HKSAR v. Cheung Kwok Chung

CACC000151/2003

CACC 151/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 151 OF 2003

(ON APPEAL FROM DCCC 928 OF 2002)

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Coram: Hon Stuart-Moore VP, Stock JA and Jackson J

Date of Hearing: 17 December 2003

Date of Judgment: 17 December 2003

Date of Handing Down Reasons for Judgment: 12 January 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 26 March 2003, following a trial in the District Court before Deputy Judge Candy, the Applicant was convicted on two charges of offering an advantage to a public servant, contrary to sections 4(1)(c) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 for which he received concurrent terms of two years' imprisonment.

2.The Applicant sought leave to appeal against conviction. At the conclusion of the hearing on 17 December 2003, we refused leave and dismissed the application. We now give the reasons for our decision.

3.The particulars of the first charge against the Applicant were that he, on or about 18 January 2001:

".... without lawful authority or reasonable excuse, offered an advantage, namely, a gift, loan, fee, reward or commission consisting of approximately $200,000.00 Hong Kong currency, to CHAN Kau-tai, a public servant, namely, a Chief Building Services Engineer of the Housing Department of the Government of Hong Kong Special Administrative Region, as an inducement to or reward for or otherwise on account of the said CHAN Kau-tai assisting or favouring or having assisted or favoured Shun Cheong M&E Limited and/or other companies associated with or interested in the transaction of business with the Hong Kong Housing Authority and/or the Housing Department, namely, the supply and/or installation of standby diesel generating sets at the building project sites of the said Hong Kong Housing Authority." (Appeal bundle p. 2)

4.The second charge against the Applicant was identical save for the date which was said to have been on or about 7 February 2001.

5.The facts of the case have little bearing on this application which depends for its success on a single point which Mr Marash, SC, on the Applicant's behalf, put forward in the following terms:

"The learned judge erred in law in failing to exercise his discretion to exclude from evidence the second, third and fourth video interviews containing verbal admissions made by the Applicant on the ground that a video interview of another arrested person was played to him and the Applicant was then questioned about the contents thereof in breach of Rule VI of the Rules and Directions for the Questioning of Suspects and the Taking of Statements."

6.A short summary of the background to this case reveals that six companies were appointed as approved agents of the Housing Department for the supply of standby diesel generating sets. There is a requirement in Hong Kong that every new building must have such equipment installed in case the supply of electricity to the building should fail. The Applicant, and other persons who were variously associated with the six companies, formed a cartel to tender in collusion with each other to Housing Department sub-contractors for the installation of generating sets at Housing Department building sites. To this end, each of the suppliers would take their turn to contract for the supply of generating sets with a sub-contractor by submitting pre-fixed quotation prices. The designated supplier would provide a lower price than the others.

7.In order to maintain the cartel, payments were made to Chan Kau-tai, a Chief Building Services Engineer in the Housing Department. He was in a position to remove a cartel member who did not abide by its rules and to make it difficult for any other companies to get onto the approved list.

8.On 4 August 2001, the Applicant was arrested by the ICAC. Four video records of interview were conducted with him during which he admitted to the existence of the cartel, the collusive tendering arrangement between the companies on the approved list and the payments to Chan Kau-tai. In particular, he admitted his involvement in two payments, each of approximately $200,000, on 18 January 2001 and 7 February 2001. By agreement between counsel, these records of interview were admitted in evidence without objection.

9.The written Admitted Facts covering the remainder of the prosecution's case included telephone and banking records, together with surveillance evidence. These cumulatively supported what the Applicant had admitted in his records of interview about his involvement in the two payments to Chan Kau-tai.

10.The Applicant neither gave evidence himself nor called any witnesses on his behalf. However, the essence of the defence case, as presented to the court, was that some of the Applicant's admissions were based on hearsay and that, in any event, there was insufficient material contained in his admissions to establish a case against him.

