HKSAR v. Au Yeung Ching Cheong Stephen and Another

[English Translation - 英譯本]
CACC 36/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL No. 36 OF 2013

(ON APPEAL FROM DCCC 755 OF 2012)

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BETWEEN

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JUDGMENT

Hon Yuen JA (giving the Judgment of the Court):

1.The two applicants in DCCC 755/2012 were charged with one count of “conspiracy to offer advantages to an agent”, contrary to section 9(2)(b) of the Prevention of Bribery Ordinance, Cap. 201 (“PBO”) and section 159A of the Crimes Ordinance, Cap. 200.

2.They were convicted by District Judge Sham on 2 January 2013. The judge sentenced each of them to 28 months’ imprisonment.

3.The two applicants apply for leave to appeal the convictions. The 1^st applicant initially also applied for leave to appeal his sentence but subsequently abandoned the application. 

Background

4.The two applicants were the persons-in-charge of “Sunshine Traffic Engineering and Contractors Company Limited” (“STE”). STE was a sub-contractor of a project “12/WSD/06”, the main contractor of which was “China National Chemical Engineering Hongkong Limited” (“CNCHK”). Mr Tai Kee-cheong, Eric (“Tai”) was an assistant project manager at CNCHK.

5.The two applicants were charged with offering bribes to Tai in the total sum of $990,000, consisting of monthly payments of $30,000, for three years between July 2007 and January 2011, for the purpose of making STE’s work smoother.

6.There are two more points to be noted about the background of the 2^nd applicant. First, throughout the said period he was a signatory to STE’s bank account, although there was a time when he was neither a director nor a shareholder of STE. Second, during that period, with knowledge of his connection with STE, CNCHK hired him as Chief Supervisor of the site.

Facts of the case

7.According to the prosecution, on 9 March 2011, the two applicants approached the ICAC on their own initiative and complained to an officer on duty named Fong (PW1) that Tai had cheated them and solicited advantage from them.

8.At trial, in advancing its case, the prosecution relied on what the applicants had told PW1 in their complaint (“words of complaint”) and records of their subsequent video-recorded interviews under caution.

9.The trial judge ruled that the records of the video-recorded interviews were inadmissible because in the interviews the ICAC officers had mixed up the applicants’ capacity as complainants and suspects. However, the judge ruled that the words of complaint were admissible and those words showed that the applicants had committed the offence of “conspiracy to offer advantages to an agent”.

10.The two applicants’ words of complaint, as repeated by PW1, were divided into the following three parts at trial:

Part I

“When the contract was first awarded, namely, in (20)07 when the contract of the Water Supplies Department was awarded, Mr Tai, an assistant project manager at CNCHK, received from them a sum of $30,000 per month, in cash for the first few months. (This) could make the work smoother.”

Part II

“They were shareholders and directors of STE. Since CNCHK was the main contractor of STE (and) Mr Tai was the assistant project manager of the main contractor, he was given $30,000 per month. Cash was given during the first few months. Thereafter, at Mr Tai’s request, $30,000 was deposited into the account of one of Mr Tai’s companies, namely, Kei Cheong (Engineering) Company. It was said that (this) could help make their work smoother.”

Part III

“Towards the end of 2010, Mr Tai requested that 30 per cent of STE’s shares be transferred to him. The transfer was made, the reason being to help them obtain project payments a bit more smoothly. ”

Verdict at trial

11.At trial, the defence took the view that having heard Part I, PW1 already had reasons to believe that the speakers had committed bribery and hence he should have administered a caution at that point. The prosecution, on the other hand, took the view that it was only after hearing both Parts I and II that PW1 had reasons to believe that the speakers had committed bribery and hence had to administer a caution. PW1, however, testified that in his view, only after hearing Parts I, II and III did he have reasons to believe that the speakers had committed bribery, and hence it was only at that point that he stopped the interview, sought instructions from his supervisor and administered a caution to the applicants.

12.The trial judge considered that, having heard the applicants’ complaint, PW1 needed some time to take in what they said and discern that they were also suspects. Therefore, it was not improper for him to stop the interview, seek instructions from his supervisor and administer a caution only after he heard Part III. In fact, at trial the defence also accepted that it was unreasonable to expect that PW1 could caution the applicants before he finished hearing Part I of the words of complaint. Importantly, in any event, the trial judge took the view that Part 1 had already disclosed that the applicants had offered advantages to Tai and hence had committed the relevant offence.

