The Queen v. Liu Kan Por

CACC000546/1987

BETWEEN

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Coram: Hon. Kempster, J.A., Power & Penlington, JJ.A.

Date of Hearing: 22nd & 23rd June 1988.

Date of Judgment: 23rd June 1988.

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J U D G M E N T

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Power, J.A.:

1. The applicant in this matter faced a charge of forgery of dies and a further charge of forgery of valuable securities. He was convicted after trial by jury in the High Court, appealed against those convictions and a re-trial was ordered. He and another defendant were convicted by Garcia, J. on the verdict of a jury after this second trial and he now seeks leave to appeal against those convictions.

2. The allegations against him were that at the behest of a Madam Lui he involved himself in the negotiations for the forgery of dies and the subsequent printing of Indonesian duty stamps.

3. At the second trial a transcript of evidence given by him at the first trial was admitted and this appeal arises out of the admission of that transcript and the use made of it in the trial.

4. This evidence revealed the facts set out hereafter. The applicant was contacted in February or March of 1986 by Madam LUI Mei-lin and asked would he introduce her to his younger brother LIU Kam-po who was in the printing business. She told him that she required things like, to use his words, "stickers with patterns on" to be printed. He introduced her to his younger brother and thereafter took part in negotiations between Madam Lui and his brother. She paid $50,000 to his brother and he received $17,500 of this as tea money. It appears that the younger brother failed to produce the goods, which the applicant later said consisted of 700,000 sheets, and that he then gave his $17,500 to YICK Wai-wing who, it appears, started the printing work at the Ching Tai Factory. However, it would seem that after some work had been done Mr. Yick disappeared. The stamps were, however, eventually produced but it was then found that there were some difficulty as to the perforations. Mr. LIU Kam-po the younger brother appears to have made an optimistic but ultimately unsuccessful attempt to insert perforations in the stamps with a domestic sewing machine. Having failed he wanted to return a sum of $1,800 to Madam Lui.

5. Following this, in mid-May of 1986, the applicant enlisted the help of one Au Kam who had a mould made with which perforations were inserted. He was given $5,000 for this work.

6. Later the applicant saw the finished work at the home of madam Lui. He took some of this work which she and her husband, who was identified as a Mr. Siu, didn't, to use his word, "want". He said he took these home and they were later discovered at his home by the police. Upon being given a letter by Mr. Siu asking him to get some cheques printed he became suspicious and the next day went to the Indonesian Consulate where he saw a Mr. Sujata who told him that the stickers were Indonesian duty stamps.Mr. Sujata told them that if he supplied the information he would get a reward. It is to be noted that this evidence is in direct conflict with the evidence of Mr. Sujata who said that he was approached by the applicant who asked to be given a reward for information regarding duty stamps.

7. The applicant went on to say that when Mr. Siu asked him for the return of the letter in which the request for the printing of stamps had been made they fell out and they came to blows. He said that this occasioned a police investigation and that as a result of that investigation he was arrested and then told the police about the counterfeiting operation.

8. His evidence was wholly exculpatory and in cross-examination he specifically denied having had any knowledge that the operation was for forge duty stamps.

9. It was the Crown submission that the exculpatory evidence was so inherently improbable that the jury should reject it and that inferences of guilty knowledge should be drawn from admissions in the applicant's own evidence. His defence, simply put, was that he was not aware of and did not even suspect, until just before he went to the Indonesian Consulate, that he might be involved in an illegal operation.

10. The first ground of appeal argued by Mr. King is that the trial judge erred in allowing the Crown's application to have admitted in evidence as part of the crown case the transcript of evidence given by the applicant at his earlier trial. This ground was, properly in our view, not, in the event, pursued and we do not therefore need to deal further with it.

11. We turn to the second ground which alleged that the trial judge failed to direct the jury adequately or at all in relation to the admission of the said transcript. This ground particularized six matters as to which it was suggested the judge had failed adequately to direct.

12. The first of these was a suggestion that he had failed to outline in detail the nature and extent of the alleged admissions contained in the transcript. During the trial the full transcript was read to the jury. They were then given a copy of it along with all of the other exhibits. It is a little difficult to understand what exactly is being complained of here. The evidence was placed before them both by having it read and by giving it to them as an exhibit. We see nothing in the suggestion that it was incumbent on the judge therefore to detail the nature and extent of the evidence.

13. The second particular is that the judge failed properly to direct the jury as to the evidential value of the alleged admissions and exculpatory explanations. When dealing with the transcript the judge said:

"These transcripts have been tendered to you in the same way as cautioned statements, that is, as exhibits, and you will have already noticed from a reading of these excerpts that certain of the contents of the transcript of the first defendant refer to the second defendant and likewise, there are references to the first defendant in the second defendant's transcript.

What is stated in the excerpts apply only to the person who made them and not to other people, and therefore any reference to the second defendant in the first defendant's transcript are to be ignored, and so also the references to the first defendant in the excerpts of the evidence of the second defendant.

These transcripts have been produced only for the purpose of directing your attention to certain admissions made by the defendants in the course of their earlier trial, and also the explanations which they have given for their conduct. Whilst you may accept the admissions as being true, because they are made against the maker's own interest, however, with regard to the explanations, otherwise known as 'exculpatory statements', they are only evidence of what has been said, but not necessarily the truth of what has been said. In other words, it is for you to assign what weight you would to these statements, after assessing them with other evidence you have heard in this trial."

This was in our view a perfectly proper direction. The exculpatory statements it makes clear were not evidence. The direction followed the principles set out in R. v. LIU Po-sing⁽¹⁾which itself relied upon the decision of the Privy Council in R. V. LEUNG Kam-kwok⁽²⁾. Mr. King did not, it must be said, take real issue taken with the direction itself but submitted that it was incumbent upon the trial judge to refer to each of the 50 to 60, by his count, admissions made by the applicant when giving his evidence. In our view there was nothing that would require the judge to detail each admission in this way. What the applicant was saying was that he was intimately involved with the operation but he had no knowledge that the transactions were intended to produce forgeries. He made no issue of his involvement either at the trial from which the transcript was taken or at the trial from which this appeal arose. What he was maintaining was that he did not have any knowledge that anything illicit was taking place. The real issue was knowledge not involvement. What the jury had to ask themselves was whether from the facts admitted the only inference that could be drawn was one of guilty knowledge. The judge was quite correct when he told the jury that:

"The defence of both defendants is that they both did not know that the so-called 'stickers' were revenue stamps of the Indonesian Government, and they explained this by the fact that they did not know how to read English. Further explanations for their conduct are contained in the excerpts from their evidence at the previous trial, which has been given to you as Exh.P79 and P80.

The 1st defendant, moreover, says that he did not know that the stamps were forgeries of Indonesian revenue stamps until he was informed by Mr. Sujata whom he had approached to ascertain what these so called circular 'stickers' were."

14. The real issue, as the trial judge made plain in that passage, was one of guilty knowledge and the Crown sought to prove such knowledge by inference from facts which were not to any real extent in issue. We are satisfied that there is no merit in the second particular raised by Ground 2.

15. We turn to the third particular which suggested that the judge failed to tell the jury that the trial was a re-trial and that they were not to draw any adverse inferences from that fact. The jury was clearly aware that it was a re-trial and that the transcript had come from an earlier trial. The judge made clear to the jury at the very outset of the summing-up what evidence they were to consider when he said:

"What counsel or I say on the evidence is, of course, not evidence and the only source of evidence which you should consider, when you deliberate on your verdicts, are, firstly, the testimony of the witnesses who have gone to the witness-stand; secondly, the statements of those witnesses which were read out to you by consent of counsel; thirdly, the admitted facts which are contained in the several documents tendered, again by consent of counsel; fourthly, the documentary and physical exhibits including the excerpts from the transcripts of the evidence of the first and the second defendants at the previous trial; and fifthly, the cautioned statements of the first and the second defendants."

He further instructed the jury as to the way in which they should deal with the facts and as to the inferences which they could draw therefrom he said:

"Now, after you have found the facts from the evidence, and in considering the admitted facts, you may draw inferences from such facts, or a set of facts, to enable you to reach your verdicts. However, in drawing adverse inferences against the defendants, it is important to note that only reasonable and irresistible inferences may be drawn from such facts. For instance, if from such facts, or a set of facts, two or more inferences might be drawn, that is, one adverse and the other favourable, then the one that is more favourable to the defendant should be drawn, and the adverse inference discarded."

16. These were clear and proper directions in the light of which we find nothing in this suggestion that there was a failure to tell the jury that they were not to draw adverse inferences from the fact that it was a re-trial.

