The Queen v. Wu Yin Wor

CACC000193/1983

BETWEEN

Coram: Hon. McMullin, V. -P. Silke, & Barker, JJ.A.

Date: 6th May, 1983

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JUDGMENT

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McMullin, V. -P. :

1. The applicant was tried in the District Court upon an indictment containing nine charges. In the event he was tried only upon six of those charges, charges seven to nine having been tried before a different District Judge on a previous occasion. That Judge had ordered that the 7th to 9th charges be severed and tried separately. He subsequently tried those charges himself. They were charges of theft and one charge of forgery and upon those charges the defendant was acquitted.

2. The charges with which we are concerned were all laid under s.3 of the Prevention of Bribery Ordinance. The case for the Crown was that the applicant, who was at the time of those events employed as a station sergeant in the Royal Hong Kong Police Force, stationed for part of the time at least at Homantin Police Station, had upon a number of occasions approached persons, mainly chicken hawkers, with whom he had come in contact in the course of his duties and had solicited from them loans of money.

3. The 2nd charge concerned the alleged loan to him of $1500.00 by a Mr. Luk Tat-hay, proprietor of a steam laundry who had known him for some years.

4. The 3rd charge concerned a Mr. Lam Kam-po, himself a barber whose wife however was a chicken hawker in the Homantin area. On this occasion the loan was alleged to have been $5,000.00 solicited by the defendant ostensibly on behalf of a friend.

5. The 4th charge concerned the alleged loan of $1,000.00 made to the applicant by a lady, Tsui Sin-ching, who was a chicken hawker in the area. The other charge upon which the applicant was convicted, that is the 6th charge, alleged a loan of $1200.00 made to the applicant by a Mr. Chung King-ming, who was at the time an odd-job worker at the Homantin Police Station.

6. We are not at this stage concerned with the details of the evidence led by the Crown in respect of those charges, suffice it to say that the complainants all gave evidence as to the circumstances of these loans and that evidence was accepted by the District Judge. Mr Sanguinetti who appears on behalf of the applicant in this case has founded the application upon a single ground, which itself is founded upon the decision of the Court of Appeal (Criminal Division) in the case of Cooper (1969) 1 Q.B. 267 where the "lurking doubt" was conceived.

7. The allegation before us is that the trial of the applicant was unsafe or unsatisfactory and in support of that contention one factor alone is placed before us. It appears that the papers on the court file, when placed before the District Judge who dealt with these six charges, included a summary of evidence which set out in some detail what the Crown alleged against the applicant. That summary described the alleged circumstances with which the applicant was to be confronted not only in respect of the six charges with which the District Judge was then concerned but also with the three charges which had already been dealt with by the other Judge.

8. What is said about this is, firstly, that we ought to assume that the District Judge had in fact apprised himself of the circumstances contained in the summary relating to the charges with which he was not concerned; and secondly, that if he had done so, we should say that it is possible that his mind was so affected by the substance of that summary that it may have led him to a bias against the applicant of such a character that it may have overborne his judgment in finding the applicant guilty or at least affected his judgment in some substantial way.

9. Mr. Sanguinetti has not produced any authority directly on this point, but he has by analogy urged upon us that such matter may be prejudicial in the same kind of way as would be evidence of previous criminal record of bad character adduced at the trial in contravention of the provisions of s.54(1)(b) of the Criminal Procedure Ordinance. He contends that such evidence as is forbidden by that section is in a similar position to the facts contained in the Summary of Evidence which was not before the District Judge. We do not, of course, know whether the District Judge saw that summary of facts at all. But it may be that he did, and we think that we should deal with the matter on the basis that, possibly, he did.

10. We can however find no good reason to conclude that that matter might have affected his mind in a way which was so prejudicial to the case of the applicant that we would feel obliged to interfere.

