Liu Kwok Wah and Others v. The Queen

CACC000259/1966

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 259 OF 1966

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Coram: Rigby, S.P.J., Huggins and Williams, JJ.

Date of Judgment: 24 August 1966

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JUDGMENT

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1. Despite the careful and persuasive argument put forward by Mr. Shears on behalf of the three appellants, we are fully satisfied that there is no substance in these appeals and they must accordingly be dismissed.

2. The appellants were convicted of the offence of common law conspiracy: the particulars of that charge were "that the appellants on divers dates between the 14th of February, 1966 and the 22nd day of March, 1966, conspired corruptly to give monies to Thomas Allen Hunter HODSON, a Chief Inspector in the Immigration Department of the Hong Kong Government, on account of his approving certain applications made under the Immigration (Control and Offences) Ordinance, No.34 of 1958, being matters in which the said Immigration Department is, and then was, concerned."

3. The main prosecution witness was a man named HODSON, a Chief Inspector in the Immigration Department. The case for the Crown was that on the late afternoon of the 14th of February, the 3rd appellant, PANNU, an officer in the Prisons Department, as a result of an appointment he had earlier made that same morning with HODSON, went to see HODSON at about 5:30 that afternoon in his office at the Immigration Department. PANNU was well known to HODSON since they had both worked together in the Prisons Department in which HODSON had been previously employed before he joined the Immigration Department. After some general conversation PANNU told HODSON that he, in his capacity as a Chief Immigration Officer in the Immigration Department, could make a lot of money, and that he, PANNU, would introduce him to a friend with whom they could discuss this scheme. HODSON pretended to be interested and it was arranged that they should meet two days later.

4. However, after the interview had terminated HODSON immediately went upstairs and informed his superior officer what had taken place, and it is apparent that thereafter HODSON acted in co-operation with, and under the instructions of, the Anti-Corruption Branch of the Hong Kong Police.

5. Two days later at about 5:30 in the afternoon at a hotel bar, PANNU introduced HODSON to the person who was to unfold the details of the nefarious enterprise - he was, in fact, the 2nd appellant. The arrangement was that HODSON, in his official capacity, was to approve applications for entry visas or extensions of stay in Hong Kong. The departmental file number of those applications was to be given to HODSON and the file itself would be passed to him by someone in the office. It was apparent, therefore, that some third person, an employee in the Immigration Department itself, was to be a party to the scheme. In consideration of his services, HODSON was to be paid on a sliding scale according to the nature of the entry visas or applications for extension of time that he approved. The third conspirator was, in fact, the 1st appellant. It was by him, or through him, that the relevant files were subsequently passed to HODSON for action.

6. A further meeting took place between the three appellants and HODSON, and HODSON in fact received from PANNU the total sum of some $25,098, in different sums and at different times for his services. The whole of this amount he passed over to the Anti-Corruption Branch.

7. On the afternoon of the 22nd March the three appellants were arrested by the police in the presence of HODSON at a restaurant to which they had all repaired for further discussions in connection with this nefarious enterprise. It was, in fact, HODSON who had telephoned to the police from the restaurant informing them that he and the appellants were there. HODSON had upon him in his wallet at the time when the police arrived the sum of $5,900, part of which bad been given to him by PANNU earlier that afternoon and part of which was given to him by PANNU in the restaurant itself in the presence of the other appellants.

8. The learned judge, as he was entitled to do, fully accepted and believed the testimony of HODSON, who was of course not an accomplice, and there was upon his evidence alone quite sufficient ground, if believed, to support these convictions.

9. However, it would appear that an officer of the Anti-Corruption Branch, a Mr. IRVING, had entrusted to HODSON a tape-recorder for use by him at the various interviews he had with one or other or all of the appellants. That tape-recorder and the five reels used to record the conversations that took place were admitted in evidence. Furthermore, re-recordings of those reels were made by Mr. IRVING and produced in evidence together with a transcript prepared by him of the contents of those reels or tape-recordings. It is the admission of these tape-recordings and the transcripts made by Mr. IRVING that form the main grounds of the appellants' appeal. Mr. Shears, for the appellants, has submitted that the recordings themselves were so incoherent, incomplete and unintelligible, that they were inadmissible in evidence or, alternatively, that the learned judge in his discretion should not have admitted them in evidence.

10. The most recent authority quoted to us on the subject of tape-recordings ...(illegible) their admissibility or otherwise in evidence was the case of R. v. Maqsud Ali and R. v. Ashiq Hussain.⁽¹⁾ Upon consideration of that case and of a number of commentaries that have been cited to us we are fully satisfied that, provided the accuracy of the recording is first established, the voices properly identified, and the evidence relevant and otherwise admissible, the tape-recording of a conversation between two or more parties is admissible in evidence. As BRABIN, J. said in a case which was quoted by the appellate court in Maqsud Ali's case:

"..... a tape recording is capable of being the best evidence in a case, just as much as other evidence may be and the fact that it is perhaps novel does not give it any less value as evidence merely because of its novelty."

We are satisfied that the essential pre-requisites were proved in this case before the trial judge admitted in evidence the tape-recordings.

