HKSAR v. Yau, Petrus

CACC000305/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 305
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 24 March 1998

Date of delivery of judgment: 6 May 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted on two counts of forgery, four counts of aiding and abetting the making of a false statement to an immigration officer and four counts of aiding and abetting the breach of a condition of stay. He seeks leave to appeal against these convictions.

2. There was a lengthy trial in the District Court before Deputy Judge Tallentire. The Applicant was not legally represented.

3. The Applicant was a senior inspector of police. The charges related to his involvement with an employment agency called Jade Employment Agency which had been conducted by his brother YAU Chi-tak. According to the prosecution the Applicant effectively took over the running of the agency. The main work of Jade was introducing Filipino servants to prospective employers and assisting with the necessary immigration documentation.

4. There were originally fifteen charges. They can conveniently be divided into three separate parts. Charges 1 to 4 inclusive concerned a Filipino man Raul Dayan PW5. Charges 5 to 10 inclusive concerned a Filipino lady Marilyn Luya PW6 and charges 11 to 15 concerned PW6's brother Mario Luya PW7.

5. The Judge in his lengthy Reasons for Verdict gave reasons why he found charges 1 to 10 to be proved beyond a reasonable doubt and why he was unable to be so satisfied in respect of charges 11 to 15.

6. So far the prosecution case on these charges is concerned I can do no better than cite the description given by the Judge in his Reasons for Verdict:

"I deal first with the Crown case in respect of charges 1 to 4. Charge 1 was an allegation of forgery and refers to a contract of employment between PW5 and one TO Fo-man and produced in this case as P3. It was on the basis of this contract that PW5 entered Hong Kong and was granted an entry and work visa. The Crown case was that, that document was false and was, in fact, prepared and signed by you who, at the time, was effectively running Jade Services Company even though that company was registered in the name of your younger brother, YAU Chi-tak, who was PW18.

Charge 2 related to an offence of aiding and abetting the breach of conditions of stay. After PW5 arrived in Hong Kong on 13 February 1993 he reported to Jade, where he waited for about a week before you took him to a part-time job where he worked as a gardener and car-washer for four days. Thereafter, he was paid wages and returned to Jade. It was the Crown case that, that employer was not the man named in the contract.

The 3rd charge was one of forgery and referred to exhibit P6. The allegation was that prior to the expiry of PW5's work visa, he visited your home where P6 was prepared by you and was then used by him to gain the necessary visa. The document P6 was false in that he was not employed by the said TO Fo-man and that it was, in fact, you, defendant, who signed that letter.

The 4th charge was one of aiding and abetting the making of a false statement in a document furnished to an Immigration officer. This involved the supply of the document which was false, in that it purported to claim that PW5 was employed by TO Fo-man . It was a supporting letter for an application for re-entry visa. The Crown case is that this letter, P7, was supplied by you to PW5 when PW5 visited you at your home. Thereafter, the re-entry visa was obtained.

I turn now to the second batch of charges, being charges 5 to 10 inclusive. Charge 5 was one of aiding and abetting a Filipino female, Marilyn C. Luya, to breach the conditions of her stay. All these allegations stem from PW6's visit to Jade and subsequent acceptance of contract of employment, wherein YAU Chi-tak was named, and purportedly signed, as the employer. This contract was exhibited as P8 and P9. PW6 was then taken by you to a different address from that in the contract at which she worked for a short time. She then left that employment. The Crown case was that, that employer was not YAU Chi-tak.

Charge 6 was a similar offence involving an allegation that between the dates in the charge she worked, having been taken by you, at the house of Madam LAU Wong Pui-wah, who gave evidence as DW7.

Charge 7 was similar to charge 6, involving a return to the employment of Madam LAU between the dates named in the indictment.

Charge 8 concerned the aiding and abetting of the making of a false statement and document furnished to an Immigration officer. That letter is P14 and dated 30 June 1993. The allegation is that, that letter was supplied by you at the request of PW6. It was thereafter used to obtain the re-entry visa.

Charge 9 was similar and the allegation in that case concerned the supply by you to PW6 of a further contract of employment wherein YAU Chi-tak was named as the employer, that employment contract was exhibited as P15 and the supporting letter for extension of visa, as P16. P16 resulted in extension of stay in Hong Kong.

Charge 10 involved a false document, namely a supporting letter for re-entry visa P18 and was allegedly supplied to PW6 at your home. As a result, the re-entry visa was obtained."

7. At the beginning of the trial there was a voire dire to determine the admissibility of two statements P1 and P2 allegedly made by the Applicant. In general terms it can be said that P1 was an exculpatory statement and P2 was inculpatory. At the conclusion of the voire dire the Judge ruled both statements to be admissible.

