The Queen v. Tsang Ping-nam
Read the full judgment text of DCCC 6/1979 on BabelCite. This District Court judgment was delivered on 9 May 1979.
1. Three charges are preferred against the defendant:
Cited by 3 cases
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DCCC000006/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 6 OF 1979 -----------------
----------------- Coram: Judge Bewley. D.J. in Court. Date of Judgment: 9 May 1979 ----------------- JUDGMENT ----------------- REASONS FOR VERDICT 1. Three charges are preferred against the defendant: 1st Charge Statement of offence 2. Attempt to pervert the course of public justice, contrary to Common Law. Particulars of Offence 3. TSANG Ping-nam, on a date unknown between 31st January 1977 and 21st June 1978, in this Colony, attempted to pervert the course of public justice relating to the prosecution of So Siu-kuen, Police Sergeant 6691 of the Royal Hong Kong Police Force, for the offences relating to the involvement of the said So Siu-kuen in a corruption conspiracy in the Mongkok Division of the Royal Hong Kong Police Force. 2nd Charge Statement of offence 4. Attempt to pervert the course of public justice, contrary to Common Law. Particulars of offence 5. TSANG Ping-nam, on a date unknown between 31st January 1977 and 21st June 1978, in this Colony, attempted to pervert the course of public justice relating to the prosecution of WONG Kam-tai, Chief Inspector of the Royal Hong Kong Police Force, for the offences relating to the involvement of the said WONG Kam-tai in a corruption conspiracy in the Mongkok Division of the Royal Hong Kong Police Force. 3rd Charge Statement of offence 6. Attempt to pervert the course of public justice, contrary to Common Law. Particulars of offence 7. TSANG Ping-nam, on a date unknown between 31st January 1977 and 21st June 1978, in this Colony, attempted to pervert the course of public justice relating to the prosecution of WONG Yu-keung, Police Sergeant 4324 of the Royal Hong Kong Police Force, for the offences relating to the involvement of the said WONG Yu-keung in a corruption conspiracy in the Mongkok Division of the Royal Hong Kong Police Force. 8. The facts of the case are as follows. On 1st February, 1977, the defendant and five other police officers were arrested by officers of the ICAC for suspected complicity in a corruption syndicate in Mongkok Division of the Royal Hong Kong Police between 1972-75. At 3.15 p.m. that day the defendant was interviewed by Mr. John Picken (PW1), the officer in charge of this case, with Mr. Wong Kwok-leung (PW2) acting as interpreter. Mr. Picken had, prior to the interview, written out a series of questions which he now put to the defendant through Mr. Wong. The latter cautioned the defendant and recorded his replies. The record of this interview is contained in Ex. P2. Apart from certain general questions about his work in Mongkok Division the defendant was asked if he knew two men called Koo Ming alias Koo Chiu and Lam Hon alias Lam Pak. In each instance he replied that he had heard the name. He denied having telephoned either man or having had a financial relationship with him or having visited Koo's shop in Tong Mei Road. 9. The defendant was interviewed again by the same two officers at 8.00 p.m. that evening. According to Mr. Picken, who said he made a record of the interview at the time, he told the defendant, through Mr. Wong, that the evidence in their possession showed he had been involved in corruption in Mongkok and suggested that he had not told the truth at the earlier interview. The defendant asked Mr. Picken what he wanted him to say and Mr. Picken told him to tell the truth. The defendant then asked him what favour he would be given in return and Mr. Picken replied, "Absolutely no favour. If you tell the truth it will be in your favour at court." The defendant then asked Mr. Picken what he wanted to know. Mr. Picken asked him, "When you worked with the Vice Squad did you take any squeeze money?" The defendant admitted that he did and, in reply to further questions, said that he had received $2,000 a week, out of which the police constables received $200 and the woman police constables $100, from a man called Tai Tau-so. He denied that he had received money from Koo Ming, but said that So had got it from Lo Wing-pong and he thought that the latter had got it from Koo Ming. 10. Mr. Picken then asked the defendant about other corruption in Mongkok and the defendant admitted that he had been the cateret for the Nuisance Squad. At this point Mr. Picken asked if he would be prepared to make a statement and he agreed to do so. Mr. Picken then instructed Mr. Wong to take a statement from the defendant and left the room. 11. Mr. Picken told the court that, at the time he interviewed the defendant, he already knew quite a lot about the case, which he had been investigating for about twelve months. Koo Ming was a merchant, who was suspected to be a collector of corrupt money for the syndicate. Tai Tau-so was the nickname of Sergeant So Siu-kuen (1st charge), who had also been arrested on 1st February, 1977. But Mr. Picken learned two new things: he had never before heard the name Lo Wing-pong - a chief inspector who was later arrested - and he did not know that the Nuisance Squad had been involved in corruption. 12. Mr. Wong did not give detailed evidence of this second interview although he was allowed to refresh his memory from a record he made just after the interview concluded at 8.20 p.m. He merely said that Mr. Picken put certain questions to the defendant and that the latter agreed to make a written statement. 13. This statement was taken under caution at 8.40 p.m. and is Ex. P3. According to Mr. Wong, he asked the defendant if he himself wished to write the statement, but the defendant preferred Mr. Wong to record it. The defendant asked him where he should begin and Mr. Wong suggested he start at the time he first joined the police. The statement was then dictated by the defendant and Mr. Wong says he recorded every word. It concluded at 11.5 p.m., when it was read over to the defendant, corrected and signed. 14. This statement amounts to a complete and detailed confession of corruption by the defendant. Amongst other things he admits:
15. At the end of the statement the defendant told Mr. Wong that he still had many things to say, but was tired and would like to continue the statement another time. It was read over to him, some alterations were made and initialled and the defendant signed it as a true statement at 11.5 p.m. 16. Next morning at 11.10 a.m., when the statement was resumed, the defendant described the events of 1974-75. The salient features of this statement (Ex. P4) were:
17. This statement concluded at 1.30 p.m. and was read over and signed. But at 2.5 p.m. the same day an addendum was made when the defendant told Mr. Wong that, on his taking over the Vice Squad in 1972, he had visited Lo Wing-pong in his office and given him $1,000 as a present. It was the usual practice for the Vice Squad sergeant to give Lo $500, but the defendant had doubled this sum in order to please him. This was signed at 2.15 p.m. 18. The defendant was released on bail the same evening; according to Mr. Picken he was to report to the ICAC in one month's time. 19. On 4th February Mr. Picken and Mr. Wong went to the New Territories to investigate another aspect of the case. At about 2.0 p.m. Mr. Wong rang the office to see if there were any messages and was told that the defendant was there and wished to see him. When Mr. Wong returned to Hutchison House, he spoke to the defendant in an interview room at 4.15 p.m. The defendant told him that he wished to give some further information and was willing to make another statement. He then spoke of the corrupt activities of the Nuisance Squad in Mongkok. At 4.50 p.m. Mr. Wong recorded a caution which the defendant signed. He then proceeded to take down a statement from the defendant, sentence by sentence and this document has been marked Ex. P5. 20. In the statement the defendant makes the following points:
21. The statement was then read back to the defendant, some alterations were made and it was signed at 7.50 p.m. 22. On 11th February 1977 there was a meeting at pearl Island Hotel in the New Territories, which was arranged by phone and attended by Mr. Picken and Mr. Wong. According to Mr. Picken, he told the defendant that he was not offering him immunity, but nevertheless would welcome further information. The defendant said he understood and might as well tell everything. He then gave the officer further information about the structure of the syndicate, but no statement was taken. 23. On 23rd February another meeting at Pearl Island Hotel was arranged by phone. On this occasion, apart from one or two other matters, Mr. Picken invited the defendant to make a full witness statement which, provided he told the whole truth, would not be used against him in any prosecution for corruption. The defendant agreed. It had not yet been decided who would be prosecuted, but of course Mr. Picken had it in mind that the defendant might be called as a witness and the invitation to make a witness statement was made on the advice of the Attorney General's assistant. Mr. Wong however told the court that it was made clear to the defendant that he still might be prosecuted. It was not until some time between 20th June - 10th October that he told him that he was going to be called as a prosecution witness. 24. Mr. Wong next saw the defendant on 15th April at the ICAC office. The defendant had been invited there to make his witness statement and he confirmed that he was willing to do so. A statement was then composed by Mr. Wong from the defendant's previous statements and from the additional information he had provided at the various meetings e.g. concerning ticket "scalping" at cinemas. It is a very detailed account of corruption in Mongkok Division. Mr. Wong explained the gist of each paragraph to the defendant and obtained the defendant's agreement before writing it down. He had before him a brief summary and he also asked the defendant questions from time to time. When he had finished, he read it to him and the defendant signed it. This is Ex. P6, or rather the statement taken on 15th April is contained in the first twenty-four 2 paragraphs of that document. The remaining five paragraphs were added on 20th June, when Mr. Wong asked him some further questions. This additional statement was also read over to the defendant and signed by him. The numbers of the sergeants in the final paragraph were first written by the defendant on a piece of white paper and then copied by Mr. Wong. 25. On 26th April the defendant was shown some photographs in order to identify the persons whom he had mentioned in his statements. Mr. Wong did not say whether any identifications were made. The same thing happened on 1st June, when the defendant identified twenty-three persons. At the time he wrote down some names and numbers of corrupt officers on a piece of paper, which Mr. Wong identified in court (Ex. P7). The writing in pencil on this document is that of ICAC officers. The defendant identified So Siu-kuen in photo No.35, and recorded against this number the words, "4 Vice Tai Tau-so". He failed to identify Wong Yu-keung. Wong Kam-tai's photograph did not appear in that album. He told Mr. Wong that he knew more than half of those whose photographs appeared in this album. He added that he wished to be shown a list of sergeants who had served in Mongkok Division. He was told to return to the ICAC that afternoon. 26. When he came back he, was shown a list of sergeants as requested (P8) and, when he recognized a number, he put a tick or wrote down a name. On 1st sheet (P8A) he wrote the name Wong Yu-keung against the No.4324. Alongside No. 6691 he put a question mark and said something which Mr. Wong cannot remember. 27. Mr. Wong next saw the defendant on 3rd June at Pearl Island Hotel together with another ICAC officer, Mr. Cass, in order to clear up an ambiguity in his witness statement. 28. On 10th October Mr. Wong interviewed the defendant at Lau Fa Shan and took from him a statement, which dealt briefly with his corrupt activities from the time he first joined the force (Ex. P9). By this time the defendant had been informed that he might be a prosecution witness. The defendant wrote this statement himself and he makes no mention of the names or numbers of other corrupt officers. On 25th October the defendants in the Mongkok conspiracy trial were charged (P12-14). 29. The Mongkok conspiracy trial commenced on 17th April, 1978. On several occasions before this date the defendant asked Mr. Wong when he would receive his letter of indemnity. Mr. Wong replied that this was a matter for the Attorney General who had not yet decided whether the defendant should be granted immunity from prosecution. 