HKSAR v. Ying Jim Ming, Jimmy and Others

HCMA 432/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 432 OF 2009

(ON APPEAL FROM TMCC 2725/2008)

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BETWEEN

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Before: Hon  Wright J

Date of Hearing: 15 April 2010

Date of Judgment: 6 May 2010

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J U D G M E N T

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1.The appellants were convicted after a trial which lasted for a 24 days spread over four months. The Deputy Magistrate delivered her 93 page verdict, convicting each appellant, some seven weeks later. She convicted the first appellant of Charges 1 to 4 and the second and third appellants of Charges 5 to 7. Each appealed the convictions.

2.The first appellant was sentenced to undergo imprisonment for 12 months on each charge with 2 months of each of the sentences on Charges 2, 3 and 4 to be served consecutively, making an aggregate period of imprisonment of 18 months: the second and third appellants were sentenced to undergo imprisonment for 12 months on each charge with 3 months of the sentences on each of Charges 6 and 7 to be served consecutively, also making an aggregate period of imprisonment of 18 months. The first appellant gave notice of his intention to appeal the sentence imposed upon him but, at the hearing, abandoned the appeal which consequently was dismissed.

3.The second appellant applied for bail pending appeal. That application was granted by Saw J. on 2 June 2009.

The background and the Charges

4.The first appellant was employed by the Hong Kong Housing Society in a Property Management Advisory Centre. Employed with him was one CHU Ka-hang (CHU), who had been charged with the others but offered to plead guilty to the charges against him and to testify against his co-accused: this he did. The reality of the situation was that his testimony, and thus his credibility, was fundamental to the prosecution case: it is hard to see how, without it, the prosecution would have succeeded. The magistrate appreciated the importance of his evidence.

5.Thus CHU and the first appellant were public servants within the definition of that term contained in the Prevention of Bribery Ordinance, Cap. 201 (the Ordinance). The second and third appellants were, respectively, a director of W K Construction Company Limited (WKCCL) and a partner of Ng Yip Yeung Consultancy Company (NYYCC) .

6.The charges related to moneys paid to and/or shared by CHU and the first appellant by the second and/or third appellant as well as conspiracies relating to the payment, or potential payment, of those advantages and advantages from others, the payment in each instance being as an inducement to or reward for or otherwise on account of either CHU or the first appellant or both of them performing or abstaining or having performed or abstained from performing a specified act in his/their capacity as a public servant. Each offence was said to relate to the offer or acceptance of an advantage to or by a public servant, or a conspiracy to do so, contrary to s. 4(2)(a) of the Ordinance.

7.The charges may be summarized as follows:

Charge 1:   first appellant and CHU accepted an advantage, $13,000.00 - $15,000.00 in cash, from second and third appellants in February 2008 for assisting WKCCL to obtain a renovation contract relating to Kwan Wah Building.

Charge 2:   first appellant and CHU conspired together to accept advantages from building consultants or contractor generally between an unknown date in 2007 and 1 April 2008.

Charge 3:   first appellant accepted an advantage, $10,000. in cash, from CHU between October and November 2007 for assisting WKCCL to obtain a renovation contract relating to Fook Shun Building.

Charge 4:   first appellant accepted an advantage from CHU, namely one half of the amount received by CHU, on 1 April 2008 for assisting WKCCL to obtain a renovation contract relating to Kwan Wah Building.

Charge 5:   second and third appellants conspired together, before 30 November 2007, to offer CHU an advantage for assisting WKCCL to obtain a renovation contract relating to Fook Shun Building.

Charge 6:   second and third appellants conspired together, between an unknown date in 2007 and 1 April 2008, to offer CHU an advantage for assisting WKCCL to obtain a renovation contract relating to Kwan Wah Building.

Charge 7:   second and third appellants conspired together, between an unknown date in 2007 and 1 April 2008, to offer CHU an advantage for assisting WKCCL to obtain a renovation contract relating to Ho Fat Building.

8.In short, CHU was the man with the contacts in the form of the second and third appellants, each of whom was interested, in his own way, in securing renovation contracts: he acted as the go-between, between them and the first appellant who, it seems, he involved in the dishonest scheme in order to preserve his own position, the first appellant being his supervisor. Charges 1, 3 and 4 revealed that CHU had shared the amounts he received from others with the first appellant.

9.Although the evidence was that neither CHU nor the first appellant was in a position to actually award any contracts they were in a position, albeit more so CHU, to pass on information to the second or third appellants which may have been of interest or assistance to them in connection with tenders as well as to “advise” those persons who or bodies which would decide upon the award of contracts.

10.CHU, in particular, dealt extensively with representative groups of owners of flats, known as Incorporated Owners, which sought subsidies under a Hong Kong Housing Society scheme, known as the Building Maintenance Incentive Scheme, to renovate common areas of their buildings. The magistrate set out CHU’s role in detail, demonstrating that he had ample opportunity to influence, subtly, their decisions.

The evidence

11.The day subsequent to his arrest the first appellant made certain statements to ICAC officers which were recorded in the notebook of one of their number: thereafter he was interviewed under caution, which interviews were video recorded. The admissibility of the notebook entry and the record of the second interview was challenged. The magistrate held a voir dire.  Three ICAC officers testified as did the first appellant and his wife. The magistrate found, for sound reasons, the evidence to be admissible. The first appellant’s first ground of appeal challenges that decision without expressly saying so.

