Peter Fitzroy Godber v. The Queen
Read the full judgment text of CACC 181/1975 on BabelCite. This Court of Appeal judgment.
1. The appellant, who was formerly a Chief Superintendent of the Royal Hong Kong Police Force, appeals against his conviction upon a charge of corruptly receiving a sum of $25,000 contrary to the provisions of Section 3 of the Prevention of Bribery Ordinance and upon another count in which he was charged with having conspired with another police officer CHENG Hon-kuen to receive that money. The case against him rested almost entirely upon the evidence of two witnesses who themselves had been off
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CACC000181/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 181 OF 1975 -----------------
----------------- Coram: Full Court (Briggs, C.J. McMullin & Pickering, JJ.) Date of Judgment: 28th April, 1975. ----------------- JUDGMENT ----------------- 1. The appellant, who was formerly a Chief Superintendent of the Royal Hong Kong Police Force, appeals against his conviction upon a charge of corruptly receiving a sum of $25,000 contrary to the provisions of Section 3 of the Prevention of Bribery Ordinance and upon another count in which he was charged with having conspired with another police officer CHENG Hon-kuen to receive that money. The case against him rested almost entirely upon the evidence of two witnesses who themselves had been officers of the Royal Hong Kong Police Force and the major issue in the case, both at the trial and in this court upon appeal, has been the credibility of those witnesses. There is no doubt that without them, as the learned District Judge himself fully realized, the appellant could not have been convicted upon either of the charges. 2. The questionable character of both these men was never in doubt from the outset of the proceedings. Superintendent Cheng was the person named as the accomplice of the appellant in the charges while Superintendent Hunt had shortly before the commencement of the present proceedings completed a term of one year's imprisonment as a result of his conviction upon an offence concerning corruption. He had, both at the time of the trial and thereafter upon his departure from Hong Kong having served the sentence, achieved widespread notoriety by revelations of a highly scandalous nature which were widely publicised in the press and upon television, both in Hong Kong and in the United Kingdom, concerning the extent of corruption in the police force in Hong Kong. In the course of doing so he revealed himself, without apparent discomfiture, as a corrupt and venal person with few apparent moral scruples and no principles which did not directly serve his own immediate material advantage. 3. It was the case for the Crown that the appellant was a corrupt police officer who was well acquainted with Hunt. In the years 1970-1971 the appellant was Chief Staff Officer (Traffic) at headquarters on Hong Kong Island. Hunt, at that time was the Divisional Superintendent in charge of the Wanchai area. Hunt gave evidence about frequent meetings between himself and the appellant in the latter part of 1970 at which, among other matters, the appellant mentioned that he was concerned at the possibility that an honest officer a Mr. Whiteley, might be posted to Wanchai to replace Hunt who was shortly due to go upon leave. His concern was due to the apprehension that an honest officer would reduce the unlawful revenues which, on Hunt's evidence, the appellant was then receiving from various police divisions in the Colony. There meetings between Hunt and the appellant were casual lunch-time meetings which continued into the early part of 1971. According to Hunt, the appellant told him, some time in February, that he understood that the District Commander Mr. Grace who was in charge of all the Hong Kong Divisions, was due to be replaced by a Mr. White. The appellant favoured this change because, according to Hunt, he considered White a venal and compliant officer who might be prevailed upon to replace Hunt with somebody nearer to the taste of the appellant than was Mr. Whiteley. He also said that he regarded CHENG Hon-kuen as the ideal replacement from his point of view. Mr. White did not give evidence but it is not in dispute that he did take over from Mr. Grace as Commander between the 10th and 12th of March 1971. Meanwhile, according to CHENG Hon-kuen, on a certain afternoon in February, the date of which was never established, he chanced to meet the appellant in the car park, Wanchai Police Station Compound. Cheng, who was due to go on leave and was expecting to return to Hong Kong on the 1st of April 1971, asked the appellant whether the appellant knew where he, Cheng, was likely to be posted upon his return. He said that he was then told by the appellant that two divisional superintendent posts were due to come up in March and that the appellant asked him if he fancied the Wanchai post. He said he did and the appellant said that he would do what he could to see that the witness secured it and then added that he would require a reward if he was successful. According to Cheng the sum demanded was $25,000, which is the subject of the second charge. Then followed the evidence upon which, effectively, the whole weight of the prosecution case rested. According to Cheng, upon his return from a brief trip to Japan, he by pre-arrangement with the appellant, met the appellant at Hunt's office in Wanchai, and there, in the presence of Hunt, he haded over the $25,000 to the appellant. This was confirmed by Hunt. The date of this occurrence was never certainly established but it would appear to have been between the 18th and the 24th of March. On the 25th of March Cheng was informed by Mr. Morrin of the Establishment Branch, Police Headquarters that he had been posted as Divisional Superintendent Wanchai. He took up that post on that date and Hunt went upon local leave and later, on the 1st of April 1971, went on vacation leave out of the Colony. 4. In 1973, pursuant to investigations by officers of the Independent Commission Against Corruption, a notice under Section 10 of the Prevention of Corruption Ordinance was served on Hunt on the 14th of February and on the 4th of June 1973 a similar notice was served upon the appellant. Hunt was prosecuted to conviction upon a charge laid pursuant to that notice, having failed to account satisfactorily for the extent of his assets. He was sentenced to one year in prison. On the 7th of June, the appellant left Hong Kong in the manner already referred to only returning at the conclusion of the extradition proceedings relating to the present charges. 