The Queen v. Wan Chung Wah

CACC000237/1988

BETWEEN

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Coram: Hon. Fuad, V-P., Power, J.A. & Macdougall,J.

Date of Hearing: 9 December 1988

Date of Delivery of Judgment: 13 January 1989

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced charges of conspiracy, forgery and uttering forged documents. He was charged jointly with CHENG Chi-wah (D2) on the first charge. He was convicted after trial by Judge Chua in the District Court and sentenced to two years imprisonment on each charge, the sentences to be concurrent. He now appeals against both the convictions and the sentences.

The Facts

3. The facts were set out by the trial judge in her Reasons for Verdict as follows:

"It is the prosecution's case against both defendants, D1, Antony Wan Chung-wah and D2, Cheng Chi blab that between the 1st of April 1986, and 10th of June 1987 they conspired together with Lam Kwok Wah and others to defraud the Sentry Assurance International Limited by obtaining fraudulent life insurance policies on two Filipino nationals purportedly a brother an sister called Rolando and Jannel Ramirez Cruz and obtaining the insurafnce moneys under those policies by proving death by forged documents. The prosecution alleges that D1 who worked for Sentry was the 'inside man' who had joined the conspiracy on a promise of $2-300,000 and that it was D2 who had recruited the two Filipinos in Manila and funded the operation. He had used his mother to pay for the airtickets for the Crazs and to pay the premium of 829,500 to insure their lives for US$490,000. It is alleged that when, the Cruzs could not make earlier flights, D1 had forded their signatures on the insurance application forms in order to submit them on the 29th of August 1986. It is also alleged against that in his desperation to facilitate the clams he had approached PW8 Norman Kwok, D1's superior at sentry and offered him a bribe of $800,000. Thus the 1st charge on the indictment is one of conspiracy against D1 and D2. The second and third charges against D1 only is for forgery and uttering, forged documents respectively contrary to s.72 (1) and s.74 (1) of the Crimes Ordinance."

4. The case against the applicant rested upon a cautioned statement which he made at I.C.A.C. headquarters on the 9th of January 1987. This was admitted after a voire dire and marked as Fxh.Pll. The applicant gave evidence in the voire dire but did not give evidence or call witnesses in the trial proper.

The Chronology

5. Mr. Plowman, who appears with Mr. Simon Chiu for the applicant, handed up a very helpful chronology which showed that the applicant mode a witness statement to the police on 5th November 1986 and that D2 was arrested a 6.30a.m. on 8th January 1987 and brought to the I.C.A.C. headquarters. D2 made two statements under caution on the 8th January between 8.30a.m. and 6.15p.m. and the applicant having been requested to do so attended the offices of the I. C. A. C. on a voluntary basis at about 6.30p.m. on the same day. After discussion with three I.C.A.C. officers Mr. Jones, Mr. Tam and Mr. Yuen, the applicant at 10.45a.m. gave a cautioned statement (Exh. P9). This statement was completed at 11.5p.m. when Mr. Jones told the applicant that he did not believe that he was telling the truth and placed him, under arrest and told him that be would he detained. The applicant was then detained overnight in the detention centre of the I.C.A.C. and at 10.50a.m. on the following morning, the 9th of January he accompanied Mr. Jones, an other officers to his home where a search was conducted. At 11.40a.m. he returned to the detention centre . At 12.05p.m. Mr.Jones spoke to D2 and at 12.50p.m. D2 as taken to Room 954A in the detention centre where he spoke to Mr. Jones and a second captioned statement was then taken from him between 2.05p.m. and 8.20p.m. on that day, At 4.15p.m. the applicant, having been taken out of the detention centre to Room 811 and having had a conversation with Mr. Yuen and Mr. Jones, gave a second cautioned siptement (Exh.Pll) to Mr. Yuen between 4.30p.m. and 9.10p.m. This statement was the subject of the voire dire.

6. We turn now to the first ground of appeal which alleged that the conviction was, for the reasons set out in paragraphs 1 (a) and 1 (b) unsafe and unsatisfactory.