30. The third and final prosecution witness was Mr. Li Chuen-kwok, another ICAC officer, who saw the defendant at 4.30 p.m. on 16th June, 1978, in the Hilton Hotel, where he was being kept in protective custody. Mr. Li asked the defendant if he wished to read his statement. The defendant replied "Yes. The Chinese copy". Mr. Li then handed him a photostat copy of his witness statement (Ex. P6), which the defendant read for half an hour. When he had finished he said "Okay." Mr. Li asked him, "Do you still agree the contents are true and accurate?" The defendant replied "Yes. I can still remember everything very clear. It's all true." 31. Mr. Li visited the defendant later that day and handed him the letter of indemnity signed on behalf of the Attorney General. Ex. P11 is a photostat copy of this document, which is dated 14th April, 1978. 32. The defence admits several matters under S.65C, Cap. 221, namely, that the defendant was called by the prosecution and gave evidence at the trial of the persons named in the charges; that he gave evidence on 19th and 20th June, 1978; that Ex. P1 is a transcript of that evidence; that So Siu-kuen was arrested by officers of ICAC on 1st February, 1977 and charged on 25th October, 1977; that Wong Kam-tai was arrested by officers of ICAC on 25th October 1977 and charged the same day; that Wong Yu-keung was arrested by officers of ICAC on 20th July, 1977 and charged on 25th October, 1977. 33. In his evidence on 19th-20th, June, 1978, the defendant frankly admitted his own part in the Mongkok corruption syndicate. He also confirmed those parts of his witness statement which implicated in corruption Lo Wing-pong, Chan Yiu-tim, Koo Ming, Pak Chai or Chung, PC9797, Ah Hang, Ho Wah and Or Wah. Most of these persons were called as prosecution witnesses in the conspiracy trial and none of them was a defendant. The defendant denied, however, that any of the allegations in his statement concerning So Siu-kuen, Wong Kam-tai or Wong Yu-keung - all defendants in that trial - were true. Nor were they true in respect of the other defendants referred to in that document, namely Sergeants 4393, 7345, 1727, 2252 & 7345. Nor were they true about Sergeants 888, 926, 1765, 2760&4298 who were not defendants. He was not asked about Sergeant 5675 "Sze Ngan-tang", whose real name is Pang Ho-yin and who was a defendant and who was implicated in para. 9. 34. The defendant said that these persons had been named by the ICAC, that he knew the allegations concerning all of them were false, but that he had agreed to sign the statement, which included these allegations, to ensure a letter of immunity from prosecution and out of fear that he would be charged, (1) in respect of his financial assets (2) for giving false information to ICAC and (3) with the corruption to which he had already confessed. He was tired and anxious to leave the ICAC office as soon as possible and, promised a letter of immunity if he signed the statement, he agreed to do so. (See pages 20-28 of Ex. P1) Leave to treat the defendant as a hostile witness was granted and he was cross-examined on his witness statement, but not on his earlier statements, which do not appear to have been in prosecuting counsel's hands. At the conclusion of his evidence the court indicated that his evidence would carry no weight whatsoever. 35. In this court the defendant gives the same reasons for signing the witness statement. His account of what happened at the various interviews is as follows. 36. Beginning with his arrest on 1st February, 1977, the defendant told the court that, shortly after his arrival at the ICAC offices at 11.0 a.m., Mr. Wong came to his room alone. He addressed the defendant by his nickname - Tung Kwan - and said he himself had once worked at Mongkok Police Station. He asked the defendant if he knew a former sergeant nicknamed Coolie Khan and said that he had recently seen him in Central. He added that he knew the defendant formerly had taken good care of him. But he did not tell the defendant why he had been arrested. He then left the room. 37. He returned shortly and told the defendant that four other people had that day been arrested - Hak Chai-lan, Ah Shun, Ah Pang and Tai Tau-so. He alleged that they and the defendant had been involved in corruption in Mongkok and that he knew very well who the caterer had been. After some further conversation he again left. 38. At about 3.0 p.m. Mr. Wong returned with Mr. Picken, who asked the defendant a number of questions about the Vice Squad in Mongkok. He directed Mr. Wong to take a statement from the defendant and left the room. Mr. Wong then proceeded to take the question and answer statement, Ex. P2. 39. Mr. Wong then left but, after a while, returned with Mr. Picken. The latter was angry and accused the defendant of lying. He told the defendant that if he cooperated and told the truth he would help him, but that otherwise he would be detained. The defendant said nothing and the two men left. 40. Later Mr. Wong came back alone and said he wanted to help him. Coolie Khan had told him that the public account in Mongkok concerned Wong Kam-tai and Lo Wing-pong, but had been nothing to do with the defendant. The defendant asked him why the ICAC did not arrest those people instead of him and Mr. Wong replied that they had arrested Koo Ming, Hung Pai, Lau Pak and many others of Lo Wing-pong's henchmen. Mr. Wong continued that none of these men was willing to be witnesses against Lo Wing-pong and Wong Kam-tai and, if any of the five who had been arrested that day could supply information leading to the arrest of Lo and Wong, he would be granted immunity. He told the defendant that he had suggested to his boss that the defendant might be the witness for whom they were looking. He asked the defendant to consider the situation and left the room. 41. Between 7-8 p.m. Mr. Wong returned and said that Tai Tau-so was showing willingness to give a statement and wanted to know the defendant's reaction. The defendant asked whether he would receive immunity from prosecution if he cooperated and Mr. Wong replied that with ICAC support he certainly would. 