R. v. WONG YUK CHI

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J U D G M E N T

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Penlington, J.A. (delivering the judgment of the Court):

1. This is an application for leave to appeal against conviction for perjury after trial before Judge Moylan in the District Court on the 3rd December 1990, for which the applicant was sentenced to six months' imprisonment. He was acquitted of two other related charges of forgery and uttering a forged document.

Background

2. The charges arose from a payment of $40,000 made by one Lui Kwok Wai ("Lui"), a senior officer then employed by Swire Engineering. Ltd ("Swires") in connection with engineering work being done at Block 7, Nam Cheong Estate, Shamshuipo. Lui had been charged with bribery in that a payment made to a member of another company also working on the site was a bribe. While Lui was convicted of that offence, in the course of his trial before a magistrate in May 1990 he raised the defence that the $40,000 had not been paid as a bribe as alleged by the Crown but was a perfectly legitimate payment to Yee Hop Electrical Engineering Co. ("Yee Hop") for services rendered: Lui called the applicant, who was a partner in Yee Hop, as a defence witness. The applicant produced a receipt dated the 20th January 1989 ("the receipt") and said it had been issued by him on that day. The receipt purported to acknowledge payment of $40,000 by Swires but did not say what the payment was for. It was the Crown's case that the receipt was a forgery in that it was not issued on the 20th January 1989, that the applicant was aware of that and that the date of the receipt was a material matter in the proceedings before the magistrate as supporting Lui's defence of a legitimate payment in January 1989.

The evidence

3. The transcript of the applicant' s evidence in the magistrates court was produced and it was not in dispute that he had given evidence that he had received $40,000 in December 1988 from Lui in payment of engineering work done for Swires by Yee Hop at Block 7, Nam Cheong Estate and had issued the receipt on the 20th January 1989. He also produced a book of receipts and said it was similar to the one he used. In it was an undated receipt stub marked "Swire Mr. Lui" but the applicant had denied that stub related to the receipt issued to Lui.

4. Evidence was given by Mr. Lee Loi Yin, a partner in Yee Hop together with the applicant. They did work for Swires at Wanchai in December 1988 and then moved to the Nam Cheong Estate. They started work there in January 1989. Claims would be made to the contractor for part-payment when any stage of the work had been completed. He said that in March 1989 they started to issue receipts, the partnership having only then been registered. A receipt book was purchased which he produced. He was responsible for issuing most of the receipts and the first one was dated the 23rd March 1989.

5. He was handed two other receipts: the first, dated the 12th January 1990, issued in favour of Swires for wiring at stage 4 of Tuen Mun Tin King Estate. That receipt matched a stub on the receipt book also dated the 12th January 1990. The details on the receipt and the stub were the same and he identified his handwriting on the stub. The second receipt was dated the 23rd January 1990, which again tallied with the details on a stub in the receipt book. He was asked concerning a stub which came between these two other receipts and which contained the writing "Taikoo Mr. Lui". It was undated. It was Mr. Lee's evidence that the receipt, although issued in January 1990, was in fact for payment made by Lui on behalf of Swires in January 1989 for work done and was therefore back-dated.

6. A statement made by Dr. Daniel Wong, a chemist from the Questioned Documents Division of the Hong Kong Government Laboratory, was produced by consent. In this statement Dr. Wong said that he had examined the "1989" receipt and also the other two receipts dated respectively the 12th and 23rd January 1990. It was his expert opinion from the examination of these documents, done with an electrostatic detection apparatus, that:

"the official receipt dated 12/1/90 ... was written on top of the official receipt dated 20/1/1989 ..."

and again

"that the official receipt dated 20/1/1989 ... was written on top of the official receipt dated 23/1/1990 ..."

Those findings were not challenged in the court below nor here. Dr. Wong's statement was admitted pursuant to s. 65C of the Criminal Procedure Ordinance. The clear inference was that the "1989" receipt was written between that of 12/1/1990 and the 23/1/1990.

