offences Against the Person Ordinance in which the expression "any person" plainly meant any person other than the offender. Plainly, he argued, the legislators there did not intend it to be an offence to wound yourself, or conspire to murder yourself or furiously drive at yourself. He further relied on the authority of R. v. Arthur [1968] 1 QB 810 which stated that a person cannot be guilty of arson with intent to endanger life when the only person whose life is endangered is the person who sets fire to the house. He also prayed in aid provisions in s.25(2) and s.25A where statutory defences are spelt out which could only apply to a person other than the offender who has dealt with such proceeds.

I do not propose to recite the whole of Mr Lok's submission or Mr Bruce's response, both of which were well argued. This court concludes that Mr Lok's argument is incorrect. It is correct to say that the Ordinance includes, inter alia, provisions designed to deal with money laundering and criminal conduct with an international ingredient. To borrow an expression used by Mr Bruce it is saying, "Hong Kong doesn't like dirty money, don't bring it here". It was plainly within the contemplation of the legislators to catch both the bank robber and any person who later deals in the proceeds of the robbery regardless of whether the later dealer is the robber himself or someone else. Stealing money and then, by separate conduct, dealing with that money in some way are two separate offences in Hong Kong and can be committed by the same person. Had the legislators wanted to exclude the original perpetrator from s.25(1) they could have easily done so and would have done so. Such an intention would have been a simple drafting exercise such as the one employed in the definition of handling stolen goods where the expression "otherwise than in the course of stealing" is used.

References to the use of a phrase such as "any person" in a different ordinance as in the case of R. v. Arthur do not take the matter any further. Simply because common sense determines a particular interpretation of the words "any person" in one context, such as in a wounding case, it does not follow that the same interpretation must apply in a wholly different context such as smuggling dirty money into Hong Kong. The application of common sense to two different contexts can quite easily result in two different meanings or interpretations of the same phrase.

Furthermore I am not persuaded that the existence of other subsections in s.25(1) and s.25A which plainly do refer to a different person receiving the proceeds other than the original perpetrator is an argument for saying that the whole section only contemplates such a category of offender. Provisions such as the ones referred to were plainly essential for the proper operation of the new law but to say their inclusion must result in the exclusion of the original offender from the whole section cannot and does not follow.

(b) Is it necessary to prove that the conduct abroad was a criminal offence in the country where it happened?

This point was argued by Mr Gary Plowman, SC and further taken up in reply by his junior Mr Peter Duncan for D4 on behalf of all three Appellants. As I have already indicated, I find there is no such ingredient or requirement and the learned Magistrate was correct to so rule.

The argument is that a proper interpretation of s.25 is that the proceeds must be proved to have come from a criminal offence - an indictable offence if it occurred in Hong Kong or a criminal offence in the country where it occurred if the activity was abroad. It is argued that to interpret it otherwise would lead to an absurdity. It is further argued that guidance on the question of interpretation can be sought from the debates in the Legislative Council on the Ordinance prior to its enactment pursuant to the decision in Pepper v. Hart [1993] AC 593.

On the 'absurdity' argument, Mr Plowman cites examples where he says it would be absurd and not within the legislator's contemplation for a man to go abroad, do something lawful resulting in a profit, then come into Hong Kong with the money and find himself guilty of an offence.

On the Pepper v. Hart argument, Mr Plowman referred to a passage from the Hong Kong LegCo Report on 12th October 1994 where Dr Philip Wong is quoted as saying :-

" It has been agreed to limit the provision to proceeds of indictable offences; and proceeds of foreign offences which would amount to an indictable offence in Hong Kong. This latter application will help combat the internationalization of crime and prohibit criminals from making Hong Kong a haven of money laundering."

For three reasons, I have rejected the Appellants' argument.

Firstly, once it is accepted that fundamental to the legislation is that Hong Kong has strict laws determining what is and is not "ill gotten gains" or "dirty money", then it is far from absurd to say - don't bring your ill gotten gain to Hong Kong. It is Hong Kong's standards as to what is or is not "ill gotten" which matters, not the standards of the foreign country where the profit was made. The logical extension of Mr Plowman's argument is that one man could go to country A where, say for example, cheating at gambling was not a criminal offence, then bring his winnings into Hong Kong and would not contravene s.25(1) whereas another man might do precisely the same thing in country B where it was an offence and be guilty under s.25(1). Now, that would be absurd because such a man could bring money into Hong Kong from a country whose standards were lower than Hong Kong's but not from a country which had the same standards as Hong Kong.

