Ming Ka-fook v. The Queen

CACC000190/1981

Consolidated hearing of appeal against conviction by appellant and Attorney General's appeal by way of case stated - Admissibility of cautioned statements as result of prolonged questioning despite accused's indication of refusal to answer a matter for trial judge - Judge failed to consider conflict of prosecution evidence and failed to consider defence evidence on voir-dire - statement wrongly admitted - judge adopted prosecution evidence as defence case - judge wrongly adopted approach which was not the prosecution cure - trial unsatisfactory and verdict unsafe.

As to appeal by Attorney General trial judge erred in law by importing irrelevant ingredients for an offence under Sect. 4(1) of Prevention of Bribery Ordinance. On his finding of facts judge must convict respondent of offence under Sect. 4(1) and not Sect. 8 of said Ordinance.

Both appeals allowed. As appellant's appeal succeeds result of Attorney General's appeal academic.

Coram: Hon. Li, Silke, JJ.A. & Bewley J.

Date of Judgment: 19th October, 1981.

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JUDGMENT

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Li, J.A. :

1. This is a consolidated hearing of an appeal by the Attorney General by way of case stated and an appeal by MING Ka-fook (the appellant) against conviction and sentence.

2. At the end of the proceedings we allowed both appeals and stated that we would give our reasons later. The following are my reasons.

3. The appellant was originally charged with an offence under section 4(1) (a) of the Prevention of Bribery Ordinance alleging that he, on the 20th day of December, 1979, offered an advantage to one Kennard, a public servant as an inducement to or a reward for or otherwise on account of the said Kennard, having performed an act in the capacity as a public servant.

4. At the end of the trial the learned trial judge invoked the power under section 32, convicted him of the lesser offence under section 8(1) (a) of the same Ordinance and sentenced him to eighteen months' imprisonment.

5. Pursuant to leave granted by a single judge the appellant appeals against conviction and sentence.

6. The Attorney General being dissatisfied with the aforesaid conviction, also applies for a case stated on a point of law to appeal against that alternative conviction.

7. The appellant is a qualified architect. He worked in the Building Ordinance Office between 1972 and 1974 where he became friend of quite a lot of his colleagues, in particular, one Kennard, who was eventually appointed the Principal Government Building Surveyor, the head of the Building Ordinance Office.

8. The appellant resigned in 1974 and set up his own practice. This friendship, however, continued.

9. In 1978, the appellant and his wife purchased a set of property known as 101 Pokfulam Road. He conceived the idea of purchasing the set of property at the back of 101 Pokfulam Road, namely, 1-12A Hok Sze Terrace, and developing the two sites together. In this way, he hoped he could build a much taller building than would be allowed if he were to develop the two sites separately. This would enhance the value of the combined sites. He sought advice from Kennard who said it was possible. This encouraged his confidence. The appellant approached one YIP Hon for financial backing. The latter readily agreed. Together they formed a company to take over the two sets of properties, a company by the name of Steed Limited. He also sought advice from Kennard whether it was feasible to incorporate a car park into this project. Kennard advised against it. He dropped the idea of the car park.

10. Plans were submitted in the middle of 1978 and were approved in principle by the 15th December, 1978. However, before formal approval was given, the appellant was able to arrange a sale by the Steed Company of their combined sites to the New World Development Company. The agreement was signed on the 7th December, 1978. The sale gave Steed Ltd. a profit of over $50 Million. In this way, the appellant and his wife personally benefited to the sum of around $20 Million.

11. On the 19th November, 1979, the appellant booked return tickets to Honolulu from Hong Kong for Mr. & Mrs. Kennard. On the 20th December, 1979, the appellant and his wife were observed to have a lunch meeting at the Old Vic Restaurant with Mr. & Mrs. Kennard. Between 25th and 27th December the appellant and his wife were seen to be with the Kennards in Las Vegas in the United States of America particularly, on the 25th, they were seen at the Cafe Roma in Las Vegas.

12. On the 12th of March 1980, 6 officers of the Independant Commission Against Corruption (ICAC) arrived at the appellant's home at 6.45 a.m. They put the appellant under arrest.

13. He was taken by the ICAC officers at 7.20 a.m. from his home to his office which was searched. After that he was brought back between 10.00 to 11.00 a.m. and detained at the ICAC office. He was not released until the evening of the 13th March, 1980. During this period no less than five interviews took place. At 11.55 to 1.30 p.m. he was interviewed and questioned. At 3.55 p.m. the ICAC officers tried to question him again. By that time he had seen his solicitor and counsel. He told the ICAC officers that he refused to answer further questions. However, he was requested to read over and sign the questions and answers recorded in the first interview. That episode concluded at 4.10 p.m.

14. Between 6.10 p.m. and 7.40 p.m. he was asked certain other questions to which he made answer.

15. It should be observed that the appellant did not see his solicitor and counsel until about noon on the day of his arrest.

16. Next morning, at 9.45 a.m. he was interviewed and questioned again. At the beginning he refused to answer the questions. Then, after 11 refusals he started to answer the questions. Such questions and answers were recorded. The interview ended at 12.55 p.m.

17. He was interviewed and questioned again at 4.25 p.m. until 6.35 p.m. after which he was released on bail and told to return at noon the next day, namely the 14th March, 1980.

18. On that day, he returned about 12.20 p.m. with his solicitor, Mr. Arculli. He was told to return at 2.30 p.m. An interview took place from 3.10 p.m. until the recorded time of 6.47 p.m. During that interview he made a statement which was admitted as Ex. 5.

19. All these facts are not disputed. The Crown conceded at the trial that the sole evidence in support of the prosecution incriminating the appellant was contained in Ex. 5 and possibly the answers to Ex. 3 and Ex. 4.

20. Understandably, the admissibility of exhibits 3, 4 and 5 was strongly contested.

21. The Crown's case is that the appellant was cautioned on arrest at his own home in his bedroom and was told that he committed an offence against the Prevention of Bribery Ordinance.

22. He was cautioned again before the first interview, the contents of which were recorded in Ex. 1.

23. All the interviews were conducted by ICAC Investigating Officer Chow, and recorded. The first interview was recorded by a Mr. Kwok, another ICAC officer. All subsequent interviews were recorded by another ICAC officer Mr. Sham.

24. Mr. Chow admitted that at the beginning of the second interview, the appellant was not cautioned. However, Sham, the recording officer, was adamant that the appellant was cautioned although he, Sham, forgot to put the caution on record in Ex. 2.

25. As to the third interview, it was recorded that the appellant did refuse to answer the first eleven questions - see Ex. 3. Chow said that despite the appellant's refusal it was his duty to put the case to the appellant. He put another 27 or 28 questions to which the appellant answered.

26. Then followed the fourth interview, the conversation of which was recorded in Ex. 4. Then the appellant was released on bail on the condition that he should return around noon time the next day.

27. At 12.20 p.m. the appellant turned up at the ICAC office with his wife and solicitor. He was met by Chow and Sham. The appellant was told to return in the afternoon and was further told that the reason why he was asked to return was to ascertain from the appellant whether he wished to make a statement. The appellant agreed. Hence Ex. 5 which was made in the afternoon. The appellant left for home shortly after 7 p.m.

