Ip Wai-ming and Another v. The Queen
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CACC000598/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 598 OF 1970 -----------------
----------------- Coram: Rigby, C.J., Mills-Owens and Pickering, JJ. Date of Judgment: 2 June 1971 ----------------- JUDGMENT ----------------- Pickering, J.: In the early hours of the 16th of June 1970 a Mr. CHENG Wai-leung was driving a private car in which the only passenger was Mr. WONG Heung-wah. In College Road in Kowloon the car struck and seriously injured two Chinese ladies who were crossing the road and thereafter collided with another vehicle which in turn hit a third. Mr. Cheng and Mr. Wong abandoned the car and left the scene of the accident without reporting it to the police. Neither held a driving licence. 2. The car which Mr. Cheng had been driving was in fact owned by a gentleman called Leung and Mr. Leung had, some two days prior to the events related, lent his car to a Mr. AU Kan who in turn had lent it to Mr. Cheng for the purpose of Mr. Cheng taking Mr. Wong for a drive. Mr. AU Kan was the 1st of three accused in the court below where the charges did not relate to traffic offences but to corruption arising out of matters subsequent to the events of the early morning of the 16th June. 3. After the accident Mr. Wong returned to the Mei Lai Wah Apartment House where both he and the 1st accused were staying. Mr. Wong failed to find the 1st accused at the Apartment House and it transpired that the latter had gone to the scene of the accident, having been informed by the driver Cheng of what had happened. 4. The police made enquiries as to the ownership of the car abandoned at the scene of the accident and interviewed Mr. Leung, the owner, at about 3 a.m. on the morning of the accident. Between 7 and 8 a.m. on that morning there was a conference at the apartment house at which the driver Cheng, his passenger Wong, the 1st accused and a girl friend of Cheng's were present. At this conference it was decided to hold a further discussion to which the owner of the car should be invited, and the same group, reinforced by the owner, re-assembled at about 10.30 that same morning. The result of this second discussion was agreement that in order to evade responsibility on the part of anybody present for the accident, Mr. AU Kan, the 1st accused, would report to the police that on the 14th of June he had lent the car involved in the accident to a Mr. Ah To. Mr. Ah To does not exist. The party then adjourned to a restaurant and on the way there the 1st accused suggested to Wong that Wong, Cheng, and the 1st accused each donate $100 in cash to be given to the police as a "sweetener" when the report of lending the vehicle to Mr. Ah To was made. Mr. Wong paid $100 to the 1st accused for this purpose and later that day the 1st accused did in fact report to the police that he had lent the car to Mr. Ah To. 5. Some days after this the 1st accused and the driver Cheng met the 2nd and 3rd accused, the 1st and 2nd appellants in this case, who were police constables attached to the Traffic Branch and certain discussions ensued between the four of them. 6. On the 20th of June the three accused visited the Mei Lai Wah Apartment House looking for Mr. Wong and, failing to find him there, went to his permanent home where they called him downstairs and where, according to the evidence of Mr. Wong, all three accused asked him to contribute $400 as a bribe for an unnamed person or persons of higher rank in the police force as an inducement to such person or persons to take no action in regard to the traffic accident. It was similarly then arranged that Au Kan would contribute $500 and Cheng Leung $400 to make up a sum of $1,300. Au Kan, it will be recalled, was the 1st accused and Cheng Leung the driver of the car at the time of the accident. The Crown case was further that the accused arranged with Mr. Wong for payment of Mr. Wong's $400 to be effected at the Mei Lai Wah Apartment House at 2 a.m. on the 26th that is, some six days later. 7. It was alleged that during the course of this conversation outside Mr. Wong's residence one of the three accused said, "This money is not for us, I only pass it on to someone of higher rank. I do this to assist you because Au Kan (1st accused) knows you." Again during the course of the discussion there was some comment by the 1st and 2nd appellants as to Mr. Wong's status as an auxiliary policeman which in fact he is. 8. At a later date Mr. Wong reported this conversation to the Anti-Corruption Branch and on the instructions of Inspector Li of that branch made a number of telephone calls to cancel the appointment for 2 a.m. on the morning of the 26th at the apartment house and arranged instead to see the three men on the afternoon of that date at the Nam Kiu Restaurant. 