CACC457/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO.457 OF 2003
(ON APPEAL FROM DCCC 272 OF 2003)
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BETWEEN
HKSAR
Respondent
and
WU WING KAI (胡詠紀)
1st Applicant
LAU TUNG CHEE ALAN (劉東馳)
2nd Applicant
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Before : Stuart-Moore VP, Stock JA and Lunn J in Court
Dates of Hearing : 25 May 2004 and 2 February 2005
Date of Judgment : 21 April 2005
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J U D G M E N T
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Stuart-Moore VP and Lunn J :
1. These applications are for leave to appeal against conviction.
BACKGROUND
2. Following their trial before Deputy Judge A. Wong in the District Court, the two applicants were convicted of a joint charge of offering advantages to an agent, contrary to sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap.201. The Particulars of Offence averred that the two applicants between 4 September 2000 and 31 March 2002, without lawful authority or reasonable excuse, offered advantages, namely, $950,000 to Tam Nai Yin, William an agent of, by virtue of his employment, the Chinese Temples Committee (“CTC”), Board of Management of the Chinese Permanent Cemeteries (“BMCPC”) and related bodies, as an inducement to or reward for or otherwise on the account of Tam Nai Yim, William, showing or having shown favour to the two applicants, Wai Shing Construction Company Limited (“Wai Shing”), Chang Quing Yuen Artwork Manufactory and Cheng Jiu (Guangzhou) Building Material Company in relation to his principal’s affairs or business, namely, by :
"(a)
concealing from his employer a conflict of interest on the part of Wu Wing Kai arising from a financial interest held by Wu Wing Kai in Chang Quing Yuen Artwork Manufactory and in Cheng Jiu (Guangzhou) Building Material Company;
(b)
showing or having shown favour to the said Lau Tung Chee Alan and Wai Shing Construction Company Limited by arranging expeditious payments in respect of contracts performed by Wai Shing Construction Company Limited on behalf of Chinese Temples Committee and the Board of Management of the Chinese Permanent Cemeteries; and
(c)
promoting or having promoted the image of Wai Shing Construction Company Limited by giving extra attention to problems encountered by Wai Shing Construction Company Limited in mid-2001 in respect of renovation work carried out by the company at Cheung Chau Pak Tai Temple and thereafter showcasing that work done by the company and thereby negativing criticism arising as a result of the problems encountered in mid-2001."
3. The judge sentenced each of the two applicants to a term of two and a half years’ imprisonment.
THE PROSECUTION CASE
4. In support of its case, the prosecution called as PW1 Tam Nai Yim, William, the person stipulated in the Particulars of Offence as the recipient of the advantages. He testified that at all times material to the charge he was the Executive Secretary of the Trust Funds, Temples and Cemeteries. Evidence was led that this organization fell under the Home Affairs Bureau of the HKSAR Government and provided administrative support to the eight charitable trust bodies stipulated in the Particulars of Offence.
5. Tam Nai Yim testified that he had been arrested by officers of the Independent Commission Against Corruption (“ICAC”) on 13 May 2002. On 31 May 2002, he pleaded guilty to a single charge of having accepted the $950,000 as an offeree, contrary to section 9 of the Prevention of Bribery Ordinance, Cap.201 on which same facts these applicants stood their trial as offerors. On that day, Tam Nai Yim was sentenced to a term of 28 months’ imprisonment.
6. The trial of the applicants began in mid-September 2003, by which date Tam Nai Yim had served all but three months of the sentence of imprisonment, that it was anticipated he would be required to serve.
7. Evidence was led that the CTC and BMCPC had duties to maintain and repair the temples and cemeteries respectively for which they were responsible. They did so by employing contractors. At all material times the 1st applicant was a member of the CTC. The 2nd applicant was a director and majority shareholder of Wai Shing. Tam Nai Yim testified that Wai Shing had been a contractor for the CTC prior to the material dates but that it first became a contractor for BMCPC in 2001.
8. In short, Tam Nai Yim’s evidence was that the enterprise began when he was invited to dinner at the Harbour Plaza Hotel by the 1st applicant. The 2nd applicant attended that dinner, after which they retired to a bedroom in the hotel at the request of the 2nd applicant who indicated he had something to discuss. There followed a discussion about the treatment of timber used in restoration work in CTC temples. Wai Shing was the contractor for work to be done at the Pak Tai Temple on Cheung Chau. The contract documents required the timber to come from A.J. & J., an Australian company. The 2nd applicant suggested that whilst the timber might be obtained from that company in Australia the processing or treatment of it could be done in the Mainland. The 2nd applicant indicated that he intended to set up a factory in Dongguan to do that work. The 1st applicant added to the outline of the plan provided by the 2nd applicant. He was told that if there were profit to be made by that factory he would have a share of it. At the end of the meeting, the 1st applicant took out a brown envelop from his blazer and handed it to the witness. When they left the hotel, the 2nd applicant paid the bill. Upon returning home, he opened the envelope in private and found it to contain one hundred $1,000 banknotes.
9. Tam Nai Yim testified that on eight occasions following the meeting in the hotel the 1st applicant had come to his office in Wu Chung Building and made further payments of money. On five occasions he was paid $50,000, which monies in whole or in part he deposited into his bank account. He correlated those payments to deposits of cash into his bank account by reference to bank statements. Those deposits were made on 6 April, 25 May, 24 July, 1 and 17 September 2001. Although the payments were $50,000 on each occasion not all of those monies were deposited into the bank account. Of the $600,000 in cash that had been found in his office at the time of his arrest by officers of ICAC on 13 May 2002, he said that it represented three payments : $400,000 of which was the last payment made to him in March 2002, which payment had been preceded by two payments of $100,000 each on earlier occasions.
10. Tam Nai Yim testified that he understood that the 1st payment of $100,000 had been made as a “cover-up” fee, that is to cover up the fact that the 1st applicant had a conflict of interest between his position on the CTC and his part in the setting up of a factory to process timber to be used in contracts with the CTC.
11. A week after the payment of the monies in the Plaza Hotel, the 1st applicant visited him in his office and told him that if the factory were profitable he would have a share in those profits. Two weeks later, at the invitation of the 1st applicant, he and the 2nd applicant travelled to the Mainland to view the site of the prospective factory. The 2nd applicant told him that this was the site at which he proposed to set up his treatment plant. From time to time the 1st applicant added or explained the plan outlined by the 2nd applicant. Li Yui, a person Tam knew as an employee of Wai Shing, was also present at the site. At a later date, on a Sunday, the three men and their wives visited what was now the completed factory premises in the Mainland. The 2nd applicant introduced him to the man appointed as the manager of the factory for him to explain the process of treatment.
12. Tam Nai Yim testified of occasions when, because of the monies he had received from the 1st applicant, he had gone out of his way to assist Wai Shing in difficulties that had occurred in that performance of contracts with the CTC. In the Pak Tai Temple project on Cheung Chau, difficulties had arisen because of the proximity of tolerated structures, the structural integrity of which was in doubt. At the instigation of the 1st applicant, the witness discussed the matter with the 2nd applicant and put his plans to a geotechnical engineer with the result that the proposals were accepted by the architect. Similarly, when told by the 1st applicant that there were complaints that, in the restoration work of the same temple, Wai Shing had thrown away old sculptures and bricks he had arranged a visit to the factory of the Assistant Director of Cultural and Recreational Department and the Executive Secretary of the Antiques and Monuments Office. In part, he did this because of the advantages he had received.
13. Immigration records of the movements of the two applicants and Tam Nai Yim (P14) showed that the three of them departed from and arrived at the same immigration centre in Hong Kong in journeys to and from the Mainland on 8 and 23 September 2000 and on a number of occasions thereafter, including Sunday, 25 February 2001.
14. On 13 May 2002, officers of ICAC seized documentation relating to the Mainland factory, Cheung Hing Yuen, following a search of the offices of Wai Shing. They included the company chop of Cheung Hing Yuen, a bank statement with Guangdong Provincial Bank, blank receipts in the name of Cheung Hing Yuen, a production record of Cheung Hing Yuen and business registration documents. Also led in evidence by the prosecution was a fax on Wai Shing letterhead dated 24 October 2001 addressed to the Cheung Hing Yuen factory from an accounting clerk at Wai Shing and copied to the 2nd applicant and Li Yui. Addressed in the document is the need for the factory to provide half-monthly accounts to that accounts clerk, so that cash could be provided to meet the bills of the factory.
15. Yuen Kwok Cheung (PW6) testified that he was an architect employed by Messrs Spence Robinson, an architectural consultant to CTC and BMCPC until late 2001. In the Pak Tai Temple on Cheung Chau project, he worked with Wai Shing. He paid two visits to the Mainland factory. On both occasions the 1st and 2nd applicants were present. On the 1st occasion, the 2nd applicant told him that he was the boss of the factory. On the 2nd visit, he was introduced by the 2nd applicant to a Mr Li, whom he knew as an employee of Wai Shing, and who was described as the manager of the factory.
THE DEFENCE CASE
16. Neither applicant testified in the trial.
The 1st applicant
17. In a record of interview of the 1st applicant adduced in evidence in the prosecution case, the 1st applicant had denied having any interest in Cheung Hing Yuen. In cross-examination of Tam Nai Yin, Tam agreed that the 1st applicant had never said to him that he owned the factory or any share in it. However, he said that he had been told by the 1st applicant “implicitly” that he could distribute a share of the profit to Tam. Tam said that on the very day of the first payment of monies to him by the 1st applicant at the Crown Plaza Hotel on 4 September 2000, he had associated that payment with a conflict of interest in the 1st applicant. He denied suggestions put to him that the 1st applicant had never paid him any of the monies about which he had testified. In making that denial he pointed out that he had admitted in evidence that he had been paid the $100,000 at the Crown Plaza Hotel, which monies had never been seized by the ICAC.