7. Mr. Plowman, in Ground 1(a) contended that Exh.Pll should not have been admitted as the evidence before the trial judge suggested that, having been obtained as a result of oppressive conduct on the part of the I.C.A.C. officers, it was not voluntary. There were five matters particularized under this head.

"(i)     the appellant had been kept at the ICAC office for approximately 27 hours before the statement was obtained."

8. The judge disbelieved the evidence of the applicant and Mr. Plowman had, therefore, for the most part, to rely upon the evidence of the I.C.A.C. officers, which the judge accepted, when arguing his grounds of appeal.

9. This ground is clearly not a matter which would establish oppressive conduct of itself but it was Mr. Plowman urged, background Matter to he borne in mind when examining, the evidence as a whole.

"(ii) the actions of the officers in arresting and detaining the appellant in custody over night in circumstances where there was no evidence to justify the appellant arrest and no valid reason given for not releasing him on hail."

10. The allegation here, boldly put, is that the I.C.A.C. officers deliberately, in bad faith, and in an endeavour to overbear the will of the applicant, detained, him overnight. It is suggested that the circumstances were such, after he had given his firs coutioned statement (Exh,P9), that he should have been liven hail. It is not suggested that, if the I.C.A.C. officers bad genuinely wished to make further inquiries, it would have been unlawful to detain the applicant. That Is suggested is that despite their statements to the contrary there were no genuine further inquiries to he made from the applicant as the only legitimate inquiries, which it could have been foreseen would have to be made would he directed towards third parties. We are unable to accent this submission. The Senior I.C.A.C. Officer, Mr. Swift was consulted by telephone at 11.55p.m. and he ordered the applicant he detained so that further inquiries could be made. We are satisfied that it was reasonable and proper for him to take the view that such inquiries would, to a greater or lesser extent depending upon how matters developed involve the applicant. It is true that fir. Jones told Mr. Swift that he thought the applicant should he given bail. The decision, however, rested with Mr. Swift. It was his to make and there is nothing in the evidence which indicates to us either that his decision was not in accordance with the powers given to him under the Independent commission Against Corruption Ordinance or that it was made in had faith. Indeed the attitude of Mr. Jones and the debate into which he entered with Mr. Swift indicate to us that the I.C.A.C. officers were mindful of the rights of the applicant and the decision was taken only after the matter had been fully canvassed.

"(iii)     the expressions of disbelief voiced by PW1 after the recording of Exhibit P.9 on 8.1. 87 and his subsequent action of informing the appellant that as he was not satisfied with his explanation the appellant would a arrested and detained."

11. This particular is grounded upon a statement made by Mr. Jones at 11.55p.m. immediately after the giving of the first cautioned statement by the applicant for Jones then told Mr. Tam, who ring translating for him,

"Tell him I am not satisfied and that I am arresting him on suspicion of being involved in a conspiracy to defrand his employers and to bribe Mr. Kwok. He will he taken to the detention centre and detained."

It is suggested that this statement constituted oppressive conduct on the part of Mr. Jones. It seems clear, if the evidence of Mr. Jones was accepted, that it was not intended to he oppressive conduct as he stated that it was his intention to bail the applicant but that he did not mention this to him because he did not wish to raise false hopes. Indeed the statement was on its face a perfectly proper one such as would be made to any person upon arrest. The contention of the applicant that these words constituted oppressive conduct and that he was overborne by them was rejected in clear terms by the trial judge when she said:

"Nor do I believe that any of the behaviour complained of by D1 subsequent to P9, such as Jones response to P9, the second phone call to Kwok, the incarceration, what Yuen was alleged to have said to D1, most of which I have found in any case to he lies, so affected him so as to render the taking of PP11 questionable."

This finding, presents a very considerable hurdle for Mr. Plowman to surmount He submits, however, that although explicit in its terms, it eras inadequate as it failed to deal in a detailed way with the allegations of oppressive behaviour. We see no force in this submission. The trial judge was clearly meticulous in her examination of the facts and it would, in our view, he quite wrong to take the view that the conciseness of her ruling in this regard indicated a lack of proper consideration.

