FACC No. 6 of 2008

IpsofactoJ.com: International Cases [2009] Part 8 Case 8 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Warren K.W. Wong

- vs -

Hong Kong SAR

CHIEF JUSTICE ANDREW LI

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE HENRY LITTON NPJ

JUSTICE THOMAS GAULT NPJ

14 MAY 2009


Judgment

Chief Justice Li

  1. I agree with the judgment of Mr Justice Chan PJ.

    Justice Bokhary PJ

  2. I agree with the judgment of Mr Justice Chan PJ.

    Justice Chan PJ

  3. The appellant was convicted after trial in the Court of First Instance (before Tong J and a jury) of nine counts of conspiracy to solicit or accept an advantage for an agent, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap 201 and sections 159A and 159C of the Crimes Ordinance, Cap 200. His appeal to the Court of Appeal (Stuart-Moore VP, Stock JA and Beeson J) was dismissed. With leave of the Appeal Committee, he now appeals on both the point of law and the substantial and grave injustice grounds.

  4. The legal issue to be considered is: in a trial where the prosecution case depends mainly on the testimony of a witness who is attacked by the defence as telling lies against the accused, is it permissible, when the accused gives evidence, to cross-examine him as to whether he knows of any reason why the witness would lie? The appellant contends that it is not. He also contends that as a result of his cross-examination by the prosecution along this line and the trial judge’s failure to give proper and specific directions to the jury on the dangers of such questioning, he has suffered substantial and grave injustice.

    THE EVIDENCE

  5. The appellant joined the Wharf Group of companies (“Wharf”) in March 1985 as an assistant quantity surveyor. He was the Assistant Chief Manager of the Project Cost Audit Department between 1995 and 2000 and the Chief Manager from 2001 until 11 December 2002 when he was arrested by the ICAC. While in this department, he was responsible for examining the cost and expenditure of Wharf’s construction projects and making recommendations to senior management for decision. Thus he had access to confidential tendering information submitted by contractors in respect of various projects. Such information, it was accepted, was also available to a few other senior officers.

  6. The appellant came to know Selwyn Chan (“Chan”) when the latter joined Wharf in 1989 as an assistant project manager. In 1991, Chan resigned and started his own private consultancy practice. Shortly after that, the appellant took up moonlighting work for Chan including giving professional advice and drafting documents and certificates and he got paid by Chan for such services. According to Chan, but this was disputed by the appellant, such moonlighting work ceased in 1998.

  7. The prosecution case was that between the end of 1998 and the end of 2002, there was an agreement between the appellant and Chan (together with others, including the 2nd defendant at the trial, who was a staff member of one of the contractors) whereby Chan would approach contractors who were interested in securing construction contracts with Wharf for the sale of confidential tendering information to them; and after Chan had negotiated a fee with these contractors in return for such information, the appellant would obtain the information from Wharf and provide it to these contractors through Chan. The payments received from the contractors would be shared by the appellant and Chan. For the purpose of this appeal, it is not necessary to go through the evidence in detail with regard to what happened pursuant to such agreement in relation to each count. These illegal activities concerned several construction projects and involved four contractors.

  8. Chan’s evidence was supported by the bank records and other documents which he produced at the trial. These records and documents showed that during the relevant period, the appellant had received a total of $4.5 million. They also showed that most of the payments received by the appellant from Chan could be traced to the payments obtained by Chan from the contractors. It was also clear from these records and documents that the appellant was the only person in Wharf who had received regular and large payments from Chan. Admittedly, there were a few false invoices to cover up some of the corrupt payments.

  9. A report was made by one of the contractors to the ICAC in about July 2002 and the whole matter came to light. On 11 December 2002, a meeting was arranged between the appellant and Chan under the surveillance of ICAC officers. The meeting was covertly recorded on a video tape and the conversation on an audio tape. There were references during their conversation to two of the contractors involved. The appellant was also paid three cheques by Chan. He was then arrested and subsequently charged with these offences. At the trial, as expected, Chan testified against the appellant under immunity.

  10. Although there were other witnesses including various contractors (who also testified under immunity), the prosecution case depended mainly on Chan’s evidence and the bank records and other documents produced by him. It is accepted that these records and documents, while they supported Chan’s evidence, did not stand on their own and were not in themselves sufficient to prove the offences against the appellant. During his extensive cross-examination, it was put to Chan by counsel for the appellant that he had lied against the appellant. This was denied by Chan.

