Tsang Yau Choo and Another v. The Queen
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CACC000911/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 911 OF 1974 -----------------
----------------- Coram: Huggins, McMullin & Cons, JJ. Date of Judgment 27th March 1975 ----------------- JUDGMENT ----------------- Huggins, J.: 1. There are appeals against convictions and applications for leave to appeal against sentences. The first Appellant was the Sub-Divisional Inspector of Police on Cheung Chau and the second Appellant was his station sergeant. Both Appellants were charged with conspiracy, namely a conspiracy to offer a bribe, and the second Appellant was further charged with the completed offence of bribery. The target of the alleged bribe was Inspector Heslop, who had recently been appointed as assistant to the first Appellant. 2. It will be helpful to read the particulars of the two charges:
3. On behalf of the first Appellant Mr. Jackson-Lipkin contends that Charge 1 disclosed no offence because the particulars did not state the purpose for which the bribe was to be offered. He asserts that a bribe must have an object or it cannot exist, and from that he goes on to argue that it is essential to state the object in the particulars because the object is an essential ingredient of the offence. He relies inter alia upon a dictum in Bradford Election Petition NO. 2(1869)19 L.T.N.S. 723, 726 that "bribery is the giving of money". With respect we think that dictum cannot stand out of its context. The giving of money may amount to bribery, but bribery is not the giving of money: it is the giving of money for a corrupt purpose. To allege "bribery", therefore, is implicitly to allege an unlawful purpose. Nor can the Appellant seek comfort in the statement in Gardner v. Robertson 1921 S.C. 132, 136 that "bribery" is an ambiguous word: it is not ambiguous but can, like many another word, be given an abnormal meaning by its context. In the same case at p. 139 Lord Salvesen said:
and at p. 140 Lord Ormidale said:
All that case decided was that in the context in which the defender had used the word "bribe" it would not have its usual meaning. There is no reason why we should assume that the draftsman of the charge in the present case used the word "bribe" in any other than its normal meaning: on the contrary we ought to assume that he meant what he said. The charge therefore alleged that the Appellants had conspired to offer some benefit to Mr. Heslop for a corrupt (although unspecified) purpose. The essential ingredients of the charge were all there, but there was a lack of particularity which might embarrass the defence. That lack might well have justified a request for particulars but it was not a ground for quashing the charge. It may have been unfortunate for the Appellants that their solicitor took a different view and, for that reason, did not ask for particulars, but it is too late now to complain of the absence of particulars. As we shall see, by this very failure to state the object of the bribe the prosecution may well have led themselves also into difficulties, but they have even less ground for feeling aggrieved than do the defence. 4. The case for the Crown consisted of evidence relating to three principal matters. First there was a conversation between Mr. Heslop and the first Appellant on 9th August in which Mr. Heslop was told that the first Appellant would speak to the second Appellant on the following day and that he (Mr. Heslop) should expect the second Appellant thereafter to speck to him. The first Appellant mentioned three different criminal currently being carried on on Cheung Chau and said he thought the second Appellant was involved in heroin trafficking but that "it would only mean $300 - $400 per month extra". He added:" It is quite safe". Mr. Heslop was told that everyone was "in it" and that he should not take about this conversation with the Barrack Sergeant or with detective constables because it was "too dangerous". He was told how to proceed if he wanted to prosecute gamblers and how everything would then be "arranged" for him and, finally, he was warned to let the second Appellant do the talking because Mr. Heslop would not "want to be like a puppet on string with the second Accused pulling the strings". Secondly there was evidence that on the following day the second Appellant did speak to Mr. Heslop and actually paid him $2,000 which was "for us for this month". about I.C.A.C.?", to which the second Appellant merely replied "Don't worry". Mr. Heslop was told that the money came from "Gambling. Siu siu" and that it was quite safe to take. Thirdly, on 16th August the first Appellant took Mr. Heslop on a tour of Cheung Chau and pointed out to him the scenes of various criminal activities, including two casinos. He said:" The detectives have good connection with the casinos. Two minutes after anything happens and the place will be back to normal". 5. The next ground of appeal argued relates to the evidence of the tour on 16th August: it is contended that that evidence was irrelevant to the charge of conspiracy. The basis of the contention is that the events related took place after the date on which the bribe, which it was alleged the first Appellant had conspired to offer, was said to have been paid. Now, Mr. Jackson-Lipkin conceded that if the object of the bribe had been stated to be "to persuade Mr. Heslop to turn a blind eye to [criminal] gambling" this evidence would have been admissible. However, since particulars were not given it was open to the prosecution to rely upon any object which they could prove, including that one. It follows that the evidence was relevant and admissible. 