Secondly, Hong Kong is concerned with its own perception of what should be regarded as criminal activity, not the standard of foreign countries and therefore the section spells out in s.25(4) that the determining factor is the conduct complained of and not whether that conduct happened to be an offence in the foreign country. Section 25(4) is specific and unambiguous and caters exactly for the situation where there has been conduct abroad and not where there has been the commission of a foreign offence abroad.

Thirdly, Lord Browne-Wilkinson in Pepper v. Hart stated that references to parliamentary material could be made where :-

"... (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear. Further than this, I would not at present go."

In my judgment, the words of the section are clear and do not require an investigation of the LegCo debate to resolve an issue of interpretation, but even the words were unclear, the remarks relied on would fail tests (b) and (c).

In conclusion on this point, it is worthy of note that the section by use of the words 'indictable offence' recognizes that it is concerned only with what is regarded in Hong Kong as the more serious types of criminal conduct. Thus a person making a profit from lawful conduct abroad which was merely a summary offence in Hong Kong would be excluded from s.25.

2. The learned Magistrate's reversal of his ruling concerning PW1's evidence

It was argued that the learned Magistrate's decision to reverse his earlier ruling that PW1's evidence was inadmissible was a material irregularity and that his reasons for so doing were flawed thus rendering the conviction unsafe and unsatisfactory.

The Magistrate, first of all, reversed his decision so as to admit PW1's evidence on issues relating to D3 and D4's voire dires. This ruling was made after D2's voire dire. The explanation for the timing of this reversal and its reason is simple. D3 and D4 had made two statements each, the first ones, in the morning were brief and self-serving. D2, however, had made admissions against interest on the first occasion he was interviewed. D3 and D4's admissions against interest were made during second interviews in the early evening. Beforehand, during the afternoon both D3 and D4 had been visited by PW1. What occurred during those visits, their purpose, what was said by whom and with what outcome, were all issues which were relevant to the question of the admissibility of D3 and D4's second interviews. These visits were referred to as "welfare visits". Later in the trial, he also reversed his ruling and permitted PW1 to give evidence on the general issue. In his Statement of Findings, he says this :-

"7(b) ... In the course of the individual voire dires it became apparent that the allegations of impropriety prior to interviews extended to the presence and acts of PW1. I found it would be unfair to the prosecution in light of the nature of the allegations to exclude PW1 from testifying in the voire dires and I allowed him to be called.

7(c) Upon completion of the voire dires I admitted all the contested interviews in as evidence proper at the trial. PW1 had been released from jail by this time, having served 8 months of his 12 month sentence. Upon application by the prosecution, objected to by all defendants, I rescinded my direction to exclude PW1 from the trial. The arguments and brief reasons are recorded in the transcript."

Mr Plowman submits that he had no grounds to reverse the earlier exercise of his discretion and even if his decision to allow him to testify in the voire dires was sustainable, his decision to let him testify for all purposes was plainly wrong.

The main criticisms of his reversal decision are firstly, that a Magistrate or Judge cannot reverse a ruling simply because he changes his mind and thinks his earlier ruling is wrong. Secondly, when reversing his ruling for the voire dire, the Magistrate made a clear distinction between the special issue and the general issue and stated that he would hear PW1 on issues confined to the voire dires only. He later, contrary to this statement, acceded to the Prosecution's application that he rescind his earlier decision completely and hear PW1 on all matters. Thirdly, that his reason for admitting PW1's evidence on the general issue was that PW1 was by that time a free man and so there was a material change of circumstances. However, it is submitted that the fact that he was not a free man at the time of the original ruling was not given as a reason for excluding his evidence. Fourthly, the Magistrate when allowing him to testify in the voire dire could not have been taken by surprise that his evidence was relevant to issues in the voire dire because he had been so informed when the objections to admissibility were stated orally and in writing by Defence Counsel. Fifthly, Mr Plowman expresses the concern that having heard PW1 in the voire dire, the Magistrate may have reassessed his credibility and therefore allowed him to testify on the general issue as well. Mr Plowman submits this change of mind by the Magistrate gives rise to grave concerns that he lacked the necessary objectivity when evaluating his evidence at the trial.