The 2nd applicant
18. Of the difficulties of the tolerated structures impacting upon the renovation of the Pak Tai Temple in Cheung Chau, Tam Nai Yin testified that the 2nd applicant had proposed a solution which, with modifications, had been adopted. Having come to learn from the 1st applicant about concerns in the Rural Committee and the Antiques of Monuments Board about the removal of sculptures from Pak Tai Temple, Tam confirmed that the 2nd applicant had advised him that the renovation work was being done at the factory site of Cheung Hing Yuen in the Mainland. It was in consequence of that fact that he arranged the visit to the factory site of, amongst others, the Executive Secretary of the Antiques and Monuments Office.
19. Of the occasion of the dinner at the Harbour Plaza Hotel, Tam testified that he had not known of the fact that the 2nd applicant had rented a room at the hotel until after dinner. He accepted that in the four video records of interview conducted of him by the ICAC on 13 and 14 May 2002 he had not mentioned the 2nd applicant, in particular that he was in the bedroom in the Harbour Plaza Hotel and had impliedly offered him a share of any profits of the prospective factory.
REASONS FOR VERDICT
20. The judge stated with clarity his approach to a determination of the credibility of PW1 Tam Nai Yin :
“I examined his credibility with great care. PW1 was arrested on 13 May 2002 for the offence of accepting an advantage. He had pleaded guilty to the charge, which is practically a mirror charge to the one in the present case. He was sentenced to 28 months’ imprisonment. That he would be a prosecution witness was part of his mitigation. The wish to get a discount in sentencing is an obvious factor in assessing the credibility of PW1.”
21. Of suggestions made in cross-examination by counsel for the 1st applicant that Tam had been prepared to accept assertions made to him as to events from ICAC, the judge concluded : “I do not find PW1 had accepted anything put to him by ICAC which were put arbitrarily or without basis .” He went on to say “I do not find PW1 was prepared to guess on factual matters in giving his evidence. In any case, most of the time PW1 gave sound reasons for his belief .” Of the issue of when it was that Tam had decided to be a witness for the prosecution the judge found “… he swifted (sic) somewhat. Eventually he said he decided when he was drafting his grounds for mitigation. He believed it would help him in mitigation .”
22. Of his conclusion in respect of PW1, the judge stated :“even though PW1 had been convicted of a corruption offence, having considered all relevant factors, in particular, whether he had been motivated by a hope with discount in sentencing or better treatment during custody, I am satisfied that PW1 is an honest and credible witness. ” Later, he determined :“I found that I can give the material part of his testimony full weight .” In light of that determination, the judge went on to find that Tam had received from the 1st applicant on nine occasions a total of $950,000 at which time Tam was an agent of CTC. The judge stated that he was sure that the 1st applicant was aware of his duty to make a declaration of interest in appropriate circumstances because of his membership of the CTC. Further, that Tam had testified that the 1st applicant had not made such a declaration nor was there any other evidence that he had.
23. The judge noted that products of Cheung Hing Yuen were used by Wai Shing in several of their projects, including Pak Tai Temple, with CTC and BMCPC. Having address the issue of the reason why the 1st applicant had made the payments of $950,000 to Tam, the judge concluded :“Taking into account the whole circumstances including the relationship between PW1 and D1, their respective role, power and duties in CTC, there being no other relationship, payment in substantial amount, there being no evidence of any other legitimate explanation, D1’s zealous involvement in introducing Cheung Hing Yuen to PW1 and his knowledge about it, I am sure that I can draw the only irresistible inference, that the intent of offering PW1 the advantage was to induce DW1 or to reward him for showing or having shown favour to him by concealing from CTC D1’s conflict of interest arising from his holding of a financial interest in Cheung Hing Yuen. What D1 expected of PW1 was in relation to PW1’s principal’s affair or business. No approval had been given to PW1 to accept the advantage .”
THE 2ND APPLICANT
24. Of the meeting of the 1st and 2nd applicants and Tam at the Harbour Plaza Hotel, the judge determined that the 2nd applicant booked the hotel room and settled the bill. He accepted the explanation of Tam for his failure to mention in the video records of interview of the 13 and 14 May 2002 the presence of the 2nd applicant at that meeting.
25. Of the role of the 2nd applicant in Cheung Hing Yuen, the judge took into account the testimony of PW2, Miss Wong Fung Kuen, an accounts clerk at Wai Shing, who testified that with the approval of the 2nd applicant she had assisted in setting up Cheung Hing Yuen upon the request of Mr Wong Chun Choy and that she had performed accounting work for Cheung Hing Yuen. Furthermore, the judge stated that he had regard to the nature of the documentation of Cheung Hing Yuen found at the offices of Wai Shing by the ICAC. Finally, he had regard to the evidence relating to the 2nd applicant’s role as testified to by Tam in the visits to the factory site. In the result he concluded “I am sure that D2 had a strong financial interest in Cheung Hing Yuen .”
26. Of the issue of whether or not the 2nd applicant was a party to the payment by the 1st applicant to Tam in the Plaza Hotel, the judge found :
“In all the circumstances, including D2’s booking of the room; what he said during the hotel meeting; the plan involving Cheung Hing Yuen; D2’s role in Cheung Hing Yuen; the problem faced and anticipated by Wai Shing; what PW1 had done; the benefit of D2, Wai Shing and Cheung Hing Yuen as a result of the actions of PW1; and timing of the payments to PW1, I am sure I can draw the only inference that D2 was a party to the payment and that his intent in paying PW1 was that as set out in the charge.
What he intended PW1 to do or not to do was in relation to the affairs or business of PW1’s principle.”
THE GROUNDS OF APPEAL AGAINST CONVICTION
Ground 1A : material non-disclosure by the prosecution
27. In the amended perfected grounds of appeal against conviction both the 1st and 2nd applicants contend in Ground 1A that there was a material irregularity in the trial arising from the failure of the prosecution to disclose to the defence material it was required to disclose relevant to the credibility of Tam Nai Yin (PW1). On behalf of the 1st applicant it is submitted that the prosecution’s failure was :
“… to disclose a petition for a reduction in sentence addressed to the Chief Executive of the Hong Kong Special Administration Region and associated correspondence. …”
On behalf of the 2nd applicant it is said that the failure was :
"
The non-disclosure of information and/or documents pertaining to the arrangement(s) between the ICAC and PW1 (Mr Tam Nai Yin) for his remission of sentence subject to his undertaking or warranty to the ICAC to act as a prosecution witness in the proceeding.”
The 1st applicant
Ground 1
:
that the judge erred in law or, alternatively there was a material irregularity in the course of the trial, in that the judge did not express himself to be satisfied beyond reasonable doubt that the 1st applicant had a financial interest in Chang Quing Yuen Artwork Manufactory, but nevertheless proceeding to convict the 1st applicant of the charge on proof of Particular (a), namely from his employer a conflict of interest arising from the financial interest.
The 2nd applicant
Ground 1
:
that there was insufficient evidence to prove that the 2nd applicant was guilty of the charge, in particular that :
(i)
Tam Nai Yin (PW1) expedited payments of monies to Wai Shing;
(ii)
promoting or having promoted the image of Wai Shing in respect of the work of Cheung Chau Pak Tai Temple;
(iii)
the 2nd applicant was a party to payments made by the 1st applicant (PW1); and
(iv)
the 2nd applicant asked PW1 to do any particular thing.
Ground 3
:
that the judge erred in drawing the inference that the 2nd applicant had a “common corruptive purpose” with the 1st applicant from the fact that the 2nd applicant had booked and paid for the hotel room, in which the applicants and PW1 discussed the setting up of the Cheung Hing Yuen factory and the 1st applicant had given PW1 an envelope containing $100,000.
Ground 2
:
that the judge erred in fact and law in convicting the 2nd applicant of the charge in that there was insufficient evidence to establish that :
(i)
the 2nd applicant was a party to offering “advantages” to PW1 namely $550,000;
(ii)
the purpose of that conduct was in relation to PW1’s principal’s affairs or business; and
(iii)
the 2nd applicant was possessed of the requisite corrupt mental intent.
THE SUBMISSIONS OF THE RESPONDENT IN RESPECT OF GROUND 1A : NON-DISCLOSURE
28. In both written and oral submissions, it is conceded on behalf of the respondent that the failure to disclose to the defence that Tam had petitioned the Chief Executive for a remission of sentence was a material irregularity in the course of the trial. However, it is submitted that non-disclosure was “inadvertently done” and that, in the circumstances of this case, it is appropriate for this court to apply the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap.221 in that, notwithstanding the fact that there was a material irregularity in the course of the trial, no miscarriage of justice had actually occurred.
THE CIRCUMSTANCES OF NON-DISCLSOURE
29. At the commencement of the applications for leave to appeal against conviction pursuant section 83V of the Criminal Procedure Ordinance, Cap.221, in the absence of objection, we allowed the affirmations of Hung Chun Leung, Choy Man, Cheng Chun Wang, Michael Reid Scott and the affidavit of Shaun Patrick, Kelly to be admitted into evidence.
30. In short, the evidence established that, by a letter dated 24 March 2003 to the Chief Executive of the HKSAR, copied to the Secretary for Security and the Department of Justice marked for the attention of the Senior Assistant Solicitor General (Advisory), solicitors acting on behalf of Tam Nai Yin presented a petition dated 21 March 2003 signed by Tam Nai Yin seeking a reduction in the sentence of imprisonment which had been imposed upon him on 31 May 2002. By a memo of 2 April 2003, on behalf of the Secretary for Security inter alia , to Mr Michael Scott, Senior Assistant Solicitor General of the Legal Policy Division of the Department of Justice (“DOJ”) and Mr Ricky Chu, Head of Operations of ICAC both those departments were provided with copies of the petition and invited to report on it.