6. The remaining points taken also relate to evidence alleged to have been wrongly admitted. First it is said that Mr. Heslop's police notebook should not have been admitted in evidence, Here we are greatly hampered by the inadequacy of the record. Originally the notebook was used by Mr. Heslop to refresh his memory and it was rightly not made an exhibit. Later in Mr. Heslop's examination-in-chide Mr. Hampton objected to the admission of the notebook as evidence of the facts recorded therein, an objection which was well taken if counsel for the Crown had attempted, or showed that he would attempt, to put the notebook in for that purpose. However, there is nothing in the record which indicates any such intention on the part of counsel. The record of the argument which took place upon the objection at least leaves it possible that the advocates were not ad idem as to what the objection was, which, if the prosecution were not attempting to put the notebook in, is not as surprising as it may appear at first sight. Be that as it may, the judge ruled that the notebook was "admissible". The record does not indicate that the notebook was then admitted or that there was any request that it be admitted: indeed, the examination turns immediately to an entirely different topic. Had the notebook been then admitted it should have borne the number "P.2" but in fact we find it marked "P.6". Exhibit P.5 was admitted during the cross-examination of Mr. Heslop, but there is nothing in the record indicating when the notebook was marked or that any formal request for its admission was ever made. The fact that its number bore the prefix "P." is some evidence that the exhibit was admitted at the request of the prosecution, but in all the circumstances that evidence is of little weight. Counsel for the Crown sought to assert that it was never his intention to have the notebook admitted and that it was in truth the Defendants' document, while we were told that the solicitor for the Defendants maintained that he cross-examined upon the notebook only because he thought it had (wrongly) already been admitted as a prosecution document. We were reluctant to receive evidence upon this issue of fact and, unsatisfactory as that course clearly was, we decided that we ought to assume in favour of the Appellants that the document was admitted at the instance of the prosecution. Mr. Stapp does not, of course, now support the ruling of the learned judge and concedes that the notebook was not admissible as evidence of the facts recorded: his submission has of necessity been limited to saying that in miscarriage of justice had actually occurred, and we shall return to that matter shortly. 7. Secondly objection is taken to the admission of the evidence of Miss Thistlethwaite and, in any event, to the weight, which the learned judge attached to it. As we understand it the reason for calling this witness was to confirm the evidence of Mr. Heslop that he had made an entry in his notebook on the evening of 9th August and, more important, that on the evening of.10th August he was in possession of four $500 notes. Neither of these facts was challenged by the defence and they were not inconsistent with the innocence of the Appellants. As to the evidence that an entry was made in the notebook, the record made was not itself proof of the truth of the facts recorded, but the fact that the record had been made could be indicative of the intention of Mr. Heslop. Even so it was not relevant to the charges against the Appellants but only to the credit of Mr. Heslop, who said he intended to report the approach made to him. Even if Miss Thistlethwaite had been able to say what Mr. Heslop was writing when she saw him making the entry and had, in addition, been able to say that what he recorded was true, none of this evidence concerning the notebook would have been admissible. As to Miss Thistlethwaite's having seen Mr. Heslop with the bank notes it can possibly be said that it did afford some very slight confirmation of Mr. Heslop's evidence that the second Appellant had given him $2,000, because a man in Mr. Heslop's position was unlikely to have such a large sum on him in the normal course of affairs, although it would not, of course, show the purpose for which the money was handed over. In these circumstances it was possibly justifiable to call the witness to speak to the bank notes, but we do not think she should have been allowed to speak to the notebook entry. As this was a trial before a judge alone we would have seen no difficulty at all were it not for the fact that the judge said that Miss Thistlethwerte's evidence did corroborate part of Mr. Heslop's evidence. What the judge said was:
As we have just seen the witness did not confirm the evidence of Mr. Heslop that he made an entry in his notebook "which recorded the essential details of the conversation", nor could she confirm that that entry was made "as soon as conveniently possible". It is the fact that the judge not only might but actually did think the evidence proved more than it could prove which leads counsel to complain of its wrongful admission. 8. The third part of the evidence to which objection is taken is that of Mr. Wells. He spoke to the general state of lawlessness and disorder in Cheung Chau prior to the dates of the alleged offences. We are told the purpose of this was to show that conditions had deteriorated, which, it was submitted, was more consistent with corruption among the police than with honesty. As to the second Appellant Mr. Yu points out that he had taken office in Cheung Chau only two months before the alleged offences and after the occurrence of most of the matters of which Mr. Wells spoke. Apart from that, Mr. Yu submits, the evidence was not only irrelevant but highly prejudicial. Any deterioration in the enforcement of law and order could well be due to factors beyond the control of the police, while even if the police were to blame the fault might be inefficiency rather than corruption. Again, even assuming that the worsening conditions were due to past corruption in the police force, and in the Defendants in particular, that was not admissible evidence against the Defendants on these charges. 