HKSAR v. Lee Yuen Fook and Others
Read the full judgment text of DCCC 67/2017 on BabelCite. This District Court judgment.
1. After trial, D1 – D3 are each convicted of a charge of conspiracy to commit misconduct in public office as follows:
Cites 6 cases
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DCCC 67/2017 [2018] HKDC 358 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 67 OF 2017 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charge 1.After trial, D1 – D3 are each convicted of a charge of conspiracy to commit misconduct in public office as follows:
Case Proved by the Prosecution 2.D3 was a civilian. D1 and D2 were serving police officers. D3 requested D1 to procure and obtain confidential information of the Investigation at various junctures during the period in question. D1 told D2 that someone was interested in such information. D2 procured and obtained such information and divulged it to D1. D1 in turn divulged it to D3. It was agreed that D3 would pay D1 and others, including D2, monetary rewards for their acts. 3.During the period in question, ICAC mounted 6 covert surveillances (“CS1 – CS6”) of meetings between D1 and D2 in D2’s car, or D1 and D3 in D3’s car, as the case may be, resulted in audio records. There were about 1,000 whatsapp messages in total between D1 and D2, D1 and D3, D2 and other persons, retrieved from SIM cards from mobile phones relating to them. The audio records and the whatsapp messages construed together reflect a conspiracy in the terms as particularized in the charge. Prosecution Case The Murder Case and the Investigation 4.In the early hours on 5/10/2014, WONG Man-kin nicknamed “Ah Tsz” (“the Deceased”) and a Chinese male assaulted two customers at Hot Shot Bar in Chatham Road, Tsim Sha Tsui. They fled the scene afterwards. The Deceased was caught nearby by a gang of knife-wielding Chinese males in Cameron Road. The Deceased was stabbed and severely injured in his head. He was certified dead two days later on 7/10/2014 (“the Murder Case”). The Murder Case was initially investigated by DATS 1 YTDIST. It was taken over by Team 1B of Regional Crime Unit, Kowloon West Regional headquarters (RCU 1B KW) on 6/10/2014. 5.D1 is a Police Constable (PC 49901). At all material times, he was attached to Tsim Bei Tsui 1, Tin Shui Wai Division (TBT 1 TSWDIV). D2 is a Police Station Sergeant. At all material times, he was attached to the District Intelligence Section of Kowloon City District (DIS KCDIST). CHENG Pak-to (“Sgt CHENG”) is a Police Sergeant (Sgt 33447) attached to the District Anti-Triad Section Team 1 of Yau Tsim District (DATS 1 YTDIST) between 10/6/2012 and 2/5/2015. He was attached to DIS KCDIST, the same team as D2, between 3/5/2015 and 2/6/2016. 6.At all material times, the two Police units to which D1 and D2 were attached, ie TBT 1 TSWDIV and DIS KCDIST, were not involved in the investigation of the Murder Case. The Suspects 7.Shortly after the attack on the Deceased, the Police had already identified and suspected TANG Wai-yeung (“TANG”), LAU King-hei (“LAU”), KAN Chun-hoi (“KAN”), CHAN Wai-yip (“CHAN”), and LUK wing-sum (“LUK”) as being involved in the attack on the Deceased. 8.As regards suspect TANG, he was arrested on 7/10/2014. He was charged with murder on 9/10/2014. He was brought to Kowloon City Magistracy on 10/10/2014, resulting in a return date of 30/1/2015. Meanwhile he was remanded in jail custody. Negative DNA results were found of him by the Government Laboratory on 3/11/2014. The witness could not identify him in an identification parade held by the police on 9/12/2014. He was brought to Kowloon City Magistracy for mention to have the charge against him withdrawn on 30/1/2015; he was released unconditionally for insufficient evidence. 9.As regards suspect KAN, he left Hong Kong via Macau Ferry Terminal on 6/10/2014. The police obtained a warrant of arrest against him on 11/11/2014. Accompanied by his lawyers, he surrendered to Kowloon City Police Station on 28/5/2015; he was arrested for the murder; he remained silent under caution. He was released on police bail on 29/5/2015. He was released unconditionally by the police for insufficient evidence on 21/8/2015. 