HKSAR v. Kwan Che Ping, Clinton

CACC000322/2000

CACC 322/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2000

(ON APPEAL FROM DCCC 1 OF 2000)

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Coram: Hon Stuart-Moore Ag CJHC, Woo JA and Lugar-Mawson J

Date of Hearing: 2 August 2001

Date of Judgment: 2 August 2001

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1.On 5 July 2000, the Applicant was convicted in the District Court, following a trial before Judge Whaley on one charge of conspiracy to accept advantages as a public servant (charge 1) and ten counts of accepting an advantage as a public servant (charges 3 to 10, 12 and 13). He was sentenced to four years' imprisonment on each charge to run concurrently. The Applicant was acquitted on charges 2 and 11.

2.The Applicant sought leave to appeal on 11 August 2000 on a ground which reads:

"The trial judge unilaterally disregarded the untruthful parts and doubts in the evidence of the tainted witness (PW2). In the absence of facts, the judge believed that the defendant had participated in illegal activities and received advantages and found the defendant guilty."

3.The leave of the single judge was refused on 29 December 2000, but the Applicant has now renewed his application before the full court. He has, taking the English translation, provided a 17-page letter dated 29 July 2001 which sets out his complaints. These, in effect, amount to a restatement of what was contained in his original ground of appeal. Today, in court, the Applicant has confirmed what he says is his main ground, namely that there was nothing in the evidence at trial which indicated that he had done anything against his department's code of practice or anything which was illegal.

4.The Applicant was an immigration officer and in that capacity was alleged, between 1990 and August 1996, to have conspired with one Philip Chu Hak-lan (PW2), who was a friend who in the past had held a senior position in the Customs and Excise Department. The allegation was that the Applicant conspired with Chu:

"without lawful authority or reasonable excuse, (to) accept advantages, namely, gifts, fee, rewards or commissions consisting of sums of Hong Kong dollars ranging from a few hundred dollars to several thousand dollars, from the said Philip Chu Hak-lan as an inducement to or reward for or otherwise on account of his performing acts in his capacity as a public servant, namely providing the said Philip Chu Hak-lan with copies of a document known as the 'Passports of Convenience List', being confidential information of the Immigration Department on the grading by that Department on passports issued by various countries."

5.In the ten other charges on which he was convicted, brought under section 4(2)(c) of the Prevention of Bribery Ordinance, Cap. 201, the Applicant was said to have accepted advantages from the various people named in those charges as an inducement to or reward for, or otherwise on account of his performing an act in his capacity as an immigration officer. In essence, therefore, the money received by the Applicant and accepted in each case as an advantage, was alleged either to have been for providing confidential information of the Immigration Department or for assisting people to enter and remain in Hong Kong.

6.The case for the prosecution relied to a very large extent on PW2's evidence. PW2 pleaded guilty to two charges of conspiracy in May 1999 and he was serving his sentence when he gave evidence against the Applicant in July 2000.

7.The general flavour of some of the evidence given by PW2 was summarised in these words taken from the Reasons for Verdict:

"(PW2) admitted that he started indulging in corrupt activities in early 1990, namely buying and selling false passports to mainland Chinese residents, and activities related to that. He told the defendant about these corrupt activities, he said, and also told him that he (Philip Chu) needed information in relation to current immigration policies and practices to assist him in his business of buying and selling false passports. For example, he needed to know which countries were listed on the so-called black list or passports of convenience list, which comprised countries whose passports were more commonly bought and sold illegally than those of other countries, and holders of those passports would therefore be subjected to much closer scrutiny by the Immigration Department. So if PW2, Philip Chu, knew which passports were on this list, he said that he would advise his clients against buying passports of those countries because of the potential problems that might (be caused to) them." (Appeal bundle p. 17)

8.The Applicant allegedly agreed to assist PW2 by providing the sort of information he needed. Sometimes, he assisted those with illegally obtained passports to pass through immigration at the Macau Ferry checkpoint where the Applicant was working. In summary, the judge broadly described this aspect of the Applicant's involvement in the following way:

"Philip Chu (PW2) also asked the defendant to assist him by assisting his clients who had obtained .... illegal passports to pass through the immigration checkpoint to enter Hong Kong. The defendant agreed to provide that assistance.... Philip Chu (PW2) would arrange with the client when and where he would present himself for entry to Hong Kong, and then he would give all the relevant details to the defendant, namely, the personal particulars, passport details and date, place and time of entry. The defendant undertook to assist these persons to pass through immigration procedures and he did in fact do so, according to PW2, in relation to each of the persons particularised in the charges, and each time he was paid for the assistance he thus rendered." (Appeal bundle p. 18)

9.The Applicant's grounds of appeal do not challenge the fact that if PW2's evidence was accepted, this would have proved all the essential ingredients in each of the charges. The Applicant appears to avoid that point altogether. What he was saying, in rather bold terms, was that no evidence was produced at trial which showed that he did anything unlawful. This, of course, is a statement which standing by itself is nonsense because PW2's evidence clearly did establish, if it was believed, that the Applicant had engaged in the criminal activities described in the charges. The Applicant, however, was in reality attacking the judge's conclusion that PW2's evidence could be accepted as credible. His point was that there was so much which tainted PW2's evidence that it simply could not be believed.