5. While he was serving his sentence in prison Hunt disclosed certain information to a local journalist Mr. Norman Barrymaine and after Hunt's appeal had been dismissed by the Full Court on the 15th of February 1974 and his subsequent appeal to the Privy Council had been dismissed on the 3rd of April 1974, this material was brought to the attention of Mr. Prendergast of the Independent Commission Against Corruption on the 5th of April in that year. Hunt gave evidence at the trial of the appellant that he had found his circumstances in Stanley Prison so miserable that some time after the commencement of his sentence, in the middle of February, he contemplated making a deal with the officers of the Independent Commission Against Corruption. What he had in mind was to give them information which might result in the extradition of the appellant for the purpose of securing some form of indemnity against prosecution for the many crimes he had committed in the previous 18 years of his service with the Police Force in return for that information. An offer of pardon had been made to him by a Mr. McNutt of the Anti-Corruption Branch of the Police Force at the time when he first went to prison but he had not agreed to give evidence against the appellant at that stage. 6. Hunt was permitted visits in prison by his wife and on the 13th of April Mrs. Hunt contacted Mr. Prendergast of the Independent Commission Against Corruption and thereafter Mr. Prendergast saw Hunt and interviewed him at Stanley Prison on a number of occasions. It was pursuant to this information that Cheng and the appellant were subsequently arrested and that Cheng was charged with an offence under Section 10 of the Prevention of Corruption Ordinance (since repealed and replaced by the Prevention of Bribery Ordinance). The appellant was charged under Section 3 of the same Ordinance. Subsequently Cheng was also charged under Section 3 and they were both charged with the conspiracy laid in the first count. The appellant was at this time still in England and the extradition proceedings were in process. Two affidavits sworn by Hunt were used for the purpose of effecting his return and one affidavit sworn by Cheng. These affidavits revealed the matter which has already been described. In his affidavit Cheng admitted to having paid the money to the appellant as a bribe but in earlier affidavits, particularly one sworn in connection with an application for bail after his arrest, he had categorically denied the offence. Hunt was released from prison on the 14th of October 1974 and went first to England and later to Spain his progress through both countries being attended by the extravagant and somewhat lurid publicity referred to already. He had left behind with Mr. Prendergast not only certain written statements upon which the affidavits had been based but also some tape recordings all of which material contained disclosures of a self-incriminating nature. It was on the material thus supplied by Cheng and Hunt that the extradition proceedings eventually succeeded and the appellant was returned for trial to Hong Kong. 7. Between his first affidavit sworn on the 22nd of May denying the Section offence (as a result of which he was liberated upon bail) and his second affidavit sworn upon the 8th of June 1974 in which he fully admitted committing the offence it was common ground that Cheng had visited Mr. Gunston, who was then solicitor for the appellant, on a number of occasions and had reassured him that the allegation then being made against the appellant in London was false. In the same period Cheng was also interviewed by Mr. Harknett of the Independent Commission Against Corruption on a number of occasions and subsequently he swore the affidavits which were used in the extradition proceedings. 8. Prior to that, on the 3rd of June, Cheng had, through his own solicitors, informed the Attorney General's representative on the case, that he was prepared to make a statement in connection with the proceedings against the appellant. It was not disputed that the material which was eventually embodied in the affidavit and which later became the substance of Cheng's evidence at the trial was elicited through several hours of interrogation. 9. On the 7th of May some five days after the fifth visit paid by Mr. Prendergast to Hunt in Stanley Prison the assistant to the Attorney General wrote to Hunt's solicitors a letter which contained the terms of what have been referred to in this court as the amnesty:
One month later on the 7th of June the solicitors for Cheng received his "amnesty". It is in the following terms:
10. From the foregoing recital it will be apparent that the Crown had decided to rely upon the testimony of heavily tainted witnesses whose evidence in support of the charge was essential and which was only advanced by them in return for promises of immunity from further prosecution couched in the widest and most generous terms. The anxieties inherent in that situation were apparent to the learned District Judge who voiced his misgivings repeatedly in the course of his reasons for verdict and who made it clear that he was only relying upon that evidence after a searching examination not only of the evidence itself but of his own feelings and reactions in relation to it. 11. The principal ground of appeal is concerned with the proposition that none of this evidence ought have been admitted. That argument falls into two parts: firstly, it is said that the bargains struck with Hunt and Cheng were in the fullest sense illegal, and that the evidence resulting from them should upon that ground have been excluded; secondly, that, even if not to be excluded on that ground, it should have been excluded by the District Judge in the exercise of his discretion. As to the first of these objections - Mr. Scrivener for the appellant directed our attention to the fact that the District Judge himself was in some doubt as to what power had been invoked by the Attorney General in offering these terms of immunity to the respective witnesses. Counsel then pointed out that there are three specific provisions relevant to the topic of pardon in Hong Kong. The first of these is article 15 of the Letter's Patent which article confers upon the Governor power to grant a pardon to any accomplice who shall give information which shall lead to the conviction of the principal offender. This power cannot be delegated; then there is Section 115 of the Magistrates Ordinance which permits a court to order that a pardon shall be granted to an accused person provided the Attorney General gives his consent and on condition of that person giving full and true evidence in respect of any offence of which that person stands accused or of which he is suspected or for which he has been committed for trial. This pardon is to be the equivalent of a Governor's pardon; lastly, there is the power contained in the Prevention of Bribery Ordinance Section 23 of which once again permits the court, at the request in writing of the Attorney General, to inform an accused or suspect person that he will not be prosecuted for any offence disclosed by his evidence if he gives full and true evidence in the case. The burden of this argument was that within the Colony there is in effect a comprehensive code embodied in these provisions which must be regarded as an exhaustive enumeration of the powers available for the granting of immunities to suspect and accused persons in return for truthful evidence leading to the conviction of offenders. It is common ground that none of the powers conferred by these provisions was invoked in the present case. 12. There are we believe two valid answers to that argument. As Mr. French points out, what we are dealing with here is not an example of an illicit attempt to usurp powers which are in the nature of