10.As regards suspect LAU, he left Hong Kong via Macau Ferry Terminal on 6/10/2014. The police obtained a warrant of arrest against him on 11/11/2014. Accompanied by his lawyers, he surrendered to Kowloon City Police Station on 21/5/2015; he was arrested for the murder; he remained silent under caution. He was released on police bail on 22/5/2015. He was released unconditionally by the police for insufficient evidence on 21/8/2015. 11.As regards suspect CHAN, he was arrested on 8/10/2014. He was released on police bail on 10/10/2014. Negative DNA results were found of him by the Government Laboratory on 3/11/2014. He was released unconditionally by the police on 19/1/2015. 12.As regards suspect LUK, he was arrested on 7/11/2014; he was released on police bail. Negative DNA results were found of him by the Government Laboratory on 15/12/2014. VRIs of D1 – D3 13.D1 and D2 were arrested at an earlier hour on 7/6/2015. D3 was also arrested on 7/6/2015. 14.D2 admitted to have met D3 on some occasions, D3 had a nickname “Fanling”, and before arrest he was in the lounge in Yuen Long to meet D1, D3 and others for a drink. D2 also admitted to know Police Sgt CHENG, who was attached to OCTB YTDIST, for 2 – 3 years. He had official dealings with Sgt CHENG at work, such as exchange of different types of intelligence to facilitate future police investigation. He was not limited to the exchange of intelligence with police colleagues of the same district. He learned from his colleagues that the culprits in the Murder Case had fled to the Mainland. He could not recall if he had shared any intelligence with others in the Murder Case. He had money dealings with D3 as he would help D3 to buy something. 15.When arrested, D3 was in possession of an iPhone. There was a SIM card for mobile phone number 6111 1355. He admitted to be the user of the mobile phone number relating to the SIM card installed in the iPhone. The SIM card contained whatsapp messages probative of the proof of the conspiracy. 6 Covert Surveillances 16.The ICAC conducted 6 covert surveillances (CS1 – CS6) which resulted in audio records pertaining to the present charge. 17.CS1 related to D1 and D2 on board D2’s car on 5/11/2014 between 1850 h and 1904 h. 18.CS2 related to D1 and D3 on board D3’s car on 14/1/2015 between 2043 h and 2055 h. 19.CS3 related to D1 and D3 on board D3’s car on 25/2/3015 between 2005 h and 2018 h. 20.CS4 related to D1 and D3 on board D3’s car on 6/3/2015 between 1904 h and 1920 h. 21.CS5 related to D1 and D3 on board D3’s car on 2/6/2015 between 2135 h and 2232 h. 22.CS6 related to D1 and D3 on board D3’s car on 6/6/2015 between 2205 h and 2222 h. Voice Identification Evidence 23.PW24 (Dr. LO Tsz-fung) is an expert in voice identification. His methodology is not challenged. It was based on well-recognised methodology and literature. His evidence on voice identification has been accepted by court before (although it is not specified as a civil or criminal court or in what jurisdiction). After comparing D1 – D3’s voices in their respective video-recorded interviews with the voices recorded in CS1 – CS6, his conclusion was that it was more likely than not that in CS1, D2 was one of the 2 speakers, and that in CS1 – CS6, there were 2 speakers in conversation. 24.PW19 (Inspector LAU Wing-fai) had been D1’s supervisor for some time. After listening to the audio records of CS1 – CS6, he could recognize a voice similar to D1’s in CS2, CS4, CS5, and CS6 but he was not certain of it. Whether D1 – D3 were the Sender/Recipient of Whatsapp Messages Who were the Actual Users of the Relevant Mobile Phone Numbers 25.There were 432 whatsapp messages between 9348 4901 (which the prosecution suggests was the number used by D1) and 6111 1355 (which I find to be the number used by D3 at all material times). There were 430 whatsapp messages between 9348 4901 (which I find to be the number used by D1 at all material times) and 9809 1857 (which I find to be the number used by D2 at all material times). There were 91 whatsapp messages between 9809 1857 (which I find to be the number used by D2 at all material times) and Sgt CHENG’s mobile phone. My Interpretations of CS1 – CS6 and Whatsapp Messages Put Together 26.On 8/10/2014, D1 texted D2 that someone wanted to know the Murder Case and the case appeared to be handled by DATS YTDIST. 27.On 9/10/2014, D1 texted D2 that D3 had fixed up. D2 reminded D1 to delete the messages. D1 replied that he did not keep them. 28.On 16/10/2014, D1 texted D2 to ask if there was anything and told D2 to call his ghost phone at will. D2 replied that he would ask about it tomorrow. 