Lai Sik-pui and Another v. The Queen

CACC000211/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 211 OF 1975

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Coram: Full Court (Huggins, McMullin & Cons, JJ.)

Date of Judgment: 1st September, 1975.

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JUDGMENT

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1. The appellants appealed against their conviction upon a charge of conspiracy to obstruct the course of justice. The first appellant is an inspector of police the second appellant a police constable and they were originally charged upon that count with another police constable LAM Tak-lung. They were also charged together with LAM Tak-lung upon a second charge alleging conspiracy to solicit and receive a bribe. LAM Tak-lung was additionally charged with corruptly soliciting that bribe (third charge) and corruptly receiving the same bribe (fourth charge). He was acquitted of soliciting and accepting the bribe and all three accused were consequently acquitted of the conspiracy relating to the bribe. The first and second appellants and Lam were, respectively, the first, second and third accused at the trial.

2. These three police officers were members of a team of six officers attached to the Accident Inquiry Section of the Traffic Office, Kowloon and at the time of the alleged offences, September 1974, the first accused was the inspector in charge of that team, one of six such teams attached to that section and known as Team Six. At about 8.00 p.m. on the 1st of September 1974 a man called CHUNG Pak-kay, who is himself a marine police constable, was driving a sports car with the registration number AS 3441 along Cheung Sha Wan Road when he knocked down a pedestrian and, panicking, failed to stop and did not immediately report the accident. A report of this accident was received by the duty controller on duty in the report room at the Accident Inquiry Section of the Traffic Branch, Kowloon as a result of which the second accused visited the scene and went immediately after that to Queen Elizabeth Hospital to interview the victim. He took a statement from the victim and an ambulance attendant who had conveyed the victim to the hospital gave him a slip of paper showing the name and address of a person who claimed to be an eye-witness of the accident. The second accused went from the hospital to the home of the eye-witness who gave him the number of the hit-and-run car as AS 7441. It is common ground that the second accused returned to the police station and, in conformity with the normal procedure in such cases, opened an accident inquiry file and made certain entries on a case diary form which was placed within that file. On the same night at about 11.00 p.m. a traffic constable, whose identity has never been established, called at the home of Mr. CHAN Hak-chun (P.W.3) the registered owner of AS 3441. Mr. Chan is the uncle of CHUNG Pak-kay (P.W. 1) the actual driver of the car at the time of the accident. Mr. Chan was not in and a message was left with his son, (P.W. 4), requesting the owner to appear at the police station on the following day.

3. On the morning of the second of September CHUNG Pak-kay and his father, CHUNG Si-sum (P.W. 2), and his uncle, CHAN Hak-chun (P.W. 3), and another person held a kind of family conference at which it was agreed that since the driver, CHUNG Pak-kay, had no driving licence his father would present himself at the police station as the person who had been driving at the time of the accident. They all went to the police station at 4.00 p.m. and were directed to the second accused as the person in charge of the case. What the Crown sought to show was that thereafter all three accused persons had sought in combination to turn the occasion of this report into one of corrupt advantage to themselves.

4. The case which the prosecution sought to prove was that the driver, CHUNG Pak-kay, having identified his father as the person who had been driving when the accident occurred on the previous night, was told by the second accused to bring the car to the police station. About one hour later they returned with the car and drove it into the compound. CHUNG Pak-kay, (P. W. 1), reported again to the second accused who was busy at the time and who told him to wait. Thereafter the first accused and the third accused and another member of the team, P.C. 3074 (P.W. 9), took P.W. I and his party into the compound and tested the car in their presence. They were then taken to the first accused's room where P.W. 9,P.C. 3074, interviewed P.W. 1's father in the presence of the first accused. They were then sent outside where, in a corridor, P.W. I met a sergeant (never identified) who asked him if he was a "foki" (i.e. attached to the Police). P.W. I said that he was and he asked the sergeant to help and was told to go back into the interview room and sit there for a while. After that he was approached by the third accused who took his warrant card and went into the room of the first accused, While he was away the second accused came up and suggested that they should all go out and look at the motor car but before this was done the third accused returned with the warrant card and the second accused took the father and the uncle of P.W. I out to the compound leaving him with the third accused. It was thereafter, on the Crown's case, that the third accused, while he was alone with P.W. 1, solicited the bribe which was the subject of the second, third and fourth charges. According to P.W. 1 a sum of $1,500 was fixed upon and he and his relatives left the police station and raised that money at once and, returning to the police station, paid it over to the third accused who told him not to speak to the second accused about the matter. The first accused was not present upon this occasion, according to the witness. That was one part, and a very important part, of the prosecution case against the three accused upon the four charges. The second important and significant feature of the case, and this was common ground, was that in fact no further action was ever taken against the owner of car AS 3441. The final part of the evidence for the Crown, and the part with which we are now principally concerned, consisted in an attempt to show that there was a deliberate combination to alter certain entries in the accident inquiry file so that no mention of car number AS 3441 would appear therein when in due course the first accused submitted the file to his superior officer with the recommendation that no further action should be taken. There is no doubt that Senior Inspector Cheung, to whom the first accused was responsible, and who has never been under suspicion of being part of any conspiracy in this matter, did, having read the file, agree with the recommendation of the first accused.

