The Queen v. Cheung Wai Shu
Read the full judgment text of HCMA 13/1984 on BabelCite. This High Court CFI judgment was delivered on 30 March 1984.
1. The appellant, a detective sergeant of the Royal Hong Kong Police Force, appealed against his conviction, on the 9th December 1983, for stealing $29,781.18, the property of the Hong Kong Goverment, for which he was sentenced to 12 months' imprisonment. After delivering an extempore oral judgment, I dismissed his appeal. Due to the lateness of the hour, I was not able to deal in detail with the very able and painstaking arguments of his counsel, but undertook to give fuller reasons in writing
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HCMA000013/1984 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Magistracy Appeal No. 13 of 1984 (S.P.K. 32366 of 1983) ___________________________
Coram: His Honour Judge Downey, sitting as a Deputy Judge of the High Court. Date: 30 March 1984 ----------------------------- JUDGMENT ----------------------------- 1. The appellant, a detective sergeant of the Royal Hong Kong Police Force, appealed against his conviction, on the 9th December 1983, for stealing $29,781.18, the property of the Hong Kong Goverment, for which he was sentenced to 12 months' imprisonment. After delivering an extempore oral judgment, I dismissed his appeal. Due to the lateness of the hour, I was not able to deal in detail with the very able and painstaking arguments of his counsel, but undertook to give fuller reasons in writing at a later date. 2. The Crown's case against the appeallant was that, having received the aforesaid sum as a fee or reward intended for one of his informers, he failed to pay the same to his informer, and appropriated it to his own use and in order to cover up this theft, he made false entries in his notebook (Exh.P.2), purporting to show that the money had been paid to his informer, and that the latter had acknowledged receipt thereof by putting his signature to the relevant entry. In support of the charge, the Crown adduced evidence from the informer, who, inter alias, denied receiving the money and putting his signature in the appellant's notebook. Evidence was also given by a handwriting expert who expressed the opinion that the purported signature had not been written by the informer. Apart from evidence on the manner in which such payments are usually handled, the Crown relied on certain statements made by the appellant on the 8th June 1983 to officers of the Independent Commission against Corruption (Exh. P. 1) and a tape-recording of a telephone conversation between the appellant and the informer, which took place on the 28th October 1983 (Exh.p.4). The appellant, who was represented at the trial by Mr. Eddis, did not give evidence. 3. Having heard the evidence and the submissions of counsel, the learned magistrate retired to consider the same, and then gave extensive reasons for finding the appellant guilty of the charge. These appear at page 16-17 of the appeal bundle. For the purposes of the present appeal, the learned magistrate subsequently prepared a "Statement of Findings", which appears at pages 20 to 23 of the appeal bundle. From these and other passages of the record, it is quite clear that the learned magistrate was, at all times, aware of the dangers of relying solely on the evidence of the informer, as well as other weaknesses in the evidence, and that he correctly directed his mind to the central issues. But, what has caused me some anxiety, and has unduly prolonged the hearing of this appeal, is the apparent reticence of the learned magistrate to make clear and positive findings of fact on many aspects of the evidence. The so-called "Statement of Findings" is, in my respectful view, largely a summary or recital of the evidence placed before him. 4. For example, Mr. L.C. Chung, the handwriting expert, according to the learned magistrate, did not resile under cross-examination from his conclusion that the signature in the appellant's notebook had not been written by the informer. It is true that he could not say that the disputed signature had been written by the appellant. Such caution was quite proper and understandable, since the only material for comparison was the appellant's handwriting in the notebook. But, if his positive opinion, based on years of study of the subject, had been accepted, the inference that the disputed signature was written by the appellant would have been virtually inescapable. There was never any suggestion that the signature had been placed in the notebook after it had passed from the custody or control of the appellant. A clear finding by the learned magistrate that he accepted Mr. Chung's expert opinion on this central issue would have made the validity of the appellant's conviction unassailable. 5. Unfortunately, the learned magistrate made no finding on this evidence either way. He did not say that he accepted it equally, he did not say that he rejected it. He appears to have regarded this evidence as neutral, because of his own opinion that handwriting is not an exact science (c.f. pp 17 and 22 of the appeal bundle) or "not 100% infallible" (c.f. his "unspoken comments" during Mr. Eddis' final submission at p.15). I have been unable to find any indication on the record of Mr. Chung's evidence that he made any such concessions, or was ever given an opportunity to comment on the degree of fallibility inherent in his science. Nevertheless, from the fact that the learned magistrate did not refer to this evidence as affording him "corroboration”, or any support, for his clearly expressed conclusion that he accepted the informer's evidence as truthful, I must, and do, assume that he either rejected the expert evidence or found it wholly unhelpful. For the purposes of considering the general and particular merits of the present appeal, and in fairness to the appellant, I conceive that I should also disregard this expert evidence. 