31. At no stage prior to or during the trial of the two applicants was the defence apprised of this information. Indeed, on 1 September 2003, solicitors acting for the 2nd applicant wrote to the DOJ reminding those responsible for the prosecution of this case of their duty to disclose all relevant unused material and asked specifically, inter alia , for disclosure of the following :
“
(b)
whether there are any correspondence between Tam Nai Yin or his solicitors and ICAC regarding Tam’s agreement be a prosecution witness;
(d)
the circumstances leading to Tam’s agreement to be a prosecution witness;
(e)
any notes, information and records concerning Mr Tam Nai Yin’s consent to be a prosecution witness;
(f)
any terms of conditions offered by ICAC or you to Tam for his consent to be a prosecution witness;…”
32. By letter of response the DOJ wrote on 2 September 2003 to the effect that an updated list of unused material would be served on the defence by ICAC within that week. The letter went on to assert :
“
(b)
there is no written correspondence between Tam Nai Yim or his solicitors and the ICAC regarding Tam’s agreement to be a prosecution witness;
(c)
during mitigation in court Tam through his solicitors indicated that he was willing to assist the ICAC in the investigation of other suspects. Accordingly, after Tam had been sentenced, the ICAC took a non-prejudicial statement from him;
(d)
there are no notes, information and record concerning Tam’s consent to be a prosecution witness;
(e)
no terms of conditions have been offered by the ICAC or the prosecution to Tam for his consent to be a prosecution witness.”
33. In the affirmation of Cheng Chun Wang, Clement, the ICAC officer responsible for investigating the conduct of the 1st and 2nd applicants, it is stated that in consequence of the receipt of the letter of 1 September 2003, from the 2nd applicant’s solicitors a conference was held by him with Ms Winnie Ho of the prosecution section of the DOJ. Ms Ho’s letter on behalf of the DOJ dated 2 September 2003 was in consequence of that conference. Mr Cheng stated that in the conference he did not reveal to Ms Ho his knowledge of the existence of an extant petition by Mr Tam to the Chief Executive of the HKSAR. He did not do so because “…as the ICAC had not yet made any comment in support of it and so I did not think, there was, as yet, anything to disclose. ”
34. It is clear from memoranda passing from the ICAC to the Secretary for Security dated 7 April 2003 and 23 May 2003 that the position of the ICAC in respect of the prospective testimony of Tam and any remission of sentence was, in effect, that it could only be assessed after Tam’s testimony and that in the meantime it was inappropriate for the ICAC to comment on the petition. Reference was made in the second memorandum to the fact that the trial of the two applicants at which Tam was to testify had been fixed for 16 September 2003.
35. Solicitors acting on behalf of Tam wrote again to the office of Chief Executive on 7 July, 4 and 21 August 2003 in effect asking for a decision to be made in respect of the petition. The letter of 4 August 2003 asserted of Tam that he “is very anxious to know the outcome of his application for clemency ”.
36. All the replies made on behalf of the Chief Executive to these letters, and indeed the initial reply of 1 April 2003 on receipt of the petition, asserted that the matter “has been relayed to the relevant authority for its consideration ”. If the position of the ICAC had been accepted by those advising the Chief Executive on the petition that no assessment nor comment on the merits of the petition could be made until Tam testified, no hint of that was made in the bland responses made to Tam’s solicitors.
37. Tam Nai Yin gave evidence over three days on 17 to 19 September 2003 respectively. On 26 September 2003, solicitors acting for Tam wrote to the office of the Chief Executive informing them that Tam had given evidence for the prosecution in the District Court asserting that “thereby he would be deserved for clemency by having rendered assistance to the prosecution to the best of his ability ”. On 15 October 2003, another firm of solicitors acting on behalf of Tam wrote to the office of the Chief Executive informing them that on 13 October 2003 the two applicants had been convicted in the District Court trial at which Tam had given evidence and that sentence had been adjourned to the 23 October 2003. It was asserted that Tam’s date for release from custody was 1 December 2003. Of Tam’s position it went on to say :
“In fact, in our view, once our client gave evidence in court on the lines of his statements to the ICAC, he has performed the obligation on his part, for which he should receive what he has been promised.”
38. The writer of the letter of 15 October 2003, Foo Tak Ching, makes it clear in a witness statement made to ICAC and exhibited to the affirmation of Hung Chung Leung that the language chosen was his and not that of Tam. The matters asserted were premised on the assumption that what Tam had told the ICAC in his witness statement was the truth and that by repeating the truth in his oral testimony Tam was entitled to expect that favourable consideration would be given to his petition. He had no instructions that anything had been promised nor that Tam was under any obligation.
39. On 29 October 2003, a letter was written on behalf of the Secretary for Security to the original firm of solicitors acting on behalf of Mr Tam advising them that an order had been made remitting the remainder of Tam’s sentence with effect from that day.
THE SIGNIFICANCE OF AND THE CONSEQUENCES FLOWING FROM THE PROSECUTION’S FAILURE TO DISCLOSURE TO THE DEFENCE THE PETITION FOR REMISSION OF SENTENCE LODGED BY PW1 TAM NAI YIN
40. In our judgment the respondent correctly concedes that the failure by the prosecution to disclose the fact that PW1 Tam had lodged a petition for remission of his sentence, which petition was extant and unresolved at the time that Tam gave evidence is a material irregularity in the conduct of the trial [see R. v. Maguire and others [1992] 94 Cr.App.R. 133 at p.147]. The judgment of Sir Anthony Mason NPJ in HKSAR v. Lee Ming Tee and Securities and Futures Commission [2004] 1 HKLRD addressed the issue of the scope of the prosecution’s duty of disclosure. He said :
"
170.
The prosecution’s duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case. The duty is not limited to the disclosure of admissible evidence. Information not itself admissible may lead by a train of inquiry to evidence which is admissible : Reg v. Preston per Lord Mustill. And material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit.
171.
The Melvin Melvin Melvin R. v. Brown [1994] 1 WLR 1599 at 1607A-C. It extends to other significant material which a reasonable jury could regard as tending to shake confidence in the credibility of the witness."
41. The three instances to which Steyn LJ referred as arising from the duty of the Crown to give disclosure of significant material which may affect the credibility of a Crown witness were :
"It is the principal reason for the rule that the Crown is obliged to disclose previous statements of prosecution witnesses : Archbold’s Criminal Pleading, Evidence and Practice, 1994 ed., paragraph 4-279. Another example is the disclosability of a request for a reward by a prosecution witness : Reg. v. Taylor (unreported), 11 June 1993; Reg. v. Rasheed (unreported), 17 May 1994. The most important illustration is, however, the rule that the prosecution is obliged to disclose previous convictions of a prosecution witness."
42. In approving Steyn LJ’s approach, Lord Hope in his speech in the appeal in the House of Lords went on to say in R. v. Brown (Winston) [1998] A.C. 367 at 377E :
"The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."
43. In R. v. Rasheed , (unreported), the Court of Appeal of England of Wales were concerned with the issue of the failure of the prosecution to disclose to the defence the fact that an important witness in the trial, Altheia Hall, had asked to be considered for a reward arising out of a murder committed in an attempt to rob a Securicor guard delivering cash to a branch of Barclays Bank. She had done so five weeks after the robbery and ten months before the trial. The Crown Prosecution Service were in possession of a message received by investigating officers from Ms Hall’s solicitors before the trial. The document disclosed the request and the reply to the effect that the police were not in a position to say whether Ms Hall might be entitled to make a claim. After the trial, Ms Hall received an award of £2,000.
44. In the judgment of the Court of Appeal, Steyn LJ in addressing the scope of the duty of disclosure in the prosecution said :
"… What about the request for a reward by the witness? There is, of course, nothing objectionable about the police or a company such as Securicor offering a reward for information which might lead to the arrest and conviction of a criminal. That is, however, not the point. As a matter of common sense a request for a reward by a witness may have a bearing on his motives for coming forward to give evidence. It must, therefore, always be disclosed by the police to the Crown Prosecution Service, and the prosecution must disclose it to the defence."
45. In determining that it was not appropriate to apply the proviso Steyn LJ went on to say :
"… Nevertheless, in the eyes of the jury Altheia Hall was an important witness. It is at the very least possible, or even likely, that counsel for the appellant would have cross-examined her about her request for a reward. He had nothing to lose since he had already challenged Altheia Hall’s credibility. How would such a cross-examination have affected the course of the trial? It may have been a damp squib. On the other hand, it may have seriously damaged Altheia Hall’s credibility. We simply cannot be sure what the outcome would have been."
46. In R. v. Michael George Davies & Ors [2001] 1 CAR 115, the Court of Appeal were required to review the safety of convictions in a trial which had taken place in 1990, which the European Court of Human Rights had adjudged to have been unfair. One of the witnesses called by the prosecution at trial, Duncan, was a registered police informant who had provided information to the police about the appellants immediately prior to their arrest. In those discussions with the police there had been discussions about the possibility of a reward being paid to Duncan at the conclusion of the trial. The information from Duncan was encompassed in a computer message described as “Message 111”. It alleged that two of the appellants and a man called Jason, not the 3rd appellant Johnson, were the robbers. In the event Duncan did in fact receive a reward.
47. In the judgment of the Court of Appeal, Mantell LJ said :
"… the failure to make known Duncan’s status as an informant together with the fact that he had received a reward and the content of message 111 was a material irregularity rightly condemned by the ECHR as a violation of Article 6."