"( iv)     the expressions of disbelief which were repeated by PW4 (Mr. Yuen Kit-on) prior to the recording of Exhibit P.11.

(v)     the cross-examination of the appellant by PW4 prior to the recording of Exhibit P.11 under the guise of clarification."

These sub-grounds are based upon the follow in passage from the evidence of Mr. Yuen:

"Court:

Q. In what way?

A. Mr. Jones was officer in charge with this case. We worked in a group. I remember on some occasions I and he went out to investigate together but the one who had overall charge, was Jones. I only worked partly on this case.

Q. When you saw D1 did a conversation take place between you and him on 9th January at 811?

A. Yes.

Q. What was first thing you said?

A. My habit is to introduce myself first.

Q. What did you say precisely?

A. I have just read the caution statement Which you made the previous night. I also told him I have interviewed a person called D2 and I told him there exe some ambiguities in his caution statements and I wanted him to clarify them.

Q. Before you said that to him did you introduce yourself?

A. Yes.

Q. What did you say?

A. I said I an Yuen Yit-on and I showed him my warrant card. As Jones was with me I also said I believe you know this Mr. Jones.

Q. Immediate Iv after you just introduced yourself what was first thing you said?

A. I said I have read your caution statement.

Court:

Q. The conversation you have told us already?

A. Yes.

Q. Did You caution him?

A. At once.

Court:

Q. That did you say?

A.     You are not obliged to say anything unless you wish to do so but whatever you say may be given as evidence.

Q.     What did he say?

A. I have already to you everything believe me.

Q. When you said you cautioned him at one what do you mean?

A. I cautioned him at once after I introduced ourselves to him.

Q. Did you make a contemporaneous note of this conversation?

A. No.

Q. After you cautioned him did he say he understood the caution?

A. Yes.

Q. What did he say when you asked him that?

A. He said I understand.

Q. What was next thing said after he said that?

A. I said I have read your statement which you made last night and so on.

Q. What was next thing you said?

A. I also told him that interviewed Cbeng Chi Wah whom he has mentioned din his statement. I also told him there were some discrepancies between what he said in his statement and the information which we had got. I asked him if he would like to add anything. He said I have already told you everything. Please believe me.

Q. What did you say to that?

A. I said 'In general I believe you'. I told him that I wanted to show him some documents which were Sentry application forms. I asked him whose signature was that under words 'proposed assurer in the forms'. P.1 and P. 2.

Q. Did you show, him those forms?

A.     Yes.

Q, that did of reply to that?

A. He did not reply.

Q. What did you then say if anything?

A. Then I showed him a medical examination report and I Pointed the signatures on those reports and asked him who made the signature on that reports P.5 and P.6. All alone he lowered his head and did not reply.

Q. What is next thing you said?

A. I showed him another document. It was a Registration form for People who stayed at the Kowloon Hotel. Yes this is the document. I now produce it.

Chiu: I do not object to the production just no admission to the truth.

Court: P.16.

Q. When you pointed out the signature at the bottom of this form what did you say?

A. I put all three documents P2, P.6 and P.16 and asked him about the signatures, all purporting to be the signatures of Jannel Cruz. I said to him these signatures look different. I asked him Do you know why?

Q. What did DI do?

A. He lowered his head and old not say anything for a long time.

Q.    How long is that.

A. Two to three minutes.

Luncheon adjournment.

Court resumes at 2.30p.m.

Appearances as before.

Q. During luncheon adjournment did you read your witness statement?

A. Yes.

Q. Is that for the purpose of refreshing your memory?

A. Yes.

Chiu: In R. v. Richardson (see Archbold page 371) there is a distinction between refreshing memory before giving evidence and during the giving of evidence.

Crown: I brought up because there is nothing to hide or sinister. It was obviously done innocently.

Court:

Q.    You have heard what has been said. I take it that you did it Innocently. There is a difference between refreshing your memory before, you start giving your evidence. Once you start giving your evidence, if you wish to refer to a document to refresh your memory you must ask permission and provided certain conditions as satisfied, you will be given leave. Do you understand?

