HKSAR v. Leung John Timothy @ Leung Chiu Ming

CACC 134/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 134 OF 2000

(On Appeal from DCCC 1118 of 1999)

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Coram: Hon Mayo VP, Hartmann J and Suffiad J in Court

Date of Hearing: 5 January 2001

Date of Judgment: 5 January 2001

Date of Reasons for Judgment: 16 January 2001

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REASONS FOR JUDGMENT

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Hartmann J: (giving the judgment of the Court)

1. On 5 January 2001, we dismissed this application. We now give our reasons.

Introduction

2. On 24 March of this year, following a trial in the District Court before Judge Toh, that Applicant was convicted of 14 counts of accepting an advantage, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Chapter 201, and 4 counts of exporting or attempting to export unmanifested cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Chapter 60. The Applicant sought leave to appeal against those convictions.

Background

3. The Applicant was at all material times an employee of the Kowloon-Canton Railway Corporation ('the KCRC') which is defined in the 1st Schedule to the Prevention of Bribery Ordinance as a public body. He had risen through the ranks of the KCRC to achieve a position of considerable responsibility as a freight operations manager. As such he was able to influence the movement of railed freight into and out of Hong Kong.

4. The 4 counts of exporting or attempting to export unmanifested cargo relate to his involvement in ensuring that certain goods were railed to persons in the Mainland without the necessary manifests being completed. The 14 counts of accepting an advantage relate to various abuses of his office in respect of which he received clandestine payments and include payments received from Mainland associates for exporting or attempting to export unmanifested cargoes to them.

5. The Applicant was arrested on 13 October 1999 by officers of the ICAC. That evening he was interviewed under caution and some 36 hours later a second interview under caution took place. Both interviews, which lasted approximately an hour each, were conducted by the same 2 ICAC investigators. Both interviews were video recorded and took the form of what may, not in any pejorative sense, be called interrogations. In the course of those interviews, the Applicant made a number of admissions.

6. At the commencement of the trial in the District Court before H.H. Judge Toh, the admissibility of the 2 records of interview was challenged by the Applicant. At that time, inter alia, it was alleged that the statements had been obtained by the use of threats and/or inducments and by a form of questioning that amounted to oppression. A voir dire was held at the conclusion of which the judge ruled that both records of interviews had been obtained voluntarily and both were admitted into evidence. It is to be noted that the Applicant chose not to testify in the voir dire.

7. The inculpatory evidence contained in the 2 interviews was not the only evidence presented by the prosecution at trial. However, in light of the judge's findings, it is highly problematical whether, in respect of the corruption charges, convictions could properly have been secured without that evidence. Similarly, the judge relied to a material extent on the evidence contained in the 2 interviews in convicting the Applicant of the charges brought under the Import and Export Ordinance.

Grounds of Appeal

8. At the hearing before us, Mr Wan, counsel for the Applicant, advanced only one ground of appeal. It was that the questioning of the Applicant by the ICAC officers in both interviews had been so oppressive that the judge had erred in law in ruling that the records of interview had been obtained voluntarily. The oppressive nature of the questioning had been revealed in a number of ways, said Mr Wan. The officers had attempted to put words into the Applicant's mouth. They had twisted the meaning of his answers, asserting he had made admissions which he had not made. They had dominated the interview process, not allowing the Applicant to say what he wished to say when he wished to say it. As a result, undue and unfair pressure had been placed on the Applicant to explain or refute matters when he might otherwise have stayed silent. Mr Wan did not pursue what had been argued at first instance; namely, that the questioning had included threats and/or inducements.

Oppression

9. A statement obtained by means of oppression is not a voluntary statement. Oppressive conduct is conduct which tends to sap and does sap the will of an accused so that he makes an admission when otherwise he would have stayed silent. The manner in which an accused is questioned may amount to oppression provided, as was said by Edmund Davies LJ in R. v. Prager [1972] 1 All ER 1114, it is:-

"questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent."

10. The issue of whether or not there has been oppression in a particular case is essentially a question of fact.

The findings of the trial judge

11. The judge had the benefit not only of reading the transcript of the 2 interviews but of viewing the video recordings.

12. In respect of the first interview, it was her impression that, far from being overwrought, the Applicant displayed what she described as 'as easy and at times light-hearted manner'. As for the ICAC officer who conducted the bulk of the questioning, while she accepted that he had a tendency to get over-excited, his manner impressed her as being 'friendly'. She could detect no impropriety on his part. As for the second interview, which the judge noted had taken place after the Applicant had had an opportunity to consult with his lawyer, she found no indication that the Applicant's will had been overborne.

13. We repeat that the judge had the advantage of viewing the video taped recordings. She was therefore able to come to her finding of fact by both seeing and hearing those recordings as well as studying the transcripts.

14. Mr Wan accepted that there had been no outward signs that the nature of the questions and the manner of their asking had affected the mind of the Applicant so as to suggest that his will was crumbling. But outward manifestations, he said, may not reflect the true psychological effect. We accept that may on occasions be the case. But where was the evidence of it in this instance? Mr Wan suggested that it could be found in a close analysis of certain of the questions and answers. But, while we accept that a number of the questions were unfortunately phrased and revealed a degree of over eagerness on the part of the interviewing officer, we fail to see how, taken in isolation, they, or the answers in response, suggest a sapping of the Applicant's will. If the questioning did have a hidden psychological effect on the Applicant the only source of evidence to that effect would have been the Applicant himself. But the Applicant chose not to testify. In the circumstances, we believe the judge was correct to reject as speculation the suggestion that, despite all appearances to the contrary, the questioning had sapped the will of the Applicant.

15. The interviews did, of course, include leading questions and, on occasions, the interviewing officer made assumptions as to the true meaning of the Applicant's answers which were ill-founded. But the judge was alive to these problems, finding as a fact that in the circumstances of both interviews such questioning did not amount to oppression and went rather to the weight to be given to any admissions made in response to such questioning. We can find no grounds for criticising her in this regard.

A comment as to the manner of conducting interviews

Although the judge found that the admissions made in the interviews had been voluntarily, she was nevertheless critical of the interviewing officer's impatience and excitability and the often unfortunate manner in which he couched his questions. We agree entirely. Unless questions are carefully phrased and then asked calmly and professionally interviews may rapidly take on the appearance of oppressive cross-examination, leading inevitably to challenges concerning their admissibility.

Representation:

Mr Peter Wan, instructed by Messrs S C Chan & Co., for the Applicant

Mr Gavin Shiu, SGC for Director of Public Prosecutions, for the Respondent