Chan Sui-cheong v. The Queen
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CACC000961/1979
----------------- Coram: McMullin & Li, JJ.A. & O'Connor, J. Date of Judgment: 28 April 1980 ---------------------------------- REASONS FOR DECISION ---------------------------------- McMullin, J.A. : 1. The defendant was convicted in the District Court upon two charges of offences under section 4(2)(a) of Prevention of Bribery Ordinance. 2. At the end of the hearing of the appeal we set aside the convictions but ordered a re-trial and we now give our reasons for doing so. 3. The principal witness for the prosecution was a man known as YUNG Wing-on who admitted to having been involved in the introduction of illegal immigrants to Hong Kong. He was actually convicted for such an offence in 1978 and subsequently he once more engaged in the same business but apparently desisted in 1979 upon police surveillance becoming more stringent. He was granted an immunity by the Crown in giving his evidence. 4. He told the court how he had been put in contact with the defendant by a colleague of the defendant, a police constable known as SIN Sik-tong. He went to the Frontier Headquarters of the Royal Hong Kong Police Force at Fanling on the 1st of July 1979 where he was interviewed by the defendant. P.C. Sin was not present at this interview although it was Sin who had directed the witness to the other constable. 5. The evidence upon the first charge consisted of the following conversation between the witness and the defendant in a room at the Headquarters. The witness said:
The witness added that he understood he was then being asked for $10,000 because he was taking "snakes" into Hong Kong (i.e. illegal immigrants). 6. Subsequently the witness was approached by officers of the Independent Commission Against Corruption. Under their direction he made contact by telephone with the defendant and had a conversation with him. This was at noon on the 11th of July in a certain flat in Tai Po. There was a further telephone conversation at another flat at about 8.00 p.m. on the same day in which a meeting was arranged for a restaurant known as the Better 'Ole in that vicinity. Tape recorders had been attached to the two telephones which recorded the conversations on the telephone and before attending the restaurant the defendant was fitted up by the officers of the Commission with a small tape recorder concealed upon his person. 7. The conversation between himself and the defendant in the restaurant was recorded against a very unsatisfactory background involving many different sounds which interfered considerably with the quality of the recording. It was the complainant Yung's evidence that in all three conversations reference was made to the offer by him of $2,000 as part payment of the original $10,000 solicited from him on the 1st of July. 8. The defence put forward at the trial was a denial of any meeting on the 1st of July between the defendant and the complainant. The meeting in the restaurant was admitted as also were the conversations on the telephone. But it was the defence case that this meeting and these conversations concerned the sale of the defendant's motor car and the possible purchase by him of another car from a person called MA Fat who was the principal prosecution witness on two charges against the defendant which were dismissed at the trial: one upon a finding of no case and the other at the conclusion of the case. 9. The tape recordings of these several conversations were submitted to the Chief Chinese Language Officer in the Home Affairs Department, Mr. FAN Meng-huan, who spent some four days transcribing them in Chinese. Certified copies of these transcriptions were put in at the trial each bearing certified translations in English. In the course of the trial Mr. Fan was cross-examined on the contents of these documents. He was queried as to one or two phrases which he was prepared to admit could be otherwise translated but nothing turns upon these. The accuracy of the main part of his translation does not appear to have been disputed at that point. Shortly thereafter the complainant Yung was recalled and at the conclusion of his evidence a note in the record appears to the following effect:
10. There is no note in the record of proceedings at this point to assist us but it seems likely that it was at this stage of the trial that a procedure was adopted which has given rise to the doubts which compelled us in the end to quash the convictions. 11. No objection was taken by counsel for the defence to the admission in evidence of the tapes and the transcripts but at the end of the Crown's case counsel for the defence made a somewhat unrealistic submission that the transcripts should not be admitted in evidence. What we think he must have meant by that was that although admitted in evidence they should not have been relied upon because they had, counsel said, been shown to be inaccurate. 12. The learned judge in a full and careful ruling upon this submission referred to these inadequacies on which counsel had relied. He said:
13. The note of evidence discloses that only a few questions were put to Yung, the complainant, and to Mr. Fan, the government expert, in respect of the text of the transcripts. Mr. Fan conceded the alternatives to which I have already referred. The complainant gave a very brief account of the conversation with the defendant at the restaurant. This included one or two remarks allegedly made by the defendant which nowhere appear in the transcript. 14. However, when we come to inspect the transcript of the tapes we find that many pages bear handwritten marginal annotations, frequently quite lengthy, which supply in many instances what might be termed "an alternative text" to what appears in the typescript as the English translation of the Chinese script appearing on the particular page. 15. Mr. Ryan for the Crown was unable to help us directly since he was not at the trial but he told us that his information was that these notes were in the judge's own handwriting. A cursory scrutiny of the judge's own note of evidence persuades us that that is probably the case. We cannot be quite sure who supplied the substance of these notes but it would appear likely that they were added to the transcripts by the judge while the complainant Yung was giving evidence. In each case the marginal note is couched in direct speech. It is not possible to say whether, assuming that the note was supplied from testimony of the witness Yung, that witness was testifying to what he remembered having said upon this occasion or whether he was listening to the tape and filling out from his own special knowledge and recollection of the occasion some inadequacy in the transcription where the quality of the recording itself had defeated Mr. Fan's efforts to transcribe the conversation accurately. 16. It may be said that none of these marginal notes contains matter which directly contradicts anything in the official translation. But there are several instances in which not only is a much fuller rendering of the conversation given but also terms are used which would indicate an altogether more sinister context. Thus for example at page 4 of the official transcript relating to the first telephone conversation there appears the following remark ascribed to the defendant:
The alternative text, if I may so describe it, which appears in the margin at this point is to the following effect:
In other places a fragmentary text seems merely to have been amplified and given some coherence. 17. There are several objections to this form of procedure. There was before the court an official transcript and translation and there is a statutory presumption in favour of such a transcript and translation as to its accuracy. The judge does not specifically find that the official translation or the transcription was inaccurate. The complainant Yung appears to have been used as a kind of expert to tidy up inadequacies in the text. It was of course not wrong to ask Yung what his memory of the conversation was and to allow him to refresh that from the recording. But to amplify the official transcript in this way without indicating just how it was being done and whether the official transcript was being in part rejected inevitably gives rise to some confusion as to what was the body of evidence upon which the judge relied in convicting. 18. It is in any case, we think, quite wrong to make entries of this kind on an official transcription or on any exhibited document as though they were part of the note of evidence. The effect here was to give the impression that the certified transcription included everything which appeared therein although it seems clear that Mr. Fan's opinion of the alterations and additions had not been sought. If, as seems most likely Yung was being questioned while the tape was being played the questions and answers should have appeared in the note of the evidence and not on the exhibit. As it was the confusion which was thus occasioned caused the judge himself to fall into a further and somewhat serious error. 19. It was part of the defence case that there was a conspiracy between the complainant Yung and the police officer Sin and certain other persons to get this defendant into trouble. It became important therefore to establish how it came about that the complainant had been put in touch with the police. He had told the court how a certain police informer had told him that P.C. Sin and the defendant were looking for him and it was thus that he had come to present himself at the Frontier Headquarters on the 1st of July. On this the learned judge said:
It is plain however when we turn to the transcript (page 92 of the record) that Mr. Fan had been unable to find any such remark at that point on the tape. The sentence which is alleged to confirm the appellant's testimony on the matter, as recorded in the judge's handwriting, clearly emanated from the mouth of the complainant himself, presumably while he was giving evidence on the contents of tape. Yung, in other words, was being used to corroborate himself. 20. Enough has been said to indicate the nature of the doubt which impelled us to intervene. We listened to a submission by Mr. Woo that it would be unfair to order a re-trial. We were satisfied however that there is material in the transcripts, were it not clouded by the manner in which they were dealt with at the trial, which is prima facie capable of supporting the implication that a corrupt deal was being forwarded. The tape however is the vital evidence. Apart from the matters which have just now been mentioned there is the fact that the complainant, giving evidence recounted phrases and remarks which do not appear either in the transcripts or in marginal notes. Furthermore we have been able to confirm there are long passages of conversation which are difficult to make out because of the noise in the background and these do not appear in the transcript or notes. Nevertheless some of the conversation which is indisputably upon the tape and which has been, if somewhat variously, translated is capable of supporting the charges, especially when taken together with the evidence of Yung concerning what occurred on the 1st of July. We cannot say that the quality of the recording is such as to make any transcription unreliable. If and when the case proceeds against the defendant we trust that a transcript of this vital evidence, relieved of the embarrassment of the extra matter which now appears upon it, will have been prepared and made available to the defence so that all doubts as to the nature of its contents can be cleared by examination and cross-examination in the course of the trial. Representation: Patrick Woo (K.Y. Woo & Co.) for appellant. B.M. Ryan for Crown/respondent. |