13.The trial judge also found that the words of complaint were true because the amounts paid to Tai were supported by cheques, and the fact that the monetary transaction took place in the dark served to indicate that the applicants knew that Tai’s employer did not allow him to accept those sums of money.

14.The trial judge further found that, even if the 2^nd applicant spoke less than the 1^st applicant when making the complaint and PW1 could not recall what the 2^nd applicant said, the two applicants insisted on being together, which indicated that the 2^nd applicant was taking part in making the complaint and not merely accompanying the 1^st applicant. The 2^nd applicant had also taken part in signing the cheques issued to Tai. Therefore, the trial judge found that they were conspirators who had agreed to offer bribes to Tai and the words of complaint uttered by the 1^st applicant could be used against the 2^nd applicant.

15.The trial judge found both applicants guilty as charged.

CACC 36/2013

16.The grounds of appeal put forward by the two applicants are mostly identical, although the 2^nd applicant has advanced two more grounds of appeal. We will now deal with the grounds of appeal one by one.

Are the words of complaint admissible as evidence under the law?

17.The first ground of appeal put forward by the two applicants relates to the question of whether the words of complaint are admissible as evidence. At trial, the applicants did not object to Part I being adduced as evidence. However, they now take the position that none of the words of complaint can be adduced as evidence because it would be contrary to section 30A(1)(a) of the PBO. We stress that the applicants are relying only on section 30A(1)(a) of the PBO, and not on the common law or the Bill of Rights. Moreover, this ground of appeal purely concerns a question of law and does not involve any discretion of the court.

Section 30A provides as follows:

“(1) Save as provided in subsection (2) -

(a) no information for an offence under this Ordinance shall be admitted in evidence in any civil or criminal proceeding; and

(b) no witness in any civil or criminal proceeding shall be obliged -

(i) to disclose the name or address of any informer who has given information to the Commissioner with respect to an offence under this Ordinance or of any person who has assisted the Commissioner in any way with respect to such an offence; or

(ii) to answer any question if the answer thereto would lead, or would tend to lead, to discovery of the name or address of such informer or person,

if, in either case, such informer or person is not himself a witness in such proceeding,

and, if any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceeding contain an entry in which any such informer or person is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.

(2) If in any proceeding before a court for an offence under this Ordinance the court, after full inquiry into the case, is satisfied that an informer wilfully made a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding a court is of opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted the Commissioner, the court may permit inquiry and require full disclosure concerning the informer or such person.”

18.The question of law before us is whether section 30A(1) (“the provision”), including section 30A(1)(a), applies to the present case.

19.We have considered the materials provided by counsel for the parties, including the Hansard and the Explanatory Memorandum to the bill containing the provision. The Hong Kong Court of Final Appeal has established that in interpreting a statute, the court must take into account the natural and ordinary meaning of the words, the purpose of the statutory provision, as well as its context, including other statutory provisions and the general law (see HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568).

20.Adopting the above approach to interpretation, we are of the view that the contents of the provision as a whole clearly shows that the purpose of the provision is to protect the confidentiality of information used to report others, but not to offer immunity to an informer so as to exclude evidence which should otherwise be admissible against the informer himself.

21.The purpose of the provision is expressed to be the protection of informers “from discovery”. It is the identity of an informer which is being protected “from discovery” (see page 846 of the Hansard of Prevention of Bribery (Amendment) Bill 1980: “when [the public] make complaints or give information to [the ICAC], their identity will not be disclosed without their consent”. See also paragraph 10 on page C128 of the Explanatory Memorandum to the Bill: “one of the important factors in eradicating corruption is to convince the public that having made a report to the ICAC, one’s identity will definitely not be disclosed by the ICAC without one’s consent”) (emphasis added). Given that the identity of an informer is known to the authorities, it is obvious that the protection in place is to prevent others (e.g. the person being reported) from knowing who the informer is. Apart from the name and address, information provided by an informer may also provide a lead to the identity of the informer. Therefore, the provision also protects such information.

22.The context of the provision also makes it clear that section 30A(1) only covers the protection of an informer’s identity from discovery by others (e.g. the person being reported). Section 30A(1) is subject to section 30A(2), which expressly contemplates that in some cases injustice may be caused if the information reported is kept confidential.

