Yeung Ka Wa and Another v. The Queen

CACC000513/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 513 OF 1969

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Coram: Rigby, S.P.J., Huggins, J. & Pickering, J.

Date of Judgment: 17 November 1969

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JUDGMENT

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Huggins, J:

1. The notices of appeal indicate that the appellants appeal against their convictions for corruptly soliciting. When the case came before the single judge he said that although the appellants had been charged with four offences under s.3(1) of the Prevention of Corruption Ordinance no conviction had been recorded. Moreover, the evidence appeared to him so thin that he was doubtful whether it would support convictions on the first charge. Finally he observed that the appellants had been sentenced in respect of the first charge only and that if the conviction on that charge were quashed a question would arise concerning the sentences on the other charges. In these circumstances he referred the case to this court and granted the appellants a legal aid certificate.

2. The judges have repeatedly complained of the quality of the notes and of the copies there of placed before them for the purposes of appeal but scant attention has been paid to what they have said. It is enough to refer to two cases. In Reg. v. Sher Bhadur Khan⁽¹⁾ Mr. Justice Reece said:

"The custody and preservation of exhibits apart, the record as submitted to the Registrar is incomplete and it is very unsatisfactory that the judge, whose duty it is to preside over the appeal, should not have had the opportunity of seeing and considering the exhibits in a case, more especially where the exhibits are of vital importance to the case. In this case the record of appeal has been certified as correct and whether or not the magistrate is under any legal obligation to certify the record as being correct, since he had in fact certified it as being correct it seems to me that it is his duty to ensure that the record is complete in every respect and in this instance he has failed to do so."

In Reg. v. Lau Lee⁽²⁾ I said:

"I cannot part with this case without once again commenting on the highly unsatisfactory material upon which this court often has to decide appeals. Several passages in the notes of evidence and even in the judgment make nonsense. Whether the fault lies in the copying or in the original note is really irrelevant but the copies have in fact been certified as true copies. As I have said on other occasions no one appreciates better than I the difficulty inseparable from a situation where a judge or magistrate has to make a long hand note of evidence while at the same time endeavouring to observe the witnesses, assess the weight of the evidence, and consider the legal points involved. For this reason there is no objection to the making of notes in abbreviated form, but it is important that they should be accurate and not be ambiguous. One is given the impression also that those who certify copies of records as true copies sometimes do so without realising that certification of a document is a very responsible task. Even the best of proof readers can overlook the occasional error but all too often there is more than just the occasional error and there is ground for suspecting that many (though certainly not all) of the mistakes in the papers in this case occurred in the copying and were not subsequently corrected."

We desire to say that we regard the accurate presentation to the court of the evidence and of the course of the proceedings as a matter of the greatest importance. The case at Bar is a good example of the waste of time and money and, indeed, of the injustice, which may result from its neglect. The notes themselves leave much to be desired by reason of ambiguities and failure to observe the statutory requirements: for example, there was apparently an objection to the admission of part of the evidence - an admission which was overruled - but the basis of the objection and the reasons for overruling it were not stated. The evidence of the first appellant was interrupted for a police officer to give evidence (presumably on behalf of the defence, as the prosecution case had been closed) but no explanation of this unusual course is recorded other than that the officer had at some unspecified time been on duty. So much for the notes themselves. Counsel assigned for the appellants based a full and careful argument upon the apparent absence of a contemporaneous minute or memorandum of conviction, only to find at the end of it that the learned magistrate had made a minute of conviction but that it had not been copied. Indeed some two whole pages of the magistrate's notes had been completely omitted from the record prepared for the use of this court. The initial blame for this must, of course, be borne by the typist but we note that the copy record has been certified as correct by the learned magistrate himself. His certificate is false. The omission of these pages is not the only error. A further argument on behalf of the appellant was based upon the apparent fact that although the appellants were convicted of soliciting the first charge (the one in respect of which they were sentenced) was one of corruptly receiving and it was conceded that there was no evidence at all of corruptly receiving. The statement of offence in the charge sheet before us is clearly "corruptly receiving" although the particulars were appropriate to a charge of corruptly soliciting. Right at the end of the hearing of the appeal it suddenly came to light that the charge sheet itself had been incorrectly copied and that the charge laid was one of corruptly soliciting. In the result an unnecessary demand has been made upon the legal aid funds, counsel for the appellants has had the trouble and embarrassment of presenting a case built upon sand, the time of three judges has been wasted and justice has been delayed. All this could have been avoided if proper care had been taken in copying and checking the record. We think also that counsel for the Crown, who appeared in the court below, should have recognised at an earlier stage that the court was being misled concerning what had happened before the magistrate.