8. P2 was mainly directed to the subject matter of charges 1 to 4 although clearly if the matters referred to were relied upon they would also have an impact on the remaining charges as the Applicant had accepted that he had taken over Jade from his brother and had indeed been a party to presenting false documentation to the Immigration Department so as to enable PW5, 6 and 7 to obtain rights to enter and leave the Territory and remain and work here.

9. On the voire dire the Judge accepted the evidence of the police officers who had been involved in taking the statements and he rejected as untrue the numerous allegations made by the Applicant.

10. On charges 1 to 4 he found PW5 to be a truthful and reliable witness and he accepted his evidence. When this was taken in conjunction with the admissions contained in P2 there was an overwhelming case against the Applicant.

11. The Judge was also very impressed with PW6 as a witness. He found her to be a particularly good witness and accepted her testimony. This was notwithstanding the complaints made by the Applicant that one of the people referred to by the prosecution, Susan or Susanna was married to the brother of PW6 and 7. Susan had been associated with Jade and had assumed a fairly active role in some of the transactions which were referred to.

12. At this stage it also needs to be added that the Judge was mindful of the fact that PW5, 6 and 7 had all received immunities from prosecution and had borne this fact in mind.

13. A submission was made that there was no case to answer. With the exception of charge 11 which was conceded by the prosecution this application was rejected.

14. The Applicant gave evidence of some length and called a number of witnesses. It can fairly be said that the thrust of the Applicant's evidence was to contradict the evidence of the prosecution witnesses and deny his involvement in the subject matter of the charges.

15. So far as the defence witnesses were concerned, there were considerable problems concerning the relevancy of much of their evidence. At no point could it be said that the evidence of any of the defence witnesses was such as to call into question the credibility of the evidence of PW5 or 6.

16. The only significant exception to this was the evidence of the forensic expert who gave the evidence to the effect that the typewriter which had been used to type one of the impugned documents must have been an electric typewriter whereas PW5 had given evidence that it had been a mechanical machine.

17. The Judge accepted that PW5 must have been mistaken but that this was not entirely surprising having regard to the passage of time which had elapsed.

18. The only other defence evidence which the Judge accepted without qualification was the evidence of a lady who described the constructive assistance which the Applicant had given to residents of the village she had lived in.

19. What is clear from the papers is that this trial had not been without its difficulties. On two occasions the Applicant had made applications for the Judge to disqualify himself on the ground that he was biased. These allegations appear to have been without any foundation whatever. Indeed the Judge did on a number of occasions grant adjournments to the Applicant and attempted to assist him in the presentation of his case. He also on several occasions invited the Applicant to consider obtaining legal representation to ensure that he was not at a disadvantage.

20. The 1st ground of appeal which relates to charge 1 is that there was no evidence to prove that the contract in question was a forgery or that the Applicant had perpetrated the forgery.

21. The simple answer to this is that the Judge made a finding of fact to this effect and there was more than sufficient evidence available to enable him to do so.

22. The 2nd ground of appeal which relates to charge 2 is framed as follows:

"2nd charge:- Aiding and Abetting the breach of condition of stay ...

Since the contract is alleged to be a false one, the condition of stay obtained should not be valid ones. Besides, there is no evidence that the defendant knows the contents of any of his condition of stay. The allegation of sending him to a 4-day job is only his one-side allegation. He was unable to tell the date, time, location of the job as well as any related person. There is no evidence from the prosecution to corroborate with his allegation. 2 other prosecution witness, the sister, and the proprietor of the agency had already proved him to be lying during his testimony. The prosecution charged the defendant to have committed the offence on 13.2.1993 is wrong because the prosecution was unable to prove any offence had committed on that day."

23. There is very little that can be said about this. As earlier stated PW5's evidence was believed by the Judge. The Applicant has not advanced any satisfactory reason why this finding should be interfered with.

24. The 3rd ground which relates to charge 3 is that the exact date of the offence had not been proved. The Judge was satisfied that all of essential ingredients of the offence had been proved and it was not incumbent on the prosecution to prove the exact day of the offence.

25. The 4th ground which relates to charge 4 complains that there was no evidence of aiding and abetting to support the charge. There was. The Judge found that the Applicant supplied P7 to PW5.

26. The 5th ground relates to charge 5. A complaint is made that the Judge should not have accepted PW6's testimony as it was unspecific and unreliable. The Judge was fully justified in accepting PW6's evidence.

27. A similar complaint is made in ground 6 which relates to the 6th charge. It adds though that Mrs LAU, PW7 had given evidence that PW6 had not worked for her.

