CHOW KIN LAM v. R.

1992, No. 530
(Criminal)

H E A D N O T E

Voir dire into admissions made by defendant at interview by ICAC - Defence not given opportunity to dispel adverse impression formed by judge upon listening in private to audio tape of interview - Admissions admitted in evidence - Convictions based on admissions quashed for material irregularity and as being unsafe and unsatisfactory.

IN THE COURT OF APPEAL

1992, No. 530
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence. We are now dealing with conviction.

2. On December 3, 1992, before Her Honour Judge Chua in the District Court, the applicant, a man in his late thirties and of previous good character, was convicted on two charges of conspiracy to defraud.

3. Sentence was passed on the 11th of that month. On each charge, the applicant received a concurrent term of three years and ten months' imprisonment.

4. The charges on which the applicant was convicted were the fourth and fifth charges. And, in the circumstances, it is unnecessary to say any more about them than that the scheme in each instance was one by which a bank was defrauded by false credit card transactions.

5. The applicant was arrested by the Independent Commission Against Corruption on October 17, 1991. He was interviewed by officers of the Commission that evening. The interview was conducted in Chinese. Without objection from the defence, the prosecution produced a transcript of that interview, a certified translation into English of that transcript and an audio tape of that interview. No admission was made by the applicant during the interview on October 17, 1991.

6. That interview was not the last encounter between the applicant and officers of the Commission. They said that they also interviewed him on October 18, 1991. And, in respect of that interview, too, they had a Chinese transcript, an English certified translation and an audio tape. Those, however, were objected to by the defence.

7. So a voir dire into their admissibility was held. That voir dire was crucial because the evidence on which the applicant was eventually convicted was what he said at that second interview.

8. According to the officers, the applicant was interviewed in the manner appearing from the second set of transcript, translation and tape.

9. According to the applicant, however, they had forced him - under the threat of being framed as the "mastermind" of the overall scheme - to participate, after two trial runs, in a bogus interview according to a script which they had fashioned.

10. At the conclusion of the voir dire, the judge was satisfied beyond reasonable doubt that the encounter on October 18, 1991, was a genuine interview and that what the applicant had said at that interview was said freely and voluntarily. So she admitted the relevant transcript, translation and tape in evidence.

11. As was his right, the applicant neither gave nor called evidence on the general issue.

12. Eventually, as we have indicated, the judge convicted on the strength of what the applicant said at the interview on October 18, 1991.

13. In the Amended Perfected Grounds of Appeal against Conviction filed on behalf of the applicant, there are six grounds. After Mr Egan, for the applicant, had addressed us on the fifth ground and before he reverted to certain earlier grounds in order further to develop his arguments on them, we invited Mr Zervos for the Crown to deal with the fifth ground. That ground reads as follows:-

"That there was a material irregularity in the course of the voir dire proceedings in that the learned trial Judge did not allow the audio tape of the contested record of interview to be played in open Court but rather retired to the privacy of her chambers where she alone listed to the tape in circumstances that were and are still unknown to the appellant and/or Counsel."

14. It is certainly a fact that at one stage of the proceedings Mr Egan, who appeared below as he does before us, had invited the judge to listen to the tape in open court. And the judge indicated that she did not need to hear the tape at that stage. Eventually, she listened to it on her own in her room.

15. In her Reasons for Verdict, the judge, referring to the applicant as "D2" since he was the 2nd defendant, said, amongst other things, this:-

"I also listened to both tapes and studied the transcript. Both the interviews were conducted cordially. At no point is D2's allegation he was prompted to say yes to an allegation of conspiracy borne out. In both interviews there are long pauses and non-committal responses by D2. Finally he made no complaint regarding his treatment. I was therefore satisfied beyond reasonable doubt on the evidence that the allegation of oppressive conduct, threat and persuasion by the officers were unfounded and that D2 had given the second interview freely and voluntarily."

16. Now, it seems to us that at least six questions arose:

(1) Was the atmosphere at the interview indeed cordial?

(2) If so, did that support the prosecution's case and undermine the defence's challenge thereto?

(3) If so, to what extent?

(4) Were there indeed long pauses between questions and answers?

(5) If so, did that support the prosecution's case and undermine the defence's challenge thereto?

(6) If so, to what extent?

17. In doing things as she did, the judge had - inadvertently but fatally - deprived herself of the assistance of hearing the defence on those questions. And concomitantly, the defence was deprived of the opportunity of being aware of and addressing her on those matters as ones which were troubling her.

18. Even though she had listened to the tapes in private, if she had come back to open court and put to the defence her anxiety over the cordiality (as she perceived it) of the atmosphere of the interview and what she regarded as long pauses, the harm of the privacy of that course could have been undone. Unfortunately, as things happened, she acted on her anxiety thus generated in private without alerting the defence of the same or giving them an opportunity to allay it.

19. In those circumstances, there has been a material irregularity in the course of the proceedings. Moreover, such irregularity, arising as it did in a voir dire which resulted in the admission of the sole evidence on which the convictions were eventually based, went to the result of the trial so as to render the convictions unsafe and unsatisfactory.

20. Accordingly, we grant leave to appeal, treat the application for leave as the hearing of the appeal, allow the appeal, quash the convictions and set aside the sentences.