9. In our view all the three parts of the evidence which we have just discussed were wrongly admitted, although the notebook and the evidence of Miss Thistlethwaite concerning it introduced a minimum of prejudice. The evidence of Mr. Wells, however, was highly prejudicial. We were invited to apply the proviso to s. 83(1) of the Criminal Procedure Ordinance, which we may do only if we consider "that no miscarriage of justice has actually occurred". That means that we must be satisfied that the judge would inevitably have reached the same verdicts if the inadmissible evidence had never been adduced. Where no less than three pieces of evidence have been wrongly admitted the court will be slow so to decide and it has been submitted that this is not a proper case for the application of the proviso. It is the evidence of Mr. Wells which has caused us great anxiety. Mr. Stapp urges upon us that the learned judge based his decision substantially on his assessment of Mr. Heslop's demeanour, for early in the judgment he said:
That was forceful language, but the question for us is whether it was strong enough to indicate that the judge would have believed Mr. Heslop even if he had not thought Mr. Heslop was supported by the inadmissible evidence. Later in the judgment we find the judge maintaining the assessment which he had previously made:
Giving every consideration to what has been said on behalf of the Appellants and recognizing that the second of these passages must be read in the light of the inadmissible evidence to which the judge had referred, so that it might not have been sufficient had it stood alone, we are fully satisfied that no miscarriage of justice has occurred. That being so we apply the proviso and the appeals against conviction are dismissed. 10. The appeals against sentence are based principally upon the argument that they are out of line with the general level of sentences recently passed for offences under the Prevention of Bribery Ordinance. In addition it is submitted that the sentences are so high as to suggest that the learned judge may, unconsciously, have been seeking to punish the Appellants for the break down of law and order in Cheung Chau rather than for the particular offences charged. The first of these arguments has a superficial attraction, but we think the answer to it is that this Court has not (at least up to the present) had an opportunity to review any of the sentences with which comparison has been made, nor is this an appropriate occasion for us to make such a review. We therefore proceed to consider the present sentences solely on their own merits and if the result should leave the Appellants with a feeling that they have been discriminated against they must understand that it is not for this Court to exercise the prerogative of mercy but merely to decide whether the learned trial judge has been shown to have exercised his discretion wrongly in the present case. 11. We have said before, and we repeat, that while this Court will not allow itself to be stampeded by the sometimes ill-informed and sometimes irrational voice of public opinion it must nevertheless be alive to the climate of public opinion and there is no doubt that there is some disquiet at what has been thought to be the undue leniency of the courts in corruption cases. The setting up of the Independent Commission against Corruption and the provisions of the Prevention of Bribery Ordinance are sufficient indication of the Legislature's intention to hit hard at offenders guilty of corruption and the courts must do their part in giving effect to that intention. For the particular offences charged in the present case the maximum sentences were seven years' imprisonment and seven years' imprisonment together with a fine of $100,000 respectively. On the first charge the learned judge thought that there was nothing to distinguish between the two Appellants since, although the first Appellant was younger, he was in a position of greater responsibility, while his better education was balanced by the longer experionce of the second Appellant. Both were guilty of attempting to corrupt a young officer with less experience than either of them, who, as the learned judge pointed out, was placed in an agonising position. In the event neither Appellant gained anything from these offences, although it would be closing one's eyes to the obvious if one did not assume that they had benefited or expected to benefit if Mr. Heslop accepted the bribe and performed his part of the corrupt bargain. Moreover, although the offences related to a single bribe of $2,000 it is material that the second Appellant said, when handing over the money, "This is for us for this month" (emphasis supplied). The clear implication is that this was not to be an isolated payment and in that respect the present case differs from several of the cases mentioned to us. We are unanimous in thinking that not only were the sentences on the first charge heavy but that we would not have inflicted them ourselves: we think sentences of four years' imprisonment would have met the justice of the case. However, the matter of sentence lies within the discretion of the trial judge and after the most anxious consideration we have come to the conclusion that we ought not to interfere with his exercise of that discretion. The applications for leave to appeal against sentence are also dismissed. 27th March 1975. Representation: |