The Queen v. Cecil James Matthew Cunningham and Another

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 144 OF 1975

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Coram: A. Garcia, D.J. in Court.

Date of Judgment: 5 January, 1976.

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JUDGMENT

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1. The two Defendants, Cecil James Matthew Cunningham and Benno Thompson are jointly charged with the offences of Conspiracy, contrary to Common Law, in that they with other persons named in the charge and others unknown on divers dates between the months of July 1971 and February 1974, both dates inclusive, conspired together to obstruct the course of public justice in that they, Cecil James Matthew Cunningham, Benno Thompson, Detective Station Sergeants Chiu Tak, Ma Hak Shing and Lau Cheong Wah, should act contrary to their public duty as police officers in relation to their administration of the law.

2. The first Defendant is additionally charged with two other offences, one for making a false statutory declaration contrary to section 36(a) of the Crimes Ordinance, Cap. 200, and the other for neglecting or failing to comply with a section 14(1)(b) notice, contrary to section 14(4) of the Prevention of Bribery Ordinance, Cap. 201, whilst the second Defendant is charged with one additional offence of neglecting or failing to comply with a section 14(1)(b) notice, contrary to section 14(4) of the said Prevention of Bribery Ordinance.

3. The first Defendant is a Superintendent of the Royal Hong Kong Police Force, and it is not inappropriate to set out some details of his career in the Force at this stage, such details having been obtained from the evidence of Chief Superintendent Eric Blackburn, the Assistant Director of Personnel, who has access to and custody of records of both Defendants.

4. The first Defendant was a police constable in the City of Glasgow Police Force from 20th January 1948 to 20th June 1951, and from 26th June 1951 to 11th January 1952, he was a constable in the Manchester City Police Force. He left the latter Force and joined the Royal Hong Kong Police Force as a probationary sub-Inspector as from 11th January 1952, and was promoted to Senior Inspector on 27th April 1964. Subsequent promotions were from Senior Inspector to Assistant Superintendent of Police on 21st August 1966 and to his present rank of Superintendent of Police on 21st August 1969.

5. During the relevant period of service in the Police Force as a Superintendent, he was posted to Bay View Division as Divisional Superintendent from 7th July 1971 to 11th February 1974, and from 4th September 1974 to 6th March 1975, he was Staff Officer (Operations), Hong Kong Island. Between 11th February 1974 and 4th September 1974, he was on vacation leave.

6. The second Defendant is also a Superintendent of Police in the Royal Hong Kong Police Force and the following details of his career emerge from the evidence of Chief Superintendent Blackburn. The second Defendant joined the Royal Hong Kong Police Force as a probationary sub-Inspector on 14th June, 1958, and was subsequently promoted to Senior Inspector on 18th January 1967, then to Assistant Superintendent of Police on the 11th June 1971 and advanced to Superintendent of Police on the same date. During the relevant period he was Assistant Divisional Superintendent in the Bay View Division from 11th June 1971 to 10th December 1972. He went on vacation leave from the latter date till 18th June 1973, when he was then posted to Kowloon as a Superintendent of Police in the Criminal Investigation Department, Kowloon Headquarters. The second Defendant earned two commendations during his police career to date, once in 1966 and the other in 1967.

7. Among the other persons mentioned in the conspiracy charge, it is also I think relevant to set out some details of the careers of Station Sergeants Chiu Tak, Ma Hak Shing and Lau Cheong Wah in the Force.

8. Chiu Tak joined the Royal Hong Kong Police Force on 5th January 1950 as a police constable and on 1st March 1952 was posted to the Criminal Investigation Department as a detective constable. He was promoted to Corporal on 1st March 1958, then to Sergeant on 1st November 1967, and his last promotion was to Detective Station Sergeant on 1st June 1973, which latter rank he retained until his retirement from the Force on 27th October 1973. As far as is material to the present charge of conspiracy, he was posted to the Criminal Investigation Department of Bay View Division on 19th July 1971, where he remained until 1st June 1972, when he was posted to the Criminal Investigation Department of Mongkok Division.

9. Ma Hak Shing joined the Force as a police constable on 1st April 1949 and was posted to the Criminal Investigation Department as a detective constable on 20th July 1951. He was subsequently promoted to Corporal on 1st September 1961, then to Sergeant on 1st January 1967, and finally to Station Sergeant on 13th August 1970. For the purposes of the conspiracy charge against the two Defendants, Ma Hak Shing was posted to the Criminal Investigation Department of Kowloon City Division as Detective Station Sergeant on 11th October 1971, and on 1st June 1972, he went to the Criminal Investigation Department of Bay View Division, also as Detective Station Sergeant, in which post he remained until he retired from the Police Force on 6th July 1973. He went on pre-retirement vacation leave from 25th February 1973 till 5th July 1973 although he retained his rank until his retirement on the 6th July 1973.