The cases of R. v. Murphy [1965] NILR 138 and R. v. Watson (Cambell) [1980] 1 WLR 991 were cited in support. These are authorities (of which there are also several in Hong Kong) supporting the proposition that a Judge has a discretion to reverse an earlier ruling concerning the admissibility of evidence. In the latter case, the Judge quoted with approval from Cross on Evidence :-

"The judge retains his control over the evidence ultimately to be submitted to the jury throughout the trial. Accordingly, if, having admitted a confession as voluntary on evidence given in the absence of the jury, the judge concludes, in the light of subsequent evidence, that the confession was not voluntary, he may either direct the jury to disregard it, or, where there is no other sufficient evidence against the accused, direct an acquittal, or, presumably, direct a new trial."

It is true to say that in all these cases (including all the Hong Kong cases) the point has been the correctness of a Judge's decision to exclude evidence that he had earlier ruled was admissible having heard new evidence which he had not been able to take into account at the time of his earlier ruling. It is true to say also that all the cases concerned the admissibility of admission against interest. Mr Plowman submits, and I agree with him, that the principle is not altered where, as in our case, the reversal is the other way round, namely, subsequently admitting evidence which had earlier been ruled inadmissible and where the evidence in question is accomplice evidence. Mr Plowman submits it can only be done in the light of new evidence. It is a unique feature of our case, however, that at the time of the first ruling, there had been no evidence at all. To that extent the evidence which the learned Magistrate heard in the voire dire which caused him to reverse his ruling was new.

In my judgment, Mr Bruce's response to this ground of appeal is entirely valid and I find that the Magistrate was entitled to admit PW1's evidence on both issues at the times he so ruled and had good grounds for so doing.

When giving his rulings, the learned Magistrate said firstly that he considered it in the interests of justice for PW1 to testify and that he could give relevant evidence. In both respects, he was right and both reasons acknowledge the fact that his first decision was fundamentally wrong. He had earlier erroneously concluded that the interests of justice would be best served by PW1 not giving evidence. He had the power to review his ruling and the more fundamentally wrong it was, the sooner he reverses it the better. It makes no sense to say that a Magistrate must continue the trial in a straightjacket, locked in by his own fundamental error when to do so would fly in the face of a just and fair trial.

On the voire dire point, namely what happened at the "welfare visits", the Magistrate only had the evidence of ICAC Officers on the one hand and the Appellants on the other. He naturally wanted to hear what PW1 had to say about them. The Defence's case was that the visits were the idea of the ICAC and that PW1 was told to induce D3 and D4 to confess. The Prosecution's case was that they were instigated by PW1 himself who wanted to apologise to them for telling the ICAC about their criminal involvement in the scheme. Plainly, it would not have been in the interests of justice to resolve that issue in the absence of PW1's testimony. The decision was made, after brief submissions, on the learned Magistrate's own initiative and was a correct decision.

Somewhat more difficult was his decision to let PW1 testify on the general issue. This was a separate and self-contained issue. The fact of the first reversal has no bearing on how this second issue should be resolved. One of the grounds for reversal is, however, common to both, namely it, in effect, put right, not a minor misjudgment by the Magistrate, but a fundamentally flawed decision which was contrary to the interests of justice. In addition, however, the Magistrate gave a reason for so doing. In a nutshell that reason was - "he is now a free man (he had been released after serving 8 months of his 12 month sentence) and this is a material change of circumstances". Mr Plowman complains that if his freedom was a reason to allow him to testify, then his lack of freedom should have been mentioned as a reason for preventing him from testifying in the first place. It is correct that at pages 481 and 482 of the transcript, the Magistrate lists seven matters which form the basis of his decision and a specific reference to the fact of PW1's custody is not included. However, in his Statement of Findings, he says the reasons for his decision can be found at pages 477 to 489. The reasons are not restricted to those listed on pages 481 and 482. There are clear references to PW1's custodial status, for example, "his lengthy incarceration" in the wider portion of the transcript to which the Magistrate refers.