5. Now it is the plain fact that upon the night 1st /2nd September the duty controller in charge of the occurrence book in the traffic section did, at 10 minutes to 1 a.m. make a further entry in the occurrence book concerning this accident which had first been reported at 7 minutes past 8.00 p.m. to the duty controller then on duty. then on duty. That first entry is on page 152 of the occurrence book and the second entry made by the duty controller, Sergeant Fung (P.W. 10 ), is on page 153 and it includes, amongst the reported details of the accident, two car numbers one being AS 7441 and the other AS 3441. It was established at the trial that the latter number had been some that crudely altered t 3447 by applying a horizontal stroke to the 1. That forgery was never brought home to any particular person but it was evidence which strongly supported the learned District Judge's finding that there had indeed been an attempt to conceal the identity of the car involved in the accident. Apart from that however, it is obvious that if the evidence of P. W. I had been accepted in full there would be, even without the conflict between the accident inquiry file and the occurrence book, a great deal pointing in the direction of a suspicious collaboration between the first and second accused in relation to the manner in which the matter was dealt with. There was the alleged inspection of AS 3441 by the first and third accused followed by the first accused's cominous observation that the matter was a serious one, There was the allegation that the second accused had been told at the very outset by p. w. I that the latter's father was the driver of the car which had been involved in an accident at Cheung Sha Wan Road on the previous night and that P.W. I had then actually given the second accused the number of that vehicle. Again, there was P.W. I's evidence that the second accused had also inspected the vehicle after it had been inspected by the first and third accused and P.C. 3074 TUNG Hi-Lung ( P.W. 9). All this evidence coupled with the fact that no further action was taken against the father of P.W. 1, nor any further action of any sort, in connection with the accident would on its own have been terribly damaging to any profession of innocent negligence on the part of the head of the investigating team ( the first accused ) and of the officer actually involved in the investigation of that particular accident (the second accused ). In those circumstances the inferencec that the case file, and particularly the case diary, had been tampered wiht and that that had been done at least with the connivance of the first and second accused would have been clearly irresistible. But the great difficulty that the prosecution have encountered in oposing the present appeal arises from the fact that the learned trial judge for cogent reasons in a lucid and careful judgment not only disbelivved P.W . 1 in relation to his identification of the third accused as the person who had offered him the bribe but in addition he rejected all the evidence of P.W. 1 concerning the movements of the second appllant during the several visits of P.W. 1 and his party to the police station on the 2nd of September. He also rejected the account given by P.W. 1 of the first accused's inspection of AS 3441 and the first accused's subsequent observation that the matteer was serious. This left the prosecution -as the trial judge well appreciated-with one crucial item of evidence as the core, and almost the whole substance, of its casw against both appellants viz. : the entry in the report book made by Sergant fUNG ( P.W. 10 ) at 10 minutes to 1on the 2nd of September.

6. The case for the defence, common to both appellants, was that the existence of a second suspect vehicle had never come to the attention of either of them. According to the second accused, the file which he had opened for the accident upon his return to the police station after interviewing the victim of the accident and the eye-witness contained, when he handed it over to the first accused just before midnight on the 1st of September, exactly the information which the case diary therein now discloses. It is the case for the first accused that to this information he added only what appears as Minute 1 upon that file before he, in his turn, confided the file to the care of the duty controller by putting it in the latter's in-tray shortly after midnight on the 1st of September. The file was not seen again by either of them until it had been returned from the registry to the team on the 3rd of September - a day after P.W. 1, his father his uncle and the car AS 3441 had been dealt with.

