The Queen v. Lai Wai Kin

HCMA001017/1989

1989, No. 1017
(Magistracy)

HEADNOTE

Bribery - main prosecution witness given immunity. Told before starting his evidence that he would lose the immunity if he failed to give evidence in accordance with his statement made to the ICAC. Held that was wrong and appeal allowed.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1017 OF 1989

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BETWEEN

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Coram: Penlington, J.A., sitting as an additional High Court Judge

Date of hearing: 13 October 1989

Date of delivery of judgment: 13 October 1989

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal against a conviction of soliciting a bribe, the Appellant being an officer in the Correctional Services Department. The Crown's case was that on a day in January 1989 the Appellant solicited the sum of $300 from an inmate of the Cape Collinson Correctional Institute as a reward for supplying him with two packets of cigarettes.

2. There is no need to go into the evidence called in any detail. Suffice it to say that the main prosecution witness was the inmate of the institution who was interviewed by the Independent Commission Against Corruption and made a statement, following which he was given an immunity from prosecution for his part in this offence.

3. As was said by Mr. Gunston, who appeared for the Appellant in the court below and here, the wording of that immunity is somewhat surprising in that while it refers to the witness not being prosecuted for any criminal offence which might be disclosed by him in the course of his testimony it then goes on to say "provided also such offence was disclosed by you in your statement to Mr. LEUNG To Keung, an officer of Independent Commission Against Corruption". It then goes on to say that should he deviate from the truth in any material particular "either in his statement or in his evidence this Immunity from Proseuction will cease". This wording, it seems to me, could cause difficulty to a witness who realises in the course of giving his evidence that part of his statement is wrong. If he does there should be nothing to hinder him saying so if that is the truth. The wording of the immunity here may well make him think that if he does so he may be prosecuted for his part in the offence.

4. This possible impression was however made much more likely here because when the witness came to give evidence, at a very early stage he was asked by prosecuting counsel this question:

"You are aware that you are not to deviate from the statement you gave to the ICAC officer on the 21st of March as one of the conditions of the immunity."

This question was objected to by Mr. Gunston, on the basis that it was leading. Mr. Gunston says here while that was indeed the basis of his objection it was not leading in the normal sense but that it was leading the witness to give evidence in accordance with the statement and not necessarily as to the truth. The question was however allowed and the witness answered the question in the affirmative.

5. In my view this was a totally improper question. The witness should have been told that he must tell the truth and if he did not tell the truth he may lose the benefit of his immunity. It was quite wrong to tell him that he had to stick to his statement otherwise he might lose his immunity. This statement may have been wrong in some very important detail and as a matter of fundamental principle a witness must not be told that having made a statement and then received an immunity, he must give evidence in accordance with that statement otherwise he would lose his immunity. The Crown would naturally expect that his evidence will follow what was in his statement but if it does not and he is prosecuted for his part in the offence as a result his immunity would be a bar to such proceedings if he could show that his evidence was nevertheless true. On that ground alone I am satisfied that this conviction is unsafe. I may however also say that having gone through the record of proceedings it seems to me that the evidence that the Appellant solicited an advantage is by no means clear. What is clear is that he did supply two packets of cigarettes to the inmate and no doubt was guilty of a disciplinary offence because of that. Whether he solicited any money, in particular the $300, seems doubtful. The trial Magistrate took the view that by offering to supply cigarettes he must therefore be taken to have solicited money to pay for them. We relied on two telephone conversations made by the Appellant to the witness' sister to support that view. I think there may well have been another motive for those calls. However as I have come to the conclusion that I have on the first ground I do not need to decide that point, on which I have not heard argument. This appeal is allowed and the conviction quashed.

Representation:

Mr. Cogalan C.C. for Crown/Respondent

Mr. D.B. Gunston (Hampton, Winter & Glynn) for Appellant