48. Mantell LJ went on to consider the effect of the material irregularity upon the safety of one or more of the convictions saying :
"That in turn involves some consideration of the use to which such information might have been put at trial. It may be, as has been suggested, that the Crown would have elected to dispense with Duncan as a witness. If called, however, the fact that he had informed would not necessarily have impeached his credit. Rather the opposite. If, as suggested at trial, he had been one of the robbers, it was a remarkably bold move on his part to present himself to the police together with the evidence which might have led to his conviction, before, so far as he knew, the police had any kind of lead. Nor would the fact that he was expecting a reward have provided much ammunition, especially as he proposed to decline the reward offered by the victims of the crimes. Moreover, we are extremely doubtful whether counsel for Rowe and Davis would have wished much of the background information to emerge in the trial. After all, Duncan was consistent throughout as to Davis and Rowe being involved in these offences. On the other hand we can well see how the information might have been exploited on behalf of Johnson. Duncan may well have been vulnerable as to how it came about that he mentioned Jason rather than Johnson when first speaking to the police, and although we have seen his explanation offered to the Greater Manchester Police it is by no means certain that he would have had available the same ready answers at trial. And we can also see that if the switch from Jason to Johnson could be used to undermine Duncan’s credibility, some advantage might have accrued to Davies and Rowe. There is also the point made by Mr Mansfield Q.C. on behalf of Davies that if this information had been available it would have been possible to cross-examine the police and Duncan as to whether Duncan had been offered immunity from prosecution. It was, after all, the fact that Jobbins, Duncan and Griffin were never changed with any offence.
There is another aspect to this, though not formulated as a ground of appeal. Duncan told the jury that he was not arrested until December 22. He did not tell the jury anything about his earlier soujourn at Reigate police station. Because he was concealing his status as an informant he was also forced to lie about what had taken place in the 38 minutes interview. That could only have been in collusion with the police. It amounts to no less than a conspiracy to give perjured evidence. That is something that Mr Bevan and Mr Waters would not have countenanced at any cost. We find the fact profoundly disturbing. It must dent the credibility both of Duncan and the police officers directly involved."
49. In quashing the conviction Mantell LJ went on to say at p.149 paragraph 95 :
"In our view the case against all three appellants was formidable. The evidence against Rowe on counts 9, 10 and 11 was overwhelming. However, we are bound to follow the approach set out earlier in this judgment, namely assuming the irregularities which we have identified had not occurred, would a reasonable jury have been bound to return verdicts of guilty? In all conscience we cannot say that it would. At this distance we simply cannot assess the impact which the undisclosed material might have had on the case for and against Johnson."
50. In R. v. Smith and others [2004] EWCA 2212 (29 July 2004) the Court of Appeal of England and Wales addressed the issue of non-disclosure to the defence at or before trial of the fact that a solicitor acting for a prosecution witness, an accomplice co-conspirator in the alleged conspiracy to import cannabis, had sought to obtain from the prosecution for the witness benefits, including monetary benefits. At trial in cross-examination the witness denied having any expectation of payment of a reward. Of the material disclosed subsequent to the trial Latham LJ in the judgment of the court said (paragraph 17) :
"… The documents which have now been disclosed would have provided significant cross-examination material which could have undermined that assertion. Whether or not it would have done so is not a matter about which we can speculate. The appellants were entitled to disclosure of that material which could have had an effect on the verdicts of the jury. …" (Emphasis added)
51. Returning to the present case, the importance of the testimony of Tam Nai Yin (PW1) to the prosecution and thereby the significance of his credibility was adverted to in the judge’s Reasons for Verdict thus :
"33. The prosecution case relied heavily on PW1. He is a tainted witness. I examined his credibility with great care.”
Having noted that the witness had pleaded guilty to a charge of accepting an advantage and had been sentenced to 28 months’ imprisonment, the judge observed that his stated wish to be a prosecution witness was part of his mitigation. He went on to say :
"The wish to get a discount in sentencing is an obvious factor in assessing the credibility of PW1."
The judge went on to state that, in determining that PW1 was an honest and credible witness, he had considered “in particular whether he had been motivated by a hope for discount in sentencing or better treatment during custody ”.
52. Clearly, in that context, information that the witness PW1 had lodged a petition for a remission of that sentence imposed upon him, that he sought a reduction in it of seven months’ imprisonment and that, in part, he did so in light of the fact that he had agreed to act as a prosecution witness in the prospective trial of the two applicants was information that was plainly relevant to a cross-examination of PW1 as to his credibility and therefore disclosable to the defence. We are satisfied, as we have said, that a failure to disclose this information was a material irregularity in the conduct of the trial.
53. In written submissions it is contended on behalf of the respondent that the failure to disclose this material “was inadvertently done and that there was no deliberate concealment of this fact.”
54. The ambit of the duty of disclosure in the prosecution was addressed in the judgment of Sir Anthony Mason NPJ in Lee Ming Tee , 513 at p.559H :
"
161.
The prosecution’s duty is to disclose to the defence material (including information) in its possession or control. That will ordinarily include materials that have been gathered by the investigating agency (the police) and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor’s duty is to disclose is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency."
55. It is clear from a reading of the affirmations filed on behalf of the respondent in this case that the failure to disclose this information was not inadvertent but rather a considered decision by the ICAC officer in charge of the investigation. Having reached the decision that he did in respect of non-disclosure, it is clear that he kept that matter from prosecution counsel at the advisory stage and, although the matter appears to have been raised with counsel who prosecuted at trial in a general rather than specific way, from trial counsel as well.
56. The affirmation of Michael Scott of the Legal Policy Division of the DOJ, to whom a copy of Tam’s petition had been sent by the office of the Chief Executive on 2 April 2003, makes it clear that in the implementation of a policy that those concerned in advising on petitions to the Chief Executive acted and were seem to act completely independently of the Prosecutions Division no information whatsoever in respect of the petition of Tam, including its receipt, was passed to the Prosecutions Division. The left hand of the DOJ did not know what was in the right hand. Given that the petition was based on an assertion that Tam was to be a witness in a trial of which Prosecutions Division had the conduct it is very difficult to see what compromise of independence might have been feared. In truth, there was none. We are pleased to learn that administrative measures have been introduced to ensure that that limited relevant information is to be passed in future to the Prosecutions Division.
57. The importance of the duty imposed upon the prosecution to make appropriate disclosure to the defence and the necessity that the prosecution has in place procedures and systems to ensure that it does comply with those duties cannot be underestimated. In Lee Ming Tee Sir Anthony Mason NPJ described the genesis of the duty thus (p.553 paragraph 143) :
"The prosecution’s duty of disclosure has its foundation in the right of the defendant to a fair trial. …”
It follows that the prosecution must be proactive and energetic in their examination of the material made available both in the process of investigation and otherwise in discharging its duty of disclosure.
THE APPLICATION OF THE PROVISO
58. Counsel for both applicants submit that in the circumstances of this case it is not appropriate for this court to apply the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap.221. In support of that submission they pray in aid statements made in the judgment of the Court of Final Appeal in Ewan Quayle Launder v. HKSAR [2002] 1 HKLRD 150. The appellant was charged in an indictment with thirteen offences of accepting advantages as an agent, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Cap.201. At his first trial, the jury were unable to reach any verdict. At his retrial he was acquitted of twelve counts and found guilty of one count. The Court of Final Appeal determined that there was a distinction in section 9(1)(b) between “showing favour” and “having shown favour”. The judge at trial directed the jury in both terms. Given that the direction complained of related to a central element of the offence, the Court of Final Appeal determined the misdirection to be material.
59. Of the proper approach to the application of the proviso Sir Anthony Mason NPJ said (at p.163, paragraph 61) :
"It is well established that the test to be applied in a case in which the proviso is invoked is whether a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion (Stirland v DPP [1944] AC 315 at p.321; Customs and Excise Commissioners v Harz [1967] 1 AC 760 at pp.825-824. The reasonable jury is a hypothetical jury, not the jury that convicted the appellant. …"
Later, in concluding that this was not an appropriate case to apply the proviso, Sir Anthony Mason said at p.164, paragraph 66 :
"The prosecution case was by no means overwhelming. Why the jury convicted on count one but acquitted on the other counts is by no means apparent. Perhaps the bizarre circumstances in which the payment was made was the critical factor in the jury’s mind. Even so, the jury was divided, convicting the appellant by the minimum statutory majority of six to two after extended deliberations. The significance of that division gains some additional force from the jury’s failure to reach agreement at the first trial."
60. In Yuen Kwai Choi [2003] 6 HKCFAR 113, the Court of Final Appeal determined that the trial judge’s failure to give a “lies” direction in respect of the evidence of an appellant whose testimony had implicated his co-accused at trial was a material non-direction. In the judgment of Chan PJ reference was made to the test stated by the Court of Final Appeal in Launder . Of that test, Chan PJ said and this is at p.132, paragraph 54H :
"… Although the test anticipates the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor — albeit not conclusive — to be taken into account in considering what the view of the hypothetical reasonable jury would be. The fact that a particular jury only reached their verdict by a bare majority of 5 to 2 would indicate that two jurors had entertained some doubts about the guilt of the accused. See a similar remark in Launder v. HKSAR [2002] 1 HKLRD 150, at p.164. In the present, the majority verdict would mean that at least two jurors having considered that the appellant’s defence might be true."
61. Of the consequence of a failure to give a “lies” direction where one was required, Chan PJ went on to say (p.133, paragraph 55B-D) :
"… A lies direction is aimed at warning the jury not to adopt an impermissible reasoning process. Where this is required either as a matter of law or as a matter of practice, and if the judge had failed to give such a direction, there is a risk that the jury might adopt such a reasoning process, and if so, they might not have given the accused’s case a fair assessment. This is particularly detrimental to a defendant (as the appellant in the present case) who has the burden to rebut a statutory presumption on the balance of probabilities. His credibility is clearly of crucial importance and where credibility is an important issue and the jury is left with an inadequate or incorrect direction on credibility, the appellate court is reluctant to apply the proviso. See eg White v R (1997) 53 WIR 293 and Barrow v The State (1998) 52 WIR 493, PC."
