HKSAR v. Lau Wai Tim

CACC000152/2003

CACC 152/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.152 OF 2003

(ON APPEAL FROM DCCC NO.1088 OF 2002)

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Coram: Hon Stuart-Moore VP, Hartmann & Lugar-Mawson JJ in Court

Date of Hearing: 4 March 2004

Date of Judgment : 4 March 2004

Date of Handing Down Reasons for Judgment: 15 March 2004

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REASONS FOR JUDGMENT

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Hon Hartmann J (giving the judgment of the Court) :

1.On 4 April 2003, after a trial before Deputy Judge Andrew Ma in the District Court, the applicant was convicted of the offence of perjury, contrary to s.31 of the Crimes Ordinance, Cap.200. He was sentenced to nine months' imprisonment. The applicant sought leave to appeal against his conviction. Having heard submissions, we dismissed the application. We now give our reasons.

2.The applicant, who was represented before us by Mr Gerard McCoy SC, relied on a single ground of appeal. It was that the trial judge's evaluation of the evidence was substantially speculative and erroneous, rendering the conviction unsafe and unsatisfactory.

3.The background facts are these. The applicant was an Assistant Investigator in the ICAC. On the morning of 14 October 1999, the applicant and a colleague arrived at the home of a man named Hung. The purpose of their visit was to invite Hung to ICAC Headquarters to be interviewed. They were at that time investigating allegations that members of a company supplying building materials had bribed members of the Housing Department and others not to object to the receipt of sub-standard materials. Hung was a manager in the company under investigation.

4.The applicant and his colleague spent 30 minutes at Hung's residence during which there was a conversation. Hung was able secretly to record the first 15 minutes of this conversation. Later that day, at ICAC Headquarters, Hung was interviewed under caution. In the course of these interviews he made certain admissions which resulted in his prosecution, together with one other, for the offence of conspiracy to defraud.

5.Hung's trial took place in the District Court in September 2001. At his trial, he challenged the admissibility of his cautioned statements on the basis that they had been obtained from him by way of threats and inducement. The applicant gave evidence in the voir dire proceedings as a prosecution witness. During the course of cross-examination, it was put to the applicant that, on the morning when he and his colleague had gone to Hung's home, the applicant had threatened Hung and offered him inducements. This was denied by the applicant.

6.In giving his answers under cross-examination, the applicant did so in a manner which purported to demonstrate that, despite a lapse of almost two years, he still retained a good memory of what had been said that morning. For example, he remembered making complimentary remarks about Hung's home, he recalled that Hung had not been well that day, suffering from flu, he remembered also that, on the way back to ICAC Headquarters, Hung had fallen asleep in the car. In addition, in denying the suggestions of improper conduct, the applicant gave unambiguous answers. The following extract from the transcript of the cross-examination illustrates the point :

"Q.	Was anything at all said during this conversation at Mr Hung's home about Mr Hung being a witness?
A.	No, it was not mentioned.
Q.	I suggest that you said to him that if he told you the truth he would be treated as a witness. And I'm putting that to you in direct speech, Mr Lam. In other words, those were your words.
A.	It was not mentioned.
Q.	Are you sure?
A.	Sure.
Q.	Again, I suggest you offered some comfort and, again, I'm going to put to you a passage which I say is a direct quote, do you see? 'You, I understand your position. You're only an employee. You have no power to make any decision regarding which locality.' And what you were talking about there was where the facades were manufactured.
A.	It was not mentioned."

7.Shortly after this exchange, the tape recording that had been made secretly by Hung was played to the applicant who accepted that it was a recording of the conversation that had taken place between himself and Hung on the morning of 14 October 1999. In the light of this admission, the prosecution did not seek to have Hung's records of interview admitted into evidence and, with no case to answer, Hung was acquitted.

8.In the result, the applicant was prosecuted for the offence of perjury. At the trial of the applicant, the trial judge had the benefit of reading a transcript of the recorded conversation that had taken place in October 1999 between the applicant and Hung. He found that the effect of the words spoken by the applicant (and his colleague) had been to induce, threaten and mislead Hung with the aim of convincing him to divulge information. The judge described what had been said by the applicant to Hung as 'grossly improper'.

9.It was the applicant's defence that, when he testified at Hung's trial, he had been suffering from a sleep disorder known as obstructive sleep apnea syndrome which had a deleterious effect on his memory; he had in addition been under stress at work and at home. As a consequence, he had genuinely forgotten what had been said between himself and Hung and this had led him to the bona fide belief that there had been no conversation of the kind put to him in cross-examination.