10. Neither Chiu Tak nor Ma Hak Shing are in custody nor have they given any evidence in this case.

11. Lau Cheong Wah first joined the Force on 13th August 1951 as a police constable and was posted to the Criminal Investigation Department as a detective constable on 11th January 1958. On 1st May 1964 he was promoted to Corporal, thence to Sergeant on 31st May 1971, and finally to Detective Station Sergeant on 27th November 1973. For the purposes of the conspiracy charge against the two Defendants, Lau Cheong Wah is stated as having been posted to Bay View Division as a Corporal on 15th June 1970, promoted to Sergeant while he was in that Division, and then on 27th November 1972 he was posted to the Criminal Investigation Department of Wanchai Division. He remained in that Division until 18th March 1974 when he was posted back to Bay View Division once more, but on this occasion as Detective Station Sergeant. Lau Cheong Wah was dismissed from the Force on 27th February 1975, following his conviction for an offence contrary to section 10(1)(b) of the Prevention of Bribery Ordinance, upon which conviction he was sentenced to a term of one year's imprisonment.

12. The present charge of conspiracy against the two Defendants really begins with Lau Cheong Wah, as shortly after his arrest in February 1975, he disclosed certain information to Mr. Norman whiteley, the Assistant Director of Operations of the Independent Commission Against Corruption. Before Lau pleaded guilty to the charge upon which he was convicted and sentenced on the 27th day of February 1975, he was granted an amnesty in the terms of a letter dated the same day and addressed by the Attorney General to Lau's solicitors, some of which terms are as follows:

13. I assume that such an amnesty was granted to Lau in the interests of public policy and although expressed in wide terms is not as wide as those granted to others, the amnesty to Lau being limited to past offences committed under the Prevention of Bribery Ordinance or the Prevention of Corruption Ordinance.

14. Lau Cheong Wah gave three tape recorded interviews, each of one hour's duration, to Mr. Whiteley, and in one of those interviews supplied certain information which led to inquiries being commenced into the activities of the first Defendant while he was Divisional Superintendent of Bay View Division. These inquiries culminated in the three present charges being preferred against him. Further interviews were conducted by investigation officers of the Independent Commission Against Corruption with Lau, while the latter was serving his sentence of imprisonment in Siu Lam Prison and these latter interviews, which were not tape recorded, led to inquiries being launched into the activities of the second Defendant when he was Assistant Divisional Superintendent of Bay View Division.

15. Lau's evidence in Court with regard to the present proceedings, which he says, is substantially the same as the disclosures which he made in respect of the first Defendant and which are recorded on tape is as follows:

"I have made contact with Mr. Cunningham before. I contacted him on the very day he was first transferred there. I went into his office. I went into his office and identified myself. We shook hands - I expressed my welcome to him because he was transferred and became our officer-in-charge. He asked me to sit and after I sat down I had a conversation with him. I first talked about the crimes which had occurred in our Division. I told him that there were some illegal banks set up in our Division. He asked me what kind of banks. I told him we had gambling stalls and opium stalls. I asked him whether he would be interested to get some extra income. He asked me about how much I could give him. I told him that we from the C.I.D. could pay him $40,000. I also told him that the condition for such payment was that he would not carry out those raids on those stalls, but in the event he has to carry out raids he had to give me prior notice and I could arrange a false stall to be raided by him. Later he expressed he was satisfied with the amount I offered. He told me he had knowledge that some money was paid to him by members of that Uniformed Branch but he said he did not require those monthly payments and he wanted to have this money transferred elsewhere. He told me to see him again the next day in his office. He told me to sit - then he wrote on a sheet of paper with a pencil and passed the slip of paper to me and asked me to remit money every month to the address on the paper. I remember what was written on piece of paper. In the first line was "C.J.M. Cunningham". I can't remember the other details on the paper but the last line was either "Manchester" or "Manchester Field". About the middle of the month my superior officer, Chiu Tak, was transferred to this place and I related the circumstances to Chiu Tak. I also brought Chiu Tak to see Mr. Cunningham. During the conversation Mr. Cunningham expressed that he would agree to let Chiu Tak to hand the future monies to him - he was a suitable person for doing so and so I handed piece of paper which Mr. Cunningham gave me to Chiu Tak for him to remit money. After that when Chiu Tak had remitted some money, he asked me to inform Mr. Cunningham he had done so but I do not know where the money was sent to. The $40,000 which was given to Mr. Cunningham - $20,000 of which was given to him by myself from Shaukiwan and it was passed to him through Chiu Tak. This arrangement carried on for several months until Chiu Tak was transferred and his post was taken over by Ma Hak Shing who in turn passed the money to Mr. Cunningham until 27th November 1972 when I was promoted to Detective Station Sergeant and was transferred from Shaukiwan to wanchai Police Station. It was no longer necessary for me to pay Mr. Cunningham through Ma Hak Shing."