23.In fact, it has been long established under the common law that the identity of an informer is to be kept confidential so that it would not be known by an accused (i.e. the person being reported). The case of Marks v Beyfus [1890] 25 QBD 494 has clearly stated the scope of protection under the common law. However, there is a significant difference between the common law and section 30A regarding the kind of proceedings in which a court would order disclosure of the identity of an informer for the purpose of achieving justice. Under section 30A(2), such proceedings are confined to proceedings other than those under the PBO, whereas there is no such limitation under the common law. However, this difference between the common law and section 30A(2), as well as the question of whether section 30A(2) is unconstitutional in light of the right of an accused (i.e. the person being reported) to be informed as required by the Bill of Rights, is irrelevant to and has not been raised in the present case and therefore do not require further discussion and explanation. We bring up this point at this juncture for the purpose of expressing our disagreement with the respondent’s proposition that section 30A simply codifies the common law.

24.The respondent also points out that under the common law the above protection did not apply to the present case because the applicants were accomplices of Tai. The respondent cites a Court of Appeal case of Chu Piu Wing v Attorney General CACV 84/1984 (4.9.1984), in which Chu admitted to the ICAC that he had bribed some police officers, but he provided further information on condition that he would neither repeat what he had said nor give evidence against those police officers in court. Subsequently, certain disciplinary charges were laid by the police against some of those police officers and Chu was called to give evidence. He refused to testify and was found to be in contempt of court. He appealed on the ground that as an informer, his identity and the information that he had provided were not subject to disclosure. He cited the abovementioned case of Marks v Beyfus in support.

25.The Court of Appeal dismissed this argument. The Court took the view that the confidentiality given by the common law to an informer was based on public policy. The question to be considered, as the Court of Appeal stated it, was: “Can it be said that [Chu] belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even dry up?” The Court of Appeal was of the view that Chu, as an accomplice, did not belong to that class of persons and that to protect him would adversely affect the public interest. Therefore, the protection for informers was not available to Chu (although in the end the Court of Appeal held, for other reasons, that Chu did not have to testify).

26.On the question of accomplice, counsel for the 2^nd applicant referred to section 22 of the PBO ( “Person giving or receiving bribe not to be regarded as an accomplice”) and submitted that the applicant was not an accomplice of Tai. However, in our view, the purpose of section 22, which comes under Part IV of the PBO, is to remove the technical limitation on the admissibility of evidence given by an accomplice. In any event, the need for section 22 has been removed by section 60 of the Criminal Procedure Ordinance, Cap. 221 (McWalters, Bribery and Corruption Law in Hong Kong (2^nd ed.), page 650). Therefore, we do not accept the submission made by counsel for the 2^nd applicant regarding accomplice.

27.In any event, we are of the view that, as the applicants are only relying on section 30A(1)(a), it is not necessary for us to consider the scope of or limitation on the protection given to informers under the common law, or to comment on the abovementioned case of Chu.

28.We are satisfied that, having regard to its purpose and context, section 30A(1), including section 30A(1)(a), only serves to protect an informer’s information from discovery by others (e.g. the person being reported), so as to prevent the latter from knowing the identity of the former. In the present case, if Tai was prosecuted for the offence of accepting advantages, the information provided by the applicants would be protected by the provision. However, it does not mean that the applicants would, in their trial, automatically be entitled to the above exclusion from admissibility. We do not think that was the purpose or intent of the legislature in enacting the provision.

When should a caution be given?

29.It is convenient at this juncture to discuss another ground of appeal, namely that PW1 did not caution the applicants until after Part III was concluded. The applicants contend that, had PW1 cautioned them earlier, they would have had an opportunity to consider whether to continue the conversation or decide to remain silent from then on.

30.The undisputed legal principle is that when a law enforcement officer has objective grounds for suspecting that a person has committed an offence, he should administer a caution to that person, even though the evidence may not be sufficient to support a prima facie case of guilt (see R v Nelson and Rose [1998] 2 Cr App R 399, 404). The question in the present case is the point of time at which, objectively, PW1 should have had reasonable grounds for suspecting that the applicants had committed an offence.

31.At trial, the applicants took the stance that before the end of Part I, PW1 would not have had reasonable grounds to suspect that the applicants had committed any offence. However, the trial judge was of the view that, solely on the basis of Part I, he had “already reached the only conclusion that the prosecution had proved the charge in question beyond reasonable doubt, and it is in fact not necessary to consider the remaining parts” (see paragraph 65). The applicants’ position now is not that the trial judge erred in reaching this conclusion, but that PW1 should, at “a certain stage” (which counsel is unable to specify) before the end of Part I, already have had reasonable grounds to suspect that the applicants had committed an offence.

