The Queen v. Chu Ip Pui

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Coram: Mortimer, Liu and Mayo JJA in Court

Date of Judgment: 19 March 1997

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 22 July 1996 the applicant was convicted by Her Honour Judge H.C. Wong of conspiring with three others to offer a bribe to Yu Ka-foo, a Chief Health Inspector for the Urban Services Department contrary to s.4(10(b) of the Prevention of Bribery Ordinance (Cap 201) in order that he should expedite restaurant licences. The charge was laid between 1 October 1994 and 28 September 1995. The other conspirators were Mak, a friend of the applicant who worked with Sun Hung Kei Properties and Chiang, a restaurant owner.

The facts

2. The applicant was employed by Paliburg the manager of the basement of Kowloon Plaza. That basement was let to a number of fast-food shops with a central dining area. Under the arrangement Paliburg had to obtain a restaurant licence and the food ships had to operate restaurants. Failing the licence being obtained by a certain date the food shops could avoid the lease.

3. It was common ground that the applicant - whose duty it was to obtain the licence - had great difficulty in doing so. "Food Court", as the area was known, was open for business in October 1993. It was not until September 1995 that the licence was obtained. In the meantime prosecutions had been brought for operating without the appropriate licence. Heavy fines had been imposed amounting to some $230,000. It was in these circumstances that the applicant sought help from his friend Mak who introduced him to the restaurant owner Chiang. Discussions took place as to what should be done.

The cases for prosecution and defence

4. The prosecution case was that there was discussion about approaching Yu, the conspirator who was the Chief Health Inspector and out of that the conspiracy arose. Yu was approached. He wanted Chiang to act as middle-man and he specified $250,000 for the applicant to get what was described as an "early ticket". According to the prosecution - in particular Mak - the applicant bargained down that sum to $204,000 but Yu wanted $100,000 "up front".

5. There was the difficulty of how the money from the applicant's employer was to be obtained and accounted for. So, according to the evidence which emerged at trial from the cross-examination of Mak - he arranged for two companies, one after the other, to be appointed as consultants to the applicant's employer in respect of the licence application. Documents demonstrating the agreements, followed by invoices for the money and then cheques made out by the applicant's employer were also produced at court.

6. It was accepted on all sides that these arrangements with those two companies were shams. They were never intended to offer consultancy services. They were simply means of getting money out of Paliburg, accounting for it and transferring it to someone else.

7. The issue, identified by the judge, was to whom was it agreed by these parties that the money was to be transferred. The case turned therefore chiefly on the evidence of Mak, to a lesser extent Chiang (both of whom where accomplices) and the evidence of the applicant. In brief, Mak's evidence was that he and Chiang and the applicant agreed with Yu to offer Yu a bribe to get the necessary licence, using the false consultancy companies as the conduit for the money

8. The applicant's evidence was that that was not the arrangement at all No corrupt payments were made. The payments were made through the companies who were falsely said to have been giving services but the payments were to Mak personally for his services as a consultant and were not corrupt.

9. Mak's position as an accomplice is central to the case. This application turns chiefly on the judge's approach to and her assessment of Mak's evidence. Undoubtedly it was crucial.

The applicant's main points

10. For the applicant, Mr Plowman QC and Mr Harris take two main points. The first is that the judge's reasons for accepting Mak's evidence were flawed because she relied upon documents as corroboration of his evidence. That is corroboration in the technical sense. Whereas it was common ground both at trial and before this Court that those documents did not amount to corroboration in the legal sense. Secondly, that in any event the Judge's assessment that the documents supported the Crown case was wrong. Either they supported the applicant's case or at most were neutral. The passage in the reasons for conviction relied upon is at 25Q to 26C where the judge said:

"I have warned myself of the danger of relying on the evidence of two accomplices to the conspiracy, but I find the documents produced by the defence, namely the two appointment letters and the invoices and the three cheques issued by the 6th defendant on behalf of his employers, to corroborate the evidence of the two accomplices."

If the judge was relying upon the documents as corroboration in the strict sense, then this appeal must be allowed.

11. The first issue for our consideration therefore is whether the judge used "corroboration" in that sense or whether she was using the documentary evidence as circumstantial support for the accomplices' evidence. We will turn to this issue but first we address the law.

The new approach to accomplice evidence

12. The rule that a judge has to warn himself or herself that it is dangerous to convict on the evidence of an accomplice unless that evidence is corroborated has gone. It was abolished by s.60 of the Criminal Procedure Ordinance (Cap 221). Of this, the judge was well aware. Counsel had reminded her and it is clear from her reasons for verdict. Also counsel for the Crown had plainly told the judge that there was no evidence in the case which could amount to corroboration in the strict legal sense. The background is therefore - and it is borne out by the absence in the reasons for verdict of any reference to the old warning - that it was of no concern to the judge whether the documentary evidence did amount to corroboration. Nor did it fall to her to decide as to whether that evidence could amount to corroboration in its strict sense. We venture to suggest that the purpose of the abrogation of the old rule by s.60 of the Criminal Procedure Ordinance is to free the decision-maker of the technical - and mostly judge-made - rules of the common law on corroboration thereby to permit the judge or jury to concentrate upon the weight to be given to accomplices having regard to such supporting evidence or circumstances as may be proved. Accomplices have not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge. It is necessary that such discretion is unfettered so that he can achieve a fair trial. The English Court of Appeal considered this matter in R v Makanjuola [1995] 1 WLR 1348 at 1351D where the former Chief Justice said:

"Given that the requirement of a corroboration direction is abrogated in the terms of section 32(1), we have been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge ought in summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving 'discretionary' warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content."

