HKSAR v. LAU WING KUN AND ANOTHER

CACC 524/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 1999

(ON APPEAL FROM DCCC 1422/1998)

__________________

______________

J U D G M E N T

______________

Hon Mayo VP (giving the judgment of the Court):

1. This application is the second limb of an appeal which has been lodged in this matter. In the trial below there were seven defendants. They were charged with conspiracy to engage in bookmaking. The applicant was D2. All of the defendants save for D1 and D3 were acquitted on the conspiracy charge after a trial in the District Court before H H Judge Wright. However the applicant was also charged with two counts of offering an advantage contrary to s 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. He was convicted of these counts which were charges two and three and he was sentenced to 4 years imprisonment on each count which were ordered to be served concurrently. He now seeks leave to appeal against these convictions and the sentences which were imposed. As a result of an order made by the Chief Judge of the High Court these applications are being heard separately from the applications which were made by D1 and D3 against their convictions in relation to the conspiracy. Their applications were dismissed.

2. So far as this application is concerned particulars of charges two and three were as follows:

"Charge 2

TSE Ping-wang, on or about the 28th day of May 1998, in Macau, without lawful authority or reasonable excuse, offered an advantage, namely $100,000.00 Hong Kong currency, to a public servant, namely CHEUNG Man-pui, a Superintendent of Police in the Hong Kong Police Force, as an inducement to or reward for, or otherwise on account of the said CHEUNG Man-pui performing acts in his capacity as a public servant, namely the provision of prior warning of intended police operations against unlawful bookmaking centres to LAU Wing-kun, who was the operator of an unlawful bookmaking centre.

Charge 3

TSE Ping-wang, between the 29th day of May 1998 and the 10th of June 1998, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely $100,000.00 Hong Kong currency, to a public servant, namely YEUN Chun-biu, a Chief Inspector of Police in the Hong Kong Police Force, as an inducement to or reward for, or otherwise on account of the said YUEN Chung-biu performing acts in his capacity as a public servant, namely the provision of prior warning of intended police operations against unlawful bookmaking centres to LAU Wing-kun, who was the operator of an unlawful bookmaking centre."

3. The nexus between the conspiracy and charges two and three was that it was the prosecution case that the payments alleged were intended to facilitate the operation of the conspiracy. In our judgment on D1 and D3 applications for leave to appeal against their convictions we set out in some detail the background to the conspiracy. It is accordingly not necessary for us to do so here.

4. The prosecution case against the applicant was based upon the contents of a cautioned statement made by him.

5. The Judge summarised what was said in the statement in this way at p. 44 of the appeal bundle:

"He relates that he had known the person LAU Wing-kun (D1) since he was some 15 years of age and had remained in contact with him; he was well aware that LAU had operated a bookmaking business; around March/April 1997 LAU had approached him to place bets; he had done so; thereafter LAU indicated that his business, previously operated from home, was expanding and that he was taking on premises in Lei King Wan.

The Second Accused then relates how, at about this time, LAU told him of his relationship with two senior police officers and how they protected his interests by warning him of any potential investigations which may affect him. LAU provided details to him of his relationship with the two police officers and that they would pass on, specifically, information in regard to raids on gambling dens. LAU then moved his operation to Fanling. (Generally, items 124 to 258, Exhibit P133)

He goes on to explain how LAU had indicated that he wished the Second Accused to pay over monies to the police officers. He sets out in detail his conversations with LAU, the arrangements that were made and what eventuated during the trip to Macao. (Items 538 to 841 and 892 to 911, Exhibit P133). In brief, they met with one of the police officers and others at the ferry pier in Hong Kong; LAU purchased tickets for all of them -not only for the ferry trip but for other entertainment in Macao; on the ferry LAU handed him $100,000.00 and indicated this should be paid to one of the police officers at an opportune moment in Macao; later, inside a night-club toilet, the Second Accused handed the money to the police officer who promptly pocketed it; he later reported to LAU that the money had been paid over; they returned to Hong Kong.

He then relates, with similar clarity, the circumstances surrounding the subsequent occasion when, in Hong Kong, LAU gave him money to pay to the other police officer whom LAU had named as protecting his operation. (Items 973 to 1183, Exhibit P133 - especially 1021 and 1045, ). In brief, they went together to a night-club in Kowloon where they met, amongst others, the police officer named in the charge; later, inside a toilet in the night-club, the Second Accused handed the money to the police officer who promptly pocketed it; he later reported to LAU that the money had been paid over."

6. The Judge accepted that the contents of the statement were true and accurate and accordingly convicted the applicant on charges two and three. It will be appreciated that the payment made in Macau was the subject matter of charge two and the payment in the Kowloon Night Club was charge three.