Mr Bruce makes an additional valid point. The Magistrate gave as his reason PW1's freedom. Whether his incarceration was a valid ground for excluding his evidence in the first place is neither here nor there. In fact, it was not a relevant consideration. That is not the point. The Magistrate was saying - that fact concerned me at the time, so that concern has now been taken away. Further, common sense dictates that it was not the mere fact of custody which concerned him but what he perceived was happening whilst he was in custody, namely, threats, inducements, memory refreshing, preparing him to give evidence and so on. It is obvious that the learned Magistrate felt that all those concerns also disappeared once PW1 was no longer in custody.

There is, finally, no merit in Mr Plowman's final argument that there is a concern that the learned Magistrate may have lacked the necessary objectivity when evaluating PW1's evidence on the general issue by virtue of the fact that he had heard his evidence in the voire dire. In other words, he may have allowed him to testify on the general issue because he found him to be a credible witness in the voire dire, and if so, he is more likely than not to regard him as credible when he gives evidence a second time. With respect, this is an unmerited criticism, particularly of this Magistrate's professionalism, and more generally, of Hong Kong's system of Magistrates and Judges being triers of law and fact. There is simply nothing in any of the Magistrate's rulings or in his Statement of Findings which justify this particular ground of appeal.

3. The learned Magistrate's decision that D2, D3 and D4's records of interview were voluntary and admissible

D2 made one record of interview soon after 8:00 a.m. on the day of arrest. The Prosecution relied on it as a confession. The objection to its admissibly was based on allegations that it had been made as a result of inducements and threats from ICAC Officers and oppression. The inducements were alleged to have been made at his home at the time of his arrest, at a restaurant en route to the ICAC headquarters and immediately prior to the interview. PW1 was not relevant to and did not give evidence in D2's voire dire. D2 did testify in his voire dire.

The main thrust of Mr Lok's submission is that there was contradictory evidence from ICAC Officers as to whether D2 had been taken to a restaurant en route to the ICAC Offices. He also relied on inconsistencies between the evidence of ICAC Officers and D2's mother who gave evidence. His main complaint was not the mere fact of the inconsistencies but that the Magistrate did not deal with them adequately or at all in his Statement of Findings.

It is not incumbent on a Magistrate in his Statement of Findings to deal with each and every inconsistency and discrepancy in the evidence. A Magistrate must deal with inconsistencies in the same way as a jury is directed to. Namely, if the inconsistencies are important and material, they must be resolved, and when doing so, apply the proper burden and standard of proof. O'Connor J in R. v. Lam Kan Ming 1979, Cri App 607 summarized the duty as follows :-

"... The reasons given should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the case. The judge or magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

When admitting D2's record of interview and also D3's and D4's, the learned Magistrate in his Statement of Findings said this :-

"10. In considering the issues and evidence arising on the individual voire dires I reminded myself that the burden of proof beyond reasonable doubt remained on the prosecution throughout.

11. In reaching my decisions on the admissibility of each statement I considered all the evidence. I bore in mind that some of the prosecution evidence was inconsistent and contradictory. Altho' it is unnecessary for me to set out the evidence on the voire dire or my reasons for verdicts therein, it is apposite to comment here on two matters which merited particular consideration."

The two matters he went on to give particular consideration to were the restaurant visits and the 'welfare visits'. He then went on to set out the allegations and a selective summary of the evidence in which he referred to the fact that D2's mother had given evidence. In the circumstances, I am satisfied that the learned Magistrate was well aware of the issues and the inconsistencies and made a finding on the evidence which he was entitled to do and with which this court sees no grounds to interfere. It is implicit that he made decisions on matters of witnesses credibility on material issues and this court would only re-try those issues on the transcript in wholly exceptional circumstances. He was satisfied the statement was admissible and on the particular restaurant issue, he resolved the conflict clearly by saying :-

"I found that he (D2) had been taken to a restaurant, however nothing improper had occurred."