10.Unsurprisingly, the trial judge rejected the applicant's assertion that he had no memory of the conversation. He observed that at Hung's trial the applicant had purported to clearly remember the conversation that had taken place and had 'categorically denied' making any threats or offering any inducements. The judge made a finding of fact that the applicant had lied at Hung's trial and had done so in order to conceal what he described as the applicant's ' grossly improper and probably culpable acts in the course of handling Hung's case'.

11.On the evidence before the trial judge, therefore, the central issue was not whether the applicant had remembered the conversation, for he testified in clear terms that he did and supported it with details of what had been said and done. The central issue was whether he had lied or not. The judge found that the applicant had lied. In our judgment, the judge was manifestly entitled to come to that finding.

12.Mr McCoy's criticisms were not focused on this issue, but rather on the manner in which the trial judge in his reasons for verdict dealt with the evidence called on behalf of the applicant that at all material times he had been suffering from the sleep disorder.

13.In this regard, an expert in sleep disorders, Dr Chan, the doctor who had diagnosed the applicant's condition, testified that the disorder had a direct correlation with reliability of memory, the more severe the disorder, the greater the degree of likely memory loss. Dr Chan testified that he had seen the applicant in January 1999 and again in May 2000. On the first occasion, he had recommended that the applicant purchase a machine which would help to overcome his disorder. The applicant, however, had not done so. On the second occasion, said Dr Chan, the applicant's condition had deteriorated and he again recommended the purchase of the machine. When the applicant gave evidence, he said that he had never purchased the machine. Contrary to this, however, Dr Chan testified that, on the basis of his records, the applicant had obtained the machine and had indeed been tested on it. After May 2000, said Dr Chan, the applicant had not consulted him further concerning his disorder.

14.In respect of this evidence, the trial judge said the following in his reasons for verdict :

" ... Dr. Chan said D1 [the applicant] had reportedly purchased the machine subsequent to the 2nd visit. Dr. Chan said he did not see D1 again in the period between May 2000 and early 2003. Judging objectively, on the strong advice given by the expert, it was likely that D1 have acquired the machine. His illness must have improved, probably through the assistance of the machine, since the 2nd visit as he did not return to Dr. Chan for treatment. In early 2003, for the purpose of the present trial, D1 went to Dr. Chan for preparation of reports. However, no test was conducted on his sleep problem this time. In the circumstances, there is no evidence as to the ability of memory of D1 at Hung's trial in September 2001. D1 continued with his job. He did not seek treatment again since May 2000 and he had reportedly purchased the machine. D1's evidence as to his sleep difficulty and memory problem at Hung's trial is not supported." (Appeal bundle pp.25-26)

15.Mr McCoy took exception to the words that we have placed in emphasis. The judge, he said, was not entitled to draw an inference that, because the applicant had not returned to see Dr Chan, his disorder must have improved, probably with the assistance of the machine. That, he said, amounted to conjecture. Accordingly, the reasoning upon which the judge rejected the defence evidence that, when he testified at Hung's trial, the applicant had been experiencing memory problems, was materially flawed.

16.We do not agree. While we accept that the words criticised by Mr McCoy may have been more happily phrased, when the judge's findings are considered as a whole, we are satisfied that, on the evidence before him, he was entitled to reject the defence evidence that, when the applicant testified at Hung's trial, he was suffering from memory problems.

17.Mr McCoy further criticised the following passage in the reasons for verdict, saying that the words we have emphasised constituted conjecture on the part of the judge :

"From the evidence adduced, during the visit to Hung's residence, D1 [the applicant] had engaged in a fairly lengthy conversation with Hung some of which amounted to inducement and threats. On the same day, late in the evening, Hung made admissions. D1 was the officer in charge of the case. He knew full well that he was the one who had induced and misled Hung to make admissions by saying that if he told the truth, he would be a witness ... This was not an ordinary incident. D1 must have a deep impression in his mind. This was not a matter likely to be forgotten." (Appeal bundle p.27)

18.Mr McCoy contended that, in coming to this finding, the judge had not taken into account the fact that ICAC officers as part of their regular routine visit the homes of suspects and arrange for them to be interviewed. Such happenings, being entirely mundane for them, are ordinary incidents that do not leave an impression. In our view, there is nothing in this submission. On the evidence before him, particularly the evidence of what had been said between the applicant and Hung and the length of their conversation, it was entirely legitimate for the trial judge to make the findings of fact that he did.

19.In summary, we were satisfied that the applicant's conviction was neither unsafe nor unsatisfactory and dismissed the application for leave to appeal against conviction.

Representation:

Mr John Reading, SC leading Mr Norton Pang, GC of Director of Public Prosecutions, for the Respondent

Mr Gerard McCoy, SC instructed by Messrs Massie & Clement, for the Applicant