16. As stated above, Lau made further disclosures to Mr. Whiteley and other officers, including Mr. Thomas Roy Guy, a senior investigating officer of the Independent Commission Against Corruption, and Lau's evidence regarding these further revelations in respect of the second Defendant is as follows:

"Mr. Thompson took over as Assistant Divisional Superintendent in June 1971. I had contact with Mr. Thompson. When Mr. Thompson was first transferred there I went to see him directly. I went to speak with him as a representative from Shaukiwan. I spoke to him at his office in Bay View Police Station. I asked him whether he was interested in getting some extra income. He asked me "How much?" I then explained circumstances of Shaukiwan saying that the places where I could make money were not many and therefore the C.I.D. of Shaukiwan could only offer to pay him $10,000 per month. He accepted but the condition I imposed was the same, namely he should not raid the stalls which were under my protection. At the end of June 1971, I put twenty $500 notes into an envelope and I gave it to Mr. Thompson in his office telling him it was the income for that month. Later when Chiu Tak was transferred to our Division I handed this responsibility to him and I also brought him to see Mr. Thompson. Mr. Thompson agreed that it was better for Chiu Tak alone to carry on this arrangement than to have two persons. The twenty $500 notes were monies collected from gambling stalls and opium stalls".

17. As a result of these disclosures the first Defendant's home was searched by investigating officers of the Independent Commission Against Corruption on 24th February 1975, including Mr. Andrew Stewart Natress, and amongst one of the items seized is a visiting card of Wong Tak Wing, (Ex. P86) of which reference will be made later in this judgment. Following the search the first Defendant was interviewed both by Mr. Barrymore Clarke and Mr. Thomas Roy Guy at the offices of the Independent Commission Against Corruption in Hutchinson House and a notice under section 14(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, was served on him (Ex. P1). A reply in the form of a statutory declaration with a covering confidential memorandum was addressed by the first Defendant to Mr. J.V. Prendergast, Director of Operations, of the Independent Commission Against Corruption, on 12th March 1975 (Ex. P2), and on the day following the date shown on the statutory declaration, the first Defendant was again interviewed at the offices of the Independent Commission Against Corruption. This interview is described in the evidence of Mr. Guy, in part as follows:

"You(1st Defendant) will recollect I served you with a notice asking you to declare monies sent out of the Colony by you or on your behalf during a specified period. A reply to that notice has now been received and I take it you dictated that reply or at least are responsible for its contents". Mr. Cunningham did not reply but did nod his head. I said: "I presume you have been told to say nothing and you are agreeing with what I am saying. Again Mr. Cunningham did not speak but nodded his head. I said : "In your reply you mention sending monies to your wife's bank in Leeds. I don't want you to concern yourself with that. Towards the end there is a paragraph which says that you are not aware of any other money sent out on your behalf. I want you to think about this. Is this true?" Mr. Cunningham did not reply".

This interview with Mr. Guy went on with the first Defendant not replying to certain questions but nodding his head to others. In my view, the circumstances which I have recorded and the covering confidential memorandum indicate clearly that the first Defendant has acknowledged that the statutory declaration dated the 12th March 1975 was made by him.

18. After the abovementioned interview a further notice under section 14(1)(b) of the Prevention of Bribery Ordinance, was served on the first Defendant on 2nd May 1975 in the offices of the Independent Commission Against Corruption, which was acknowledged by him (Ex. P4) and a reply to that notice in the form of a statutory declaration dated 29th May 1975 was received by Mr. Guy. Following further inquiries into the first Defendant's bank accounts in Hong Kong and his bankers in the United Kingdom, he was arrested and charged with the present offences on 19th September 1975.

19. Following the disclosures made by Lau Cheong Wah with regard to the second Defendant, the latter was interviewed by Mr. Barrymore Clarke, of the I.C.A.C. in the offices of the 2nd Defendant's superior officer at Kowloon Police Headquarters, with Mr. Nattress present. The 2nd Defendant was then detained, and his office and home searched and he was later admitted to bail. Following inquiries made into the 2nd Defendant's bank accounts in Hong Kong, and of his bankers in the United Kingdom, he was interviewed at his home by Mr. Guy, and a notice under section 14(1)(b) of the Prevention of Bribery Ordinance was served on him. (Ex. P8). A reply in the form of a statutory declaration was received by Mr. Guy directly from the 2nd Defendant's hand (Ex. P9) on 19th September 1975. The 2nd Defendant was arrested and eventually charged with the present two offences.

20. The gist of the conspiracy as alleged by the Crown is that the two Defendants and the other 3 named police officers would not perform their duties as police officers against certain vice establishments upon the payment to them of certain large sums of money every month whilst the two Defendants were in service as Divisional Superintendent and Assistant Divisional Superintendent of Bay View Division respectively.

21. The crime of conspiracy has been defined by Willes, J. on behalf of all the judges in the case of Mulcahy v. R. (1868) L.R. 3 H.L. 306, H.L. and accepted by the House of Lords in that and other cases, as follows:

"A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable, when two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. And so far as proof goes conspiracy as Grose J. said in R. v. Brissac, is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. The number and compact give weight, and cause danger, and this is more especially the case in a conspiracy like that charged in this indictment".

22. The Crown has sought to prove that the two Defendants have gone beyond the mere conspiratorial agreement and here in this case, it is not merely a matter of inference, as far as that agreement is concerned but of direct evidence, if what Lau Cheong Wah says in his evidence is accepted as being true.

23. It seems to me that on the assumption that that evidence is true, of the persons engaged in the conspiracy (from the evidence of other witnesses adduced by the Crown), some consisted of owners or operators of vice establishments themselves, then the three Detective Station Sergeants named in the conspiracy charge, that is, Chiu Tak, Ma Hak Shing and Lau Cheong Wah and their own employees, and finally, the two Defendants. It has been submitted on hehalf of the two Defendants that even if all the evidence adduced by the Crown were accepted as being true, nevertheless the two Defendants ought to be acquitted because the Crown has proved, from the evidence adduced, not only one conspiracy as charged in this indictment but three or more conspiracies because it is submitted each of the three Station Sergeants carried on their own separate enterprises, and that each of them, whenever they took up the post of Detective Station Sergeant in Bay View Division, each conspired separately with the two Defendants. I would agree with this submission if the Detective Station Sergeants named did not obtain their corrupt funds from those persons who are described as owners and operators of vice establishments collectively, but that each of them individually "protected" a separate group of owners or operators, but the evidence of the "collectors" of corrupt funds that is, PW5, 7, 8, 9 and 13, indicate otherwise. I would also add that that submission would probably receive some consideration if these two Defendants did not come into the picture at all. In the conspiracy which has been revealed by the evidence, the three Detective Station Sergeants, while they were in Bay View Division were acting as middlemen in channelling part of the corrupt funds collected from certain owners and operators of vice establishments, to the two Defendants. It would seem to me that the owners and operators of vice establishments were also co-conspirators in the sense that they were buying protection from certain police officers in the Bay View Division, and although their identities may change in the course of time and the number of establishments becomes reduced or increased from time to time, nonetheless some of the payments they made to the three named Detective Station Sergeants, found their way into the bank accounts of the two Defendants.

24. In R. v. Hammersley and others (1958) 42 Crim. App. R. 207, the particulars in the indictment against those Defendants were similar to those set out in the conspiracy charge against the two Defendants here. I would like to quote some passages from the judgment of Goddard, L.C.J. in that case as they are applicable to the arguments and submissions made on behalf of the two Defendants in respect of the conspiracy charge. The passages are as follows:

"The particulars given are those I have just read out, that the Defendants conspired to obstruct the course of public justice in that the three named Defendants should act contrary to their public duty as police officers in relation to the administration of the law. It is said that there was nothing to justify the learned judge in allowing that indictment to be preferred because it was a different conspiracy from that on which the justices had committed. The fallacy which in our opinion, underlines the argument which has been addressed to us is that it does not distinguish between the conspiracy and the overt acts which may be given as evidence of the conspiracy. The law is conveniently and I think accurately stated in Professor Kenny's book on the Criminal Law (1952) 17th Edition at page 395 by Mr. Cecil Turner, in which the learned author states it in this way: "For it rarely happens that the actual fact of the conspiring can be proved by direct evidence, since such agreements are usually entered into both swiftly and secretly.... It is said that these three men (Hammersley, Heath and Ridge) over a long period and in a great number of cases were corruptly taking rewards from people either to hinder prosecutions or to give what is generally called a "tip off" when prosecutions were being contemplated or might be contemplated. The real conspiracy alleged here is this, that these three Defendants agreed among themselves that they would indulge in the course of conduct, no doubt for the purpose of enriching themselves, as it did, and, being three people in the Police Force who ought to be detecting crimes and bringing them before the courts, were detecting crimes and not bringing them before the courts. If these men had been acting honestly, in the case of Heath who seems to have been involved in more cases, his duty would have been to report it to Hammersley and Hammersley to Ridge, and those cases should have been brought before justices with a view to the offenders being tried by the justices or committed for trial. Instead of that, the prosecution showed that over a long period those men, sometimes alone, sometimes together, were interviewing persons who were charged with offences and taking money from them when other police forces were inquiring or certain persons were in their district wanting to interview them and telling those police officers that the persons were not there. In other words, they were agreeing that they should go their own way, and that they should defeat public justice by doing these acts and not bringing these persons before the courts, but for their own benefit compounding those offences. That is the conspiracy: "we will not do our duty as we ought to do and therefore we will not report to our superior officers, but we will keep those things to ourselves," and whether they shared the results of what they got afterwards does not matter".... They show one conspiracy, the one conspiracy being that these three Defendants, all of whom were in the Detective Department of the Brighton Police, should act in this way for their own benefit instead of bringing the cases to justice. Of course, that might involve that in so doing they would have to enter into illegal agreements with persons outside".

25. Again from the same judgment:

"But if all the persons who ought to know about it (criminal activities in running illegal clubs) were in league one with the other that there should not be prosecutions provided bribes were given to them, then, of course, public justice was obstructed in this was which I have just described."