62. In Pringle v. R. [2003] UKPC 9 in the opinion of the Privy Council delivered by Lord Hope the test applicable to the application of the proviso namely, whether a reasonable jury, after being properly directed, on the evidence properly admissible without doubt would have convicted is described as being “an exacting test”.
63. That the proviso may be applied notwithstanding a finding that there has been a material irregularity by non-disclosure is apparent from the language of section 83(1) of the Criminal Procedure Ordinance, Cap.221 and as analysed in the judgment of Glidewell LJ dealing with the same provision in section 2 of the Criminal Appeals Act, 1968 in R. v. Ward [1993] 96 Cr.App.R.1 at p.22 :
"… The obligation to disclose only arises in relation to evidence which is or may be material in relation to the issues which are expected to arise, or which unexpectedly do arise, in the course of the trial. If the evidence is or may be material in this sense, then its non-disclosure is likely to constitute a material irregularity. The proviso makes it plain that ‘material’ means something less than ‘crucial,’ because if contemplates that although there may have been a material irregularity, yet a verdict of ‘guilty’ can be upheld on the ground that it involves no miscarriage of justice."
Illustrations of the application of the proviso in these circumstances are to be found in the judgments of the Court of Appeal of England and Wales in R. v. K (Trevor Douglas) [1993] 97 Cr.App.R.342 and R. v. Dye, Williamson and Davies [1992] Crim.L.R.449. (Transcript: 6 December 1992). Also, see R v Saunders [1996] 1 Cr. App. R. 463 at p.518 B-C.
64. Mr McWalters on behalf of the respondent, submits that this is an appropriate case in which to apply the proviso. He invites this court to note that the judgments to which we were referred in the context of the application of the proviso all come from jury trials. Nevertheless, as is apparent from the judgments of Sir Anthony Mason in Launder and Chan PJ in Yuen Kwai Choi in determining whether a reasonable hypothetical jury would inevitably have convicted the appellant both judges adverted to factors relevant to the actual jury. In particular, in both cases reference is made to the fact of majority verdicts and in the case of Launder , to the fact of a “hung” jury in the first trial and of acquittals on twelve out of thirteen counts in the second trial.
65. Mr McWalters submits that the justification for recourse to circumstances obtaining at trial is all the greater where the decision at first instance is, as is the case in the matter before us, the subject of a detailed and reasoned justification. He drew our attention to the speech of Lord Bingham in R. v. Pendleton [2002] 1 Cr.App.R. 441 in his review of the origins of the Court of Criminal Appeal, Lord Bingham said at p.445 :
"… Among other grounds for opposing such a course it was argued that to allow an appeal against conviction would undermine the role of the jury : see Radzinowicz and Hood, A History of English Criminal Law , 1986, vol.5 at p.765. This argument recognized what was, and remains, a central feature of trial on indictment in England and Wales, the extraordinary role of the trial jury. To it are entrusted, following a judicial direction on the law, the decision of the all-important issues of fact and the determination whether or not the defendant is proved to be guilty of the crime charged or some lesser alternative crime. In a civil trial by judge alone the judge will hear the evidence, consider the law and deliver a reasoned judgment summarising the legal principles governing the case and the facts to which they must be applied, and giving his decision. If the decision is challenged, an appellate court may ordinarily review both the legal ruling and the factual findings and the applications of one to the other. But a criminal jury gives no reasons. Its answer is guilty or not guilty. While it is usually safe to assume, in the absence of very good reason for holding otherwise, that the jury will have heeded the judge’s direction on the law, the process of reasoning by which its decision is reached is never disclosed and can only be a matter of inference. The role of an appellate court reviewing a conviction by a jury can never be the same as that of a court reviewing the reasoned decision of a judge."
66. In the instant appeal, this court has the benefit of the detailed Reasons for Verdict of the judge. At paragraph 33 of those reasons the judge stated : “The prosecution case relied heavily on PW1. He is a tainted witness. I examined his credibility with great care .” The judge went on to note that he had pleaded guilty to an offence which mirrored the charge in the trial before him and that he had been sentenced to 28 months’ imprisonment. He went on to say :
"That he would be a prosecution witness was part of his mitigation. The wish to get a discount in sentencing is an obvious factor in assessing the credibility of PW1."
67. The judge rejected the suggestion that PW1 Tam had accepted anything put to him by ICAC. He noted also that PW1 had denied that he had been held in custody, in both ICAC and Siu Lam, as a result of a “bargain”. The question that poses itself is : bargain for what? The answer to the question is that which was being suggested to the court, namely, that PW1 Tam was testifying as a prosecution witness in the hope that his sentence would be reduced by remission of sentence and that the privileged detention in ICAC custody and then at Siu Lam were steps in those arrangement. That is evidenced by the way counsel for the 2nd applicant put his case in his closing speech. Of Tam he said (p.646 E-I) :
"Your honour, I would respectfully ask you to look at his evidence with caution. He is a convicted criminal. He was sentenced to 28 months’ imprisonment. He intends to mitigate his sentence. He told you that in the course of preparing his mitigation, he wants to be co-operative with ICAC. Now, therefore, in my submission that the background like Mr Tam’s in particular, a very intelligent man, when he gave evidence you can see his demeanour and he is so meticulous about the words — that he has a motive to lie to reach his aim of reducing the sentence ." (Emphasis added )
68. It is in that context, namely the assertion that the initial offer of assistance to ICAC substantiated at trial by his testimony was motivated by a desire to reduce his own custodial sentence that the judge’s conclusion as to Tam is to be viewed (p.38, paragraph 45A-C) :
"Even though PW1 had been convicted of a corruption offence, having considered all relevant factors, in particular, whether he had been motivated by a hope for discount in sentencing or better treatment during custody, I am satisfied that PW1 is an honest and credible witness."
69. It follows that at trial it was a live issue as to whether Tam (PW1) was motivated to give the testimony which he did in hope of a reduction in his sentence. The obvious mechanism by which such reduction in sentence could be obtained in circumstances in which Tam found himself namely, a person fifteen months into his own sentence of twenty-eight months’ imprisonment at the time he gave evidence, was by way of a petition to the Chief Executive. We have no doubt that procedure was known to the defence and that the court had it in mind at the time of the trial. What they did not know was that Tam had initiated the petition procedure by his letter of 24 March 2003. Moreover, they did not know that specifically he sought a discount of sentence of seven months’ imprisonment. Such a discount would have reduced Tam’s sentence to 21 months. That would have been half of the starting point at which the judge who sentenced him had begun. A discount of that level is in the range of discount/remission of sentence to be expected for a defendant who gives evidence against others involved in the same crime.
70. When asked to indicate the range of possible cross-examination that might have resulted had the defence been informed prior to the trial of the material now known, counsel for the applicants suggested that both Tam and ICAC officers could have been questioned as to any “bargain” reached between them; how it is that Tam had an expectation of a discount; who if anyone had given him that expectation; and the “anxiety” said to lie within Tam expressed in the letter of 4 August to the Chief Executive by his solicitors in respect of the response to his petition were all matters that could have been pursued. On the other hand, at the time Tam testified, 17-19 September 2003 he was within three months of his prospective release date, taking into account remission for good behaviour. In those circumstances, a challenge of Tam in cross-examination risked the obvious rejoinder that by this stage he had little to gain, if the risk was to advance perjured testimony. Equally, the obvious rejoinder to “anxiety” expressed on his behalf about the response to his petition no doubt lay in the fact that as the months slipped past so did his hope of a significant reduction in sentence. Moreover, issue had been joined in relation to Tam at trial : he had done a bargain with ICAC and had a motive to lie to reach his aim of reducing the sentence. It is to be noted that the assertion made by counsel for the 2nd applicant that “Tam has a motive to lie to reach his aim of reducing the sentence” was made from the safety of his closing speech and not put to Tam in cross-examination.
71. It is pertinent to note in this respect that the judge’s finding in respect of Tam was (p.38, paragraph 45) :
"I am satisfied that PW1 is an honest and credible witness. He gave evidence in a convincing manner. What he said was cogent and reasonable. He was unshaken during cross-examination."
72. In short, we are satisfied that the issue of Tam being motivated to testify at trial because of a hope for a discount/remission in sentencing was live at trial and treated so by all. In the result, we are satisfied that this is an appropriate case in which to apply the proviso.
The 1st applicant’s submissions in support of Ground 1
73. Mr Bruce SC reminded the court that the basis of the judge’s conviction of the 1st applicant was his payment of moneys to PW1 together with his finding that :
"… the intent of offering PW1 the advantage was to induce DW1 [sic ] (PW1) or to reward him for showing or having shown favour to him by concealing from CTC D1’s conflict of interest arising from his financial interest in Cheung Hing Yuen." (paragraph 71 of the Reasons for Verdict).
It is submitted that in finding that the 1st applicant had a financial interest in CTC the judge not only did not expressly state that he made that finding having been satisfied of it so that he was sure but also used language that makes it clear that he was applying a much lower test. Mr Bruce points to the reference by the judge, at paragraph 66 of the Reasons for Verdict, to the evidence of PW6 that the 1st applicant had praised the quality of the work of Cheung Hing Yuen when he visited the factory premises and of the judge’s conclusion that the conduct was “... consistent with that performed by a person having a financial interest in the factory
The submissions of the respondent
74. Mr McWalters submits that the primary facts upon which the judge relied were established by the evidence of PW1 and PW6, together with the Admitted Facts of the visits to the factory on journeys from Hong Kong by the applicants and PW1. That was evidence that the judge accepted as established beyond reasonable doubt. From all the primary facts the judge went on to draw the inference that the 1st applicant had a financial interest in the Cheung Hing Yuen factory.