  11. The appellant gave evidence. He asserted that he had done moonlighting work for Chan and was paid for such services. This, he said, was why he received payments from Chan. However, he could not produce any document relating to such work since he did not keep any record. He maintained that such moonlighting work had continued until the time of his arrest. He denied that he had provided confidential tendering information to Chan or had agreed with him to do so.

    THE CROSS-EXAMINATION IN QUESTION

  12. During the appellant’s cross-examination, he was asked why Chan told a pack of lies about his involvement in these corrupt activities. The relevant part of his cross-examination is as follows:

    Q

    You say that what he told the ICAC about his involvement with you amounted to a pack of lies.

    A

    Right.

    Q

    Why do you think he did that?

    A

    At the very moment when I was arrested I didn’t know, however on the vehicle from what I was told by the ICAC officers, it dawned on me what actually happened. After I was arrested, I was taken to a vehicle. On the vehicle an ICAC officer spoke to me. He asked me, ‘Do you know Selwyn Chan well? Well, this person will resort to anything, prostitution, drinking and gambling.’ I was also told that he had a lot of companies doing different types of businesses and there was a girl inside each of those companies. Well, that’s not the Chan Siu-wing whom I knew. When I heard what I was told, my suspicion was aroused and my perspective of this person whom I previously regarded as friend began to change a bit. Then I gave the thought that he might have some illegal dealings with other persons. He might point his finger at me in order to save his own skin to secure immunity.

    Q

    Mr Wong, you’re his friend. If he had illegal dealings with somebody else, not you, in Wharf, if he wants to get his immunity all he has to do is point the finger at them, not at his friend. That’s right, isn’t it?

    A

    Well, I disagree. I really don’t know why he did that.

    Q

    Well, see, there’s no advantage. I suggest to you, there’s no advantage at all to Selwyn Chan to name you falsely if it’s actually somebody else, because he’s still going to get his immunity.

    A

    I disagree.

    Q

    See, because if he tells lies about you, he runs the risk of losing his immunity. If he tells the truth, he gets his immunity.

    A

    Well, I really don’t know why but the fact remains what you said is not true.

  13. It is this cross-examination which forms the basis of the appellant’s main grounds of appeal both before the Court of Appeal and this Court. It is said that these questions should not have been permitted and that the judge had failed to direct the jury specifically on the effect of such cross-examination.

    THE AUTHORITIES IN VARIOUS JURISDICTIONS

  14. Judicial opinions in several common law jurisdictions are split on the question whether an accused can be cross-examined on whether he knew of any fact as to why a key prosecution witness would lie against him: the Australian High Court and the Alberta Court of Appeal took the view that this is not permissible, and the New Zealand and English Courts of Appeal held otherwise.

  15. While all these decisions concerned sexual offence cases, it is accepted that the principle involved is also applicable to non-sexual offence cases where the prosecution relies mainly if not solely on the evidence of a key witness. In my view, this must be correct. The arguments both for and against permitting this line of cross-examination are pretty much the same and the potential dangers which may arise from such cross-examination are equally alive in sexual as in non-sexual offence cases. See also the comment of the Court of Appeal in the present case (para. 18).

  16. Palmer v R (1998) 193 CLR 1 was the most authoritative decision in Australia on this issue. Prior to this case, there was a divergence in judicial opinions in different states: New South Wales taking one view (R v E (1996) 39 NSWLR 450) and Victoria taking the opposite view (R v Rodriguez (1997) 93 A Crim R 535). In Palmer v R, the accused was convicted of several counts of sexual offences on the young daughter of his girl friend. His defence was that the complainant had invented false allegations against him. It was put to her that she did so as a “pay back” on the accused for some indiscretion he did not even know about. When the accused gave evidence, he was asked in cross-examination whether he could think of any reason why the complainant would make up the allegations and he said he could not think of any. The Australian High Court unanimously allowed his appeal on the ground that on the evidence adduced at the trial, the conviction was unsafe and unsatisfactory. On the issue as to whether the accused could be asked why he thought the complainant would lie, the majority (Brennan CJ, Gaudron and Gummow JJ) held that this was not permissible. Three points can be noted from their judgment.

  17. First, the reason for this prohibition, it would seem, was mainly based on the ground that it is not relevant to the central issue (which is whether the accused is guilty or not guilty of the offence charged). While accepting that a complainant can be cross-examined on her motive to lie, the majority held that this cannot be done in the case of the accused. The judges drew a distinction between the position of a complainant and that of an accused (paras. 7 and 8).

    It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

    If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is ‘oath against oath’. In such a case, to ask an accused the question: ‘Why would the complainant lie?’ is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused.

    .... Nevertheless, as the question is irrelevant to any issue in the case, it ought not (to) be asked ....

  18. Secondly, the majority expressed approval of the judgment of Sperling J in R v E with regard to the dangers which may arise if cross-examination of an accused on the complainant’s motive to lie is permitted. These include: the jury may wrongly think that the absence of evidence on the complainant’s motive means there is no motive; this invites the jury to speculate as to what may be possible motives for lying and to assess their likelihood; the onus of proof is shifted since the jury is invited to accept the evidence of the complainant unless it can be shown she is a liar; the standard of proof is diminished since the jury may more readily accept the testimony of the witness in the absence of a motive to lie; and it is unfair to the accused to expect him to surmise what is the motive of the complainant and to hold against him if he cannot (para. 8). It must be noted that R v E did not concern the cross-examination of an accused since the accused in that case did not give evidence. There was no evidence of any motive to lie on the part of the complainant, but prosecuting counsel in his closing address to the jury argued that there was no reason for the complainant to lie. It was in its criticism of the conduct of the prosecution that the New South Wales Court of Appeal also considered the legitimacy of the question: why would the complainant lie?

  19. Thirdly, the majority disagreed with the view taken by Callaway JA in the Court of Appeal of Victoria in R v Rodriguez (p.553) to the effect that “the complainant’s account is more likely to be true if a motive or possible motive for lying cannot be discerned and less likely to be true if it can be.” The majority said (para. 9):

    With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.

  20. McHugh J dissented on this issue and took the view that cross-examination of the accused on the complainant’s motive is permissible. In coming to this conclusion, his Honour made three points. First, he considered that the questioning of an accused person as to his knowledge of facts that could throw light on the complainant’s motivation for fabricating an allegation is relevant in determining whether he is guilty of the charge and thus cross-examination on his knowledge on this matter is permissible. (para. 26)

  21. Secondly, having analyzed the exclusionary rules of evidence with regard to matters going only to the credit of a witness, the learned judge considered that a flexible view should be adopted when matters going to the credibility of a witness are also probative of the facts-in-issue. This is because (paras. 50 and 51):

    .... in my view, evidence concerning the motive or lack of motive in the complainant for falsifying her complaint is admissible not only in relation to her credit but also in relation to the facts-in-issue in the case.

    The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent.

    .... Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.

  22. Thirdly, McHugh J observed that lack of motive to lie does in some cases enhance the probability of the allegation being true (paras. 58 and 59).

    In this case, the complainant’s motivation or lack of it for fabricating her allegations could fairly influence the belief of the jury as to the probability of the occurrence of the alleged offences. When a serious allegation is made against a person, one of the first inquiries most persons make in testing the truth of the allegation is to ask whether the person making the allegation has any motive for fabricating it. Any facts that suggest a motive are regarded as throwing light on the probability of the allegation being untrue. Conversely, where no facts suggesting a motive are known, the probability of the allegation being true is frequently enhanced. This is particularly so when the case depends, as it so often does in cases concerning sexual charges, on the complainant’s word against the word of the accused.

    In the ordinary course of events, people do not invent serious allegations against other persons. Even less frequently do they invent a serious allegation against a person and then perjure themselves in a court of law to support the allegation. Experience teaches of course that some people will concoct charges against other persons. But most people do not. Consequently, facts which show motivation for fabrication or the lack of it go to the probability of an issue. The fact that a person had or did not have a motive is relevant in many criminal prosecutions. That is because motive or its absence throws light on the probability of whether an event occurred or was committed by the accused. Similarly, motive or its absence is often relevant as to whether the evidence of a witness is true.

  23. On the other hand, his Honour readily acknowledged that there are dangers in allowing the accused to be cross-examined as to his knowledge of facts suggesting motive and that it is necessary for the trial judge to give proper directions to the jury.