42. Some time later Mr. Wong returned with Mr. Picken. The latter told him that he would recommend him for immunity if he cooperated, but his position depended on the quality of the information he supplied. He then instructed Mr. Wong to take a statement from the defendant and left. 43. Mr. Wong cautioned the defendant and proceeded to take the statement, Ex. P3. According to the defendant it is all true, except for the parts relating to Sergeant 6691, Tai Tau-so, and to Wong Kam-tai. When he told Mr. Wong that he took over the Vice Squad from Tai Tau-so, Mr. Wong said, "In that case he handed you $2,000 every week." The defendant denied it and Mr. Wong said, "Koo Ming does not agree with you and Tai Tau-so says he gave you money." But Mr. Wong said that who paid him was not important. The main thing was to get Lo Wing-pong. He pointed out that they might accept a statement from Tai Tau-so, in which case the defendant's statement would be useless and he would not get immunity. In these circumstances the defendant agreed to incorporate in his statement whatever Mr. Wong suggested. When they came to Wong Kam Tai, Mr. Wong suggested he had handed the account to him. The defendant denied this and said there was an interval between Lo Wing-pong's departure and Wong Kam-tai's arrival. He was not sure if Wong Kam-tai eventually took over the account from Lo Wing-pong, he had only heard people mention Wong's name and he himself had no direct knowledge of Wong's involvement in corruption. At that point the defendant told Mr. Wong he felt tired and, knowing that more questions were going to be put to him, he asked for a rest until the following day. He did not say to Mr. Wong that he had many more things to tell him. 44. Next morning Mr. Picken told him he was happy to see he had told the truth and that when he had finished his statement the matter could be fixed up. He left and Mr. Wong resumed the statement taking. 45. The defendant was shown this next statement (Ex. P4) and again said that most of it was true. He first mentioned that he had said he gave Lo Wing-pong $500, not $1,000, and when he discovered this mistake he pointed it out to Mr. Wong. His attention was then directed to the words. "To the best of my knowledge the vice account then was collected in Wong Kam Tai's name because Lo Wing-pong was already transferred away and was on leave." His answer to this was that Koo Ming's henchmen told the operators of the joints, divans etc that, if there was trouble, they could contact Wong Kam-tai, but he did not know if Wong consented to this. 46. When this statement was concluded, the defendant asked if he could go, but he was not allowed to sign his bail bond until the evening. Even then Mr. Wong asked him to wait another half hour because he could not find his travel documents. The defendant told him the arresting officers had taken the documents from his home. Mr. Wong still could not find them. He promised to send the defendant home in a car, but was unable to get hold of a driver. Eventually the defendant was allowed to go but was told to search for his travel documents when he got home and to telephone the ICAC office at 9.0 a.m. next morning. 47. When he got home that night, the defendant discovered his travel documents in a bag in the boot of his car. At about 8.0 a.m. next morning Mr. Wong telephoned him and asked him to bring the documents to the office the following day, 4th February, and in the meantime to give him the numbers of the documents over the telephone. He told him not to come on the morning of 4th February, as he might meet the other four officers, who were due to collect receipts for their travel documents. 48. Thus at 2.0 p.m. on 4th February the defendant returned to the ICAC offices. He gave his two travel documents to another ICAC officer, who gave him a receipt and told him to wait for Mr. Wong. He saw Mr. Wong and Mr. Picken eventually at about office closing time. Mr. Picken told him he needed more details before he could help him to get immunity and instructed Mr. Wong to take another statement from him. 49. When Mr. Picken had gone, the defendant told Mr. Wong that there was not much more he could tell him. But Mr. Wong said that Koo Ming had told him that very day that Lo Wing-pong had had three henchmen, Sergeant 4324 Fung Lan, whose full name was Wong Yu-keung, Tai Tau-so and Sze Ngan-tang. Then they began the statement (Ex. P5). The defendant says that part of this is true and part untrue. The part relating to Wong Yu-keung is untrue. He only told Mr. Wong that Wong Yu-keung was working in the same office as Lo Wing-pong and he had asked him to tell Lo that he was back and to ask him to take good care of him (defendant) when he had a chance to see Lo. The only mention of Tai Tau-so that the defendant made in the conversation was to say that, when he (defendant) returned to Mongkok Police Station, Tai Tau-so was at P.T.U. But Mr. Wong wrote, falsely, that Tai was responsible for payments of squeeze to the Vice Squads. 50. A third falsehood in this statement related to Wong Kam-tai on page 4 of the English translation. Mr. Wong said there was evidence pointing to Wong Kam-tai's involvement in corruption and the defendant must know something about it. The defendant gave an account of the movement of officers at that time and said it was difficult to say whether Wong Kam-tai received money during that period. Mr. Wong told him that he must involve Wong Kam-tai or they would not be able to help him. The defendant told him he did not know how he could do this, as they had never worked together and he did not know him. Mr. Wong asked him if he had never had tea or a chat with him. The defendant replied that he had often seen him having lunch at the Silver Palace, but had never spoken to him. So Mr. Wong said they could say he had talked to him there. He added that his statement would not actually be used but, if he gave evidence on these lines, he stood a better chance of getting immunity. He then made up this part of the statement. 51. It would seem that the defendant maintains that the allegation against Sze Ngan Pang is also untrue, since he was supposed to be one of the three henchmen named by Koo Ming, but the defendant did not specifically say that it was untrue. 52. Concerning the meeting at Pearl Island on 11th February, the defendant said the only matter discussed was the taking over of the account after Lo Wing-pong's transfer. He told Mr. Wong that it was taken over by a senior inspector of police, who had later had a discussion with Or Wah, one of the defendant's henchmen. 