A. Yes, may I refer to my statement now?

Court

O.    You haven't been asked a question yet. See if you can remember independently. If you can't and you think there is something in your statement which will help you then ask for leave.

Q. What did D1 say after the two to three minutes pause?

A.     He said, Okay I'll tell you the truth now I lied yesterday."

Mr. Plowman submits that the questions salted by Mr. Yuen amounted to improper cross-examination and In the context of the situation, were calculated to add, to the oppression which was already overbearing the mind of the applicant. He submits in particular, that when Mr. Yuen told the applicant that D2 had been interviewed and that there were some discrepancies between what the applicant-had said and the information which the I.C.A.C. had got and asked him if he would like to add anything to his earlier statement he was, in effect, putting to the witness what another witness had sail and was, at least in spirit, infringing the passage id the Judges Rules which states that this must not be done. We are by no means satisfied that this was so. Mr. Yuen did no more than indicate that there were discrepancies between what the applicant had said and the information which the I.C.A.C. had obtained. He did not in any way detail what D2 had said. There was, in our view, no impropriety in the way in which the officer proceeded.

12. We turn now to Ground 1(b) which alleged that the conviction was unsafe and unsatisfactory because

"the admission by_.PW1 that after a lengthy interview on 8.1.87 he told the appellant he did not beleive he was telling the truth and immediately thereafter announced his arrest and detention, contained the inevitable implication that the applicanthad "better tell the truth", and as such amounted to an inducement."

13. This ground involves very much the same matters as have been canvassed under Ground 1(a). It focuses specifically upon the following words of Mr. Jones, speaking through Mr. Tam, to the applicant at 11.55p.m. on the 8th of January 1987 immediately after he had given his first cautioned statements (Exh.P9):

"Mr. Jones:     Tell Mr. Wan I am not satisfied that he is telling the truth. Ask him if he is withholding something."

"Mr. Tam:     He says the statement is the whole truth."

"Mr. Jones:     Tell him I am not satisfied and that I am arresting him on suspicion of being involved in a conspiracy to defraud his employers and to bribe Mr. Kwok. He will be taken to the detention centre and detained."

14. We were referred to a line of cases commencing with R. v. Fennell (1981) 7 Q.B.D.147 which dealt with the impropriety of a person in authority telling a suspected person that he had better tell the truth. It was submitted that these words of Mr. Jones, contained the Inevitable, implication that the applicant had better tell the truth Suffice to say that we do not consider this to be so. The final words of. Mr. Jones were simply that he was being arrested and would be detained. Both the rest and the detention were lawful. It is true Mr. Jones made no mention of the possibility of bail but we are satisfied that it was not incumbent upon him to do so. As we have already pointed out, whether or not the applicant was to be granted bail was not a matter for Mr. Jones. All he could do was arrest the applicant, tell him that he was doing so and order his detention.

Ground 2:

"2. In relation to the matters referred to hereunder the learned. Judge either (a) failed to consider the evidence adequately or at all, (b) erred in her findings:

(a) Whether D1 was treated as a suspect from the beginning and was threatehed or induced by Jones, Yuen and Tam

(i) she failed to consider adequately the inherent improbability in the evidence of PW1.that he had no suspicion of the appellant before the end of the interview on 8.1.87, when such interview lasted 4 hours anal PW1 admitted that he regarded Fxhibit P.10 as being "riddled with untruths".

(ii) she failed to consider adequately the inherent improbability in the evidence of PW1 that there eras nothing contained in Exhibit P.8 (the cautioned statement of D2) which raised suspicion in his mind in relation to D1.

(iii) she failed to consider the credibility of Yuen (PW4) and Tam (PW3) independently of Jones (PW1) on this issue."

15. Ground 2(a)(1) rests squarely upon what is termed "the inherent improbability" in the evidence of Mr. Jones that he had no suspicion of the appellant before the end of the interview on the 8th of January. Because Mr. Jones said that his earlier statement to the police had been riddled with untruths" it is suggested that be must have had suspicions of the applicant at least before the end of the interview. This suggestion is, of course, not in accord with the evidence of Mr. Jones, who, with the knowledge that the applicant and his superior had gone voluntarily to the police to make a complaint against D2, said that at the time when he first interviewed the applicant at the I.C.A.C. offices he did not "suspect him at that stage at all". This was very much a matter of credit for the decision of the trial judge. Having referred to the contents of Exh.P10 and to the unsatisfactory and contradictory features thereof, she said.

