The Queen v. Cheung Chun Yuen

CACC000021/1985

Criminal law - evidence - admissibility.

A statutory declaration made under s.14(1)(a) of the Prevention of Bribery Ordinance is not admissible in any proceedings other than for an offence under that Ordinance.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad JJ.A.

Dates of hearing: 10 & 11 September 1985

Date of judgment: 13 September 1985

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JUDGMENT

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Fuad, J.A.:

1. The applicant, Cheung Chun Yuen, appeared before a Judge of the High Court and a jury on an indictment charging him with burglary. The Particulars of Offence were that on 30 August 1982, having entered Flat C8 on the 20th Floor of Elizabeth House as a trespasser, he had stolen therein 300 taels of gold.

2. He pleaded not guilty and after a trial lasting some 9 days, on 7 January 1985 he was convicted on an unanimous verdict and sentenced to 8 years' imprisonment. From that conviction and sentence he now seeks to appeal to this Court.

3. The evidence showed that at the material time the applicant was a Detective Police Constable but "moonlighting" for Goldpoly Company, the owner of the gold that was stolen, as a driver and security guard.

4. The case against the applicant was entirely circumstantial and he did not elect to give evidence or call witnesses in his defence.

5. There was evidence that Goldpoly occupied two rooms of the flat mentioned in the indictment for their business, which included dealing in gold and foreign exchange. According to the evidence led by the prosecution, on 27 August 1982 Mr. Hung Chao Hong, a partner in Goldpoly, instructed two of his employees, Mr. Fu Hau Chung and Mr. Ng Pak Tze, together with the applicant, to deliver a consignment of gold to the Lai Kee Company. The delivery was to take place on 30 August 1982.

6. Mr. Hung then left for Taiwan with a Mr. Lam Wai Hung, who also gave evidence. When gold or currency was expected to be kept in the Goldpoly offices, it was Mr. Hung's practice to lock the safe but to leave the additional combination lock so positioned that the safe could be opened and shut by the key alone. This is what happened when Mr. Hung left Hong Kong on this occasion.

7. On 30 August 1982 Mr. Hung, it seems, telephoned from Taiwan and asked if the gold had arrived. Mr. Ng said it had not. When Mr. Hung rang again later the same morning, Mr. Fu answered the telephone and he was told by Mr. Hung that someone would come to Goldpoly with U.S. currency. Mr. Fu accepted the cash and put it in the safe, opening it with his key. By mistake, Mr. Fu said, he spun the combination lock, so that the safe could not be opened again- for Mr. Hung was the only person who knew the combination.

8. When it was realised that the gold would soon be delivered, Mr. Fu telephoned the applicant and told him to come to the office. By the time the applicant arrived, a courier had brought 300 taels of "999" gold strapped to his legs. They were in 6 packs of 50 taels. Mr. Fu put the gold in a briefcase and set off in a car with the applicant to make the delivery to Lai Kee.

9. When they got there, according to Mr. Fu's s evidence, he was told by someone inside Lai Kee's office that they were not open for business as it was a public holiday, despite the fact that Mr. Fu had been told on the telephone two days earlier by a lady who worked at Lai Kee that they would be open that day. Mr. Fu said that when this happened, he had exclaimed to himself, in a voice loud enough for the applicant to hear, words that were translated into English as "Alas, the iron cabinet has been turned down", meaning that the combination lock had been turned out of the position in which the safe could be opened. He told the Court that he realised, when he made that remark, that he had made a slip of the tongue, What he meant, of course, was that he had been indiscreet.

10. When they returned to Goldpoly at about noon, Mr. Ng was still there. Mr. Fu testified that he had gone into Mr. Hong's office and, closed the door. This was because he did not want anyone to know where he was going to put the gold. Before he closed the door, he said, the applicant had made as if to follow him into Mr. Hung's office, but made no further attempt once the door was shut.

11. Mr. Fu said that he put the gold on the top of a wardrobe in the office and covered it with account books. He then left Mr. Hung's office, pulling the door shut so that it was locked. He also locked the "electric gate" that protected the door. He then went into his own office and put the keys to the safe and to Mr. Hung's office in a drawer of his desk and locked the drawer taking the key with him. After a while, Mr. Fu told the Court, he left to go and play mahjong with an aunt. But before he did so, he took the keys he had left in his desk drawer and put them in his pocket, locking the drawer again.   He locked also the other doors to the premises and joined Mr. Ng and the applicant in the lift lobby.