the Royal power of pardon - and pardon in its strictest sense is what the three provisions deal with. Rather are we concerned with the right and duty of the Attorney General as the principal legal representative of the Crown to prosecute or not to prosecute offences. In practical result the distinction may be a narrow one but it is nevertheless real. It is a distinction which underlies the well known statement of principle quoted at page 352 of "Colonial and Commonwealth Law" by Sir Kenneth Roberts-Wray to which we were referred by counsel. That principle is quite wide enough to embrace the idea that the Attorney General in Hong Kong, in virtue of his function as the Chief Legal Officer of the government, is charged with the duty of deciding its true interests in respect of any prosecution, and that he may decide which of two possibly equally guilty men he shall pursue when confronted with the awkward situation that the only means of bringing either of them to justice will be to use the testimony of one against the other. It is argued that the position of the Attorney General in a dependent territory such as Hong Kong is less autonomous than the position of the Attorney General in England. As Mr. Scrivener has it the Attorney General in Hong Kong has no inherent powers but only such powers as are specifically given to him under the positive law. According to him, precedent and prerogative define the powers of the Attorney General in the United Kingdom. Turning to Hong Kong he points to such specific powers as, for instance, the power to enter a nolle prosequi which is conferred upon the Attorney General, in relation to Magistrates Courts, by Section 15 of the Magistrates Ordinance and, by Section 76 of the District Court Ordinance, in respect of proceedings in the District Court. He conceded that by Section 15 of the Criminal Procedure Ordinance it is specifically provided that the Attorney General shall not be bound to prosecute an accused person in any case in which he may be of the opinion that the interests of justice do not require his interference. That section was not adverted to in the court below and while it lends some support to the suggestion that the Attorney General's powers are bounded by the positive law it may equally be said that, inasmuch as a specific power is given to decide in the public interest not to prosecute, that power will be exercised normally in precisely the same kind of way as it would be exercised in the United Kingdom. If that be a valid line of reasoning then the Attorney General in Hong Kong, no less than his opposite number in the United Kingdom, is charged with ultimate responsibility for the manner in which prosecutions are to be conducted. While therefore Mr. Scrivener's argument is far from negligible we are satisfied that, whatever constitutional differences may exist, the scope of an Attorney General's powers, at any rate in such matters as we are now concerned with, must be similar in the two territories. 13. But even were we to hold otherwise it could have no effect upon the admissibility of the evidence of Hunt and Cheng for on the principle laid down in Kuruma (1) if the evidence is relevant to the issue it is admissible and there can be no question here of the relevancy of the evidence. Nor, in view of its telling, even conclusive, nature if believed, can its admission be said to have operated unfairly upon the appellant. Secondly, it is contended that if the evidence was in fact admissible, the learned judge should, in the exercise of his discretion, have excluded it unheard either because its tainted source made it so manifestly unreliable that it would not be in the public interest to receive it; or else because, irrespective of its truth or falsehood, it had been procured in a manner which amounted to an outrage upon public morality and that it was therefore contrary to public policy to admit it. It is a separate and additional objection under this second heading that the learned judge never applied his mind to the question of exclusion although he palpably gave much thought to the effect of the source of the evidence upon the weight which he should attach to it. 14. It is to be observed that neither before the Chief Metropolitan Magistrate nor the Divisional Court in the course of extradition proceedings nor yet before the learned District Judge was it at any time suggested that Hunt's and Cheng's evidence should be excluded in the exercise of a discretion. There was thus nothing to push the question of exclusion to the forefront of the learned judge's mind yet, whilst there is nothing in his reasons for verdict to indicate that he gave to this question the same minute consideration which he gave to that of weight it is, we think, apparent from the tenor of his judgment that the question of exclusion was not absent from his mind. As was said by Blair-Kerr J. in Reg. v. Low (2) at page 82, a District Judge in setting out his reasons for verdict is under no obligation to set out his mental processes in full. That apart, the learned judge's references at page 23 of his reasons for verdict to the vital importance of the circumstances in which the evidence of Hunt and Cheng came to be given, is important not only in relation to the case then before him but also to more general principles concerning the protection of the liberty of the subject; and his mental query, there recorded, as to whether the terms offered to these two witnesses were really justified is strong indication that the possibility of excluding the evidence was one which was present to his mind. If we are wrong as to that, it is very clear from the tenor of the reasons for verdict that, had the judge applied his mind to the question of exclusion, he could not reasonably have excluded the highly relevant evidence of Hunt and Cheng, upon either of the grounds assigned, without hearing it, so that if there remains any doubt that the judge did have the possibility of exclusion in his mind we would not even think it necessary to apply the proviso. 15. We have carefully considered the authorities on which counsel relied for this contention including Rudd's case (1 Leach 115); Reg. v. Pipe (51 C.A.R. 17); Rex v. Grant (1944 2 All E.R. 311) as also the several cases involving prisoners confessions from which he drew analogical support for his argument. We cannot find in them any general rule which would exclude, in limine, the evidence of witnesses such as Hunt and Cheng when called for the Crown. On the other hand a strong authority to the contrary is available. 16. It may well be indeed that this particular argument would never have been advanced had it not been for the decision of the Court of Appeal (Criminal Division) in Reg. v. Turner & Others a case that falls so timely upon the present issues that it is not yet reported, a transcript of the judgment dated 24th of Mafch 1975 having been produced before this court. It so exactly bestrides the issues in the present case, and it occasioned such concern to the English Appellate Court that Mr. Scrivener, while allowing that it is a wholly relevant exception to his principle against what he called "horse-trading", has nevertheless resorted to it or support in outlawing the bargains struck with the witnesses in the present case. That decision and its implications bring us to what appears to be the most substantial point in the appeal: the question whether, assuming that the evidence of the witnesses Cheng and Hunt - who were both rightly treated as accomplices - had been properly admitted, it was of sufficient weight to support the conviction. Had it not been for Turner case Mr. Scrivener's assertion that the deals made with Hunt and Cheng were unique in legal history might have had more weight. In that case however we are confronted by an exactly contemporary precedent of great authority in which the Court of Appeal in England while voicing its misgivings in the strongest terms was not prepared to regard as unsafe or unsatisfactory a conviction resting wholly upon the evidence of one man who was not only an accomplice of persons charged with a series of very large bank robberies but was possibly the ring-leader of the gang and who was self-confessed to be a violent and dishonest rogue described by the Court of Appeal as "one of the most dangerous and craven villains who had ever given evidence for the Crown". 17. Mr. Scrivener's argument was that that case was at the extreme limit of permissible procedure and he sought to persuade us that the inducing effect of the terms offered to Smalls (the accomplice turned Queen's evidence in Turner case) was not so great as that offered to the Crown's informers here, particularly Cheng; secondly, he said that since neither Hunt nor Cheng was asked to make full confession of all offences they had committed the prosecution were in effect offering them each a blank cheque for criminal careers of undisclosed dimensions and were thus recklessly preparing to rely upon the testimony of men the full extent of whose infamy was still, at the date of the trial, unknown to them; and thirdly he said that, in the case of Hunt, there was the additional factor that since he, unlike Cheng, had not been promised that any statement which he made would not be used against him or his wife he therefore could only give evidence under risk of prosecution based on his own revelations should he fail to come up to proof in court. 18. Mr. French, on the contrary, saw the Smalls arrangements as giving equally a blank cheque to the informer/accomplice backed, as he put it, by an even greater account. Thus Smalls was given the opportunity of absolution for all offences, short of homicide, in a lifetime involving crimes of the very gravest character and ran the risk, should his evidence prove not strong or clear enough to convict his confederates, of spending the remainder of his life a fugitive from their vengence. 19. In truth, while there are no doubt particular differences between the terms of all three arrangements in these two cases and between the circumstances of the three recipients of favour there is little essential difference between what was done by the prosecution in Turner's case and what was done in the present case to secure convictions. When one applies to these arrangements the four criteria suggested by Mr. Scrivener the answers to be returned in respect of the two cases are not different. Those criteria were: 1. How substantial are the inducements? 2. Has the witness an interest to protect or any special hope of gain? 3. What in general are the motives of the witness? 4. What is the character of the witness? 20. As to the first of these, Cheng, like Smalls, was clearly induced to speak and it makes little difference that Smalls (like Hunt) initiated the bargaining with the police. An inducement is none the less an inducement for being first suggested by the person induced. Smalls like Cheng, was under arrest and charged with the offences in respect of which he later testified for the Crown. Admittedly, in the case of Cheng, it was the officers of the Independent Commission Against Corruption who first suggested that he might save himself by turning Queen's evidence and he was clearly very unwilling to do so until successive offers had reached a degree of favour which overbore his reluctance. But in both cases, however initiated, tempting terms were offered to the witnesses, and the end result in each case was the fruit of what can only be regarded as an inducement emanating from the Crown. 21. It has been said, however, that Hunt on the contrary was not induced but that he volunteered his information and thus it is argued that, unlike Smalls and Cheng, he stood at risk of his statements being used against him later. That difference is more apparent than real. It must be remembered that about the time he first went to prison Mr. McNutt of the Royal Hong Kong Police Force had suggested that Hunt might testify in order to earn himself a pardon under Section 23 of the Prevention of Corruption Ordinance and although Hunt refused at the time it is clear that a short time later he had it in mind that he might get out of Stanley by offering to give evidence against the appellant. There was, in other words, an element of inducement in his case long before he gave his first statement to Mr. Barrymaine although, of course, the amnesty then hanging in the air was of a much more limited character than that eventually accorded to him. It is true that it was Mrs. Hunt who first contacted Mr. Prendergast and that it was as a result of those overtures that Mr. Prendergast first saw Hunt at Stanley Prison and as a result took from him the statements which eventually were embodied in the affidavits used upon the extradition proceedings. But it must be remembered that this contact with Independent Commission Against Corruption by Hunt followed on Mr. Barrymaine's initial contact with Mr. Prendergast. Admittedly, the wider terms of immunity given by the letter of the 7th of May 1974 were not offered to Hunt until officers of the Independent Commission Against Corruption had examined the statements taken from him by Mr. Prendergast but in view of what has been said it is at least doubtful that his statements to Mr. Prendergast could ever have been used if upon the trial he went back upon his promise and testified in favour of the appellant. It is more likely that there would have been available to him that very immunity which Lawton J. descried in the Smalls arrangement in Turner case. That would appear to be the explanation of the terms of the letter of the 28th of October 1974 which has received critical comment in the present case and in which the London solicitors for the prosecution informed the London solicitors for the appellant that no evidence was available to the Crown at the time of Hunt's disclosures nor at any time thereafter on which further proceedings against Hunt might be initiated. 22. If this be the correct view of Hunt's situation at the time that he volunteered his statement to Mr. Prendergast the subsidiary objection that the deal with him whereby he was required to give true evidence was objectionable in that it left the decision as to what was the truth in the power of the prosecutor to decide falls away. That point could only be of substance if there was a real risk of prosecution upon charges in respect of offences for which he had been given immunity should he fail to come up to proof. In truth there was no reality in the suggestion that he spoke under a continuing fear that unless he convicted the appellant he must face imprisonment himself. In this regard it is well to remember that he himself did not seem to have viewed that risk very seriously since he chose to come back to Hong Kong to testify in the case, voluntarily leaving his Spanish sanctuary where he was virtually immune from pursuit. 