28. The defence case on this issue was that the appellant was arrested in the early hours of the morning in his bedroom and was told that he was arrested for having bribed Kennard. He at once asked for permission to contact a lawyer. Such permission was refused by Chow.

29. He repeated this request three times before he arrived at the ICAC office - once just before he was taken from home to his office; the second in his office; and finally just before leaving his office for the ICAC office. All three requests were refused.

30. It was not until they arrived at the ICAC office and a few questions had been put to him that at about 11.55 in the morning, he was allowed to contact his lawyer. His lawyer, Mr. Arculli, was not free in the morning. As a result, a Mr. Peter Lo of the same firm of solicitors and Mr. Kotewall of counsel saw the appellant in the afternoon.

31. The short interview took place after the appellant consulted his lawyers. In that short interview, the appellant indicated that he had been advised by his legal advisers not to answer any questions. Despite that, there was another interview at 6.10 on the 12th March in which the appellant was again asked questions.

32. Then at 9.45 a.m., the appellant was taken from his cell and interviewed in another room. Mr. Chow, put eleven questions one after another to him. The appellant persistently said that he would not answer any questions until he had consulted his legal adviser or words to that effect.

33. It is alleged by the appellant that at that time Chow became angry. He stood up, threw his file on the desk and said "As long as you refuse to answer my questions you are not allowed to go home." He said that the previous statements were of no use to him. He further told the appellant that it was Chow himself who could help the appellant and that he was only going after the big targets. He hated lawyers and that if the appellant refused to cooperate he would see to that the appellant would go to jail.

34. The appellant further alleged that throughout his detention he persistently asked about his wife's condition or her whereabouts. He was refused permission to see his wife until 9 p.m. on the 13th March when he was released on bail. He was mentally tired and physically exhausted.

35. He further alleged that the words recorded in Exhibits 3, 4 and 5 are by and large words supplied by Chow. The appellant, having his will sapped, merely agreed to what Chow asked him to say in reply to Chow's questions. Then those words were put down as his answers.

36. On the 14th March, at about 12.20 p.m. he returned with his wife and solicitor and was met by Chow and Sham again. At that time Chow merely told the appellant that he, the appellant, was asked to return to say a few words to complete the statements which he made the previous day. The appellant never agreed to make any statement whatever as in Ex. 5. However, he was in fact questioned again. He was not allowed to leave until 9.30 p.m. on the 14th March.

37. At around noontime on the 14th March, when Chow saw the appellant, there was never any mention of a separate statement being taken. Otherwise the appellant would have requested Mr. Arculli who was then with him to be present in the afternoon. He was questioned again in the afternoon on his return. Chow again put words to him and asked him to agree. Chow repeated the threats and pressure that afternoon.

38. Two witnesses were called by the defence to support the appellant's allegation that he did not leave the ICAC office until 9.30 p.m. on the 14th March.

39. Lucia Tsui, his relative, said that the appellant did not return home until after 8.30, and PONG Shui-kai, another relative, said that he was the one who went in his car to pick up the appellant at the Murray Car Park, near the ICAC office. He did not go there until about 9.30 p.m. on the 14th March.

40. It is a fact that the appellant was detained for over 30 hours during which he was questioned a total of about eight hours. It is also a fact that the appellant refused to answer questions at the end of the first interview and at the beginning of the third interview. All these are on record. So was his visit on the 14th March, 1980.

41. Chow and Sham vehemently denied that the appellant persistently asked for permission to see his lawyer or that pressure or threats were ever applied at any time during the interviews and further that on the 14th March any question was asked of the appellant. On that last occasion, the appellant was requested and was allowed to read through the questions and answers of his previous interviews and then he started to make a narrative statement commencing at about 3.10 p.m. and finishing by about 6.47 p.m. A few minutes later the appellant was seen off the lift on the 9th floor of Murray Car Park Building going down to the ground floor to go home. In short, the last Chow and Sham saw of the appellant would be shortly before or after 7.00 p.m.

42. In view of the issues involved in the voir dire, the credibility of witnesses, Chow and Sham, on the one hand, and that of the appellant and his relatives, on the other, must be a matter of great importance and should be properly assessed and carefully considered. At the end of the voir dire, the learned trial judge said:

"On consideration of all the evidence and circumstances of this voir dire I have come to the following findings:

43. No reason was given for his findings at that stage. The reasons are to be found in his Reasons for Verdict.

44. In those Reasons, the learned trial judge rejected the appellant's allegation that he persistently asked to see a lawyer and was persistently refused. He accepted the ICAC officers' evidence that the appellant never asked for permission to see his lawyer until around noontime when the appellant was interviewed at the ICAC office. He came to this conclusion because he thought that had the appellant an intention to see his lawyer, he could ask his servants at home, or later on his employees in his office, to telephone his lawyer even though he was refused permission to contact his own lawyer.

45. Learned counsel for the appellant, Mr. Macpherson, complained that such a proposition of requesting servants and employees to contact a lawyer was an argument invented by the judge. This question was never put to the appellant.

46. Further, Mr. Macpherson argued with force that there was evidence that on that same day, namely, the 12th March, 1980, the appellant was due to join his solicitor, Mr. Arculli, to appear before the Building Authority Tribunal at 10 a.m. Therefore, in all probability, the appellant would be anxious at least to notify his solicitor, Mr. Arculli, of his incapacity that morning. This was never mentioned by the judge.

47. He contended that despite the appellant's inability to obtain legal advice, the appellant did answer a series of questions during the first two interviews, in answer to general questions which did not advance the prosecution case. No objection had been lodged against the admissibility of Ex. 1 or 2.

48. Prior to the second interview, the appellant had indicated that his lawyers had advised him "not to answer any questions for the time being". Despite this knowledge, ICAC officer Chow persisted in questioning the appellant, without administering the caution, from 6.10 until 7.40 p.m. the same day. The records of this interview was not admitted by the judge because there was a doubt in his mind from the witnesses' testimony.

49. Stopping here, I must observe that the learned trial judge did not say which witnesses' testimony he doubted. At that stage of the voir dire it was only the words of the appellants against those of Chow and Sham. The reference to witnesses could have meant the testimony of all three witnesses or simply those of Chow and Sham. Had it been the latter case the judge would have in mind Chow and Sham had not been completely frank and open as to the whole truth. This is particularly so, bearing in mind that Chow in his testimony said that he had never cautioned the appellant at the beginning of the second interview, because he deemed it unnecessary having regard to the proximity of time between the first and second interview. Yet Sham, the recording officer, was adamant that Chow did caution the appellant and he only neglected to record it. Only one of them could have told the truth.