12.In addition to the testimony of CHU on the general issue, the prosecution recalled one of the three ICAC officers who had testified on the voir dire; a further two ICAC officers; two representatives of different Incorporated Owners, one from each of the buildings referred to in Charges 5 and 7; a witness who remained unidentified in court but whom the magistrate described as the “Surveillance Officer”, upon whose evidence the magistrate asserted she did not rely; and agreed facts.

13.Each appellant elected to remain silent but to call one witness on his behalf. Those called by the first and second appellants were representatives of different Incorporated Owners, neither of which was a building referred to in any of the charges, whilst that called by the third appellant was his partner in NYYCC.

14.In the light of the nature of the accumulated Grounds of Appeal it does not appear to me to be necessary to trawl through the evidence of individual witness save where a particular Ground of Appeal makes it necessary to consider the evidence in relation to that issue: the broad background to the case already given is sufficient.

15.The fundamental issue on this appeal is whether the magistrate was correct in accepting CHU as a reliable witness, a witness of truth. It appears to be worth repeating that a magistracy appeal is a re-hearing by this Court on the material before the magistrate together with such other evidence as this Court may allow: it is for me to come to my own conclusion whilst bearing in mind that I do not enjoy the advantage of having received the evidence at first-hand (see CHOU Shih Bin v HKSAR [2005] 1 HKLRD 843 §19)

16.The approach to be adopted, in my judgment, is to ask, first, whether I can be confident that the magistrate was correct in arriving at her assessment, for the reasons which she gave, of the creditworthiness of CHU and, secondly, if so, does the evidence, especially that of CHU, prove the commission of each offence against each accused as charged to the requisite standard. As will be seen, I am satisfied that the magistrate was entitled to arrive at the decision which she did: it is therefore unnecessary, for the purposes of this appeal, to consider what course would have to be followed had I arrived at a negative view.

17.Considerable reliance is placed in this appeal on the existence of discrepancies between CHU’s testimony and the contents of statements, especially a nonprejudicial statement, made earlier.  The real issue on this appeal is not whether the magistrate was wrong in making the finding that the discrepancies identified by her were not material but whether I come to a contrary conclusion in the sense that those discrepancies cause me to doubt her assessment of CHU’s credibility.

18.It is well settled that an appellate court will “act with the greatest caution” and be “slow” before interfering with a trial court’s finding on the credibility of a witness (see, e.g., R v Robert Eli Low [1961] HKLR 13,  HKSAR v LEE Hon-shun CACC626/1999 and HKSAR v CHAN Shu-lun CACC336/2008) and “slow to interfere on the basis of discrepancies” even with a decision which has to be proved to the criminal standard (HKSAR v KO Man-chun FACC8/2009 §7).

The grounds of appeal

19.Three of the Grounds of Appeal are common to the appellants, two are common to the second and third appellants and others are appellant-specific. I propose to deal first with the first two common grounds, the third being the catchall submission that the convictions were unsafe and/or unsatisfactory to which I shall return after considering the remaining grounds raised by individual appellants; then with the Grounds common to the second and third appellants.

The constitutionality of s.61(4) of The Interception of Communication and Surveillance Ordinance, Cap. 589 (ICSO) [Ground 7, Ground 5 and Ground 1 of the first, second and third appellant respectively]

20.Although apparently not the first time this issue was touched upon, the question of whether the appellants were deprived of a fair trial by the prosecution’s non-disclosure of telecommunications interception product came to a head during the cross-examination of an ICAC officer, SO Wing-keung, who testified as PW6. His testimony was relevant in regard to the reason why CHU had decided to plead guilty to the charges against him, make a non-prejudicial statement and testify against his co-accused.

21.CHU's wife had been arrested on 1 April 2008 and released on bail on 3 April. She was required to answer to her bail on 22 April: when she did so she was released unconditionally. The defence took the view that CHU had come to an arrangement with the ICAC that his wife would be released if he pleaded guilty and gave evidence on behalf of the prosecution. CHU denied such an arrangement: other witnesses denied any knowledge of one.

22.Counsel appearing for the first appellant at trial, not Mr. Charles Chan who appeared for him on this appeal, cross examined PW6 on this issue until the following exchange occurred:

“Q:    Why was Mrs Chu arrested?

A:      Because she was also suspected of accepting and advantage.

Q:      On what grounds?

A:      (No audible answer)

Q:      Someone made an anonymous complaint, or what? You   don't have to tell us who that was, I just want to know the    source?

A:      It was from the findings of our investigation.

Q:      What investigation?

A:      The investigation about the cases involving building          maintenance.

Q:      I know, by what means ICAC learned about the fact - or             learnt about she knew?

A:      I can only say that it was from the findings of our  investigation.

Q:      I want to know the source of that finding, how you arrived            at that finding, please?

A:      I cannot say.

Q:      Why not, touch on national security?

A:      No.

Q:      Well tell us. If anything wrong I am sure Mr. Chau is going            to stop me, or the court will stop me, it is an important          question.

A:      I believe I cannot say.

Q:      It is not what you believe, you're on oath. Or because of some statutory provision, tell me. I'm stupid.