Conclusion ON GROUND 1
75. In the course of his judgment the judge posed the rhetorical question : “Why did D1 pay PW1 such a huge amount of money to the executive of TFTC and CTC? ” He went on the say that he was aware that there was “... no direct evidence that D1 had any financial interest in this factory, nor is there any evidence which indicates that he had financial input or financial return from this factory ”. In that context, the judge went on to consider the evidence of the relationship between PW1 and D1 stating “... the roles they respectively played in CTC is a factor relevant to the consideration ”. Thereafter, the judge reviewed the evidence of the conduct of the 1st applicant towards PW1 in respect of the factory, noting that he enthusiastically extolled the virtues of its product and explained the manufacturing process. Of that evidence he observed “A person who did not have substantial involvement in the factory would not be in a position to do what D1 had done ”. Of the evidence of PW1 that the 1st applicant had said that if the factory made a profit he would be given a share the judge observed that this was a statement “... expected to come only from the mouth of a person who has a financial interest and a role in the decision-making in the establishmen t”. Finally, the judge noted that there was a positive correlation in the timing and amounts of the payments made to PW1 by the 1st applicant with the opening of the factory and its subsequent development.
76. It was only after he had reviewed in some detail the primary evidence relevant to the issue of whether or not first applicant had a financial interest in the factory that the judge moved to make determinations of fact by drawing inferences. In doing so, he stated that he took into account “… the whole circumstances including the relationship between PW1 and D1, their respective role, power and duties in CTC, there being no other relationship, payment and substantial amount, there being no evidence of any other legitimate explanation, D1’s zealous involvement in introducing Cheung Hing Yuen to PW1 and his knowledge about it ”. From that primary evidence the judge stated that he drew “… the only irresistible inference that the intent of offering PW1 the advantage was to induce DW1 (sic) or to reward him for showing or having shown favour to him by concealing from CTC D1’s conflict of interest arising from his holding of a financial interest in Cheung Hing Yuen ”.
77. Clearly, the approach that the judge took to drawing inferences from primary facts that had been proved beyond reasonable doubt was unimpeachable. There is no merit in this ground of appeal.
The 2nd Applicant’s 1st , 2nd and 3rd Grounds of Appeal against Conviction
Ground 1
78. By Ground 1 it is submitted and that there was insufficient evidence upon which the judge could be satisfied so that he was sure that the 2nd applicant was guilty of the charge. In particular, it is submitted that the evidence was insufficient to prove the matters stipulated in the charge, namely that the monetary payments made to PW1 were made for :
(b) showing or having shown favour by arranging expeditious payments;
(c) promoting or having promoted the image of Wai Shing in respect of renovation work at the Cheung Chau Pak Tai Temple.
Further, that there was no evidence that the 2nd applicant had requested PW1 to do any particular act.
Grounds 2 and 3
79. By these grounds it is submitted that the judge erred in drawing the inference that the 2nd applicant had “a common corruptive purpose” with the 1st applicant by booking and paying for the hotel room in which a meeting took place between the applicants and PW1 and in which the latter was paid $100,000 by the 1st applicant after they had discussed the setting up of a factory in the Mainland to process and treat timber. Further, that there was no evidence that the 2nd applicant had offered advantages of the type particularised, nor that it had been done in relation to PW1’s principal’s affairs or business, nor that it had been done for PW1 showing or having shown favour to the 2nd applicant.
80. In respect of Particular (b) of the charge, namely arranging expeditious payments in respect of contracts performed by Wai Shing, it is submitted that there was no evidence that Wai Shing had complained about any delay in payment nor that PW1 had expedited payment or certification for payment. In those circumstances, it is asserted that the judge erred in finding “... D2, in paying him, obviously intended PW1 to take action to expedite payment in case there were delays in certification ”.
81. In respect of Particular (c) of the charge, namely that the payments were made to PW1 for his promoting or having promoted the image of Wai Shing by giving extra attention to problems encountered by that company in respect of work done at the Cheung Chau Pak Tai Temple, in particular that there were concerns and suspicions about the removal of bricks and sculptures from the temple it is submitted that they were ill-founded and untrue. Further, that the judge found that PW1 had other motives for intervening. Similarly, the problems encountered with the tolerated structure and the slope fell within the responsibility of the architect, not Wai Shing; delay in the project would not cause Wai Shing to be penalized.
The submissions of the respondent
82. In response to the submissions made on behalf of the 2nd applicant in respect of Ground 1 the respondent submits that there was evidence upon which the judge was not only entitled to find the charge proved but also to do so in respect of each of the three particulars set out in the charge. Of Particular (a), the respondent points out that that the judge had made separate and discrete findings that each of the applicants had a financial interest in Cheung Hing Yuen. It is submitted that the evidence of the 2nd applicant’s financial interest was overwhelming : Cheung Hing Yuen’s company and banking documentation together with the company chop were found in the premises of Wai Shing; PW1 accompanied the two applicants on two visits to the factory in the Mainland; PW6 testified that on a visit made to the factory in the Mainland the 2nd applicant said that he owned the factory and identified a Mr Li, the person he knew as an employee of Wai Shing, as the person managing the factory. It is submitted that on the basis of those findings clearly the 2nd applicant had a strong interest in concealing the fact that the 1st applicant also had a financial interest in the factory from the CTC and board of management. Whether or not there were other motives for making the payments to PW1 it is submitted that the motive to conceal the financial interest of the 1st applicant was paramount.
83. Of the averment in Particular (b), that the payments were made to PW1 for showing or having shown favour by arranging expeditious payments, the respondent submits that given that payment was contingent upon certification and that PW1 was in a position to intervene in that respect the judge was entitled to infer that the payments were made so that PW1 would intervene in case there were delays in certification. Further, that PW1 had testified that intervening in this way was not part of his duty as the executive secretary of the Trust Funds Temples and Cemeteries.
84. Of the averment in paragraph (c) of the charge, that the payments to PW1 were in respect of his showing or having shown favour by promoting or having promoted the image of Wai Shing in respect of the works carried out by Wai Shing at the Cheung Chau Pak Tai Temple by giving extra attention to problems encountered by company the respondent submits that PW1 intervened in respect of two specific problems namely, (i) the potential collapse of the slope and (ii) the loss of bricks and sculptures from the site. The respondent points out that PW1 testified that he had responded positively to the 1st applicant’s approach in respect of the first matter because he had accepted an advantage from him and had a responsibility to assist both applicants. The consequence of PW1’s intervention was not only that there was no delay, which would have had financial consequences for Wai Shing, but also the company was thanked by the committee. In respect of the second matter, PW1 testified that he had arranged for the visit to the Mainland factory of assistant director of the Culture and Recreation Department to view the sculptures under repair to allay the concerns about their loss for a variety of reasons. However, PW1 testified that he had responded to the 1st applicant’s approach to the extent that he did because the 1st applicant had given him an advantage.
85. In respect of the submissions made on behalf of the 2nd applicant under Grounds 2 and 3 it is submitted on behalf of the respondent that the judge was entitled to have regard, as he did, to the close relationship between the applicants as demonstrated in the evidence. Of particular relevance, it is said, was the conduct of the applicants in the hotel room in which the prospective factory venture was discussed and PW1 paid $100,000; the mutually supporting roles played by the applicants on the occasions of visits to the factory in the Mainland testified to by both PW1 and PW6; of the and the fact that when the 2nd applicant encountered difficulties with both the slope and the issue of missing bricks and sculptures at the Cheung Chau Pak Tai Temple project it was the 1st applicant who made contact on his with PW1 on his behalf seeking his intervention and assistance. Further, it is submitted that the conduct of PW1 in that respect clearly related to CTC’s affairs or business.
Conclusions
86. The genesis of the 2nd applicant’s involvement in the events that led to the charge and the lynchpin upon which the prosecution case is founded was his presence and participation at the meeting with the 1st applicant and PW1 in the hotel room at the Harbour Plaza Hong Kong Hotel on 4 September 2000. PW1 had accepted the 1st applicant’s invitation to dine at a restaurant in the hotel. His testimony was that nothing special had happened at dinner. However, at the end of dinner PW1 testified that the 2nd applicant said that he had booked a room in the hotel for discussion of special matters and it was in the circumstances that the three of them went to the room. Clearly, that was a most unusual turn of events. There, in an hour-long discussion the 2nd applicant raised the subject of problems that had occurred in CTC contracts in the use of timber obtained from an Australian company and suggested that the solution would be to process and treat the raw timber at a factory to be set up in the Mainland. Both of them implied that if the factory were to yield a profit he would be given a share of the profit. At the end of the meeting the 1st applicant winked at him and handed him a brown envelope that later he discovered contained $100,000 cash. There followed eight more occasions when the 1st applicant gave PW1 sums of cash whilst the two of them were alone in PW1’s office.
87. The judge was alive to the fact that even on the first occasion, the only occasion that the 2nd applicant was present, the transfer of the brown envelope and its contents was effected in a manner that might not have been noticed by a person who was present, as is evidenced by a finding to that effect. Furthermore, the judge was mindful of the fact that in four video records of interview recorded shortly after his arrest on 13 May 2002 PW1 had made no mention of the 2nd applicant. However, he accepted the explanation that PW1 had given in testimony for that omission, namely that he was in shock following his arrest. Nevertheless, from the testimony of PW1 and the hotel reservation form, guest registration card and receipt of payment for the use of the room on that date the judge found that the 2nd applicant had booked and paid for that room. Of the 2nd applicant’s conduct in that respect the judge found “There is little evidence to show why he needed to do so if you did not have a common corruptive purpose with D1 ”.
