Choi Kit-kau v. The Queen

CACC000333/1980

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Coram: Roberts, C.J.

Date of Judgment: 20th June, 1980.

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JUDGMENT

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Introduction

1. CHOI Kit-kau, a Sergeant serving in the Royal Hong Kong Police Force, appealed against his conviction of two offences against section 3 of the Prevention of Bribery Ordinance.

2. Through his counsel, at the outset of the hearing of the appeal, he withdrew his appeal against sentence.

3. The first charge alleged that he accepted an advantage, namely the sum of $100, from CHAN Ching-chung on the 24th November, 1979; the second that he solicited this sum from CHAN on the same date.

Summary of facts

4. According to the evidence of TANG Ping-piu (P.W. 2), a foreman employed by a construction company on a site in Connaught Road West, the defendant approached him on 18th November, 1979 and asked him for "tea money" - that is to say for a bribe.

5. Tang told the defendant that he would pass on the message to his superiors and asked him how such he wanted. To this the defendant replied "$100 per month".

6. On 20th November, Tang informed his supervisor, CHAN Ching-chung (P.W. 3) of the conversation between himself and the defendant. CHAN reported the matter to his superior, LO Siu-to (P.W. 5). The latter informed the I.C.A.C. on the 21st November.

7. On the 23rd November, P.W. 2 and P.W. 3 went to the construction site, where they met the defendant, who was in uniform.

8. P.W. 3 gave evidence that the defendant asked him "Mr. Supervisor, have you made up your mind?" P.W. 3 replied that his employers wanted to have a meeting about it and asked the defendant to return the following morning.

9. The following morning, P.W. 3 went to the I.C.A.C. offices, where he was given a small tape-recorder and taught how to use it. He was also handed a $100 note which had been treated with special chemical dye.

10. Later that morning, P.W. 3 went to the construction site, where the defendant was waiting. He switched on the tape-recorder, which recorded the conversation which took place between himself and the defendant. The meeting between them was witnessed by I.C.A.C. officers, who followed the defendant when he left the construction site and arrested him in Western Market. The marked $100 note was found in his possession and traces of the dye with which it had been treated were identified on his clothing.

11. One of the arresting I.C.A.C. officers asked the defendant where he got the note from. The defendant replied "It was given to me by a friend." When asked "What friend?", he answered "Surnamed Chan in a site near Western Market". This was the only explanation ever given by the defendant, who made no statement, gave no evidence at his trial and called no witnesses.

History of the tape

12. HO Chi-ho (P.W. S), an I.C.A.C. officer, gave evidence that he removed the tape-recorder, containing the tape, from P.W. 3 at the site office shortly after the arrest of the defendant.

13. He handed the tape to TSO Wai-young (P.W. 6) another I.C.A.C. officer.

14. P.W. 6 made a copy of the tape for transcription and certified translation. He kept the original in his custody, until he handed it to Mr. Moyce on 24th November about mid-day. P.W. 6 stated that the tape remained in Mr. Moyce's safe until he recovered it and brought it to court. Mr. Moyce was not himself called to give evidence to this effect.

15. Before the trial, the tape was transcribed into Chinese; this transcript was put in evidence as Exhibit P.5. A translation of the transcript, properly certified by a court translator, was produced in evidence as Exhibit P.5A. The original tape was produced as Exhibit P.3 and the copy tape as Exhibit P.4.

Main grounds of appeal

16. There were two main grounds of appeal-

Admissibility of evidence of P.W. 2

17. It was objected that the evidence of P.W. 2 that on 18th November, six days before the date of the two offences of which the defendant was convicted, the defendant asked him for "tea money", was wrongly admitted, since it had no probative value and was highly prejudicial.

18. Counsel for the defendant submitted that the Crown evidence should have started at the point at which P.W. 3 was provided with a tape-recorder by the I.C.A.C. on the morning of the 24th November and that nothing which had gone before should have been put in evidence.

19. The evidence of P.W. 2, if believed, establishes the commission by the defendant on 18th November of a further offence of soliciting, with which he was not charged. Does this, of itself mean that such evidence was wrongly admitted?

20. The general principle is that evidence of misconduct by a defendant on other occasions must not be given, unless it goes beyond showing a general disposition for wrong-doing and has probative value in relation to the charge before the court, due regard being had to the other evidence and to any defence which might be expected to call for rebuttal.

21. One of the established exceptions to the general principle is the admission of evidence of misconduct by a defendant when this is an incident in the transaction under investigation. This is surely sensible, since no disputed event occurs in isolation. A fact in issue should be proved in its proper setting, with evidence of such accompanying circumstances as are necessary for this purpose. If such evidence is so connected with the fact in issue as to be of real value in determining the latter's existence, that evidence will be admissible.

22. Thus many incidents, though not strictly constituting a fact in issue, may be regarded as forming part of it in the sense that they tend to explain the main fact.

23. The conversation between P.W. 2 and the defendant seems to me to be such an incident and to have probative value in relation to the charges. It establishes how the defendant made his first demand for corrupt money from an employee of the construction firm. It explains how this employee came to discuss the matter with his superior (P.W. 3), why P.W. 3 and his superior went to the I.C.A.C. and why the tape recorder was given to P.W. 3. Further, the defendant was seeking to extract money from the construction company. He addressed his demand first to P.W. 2 and later to P.W. 3. Both demands were surely part of the same transaction. For these reasons, I hold that the earlier conversation was clearly admissible.

24. It may well be that it would, in addition, have been admissible in rebuttal of the defence (had this been raised by the defendant as the line of cross-examination suggested it might be), that the payment of the $100 note related to a betting transaction.

