Yuen Ka Keung v. The Queen

CACC000545/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 545 OF 1969

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Coram: Full Court (Scholes & Briggs, JJ.)

Date of Judgment: 2 December 1969

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JUDGMENT

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1. On the 20th November last at the conclusion of the hearing of the appeal we quashed the conviction and sentence and acquitted the appellant and said that we would give our reasons for our decision later, which we now do.

2. In this appeal the appellant was charged with corruptly offering a sum of money to an Inspector of Police named Yip Kwok Keung, contrary to section 3(2) of the Prevention of Corruption Ordinance. The particulars of the offence are that the appellant offered an indefinite sum of money between two and three thousand dollars as an inducement to Inspector Yip to assist one Tong Chuen who had been charged with an offence and was in police custody. The appellant was convicted and sentenced to two years' imprisonment on July 10th 1969. He has appealed against his conviction and sentence.

3. It will be necessary to set out the facts of the case in some detail.

4. On April 19th 1969 a man named Tong Chuen together with two other men was arrested as a result of a police raid which was led by Inspector Yip Kwok Keung. Later Tong Chuen was charged with manufacturing dangerous drugs under the Dangerous Drugs Ordinance.

5. On the afternoon of the 28th of April. Inspector Yip found a note on his desk in the Mongkok Police Station signed by Inspector Yuen Ka Keung asking Inspector Yip to telephone to him. Inspector Yuen Ka Keung is the appellant in this case.

6. Inspector Yip telephoned the appellant and it was agreed that they would meet at the former's office at 11 p.m. that night. They met at that time in the Mongkok Police Station and a conversation was held between the two Inspectors. Two other men, who came with the appellant and who were apparently friends of the man, Tong Chuen, were present for at least part of the time.

7. Inspector Yip told the court that the appellant said that Tong Chuen was an old man and one of his father's friends. He said he considered him innocent of the charge preferred against him and he wished to secure the assistance of Inspector Yip in order to assist him. In particular he asked Inspector Yip to arrange bail for him. He also said that the two men also asked him to assist Tong Chuen. The two men then left leaving the appellant with Inspector Yip.

8. At that time the appellant had 19 years service with the police. He was an Inspector and senior to Inspector Yip who had less than three years service. The Divisional Detective Inspector of the area was one Mr. Whitley. The appellant told Inspector Yip not to let Mr. Whitely know that he had come to his office on this occasion.

9. Inspector Yip said that after the two men had gone the appellant repeated his request for assistance for Tong Chuen. He then left stating that he would telephone to him between 8 and 9 p.m. on the following day.

10. Inspector Yip thought that the request of the appellant was suspicious and so reported the matter to Mr. Whitley on the following morning, the 29th April. It was arranged that if the appellant telephoned, the conversation would be recorded and at the same time a recording apparatus was installed in Inspector Yip's office so that if and when the appellant arrived, any conversation which took place could be recorded.

11. As a result of a telephone call made by the appellant on the 29th April he came to Inspector Yip's office at about 9.25 p.m. that evening. Inspector Yip switched on the tape recorder which was concealed in the room and the conversation between the two men was recorded.

12. The conversation was in Chinese except for a few words in English and the tape was put in as an exhibit and played over more than once at the trial. It was transcribed in Chinese and then translated into English. The transcript with translation, a document of 17 pages, was also exhibited to the court. A witness for the prosecution gave evidence of how he had transcribed the conversation: when he came to a word or a passage which he could not hear he just missed it out. This is shown in the transcript as a series of dots and there is not a page on which this does not occur. It is obvious from this that the transcript is not a complete version of the whole conversation.

13. Inspector Yip gave evidence and summarised the conversation he had with the appellant. Briefly he said that the appellant offered him two to three thousand dollars to fix up the case of Tong Chuen: that Inspector Yip should square Mr. Whitley and that he, the appellant, would collect the money for this.