23. As to the width of the immunity offered: it is true that neither Hunt nor Cheng was asked to make a full confession of all their crimes and Smalls was asked to do this. It is said therefore that the inducing effect was greater in their case since they were being given wider pardon for less confession; and further that, unless full confession was made, the officers of the Crown were not in a position to judge the quality of those to whom immunity was being offered. As to that it may be said firstly, that we have no way of knowing whether Smalls did in fact make full disclosure of all his criminal acts. Such a total clearing of accounts presents problems to the power of memory no less than that of conscience; secondly, homicide was expressly excluded and the statement he made may well have placed in the hands of the authorities matters which might put him in jeopardy on that score if some future investigation should disclose other crimes in which he was involved as a suspect. Thirdly, the cover given to Hunt did not extend to statutory offences other than those expressly excluded by the terms of his immunity and a great part of the criminal law in Hong Kong is embodied in statute. Cheng was in a somewhat different position on this score since he not only was not asked to and did not make any wide confession but only - and with evident reluctance - agreed to admit his fault in the matter charged and was, even after receiving this wide immunity, patently unwilling to admit, even when giving his evidence in court, to anything more than the barest essentials of his dealing with the appellant which was the subject of the charges. But again, and still considering the possible effect of the inducements, it must be kept in mind that Cheng, like Smalls, when giving his testimony was in the position of an accomplice who had been charged and dealt with to finality. This is so because although upon his arraignment a nolle prosequi was entered subsequent correspondence, shown to this court, makes it clear that this was to be regarded as equivalent to an acquittal. This consideration is of course not relevant in the case of Hunt. It is true that Hunt did not reveal to Mr. Prendergast certain acts which he disclosed later in his evidence but when he got his offer of immunity the officers of the Crown were aware that they were dealing with a police officer who admitted to being "on the take" for years. What emerged later would add little to the infamy of that admission. 24. As to the second of Mr. Scrivener's criteria, it is obvious that both in Turner case and the present case the accomplice/informers all had substantial interests of their own to serve either by way of rights protected or by way of hope of advantage gained. For Hunt there was the freedom from fear that some day some chance fall of circumstances might find him with his guard down within reach of the forces of retribution. Coupled with that there was the fact that the booty from his life of corruption was in a measure secured to him. Then there was the promise of immediate alleviation of his miseries in Stanley by transfer to Siu Lam which, although it was no longer a factor when he came to testify, was a powerful part of the original inducement to take up the initial suggestion made to him by Mr. McNutt. And lastly there was the possibility that the very oportunity given him to testify. immune might angment the publicity which he had avidly and shamelessly courted after his release from prison and which might be expected to enhance further his value to the more sensational reaches of the Press in which he had already published articles. There was also said to be a book of his reminiscences in preparation. All of this increased the possibility that he might misuse the witness-box. 25. For Cheng, although reticence was the mark of his evidence, there was the powerful incentive of a clean slate, pension rights, and back pay coupled with retention of subsidized quarters; assistance for his plans to emigrate to Canada and police protection while he remained in Hong Kong. We do not think however that Mr. Scrivener was right to suggest that the financial aspect of Cheng's deal made it in some sense unique. In truth the prosecution were saying simply that, in return for his testimony, the hands of the clock would be set back to the hour before his arrest. The officers of the Crown were not offering him cash in return for his oath; rather they were waiving the Crown's right to deny him the fruits of his honest along with his dishonest labours during his years of service. That is not to deny that there was a very substantial financial aspect to the deal but, although not so exactly calculable, that too was necessary a feature of the arrangements made with Hunt and with Smalls in Turner case. Smalls, like Hunt, was almost certainly getting away with a very considerable quantity of ill-gotton gains. 26. There were also peripheral matters of similarity in these three deals as counsel in this court both have pointed out. The protection given to Smalls' brother, for example, corresponds to the immunity given to Mrs. Hunt who was suspected to have been deeply involved in some of her husband's malpractices. Police protection was offered both to Cheng and to Smalls; and the assistance to Cheng to emigrate to Canada roughly equates with the offer to Smalls that Mrs. Smalls and her children should be removed to a place of safety. 27. In the upshot there are no vital differences. All three arrangements constitute a most unusual, risky, and perhaps somewhat desperate deployment of the powers of the Attorney General in the interest of securing convictions in cases where the damage to the public had been great. The desirability of holding this practice within conscionable and reasonable bounds was strongly stressed in Turner's case and nothing need be added to what was there said. We think, however, that Mr. French is right when he explained the extraordinary stricture uttered by Lawton J. at page 16 of the transcript of that judgment, where the learned judge asserts, in relation to the bargain made with Smalls, that "nothing of a similar kind must ever happen again", as bearing on the fact that the advice of the law officers was not sought and the deal was arranged at the level of the police and the Director of Public Prosecutions. The learned judge does not deny that such undertakings may perhaps be given in the public interest but says that the Director should give them most sparingly. 