Derek Aplin and Others v. The Queen
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CACC000707/1976
----------------- Coram: Pickering, J.A., McMullin & Yang, JJ. Date of Judgment: 8th December, 1976. ----------------- JUDGMENT ----------------- 1. On the 8th of December having heard Mr. Hidden on the first of the several grounds which he was proposing to urge on behalf of his three clients and upon hearing Mr. Astin for the Crown in reply thereto - Mr. Wesley Wong for the fourth appellant having associated himself with the submissions of Mr. Hidden as regards to the fourth appellant - we intimated that the appeal of all the appellants must succeed and treating their applications for leave as the substantive hearing of the appeal we quashed the several convictions and set aside all sentences imposed in relation thereto. We now give our reasons for doing so. 2. The appellants were tried in the District Court together with nine others upon a series of charges arising from their alleged involvement in an organised and systematic course of corrupt behaviour in relation to the performance of their official duties as police officers attached to the Traffic Office, Kowloon. Although the first four charges allege separate conspiracies the evidence for the Crown was concerned with what in effect amounts to two distinct conspiracies only. In the first charge all thirteen accused with the exception of the second accused (the second appellant in this court) are charged with conspiring together and with other persons unknown to obstruct the course of public justice by acts contrary to their public duty as police officers in relation to the administration of law between January 1972 and October 1975. The second charge which concerns the same officers and the same period would seem to amount, in effect, to particulars of the first charge. Therein it is stated that the named officers between the named dates conspired with other persons unknown to accept without lawful authority or reasonable excuse advantages in the form of sums of money from owners or drivers of motor vehicles as an inducement or reward for abstaining from performing acts in their capacity as police officers attached to the Traffic Office. The third and fourth charges concerned the second accused (the second appellant) and the fourth accused only. Although charged as separate conspiracies it would appear that, as in the case of the first and second charges, a single conspiracy is alleged covering the period between January 1972 and August 1973, the particulars being that the two accused together with other persons unknown conspired to accept without lawful authority or reasonable excuse sums of money from owners and drivers of vehicles as an inducement or reward for their abstaining from performing their duty as police officers. It is common ground that the first of these conspiracies (charges one and two) concerns what is known as the Enforcement and Control Section of the Traffic Office while the second conspiracy concerns the Accident Enquiry Section of that office. 3. In the course of the trial seven of the original thirteen accused pleaded guilty to the Enforcement and Control conspiracy. The fourth accused, LAU Kwok-kiu, pleaded guilty to that conspiracy and also to the conspiracy laid in the third and fourth charges. He was the only one of the accused alleged to have been involved in both. The fifth to eleventh charges alleged individual offences under section 4(2) of the Prevention of Bribery Ordinance against three of the accused. The Crown entered a nolle prosequi in relation to the fourth accused (Charges eight and nine) and the ninth accused (charges ten and eleven). Of the remaining six accused Superintendent Derek Aplin (the first appellant); Inspector KO Kang-ming (the third appellant); and Sergeant NG Chun-wah (the fourth appellant) were convicted of the Enforcement and Control conspiracy (charges one and two). The third accused, TO Kwong-sum, who was tried together with them upon those two charges was acquitted upon the trial. The fourth accused, LAU Kwok-kiu, was one of the seven who pleaded guilty but his plea was in relation to the Accident Enquiry Section conspiracy (charges three and four) and the only other person charged in respect of that conspiracy is the second appellant, Chief Inspector LO Kwok-tung. The first appellant was also convicted of the substantive offences laid in the fifth and sixth charges. 4. This is one of those cases, unhappily familiar to this court in recent years, in which the admirable labours of the. Independent Commission Against Corruption have been able to unearth evidence of the existence of a well organised and widespread net of corrupt practices prevailing in an important section of the public service. Unhappily again, it is one of those cases in which the Crown, presented with that evidence, was compelled to rely in the main upon the testimony of persons who were themselves involved in such practices and who therefore come before the court affected with the taint of accomplice complicity and, in most instances, having, into the bargain, an additional detriment affecting the quality of their testimony in the form of various kinds of promise made to them concerning immunity from prosecution. It is not disputed that the principal and most material witnesses who gave evidence for the Crown in the present case were tainted in one or both of those ways. Of itself of course that would never be a sufficient ground for upsetting a conviction provided it was clear the trial judge or magistrate had carefully warned himself of the danger inherent in such evidence. In the present case the learned District Judge was well aware of the dangers and warned himself repeatedly in regard to it. No complaint is made in that connection upon this appeal. 5. The trial was an extremely lengthy one covering a period of about three months. A huge mass of evidence was placed before the learned judge. Four of the accused, the first appellant being one of them, were not professionally represented at the trial. From the outset the learned judge had a most difficult task for he had to keep abreast of the swelling accumulation of factual details as they affected the separate cases of thirteen accused persons variously charged upon no less than eleven separate charges, including the four main conspiracy charges, while keeping in mind the special need to see that justioe was done to the cases of those accused who were not represented. In addition there was the factor that the conspiracy charges themselves were, as we have indicated, somewhat unnecessarily complicated. The overall complication of the pattern of the charges, involving as it did multiple conspiracy charges together with substantive charges under the Prevention of Bribery Ordinance, occasioned the making of a series of applications on behalf of the accused which required interim rulings upon questions of a difficult and technical character. Between the 23rd of April and the 19th of May there were no less than five such applications these included applications for separate trials made by the first appellant and by counsel for the second appellant and applications, made initially on behalf of the second and fourth appellants but finally on behalf of all appellants, to quash all the conspiracy charges on grounds which it is not now necessary to consider. It is evident that each of these applications occasioned a great deal of debate and lengthy submissions and on each occasion the learned District Judge gave a reasoned and elaborate ruling. In the event all of these applications were refused. Some of the matters raised upon these rulings would have been debated afresh upon this appeal were it not for the fact that we had come to the conclusion, with considerable regret, that it was necessary to quash all the convictions upon a single ground affecting the case of all the appellants. We have elaborated to this extent upon the difficulties and complexities of the trial as a prefix to what follows. The learned District Judge would appear to have dealt with all the matters raised before him upon these interim applications with thoroughness and expedition and with an unfailing courtesy which must at times have been strained by the welter of subsidiary considerations forced upon his attention. These several rulings and the ultimate written reasons for verdict display a comprehensive grasp of the nature of the evidence and the issues involved. It is the more to be regretted therefore that in the end he appears to have fallen into an error so singular and fundamental that we have felt it necessary to upset the results of such a prolonged and - in all other respects - admirable a process of investigation and judicial evaluation. That error relates to the burden of proof and it may well be, as Mr. Hidden has suggested, that a major cause contributing to it is to be found in the fact that there were substantive charges under the Bribery Ordinance conjoined with the common law conspiracy charges. Of the present appellants only the first appellant was concerned in the substantive charges. He was charged in the fifth and sixth charges with bribery under the provisions of section 4(2) of the Ordinance. These charges alleged the receipt by him of a sum of $4,000 on two occasions and the evidence led to support them - the evidence of the principal accomplice witness SIU Tung-yim - was the major item in the direct evidence given against him by that witness upon the conspiracy charges also. Section 25 of the Ordinance provides that once such money or other property is proved to have been received by the accused person it is presumed to have been received for the corrupt purpose stated in the charge until the contrary be proved. In other words there is supplied in this section an assistance to the prosecution, similar to the presumptions contained in the dangerous drugs legislation, which throws the burden of proof upon an accused person once certain preliminary and basic matters have been proved by the prosecution. We accept as correct Mr. Hidden's contention that the word "proved" which appears twicer in that section implies in each case a different standard of proof. It is firstly for the Crown to show in the usual way beyond reasonable doubt that the money or property has changed hands. Once that is accomplished it is then for the accused to show upon the balance of probability that it was not accepted for the purpose stated in the charge. It may well be that it was the juxtaposition of the conspiracy and other charges, and in particular the different standard of proof relevant in relation to the latter, which caused the confusion. However that may be, it is clear, at all events, that the passages from the Reasons for Verdict to which our attention have been drawn disclose a grave misconception as to the proper approach to the evidence which, after the most earnest deliberation, we feel cannot be attributed to a mere infelicitous choice of language. 6. The second and third appellants (LO Kwok-tung and KO Kang-ming) were charged only with the Enforcement and Control conspiracy (first and second charges). The learned District Judge had in the earlier part of his Reasons for Verdict concisely and accurately summarised the nature of the evidence which he accepted as showing that conspiracies of the kind charged did exist in the Enforcement and Control and in the Accident Enquiry Sections. No exception was taken to what he there said, and it is plain that there was abundant evidence to support that preliminary finding. But then he turned to consider the evidence connecting each of the individual accused to the particular conspiracy charged. In dealing with the cases of the second and third appellants he recited briefly the evidence against them individually and having said in each case that it satisfied him beyond reasonable doubt as to the guilt of the particular accused he turned, in each case, to consider what had been put before him by the defence. In each case having reviewed that evidence he went on to state his conclusions in the following way : (page 21 of the Reasons for Verdict)
That related of course to the case of the third appellant. As to the second appellant he said (page 27 of the Reasons for Verdict) :
His procedure in relation to the first appellant took a similar course. Having reviewed the evidence against him he found the case proved beyond reasonable doubt but he did not, as in the case of the other two appellants, make any explicit finding that the first appellant had not rebutted the prosecution case upon the balance of probability. He did however refer (page 11) to a particular part of the defence evidence and said that it had not convinced him that the first appellant was uninvolved in the corruption syndicate. Mr. Astin for the Crown has sought to persuade us that the passages to which we have referred involved nothing more than an unfortunate choice of terminology. We would greatly prefer to be able to adopt that point of view. While it can be said without doubt that the words used, if they had passed uncorrected in an address by a judge to a jury, would inevitably have led to the quashing of a conviction even if it were clear that they were the fruit of a momentary aberration, we are naturally loath to assume that an error of substance in this regard could have occurred in a case in which the judge was, as judge, addressing his own mind as jury. But even on its own the mere repetition of the same verbal error coupled with the same approach of finding the case proved beyond reasonable doubt before even considering the defence must raise some misgiving about the error being more than merely verbal. That suspicion is unfortunately greatly fortified by what occurred at an earlier point in the trial. On the 7th of July 1976 at the conclusion of the case for the prosecution having dealt with various submissions of no case to answer and having reviewed them the learned judge went on to address the first appellant as to his rights. It is fully conceded by the defence that what he then said was intended as an honest endeavour to give the fullest possible assistance to a man who was unrepresented. And what he said was in the following terms:
On the following day addressing the third defendant (not one of the appellants) he said:
The evidence of what was said on these occasions, it should be added, appears only in a contemporary note taken by defence counsel and placed before the court in a joint affidavit supplied by the two counsel concerned. Mr. Astin who conducted the case for the prosecution at the trial can only say that he cannot recall these words being used and in the circumstances we think that we must regard them as a substantially accurate record of what was said, especially in view of what appears in the Reasons for Verdict. Although Mr. Astin sought to persuade us that this was to be regarded as no more than an unhappy way of apprising the accused of the fact that there were a case to answer it is very difficult to form any opinion other than that the learned District Judge at that point in the trial had come to the conclusion that an onus of some kind had shifted to the defence. Even if he had advised them that it was desirable that they should say something to raise a reasonable doubt - although we do not by any means suggest that it would have been a desirable or even a proper approach to the matter - that might at least have left it arguable that he was still proposing to regard the evidence globally when the time came for him to consider all of it at the conclusion of the trial. But the words used display a double error which is very difficult to dispose of on the basis of a purely verbal aberration. Firstly they suggest that an onus has shifted and secondly that the onus is to prove something upon the balance of probabilities such as would be the case if the provisions of section 25 of the Ordinance had come into the picture. 7. At the very end of the case after pleas had been made in mitigation Crown counsel in a somewhat desperate endeavour to have the situation cleared up, was bold enough to solicit in court the learned judge's own opinion as to the meaning of the words he had used in his Reasons for Verdict. Mr. Hidden has challenged the propriety of Crown counsel's action in this regard and it was indeed strenuously resisted by counsel who ppeared for the defence in the court below. However that may be, it seems clear from the exchanges which then ensued that although the learned judge adverted in specific terms to the "very fundamental concept that an accused has to prove or disprove nothing throughout the whole trial" he persisted in the opinion that the burden of proof had shifted to the defence upon the conclusion of the prosecution case. What he said was that once the Crown had proved its case beyond reasonable doubt an accused "need prove no higher than on the balance of probabilities or the accused may in his defence cast doubt on the prosecution case." There, once again, is suggested the double confusion to which reference has been made already : the equating of a prima facie case with proof beyond reasonable doubt, and of the raising of a reasonable doubt with proof on a balance of probability. 8. With considerable reluctance we have come to the conclusion that these passages disclose that in coming to judgment the learned judge was looking at the evidence from the standpoint that an onus had been cast upon the defence in respect of all the charges; an onus moreover of the kind which could properly have arisen only in relation to the substantive charges, and then only upon the proof beyond reasonable doubt of the passing of money to the first appellant. Since the first appellant's defence to the substantive charges was, throughout, a total denial of having received any of the sums alleged there was never any question of his having to show that they were not received corruptly. Thus while the learned District Judge was clearly aware of the ordinary rule in criminal cases he was insensibly led to apply it wrongly, probably by the artificiality of the situation created by the combination of the charges and their relationship to section 25. If, as we think, the conspiracy charges were approached with a faulty understanding of the obligations resting upon the defence and the prosecution there can be no guarantee, in the absence of any overt indication in the Reasons for Verdict that a distinction was being made between the substantive and the other charges, that a similar error did not pervade the judge's approach to the question of whether or not the money mentioned in the fifth and sixth charges had passed and had been accepted by the first appellant. The error is not of a merely technical nature. As Mr. Hidden pointed out, had the first appellant not been informed that he had to disprove the prosecution case he might have been slow to enlist the doubtful witness, Jackson, in his defence, a man whose testimony was adversely treated by the trial judge. Finally, had the correct standard of proof been kept steadily in view we do not find it possible to say that a conviction upon any of these charges must have followed. 9. It is unnecessary to refer to the several authorities drawn to our attention by Mr. Hidden in respect of this first ground of appeal. 10. Mr. Wesley Wong for the fourth appellant supports Mr. Hidden's submissions upon this ground of appeal. We are satisfied that it concerns the case of his client equally with the cases of the other appellants. The matter is a severely factual one and unhappy as the result may be, in view of what has been said it was clear that none of the convictions could stand. 11. We have given anxious consideration as to whether or not we should order a retrial of these appellants. We would say at once that we do not for a moment accept Mr. Hidden's suggestion that in the case of a witness such as Smalls in the Turner Case(1) or Siu in this case, a conviction upon his uncorroborated evidence must be set aside in every instance or is even likely so to be set aside. 12. Nevertheless we consider that in the present case the interests of justice would be better served by our refusing to exercise our discretion to order a retrial. It has been urged upon us for the Crown that the public interest requires such a course but we do not so find. Nobody is more aware than the judges of this Court of the heinous nature of corruption in the public service nor of the public reaction to that state of affairs. But public interest must not be identified with public indignation. 13. Considerations of importance are the length and complexity of the trial in the court below which lasted for some three months, the small volume and tainted nature of the direct evidence which exists against any of the accused and the length of time (constantly increasing) which has elapsed since the events, to which witnesses would have to justify in a new trial, took place. 14. Moreover in considering the issue of retrial a question of paramount importance is the prospect of a further successful prosecution. We have not called upon counsel to go into all the evidence in detail or into all the remaining and, on the face of them not insubstantial, grounds of appeal because, even upon what has been displayed to us, we cannot be satisfied, on the nature of the evidence available - evidence which admittedly was embraced by the judge in the court below, but which was tainted at its source - that the next trial judge would necessarily or even probably take the same view of that evidence. Representation: A. Hidden, Q.C. & J. Bleach (Haldane & Co.) for 1st, 2nd & 4th Appellants Wesley Wong (D.L.A.) for 8th Appellant. Astin, Crown Counsel for Respondent. (1) 1975 Cr. App. R. 67. |