26. The analogous case occurs in respect of the evidence adduced by the Crown in respect of the conpsiracy charge here and I would reiterate what I have said earlier that there is only one conspiracy and not three or more as submitted on hehalf of the two Defendants.

27. What then is the evidence adduced by the Crown in support of this charge of conspiracy against the two Defendants?

28. Dealing first of all with the evidence of Lau Cheong Wah, portions of which I have quoted in extenso, it has been submitted on many grounds that his evidence should not be accepted nor even admitted because he is unreliable, has been convicted on his own admission as being a corrupt police officer, is a perjurer, has deceived the Court which convicted him in order to receive a lighter sentence, that he is under great pressure because of the terms of the amnesty to give favourable evidence on behalf of the Crown, and most important of all he had "framed" a prisoner who is now serving a sentence of twenty years' imprisonment for murder. In any event Lau Cheong Wah is an accomplice and I have first of all considered the danger of accepting his evidence without corroboration and have warned myself of that danger.

29. Lau Cheong Wah was cross-examined at great length and my view is that he has answered some of the allegations quite amply and with great candour. It is noted that some of the allegations made by the Defence have not been supported at all, and were rightly denied by Lau.

30. I would however like to deal with the allegation that Lau framed a prisoner by the name of Leung Wang who was convicted of murder. Leung Wang appealed against his conviction to the Full Court which took the unusual step of visiting the locus in quo and his appeal was subsequently dismissed. Leung's case was eventually referred to the Governor in Council who commuted his sentence to that of 20 years' imprisonment. Subsequent inquiries were held into allegations made against Lau Cheong Wah in respect of his conduct in that case but it appears that no action was taken against him

31. I have considered the evidence given by Lau in respect of the activities of the two Defendants now in Court, in the light of these allegations. I have observed his demeanour while giving evidence both in chief and in particular when he was cross-examined extensively and I have come to the conclusion that his evidence which I have quoted in extense regarding the two Defendants is true, and I accordingly accept it.

32. Further investigations were conducted by officers of the Independent Commission Against Corruption into the operations of the conspiracy in which the two Defendants participated. Several witnesses were called to give evidence in respect of the collection of so-called "squeeze money" from various vice establishments in the North Point, Causeway Bay and Shaukiwan Districts, which districts are under the police jurisdiction of the Bay View Division.

33. The first account of the operations of the conspiratorial ring engaged in the collection of squeeze money from a selected number of illegal gambling establishments and drug divans came from Chan Cheung Wing, an employee who worked for a year as a collector for a person called Yuen Yin or Yin Tsai, who has not been located. Yuen Yin was in turn in the employ of Station Sergeant Chiu Tak. The area of Chan Cheung Wing's activities centered round the Causeway Bay and Shaukiwan Districts and he began his work on 1st July 1971 as a result of a meeting and discussion with Yuen Yin, and his estimate of the amount of money collected from various vice establishments of between $320,000 to $340,000 per month indicates that these operations were conducted on a very large scale indeed. The money so collected, according to Chan Cheung Wing, was banked with the North Point Branch of the Hang Seng Bank Ltd., after such collections were first handed over to Yuen Yin at a flat in Hung Fook Building, Block H, 7th floor, Kam Ping Street, which appears from the evidence of other "collectors", served as both the headquarters where collections were turned in, and as a communication centre where information of certain projected anti-vice raids were relayed either by telephone or by the collectors themselves to those establishments who had paid "squeeze money". This witness further states that he would pass the information to illegal gambling establishments whenever the Superintendent of the Division would carry out inspections of the Districts under his jurisdiction so that evasive action could be taken, and also information when general squads would come and carry out anti-vice raids. When Station Sergeant Chiu Tak was posted out of the Division on 31st May 1972. Chan Cheung Wing quit his job and his collection of squeeze money from the vice establishments was taken over by the successor of Chiu Tak to the post of Station Sergeant in Bay View Division, that is, Ma Hak Shing. Ma Hak Shing brought his own employees along with him to the Division for the purpose of collecting squeeze money, among whom were Lau Wai, alias Tai Kau Lau, Luk Hoi Tung, alias Luk Shuk or Uncle Luk, and Chiu Chi Hung alias Hung Tsai. Before Lau Wai and Chiu Chi Hung entered upon their duties as collectors of squeeze money from the vice establishments, Chan Cheung Wing brought them round to each of the establishments from which money was collected, although it appears that the list of vise establishments had been enlarged during the time when Ma Hak Shing took over duty as Detective Station Sergeant in Bay View Division. Although Chan Cheung Wing says that the successors of Chiu Tak took over the same headquarters at Hung Fook Building, there is some discrepancy between the Block letter of the flat mentioned by him and by Chiu Chi Hung and Lau Wai, both of which latter state that the address of the headquarters as "Block S, 7th floor", and not "Block H, 7th floor." I would however accept the evidence of these persons that the successors of Chiu Tak took over the same flat as their headquarters and designate it as "Block S, 7th floor, Hung Fook Building, Kam Ping Street."