28. Thirdly, as to the motives of the accomplice witnesses in these two cases, there is surely little to choose between them. All three were moved by purposes which had about them no savour of any honest desire to see that justice was done. Simple and sordid self-interest is the whole explanation of their readiness to make public confession upon oath. 29. Finally, as to character, it would be an invidious exercise to attempt to analyse the nature and degree of the different kinds of moral turpitude disclosed by the public record of the acts of these men. Save, perhaps, to say that, whatever the quality of Hunt, of whom much has been said in various places, or of Cheng whose relatively better showing may be due merely to his reticence, neither of them at least had been involved in violent banditry the contemporary scourge of many civilised lands, as had Smalls. There is little in the suggestion that because Hunt did not disclose all of his criminal acts to Mr. Prendergast and because Cheng was unwilling to disclose anything very much at all the prosecution was not in a position to judge the quality of these to whom it was offering immunity. The same, in any event, might be said of Smalls whose immunity was guaranteed in writing, in return for that was hoped to be a full confession, several days before he had uttered a word in fulfilment of his promise. 30. Thus, in the end it was the real task of the District Judge, as it had been of the jury in the Turner case, to weigh the quality of these men against the content of their testimony. In both cases the quality of the witnesses and the nature of the arrangements made between them and the Crown were fully canvassed and anxiously considered by the court. One point of distinction between the arrangements in the Turner case and in the present case may finally be mentioned in this connection. It was a matter of comment in the Court of Appeal in England that Smalls was not expresnly asked to tell the truth. Hunt was asked to give true evidence concerning the offence and Cheng to give true and faithful evidence. And in this respect it would seem that the bargain made in Hong Kong was the less questionable. 31. Then it was said that the learned District Judge in weighing up the testimony of Hunt and Cheng had misdirected himself in certain respects as to certain important features of the remaining evidence. In particular there was the evidence relating to the Postings Conference procedure the implications of which he was said not to have fully appreciated. This matter was also explored in considerable detail. We are indebted to counsel for a thorough and exhaustive exploration of all the evidence relating to that argument but it is not necessary to follow every turn of the debate. It was part of the Crown's case that the appellant had sought to influence the posting of Cheng to Wanchai by approaching the then District Commander Mr. White. Hunt's evidence was that the District Commander had power to influence such a posting and secondly that the appellant told him that it was as a result of the appellant's advocacy that Cheng and not Mr. Whiteley had been given the post. Mr. Whiteley supported this story to the extent that he said he had been promised the Wanchai post by Mr. Grace as recompense for not having retained an earlier posting to Bayview which had actually been effected before the Commissioner intervened to alter it. He said that he assumed he was getting the Wanchai post and was surprised and chagrined when Cheng got it instead. The defence case was that the District Commander, who had strictly limited powers to make postings, had not, in any case, done so in this instance and had not needed to do so since a special body called the Postings Conference, which had recently come into operation, had already chosen Cheng for the Wanchai post as early as the 30th of December 1970. This contention had two distinct bearings upon the case for the prosecution. Firstly if that evidence was true it would, in the defence submission, tend to throw doubt upon the very centre of the prosecution's story concerning the meeting between Cheng and the appellant at the car park and their subsequent meeting in Hunt's office when, in the presence of Hunt, money was allegedly handed over. Secondly, even if the prosecution's story was true it still left open to the defence the possibility that the appellant had never done or intended to do or even believed that he could do or needed to do anything to influence the posting of Cheng. To this latter point - the double-cross argument - I will return later. The trial judge considered the evidence concerning the decisions of the Postings Conference with care and he embodied his findings thereon in two detailed analyses which were appended to his main reasons for judgment. We were supplied by counsel for the Crown with an elaborate concordance of these taken sentence by sentence in relation to the parts of the evidence which are said to support every conclusion to which he came. It is unnecessary to refer to this except to say that it was helpful to establish that the learned judge was fully justified in finding that it was at least potentially within the power of a District Commander to influence a posting within his district subject always to the overriding intervention by the Commissioner; secondly, that the postings notified in the list drawn up by the conference are not irrevocable and that the recommendation by a District Commander would be considered. In addition to these findings, embodied in the two appendices, the trial judge found that Mr. Grace had never made any positive recommendations to the Postings Conference or to the Commissioner concerning the posting of Mr. Whiteley to Wanchai. 32. All of this is scarcely in controversy but even that much as it stands is enough to dispose of the suggestion that the Postings Conference evidence, had it been fully understood, was a mortal blow to the credibility of Hunt. It is common ground that from the 30th of December when he was formally nominated for Wanchai - a nomination tacitly approved by the Commissioner on the 8th of January - up to the 25th of March 1971 when he was informed of his appointment by Mr. Morrin, nothing in fact intervened to affect the decision of the conference. It is also common ground that the Postings Conference never considered Mr. Whiteley for the Wanchai post. The defence point was that Hunt must have been lying when he told the court that the appellant had told him that he, the appellant, had several times take up with Mr. White, the successor to Mr. Grace, the subject of Cheng's posting and that Hunt must have therefore been lying when he said that the appellant had told him that Mr. White kept changing his mind. This was so, it was argued because Cheng had by then been to all intents and purposes appointed to the post and if the appellant was corrupt and if Cheng was corrupt and if Mr. White was compliant in corruption they all by then had what they wanted. This however overlooks the fact that the list prepared by the Postings Conference was a confidential document which was not circulated even to District Commanders. Mr. Grace who handed over to Mr. White in the middle of March, was not aware that Cheng had been nominated for Wanchai and would not have been happy with that appointment had he known of it. Also, although in the event he did nothing about it, it had been in his mind to try to secure the next divisional post to fall vacant, and which in fact happened to be the Wanchai post, for Mr. Whiteley. Mr. Whiteley's expectation that he would get the Wanchai appointment was borne out not only by the evidence of Hunt and of Mr. Grace but also by the fact that at a New Year party which he attended he was greeted by fellow officers who were present as the Superintendent elect of that division. It was Mr. Whiteley's evidence that he had actually been promised that posting although Mr. Grace would not go that far. There seems little doubt however that he did get some kind of undertaking from Mr. Grace and that he and some of his fellow officers assumed that he was the intended replacement for Hunt. There is therefore nothing in the Postings Conference evidence which necessarily gives the lie to Hunt's story. If Mr. White, in taking over as Commander, inherited the general impression that Mr. Whiteley was the foremost candidate - a man already disgruntled at having been once passed over- then Mr. White might be very slow to press the claims of yet another interloper. And without inquiry he would not have known of the Postings Conference decision to nominate Cheng. 