The Queen v. Luk Wang-yip
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CACC000609/1983
BETWEEN
Coram: Hon. McMullin, V.-P. in court Date: 22nd June, 1983. __________ JUDGMENT __________ McMullin, V.-P. : 1. There is a single point to be considered upon this appeal. The appellant was convicted under s.4(2)(a) of the Prevention of Bribery Ordinance, the particulars being that he was alleged to have accepted an advantage, that is the discharge of a loan of $6,000 owed to a man called Luk Tai-chuen as an inducement to or reward for or otherwise on account of his performing an act in his capacity as a public servant, namely arranging for Lam Yan-yee, Lam Tsz-lau and Ip Mei-ching to improperly pass through the Lo Wu Control Point, Border Sub-Division. 2. The appellant was at the time of these events a Senior Immigration Officer stationed at Lo Mi. On the 3rd of April, three young men, the men named in the charge, were arrested at Kai Tak, and their passports upon examination were seen to be forgeries. A chop upon the visa part of the passport in each case showed that these young men had passed through the Immigration post at Lo Wu on the 30th of March. The passports bore a number which was however obscured by a signature. 3. On subsequent examination in the Government laboratory, the chop number became clear, it was the number 1311 and it was this that led the investigating authorities to arrest the applicant because that was his chop number on the relevant date. 4. He was taken to the ICAC Headquarters and on the way he was told - upon his asking - what the purpose of his arrest was. He denied having had anything to do with persons passing through the post illegally and he expressed the view that they could not prove that his chop had been used on that day. When he was brought to the Headquarters he was shown an album in which there were mounted pictures of the passports which had been treated scientifically and which then clearly displayed his chop. 5. Shortly after that he made the confessional statement upon which the case for the prosecution wholly depends. In that statement he admitted that he had owed money as a result of gambling debts owed to and borrowings from a person called Tai Tau Luk. Being unable to repay, he had agreed to the suggestion made to him by Tai Tau Luk that he should allow three persons through the border on a specific date. This according to the statement was to be in discharge of the debts. The statement was challenged before the magistrate who held the usual separate trial as to its admissibility. 6. The appellant gave evidence on that issue and he made several allegations concerning the manner in which the statement eras taken. These included, if somewhat faintly, allegations of ill-treatment. He alleged that he had not been allowed to go to the toilet, and he said that one of the officers, a Mr. O'Donoghue, had dealt with him rather fiercely in the manner of his questioning. But that is not the real substance of his objection. He said that Mr. Luk, who was one of the ICAC officers together with Mr. O'Donoghue at the time the statement was taken, and who was acting as interpreter, had told him that the intention of the Independent Commission was, in the words that the defendant himself used, "not to get you but the big fish. If you co-operate with us, we will release you to be re-united with your family." Clearly, had any such offer been made, the statement could not have been admitted as a voluntary statement. That evidence was however rejected by the magistrate who accepted the evidence given on the issue by the prosecution witnesses. 7. Mr. Corrigan for the appellant has mounted a thorough and very resourceful argument in respect of the question of inducement. He says in effect: forget what was said by the defendant as to the reasons for his making this statement, there is to be deduced from the record of the prosecution witnesses' evidence itself sufficient matter to indicate that an inducement was implied and that inducement was to the effect that, if the defendant co-operated, he would not be pursued by way of criminal proceedings. 8. Mr. Corrogan relies upon what was said by Mr. O'Donoghue who in describing the interview had put the matter this way: "Mr. Luk, I wish to make it clear to you that if you assist in this matter, it doesn't mean that you will receive any benefit, you understand that." To this, the defendant, according to the witness replied: "Yes, I just want to make sure the people who made me do this get in trouble as well". At that point, Mr. O'Donoghue that he wanted to get writing materials to record the interview. He did so and the interview proceeded resulting in the confession to which I have referred already. 9. There is no doubt that after the interview there was some conversation and it would seem clear that in the course of that conversation the possibility of the defendant co-operating with the ICAC authorities was discussed. Mr. O'Donoghue in giving evidence honestly admitted that he did hope that the defendant was going to co-operate with the purpose of unmasking the ring of forgers who it was suspected had been responsible for the forged passports. When the interview was recorded, there was a series of questions and answers and one of these particularly is relied upon by Mr. Corrigan. The question was "Are you willing to help me to carry out an investigation into those people who make the forged documents?" The answer was "Yes". There was then a further question followed by the full confession. 10. Put these matters together, counsel says, and it makes it clear that it was in the mind of the officers of the Independent Commission who were dealing with the defendant that he was to be used for their purposes in uncovering the activities of other people - the bigger fish and that if he did so he would not be prosecuted. Counsel does not suggest that that was specifically said to the defendant before he made the statement but he suggests that the phraseology used by Mr O'Donoghue which I have noted was ambiguous and could have given rise to a hope in the mind of the defendant that he would not be prosecuted. In recording his reasons for findings, the statement having been admitted at an earlier point in the proceedings, the magistrate said as follows:
11. If it were possible to interpret anything said in the course of the evidence by any of the prosecution witnesses as an even covert suggestion that the defendant would not be prosecuted, this court might be in a position to say that the magistrate had overlooked a significant deficiency in the procedures adopted prior to the giving of the confession which might have predisposed him to finding that it was induced. But I think that Mr. Riordan's answer on these matters is sufficient. He strongly relies upon the reasons given by the magistrate for his rejecting the idea that the statement had been induced and in particular the idea that the confession was the fruit of a feeling of hopelessness coupled with the desire for revenge. 12. That that is so seems to me to be abundantly proved by what occurred before Mr. O'Donoghue informed the defendant that he was not to expect any benefit. This is to be found in the evidence of Mr. Ho, the interpreter. 13. After the objection had been taken to the admission of the statement upon the grounds that it had been obtained under pressure and as a result of inducement, the witness went on to say: "Mr. O'Donoghue said : Do you wish to say anything to me about the Singapore passport which contained your chop? -The defendant replied Yes. I know I shouldn't have done it but he forced me. He threatened to report me to ICAC if I didn't help him." Mr O'Donoghue who said: "Who threatened you Defendant said: "A man called Tai Tau Luk, he is involved in this business." 14. To my mind that indicates most clearly what the motives were that did eventually moved the mind of this appellant in opening up and making a confession to the officers of the Independent Commission. It may well be that the manner in which he was dealt with immediately after he had made the confession induced inhhim a hope that he would not be prosecuted and possibly not even used as a witness. But I cannot say that the magistrate was wrong in coming to the conclusion that he did, since I cannot find, despite Mr. Corrigan's very able address, anything in the evidence which would pre-dispose me to the view that the motive which impelled the confession was other than the sentiment of hopelessness coupled with a sincere desire to bring dorm the others who had been a party to his criminal conduct. For these reasons therefore the appellant's appeal must be dismissed. Representation: Anthony Corrigan (H.M. So & Co.) for Appellant K. Riordan for Respondent/Crown. |