HKSAR v. A

[English Translation – 英譯本]
CACC 400/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 400 OF 2013

(ON APPEAL FROM HCCC 468/2012)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the reasons for judgment of the Court):

1.The applicant was convicted by Deputy High Court Judge Albert Wong (as he then was) sitting with a jury of one count of conspiracy to commit robbery and was sentenced to a term of imprisonment of 8 years and 6 months. The applicant lodged an application for leave to appeal against conviction. We heard the application and granted leave to appeal to the applicant and treating the application as the appeal proper, we allowed the appeal, quashed his conviction and set aside the sentence. We also allowed the applicant to submit his affidavit dated 2 July 2015 as additional evidence in this application.

2.The respondent did not have any objection to the applicant’s application and appeal, nor did they request us to order a retrial.

3.The applicant had been remanded in custody since his arrest until we granted him bail on 14 July of this year.  The applicant had been remanded for a period of about 33 months.

4.We now give reasons for our judgment.

Background

1)   Prosecution evidence

5.The charge alleged that the applicant conspired with Lam Hing to commit the offence of robbery between 1 March 2011 and 14 July 2011.

6.The prosecution relied on 4 prosecution witnesses, who were robbed by a male respectively on 16 May, 13 June, 13 July and 14 July 2011 inside a lift of a building while on their way back to the office after withdrawing money from the bank.

7.PW1 and PW2 said that they were robbed of $20,000 on 16 May 2011 and 13 June 2011 respectively.  PW3 said that she was robbed of $2,000 on 13 July 2011. PW5 said that she was robbed on 14 July 2011, but the robber was unable to rob her of any money.

8.In the present case, the prosecution also relied on PW4, that is, the Lam Hing as alleged in the charge, to give evidence against the applicant.

9.Lam Hing was previously arrested by the police on 11 August 2011 and pleaded guilty to 3 counts of robbery in the High Court in June 2012, that is, the offences in relation to the robbing of PW1, PW2 and PW3.  The prosecution agreed that the charge against Lam Hing in respect of the robbery which took place on 14 July 2011 be dismissed.

10.On 2 August 2012 Lam Hing indicated to the police that he was willing to be a witness for the prosecution to testify against the applicant for conspiring with him to commit the 4 robberies.  As Lam Hing agreed to give evidence in the present case, the Secretary for Justice granted him immunity from prosecution as regards the robbery that took place on 14 July 2011.

11.In the present case, Lam Hing testified that he had plotted with the applicant to rob bank customers who withdrew money from the bank.  Their arrangement was to have the applicant entered the bank first, and he would call Lam Hing after he spotted a suitable money withdrawer.  Lam Hing would then follow these persons to their office, and rob them with a knife inside a lift.  Lam Hing admitted that, on 16 May 2011, he and the applicant had split the $20,000 obtained from the robbery he committed.  He also stated that he and the applicant had split the money obtained from the robbery on 13 June 2011.  Lam Hing stated that no money could be obtained from the robberies on 13 and 14 July 2011.  He stated that the four robberies were proposed by the applicant.  Lam Hing said that he had two previous robbery convictions.  He knew how to commit a robbery and did not require the applicant to teach him what to do.

12.PW7 was a police officer.  He admitted that the applicant was his informer.  Between July and August 2011, the applicant had provided information concerning some robberies involving Lam Hing, but the applicant did not specify the cases to which the information related.  After PW7 received the information, he reported the same to his superior officer.  PW7 denied that the applicant had tipped him off before each of the four aforesaid cases took place.  He also denied that the applicant had contacted him during the course of these four cases.

2)   The applicant’s defence

13.On 24 August 2011 the applicant was arrested in connection with the offences of robbery, and the police allowed him bail on his own recognizance of $500.  This went on until 15 March 2012 when the applicant was discharged unconditionally, and not subjected to any bail conditions.

14.On 17 October 2012 the police re-arrested the applicant.

15.The applicant gave evidence in his defence.  The applicant stated that Lam Hing had invited him to commit robbery together, but he refused.  The applicant knew a person named “Ah Fai”, who told him that Lam Hing would commit robbery.  The applicant said that he and “Ah Fai” entered into agreement to inform the police of Lam Hing’s actions in return for remuneration.  The applicant said that he had contacted PW7 prior to and during the course of these 4 robberies and provided him with information on Lam Hing’s actions.  PW7 instructed the applicant to look further into the matter, and to find out who Lam Hing’s partner in crime was.  The applicant said that, in those 4 incidents, he did show up in the banks concerned, but he was there merely to look further into the matter and to comply with PW7’s instructions, in order to find out who Lam Hing’s partner was.  He had absolutely no intention to commit any offence, nor was he there to look for targets to rob.

Lam Hing successfully obtained reduced sentence

16.On 28 November 2013, Lam Hing sought leave to appeal against his sentence of 6 years’ imprisonment out of time.  His grounds were that, after he was sentenced, he provided to the police the particulars of his accomplice, that is, the applicant, in the three robberies he was involved, and that enabled the police to successfully arrest the applicant.  Lam Hing also acted as a prosecution witness to testify against the applicant, and that enabled the prosecution to successfully prosecute the applicant. The Court of Appeal allowed Lam Hing’s application and reduced his original sentence of 6 years’ imprisonment to one of 5 years.

The first ground of appeal

17.The first ground of appeal advanced by the applicant was that the prosecution did not disclose to the defence important material which could affect the credibility of the main prosecution witness.  This constituted a material irregularity in the trial, and rendered the trial unfair.