50. Then the appellant was interviewed and questioned for the third time in the morning on the 13th March, 1980, by Chow and recorded by Sham. The questions and answers were recorded in Ex. 3 which the judge admitted. Giving his reasons, the judge said at p. 325 and p. 326:

"It is common ground that defendant refused to answer the first eleven questions, each time saying that he would like to see his lawyer before replying or that he was told to keep silent or words to that effect. The defence alleged that after the utterance of the 12th question Chow extraneously spoke at length, without his words being recorded and either debased lawyers or threatened defendant or referred to some local corruption cases, all with the intention of inducing defendant to answer incriminating questions. It was urged on defendant's behalf that it would be unnatural for him to want to confess following his previous denial of a series of questions, unless some new development, such as the alleged inducement had occurred, which sapped his will-power and led him to change his mind. Having heard the evidence I believed that the allegations of inducement by means of promise or threat by Chow on defendant had not taken place. In this connection I was of the view that, as the psychological mechanisms which prompted people to confess were extremely complex, it is not surprising that the defendant decided to break away from his lawyer's advice and spell out the truth in his answer to question 12 onwards. A case in point is R. v. Lamsatef⁽¹⁾. In the circumstances I came to the conclusion that the records of the 3rd interview contained defendant's voluntary statement and admitted them in evidence (Exhibit P3)."

51. It is true, in the case of Lamsatef⁽¹⁾ the Court of Appeal declined to interfere with the judge's discretion to admit oral statements of a suspect made in the course of prolonged questioning and after the said suspect indicated that he would not like to answer questions until he had seen a lawyer though such lawyer was denied access to the suspect before the statements were made. However, Lawton, L.J., delivering the judgment of the Court, said at p. 815 as follows:

Later, he said:

52. The circumstances of the present case is different. First of all, Mr. Chow, admitted in evidence that in the appellant's bedroom when he put the latter under arrest, he told the appellant nothing more than that. He arrested the appellant for an offence against the Prevention of Bribery Ordinance, that he gave a bribe to a public officer. He never named the public officer, he gave no further particulars concerning that arrest.

53. After he took the appellant back to the ICAC office, he plunged into the interview without giving further information.

54. Under cross-examination, Mr. Chow had this to say:

55. At page 40 of the transcript, again:

56. Having regard to the aforesaid evidence and the fact that up to then Mr. Chow never gave particulars of his charge or suspicion to the appellant, one is tempted to ask this rhetorical question - Did Chow have an incentive to persist in his questioning in order to obtain incriminating answers from the appellant?

57. It will be observed in Ex. P.3 the appellant, at that interview, said:

"I would like to see my lawyer first before I answer any questions."

or words to that effect.

58. By that time the appellant had gone through two interviews and had obtained his legal advice. Then came the twelveth questions. Chow said:

"I understand that your lawyer have told you not to answer any questions but what we hope to do now is to find out the truth of the matter. If you refuse to answer the questions, you cannot help us in this respect."

59. One is tempted to ask yet another rhetorical question - Up till then was there any indication on the part of the appellant that he was willing to help him with his investigations?

60. It was after this question, that the appellant was recorded to have said as follows:

"I feel that we are in fact wasting both of our time. If you wish to know the truth, I tell you."

61. In the case of HUI Lam-wing v. The Queen⁽²⁾ my brother Addison, J. said:

"There is only one thing that I would like to say and it concerns the statement taken by the officer from the appellant. That statement has been rejected by all members of this court. Persons under arrest for criminal charges have a constitutional right not to be taxed by police officers without first being cautioned. This particular statement is a classical example of a caution being administered and then immediately on its heels being followed by a series of questions which throws that constitutional right out of the window. It would indeed do no harm if police officers would on occasions remind themselves that a person in their custody is not obliged to answer anything unless he wishes to do so and that that phrase is not a mere introduction to give the officer the right thereafter to ask numerous questions."

62. Such a remark is very apt and applicable to the present case if we substitute the term "ICAC officers" for "police officers". In any event, the appellant alleged that his sudden change of attitude was due to the pressure, inducement and threat on the part of Chow that sapped his will. The rest of his answers and those in Exh. 4 and 5, were all involuntary.

63. Indeed, no such inducement, threat or pressure were ever recorded by Sham, the recording officer of that interview. That leads to yet a third rhetorical question and that is - Even if inducements, threats and pressure were administered, would they be recorded by Sham?

64. Under cross-examination, both Chow and Sham had been caught approbating and reprobating when they gave evidence in connection with preparing their statement for the purpose of the trial. This point was never dealt with by the trial judge. I have the benefit of reading the draft judgment of my brother Bewley who has given this matter careful consideration and analysis. I entirely agree with him.

65. The judge refers to the appellant's sudden change of attitude as being due to a complex psychological mechanism. In this case it is not necessary to decide whether the prolonged questioning, together with the pressure, the inducements and the threats sapped the appellant's will.

66. What we have to consider in this case is that once allegations of threat, inducement and pressure were raised, whether the trial judge had properly considered the totality of the evidence and properly evaluated the credibility of the witnesses.

67. The case of LO Sun-wa v. The Queen⁽³⁾ was decided on the basis that after consideration there was no evidence of threat or inducement. However, at p. 257, the learned Chief Justice said:

68. It is well settled that no statement is admissible unless the prosecution proves beyond reasonable doubt that such statement was voluntary.

69. This court will not interfere with the judge's findings of fact unless he fails to consider all the evidence or applies a wrong principle in his assessment.

70. From his reasons for verdict, it appears to me that the learned trial judge failed to take all the material evidence into consideration.

71. First of all, he failed to consider the conflict in evidence between Chow and Sham concerning the administration of the caution at the beginning of the second interview. This is particularly relevant in considering the credibility of their evidence relating to the subsequent interviews. The judge spelt out that he had doubts from the witnesses' testimony. He should also have considered that either one of them could have told the truth in this particular matter. If so, which one of them told the truth or whether they were completely frank. However, instead of analysing any further he accepted all that was recorded by Sham and all the evidence of Chow as gospel truth without regard to the appellant's evidence.

72. Secondly, he brushed aside the appellant's evidence as to his requests and repeated requests to see his legal advisor by invoking in aid a reason of his own which was not put to the appellant. He never considered the real necessity of the appellant to contact his lawyer before 10:00 a.m. on the 12th of March 1980. The appellant's evidence that he had to contact his lawyer because he had an appointment with him to go to the Building Tribunal was probably forgotten.

73. Thirdly, he failed to evaluate the completeness or otherwise of Sham's record when he, Sham, failed to record the appellant's request to see his wife. That part of the appellant's evidence was admitted by Chow that the appellant did make the request in the course of the interviews.

74. Fourthly, as was previously mentioned, the judge said nothing about the conflict in evidence between Chow and Sham regarding the preparation of their respective statements which they prepared months after March 1980.

75. Fifthly, the judge completely ignored Mr. Arculli's evidence, a defence witness for the voir dire. Although Mr. Arculli could not remember what exactly was said by Chow and Sham on the 14th March, 1980, yet his impression was that Mr. Chow told the appellant that he wanted the appellant to say a few words to complete the statement which he made the previous day. He further said that had he the impression, which he did not, that Chow wanted the appellant to make a full statement or that the appellant agreed to tell everything, or to answer further questions, he would have taken a certain course of action.

76. It is not necessary to relate to the courses of action he had in mind in detail. He named several of them. They include warning the appellant to be careful, asking the appellant to make a statement to him first, or to do a bit of bargaining on behalf of the appellant with the ICAC officers, or to warn him not to answer questions.

77. On that day, he did nothing of the sort. He was contented to leave his client, the appellant, to the hands of the ICAC officers on his client's return in the afternoon in his absence.