7. There was evidence from Mr. Lee Wai Ming, Finance Manager of Swires that $154,400 was paid to Yee Hop on the 22nd March 1990 in respect of Nam Cheong work and $40,000 between December 1989 and January 1990 for work at Tin King Estate. Mr. Peter Cheung, Swires Contract Manager, said that Yee Hop only started work on Nam Cheong in January 1989.

8. Mr. Yu Man Ching, a Building Services Inspector of the Housing Department, gave evidence that no electrical wiring work was done on Block 7, Nam Cheong Estate before 23rd January 1989.

9. The trial judge, in his Reasons for Verdict, referred to a transcript of interviews between the applicant and a Mr. J.S. Williamson, a senior investigator for the Independent Commission Against Corruption. There were four occasions on which Mr. Williamson interviewed the applicant and a recording was made of each interview. It is clear that these interviews were lengthy and, without any doubt, questions were asked and the applicant was cross-examined by Mr. Williamson in an extremely searching manner. It was however Mr. Williamson's evidence that during this period he had not yet decided whether or not to charge the applicant with any offence and he was entitled to question the applicant, who was at that stage only a suspect, to see whether or not such charges should be preferred. No objection was raised, at the time of their production, as to admissibility.

10. At the trial it was conceded by counsel that the Crown had proved that the receipt was not issued on the 20th January 1989 and therefore bore a false date. It was however argued that this was not a factor material to the proceedings before the magistrate and there was no sufficient evidence that the applicant knew that the receipt was false as to its date.

11. The applicant did not call or give evidence.

Findings

12. In brief but succinct reasons for his verdict the trial judge set out that a material question at the trial of Lui was the purpose of the payment of $40,000 made by Lui. It was the defence case that the $40,000 had been paid on account of work undertaken by the applicant and his partner and the date of payment of the $40,000 was therefore a material issue. The trial judge said "the evidence of the appellant was led in order to support the contention of the defendant (Lui) that $40,000 had been paid in January 1989 on behalf of work done by the appellant and his partner". He said he was satisfied beyond reasonable doubt that the applicant had deliberately lied when he said that it was written on the 20th January 1989. The date of the receipt was clearly relevant to the crucial question of what was the purpose of the payment. He added that "the contents of the exhaustive records of interviews confirms me in this judgment".

Decision

13. It was argued by counsel for the applicant, Mr. Buchanan (who did not appear in the court below), that the manner in which the interviews had been conducted by Mr. Williamson was oppressive and contrary to the Judge's Rules. He cited a long list of authorities to us and, in particular, relied on Ajodha v. The State [1982] AC 204 as authority that a court should not receive a confession statement, even if not challenged as being involuntary, if there is evidence of unfairness. We shall deal with that which took place at the trial in a moment.

14. We are, however, satisfied that there is no reason for us to interfere with the findings reached by the trial judge that he could place weight on the transcript of interviews in reaching his conclusion. We agree that at the stage when these interviews were recorded the applicant was still only a suspect and that Mr. Williamson was entitled to interview him in a vigorous manner in order to decide whether or not there was sufficient evidence to bring charges. We are furthermore of the view that even without the record of the interviews the evidence was such that the judge was perfectly entitled, as he himself said, to come to the conclusion that the applicant was well aware that the receipt was not issued on the 20th January 1989 but in January 1990.

15. The other matter which was raised in the original grounds of appeal was that the trial judge was wrong to come to the conclusion that the date of the receipt was material in respect of the proceedings before the magistrate. Again clearly the whole issue before the trial judge was the purpose for which the payment had been made and the date on which the receipt had been issued was highly relevant. The applicant must have realised that. It was the defence that the payment was for electrical work done by Yee Hop whereas the evidence was that no such work had been done at Nam Cheong Estate by that date. The only work done for Swires was considerably later.