14. In convicting the appellant the trial judge stated that he considered the transcript of the tape recording to be a vital piece of evidence because it corroborated the account of the conversation given in evidence by Inspector Yip.

15. Several grounds of appeal were filed but we only propose to deal with one of them: that is that the tape recording the transcript and its translation should not have been admitted into evidence because it was never established which words were uttered by the appellant and which by Inspector Yip.

16. What happened in court was this:- Mr. Whitley gave evidence of how the tape recorder was placed in Inspector Yip's office. He also said that he and Inspector Yip agreed that the Inspector should call out for a cup of coffee as soon as any suggestion of a corrupt offer was made.

17. As has been said Inspector Yip gave in evidence his version of the conversation. He ended this part of his examination-in-chief with a description of his giving the prearranged signal to Mr. Whitley. Then the tape recording was played over twice in court in his presence and in the presence of the appellant. The trial judge records this, and then his notes read as follows:-

18. In cross-examination Inspector Yip was asked many questions about the conversation. He identified one sentence in the transcript as being his and one as being that of the appellant. He also said that the appellant had used the word "shui" or money.

19. While listening to the playing of the tape recording the witness did not attribute the various remarks as being the remarks of the appellant or of himself. He did not indicate who was the speaker of the various remarks forming the conversation, he did not say who said what.

20. The appellant gave evidence and said that the gist of the tape recorded conversation was about bailing Tong Chuen and he denied that he had made any corrupt offer to Inspector Yip.

21. He specifically mentioned that one sentence appearing in the transcript had been said by Inspector Yip and agreed that another remark was made by himself. In addition he said that he had mentioned money but in connexion with bail only.

22. Certain other portions of the transcript were put to him in cross-examination but he denied that they were his words. Finally the tape recording was played over again in court and the appellant was asked if he could hear his own voice. The appellant said that this was impossible and added that it was difficult to say whether certain consecutive sentences were uttered by one person or not.

23. The individual sentences referred to above do not help to corroborate the evidence of Inspector Yip in any material particular or with any certainty.

24. It was not in dispute in the court below that a tape recording is admissible in evidence. The leading case is R. v. Maqsud Ali⁽¹⁾. This was followed in a decision of the Full Court - Liu Kwok Wah & Others v. R.⁽²⁾. This case has not found its way into the Hong Kong Law Reports, an omission which we think should be rectified.

25. In that case the court said:-

26. In Liu Kwok Wah & Others v. R.⁽²⁾ the appellants were convicted of the offence of conspiracy contrary to the Common Law. Certain conversations between the appellants and the chief prosecution witness were tape recorded and the recordings were admitted in evidence. The conversations were almost entirely in English. The voices of the persons participating were identified in court by the chief prosecution witness who was one of the persons taking part in the conversations.

27. This witness first gave his version of the conversations from his recollection and then the tape recordings were played in the court. A transcript of the tapes had been made and was before the court.

28. Originally this transcript indicated who was speaking. However the trial judge ordered these indications to be deleted. When the tapes were played to the witness the judge had a copy of the transcript in front of him. The witness identified the various speakers of each phrase or sentence as the tapes were played, and the judge marked the appropriate portion of the transcript with the initial of the names called out by the witness. The witness did not himself have a copy of the transcript while this was being done.

29. In this way the individual remarks forming the conversation were each attributed to an individual speaker.

30. A similar procedure was not adopted in the present case. Apart from some isolated sentences of no great importance, the speakers of the individual sentences in the conversation were not identified. It is difficult to understand why the admirable practice adopted in Liu's case⁽²⁾ was not followed here. Although there were as many as four participants in some of the conversations taped in the Liu case⁽²⁾ English was spoken throughout with the exception of a few Chinese phrases. In the present case the conversations were in Chinese but even then we think that it would have been perfectly possible for Inspector Yip to have told the court which statements were his and which were made by the appellant.