6. Although the main thrust of Mr. Eddis' argument, here and below, was aimed at demonstrating that the evidence of the informer should not be believed, the anxiety I feel about the learned magistrate's apparent failure to express clear and positive findings of fact extends to his clearly expressed conclusions that the informer's evidence was, in his words, “corroborated" by the appellant's lies to the I.C.A.C., and his subsequent conduct. Putting aside, for the moment, the question whether these aspects of the evidence were capable of constituting "corroboration" as a matter of law, it is unfortunate that the learned magistrate did not clearly specify what he had in mind as “lies to the I.C.A.C." or the "subsequent conduct" of the appellant. Insofar as these items are capable of being identified, there is still an element of uncertainty as to the actual findings of fact (if any) made by the learned magistrate with regard to these supposedly independant aspects of the evidence. The "lies to the I.C.A.C." can, perhaps, be gleaned from paragraph 4 of the findings expressed at the time of the trial (c.f. p.16 of the appeal bundle). But, when the learned magistrate referred to the "subsequent conduct" of the appellant, it is not clear whether he was referring to the appellant's telephone conversation with the informer on the evening of the 28th October 1983, or their alleged conversation at the Metropole Cafe, subsequent to this conversation. If he was referring to this meeting, the evidence thereof could not possibly amount to "corroboration", because it depended solely upon the credibility of the informer as to what was said at this meeting. Whilst it may be the case that the learned magistrate has treated, as corroboration, evidence which was not sufficient or capable of amounting to corroboration as a matter of law, I do not think that I should assume that he also overlooked the basic requirement that such supporting evidence had to come from a source other than the informer. Accordingly, I conclude that the "subsequent conduct" he was referring to was the telephone call which the appellant made to the informer on the 28th October, 1983, and his insistence upon meeting the informer at the Metropole Cafe. 7. In support of the first of his additional grounds of appeal, Mr. Eddis submitted that, having regard to the nature of the allegations against the appellant in this case, the appellant should not have been convicted on the untested and uncorroborated evidence of the informer, and that independent corroboration of the most convincing kind ought to be required. He forcefully pointed out that transactions, especially those involving payments of money, between police officers and informers are usually and necessarily carried out in conditions of great secrecy, that informers are invariably habitual criminals or unprincipled persons, solely or mainly concerned to promote their own selfish interests, and that police officers, insofar as they are encouraged to use informers, are particularly vulnerable to the risk of false allegations by such persons. In addition, Mr. Eddis adverted to the fact that, in this case, the informer had been offered an "immunity" in respect of his drug-trafficking activities, was, or may have been, subjected to some degree of coercion by officers of the I.C.A.C. to incriminate the appellant, and had told other lies in the course of giving evidence in this case. 8. Speaking for myself, I accept counsel's criticism of the practice of relying upon informers. It is a distasteful and worrying feature but it is unfortunately a fact of life - sometimes a necessary fact of life - which law enforcement officers and courts have to accept or recognise from time to time. When dealing with such supposedly contaminated information or evidence law enforcement officers and courts must be ever careful and circumspect. But, whenever a court is invited to act upon evidence from such a source. I do not think that, as a matter of law or practice, it must also find corroborative evidence of a convincing nature, before it can fairly and justly find anyone guilty of a criminal offence. The manner in which the obvious dangers are recognised, or dealt with, must vary according to the circumstances of the particular case. In some cases the tribunal of fact will require corroboration before it can safely convict; in others, a warning of the danger of, or special need for caution before acting on such evidence in the absence of corroboration may be all that is required. 9. The facts that the appellant was a police officer, that his "accuser"was his informer, and that the alleged crime related to their special relationship, do not, in my view, call for the creation of any special or separate category or rule of practice for dealing with evidence which may be inherently fallible. There was nothing in the evidence to suggest that the investigation which led to the present charge, originated with any complaint, whether false or justified, by the informer that he had not been paid reward money to which he considered himself to be entitled. There was no suggestion that he had falsely incriminated the appellant because of any vindictive feelings, which might have resulted from the fact that, in 1982, he received no help or protection in respect of the charge and conviction for trafficking in dangerous drugs, which led to his imprisonment from October 1982 until the 18th June 1983. Furthermore, there was no suggestion that he harboured such feelings because of