"This being the case I have no doubt that the Crown's evidence is true. They did not view D1 as a suspect at that time. There were obviously matters they wanted to clear up but would hardly have threatened him in the way D1 had said. Why would they treat him in a manner that could only have caused the key crown witness to turn hostile and intransigent. Jones admitted quite openly the discussion took about 4 hours. The time took longer because everything had to be translated into English for him. Furthermore I would have expected Jones to lay the groundwork by asking detailed questions on insurance procedure before he sought to clarify the matter of the dates since 28th of August is the date on the insurance documents and he had information from the immigration that the Cruzs arrived in Hong Kong two days later. Jones mould have been using the certified translation of P10 Which stated 'I signed life insurance contracts with the two Filipinos on 28th August 1986'. It was only at the trial that the court translator intetpreted the relevant character to be 'for' and not 'with' thus adding to the confusion that bad to be clarified.

I therefore find nothing suspicous in the protracted discussion and have no doubt D1 was not threatened and induced by Jones, Yuen and Tam as he alleged."

16. The trial judge was fully aware of the suggestions, now being, made to this court, that or Jones must have suspected the applicant at an earlier stage than he said he did. It is clear, in our judgment, from the passage set out above that she dealt properly therewith.

17. Ground 2(a)(ii) suggests that the judge failed to consider the improbability of the evidence of Mr. Jones that there was nothing, in D2's statement toy the police (Exh.P8) which raised suspicion in his mind in relation to the applicant. We are unable to accede to the suggestion that Exh P8 must have raised suspicion in Mr. Jones's mind. It would not have been unnatural for him to take the view that D2 was trying untruthfully to implicate the applicant. The trial judge dealt with this matter as follows:

"D2's statement P8 refers to two meetings in Hong Kong during which D1 is supposed to have met the Cruzs. In the latter part of P8 he also mentions the arrival of the Cruzs in Hong Kong on the 30th of August 1986, a matter Jones would have known from the Immigration Department and to which he has referred in evidence. An examination of P8 reveals it to be a statement so full of contradictions and admission of lies D2 has made to D1 and the Ciuzs it is not much wonder that Jones did not place any reliance on it."

18. Ground 2(a)(iii) encompasses one of the major points made by Mr. Plowman. It was his contention that it was the evidence of Mr. Jones that he had told Mr. Yuen nothing about the contents of D2's cautioned statement of 9th January, insofar as it had proceeded, when he spoke to him at about 3 o'clock just prior to Mr. Yuen taking the cautioned statement (Exh. P11) from the applicant. Me submitted that Mr. Yuen's evidence was in direct conflict with that evidence as Mr. Yuen said that he knew what D2 had been saying in his statement because. Mr. Jones had told

19. Before dealing with this matter we turn to the complaint that Mr. Yuen's overall evidence was so unsatisfactory that the trial judge should have placed no reliance thereon. Initially he gave evidence concerning the conversation with the applicant prior to the taking of Fxh.P11. This evidence was, it is true, unsatisfactory and contradictory on its face. Indeed the trial judge took up the questioning of the witness in this regard. It is suggested that this court should, even though the trial judge herself by questions canvassed the unsatisfactory features of the evidence at length, come to its owns conclusion as to credibility and find that he was not a satisfactory witness upon whom it was safe to rely. This unusual course should, it is suggested, be taken because the trial judge failed to make any mention of this aspect of the witness evidence in her Reasons. We are satisfied that it would be wholly wrong to adopt any such approach. The trial judge saw and heard the witness. She was fully aware of the weaknesses in his evidence and she herself questioned the witness thereon. We are satisfied that she must have had these matters in mind when she made her assessment of the witness and see no proper ground for interfering therewith.