7. The appellants do not seek to deny - nor could they well do so - that a report concerning a car with the number AS 3441 was made to the traffic section on the night 1st/2nd of September; they do not deny that some action pursuant to that report ought to have been taken and they admit that no such action was taken. They both say that they were never aware of the existence of any car other than AS 7441 when they went off duty on the 1st of September. In the absence of any direct evidence that the second accused ever saw the motor car AS 3441 at all or that he was ever given its number and in the absence of evidence that the first appellant did more than attend at the testing of the car by P.C. 3074, TUNG Hi-lung, or of any evidence to contradict the first appellant's contention that he was present on that occasion simply to discharge a formal duty the possibility certainly remains open, as counsel has pointed out, that the lack of further action against the alleged driver of the car could be explained by some degree of negligence upon the part of the appellants coupled with criminal collusion between some of their associates, perhaps members of the same team, and the accident suspects. In the last analysis the full weight of the prosecution case was thrown almostly entirely upon the evidence of Sergeant Fung the duty controller who positively testified that the details recorded by him in the occurrence book at 10 minutes to 1 on the morning of the 2nd of September were taken from the case diary of the file which had been put in his in-tray by the first accused 50 minutes earlier. If that is the truth then it follows without question that both the first accused and the second accused must be lying and the only possible reason for that would be that the report originally recorded in the case diary by the second accused, and later seen by the first accused, did disclose the existence of car number AS 3441. Mr. Sharwood for the Crown conceded that if there remains a reasonable possibility upon the evidence that Sergeant Fung did not get the whole of the information for the note in the occurrence book from the case file and diary the prosecution case against both appellants would collapse. It is common ground that Chief Inspector Cheung, to whom the first accused and his team were directly responsible, did not see the file on the morning of the 2nd of September when he came on duty; further, that Chief Inspector Tsang, who did see it, initialled it before sending it on to the registry. Inspector Tsang was not called to give evidence.

8. The substance of the appeal of both appellants is that the prosecution have not shown that the entry on page 153 of the report book might not have come from some source other than the inquiry file opened by the second accused. Sergeant Fung's evidence was therefore of the first importance. The Sergeant's evidence on this matter was clear and very positive. In examination in chief he said that he had recorded the details which appeared there not from his personal knowledge but from the file, (he was then being questioned about the substance of the matter which appears in the fourth and fifth columns and which constitutes the core of the contest between the prosecution and the defence). A little later he was asked again :

Further on, and still in chief, his attention was directed to the case diary and to the fact that there was no reference to a car number AS 3441 (or AS 3447) and he was asked how he got that number. He replied :

He also said that the "7" was not written by him and that the final digit was probably "1". In cross-examination he agreed that he had many such reports to make, 10 or 20 in the course of a spell of duty, and that his account of how the particular entry in question came to be made was based on the practice and not upon his actual recollection of this particular incident. Thereafter in cross-examination two hypothetical cases were put to him. Unfortunately neither of these was framed in the clearest terms. Firstly it was suggested that an entry of the sort recorded by him at 10 minutes to 1 could have been made as a result of a verbal report by some traffic constable. The Sergeant appeared to agree that this was possible. It was then suggested that if a further report was made concerning the same accident and revealing the information that another car was involved that information would also be recorded by him on verbal information. Again he appeared to agree. There was an obvious difficulty in the way of this suggestion since it is evident that all the details set out in columns 4 and 5 of page 153 were recorded at one and the same time. Column 5 which is devoted to recording the identity of the vehicle involved in accidents has the following entry :

"P/Car AS 7441 or AS 3447"

and the concluding words of the entry in column 4 are :

" ... case pending for further inquiries from the car owners".

