CACC000096/1976
| IN THE COURT OF APPEAL | |
| on appeal from the High Court | |
| |
| 1976 No. 96 |
| (Criminal) |
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| BETWEEN | | |
| CECIL JAMES MATTHEW CUNNINGHAM | Appellants |
| BENNO THOMPSON | |
| and | |
| THE QUEEN | Respondent |
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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.
Date of Judgment: 13th July 1976.
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JUDGMENT
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Pickering, J.A.:
1. The two appellants, both formerly superintendents in the Royal Hong Kong Police Force, appeal against their convictions for conspiracy, the original particulars of which were that on divers dates between the months of July 1971 and February 1974 they conspired with three named station sergeants and with other persons unknown to obstruct the course of public justice in that the five of them should act contrary to their public duty as police officers in relation to the administration of the law. During the course of the trial the names of a further thirteen alleged co-conspirators were added to the Particulars of Offence. The prosecution's allegation was of an agreement for the large scale acceptance of bribes from the operators of gambling stalls and vice establishments in return for immunity from prosecution.
2. The first appellant was additionally charged with and found guilty of making a false statutory declaration contrary to s.36(a) of the Crimes Ordinance (Cap. 200) and both were charged with neglecting or failing to comply with a s.14(1)(b) notice contrary to s.14(4) of the Prevention of Bribery Ordinance (Cap. 201). On that charge the first appellant was convicted whereas the second appellant was acquitted.
3. It was a ground of appeal that a separate trial should have been held in regard to the conspiracy charge. This was a matter of discretion for the trial judge and since it appeared that most of the evidence relied upon in relation to the second charge would be given on the conspiracy charge and since the second charge arose out of the facts of the first, it does not appear that there was prejudice to the defence by virtue of the charge of conspiracy not being tried separately. We are unable to say that the original District Court Judge, who declined to order separate trials, exercised his discretion incorrectly.
4. In regard to the appellants' contentions that the learned judge should have ordered the Crown to give particulars of the overt acts of conspiracy relied upon and that, after the stage at which the names of thirteen further alleged co-conspirators had been added to the Particulars of Offence a new trial should have been ordered, we are of the view that these would have been the better courses. But we find ourselves unable to say that the fact that neither such course was adopted resulted in such prejudice to the defence as to justify allowing this appeal upon either or both of those grounds.
5. Having given careful consideration to the matter, we are of the opinion that there was adequate direct evidence to sustain these convictions. It came from Lau Cheong-wa and CHENG Cheuk-fun who were both at the heart of the offence; indeed Lau is one of the station sergeants named in the charge as a co-conspirator. Lau gave evidence of a conversation he had with the first appellant upon the very day that the latter was posted to the Bay View Division as the officer-in-charge there. In the course of that conversation Lau asked the first appellant whether the latter would be interested in getting some extra income and the first appellant then asked how much Lau could give him. Lau told him that the C.I.D. of Bay View could pay him $40,000 per month and that the condition for such payment was that the first appellant would not raid the "stalls" from which the money emanated but would give prior notice if he felt it necessary to carry out any raids when a false stall would be organized for the purpose of being raided. The first appellant expressed himself satisfied with the arrangement proposed and wrote an address on a sheet of paper which he handed to Lau with the instruction to remit money every month to the address on the paper. Lau's only recollection of the contents of the paper was that the first line read "C.J.M. Cunningham" and that the last line read either "Manchester" or "Manchester Field". Subsequently when CHIU Tak, another of the station sergeants mentioned in the charge was transferred to the Bay View Division, the instruction to remit money monthly was transferred to CHIU Tak who, upon the occasion of such remittances, would inform Lau thereof and request him to tell the first appellant that the remittance had been made. When eventually CHIU Tak was transferred and his post taken over by MA Hak-shing, the third named station sergeant, remittances were handled by MA Hak-shing. According to Lau the $40,000 p.m. was actually paid to the first appellant by CHIU Tak and later by MA Hak-shing and some $20,000 of this was contributed by Lau from his own area of the Division of Shaukiwan. This continued, to Lau's knowledge, until November 1972 when Lau was transferred to another Division.
