HKSAR v. Cheng Sung Tak and Others

CACC000269/1997

IN THE COURT OF APPEAL

1997, No.269
(Criminal)

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Coram: Power, V.-P., Mayo, J.A. & Stuart-Moore J.

Date of Hearing: 21 November 1997

Date of Judgment: 21 November 1997

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. These applicants were convicted on 9th May 1997 following a trial before Deputy Judge Duggan in the District Court. The 1st and 2nd Applicants each faced one charge of conspiracy, whereas the 3rd Applicant faced two. The Statement of Offence in all the charges was the same, namely conspiracy to offer advantages contrary to Common Law and s. 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201.

2. The Particulars of the charge against the 1st Applicant were that he, being the operator of Kam Lung Siu Chuk, between the 1st day of October 1992 and the 30th day of September 1994, in Hong Kong, conspired together with Ha Sau-wing and Tang Yin-sum, without lawful authority or reasonable excuse, to offer advantages, namely gifts, fees, rewards or commissions of sums of money to Yuen Kam-bor and other persons who were public servants, namely serving police officers with the Royal Hong Kong Police Force, as an inducement to or reward for or otherwise on account of the said Yuen Kam-bor and such other police officers performing acts in their capacities as public servants, namely providing prior warning of impending police vice raids on the said Kam Lung Siu Chuk.

3. The Particulars of the charge against the 2nd Applicant were identical save that he was alleged to be the operator of Yan Wo Hotel.

4. The Particulars of the charge against the 3rd Applicant, who was D5 at trial, closely resembled the other charges. In charge 5, one of her co-conspirators was named as Chiu Wai-ming. She was alleged to be the operator of Ka Wo Villa between 1st December 1992 and 30th September 1994. Charge 6 only differed from charges 1 and 2 in that she was alleged additionally to have conspired, as operator of Ka Wo Villa, with Chiu Yuet-wa of Yee Lau C7 Villa between 1st March 1994 and 30th September 1994.

5. Leave is sought by all of the Applicants to appeal against these convictions and, in the case of the 3rd Applicant, she seeks leave also to appeal against her sentence. All three were, in fact, sentenced to two years' imprisonment on each of the charges and, in the case of the 3rd Applicant, she received concurrent sentences.

6. The prosecution's allegation was that, while these Applicants were the operators of the vice establishments at the addresses which are mentioned in the charges, they separately entered into corrupt agreements with other vice operators to offer bribes to police officers, most notable amongst whom was Sergeant Yuen Kam-bor. The purpose of the bribes was to reward Yuen and others for providing advance information about impending raids led by Yuen on the respective vice establishments.

7. All three grounds, on which leave is sought by the 1st and 2nd Applicants to appeal, relate to the evidence given by Ha Sau-wing, PW2 in the trial.

8. The first ground of appeal reads:

"In order safely to convict the 1st and 2nd Applicants, it was necessary for the learned trial judge to be satisfied beyond reasonable doubt that Ha Sau-wing, PW2, was telling the truth when he alleged that he had reached an agreement with the Applicants that the money which they were paying him was being passed on to the police so that advance warnings would be given of licence checks and vice raids. The judge did not address this central issue at all in his Reasons for Verdict:

(a) In that part of the Reasons for Verdict which deals with the prosecution case, no mention is made of any conversations between PW2 and either of the applicants.

(b) In that part of the Reasons for Verdict which deals with the evidence of PW2 no mention is made of any conversations between PW2 and the applicants."

9. In order to understand what is being submitted by Mr. Plowman on this ground, it is necessary firstly to grasp the nature of the prosecution's case against the 1st and 2nd Applicants. They were, it was alleged, paying bribes to police through PW2, who was another vice operator, in exchange for advance warnings of police raids.

10. Neither of the Applicants gave evidence so that the nature of the defence only emerged from the cross-examination of Mr. McNamara in the lower court. He alleged that the money being paid to PW2 was for "protection" and was not related to bribes to be paid to the police. There was, in other words, no dispute that money was paid. The disagreement lay in the purpose behind the payments. If there was any doubt about the nature of the central agreement in the mind of the judge, the conspiracy charge would necessarily fail.

11. The evidence presented in court from PW1, Yuen Kam-bor, and PW3, Tang Yin-sum, who was another vice operator, was to the effect that the payments were made in exchange for advance warnings of raids on the establishments operated by the 1st and 2nd Applicants.

12. PW2 acted as a go-between and only he could give direct evidence of the nature of the agreement. The judge set the background to the conspiracy in his Reasons for Verdict in this way:

"PW3 raised with PW1 the possibility of receiving payments from operators of establishments in return for prior warnings from police about impending vice raids. PW1 and PW3 met with Tau Fu Wing to discuss this. It appeared that such scheme had operated in the past because Tau Fu Wing produced a list of operators who had paid, and the amounts. PW1 said he would consider.

Sometime later, PW2 approached PW1 on the same topic ......"

13. PW2 gave evidence that he collected money from the 1st and 2nd Applicants' vice establishments. He said he discussed the purpose with both of them and in a passage at p.81 of the transcript, the evidence given was this:

"A.	I told them that PW1 was going to work in Special Duties Squad.
Q.	Yes.
A.	May be we ourselves give money to him and then we -- then do not need to go through the secret
	people. They agree that I should go to talk to PW1 and only under such circumstances did I go to
	talk to PW1.
Q.	Was there any discussion with each of these four people about what the money was for?
A.	There was discussion.
Q.	Well, yes, well, tell us about that.
A.	That we could get information of a licence check and information of any agent provocateur.
Q.	You had that discussion with each of these four people you've identified, D1, D2, D3 and D4?
A.	Yes.
Q.	Was their reaction all the same or did they have different reactions, these four people?
A.	The first one and the second one said okay, the third one said that he would follow me to do
	whatever I do."

14. Later PW2 specifically denied the suggestion put to him that these Applicants were unaware of the purpose that lay behind the payments.

15. It is abundantly plain that the issue was recognized and understood by the trial judge. He said in his Reasons for Verdict:

"It was the defence case and that the prosecution witnesses were not worthy of belief. Any payments made by any defendant were for protection fees and not advantages to police officers as alleged."

16. A little later on in the Reasons, the judge stated that the prosecution witnesses had appeared to give truthful evidence and that, now that they had served their sentences, they had no apparent axe to grind or reason to give false evidence. The judge went on to say:

"I accept that PW2 was a critical witness as far as the Crown's case was concerned for he was the go-between, between the police and the operators. He identified each of the defendants in turn and his dealings with each and the amounts each paid. I consider also that defence contention made through cross-examination that PW2 was collecting such money as protection fee and not as part of a conspiracy with police. Having examined the evidence, I found that to be without any ring of truth and I rejected it."

17. A little later, again, the judge said:

"I find there is a common thread running through the evidence of the prosecution witnesses such that at the end of the day, I conclude that there was a conspiracy of the nature alleged and that PW2 is truthful in describing the role of each of the defendants in that conspiracy. Put another way, the totality of the evidence of the prosecution witnesses compels belief that there was such a conspiracy as has been described to the court."

18. The evidence on this issue had been all one way and we are satisfied that ground 1 must fail.

19. In ground 2, Mr. Plowman submits that:

"For the judge properly to consider the central issue, it was incumbent upon him specifically to deal with PW2's statement of 11th July 1995 in which he said, he 'probably asked the Applicants of it', i.e. collecting money from the villas and passing it on to the police, because if that statement was or may have been true then the case was not proved beyond reasonable doubt against the Applicants. This was not referred to at all in the Reasons for Verdict."

20. Nothing could be clearer from the transcript of PW2's evidence that he had made several statements to the ICAC which contained lies and averments which were inconsistent with the evidence he gave in court. He was very properly, skilfully and extensively cross-examined on this subject in order to support the contention that PW2 was a witness on whom the judge should not rely.