A:      I think the prosecutor will have to take care of the statutory provisions.

Q:      So it is not - statutory provisions what else to stop you     from revealing, how?

A:      It was known from a source.

Q:      What source?

A:      (No audible answer)

Q:      Go on, Mrs Chu is not on trial, is not charged with anything. Tell us?

A:      (No audible answer)

Q:      Officer, I'm still waiting. You know the price of perjury do you?

A:      It was obtained from telephone tapping.

Q:      Thank you. Between who and who?

Prosecutor: Excuse me, could the witness leave?”

23.I fail to understand why neither the prosecutor nor the magistrate reacted to the witness’s indication that he "cannot" provide the information, more especially when he went on to indicate that the "prosecutor will have to take care of the statutory provisions". It seems to me that it must have been abundantly apparent that there should have been an intervention at that stage.

24.Once the witness had left the court the prosecutor indicated to the magistrate that he "... had no idea... until it was revealed today that there was interception", pointing out that it was up to the ICAC to decide whether material obtained in the course of telecommunications interception was disclosable in terms of the provisions of ICSO and that only if the ICAC determined it to be disclosable would he be informed that that had occurred.

25.There then ensued a period of exchanges between the magistrate and counsel, replete with interjections by counsel whilst others were speaking and with counsel, and the magistrate, talking over one another, which should not have occurred nor have been permitted to have occurred. This took place late in the afternoon: after some time the magistrate asked whether there were any observations by "defence counsel" and Mr. Souyave, who appeared for the second appellant both at trial and at this appeal, indicated that he would "make one tomorrow". The matter was adjourned to the following day.

26.When proceedings resumed then counsel for the first appellant launched into a series of submissions which were oral amplifications of a document headed "Overview on the constitutionality of Section 61(4) and (3)(e) (sic) of Cap. 589". Earlier in the trial he had made what, at that stage, he referred to as "…my estoppel application…" which I take to be an application which, at the conclusion of CHU's testimony, he had made to stay the proceedings on the basis that the first appellant's right to a fair trial had been prejudiced by CHU exercising his privilege against self-incrimination: unsurprisingly, the magistrate summarily disposed of that application.

27.It is appropriate to say that the submissions made to the magistrate were unstructured and unfocused. There does not appear to have been any identified application made to the magistrate: no attempt appears to have been made to articulate or formulate any relief sought. Despite the convoluted nature of the submissions made to the magistrate and the manner in which she expressed herself in her ruling, it is apparent that he was suggesting that the trial should not proceed as the lack of disclosure by the ICAC of the interception product meant that the first appellant had been unable to receive a fair trial. Indeed, the magistrate noted almost in passing that "The defence argued that it would be appropriate to stay or dismiss the preceding if a fair hearing is no longer possible".

28.The magistrate adjourned to consider her ruling. She ruled, giving what she described as brief reasons, that ss.61(3)(d) and (4) ICSO were “not unconstitutional". She observed "Yes, let's continue with the evidence" thereby effectively, if not expressly, refusing any implicit application for stay of proceedings. The trial then proceeded to its conclusion.

29.The magistrate handed down her judgment which is one and the same as the later statement of findings. In the course of that judgment she saw fit to return to the ruling which she had earlier made relating to the "constitutionality" of section 61(3)(d) and (4) ICSO. She amplified the ruling, saying:

"I might add, however, that even if s. 61(4) is unconstitutional as it infringed the right to material disclosure, I am of the view that nondisclosure of the products of the telephone interception is constitutionally justified."

30.It is this amplification of her earlier ruling which has led to this ground of  appeal. This demonstrates with particular clarity how revisiting earlier rulings where reasons have been given is a hazardous course to follow: either full reasons should be given at the time of delivering the ruling with no further reference in the final judgment or simply the ruling should be given with an indication that the reasons will follow at the time of judgment.

31.As this is an appeal from a magistrate it falls to me to decide whether there should have been a stay of proceedings on the basis that the nondisclosure of the interception product rendered a fair trial impossible.

32.The core of the argument advanced on behalf of the appellants concerns s. 61(4) and is that its effect is to make, in this case, the ICAC the judge in its own case as it affords it the right to make the primary determination as to whether the interception product contains disclosable material; that the ICAC invokes the provisions as justification for not disclosing the interception product; that that nondisclosure prejudiced the appellants in their cross-examination of CHU, especially as to his credit; and that consequently the appellants were deprived of a fair trial.

33.It emerged, for the first time, from the respondent’s written submissions that the interception product had been destroyed, presumably in accordance with s.59(1)(c) ICSO, prior to the commencement of the trial and thus in any event would not have been available to the defence.

34.The duty of disclosure by the prosecution was considered by the Court of Final Appeal, specifically in connection with an application for stay of proceedings, in HKSAR v LEE Ming Tee and Ano. (2003) 6 HKCFAR 336 from which the following extracts assist:

“155. The principles relating to disclosure articulated by the English courts are based on the defendant’s common-law right to a fair trial and on the principle of openness. It is, therefore, appropriate that this court should have regard to them in ascertaining the common law of Hong Kong. The principles recognise that the prosecution is under a duty of disclosure to the defence which extends to material in the possession or control of the prosecution which may undermine its case or advance the defence case.