his arrest for a similar offence by officers of the I.C.A.C. in October 1983. Insofar as the latter may have put undue or improper pressure upon the informer to provide evidence relating to the present charge against the appellant, this was a matter which required and received separate consideration by the learned magistrate. It does not really touch upon the question whether the informer's evidence ought to be corroborated by evidence of a convincing nature or at all. In my view, all that was required in this case was that the learned magistrate should appreciate the special need for caution before accepting the informer's evidence. Notwithstanding the comments I have expressed regarding the paucity of clear and positive findings of fact, it is abundantly clear that the learned magistrate was well aware of the need for caution and the danger of acting solely upon the informer's evidence. If he accepted that evidence, he was in my view entitled to convict the appellant despite the absence of corroboration. Whether he ought to have believed that evidence, and whether it was sufficient to sustain the conviction are different questions, which must be answered after making an overall assessment of the totality of the evidence and taking into account the various submissions of counsel on the inferences, which might be drawn therefrom. 10. Although I am of the opinion that there is no real substance in the first ground of appeal, this conclusion is not sufficient to dispose of this appeal. I cannot rule out the possibility that the learned magistrate believed the evidence of the informer only because he considered that it was corroborated by other evidence, or that his belief that there was corroboration formed an important or substantial part of his mental approach to the assessment of the evidence, and his ultimate conclusion that the appellant was guilty of the offence of which he was charged. Accordingly, I conceive that I should consider whether the matters which the learned magistrate apparently relied upon as corroboration, were capable of amounting to corroboration. 11. The first matter relied on by the learned magistrate was the supposed or proved lies by the appellant to officers of the I.C.A.C. in the course of his interview in June 1983. It is common ground that these alleged lies are to be found at p.7 of Exh. P.1 (p.40 of the appeal bundle). They consist of denials of knowledge or professed defective memory, of the informer's full name, his whereabouts, or how he could be contacted, coupled with assertions that the appellant had not seen or looked for him since the appellant's re-instatement, after being suspended from duty for some other matter. It seems that the period of suspension was from June 1981 until February 1982. Although there was no evidence that the appellant knew that the informer was in prison at the time when the appellant was interviewed by the I.C.A.C. there was, in my view, evidence sufficient to support the learned magistrate's conclusion that the appellant had not given truthful answers to the questions asked by the I.C.A.C. officer. When searched on that occasion, the appellant was found to have in his possession a piece of paper (Exh.p.13), bearing the telephone and paging numbers of the informer. The last entry in the appellant's notebook (Exh.P. 2) indicated that the appellant had met the informer on the 31st May. 1982. 12. Nevertheless, these lies were not, in my view, sufficient to amount to corroboration. They fell short of satisfying the particular criteria laid down in Lucas (1981) IQB720. They may have been uttered because of a desire on the part of the appellant to preserve the secrecy and confidentiality of his sources of information. But, since the appellant never claimed any kind of privilege to justify his unco-operative attitude towards officers of the I.C.A.C. in this respect (which, effectively, disposes of his fourth ground of appeal!), it was open to the learned magistrate to infer that the appellant was, at that time, endeavouring or hoping to prevent the I.C.A.C. from making any contact with the informer, with a view to furthering its investigation. However, the learned magistrate did not indicate clearly what inferences he drew from these lies, apart from thinking, erroneously in my view, that they afforded some corroboration of the informer's evidence. Speaking for myself, I do not think that they were of sufficient weight or significance to support an inference as to the guilt of the appellant. 13. With regard to the second category of supposed corroboration - the appellant's subsequent conduct - I must confess that, I again feel some anxiety because of the learned magistrate's failure to express clear and positive findings with respect to the record of the telephone conversation (Exh. p.4). In his statement of Findings, the learned magistrate said of this evidence:
Unfortunately, the learned magistrate did not indicate whether his view that this was "not a very reliable document applied to the entirety of the contents of this conversation, or merely to those parts which contained "mistranslations and ambiguities". But, disregarding the doubtful parts, as the learned magistrate clearly did, he must have relied on the various passages where the appellant was urging the informer to meet him, and trying to overcome his reluctance to do so by assuring him that he had no need to feel concerned or worried. In my view, these passages afford ample support for the finding that the appellant was anxious to meet and talk to the informer. 14. It is not easy to tell what, if any, other support the learned magistrate derived from the rest of this conversation. It does seem, however, from the learned magistrate's "unspoken comments" that he considered that the appellant contacted the informer because he knew that the informer had been seen by the I.C.A.C., and that the appellant's purpose was to persuade the informer to tell lies to the I.C.A.C. by saying that he knew nothing about the matter. Mr. Eddis led me through a very careful and detailed examination of the contents of Exh. P.4, designed to demonstrate the falsity or improbability of the substance and some of the details of the informer's evidence, his inherent unreliability in general, and with a view to showing that what the appellant said was capable of several innocent inferences or interpretations, in no way indicative of guilt, and that the appellant was seeking to do no more than find out what was going on and gather more precise details regarding the information previously given by the informer, to enable the appellant more clearly to identify the occasion for the payment of the reward money or to justify the amount thereof. 15. If Exh. P.4 is viewed in isolation, or had been the only evidence against the appellant, it may be that its content would have been insufficient to justify the conviction of the appellant, bearing in mind the fact that, apart from an apparent meeting on the 31st May 1982, they had not been in close touch with each other since June 1981, because of the appellant's suspension from duty and the informer's imprisonment between October 1982 and June 1983. However, Exh. P.4 was not the only evidence against the appellant. Furthermore, insofar as the learned magistrate may have drawn inferences from this evidence which were adverse to the appellant, I do not think that the appellant can legitimately complain about his conviction. The learned magistrate was, in my view, entitled to draw such inferences in the absence of any evidence emanating from the appellant. 16. Although those aspects of the evidence, apparantly relied upon by the learned magistrate as constituting "corroboration", were not, in my view, sufficient to amount to corroboration in the legal sense, and the learned magistrate did not make clear or positive findings on other aspects of the evidence placed before him, I consider that the undisputed portions of the conversation between the appellant and the informer on the 28th October 1983 afforded ample support for the ultimate conclusion that the reward money had not been paid to the informer, but had been kept by the appellant. Apart from demonstrating the appellant's anxiety to meet and talk with the informer, it is, in my view, abundantly clear that the appellant was mainly talking about the informer's interview by the I.C.A.C. and the question of the reward money. The appellant was anxious to find out what the informer had told the I.C.A.C. On more than one occasion, he was indicating that he had been manipulated by others "to stand on the platform", but that he could handle the situation himself, and could do so without causing any trouble for the informer. It is fair to say that, whenever the informer mentioned the fact that he had not received the reward money, the appellant never made any clear admission that that was the real situation. The apparent admission on page 15 of Exhibit P.4 was one of the passages which the learned magistrate found to be unreliable. At the time this part of the tape recording was replayed, the learned magistrate observed that this part of the evidence could not safely be held for or against the appellant (see P.10 of appeal bundle). Nevertheless, it is also clear that the appellant never positively asserted that the reward had been paid to the informer. If, as has been suggested, the appellant was at this stage merely seeking to meet the informer with a view to getting from him further and better particulars of the information about other activities, imparted by the informer in the past, with a view to justifying the amount of the reward money, it is, perhaps, rather strange that the appellant never protested that the informer had actually received the money. Disregarding those parts which the learned magistrate clearly found to be unreliable, and taking into account the distinct possibility that the informer's contributions to this dialogue may not have contained truthful statements of fact, but were designed to lay a trap for the appellant - a risk of which the appellant was clearly aware - I gained the overall impression that, in making this contact, the appellant's purpose was to persuade the informer not to cooperate with the I.C.A.C., or to gather information which might enable him to "neutralise" the information which the informer had already given to the I.C.A.C., and any evidence he might give, if the matter resulted in a prosecution. In short, the appellant was endeavouring to find some method of dealing with a development which he thought would never take place. When he was interviewed by the I.C.A.C. in June he did not expect that they would be able to locate his informer. His surprise at their success in this respect is evident from some of his statements in Exhibit P.4. This unexpected development was clearly an additional obstacle to be overcome if he was to avoid another prosecution. 