29.On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any time if the latest information was available. D1 also informed D2 of his ghost phone number. 30.On 20/10/2014, D1 texted to ask D2 if there was any latest news and when one of the suspects could come out. 31.In CS1 on 5/11/2014, D1 asked D2 how the progress was. They discussed about blood test. D2 expected nil results as all blood belonged to the victim. The PIC of Hot Shot Bar was the only witness and this witness only saw a fight but not anyone being chopped. So chopping could not be proved. D1 said suspect LAU, suspect TANG, and someone nicknamed “Ah Wai” had not returned. D2 corrected D1 that suspect TANG had already been arrested. They discussed about the available witnesses, whether it was necessary to conduct identification parade in this murder case. D2 said there was no witness who had seen the part of murder. Only an identification parade for the previous fighting scene but not for the murder. 32.On 12/12/2014, D1 texted D2 to ask if there were any updates. D2 replied that it had to be next week, not so soon. 33.On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG) would ask for information. 34.On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing from his close friend D3. D2 replied in the negative. 35.In CS2 on 14/1/2015, D1 mentioned the matter of 30/1/2015, the date of court hearing of suspect TANG in Kowloon City Magistracy. D1 earned $600,000. 36.On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about the 30/1/2015, the court hearing. D1 said someone was very nervous and, if that one’s close friend [suspect] could not get bail, someone would not know how to explain. 37.On 30/1/2015, D2 texted D1 that it seemed he (D2) was being followed. 38.In CS3 on 25/2/2015, D1 said 2 suspects were not yet back. D3 asked if the police file had been closed. D1 said that it should be alright theoretically and secretly. D1 said it seemed a warrant of arrest was issued for the two who were not yet back. 39.On 28/2/2015, Sgt CHENG in two messages (“Two Messages”) texted to D2 the nicknames and corresponding full Chinese names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt CHENG told D2 that suspects TANG and CHAN among them were arrested and the others were being wanted. 40.On 1/3/2015, D1 sent the Two Messages to D3. 41.In CS4 on 6/3/2015, D1 advised D3 that those who were not back yet should come back one at a time to be accompanied by a lawyer to prevent them from revealing anything upon being questioned. D1 asked D3 to inform him (D1) in advance so that he (D1) could pass the information on to others. If those people returning were to be handled by his (D1’s) people, those people would be alright. D1 told D3 that three people coming back together would probably be held for one or two months. D1 asked D3 to send a message to tell the other side that the police, that is his (D1’s) side, would try to suppress everything, eg CCTV was blurred, could not find witnesses, etc. They discussed that the previous one was remanded for a couple of months until 30/1/2015, the court hearing. 42.On 7/3/2015, D2 texted D1 to ask when and how many would come back. D1 answered that one had been told to come back individually. 43.On 24/3/2015, D1 texted D2 that those wretched friends would not be back until early 5/2015. 44.On 9/4/2015, D3 texted D1 to ask if a reply could be given to the other side. Later on the same day, D1 texted D2 to ask for news about the case. 45.On 14/4/2015, D1 texted D2 to ask if there was any news as it was being asked by someone every day. 46.On 15/4/2015, D2 texted D1 that he (D2) had already asked someone to ask again. D2 suggested to have them talk face to face as mobile calls would leave records, inconvenient. 47.On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and D1 respectively. D1 sent the Two Messages to D3. D1 texted D3 that CCTV captured suspects TANG and KAN holding knives and walking on the street. D1 told D3 that no one upon their return should admit anything even if beaten to death and that was because guilty plea and cooperation would not mitigate murder or a sentence of life imprisonment. 48.On 4 – 20/5/2015, D1 texted D2 that suspect KAN would probably go back within a short period of time. D1 texted D3 to go to find RCU 1KW. D2 texted to ask D1 if the kid had gone yet. D1 texted to reply D2 that it was around 11 o’ clock. D1 then texted the same message to D3. D3 texted D1 that risking life for landing. 