157.  … the Basic Law and the Bill of Rights do not take the duty of disclosure further than it is taken by the common law.

159.  The duty rests with the prosecution or prosecuting counsel. The duty should be considered as one imposed on the prosecution generally (so in this case it was the DOJ), though it is generally performed by counsel who is briefed and conducts the prosecution. It would be unduly restrictive to say that the duty is confined to prosecuting counsel.

161.  The prosecution's duty is to disclose to the defence material (including information) in its possession or control. That will ordinarily include materials that have been gathered by the investigating agency... and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor's duty is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency.

162.  In order to ensure that all disclosable material is provided to the defence, prosecuting counsel should instruct investigating officers and, where appropriate, witnesses to bring to counsel’s attention any material that may be disclosable. …

[Emphasis supplied]

35.That the fundamental right to a fair trial is an absolute right does not mean that there may be no qualification of individual facets of that right or that any such qualification will necessarily result in that trial being unfair:

“Although the right to a fair trial contained in Article 10 does not provide expressly for exceptions and is absolute, it is nevertheless clear as a matter of principle that certain facets of this right (such as the right to silence) are not absolute and are capable of derogation or qualification.  There are so many aspects of what is meant by a fair trial that were no derogation permitted at all of these facets, the very concepts of a fair trial and the administration of justice can themselves be threatened.” per MA CJHC in Secretary for Justice v LATKER HCMA521/2008

36.S. 61 ICSO, in its relevant parts, provides:

…
(3) In any proceedings before any court (other than any such proceedings instituted for a relevant offence), any evidence or question which tends to suggest any of the following matters shall not be adduced or asked—

…
(d) that any information has been obtained pursuant to a relevant prescribed authorization.

(4) Notwithstanding subsection (2) or any other provision of this Ordinance, where, for the purposes of any criminal proceedings (whether being criminal proceedings instituted for an offence or any related proceedings), any information obtained pursuant to a relevant prescribed authorization and continuing to be available to the department concerned might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence—

(a) the department shall disclose the information to the prosecution; and
(b) the prosecution shall then disclose the information to the judge in an ex parte hearing that is held in private.

(5) The judge may, further to the disclosure to him of the information under subsection (4)(b), make such orders as he thinks fit for the purpose of securing the fairness of the proceedings.
(6) Where any order is made under subsection (5) in any criminal proceedings, the prosecution shall disclose to the judge for any related proceedings the terms of the order and the information concerned in an ex parte hearing that is held in private.
(7) Notwithstanding subsection (5), no order made under that subsection authorizes or requires anything to be done in contravention of subsections (1), (2) and (3).
(8) In this section—
…
"relevant offence" means any offence constituted by the disclosure of any telecommunications interception product or of any information relating to the obtaining of any telecommunications interception product (whether or not there are other constituent elements of the offence);
…
"telecommunications interception product" means any interception product to the extent that it is—

(a) any contents of a communication that have been obtained pursuant to a relevant prescribed authorization; or
(b) a copy of such contents.

37.ICSO came into effect in 2006. Prior to then telecommunications interceptions had been conducted according to an established government policy and pursuant to an authorisation issued by the Chief Executive under of s. 33 of the Telecommunications Ordinance, Cap. 106 (see MO Yuk-ping v Secretary for Justice CACV270/2005 §5).

38.It is notable from §162 of LEE Ming-tee that the Court recognised that the primary task of determining what is disclosable material rests on the investigating body. Commonsense dictates that that must be so for the contrary would result in even the most obviously irrelevant material being passed on to the prosecutor for consideration as to disclosability: there must be an initial screening process which, inevitably, will be carried out by the persons gathering the material.

39.It is also relevant to note that the requirement in s. 61(4) that there be disclosed material which "... might reasonably be considered capable of undermining the case for the prosecution against the defence or of assisting the case for the defence..." is couched in strikingly similar terms to the principle enunciated in §155 of Lee Ming-tee.

40.By the time ICSO came into effect the Interception of Communications Act 1985 in England had been in operation for some 20 years and tested throughout the courts there as well as before the European Commission of Human Rights and the European Court of Human Rights. Certain of its provisions bear strong similarities to the Hong Kong legislation, ss. 9 and 6 being the substantial equivalents of ss. 61(1) and 59(1)(c) ICSO.

41.ICSO goes substantially further than the English legislation in spelling out administrative and procedural matters as well as creating the mechanism for ex parte review by a court of material perceived by the investigators to be disclosable, a feature which is absent from the English legislation as such. However, the English practice now is that if it is desired not to disclose material which would otherwise be a disclosable an application is made ex parte to a judge for the withholding of the material on the basis of public interest immunity. To all intents and purposes, therefore, the procedure is substantially the same as that prescribed by s. 61(4) ICSO.

42.In R v Preston [1994] 2 A.C. 130, a matter in which the appellant similarly asserted that he had been deprived of a fair trial due to incomplete disclosure resulting from not having been provided with intercept product, Lord Templeman observed 142A:

"For my part I consider that the arguments put forward on behalf of the defendants are quite untenable. The Act of 1985 requires the destruction of material which might otherwise be probative of the guilt or innocence of the defendant. Parliament cannot have intended that a defendant should be able to rely on the absence of that material in order to secure an acquittal. The trial must proceed as if the intercepted telephone conversations had never been recorded."