17. I have given very careful consideration to the very able submissions of Mr. Eddis, not only on the reliability of this conversation and the possible interpretation or explanation of those parts which are reliable, but also to the effect that the informer was a proven liar. I am not, however, persuaded that he has been shown to be so unreliable. The learned magistrate clearly alerted himself to the obvious dangers of acting upon the evidence of the informer, with all his nefarious dealings in the drug trade. Notwithstanding these able submissions, which I am sure were also addressed to the learned magistrate, I am satisfied that in all the circumstances, the learned magistrate was entitled to act solely upon the evidence of the informer. Although I think that he may have used "corroboration" in a sense which was not justified, there was, in my view, other evidence, particularly in the telephone conversation, which strongly supported his conclusions. Furthermore, I do not think that his decision to believe the informer was reached solely or mainly because he thought that there was corroboration. That decision was, in my view, reached separately and independently from his belief that corroboration existed. 18. Mr. Eddis further contended that, in all the circumstances, the conviction should be quashed on the ground that it was unsafe or unsatisfactory, or, as it is more colloquially expressed, because an appellate court should entertain a "lurking doubt" about the correctness of the conviction. I doubt whether my powers under the Magistrates Ordinance confer upon me that particular jurisdiction. It seems to me that it is an exceptional jurisdiction, conferred only upon the Court of Appeal, to be exercised with great caution(of TANG Wai-tong [1979] HKLR 479, 486-7) by a Court of three or more judges, whose collective and greater experience can more safely be relied on as a justification for interfering with verdicts of juries of findings of fact by the tribunal of fact. However, this matter was not fully argued before me, and I express no concluded view thereon, apart from acknowledging that there may be sound arguments for extending its application to appeals from magistrate's courts in Hong Kong. The question is still open for future consideration in a more appropriate case. 19. Assuming that I do have power to interfere for this reason, I have endeavoured to make my own independent assessment of the evidence, insofar as I am able to so so without the obvious advantage of seeing and hearing the witnesses, or being in the position of forming any impressions based on their demeanour. In embarking upon this difficult task I have asked myself the question: is there anything in the case which causes me to feel uneasy about the correctness of the conviction? And, in the process of looking for an answer to that question, I conceive that I should not be influenced by any inclination or desire to uphold the learned magistrate's decision, and should disregard supposed deficiencies in his reasons or "Statement of Findings", unless they cause me to feel uneasy about the conviction after considering, afresh, the totality of the admissible evidence before him. 20. I have considered very carefully everything which Mr. Eddis has said about the evidence of the informer. The detailed information contained in Exh. P.2, and supposedly supplied by him to the appellant, may suggest a close association with triad societies and, perhaps, an expectation on his part of being rewarded by payments of money in addition to the protection he obtained for carrying on his own "nefarious activities" in the drug trade. When he was seen by officers of the I.C.A.C. he may have been subjected to a certain degree of vigorous questioning or pressure. The evidence thereof was somewhat scant and, in my view, fell far short of amounting to "intimidation". The promise of immunity in respect of the drugs offence, for which he had been arrested by officers of the I.C.A.C., might have made him more susceptible to cooperation with the I.C.A.C. in respect of their investigation into the subject matter of the present charge. However, I am not at all persuaded that these features of the case, or the unsavoury background of the informer as an incorrigible drug trafficker, demonstrate that he may have told lies to the learned magistrate on any essential or collateral issue in the present case. He never denied that he was a member of a trial society, because that general suggestion was never put to him. It was apparently only suggested that he was a member of Lo Tun or Lung Kung Lok societies. His denial of membership of those specific societies was not, in my view, patently untrue, since he might have acquired information about their activities or membership from his longstanding and active involvement in illegal drug activities or general gossip within the criminal fraternity. 21. After the most anxious review of all the evidence, and the surrounding circumstances of the trial of the appellant, I am unable to pin-point any aspect which causes me to feel uneasy or to harbour a substantial remaining doubt about the correctness of the conviction. Insofar as I possess the jurisdiction to interfere with the learned magistrate's decision on this basis, I venture to suggest that I should not do so in a case where the appellant has elected not to give or adduce evidence in answer to the charge, and has not submitted that he had no case to answer at the end of the prosecution's case. 22. For the aforesaid reason, I considered that the present appeal should be dismissed. I would merely add that, if I had felt that the appellant's conviction was unsafe or unsatisfactory, or that another, and hypothetically more reasonable, appellate tribunal might have entertained a "lurking doubt", I would have invited counsel to address me on the question whether I should refer the present appeal to the Court of Appeal. On the basis of my view of the evidence in this case, I did not consider that there was anything in the detailed grounds of appeal, or Mr. Eddis able submissions, which suggested that I should adopt that possible course.
Representation: Mr. Christopher Harris, Crown Counsel for Respondent Mr. F.A.L. Eddis, Counsel instructed by (D.L.A.) for Appellant. |