Ip Chiu and Another v. The Queen
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CACC000099/1977
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----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 19th May 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellants are police officers, the 1st Appellant being a sergeant and the 2nd Appellant a constable, but they were off duty at the material time. They were convicted by a magistrate of accepting an advantage contrary to s.4(2) of the Prevention of Bribery Ordinance, the particulars of offence as originally drafted alleging that they did
The Appellants appeal against conviction and sentence and the single judge has referred the case to this court. 2. It is not very clear exactly how much of all the evidence he recited the learned magistrate believed, but we will assume that he accepted that Chan Kwan, a self-confessed drug addict, was approached by the 1st Appellant and searched: that nothing illegal was found on him: that he was asked to get into a car in which the 2nd Appellant was sitting: that Chan knew the 2nd Appellant to be a policeman: that in the car the 1st Appellant again searched him and found nothing: that as they drove along the 2nd Appellant said to him - "Blockhead, you are selling white powder. We have evidence to prove it": that Chan admitted that he had done that but that it had been two months before: that on arrival in a school compound the 2nd Appellant introduced the 1st Appellant to Chan as "a sergeant in charge of his party", whereupon the 1st Appellant searched Chan again and found nothing: that Chan was then taken to his home, where a further search was made and nothing illegal found: that his wife pleaded with the 1st Appellant and told him that her husband had turned over a new leaf: that there was a conversation between the wife and the 2nd Appellant in which tea money was mentioned and the 2nd Appellant asked her "to think of a way out and to get $3/4,000 more": that the wife telephoned a friend to borrow money and obtained a loan of $1,000, which was added to $1,000 produced by the husband and handed to the 2nd Appellant in the presence of the 1st Appellant. 3. The first ground of appeal relates to amendments made to the charge by the magistrate at the close of the prosecution case, purportedly under s.27 of the Magistrates Ordinance. The first amendment was the addition of the description of the offence, "Accepting an advantage". The second was the deletion of the words "as an inducement to or reward for or otherwise" from the particulars. It is complained that the magistrate did not take the procedural steps prescribed by subs.(2) after he had made the amendments and it is said on the authority of Yip Yuk-lun v Reg. 1961 H.K.L.R. 268 that the omission was fatal. In making the second amendment we think the learned magistrate was in error because it was not "necessary". Indeed the prosecutor very properly expressed his contentment with the particulars as they stood and, although the Crown has not appealed by way of case stated, we shall see that the prosecution was prejudiced by the amendment. Subject to the matters raised in grounds 3, 4, 4B, 4C and 5 it would have been open to the magistrate on the evidence adduced to convict the Appellants on the unamended charge. He would not even have been required to enter a partial verdict. The offence charged after the amendment was the very same as that charged before and in our view s.27(2) had no application. The amendment which consisted of remedying the omission of the statement of the offence was even more technical. That is not to say that the omission was not a defect, since r.3 of the Indictment Rules 1976 requires that there shall be a statement of the offence, but there can have been no possible doubt what was the offence which had been particularized. Sub-r. (2) may be ambiguous in that it is arguable that "the same" (which has to be read and explained) could refer either to "the necessary amendment" or to "the complaint, information or summons". It seems to be accepted by counsel that it was intended to refer to the complaint, information or summons as amended. In our view it was not necessary to read and explain the amended information to the Defendants. Subs. (2) was clearly intended to relate to cases where the amendment results in a material alteration of the offence charged. As to subs. (3) the Appellants were represented by counsel and counsel did in fact indicate that she did not wish to have any witness recalled, though in our view such recall should not in any event have been allowed because there were no "matters relevant to such amendment" about which any witness could have been examined. 4. The second ground of appeal contends that the charge as amended was defective. Although it is not suggested that the charge as it originally stood was bad for duplicity, the argument is that by virtue of the use of the word "otherwise" in s.4(2) it had to be shown that the payment was (i) as an inducement to, (ii) as a reward for, or (iii) on account of (but not as an inducement to or as a reward for) abstaining from performing an act in their capacity as public servants. Therefore, the word "otherwise" having been deleted from the charge, the third alternative was (it is said) insufficiently described. We would not wish to discourage the use of the precise words of the statute in drafting charges, but we think that an allegation that the payment was "on account of" abstaining is in fact wide enough to include a case where it was made "as an inducement to" or "as a reward for" abstaining, these being merely particular instances of payments "on account of" abstaining. The amendment was made because the magistrate thought those two particular instances were not relevant to the present case and he thought he was narrowing the issues. We take a slightly different view and are satisfied that the amended charge was not defective and that the charge was, indeed, not materially altered by the amendment. Since this judgment was drafted we have seen the judgment of McMullin, J. in Chan Wing-yuen v Reg. Criminal Appeal No.192 of 1977 and we respectfully agree with the observations he there made on this point. 