53. On 23rd February at Pearl Island, Mr. Picken told him the Attorney General had agreed that he should be a Crown witness and have immunity. He asked the defendant to identify some photographs of police officers and asked him for information concerning their corrupt activities. Mr. Picken also told him that Mr. Wong would take a witness statement from him, but it would not be used to prosecute him. 54. The witness statement was taken on 15th April and the defendant considers Mr. Wong's evidence as to how this was written is more or less correct. Those parts concerning Wong Kam-tai, Tai Tau-so and Wong Yu-keung are untrue. The defendant also says the figures are wrong, as they indicate he was paying out more than he was collecting. Mr. Wong told him that, if he did not stick to his previous statements, he might be prosecuted for giving false information to the ICAC. For this reason, he "simply repeated here that Tai Tau-so gave me $2,000 a week", although it was not Tai who had given him the money. Similarly, he dared not raise any objection to para 18, which also concerned Wong Kam-tai. 55. On 26th April the defendant was shown an album containing over 100 photographs. They were old - taken at Police Training School - and the defendant was unable to recognize anyone. Mr. Wong asked him to identify the sergeants attached to Mongkok Division and the Nuisance Squad in particular. The defendant replied that it was too long ago and he could not remember. 56. On 1st June the defendant was first shown some papers containing the numbers of over forty sergeants. Beside their numbers were the figures for hawker arrests by each sergeant between June - December, 1973. One sergeant had over 1700 arrests while another had only fifty odd. The defendant was asked if he could identify any of these sergeants as having worked with him during that period. He said that was impossible, but he believed most of these sergeants were on nuisance squad duty. Mr. Wong selected the ten sergeants with the most arrests and invited the defendant to identify them from a set of photographs. This the defendant proceeded to do. Mr. Wong told him that Tai Tau-so had given him money and asked him to try to pick out his photograph. The defendant did so. According to Mr. Wong, these ten men were the officers working with the defendant in the Nuisance Squad during that period. He said that identification did not necessarily involve corruption on their part. The defendant did not on this occasion identify twenty-three photographs: he had however done so on 26th April. 57. On 1st June the defendant was shown a list of sergeants who had been attached to Mongkok during that period. When he came across someone he knew, he made a mark on the list and, if he remembered his name or number, he wrote it down accordingly. He was also told to write down the names or nicknames of the persons he had mentioned in his previous statements, for example Tai Tau-so. The defendant first identified Ex. P7 as the list in question, but then said this was what he wrote on 26th April. Ex. P8 was the document he was shown on 1st June. 58. On 20th June paras 25-29 were added to the witness statement at Mr. Wong's request. Most of this was untrue. The numbers of the sergeants in para 29 were those which had been picked out on 1st June as having made the most arrests. The defendant was angry and objected to their inclusion. In particular he succeeded in convincing Mr. Wong that Sergeant 1767 should not be included. The defendant said he could not remember the sergeants to whom he had given squeeze money, but Mr. Wong insisted on writing down the remaining numbers (ten in all). 59. The defendant did not refer to his statements of 10th October, 1977 (P9) and 9th May, 1978 (P10), but dealt next with his meeting with Mr. Thomas Li (PW3) at the Hilton Hotel. In fact he maintains there were two visits by Mr. Li, the first at 9.0 p.m. on 16th June and the second at midnight on 18th-19th June, the night before he gave evidence. On 16th June Mr. Li did not show him his statement, but he held it in his hand while he questioned the defendant about it. When the latter gave a wrong answer, he corrected him. The defendant told him that, as parts of the statement had not emanated from him, he was not able to remember everything in it. Mr. Li replied that he was not responsible for the case and his duty was limited to helping the defendant in a revision of the statement. 60. Mr. Li returned to see the defendant at midnight on 18th-19th June. He handed him the statement, but did not ask him if he wished to refresh his memory from it. The defendant read it through and discovered there were some additions, and also some alterations that had not been initialled, but he did not mention this. 61. When the defendant went into the witness box next day he told the truth, which of course was not the same as the contents of his statements. 62. In cross-examination during the present trial the defendant admitted he had led the ICAC officers to believe that he was going to give evidence in court along the lines of his witness statement, which he knew would be considered by the Attorney General when deoiding who should be prosecuted. A little later he said that at the time he made that statement (15th April) he was prepared to stick to that story and repeat those falsities in court. When asked when he had changed his mind, he said it was on 20th June, 1977. It was pointed out to him that he mentioned none of this at the Mongkok trial. At page 28 of the transcript Mr. Ogden suggests that he signed the statement on the basis that he would then get immunity and would then tell a different story in the witness box. The defendant replied that that was partly the case, but part of his statement to the ICAC was not taken down. 63. So far as the first statement (P3) was concerned, it was Mr. Wong, and not he himself, who had named as corrupt officers both Lau Pak and Hung Pei, neither of whom were defendants in the Mongkok trial. 64. When counsel for the Crown asked the defendant why he had said (at p.21 of transcript) that he had "faithfully" signed a statement prior to the April witness statement, the defendant denied having used the word "faithfully". He believed he told the court that he had merely agreed and had signed the previous statement. 65. When it was put to him by counsel, he conceded however that he had not suggested at the earlier trial that at the time of his arrest the ICAC officers had fabricated a statement, but he pleaded that he was not asked about it. He also admitted that he had agreed with Mr. Ogden, when the latter suggested that the matters in the April and June statements were either thought up by him or suggested by the ICAC officers AT THAT TIME. 66. The defendant agreed that in his statement of 4th February (P5) there are seven names, including the three officers named in the present charges, against which there are untrue allegations fabricated by the ICAC. The defendant made it clear to Mr. Wong at the time that he knew nothing about any corrupt activities on the part of those seven. 