28. The simple answer to this is that the Judge, as he was entitled to do, accepted PW6's evidence and rejected PW7's.

29. The 7th to 10th grounds also relate to charges 7 to 10. In summary the complaint is made in each of these grounds that there was insufficient evidence to support the charges.

30. In each case there was sufficient evidence and no grounds have been made out to justify us in interfering with the Judge's finding.

31. Before us, the Applicant applied to recall witnesses. He was unable to advance any convincing reason in support of this. We informed him that this was not the correct approach. It was necessary for him to establish satisfactory grounds of appeal. The Applicant then asked to reformulate his grounds. His 1st ground was that the Judge had prevented him from cross-examining the witnesses he wished to call. We then invited the Applicant to direct our attention to specific passages in the transcript.

32. The first passage he referred to started at p.273. There was nothing in the complaint made by the Applicant.

33. The next passage he referred to was at p.281. The Judge intervened when the Applicant attempted to cross-examine the witness as to the exact hour of events which occurred a number of years ago. The Judge was fully justified in intervening and stopping that line of questions.

34. The next passage he referred to was on p.287. This concerned the way the Applicant put his case to the witness he was cross-examining. What the Judge had been concerned with was that the case which was being put to the witness was consistent with contentions which were being advanced. The Judge was concerned that the Applicant was not putting the case which was in accordance with the defence he was running.

35. The next complaint occurred at p.292. The Judge intervened to prevent the Applicant from expressing his opinions to the court. The Judge was of course right to prevent this.

36. There is nothing in any of these complaints. It is also true to state when the transcript is read as a whole it is apparent that the Judge was at all times doing his best to assist the Applicant.

37. The other two grounds he wished to pursue were that the evidence was too tenuous to support the convictions, and that the Judge was biased and prejudiced against him. We have dealt with these complaints elsewhere in this judgment.

38. He did however take us through a number of passages in the transcript where it appeared that there had been inconsistencies between the evidence given by PW5 in the statement he made to the police and the evidence he gave in court. In addition to this he complained that the Judge had permitted prosecuting counsel to ask leading questions.

39. It is true that there were inconsistencies in PW5's evidence. However the Judge was mindful of these inconsistencies. He considered his evidence as a whole and was satisfied that he was basically telling the truth. It is also true that prosecution counsel did ask some leading questions. These however were not material and did not lead to any unfairness.

40. The Applicant undertook a similar exercise in relation to PW6's evidence. Its purpose was to demonstrate that her evidence was tenuous. He went on to submit that no conviction could properly be based upon her evidence.

41. The Applicant has also filed a 35-page handwritten document entitled "Addendum to Preliminary Grounds of Appeal". This has been carefully read and considered. Many of the matters referred to were repetitive.

42. So far as the specific allegations are concerned the following observations can be made.

43. As indicated by Mr. Ryan for the Respondent, the complaint that the summary of the facts was biased in favour of the prosecution as alleged by the Applicant indicates that he is labouring under a misapprehension. The purpose of the summary was to give the Applicant and the Court notice of the case which the prosecution would be presenting.

44. A perusal of the transcript of the proceedings does not indicate that the trial was not conducted in a proper and fair manner.

45. It is true that the Judge did interpose in the proceedings to a quite considerable extent. This was necessary to ensure that the Applicant was given sufficient assistance and that the prosecution evidence could be tested.

46. It is clear that the Judge went out of his way to attempt to assist the Applicant. He was fully mindful of the shortcomings in the prosecution case and particularly the fact that the main prosecution witnesses were giving their evidence under immunities.

47. At no time did he indicate that he would convict the Applicant in any event. What the Judge was doing was to indicate to the Applicant the necessity of critically analysing the evidence being given by the prosecution witnesses.

48. One of the notable features of this case was the apparent inability of the Applicant to satisfactorily join issue with the case which was being led against him. His approach was simply to attempt to trip witnesses up on minor points of detail and to ignore the main thrust of the evidence they were giving.

49. When he went into the witness box he simply denied the prosecution case and did not put forward any constructive alternative case. It is of course true that there was no need for him to do so as the requirement for proving the case always lay with the prosecution but, having regard to the large body of evidence against him, convictions, if there was no credible evidence to the contrary, were inevitable.

50. It is very evident on considering this application as a whole that the Applicant received a fair trial. What he is now attempting to obtain is a retrial. There is no justification whatever for this.

51. These convictions were in no way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr. B.M. Ryan, (D.P.P.) for Respondent

Yau, Petrus, Applicant in person

Applicant's leave to appeal to Court of Final Appeal refused by Court of Final Appeal. Please refer to FAMC7/1998 dated 30 June 1998