6. Lau's evidence in regard to the second appellant was to the effect that when the latter was first transferred to the Bay View Division as Assistant Divisional Superintendent in June 1971 (one month before the first date charged in the conspiracy charge) he went to see the second appellant and asked him whether he was interested in extra income. The second appellant asked "how much" and was offered $10,000 per month which he accepted upon the same condition in regard to not raiding the stalls under Lau's protection. At the end of June 1971 $10,000 was accordingly paid to the second appellant and later, when CHIU Tak was transferred to the Division, Lau took him to see the second appellant who agreed that CHIU Tak should continue the arrangement. Subsequently there was additional evidence that the payments to the two appellants continued during the period charged.
7. Predictably the evidence of both Lau and Cheng was attacked. Both were accomplices and although Lau had been sentenced to a term of one year's imprisonment in respect of a charge under s.10(1)(b) of the Prevention of Bribery Ordinance (Cap. 201), both had been offered amnesty in regard to any further possible proceedings against either arising from these transactions. It was alleged by Mr. Scrivener that the trial judge did not weigh the question whether the amnesty was a strong inducement to these two witnesses to give untruthful evidence along the lines which the Crown wished to hear. This is not an argument which can carry any weight. Unhappily, the spate of corruption trials which has been a feature of the work of the District Courts in Hong Kong during the past two years or so has led to a procession of this type of witness through the witness-boxes. The Crown has not infrequently considered it necessary to rely upon evidence from tainted sources in order to secure convictions of those considered to be still further tainted and every judge in the Colony is acutely aware of this and of the dangers inherent in such evidence. It is alleged that the learned trial judge, having observed that the amnesty offered to these two accomplices had no doubt been so offered as a matter of public policy, failed to consider whether those amnesties did in fact have the effect upon the witnesses to which I have referred. As I have observed that danger is in the mind of every judge in Hong Kong and it is wholly unnecessary for a judge of the experience of the learned trial judge to spell out, in minute detail in his judgment, the underlying possibilities. In any event the criticism levelled against the learned judge is unjustified for, although it is true that at one point he referred to public policy without making direct reference to the possibility that the amnesty could be calculated to lead to false evidence, in another part of the judgment when speaking of Lau he said:
"...... It has been submitted on many grounds that his evidence should not be accepted nor even admitted because ...... he is under great pressure because of the terms of the amnesty to give favourable evidence on behalf of the Crown ......"
8. There was a direct reference to the pressures inherent in the amnesty, pressures which were clearly in the learned judge's mind. The learned judge went on to remind himself that Lau was an accomplice and to warn himself of the danger of accepting his evidence without corroboration.
9. The judge went on to refer to Lau as having answered some of the allegations made against him in cross-examination "quite amply and with great candour" whilst he had rightly denied other allegations made by the defence which had been in no way supported. Having observed the demeanour of the witness, in particular when under cross-examination, the learned judge was of the opinion that his evidence regarding the two appellants was true and he accepted that evidence. Some similar observations in regard to the evidence of Cheng, which evidence was equally damning in regard to the first appellant and which was also believed by the learned judge, are contained in his judgment.
10. So much for the direct evidence. There was also, as we shall see, much indirect evidence but it was contended that nonetheless the conspiracy had not been proved.
11. In this connection Mr. Scrivener conjured up the analogy of a wheel without a rim the persons at the outer ends of the spokes of such wheel not knowing each other or each other's purpose. The persons Mr. Scrivener so invoked in imagination were the gaming-house keepers, the brothel proprietors and those others outside the law who were paying protection money; $2,000 a day in the case of one gaming stall; $11,000 every five days in the case of another. To these people he applied the euphemism "stallholders" and that euphemism I shall adopt for the sake of convenience. But the analogy is false, for no single stallholder was amongst the conspirators added to the original charge. So far as the charge was concerned, the spokes simply did not extend to the stallholders but stopped with (apart from Mrs. Cunningham and the English bank managers) the collectors of the bribe money. With them end the spokes envisaged in the charge and between them lies the rim.