12. The evidence was that Mr. Hung returned to Hong Kong from Taiwan at about 9:00 p.m. on 30 August. After a short time he drove to Elizabeth House with some friends including Mr. Lam in a car driven by the applicant. They found that the door into his office had been forced open. The safe was locked.  When Mr. Hung opened it, he found some U.S. currency in it, but no gold.

13. After a telephone call to Mr. Fu, he realised the gold had not been delivered to Lai Kee as he had expected, but he did not find any gold on top of the wardrobe where Mr. Fu said he had put it. He then noticed that one of the drawers respectively of the desks in his office and in Mr. Fu's office had also been forced open.

14. Later that evening, Mr. Hung had a discussion with Mr. Fu, Mr. Ng and the applicant about the missing gold. They all denied having taken it. Mr. Hung said he did not report the matter to the police because he had accepted advice from his friends that, since his own employees were likely to have been involved, they should deal with it themselves so that their reputation would not be affected. The matter was not reported to the police but, on 4 May 1983, Mr. Hung made a report to the I.C.A.C. He told the Court, however, that a private detective had been engaged to conduct enquiries.

15. Mr. Lam Sin Hok told the jury that on the night of the 30/31 August he questioned Mr. Fu, Mr. Ng and the applicant. When asked to account for his movements on 30 August, the applicant told him, inter alia, that at about 3:00 p.m. that day he had driven the Goldpoly car from police headquarters to Elizabeth House and had met a friend of Mr. Hung named Mr. Chan Chun Wah, outside Elizabeth House. After speaking to Mr. Chan on the telephone, he questioned the applicant again and asked him whether at the time he had met Mr. Chan he (the applicant) was carrying anything. He had first said "No" and after being further questioned he had said he was holding some newspapers and nothing else. When Mr. Lam asked the applicant (as a result of his conversation with Mr. Chan) again, whether he was carrying anything else, the applicant had again denied it. When told that this was not true for he had in fact been carrying a manila envelope, the applicant, according to the witness, had said "Yee, Yes, Yes" and when asked why, he had replied "It was to put in newspapers". The applicant had then changed his story and said he had had the envelope with him to put books in it which he was intending to buy for his daughter. The applicant then said he had not actually bought any books so he had thrown the envelope away. The witness said the applicant then lost his temper and so the questioning had to stop.

16. Mr. Chan (who seems also to be known by the name Juan Chua) gave evidence that between 2:00 and 3:00 p.m. on 30 August he saw the applicant walking along the pavement outside Elizabeth House between Blocks B and C. He was carrying "a thick paper bag" about 12 inches in length and about 4 or 5 inches thick. He said "Hello" to the applicant and raised his hand in greeting but received no acknowledgment. The applicant ignored him and walked away in the opposite direction. Mr. Chan told the jury that he considered the applicant's behaviour to have been quite normal adding "but I had a hard feeling because usually he is very good in manner ....... we used to be very friendly."

17. There was evidence about the keys to the doors of Goldpoly's offices. The applicant had had access to these keys (all except the key to Mr. Hung's own office) when they used to be lent to him by Mr. Lam on a key ring which also had on it the key to the car that the applicant was required to drive. But not long after the applicant had started work he had been given a duplicate key to the car. There was also some vague evidence about Mr. Lam losing all his keys at one time but Mr. Lam admitted in cross-examination that the loss of his keys might have occurred before the applicant took up his duties for Goldpoly, although that possibility was "very small".

18. This was the substance of the evidence relied upon by the prosecution to connect the applicant with the crime, save for evidence as to his means.

19. On 20 June 1963 the applicant was served with a notice under s.14(1)(a) of the Prevention. of Bribery Ordinance (Cap. 201) requiring him to furnish a Statutory Declaration about his assets, expenditure and liabilities. Such a Declaration was supplied on 12 August 1983. This Statutory Declaration was produced in evidence as were the questions and answers he gave during a series of interrogations by I.C.A.C. officers before and after the Declaration was demanded. The jury also had before it a series of admissions about the applicant's financial affairs made under s.65C of the Criminal Procedure Ordinance.

