Attorney General v. Yip Wing Sun and Another

CACC000183/1976

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Coram: Pickering, J.A.

Date of Judgment: 9th April 1976.

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JUDGMENT

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1. The two respondents were charged with bribery contrary to s.9(2)(a) of the Prevention of Bribery Ordinance (Cap. 201). The learned magistrate having found that neither had a case to answer, dismissed the charges and was thereupon asked to state a case for the purpose of appeal to a judge of the Supreme Court. This decision deals with the case so stated by the learned magistrate.

2. To understand the history of the matter it is necessary to go back in time to an earlier charge against the two respondents that is, that they, contrary to s.18(1)(b) of the Import and Export Ordinance (Cap. 60) did, on the third day of August 1974 at Kai Tak Airport export unmanifested cargo, namely, 1,008 catties of ginseng in sixteen packages. To this charge each respondent had pleaded guilty and, following those pleas, a statement of facts was submitted to the court which statement was agreed by the respondents. In that statement it was said that the first respondent had visited the second respondent, who is the manager of an air freight company, and discussed with him the matter of sending ginseng to Taipei without recording these goods in the cargo manifest. The statement went on to say that after some bargaining it was finally agreed that the first respondent would pay to the second respondent some $17,800 in respect of a consignment of sixteen packages. In parenthesis I would add that this sum represents eight times the normal freight charges for such a consignment and why it was worthwhile for the first respondent to pay such an amount, is something which remains unexplained. The admitted statement of facts went on to relate how the first respondent gave $17,800 to the second respondent and how two cargo clerks presented themselves at the second respondent's office and there collected, in the presence of the first respondent, some $14,400 which was later split in equal shares between them. It was these cargo clerks who arranged for the loading of the unmanifested ginseng onto an aircraft. The plan misfired and the first and second respondents together with the two cargo clerks faced the charge of exporting unmanifested cargo.

3. As a result of the reference in the admitted statement of facts to the payment of money to the two cargo clerks, the respondents were subsequently charged with the present offence under the Prevention of Bribery Ordinance. The only evidence against either respondent was the admission contained in the statement of facts agreed by them in court when pleading guilty to the offence relating to unmanifested cargo, their statements to the police in relation to the present charge of bribery being innocuous.

4. Upon the hearing of the charges under the Prevention of Bribery Ordinance, the learned magistrate admitted in evidence the record of the proceedings (proceedings which had taken place in the same magistracy)relating to the unmanifested cargo charge. He further considered his residual discretion to decline to admit that record in evidence upon the grounds that its prejudicial value outweighed its probative value but decided not to exercise that discretion. When he came to consider the weight to be attached to the alleged admissions of bribery contained in the admitted statement of facts agreed upon the plea of guilty to the unmanifested cargo charges, the learned magistrate considered that no reasonable jury could attach weight to those alleged admissions and he ruled that neither respondent had a case to answer.

5. The questions of law which the learned magistrate poses in his case stated are eight in number and they are as follows:-

add that I do not accept the contention put forward by both counsel for the respective respondents that the learned magistrate should have held a trial within a trial before admitting the earlier court record. There was no suggestion that any admissions in that court record resulted from force or from threats or promises or inducements and neither counsel in the court below objected to the admission of the record though counsel for the first respondent did not admit that anything contained therein amounted to an admission of bribery. In addition, the observation in R. v. Rimmer⁽³⁾ to the effect that in each case the question of admissibility must be decided upon a trial-within a-trial, which observation was relied upon by Mr. Suffiad, did not withstand the impact of very much time. Some six months after that pronouncement by Sachs, L.J., the Court of Appeal in R. v. Hetherington said that it was unable to accept as applicable to all cases, the observation in R. v. Rimmer that the question of admissibility should be resolved by a trial-within-a-trial. R. V. Hetherington, which was not referred to at the trial, in the case stated or before me, does not appear to have been reported but a summary of the case can be found in (1972) Criminal Law Review at p.703.

6. The second question raised in the case stated is whether the record of the earlier proceedings was properly proved in evidence in the bribery proceedings. There is no question that it was and, indeed, counsel for both respondents agreed before me that this was so. The record produced was the original record of proceedings which had taken place in the same magistracy; that in itself would in my view have been sufficient but over and above the mere production of the original record the signature of the presiding magistrate in the earlier proceedings was proved by the court clerk who had officiated at those proceedings. Thus the second question must be answered in the affirmative.

7. The third question was whether the learned magistrate had a discretion to refuse to admit the earlier record if the probative value of its contents did not exceed its prejudicial effect. Again there is no question that such a discretion did exist and again counsel for both respondents as well as counsel for the Crown agreed before me that this was so. The third question is likewise answered in the affirmative.