  24. Kirby J considered that the arguments for and against permitting such line of cross-examination are evenly balanced but expressed preference for an approach which allows the jury, with appropriate directions from the judge, to decide what weight they wish to give to evidence and submission about a complainant’s motive. However, he concluded that “it would not be harmonious with the principle adopted in Robinson v R to permit questions to be asked or suggestions to be made that the accused’s evidence is weakened, or the complainant’s strengthened, by the inability of the accused to explain why the complainant would lie”. In Robinson v R (1999) 180 C.L.R. 531, the Australian High Court had to deal with a direction to the jury in a rape case where the trial judge asked the jury to take into account when assessing the credibility of the witnesses the interest of a witness in the outcome of the case, adding that the accused had the greatest interest of all the witnesses. The conviction was quashed on the ground that the direction had the effect of asking the jury to scrutinize the accused’s evidence more carefully than that of other witnesses and that this undermined the presumption of innocence and was unfair to the accused. By drawing analogy to Robinson v R, Kirby J was obviously concerned that permitting investigation on the possible motive to lie may undermine the equally fundamental protection afforded to an accused by placing the burden on the prosecution.

    (ii) Alberta, Canada

  25. In R v Kusk (1999) 132 C.C.C. (3d) 559, the trial judge allowed a question by the Crown suggesting to the accused in cross-examination that the complainant did not have a motive to lie and counsel in closing address to the jury further argued that the complainant had no motive to lie. The Alberta Court of Appeal condemned the question and closing address as improper and a breach of what the court described as an established practice prohibiting such “illegal” cross-examination and improper closing address. In refusing to apply the proviso, the court took into consideration, among other matters, the dangers of permitting such line of cross-examination, adopting the reasons of the majority in Palmer v R without analyzing the arguments involved.

  26. It must be noted that apparently this is not the approach adopted in another part of Canada. In R v Batte (2000) 49 O.R. (3d) 321, the accused did not give evidence but put to the complainants previous incidents from which a strong hatred was alleged to have developed between them. The Court of Appeal for Ontario held that the trial judge was not wrong to direct the jury that it could ask itself why the complainants would fabricate allegations against the accused. The court added (pp.354-355):

    Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

    (iii) New Zealand

  27. R v T [1998] 2 NZLR 257 was a case of indecent assault on young children. The defence was that the complainants had made up false allegations and had colluded amongst themselves. In his cross-examination, it was put to the accused that there was no reason for a particular complainant to lie about his conduct and he answered that he could not think of any reason. In his closing address, the prosecutor argued that there was no credible reason for the children to tell lies about the accused’s conduct. In New Zealand, as the Court of Appeal noted, the practice was to allow an accused to be asked whether he knows of any reason for the complainant to fabricate her account and for the prosecution to use the absence of any credible reason as a closing argument in favour of the complainant’s credibility. One of the grounds of appeal was that the trial judge in that case had failed to direct the jury to disregard this submission.

  28. Referring to Palmer v R and considering the dangers arising from such cross-examination and closing address and the need for trial judge to give clear directions warning the jury against such dangers, the court took the view that if the question is confined to eliciting facts known to the accused, and not speculation as to possible motives and the closing address is couched in the same way, it is permissible to put such question to the accused and make such address to the jury. The court observed that since the jury is asked to apply their common sense in approaching the evidence and assessing credibility, there is a “natural propensity of the mind” for the jury to ask whether any motivation to lie might exist and it would be ignoring realities to adopt a different approach and to prohibit investigation on any motive to lie. (p.266, line 10 to 15) Eichelbaum CJ delivering the judgment of the Court of Appeal added (p.266, line 20 to 35):

    Common sense will lead the jury to ask whether there is some apparent motive to lie. If so, that is a factor to be taken into account against acceptance of the complainant’s account. Where none has emerged, the jury will assuredly regard that as a factor to be taken into account in assessing credibility. Were the principle advanced on behalf of the appellant to be adopted therefore it would be insufficient to prohibit questions or submissions as to the complainant’s reasons for fabrication. There would need to be a requirement to direct the jury not to reason on those lines, on grounds which, since by definition they would defy common sense, could not sound convincing to a jury. To the contrary there would be a realistic risk that they would be perceived as legalese, an incomprehensible attempt by the Court, for reasons unknown and unexplained, to erect a shield for the accused against an obvious consideration to be taken into account in determining the complainant’s credibility.

  29. In response to the criticism in R v E on the danger in encouraging a common sense approach, the court stressed the importance of the role played by common sense in criminal cases and said (p.265, line 35 to 40):

    We have to say, with respect, that we see an even greater danger if, in a field where the public is intimately involved through the jury trial process, a gap is allowed to develop between the law and common sense in a facet of criminal trials as basic as the assessment of credibility.

    (iv) England

  30. R v B [2003] 1 WLR 2809 was a case of rape, attempted rape and indecent assault committed by a father against his two daughters. At the trial, the parties raised the issue whether the prosecution should be permitted to ask the accused whether he could think of any reason why his daughters should tell lies against him. The judge ruled such question permissible. To the question put to him, the accused said he was unable to provide a reason. This ruling was a ground of appeal after conviction. The English Court of Appeal discussed extensively the judgments in Palmer v R, R v Kusk, R v Batte and R v T and expressed preference for the approach taken by McHugh J in Palmer v R and the New Zealand Court of Appeal in R v T. Noting that this was the practice for at least 40 years in the English criminal courts, the Court of Appeal considered that there was no reason to impeach such practice.

  31. As to the appeal before it, the court held that the question put to the accused was relevant and hence admissible; and that it was not unfair or had any impact on the burden of proof. Delivering the judgment of the court, Rose LJ said:

    41.

    The question permitted by the judge was, as it seems to us, admissible because it was relevant. If there was anything known to the defendant which provided a reason for a complainant to lie, this would tend to undermine her credibility. The fact that a negative answer was anticipated by counsel as likely cannot, as it seems to us, determine the admissibility of the question. If the defendant, unexpectedly, had given a positive answer, this would obviously have been relevant to his credibility and might have required further exploration.

    42.

    The prosecution, it seems to us, was entitled by the question to seek to close, with finality, an avenue which was open to the defence. We do not accept that the asking of the question was unfair, or had any impact on the burden of proof. The evidential effect of the answer, in the context of the burden of proof, was a matter for the summing up, with directions tailored to the circumstances of the particular case. The question did not, as it seems to us, invite speculation. It sought to ascertain the state of the defendant’s knowledge. The judgment of Eichelbaum CJ in R v T [1998] 2 NZLR 257, from which we have extensively quoted, puts the matter in a way with which we, like the trial judge, agree and which, indeed, we cannot improve upon. It follows that the judge was correct in ruling as he did that the question by prosecuting counsel was permissible.

  32. It is worth noting that while the judges in the above decisions might have differed in their opinions as to whether cross-examination of an accused on his knowledge of the reason or motive of a witness to lie is relevant or admissible, all of them recognized that there were possible dangers in pursuing this line of cross-examination and were concerned with the possible adverse effect on the fairness of the trial for the accused.

  33. The Court of Appeal in the present case followed the New Zealand and English decisions rather than the Australian and Alberta decisions. It said:

    24.

    We respectfully agree with the approach of McHugh J in Palmer, and of that of the courts of New Zealand and English as exemplified in R v T and R v B respectively. As far as we are aware, the question of the type now impugned has, as elsewhere, been one frequently asked in trials in Hong Kong. That of itself does not render it permissible, the issue now having been raised, but it accords in our judgment with the common sense and reality of the matter. We take the view that questions of this kind are permissible although we endorse the advice that in so far as the prosecution seek to accrue weight to the prosecution case from a defendant’s failure to provide a motive, it must be made clear to a jury by the judge that the burden remains throughout on the prosecution to prove the veracity of the testimony of the complainant or other prosecution witness, as the case may be, and not on the defendant to prove a motive to lie.

  34. I would agree with this conclusion. With respect, I find the reasons given by McHugh J in his dissenting judgment in Palmer v R, the New Zealand Court of Appeal in R v T, and the English Court of Appeal in R v B more convincing and more in line with the practice in the courts in Hong Kong and the common sense approach which our juries have always been invited to apply. Out of deference to the learned views expressed in these authorities and the submissions of counsel, I would only add a few observations as follows.

  35. In my view, whether this line of cross-examination is permissible is to be resolved by considering two matters. First, whether the answer is relevant. Second, whether there is any legal principle or policy which requires its exclusion. (See Cross & Tapper on Evidence (10th ed.) p.80.)

    (i) relevance

  36. It is not disputed that any fact which throws light on a possible motive to lie on the part of a witness is a factor to be taken into account in the assessment of his evidence as it is usually relevant both to the credibility of the witness and an issue in the case, that is, the probability of his evidence being true. As is generally accepted in the authorities discussed above, cross-examination of a witness is permissible and evidence is admissible to show that he has a motive to lie. Normally, if there is indeed a motive to lie on the part of the witness, one of the persons who would have or is likely to have knowledge of facts tending to show such motive exists would be the one against whom the allegation is made. Thus, it is fair and even pertinent, in some cases, to ask the person being accused whether he is aware of any relevant fact or reason for the witness to lie about him. He may or may not know of any fact or reason from which a motive to lie can be established or inferred. But his knowledge or lack of it is relevant to the credibility of the witness as well as the probability of what is said by the witness being true. It is certainly a relevant matter which the jury when assessing the witness’s evidence may wish to take into account. (See also Eichelbaum CJ in R v T p.266, line 20.) As Mr McWalters SC for the prosecution rightly submits, if the accused knows, his answer is clearly relevant; but even if he does not, the fact that he does not know simply cannot be ignored.

  37. Hence, I am unable to agree with the statement of the majority of the court in Palmer v R that the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. Furthermore, this is not a reason for prohibiting the question to be asked. Until the answer is given by the accused, it is not clear whether he has such knowledge or not. As the English Court of Appeal in R v B said, “The fact that a negative answer was anticipated by counsel as likely cannot, as it seems to us, determine the admissibility of the question. If the defendant, unexpectedly, had given a positive answer, this would obviously have been relevant to his credibility and might have required further exploration.” (para. 41)

  38. Even the majority of the Australian High Court in Palmer v R acknowledged in their judgment that “if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.” (para. 7) How helpful his lack of knowledge would be depends on the circumstances of the case and is a matter entirely for the jury, no doubt with the assistance of appropriate directions from the trial judge.

    (ii) no principle or policy excluding cross-examination

  39. Like all the judges in these previous decisions, I am conscious of the possible dangers which may be generated by permitting cross-examination of the accused on the witness’s motive to lie and the need for the trial judge to give appropriate directions to the jury to alleviate these dangers when they emerge. As discussed in R v E, and acknowledged by the courts in all these cases, these dangers consist mainly of the risk of misuse by the jury of the accused’s answer and the possible adverse impact of the burden and standard of proof. Mr Bruce SC for the appellant submits that the majority of the Australian High Court in disallowing such cross-examination considered that these problems should be stopped before they arise and he argues that for this reason, this line of enquiry should not be allowed even if it is relevant.

  40. In my view, if a line of cross-examination is relevant both to the credibility of the witness and the probability of an issue in the case, this ought to be allowed unless this is contrary to any legal principle or policy and there are good reasons to exclude it. It is not contended that these problems cannot be solved and any unfairness to the accused cannot be removed by appropriate directions from the trial judge. This is certainly not the view taken by the courts in the authorities. See the majority in Palmer v R: “a firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry.” (para. 8); McHugh J in Palmer v R: “the risk can be overcome by a proper direction” (para. 70); the English Court of Appeal in R v B: “the evidential effect of the answer, in the context of the burden of proof, was a matter for the summing up, with directions tailored to the circumstances of the particular case.” (para. 42)

  41. I am thus not persuaded that the presence of these possible dangers would be a sufficient reason to require exclusion of such line of cross-examination.

  42. Although it is permissible to cross-examine the accused on his knowledge of any facts which may throw light on any motive to lie which the witness may have, this line of enquiry should be pursued with circumspection. In this regard, I would make a few observations.

    1. the questions must be confined to the eliciting of facts which are or would be known to the accused and must not be pursued to promote speculation as to possible motives. (See Eichelbaum CJ in R v T, p.266.)

    2. if the prosecution or defence is aware of any fact or material which may be relevant to this issue, this should be put to the witness during his testimony and if necessary, further explored with other witnesses or the accused. Where it is simply alleged that a prosecution witness has lied but no particular motive has been suggested to him as to why he has done so, it is, in most cases, unlikely that the accused would have knowledge of any fact tending to show there is a motive to lie. In such a case, it is seldom helpful for the prosecution to cross-examine the accused about it. Even if such a course is adopted, the matter should not usually go beyond a negative answer from the accused. But if the witness has not been challenged as having lied, it would not be appropriate to question the accused about knowledge of facts giving rise to an inference of a motive to lie.

    3. the trial judge should exercise his discretion in disallowing any question which is unfair to the accused.

    CROSS-EXAMINATION AND DIRECTIONS IN PRESENT CASE

  43. Mr Bruce argues that if this line of cross-examination is allowed, the trial judge is required to give specific directions as in the case of lies or identification. It is submitted that in the present case, the judge had failed to do so and that the directions which he had given were not sufficient.

  44. I do not think the analogy to lies and identification is appropriate. They are special issues which require special directions to the jury. The dangers which may arise in the present situation relate mainly to the risk of misuse by the jury of the accused’s answers and the possible adverse impact on the burden and standard of proof. Where such dangers arise, it is important that the jury are reminded clearly and firmly that the accused is not required to prove any motive to lie on the part of the witness, that it is for the prosecution to satisfy them that the witness is telling the truth and that the burden always remains with the prosecution to prove that the accused is guilty of the charge beyond reasonable doubt. In most cases, I do not think specific directions are required.

  45. In the present case, Chan was attacked by defence counsel as having told a pack of lies against the appellant even though they were ex-colleagues and friends for many years. However, no particular reason was put to Chan during his cross-examination as to why he would fabricate allegations against the appellant, although we were told that the defence did speculate before the jury as to the possible reasons. Furthermore, there were several persons in Wharf who had access to the confidential tendering information, and yet Chan chose to point an accusing finger only at the appellant. In these circumstances, it was legitimate for the prosecution to ask the appellant whether he knew why he thought Chan had told all these lies and why Chan had accused him and not the others. There was nothing unfair or improper in the questions put to the appellant. As it turned out, the appellant did purport to give some reasons, including the alleged reason that Chan “pointed his finger at him (the appellant) in order to save his own skin to secure immunity.”

  46. As the Court of Appeal rightly pointed out, it would have been better if the trial judge had expressly directed the jury that there was no obligation on the appellant to show there was a motive to lie. (See para. 27) But the judge had repeatedly, not only at the beginning of the summing up (pp. 1, 2, 11 and 38) but several times towards the end (pp. 62 and 63), told the jury that the burden was on the prosecution to prove the appellant’s guilt and that they had to be satisfied of this beyond reasonable doubt. He also corrected the wrong arguments which trial counsel for the prosecution had made to the jury in his closing address on two matters, especially the argument regarding the possible advantage which Chan might stand to gain under the immunity by testifying against the appellant and not the others. And in refuting the prosecution arguments, the judge emphasized to the jury that the appellant “had no onus of proof” and “did not have to prove anything”. (See summing up, pp.61, 62 and 63.)

  47. As the Court of Appeal said, the case against the appellant was not entirely based on what Chan said. His evidence was supported by the bank records and other documents and reinforced by what happened at the pre-arranged meeting on the day of arrest. Having considered all the evidence and the summing up as a whole, including particularly the judge’s repeated directions on the burden and standard of proof and the absence of any onus on the appellant to prove anything, I have no doubt that the jury could not have been led into believing that the appellant was obliged to show that Chan had a motive to lie. His omission to direct the jury specifically on this point is not material. In the circumstances, I am not persuaded that the appellant had suffered substantial and grave injustice as a result of the cross-examination on the motive to lie issue.

    CONCLUSION

  48. For the reasons given above, I would dismiss the appeal.

    Justice Litton NPJ

  49. I agree with the judgment of Mr Justice Chan PJ.

    Justice Gault NPJ

  50. I agree with the judgment of Mr Justice Chan PJ.

    Chief Justice Li

  51. The Court unanimously dismisses the appeal.


Cases

Palmer v R (1998) 193 CLR 1

R v E (1996) 39 NSWLR 450

R v Rodriguez (1997) 93 A Crim R 535

Robinson v R (1999) 180 C.L.R. 531

R v Kusk (1999) 132 C.C.C. (3d) 559

R v Batte (2000) 49 O.R. (3d) 321

R v T [1998] 2 NZLR 257

R v B [2003] 1 WLR 2809

Authors and other references

Cross & Tapper on Evidence (10th ed.)

Representations

Andrew Bruce SC and Felix C Y Hoe (instructed by Messrs Arthur Au & Co) for the appellant.

I C McWalters SC and Prakash L Daryanani (of the Department of Justice) for the respondent.


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