12. What then is the position of the collectors vis-a-vis each other?
13. Before considering that, let me revert to the analogy of the stallholders as standing at the end of the spokes - allegedly without any attaching rim. It is useful to consider that analogy since the learned judge found that the stallholders were part of the conspiracy. In fact there was a connecting rim between the stallholders. In R. v. MeyrickR. v. Ribuffi(1) Lord Hewart, C.J., speaking of the Soho district of London, referred to its relatively small geographical area and said that there were clearly facts upon which a jury could come to the conclusion that the night club proprietors in the district well knew what was happening generally in relation to the police. That remark is equally apposite to the gaming house and brothel keepers of the North Point and Causeway Bay area of Hong Kong.
14. To return to the position of the collectors, they were operating from the same office, rented for that purpose, and were collecting the bribe money as "protection" money on a systematic and wide-spread basis over the period of the conspiracy charged. The evidence of various witnesses of this type covered the whole period of the conspiracy indicating that the money collected from the various vice establishments amounted to between $320,000 and $340,000 per month which money passed to the hands of successive persons whom I shall call "managers", for want of a better phrase, at a flat in Hung Fook Building in Kam Ping Street and which was subsequently paid into two bank accounts. Followers of the three successive station sergeants introduced their own respective successors to the establishments from which money was collected, one of these persons being CHENG Cheuk-fun who became something in the nature of the accountant and cashier of the operations of the conspiracy and who frequently purchased sterling bank drafts to send to England on behalf of the first appellant. It was Cheng's evidence that between the beginning of June 1972 and the end of February 1973 he opened and closed a total of seven savings bank accounts all with the same branch of the Hang Seng Bank Limited into which squeeze money from vice establishments was paid in, and from which accounts money was either withdrawn or transferred, some of that money being for the purchase of sterling bank drafts for the two appellants. The seven accounts were maintained in false names and at the end of approximately one month from opening an account, that account was closed by withdrawal of the final credit balance and the account books destroyed. Copies of the bank account entries were, however, produced in evidence and showed substantial deposits and withdrawals. Despite the fact that CHENG Cheuk-fun was an accomplice - a fact which the learned judge well took into account - the judge accepted him as telling the truth and said that he had been very candid in his disclosures.
15. The collectors so far from being unaware that no action was being taken in regard to the illegal activities in respect of which they were continuing to collect money well knew, on the evidence, of actual warnings being conveyed to establishments which it was deemed politic to raid for the sake of appearances.
16. All this evidence indicates, as the learned judge commented, a link-up between the owners and operators of the various vice establishments, the collectors, the three station sergeants and the two appellants.
17. It would be naive to imagine that the collectors thought that the power to refrain from police action, over a period of years and in respect of numerous offenders, resided solely in the station sergeant for the time being. In other words they must have been well aware that not all of the very considerable sums they were collecting stuck to the hands of the sergeant and that the failure to initiate prosecutions had the consent of the sergeant's superiors. Thus the collectors, the sergeants and the two appellants were all members of the same conspiracy each with a conscious understanding of a common design that the police officers concerned should act contrary to their public duty in regard to the administration of the law.
18. Moreover there is no merit in the contention that the learned trial judge found proved a conspiracy different from that which was charged. The basis of this assertion was the judge's finding that some of the conspirators were the owners or operators of vice establishments. In the first place the charge, even as amended, contained a reference to "other persons unknown" so that the inclusion by the judge of owners or operators of vice establishments cannot be said not to have been contemplated by the charge. Indeed these were the very persons whom it was correct to describe as unknown. Secondly, it cannot be argued that if A and B are charged and proved to have conspired, they are not guilty because the evidence reveals that they also conspired with C. The basis of the conspiracy alleged was that the two appellants would receive money from three station sergeants in return for affording protection to "stallholders". That was a single conspiracy and it was amply proved. In this connection the learned judge said:
"It has been submitted on behalf of the two Defendants that even if all the evidence adduced by the Crown were accepted as being true, nevertheless the two Defendants ought to be acquitted because the Crown has proved, from the evidence adduced, not only one conspiracy as charged in this indictment but three or more conspiracies because it is submitted each of the three Station Sergeants carried on their own separate enterprises, and that each of them, whenever they took up the post of Detective Station Sergeant in Bay View Division, each conspired separately with the two Defendants. I would agree with this submission if the Detective Station Sergeants named did not obtain their corrupt funds from those persons who are described as owners and operators of vice establishments collectively, but that (sic) each of them individually 'protected' a separate group of owners or operators, but the evidence of the 'collectors' of corrupt funds that is, PW5, 7, 8, 9 and 13, indicate otherwise."