10.The judge specifically found that the eleven charges on which he convicted had been proved as to each material ingredient. There were, however, technical grounds for acquitting on charge 2. On charge 11 the judge recorded a verdict of not guilty for the somewhat obscure reason that, although he believed PW2 and found Chu Yang-ming (PW1) to be a witness who was "evasive" and "not telling the truth in many respects", nevertheless PW1's evidence raised a doubt in his mind. It is very difficult to follow how the judge reached that conclusion, but we should say that, leaving aside this example altogether where the judge appears to have leant over backwards to be scrupulously fair to the Applicant, there is no basis whatever for suggesting bias on the part of the judge. On the contrary, he appears from the Reasons for Verdict to have concentrated on the detail in the case with a view to exercising a great deal of caution before proceeding to convict on PW2's evidence.

11.The judge was fully conversant with the potential dangers of relying on PW2's evidence. He set this out in the following terms:

".... Philip Chu (PW2) is clearly an accomplice in all these matters alleged against the defendant. And while it is no longer necessary for an accomplice's evidence to be corroborated, it is necessary to approach the evidence of such an accomplice with very considerable caution. He gave evidence under immunity from prosecution, and I note that the matters that he deposed to in relation to his corrupt activities would render him liable to prosecution if it were not for that immunity which he had been granted.

I note that the offences to which he pleaded guilty in the District Court were different from the offences which he disclosed in his evidence. He has lodged an appeal against the sentences which were imposed upon him, and he frankly admitted, when he was asked, that he was hoping for 'a bit of a benefit', as he put it, as a result of his giving evidence in this case, by way of a reduction in the sentences which were imposed upon him.

The danger inherent in the evidence of an accomplice such as Philip Chu, is that he may well fabricate his evidence against the defendant, or at least exaggerate the part played by the defendant, in order to minimise his own role in the events which he testified to. I do note in this connection that he was granted his immunity on 3 March this year, namely, about 10 months after he first gave a witness statement in which he implicated the defendant in these matters.

I note further that while some of the facts that he deposed to were confirmed by an objective source, namely, by the immigration records, the involvement of the defendant in these matters depends purely upon the credibility of Philip Chu, and I have also kept in mind in assessing Philip Chu's evidence that the defendant has a clear record and is thereby, by that token, less likely to have committed any of these offences than a person who had a record." (Appeal Bundle pp. 22S-23Q)

12.The judge then gave his assessment of PW2 as someone who had shown "no hint of any fabrication or exaggeration", who had impressed him as "a witness who had decided to make a clean breast of all the matters in which he was involved" with the Applicant.

13.The Applicant himself did not give evidence at his trial. In his fresh grounds of appeal (at page 12 in the translated version) the Applicant stated that this was because he did not want to waste the court's time. The evidence of his involvement in these offences was effectively, therefore, all one way with nothing to contradict it save for such questions as defence counsel asked in cross-examination. Judging by the overview taken by the judge of PW2's evidence, these had little or no impact on PW2's credibility.

14.The fresh grounds of appeal seek, in several ways, to argue the case all over again. We do not, however, have the advantage of assessing the witnesses and the Applicant is of sufficient intelligence to know that this is not a re-trial.

15.The Applicant did make one point with which we should deal in his most recent appeal grounds (at page 6 of the translated copy), where he said that the judge had described him as "a senior immigration officer posted at the Macau Ferry Terminal". The Applicant was attempting to demonstrate that a more senior officer to himself was responsible for allocating his workload. However, it is apparent that the judge was under no misapprehension as to the Applicant's status. He was, as the judge had said, a senior immigration officer. Earlier in the Reasons for Verdict, the judge had spelt out what he meant by that term by saying that the Applicant worked as a "channel supervisor".

16.There is nothing of any substance in this application and it is dismissed.

17.It has been an application devoid of all merit and we shall order that three months of the time the Applicant has spent in custody shall not count towards the sentence he is serving.

Representation:

Mr Kevin P. Zervos, SADPP, of the Department of Justice, for the Respondent.

Applicant in person.