20. We turn now go the suggested contradiction between the evidence of Mr. Yuen and that of Mr. Jones. In the Court's examination of Mr. Yuen, the following passage occurred:

"Court:

Q.    You have told us you saw a man being interviewed on the 9th in the glass cubicle 954A. You at that time did not know the identity of that man. Were you told by anyone before you interviewed D1 what this man was saying to the I.C.A.C. officer?

Chiu (Defence Counsel):

That's very fair.

(Question put to the witness.)

Witness: A. Yes.

Count: O. It was KenJones who told you?

Witness: A. Yes."

21. The evidence initially given by Mr. Jones was, as the following passage indicates, on all fours with the version of Mr. Yuen:

"Crown Counsel: Q.      You met Paul Yuen at 4p.m. and briefed him about the stage of the investigation?

Mr. Jones:    A. Correct."

22. It is, however, suggested by Mr. Plowman that in the following exchange which came later in his evidence the witness denied that he had in his briefing told Mr. Yuen anything about the interview with D2:

"Court:     You couldn't Possibly have known all of D2's statement since you Beard it while it was being made what exact points or details of the story did you hear which coincided with D1's?

Mr. Jones:    I can't exactly remember which is what I said in chief But there was similarity enough for me to feel from my experience that they were at last telling the truth. I want to add that the information was known to me only. I didn't tell either Yuen or Tam what D1 or D2 had said. (Our underlining)

The court, in this passage, was asking the witness about all of D2's statement". D2's statement was taken from 2.05p.m. until 8.20p.m. and the applicant's statement was taken from 4.30 p.m. until 9.10p.m. If the answer was to he taken to be one that was responsive to the question of the court, what Mr. Jones was saying was that when he compared the two statements he was satisfied that the applicant and D2 were at last telling the truth and that he did not tell either Mr. Yuen or Mr. Tam of the contents of the two statements or his conclusions trial therefrom. That reading of the evidence, which, in our view, was a proper one for the trial judge to adopt, produces no contradiction between the evidence of the two witnesses. The trial Judge carefully and fully investigated this matter on her own initiative. We do not accept that because she did not deal with it in a detailed way in her finding, we should take the view that she must have overlooked it or have failed to give proper consideration thereto. We are not persuaded that there was any failure to assess the credibility of the three I.C.A.C. witnesses.

We turn now to Ground 2(b).

"(b) Whether or not D1 was cautioned

(i)    she failed to consider, that the first signature of the appellant on Exhibit P.11 and after the caution had the appearance of being squeezed into a pre-define) space.

(ii)    she failed to consider how the appellant could have known of the existence wand content's of the 'green book' which PW3 denied ever having referred to.

(iii) she failed to consider that the evidence of Yuen (PW4) as to the events which took plare immediately before he recorded P.11 was contradicted by and inconsistent with the evidence of Jones (PW1) Tam (PW3) and Swift (PW5).

(iv) she erred in stating at Page 290 of the Ruling that the appellant denied writing the words "Wan Chung Wah" below this signature on Exhibit P.11 when in fact the appellant admitted writing those, words. Such error contributed to her ultimate finding that the appellant had deliberately lied about the cautions.

23. In order to demonstrate the care with which the trial judge approached the allegation that the applicant was not cautioned, it is necessary to set out in full her finding thereon.

"II Whether or not D1 was cautioned

The nub of D1s allegations that both Tam when writing  the first statment P9 and Yuen when writing   D1's second statement PP11 only wrote out the first paragraph containing the words of the caution after the statement had been completed is that he was never cautioned and was not made aware of his right to remain silent

In order to see whether there was any substance in these allegations, it is important to examine the documents, for under the preamble of each statement were attached signatures, dates and time. An examination of P9 reveals Dl's usual signature 'Anthony Wan' and under which was written the date 8/1/87 and the time 10.50p.m., five minutes after D1 admitted he had lied and at which point he became a suspect and was cautioned by Tam. Tam said in evidence D1 had signed, written in the date arid time immediately after the first paragraph had been written and read back to him and before Tam started writing the next paragraph. D1 said he only signed the paragraph after the whole statement had been completed. He was unable to say who had written the date and time, except that it was not his habit to put these down after his signature.

