Tsang Wing Wing v. R.

IN THE HIGH COURT OF JUSTICE

APPELLATE JURISDICTION

Magistracy Appeal No. 306 of 1996

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J U D G M E N T

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1. The appellant was convicted on the 31st day of January 1996 of seven counts of 'Offering an advantage', contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. It was the case for the Crown that the appellant was introduced by a Sergeant LEE to a senior inspector of police, named LAI Kin-keung, at a restaurant in October 1993.

3. It was essential to the Crown case that that contact was made and because all that happened thereafter, which was, on the case of the Crown, a regular monthly payment by the appellant to the senior inspector of police of $6,000, continued from then until March 1994 and was terminated in April 1994 after LAI had told the appellant that he was leaving Mong Kok Police Station and a gratuitous sum of $3,000 was said to have been paid to him by the appellant.

4. The learned magistrate canvassed fully and carefully the whole of the evidence that was before him. The first complaint that is made by the appellant is that he failed to take sufficiently into account a number of matters which affected the credit of Senior Inspector LAI, as he then was, or had been, PW1.

5. I am satisfied from the learned magistrate's findings, both oral and written, that he was well aware of the background of PW1. He was aware that he was a man of no moral principle, that he had committed many offences, that he was a liar, and that he admitted to lying at times other than when he was under affirmation. The magistrate had fully in his mind that the witness had his own ends to serve in reducing his sentence on appeal, which had been adjourned until after he gave evidence. That all through his detention with ICAC, he had his own ends to serve, both by giving information for future prosecutions to reduce his sentence and to obtain preferential treatment in the manner in which he was housed.

6. I am satisfied that the learned magistrate properly approached this flawed witness and bore in mind the lack of corroboration of his evidence and the propensity that he might have and the reasons that he might have for giving false evidence in this case. I can find no complaint with his approach on all those heads.

7. He did, however, in his approach to the credit that he placed upon the evidence of LAI, PW1, reveal the workings of his mind. Firstly, in the oral reasons he gave at verdict, he said, and I quote: "I took into consideration the whole course of the matter as disclosed during this trial. I come to the conclusion that what he told in court is reliable for the following reasons: (1) he had, as early as 25 November 1994, mentioned in non-prejudicial statements to ICAC, implicating the defendant about the present charge long before he decided to plead guilty or decided to appeal."

8. Mr POON urges upon me that that was nothing more than the learned magistrate placing the time frame of the allegations against the appellant squarely before himself in assessing reliability. Had that been so, I would have expected the learned magistrate to have said, 'I considered various matters and then I came to the conclusion that the witness was reliable for particular reasons'.

9. He has, however, placed, as one of the matters upon which he concluded the reliability of PW1, the fact that he had given early non-prejudicial statements implicating the defendant. On the face of his record and taking into account that no where in the transcript is a direct or even oblique allegation of recent fabrication, I can do no more than consider that the learned magistrate may have been taking a prior consistent statement into account when assessing the credit of PW1.

10. When I say this, I am minded that later in his written reasons, the learned magistrate had this to say: "I found PW1 reliable on the following grounds: (a) he had, as early as 25 November 1994, implicated the appellant in the non-prejudicial statements long before he pleaded guilty or decided to lodge an appeal. This is admissible to rebut the allegation that PW1 fabricated the case against the appellant. It is an exception to the general rule against previous consistent statement."

11. The learned magistrate has given two conclusions, in respect of the statements made prior to charge, as to the basis upon which he considered them. I cannot consider them together as they differ, I must consider them as separate grounds. That being so, I cannot be sure that the learned magistrate did not rely upon the earlier statements to boost or establish the credit of PW1 and that he was wrong to have done so.

12. The perfected grounds of appeal deal with discrepancies between the statements made by LAI prior to giving evidence and his evidence in court. Mr POON argues that discrepancies, where they are omissions in the statement when measured against what was said in court, are not discrepancies. Perhaps differences is a better word than discrepancies.

13. I am, however, satisfied that the learned magistrate did carefully look at the differences between the evidence in court of PW1 and what he had said in his statements to the ICAC. I am satisfied he dealt with them properly and find no fault with him in respect of those matters.

14. There is, however, one more matter which causes me grave concern. It is trite law that a judicial officer may not compare the evidence with the prosecution with that of the defence. It is for the Crown to prove the case against an accused. The accused need prove nothing, and witnesses that he calls do not prove his innocence, although, as I am reminded by Mr POON, that evidence may be looked to see whether a doubt falls upon the evidence of the prosecution.

15. I am concerned by the learned magistrate's finding when he said, "I had carefully considered PW1's evidence. Having accepted PW1 as a credible witness, coupled with the fact that the role of Sergeant LEE was completely unnecessary, I rejected his evidence. I could not see why PW1 would have fabricated a role which was unimportant and yet easily disproved." Sergeant LEE, it will be recalled, was the police sergeant whom PW1 alleged introduced him to the appellant.

16. There are two matters here. Firstly, the learned magistrate did not consider that his role was necessary in any way to the case. Whilst it may not have been necessary to the prosecution, it did form an essential element in the case as far as the defence were concerned. Secondly, on the face of the statement that I have just quoted of the learned magistrate, it is inescapable that an interpretation may be put upon it that the learned magistrate, having decided that PW1 was a credible witness, that for that reason, and not by an analysis of the evidence of Sergeant LEE, he rejected him as not being a witness of truth. That matter is fundamental to the approach that the magistrate ought to have taken and on that alone I would have to allow the appeal.

17. The appeal is allowed in respect of each of the counts on the charge sheet and the sentence is set aside. The conviction is quashed.

18. Mr Poon.

MR POON: Yes, my Lord. I would ask for a retrial in this case because according to the ruling of your Lordship, the appeal is being allowed on technical grounds because the magistrate made two technical mistakes, and there is evidence to show that the -- to prove the case really, so I would ask for a retrial.

COURT: Yes.

MR POON: Thank you.

COURT: Mr Rodway.

MR RODWAY: My Lord, this evidence is now all getting somewhat stale. It arises from the events which were said to have occurred from the autumn of 1993 until spring of 1994, so it's between two and three years old. Witnesses' memories, of course, do fail when one thinks that the prosecution evidence rests solely upon the evidence of this man and must continously be regarded with the same suspicion, to quote again Sir Dennis Roberts or as we would say, that it's within our times, there's nothing to be drawn as far as the prosecutions concerning this appellant was concerned, and we would certainly ask your Lordship that there be no further trial.

COURT: Thank you very much, Mr Rodway.

The first matter I must decide is whether or not justice can be done for the appellant should I grant a retrial. I cannot see that the period of time which has passed, although of some length, is of such great length as to prejudice the appellant. I do consider however that public interest is such that this matter warrants a retrial and nothing in my findings alters that. The application for retrial is granted.

I/we certify that to the best of my ability and skill, the foregoing is a true transcript of the tape recording taken of the above proceedings.

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Dated the 12th day of June 1996