5. The third ground of appeal as it originally stood suggested that it was open to the magistrate at the close of the prosecution case to find as a fact that a statutory presumption had been rebutted. That was clearly wrong because whether or not a presumption has been rebutted is a "jury question" and must be decided after the conclusion of the whole of the evidence and the addresses of counsel. The argument advanced under ground 3 was very different and the ground was eventually amended with a view to making it fit the argument. It then read:
The foundation of the argument was the amendment by which the magistrate deleted the words "as an inducement to or reward for" from the charge. Section 25 of the Ordinance is in these terms:
Mr. Litton says that by reason of the amendment the Appellants were no longer alleged in the particulars of offence to have accepted an advantage "as such inducement or reward": they were, in effect, alleged to have accepted it otherwise than as such inducement or reward. It may well be that the draftsman intended that s.25 should, on proof of the gift of an advantage, apply to every case under s.4, but we agree that it does not. But for what we shall have to say later it would be necessary to consider to what extent the magistrate relied upon the presumption. 6. Ground 4 raises a question which has caused difficulty on a large number of occasions - whether a public servant has done something "in his capacity as" a public servant. Mr. Litton argues that the act which the public servant is to do or to abstain from doing must be one which is legitimately within his capacity as a public servant. The learned magistrate unfortunately took the view that it was unnecessary to make a precise finding as to the reason for the payment. He said:
"Harassment" is a vague term which would include both legitimate police action in prosecuting a person repeatedly for repeated offences and the laying of unfounded charges. The evidence of Chan was: "I paid over the $2,000 because from beginning to end they were over exercising their power but I was in their hands I was afraid of a plant" (sic). Whilst "over exercising their power" is equally non-specific, the fabrication of false evidence, even if effected during the course of a police officer's duties, could never be part of his duties or be done in his capacity as a police officer. We agree with Mr. Bellanto that it was not incumbent on the prosecution to particularize the alleged dangerous drugs offence, but on the other hand it was, in our view, necessary to show that there was an allegation of an offence, which allegation was not to the knowledge of the Appellants false. It is not disputed that Chan had committed an offence two months before, and if the payment had been related to that the conviction would have been supportable, but the evidence showed that the payment was made in respect of a possible future allegation of a future "offence" which would be proved by planted evidence. It is immaterial that the various searches were carried out by the Appellants in their capacities as police officers: the act from which they abstained would not have been so done. It follows that when they received money in respect of that abstention they did not receive it on account of their abstaining from performing an act in their capacity as public servants. Mr. Bellanto suggested, on the authority of So Sun-leung v Reg. Criminal Appeal No. 261 of 1973, that the test was "whether the gift would have been given or could have been effectively solicited if the person in question were not the kind of public servant he in fact was". Even accepting that as a correct test we do not agree that the answer in this case must be "No", any more than it would be "No" if a police officer in uniform received money as a result of using his service revolver to commit a robbery when on beat duty: his duty would be the opportunity for the commission of the robbery but the robbery would not be committed "in his capacity as a police officer". In our view the magistrate should have found that there was no case to answer on the charge of accepting an advantage, but there was evidence of a possible offence of blackmail and the proper course was for him to amend the information accordingly in the exercise of his powers under s.27 of the Magistrates Ordinance. 