Lord Jauncey of Tullichettle observed at 144F:

"The defendants argued strenuously that failure to disclose intercepted material could result in prejudice to defendants. In my view, any prejudice which might result to the defence must be far outweighed by the inability of the prosecution to make use of incriminating material gleaned from an interception. It is likely that in the great majority of cases in which a prosecution follows telephone-tapping the material of the intercept will incriminate rather than exculpate one or other of the parties to the intercepted conversation and would be of assistance to the prosecution if it were available in evidence."

whilst Lord Mustill, delivering the lead speech, said at 168H-169B:

"In the end, however, I consider that the very real apprehensions voiced by counsel for the defendants cannot prevail over the plain intent and wording of the Act. The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. Hence sections 2 and 6. These policies are in flat contradiction to current opinions on the "transparency" of the trial process. Something has to give way, and the history, structure and terms of the statute leave me in little doubt that this must be the duty to give complete disclosure of unused materials. The result is a vulnerable compromise, but it may be the best that can be achieved. At all events I conclude that it is the one which the statute does achieve..."

[Emphasis supplied]

43.That appeal was dismissed and an attempt to have the issue considered by the European Commission of Human Rights was declared by the Commission to be inadmissible (Preston v United Kingdom App. No. 24193/1994). The Commission noted that the prosecution was prevented from basing its case on, or referring to, the information obtained from the interception product.

44.Jasper v United Kingdom  30 E.H.R.R. 441 was a similar matter before the European Commission and, then, the European Court of Human Rights in which it was asserted that the refusal to disclose, on the basis of public interest immunity, what would have been disclosable material in the normal course of events, had deprived the applicant of a fair trial having resulted in inequality of arms.

45.The Commission concluded by 19 votes to 11 that there had been no violation of Article 6 of the European Convention on Human Rights. The Court, by 9 votes to 8, arrived at a similar determination. In the course of that determination the majority found:

"51.   It is a fundamental aspect to the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused.

52.    However, as the applicant recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest..."

46.The point taken by the appellants before the magistrate is on all fours with the points taken in regard to the English legislation which, as indicated, is in substantially similar terms to the Hong Kong legislation. I am satisfied, with respect, that the reasoning in the various judgments, or majority judgments, to which I have referred is of equal applicability to s. 61 ICSO.

47.I am satisfied that, insofar as those provisions constitute a derogation from the right to full disclosure, they are rational and proportional and do not conflict with the Basic Law or Article 10 of the Hong Kong Bill of Rights: rational, in that they seek to preserve the confidentiality of the procedures, systems and methodology of telecommunications interception, both at the application and execution stages, which is in the public interest in the self-evident need to collect intelligence - as opposed to evidence - for ongoing prevention and detection of crime; proportional, in that, first, no imbalance arises between the prosecution and defence in any subsequent trial inasmuch as neither may introduce interception product as evidence, secondly, as any material would have had to have involved a communication to which the accused had been a party for it to have been admissible in any event meaning that the accused would be as aware of its content as would those responsible for the intercept, thirdly, there is restricted dissemination of the intelligence obtained and, fourthly, the intercept materials are disposed of expeditiously.

48.That does not bring finality to this issue as it is well settled that the mere failure to make disclosure will not result, of itself, in a stay of proceedings. Each appellant needs to show that as a consequence of that failure, firstly, he has been prejudiced or potentially prejudiced and, secondly, that that prejudice or potential prejudice will result in it being impossible for him to have a fair trial. The only assertion that has been made on behalf of the appellants is that had the intercept product been disclosed it "would have" provided an avenue of cross-examination of CHU.

49.There were differences between a nonprejudicial statement made by CHU and his testimony in court. That topic is dealt with when considering other grounds of appeal. The argument on behalf of the appellants was that this demonstrated that he was a person upon whose testimony it was unsafe to rely and that, therefore, it must be that the intercept product would have formed another vein which counsel could mine for contradictions. There was, during the course of the trial simply no evidence to this effect. This submission amounts to nothing more than an assumption. At best it could be contended that the disclosure "may have" opened such an avenue which immediately demonstrates the speculative nature of the submission.

50.There is no basis upon which these proceedings could properly have been stayed.

The acceptance of CHU’s evidence in the light of the conduct of the ICAC [Ground 4, Grounds 1, 2 and 3 and Ground 2(b) respectively]

51.This ground is based upon the submission that an officer or officers of the ICAC had told CHU that he was to give his evidence in court in accordance with a nonprejudicial statement which he had made in the course of the investigation. It is submitted that such conduct constituted a material irregularity in the trial in the light of the decision of the Court of Appeal in HKSAR v LEUNG Kai Cheung [2002] 1 HKLRD 771.

52.It is necessary to look at the context of the cross-examination. CHU had been asked on behalf of the second appellant about his meeting with SO Wing-keung prior to the trial during which his nonprejudicial statement had been read to him. This exchange occurred:

“Q.    Were you told to give evidence as per NPS?

A.      He told me to read the statement well.

Q.     What for?

A.      He told me to read the statement well. As a witness of this trial, when he told me to do that I don’t know the reason why.