11.The judge, in his Reasons for Verdict, rejected the submission on the first of the charges against the Applicant that there was insufficient evidence. He looked at the totality of the evidence before deciding that the case was plainly made out for the reasons which Mr Marash helpfully summarised as follows:

(i)	the Applicant was well aware how the collusive tendering arrangement worked to the benefit of the members of the cartel, including Shun Cheong M&E Ltd ("Shun Cheong");
(ii)	the Applicant was aware that Chan Kau-tai was a public servant and acting in that capacity;
(iii)	the Applicant received the envelope from his boss, Kwok Shun-on, also one of the directors at Shun Cheong;
(iv)	the Applicant knew that the envelope contained about $200,000, and was intended as a corrupt payment for Chan Kau-tai;
(v)	the Applicant handed the money to Wong Chi-leung (a director of Brongham Park Ltd, another supplier of generating sets); and
(vi)	Wong Chi-leung handed the money to Chan Kau-tai on the next day.

12.As to the last of these six propositions the judge found that although there was no direct evidence of Chan Kau-tai receiving the money, the inescapable conclusion on the evidence was that he had done so.

13.The judge's Reasons for Verdict revealed an even less complicated picture in relation to the other charge faced by the Applicant. Here, the five factors which Mr Marash accepted formed the basis of the judge's findings were:

(i)	Kwok Shun-on had deposited money into the Applicant's bank account;
(ii)	on 7th February, 2001, the Applicant withdrew about $200,000 in cash;
(iii)	the Applicant went to Club B Boss to meet Wong Chi-leung, where he handed the cash to him;
(iv)	when Wong Chi-leung left Club B Boss, he was observed to get into a car occupied by Chan Kau-tai; and
(v)	Chan Kau-tai was seen removing the yellow envelope from his car after Wong Chi-leung had alighted from it.

14.Again, the judge drew the inference that the Applicant intended the $200,000 to be a corrupt payment for the purposes set out in the charge.

15.This case was unusually straightforward. All the prosecution's evidence was agreed and the defence took no objection to the interview records, there being no dispute about the voluntariness of the answers given by the Applicant. This is to be seen in the following dialogue, when counsel were addressing the judge:

"	(Prosecuting Counsel): Your Honour, I can confirm the information that I gave you yesterday that all the
		evidence in this case is agreed and it will be delivered to you by way of admitted facts and the transcripts of four video interviews. I take it that you don't want to see the tapes themselves because they're in Chinese anyway.
	(Defence Counsel): I confirm that." (Appeal bundle p. 322)

A little later, the following took place:

"	(Prosecuting Counsel): Your Honour, there are four video interviews. The first was conducted on 4 August
		at 3.47 pm, the second on 5 August, that's 2001, at 2.03 pm, the next on 5 August at 4.32 pm, and finally one on 5 August at 8.27 pm. My learned friend admits that they, on behalf of his client, that they were all made voluntarily and he has no objection to their admission as evidence and I will tender each of those records of interview and perhaps they could be marked Exhibits P1, 2, 3 and 4.
	COURT:	You confirm that there's no objection to these going in?
	(Defence Counsel): Your Honour, I have no objection for them to go in to prove the --- for the purpose for which they could be admitted." (Appeal bundle p. 323)

16.Mr Marash suggested that the reference to "the purpose for which they could be admitted" appears to have been intended by defence counsel to refer to the answers which were admissible against the Applicant as opposed to hearsay assertions made by the Applicant in some of the answers he gave. We accept that this was what defence counsel intended to convey by his remark, but it is quite plain that he raised no objection to any of the contents of the interviews going before the judge.

17.The point which is now contended for the first time by Mr Marash, who did not appear in the court below, is that the Applicant, having in his first interview revealed a desire to remain silent, was "overborne" by the tactics employed by ICAC officers in the interviews which followed. He pointed to the fact that the ICAC had earlier obtained a video-recorded confession from one Wong Chi-leung which was shown to the Applicant during his second interview. Wong Chi-leung was heavily implicated in the facts of this case and ultimately pleaded guilty to an identical charge, on the same charge sheet as the Applicant, relating to the offering of an advantage on 28 November 2000. It was after Wong Chi-leung's interview had been played back for the Applicant to see, that the Applicant confessed to his part in the charges against him.

18.All of this, Mr Marash submitted, had to be examined in the light of Rule VI of the "Rules and Directions for the Questioning of Suspects and the Taking of Statements" which reads as follows:

"VI. If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence, a police officer wishes to bring to the notice of that person any written statement made by, or record of an interview with, another person, who in respect of the same offence has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of such written statement or record of interview, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by Rule III(a)."