32.We do not accept this contention. The fact that counsel is unable to point to a specific stage in Part I at which PW1 should have had reasonable grounds to suspect that the applicants had committed an offence serves to indicate that this ground of appeal is unrealistic. Now we can go through Part I slowly, even repeatedly, to understand the context. By contrast, at that time, PW1 was not informed in advance of what the applicants would say, and it was therefore unreasonable to expect him to interrupt before he heard the entirety of what the applicants had to say. And at trial, it was common ground that Part I was admissible as evidence. In the absence of any evidence of the speed of the applicants’ speech at that time, it is not open to the applicants to raise this point on appeal.

The absence of contemporaneous record of the original content

33.We now turn to another ground of appeal, namely that PW1’s notes were not a contemporaneousrecord of the original content and had not been provided to the applicants for confirmation, and these, it is submitted, adversely affected their weight and fairness.

34.At trial, PW1 did mention the notes he took in the course of interviewing the applicants. Although the notes were not produced to the court as an exhibit, they were made available to the defence for inspection. Upon his application, we allowed the 2^nd applicant to refer to those notes at the hearing of this application. It was clear from the notes that PW1 did not record the words of complaint verbatim and part of the notes was taken in the form of diagrams.

35.Nevertheless, in our view, the trial judge, as an arbiter of fact and having seen and heard PW1 testify, was entitled to accept his testimony and attach weight to it. Although at trial PW1 said he had forgotten some details, counsel for the applicants has not shown us what significance those details had. Nor has counsel for the applicants pointed out any self-contradiction, inconsistency or error in PW1’s evidence. And the applicants did not go into the witness box to give evidence to refute PW1’s evidence. Therefore, although the notes were not a contemporaneousrecord of the original content and had not been provided to the applicants for confirmation, the trial judge was entitled to accept PW1’s testimony and we do not think this was unfair to the applicants.

Payments made to Tai

36.At this juncture we would mention in passing another ground of appeal put forward by the applicants which also relates to a finding of fact by the trial judge. Counsel for the applicants submits that, while the particulars of offence alleged that the applicants agreed to pay $30,000 per month to Tai, the cheque record in the Agreed Facts showed that the payments were not regular monthly payments.

37.The cheque record showed that from December 2007 to July 2009 payments were made on and off, but in each month from July 2009 to November 2010 there was a particular day within which two $30,000 cheques were issued.

38.The trial judge noted this point and addressed it in detail. He pointed out that the 33 cheques involved a total sum of $990,000 and this was consistent with the allegation that the applicants gave Tai $30,000 each time. Moreover, the date shown on the last cheque was also the time when the works were expected to be completed, and this tallied with the allegation that the applicants made payments to Tai for the purpose of making the works smoother. That some of the payments were not made strictly in accordance with the agreement did not mean that the agreement had never existed. We think that the trial judge was justified in taking this view.

Other grounds of appeal raised by the 2^nd applicant

39.We now discuss the grounds of appeal raised by the 2^nd applicant alone. The first ground is that in his testimony PW1 did accept that the 2^nd applicant had spoken less. The 2^nd applicant submits that the trial judge failed to thoroughly consider whether he (the 2^nd applicant) had adopted what the 1^st applicant said.

40.PW1’s testimony showed that initially he had asked the two applicants to be interviewed separately. However, they made it clear that they wished to be interviewed together, and they apparently intended to act together. Besides, when the 1^st applicant voiced the complaint about Tai, the 2^nd applicant did not absent himself, or ask the 1^st applicant not to continue, or expressly state that he had limited knowledge of the matter, or indicate that he had no idea about what the 1^st applicant said, or indicate that he wanted to draw a clear line between himself and what the 1^st applicant said. The above evidence indicated that the two applicants were sharing the same stance, and the 2^nd applicant did not give evidence in court with a view to refuting this prima facieview. We see nothing in this ground of appeal.

41.The second ground of appeal raised by the 2^nd applicant was that he was hired by STE and CNCHK at the same time and therefore had reasons to believe that Tai was also in a dual capacity and hence could properly accept payments from STE. The 2^nd applicant submits that this constituted a reasonable excuse.

42.We do not accept this submission. There was no evidence concerning whether Tai had any position or duty at STE. Nor was there evidence that the 2^nd applicant believed that Tai was in a dual capacity. The case law has established the principle that where a defendant does not testify, the court should not speculate about facts which may provide a defence on his behalf. In our view, the fact that the applicants had to pay Tai in the dark and then reported Tai to the ICAC was evidence that the applicants took the view that paying Tai was an illegal act, and this was inconsistent with a reasonable excuse. We reject this ground of appeal.