34. When Ma Hak Shing was posted as Detective Station Sergeant to Bay View Division he not only brought along with him the abovenamed Lau Wai, Luk Hoi Tung and Chiu Chi Hung, but another employee called Cheng Cheuk Fan. This latter person previously worked for Ma Hak Shing since 1967, when the latter was a Detective Station Sergeant in Kowloon City Division, inside the Police Station itself and was paid a salary out of Ma Hak Shing's own pocket. He has given a description of Ma's activities in Kowloon City Division, which need not concern us here but when Ma was transferred to the Bay View Division from Kowloon City, that is, on 1st June 1972, for the first week to 10 days, Cheng Cheuk Fan worked for him inside the Bay View Police Station itself. He describes his first visual encounter with the first Defendant in his evidence and I quote:

"After Ma Hak Shing had been transferred to C.I.D. Bay View Police Station for 7 days, during one of these seven days when I was sitting outside the C.I.D. office in the corridor - I was facing the road - I looked to my left when I saw Ma Hak Shing having a conversation with a European in uniform and they were 15 feet away from me. About ten minutes later, this European entered a room - his room had the back towards the room. After the European entered the room, Ma Hak Shing beckoned to me and when I reached him he told me to go up to the first floor. He walked into his office on the first floor and I followed him. Ma Hak Shing walked to the side of his desk and he spoke to me and he said : "You go and buy some bank drafts for Superintendent Cunningham. The one who has just spoken to me is the boss." Then he told me to wait for a while and he went downstairs. About 15 minutes later he returned. He gave me a sheet of paper with some English on it. He said: "Here you have the address and the name. You go to buy at the Hang Seng Bank. You draw the money from the Savings Account Book." I got bank drafts from two banks - one is at the Prince Edward Road Kowloon City Branch, of the Hang Seng Bank and the second bank was at the Yee Wo Street Branch of the Hang Seng Bank. After I purchased some bank drafts I returned to Bay View Police Station. When I went up to the first floor I saw Ma Hak Shing sitting in his office. I handed the bank drafts to him together with the sheet of paper with the English writing he had given me. He received the documents put them in his pocket and went downstairs."

Cheng left the Bay View Police Station after about 10 days, on Ma Hak Shing's instructions, and went to Flat A2, No. 25 Electric Road, Hong Kong, which was rented by Ma Hak Shing as a sort of office for the payment in of squeeze money by his collectors and also where instructions were given either by telephone or personally to Cheng Cheuk Fan for the purchase of sterling Bank drafts. Cheng Cheuk Fan may be described as the accountant and cashier of the operations of the conspiracy, his job being to receive the squeeze money from Luk Hoi Tung, who in turn received it from the other 2 collectors, and then banking the proceeds in successive savings bank accounts maintained in the same branch of the Hang Seng Bank Ltd., that is, the Kowloon City Branch of the said bank, and giving an account thereof to Ma Hak Shing, from time to time as requested by Ma. Cheng Cheuk Fan remained in the employ of Ma Hak Shing up to the end of February 1973 and during that period he opened and closed a total of 7 savings bank accounts, all with the same branch of the Hang Seng Bank Ltd., into which squeeze money from vice establishments were paid in and from which accounts, money was either withdrawn or transferred, some of which being for the purchase of sterling bank drafts for the two Defendants. The 7 savings bank accounts were maintained in false names (although the surname "Cheng" was retained in all these accounts), according to Cheng Cheuk Fan, on the instructions of Ma Hak Shing, and at the end of each period (of about a month's duration), the final credit balances to such accounts at the end of such period were withdrawn and the account closed and all the relevant savings account pass books having been destroyed either by Ma Hak Shing himself or on his instructions. However, copies of the savings bank accounts entries have been produced in evidence and these show substantial deposits and withdrawals. Luk Hoi Tung, to whom squeeze money was first handed over by collectors, estimates that the collection from vice establishments every month amounted to about $300,000 from the Causeway Bay District and about $100,000 from the Shaukiwan District.

35. Cheng Cheuk Fan has also been described by the Defence as being an unreliable witness and that his evidence is not worthy of belief. Although at times he could be described as a clumsy witness, he has to my mind been very candid in his disclosures of his own activities and of Ma Hak Shing's activities as well. He has also been cross-examined at great length and having observed his demeanour in the witness box, I am of the opinion that he was telling the truth and I accept his evidence and in particular the evidence which I have quoted with regard to the instructions given to him by Ma Hak Shing to buy bank drafts for the first Defendant and his identification of the first Defendant on the occasion of the latter's meeting with Ma Hak Shing in the Bay View Police Station. I also accept in evidence 2 lists, one being a copy of the other prepared by Cheng Cheuk Fan in August 1972, as an account to be submitted to Ma Hak Shing, and which were found in his house at the time when it was searched by officers of the Independent Commission Against Corruption on 22nd April 1975. These lists give details of the names of the vice establishments in the Causeway Bay and Shaukiwan Districts from which squeeze money was collected, the dates on which such collections were to be made, and the amounts collected from each of these establishments. There was a system also whereby if an establishment was raided a certain percentage was deducted from the collection to be made. This only affected the overall amount to be collected from that particular establishment but did not affect payment by the establishment in order to obtain the requisite protection from being raided by police officers from the Bay View Division.