Undisclosed evidence

18.In April 2015 the applicant successfully obtained legal aid through help from the Clinical Legal Education Centre of the University of Hong Kong.  The Legal Aid Department assigned the applicant’s current lawyers to represent him.  The applicant’s lawyers successfully obtained from the Department of Justice Lam Hing’s telephone communication records covering the material times of the offences.  However, the prosecution did not disclose these records to the applicant or his legal representative prior to the trial in the present case.

19.Lam Hing’s evidence was that, having found a robbery target in the bank, the applicant would call Lam Hing to inform him of the target person’s features, and let Lam Hing carry out the robbery.  However, by referring to Lam Hing’s telephone communication records obtained from the police, it can be seen that in the three robberies that took place on 13 June, 13 July and 14 July 2011, contrary to what Lam Hing had claimed, the applicant actually did not have any telephone contact with Lam Hing during the time he remained in the bank or even before the robbery took place.

20.Mr Eric Cheung, solicitor representing the applicant, submitted that Lam Hing clearly had the motive to frame the applicant.  Lam Hing once said in his evidence that it was his own speculation that the applicant provided information to the police to accuse him of committing the relevant robberies.  Many of the key issues referred to in Lam Hing’s oral testimony in court were self-contradictory, and there were repeated substantial inconsistencies between them and those in the version he stated to the police before the trial.  When Lam Hing was cross-examined on the inconsistencies between his evidence and his previous statements, he frequently exhibited an utterly unreasonable attitude, failed to provide logical explanations, and repeatedly admitted of lying to the police earlier.  The relevant phone records were obviously in direct contradiction to what Lam Hing said in his evidence, showing that he made up the facts to frame the applicant.  The prosecution did have the duty to provide the relevant material to the defence.  However, the prosecution did not do so, and up to the current moment, they had not explained why they did not do so.

21.Ms Anna Lai, counsel for the respondent, explained to us about the handling of the telephone communication material in the present case.  The police had requested for and obtained from the telecommunications company the telephone records of Lam Hing and the applicant from June to July 2011 (the telecommunications company no longer retained the communication records for the month of May).  These records were saved in the office computer of an inspector formerly in charge of the case.  The police had sought legal advice from the Department of Justice in October 2011.  Both the documentary file and the accompanying comprehensive report submitted did not mention the investigation on the mobile phones of Lam Hing and the applicant, nor the call records obtained.  In August 2012, when another inspector formerly in charge of the case sought legal advice from the Department of Justice, he prepared another comprehensive report dated 16 August 2012, which stated inter alia that due to the lapse of time, the call records of Lam Hing and the applicant could not be obtained.  Having received enquiries from the solicitors firm concerning the phone records, the inspector currently in charge of the case looked up the documentary file of this case, and confirmed that it contained no printed copy of any telephone call records.  Subsequently, this inspector checked the office computer, and found from it the telephone call records provided by the telecommunications company earlier.  The police subsequently handed over a printed copy of the relevant telephone records to the solicitors firm.

Prosecution's duty to disclose material

22.In HKSAR v. Lee Ming Tee and The Securities and Futures Commission (2003) 6 HKCFAR 336, the Court of Final Appeal stated clearly that it was the prosecution's duty to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case.  The stringent and firm obligation of disclosure will maintain the criminal trial as the appropriate forum for determining the truth or falsity of criminal allegations.

23.In HKSAR v. Shum Leung (transliteration) (CACC632/2002), the Court of Appeal ruled that, as the prosecution did not disclose certain material evidence, the conviction in that case was unsatisfactory, with the result that the appeal was allowed and the conviction quashed.

Our views

24.In the present case, the evidence of the four victims in the robberies cannot directly accuse the applicant of committing the subject offence.  The only evidence that can connect the applicant to the offence comes from Lam Hing, who was a tainted witness.  He himself had committed criminal offences, yet at the same time he testified that the applicant was the accomplice in those four robberies.  The court must evaluate the evidence from a tainted witness with care and prudence.  This is because atainted witness may testify against another person for he wants to save his own skin or exonerate himself, or he wishes to receive a reduced sentence or seek vengeance, or for other reasons.

25.In the present case, Deputy Judge Wong had already repeatedly given the jury detailed directions that, if they could not be sure that Lam Hing’s accusations were true, they had to find the applicant not guilty. However, we are of the view that the relevant telephone communication records would substantively and materially affect the jury’s evaluation on whether Lam Hing’s testimony was credible.  If the jury had access to such independent and objective material during the trial, it is very likely that they would not have accepted Lam Hing’s evidence and, consequently, would return a verdict of not guilty on the applicant.  In our view, the prosecution have not discharged their duty to disclose the material.  This slip had deprived the jury a full grasp of the facts necessary for arriving at the correct verdict, the conviction was thus unsafe.  It is on this ground we allow the appeal.

26.In our view, the Department of Justice and the police need to look further into the way the police handled those telecommunications records in the present case in order to prevent similar incidents from happening in the future.

27.Mr Cheung also submitted that there was direct and clear guidance with regard to the exercising of due diligence on the prosecutor’s part to disclose relevant material in The Statement of Prosecution Policy and Practice – Code for Prosecutors issued by the Department of Justice in 2009, but the guidance was shortened in the Prosecution Code 2013 published in 2013.  We are not required to discuss the contents of these two Codes, but we hope the Department of Justice will review the relevant contents to find out whether any improvement is needed.

The second ground of appeal

28.In his second ground of appeal, the applicant submitted that there was a lurking doubt in the present case, and the prosecution case lacked inherent probability.  As a result, the applicant’s conviction was neither safe nor satisfactory and had to be quashed.  As we have allowed the appeal on the first ground and quashed the conviction, it is unnecessary to discuss this second ground of appeal.

Eric Cheung, Solicitor Advocate, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the applicant

Anna Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted byMr. P. Y. Lo, Barrister-at-law.