20. Neither Mr. Keane who appeared for the applicant in this application for leave to appeal, nor Mr. Chapman who represented the Crown before us, appeared in the court below. But from the remarks made by counsel for the prosecution at the trial it would appear that both the prosecution and the defence were anxious that the Declaration be put before the jury on the basis that, in a subsequent interview, the applicant had confirmed that the contents of his Declaration were true. It was stated that the Crown had no objection to its admissibility.

21. Mr. Keane submitted before us that despite what had happened the Statutory Declaration was inadmissible, and so much was conceded by Mr. Chapman. We have no doubt that this concession was rightly made. As Lord Reid pointed out, obiter, in his speech in Commissioners of Customs and Excise v. Harz and Power ⁽¹⁾:-

"Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where there is no such express provision, the question whether such answers are admissible evidence must depend on the proper construction of the statute."

22. Section 20 of the Prevention of Bribery Ordinance begins:-

23. In our view these express words shut the door to any further implication. And there is no discretion in a court to admit legally inadmissible evidence. It is perhaps unfortunate that counsel appearing at the trial took a different view and we think that Mr. Keane is right in making the point that the trial might have been very differently conducted by the Crown and the defence if the true position in law had been appreciated.

24. Mr. Chapman submitted that the irregular admission of this evidence should not result in the quashing of the conviction, on the principle that the evidence so admitted could not reasonably be said to have affected the minds of the jury in arriving at their verdict for they would inevitably have reached the same verdict, if the evidence had not been admitted on other evidence substantially to the same effect. This was the evidence contained in the document formally admitting facts under s.65C of the Criminal Procedure Ordinance and the answers given by the applicant to I.C.A.C. officers during the various interviews at which he was interrogated.

25. The applicant was first interviewed on 8 June 1983, the day of his arrest. Although the interviewing officer told him at the start that he was suspected of being in possession of wealth of unknown origin contrary to s.10 of the Prevention of Bribery Ordinance we agree that the questions and answers put and given on this occasion were admissible, assuming that evidence about his means at different dates was otherwise admissible to prove the burglary.

26. We think, too, that the record of the interview which took place on the morning of 21 November 1983 was also admissible. Although the interviewing officer began by saying he wanted to ask questions about the source of the applicant's assets, very soon the questions and answers related specifically to the offence with which the applicant was later charged.

27. However, we are of the opinion that evidence about what was said during the interview on the afternoon of the same day was not admissible because before the questioning began the interrogator referred specifically to the Statutory Declaration made as a result of the notice issued under s.14(1)(a) of the Prevention of Bribery Ordinance, and all the questions related to what the applicant had revealed and explained in that Declaration. We do not see how this evidence could be admissible if the Statutory Declaration is not.   It would be bringing forward much of what was contained in the Declaration before the jury by the back door as it were. We think there must be the same objection to the evidence regarding the interview of 8 March 1984, We would mention in passing that counsel for the Crown at the trial, before leading evidence about all the interviews after the first asked that the jury should be invited to read the Statutory Declaration "so as to make the testimony about the interviews more comprehensible."

28. We are thus left with evidence about the applicant's assets and how he came by them in the document formally admitting certain facts and in the records of the interviews which were conducted on 8 June 1983 and on the morning 21 November 1983.

29. We accept that the sudden acquisition of wealth can in appropriate cases be relevant and admissible but we would note that no example has been cited to us from reported cases which show that evidence of the kind led in this case has been adduced in evidence. against a person charged with what we might call for convenience "Theft Ordinance Offences". However, there is a short passage in Wills on Circumstantial Evidence (7th Edition) at page 105 which touches on the matter :-

"It is upon the same principle (the presumption arising from the recent possession of stolen property) that a sudden and otherwise inexplicable transition from a state of indigence and a consequent change of habits or a profuse or unwonted expenditure inconsistent with the position in life of the party,  is sometimes a circum- stance extremely unfavourable to the supposition of innocence (Rex v. Burdock "(murder by poison), Bristol Ass. Ap. 1835, coram Sir Chas. Wetherell, Recorder.)"