Admissibility of tape-recording

25. It is firmly established that a tape-recording is receivable in evidence provided that it satisfies the appropriate rules which govern admissibility.

26. Nor is there any doubt that a transcript of a tape-recording is admissible, by virtue of section 29A of the Evidence Ordinance, as is a document containing a translation of a document which has been admitted in evidence, by virtue of section 27 of that Ordinance.

27. These sections provide that, if the appropriate formalities are fulfilled (and there is no suggestion that they were not in this case) the documents are presumed to be an accurate transcript of the tape-recording in its original language and an accurate translation of the other document, as the case may be. Each such document is to be admitted in evidence, upon its production, without further proof.

Production of tapes

28. The procedure adopted at the trial was for the tape-recording to be played in court while P.W. 3, the witness who had carried the recorder, listened to the tape and confirmed the various portions, as they were played, as according with his recollection.

29. Although the recording contained other noises, P.W. 3 said that he was able to decipher various portions of it. So, of course, was the transcriber.

Main grounds of objection to admission of tape-recording

30. The main grounds can be summarized as follows-

(a) Should P.W. 3 have been required to give his version of the conversation before listening to the tape or referring to the transcript of it?

31. I have not been able to find any clear statement of the procedure which should be adopted. I hope, therefore, that what follows may be of assistance to magistrates before whom it is sought to introduce evidence based upon tape recordings.

32. If, on the face of it, there is nothing improper in the manner or circumstances of the making of a recording, the magistrate should call for and examine the transcript.

33. Before permitting the tape to be played, the magistrate should consider the transcript and decide whether the evidence contained in it would be admissible on general principles. He must also decide whether, in the exercise of his discretion, he should exclude it although it is strictly admissible - e.g. if the prejudicial effect of the material would greatly outweigh its evidential value.

34. If the magistrate rules that the tape-recording is admissible, it should be played, in order that the witness who is to identify the voices thereon may do so. That witness may, in carrying out this task, be permitted to refer to the transcript and to confirm that it appears to represent what transpired on the recorded occasion.

35. Assuming the tape to be genuine, what the tape records is what occurred; and by section 29A the transcription is presumed to be an accurate representation in words of the tape.

36. If the witness's memory is at variance with the tape, this establishes only that the witness's memory is frail, not that the conversation was inaccurately recorded.

37. If, however, it is alleged that the tape has been tampered with, it would be proper to require the witness to give his recollection of the recorded conversation before the tape is played or he is allowed to refer to the transcript. Otherwise, this is not necessary.

(b) As has been mentioned above, a copy was made of the original tape.

38. There is nothing wrong in such a practice. Indeed, it is good sense to make a copy of a tape for use by the transcriber and, where this is appropriate, by the translator. This reduces the risk of damage to the original recording and the opportunities for tampering with it.

39. If the person having custody of the original recording states that a copy of it was made and given to the transcriber, and the latter prepares a transcript from the copy, this is adequate evidence that the transcript represents what appears on the original as well as on the copy.

40. The basis for this ground of appeal was that the best evidence rule requires that an original piece of evidence be produced, or its absence accounted for. In this instance, both the original and the copy were produced in evidence. Thus, although the record merely says "tape played", whether saying whether this was the copy or the original, the original was accounted for; it was there. In any event, it is likely that the original would have been played, since it was available. However, I do not think that it matters, because there is nothing to suggest that the copy differed in any way from the original.

(c) It was argued that the magistrate failed to identify which parts of the tape played were audible and decipherable.

41. By virtue of section 29A of the Evidence Ordinance, the functions of the magistrate are in a sense inevitably usurped by the transcriber, if the latter is operating in a language unknown to the magistrate.

42. By producing a transcript of the tape, in its Chinese form, the transcriber must have found those parts of the tape to be audible and decipherable.

43. The magistrate states in his statement of findings that he was satisfied that the transcript was a true record. This conclusion must necessarily include a finding that the words in the transcript were intelligible words derived from the tape. Nor was this challenged by the defence at the trial.

(d) Was the tape satisfactorily proved?

44. The conditions which must be satisfied before a tape is produced in evidence were considered in R. v. Robson and Harris⁽¹⁾ .

45. Shaw, J. was of the view that it was necessary for the court to be satisfied, on the balance of probabilities, that the recording was authentic, by evidence of the history of the recording up to its production in court.

46. The best method of proving that a tape recording produced in court is authentic is to show that it has been, since the time it was recorded, continuously in the custody of persons who assert that it was not tampered with. This is a course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not.

47. In this instance the tape was, for an unspecified period, said to be in the custody of Mr. Moyce. In theory, it could have been tampered with during that time. In practice, in this case, it is highly unlikely, if the evidence of P.W. 6 is accepted, namely that a copy of the original tape was taken for translation purposes before the original was placed in Mr. Moyce's custody. Once the copy had been taken for transcription, it would have been too late for alterations to be made to the original with any hope of deceiving the court.

48. In any event, it was never suggested by the defence that the original tape was other than a genuine one. I am satisfied that there was sufficient evidence on which the magistrate could decide that the tape was genuine and had been satisfactorily proved.

49. I conclude, therefore, that there was no wrong admission of evidence, even though in some minor respects the procedure which I have outlined was not followed.

50. The appellant does not argue that, if the tape-recording was properly admitted, the conviction should nevertheless be upset. Indeed, once it is in evidence, the case against the accused was overwhelming. I am certainly left in no doubt that he was properly convicted. The appeal is dismissed.

Representation:

A. Huggins (Hampton, Winter & Glynn) for the appellant

Ryan for the Crown/Respondent

(1) 1972 2 All E.R. 699