8. The fourth question was whether or not the learned magistrate had judicially exercised the discretion to refuse to admit the earlier record when he decided not so to refuse. In my view the discretion was properly exercised. The argument to the contrary was based upon the contention that the learned magistrate should have held a trial-within-a-trial. I have already given my reasons for holding that this was not the case. Again the answer to the question is in the affirmative.

9. The fifth question was whether the admissions made in the earlier case by the two respondents after plea, which admissions were made in the statement of facts which they agreed were correct, were admissions upon which the prosecution could in law rely and to which the learned magistrate could have regard in and for the purposes of the bribery proceedings before him. It was contended on behalf of the first respondent that these were not admissions upon which the prosecution could rely or to which the learned magistrate could have regard for the reasons argued in respect of Question 1, that is to say, that they were inadmissible. I have held that the record of the earlier proceedings was admissible and the argument for the respondents upon Question 5 must fall with that upon Question 1. The answer to Question 5 is again in the affirmative.

10. The sixth and seventh questions posed may be dealt with together since the sixth asks whether, at the close of the prosecution case, there was a case for the first respondent to answer on the bribery information tried by the learned magistrate; the seventh question poses the same query in regard to the second respondent.

11. It is, I think, very necessary to take a long cool look at what precisely happened here. In the event of a plea of guilty to the charges regarding export of unmanifested cargo, the Crown was ready to place a statement of facts before the magistrate in that case - a statement prepared by the Crown. That statement of facts included an allegation that some $14,400 had been paid over to two cargo clerks of an airline in consideration of their arranging the embarkation of the cargo without manifest. Why charges of bribery were not laid at that time is a matter which has not been explained nor has it been explained why the prosecution sought, in the bribery proceedings, to rely upon a statement of facts agreed by the two respondents in regard to the unmanifested cargo charge instead of bringing forward the two cargo clerks concerned. It may well be that the two are no longer available; it may be that the Crown did not wish to rely upon the evidence of accomplices - or it may be that the attempted reliance upon the admitted facts statement in the earlier proceedings was a short cut. I do not know. Neither the learned magistrate nor this Court was informed.

12. What remains was a statement, prepared by the prosecution and agreed to by the respondents at a time when their minds were directed not to any charge of bribery but to one of exporting unmanifested cargo. The dangers are at once apparent for an accused pleading guilty to a specific charge is concerned primarily in admitting the facts which constitute that charge and, provided those facts be correctly stated by the prosecution, may well be content to let pass peripheral inculpatory matters with which he is not charged even though the statement of those matters may be inaccurate or even though the statement of those matters may be inaccurate or even wholly incorrect. To this consideration must be added the fact that there was no other evidence before the court which would have pointed to the guilt of the respondents upon the charge of bribery.

13. What the learned magistrate was left with was an admission made peripherally to the matter the real subject of admission, in the form of a statement prepared by the prosecution and interpreted orally to the respondents without the benefit of any written document being placed before them for their consideration; a statement which was moreover uncautioned and made without any warning from the court. Had the respondents given evidence and had the allegation of bribery been put to them in the witness-box they would have been warned from the bench that they were under no obligation to answer such a question if they considered that the answer might incriminate them. Obviously no such warning was required or given in the circumstances of the present case.

14. All these matters go to weight and, as was observed in Rimmer's case⁽³⁾ in such circumstances as this a jury would be entitled to "a very careful direction as to how it should look at the evidence adduced." Any such direction would, as the learned magistrate observed in his case stated, include a warning that the admitted statement of facts was not in the nature of a confession to a charge of bribery but only a statement of facts agreed to by the respondents in relation to an offence of a different character brought in different proceedings; that it was made without caution or warning, that there was no other material evidence pointing to the respondents' guilt.

15. Mr. Edwards, for the Crown, has urged that an admission such as this, made in open court is the best possible example of an admission which can be relied upon. For all the reasons which I have given I think, with respect, that to be too facile a view. I would not differ from the learned magistrate in his conclusion that no reasonable tribunal of fact, properly directed, could have convicted the respondents upon the present charges. The answers to Questions 6 and 7 are in the negative.

16. I have already stated that I have no means of knowing why the Crown approached these bribery charges upon the mere basis of the statement of facts agreed by the respondents in regard to a charge of a different nature to which they had pleaded guilty. It is therefore not for me to be critical of the procedure adopted but I think it opportune to say that this procedure, which should be used only as a last resort and which, in the absence of any more evidence than a statement of agreed facts made in regard to a different charge, will normally be doomed to failure.

17. The eighth question asks what should be done in the premises. The answer is "Nothing further".

Representation:

Edwards, C.C., for appellant.

Suffiad (W.S. Lo & Co.) for 1st respondent

Patrick Fung (Ho. & Co.) for 2nd respondent.

(3) 1972 1 A.E.R. 604.