7. In our view the remaining grounds of appeal concerning the evidence of Mr. Biss of the Independent Commission Against Corruption were without substance. During the inquiries into this case Mr. Biss interrogated both Appellants with the assistance of the officer in charge of the case, Mr. Hui, who acted as interpreter. Mr. Biss purported to give evidence of what the Appellants had said. Strictly he should not have done that as he does not understand Cantonese, but should have confined himself to reporting what Mr. Hui had said to him. Mr. Hui testified that he acted as interpreter. It would have been better had he also been asked whether he correctly translated to the Appellants what was said by Mr. Biss and correctly translated to Mr. Biss what was said by the Appellants to the best of his ability, but as that is a necessary part of the act of interpretation we do not think the omission was fatal. Mr. Litton complains that Mr. Hui was not employed by the Independent Commission Against Corruption specifically in the capacity of an interpreter and was in fact the officer in charge of the case, with the result (it is alleged) that he did not confine himself to interpretation. In support of this complaint it is pointed out that on an occasion when Mr. Biss left the room Mr. Hui did put some questions of his own to the 2nd Appellant. It does not follow that Mr. Hui did not faithfully perform the function of an interpreter when Mr. Biss required him to do so or that his translation was necessarily coloured. The fundamental contention advanced against Mr. Biss's evidence is that it was totally inadmissible as hearsay. Indeed Mr. Litton went so far as to argue that the evidence of a person who uses an interpreter is always hearsay, although in some circumstances it may be admissible under an exception to the hearsay rule. Such an exception would be where the interpreter was illiterate: Gaio v Reg. (1960) 104 C.L.R. 419. However, Reg. v Attard (1958) 43 Cr. App. R. 90 is relied upon as authority for the substantive proposition. In our view that was a different case, because the interpreter was not there called as a witness: the evidence of the police officer was clearly inadmissible because he was not speaking from his personal knowledge when he testified as to what the accused had said. All Mr. Biss was required to do was to repeat the words spoken to him by the interpreter (not as evidence of the truth of what was said to him but merely as evidence of the fact that it was said) and the words he spoke to the interpreter. The interpreter could then testify that what he said in one language was a translation of what had been said in the other. We do not think Gaio v Reg. is authority for the proposition that where an interpreter is not illiterate he alone may give evidence: he is no less a conduit pipe than the illiterate interpreter. He may be able, with or without the aid of notes made by himself, to remember what was said, but interpretation is a most arduous and difficult occupation and even the best of interpreters may find that all their concentration is needed to perform their primary function, so that they are left with little or no recollection of the contents of what has been said. Where a note is taken by the interrogating officer it is desirable that the interpreter should be asked whether he can agree that it is a correct note, in which case the note will be available to him for the purpose of refreshing memory. In the present case the note was not made until after the interrogation and Mr. Hui was not invited to check it at the time. In those circumstances the learned magistrate was right not to allow Mr. Hui to refresh his memory from the note. Nevertheless it was proper that Mr. Biss himself should have been allowed to use his note to refresh his memory. 8. The fact that no verbatim note of the interrogation was made was itself a ground of criticism and Mr. Litton submitted that this was contrary to normal police practice both in Hong Kong and in the United Kingdom. If the law enforcement agencies were required to take a verbatim note of every interrogation it is conceded that their task would be impossible. However, Mr. Litton eventually confined his contention to cases, like the present, where the person under interrogation is already under arrest and it is therefore apparent that any statement made by the suspect is likely to be relied upon as evidence. We agree that in such circumstances it is desirable not only that the statement should be recorded verbatim but that it should be recorded in the language used by the suspect. The Full Court so stated in Li Ming-kwan v Reg. 1973 H.K.L.R. 275,278. Failure to follow that course may well result in a judge's suggesting to himself or to a jury that no weight should be attached to the alleged statement. However, weight is a "jury matter" and we cannot say that the judge here was not entitled to rely on Mr. Biss's evidence. The alleged "grave discrepancies" between the evidence of Mr. Biss and Mr. Hui do not appear to us of such substance as to make the verdicts unsafe or unsatisfactory. 9. Since the only ground upon which we find that these convictions must be quashed is that there was no evidence to put the Appellants upon their defence on a charge of accepting an advantage and since we are satisfied that there was ample evidence to justify (and, indeed, to require) an amendment of the charge to one of blackmail, the question remains whether we should order such an amendment and remit the case for further hearing. We know of no precedent for the adoption of such a course where the trial on the original information has proceeded to conviction and reluctantly we have come to the conclusion that it would not be right to adopt it here. 10. The appeals are allowed and the convictions quashed. 19th May 1977. Representation: |