The evidence of the "collectors" to which reference is there made is evidence that two of the station sergeants successively succeeded to the "business" of the first. From that it is clear that the servants were party to the conspiracy alleged and that is enough.
19. We have said more than sufficient to indicate that the appeals must be dismissed but for the sake of completeness we mention Mr. Scrivener's points regarding certain of the documentary evidence. Mr. Sceats, for the Crown concedes that in reaching his finding as to what bank accounts were maintained by the first appellant in the United Kingdom the judge relied upon the first appellant's Reply to the s.14 Notice served upon him and that the judge should not have had regard to this Reply, which related to the second charge against the first appellant, in respect of the conspiracy charge.
20. It is Mr. Scrivener's further contention that certain other documents relating to the U.K. bank accounts of both appellants should not have been admitted as evidence of the truth of their contents. We express no concluded opinion upon that but the question remains whether, ignoring those documents, there was evidence upon which the trial judge could have found that the bank accounts in question were in fact the accounts of the respective appellants or accounts over which they exercised control.
21. In regard to the first appellant the accounts in question were one at Barclays Bank Limited, Old Trafford, Manchester and one at the National Westminster Bank Limited at Bakewell in Derbyshire. Additionally there was an account in the name of the wife of the first appellant at Barclays Bank Limited, 37, Park Road, Leeds. There is evidence of regular payments into these accounts by means of bank drafts during the period charged. Such payments total more than $103,000 and the bank drafts were purchased with monies in the illicit bank accounts into which the "protection" monies were paid.
22. That the first appellant had a connection with Manchester is clear from the fact that at one time he served as a member of that City's Police Force and that for a period in 1956 his salary was paid to an account at a Manchester bank. Those events, however, are too remote to assist the Crown. What is of more significance is that the first five bank drafts purchased on behalf of the first appellant during the period under review were for the credit of C.J.M. Cunningham at the Old Trafford Branch of Barclays Bank Limited. That is the fact to which the documents themselves attest and does not depend upon the Reply to the s.14 Notice. The learned judge found as a fact that the "C.J.M. Cunningham" there referred to was the same C.J.M. Cunningham whose passport was before the court, that is the first appellant. The five drafts were all dated July 1971. Thereafter numerous drafts were sent to the same bank by reference to an account number and without the name "C.J.M. Cunningham" appearing thereon. There were interruptions sometimes of several months' duration, when the drafts were sent to the National Westminster Bank at Bakewell and less frequently drafts were paid into Mrs. Cunningham's Barclays Bank account at Leeds. The drafts were, on the evidence, purchased with monies emanating from bank accounts maintained by various witnesses which accounts were fed from the monies received from collectors. It would, we consider, be fanciful in the extreme to imagine that these English accounts were not accounts either owned by the first appellant or over which he exercised control and there was ample evidence upon which the learned judge could come to that conclusion without reference to the Reply to the s.14 Notice. At the same time similar considerations must apply to the fourteen remittances totalling $5,800 sent by or on behalf of the second appellant to numbered accounts in a bank in Winchester.
23. If, however, that be wrong and if we are also wrong in considering that the evidence of Lau and Cheng was sufficient to justify the convictions, we are completely satisfied that there has been no miscarriage of justice and accordingly we would, if necessary, apply the proviso to s.83(1) of the Criminal Procedure Ordinance to the action of the trial judge in admitting for the purpose of the conspiracy charge, the information as to the bank accounts contained in the Replies to the s.14 Notices.
24. The appeals are dismissed.
Representation:
Scrivener, Q.C. and P. Chan (Hampton Winter & Glynn) for appellants.
Sceats & Adams, C.C., for respondent.
(1) (1929) 45 T.L.R. 421; 21 Cr. App. R. 94, C.C.A.