William Kwan Cheuk-yin and Another v. The Queen
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CACC000075/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 75 OF 1973 -----------------
----------------- Coram: Briggs, C.J., McMullin and Pickering, JJ. Date of Judgment: 20 June 1973 ----------------- JUDGMENT ----------------- Pickering, J.: 1. We are unaware of the identity of the draftsman, for the first accused in the court below, of the agreed Statement of Formal Admissions of Facts. We can only say that Machiavelli would have been proud to call him cousin and that the Crown fell into the pit dug for it. But before expanding that comment we must refer to the background of this appeal. 2. During the year 1971 there fell to be heard, before Judge T.L. Yang at the Victoria District Court, the case of Reg. v. Joseph Pereira and others. That case came to be referred as the Jockey Club Case and is believed to have been the lengthiest criminal trial in the history of the Hong Kong courts, lasting, as it did, from the 22nd March to the 7th December of that year with an adjournment for seven weeks during August and part of September, and another adjournment of some eight days during October. In that case all six accused were convicted of conspiracy to interfere with the true running of horses during the 1969/1970 racing season; their appeals to the Full Court were dismissed on the 20th July 1972. 3. The first appellant in the present appeal was Joseph Pereira's solicitor in the Jockey Club Case, whilst the second appellant was the 4th accused in that case. Mr. TANG Fu-man, who is referred to in the charge in the present case, was the 3rd accused in the Jockey Club Case. 4. The two appellants in the present appeal were charged with conspiracy, contrary to common law, in that they:-
5. For the purposes of the present case a Statement of Formal Admissions of Facts, signed for the prosecution and by the first appellant's solicitor, pursuant to s.650 of the Criminal Procedure Ordinance (Cap. 221) was before the Court. It was in the following form:
6. A similar agreed Statement of Formal Admissions of Facts as between the Crown and the second appellant was also before the court and was in the following form:
7. An essential difference between the cases against the first and the second appellant respectively was that the case for and against the second was contained in the agreed Statement of Facts relating to him, together also with his own oral evidence and that of two prosecution witnesses, whereas in the case of the first appellant there was no evidence for or against him other than in the agreed Statement of Facts. 8. Both accused in the present case were found guilty of the conspiracy charge before the Victoria District Court, the first accused being sentenced to twelve months imprisonment and the second to eighteen months imprisonment. They both now appeal against their convictions and sentences. The amended Further Grounds of Appeal filed on behalf of the first appellant number 25 whilst the Further Particulars of the second appellant's General Grounds of Appeal amount to twelve in number. 9. The week-long argument before this Court ranged wide but our decision can be contained within a relatively narrow compass: indeed had Mr. Wilmers taken the hint, extended by this Court at the opening of the appeal, and initiated his argument with Ground 19(b) of his Amended Further Grounds of the first appellant's appeal, the hearing could have been considerably abbreviated without difference to the result. That ground is simply that the charge laid in this case disclosed no offence known to law. 10. Quite simply, we agree. 11. There is abundant authority, which we think it unnecessary to cite, for the proposition that payments may lawfully be made to witnesses for the purpose of indemnifying them against loss incurred as a result of their attendance at court to give evidence. 12. In the present case, on the agreed Statement of Formal Admissions, the first appellant had been told, and believed, that seven witnesses were willing to retract their former false evidence and tell the truth and that each such witness required a sum of $10,000 of which $2,000 was to be paid first and the balance later. Moreover, on the agreed facts, at all material times the first appellant believed that this initial sum of $14,000, which was in fact paid, was required for two purposes, namely in part to pay for a press conference at which the earlier evidence would be retracted, but in the main as compensation for the witnesses concerned, whom the first appellant was given to understand and believed, would be dismissed by the Jockey Club upon their disclosure that they had given false evidence in the first instance. 13. In other words the payments made, and to be made, were partly for the purpose of expenses and partly compensatory in nature. It has been argued for the Crown, that the sums involved were so large that they could not have been intended solely for these two purposes. As far as the first appellant is concerned however, the Crown is bound by its acquiescence, in the Statement of Formal Admissions of Facts to the proposition that he believed that it was precisely for these two purposes, and for no other, that the payments were made and the further payments to be made. Even if this were not so, there was no evidence before the court as to the salaries and other perquisites of the witnesses involved, all of whom were employees of the Royal Hong Kong Jockey Club. It is well known that the Jockey Club is a good employer and that persons employed by that Club in connection with the training of horses have opportunities outside their official emoluments and perquisites, for making (and losing) money. Even on the assumption that the total income, from all these sources, of any individual witness involved was only $1,000 p.m. the proposed total payment, even if applied solely to its acknowledged compensatory purpose and without reference to any expenses of a press conference, would amount to no more than ten months salary - a figure which it would be difficult to argue was excessive as compensation for the loss of a job of a type unique in Hong Kong. 14. In short, the evidence in respect of the first appellant did not demonstrate that the payments made or to be made, were in any way unlawful. Had the charge alleged unlawful payments, which unaccountably it did not, the evidence would not have supported the charge. It is for that reason that it would be idle for this Court to hold that the defect in the charge was not of such gravity that no miscarriage of justice had occurred and, on that ground, to dismiss the appeal. Had the charge specifically alleged unlawful payments, that allegation would not have been supported by the evidence. Equally it would be futile for this Court to hold that it mattered not that the charge did not allege an inducement to the witnesses "falsely" to retract their evidence - for on the Statement of Formal Admissions of Facts the first defendant believed that the witnesses had given false evidence so that a retraction thereof could not, in turn, have been false. Thus, even had the charge alleged the "unlawful" offer of money to witnesses for the purpose of their "falsely" retracting their evidence, the situation revealed on the Statement of Formal Admissions of Factswould still not have amounted to the crime charged. 15. We doubt if s.650 of the Criminal Procedure Ordinance was ever intended to embrace everything and anything that could be said for and against an accused person; we doubt if the Crown, after this first experience, will ever again agree so to use it; we doubt if the learned judge, faced for the first time in the history of Hong Kong with a "complete" agreed Statement of Facts, realised how watertight that statement was. We refrain, at this stage, from any ruling as to whether an agreed statement of this type can bind not only the parties, but also the court, but we feel constrained to say that in view of the learned judge's ruling that the trial could proceed, so far as the first appellant was concerned, on the basis of the agreed statement and that only, that it would be utterly prejudicial to the first appellant for the judge at first instance, or for us, to stray outside that agreed statement. 16. That the learned judge did stray outside it is incontrovertible. Thus, having adopted the Statement of Formal Admissions of Facts made by the prosecution and by the first appellant's solicitors as his own findings of fact "as against the first accused", that is the first appellant, the learned judge went on to observe that it was conclusively proved as against the first appellant that at all material times the latter believed that the witnesses concerned had given false evidence and were offering to retract their evidence and to tell the truth. The significance of this observation is that the learned judge omitted to mention that this was conclusive proof not only as against the first appellant but also as against the Crown. Subsequently in his judgment, the judge said that it was clear from the facts that the money was paid in anticipation of, and for the purpose of, the witnesses retracting their evidence. That is one approach to the matter but it ignores the fact that the Statement of Formal Admissions of Facts agreed that the first appellant believed, at all material times, that the money was required for two purposes, namely, for payment of the press conference expenses but, in the main, as compensation for the witnesses concerned, whom, he believed, would be dismissed by the Jockey Club upon their disclosing that they had given false evidence in the first instance; again, the learned judge's comment that it was clear that the first appellant was party to an agreement involving himself, his clerk (Ma), Tang and probably the second accused, that the sum of $14,000 should be paid to those witnesses who would retract their evidence, ignores the fact that Ma was no more than a conduit pipe for the transfer of money from the first accused to Tang and was never a conspirator, there being nothing in the agreed facts to that effect; further, the learned judge said that the very fact that most of the sum was intended to compensate witnesses for the loss of their jobs, showed clearly that it was made in order for them to retract their evidence. The purposes of the payments were however, as we have already pointed out, set out in the Formal Admissions of Facts and were otherwise; moreover the learned judge referred to the payments as "such large sums of money" whereas, as we have seen, there is no evidence to show that they were in any way disproportionate in amount to their declared twin purposes; again in mentioning Mr. Hopkinson's argument to the effect that a person may do something with mixed motives, the learned judge does not say whether or not he adopts that argument but the Statement of Formal Admissions of Facts left no room for any finding of mixed motives. The judge later comments that there was no suggestion in the case of the Ibis VI(1) that the additional money paid in that case to the witness was for him to give evidence in a particular way. The inference is that the judge is here saying that the payment of money in the present case was for precisely that purpose but this, again, goes beyond the narrow confines of the Statement of Formal Admissions of Facts. 17. The learned judge, like any judge acting as judge and jury, was conditioned to a frame of mind in which inferences of fact, for or against an accused, can properly be drawn. What he overlooked when he came to consider his findings in the present case was that, the facts having been agreed between the prosecution and the defence and the court having acquiesced in the trial proceeding upon the basis of those facts, no room was left for inference. He was shackled. The Crown had hamstrung itself by agreed facts - and the judge had agreed to proceed upon the basis of those facts. Could he have done otherwise is, as we have said, a matter we reserve for future consideration - should the Crown ever get itself into this position again. In the meantime, the learned judge agreed to what he agreed and we, like him, are bound by his decision in that respect. Thus, there is no room for inference and the agreed facts, as far as the first appellant is concerned, are exclusive and binding. As we have seen, those facts, even had the charge been adequately drawn, revealed no offence. 18. An aspect of the case which, in retrospect, has caused us some hesitation, is that on the agreed facts, the first appellant believed that the $14,000 was required partly for the expenses of a press conference. This aspect of the alleged conspiracy was stressed by counsel for the Crown in his opening in the court below, was touched upon briefly by the learned judge in his judgment, alluded to by counsel for the Crown before us, and never dealt with by Mr. Wilmers. It is fair to say that the primary ground for the conviction lay in the offer of money to the witnesses for purposes other than the holding of a press conference and it was upon that ground that the appeal was fought. 19. But can the payment of money, part of which was intended for the payment of a press conference be wholly ignored? Here was a defence solicitor, an officer of the court, procuring and paying over money to the end that witnesses for the prosecution should, in the very middle of the trial, hold a press conference on the subject of the evidence they had already given in that trial; this as a unilateral action, without any approach to the Court or to the Attorney General. It has been urged on behalf of the first appellant that the counsel whom he had instructed was away from the Colony and that all he could do was to await counsel's return. There was in fact, much more that he could have done, quite apart from encouraging a press conference. He could have informed the Attorney General or his representative that he understood that certain witnesses for the prosecution wished to retract their evidence. Alternatively he could so have informed the Court. There is, in the District Court, no long vacation and the trial judge was in the Colony. Moreover, as a solicitor, the first appellant had a right of audience before the District Court. 20. Had a press conference been in fact held, at which witnesses retracted their evidence, their retractions being published, this must have influenced the course of the trial. However there is little doubt that no responsible editor would have published such retractions whilst the matter was sub judice, but equally any responsible editor would have ensured that the fact of the retractions came to the notice of the Attorney General. Thus, publication or not, the course of the trial would have been influenced. But does that involve, as a necessary corollary, that the press conference was calculated to interfere with the course of justice? The first accused's understanding, on the agreed facts, was that the witnesses wished to retract false evidence and tell the truth. Is the retraction of false evidence and its substitution by the truth, calculated to interfere with the course of justice? It certainly cannot amount to interference with the end-result of justice, that is to say it is not such an interference as would pervert the course of justice but it does represent interference in that it diverts the procedure of justice from the courts to the press without the safeguards of court procedure. Mr. Hopkinson argues that if you pay witnesses before a press conference, you have them in your pocket in regard to what they will say at the conference. But this overlooks the fact that there is no evidence of any attempt to brief the witnesses as to what they should say at the conference, and that the first accused's belief was that what they were to say would be the truth. 21. Moreover there is no evidence as to how the $14,000 was to be apportioned between the expenses of a press conference (which could presumably only involve the hiring of a room) and compensation for the expected loss of the witness's jobs. No evidence, that is to say, that any inflated sum was being offered to induce the holding of the conference and thus influence what was to be said by the witnesses at such conference. 22. The payment of money to finance the expenses of a press conference of this nature, was an outrageous course of conduct on the part of a defence solicitor but, having regard to the agreed beliefs of the first appellant, we are unable to say that such conduct was unlawful within the terms of the charge brought. 23. Had those terms been wider, or had there been an alternative charge of conspiring to commit a contempt of Court by by passing the ordinary processes of the Court by adducing "evidence" at a press conference, our conclusion might well have been different. But the charge, though insufficiently restrictive in that it failed to allege the "unlawful" offer of money to witnesses, to induce or persuade them "falsely" to retract their evidence, was restrictive in the sense that it ignored the element of the press conference. It is for this reason that whilst deploring the conduct of the first appellant in regard to the proposed press conference, we are unable to say that such conduct was unlawful within the terms of the charge brought. 24. In the case of the second appellant the Statement of Formal Admissions of Facts did not go so far as in that of the first. In the second appellant's case there was no agreement that at all material times he believed that the witnesses had given false evidence and were offering to retrace their evidence and to tell the truth. Nor was it agreed that the second appellant believed that the $14,000 was required for two purposes, namely, in part to pay for the expenses of a press conference but in the main as compensation to the witnesses concerned, for their dismissal by the Jockey Club. 25. Indeed there was no evidence that the second appellant was, at any material time, aware that as much as $14,000 had been handed to Tang by the first appellant. 26. None of this matters however, in the light of the fact that we have held that the charge, as drawn, revealed no offence. If some payments to witnesses are lawful and only some are not, the prosecution must charge and allege the unlawful character of the payments said to have been made or agreed. That was not done nor was it alleged that the offer of money was to induce or persuade witnesses "falsely" to retract their evidence. It follows that the appeal of the second appellant, like that of the first, must succeed. 27. Treating the applications for leave to appeal as the appeal, the appeals are allowed. Representation: Wilmers, Q.C., Galpin & Arculli (Lo & Lo) for 1st appellant. Gittins, Q.C. & R. Tang (Hastings & Co.) for 2nd appellant. Hopkinson, Assistant to Attorney General & Penlington, D.C.S. for Respondent. (1) (1921) P. p.255 |