3. It was argued on behalf of the appellant that there was no evidence to support the finding of soliciting as alleged in Charge A. Evidence was given that the two appellants, who are police officers, hailed a private motor-car, boarded it and indicated that they wished to be driven to Kowloon Hospital. On arrival they tendered a $5 note. The driver refused to take the whole $5 but agreed to accept $1 and gave $4 change. Thereupon the appellants identified themselves and required the driver to accompany them to the police station. The prosecution's version of the conversation which took place was, as recorded by the magistrate, that the first appellant said: "if you don't want to be arrested it can be done let's go to Mongkok" (sic). The driver having then pointed out that he had to go to work added: "don't delay me if I see you again I can treat you to tea" (sic), to which the first appellant replied: "how much do you offer to treat me to tea?". The question is whether when the first appellant, who was accompanied throughout by the second appellant, said: "it can be done" that amounted to a demand for money. We are satisfied that when the driver said: "I can treat you to tea" that was an offer to make a corrupt payment. The enquiry about the amount of the offer was not itself a soliciting. It was the driver who gave the first clear indication of a possible corrupt transaction but it is by no means obvious he was led to make his offer by virtue of the hint of an invitation to make such an offer contained in the words of the first appellant. It is true that the driver was allowed to say in evidence that he had understood the first appellant to be making an invitation to offer to treat him to tea and we are satisfied that an "offer to treat someone to tea" is an offer to pay tea money, which in turn is equivalent to a bribe, but in our view it is not proper for the witness to say what he understood: he may have misunderstood. The question is whether the evidence points irresistably to a corrupt soliciting. Although at one stage I had some doubts upon the point we are now agreed that in all the circumstances it would be unreal to say that the learned magistrate was unjustified in finding that the words "it can be done" were, in the context, intended to convey a soliciting for tea money. He heard the witness describe the conversation and it may well be that the tone of voice in which the relevant passage was spoken left no doubt at all as to its import. We have not had the same advantage and the unpunctuated note is of little help to us. Certainly none of us can conceive of any other rational interpretation which could be placed upon the first appellant's remark.

4. It was further argued that even assuming that the words alleged to have been used justified the inference of a soliciting the learned magistrate ought not to have convicted upon the evidence of the driver because he was obviously a man who was prepared to lie in his own interests. The case for the prosecution was presented on the basis that he was illegally carrying passengers for hire or reward in a private motor-car and that when faced with the possibility of a prosecution for that offence he attacked his accusers in the belief that that was the best form of defence. The learned magistrate was alive to the danger and he expressly referred to the fact that the witness contradicted himself in his evidence. It was for the magistrate to decide whether the witness was telling the truth and although the case was by no means a strong one we are unanimous in concluding that we cannot say it was not open to him to believe the driver's story. Nevertheless he was clearly influenced by the fact that he thought the evidence of the driver was corroborated by Inspector Chu, an officer who followed the car upon suspicion that the driver was committing the offence of carrying passengers for hire or reward in a private motor-car, for he said:

"The evidence of (the driver) is corroborated by Inspector Chu and nowhere does their evidence conflict".

Corroboration was not required in law but if the learned magistrate thought there was corroboration when there was not it may be unsafe to assume that he would have believed the driver without corroboration. It is true that the evidence of the driver and the evidence of Inspector Chu does not conflict, but the learned magistrate did not indicate what he regarded as corroboration. We are unable to find anything in the evidence of the Inspector which implicated the appellants in the commission of the offence charged. Certainly he said that upon his approaching the driver and the appellants the first appellant put his hand on to the shoulder of the driver and said to him: "We are friends ah", whereupon the driver replied: "No, I don't know you". The driver never mentioned such an exchange but it is suggested that, if the driver's statement that he did not know the first appellant was true (as in examination-in-chief the driver said it was), the first appellant was trying to deceive the Inspector. As counsel for the appellants pointed out, however, in cross-examination the driver admitted having told the Inspector that he did know the appellants. Even if this evidence were "corroboration" (which it is not) it is of doubtful weight. The Inspector did not hear any of the conversation between the appellants and the driver. He did give evidence that the first appellant went up to the driver and tried to hand over some coins and the driver said: "It is my money". When the Inspector grabbed at the coins the first appellant put them in his pocket and refused to return them. The driver had not said anything about such an incident but it is legitimate to ask why the first appellant should have tried to pay money to the driver at that stage: the payment of the "fare" had been completed some minutes earlier. There is nothing in the evidence to supply an answer to the question. Had the driver already paid tea money this evidence might indicate an attempt to repay it so as to hide the fact of the original payment, but there is no evidence to suggest that the driver had paid anything.

5. At most it can be said that the Inspector's evidence, as far as it went, was consistent with the driver's evidence but that it contained no corroboration of soliciting. I said that it might be unsafe to rely upon such findings as were based upon the evidence of the driver if the corroboration thought by the learned magistrate to exist was not there. It is by no means certain that he would have believed the driver had the driver's evidence stood alone and had the magistrate not misdirected himself as to the existence of corroboration. Accordingly we are of opinion that it would be unsafe for the convictions on Charge A to stand. Those convictions must be quashed.

6. Charges B and C relate to offences alleged to have been committed four months before that alleged in Charge A. Charge B is one of corruptly soliciting and Charge C one of corruptly receiving, both from the same person and on the same occasion. The defence was an alibi. The evidence was that one Chan Pat was travelling from Choi Hung Estate to To Kwa Wan when ho was stopped by the appellants "at the traffic lights near the airport". There was then clear evidence which, if believed (as it was), amply justified convictions on both charges. The argument has turned upon the time at which the offences were said to have been committed. Chan Pak said: "At 3 p.m. on 8th or 9th December I was driving my car from Choi Hung Estate ...... . On arriving at the traffic lights ......". The appellants' superior officer testified that on 8th December both appellants were on duty from 8 a.m. to 4 p.m. On 9th December the first appellant was on duty between the same hours but the second appellant was on leave. Whether they actually performed the duties assigned to them, between those hours or at all, he was unable to say: it was possible but unlikely that a constable might come off duty a quarter of an hour early and while "it should not be possible" for men to swop duties he had known them to be on the wrong beat. The case for the defence was that if the appellants were on duty until 4 p.m. they could not have committed an offence at the place alleged at the time when, according to Chan Pat, he would have been there: the allegations were wholly false and were prompted by spite arising from a previous incident when the first appellant had required Chan Pat to move his car. The onus was on the prosecution to prove the commission of the offences and the question is whether it was reasonable for the learned magistrate to say that the burden had been discharged in the face of the evidence tending to support the alibi. The learned magistrate somewhat surprisingly said that the evidence on this, as on all the charges, was "overwhelming". He was apparently not so convinced that Chan Pat was telling the truth that he was prepared to disbelieve the alibi but rather approached his conclusion by saying that there was not strictly an alibi at all. On the evidence as it stood we do not think that was a proper approach and although if the learned magistrate had dealt with the case differently we might not have been able to interfere we think it is unsafe to allow the convictions on these two charges to stand.

7. On Charge D the second appellant appears to have been acquitted, although the learned magistrate somewhat inaccurately referred to its having been "struck out" against him. Here again the defence of the first appellant was an alibi. Yau Fei told a story very similar to that told by the driver in relation to Charge A. He said that "on 11/12 January" (which, we are told, means the 11th or 12th January) at 4 p.m. after he had driven the first appellant and another man to a destination indicated by them the first appellant asked "how much?", to which he replied: "it is up to you". The first appellant said "don't say that" and handed him a $5 note. He gave $3.50 change. Thereupon the first appellant identified himself and the following conversation ensued:

After a few further exchanges Yau, on the first appellant's instructions, drove the two men to Playground Road near Mongkok Police Station, where the second man alighted. Yau asked, for the second time, for a chance and said he "would stand them tea". The second man returned and said the Commissioner was at the police station and that if "it" was reported Yau would lose his licence. That is all the evidence directly related to the charge but Yau Fei described a "quarrel" at about 4.45 p.m. between Chan Pat and the first appellant, during which, he says, Chan Hon came up and said he knew the first appellant was a policeman. Chan Pat gave evidence of an almost identical incident, which according to him occurred "about one week later" than the incident leading to Charge A on 8th or 9th December, i.e. a month carlier. Chan Hon recalled the quarrel at the same place as that indicated by Yau Fei but taking place "before 4 p.m." "in early January about the 2nd or 3rd". In re-examination he put the time at 3.35 to 3.40 by "the clock". Yau Fei said the day in question was not a Sunday and as 12th January was a Sunday that would appear to tie him down to 11th January. On 11th January the first appellant was, again, on duty from 8 a.m. to 4 p.m. The learned magistrate appears to have assumed that all three witnesses were talking about the same occasion despite the dates given and he swept aside the discrepancies as to the time in these words:

"I am satisfied however that both Chan Pat and Chan Man have given only a very approximate time despite the latter's contention that he looked at the clock before coming out".

(It is to be assumed that by Chan Man he meant Chan Hon). What led him to be so satisfied is not indicated and we think the evidence far from "overwhelming", although we are disposed to agree that the words alleged to have been spoken by the first appellant could in all the circumstances be construed as a soliciting. It is emphasized by counsel for this appellant that no report was made of the alleged soliciting for some three months after the date first given by Yau Fei. In cross-examination Yau was hesitant about the date of the incident and finally agreed it was "about 10 days after 7th February", nearly a month later than the date charged. Again we think that it is unsafe to allow the conviction to stand.

8. The appeals must be allowed and the convictions quashed.

9. As we are allowing the appeal and quashing the convictions no question arises upon the sentences. However, we mention yet once again that it is incorrect to "take into consideration" offences in respect of which a substantive charge has been laid.

17th November, 1969.

(1) 1961 H.K.L.R. 357, 363.

(2) 1963 H.K.L.R. 665, 672.