7. The first amended perfected ground of appeal is that:

"1. The Trial Judge erred in that he convicted the Second Applicant upon the Second and Third charges. It was the Prosecution case against the Second Applicant that he acted on behalf of the First Applicant in paying over moneys to the two police officers specified in the second and third charges. In that sense he was an accessory of the First Applicant. It was therefore incumbent upon the Trial Judge to satisfy himself upon the basis of admissible evidence that the moneys were paid by the First Applicant for the purpose specified in the second and third charges. (that is to say that the evidence established the actus reus of the two offences and that at the time of the payments the Second Applicant possessed the necessary mens rea). There was no such admissible evidence."

8. The first point which has to be made is that it was not the prosecution case that the applicant was acting on behalf of D1 in the trial below. It was the prosecution case that it was the applicant who offered the advantages to the respective police officers.

9. In both cases he was charged as a principal offender. It did not matter where he got the money from. Nor did it matter that he may personally have derived no benefit as a consequence of the payments being made.

10. S 4 (1)(a) of the Prevention of the Bribery Ordinance, Cap. 201 is couched in this form:

"Any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of that public servant's-

(a) performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant; ...

shall be guilty of an offence."

11. An "offer" is defined in s 2(2)(a) as:

"a person offers an advantage if he, or any other person acting on his behalf, directly or indirectly gives, affords or holds out, or agrees, undertakes or promises to give, afford or hold out, any advantage to or for the benefit of or in trust for any other person"

12. What was of importance was what was the intention of the applicant. The Judge directed his attention to this. He dealt with it at p. 45 of the appeal bundle:

"He indicates quite clearly in respect of each offence that he knew that the money was payment to the police officer for his protection of LAU. In this context to suggest that the use of the words 'understood' or 'believed' are indicative of anything less than knowledge is unrealistic.

He is a police officer: he knows for a fact, for he has used the facilities, that LAU operates an illegal undertaking: LAU has told him of his relationship with two more senior police officers, of payments to them and the purpose of those payments: he expresses his belief in what he has been told; on two occasions he is handed $100,000.00, in cash, by LAU for payment to those two police officers: on each occasion he hands over the money, at night, inside toilets, in night-clubs.

There is no doubt in my mind that he paid over those moneys to those two persons in the knowledge and with the intention that the payments would have the effect and purpose stated in the Charges."

13. There is no merit whatever in this ground and it is dismissed.

14. The second ground is that:

"2. The Trial Judge erred in finding that the Summary of Facts submitted by the Prosecution 'does nothing more than outline the background which led to the second Accused committing the offence'. In the circumstances of the Second Applicant's case the Summary of Facts particularised the case that he had to meet in relation to the Second and Third charges."

15. The relevant part of the summary of facts reads:

"15. In respect of the charges D2 made cautioned admissions. D2 believed that D1 had been acquainted with SP CHEUNG and CIP YUEN for a long time, and had been providing information on impending police action against gambling and bookmaking activities to D1 in return for unknown advantage.

16. On 28.5.98, D1, D2, SP CHEUNG and four other unidentified Chinese Males (C/Ms) travelled together to Macau. All the ferry tickets for the journey were purchased by D1 at the Shun Tak Centre, Sheung Wan on that day. During the process of buying the tickets, D2 accompanied D1 who gave two bundles of $1,000 dollars notes, each containing HK$50,000, to D2 and requested him to pass the money onto SP CHEUNG after arriving in Macau. D2 retained the money and later handed it to SP CHEUNG inside a toilet in Club de Macau. D2 believed that the money represented a bribe paid by D1 to SP CHEUNG as a reward for the latter.

17. One day between 29.5.98 and 10.6.98, while D1 was driving D2 in his car heading for Tsim Sha Tsui East, D1 gave HK$100,000 cash to D2 to give to CIP YUEN. When D1 and D2 arrived at the Club Bboss, they were joined by SP CHEUNG, CIP YUEN and other unidentified C/Ms as previously arranged.

At about 2300 hours, D2 and CIP YUEN went to the toilet together and D2 gave the money to CIP YUEN inside the toilet. D2 believed that the money paid by D1 to CIP YUEN was a bribe for the latter providing D1 with information regarding impending police action against gambling and bookmaking activities."

16. At p. 46 of the appeal bundle the Judge in his reasons for verdict states:

"The Summary of Facts submitted by the prosecution does nothing more than outline the background which led to the Second Accused committing the offence. They are consistent with the two charges and with the admissions made by the Second Accused. Whether LAU was charged or not does not affect the criminal liability of the Second Accused for acts committed by him."