36. In making applications for the purchase of sterling drafts from the Hang Seng Bank Ltd. Cheng Cheuk Fan used the alias "Cheng Fun" or just "Mr. Cheng".

37. Cheng Cheuk Fan was followed in his job as cashier for the operations of the conspiracy by Wong Tak Ming and Wong Chi Ming, two brothers employed by Ma Hak Shing, in March 1973. The job for which Wong Tak Ming was engaged was similar to that done by Cheng Cheuk Fan, that is, he was at Flat S, Hung Fook Building, 7th floor, Kam Ping Street for the purpose of receiving money collected both by his younger brother, Wong Chi Ming, and Liu Tak Choy, from owners and operators of vice establishments under the "protection" of Ma Hak Shing, and have these monies banked with the Wing On Bank Ltd., North Point Branch, and from which account, on the instructions of Ma Hak Shing, he would purchase sterling bank drafts from the North Point Point Branch of the Hang Seng Bank, Ltd. It has been suggested by the Crown that Wong Tak Wing's visiting card found from the 1st Defendant's home during a search to which I have earlier referred, provides direct evidence of a link between him and Wong Tak Wing. There is no evidence to indicate when Wong Tak Wing took employment with the Bayside Might Club, the establishment indicated on the visiting card. Wong says that he was employed there for only a short time and that before he worked for Ma Hak Shing he was unemployed. It would appear to me that he worked at that Club after he left Ma Hak Shing's employ sometime in July 1973 when the latter retired. In my view, no such direct link has been established from that exhibit and there is not even the suggestion that Wong Tak Wing is acquainted with or personally knows the 1st Defendant.

38. Wong Chi Ming, besides collecting squeeze money from vice establishments in the Causeway Bay District, commenced to bank some of the collections with the Wing On Bank Ltd. from 17th August 1973, and from which Bank account, money was provided for the purchase of some sterling bank drafts. The bank account was opened in his own name and the address he gave the Bank was "Block S Hung Fook Building, 7th floor, Kam Ping Street, North Point." Besides collecting squeeze money from various establishments and buying sterling bank drafts, it was also part of Wong Chi Ming's duties to inform those vice establishments from which he collected squeeze money as to when raids were going to be conducted on such establishments by members of the Commerce and Industry Department, the General Crime Squad, Narcoties Bureau, and other Government Departments concerned in the eradication of illegal establishments. Wong Chi Ming says that such information would emanate from the headquarters set up by Ma Hak Shing at Electric Road, and would be conveyed to the vice establishments by telephone or by Wong Chi Ming going to such establishments personally, so that adequate precautions against such raids could be taken.

39. Wong Tak Wing left Ma's employment after he was informed by Ma Hak Shing that he was retiring from the Police Force on 6th July 1973 but it is apparent that from the sterling bank drafts purchased by Wong Chi Ming through the Hang Seng Bank Ltd. from monies in his account in the Wing On Bank Ltd. that he continued to disburse money from his account to pay for such sterling drafts, and from the evidence shown in Exhibits P92 (A to G), at least up to 5th February 1974.

40. All this evidence which I have accepted after due warning indicate the link up between the owners and operators of the various vice establishments from whom squeeze money was collected, the collectors who were employed by Chiu Tak and Ma Hak Shing, and of course the three named Detective Station Sergeants and finally the two Defendants. The evidence also indicates where part of the collections of squeeze money finally found their way.

41. The first two drafts issued by the Hang Seng Bank Ltd. having any relevance to the first charge against the first Defendant were made out for the respective amounts of £500 and £47.42, the applicant being a Li Wah of 12 Merlin Street, North Point, Hong Kong, and the beneficiary "Barclays Bank Ltd. A/C C.J.M. Cunningham" (Exhs. P3 and P3A). These two drafts were two drafts were paid into the designated account in the Old Trafford Branch of the Barclays Bank Ltd. at 555 Chester Road, Manchester, and the date shown on the drafts was 13th July 1971. The next two drafts also issued by Hang Seng Bank Ltd. were dated 26th July 1971 and of which the applicant was again Li Wah of 12 Merlin Street. The beneficiary shown in the 2 drafts was "Barclays Bank (Old Trafford Branch) for A/C of C.J.M. Cunningham", and the amounts of the drafts were £500 and £368.55 respectively. On the same date, another draft for the sum of £500 was also purchased on the application of Li Wah of 12 Merlin Street and the beneficiary shown thereon was also "Barclays Bank (Old Trafford Branch) for account of C.J.M. Cunningham". These drafts were paid into the account so designated. The full initials of the 1st Defendant are "C.J.M.", but throughout his career as a police officer in this Colony, he has used only two of those three initials, that is "C.J." even in respect of his bank account maintained with the Hongkong and Shanghai Banking Corporation, Hong Kong and according to the evidence of Lau Cheong Wah, the slip of paper on which the first Defendant had written the name of the account to which money should be remitted showed the full three initials. I have no hesitation following his evidence and the evidence contained in the first Defendant's valid passport which shows his full name as "Cecil James Matthew Cunningham" (Exh. P79A) that the abovmentioned drafts were paid into his account with the Old Trafford branch of Barclays Bank Ltd. in Mancester, in pursuance of the agreement made between him and Lau Cheong Wah, and that the funds for the purchase of such drafts were derived from collections of squeeze money from owners and operators of vice establishments in the Bay View Division.