19.Mr Marash submitted that this rule had been breached by what had occurred in the second interview and continued in the third and fourth interviews. He contrasted the uncooperative attitude shown by the Applicant in his first interview with the Applicant's cooperation in his subsequent interviews once Wong Chi-leung's interview tape had been played to him.

20.Bearing in mind that the ground of appeal complained that the judge had failed to exercise his discretion to exclude the last three records of interview, we found it difficult to understand on what possible basis the judge might have excluded them. There had been no suggestion at trial that the answers given were anything but the voluntary replies of the Applicant. The defence tactics at trial amounted to what is commonly referred to as "confess and avoid", wherein counsel accepted that the Applicant made all the replies voluntarily but, as to avoidance, suggested that they did not amount to a confession of guilt such as would satisfy the criminal standard of proof.

21.It is not surprising that defence counsel made no suggestion that the Applicant's replies were involuntary. Aside from counsel being able to form his own assessment about the video-tapes, in the first interview the Applicant had been properly cautioned and he declined to have a lawyer present. The same procedure was adopted in the second interview. Not only did he again decline to have a lawyer but the Applicant also declined the chance to have his first interview played back to him. Again he was cautioned and he said that he understood his rights. When informed that Wong Chi-leung's interview would be played to him, he replied "okay". After this had been done, the Applicant was again cautioned and told that he would be asked more questions. In the two subsequent interviews, a similar pattern was followed. The Applicant freely answered the questions which it is perfectly apparent were not oppressive either in their content or in the manner in which they were asked.

22.In our opinion, it is quite plain that the Applicant's right to silence was at no stage overborne and, indeed as we have said, never once was it suggested on the Applicant's behalf at trial that it had been. There was, therefore, no basis whatsoever for the judge to have exercised his discretion to exclude the interviews. Even if there had been a technical breach of Rule VI, this could not in itself have provided such a basis. The Applicant was legally represented and it was not incumbent on the judge, in the circumstances of this case, to trawl through the Rules and Directions for the Questioning of Suspects to ensure that none of the rules had been broken.

23.More importantly, there was no suggestion at trial that the Applicant had "been charged with" or "informed that he may be prosecuted" at the time of the interviews with which we are concerned. Even if he had been in such a position, the "Note" which precedes the Secretary for Security's Rules and Directions makes it clear that a number of principles are not affected by the Rules, including:

"(e)

That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.

That principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules and Directions are put forward as a guide to all police officers conducting investigations. Non-conformity with these Rules and Directions may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings."

24.It seems to us that not only was there was no breach of Rule VI, but also, that even if there had been in the circumstances which had arisen, there was no basis for saying that the Applicant's answers were involuntary. In this context, we reject Mr Marash's submission that to have shown Wong Chi-leung's statement to the Applicant which implicated the Applicant in offences of corruption, without at the same time telling him that it could not be used in evidence against him, amounted to oppressive conduct. Rule VI is aimed at situations where the investigating authority has either charged the suspect or informed him that he may be prosecuted, where matters have progressed beyond the investigatory stage. Here, the ICAC investigators were still seeking the truth. In their endeavours to discover it, they employed no trickery as Mr Marash implied. On the contrary, they showed the Applicant the video-recording in which Wong Chi-leung had implicated the Applicant. They were perfectly entitled to do so. They then informed the Applicant that he would be asked questions which he did not have to answer. The Applicant, aged 36, understood this and chose to give answers.

25.This application was bereft of merit. It conjured up the vision of Mr Marash, whistle in hand, running onto a games pitch long after a cleanly fought match had ended, crying "foul". Where such an analogy falls down is that the criminal trial process is not a game and this should be remembered before a point of the present kind is placed before a court, posing as a question requiring serious consideration.

26.The application is dismissed.

Representation:

Mr Kevin P Zervos, SC, SADPP, of the Department of Justice,for the Respondent.

Mr Daniel Marash, SC, instructed by Messrs K.H. Yuen & David Cheung,for the Applicant.