11. We are indebted to Mr. Sanguinetti for his researches in disclosing to us a note of a judgment if a South African court, in the case of Rex v. Chondi in which Mr. Justice Krause expressed, in strong language, his belief in the adverse effect upon the mind of a Judge sitting alone of such inadmissible evidence. Aside from the fact that we are not now dealing with any question of inadmissible evidence, we would hesitate to support some of the stronger opinions expressed by Mr. Justice Krause in the course of that judgment. We think that we must assume that a responsible Judge or Magistrate taking a case in which, inadvertently or  otherwise his eyes have come upon matter not directly concerned with the case before him, is capable of divorcing his mind from such matter and concentrating solely upon the evidence which the Crown adduces in supporting the charges with which he is concerned.

12. It was put to Mr. Sanguinetti, in the course of argument, that what he has described as unnecessary and perhaps prejudicial mental gymnastics which the Judge might have to perform under such circumstances are precisely the kind of gymnastics that Judges and juries do have to perform when, in the course of a trial, statements of co-accused are produced in which matter adverse to the interest of a particular prisoner is contained. Such instances as, frequent and it has not been suggested that that task is beyond the powers of the jury. Neither should such a task be beyond the powers of a Judge or magistrate sitting alone.

13. In respect of the point that counsel makes, it is not without significance that in this case the very Judge who severed the charges dealt with charges seven to nine himself and acquitted the defendant upon them. Again it is to be noted that the applicant in the present case was acquitted in the first and fifth charges  which obliged offences identical in nature with those in the charges in which he was convicted and supported by very similar evidence.

14. Notwithstanding a well-intended endeavour by counsel to persuade us that something may have gone seriously wrong in this case, as a result of the possibility that the District Judge may have seen the matter of which he complains, we are satisfied that nothing has been shown to this court which should impel us to say that miscarriage in justice has occurred and the application in respect of conviction must therefore be refused.

15. The applicant received sentences totalling eight months, two months being imposed in respect of each of four charges on which he was convicted. The sentences to run consecutively. We are indebted to Mr. Sanguinetti for an elaborate and careful argument in which he has put before us a number of points in favour of the contention that the sentences thus imposed are manifestly too high.

16. We must however have regard to the circumstances of these offences and in particular to the fact that the applicant, at the time that they were committed, was a station sergeant in charge of a squad which itself was charged with the duty of keeping order amongst hawkers in the area of Homantin. There had been numerous arrests, for no doubt legitimate reasons, made by that squad while under his control in that area both before and around the time that these offences were committed.

17. We have regard also to the fact, noted by the District Judge when considering sentence, that the applicant solicited one of these loans on an occasion when a raid was actually Proceeding. On another occasion he solicited a loan from the husband of the woman whose stall was under survey, reminding him that his wife had not been arrested by him, the applicant. Although it is true as Mr. Sanguinetti says, that these circumstances do not support the idea of positive blackmail, we think the Judge was justified in forming the opinion that the loan was solicited in a way which at the very least emphasized significantly the official position of the defendant in relation to the request which he has made. That is very serious conduct on the part of an experienced police officer holding a very responsible position and after 20 years of service, a factor which has been stressed by Mr. Sanguinetti in relation to the quite legitimate point that the defendant is losing a very great deal as a result of conduct which was criminal and foolish.

18. We have considered the various cases which had been drawn to our attention but they rest very considerably upon their special facts and speaking for myself I would say that the cases of Wilkinson and Carlyle do not afford a very satisfactory headline in any respect in dealing with offences of this kind.

19. If the applicant had been convicted of a single offence under s.3, then we would think that the arguments advanced by counsel would have very considerable force and a sentence of eight months would have been too high. But having regard to the circumstances to which I have referred, and not withstanding counsel's argument and the several cases to which our attention has been drawn, we cannot in the end say that the District Judge, who took very great care in considering sentence, and who recorded his reasons at some length, was in error in chosing his totality. For these reasons therefore we think the application must be refused.

Representation:

A.J.J. Sanguinetti (Y.K. Poon & Co.) for applicant.

R. Pritchard for Crown/Respondent.