78. Mr. Arculli's evidence on this impression was consistent throughout his evidence in chief, as well as under cross-examination. He is a responsible solicitor who has practised for some years as a member of the Bar before he chose the junior profession. All the learned trial judge said of Mr. Arculli's evidence was: "in testifying on this aspect for the defence, Mr. Arculli could not remember much of what had then occurred."

79. Had the learned trial judge given Mr. Arculli's evidence the proper consideration it deserves, he might have found that the appellant's evidence concerning what transpired at 12:20 p.m. on the 14th of March between him and Mr. Chow, and heard by Mr. Arculli might be true. He might have some doubt as to Mr. Chow's evidence.

80. Did Chow in fact asked the appellant only to say a few words to complete the statements he made the previous day? If that was the only thing the appellant was asked to do, then it would justify Mr. Arculli's conduct in leaving the appellant to the hands of the ICAC officers.

81. The other question is that - Did Chow want the appellant to make another statement or to answer a series of prolonged questioning? If that was the case, then it would not be justifiable for Mr. Arculli to leave his client alone. Such would not be the conduct of a responsible solicitor. I have no doubt that Mr. Arculli is a responsible solicitor. If a proper consideration was given to Mr. Arculli's evidence, it may lend credence to the appellant's evidence. The learned trial judge might then ask himself what took place when Chow had to spend more than 3 hours that afternoon - and possibly more than 6 hours if the appellant's and other defence witnesses' evidences were accepted. Was it simply to say a few words?

82. Again, I repeat, we are not concerned whether Chow did prolong his questioning for the fifth interview so as to sap the appellant's will or put words in the appellant's mouth. We are only concerned whether the aforesaid consideration had entered the judge's mind in view of his remark that:

"Mr. Arculli is testifying on this aspect for the defence could not remember much of what had then occurred."

83. There was an additional matter in this connection. The learned trial judge dealt with the duration of the interview in the afternoon of the 14th of March, 1980. The appellant's evidence was that he was interviewed and questions were put to him. There was prolonged questioning, words being put to his mouth for agreement and the interview lasted from 3:10 p.m. up to past 9:00 p.m. that day during which many questions were put and words were put or suggested as his answers in the form of a narrative statement. Chow denied that. Chow said that the appellant simply made a statement which was completed by 6:47 p.m. Then there was a few exchange of words which could not take more than a few minutes. He saw the appellant off into the lift on the 9th floor of the building to descend to the ground floor to go home.

84. This is in direct conflict with the appellant's evidence. On this point, the learned trial judge said as follows:

"There was a dispute as to the time that that statement was completed. In this connection, I accept the prosecution's case and believe that the time concerned was as shown on the records, that is 6:47 p.m., and it was due to some casual conversation or delay on minor matters that the defendant's departure was not entered in the register, Exh. 95, by the counter clerk before he or she went off duty at 7:00 p.m. At any rate, I did not regard this long interview as oppressive, neither had I discerned anything in the nature of unfairness which might prompt me to exercise my discretion to exclude that statement."

85. No consideration was given by the judge as to what few words and minor matters would take more than 12 minutes to delay the appellant's departure until after 7:00 p.m. even if Chow's evidence were accepted.

86. What caused the appellant to leave shortly after 7.00 p.m. and wait until 9:30 p.m. before he called his relative to bring him home? Yet these are all matters pertaining the credence of the witnesses' evidence. In this connection, it is apparent that on the 14th of March, the appellant has alleged to have spent more than 3 hours to make a narrative statement of 6 pages written in Chinese character. If the appellant's evidence was accepted, it took him more than 6 hours. Does this not lend colour to the allegation that there had been another prolonged session of questioning, backward and forward, in order to make a statement in a narrative form?

87. Perhaps, I should mention that on this issue the appellant referred to a conversation with another ICAC officer, Mr. Robey, at about 9:30 at the ICAC office. Robey was never called to contradict the appellant on this point. All these matters are vital to the credibility of witnesses relating to the issue, particularly relating to the circumstances in which Exh. P5 was obtained. They were never considered by the learned trial judge.

88. There is more to this. In referring to the defence case, at page 328 to 331, the learned trial judge incorporated not only the issue that had been raised by the defence, he included also the contents of all the statements in Exh. 3, 4 & 5 as part of the defence case. Yet such contents and the admissibility of such exhibits were strongly contested by the defence. That part of the evidence was never part and parcel of the defence case.

89. Another point is that, in his Reasons for Verdict, at page 333, the judge said:

"The activities of defendant, as described earlier, led me to hold the view that he had an ulterior motive when he befriended Kennard, bearing in mind that he was at the bottom, and Kennard at the top range of the professional ladder of the B.O.O. (see preceding paragraph 3) and that no one would be in a better position to give advice or inside information to a practising architect than the person holding Kennard's said post. Defendant had other good friends in the B.O.O. and mentioned them by names in his said statement. Here, I am drawn to the strong inference that it is his friendship with Kennard and those officers that enabled him to know in advance PWD's approval of his plans to erect the said 5 high-rise blocks at Pokfulam Road and Hok Sze sites. This so-called leakage is borne out by the fact that the approval was granted on 15/12/78 and yet defendant was able to sell those two sites a week earlier, on 7/12/78, to New World Nominee Ltd. for a huge profit. Surely this purchaser would not spend a fortune on the transaction involved without full assurance from reliable quarters that that approval was forthcoming."

90. It was never part of the prosecution case that the appellant had any ulterior motive in his friendship with Kennard, nor was there an iota of evidence that there had been any leakage of inside information. As to the fact that the New World Nominee Ltd. purchasing the property one week in advance before approval was given in principle for the construction of the buildings on the sites, common sense dictates in a transaction of such nature a purchaser would never accept the words of the vendor's assurance. Had there been any leakage at all, it is quite apparent that the purchaser in that transaction would rather obtain information direct from the Building Ordinance Office rather than accepting the words of the vendor in a purchase of that magnitude.

91. All these show that the judge was prepared to interpret everything that was sinister in the friendship between the appellant and Kennard even though the prosecution never suggested anything improper about that association, or anything improper in Kennard giving the advice. The judge had prejudiced himself right from the start and could not have assessed fairly the credibility of the defence witnesses.

92. Learned counsel for the Crown contends that when the aforesaid remark was made, the learned trial judge already adjudicated upon the issue of the voir dire. As such, the consideration could have no bearing to his decision as to the admissibility of the statements.

93. He further submitted that having regard to the contents of Exhibits 3, 4 & 5, there was abundant evidence to convict the appellant and that despite any such irregularity as appearing in page 333 of the transcript, which irregularity he readily conceded, this court should apply the proviso.

94. This argument is ingenuous and fair. Unfortunately, evidence forming material for the trial judge's aforesaid remark had already been put before him when he embarked on the voir dire hearing. He referred to "the activities of the defendant as described earlier" which had led him to that view.

95. Being wise after the event, it might have been better if the judge had given his reasons for admitting the statements at the time he gave his ruling rather than incorporating them in his Reasons for Verdict, especially when he was not sitting with a jury. Had he done that, I might have considered that this prejudice had not influenced him in his judgment as to the credibility of witnesses when he was considering the issue in the voir dire.