31. Crown counsel contended that a tape recording of a conversation is admissible in evidence provided that the voices of the parties to the conversation are identified, which of course was done in this case by Inspector Yip. He said that it was not necessary to prove who it was who actually spoke each sentence before a record of a conversation could be put in evidence. In support of this we were referred to R. v. Maqsud Ali and Ashiq Hussain⁽¹⁾. In that case the two appellants, who were Pakistani were left in a certain room where unknown to them a tape recorder had been switched on. They conversed with each other in their own dialect and this was recorded. This was later transcribed and translated into Urdu and later into English. When the tape recording was played over to the appellants, one of them, Maqsud Ali, denied that it was the voices of himself and his co-appellant. However the other appellant, Ashiq Hussain, identified both his own voice and that of Maqsud Ali. It does not appear from any of the three reports of this case which we have consulted that the individual parts of the conversation were identified as having been made by one or other of the appellants, but it was not necessary in that case because it appears from the reports that the conversation was of a confessional nature and that both appellants were implicated in the conversation.

32. Marshall J. who read the judgment of the court made this very clear. He said at (1965) 2 A.E.R. page 466 (letter F):-

And later on at page 471 (letter A) he is reported as saying:-

And there are similar passages in the report in (1965) 2 Q.B.D. 681.

33. It will be seen at once that the Maqsud Ali's case⁽¹⁾ can be distinguished on its facts from the present case. In that case there were admissions made by both the appellants respecting a crime committed by the two appellants. The recording showed that both of the voices recorded made statements of a confessional nature and it was in evidence whose those two voices were. The facts of the present case are quite different. In the present case the court would want to know which of the parties to the conversation made the corrupt offer, if such an offer was made, in order to determine whether or not to convict. It is not enough merely to say that the conversation was between Inspector Yip and the appellant. One of the two voices is said to have made a corrupt offer but it does not appear from the evidence whose voice this was.

34. We agree with Crown Counsel that, so soon as the voices on a proved tape recording of a conversation are identified, that recording is admissible in evidence if relevant and otherwise admissible. Then the question becomes one of what weight should be given to such evidence.

35. The court has of course a discretion whether or not to admit evidence where that evidence though admissible would operate unfairly against an accused and the general rule is that a trial judge must always exercise his discretion so as to prevent the introduction of material whose prejudicial effect would outweigh its evidential value; (see Cook's case⁽³⁾). We think that where there is a tape recording of a conversation between two persons, of whom only one is accused of an offence, and statements are made during that conversation tending to show that the offence has been committed but not by whom it has been committed, then it would be prejudicial to the accused person to admit such evidence. We think that that would be a proper case for a judge to exercise his discretion and to exclude such evidence.

36. That is the position here. Though the tape recordings of the conversation were admissible evidence and though the conversations seem to show that a corrupt offer was made by somebody, we think that, as it was not clear, from the tapes themselves, nor from the evidence of Inspector Yip, who it was who made the corrupt offer, they should not have been admitted in evidence.

37. Crown Counsel argued that there was enough evidence for the conviction to stand even if the tape recordings were ignored. This may well be so but the trial judge expressly relied upon the tape recordings when reaching the conclusion to which he came. He said that the transcript was "a vital piece of evidence in this case because it corroborates the evidence given by Inspector Yip on the vital point of the offer of the bribe".

38. For these reasons we came to the conclusion that it would be unsafe to allow this conviction to stand. The appeal against conviction was therefore allowed and the conviction and sentence quashed.

Representation:

O. Cheung Q.C., & P. Yu (Lau, Chan & Ko) for Appellant.

Astin C.C. for Crown.

(Judgment reduced into writing)

2nd December, 1969.

(2) C.A. No. 259 of 1966.

(1) (1965) 2 A.E.R. 464. (1965) 49 C.A.R. 230. (1966) 1 Q.B.D. 688.

(3) 43 C.A.R. 138 at 144.