30. However, it seems to us that this kind of evidence must be the subject of a careful direction. The matter was dealt with in this way in the summing up:-

31. In the answers the applicant gave during the interviews, the records of which we have held to be admissible, the applicant gave full explanations regarding his acquisition of wealth but the jury were not reminded of them.

32. We consider it was incumbent on the judge to deal with the applicant's explanations. We would cite a passage from the opinion of Lord Roskill giving the judgment of the Privy Council in Leung Kam Kwok v. The Queen: ⁽²⁾

"Their Lordships respectfully suggest that the position resulting from those English decisions is not as complicated as the Court of Appeal there appeared to have thought. If an accused person in a statement not made on oath in Court denies his guilt, saying for example 'I am not guilty: I was not there and no more, that statement is not evidence of the truth of his absence from the scene of the crime and this of the truth of his alibi. But if such a statement consists partly of an admission and partly of an explanation for example 'I shot him it was an accident' or 'I shot him: I was provoked' the admission is plainly admissible and common fairness requires that the entirety of the statement should be admitted so as to show the precise context in which the admission was made, even though what it said by way of explanation or excuse is not evidence of its truth. Where the accused goes into the witness box and repeats the explanation or excuse on oath there is no problem. Where he does not go into the witness box it behoves the trial judge, when dealing in his summing up with the admission, in common fairness to the accused, also to refer to the accompanying explanation or excuse, adding if he thinks fit to do so that that explanation or excuse has not been supported by evidence on oath before the jury. It is then for the jury to evaluate the admission and the unsworn explanation or excuse as they think fit."

33. We would also cite a passage from the judgment of Roberts, C.J. giving the judgment of this Court in The Queen v. Peter Liu Po Shing and another,⁽³⁾ just after he had referred to the same part of Lord Roskill's opinion. The Chief Justice said:-

"It is clear from the language used by Lord Roskill that the term 'statement of admission' is meant to include a statement in which   the defendant admits to any facts which constitute a significant element of the Crown's case against him. It is not necessary for it to include a direct, or even indirect, confession to the actual offence charged. It is sufficient if it contains admissions of facts which tend to substantiate the Crown's case in a significant manner."

34. There was evidence before the jury that two I.C.A.C. officers went to the Casino in Macau on 4 December 1984, bought chips to the value of $75,000 and, having lost some money, were able to obtain a cheque $70,000 for their remaining chips.  This evidence was clearly led to indicate that the applicant could, in this way, have obtained the two cheques he admitted receiving for $210,000 and $400,000, and so to cast doubts, on his explanations for a large proportion of the assets he was said to have suddenly acquired. This is what the judge said about the matter:-

"You also heard the evidence of the two I.C.A.C. officers who told you that they went to the Lisboa Casino in Macau with $75,000 cash. They told you they cashed that sum for chips. They played Black Jack or, one of them played Black Jack and eventually ended up losing $900. They then took the remaining chips to the cashier and were given a cheque for $70,000 in the name of one of the officers and the rest of the money in cash. And the object of that exercise must be obvious to you."

35. With respect to the learned judge, we do not consider that this was a satisfactory direction. If this evidence really was material (we think it only just falls within the category of logically probative evidence) the jury needed assistance in approaching it which it did not receive.

36. Mr. Keane raised a number of other subsidiary points but we do not feel it is necessary to go into them. We are of the opinion that the failure to refer in the summing up to the applicant's explanations for his acquisition of wealth in itself is fatal to the conviction. The Crown relied very heavily on this evidence as part of its case against the applicant. Indeed counsel for the prosecution during his opening address told the jury:-

"There is another area of evidence in this case which may well be an area which will occupy most of your deliberations. That concerns the defendant's financial position."

37. This plainly is not a case in which the proviso can be applied. We cannot say that had the jury been properly directed on the admissible evidence they would inevitably have reached the same conclusion.

38. The application for leave to appeal must succeed. We treat this hearing as the hearing of the appeal itself. The appeal against conviction is allowed, the conviction quashed and the sentence set aside.

(1)    [1967] 1 A.C. 760 at p.816

(2)    Privy Criminal Appeal 36 of 1983 (17 December 1984)

(3)    1984, No.520 (1 May 1985)

Representation:

Desmond Keane, Q.C. and Ronald Tang (Nicholas Lo & Chan) for the Applicant.

Peter Chapman, for Respondent.