In neither column is there anything to give any countenance to the suggestion that the matter there recorded was added to or altered in any way by virtue of the information recorded having been received in two separate reports. At the hearing of the appeal Mr. Litton suggested an entirely new possibility. Assuming, he said, that the inquiry file opened by the second accused had only referred to motor car AS 7441 then it was possible that between the time that file was placed in Sergeant Fung's in-tray at about twelve midnight and the time when the Sergeant made his entry someone else may have come forward with the information concerning the second motor car and the Sergeant could have made up his entry from the information in the file supplemented by the later verbal information. Since that possibility remained opened he contended that the Crown had failed to prove beyond reasonable doubt that the vital entry had been made pursuant to the information contained in the file in particular the case diary, and not in any other way. This possibility was however never put to Sergeant Fung. The learned trial judge dealt incisively with the first suggestion viz. : that the initial entry made by Sergeant Fung had only contained a reference to car AS 7441 and that he had added words "or AS 3441" as a result of verbal information given to him by a police officer after midnight. He noted that the entry in column 4 "further inquiries being made from the car owners" being in the plural indicates more than one car. That coupled with the Sergeant's positive evidence he copied the entry in the report book from the case diary was, in the judge's view, quite sufficient warrant for his dismissing this suggestion; we would not dissent from that.

9. As to the alternative suggestion which is now made we do not think that there is any greater merit in it. As counsel for the Crown has pointed out the concluding words of the entry at page 153 of the report book most clearly echo the words used by the first accused in his minute (M. 1) upon the inquiry file and are in fact virtually a direct copy of them. This is evidence to support the Sergeant's positive statement that he made the entry from the file and not otherwise. The letter "s" at the end of the word "owner" has clearly not been added as an afterthought and indeed it has not been contended before us that it was so added. If the word stood in its plural form at the first making of that entry that is surely a conclusive indication that the entry in column 5 originally made reference to both cars. Mr. Sharwood was clearly right when he said that the entries in both column 4 and column 5 were obviously made at the same time in the same hand, apart of course from the alteration to the final digit of the number of the second car named. If those entries were not based upon the information in the inquiry file they could only have been made as Mr. Litton suggests either from a verbal report containing the whole of the information prior to the Sergeant's looking at the file or else from what appeared upon the file plus information given to him verbally before he copied the entry from the case diary into the report book. If he had done either or those things he would, upon the evidence, have given to the officer making that report a form known as the "first information" form which should then have been handed to the first defendant as the officer in charge of Team Six. Mr. Litton did not suggest that the hypothetical officer giving this verbal report would have been, at that stage, of a mind to seek a corrupt gratification for himself from the owner of car AS 3441. Mr. Kwong for the second appellant did make that suggestion. With respect, it seems most unlikely that any police officer scenting such an opportunity and being minded to avail himself of it, and having by luck discovered the owner of car AS 3441, would, assuming that he wished to keep his team-mates out of the picture, ever have been foolish enough to report its existence at all. All he need have done was to satisfy himself that there was no such report on the file or in the report book and thereafter settle with the car owner privately. There would seem to be no point whatsoever in calling the car to the police station for an inspection thereby putting his advantage to risk. If, on the other hand, he was an honest officer he would not, as Mr. Kwong suggested, have disposed of the first information form given to him by Sergeant Fung and suppressed its contents but would have drawn them to the attention of the first accused.

10. We are satisfied, from the close and painstaking analysis of the evidence recorded in the judgment, that it was the evidence touching this entry in the report book which led the learned trial judge to conclude that the only reasonable inference to be drawn was that the first and second accused must have been aware of the existence of two car numbers and therefore of the identity of the owner of the motor car AS 3441 at any rate by midnight on the 1st of September when the first accused went off duty leaving the inquiry file in the in-tray of Sergeant Fung. On its own that evidence seems to us to be sufficient warrant for the conclusion that the first and second accused, being aware of this vital information, subsequently colluded to take no further action against the owner of AS 3441 and that one or other of them must subsequently have substituted an altered case diary form for the original form in the file. The first accused's explanation for his having deleted the letter "s" from the word "owner" in the minute (H.1) made by him, although adroit in the circumstances, does not seem more convincing to us than it did to the learned trial judge. The learned trial judge moreover had the opportunity of observing the demeanour of the witness at the moment his answer was given and we are told by counsel that this reply was given after a long pause. But it is evident in any case that he did not regard this as a decisive factor but simply as adjutant to his conclusion that the case diary had been falsified. This being the bedrock of his judgment and being, in our view, unassailable, the matters of detail of which complaint is made in paragraphs 1(a)(b)(c) and paragraphs 3, 4, 5, 6, 7 of the grounds of appeal of the first appellant are without substance.