9. On that afternoon, the Anti-Corruption Branch was well represented at the Nam Kiu Restaurant and two members of the Branch gave evidence that they saw the 1st accused come into the restaurant and seat himself within hearing of them and opposite Mr. Wong; they heard the 1st accused ask Mr. Wong if he had brought the $400 and receive an affirmative reply accompanied by a query as to where the two traffic policemen were. The 1st accused replied to this that they were on duty and that Mr. Wong could give him the money because the two traffic policemen would not be available until 11.45 that night. Mr. Wong refused this request and the police officers of the Anti-Corruption branch saw the 1st accused go to a telephone in the restaurant and make a call the subject matter of which was not overheard. On returning to Mr. Wong's table about 5 minutes later the 1st accused said that the two policemen were extremely busy at Traffic Branch and that if Mr. Wong did not trust him he could arrange for Mr. Wong to see them at the Traffic Branch, Mongkok; there was something of an argument after which the 1st accused made a further telephone call and shortly after his return from the telephone he appeared to lose his temper as a result of further conversation with Mr. Wong. Mr. Wong then asked him what would happen to him (Mr. Wong) if he paid the money, to which the 1st accused replied, "We will fix up this matter and then there will be no more trouble." Upon Mr. Wong seeking further reassurance the 1st accused added that he had already arranged with the two policemen to fix up the case and all that Mr. Wong had to do was to pay up. Mr. Wong thereupon passed 4 marked $100 notes to the 1st accused who, after counting them and putting them into his pocket, was arrested by an inspector of Anti-Corruption branch who was one of five members of that branch present in the restaurant. 10. Subsequently, Mr. Wong identified the 1st appellant at an identification parade but failed to identify the 2nd appellant who was also on the parade. 11. The three accused were charged in the District Court and the original receipt of $100 from Mr. Wong, paid as his share of the "sweetener" to the police, formed the subject of the first charge against the 1st accused only, that is of corruptly receiving, contrary to section 3(1) of the Prevention of Corruption Ordinance, Cap.215. The second charge was brought against all the accused and related to the conversation on the 20th June 1970 outside Mr. Wong's residence; this charge alleged the corrupt soliciting of $400 contrary to section 3(1) of the Prevention of Corruption Ordinance Cap.215 and is the charge with which we are now concerned. The third charge, which was against the 1st accused only, alleged the corrupt receipt at the Nam Kiu Restaurant on the 26th day of June 1970 by the 1st accused of the $400 handed over to him by Mr. Wong; the fourth charge, which is also against the 1st accused only, was of misleading a police officer by giving false information contrary to section 64 of the Police Force Ordinance, Cap.232 and related to the false report made by the 1st accused of having lent the car to the fictitious Mr. Ah To. 12. The 1st accused pleaded not guilty to all four charges which he faced, but in the course of the trial reversed his plea in respect of the fourth charge, that of misleading a police officer by giving false information. The learned judge accepted this reversal of plea and also found the 1st accused guilty on the first, second and third charges and sentenced him to 18 months' imprisonment on each of these charges, such terms to be served concurrently. On the fourth charge the 1st accused was sentenced to a concurrent term of 3 months' imprisonment. The 2nd and 3rd accused were also found guilty upon the only charge which they faced that is of corruptly soliciting the sum of $400 and each was sentenced to 18 months' imprisonment. The 1st accused has not appealed but the 2nd and 3rd accused, who are the 1st and 2nd appellants before this Court, appeal both against verdict and sentence. 13. Mr. Martin Lee, who appeared for both appellants, abandoned certain of his grounds of appeal in respect of each of them. Following this abandonment four grounds of appeal remained in respect of the 1st appellant and we will deal with these grounds before turning to those of the 2nd appellant. 14. The first matter of which Mr. Lee complained was that the learned judge had treated as corroborative evidence against the 1st appellant the fact that the 1st appellant had not given evidence in the witness box. This criticism stemmed from the fact that towards the conclusion of a lengthy passage dealing with corroboration in the Reasons for Verdict the learned judge said:
Mr. Lee invites us to attach particular importance to the word "also" occurring in the phrase "It is significant also," and to extract from the word "also" the conclusion that here the learned judge was still addressing his mind to the subject of corroboration. As we see it, the word "also" in that context is at least equally capable of the interpretation that the learned judge had at that point turned his mind from the subject of corroboration to something additional tending to point to the guilt of the accused. It is trite law that if the learned judge was in fact regarding as corroboration, the failure of the 1st appellant to give evidence, he was in error - and this was readily conceded by Mr. Lucas for the Crown on the authority of R. v. Jackson(1), but we consider that we would be doing the learned judge an injustice by interpreting the language which he chose to use as the adoption of so grave an error. In our view what the learned judge was doing at that stage was to direct his attention to something over and above and separate from the subject of corroboration and we consider that if this view is not completely free from any doubt it is free from any reasonable doubt. Indeed, had the learned judge chosen to start a new paragraph with the phrase "It is significant also," this particular objection could never have been seized upon as a ground of appeal and we are satisfied that the point, though perfectly properly taken, has no merit. The judge, though not entitled to treat the failure of the first appellant to give evidence as corroboration, was perfectly entitled to take note of that failure. As was said by Lord Goddard C.J. in delivering the judgment of the Court of Criminal Appeal in R. v. Jackson(1) "everybody .... knows that absence from the witness box requires a very considerable amount of explanation". 15. The next ground of appeal taken in regard to the 1st appellant was that the trial judge acted indirectly on the evidence relating to the incident at the Nam Kiu Restaurant on the 26th June, 1970, (the meeting between Mr. Wong and the 1st accused which culminated in the arrest of the latter) as corroborative evidence against the 1st appellant when such evidence was not admissible evidence against him. Mr. Lee conceded that if there was evidence that an offence had indeed been committed, there was ample corroboration implicating the 1st appellant in the form of his own statements to the police, but invited this Court to consider whether there was any evidence to show that an offence had been committed by the 1st appellant. In this connection Mr. Lee cited the case of R. v. Baskerville(2) where the House of Lords laid down that what is required by way of corroboration is evidence, direct or circumstantial, which implicates the prisoner, which confirms in some material particular not only the evidence given by the accomplice that the crime has been committed, but also the evidence that the prisoner committed it. Mr. Lee urged upon us that throughout the trial the only evidence admissible against the 1st appellant was that of Mr. Wong but this was not corroborated by any evidence properly admissible against the 1st appellant that he had committed this offence though undoubtedly he had been present when the soliciting took place. The judge had correctly said that the conversation at the Nam Kiu Restaurant was not evidence against the 1st appellant and yet appeared to have relied upon it indirectly as corroboration of Mr. Wong's account of what took place outside his residence on the 20th June. The incidents which took place at the Nam Kiu Restaurant were properly treated as corroboration of soliciting on the 20th June on the part of the 1st accused but could not be so regarded in relation to the 1st appellant. 16. We think that the fallacy of this ground of appeal was correctly stated by Mr. Lucas when he said that the learned judge had not in fact done what Mr. Lee alleges. He had not utilised the events at the Nam Kiu Restaurant on the 26th June as corroboration of those outside Mr. Wong's residence on the 20th. The judge had specifically said that the references to the 1st appellant by the 1st accused at the restaurant meeting were not admissible as against the 1st appellant and this Court was not entitled to disregard this plain statement and to assume that the judge had made use of corroboration from this inadmissible source. 17. What in fact the trial judge did was to recognise, correctly and, we would add, even inevitably, that the sequence of events at the restaurant made it clear that the 1st accused was not engaged in this transaction alone. From that recognition he proceeded to look at the circumstantial evidence and it was in this, and not in the sequence of events at the restaurant, that he found corroboration of Mr. Wong's testimony in regard to the 1st appellant's part in the solicitation of the 20th June. That this was so can be demonstrated by the following extract of the learned judge's "Reasons for Verdict".
18. Mr. Lee argued that knowledge is not a sin or a crime and that is no doubt true but the circumstances in which knowledge is acquired may well provide corroboration and on the facts of this case the learned judge found, correctly in our view, that corroboration was so provided. 19. It is also not without significance that in his own statement (Exh. P.4) the 1st appellant said that he had sought Mr. Wong at the Mei Lai Wah Apartment House and, failing to find him there, had told an amah of that establishment that he wished to question Mr. Wong in connection with a traffic accident. He then left a telephone number with the amah at which Mr. Wong could contact him but this number was not that of any police station or office but that of a friend of the 1st appellant. When finally he did see Mr. Wong outside the latter's residence on the 20th June there is no evidence, even from the 1st appellant himself, that he did question Mr. Wong about the traffic accident but rather that the matter of Mr. Wong's auxiliary police warrant card and the question of compensation to the owner of the car were the topics of discussion. This also was a matter which the learned judge was entitled to take into consideration when reviewing the circumstantial evidence. 20. We think that Mr. Lee tended to extend the principle laid down in R. v. Baskerville(2) when he said that corroboration should (a) point to the fact that an offence had been committed and (b) implicate the accused in the commission thereafter. Baskerville, in our view, did not go quite so far as that. What Lord Reading C.J. said there was:-
21. Corroboration is therefore required not to show that a crime has been committed; that fact can be ascertained from other sources as where a strangulated corpse is found or, in this case, from the evidence of Mr. Wong and the proof accepted by the judge as being beyond all reasonable doubt that the 1st accused had solicited $400 on the relevant occasion. Corroboration is required for the purpose of implicating the particular accused in the commission of the crime. In this case there was ample evidence that the crime had been committed and the circumstantial evidence was such that the learned judge could properly treat it as corroboration of the part played by the 1st appellant therein. 22. Mr. Lucas suggested to us that even if we accepted Mr. Lee's proposition that the judge had in fact treated the events in the Nam Kiu Restaurant on the 26th June as amounting to corroboration of Mr. Wong's evidence, he had been entitled so to do. In support of this argument Mr. Lucas cited the interesting Australian case of Tripodi v. R.(3), the headnote of which reads: -
23. Since however we do not in fact accept that the judge treated the events of the meeting in the restaurant as corroboration, we find it unnecessary to fortify our judgment with this case of high persuasive authority. 24. A further ground of appeal in regard to the first appellant was that the learned judge misdirected himself in law in that he treated the two statements made by this appellant as corroborative evidence against him. We need not pursue this ground for Mr. Lee readily conceded that if an offence had indeed been committed these statements afforded ample corroboration of the complicity of the first appellant and we have already given our reasons for holding the learned judge to be right in reaching the conclusion that a crime had in fact been committed. 25. The fourth ground of appeal argued by Mr. Lee on behalf of the 1st appellant was that the learned trial judge was wrong in finding the 9th prosecution witness, Mr. WONG Heung-wah, to be a truthful witness and was wrong in accepting his evidence. Mr. WONG Heung-wah was the principal witness for the prosecution and was, it will be recalled, the complainant and the person who had handed four one hundred dollar marked dotes to the 1st accused in the Nam Kiu Restaurant. In support of this argument Mr. Lee read lengthy extracts from the evidence of Mr. Wong which admittedly revealed an inclination on the part of that gentleman to whitewash his conduct in relation to the traffic accident. He had, it will be recalled, together with the driver of the car abandoned the vehicle and walked away from a very serious accident without making any report to the police; neither he nor the driver held a driving licence and it was Mr. Wong's evidence that he thought that he could get into trouble as a result of this incident. It was no doubt this belief, probably not unfounded, which led to his reluctance to be perfectly candid at all stages of his evidence. All these matters were, however, in the contemplation of the learned judge who had the additional advantage, not to be devalued because it is so frequently referred to by courts of appeal, of seeing and hearing all the witnesses and of observing their demeanour. With the benefit of this advantage the learned judge believed the evidence of Mr. Wong as it related to the alleged corrupt transaction and was most certainly not unaware of his duty of care in regard to the acceptance of that evidence. At page 7 of his Reasons for Verdict the judge said:
26. With this very much in his mind the learned judge believed the evidence of Mr. Wong and it does not behove this Court to go behind his finding in this respect. 27. A last-minute point taken by Mr. Lee for both appellants, the Crown waiving notice, was that the charge alleges the solicitation of $400 as an inducement to or reward for or otherwise on account of unnamed members of the Royal Hong Kong Police Force forbearing to take action. On the evidence, however, whilst there might be the inference that the money was to be physically handed to somebody at the traffic branch it did not follow that such person was to be an individual attached to or connected with the traffic branch. We find no substance in this argument which is no more than the type of fanciful doubt against which juries are frequently and properly warned. The evidence was that Mr. Wong was threatened that if the money was not paid proceedings would be taken in respect of the traffic accident and the inference is thus overwhelming that the money was to go to a member or members of the traffic branch competent either to institute or to stifle a prosecution. Moreover the evidence was not that the money was to be physically handed over at the traffic branch but at the Mei Lai Wah Apartment House. The only suggestion of payment at the traffic office came during the conversation at the Nam Kiu Restaurant on the 26th June when, Mr. Wong being reluctant to hand over the $400 to the 1st accused, the latter suggested that he take Mr. Wong to the traffic branch, Mongkok where Mr. Wong could personally hand the money to the 1st and 2nd appellants - a suggestion which Mr. Wong declined. 28. Having abandoned five of the grounds of appeal advanced on behalf of the 2nd appellant, Mr. Lee was left with only two. The first of these was that the learned judge was wrong in having failed to consider the significance of the evidence of two named prosecution witnesses, both members of the Anti-Corruption Branch, and of Mr. WONG Heung-wah, the complainant, relating to the meeting between the 1st accused and Mr. Wong at the Nam Kiu Restaurant on the 26th of June, 1970, this evidence pointing to the fact that it was not the 2nd appellant who would "fix up" the traffic case but one Sergeant PAY Ya-so. Mr. Lee's point here was that whereas the 1st accused had told Mr. Wong at the restaurant that the money was intended for the 1st appellant whom he there named, the 2nd name which he introduced as the recipient of the money was not that of the 2nd appellant but a Sergeant Bing (or PAY) Yau-so. We are unable to appreciate the significance of this alleged failure on the part of the trial judge for the charge relates to an event not on the 26th but on the 20th June and refers to corruptly soliciting money as an inducement to or a reward for or otherwise on account of unnamed members of the Royal Hong Kong Police Force. It is common ground that during the conversation outside Mr. Wong's residence on the 20th of June when the question of payment of $1,300 was raised, no names of recipients were mentioned and it seems to us to be irrelevant that some six days later a name other than that of the 2nd appellant was mentioned as one of the intended recipients of this money. This ground of appeal must fail. 29. The sole remaining ground of appeal in respect of the 2nd appellant was identical with the fourth ground raised on behalf of the 1st appellant, namely, that the trial judge was wrong in finding prosecution witness No.9, WONG Heung-wah, to be a truthful witness and wrong in accepting his evidence. We have dealt with this ground of appeal in respect of the 1st appellant and it must fail in respect of the 2nd appellant for the same reasons which prompted us to reject it in regard to the 1st appellant. 30. Having treated this hearing as the appeal, the appeals of both appellants against conviction are dismissed. Mr. Lee, having, with his customary candour, intimated that he could not argue that the sentences of 18 months' imprisonment imposed in each case were excessive, the appeals against sentence are also dismissed. Representation: Mr. M. Lee (Deacons) for 1st appellant. Mr. M. Lee (P. Mo) for 2nd appellant. Lucas S.C.C. for Crown. (1) (1953) 37 C.A.R. 43 (2) (1916) 2 K.B. 658 (3) (1961) A.L.R. 780 |