HKSAR v. Lam Ping Kai
Read the full judgment text of HCMA 383/2000 on BabelCite. This High Court CFI judgment was delivered on 3 August 2001.
1. On 7th March 2000 the Appellant was convicted after trial of one charge of conspiracy to defraud (1st Charge) and 19 charges of offering an advantage to an agent (2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd and 23rd Charges). He was sentenced to a total term of 18 months imprisonment. He now appeals against conviction and sentence.
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HCMA000383/2000 HCMA 383/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. HCMA 383/2000 (On appeal from TWCC 1030/2000) ____________________
____________________ Coram: Deputy High Court Judge Barnes in Court Dates of Hearing: 15 May and 5 July 2001 Date of Judgment: 3 August 2001 ______________________________ JUDGMENT ______________________________ Introduction 1.On 7th March 2000 the Appellant was convicted after trial of one charge of conspiracy to defraud (1st Charge) and 19 charges of offering an advantage to an agent (2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd and 23rd Charges). He was sentenced to a total term of 18 months imprisonment. He now appeals against conviction and sentence. 2.Due to the constraint of time originally set aside for the appeal, the grounds of appeal were advanced in two stages; I heard the formal grounds of appeal against conviction on the original scheduled hearing day of 15th May 2001 and the substantive grounds at the resumed hearing day of 5th July 2001. Brief facts 3.The prosecution case was that the Appellant was a director of Alpha-Chem Colours Limited ("Alpha-Chem") who was responsible for all operations of the company and for the supply and delivery of dyestuffs and chemical products to various dyeing factories in Hong Kong. Gloria Weaving And Knitting Factory Limited ("Gloria") was one of the customers of Alpha-Chem, which started to purchase dyestuffs and chemical products from Alpha-Chem in 1992. 4.YUNG Po-kau ("YUNG") and LEE Chi-leung ("LEE") were supervisors of Gloria. According to the written skeleton submission of the Respondent dated 14th May 2001, the Appellant was originally charged together with 8 other defendants who were the persons to whom he offered advantages in charges 2 to 23, and both LEE and YUNG had pleaded guilty and agreed to be prosecution witnesses. The charge sheet however shows that only LEE (who was named as D2) was charged with the Appellant and the prosecution offered no evidence against him on the conspiracy to defraud charge. There was no mention of YUNG on this charge sheet. Nevertheless, both YUNG ("PW1") and LEE ("PW4") gave evidence for the prosecution and there was evidence before the court that PW1 had pleaded guilty to one charge of conspiracy to defraud and 3 charges of accepting an advantage and was sentenced to 7 months imprisonment and was order to make restitution to Gloria (Appeal Bundle p. 139, para.9). 5.It was the prosecution case that in about January 1995, the Appellant, PW1 and PW4 agreed to create false purchases of dyestuffs and chemical products by Gloria from Alpha-Chem. Gloria would pay Alpha-Chem for the false purchases and the proceeds would be shared between the Appellant and PW1 and PW4. The Appellant created false sales from a fictitious firm called Tat Sang Hong Dyestuffs & Textile Auxiliaries in order to balance the books of Alpha-Chem. The fraud was carried out between January 1995 and May 1998 and a total amount of $481,213.40 was dishonestly obtained from Gloria (Charge 1). 6.Between January 1993 and December 1994, the Appellant agreed to offer advantages in the form of kickbacks to PW1 and PW4 for Gloria placing orders for the purchase of dyestuffs and chemical products from Alpha-Chem. The Appellant would calculate the amount of the advantage and upon receipt of payments by Gloria hand over cash to the PW1 and PW4 (Charge 2). 7.On various dates between December 1996 and May 1998 the Appellant offered advantages to PW1 (Charges 3-5) and PW4 for Gloria placing orders to purchase goods from Alpha-Chem (Charge 6). 8.On various dates between September 1993 and June 1998 the Appellant also offered advantages to employees of other companies for placing orders to purchase goods from Alpha-Chem on the same basis as he offered to the PW1 and PW4 (Charges 7 - 23). Brief chronology 9.Before considering the various grounds of appeal, it is useful to set out briefly what has taken place.
10.The learned magistrate's Statement of Findings came to 155 pages (Appeal Bundle pp.136-290). The learned magistrate also prepared a summary of evidence consisted of 57 pages for reference (Appeal Bundle pp.291-347). The transcript of proceedings made available for the appeal (which did not cover the whole trial) came to over 4,500 pages. Grounds of Appeal against Conviction Formal Grounds of Appeal against Conviction 11.Mr. James Chandler, appearing on behalf of the Appellant, advanced the following perfected grounds of appeal which were heard on 15th May:
12.Mr. Kevin Zervos for the respondent has very succinctly described what these grounds "when stripped of the emotive and extraneous comments boil down" to:
Ground 1 - Misjoinder 13.In his ruling (Appeal Bundle p.689 line C to 691 line O), the learned magistrate had clearly relied on s. 10(2)(a) of the Magistrates Ordinance, Cap.227 when he ruled the joinder of charges justified. He referred to Rule 7 of the Indictment Rules and found that there was "sufficient nexus existing between" all charges. Applying the principle in R v Craig and others 53 Cr. App. Rep. 569 he considered the pros and cons of separate trials in the interest of the Appellant, the public and the prosecution and came to the conclusion that severance was not necessary. The relevant passage in R v Craig and others (supra) was cited by the learned magistrate (at p.689 line J):
14.Mr. Chandler's main attack was that the learned magistrate's ruling was fundamentally flawed. He said the learned magistrate, in concentrating on the issues of 'nexus" that was relevant to deciding whether the offences "form or a part of a series of offences of the same or a similar character" failed to appreciate the difference between the requirement in the Indictment Rules on the one hand, and s.10 (2)(a) of the Magistrates Ordinance on the other. Further, the offence of conspiracy to defraud could not be said to be similar to offences under section 9(1) of the Prevention of Bribery Ordinance in that the elements/ingredients of each offence are totally dissimilar. 15.Mr. Zervos in his reply submitted that the charges were properly joined on the one charge sheet. He submitted that the underlying policy was that cases connected under s.10 (2)(a) of the Magistrates Ordinance should be heard together in the interests of due and expedient administration of justice and a concern for finality in criminal litigation. He submitted that the charges were of a similar character, in law and in fact. Section s.10 (2)(a) of the Magistrates Ordinance, Cap.227 provides:
and Rule 7 of the Indictment Rules, under the Criminal Procedure Ordinance, Cap. 227 provides:
16.Under s.10 (2)(a) of the Magistrates Ordinance a court needs to consider whether the offences are "of the same or a similar character" whereas under Rule 7 of the Indictment Rules it has to consider whether the offences "form or are a part of a series of offences of the same or a similar character." It is clear that the requirement under the Indictment Rules is more stringent than that under the Magistrates Ordinance. In Ludlow v Metropolitan Police Commissioner [1971] AC 29, Lord Pearson, in his speech in the House of Lords, when dealing with Rule 3 of Schedule 1 to the Indictments Act, 1915 ("Rule 3"), which is equivalent to our Rule 7 of the Indictment Rules, said (at page 39) that both the law and the facts should be taken into account in deciding whether offences are similar or dissimilar in character. His lordship then said:
In R v Kray [1970] 1QB 125, the Court of Appeal, when dealing with Rule 3, said (at p.131):
17.The learned magistrate in making his ruling said (Appeal Bundle p.689 line C):
18.The learned magistrate, in looking for a nexus, had in fact imposed on himself a more stringent requirement. All the learned magistrate had to do was to look for similarity between the offences, both in law and in fact. In any event, the learned magistrate was of the opinion that there was a sufficient nexus existing as all the charges involved the Appellant and the company of Alpha-Chem and all charges involved commercial transactions or purported commercial transactions involving Alpha-Chem, and all charges involved the placing of purchase orders with Alpha-Chem. Applying the principle enunciated in R v Craig and others (supra), he held the charges properly joined and declined to sever them. 19.In my view, the learned magistrate's analysis of the similarity in facts between all the offences cannot be faulted. Although the legal elements/ingredients of a conspiracy to defraud charge are different from those required for a charge of offering an advantage to an agent, what was being alleged in the conspiracy charge was that the Appellant conspired with PW1 and PW4 to cheat "Gloria", the company for whom PW1 and PW4 worked, in relation to purported commercial transactions between Gloria and Alpha-Chem. Charges 2 to 6 concerned the Appellant offering advantages to PW1 and PW4 in relation to the placing of purchase orders by Gloria to Alpha-Chem. These offences were of a similar character in that they involved the Appellant together with PW1 and PW4 cheating Gloria in its dealings with Alpha-Chem. The similarity in legal characteristics is that one was concerned with the defrauding of Gloria and the other with the cheating of Gloria through the paying of bribes to agents of Gloria. The rest of the charges, though involving different personnel and different companies, were concerned with the Appellant offering advantages to agents of those companies so as to cheat those companies in their dealings with Alpha-Chem. The charges had been properly joined and there is no merit in this ground. Ground 2 - Charge sheet overloaded 20.Mr. Chandler's contention was that the Magistrates Court is a court of summary jurisdiction to provide 'good swift justice'. The Appellant was convicted after a trial lasting 73 days. Following his arrest in June 1998 his liberty was restricted in that he could not go to visit his daughter in Canada. The Appellant incurred heavy legal costs and suffered severe mental pressure as a result of the matter hanging over his head for over 21 months. The prosecution rejected approaches from the Appellant's counsel to sever the case into manageable proportions. The learned magistrate also rejected formal applications for severance on a number of occasions. The trial was oppressive and the Appellant was therefore denied his right to a fair trial enshrined in Article 10 of the Hong Kong Bill of Rights and at Common Law. 21.Mr. Chandler referred to R v Novac (1976) 65 Cr. App. R. 107, R v Thorne and Others (1977) 66 Cr. App. R. 60, R v Bailey (1924) 18 Cr. App. R. 42, R v Kellard and Others (1995) 2 Cr. App. R. 134 to support his argument that it was the duty of a prosecuting counsel to ensure that the charge sheet was not overloaded, to withhold relevant evidence after reviewing evidence in a long case if the interest of time and clarity so requires to ensure a fair trial. 22.Mr. Zervos countered that the charge sheet was not overloaded. Of the 22 corruption charges, 21 involved specific individual offerings of an advantage by the Appellant to employees of ten customers who had commercial transactions with the Appellant's company Alpha-Chem. The trial was not before a jury. There was common evidence between the charges which were properly joined. The case was unnecessarily complicated and prolonged by the conduct of the defence and not by the nature of the number of the charges. 23.The learned magistrate when dealing with this application (Appeal Bundle p.690 line J - 691 line O) commented that the authority of R v Novac (supra) cited by the defence was different from the case at hand. That authority involved a jury trial. He was of the view that as the charges were properly joined, their number did not impose any difficulty in the management of the case or in dealing of the evidence by a professional tribunal. Further, the learned magistrate was of the view that the 23 charges were not more than necessary to reflect the culpability of the Appellant. He ruled that by trying these charges together there was not prejudice, injustice or oppression to the Appellant and the Appellant would not be embarrassed in any manner in his defence. 24.The case was originally set down for an 18-day trial. Although a trial involving 23 charges cannot be said to be commonplace in a Magistrates' Court, it does not ipso facto appear to be unduly long. The case badly over-ran and different areas needed to be investigated and arguments advanced due, to a large extent, to the stance taken by the defence throughout the trial; for instance, the numerous and repeated applications before the learned magistrate. I am not for one moment suggesting that the defence is not entitled to put the prosecution to strict proof and/or attack various aspects of the prosecution case. The defence, however, can hardly complain of the trial being prolonged when it was largely responsible for prolonging it. I find no merit in this ground. 25.As to the allegation that the learned magistrate had failed to evaluate evidence properly on each offence separately due to the volume of evidence before him, I will deal with that when I come to the substantive grounds of appeal. Ground 3 - Severance of charges 26.The main contention advanced by Mr. Chandler, apart from the issue of misjoinder (which I have already dealt with), was that the Appellant was embarrassed or prejudiced in his defence in that the failure to sever deprived him of the opportunity to give evidence in support of his potential defence, i.e. that he honestly believed that he had reasonable excuse to make the payments as alleged in the corruption charges. Whilst accepting the principle in Zheng Wan-tai [2000] 1 HKC 627, Mr. Chandler relied on Wong Lap-kwong [1991] 1HKLR 52 to support his contention that the learned magistrate should have severed the charges. 27.Mr. Zervos submitted that whether to order separate trial or not was generally a matter of discretion. There was no basis to say that the learned magistrate had not exercised his discretion properly. 