Mr Lok further complains of obvious mistakes in the Magistrate's Statement of Findings. In particular at paragraph 11(c), he says that D3 and D4 were taken to restaurants, whereas the evidence was that it was D2 and D3. He also points out that the statement says that D3 testified whereas in fact he did not. These errors, it was submitted by all Counsel for the Appellants, tend to show that the Magistrate got confused and lost track of the evidence to a degree that there should be a serious concern about his finding of guilt. Mr Bruce for the Respondent acknowledges these errors and accepts that in this regard it is a somewhat "sloppy" piece of work. This court does not disagree with that assessment as it does indicate a failure properly to check the statement before signing it. However the errors are for the most part typographical and do not, in my judgment, lead to a real concern that the Magistrate was confused so that a traversty of justice may have occurred.

Turning to the admissibility issue concerning D3's record of interview. The main thrust of Mr Cheng Huan, SC's complaint centres around the issue of the welfare visits. Three sub-grounds were argued. Firstly, the Magistrate failed properly to consider the evidence that both D3 and D4 made inculpatory statements after the welfare visits but had made exculpatory statements beforehand. Secondly, that whatever PW1 said to D3 during the welfare visit, the Magistrate failed to decide whether PW1 was acting as an agent of the ICAC at the time of the welfare visit, which if it might have been the case, would make him a person in authority. Thirdly, no apparent consideration was given to what effect the words uttered had had on the mind of D3 when considering whether or not he had made his second interview voluntarily. At trial, much of the examination and cross-examination, to which Mr Cheng Huan referred, concerned whose idea it was for PW1 to visit D3 and D4, what was said and by whom. Mr Cheng Huan conceded that the learned Magistrate made a specific finding about the purpose of the visit when he said in the Statement of Findings :-

"... I fully considered the circumstances and implications of these welfare visits. D3 and D4 each made cautioned admissions thereafter. I found that these visits had been initiated by PW1 for his own reasons. The lack of proper movement records attesting to PW1's visits resulted from administrative incompetence, not furtive and purposeful omission. While such welfare visits are to be deprecated, I found that they were not tricks or ploys used by the ICAC to obtain confessions."

But Mr Cheng Huan argued that is not enough. He stated, correctly, that the court must consider the Appellant's state of mind at the time of making the confession and not the ICAC Officers' belief about his state of mind. Naturally, Mr Bruce did not argue with this fundamental statement of law. However, the only sensible interpretation of the finding of fact was that PW1 could not have been viewed as a person in authority. He initiated the visits so as to apologise and thus the possibility that an apology from a co-accused amounted to an inducement from a person in authority affecting the voluntariness of an admission against interest simply does not arise. In addition the learned Magistrate did not have the advantage of hearing any evidence from D3 himself about his own state of mind.

Mr Cheng Huan also relied on the errors in the Statement of Findings to which I have already referred.

The grounds advanced by D4's Counsel Mr G. Plowman S.C. concerning the voluntariness of his record of interview are similar but not identical to that of D3. He complains that insufficient or no consideration was given to a number of factual issues including, the change of attitude between the first and second interviews, the allegation that the welfare visit was the ICAC's idea, the fact that there was no welfare visit to D2 who had already made admissions (although it should be noted here that D1 did also receive a welfare visit which was not followed by any inculpatory statements or interviews), and the lack of adequate documentation about the visit.

An additional ground advanced by Mr Plowman was that in the Statement of Findings the Magistrate said :-

"D4 did not rely on PW1's welfare visit as a ground of objection ..."

whereas it was in fact at the heart of D4's objection. For the sake of completeness, the Statement of Findings continues :-

"... however, I bore in mind that evidence when considering admissibility".

Dealing with the second point first, there was a difference between D3's and D4's objections to the interviews arising out of the welfare visits. It was D3's case that during his "welfare visits" inducements were made by PW1 himself, whereas no such objection was raised by D4. At trial, D4's Counsel said :-

"The grounds of the objection are that, it was recorded, following the offering of an inducement held out by a person in authority . It is alleged that the inducement was in fact held out by Mr Eric YEUNG Yan-tak, and it was to the effect that if my client admitted, then he would be permitted to continue with his football career.

It is the case for the 4th accused that this inducement was made between the two interviews when Mr YEUNG came into room 1054 with a colleague and Mr CHAN Tsz-kong. Getting even closer to the point that your Worship was making before, we don't rely for the objection on an inducement made by Mr CHAN Tsz-kong." (PW1)

Although the words used by the learned Magistrate, quoted above, could have been clearer, an analysis of his findings in relation to the voire dires makes it plain that he did not think that the fact that D4 received a welfare visit when PW1 was present was irrelevant and had no bearing on the question of voluntariness, but rather that D4 did not rely on any words spoken by PW1 as inducements. Mr Duncan at trial made it clear that the inducement objected to came from the ICAC Officer, Mr Eric Yeung.