17. The complaint which is made by Mr James Chandler for the applicant is that the Judge appears to have failed to appreciate the significance of the fact that according to the summary the applicant was only acting as an intermediary between D1 and the police officers when he effected the payments to them.

18. As indicated when commenting upon the first ground of appeal it makes no difference if the applicant had been acting as an intermediary.

19. Having regard to the wording of the relevant sections of the ordinance the critical question which had to be determined by the Judge was simply whether the payments had been physically made by the applicant to the officers with the relevant mens rea namely that the payments represented an offer of an advantage to the officers for the purpose stated in the charges.

20. This ground is also without merit and is dismissed.

21. The third ground is that:

"3. The Trial Judge erred in that the Second Applicant having invited the exclusion of answers given during post arrest interviews in the exercise of the discretion based in fairness he declined to exercise that discretion in favour of the Second Applicant in circumstances where the discretion should have been exercised in favour of exclusion or alternatively the Judge should have ruled the interviews inadmissible. The content of the Records of Interview in so far as they related to the Second and Third charges should have been excluded upon the basis that they possessed little or no Probative value and that to admit them was to seriously prejudice the Second Applicant."

22. It appears that the basis of the complaint made here is that initially the applicant who was an experienced police officer co-operated with the officers of the ICAC in the hope that this might prove to be advantageous to him. It was in this context that he had implicated himself. Subsequently he changed his mind and ceased to co-operate.

23. However what is not disputed is that the applicant did voluntarily make the admissions attributed to him.

24. What is being called in question in this ground is the weighing exercise which has to be undertaken by a judge who is faced with such a situation.

25. The Court of Final Appeal considered the residual discretion of a judge to exclude statements in Secretary for Justice v Lam Tat-ming and Another unreported being FACC 9/99. Although the factual background of that case was not entirely the same as the instant case Li CJ who wrote the leading judgment set out the relevant principles at p. 30:

"Answer to the certified question

The certified question of law has been set out earlier in this judgment under the heading 'Leave to appeal'. Ultimately, it has to be answered by reference to the common law in Hong Kong. In summary, in exercising the residual discretion to exclude a voluntary confession, the judge has to consider whether it would be unfair to the accused to use the confession against him at trial and unfairness is to be judged against what is required to secure a fair trial for him. The protection of his right of silence is a principle of a fair trial. In the context of an undercover operation, whether his right of silence has been jeopardised is relevant."

26. Prior to this at p. 17 he said:

"... In this situation, where a caution has been administered and the confession is established to be voluntary, it has been rightly observed in many Hong Kong authorities that the residual discretion to exclude the admissible evidence consisting of the voluntary confession should seldom be employed. First, because relevant and admissible evidence would be withdrawn. Secondly, because the kind of conduct complained of should already have excluded the confession as involuntary. See R v. Lam Yip-ying [1984] HKLR 419 at 424G; R v. Chow Chi-hing [1993] 2 HKC 214 at 217E (where Litton JA described the discretion as very limited); R v. Chan King-hei [1995] 1 HKCLR 288 at 292 ? 40 (Mortimer JA said the circumstances for its exercise will be rare). However, circumstances may still arise for its exercise; for example, where its prejudicial effect is out of proportion to its probative value."

27. What needs to be borne in mind in the present case is that there was never any question of any deception being resorted to by the ICAC officers. They were taking a statement from a very experienced police officer who undoubtedly would have fully appreciated the implications of what he was doing.

28. The admissions revealed the commission of serious criminal offences. There could be no question of the applicant not having received a fair trial or of having been treated in any way unfairly. It does not appear that the Judge could in any way be validly criticised for exercising his discretion in the way he did. This ground is also without substance and is dismissed.

29. The convictions were in no way unsafe or unsatisfactory and this application is dismissed.

Sentence

30. It is complained that the total of 4 years imprisonment for these offences is both wrong in principle and manifestly excessive.

31. Mr Chandler calls in aid the fact that the applicant has according to the prosecution been co-operative and that he did not stand to gain any advantage personally from his wrong doing. It has to be said that although he was initially co-operative he subsequently changed his mind and then ceased to be co-operative.

32. What has to be borne in mind is that the applicant would have fully appreciated the significance of what he was doing.

33. It is a very serious matter for anyone to offer a large inducement to a police officer in the expectation that he will not perform his public duties.

34. We are however satisfied that the Judge did not give sufficient credit for the assistance which the applicant gave the Authorities. In all the circumstances we consider that the sentences on both counts should be reduced by 1 year.

35. Accordingly we grant leave to appeal and treating this as the substantive appeal we order that sentences of 3 years imprisonment be substituted for the sentences which were imposed on both counts. They will be served concurrently. To this extent the application is successful.