33. Objection was also taken to the use made by the learned judge of a certain part of Mr. Whiteley's evidence in this regard. This was to the effect that on a day shortly before Cheng took over from Hunt Mr. White summoned Mr. Whiteley and after presenting the Commissioner's compliments informed him that Cheng had been appointed to the Wanchai post. This evidence was objected to at trial on the ground that it was hearsay but it was admitted by the learned judge as relevant to explain what Mr. Whiteley had done both before and after that interview. The learned judge however expressly relied upon this evidence as showing the state of Mr. White's mind at the time. We think he was perfectly justified in doing so and we do not think the objection was well-founded in the first instance. If the defence was relying on the probability that Mr. White already knew that Cheng had been appointed - and that seems to be implied in the whole tenor of the Postings Conference argument for the defence - then surely anything which threw light on the state of his mind in relation to the truth or falsehood of Hunt's story, at or about the relevant time, was itself relevant and admissible. Although evidence may have been admitted for one purpose we do not think that a judge is wrong to resort to it for a different purpose provided that is a legitimate one. Nor can we agree that this was evidence of exceptional significance in the eyes of the judge. On the face of it he regarded it as nothing more than an indication that Mr. White had shared the general impression that Mr. Whiteley was to have the Wanchai post. Even if that were true it would not necessarily show that Mr. White was unaware that Cheng had already been nominated for the post and there is nothing to show that the trial judge thought that this evidence did prove that. 34. Then it is said that the learned trial judge did not pay sufficient attention to discrepancies between Hunt and Cheng on certain matters. Both counsel in the present appeal, following the lead of the trial judge, analysed the stories of Hunt and Cheng concerning what had happened at the time that the money was allegedly handed over to the appellant. The judge enumerated five items which he regarded as telling consistencies. Mr. Scrivener sought to persuade us that there was a greater number still of striking inconsistencies. The judge was fully aware that there were inconsistencies and an analytical comparison of the points of divergence and the points of convergence does not seem in the present case to be of great persuasive force either way. Far more important is the consideration that these two men who, as it is admitted, had no direct contact with each other before their statements were made to the authorities each purported to describe an incident occurring in or about the third week of February involving the payment of a large sum of money to the appellant as a gratification for services ostensibly rendered. That coincidence can only be explained on one of two bases: either it is the truth substantially or else it is the result of information conveyed knowingly or inadvertently to Cheng by someone connected with the investigation subsequent to the initial revelations made by Hunt. It was never alleged that there had been outright collusion between the investigating officers and the two witnesses to invent that story but the possibility of some form of inadvertent leakage from communications between the Independent Commission Against Corruption officers and the solicitors for the witnesses or from some newspaper source was certainly mooted. It is difficult to see, however, how, in the absence of malicious and positive concoction, two stories showing so marked a degree of general coincidence as to time, place, purpose and sequence could have emerged. Again, if there was any positive concoction, it is difficult to believe that such inconsistencies as there were would not have been smoothed out altogether or at least rendered more plausible in their character. And if the investigating officers wore prepared to present these two as witnesses to the truth knowing or suspecting that they were no such thing it certainly seems strange that they did not manage to eliminate one startling contradiction between them viz. : the allegation by Hunt - hotly denied by Cheng - that Cheng had told him that he, Cheng, had in addition to the $25,000 paid to the appellant paid also $75,000 to Mr. White. In his reasons for verdict the learned District Judge makes it abundantly clear that throughout the trial he was well aware of the quality of the witnesses he was dealing with. It is precisely in such a case as this, with the court alert to the fact that everything turns on the credibility of doubtful witnesses, that the advantages of the judge of trial, provided he has fully apprised himself of the possibilities of error, are of decisive importance. 35. An argument which was advanced in the court below and which received further impetus in this court as a result of a misquotation by the learned judge, to which we shall refer, was that the bribe, if in fact accepted, was not accepted for any corrupt purpose to which the Prevention of Corruption Ordinance relates but was in fact a double-crossing of Cheng by the appellant since, accepting the defence argument, it was well known at the time the alleged conspiracy was entered into, that Cheng's appointment was already assured and it was thus unnecessary for the appellant himself to do or attempt to do anything to influence that appointment. 36. What we have referred to as a misquotation by the learned judge occurred at the beginning of his exposition of the law as applied to the case before him and consisted of setting out Section 3 of the Prevention of Corruption Ordinance of 1984. That 1948 section was correctly set out but it was not drawn to the learned judge's attention that the section had been amended in 1968. 37. Mr. Scrivener's argument will be more readily appreciated if the sections are set out. The 1948 section reads:
Whereas the 1968 section is as follows:
38. It is apparent that the section as amended is fuller and in particular that it relates, unlike the original section, to rewards not for merely doing or forbearing to do something but also for having done or forborne to do that thing. Mr. Scrivener argued that what the prosecution had set out to do was to prove particulars of an offence which involved showing that the appellant had assisted Cheng to get an appointment but the judge, by referring to the 1948 version of the section, had been postulating a future situation. 39. We do not think that the learned judge's error makes the slightest difference; the appellant was charged under the correct section and if the learned judge considered the offence proved under the old, now non-existent section, then a fortiori on the language of the 1968 amended section that offence must have been proved. We would in any event have held that even without the amending reference to "having done or forborne to do" but from principle and authority that "doing or forbearing to do" relates not merely to the future but also to the past. There is direct authority for this in the case of Andrews Weatherfoil Ltd. (3) where this very point was decided in the course of the construction of a section which was word for word the same as the 1948 version of the section we are considering. [See also Pritchard (1965) H.K.L.R. 475 and LUK Shun v. Reg. (1966) H.K.L.R. 820]. 40. There is therefore no merit in the argument that the bribe, if received, was received simply by way of a double-cross and not for any purpose associated with the Prevention of Corruption Ordinance. As Mr. French observed in the court below, the law would indeed be a strange animal if the interpretation of the section led to the result that Cheng was guilty of an offence under the Ordinance for giving a bribe but the appellant was not guilty of any such offence when he received it. Confidence in public officials is as fully undermined by conduct which pretends to offer favour as by conduct which actually does so and it would be a strange thing if a public servant could escape from a charge based on facts such as these by showing that he was not corrupt but merely dishonest. As the court pointed out in LUK Shun's case it is the corrupt intent of the giver which is material. 41. Associated with that argument and standing upon the same assumption Mr. Scrivener contended that, in any event, the conviction for conspiracy must go. Assuming that the Crown had failed to prove that the appellant had been in a position to carry out his promise, either at the moment when the reward was solicited or at the moment when it was received, and that, since he was aware of that, although Cheng was not, there had been, in counsel's view, a failure to prove such a meeting of minds as is the essential feature of any conspiracy. At first sight it might seem that there is more to that argument than there was to the argument that to accept money without prospect, possibility or intention of doing anything for it did not constitute the receiving of a bribe. But in truth the same answer serves to defeat it. Even if the minds did not meet on the question of the appellant's conduct, whether future or past, they did meet upon the purpose for which the money was offered to the appellant, and that was sufficient to establish the conspiracy. It would seem that anyone who permits another to give him a reward in respect of services which are covered by the section, it being clear to both parties that that is the purpose for which it is given, can only escape criminal liability in respect of that act if it should appear that he did so only to bring the other to justice. 42. Then the point is taken that in connection with the conspiracy charge the learned judge should have identified what was capable of amounting to corroboration and what was in fact corroboration and should have identified these matters in his reasons for verdict. We have already referred to the fact that it is not necessary for a District Judge to set out all his mental processes in his reasons for verdict though it is true that this court has also said that the nearer such reasons come to a summing-up the less likely is the judgment to be upset on appeal. (See LAM Tin-chung Crim. Appeal 625 of 1972). Quite apart from that, however, it is clear that the learned judge although he expressly forbore to rely on S. 9 of the Ordinance, the section which relieves the judge of the necessity to warn himself of the danger of convicting on uncorroborated accomplice evidence, and was prepared to approach the evidence of Hunt and Cheng as that of uncorroborated accomplices, nevertheless went on to find that there was some evidence which could corroborate their testimony. No complaint is made of that so far as the substantive charge is concerned but it is said that he misdirected himself by resorting to evidence, which though admissible in respect of the substantive charge was inadmissible on the conspiracy charge, as matter which corroborated the accomplice evidence upon the latter charge. This was, of course, the evidence of the pecuniary resources proved to have been in the appellant's possession and which by virtue of the provisions of Section 12 of the Prevention of Corruption Ordinance might be resorted to for corroborative purposes. Mr. Scrivener did not dispute that certain accounts found in the possession of the appellant might constitute evidence of pecuniary means disproportionate to his known resources but he pointed out that in dealing with this matter the learned judge, although restricting himself within the limited purposes for which the prosecution had asked him to resort to this material, had overlooked the difference between the charges and clearly lumped the two offences together in referring to the purposes for which he would use that evidence. That appears to be so, from what he says of it at page 4 of his reasons. Later in the course of his judgment he said (in reference to the alleged increase in the pecuniary resources of the appellant of $98,898 between May and November 1971):
The third of those purposes was:
In view of that it would be difficult to say as Mr. French did say, that the learned judge had treated the evidence of Hunt and Cheng as the evidence of uncorroborated accomplices. Mr. French frankly admits that the District Judge was in error in not distinguishing between the two counts. He says however that it matters little since the judge examined the evidence of Hunt and Cheng so carefully that he clearly based the whole weight of his judgment upon his being satisfied that they had spoken the truth. There is indeed something artificial in the situation created by the combination of the statutory and the Common Law Offence. Had the District Judge referred to the pecuniary resources evidence as decisive the point would have been one of substance but the true source of his decision seems clearly to lie in his conclusions as to the truthfulness of the witnesses. 43. In the and, as the learned District Judge saw, the true issue was whether he could believe the two witnesses. We cannot find any good reason to say that he erred in believing them. For these reasons, treating the application as the appeal, we are satisfied that the appeal against conviction must be dismissed. Representation: (1) (1955) A.C. 203. (2) (1961) H.K.L.R. 13. (3) (1972) 56 C.A.R. 31. |