The Magistrate did deal with and was aware of the issues. He said he considered all the evidence and submissions and I find he made a clear ruling. It is unnecessary to repeat the individual matters which it is said were not evaluated. I have already dealt with them when considering D3's case on this issue. His ruling was in the following terms :-

"I found it proven beyond any reasonable doubt that the admissions against interest made by each defendant in the contested interviews had been given free of prejudice or hope of advantage held out by a person in authority or his agent, without trickery or oppression. There were no reasons to exercise my discretionary powers to exclude the evidence for other reasons, such as unfairness. Having admitted the interviews as evidence in the trial proper, I considered the weight to be given them, if any. I found in each case substantial weight was to be given to the admissions against interest made by each defendant."

It is well established that a Magistrate is not obliged to give reasons for admitting admissions against interest at the conclusion of the voire dire part of the proceedings. He is expected to make a reasonable analysis of his decision in the Statement of Findings. Looking at his statement as a whole, the Magistrate in this case satisfied that requirement.

Although the Magistrate does not specifically say so, the records of interview standing alone, in each case, constitute a confession to the offence charged by the maker of each statement. The relevance of PW1's evidence in the voire dires was confined to a narrow self-contained issue and on that issue the Magistrate accepted his evidence and relied on it.

4. The evaluation of PW1's evidence in the general issue

All Counsel point to examples in the transcript where PW1's evidence was different in cross-examination compared with examination-in-chief and where he said things which do not support the prosecution case. Particular factual issues which were scrutinized under this ground of appeal included whether D2 received $30,000 directly from PW1 or not, whether each Appellant played his best in the match or not, whether D4 received $30,000 or less, whether D4 was recruited when in the Hotel or on the field of play and whether or not D4 had rejected PW1's proposals on previous occasions.

It is clear that PW1 on the general issue gave inconsistent testimony. That the learned Magistrate did not make a specific finding on each individual issue in the Statement of Findings is a complaint of some substance. However it is not a sufficient ground for upsetting the convictions for two reasons.

Firstly, the learned Magistrate, who saw and heard the witness, was plainly aware of the witness' shortcomings and made a clear and professional evaluation of him as a witness in general terms. He said :-

" PW1 presented as an inarticulate witness who appeared uncomfortable in the presence of the defendants. He was at times reluctant to testify and was occasionally hesitant, vague and unresponsive. At other times he appeared confident, assertive and sure of his evidence. He was a suggestible, obliging witness under cross-examination. When given the opportunity in cross-examination he occasionally agreed with defense counsel's questions and suggestions which had the effect of contradicting or modifying his evidence in chief. His obvious discomfort in testifying against his ex-teammates court was further manifest when he sought legal advice from the court on at least two occasions as to his duty to testify."

and later :-

" Having considered all the contradictions, inconsistencies and prevarication in his evidence, I found him to be honest and reliable on the material issues. To the extent he had resiled from his evidence in chief under cross-examination, as the trier of fact, I did not believe him. This was a witness clearly struggling to ingratiate himself to the defendants whom he'd implicated."

I do not consider it a useful nor indeed a proper exercise for this court to make a re-evaluation of a number of issues about which PW1 testified in order to determine whether this court would have come to the same conclusion. The learned Magistrate's assessment is clear and carefully worded.

Secondly because the issues themselves are not determinative of guilt. Whether or not a player played his best is not an ingredient of the offence. The place, time and identity of the person handing over the winnings are not ingredients of the offence. The most cogent evidence of the ingredients of the offence are to be found in the three records of interview. Given the Magistrate's assessment of PW1 as a witness, it is perhaps not surprising that none of the inconsistencies which emerged from his evidence on the general issue caused him to lessen the weight he clearly attached to the admissions in the interviews. Before convicting and based on admissible evidence against each accused separately, the Magistrate had to be satisfied that each had received money, knowing or having reasonable cause to believe that it was the winnings from the so-called "match-fixing" in Thailand.