Again with reference to PP11 he denied writing the words Wan Chung Wah' below his signature or the date. Yuen said these were added by D1 after his signature and after the first paragraph and was written and read to D1 and before he commenced to write the rest of the statement. Yuen said he had also written the Chinese characters and signed his own name as had Jones and it was he who had written out their full names in brackets under their signatures. D1, said he was unable to remember who had written his name and date save that it was done last, the body of, the statement having been completed.

The Crown cross-examined D1 to show that as an insurance agent working constantly on contracts he knew and understood the significance of signing a document. It also became clear from other documents produced, i.e. P19 and P17 that it was D1's habit to sign his name as Anthony Wan and clarify his signature as Wan Chung Wah. Furthermore he wrote dates in figures, the date followed by the month then the year each figure being separated by a vertical stroke.

An examination of D2's statement P15, taken and written by Tam reveals, at the end of the statement that Tam used full stops not strokes to record dates.

Furthermore as far as P9 is concerned D1 was using a blue ink ballpen whereas Tam employed a black ink ballpen. Nor is these any questionable space or squashing up of characters between the first and second paragraphs.

So far as PP11 is concerned, again, I find the paragraphs fit snugly and there is nothing to indicate that the first paragraph was tacked on later. An examination of what Yuen wrote reveals his style of putting names in parenthesis. The name Wan Chum Wah is not in brackets nor has D1 employed brackets on the other insurance documents. Again, the date which accompanies that signature is written in D1's normal manner.

I have no hesitation in accepting the Crown's evdience of these matters. I have no doubt that D1 has signified his understanding of the caution and that the first paragraph of P9 and PP11 were not written last. I find D1 has deliberately lied about the cautions."

24. The submission under Ground., 2(b)(i) is that the trial judge failed to "consideract, " that Exh.P11, on its face, indicates that the caution was squeezed into a pre-defined space, and that this fact, had consideration been given to it must have caused a doubt as to the veracity of the I.C.A.C. Officers. We are not satisfied that the document does speak for itself in to is way. There is no cramping of the words such that one would have to conclude that they must have been squeezed into the space. Furthermore, the trial judge having considered the matter, dealt with it as follows:

"So far as PP11 is concerned again I find the paragraphs fit snugly and there is nothing to indicate that the first paragraph was tacked on later."

We are satisfied that there is nothing in this sub-ground.

25. We now turn to ground 2(b) (ii).

26. On the basis of the findings asset out above, if one accepts as the judge did, that the statement was made in the way in which the interviewing officer said it was, the matter raised by this subground is unarguable. When turning however, to look in more detail at the matters raised by Chi's sub-ground it is important to bear in mind that the statement (Exh.P9) with which. At is concerned was, according to the applicant, given by him voluntarily. The major irregularity which the applicant himself suggested occurred during the taking of that statement was that the caution was copied out from the green book and placed at the top of the statement after he had made it, and that he was then asked to sign under the caution without being given a chance to read it. The admitted, however, that he was given a chance to read the statement itself after it had been completed, that the officer had written in the statement what he had told him, and that it was freely and voluntarily given by him. The trial judge dealt with the suggestion that the caution had been written at a later stage when she said:

"Furthermore as far as P9 in concerned D1 was using a blue ink, ballpen whereas Tam employed a black ink ballpen. Nor is there any questionable space or squashing up of characters between the first and second paragraphs."

27. Given her finding that she bad no hesitation in accepting the Crown's evidence on these matters", this subground can only have substance by placing reliance upon a later passage in the judge's findings headed "Inconsistencies and the Credibility of Crown Witnesses". This passage is as follows:

"That the green book is in existence is clear. It is less clear if, Tam resorted to it. A person who has served in the same rank for nine or ten years would have know the words of the caution by heart. It is by dint of sheer repetition and memory that a child learns his Chinese characters and most educated Chinese are better equipped to memorise perhaps because of it. But the fact of the matter is whether he did so refer to it is immaterial to the issue in this case. That goes for everything allege to have been said and done to D1 prior to P9 was made because D1 in effect accepts P9 was made, by him voluntarily. If none of it had any effect on D1 on the 8th it could hardly have mattered on the 9th Nor do I beleive that any of the behaviour complained of by D1 subsequent to P9, such as Jones response to P9 the second phone call to Kwok the incarceration, what Yuen was alleged to have said to D1, most of which I have found in any case to be lies, so affected him so as to render the taking of PP11 questionable.