49.On 21/5/2015, D3 texted D1 that a suspect had come back. D3 texted D1 that suspect LAU would appear in court at 8 am tomorrow. D1 texted the same message to D2. D1 texted D2 to discuss about the potential court hearing tomorrow. D1 texted D2 to ask if suspect LAU who surrendered to the police would be detained for some weeks. D2’s opinion was that it should be a good thing for suspect LAU to go to court so soon. No identification parade was arranged as there was no witness, no evidence. D1 texted D2’s opinion to D3. D1 texted D2 to ask if suspect LAU would have a good chance for bail in the court hearing tomorrow. D2 replied that they had been reminded of what should be done about the bail hearing. 50.On 22/5/2015, D1 texted D2 that the close friend’s close friend had probably come out. 51.On 26 – 27/5/2015, D1 texted D2 to discuss about the return of the last suspect. D2 texted D1 that all samples at the scene had been probably proved to belong to the victim, hence suspect LAU was not detained for checking the samples. D1 texted D2 to ask around about suspect LAU and whether there was any bail paper concerning the case. D2 replied that there was no evidence in the case, only images. Even if there was to be a holding charge, it was highly likely that the court would grant bail. 52.On 28/5/2015, D1 texted D2 that the last suspect would arrive at 11 o’clock. 53.On 31/5/2015, D1 texted D2 that the suspect had come out. D1 asked D2 if suspect LAU and the last suspect had any bail paper. 54.On 2/6/2015, D1 texted D2 and discussed about the payment of their reward to be received and how to share it. 55.In CS5 on 2/6/2015, D1 and D3 discussed about the concern that the other side would evade payment by reporting to ICAC. D3 mentioned suspect LAU. D3 asked D1 to tell someone that after giving the 50%, the rest had to be paid to others at the end of the month as it was believed that suspect LAU would probably be released after the first appearance in court or after 2 – 3 months at most. D3 asked D1 to call someone to urge for $150,000, being half portion of the outstanding payment. They believed that as they had quoted $600,000, someone might have made up the price of $1,000,000. They had received $300,000 from someone and so $300,000 was still outstanding. D1 and D3 recapped how much they had already received from the other party. The first payment was $200,000. The second payment was $100,000 when someone was released after the second court appearance, ie before new year. The first payment of $200,000 was shared by 4 persons while the second payment was shared by five persons. D1 and D3 agreed to have the final payment divided into 5 shares. D1 was willing to share $20,000 - $30,000 with D2 as D2 had rendered assistance to him in a number of cases. D3 agreed to it. 56.In CS6 on 6/6/2015, D1 and D3 discussed about how to split the $150,000 cash they had with them. D1 reiterated that it was to be divided among 5 persons and D2 was entitled to $20,000. D3 agreed to it. D1 said D2 had good connections and could be of use. D1 told D3 that he (D1) would ask D2 to come down later to take the $20,000. Items of Information Involved in Present Charge 57.The prosecution has identified and proved 8 items of information which were passed by Sgt CHENG to D2, by D2 to D1, or by D1 to D3, as the case may be. They include:
58.I am satisfied that these were passed between the parties as aforesaid and these were confidential information. Mitigation 59.All counsel here refer me to HKSAR v Sin Kam Wah & Another CACC 520/2003. Sin Kam Wah was a police senior superintendent who was provided sex by prostitutes arranged and paid for by the co-defendant on 3 separate occasions. There were two prostitutes on the first and third occasions and one prostitute on the second occasion serving the defendant. The payment for the prostitute(s) was between $2,000 and $6,000 on each occasion. The court found, in his misconduct in public office as a very senior police officer, the potential of his influence within the police being used in favour of the co-defendant’s business which was essentially shady. The Court of Appeal reduced the sentence after trial from 3 years to 2 years for each defendant. 60.D1 is aged 48. He has a clear record. He has been in the police force for 28 years. He is married but has no children. 