This became a protracted and difficult trial. The Magistrate was faced with numerous factual issues where he had to decide what evidence was true and accurate and therefore reliable and what evidence was not. In carrying out what is frequently a difficult decision-making process, he is entitled to reject parts of what PW1 said in cross-examination and rely on what he said in-chief if he is sure that the latter is the truth. The Magistrate additionally warned himself of the dangers and difficulties attached to accomplice evidence.

At the end of the day he was satisfied that he had before him three guilty men, guilty of the offence charged and this court is satisfied that he had convicted them properly and according to law. I do not find that the grounds skillfully advanced by Mr Lok, Mr Cheng Huan and Mr Plowman merit a reversal of that conviction either on the basis that there were errors of law, or that the conviction was unsafe or unsatisfactory.

For all the above reasons the appeals against conviction are dismissed.

Appeal against sentence

The learned Magistrate sentenced each Appellant to 22 months' imprisonment. He took as a starting point 18 months and added 4 months for aggravating features. He treated all three Appellants in the same way.

He took into account the sentence which had been passed on PW1, the Appellants' clear records, the amount of money involved and the consequences to their careers as professional footballers.

The two aggravating features were expressed as being :-

"(1) the international aspect of this case, having the potential to have damaged Hong Kong's international sporting reputation and seriously impugning the reputation for integrity of Hong Kong sportsmen and women, and

(2) the defendants' acts were a gross breach of the trust reposed in them by the selection committee on behalf of the people of Hong Kong."

D2 and D3 were also fined $30,000.

All Appellants argue that 22 months is wrong in principle and manifestly excessive. In outline, they argue that the aggravating features were either not aggravating or if they were, should have been taken into account in deciding a starting point for this particular case and did not merit an increase of almost 25% on the Magistrate's starting point.

In my judgment, for the combined reasons that the Magistrate passed a deterrent sentence on first offenders and also increased the sentence because of features which, although undeniably true, should not have merited a 25% enhancement, he fell into error.

Anybody convicted of this type of offence in these circumstances can expect a prison sentence to add to the devastation which results from the almost inevitable loss of career.

Before interfering with sentence, this court must be satisfied that the sentence was either wrong in principle or manifestly excessive. I have already indicated that I am satisfied of the former. Bearing in mind that the expression "manifestly excessive" means not that it is far too long, but that it is too long and clearly so, I am satisfied that this case falls into the second ground also. I will therefore substitute shorter sentences based on the following reasons :-

(a) PW1 pleaded guilty to conspiracy to cheat at gambling and was sentenced to 12 months' imprisonment. No starting point that I am aware of was mentioned at the time of sentence. He was clearly the ringleader and the instigator of the whole scheme. There was evidence that he had been involved in similar schemes beforehand and there was evidence that his winnings were much greater, namely, $80,000. It is reasonable to say his starting point for that offence was 18 months.

(b) To avoid any sense of grievance, I think it appropriate to assess the relative criminality of the others from that starting point. These are sentences which are peculiar to the facts of this case and the unusual twists and turns that it took.

(c) A proper sentence for one of PW1's recruits convicted after trial for the offence of conspiracy to cheat at gambling would be 15 months' imprisonment.

(d) The offence contrary to s.25(1) of Cap.455 should, in this case, be regarded with the same seriousness even though proof of that offence is complete merely on proof of receipt of the winnings in Hong Kong with the requisite knowledge. I consider 15 months to be a just and proper sentence.

(e) Were the roles played by D2, D3 and D4 identical or not? I find they were not. D4 is entitled to a slightly shorter sentence because of the mitigation advanced that he was only recruited at the last minute, it was not clear that he knew exactly how much money he would get for his part, he only played for 10 minutes and he had resisted previous similar approaches by PW1.

I substitute the following sentences :

D2 and D3 - 15 months' imprisonment.

D4 - 12 months' imprisonment.

The fines of $30,000 remain. In that it represents the same sum that was won by the Appellant, it was probably inadequate. I accept that an additional fine was appropriate but the quantum should, in my judgment, have been more than what amounts to merely paying back one's ill gotten gains. However, in all the circumstances, I consider it unnecessary to increase the amount on this appeal.