67. Counsel for the Crown, in the course of his cross-examination, took the defendant through all the names mentioned in his various statements between 1st February - 20th June, 1977, and established that it was the defendant's case that all the allegations against persons who were defendants in the Mongkok trial were fabricated by the ICAC, while the allegations against most of the other persons came from the defendant himself. Having done this, he put it to the defendant that the ICAC must have realized that he was not in a position to give true evidence against the defendants in the Mongkok trial. The defendant agreed that Mr. Wong realized this, but said he did not think the latter had told Mr. Picken all that had occurred. He also agreed that the ICAC made no attempt to make sure he was word perfect in his false story before going to court. In his view his testimony was intended to be mainly concerned with the Vice Squad and the public account, but not the Nuisance Squad account, which Mr. Wong considered to be a trivial matter. Thus, between February - April, he was quite prepared to be an "earnest" witness for the Crown. He did not expect to be asked about any of the defendants in the Mongkok trial, who were mentioned in his statements. If he were asked about them, he intended all along to tell the truth. That concluded the defendant's evidence and there were no other defence witnesses. 68. I have set out the evidence at length in order to show that there is no possibility that the defendant's allegations against the ICAC can be true. Even assuming - as the defendant points out - that his was not the only "evidence" against the defendants in the Mongkok trial, the ICAC would never have dared to seek a letter of immunity for a witness whose statement to their knowledge contained so many lies. The defendant suggests that Mr. Wong may have deceived Mr. Picken as to the genuineness of the several statements. I do not believe this. Mr. Wong had little to gain by such a deceitful manoeuvre and a lot to lose if he should be found out. Moreover the scale of the deception would have been such that it is not realistic to conceive that such a junior officer as Mr. Wong might have embarked upon such a course. On the contrary, I found Mr. Wong to be an excellent witness. I am perfectly satisfied that he - and Mr. Picken and Mr. Li - are witnesses of truth. Besides, Mr. Picken would have taken pains to establish the true position before applying to the Attorney General for the defendant to be called as a witness. 69. Even if a letter of immunity had been obtained in the circumstances alleged by the defendant, the ICAC would never have allowed the defendant to go into the witness box without ensuring that he was word perfect in the lies contained in the witness statement, which they knew would be in prosecuting counsel's hand. It is absurd for the defendant to suggest that the ICAC was not interested in the Nuisance Squad. The defendant admits that the statement itself was of no value. It was only useful as an indication of what he was prepared to say in court and he knew this. If Mr. Wong had not considered the Nuisance Squad account something more than a trivial matter, he would not have incorporated so many facts about it in the witness statement. He would certainly not have written a pack of lies about it. What purpose would that have served? Nor would Mr. Wong have, on 26th April, asked him to identify in particular the sergeants attached to the Nuisance Squad. It does not therefore lie in the defendant's month to say that he did not expect to be asked about any of the defendants in the Mongkok trial who had been mentioned in his statements. Indeed his final testimony - that if he were asked about them he intended all along to tell the truth - conflicts with his earlier evidence that, when making the statement on 15th April, he intended to repeat the falsities in court. He cannot have it both ways. It is significant also that at no point during his evidence in the Mongkok trial did he make it clear what his real intentions were when he made the statement, although Mr. Ogden (at pages 28-29) gave him every opportunity to do so. 70. From the above general conclusions I pass now to several particular matters about which the defendant has clearly lied to the court. (1) The travel documents. This was an absurd story. If their surrender was a condition of his bail, the defendant would not have been released without them. Moreover, if the ICAC had seized the documents they would not have been subsequently found in the boot of the defendant's car. Nor would the defendant have been looking for them in such an unlikely place that evening. He did not explain why, having duly delivered the documents at 2.0 p.m., he waited another two hours for Mr. Wong's arrival, when he was under no obligation to do so. (2) Ex. P4. Wong Kam-tai. The defendant does not deny that he is responsible for the passage concerning the collection of the vice squad account. If the defendant knew that the operators of the divans were told to contact Wong Kam-tai in case of trouble, it is tantamount to saying that Wong was a member of the corruption syndicate. (3) Ex. P5. Wong Yu-keung. If the part relating to this officer is untrue, it is surprising that the defendant told him to ask Lo Wing-pong to take good care of him (the defendant). This implies that Wong was at least aware of the existing corruption. (4) The photographs. If, on 26th April, the photographs, were so old that he had been unable to recognize anyone, he could not, as he later stated, have identified twenty-three persons on that date. (5) The list of sergeants (Ex. P8). The defendant's evidence about this list was confused and contradictory. It contained only the sergeants' numbers and he would not, as he testified, have written down the NUMBER of anyone he remembered. He would, on the contrary, have written their names, for example Tai Tau-so, but obviously not because he had been told to write down all the names previously mentioned by him. It was only on Ex. P7 that he would have written both the name and number of the sergeant against the number of a particualr photograph. (6) "Faithfully signed". The defendant attributes this word to the interpreter at the Mongkok trial. The transcript has been admitted by the defence