FACC No. 2 of 1998
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 2 OF 1998 (CRIMINAL)
(ON APPEAL FROM CACC No.14 OF 1997)
||LIU SUNG WAI
||HONG KONG SPECIAL ADMINISTRATIVE REGION
Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ
Date of Hearing: 25 November 1998
Date of Judgment: 1 December 1998
J U D G M E N T
Chief Justice Li:
1. I have read the judgment of Mr Justice Bokhary PJ and agree with it. For the reasons he gives, I would allow the appeal so as to quash all the convictions, with no order as to costs.
Mr Justice Litton PJ:
2. I agree with Mr Justice Bokhary PJ's judgment.
Mr Justice Ching PJ:
3. I agree with the judgment about to be delivered by Mr Justice Bokhary PJ.
Mr Justice Bokhary PJ:
4. This case concerns the obtaining of evidence abroad for use in criminal proceedings in Hong Kong, which is a matter governed by Part VIIIA of the Evidence Ordinance, Cap.8. Of the six charges which the appellant faced, five, being the 2nd to 6th charges, could not be proved without the evidence so obtained. How such evidence affected the 1st charge is something to which I will come later.
5. All six charges were laid under the Theft Ordinance, Cap.210. The first ("the entry charge") was of procuring an entry in the record of a bank by deception, contrary to s.18D. The other five charges ("the property charges") were of obtaining property by deception, contrary to s.17(1).
6. The trial took place before Deputy Judge Day in the District Court. On 16 December 1996 the judge convicted the appellant on all six charges, and sentenced him to a total of three years' imprisonment.
7. On 15 May 1998 the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA) refused the appellant leave to appeal against conviction. And on 27 May 1998 that court refused to certify the involvement of any point of law of great and general importance. Whereupon, on 25 June 1998, the appellant went to the Appeal Committee, which certified the involvement of three such points and gave the appellant leave to appeal against conviction to this Court. Such leave was given upon those three points and also on the basis of a reasonably arguable case of substantial and grave injustice having been done.
Three certified points
8. All three certified points concern evidence obtained abroad for the purpose of criminal proceedings here. They are the points raised by the following three questions.
9. The first two questions are both predicated on the premise - asserted by the appellant but disputed by the respondent - that the foreign court has not made any order pursuant to the relevant letter of request to it from the Hong Kong court. On that premise: the first question is whether the evidence obtained abroad was admissible here; and the second question is whether such evidence constituted a "deposition" within the meaning of Part VIIIA of the Evidence Ordinance. The second question, which was formulated by my brother Litton in the Appeal Committee, is really a more focused way of putting the first one. That is because, as one sees from s.77F(1) of the Evidence Ordinance, it is as a "deposition ... received by the Registrar pursuant to a letter of request" that evidence obtained abroad is admissible in criminal proceedings here.
10. As for the third question, it arises in these circumstances. The lawyer who had been heavily engaged in the preparation of the prosecution's case went to the United States and acted as one of the two examiners before whom prosecution evidence was taken there on two occasions. At the appellant's trial before Deputy Judge Day, this lawyer, who had acted as one of the two examiners, went into the witness-box as a prosecution witness and gave evidence about the second examination. Thereafter he signed the re-re-re-re-amended charge sheet against the appellant. The question is whether those circumstances amounted to a material irregularity.
The entry charge
11. Turning to the charges, I begin by noting the particulars to the entry charge. These read:
" LIU Sung-wai, on or about the 6th day of March 1995, in Hong Kong, dishonestly with a view to gain for yourself or another or with intent to cause loss to another, procured the making of an entry in the record of a bank, namely a debit in the sum of $500,000 Hong Kong currency to account numbered 20-02-01490-5 in the name of Tin Chung United Transportation Company with the Chekiang First Bank Limited by deception, namely by falsely representing:
(i) that you would obtain a Letter of Credit in the sum of $1,998,196.80 United States of America currency in favour of Tin Chung United Transportation Company, Hong Kong;
(ii) that a cheque numbered 000034 and dated 28th March 1995 in the sum of $500,000 Hong Kong currency, drawn on Tai Lee Jewellery Hong account numbered 835-818-768491-001 with the Wing Hang Bank, would be a good and valid order, if presented for payment on or after the date thereon."