88. In determining that the 2nd applicant was a party to the payments made by the 1st applicant to PW1 the judge found “… that his intent in paying PW1 was as set out in the charge ”. There, he did not further particularise the matter. However, at the conclusion of his Reasons for Verdict he stated that the prosecution had not been able to prove “… some parts of the particulars of offence, such as the allegation in relation to Cheng Jiu Building Material Company …”. Nevertheless, he found all the elements of the offence proved against both applicants. The broad statement of the finding in respect of the 2nd applicant’s intent in paying PW1 is to be viewed against the context of the evidence he listed as having taken into account in coming to that conclusion namely :
"In all circumstances, including D2’s booking of the room; what he said during the hotel meeting; the plan involving Cheung Hing Yuen; D2’s role in Cheng Hing Yuen; the problem faced and anticipated by Wai Shing; what PW1 had done; the benefit of D2, Wai Shing and Cheung Hing Yuen as a result of the actions of PW1; and timing of payments to PW1 …"
89. In light of the overwhelming evidence the judge was entitled to make the finding that he did that the 2nd applicant had a strong financial interest in Cheung Hing Yuen. Together with the 1st applicant he shared the common motive that the 1st applicant’s financial interest in the company be concealed from those at CTC and the board of management. If Cheng Hing Yuen was to retain its existing contracts and gain further contracts with CTC and the board of management of the Chinese permanent cemeteries it was vital that the conflict of interests enjoyed by the 1st applicant be concealed. Further and greater profits to both of them hung on the success of concealment of that fact. Clearly, cooperation of PW1 by silence was necessary. In making the broad finding cited earlier as to the intent of the 2nd applicant clearly the judge was satisfied that Particular (a) was proved.
90. In respect of Particulars (b) and (c), namely arranging expeditious payments and promoting or having promoted the image of Wai Shing by giving extra attention to problems in respect of the Cheung Chau Pak Tai Temple project the judge made specific findings :
"... D2, in paying him, obviously intended PW to take action to expedite payment in case the word delays and certification."
Of the suspicions and complaints arising out of the suspected wrongful disposal of bricks and sculpture the judge found “… what D2 wished must be that if problems like this would arise, PW one would take steps to alleviate them. The payments were to keep PWI sweetened ”. In making those findings the judge was alive to the fact that on the evidence there were other additional reasons given in testimony by PW1 for having acted as he did. In respect of payment, he might have expedited payment for other contractors. In respect of the bricks and sculpture, he had acted mainly because he felt it was his duty so to act. However, in respect of the latter matter PW1’s testimony had been that he had done as much as he had done because he had received an advantage from the 1st applicant. No doubt, that is why the judge made reference in both circumstances to the payments being a “sweetener”. We are satisfied that that the judge was entitled to make the finding that he did that the second applicant was a party to the payments to PW1 having the intent set out in the charge. There is no merit in these grounds of appeal.
91. We grant the 1st and 2nd applicants’ application for leave to appeal in respect of Ground 1A only and, treating the hearing as the hearing of both appeals, by a majority we dismiss the appeals.
Hon Stock JA:
92. There isno complex issue of law in this case. The principles are well established. There was a duty on the prosecution to disclose the correspondence between those acting for the main prosecution witness on the one hand, and on the other, the executive. That was not done. Whether it was or was not inadvertent is irrelevant to the issue now at hand, though the need for there to be thoroughly inculcated within the ranks of law enforcement authorities a culture that recognizes the imperative of instinctive and proactive disclosure cannot be emphasized too strongly. So too is it irrelevant to the duty of disclosure itself that those acting for the applicants had specifically asked, shortly before trial, for such information as might throw light on Tam’s agreement to be a prosecution witness: it is irrelevant because that duty existed in any event.
93. The request is however not irrelevant in that the very fact that it was made illustrates that when minds were being turned to the trial itself, those acting for the appellants considered the issue to be important. Given the central role of Tam to the success or failure of the case, that assessment was not surprising.
94. In the event, it is common ground that the failure to make this disclosure constituted a material irregularity.
95. The sole question therefore is whether the proviso should be applied. The test, which is the same for the judge sitting alone as it is for the jury, is whether the tribunal would without doubt have convicted or would inevitably have come to the same conclusion (Launder , page 163); Yuen Kwai Choi , page 132;) a test that has been described by the Privy Council as ‘an exacting test’ (Pringle v R [2003] UKPC 9, para 37).
96. To this question, the answer that is proposed by the majority judgment, which I have had the advantage of reading in draft, is that everyone engaged in the trial must have known that Tam was expecting a reduction in sentence by reason of giving evidence in the trial of the applicants, and that what the judge and counsel said at the time of the trial illustrates the point. To the transcript and to the comments I will shortly turn, but whilst it may well be the case that had there been disclosed the information which ought to have been disclosed, the outcome would have been the same, I am unable to conclude that had counsel for the defendants at trial been in possession of the non-disclosed correspondence; had they explored it in cross-examination; had they been able to emphasise current and ongoing expressions of grave anxiety by the prosecution witness, upon whom the case stood or fell, for immediate benefit; had they been able to place the effect of a material witness statement made one day before trial in the historical context of correspondence then ongoing to secure the witness’ immediate release – I am unable to conclude that, inevitably , nothing of material benefit would thereby have been achieved. I note in this regard that the application of the proviso is not put on the basis of an overwhelming case; and that the case for the prosecution depended upon the reliability of this single witness.
97. The central history for present purposes is that Tam was arrested on 13 May 2002. He pleaded guilty on the 31 May 2002. Between his arrest and his plea, he made no fewer than four statements to the ICAC. In none was D2 mentioned. Given the important role which D2 is said to have played in this affair, that omission on its face may seem surprising; the judge, however, accepting the contention by Tam that he did not mention D2 because “he was still in shock after arrest”: see paragraph 80 Reasons for Verdict. One vital issue that the judge had, naturally, to address was whether D2 was “brought in” to the story by Tam truthfully or whether, on the other hand, he was brought in (or whether the story against him was exaggerated) merely in order to further such advantage as Tam contemplated by providing information to the ICAC.
98. One day before the September 2003 trial commenced, Tam made a further witness statement. It is common ground that as a result of that statement, the particulars of the charge were amended and it is said – and, so far as I am aware, not gainsaid – that the statement resulted in the inclusion of particulars of (b) and (c). It is not suggested that the statement was immaterial. Indeed there was much cross-examination as to the circumstances in which it came to be made.
99. By the time Tam came to give evidence in mid-September 2003, Tam had served most of his sentence. So much so, that leading counsel for the respondent has suggested in his written submissions for the purpose of this application that:
"By the time he [Tam] testified he had only 2 ½ months of the sentence left to serve and so it must have been clear to him that no great benefit was going to be forthcoming to him as a result of his evidence. Given the treatment that [Tam] received from the executive, it would be surprising if he felt any sympathy towards it."
I would comment as to that, that if that was a possible reading of the situation at the time of trial, the material which was not disclosed would have given the lie to that assessment. Yet we are now asked to say that that cannot possibly have been the judge’s reading of the situation.
100. That, then, was the history as it was known to counsel for the defendants and to the trial judge at the time of, and throughout, the trial.
101. It was against this state of knowledge that cross-examination of Tam, counsel's speeches, and the judge's comments in his Reasons for Verdict, are to be assessed. The following passages from cross-examination deserve mention:
(1)
Tam’s assertion that the making of the statement one day before trial was the result of an ICAC approach (see pages 269 and 271 appeal bundle). This is to be contrasted with the statement by counsel for the prosecution to the trial judge on the opening day of the trial (page 618 appeal bundle) that the particulars of the charge were to be changed “because, as the defence are well aware, at the request of Mr Tam , the first prosecution witness, an additional statement was taken from him.” (Emphasis added). Who approached whom seems to have been considered relevant. No-one however knew, save of course Tam himself and the ICAC, that in the weeks before the making of this further statement, Tam’s solicitors had been writing with anxious pleas on his behalf for swift tangible benefit.
(2)
Cross-examination as to expected benefit was to a material degree concentrated on the issue whether ameliorated custodial conditions had been anticipated or afforded (see pages 279-280 appeal bundle). Given the short remaining part of the sentence to be served and the absence of any specific indicia as to present expectations, that was not a surprising emphasis.
(3)
Tam said in cross-examination that between the date of his initial interviews and his conviction on 31 May 2002, he decided to act as a prosecution witness (page 280 appeal bundle).
"
Q:
Did your counsel in mitigating with you, inform the court that you would act as a prosecution witness in order to get a reduction in sentence?
A:
He just said that I would assist in the investigation.
Q:
So the purpose of it is to get a reduction in sentence.
A:
As a mitigating factor.
Q:
So even—so what you are saying is that merely providing assistance to the ICAC but not act as a prosecution witness, you expect there will be a reduction in sentence.
A:
Perhaps I was a bit confused at the time I did not give the whole process consideration. And at that time, I only said that I was willing to assist in the investigation.
….
Q:
Did the judge also mention that because you assist in investigation, you will get a further reduction in sentence?
A:
He didn't say that. He only said that when he passed sentence. He didn't to take into consideration my willingness.”
(page 281 appeal bundle) (Emphasis added).
I pause here to make several points which I consider highly material:
(a)
It is to be noted that at no point in this cross-examination were any questions whatsoever asked of Tam's expectations as at the date of his evidence .
(b)
It is to be noted that not a single question as to motivation was asked by counsel for D2 in cross-examination.