21. The passage to which reference is made in the Ground of Appeal was one of several important passages taken from earlier statements of the witness where serious conflict with the evidence in court could be demonstrated. It is convenient, therefore, to take ground 3 of the appeal at this stage because the point taken is very much the same. It reads:

"The case against the Applicants stood or fell upon the evidence of PW2. It was therefore incumbent upon the judge carefully to assess all his evidence. The judge did not properly consider the fact and/or effect of:

(a)	The discrepancies between the evidence of PW2 and the other main prosecution witnesses.
(b)	The admitted lies told by PW2 in his many statements to ICAC.
(c)	The contradictory evidence in respect of the 2nd Applicant given by PW2 in this trial and at an
	earlier aborted trial."

22. Mr. Plowman has provided us with particulars to illustrate this ground. The conflicts in the evidence of PW2 were serious, none more so perhaps, than that which is raised in ground 2 in this appeal. We have looked, therefore, to see how the trial judge dealt with the lies that PW2 admitted that he had told.

23. The learned judge gave himself this very stringent direction:

"Seldom need a court approach evidence with such great care as is required in the present case. Each witness had an interest in minimising blame and shifting blame. Most clearly, this was exemplified in the evidence of PWs 1 to 3 and their statements to ICAC. Each made many statements. The truth, indeed, became a slippery commodity as each tried to protect himself and others. The result is that I have warned myself in the gravest terms about the care needed before accepting each and any of these witnesses as truthful."

24. No direction could have been more stringent. The judge went on to say:

"I found no support for any allegation that any of the witnesses, but particularly PWs 1 to 3, got together to plan their evidence. Each gave evidence about his own respective role in the scheme. It was clear that certain aspects of such role was not known to the others. For example, PW1 did not know precisely the dealings between PW2 and the contributories. There were some discrepancies between the evidence of the three main witnesses, PWs 1 to 3."

25. Later, after remarking that PW2 was a "critical" witness, in a passage that I read out earlier, the judge said:

"I have considered each of the criticisms levelled at the prosecution witnesses by the defence and, in particular, against PW2. Some criticism is valid. For example, admitted lies in many statements to ICAC. Some I find not so clear cut. For example, that PW2 gave contradictory evidence at an earlier aborted hearing against these defendants and his evidence about the earlier relationship between himself and PW3."

26. Whilst we have given close attention to the submissions for the first two Applicants, it is apparent that the judge was fully conversant with the discrepancies in the evidence of the first three witnesses, and with the lies and contradictions, in particular told by PW2, in statements otherwise than in the course of the trial that led to these convictions.

27. The duties of a District Court judge were examined in the case of R v Cheung Yuen-hing, [1988]1 HKLR 160 where a quotation, at page 162, from Chan King-man and others v R, [1980] HKLR 105 was recited:

".... it must be remembered that the District Judge has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence or the arguments of counsel on the evidence or the whole of the workings of his mind in arriving at his conclusion."

28. That is not to minimize the gravity of the contradictions, inconsistencies or lies told by PW2. We are, however, satisfied that there is no merit in the points which are raised in these last two grounds and they must, therefore, fail.

29. The applications of the first two Applicants are dismissed.

30. So far as the 3rd Applicant is concerned, her Grounds of Appeal against conviction and sentence are that she did not bribe a police officer and should have been found not guilty and she thinks that the sentence is too long in view of her age and poor health.

31. The trial judge examined her case with the same care that he had given to the others being tried by him, and the Reasons for Verdict showed that he applied his mind to each of the ingredients in the charges against her. On the question of sentence, the sentence that she received was a perfectly proper one in the light of her convictions.

32. There is no merit in her applications and they are also dismissed.

Representation:

Mr. G. Di Fazio (D.P.P.) for the Respondent.

Mr. Gary Plowman, S.C. & Mr. John McNamara instructed by Messrs. Wong & Partners for 1st and 2nd Applicants.

3rd Applicant in person.