96. His Reasons for Verdict, as they stand, do lend colour to the submission that he had been influenced by extraneous matters right from the beginning and that was why he was prepared, without any detailed analysis of the evidence, to accord to the prosecution witnesses' evidence unqualified acceptance in the course of the voir dire.

97. In view of the aforesaid, I am of the opinion that had the trial judge considered the evidence more carefully, he should have had a reasonable doubt in his mind as to whether Exhibits 3, 4 & 5 were voluntary statements. The prosecution concedes that their case rested entirely on the statements in those Exhibits. That being the case, I am of the opinion that the trial has been unsatisfactory and the verdict unsafe and that there is no way this court can apply the proviso.

98. For the aforesaid reasons the conviction of the appellant must be quashed and the sentence set aside. Having regard to this decision, the question arising from the case stated is merely academic. However, it's necessary for the purposes of the record to state my opinion as to the appeal by the Attorney General.

99. In this regard, I must confess my surprise at the judge's finding in the case stated. In his Reasons for Verdict when he convicted the appellant, he found that the appellant was only guilty of an offence under Section 8(1) of the Prevention of Bribery Ordinance in that the appellant simply offered Kennard an advantage. In his case stated however he said in sub-paragraph 4 of paragraph 4 as follows:

"That on or about the 20th day of December 1979 without lawful authority or reasonable excuse the defendant offered an advantage, namely an all expenses paid vacation to the United States of America to the said Kennard as a reward for or otherwise on account of the said advice referred to in sub-paragraph 2 above given by Kennard."

100. That is his finding of fact. Section 4(1) of the Prevention of Bribery Ordinance provides as follows:

"Any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of that public servant shall be guilty of an offence."

101. In his findings of fact, the trial judge stated that he found that Kennard was a public servant, he also found that Kennard gave the appellant advice in Kennard's capacity as a public servant. Following that, he found that the advantage was given by the appellant to Kennard as "a reward for or otherwise on account of" the said advice. He further found that at the time of the offer that was being made, the appellant had a number of dealings with the Public Works Department.

102. Having regard to his findings of fact, the full offence under Section 4 of the Prevention of Bribery Ordinance, rather than Section 8, had been completed. He should have convicted him of an offence under Section 4(1) of that Ordinance.

103. The questions put in paragraph 7 of the case stated are as follows:

"The questions of law arising on the above statement for the opinion of this court are:

104. The two elements listed in paragraph 7(1)(a) and 7(1)(b) of the case stated are extraneous to the provisions of Section 4(1) of the Ordinance.

105. The reason for my aforesaid answer is this: that in sub-section (1) of section 4 of the said Ordinance, the offence is complete once that person offers an advantage without lawful authority or excuse to a public servant as an inducement to or alternatively as a reward for or otherwise on account of that public servant's performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant.

106. In view of the aforesaid, my answer to the second question in paragraph 7 of the case stated is that having regard to the finding as aforesaid in the case stated, the learned trial judge should have convicted the appellant with an offence under section 4(1) of the Ordinance. However, as I said, in view of the unsatisfactory proceedings at the trial of the appellant, the conviction has to be quashed and the sentence set aside. My answer to the questions framed in the case stated is purely academic and for the purpose of the record.

Representation:

Mr. W.A. Macpherson, Q.C., P. Yu (Woo, Kwan, Lee & Co.) for Appellant

Mr. Duncan, C.C. for Crown/Respondent

(1) 1977 1 W.L.R. 812

(2) Criminal Appeal No. 1212/79

(3) 1980 H.K.L.R. 253

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 190 OF 1981

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Coram: Li, Silke JJ.A. and Bewley J.

Date of Judgment: 22nd October, 1981.

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JUDGMENT

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Silke J.A. :

107. We allowed this appeal and stated that we would give our reason later. Having had the opportunity of reading in draft the judgment of my Lord President I may say, with respect, that I am entirely in agreement with its conclusions.

108. I have only this to add in deference to Mr. Duncan's able argument as to viewing the trial, so to speak, in two halves.

109. The trial judge in his speculation, quite unjustified by the evidence and conceded very properly by the Crown to be so, in effect took away the character of the Appellant. As Mr. MacPherson has emphasized credibility was all in this case. On that the trial judge took a wrong course. It is impossible to say at what stage he took this course in his own mind.

110. In Winter⁽¹⁾ Watkins L.J. said at p.7:

111. In addition to this I have in mind the Judge's exclusion of the contents of a statement made by way of question and answer in the second interview on the 13th March, an exclusion not asked for by the defence. His reason for so doing was the difference in evidence between one of the investigators, who said no caution was administered, and the other as to its having been administered but not recorded: the submission on that disparity was directed to the overall question of the credibility of those investigators in respect of the disputed No. 3, 4 and 5 statements.

112. Further there was a lack of analysis of the note book cum statement question which related directly to the evidence given at the trial of the main investigator, he having learnt his statement by heart prior to coming into the box, the issue being how that statement was made out and from what. This, at the very least, needed consideration not only to be given but to be seen to be given to it. And again the somewhat cursory dismissal of the unusual, to use a neutral term, change from the Appellant's expressed desire not to answer question, which change came about in the answer to question twelve of the third interview - the judge finding this break away "not surprising" as "the psychological mechanisms which prompted people to confess were extremely complex" - is matter for comment.

113. In this connection I think it useful to remind interrogators of the words of the Chief Justice in Lo Sun Wah and Others v. The Queen⁽²⁾ where he said at p.17:

"However it is not for us to criticize the practice of long interrogations of suspects who have been taken into custody, (but) law enforcement agencies should be warned that admissions obtained as a result of long interrogations are bound to be viewed with suspicion by the Court."

114. Finally the Judge misconstrued section 4 of the Prevention of Bribery Ordinance, which resulted in the Crown's appeal by way of case stated. In all the circumstances I would, speaking for myself, think the conviction generally to have been unsafe and unsatisfactory no matter in what stage the trial judge first had in mind his erroneous views of the Appellant and notwithstanding the possibility of a miscarriage of justice in the Winter sense on the issue of voluntariness itself.

Representation:

W.A. MacPherson Esq., Q.C. and Patrick Yu Esq. instructed by Woo, Kwan, Lee & Lo for the Appellant.

P. Duncan Esq. for the Crown.

(1) R. v. Winter: Court of Appeal: Criminal Division: Transcript No. 330/A/79

(2) C.A. 538/1979

Coram: Hon. Li, Silke, JJ.A. & Bewley J.

Date of Judgment: 19th October, 1981.

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JUDGMENT

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Bewley, J.:

115. This is an appeal against conviction and sentence. The Crown also appeals, on a point of law, by way of case stated.

116. The appellant was charged with offering an advantage, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. The particulars of offence alleged that he, "on or about the 20th day of December, 1979, in this Colony, without lawful authority or reasonable excuse, offered an advantage, namely an all expenses paid vacation to the United States of America, to Edward Trevor KENNARD a public servant, namely a Principal Government Building Surveyor of the Public Works Department, as an inducement to or reward for or otherwise on account of the said Edward Trevor KENNARD having performed an act in his capacity as a public servant, namely the giving of advice in relation to the development of a building site situated at 101 Pokfulam Road and 1-12A Hok Sze Terrace, Hong Kong." He was convicted of the lesser offence in Section 8(1)(a) and sentenced to 18 months imprisonment.