11. Now undoubtedly a judge may refuse to admit such evidence in the exercise of the very wide inherent discretion vested in a judge of trial. But, as the Court pointed out in Maqsud Ali's case, the mere fact that the tape-recording is in part incoherent or unintelligible is no ground in itself for the Court excluding it in evidence. Dealing with the objection raised in the course of that appeal in Maqsud Ali's case on that ground the Court, after referring to the fact that much of the conversation was inaudible or indecipherable, went on to say:

"..... insofar as that was so, much of the conversation was never transcribed, but there still remained much that was transcribed, and the learned judge after full argument ruled that what was deciphered should be left for the jury to assess. We think that he was right."

For the same reasons, we are of the opinion that the learned judge was right in this case in allowing the tape-recordings to be admitted in evidence.

12. Turning now to the next point raised by Mr. Shears, namely that the transcript of the tape recording made by Mr. IRVING was inadmissible in evidence. Now it is abundantly clear from reading the decision of the learned judge that he made reference to the transcript merely as an aid or measure of convenience to assist him in listening to the actual recordings themselves. It is apparent from his judgment that on several occasions he listened to such recordings without the aid of a transcript. Dealing with the recordings themselves, he says this in his judgment:

"On the first occasion I did not have the benefit of any transcript but was able even in the large court room at some distance from the loudspeaker to make out certain phrases and to realise that on closer and repeated listening large parts would become intelligible. At this stage I decided to admit them (i.e. the recordings). I played them once again privately, still without the benefit of transcripts, in more suitable listening conditions, and was able to make out considerably more of the conversation. I played them yet again, following the transcripts, and found that the transcripts fairly accurately represented what I was able to hear."

It is manifest, therefore, that the learned judge formed his opinion on the actual recordings themselves by listening to those recordings and, subsequently, he made use of the transcripts as a measure of convenience. Pausing here for a moment, we have listened to three of these recordings and it was clear to all of us that parts of the conversations contained in those recordings related to figures, numbers and immigration matters and, to that extent, those conversations as recorded were entirely consistent with the evidence which was given by Mr. HODSON. It is, of course, a matter of comment that if any other explanation could have been put upon these conversations the persons who were privy to them, to wit, the appellants, did not think fit to go into the witness box and give any such explanation.

13. It is no doubt arguable that, strictly speaking, the transcripts are inadmissible in evidence as the opinion of a third party as to what was said in those recordings. But, in our view, once it is made clear that the ultimate decision as to what was said in the course of the conversations must be based simply and solely upon an actual hearing of the recordings themselves, transcripts of those recordings may fairly and properly be used as a measure of convenience to obviate what would otherwise be the necessity of re-playing the recordings time after time to the court or to the jury. Now a measure of support for this view may fairly be obtained from the words of the court in Maqsud Ali's case in which the court said this:

"Having a transcript of a tape recording is, on any view, a most obvious convenience and a great aid to the jury, otherwise a recording would have to be played over again. Provided that a jury is guided by what they hear themselves and on that they base their ultimate decision, we see no objection to a copy of a transcript, properly proved, being put before them."

14. It is clear that it was solely upon that basis that the learned judge considered the transcripts in this case. We are, therefore, satisfied that Mr. Shears' objection on this ground must also be dismissed. In conclusion we would, however, say this: that it is clear from the learned judge's judgment that he based his conclusion on the guilt of the three appellants, as he was perfectly entitled to do, on the evidence of Mr. HODSON. He deals with the matter of the recordings only towards the end of the judgment. Having admitted them and drawn his own conclusions from them, he says this:

"If confirmation were needed of the conclusion which I have already stated - (i.e. the guilt of the accused) then these recordings would amply supply it. They take me from the realm of beyond reasonable doubt to that of certainty."

We would only say that we see no reason whatsoever to disagree with that view.

15. Turning now to the last ground of appeal raised by Mr. Shears: he complained that the facts established and accepted by the Court did not support the charge as laid. He submitted that the charge as laid averred that the agreement upon which the conspiracy was based was an agreement to pay money to HODSON for something to be done by him in the future, that is to say, on account of his approving certain applications that were to be laid before him, whereas the facts established and accepted were that the monies were paid to him as a reward for something already done, such monies being paid in each instance after the relevant entry visa or permit had already been approved by him. We think that there would have been a great deal to have been said in favour of this contention if the appellants had been charged and convicted of substantive charges of corruption. But it is to be remembered that this was a charge of conspiracy - an agreement between the parties to do an unlawful act or acts, that is to say; to pay money to HODSON for something to be done by him in the future, namely, to approve entry visas or extensions of visas.

16. Once the existence of an unlawful agreement to pay money to HODSON on account of him granting visas or extensions of visas was established, the fact that he was paid after he had granted them and not before seems to us immaterial. Looked at in this light we are of the opinion that although the particulars of the offence might have been differently phrased the facts established were fully, clearly and fairly within the charge as laid, to wit, an unlawful agreement hereby HODSON was to be paid, in the future, money in consideration of his approving applications for the granting of entry visas or the extension of temporary visas for visitors. This ground of appeal must also fail.

17. For these reasons we are satisfied that these applications for leave appeal must accordingly be dismissed.

24 August 1966

Representation:

...(illegible) Full Court.)

(1) (1965) 2 All E.R. at 464.