(c)
In so far as the judgment of the majority asserts that the speech by counsel for D2 and the Reasons for Verdict by the judge clearly referred to an intention, in mid-September 2003 , to mitigate sentence, that assertion must, I suggest, be viewed realistically in the light of the cross-examination passages to which I have just referred (and in particular to the phrases emphasized in those passages) and the language used in them. Where counsel says, at page 646 of the appeal bundle, that Tam “intends to mitigate his sentence”, he is, I suggest, clearly referring back to Tam’s state of mind at the time that he decided to co-operate with the ICAC. So too, the passage referred to at [68] above where the judge addresses the issue “whether he had been motivated by a hope for discount in sentencing or better treatment during custody” (emphasis added), is consistent with a reference back in time.
(d)
Nothing whatsoever was said by counsel for D1 about this issue of motivation in his closing submissions.
(4)
At page 273 of the appeal bundle we see this question:
“
Q:
[Is it that] the ICAC officer asked you to give evidence in court in accordance with the contents of this witness statement?
A:
Incorrect…. because when the statement was being written, it was an ongoing process.”
Cross-examination was then pursued as to whether it was the ICAC who chose what material was or was not put in the statement.
102. That was the picture, and that was, broadly speaking, how the issue of benefit was run. What neither counsel nor the judge knew was that:
(1)
in a petition dated 21 March 2003 to the Chief Executive, the applicant said that: “Formal evidence has been given by your Petitioner to the ICAC in the formal statements, which had been approved by the Department of Justice”; that the applicant there prayed in aid the ill health of his wife and other grounds for compassionate relief, and asked for a reduction of seven months imprisonment;
(2)
in early July 2003 Tam’s solicitors pressed the Chief Executive for an early reply to the petition, only to be told that the matter had been relayed to the relevant authority for consideration;
(3)
by letter dated 4 August 2003 to the Chief Executive, solicitors acting for Tam had represented that Tam was “very anxious” about the outcome of his application for clemency; and was told that the matter had been relayed to the relevant authority for its consideration;
(4)
by letter dated the 21st of August 2003, the solicitors again pressed the Chief Executive for a swift reply, and was told that the matter had been relayed to the relevant authority for reference.
103. This was not a situation, as has been postulated as a possibility in counsel’s written submission, of someone who was so close to the end of his sentence that it might safely be assumed that such expectation of benefit as he might harbour by the time he came to give evidence was not of great significance. Nor, in so far as he did have an expectation of a benefit, was he merely someone with some general expectation of a benefit. This was someone who had engaged the services of solicitors to urge his release, solicitors who, shortly before trial, pressed and pressed again for a swift specified reduction and who, shortly before trial, showed particular anxiety that he be released as a matter of urgency. It was in this context and in this situation that Tam made his statement one day before trial, a statement which he nonetheless said in testimony was only proffered as a result of an approach to him. At paragraph 41 of the Reasons for Verdict, the judge noted that further information was given one day before commencement of the trial. In this regard, “I have,” he said, “considered the possibility of coaching and other irregularities.” Well, the one matter which the judge did not specifically consider, for he had no material with which to do so, was whether the new statement was motivated by neither of these possibilities, but rather by the growing anxiety which the very recent correspondence patently revealed.
104. I accept, as is put at paragraph [63] above, that the proviso may be applied notwithstanding a material nondisclosure. Two illustrations of the application of the proviso “in these circumstances” are cited, and it is instructive, I think, to compare those two illustrations with the case before us.
105. In the Trevor Douglas case, the appellant had been charged with buggery, and a video of an interview was not shown to counsel for the defendant, the judge having ruled, on grounds of public interest immunity, that the tape should not be disclosed. The judge had not even looked at the video to test its relevance. The testimony against the accused consisted of the evidence of two complainants as well as medical evidence which was consistent with their allegations. The Court of Appeal in England held that the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. The Court pointed out, at page 346, that “where the liberty of the subject is in issue, and disclosure may be of assistance to a defendant, a claim for disclosure will often be strong.” The Court asked to see tape and viewed it. What the Court said was this:
"We have had the opportunity this morning of seeing it. We are quite satisfied, having done so, that nothing which took place at the therapeutic case conference which was filmed on the video could have afforded assistance to the defence had it been ordered to be disclosed. There was no mention during the discussion on the video of any specific allegation made by the boys, or of any evidence they might give. Those matters which Miss Hallett very properly raised as possible matters which might have been of assistance to the defence were wholly absent from the video as we saw it…. After seeing the video there really would have been no meaningful balancing exercise for the learned judge to do, because there was no advantage for the appellant to balance against the claim of public interest immunity."
In other words, there was nothing at all, nothing whatsoever, in the non-disclosed material which could conceivably have been of any use to counsel for the accused in the conduct of the defence case. There was simply no material there for cross-examination. I think that that can readily be distinguished from the present situation.
106. In Dye, the full judgment of which I have studied, it was suggested in a major international drug conspiracy trial that statements made in the course of a television documentary, had the transcript of it been disclosed, would have been used in cross-examination:
"…assuming there were relevant differences between the transcripts and what was said in court."
"Counsel have referred to differences which they say are apparent and relevant in that respect, and they submitted to us that if the jury had been made aware of them and seen the effect of cross-examination upon them, the trials of the appellants might well have ended differently. Mr Spencer went painstakingly through the main evidence affecting the appellants and contended that such differences as appear from the transcripts are either unreal or of little or no account and, in any event, rendered insignificant by the overwhelming force of the Crown's case against these appellants."
The Court held that the failure to tell defence counsel of the television film was a material irregularity but:
"Having said that, we are in no doubt that this is a classic case for the application of the proviso. It is, in our judgment, fanciful to imagine that if the jury had known of the so-called differences they would have come to any other decision than they did. The evidence against both appellants was clear and powerful. They had in reality no semblance of a defence ." (Emphasis added).
Given the plethora of evidence against the appellants, evidence which went well beyond that of accomplice evidence, that conclusion was hardly surprising.
107. The situation in the present case was altogether different. Not only was there ample testimony not disclosed of considerable and recent anxiety on the part of the accomplice witness that his expectation of a benefit be crystallised forthwith, but he was the only prosecution witness of any significance. The prosecution case stood or fell upon his testimony alone, and the prime weapon in the hands of defence counsel was such material as might exist with which to undermine his credibility. Indeed, in the material not disclosed there is a memorandum from the Head of Operations, ICAC, to the Secretary for Justice in which the point is made that: “Although Tam’s assistance is yet to be materialised, his evidence in the forthcoming trials is crucial to the prosecution case.” (Emphasis added). This no doubt is precisely why those acting for D2 wrote on 1 September 2003 to seek such information as may conceivably be of assistance to the question of Tam’s expectation of a benefit.
108. Reference is also made at paragraph [63] above to R v Saunders [1996] 1 Cr App R 463. Saunders , in its decision that the appellants had not been prejudiced by the non-disclosure of material, establishes no new principle or test. The facts of that case were complex but, putting the matter very broadly, it was suggested that documents ought to have been disclosed to support the proposition that City professionals regarded as legitimate the giving of undisclosed indemnities in takeover bids, this to bolster the appellants’ contention that they did not act dishonestly. A host of considerations drove the Court in that case to the conclusion that the non-disclosure of which complaint was made was either not material or, if it was material, the facts called for the application of the proviso. Amongst those reasons was that the nature of any admissible evidence of benefit to the appellants which might have been expected to be adduced as a result of the additional material disclosed upon appeal had not sufficiently been framed or particularized (page 502; page 512D; page 513A-B) and, more particularly, the Court took the view that the judge would most likely have ruled that the additional material was irrelevant being not properly comparable with the takeover at issue (pages 502-503; page 512B); and that in any event the witnesses referred to would not have given assistance on the question raised (page 503; page 511F). I fail, with respect, to see how this case takes the matter any further in the respondent’s favour. Again, the present case was quite different. The additional evidence which was not disclosed was precisely identified and its ambit perfectly clear. There was no question of it being inadmissible or of it leading to the calling of witnesses who might or might not render assistance relevant to the issues in the case. The evidence was of repeated pressure, very shortly before the trial and the making of a fresh and material statement, to secure immediate release for the witness upon whose credibility and reliability the prosecution case rested. To the relevance of this evidence and its potential use, I have, I think, made adequate reference.
109. It is not idle for present purposes to place oneself in the shoes of experienced counsel and to ask whether, applying his mind conscientiously and realistically and honestly to the question, he would have welcomed this new information as a source of potential fruit for cross-examination. I think that the answer is obvious. I think that he would have said that the case against the reliability of Tam and of his latest statement which he, counsel, could present to the trial court might well be more weighty than that which he realistically could present without this information. If I am correct that experienced counsel applying his mind conscientiously and realistically and honestly to the issue would reasonably have concluded that the new material was potentially fruitful ammunition in the defence armoury, in a case that depended entirely on the credibility of this one witness, on what basis do we now say that, in that assessment, he would inevitably have been disappointed? Since I am not prepared to say that that is inevitably so, I would allow this appeal in the case of each appellant and quash the convictions.
(M. Stuart-Moore)
(Frank Stock)Justice of Appeal (Michael Lunn) Judge of the Court of First Instance
Mr I.C. McWalters, SADPP & Ms Winnie Ho, SGC of Department of Justice, for HKSAR
Mr Andrew Bruce, SC, instructed by Messrs Kong & Chang, for the 1st Applicant
Mr John Griffiths, SC & Ms Maggie Wong Pui Kei, instructed by Messrs Cheung & Choy, for the 2nd Applicant
2nd Applicant's application for a certificate to appeal to Court of Final Appeal refused by Court of Appeal. Please refer to CACC457/2003 dated 28 June 2005