117. The only evidence against the appellant is contained in the records of 3 interviews with ICAC officers, which were held on 13th and 14th March, 1980. The admissions made therein by the appellant, if true, amount to a complete confession to the charge.

118. The appellant is an architect and was formerly employed in the Buildings Ordinance Office (B.O.O.), where he became friendly with Mr. Kennard, then Principal Government Building Surveyor. In 1974, the appellant left government and went into private practice.

119. In 1978, the appellant and his wife, LEE Jok-ling, decided to purchase the site at 101 Pokfulam Road, which was free of any significant building restrictions. The appellant was also interested in purchasing the Hok Sze Terrace property, which, because there was no access from Hok Sze Terrace to Pokfulam Road, was limited to a maximum height of four storeys. He conceived the idea that, if both properties were purchased, access to the main road could be achieved and the height restriction on the Hok Sze Terrace property would then be lifted.

120. The case for the Crown was that the appellant spoke to Kennard and asked whether it was possible that the B.O.O. would approve such a plan. He was told that it was indeed possible. Having had his confidence boosted by this reply, the appellant approached a Mr. Yip Hon, whom he thought might be persuaded to help provide the finance needed to proceed with the development of 101, Pokfulam Road and 1-12A, Hok Sze Terrace. When discussing the matter with Yip Hon, he mentioned that he had sought advice from Kennard, who thought there was a good chance that the plan would be approved.

121. Yip Hon agreed to participate in the scheme and a company, Steed Investment Ltd., was formed for that purpose. The shareholders were the appellant's wife and Wing Ming Enterprises Ltd., of which Yip Hon was a shareholder. During the next 12 months or so, Steed purchased some of the properties in Hok Sze Terrace with funds provided by Yip Hon.

122. Prior to submitting plans to the B.O.O. for approval, the appellant again approached Kennard, this time to ask whether approval was likely to be given to the construction of a carpark within the development. Kennard advised against this idea and, as a result, it was omitted from the plan, which was submitted on 15th November.

123. Approval in principle was given on 15th December, as a result of which the value of the property rocketed. In fact, Steed sold the property to New World Nominee Ltd. on 8th December - one week before the decision was announced - for $70,000,000.00. This deal netted the appellant and his wife a profit of some $20,000,000.00 and Yip Hon a similar amount. It was the Crown case that the appellant had every reason to be grateful for the advice he received from Kennard. Ironically, the detailed plans later submitted to PWD were not approved and, to this day, the site remains undeveloped.

124. The Crown alleged that, one year later and after the plans had been rejected, the appellant offered Kennard an all expenses paid holiday in appreciation of his advice. The appellant knew that Kennard and his wife were keen to take a trip to the USA. He was aware that Yip Hon was paying for a number of his friends to holiday in America at about the same time. Accordingly, the appellant suggested to Yip Hon that he should also pay for Kennard and his wife, to which Yip Hon agreed.

125. It was alleged that the appellant made the offer to Kennard in the Old Vic Restaurant on 15th December, 1979 and that it was accepted. The appellant telephoned a travel agent to make the initial booking. The travel agency issued tickets for the Hong Kong - Honolulu part of the trip, but these were paid for by Kennard. In Honolulu, Kennard was supplied with tickets to Las Vegas by a friend of Yip Hon's son, for which Kennard also paid. It was alleged, however, that, later in Las Vegas, Yip Hon reimbursed Kennard the cost of the whole trip.

126. At the trial it was submitted, on behalf of the appellant, that threats and inducements had rendered involuntary his confession to the matters outlined above. In the course of the voir dire proceedings that followed, evidence was given for the prosecution by the ICAC officer responsible for arresting and interviewing the appellant, Mr. Carmel Chow, and by 2 junior officers, whose task it was to record the interviews in Chinese. The appellant was the principal defence witness. The credibility of these witnesses was absolutely vital as to what transpired at the interviews, since the conviction depended on the admission in evidence of these statements.

127. The appellant and his wife were arrested at home at 6.45 AM on 12th March, 1980. The appellant was taken thence to his office, which was searched, and finally to the ICAC headquarters in Murray Road shortly before 11.00 AM.

128. It is common ground that the appellant was due at the B.O.O. at 9.30 AM that morning, where he was to be the sole witness in an appeal against the rejection of the Hok Sze plans. He said he was extremely anxious to get in touch with his solicitor to tell him that he had been arrested and that he would not be at the appeal. He said he made this request twice in his flat and twice in his office, but it was not until lunchtime that he was able to telephone his solicitor's office and report where he was. According to Mr. Chow, no such request was made until they reached ICAC headquarters.

129. Pausing here, it is hard to believe that, in these circumstances, the appellant said nothing about ringing his solicitor until he was already 2 hours late for his appointment. The learned judge thought it likely that, if he were really concerned, he would have instructed his servants or employees to contact his solicitor, but, even if this is correct, he would surely have voiced his concern to the ICAC officers.

130. The first interview between the appellant and Mr. Chow began at 11.55 AM that day and continued until lunchtime. After lunch, the appellant saw a solicitor, Mr. Lo, together with Mr. Kotewall of counsel, who advised him not to answer any more questions.

131. The interview resumed at 3.55 PM and Mr. Chow was apprised of the lawyers' advice. He apparently accepted the situation and merely invited the appellant to check and sign the record of the morning interview, which he did. No admissions are contained in this document and it was not objected to at the trial.

132. However, at 6.10 PM that day, Mr. Chow again sought to interview the appellant, who answered some of his questions, but refused to sign the record. Nothing damaging to the appellant was said at this interview and, again, no objection to it was raised by the defence. Curiously, the learned judge refused to admit this record in evidence, on the ground that the appellant had not been cautioned. In this he was wrong. The evidence was relevant and, in the absence of objection, it should have been admitted.

133. The incident does, however, throw some doubt on the evidence of the ICAC officers. The recorder of this and the 3 subsequent interviews, Mr. SHAM Ka-fai, told the Court that the appellant had been cautioned, but he had forgotten to record the fact. Mr. Chow is quite certain that he did not caution the appellant, as he had done so earlier that afternoon.

134. In his reasons for rejecting these answers, the learned judge said he had doubts about the witnesses' testimony. It is not made clear whether his doubts extended to their general credibility, or was limited to this, perhaps minor, discrepancy.

135. Next morning, Mr. Chow saw the appellant again, reminded him of the caution and began to question him. The appellant said he did not want to answer questions until he had seen his lawyer. Nevertheless, Mr. Chow persisted and asked 11 questions, to each of which he got an answer similar to the first. In the record there then follows a question that is the subject of much dispute. As recorded, Mr. Chow said they hoped to find out the truth and, if the appellant refused to answer questions, he could not help them. Mr. Chow admitted in the witness box that he knew there was no evidence against the appellant and that he had hoped to obtain it in the course of these interviews. His justification for repeated questioning, in the face of the appellant's negative replies, was that he felt it was his duty to put the ICAC case.