43.The 2^nd applicant also contends that the prosecution failed to prove that he had any illegal motive when he signed the cheques in question, because when he signed most of the cheques he was not a director or shareholder of STE but an employee of CNCHK.

44.However, the cheques signed by the 2^nd applicant were STE’s, not  CNCHK’s. He had caused STE to make payments to the main contractor’s employee, and when the payments started, he was a director of STE and knew very well why the payments were made. In any event, even if he had given up his shareholding or resigned as director, he was not someone far away from the worksite and ignorant of the operation of the works. Being the Chief Supervisor of the site, he would have been familiar with the works. STE had been incurring these expenses, which involved a considerable amount of money, for as long as three years. He could not possibly have signed over 30 cheques blindly and, for no reason, given almost one million dollars away to a staff member of the main contractor who was unable to offer any assistance to STE. This contention is unrealistic.

Should discretion be exercised to exclude the words of complaint from evidence?

45.The final ground of appeal emphasized by counsel for the applicants is that initially the applicants uttered the words of complaint in the capacity of informers. They argue that public policy encourages the public to report corruption, and therefore even if the words of complaint were admissible as evidence, the court should have exercised its discretion to exclude them. The applicants confirmed that at trial they had not made  this application to the trial judge.

46.The applicants rely on some decided cases such as Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431 (in which the defendant told an undercover police officer about the offence he had committed) and HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 (in which law enforcement officers obtained evidence in breach of constitutional rights).

47.In our view, the principle established by these cases is that a court would exercise its discretion to exclude a piece of evidence if it considers that its admission would deprive the defendant of a fair trial.

48.It is certainly uncommon for an informer to be prosecuted. However, the ultimate question is: would the admission of the words of complaint deprive the applicants of a fair trial? The case law indicates that the court should consider all the circumstances in answering that question.

49.First, the present case does not involve violation of any of the applicants’ constitutional rights.

50.Furthermore, the applicants, who on their own initiative went to the office of the ICAC, must have known that PW1 was a law enforcement officer.

51.PW1 had not threatened or induced them to speak. Nor was there any law enforcement officer who had done anything unfair to them. As discussed above, until the applicants finished uttering the words which comprised Part I, PW1 had no reason to caution them.

52.If the applicants thought that what they said as informers would not be used to prosecute them, that was a misunderstanding on their own part. Before they said anything, they could have made it clear to PW1 that they were only prepared to give a non-prejudicial statement.

53.In Lam Tat Ming the Court of Final Appeal stated (at 441) that the test of unfairness is not that of a game governed by a sportsman’s code of fair play. Unfairness in this respect is to be judged by the court against, and only against, what is required to secure a fair trial for the accused. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent.

54.Bribery is a very serious offence and has been likened by the court to a cancer in the community. Those who give or accept bribes are direct causes of corruption, striking at the spirit of a fair and clean society. The applicants did not testify in court that they thought they would not be prosecuted when they confessed, or that what they had said would not be used as evidence against them. But even had they done so, they could not, as persons who had offered bribes, expect sympathy from the court. That said, following conviction, their conduct of reporting the acts of another offender to the authorities would usually be considered by the court for sentencing purposes (and as a matter of fact, the trial judge in the present case did reduce each applicant’s sentence by two months).

55.Furthermore, the relevant evidence showed that the applicants did not report Tai immediately but instead gave him bribes for as long as three years and in a total sum of almost one million dollars. That the two applicants reported the matters to the ICAC after three years was not due to remorse but was due to disputes between them and Tai. We do not see any unfairness which required the exercise of discretion to exclude the words of complaint.

56.In our view, the above decision finds support in the Court of Appeal case of R v Ho Chung Yum CACC 120/1985. In that case, the Court of Appeal stated expressly that under the common law there is no public policy that informers will not be prosecuted. The question to be considered by the court is: if an informer was at the time of the offence merely acting in the interest of law and order, e.g. an undercover agent, then clearly he had no intent to commit the offence; on the other hand, if in fact an informer did commit the offence and made a report thereafter, it would not be unfair for the authorities to decide to prosecute him and the court would have no reason to exercise its discretion to exclude the informer’s admission from evidence.

57.For the above reasons, we dismiss the applicants’ application for leave to appeal.

Mr Selwyn Yu SC and Ms Queenie Ng, instructed by Messrs. Wong & Associates, for the 1^st Applicant

Mr Richard Wong and Mr Danny Chan, instructed by Messrs. Pauline Wong & Co, for the 2^nd Applicant

Mr William Tam, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor