CHAN TUNG CHEUNG v. HKSAR

FAMC No. 7 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC 198 OF 1995)

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D E T E R M I N A T I O N

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee upon an application for leave brought under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2. The application for leave is made on the ground that substantial and grave injustice has been done.

3. The following matters are relied upon:

(1) The Court of Appeal wrongly rejected an application to adduce as fresh evidence before that Court a letter written by a witness Chan Shek-kwong ("Chan"), to the effect that he, Chan, had in fact given false testimony at the applicant's trial, in order to save himself. The letter was written to an inmate at the Lai Chi Kok Reception Centre. Chan was an accomplice and had testified under an immunity from the government.

(2) The trial judge misdirected the jury regarding evidence capable of amounting to corroboration of Chan's testimony: an error which the Court of Appeal failed to correct.

(3) Failure by the judge to direct the jury that out-of-court lies told by the applicant were not probative of guilt. The lies were in an affirmation made by the applicant in support of his application for bail pending trial: An error which the Court of Appeal failed to correct.

Fresh evidence in the Court of Appeal

4. Section 83V(1) and (2) of the Criminal Procedure Ordinance provides:

83V. Evidence

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice -

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal, thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

5. The applicant had filed a notice of motion asking the Court of Appeal "to call and/or to issue witness summonses to" eight persons: In other words, an application under s83V(1)(b) to compel those witnesses to attend and be examined before that court. Seven of those witnesses were to prove the authenticity of a letter which was written by the 8th, Chan, the accomplice. The need to call those seven fell away as it was common ground that the letter had been written by Chan. The Court of Appeal was therefore, on the notice of motion before it, left with an application to compel Chan's attendance as a witness. Had the matter proceeded in the usual way it would have been for the applicant to satisfy the Court of Appeal on several matters. Firstly, that the evidence it was being asked to receive would afford a ground for allowing the appeal, then to establish that the evidence was "likely to be credible and would have been admissible in the proceedings from which the appeal lies", and finally that there was "a reasonable explanation for the failure to adduce it" at trial. The application to call Chan was, however, not proceeded with as he had disappeared and was thought to be in the mainland. The application then (without any amendment of the notice of motion) became one which sought to have the letter received as evidence by the Court of Appeal.

6. The "evidence" to be considered was simply a letter which contained an admission by Chan that he had falsely testified against the applicant at the trial: It said nothing more of relevance to the case.

7. The first matter an appellate court must determine in such an application is whether the "evidence" if received would afford any ground for allowing the appeal. If this condition is not satisfied it will not be necessary for the court to consider the other matters. Plainly, in this case, the applicant failed at the first hurdle.

8. The letter makes no mention of the facts of the case but stands simply as a bald admission of perjury by a witness who has disappeared. The letter might conceivably have been used to cross-examine Chan if he should have later appeared as a witness and denied perjury. The letter standing alone is nothing more than an out-of-court admission of unparticularized perjury: by a person who has since disappeared. It is not "evidence" in terms of s83V(2) and could not possibly afford any ground for allowing the appeal. This ground of application must fail.

Corroboration

9. This ground turns upon the proper use of certain records, showing contact between the applicant and Chan.

10. The complaint is that the trial judge misled the jury by directing them that telephone and pager records were capable of corroborating Chan's testimony. The judge said this:

"What is the evidence which is capable of corroborating Chan Shek-kwong's evidence in some material respect? Now the pager and telephone records are undisputed and they are independent of the witness. They come from an independent source and there is no argument, they are agreed."

11. In the Court of Appeal, the applicant argued that this was a misdirection: Whilst the records were independent of Chan, they were nevertheless incapable of corroborating Chan's testimony. The Court of Appeal in effect agreed, but nevertheless upheld the conviction.