11. In ground 1(d) a point is made, and it is also made on behalf of the second appellant, that if the appellant had been aware of the second entry in column 5 of the report book (i.e. the altered number AS 3447) he, presumably in conjunction with the second accused and any of the rest of the team who were in the plot, would have sought to lend verisimilitude to their deception by causing inquiries to be made concerning a car of that number and to have it tested as was done in the case of car AS 7441. This was said in reference to the fact that in addition to the admitted alteration by the first accused of his own minute there was also the alteration of the final digit in the second of the two recorded car numbers from 1 to 7. The suggestion was that since No. AS 7441 - the fruit of a genuine mistake on the part of an identifying witness - had been cleared up by investigation so also would have been AS 3447 in order to preserve the appearance of due attention to duty. The obvious answer to that is that the inquiry file with which Team Six was primarily concerned contained no such number. The evidence was that entries in the report book are of no direct significance to investigating teams and they are not consulted for the purposes of such investigation; indeed it was never really explained what purpose such entries do serve. No doubt the reason for this alteration, whoever is responsible for it, was to disarm any possible future inquiry by any person who might later become inquisitive and make inquiry what had been concerning reported and recorded upon the night in question. Should that happen it would then appear from the report book that no accident concerning car number AS 3441 had been reported.

12. Sergeant Fung was accepted as a witness to the truth. He is not a member of any of the investigating teams; he denied that the alteration was made by him and it was never suggested that he was a party to the conspiracy.

13. Then it was said that the learned trial judge made an elementary error where on page 21 of the judgment (in relation to the deletion of the letter "s" on M. 1) he said - concerning the first appellant - :

"His explanation for the deletion was not at all believable and did not raise a doubt in my mind that he took part in this conspiracy to cover up the fact that the car AS 3441 was the car involved in this accident."

It is said that the judge was there shifting the burden of proof to the appellant. We do not think that that was so. The learned judge had already found that the most damaging piece of evidence against both accused was the entry in the report book; the alteration of the minute was a subsidiary matter which supported Sergeant Fung's evidence. Undoubtedly it called for an explanation and an explanation was offered. The judge was saying no more than that he did not accept that explanation.

14. Finally as regards the second accused two points are additionally made. The trial judge is said to have wrongly adverted to the possibility that the person who investigated car AS 3441 on the night in question was the second accused himself. It is suggested that he held this in the balance against the second accused. Secondly it is said, that having done that, he failed to place in the opposite scale, in favour of the accused, the fact that P.W. 1 had said that LAM Tak-lung, (the third accused who was acquitted at the trial), when accepting the sum of $1,500 had said to him, (P.W. 1),that he should not mention this matter to the second accused because the latter was not on good terms with the inspector i.e., presumably, the first accused. As to this latter point the learned District Judge was naturally in some difficulty since he had already totally rejected the evidence of P.W. 1 against the third accused. We do not know therefore whether he was prepared to accept that words of that sort had been spoken to P.W. 1 by someone, possibly by "the tall police constable", (P.C. 3074 TUNG Hi-lung), who clearly was involved with the investigation of P.W. 1's report and therefore to some degree himself under suspicion. Such evidence, if accepted, might have lent support to the second accused's contention that he was not a party to the cover-up and that it had been carried out by other members of the team without his connivance. If a bribe was given it does appear that the person who solicited and received it was acting on his own and that conversation, if it took place, may, as Mr. Sharwood says, signify nothing more than that a member of the team who was a party to the conspiracy to suppress the evidence against P.W. 1 and his father was either taking advantage of the situation for his own selfish and particular ends or else that he wished to keep the amount of the money received from the knowledge of the second accused. We are satisfied however that the learned trial judge drew the inference of guilt against both appellants primarily from his conclusion that they must have conspired to alter the case diary. Since, for the reasons given, that conclusion seems to us to be unassailable, we do not think there was sufficient substance in either of these point to render the convictions unsafe. Accordingly the applications of both appellants are dismissed.

Representation:

Litton, Q.C. & Jimmy Kwong(N.K. Tsang & Co.) for 1st Appellant.

Jimmy Kwong for 2nd Appellant.

Sharwood, c.c. for Crown/Respondent.