17. The fourth and fifth matters about which complaint is made are firstly that there was a failure to direct the jury in relation to references to other defendants mentioned in the transcript and secondly that there was a failure to direct the jury that they were not to concern themselves with or speculate about the fact that the transcript had been extensively edited. We see nothing of any susbstance in either of these objections. The transcript when one reads it speaks to itself. There is no foundation for the suggestion that the jury might have arrived at some view prejudicial to the applicant by speculating about the references to other defendants and the fact that parts of the transcript had been edited.

18. We turn then to the sixth and last matter raised in Ground 2. This suggests that the judge failed to tell the jury that the allegations put to the applicant in cross-examination by the Crown and denied by him were not evidence against him. It is true the trial judge might have seen fit to give such a direction but, we are satisfied, it was not, in the circumstances, incumbent upon him to do so.

19. The third ground of appeal as framed read that the trial judge failed to direct the jury that the transcript did not provide corroboration of the accomplice evidence. It was conceded that the ground could have been more happily framed and it was suggested that it should have read that the trial judge failed to direct as to whether or not the transcript provided corroboration. The trial judge had, Mr. King concedes, given a proper direction as to corroboration at p.9 of the transcript but he went on to say at p.15.

"I would also draw your attention to the fact that there is no corroboration of any of their evidence (he was speaking here of the accomplices) in relation to the 2nd defendant insofar as the question of the knowledge and intent, and this is an intent to defraud or to deceive, is concerned. But with regard to the 1st defendant I will have to deal with this matter in the course of this summing-up."

While this direction may well have been unduly favourable to the 2nd defendant that, in no way, affected the 1st defendant. The judge, however, there told the jury that he would, in the course of his summing-up, turn to deal with the question of possible corroborative evidence as regards the evidence of the accomplices against the 1st defendant.

20. The trial judge only once thereafter referred to any evidence that was capable of corroborting the evidence of the accomplices. This was at p.19 of the summing-up where he referred to the answers given by the applicant when he was making a statement to DPC 7359. He gave no direction as to whether or not the transcript provided corroboration. The transcript clearly did contain evidence which was capable of corroborating the evidence of the accomplices and, in our view, the trial judge should have so directed the jury given that the evidence in the transcript was on all fours with almost all of the evidence given by the accomplices. The direction should have been that that evidence could be used to corroborate the evidence of the accomplices.

21. We must ask ourselves what effect this failure had upon the outcome of the trial. As I have already indicated the issue in the trial was whether or not an inference of guilty knowledge could be drawn from the facts establishing involvement which were for, all practical purposes common ground. Mr. Dalgleish, who appears for the Crown, says that there was, as far as he recalls, only one matter and that not a major one in which the evidence of the applicant in the trancript differed from that of one or other of the accomplices in such circumstances we are satisfied that this failure to direct did not have any material effect on the outcome of the trial and that this is, therefore, a proper case in which to apply the proviso.

22. The application for leave is granted. The hearing of the application is treated as the hearing of the appeal and applying the proviso we order that the appeal be dismissed.

23. The applicant also appeals against the sentences of three years on each charge to run concurrently that were imposed by Mr. Justice Garcia on the 20th October 1987. He appears in person in this application and has referred, when addressing us, to the matters already set out in his written grounds of Appeal. These really are that he is the breadwinner of his family and that they have been deprived of his support and guidance during the period he has been in prison and will of course be deprived thereof during the remaining period of his imprisonment. He urges the court to consider the effect that the imprisonment is having upon his family generally and in particular upon the children of the family. These are matters to which we cannot give any very great weight as they are the sort of matters that can be urged on behalf of any father of a family and are considerations which the offender should heed before electing to flout the law.

24. What we must ask is whether deciding the sentences were proper in the circumstances of this particular case. The sentences of three years for what were serious offences of forgery, particularly so because they involved the securities of a foreign nation, were not, in our view, unduly harsh. In fact it might well be suggested that they were in the lower range and that this was so because the judge took the view that the applicant was not the principal offender and that he was led into the offences by Madam Lui. We cannot, having heard all the applicant has had to say, find any ground for interfering with those sentences. We do note however that the Sixth Schedule of the Criminal Procedure ordinance, section 2, makes it clear that the sentences of three years concurrent will run from the date on which the applicant was originally retained in custody, i.e. 23rd January 1987.

(1) (1986) H.K.L.R. 198

(2) (1986) H.K.L.R. 188

Representation:

Mr. R. Dalgleish (Crown Prosecutor) for the Respondent.

Mr. Alexander S. King (D.L.A.) for the applicant (on conviction).

Applicant in person (on sentence).