136. The appellant, on the other hand, alleged that Mr. Chow also said a lot of other things, namely that lawyers were no good; that while those who had co-operated in the Godber and H.K. Telephone Co. cases had got immunity from prosecution, the one person that had got a lawyer to advise him had gone to prison; that the appellant was too young to go to prison; that he would be ruined; that he was really after the corrupt Europeans in PWD and not the appellant, who would come to no harm; that unless he co-operated, he would go to prison and then be deported. If these things were said, of course, it would be sufficient to vitiate any admission that might follow.

137. According to the appellant, he asked for time to think, but Mr. Chow said they had wasted enough time already. Finally, the appellant concerned about his wife, whom he had not been allowed to see, terrified at the prospect of prison, tired and confused, agreed to put himself in Mr. Chow's hands and to co-operate.

138. The appellant then answered a number of questions and, according to the record, confessed that he had made the offer of a free holiday to Mr. Kennard and his wife as a reward for advice given by the latter in respect of the Hok Sze project, but had done so on behalf of his partner, Mr. Yip Hon, who had reimbursed Mr. Kennard in Las Vegas in respect of all his expenses.

139. The appellant does not, however, accept that his answers were in the form recorded by Mr. Sham. To a large extent, he alleges, the words were put into his mouth by Mr. Chow, who also told him that he knew everything anyway. The appellant signed the record of this interview and it was then lunchtime.

140. At 4.25 PM the same day, there was a further interview, in which Mr. Chow questioned the appellant about the American trip. The appellant admitted, inter alia, that he had made the offer at the Old Vic Restaurant on 20th December, 1979.

141. That evening the appellant was released on bail. His wife was also released and they went home with their solicitor, Mr. Arculli.

142. The appellant had to return to the ICAC next day, at noon, in order to renew his bail. After he had done so, Mr. Chow asked him to make a further statement. There is dispute as to what was said at the time and, unfortunately, Mr. Arculli, who was present, cannot recall the details.

143. According to Mr. Chow, he asked the appellant if he was willing to make a written statement concerning the previous interviews, and the appellant replied that he was and that he wished to tell the whole truth. The appellant's evidence is that Mr. Chow merely asked him to add a few words to the statements that had been made the day before and he consented.

144. In fact, as it was lunchtime, it was agreed that the appellant would return to the ICAC after lunch. When he did so, he came alone. Mr. Arculli was busy that afternoon but, although he cannot remember what was said, he thinks it unlikely that he would have permitted the appellant, who was on bail, to have returned to the ICAC alone, if it was his intention to make a written statement, or to 'tell the whole truth'.

145. The final interview began at 3.10 PM that afternoon. After being cautioned, the appellant, according to Mr. Chow, asked where he should begin. Mr. Chow suggested he start at the beginning and, at the appellant's request, gave him the records of the first 4 interviews to peruse. There then follows a lengthy statement, written by the appellant, which covers the entirety of his relationship with Kennard, from the time he joined the B.O.O. until the trip to Las Vegas.

146. The appellant's version is rather different. He said that Mr. Chow again asked for his co-operation and repeated much of what he had said the day before. He repeated that nothing would happen to him and that they would not need him any more. Again Mr. Chow supplied much of the information and asked him to agree. He then wrote it down.

147. The appellant signed the statement and initialled several alterations. There is, however, also a dispute as to the time at which the statement concluded and the appellant left the building. According to the document itself, the appellant signed at 6.47 PM and the ICAC officer at 6.48 PM. Mr. Chow said they chatted for a few minutes and he escorted the appellant to the lift at 6.50 PM.

148. The appellant said the time, in fact, was 9.30 PM and that Mr. Chow deliberately inserted a false time, because it was so late. Mr. Chow asked him to join him for supper at a nearby restaurant and the appellant accepted, but, as they were on their way out, they met Mr. Robey, another ICAC officer. He told the appellant that his wife had telephoned and was coming to collect him in 10 minutes. The appellant excused himself and left the building alone. He was picked up by his wife and some friends a few minutes later.

149. This is a serious conflict of fact. Its significance lies in the fact that the appellant could not possibly have spent 7 hours writing out his statement in the manner sworn to by Mr. Chow. If, on the other hand, he was being questioned and prompted all the time, it becomes a real possibility.

150. Comings and goings during the daytime at the ICAC head-quarters are carefully monitored. A register is kept at the entrance desk, which is manned between 8.0 AM - 7.0 PM. On admission, a visitor is given a card and the time noted. When he leaves, he surrenders the card and the time is entered in the register. The document in question shows that the appellant received his card at 1410 hours on 14th March and that it was surrendered at 0820 hours on 15th March.

151. This latter entry is misleading and must mean only that the appellant left after the girl had gone off duty the previous evening and that this is the time when she received it from one of the officers next morning. There is no suggestion that the appellant spent the night in Murray Road.

152. It is puzzling, therefore, why, if the statement finished before 6.50 PM, the appellant's departure was not noted in the register before the girl left at 7.0 PM. One explanation is that she went home early that evening. Another is supplied by Mr. Chow, who said he had a casual conversation with the appellant. This is also possible, though one would not expect the appellant to have wished to prolong his stay in that building. Moreover, 10 minutes is a long time in the circumstances.

153. The driver of the car that collected the appellant and his sister-in-law, who was a passenger, also gave evidence. They both said they left the Ming house at about 9.30 PM to drive to Murray Road and, on their arrival, the appellant was waiting for them. Mrs. Ming was not called to prove the telephone call, but there was, after all, no burden of proof on the defence. Likewise, it was not for the defence to call Mr. Robey.

154. In the course of this appeal, much time has been spent in examination of the notebooks and witness statements of Mr. Chow and Mr. Sham. These events took place 10 months before the trial and one would not expect the witnesses to give detailed evidence without referring either to contemporaneous notes, or to statements compiled from those notes. This is, in fact, what they did. Mr. Chow had learnt almost by heart his witness statement, which, he said in chief, he had drafted in September, 1980, from notes made by him shortly after the interviews. Mr. Sham refreshed his memory from his note-book, which was written in English. He had made a witness statement, but he said he had not referred to it before coming to court.

155. In the course of his cross-examination of these 2 witnesses, defence counsel made a great deal of capital out of the discrepancies and other oddities in the notebooks and witness statements. It is a little complicated, but it is necessary to refer to these in some detail.

156. I have already mentioned the discrepancy as to whether or not the appellant was cautioned before the 2nd interview. More significant, in my view, is the retraction by Mr. Chow, during cross-examination, of his earlier evidence that, in September, he had compiled his witness statement, on which his whole evidence was based, from notes made by him soon after the interviews.

157. He was shown both notebooks and he had to admit that his witness statement was, in parts, identical to entries in Mr. Sham's notebook, but not his own. His first explanation was that he might have consulted Sham's notebook, or witness statement, before writing his own witness statement. A little later, however, he said he thought he had asked a typist to copy the statement from Sham's statement. In fact, Mr. Chow's evidence became thoroughly confused at this point. He went on to say that he and Sham had sat down together shortly after the conversation at lunchtime on 14th March and had discussed what had just taken place. He, Chow, had made rough notes on a piece of paper, in Sham's presence, and it was from this that he had made up his notebook immediately afterwards. This explanation is inconsistent with Sham's emphatic evidence that he was not present when Chow made up his notes.

158. There are also unsatisfactory features in Mr. Sham's evidence. There is no entry in his notebook between March and November, which is odd. He said his witness statement was made in September, but, like Mr. Chow's witness statement, it is undated, though there is a space in which the date and time are supposed to be recorded.