61.Mr. Khosa submits that there is no evidence that D1 had received any money or benefit from the information that was divulged. He submits that it was a single incident of divulging information, only a breach of internal orders. He suggests to place D1’s culpability at the lower category of seriousness. 62.I do not agree to this submission. In CS5 on 2/6/2015, D1 reiterated to D3 that he (D1) had quoted $600,000 as the reward. He first received $200,000, to be shared by four. He then received $100,000, to be shared by five. The final payment would be equally shared by five. In CS6 on 6/6/2015, D1 and D3 discussed how to share the $150,000 (the final payment before arrest) they got. Each agreed to take $30,000. They agreed to give $20,000 to D2. 63.D2 is aged 51. He has a clear record. He has been in the police force for over 30 years. He has received numerous compliments from his superiors over the years. 64.His wife is a housewife. His 2 children are students. He is the sole breadwinner of the family. 65.D3 is aged 47. He had a criminal record for drink-driving after the present offence. He employs five workers in his metallic engineering company. He earns $35,000 per month. He regularly gives money to his mother and donates to Medecins Sans Frontieres. I do not see regard such as mitigating factors. Mr. Chan asks me not to impose a sentence on D3 higher than the 2 years adopted in Sin Kam Wah’s case. 66.Mr. Khosa refers me to some other cases for consideration. I only select the one where the sentences is tested on appeal. 67.In HKSAR v Lai Wing Kit （賴永傑）& Au Pui Lan（歐培蘭）[2016] CHKEC 503 (ie DCCC/2015) and HKSAR v Au Pui Lan [2017] HKCA 42 (ie CACC 91/2016), a police constable accepts $1,000 cash for alerting the female operator of a gambling establishment for a police raid going to take place. He was convicted of misconduct in public office and sentenced to 30 months. She was sentenced to 24 months for bribing him (Charge 4) and 4 months for conspiracy to operate a gambling establishment (Charge 5). Adopting a partly concurrent sentence, the judge sentenced her to 26 months in total. The Court of Appeal regarded that there was intimate relationship between her and the police constable. Besides, she was giving this one-off payment on behalf of her boss. The difference between her sentence and the police constable’s sentence was said to be inadequate to mark their respective culpabilities. Her sentence was revised to 18 months for Charge 4 but remained 4 months for Charge 5. After the partly concurrent sentence, her overall sentence was 20 months. That is 10 months less than that of the police constable. 68.Mr. Davies also refers me to some other cases for consideration. I only select the ones where the sentences are tested on appeal. 69.In HKSAR v Chow Koon Shing HCMA 51/2007, a senior police constable used a mobile phone to take up-skirt photos. For the charge of misconduct in public office, he was sentenced to 6 months after trial. His appeal against sentence was dismissed. 70.In HKSAR v Leung Ping Nam HCMA 432/2007, a police sergeant used a false instrument to obtain access to the police computer with dishonest intent in making a private enquiry of person’s name. His appeal against conviction was dismissed. His appeal against a sentence of 5 months in total, was revised, resulting in 6 months in total to be suspended for 2 years. 71.In HKSAR v Kong Chi Ho HCMA 776/2015, a police constable pretended to conduct a body search on a female suspect of a shop theft case. In a female toilet, he asked her to remove her underclothes for a look and then touched her. For a charge of indecent assault and a charge of misconduct in public office, he was sentenced to a total of 16 months. His appeal against sentence was dismissed. Sentencing Considerations 72.I consider the case of suspect KAN. On 5/10/2014, the wounding took place. On 6/10/2014, he left Hong Kong via Macau Ferry Terminal. In CS1 on 5/11/2014, D2 told D1 that people on the street could at best do an ID parade for the previous fighting part. On 28/2/2015, Sgt CHENG texted D2 that suspect KAN was one of the wanted persons. On 27/4/2015, D1 texted D3 that CCTV captured suspects TANG and KAN holding a knife and walking on the street. On 21/5/2015, D2 texted D1 that no identification parade would be arranged, there would not be any witness, there was no evidence. On 26/5/2015, D2 texted D1 that all blood samples at the scene belonged to the Deceased. The police would not have enough an excuse for detention of suspect. Soon enough, on 28/5/2015, he surrendered to the police in the company of his lawyers. He was arrested. He remained silent under caution. On 29/5/2015, he was granted police bail. The close timing from information divulged to his surrender suggests that he had utilized and assessed the information divulged by D2 before surrendering himself to the police. 