Yiu Shui-chuen v. The Queen

CACC000660/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 660 OF 1980

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Coram: Hon. Silke, J., in Court

Date of Judgment: 12th September 1980

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JUDGMENT

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1. The appellant was convicted, after trial, at North Kowloon Magistracy on the following charge:

He appealed against both conviction and sentence. I allowed the appeal against conviction and stated I would give my reasons in writing. Which I now do.

2. No particulars of the conspiracy alleged were sought by Counsel in the court below. The appellant pleaded not guilty and the Prosecution called its one and only witness, and Investigating Officer of the Independent Commission Against Corruption - Operations Department.

3. That witness gave evidence to the effect that on the 18th March 1980 he interviewed the appellant and made a record of that which was said by way of question and answer. He produced that record which was signed by both the appellant and the witness. It was not under caution.

4. The witness was not crossexamined in any way and the Prosecution closed its case.

5. There was no submission of no case and the appellant elected not to give evidence not were witnesses called on his behalf.

6. Apart altogether from the somewhat vague particulars given in the charge sheet the procedure adopted by the prosecution was somewhat unusual.

7. Counsel made a final submission. Various strictures were passed upon the contents of the record of the interview and the main thrust of the submission was directed to the proving by the Crown of "a concluded agreement in the contractual sense" which it was said they had not done.

8. Mr. Ho, who appeared for the appellant in this Court, did not seek to sustain that argument.

9. What he did do was to submit that the contents of the record were far too vague to sustain the offence as charged and particularised.

10. He has referred me to Director of Public Prosecutions v. Nock and Alsford [1978] 2 ALL.ER. 654 - the impossibility of producing cocain out of something which could never produce it - on the point of no man being punished for a mere thought.

11. Further he made reference to R. v. Walker [1962] Crim. L.R. 458 on the passing from the sphere of negotiation or intention to becoming a matter of agreement - and the necessity for the inference to be irresistible that the appellant conspired as alleged.

12. Miss Beeson, who appeared for the Crown in this court, conceded, and quite rightly so, ambiguities in the recorded answers. She found herself in some difficulty because of the nature of the interview in seeking to uphold the conviction.

13. I agree with her.

14. The learned trial Magistrate was placed in some difficulty as there was no real challenge before him on the nature or contents of the interview. The whole was allowed in without question. He found himself in the unfortunate position of having to parse the answers given and, in his very full Statement of Findings, to quote extensively from those answers.

15. But it is by no means clear when the conspiracy came into being: the day before the test or the day of the test: whether there was in fact any agreement as to the amount or whether or not the driving instructor was on a frolic of his own. In one answer the appellant had said: "Then I asked him how much was required and he said, '$1,000'." He went on: "However, Instructor Ho later said (we know not when) 'I can't help you this time even if I want to because the original Driving Examiner going to test you was replaced and I don't know the present Driving Examiner going to test you very well'."

16. I am aware that the Learned Magistrate did give consideration to certain of these matters but, with respect to him, it might perhaps have been letter had he not attempted to reconstruct a conversation as between the instructor and the appellant by taking parts of the answers and stringing them together as if they had been recorded as a verbatim conversation.

17. Looking at the evidence, such as it was, overall - the interview was never, to my mind, by itself intended to be the basis of a charge - I found the conviction unsafe and unsatisfactory. The appeal was therefore allowed, the conviction and sentence quashed and the fine, if paid, was ordered to be returned.

Representation:

Mr. Alan Hoo (John Ku & Co.) for Appellant

Miss Beeson for Crown/Respondent