28.The relevant ruling of the learned magistrate can be found at Appeal Bundle p.196 line R to 198 line B. In Zheng Wan-tai (supra), the appellant therein was charged with handling stolen goods and importing unmanifested cargo. There was available a statutory "reasonable diligence" defence for the unmanifested cargo charge. One of the grounds of appeal was that the appellant was deprived of his right either not to give evidence or to give evidence in relation to only one offence when the judge did not sever the charges. The Court of Appeal, after considering Wong Lap-kwong (supra), said (at page 637) "[o]nly very rarely will this court interfere with the proper exercise of a judge's discretion ..." 29.The discretion to sever where the charges have been properly joined was given by the proviso to s.10 (2)(a) of the Magistrates Ordinance. A magistrate, in exercising the discretion, can order a separate trial if he/she is of the opinion that the accused will be prejudiced or embarrassed by his/her defence. Where a magistrate had properly exercised his discretion an appellate court will not likely interfere (see Zheng Wan-tai (supra)). Although Mr. Chandler submitted that Wong Lap-kwong (supra) (a decision by a single High Court Judge on an appeal from a magistrate) remains good law, not having been overruled by Zheng Wan-tai (supra) (which was a Court of Appeal decision), Wong Lap-kwong (supra) concerned the joinder of 'presumption' and 'non-presumption' charges, which was not the case here. The learned magistrate had in fact considered Wong Lap-kwong (supra) when the application was made. I see no basis to say that the learned magistrate had not exercised his discretion properly and sensibly in refusing to sever the charges. I see no merit in this ground of appeal. Ground 4 - 1st charge unknown to law 30.Mr. Chandler submitted that the statement of offence of the 1st charge, alleging conspiracy to defraud contrary to both Common Law and s. 159(A) of the Crimes Ordinance, Cap. 200 was defective as it alleged an offence unknown in law. 31.The learned magistrate when dealing with this issue at trial (Appeal Bundle p.202 line E- 203 line D) came to the conclusion that the conspiracy to defraud charge was clearly one under the Common Law. Such an offence survived the statutory amendments to the law of conspiracy codified in amendments to the Crimes Ordinance. The reference to s. 159(A) was "mere excess verbiage" (Appeal Bundle, p.202 line Q). 32.Mr. Chandler submitted that the charge was defective, not null. As the learned magistrate did not amend the charge pursuant to s. 27 of the Magistrates Ordinance, which he had the power to do, the approach by the learned magistrate amounted to a material irregularity. In Fai Ma Trading Co. Ltd [1989] 1HKLR 582 where the defective information was not brought to the attention of the magistrate during the trial the Court of Appeal held that the correct approach was for the judge hearing the appeal to amend the information pursuant to the power under s.119(d) of the Magistrates Ordinance and for the amended information be heard de novo before a magistrate. Mr. Chandler submitted that as the learned magistrate was well aware of the defect and did not amend the 1st charge after full arguments, this court should not follow Fai Ma Trading Co. Ltd (supra) and the 1st charge should be quashed on this ground. 33.Mr. Zervos submitted that the conspiracy to defraud offence occurred between January 1995 and May 1998. During this time the Common Law offence of conspiracy was abolished and codified under the Crimes Ordinance on 2nd August 1996. The mention of s. 159(A) was an irrelevant reference which had no effect on the nature of the charge. There was no confusion about the nature of the offence being a conspiracy to defraud and it did not create any injustice to the Appellant. 34.In Attorney General v Wong Lau [1993] 1 HKCLR 257, Stock J (as he then was) reviewed a number of authorities (including R v Hamilton [1988] 1 HKLR 138, R v Williams (1990) 92 Cr App R 158, R v McLaughlin (1982) 76 Cr App R 42, R v Molyneux (1981) 72 Cr App R 111 etc.) together with the applicable statutory provisions, and distilled the following principles (at p.268):
35.Having considered the relevant authorities and the submissions, I agree with the learned magistrate's finding that the reference to the statutory provision was 'mere excess verbiage' and I find the charge not defective. In the alternative, I find that the defect was too trivial to call for an amendment. If I were wrong about this conclusion, I would have ruled that such defect was immaterial and no injustice or prejudice had been caused to the Appellant whatsoever. 36.In CHING Kwok-yin v HKSAR [2000] 4 HKC 164, the Court of Final Appeal, dealing with an appeal from a magistracy, referred to s. 119(1)(d) and (e) of the Magistrates Ordinance and confirmed that there was no equivalent of s. 83 of the Criminal Procedure Ordinance therefore no proviso which required that the appeal be dismissed if no miscarriage of justice had occurred. The judge hearing the magistracy appeal could make such order as he/she thought just. He/she has to decide whether there has been an error in the magistracy which made it just that the appeal should be allowed and conviction set aside. If the 'defect' amounts to an error, it is so minor that I am of the view that this is not a case in which I should allow the appeal and set aside the conviction, notwithstanding the fact that the learned magistrate was expressly invited to amend the charge and declined to do so. Ground 5 - 2nd charge a nullity 37.Mr. chandler submitted that by applying the principles enunciated in Wong Lau (supra), the 2nd charge of agreeing to offer advantage to an agent pursuant to s. 9 (2)(a) of the Prevention of Bribery Ordinance, Cap. 201 was an offence unknown to law and was a nullity which must be quashed. In the alternative an agreement to offer an advantage to two agents was duplicitous. 38.Mr. Zervos submitted that the offence under s. 9 (2)(a) of the Prevention of Bribery Ordinance was an offer of an advantage to an agent. Offer was defined under s. 2 (2)(a) of the said Ordinance and included a person who agrees to give an advantage. It is legitimate to have a charge of offering an advantage to an agent where the prosecution allege an agreement to give an advantage to an agent. The prosecution had particularised the charge here. The offence was not duplicitous as it alleged an offer of an advantage to two agents. The gravamen of the offence is the offer. 39.The learned magistrate, when dealing with this issue, said (Appeal Bundle p.221 line E):
40.Having considered the "definition" of nullity and defect mentioned above in Wong Lau (supra) I agree with the learned magistrate's view and reasoning that the charge was a valid one. The charge was not a nullity. I also accept the submission of Mr. Zervos that the charge was not duplicitous. I find no merit in this ground. Substantive Grounds of Appeal against Conviction 41.I now turn to the substantive grounds of appeal advanced by Mr. Chandler:
42.Mr. Zervos has again succinctly put these grounds in simpler terms:
Ground 6 - Ex Parte Public Interest Immunity application Ground 7 - Learned magistrate wrong in failing to discharge himself? 43.These two grounds are so closely-related that it is more appropriate to consider them together. Background 44.Before considering the merits of these two grounds, it is helpful to set out in some detail the relevant background. Incidents set out in the Chronology above from 14th October 1999 to 5th January 2000 are relevant and will not be repeated here. 45.The existence of the "Operational File" only became apparent during the cross-examination of PW33, the undercover agent. The Respondent acknowledged that documents contained in the Operation File were relevant to the issues before the court (i.e. whether the evidence of PW33 was admissible) and these materials "may even be prejudicial against him" (Appeal Bundle p.3607 line S - 3608 line B). 46.Despite numerous requests by the Appellant that material documents be disclosed the Respondent had failed to do so. The learned magistrate was of the view that the documents in question were all related to the planting of the undercover agent in the company of the accused and, as such, were relevant documents which should have been disclosed timely and properly instead of at a time when the trial had gone on for more than 50 days. After consideration, the learned magistrate was of the view that such failure did not amount to a "material irregularity" that could only be cured by an order to permanently stay the proceedings. (Appeal Bundle p.4253 line S). It could be remedied by recalling of relevant prosecution witnesses. The learned magistrate also ruled, with reference to Article 11(2)(b) of Bill of Rights, that the defendant had not been deprived of a fair trial. 47.As to the jurisdiction of a magistrate to hear the public interest immunity application, the learned magistrate considered the cases of R v South Worcestershire Justices, Ex p. Lilley [1996] 1 Cr App R 420, R v Stipendiary Magistrate for Norfolk, Ex p. Taylor [1998] Crim LR 276, and R v Bromley Justices, Ex p. Smith and Wilkins [1995] 2 Cr App R 285. He referred to R v Bromley Justices, Ex p. Smith and Wilkins (supra) which clearly stated that magistrate's court in the UK had the same jurisdiction to rule upon disputed issues as to disclosure of documents in summary proceedings as did a Crown Court judge in trials on indictment. The learned magistrate then said (at Appeal Bundle p. 3990 line G):
After referring to AG v Ip Wai Kong [1982] HKLR 93, where Addison J (at p.100) dealing with an appeal from a magistracy, said that a "criminal court must have and has an inherent jurisdiction to make such orders as are necessary to ensure that justice is done" the learned magistrate continued to say (Appeal Bundle p. 3990 line Q):
48.The learned magistrate further considered that no unfairness or injustice would be occasioned to the Appellant (at Appeal Bundle p. 3991 line D):
The learned magistrate considered that the case of R v South Worcestershire Justices, Ex p. Lilley (supra) was confined to its own facts. 49.As to the issue of public interest immunity, the learned magistrate dealt with it in the following manner (at Appeal Bundle p.4005 line C):
50.The certificate from the Chief Secretary (Exhibit 249, Appeal Bundle pp.2627-2631) contained two schedules of documents in respect of which public interest immunity was claimed. In schedule A under serial no. 2 the following document dated 21st April 1998 was listed: Internal communication - approval for undercover operation ("Internal communication") (Exhibit p. 250B, Appeal Bundle pp. 2638-2642). Paragraphs 3 - 11 (with the headings of "Resources Implication"; "Execution and Command"; "Surveillance Support"; "Other Support"; "Review Mechanism"; "Contingency Plan"; "Legal Advice", "Morals/Ethics"; and "Liaison with other agencies") were obliterated. 51.During the ex parte hearing on 23rd December 1999, the learned magistrate invited Mr. Liu, counsel for the prosecution (Respondent) called in for the public interest immunity application, to render assistance to him in his chambers. The hearing lasted for almost an hour. Immediately following the ex parte hearing the learned magistrate ruled (Appeal Bundle p.4005 lines I):
52.The Internal communication was among those ruled to be withheld from disclosure. Following the said ruling the Respondent confirmed that the said Internal communication (with the obliteration) had, prior to the submission to the Chief Secretary, been disclosed to the defence. The learned magistrate then exercised power pursuant to section 104 of the Magistrate Ordinance and reviewed his decision, ruling that the Respondent had waived privilege in respect of the Internal communication. 53.The fact that the learned magistrate had sighted the whole document is beyond dispute. Mr. Liu disagreed with Mr. Chandler's contention that the learned magistrate should have been given an edited version (Appeal Bundle p.4018 line T). The learned magistrate also confirmed that he had sighted another document couched in similar terms dated 20th February 1998 (referred to as "operational Orders" by the learned magistrate). The learned magistrate refused the Appellant's invitation to recuse himself from the trial and he had this to say (at Appeal Bundle p.4046 line I):
Jurisdiction to hear ex-parte application 54.It is common ground that magistrates in Hong Kong do have the power to regulate the practice and procedure in the magistrates courts and to adapt the procedures to contemporary needs: see R v Camberwell Green Magistrates' Court, Ex p. Christie (1978) 67 Cr. App. R. 39; Chief Constable of Norfolk v Clayton (1983) 77 Cr. App. R. 24; and AG v Ip Wai-kwong (supra). 55.Mr. Chandler's argument was that in the UK, the magistrates' courts power to entertain ex parte applications in relation to issues of disclosure was regulated by statute, the learned magistrate was therefore in error when he concluded that his jurisdiction to hold an ex parte hearing was founded in the Common Law. Whilst accepting that the magistrates' courts have jurisdiction to determine ex parte the issue of disclosure, Mr. Chandler contended that such hearing must be heard prior to the trial. He submitted that the requirement of open justice and the express provisions of sections 11 and 19 of the Magistrates Ordinance Cap.227 required that all facets of the Appellant's trial be conducted in open court and in his presence. Mr. Chandler prayed in aid Articles 10 and 11 of the Hong Kong Bill of Rights and submitted that the procedure adopted by the learned magistrate wholly disregarded the Appellant's rights enshrined in the said Bill of Rights. 56.Mr. Chandler also referred to three decisions by the European Court of Human Rights: Rowe and Davis v U.K. (Application No. 28901/95, Jasper v U.K. (Application No. 27052/95) and Fitt v U.K. (Application No. 29777/95), all reported in Times Law Reports 1st March 2000 and submitted none of these applications support the "extreme position" adopted by the learned magistrate. He submitted that the course adopted by the learned magistrate amounted to a material irregularity in the Appellant's trial. 57.Before turning to the response of the Respondent, it is convenient here to set out the relevant provisions in the Magistrates Ordinance. Section 11 of the Magistrates Ordinance provide as follows:
and section 19(1) and (2) of the Magistrates Ordinance provide:
58.Mr. Alex Lee, arguing on behalf of the Respondent at the resumed hearing, submitted that both these sections were general in nature; section 11 dealt with general access made to the public while section 19 was a general provision as to the manner of trial in the Magistrates' Courts. These provisions did not deal with the special circumstances of a claim of public interest immunity in the Magistrates' Court, he submitted. The Respondent submitted that where the prosecution rely on Public Interest Immunity or sensitivity to withhold material the procedure to be followed was that given in R v Davis [1993] 1 WLR 613 and R v Bromley Justices, Ex p. Smith and Wilkins [1995] 2 Cr App R 285. As a public interest immunity application is exceptional, the presence of the defendant would render such an application impracticable and rather defeats the purpose: see R v Keane [1994] 2 All ER 478 and R v Malvern Justices, Ex p. Evans and another (1988) 87 Cr App R 19. There was an inherent power to order a hearing to be held in camera, even though there is an express provision that proceedings shall be held in open court. 59.The nature of public interest immunity application was put in these terms by Lord Bingham CJ in R v Stipendiary Magistrate for Norfolk, Ex p. Taylor [1998] Crim LR 276 (the full judgment was downloaded from Lexis for my reference) (at p. 3 of the judgment):
60.The UK courts have devised rules to meet such difficulties. In R v Davis [1993] 1 WLR 613, the court sets out the procedure to be followed. It is recognised that the substance of the material cannot be disclosed until there is an order for its disclosure. There might be exceptional cases when it is necessary to deny the defence the knowledge that an ex parte application had been made. 61.Although the Magistrates Court is a creature of statute it is accepted that magistrates do have the power to regulate their own courts to ensure justice is done. Whether the learned magistrate was correct in holding that his jurisdiction arose from Common Law is neither here nor there. I do not see why a magistrate should cease to have jurisdiction to determine a public interest immunity application ex parte once the trial has started. Sections 11 and 19 of the Magistrate Ordinance are general provisions stipulating that generally all the proceedings should be conducted in open court and in the presence of the defendant. However, as so clearly stated by Lord Bingham CJ in R v Stipendiary Magistrate for Norfolk, Ex p. Taylor (supra), public interest immunity applications need "to be conducted in a manner which conflicts with the general and important principle that justice should be administered openly...". I am aware that in R v Stipendiary Magistrate for Norfolk, Ex p. Taylor (supra) the justices heard the matter inter-parte with the applicant's solicitor present but the applicant and another defendant excluded from the hearing. That particular fact does not alter my view already expressed. I hold that the learned magistrate did have the jurisdiction to consider the public interest immunity application ex parte during the trial. Learned magistrate should have recused himself? 62.Mr. Chandler submitted that the learned magistrate had erred in ruling that the Internal communication was properly before the court. Such document had been disclosed to the defence and was wholly extraneous to the issue whether documents identified in the Chief Secretary's Certificate were protected from disclosure. Having sighted such highly prejudicial and irrelevant material the learned magistrate should have discharged himself from further hearing the trial. He contended that the fact that the learned magistrate was a professional magistrate was not a relevant consideration when he was asked to recuse himself. The correct test was whether there was a real danger of bias as propounded in R v Gough [1993] AC 646, at 670E:
Such a test was followed in Hong Kong in the case of Nattrass v A. G. [1996] 1 HKC 480 and R v HO Chiu-hung, MA No. 359 of 1996. 63.Mr. Chandler submitted that though in normal circumstances it is appropriate for the tribunal determining issues of disclosure to continue to hear the case there are exceptional cases where the tribunal should recuse itself. He referred to the judgment of Rose LJ in R v South Worcestershire Justices, Ex p. Lilley (supra) (at 424):
Mr. Chandler submitted that in the present case, "extraneous" matters had been brought to the notice of the learned magistrate so he should have recused himself from further hearing the trial. Mr. Chandler relied on the case of R v Stipendiary Magistrate for Norfolk, Ex p. Taylor (supra) where Lord Bingham CJ and Buxton J considered the said judgment of Rose LJ. Both Lord Bingham CJ and Buxton J accepted what Rose LJ had said as a general statement, commenting that it was a situation unlikely to arise. Lord Bingham CJ said (at page 5 of the judgment downloaded from Lexis):
and Buxton J said (at page 7 of the judgment):
64.The submission of the Respondent was that cases of Gough (supra), Nattrass (supra) and HO Chiu-hung (supra) relating to 'bias' dealt with wholly different factual scenarios to the present case and were therefore not applicable. The learned magistrate could not properly considered the public interest immunity application without examining the documents. It was submitted that professional magistrates are often asked to rule on the admissibility of incriminating material and they are trusted to be able to put such incriminating material out of their minds should such be ruled inadmissible. The same principle should apply here. In any event, Mr. Lee submitted that the Appellant failed to discharge his burden of showing that there was a real danger of bias on the part of the learned magistrate, whether deliberate or subconscious. 65.The governing law on the question of bias is now to be found in R v Gough [1993] AC 646, in particular the speech of Lord Goff, with which all their Lordships concurred (at p.670):
66.It is clear that the test propounded has been adopted by the courts in Hong Kong: see Nattrass (supra) and HO Siu-hung (supra). I have to consider whether there existed such a "real danger of bias" on the part of the learned magistrate in the particular circumstances of this case. Before considering this issue, it will be appropriate to consider if indeed "extraneous" and "irrelevant" yet "highly prejudicial" matters had been brought to the attention of the learned magistrate. 67.A distinction has to be drawn between what is relevant and what is admissible. Not all relevant matters are admissible. In the present case the Internal communication formed part of the basis why an undercover agent was deployed. What was contained in the Internal communication was of course hearsay and not admissible in court. However, such information would have been relevant to the issue of the deployment and the defence was entitled to have such matter disclosed to them. The learned magistrate had made it clear that he had read the whole document (including the obliteration) so the whole un-obliterated document had been placed before him for consideration. It is true that the said document had been disclosed to the defence, but it is also true that such disclosed document had parts of it obliterated. What the Respondent should have done was to ascertain from the defence whether their application for "full disclosure" include those obliterated parts of the document. There is, in my view, some basis for the suspicion that the left hand did not know what the right hand was doing, so far as the Respondent was concerned. However, faced with a demand for full disclosure, it was necessary for the Respondent to place the whole document before the learned magistrate when the Respondent sought non-disclosure on the ground of public interest immunity. The learned magistrate had given reasons why he considered paragraphs 1 and 2 of the Internal communication relevant to the issue before him. I see no reason to fault his reasoning. I am satisfied that those two paragraphs (and similar paragraphs in a similar Internal communication) were relevant to the issue of public interest immunity and not extraneous or irrelevant matter. 68.I now have to decide whether there was unfairness involved. There is no dispute that the defence had persistently asked for the disclosure of material. The learned magistrate had ruled that there had been untimeous disclosure. It is common ground that the defence was taking issue as to the admissibility of the evidence of the undercover agent (PW33). Any document in relation to her deployment should have been disclosed to the defence (unless public interest immunity was claimed). There was obviously no consideration by those concerned regarding public interest immunity until the eleventh hour, hence the production of the relevant certificate after an adjournment was sought. Mr. Chandler submitted that, in fairness to the Appellant, the prosecution should have opted not to rely on the controversial evidence of PW33 instead of pursuing public interest immunity application at such a late stage. The learned magistrate had dealt with this issue during the trial. He had found there was no abuse of the process by the prosecution and no unfairness or injustice. He emphasized that he was a professional magistrate who could separate admissible from inadmissible evidence. I see no cause to fault his decision. Any real danger of bias? 69.Magistrates have been asked to rule from time to time whether incriminating evidence is admissible. A classic example is one where the evidence is relevant but its prejudicial effect outweighs the probative value. In making the relevant ruling, the magistrate obviously has to examine the evidence in question. Magistrates are trusted to be able to put such incriminating material out of their minds should they rule it inadmissible. As indicated by Lord Bingham CJ in R v Stipendiary Magistrate for Norfolk, Ex p. Taylor (supra), there should not be any distinction drawn between judges who are trained as lawyers and lay magistrates. The learned magistrate is a permanent magistrate who was trained as a lawyer. There is no reason to doubt him when he said that he could and would disregard inadmissible evidence which he came to know. This is not a case in which the exceptional situation envisaged by Lord Bingham CJ occurred. There was no Wednesbury unreasonableness. 70.Although Mr. Chandler submitted that there was a likelihood that the learned magistrate was subconsciously influenced by the fact that the trial had gone on for over 50 days when he refused the Appellant's application to recuse himself, the test remains whether there was a real danger of bias for the learned magistrate to remain in the case. In the words of Lord Bingham CJ in R v Stipendiary Magistrate for Norfolk, Ex p. Taylor (supra) it was "unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man" the court has to "ascertain the relevant circumstances from the available evidence". After considering all the circumstances I find that the Appellant failed to show that there was a real danger that the learned magistrate was biased against the Appellant and I find no merits on this ground. Ground 8 - Evidence of undercover agent not excluded 71.In February 1998 the ICAC decided to deploy an undercover agent in the Appellant's business and PW33 was employed as an Accounts clerk in the Appellant's business from 27th April 1998 until 23rd June 1998, the date of the Appellant's arrest. 72.PW33 operated a tape recorder and recorded all her conversations with the Appellant. The prosecution sought to produce 3 of those tape recordings:
The learned magistrate ruled (Appeal Bundle p.4529 line D - 4531 line F) the various tape recordings and ancillary documents admissible and declined to exercise his discretion to exclude them. The learned magistrate ruled that as the Appellant was engaged in the commission of ongoing offences it was legitimate for the ICAC to have infiltrated PW33 into the Appellant's business. Although the undercover agent had admitted that an object of the operation was to obtain evidence of past criminal activities of the accused, the learned magistrate found that that did not automatically render the evidence obtained to be tainted with unfairness as it was not the undercover agent's sole object to obtain admissions or confessions from the Appellant. The learned magistrate indicated that he had considered he factors referred to in R v Smurthwaite and Gill (1994) 98 Cr. App. 437 and found no unfairness (see Appeal Bundle p. 4531 line F, note also that the transcript has wrongly cited the case as "Smirth Waite and Gill"). 73.Mr. Chandler submitted that the learned magistrate had erred in that he failed to properly identify the factors that went to the exercise of his discretion as to whether the tapes and ancillary documents should have been excluded from evidence. There had been unfairness as there was a derogation of the Appellant's right to silence. 74.Mr. Chandler complained that the learned magistrate "moved from a finding that the investigatory technique was legitimate to a conclusion that the evidence gathered during the currency of that investigation was not tainted by unfairness" and he failed to take into account factors relevant to whether the Appellant's right to silence had been unfairly disturbed. Mr. Chandler referred to the factors listed to R v Smurthwaite and Gill (supra). He also referred to Secretary for Justice v LAM Tat-ming and Another [2000] 2HKC 693, a Court of Final Appeal decision not available to the learned magistrate at the time of the trial. He submitted the relevant principles applicable to the present case were "whether the Appellant had applied himself to the deception", "whether the admissions were in relation to past or ongoing offences", "how passive or active was the role of the undercover operative" and "whether there had been an attempt to circumvent the provisions of the Secretary for Securities Rules and Directions for the Questioning of Suspects". Mr. Chandler submitted that the conduct of the undercover agent in bringing a set of calculations to the Appellant for his confirmation acted as a catalyst to engage the Appellant in conversation which resulted in the taped conversation dated 1st May 1998 (see Appeal Bundle p. 3543 line L - 3545 line D). Mr. Chandler complained that the learned magistrate's failure to exercise his discretion to exclude that evidence and his subsequent reliance on such evidence created unfairness to the Appellant. 75.In his reply Mr. Lee submitted that the law recognized the use of undercover operations as "an essential weapon in the armoury of the law enforcement agencies". He referred to Lam Tat-ming (supra), R v Jelen and Katz, (1990) 90 Cr App R456, and R v Christou and Wright [1992] 1QB 979 and submitted the use of the undercover agent was proper in this case. There was no suggestion that the undercover agent provoked, incited or encouraged the Appellant to commit any crime. There was no entrapment. There was no reason to require the learned magistrate to exclude PW33's evidence. As to Mr. Chandler's submission that the conduct of PW33 in bringing the set of calculations to the Appellant for confirmation acted as a catalyst, Mr. Lee submitted that judging from the transcript of the taped conversation PW33 played a very passive role, merely answering "yes" or "Mm" in response most of the time. 76.First of all, I disagree with Mr. Chandler that the learned magistrate had 'moved from a finding that the investigatory technique was legitimate to a conclusion that the evidence gathered during the currency of that investigation was not tainted by unfairness". The learned magistrate had clearly indicated that he had considered the factors listed in R v Smurthwaite and Gill (supra) and found no unfairness. Although the learned magistrate had not listed those factors in his ruling there is no reason to doubt him when he said he had considered them. The factors listed are as follows (p.440 of the judgment):
77.The Court of Final Appeal decision of LAM Tat-ming (supra) only came into existence in June 2000 so the learned magistrate did not have the benefit of this particular decision when he made his ruling. The Court of Final Appeal dealt with the question concerning the scope of the judge's residual discretion to exclude a voluntary confession made by an accused to a law enforcement officer when the accused was not under arrest or in custody and was unaware he was making an admission to an officer. The Court of Final Appeal recognised the need to have undercover operations in law enforcement which necessitated concealment of the true identity of the law enforcement officer (at p.704). (It should be made clear that Mr. Chandler never challenged the need for undercover operations.) The Chief Justice, delivering the judgment of the Court of Final Appeal, reviewed Hong Kong, UK, Australian and Canadian authorities in this area. The Chief Justice said (at 702 and 703):
78.The Court of Final Appeal held that the court may exclude voluntary and admissible evidence if the right of silence of the accused has been infringed. The Chief Justice said (at p.705 of the judgment):
and, further (at p.706):
79.Although PW33 brought the calculation to the Appellant (Appeal Bundle p.3544), I disagree with Mr. Chandler's contention that the undercover agent was active in leading the Appellant to making admissions. I agree with Mr. Lee's submission that the undercover agent played a very passive role. It her role is somehow considered to be active, then the most one can say is that by bringing the calculation to the Appellant she had brought the Appellant's attention to the matter which later led to the admission. I find nothing reprehensible in the conduct of the undercover agent. 80.It is true that the learned magistrate did not specifically refer to the issue of derogation of the Appellant's right of silence in his consideration, but his reference to the factors in Smurthwaite and Gill (supra) indicates that he did in fact consider the relevant factors. There is no basis, on the evidence before the learned magistrate, to say what had transpired between the Appellant and the undercover agent amounted to an "interrogation" by the undercover agent. The learned magistrate had exercised his discretion in a principled manner and I find no merits in this ground. Ground 9 - Insufficient evidence to prove conspiracy between the Appellant and LEE Chi-Leung in 1st Charge? 81.The Statement of Offence of 1st charge read as follows:
82.Mr. Chandler submitted that because of the way the Statement of Offence was drafted the prosecution had to prove that the Appellant conspired together with LEE to defraud Gloria, and 'extrinsic to that' there had to be proof that they together conspired with YUNG to carry out the same criminal purpose. Mr. Chandler submitted that while there was direct proof that the Appellant conspired with YUNG, there was no sufficient evidence to prove that the Appellant conspired with LEE or LEE conspired with YUNG. LEE when giving evidence testified that the prosecution had offered no evidence against him in respect of a Conspiracy to Defraud in similar terms to the 1st charge. In the absence of direct evidence the learned magistrate relied on circumstantial evidence. Mr. Chandler submitted that such circumstantial evidence was equally explainable upon the basis that LEE was involved in the receipt of a share of the corrupt payments identified in the 2nd to 6th charges. 83.Mr. Lee submitted that the learned magistrate addressed the issue whether there was an agreement between the Appellant and PW1 and PW4. He rightly observed what was said in R v Griffiths in respect of what constitute an agreement. He submitted that it was not necessary to prove there was a direct agreement between the Appellant and PW4. 84.The learned magistrate ruled (Appeal Bundle p.203 line Q):
The learned magistrate then dealt with the evidence of PW1 and PW4 and came to the following conclusion (Appeal Bundle p. 205 line C):
85.Although no submission was made on this, when one looks at the "Consent to prosecution under Section 31" (Appeal Bundle p. 69), it can be seen that consent was given "to the institution of the prosecution of [the Appellant] and LEE Chi-leung". That may be the reason (or partly the reason) why the Statement of Offence was drafted in such a way. Whatever was the reason for the rather unfortunate wording in the Statement of Offence, I am in total agreement with the view of the learned magistrate. This is clearly a case of wheel conspiracy and the learned magistrate was fully entitled to draw the inference on the evidence before him. I agree with Mr. Lee's submission that the learned magistrate's findings cannot be faulted. I find no merit in this ground. Ground 10 - Flawed global approach? 86.Mr. Chandler submitted that the learned magistrate did not assess or did not appear to have assessed the evidence available on each individual offence separately. He complained of "cross fertilization of evidence". Mr. Chandler cited the following instances as examples. In respect of Charge 13 on the issue of lawful authority and reasonable excuse (Appeal Bundle p.254 line L):
In respect of charge 18 on the same issue (Appeal Bundle p.269 line Q):
87.Mr. Chandler referred me to R v Bailey (supra) where Hewart LCJ said at p.46:
Mr. Chandler submitted that it was illegitimate for the learned magistrate to making findings adverse to the Appellant in relation to the 2nd charge and to "import" those to a different charge. 88.Mr. Lee submitted that there was no basis for this ground. He referred me to the learned magistrate's oral reasons for the verdict (Appeal Bundle pp.514 - 570) and his Statement of Findings (Appeal Bundle pp.202-286), submitting that the learned magistrate had considered the evidence of each charge separately. Although reasonable excuse was a defence to the corruptions charges, one must not forget that the defendant chose, which was his rights, not to give evidence. The learned magistrate had considered the issues of lawful authority, reasonable excuse and the state of mind of the Appellant and drawn inferences (Appeal Bundle pp.224-226). He had adopted what he had said in Charge 2 for convenience sake. 89.The learned magistrate had indeed considered each charge separately as submitted by Mr. Lee. He had carefully considered the issue of lawful authority and reasonable excuse by examining the state of mind of the Appellant when the Appellant gave money to various people in these proceedings (Appeal Bundle p.224 line D). Although the finding was placed under the heading of Charge 2 it is clear that such finding is not confined to Charge 2. I am satisfied the learned magistrate adopted a "short-hand" way of dealing with the statement of findings so as not to repeat himself time and again. There is no basis to suggest that there was cross-fertilization and I find no merit in this ground of appeal. Ground 11 - Inadequate character warning 90.Mr. Chandler complained about the learned magistrate's approach to the answers given by the Appellant in Record of Interview. The learned magistrate disbelieved the Appellant's answers which were potentially exculpatory but gave full weight to potentially inculpatory ones without giving any reasons for the difference in approach. In giving himself a character direction directed solely to propensity, Mr. Chandler submitted that the learned magistrate had tailored such character direction to such circumstances where he had made up his mind to disbelieve the Appellant in respect of his potentially exculpatory answers. Mr. Chandler relied on opinion of Bokhary P.J. in TANG Siu-man v HKSAR [1998] 1 HKC 371, submitting that the present case required the learned magistrate to give a character direction composing both limbs. 92.Mr. Lee submitted that it was not necessary for a professional magistrate to give directions on both limbs, particularly when the defendant chose not to give evidence. The Record of Interview was a "mixed statement" and the exculpatory answers carried less weight than inculpatory ones. TANG Siu-man v HKSAR (supra) refers to directions to jury as to how to make use of common sense. The old-fashioned way of directions shown in Vye was criticized. 93.Mr. Lee also, as an alternative, relied on Ching Kwok Yin v HKSAR (supra). Assuming that the learned magistrate was duty bound to give such a direction, would he have nevertheless convicted? Mr. Lee submitted that as three of the Appellant's former employees gave evidence; there was no allegation that the undercover agent was not a credible witness; and three of the acceptors of advantages also gave evidence, the learned magistrate would nevertheless had convicted even if he had given himself a character direction on credibility because the evidence was overwhelming. He emphasised that the Court is concerned with the justice of the case. 94.In TANG Siu-man v HKSAR (supra), Bokhary P.J., giving the dissenting judgment, said (at page 403) :
95.The learned magistrate's ruling on the voir dire can be found at Appeal Bundle pp. 198-200. The Appellant did not give evidence during the voir dire. After the learned magistrate ruled the evidence admissible, the Appellant elected, which is his right, not to give evidence during the trial proper. There is nothing to show that the Appellant had relied on the exculpatory parts of the mixed statement. Even if I were to accept the dissenting opinion of Bokhary P.J. the Appellant could not bring himself within the ambit of that ruling. All the learned magistrate needed to do, which he did, was to give himself a 'propensity' direction. However, one must not forget the actual judgment given by Litton P.J. (with whom Li C.J., Ching P.J., and Sir Daryl Dawson N.P.J. agreed) in that case. The learned judge said (at p. 380 line B):
and later (at 384 line G)
96.Applying the principle enunciated, all the learned magistrate had to do was to employ common sense when he considered the guilt or innocence of the Appellant. When dealing with a mixed statement when the accused does not give evidence, a magistrate need to evaluate both the inculpatory and exculpatory parts of the statement: R v Sharp [1988] 1 WLR 7 and R v Leung Kam-kwok [1986 HKLR 181. In The Queen v Leung Tung-wing [1995] 2HKCLR 271, Stuart-Moore J (as he then was), giving judgment of the Court of Appeal, referred to the passage by Lord Roskill in R v Leung Kam-kwok (supra) (at page 274):
97.The Appellant did not go into the witness box to repeat the exculpatory parts of the Record of Interview. In rejecting those parts of the Records of Interview the learned magistrate had clearly placed no weight on such exculpatory matters which were untested by cross-examination. The learned magistrate is not duty-bound to give himself a good character direction on credibility. All he had to do was to use common sense to evaluate the evidence. The learned magistrate was meticulous in his evaluation of the evidence. I find no merit in this ground. Ground 12 - Unsafe and unsatisfactory verdicts? 98.This is really a catchall provision. Since I have ruled against the Appellant on each and every ground advanced I do not see any basis to say that the convictions are unsafe and unsatisfactory. Judgment on Appeal against Conviction 99.For the reasons I have given, the Appellant's appeal against conviction is dismissed. Appeal against Sentence 100.Mr. Chandler frankly admitted that the sentences imposed by the learned magistrate on the various charges were neither wrong in principle nor excessive. His submission centred on the conduct of the trial, saying that the trial was protracted and oppressive to the Appellant. Mr. Chandler also drew my attention to the fact that the Appellant had served part of his sentence and had been allowed bail pending outcome of his appeal. 101.Mr. Lee's contention was that the length of the trial was the Appellant's own making. Prosecution needs to prove its case beyond reasonable doubt. The fact that the Appellant had served part of his sentence and then put on bail is not a ground for suspending the sentence. 102.Mr. Chandler has very fairly conceded that the sentences could not be said to be wrong in principle or manifestly excessive. Having considered all the arguments advanced, including those in pursuit of the appeal against conviction, I see no basis to suspend the sentence imposed. The fact that the Appellant was granted bail pending appeal is not a consideration. The nature of the appeal was such that it has taken a long time for this court to dispose of it. That is not, however, a ground to suspend the sentence imposed. Judgment on Appeal against Sentence 103.The Appellant's appeal against sentence is also dismissed.
Representation: Mr. Kevin Zervos and Mr. Alex Lee, SGC for the HKSAR Respondent Mr. James Chandler and Mr. Andrew Chandler, instructed by Messrs. Lee Chan & Cheng for the Appellant. |