73.I consider the case of suspect LAU. On 5/10/2014, the wounding took place. On 6/10/2014, he left Hong Kong via Macau Ferry Terminal. In CS1 on 5/11/2014, D2 told D1 that people on the street could at best do an ID parade for the previous fighting part. On 28/2/2015, Sgt CHENG texted D2 that suspect LAU was one of the wanted persons. On 27/4/2015, D1 texted D3 that CCTV captured suspects TANG and KAN holding a knife and walking on the street. On 21/5/2015, suspect LAU surrendered to the police in the company of his lawyers. He was arrested. He remained silent under caution. The close timing from information divulged to his surrender suggests that he had utilized and assessed the information divulged by D2 before surrendering himself to the police. 74.This conspiracy is essentially a sale and purchase transaction of police confidential information on a murder case, which was expected to be, and actually, utilized by 2 (KAN and LAU) of the 3 remaining suspects after the arrest of TANG and CHAN on 7 – 8/10/2014 to their best advantage. From another point of view, D1 and D2 can be regarded as accepting bribes from D3 to make the information available. It was an on-going arrangement between 10/2014 and 5/2015. A hefty reward was promised and partly given before D1 – D3 were arrested. The conspiracy struck at the core of the information dissemination system, which was pivotal to the detection of crime and the arrest of suspects. Having said that, I am alive to the fact that the conspiracy was only directed at the development of the investigation and not intended to influence the course of the investigation. 75.I think Sin Kam Wah’s case is less serious as our present one for at least four reasons. First, although he was a much more senior police officer than D1 and D2 here, his position is merely what affords him, as opposed to a lower-rank officer, the locus standi to commit a misconduct in his office. A junior officer will be unable to exert such influence in the police and incapable of the same offence. In our present case, there was an actual, not potential, breach of duty by D1 and D2. Their official duties involve, among others, the arrest of suspects and assist the investigation of crime. 76.Secondly, our present case related to the information on a murder case. It is far more serious than Sin Kam Wah’s case where the extent of misconduct related to liquor licence applications or possibly the raiding of unlicensed premises. 77.Thirdly, D1 had quoted $600,000 as the reward. He first received $200,000, to be shared by four. He then received $100,000, to be shared by five. He last received $150,000 together with D3, to be divided by five. D2 was to be paid $20,000. It is not clear whether D2’s $20,000 was to be from the $150,000 or D1’s own share. In all, D1 received $50,000, $20,000, and $10,000 (assuming D1 was to pay D2’s $20,000 out of his own share of $30,000). In total D1 already received $80,000 at least. D2 was to receive $20,000, which he had not taken before arrest. In all, D3 received $50,000, $20,000, and $30,000. In total D3 received $100,000. There was still an outstanding sum promised of $150,000 for the conspiracy. 78.Fourthly, there was a continual feed of information to protect the interest of the suspects from 10/2014 to 5/2015. Sentencing D1 – D3 79.I come to consider the sentence. D1 was the hub where information and money interchanged in the conspiracy. He was the most culpable of all. D1 and D2 were in serious breach of their official duties in making the information available to D3. They were more culpable than D3. But it must also be noted that D3 received the largest sum of reward. I take a starting point of 3 years for D1, 2 years 6 months for D2, and 2 years 3 months for D3. They have no mitigating factors. That shall be their sentences.
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Cases cited in this judgment
Further hearings and rulings under DCCC 67/2017