Q.     You were told to give evidence according to the NPS?

A.      I don’t remember whether anyone had told me that.

Q.     Do you think you had to give evidence according to the NPS?

A.      Yes, I had to.

Q.     If you did not give evidence according to the NPS, you will lose immunity.

A.      It had been mentioned.

Q.     Who had mentioned to you?

A.      When I received the copy of the immunity, it had been mentioned.

Q.     Who mentioned it to you?

A.      It was stated in the immunity.

Q.     Let’s see? Look at the immunity please. Where say?

A.      The second paragraph. It does not say in this immunity that one had to give evidence as per the contents of the NPS. But if a person is to give false or contradictory statements during the trial, one might lose immunity.

Q.     Who mentioned it to you, you had to give evidence per the contents of the NPS?

A.      I don’t remember who, but someone mentioned it to me.

…

Q.     Who do you think it might be?

A.      It was possible be Mr So or Miss Mak.”

[Emphasis supplied]

53.His evidence plainly was that he appreciated from the immunity from prosecution which had been given to him that he was required to tell the truth. He repeated that on a number of occasions. It was suggested to him a number of times, which I do not imply was inappropriate, that he had been told by the ICAC to testify in accordance with his nonprejudicial statement. He accepted that this “had been mentioned” on one occasion: when pressed further, he said several times that he could not remember who it was who had said that to him but eventually said it was “possible” it had been two ICAC officers whom he named.

54.It is obvious that he was not giving evidence in accordance with the statement: indeed, the appellants rely upon differences between the statement and his testimony as another ground of appeal.

55.The decision in  LEUNG Kai Cheung is factually entirely distinguishable from the present situation. In that matter the indemnities offered to witnesses had been offered orally from the Bar table: it was a specific condition of the indemnities themselves that the witnesses testify in accordance with previous statements. In the present matter, the indemnity given to CHU was written and makes no reference to the giving of evidence in accordance with any statement. To the contrary, it is specific that evidence given must be truthful. CHU was quite clear in his evidence about this: the emphasized passage in his answer makes it apparent that he was fully aware of his duty to give truthful testimony, no matter what might have been mentioned to him by others about his statements.

56.As Stock JA pointed out in LEUNG Kai Cheung at §47:

“What is objectionable, in our view, is the form of immunities offered in this case in their several permutations, the effect of which – an effect aggravated by reminders at the outset of the evidence of the witnesses that they had made these very statements – was to direct them to stick to their statements.”

57.That is a far cry from the present situation. There is no merit in this Ground.

58.Ground 4 of the second appellant’s Grounds of Appeal and Grounds 4 and 5 of the third appellant’s Grounds of Appeal each concern the discrepancies in the evidence of CHU which, they assert, render the magistrate’s acceptance of his testimony wrong. They may conveniently be considered together.

Ground 4 (second appellant): Having found that there was no supporting evidence of [Chu] (the only evidence against the applicant) the learned Deputy Magistrate wrongly accepted his evidence and/or wrongly ignored and dismissed as "insignificant and irrelevant" material inconsistencies and improbabilities in the evidence of [Chu] which should have raised sufficient doubt as to the truthfulness of his evidence.

Ground 4 (third appellant): the Deputy Magistrate failed to sufficiently consider evidence favourable to the defence [in itemised respects]

 Ground 5 (third appellant): the Deputy Magistrate wrongly made findings of facts that were irrational [in itemised respects]

59.I have revisited each of the inconsistencies or discrepancies recorded by the magistrate in the Statement of Findings, especially those listed in §267 and all of those referred to in the Grounds of Appeal: in context, I, too, am of the view that none is, and that cumulatively they are not, material although the description of some of them as being “insignificant and irrelevant” perhaps puts it at a somewhat higher level than would I. In any event the magistrate qualifies that phrase at §370 where she expressly says:

“I have carefully considered all the points made by the defence counsels both individually and collectively. I am satisfied there are no material and significant discrepancies and improbabilities in the evidence which cause me to doubt the findings that I have made…”

60.This was a long trial. CHU testified for 12 days. He was cross-examined, in minute detail, from three different perspectives. The circumstances surrounding the charge involved a number of different persons, dates, events, amounts of money and other details. It would have been more worthy of comment had there not been a number of discrepancies between his earlier statement’s and his testimony.

61.The magistrate was well aware of both the fact that CHU had a vested interest in testifying and of the shortcomings in his evidence: see, for example, §§247-248; § 313 “I am mindful of CHU’s despicable character…”; and particularly at §318 where she says:

“CHU had given evidence before me for 12 days. I have the benefits of hearing his evidence and seeing his demeanor in court in all the details. He gave evidence on topics covering a long period of time and involving a number of people on varying occasions. I found that he is a truthful witness, trying his best to give an account of his dealings with different people…and events. His recollection may not be perfect, but the essential features of his evidence are reliable. I accept his evidence.”

I note, too, her observations at §265 of the Statement of Findings, specifically in relation to dates and times of discussions, that she accepted that “…it was the best that [CHU] could recollect.”

62.She had the benefit of detailed submissions on behalf of the appellants spelling out the weaknesses in CHU’s testimony. She was fully aware of the task which faced her.

63.The Grounds also complain that certain evidence called CHU’s credibility and reliability into account yet the magistrate failed to “resolve” the doubts. There is no duty on a magistrate to resolve every conflict that may emerge on the evidence, only material conflicts. None of the matters itemised by either appellant affects the magistrate’s assessment of CHU’s credulity and reliability in my judgment.

64.I turn now to the remaining Grounds of Appeal of the first and third appellants.

The first appellant

Ground 1: 1. The learned Deputy Magistrate erred in law in having taken into account the admission of guilt of an accomplice [CHU] in determining the admissibility of Exhibit P1, a set of post-recorded notebook entries and Exhibit P3, a video recorded interview.

2.       Alternatively, the learned Deputy Magistrate erred in law in having taken into account irrelevant, inadmissible and highly prejudicial matter i.e. the admission of [CHU] of having given bride (sic) money to [the first appellant].

65.This Ground results from a misunderstanding of the Statement of Findings. At §18 the magistrate simply was recording what the prosecution case was asserted to be – not what she accepted in the course of reaching her decision on the admissibility issue. This is highlighted by the subheading immediately following that paragraph which is “Defence case” which she then proceeds to set out from §19.

66.Her reasons for admitting the evidence appear between §§42 and 52. Nowhere in that section is there any reference to, or suggestion of, the fact that she relied upon the comment of Senior Inspector Cheng. The submission on appeal that because she did not say that she had not relied upon it meant that she must have done is the wrong way around and furthermore demonstrates a lack of appreciation that this appeal is a rehearing: the trial was before a professional magistrate sitting alone – she is to be taken as not having relied upon inadmissible evidence absent any indication to the contrary.

Ground 2: the learned Deputy Magistrate erred in considering that the case for [the second appellant] and/or [third appellant] could not in law support the case for [the first appellant] or dilute and/or undermine the case against [the first appellant].

67.Again, a misapprehension of what the magistrate said. She is simply stating, and correctly, a fundamental principle. She is not addressing the issue to which this Ground appears to refer.

Ground 3: 4. The learned Deputy Magistrate erred in law in admitting the contents of the nonprejudicial statement and vide-recorded interviews of [CHU] as evidence of truth.

5. The learned Deputy Magistrate erred in law I admitting into evidence previous consistent statement of [CHU] for the purposes of proving the charges and reinforcing his credibility.

68.Insofar as it may be relevant in the context of a rehearing, it is necessary to look at what the magistrate actually did. CHU had been cross-examined, extensively, on the contents of the nonprejudicial statement and interviews: that is understandable, as the defence wished to undermine his credibility.

69.As a consequence, in the course of a detailed consideration of the issue of CHU’s credibility the magistrate noted the “strong objection” of counsel to the admission of CHU’s records of interview - although they are so plainly inadmissible it is hard to determine why the issue even arose - and indicated that she “…would just rely on the limited paragraphs read out during the cross-examinations”. She was following that course in considering credibility. It was proper.

70.Nor did she admit, as is suggested, a previous consistent statement for the purposes about which complaint is made. What she did, in the course of considering CHU’s credibility, was to have referred to those sections of his statement upon which he had been cross-examined and to consider his testimony in court in the light of that statement. This is particularly clear from §267 of the Statement of Findings in which the magistrate listed and considered a number of identified discrepancies. By considering only those passages referred to in cross-examination, and not the whole statement, she was exercising the appropriate degree of caution.

71.What is often overlooked by those representing an accused person is that the longer a witness is kept in the witness box by protracted cross-examination, the better the opportunity for the tryer of fact to assess the witness’s credibility. On occasions, this has the effect sought by the defence; on occasions, as this, it has the opposite effect. Where that cross-examination involves searching comparison of earlier statements with oral testimony the court is required, stating the obvious, to reconcile any material conflicts which might arise and, in doing so, is bound to have reference to the earlier statement/s. The magistrate did no more than that.

Ground 5: the learned Deputy Magistrate erred in law in holding that the exercise of right to refuse to answer cross-examination that might elicit self-incriminating answers by [CHU] ‘could not be criticised’, which in reality is one of the most powerful weapons legitimately open to and often relied upon by defence to attack the general credibility and reliability of a prosecution witness when he or she so elected to exercise his or her right.

72.The magistrate was correct in the sense that if a person is entitled to exercise a right against self-incrimination, and does so, the fact that he does exercise that right is not a matter for which he properly can be criticised.  That he has done so, forms part of his overall evidence upon which his credibility and reliability is to be assessed.

73.Of more concern in this matter is that CHU was offered a right against self-incrimination. He was testifying under an immunity from prosecution which, in the words of Stock JA in LEUNG Kai Cheung:

“52. …it is the privilege which a witness has not to disclose information which will or may result in his prosecution for a similar offence. It must follow that once the witness’s exposure to the risk of criminality, in the sense of liability to prosecution, is removed, the privilege does not exist…

In other words, the privilege against self-incrimination goes once an immunity is granted…

53.    …Once the decision was made in this case to grant immunities, reminders about self-incrimination ought not to have been given.”

74.The Court then asked the question, whether it mattered. It found on the facts of that case that it did matter and amounted to a material misdirection. That was because “…prejudice to the applicant was in fact shown” due to the fact that defence counsel had been hampered in cross-examination on matters which may well have gone to the credit of the witnesses.