and the defendant may not now say it contains such a gross inaccuracy. Besides, if the defendant had said he had "merely agreed and signed", there would have been no need for any embellishment by the interpreter. If, on the other hand, he did use this word, the inference is that the earlier statement is true. It is not clear from the passage on page 21 of the transcript to which of the three earlier state-ments he is referring, but, in any event, the defendant now says that all three are partly untrue. (7) Mr. Li's visit to the Hilton Hotel. The defendant admits that Mr. Li handed him his statement, but does not explain why he did not do so on the occasion of the first visit. This is what one would expect if the purpose of the visit, as alleged by the defendant, was to ensure that he knew what he was going to say in court. The defendant failed to mention that Mr. Li handed him the prized letter of indemnity. It was clear to me that the defendant was lying about the part played in this affair by Mr. Li. 71. For these reasons I find that it has been proved beyond a reasonable doubt that the evidence of the Crown witnesses is true and that that of the defendant is false. It follows from this that I find that the information contained in the statements - whether it be true or not - was provided by the defendant and not the ICAC. It also follows - although I doubt if this has any bearing on the issues before the court - that, while the defendant gave the information in the hope of gaining immunity from prosecution, the statements were not preceded by any promise to that effect by officers of the ICAC. There is no suggestion of duress. 72. So much for the facts. What of the law? 73. The defendant has received two undertakings from the ICAC. The oral undertaking given by Mr. Picken on 23rd February, 1977, prohibits his witness statement being used against him in any prosecution for corruption. The written undertaking dated 14th April, 1978, protects him from prosecution in respect of any corruption offence disclosed in the course of his testimony at the Mongkok trial. The present proceedings, although intimately concerned with corruption, do not amount to a prosecution for a corruption offence. Thus, the dictum of Hogan CJ in Attorney General v. Yuen Man-pan, (1) when dealing with the question of undertakings given to defendants by the police, applies equally to the present situation. He said at p.360,
That is quite clear. 74. Turning to the present charges, the Crown's position is that it is unable to prove that the defendant lied in court. I make no comment on that, except to say that that is the basis on which this case has proceeded. The Crown submits that, although it cannot prove perjury or that the defendant wilfully gave false information to the ICAC, it has proved that the defendant lied either to the court or to the ICAC and that, in the circumstances, either alternative amounts to an attempt to pervert the course of public justice. 75. I think there can be no doubt that, if the defendant committed perjury, ipso facto this amounts to such an attempt. Defence counsel has not sought to persuade me otherwise. In that event he intended to lie to the court, and did so lie, in order that his colleagues, who he knew to be guilty, might be acquitted. 76. There are therefore two issues: (1) Whether telling lies to the ICAC in the knowledge that the defendant's fellow police officers were thereby jeopardized and put at risk of prosecution for corruption, falls within the boundaries of this offence and (2) whether there can be a conviction where the Crown fails to prove which version is true and which is false. 77. On the authority of the recent decision of the Court of Appeal in England in R. v. Rowell(2) I would answer the first question in the affirmative. In that case the defendant made a detailed statement to the police, in which he alleged that a man he had met in a public house named Timms had demanded £1 from him at gun point when they were sitting in a bus at a bus depot. As a result, Timms was arrested; he had a long and violent record and was remanded in custody. A few days later the defendant, as a result of further questioning, retracted his statement. In consequence, Times was released. On the following day, the defendant asked a colleague to make a search of the bused. On doing so, the colleague found a toy pistol. Later, the defendant admitted to the police that he had placed the toy pistol in the bus to give credence to his original statement. The defendant was charged with attempting to pervert the course of public justice by making a false allegation that he had been robbed and threatened with a firearm by Timms. At his trial the defendant maintained, inter alia, that the indictment did not disclose a criminal offence. He was convicted and on appeal it was held that the indictment disclosed an offence known to law and distinct from the statutory offence of causing the wasteful employment of the police created by S.5(2) of the Criminal Law Act 1967, in that the defendant had not only wasted police time but had exposed another person to the risk of arrest. 78. The court firstly took the view that, in the light of R. v. Vreones(3), it was not arguable that a single-handed attempt to pervert the course of public justice was not a criminal offence known to the Law. It was argued that there had been no reported case where the making of false complaints to the police had been held to be such an offence; and that the matter was adequately covered by S.5(2) of the Criminal Law Act, 1967. The court held that the answer depended, not on the label given to the offence, but on the nature of the conduct which is alleged to amount to a criminal offence. After considering Vreones and R. v. Manly(4), the court approved and adopted certain passages from the judgments in Kerr & Hill(5) and R. v. Bailey(6) - cases which were not binding on the Court of Appeal. Reading the judgment of the court, Ormrod LJ concluded.......
79. Assuming that what the defendant told the ICAC was untrue, the main differences between the facts of the present case and those in Rowell and the other cases referred to are that the defendant was being questioned in custody when he first made the allegations and, in addition, the ICAC very likely had other evidence against the three officers named in these charges. In the passage in Kerr and Hill adopted by Ormrod LJ, Lord Justice - General Normand said, at p.75,
And in Bailey, Lord MacDermott CJ said, at p.25.....