159. More serious is the phraseology of an entry in his note-book dated 14th March. He had originally written - in English - the words 'Mr. Chow and I saw Mr. Ming at 122 hours on the same in Room 942'. The figures '122' were deleted and '1425' substituted therefor. The words 'on the same' were also deleted, but nothing was written in their place. However, in the margin alongside the beginning of the sentence there appears the date '14/3/80'.

160. The inference, Mr. McPherson submits, is that Mr. Sham did not write these words on 14th March, as he would not then have set out to write 'on the same day'. Is it a coincidence that, dealing with the same incident, Sham's witness statement contains the words 'later at 1425 hours on the same day .....'?

161. There must be a doubt as to the time and manner in which the ICAC witnesses' notebooks and statements were made. It does not follow that their evidence as to what was said during the interviews is untrue; nor that the appellant's evidence must be true. What is clear, however, is that there was a crying need for a close analysis of the evidence to which I have referred, before the learned judge was justified in coming to the conclusion that the statements signed by the appellant had been proved to have been made voluntarily.

162. The issue depended wholly on the credibility of the witnesses. Yet the learned judge made no reference whatever to these matters in his judgment, nor in his short ruling at the end of the voir dire. I do not think, therefore, that we are justified in assuming that he had them in the forefront of his mind when he made his ruling. Mr. Duncan, for the Crown, valiantly submitted that he must have done so, on the grounds that the various points were all canvassed by counsel and recorded in longhand by the judge. For myself, I do not think that necessarily follows. Even if Mr. Duncan is right, it required rather more than this before it could be said that the voluntariness of the confession had been proved. The learned judge would have had to explain how he was able to rationalize the contradictions and discrepancies and still be convinced beyond reasonable doubt that Chow and Sham were telling the truth on the main issue and that the appellant was lying. His surmise that complex psychological mechanisms prompted the appellant to change his mind and confess, in the face of his lawyers' advice, is inadequate.

163. This brings me to the second leg of Mr. McPherson's argument. The appellant is a man of impeccable character. It is conceded by the Crown that, until the alleged offer of a reward on 20th December, 1979, neither the appellant nor Kennard had done anything illegal, or morally wrong, in asking for or receiving advice in connection with the Hok Sze development.

164. Unfortunately, the learned judge formed a certain view of the appellant's activities before that date, which was unsupported by any evidence and was entirely speculative. Mr. McPherson submits that there is nothing to show that he had not come to this conclusion during the voir dire and that, if he did so, it was highly prejudicial, as it must have affected the appellant's credibility on the vital issue.

165. It is, therefore, necessary to look at the likelihood and degree of prejudice involved. The learned judge found that the appellant had an ulterior motive in befriending Kennard, and other officers, when he was employed in the B.O.O. This was a totally unjustified conclusion. It is not a very large office and they were professional men. If this was in the judge's mind at the time, it was a black mark against the appellant's character, which the Crown concedes was then unblemished.

166. Then he referred to a leakage of the approval in principle of the Hok Sze development, which enabled the appellant, or rather Steed, to sign a contract to sell the property to New World at enormous profit, one week before the approval was announced. He is probably right that New World would not have signed the contract, unless they had a good idea of what was in the wind. However, the learned judge failed to take 2 factors into account. The contract had an escape clause: in default of approval of the plan, the sale was off. Secondly, there was no evidence that there was any leak via the appellant. In any case, common sense dictates that New World would not have accepted such information from the vendor. They may well have had their own sources of information, but that was nothing to do with the appellant. Again, if it was weighing in the learned judge's mind at the relevant time, this view of the appellant can have done him no good.

167. Counsel for the Crown submits that such matters had not yet been canvassed. He says no evidence concerning Steed and New World was led until the statements had been admitted: the documentary exhibits had not yet been put in. This is true, but the course of events had been fully charted in counsel's opening. Furthermore, the extent of the appellant's interest in the property in question was made clear in the very first interview with Mr. Chow. Thereafter, the whole story was set out in the record of the subsequent interviews. Indeed, the learned judge summarizes the latter shortly before he records the prejudicial remarks about which complaint is made. It cannot, therefore, be said with accuracy that these matters could not have been in his mind at the end of the voir dire. I think there is a real danger that the learned judge did not give sufficient weight to the good character of the appellant in his assessment of the voir dire evidence.

168. In this connection it is pertinent to quote the remarks of Watkins, LJ in R. v. Winter⁽¹⁾:

"But it has to be remembered that experts are fallible. They can be wrong. They may appear to be positive. They may sound convincing. They may have impeccable academic qualifications which permit them to make an expert test of the subject matter of the proceedings. And yet despite that a jury may in the light of the good character of a defendant accept the evidence of that person despite the unusualness of it. Thus if some-thing puts in doubt the nature of the person before the jury, does damage to his character, there is immediately introduced an imbalance of consideration, or a likelihood of it, of on the one hand the expert evidence and on the other the credibility to be given to a person of good character. We cannot say that there was no risk of a miscarriage of justice in this case. To the contrary we feel that there was a risk of a miscarriage of justice such as we cannot ignore."

169. When such a danger exists, together with discrepancies in the evidence of the prosecution witnesses, which go to the very heart of the question at issue, and which are not only unresolved, but not even adverted to by the trial judge, it is clear that this conviction cannot stand. I agree that the appeal should be allowed and the sentence set aside.

170. I would add only that, even had the learned judge been justified in his conclusion as to voluntariness, he might well have excluded the evidence, in the exercise of his discretion, as having been unfairly obtained. The right to silence means just that. What is the purpose in cautioning a person and then bombarding him with question after question, in the face of his clearly expressed unwillingness to answer, unless it be to impress upon him that an answer is expected? This, in my judgment, is unfair. In HUI Lam-wing v. The Queen⁽²⁾ Addison, J. reached the same conclusion.

171. Mr. Chow's riposte, that he felt it was his duty to put his case to the appellant, will not do. He himself admits that he had no evidence and was trying to build a case out of any admissions that the appellant might make. There can be no objection to questioning, if the suspect indicates that he is willing to answer the questions. Otherwise, a long interrogation is bound to be viewed with suspicion by the courts. See LO Sun-wah & others v. R.⁽³⁾.

172. I turn now to the case stated, which may be disposed of briefly. It is a curious document, drafted, so we are informed, partly by Crown Counsel and partly by the trial judge.

173. The questions for our determination are:

174. S.4(1) provides:

"          Any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of that public servant's -

175. This, with respect, was beside the point. The section refers to 'inducement to' and 'reward for' in the alternative. It is not necessary that both ingredients should be present before the offence is committed.

176. As to (b), I do not understand why this has been included. The section makes no mention of explaining the purpose of the offer. It must either be an inducement or a reward. Mens rea is required in the defendant, the offeror, but not, so far as this offence is concerned, in the recipient.

177. The answer to the first question is no. Having regard to the result of the appeal against conviction, nothing is required to be done under (2).

Representation:

(1) Criminal Appeal No. 330/A/79 (unreported)

(2) Criminal Appeal No. 1212/79

(3) Criminal Appeal No. 538 of 1979