12. Counsel for the applicant says that in this regard the Court of Appeal erred, and the error amounted to substantial and grave injustice. To appreciate the point, the prosecution case must be briefly stated. The applicant was a suspect in a police under-cover operation. An under-cover agent, Inspector Chang, had successfully posed as a buyer of heroin and, in that capacity, had entered into an arrangement to buy heroin through the agency of the applicant. Chan (who was the applicant's brother-in-law) was able to procure a supply of heroin. The two men (the applicant and Chan) were in constant touch with each other by means of the telephone and pager, from about 18 January 1994 onwards, concerning "the stuff", meaning the supply of heroin. Eventually, an arrangement for delivery of "the stuff" was made on 21 January 1994, outside the Harbour View Holiday Inn. There, when Chan was about to deliver the heroin, the two men were arrested.

13. The applicant testified at the trial. He did not seek to deny the main outline of the prosecution case, but said that his contacts with Chan concerned jade, precious stones, figurines, perhaps smuggled goods; these were on behalf of a man called Ah Lung; he had nothing to do with heroin.

14. Obviously, the telephone and pager records tended to prove that contacts between the two men were made: but they were neutral as regards the central issue: Was the applicant dealing in drugs or other goods?

15. The Court of Appeal concluded that the judge in directing the jury had erred: Those records were not capable of corroborating the accomplice's evidence: That is now a matter of common ground. In dealing with this point the Court of Appeal said:

"The telephone contacts which the pager record show were not disputed by the applicant when he gave evidence. He said that he did have contact with the accomplice, more in fact than the pager record shows. And he gave reasons for innocent contact between him and the accomplice to the extent shown by the pager records and indeed beyond. We are wholly unable to regard this matter as one of any materiality in all the circumstances."

16. Can it arguably be said that the Court of Appeal has erred, to the extent that substantial and grave injustice has been done?

17. To understand what the Court of Appeal meant by the lack of "materiality in all the circumstances", it is necessary to look at the evidence more closely.

18. There is no doubt that the applicant had made contact with Chan at about 3.30pm on 21 January 1994, outside the Harbour View Holiday Inn. As to how such contact was made, the evidence came not only from the accomplice Chan but also from Inspector Chang, the undercover agent. Inspector Chang was in the applicant's car together with the applicant (who was the driver) and a person named Ah Lung. Inspector Chang had with him $730,000. The car was then stationary outside the Harbour View Holiday Inn. Inspector Chang asked "Why are we waiting?" and the applicant said: "We are waiting for my assistant to come and pick me up to collect the stuff." The applicant made a call on his mobile phone and then said: "My assistant is coming in a car." The applicant then told Inspector Chang that he should leave the money with Ah Lung in the car and go to the other car which would take him to collect the stuff. He then pointed out the white Saab driven by Chan which had arrived. Inspector Chang then entered the white Saab. Shortly after that, Inspector Chang got out of the Saab, went towards the boot and it was at this point that the police trap was sprung and the applicant was arrested, together with Chan. In the boot was found the 12 packets of heroin weighing just a little under 4 kilos.

19. Plainly, Inspector Chang's testimony supported the accomplice's evidence that the applicant was engaged in drug trafficking: that evidence came from an independent source. Equally clearly, the record of the call made by the applicant on his mobile phone from his car supported Inspector Chang's evidence as to the applicant's actions shortly before the delivery of the heroin was made. So, in this way, the record of that call lent support indirectly to the accomplice's evidence, implicating the applicant in drug trafficking.

20. However, the records of other telephone contacts were not capable of supporting the accomplice's evidence, even indirectly. Inspector Chang gave no evidence regarding the other calls.

21. Whilst the Court of Appeal's conclusion that the judge's misdirection was not "material in all the circumstances" was somewhat cryptic, what they must have meant was, in terms of s83(1) of the Criminal Procedure Ordinance, that the misdirection, though an irregularity at the trial, was not a material irregularity. In the circumstances, we are satisfied that leave to appeal should not be granted on this ground.

Out-of- court lies by the applicant

22. As to (3) above, the matter was dealt with fully by the Court of Appeal in its judgment. We agree with that court's reasoning.

23. This application for leave to appeal is dismissed.