We accept and respectfully adopt those observations. They apply equally to a judge directing a jury as to a judge sitting alone and directing himself or herself.

13. Mr Plowman has helpful invited the Court to consider a further decision of the present Chief Justice Lord Bingham in R v R (1996) CrimLR 815. He was considering a similar circumstance. Lord Bingham raised the question whether there may be circumstances in which the old warning ought to be given. He said:

"So did this constitute one of those extreme cases where a stronger warning, or even an invitation to look for corroboration should have been given? It was not thought so. It must always be a matter of impression as to 'where a witness stands in the scale of reliability.'"

For our part - whereas no limit can be put upon a judge's discretion - following the abrogation of the rule, it would be most unusual for him to feel obliged to give the old direction. We cannot think of circumstances in which he could be criticised for not giving the old full direction now that the requirement for it has been abolished.

The applicant's submissions considered

14. Against this we return to Mr Plowman's submissions. He submits that the judge must be taken to have meant what she said as these were reserved and considered reasons. He advocates a similar approach by this Court to that taken by the Privy Council to a similar finding in Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279 at 1284.

15. However, Mr DiFazio, for the Crown, submits that in the instant case the context demonstrates that the judge was relying upon the documents as circumstantial support for the accomplices' evidence. She was not using the word "corroborate" in the technical, legal sense. He supports this: first, by pointing to the judge's approach to warning herself noticeably not in the old terms formerly required She said at 20B:

"There is no doubt that they were accomplices in the conspiracy. Their evidence, therefore, must be looked at with much care, and this is particularly so when there are no other witnesses to corroborate their evidence."

It would seem that she was there using the word "corroborate" to mean no more than "support".

16. Later at 23N she refered to the same documentary evidence relied upon by her in the passage at 25Q. She used the word "support". She said:

"Based on the evidence adduced and supported by the documentary evidence produced by the defence."

So far as they go, those submissions are accurate and we accept them but they cannot be completely determinative of this matter. We would add therefore that nowhere did the judge examine or consider the documentary evidence as "corroboration" in the technical sense. She never approached the point. Had she really considered the documents as "corroboration" in that sense, it would have been necessary to analyse the evidence and apply the appropriate legal principles. She did not Nor since the abolition of the rule, is it any part of her task to consider "corroboration" in the strict legal sense.

17. We are satisfied for these reasons that she did not use the word "corroborate" in the technical sense. She clearly meant "circumstantially supported by".

Was it open to the judge to accept the documentary evidence as support for Mak?

18. We turn then to the next issue which was: was it open to the judge to accept this evidence as support for Mak the accomplice's, evidence? As we have already said, Mak's evidence was that he agreed with the applicant, Chiang, and Yu for Yu to be bribed. He admitted playing a crucial part in that conspiracy. He identified and chose the companies who falsely invoiced the applicant's employers and were a conduit for the money. Those arrangements and the documents were all in this sense false. He plainly said he was "corrupt".

19. The applicant said it was done to enable Mak to be paid for his consultancy services without Mak's employers knowing that he was "moonlighting". There was nothing corrupt or criminal in the arrangement. So, the applicant's evidence was that Mak was not corrupt.

20. This was a reversal of the usual circumstance where the accomplice is said to shift blame in whole or in part from himself to another. The accomplice was accepting the blame and the applicant was seeking to relieve him of blame. In these circumstances the documents and the circumstances disclosed by them was evidence which it was open to the judge to accept as support for Mak's evidence rather than the applicant's.

21. The restaurant receipts demonstrate at least - as Mr DiFazio submits - an unhealthy relationship relevant to the licence application between the applicant and Yu.

22. We are unable to accept the above submissions made on behalf of the applicant. In short, it was open to the judge to examine the whole of the evidence - in particular the documents - and conclude that Mak's evidence was supported by them.

The remaining submissions

23. The remaining matters advanced can be dealt with briefly. It is said that the judge failed to assess the credibility of the accomplice witnesses. This is not made out She reviewed the evidence briefly. Its nature was clearly in her mind She was obviously aware of the standing of the accomplices and the way in which they had given evidence and had been cross-examined. She was the hearing and seeing judge who accepted Mak's evidence and rejected that of the applicant. Her reasons for verdict make this clear. The applicant can have been in no doubt of the nature of her decision and the reasons for it. Those reasons were brief for a lengthy case but were adequate.

24. Finally, it is suggested that the judge made two clear errors of fact. The first contention is not made out. The second, which raises the question whether the applicant had asked Chiang to give him a hand or not at one stage is simply not sufficiently material to invalidate the judge's finding.

25. For those reasons we refuse this application and dismiss the appeal.

Representation:

Mr Plowman QC and Mr Graham Harris (Mis Herbert Smith) for Applicant

Mr G. DiFazio (Crown Prosecutor) for Crown/Respondent