This seems to me to cover the present situation. Whatever the quality of the other evidence in the possession of the ICAC, the defendant's information was deemed sufficiently cogent to merit his being called as a prosecution witness and to receive in return a letter of indemnity. This information therefore could only have deepened whatever suspicion, if any, already existed against these three men. And, unlike the victim in Rowell's case, they were actually charged. 80. If the defendant's information was untrue he certainly acted in a manner calculated to waste the time etc of the ICAC and no more need be said about this aspect of the matter. The offence is alleged to have taken place on a date unknown between 31st January 1977 - 21st June 1978; that is to say, the whole period between the defendant's arrest and his appearance in the witness box at the Mongkok trial. The indictment in Rowell's case was framed in similar terms. Time not being of the essence in this offence, I am satisfied that the Crown is entitled to frame the charges thus and that the offence may be proved by a series of acts or any one of them. (See Rowell page 138). 81. Mr. Lau has referred the court to a Hong Kong case, R. v. Yip Yuk-lun (7) which was a prosecution under Section 58A of the Police Ordinance, which with minor amendments has now been adopted as Section 29B of the Prevention of Bribery Ordinance, and which prohibits the giving of false information. The court drew a distinction between a person who volunteered information to the police and a suspect who was being questioned, and suggested the principal mischief at which the section was directed was the spontaneous tendering of misleading information. 82. I am not however dealing with a statutory prohibition. This is a common law offence and the English authorities have, in my judgment, described it in sufficiently wide terms to include a person who is being questioned by the authorities. The court in Yip Yuk-lun did not consider the position of a suspect who, while admitting his own guilt, at the same time implicates others with a view to obtaining immunity from prosecution. I believe counsel for the Crown is right when he submits that, for this reason, the defendant is in no different position to Rowell. 83. Mr. Lau also quoted from 'The Criminal Law of Scotland' by G.H. Gordon, 1967 Ed. who submits at p.1004 that, where a criminal accuses another to the police, the law is unsettled. But this was written before Rowell, which has now removed whatever uncertainty then existed. 84. Finally, Mr. Lau drew the court's attention to paras 99-100 of the Law Commission Working Paper No.62,1975. The Commission took the view - also before Rowell - that it should be an offence to give false information to the police, or to any public authority, with the intention of obstructing them in their duty to decide upon the institution or conduct of criminal proceedings. In the opinion of the Commission, an offender who lied to the police when questioned about an offence probably could be convicted of perverting the course of justice. 85. I pass now to the second and in my view more difficult question. My task is made more difficult by the apparent lack of authorities on the point. 86. If the defendant told lies to the ICAC, he either intended at the time to repeat those lies in court but at some stage changed his mind, or he never intended to repeat them in court. The defendant's evidence as to his state of mind is contradictory and does not assist me. 87. If he told the ICAC the truth, he either intended to repeat the allegations in court but changed his mind, perhaps at the last moment or maybe earlier, or he never intended to tell the court the truth once he had received his letter of indemnity. As in the first hypothesis, neither the evidence of the prosecution witnesses nor the transcript assist in revealing the defendant's state of mind. 88. There are of course situations in the criminal law where, depending on the view of the facts taken by the jury, a defendant may be convicted of one of several different offences. For example a man in possession of recently stolen property may, in the absence of a satisfactory explanation, be convicted of theft or handling, or perhaps robbery or burglary. It is a matter of inference. A jury may also in certain circumstances convict of an offence less serious than the one charged. But each offence is different. Conversely, on a charge of burglary, there may be doubt as to which of several doors or windows the culprit used in order to enter the building, but the prosecution need only prove that he did in fact enter with the requisite intent and that he did so as a trespasser. It sometimes also happens in a burglary prosecution that it is not possible to prove whether a burglar intended to steal or to commit rape. In these circumstances the charge is usually framed in the alternative and a conviction will follow if it is proved that the defendant must have had one or the other intent. In this case, depending on which version is true, one of two other offences is proved i.e. perjury or falsely giving information to the ICAC (subject to Yip Yuk-lun). But both are attempts to pervert the course of justice. 89. There is a recent case in England, which, although not on all fours with the present case, touches on the problem. This is R. v. Agbim(8) Agbim, a registered medical practitioner, was charged in six counts, each alleging the procuring of the execution of a valuable security by deception. The offences related to claims he had submitted to the Area Health Authority for financial aid in respect of ancillary staff whom he employed in his practice. He was convicted and on appeal complaint was made that the jury was not directed that they could not find that any one of the claim forms mentioned in the indictment was not a true or correct statement, unless they were all agreed that one, and the same one, of the many pieces of evidence led by the Crown proved falsity. In other words, it was said that the judge should have told the jury, "You must not find that any claim form is false unless you are all agreed that the same piece of evidence proves the falsity of that claim form." The Court of Appeal did not agree. Dismissing the appeal, it held that each juror had the responsibility of giving a true verdict according to the evidence. He did not have to take the same view about the details of the evidence as every other juror. What the jury all had to be agreed about, if the verdict was unanimous, was that the prosecution had proved the charge or charges. 90. This decision is heavily criticized in the commentary in the Criminal Law Review, where it is submitted that the prosecution must satisfy the jury beyond reasonable doubt and that they do not do so by satisfying each juror that a case is made out, unless it is the same case. 91. However, whichever aspect of any claim form the jurors believed to be false, only one offence was committed. But, unlike the present case, the falsity of each claim form was susceptible of proof. This is perhaps the first time that a court has been asked to deal with such a situation. The common place examples and illustrations set out above do not, I realize, go to the heart of the problem. It is, in the absence of authority, a question of applying general principles. 92. Counsel for the Crown submits that there is no interpretation of the defendant's actions that is consistent with his innocence. He argues that the Crown does not have to prove the precise manner in which the offence was committed, but that the court should look at the facts which have been proved beyond reasonable doubt, and go on to ask itself whether it can be inferred beyond reasonable doubt that the defendant is guilty of the charge. On the facts of this case, he submits that there is no other inference reasonably open to the court. 93. One might argue that the Crown the should be obliged to charge the defendant either with perjury, or with giving false information and if, in the event, it is unable to prove either offence, then that is the defendant's good fortune. But it is the prerogative of the Attorney General to select the offence with which a citizen should be charged and, in this instance, that offence is attempting to pervert the course of public justice. I agree with counsel for the Crown that all the court is called upon to do is to determine, on the proved facts, whether the defendant is guilty of that offence. This seems to me to be a matter of logic and commonsense. It is consistent with the decision in Agbim and is an approach which carries with it no prejudice against the person accused. The defendant was well aware of the case he had to meet. Therefore, in the absence of authority to the contrary, I propose to determine the case on this basis. It follows that I find the defendant guilty, on all three charges, of attempting to pervert the course of public justice and I convict him accordingly.
(1) 1969 HKLR 355 (2) 1978 WLR 132 (3) 1891 1 QB 300 (4) 1933 1 KB 529 (5) 1930 JC 71 (6) 1956 NI (7) 1961 HKLR 268 (8) 1979 CLR 171 |
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