75.In this matter, counsel for the first appellant at trial was prevented from asking questions of CHU about whether he had engaged in corrupt activities previously to those which formed the subject matter of the charges, specifically when he had been employed in the private sector, when CHU was wrongly allowed to claim privilege against self-incrimination and to refuse to answer those questions.

76.Given the overwhelming importance of CHU’s credibility and reliability the question which need be asked is: then how can it not have mattered in this trial? The answer is it did not matter because although CHU exercised that “right” when cross-examined on behalf of the first appellant, he “waived” it when cross-examined on behalf of the second appellant and answered the questions, with two consequences: first, his testimony on this aspect - that he had previously indulged in corrupt activities - was available in any event in the case of the first appellant even though the answers had emerged in cross-examination on behalf of the second appellant; and, secondly, it was open to counsel for the first appellant to have applied to further cross-examine CHU on this aspect had he thought it necessary.

The third appellant

Ground 2(a): The Deputy Magistrate erred in accepting and ruling that the nonprejudicial statements made by [CHU] was a full and truthful account of all matters within his knowledge when they had not been produced in evidence.

77.To place this Ground in context it needs to be appreciated that it came at the end of the passage in the Statement of Findings in which the magistrate was considering the submissions made about the alleged telling of CHU by the ICAC that he should testify in accordance with his nonprejudicial statement.

78.The observation about which complaint is made was passed in the course of a paragraph which, with respect, does not lend itself to easy reading or comprehension. It is as follows:

“333.    But what happened if the NPS was wrong in the material aspect but Chu had the misunderstanding that he had to stick to the NPS or he would lose the immunity? Since Chu had sessions with Mr So before the trial, Mr So had read the NPS to him. Had the statement to the ICAC was untrue in any material respects, Chu should have informed Mr So in the earliest opportunity. I am satisfied that the NPS was a full and truthful account of all matters within Chu’s knowledge.”

79.She went on to say in §334:

“During the course of the trial, Chu was adamant that he did not lie in the NPS. Thus even if Mr So or Miss Mak of ICAC did tell Chu to stick to his NPS or he would lose his immunity, provided that the NPS had been true and correct, it would not pose any prejudice in the conduct of the trial.”

80.The magistrate is saying in §333 that because Mr So had read the statement to CHU before the trial and because CHU had not taken that opportunity of making any corrections to it, it must follow that it was a full and truthful account and, in §334, that even if the ICAC officers had told CHU to testify in accordance with the statement, the trial would not have been adversely affected because the contents of the statement were themselves true. The flawed logic is self-evident; nor is such an approach consistent with LEUNG Kai Cheung.

81.Given that the third appellant recognises, unlike the first appellant (§§67-70 supra), that CHU’s nonprejudicial statement was not admitted into evidence and his counsel asserts in his skeleton argument -which he adopted as his submissions at the hearing - that the magistrate had “no knowledge of [the] contents” it is difficult to appreciate just what adverse influence it is suggested these observations could have had on the outcome of the trial.

82.The issue remains whether the magistrate’s approach adversely affects her assessment of CHU’s credibility. In my judgment it does not as, first, it was a superfluous observation and, secondly, it was made in the context of a very specific issue made independently of her general finding.

Ground 3: The Deputy Magistrate failed to apply the criminal standard of proof in assessing the prosecution evidence [in itemised respects].

83.The matters complained about relate to the use of expressions such as “probably, “strange”, “very strange” and “strange but not impossible”. No sensible reading of the Statement of Findings can conclude that these were other than mere turns of phrase when discussing aspects of the evidence: they demonstrate, once more, that the magistrate was alive to peculiar aspects of the evidence. None goes anywhere near suggesting the application of a standard of proof in the context in which they were used.

The convictions are unsafe and unsatisfactory

84.As noted in paragraph 19 supra each appellant also asserted that the convictions are unsafe and unsatisfactory.  Nothing more than was advanced in respect of the individual Grounds has been advanced in respect of this Ground: the appellants rely on the accumulation of matters already submitted, with which I have dealt.

85.It must be said that the magistrate’s mode of expression has resulted in some passages of the Statement of Findings being less than easy to read or to follow. The passages at §§77-78 supra are far from the only examples. This is a factor which has undoubtedly contributed to this submission.

86.That said, to allow an appeal, where there is otherwise clear and sufficient evidence of guilt, simply on the basis that the judge has not slavishly followed a formulaic approach or some perceived stylistic preference is contrary to the interests of justice (see HKSAR v HO Ka Keung CACC196/2007).

Conclusion

87.I am satisfied that the magistrate’s finding that CHU was a credible and reliable witness was one at which she was entitled to arrive, notwithstanding the discrepancies in his evidence: this is not a matter in which it would be appropriate for me interfere with that decision. I am further satisfied that the evidence establishes the commission of each offence of which the respective appellant has been convicted.

88.Each appeal is dismissed and each conviction is confirmed.

Mr Jonathan Man, Senior Public Prosecutor, Department of Justice, for the Respondent.

Mr Charles J Chan, instructed by Messrs. Pansy Leung, Tang & Chua for the first appellant.

Mr Armand Souyave, instructed by Messrs. Leung, Kin & Co for the second appellant.

Mr Kenneth P C Chan, instructed by Messrs. Wong, Kwan & Co for the third appellant.