16. Unfortunately this matter had to be adjourned part heard because, at the first hearing in January of this year, Mr. Buchanan sought such an adjournment as he wished to argue further grounds of appeal. This was that the wrong procedure was adopted by the trial judge in that, when in effect a submission of no case to answer was made relating to the admissibility of transcript of interviews, he ruled that the statements were voluntary instead of ruling that there was a prima facie case that the contents of the transcripts were voluntary and proceeding then to hear the evidence for the applicant. At trial it had been submitted that they had been obtained in an oppressive manner and that it was unfair to admit them - an issue first raised after the case for the Crown had closed. There had been no earlier voir dire - hence Mr. Buchanan' s reference to Ajodha As the trial judge put it in the course of the submission:

"Really what you are doing is to submit that the accused has no case to answer on voir dire, as if we had had a voir dire re Exhibit 7. It is not weight, but admissibility you are arguing?"

To which counsel replied:

"That is what it amounts to."

The Crown replied, to which reply counsel for the defence had no rejoinder.

17. After an adjournment, the trial judge gave detailed reasons - a practice not to be encouraged - stating that, at that stage of the proceedings, he would not exclude the transcripts for consideration "by a jury".

He then went on:

"So now unless it is suggested that the accused might give evidence on the question of admissibility I would admit the contents of the interviews in evidence for consideration by the tribunal of fact and for that tribunal to decide what weight if any to put upon which the accused said, considering what he said in the context in which he came to say it."

18. While this passage has attracted strong criticism from Mr. Buchanan, we view it as being in the nature of a prima facie ruling on the submissions which had been made to the trial judge.

19. What happened next fortifies our view. Counsel for the applicant sought and was granted, a short adjournment to take instructions. When the court sat again he informed the judge that the applicant, having been advised of his rights, "would not call or give evidence on the 'voir dire' ".

20. The trial judge then made a formal order that the transcripts of the tapes "remain in evidence as Exhibits"

21. The trial went on with counsel making a general submission of no case which was rejected. The applicant elected to give no evidence on the general issue. There was then a final submission by his counsel.

22. We can understand, in a trial before a judge and jury, counsel deciding to run an exculpatory statement "straight" before that jury but, as the result of the evidence given in the course of the trial; asking the trial judge at the conclusion of the case for the prosecution to rule against admissibility and to withdraw the statement from the jury. We find it difficult to understand how there can be any possible advantage in taking this course before a judge sitting alone. When, here, the Crown sought to introduce, in the course of Mr. Williamson's evidence, the later to be disputed tapes, there was no issue raised as to admissibility on any basis. The trial judge was entitled to think that a deliberate decision had been taken not to raise any such issue.

23. That which took place at the close of the case for the Crown must have come as somewhat of a surprise. While there can be some criticism of the wording of the lengthy and, with respect, unnecessary reasons delivered by the trial judge we have no doubt that, in the unusual circumstances which pertained here, the matter was handled correctly and we see no reason to disturb the ruling on admissibility made by the trial judge.

24. The transcripts being properly before him, it was for the trial judge to place on them, as we have earlier indicated, what weight he thought fit in coming to his eventual conclusions.

25. It was further argued at the resumed hearing that the judge was perhaps not entitled to come to the conclusion that the statement of Dr. Wong as to the date when the receipt was issued was conclusive that the receipt was issued on the 20th January 1990.

26. There seems to be no doubt that Dr. Wong's evidence was admitted on the basis that it was that of an expert (Hunt v. R. [1974] HKLR 31). While not challenged, it would have been open to the judge to have rejected it. He did not do so and came to the conclusion, albeit expressed in few words, that he accepted Dr. Wong's opinion. The clear inference, stemming from it was that the receipt was issued between the 12th and 23rd January 1990, and, as it was dated the "20th January", the judge concluded that it was in fact written on that date but in 1990. We are satisfied that he was entitled to come to that conclusion and, on the evidence before him, we also consider he was right to do so.

27. For these reasons the application for leave to appeal against conviction is refused.