12. That debit entry resulted from the clearing of a cheque in favour of the appellant. He got that cheque as the first instalment of the payment he was to receive for obtaining for Tin Chung a letter of credit such as the one mentioned. The Wing Hang Bank cheque was one which he had caused another party to give as security for repayment of that instalment if he failed to obtain such a letter of credit for Tin Chung. This he failed to do. He did obtain two letters of credit; and they totalled $1,998,196.80. But they were the two letters of credit mentioned in the 2nd charge. And the prosecution alleged that they were false. The Wing Hang Bank cheque proved worthless.
13. The appellant's evidence on these matters was to this effect. He believed that he would be able to obtain such a letter of credit for Tin Chung. And he also believed that the Wing Hang Bank cheque was good. The judge, however, did not accept any of that. He felt irresistibly drawn to the inference that the appellant had not really believed either of those two things.
The property charges
14. I will illustrate the nature of the property charges by noting the particulars to the first of them, the 2nd charge. These particulars read:
" LIU Sung-wai, on the 6th day of April 1995, in Hong Kong, dishonestly obtained from LING Wan-shun $400,000 Hong Kong currency, with the intention of permanently depriving the said LING Wan-shun thereof, by deception, namely by falsely representing:
(i) that a Dah Sing Bank cheque numbered 014228 and dated 20th of April 1995, in the sum of $570,000 Hong Kong currency drawn on account numbered 4130301765 with the aforesaid Bank would be a good and valid order, if presented for payment on or after the date thereon;
(ii) that the two Letters of Credit dated 22nd and 27th of March 1995, bearing serial numbers C LSA9503225 and C LSA9503226 in the sums of $314,238 United States of America currency and $1,683,958.80 United States of America currency respectively, were issued by the Tokai Bank, Los Angeles."
15. The nature of the prosecution's case on the property charges and how it depended on evidence obtained abroad is outlined in this succinct passage from the Court of Appeal's judgment delivered by Stuart-Moore JA:
"In essence, the prosecution alleged that two businessmen (the victims), who knew very little about letters of credit, were introduced to the [appellant] as someone who would make arrangements for these in order to facilitate payments for equipment on an overseas contract. The [appellant's] arrangement fee was ten per cent of the value of the letters of credit, payable by instalments.
Put very simply, the prosecution's case [on the property charges] was that the American banks, which the [appellant] had said would be issuing letters of credit, never did so. However, the [appellant] caused what purported to be genuine copies of letters of credit to be faxed to the victims. These faxed copies (exhibits P4, 5, 9 and 11) led the victims to believe that the letters of credit existed, which resulted in the [appellant] being paid the instalments due under the arrangement.
In order to prove their case, it was essential for the prosecution to prove that the American letters of credit were false. For this purpose, the prosecution had evidence taken in Los Angeles by way of deposition under the provisions of section 77E of the Evidence Ordinance, Cap.8.
The main thrust to the grounds of appeal relates to procedural complaints about the way in which the depositions came to be taken from Anne Elder (PW11) of the Tokai Bank as regards exhibits P4 and 5, and Marissa Bautista (PW12) of the Standard Chartered Bank (acting for First Interstate Bank) in relation to exhibits P9 and 11."
16. At the trial the appellant said that he believed that the letters of credit were genuine. He did not accept that they were in fact false. So such falsity had to be proved. And he challenged the admissibility of the evidence thereof obtained abroad. This challenge failed in the courts below. And it now forms the essence of the present appeal.
How evidence is obtained abroad for use in criminal proceedings in Hong Kong
17. I have already noted that the obtaining of evidence abroad for use in criminal proceedings in Hong Kong is governed by Part VIIIA of the Evidence Ordinance. That Part consists of ss 77E to 77G. As one sees from s.77E(1), the Hong Kong court's power in this regard is to "order that a letter of request shall be issued and transmitted in such manner as [it] may direct to a court or...