I am satisfied on all the evidence that the Crown has proved to me beyond a reasonable doubt that PP11 was made by D1 voluntarily (emphasis added)

28. It is suggested that in saying that the "fact of the matter is whether he did so refer to it is immaterial to the issue in this case" the judge got the matter wrong as it was clearly material to the credit of Mr. Tam whether or not he referred to the been book in the way in which the applicant said he did. The passage set out above must, however be looked at in the light of the earlier passage in which the trial judge who clearly was aware of the allegations about the greep book, said that she had "no hesitation in accepting the Crown's evidence on these matters". We are satisfied that in the passage set out above, the issue to which the trial judge was turning her mind was the question of the voluntariness of Exh.P11 and that she was saying that even if Mr. Tam had referred to the green book during the taking of Exh.P9, this would be immaterial in the light of the view she took of the evidence as to what had occurred on 9th May when the applicant was being interviewed by Mr. Yuen. There is, in our view, no merit in this ground.

29. We turn to Ground 2(b)(iii). We have already dealt with the matters of substance raised by this ground when dealing with Ground 1(a) (iv) above.

30. We turn to Ground 2(h)(iv). It is true that the trial judge was mistaken when she said that the applicant had denied writing the words "WAN Chung Wah below his signature. He had merely denied writing the date but had admitted that he had written the name Wan Chung Wah. We do not, however, consider that this error is of any real significance. What the applicant did was to deny that he had placed certain words on the document; and the trial judge concluded that she should reject that denial and accept that he had written the words on the document. Nothing turns upon the fact that the words were a date only and not a name and a date.

Ground 2(c)

"(c)     The complaint

(i)     She erred in finding at page 292 of the Ruling that the appellant sought to retract his evidence in relation to not making a complaint. The evidence of the appellant was simply an attempt to explain why he did not complain at that time. Such error contributed to her ultimate finding that the appellant had deliberately lied about the complaints."

31. The passage complained of in the Findings is a follows:

"The westerner asked in English if I had any complaint. Then the Chinese explained to me what kind of welfare any mere In charge of. The Chinese also asked me if had any complaint and added most likely you wouldn't have any. Then I said no."

Under cross-examination D1 sought to retract to that evidence:

Q. When the westerner spoke to you understood enough English to know he was asking you if you had a complaint.

A. He did not ask me in that way.

Q. You told us yesterday both had asked this once in English and once in Chinese?.

A. What I meant to say is that I didn't understand what that Westerner said. I did not have time to think what he told me because immediately after he finished speaking the Chinese said to me 'you don't need to ask him when you can, leave. He doesn't know. He is only responsible for your welfare.'(our underlining)

32. The trial judge used the words "sought to retract" because the applicant had, in his evidence given earlier than the passage set out above, said:

"The westerner asked in English if I had any complaint. Then the Chinese explained to me what kind of welfare they were in charge of. The Chinese also asked me if I had any complaint and added most likely you wouldn't have any. Then I said no."

33. It seems to us clear from this earlier passage that the applicant was saying that he understood "Ir. Jones to have asked him whether he had any complaint, whereas, in the later passage, he was saying, that he had not understood Mr. Jones when he had directed that question to him. This was the retraction to which the trial judge referred. We see nothing in this ground.

34. Mr. Plowman did not proceed with Grounds 2(c)(ii) and 2(d).

35. Having considered all of the matters raised by counsel, we are satisfied that the application for leave to appeal against conviction must he dismissed.

Representation:

Mr. Harry Macleod (Crown Prosecutor) for the Respondent

Mr. G. Plowman & Mr. Simon Chiu (Messrs. Liu, Chan & Lam) for the Applicant.