42. Subsequent drafts applied for and issued and of which details are set out in Schedule A hereto do not indicate the name of the beneficiary except the number of the account to which the drafts were to be paid and the name of the Bank in which such account is maintained. The applicants for the purchase of those drafts Cheng Fun, Wong Tak Wing and Wong Chi Ming and Mr. Cheng, can be identified, Cheng Fun and Mr. Cheng being Cheng Cheuk Fun, whilst Wong Tak Wing and Wong Chi Ming are PW12 and PW13 respectively. The account numbers to which those drafts were sent, and later credited to the account, were No. 40306916 maintained with the Old Trafford Branch of Barclays Bank Ltd. Manchester, and No.80698573 maintained at the National Westminister Bank Ltd. of 1 Water Lane, Bakewell, Derbyshire.

43. The first Defendant maintains the following accounts with Barclays Bank Ltd., Old Trafford Branch, 555 Chester Road, Manchester:

44. Current Account No. 40312884

45. Deposit Account No. 21151357

He also maintains the following accounts with the National westminister Bank Ltd. of 1 water Lane, Bakewell, Derbyshire:

46. Current Account No. 8067818

47. Deposit Account No. 01-8067818

Both of these accounts are maintained by the first Defendant jointly with his wife, Mavis Cunningham.

48. The first Defendant's wife also maintains an account of her own, that is, account No. 80292192 with Barclays Bank Ltd. 37 Park Road, Leeds, Yorkshire. (Exhs. P73 and P74 show this - the first being a letter written by the first Defendant to his bankers in Hong Kong - the Hongkong & Shanghai Banking Corporation, and the second is a remittance advice slip dated 31st August 1974, issued by the same Branch indicating that a remittance of £1,000 had been made to her account by the first Defendant).

49. I have mentioned earlier on that the first drafts sent to the 1st Defendant's account with the Old Trafford Branch of Barclays Bank Ltd. and with which we are concerned, was on the 13th July 1971. This was about one week after the first Defendant had been posted to Bay View Division as Divisional Superintendent, which was on 7th July 1971. The last drafts which were sent to account No. 40306916 with the Old Trafford Branch of Barclays Bank Ltd. Manchester was 5th February 1974, six days before the first Defendant went on vacation leave on 11th February 1974, after which date no further remittances were made to either of the two account Nos. 40306916 and 80698573 or to the 1st Defendant's wife's account No. 80292192.

50. Inquiries have been made into the addresses 12 Merlin Street, ground floor, and 1A Merlin Street, ground floor, and I am Satisfied from the evidence given by Cheng Hon Chor and his daughter, Cheng Suk Hing, and also of Chow Jhun Leung of the I.C.A.C. that these two addresses are only accommodation addresses and I have also come to the conclusion that from the inquiries made by Chow Jhun Leung that the names used by the applicant or applicants for the drafts set out in Schedule A, and Schedule B, aside from those I have previously mentioned, that is Wong Tak Wing and Wong Chi Ming are fictitious.

51. From these circumstances, the fact that the first Defendant maintains bank accounts with both the named branches of Barclays Bank Ltd. and the National Westminister Bank Ltd., the regularity and the amounts, the 1st Defendant's links with Lau Cheong Wah and with Chiu Tak, and latter with Ma Hak Shing and through the latter with Cheng Cheuk Fan, Wong Tak Wing and Wong Chi Ming, and that such payments were made by bank draft to the 3 accounts, that is Nos. 40306916, 80698573 and Mavis Cunningham's account No. 80292192, only during the period when the first Defendant was Divisional Superintendent of Bay View Division, lead me to the conclusion that the two accounts numbered 40306916 and 806985573 are either maintained by the first Defendant or are under his control. The payments into the said four accounts, that is including the account of C.J.M. Cunningham, Old Trafford Branch, Barclays Bank Ltd. Manchester, provide in my view some corroboration of the evidence of both Lau Cheong Wah and Cheng Cheuk Fan that the first Defendant participated in the conspiracy for which he is charged in the first count of the indictment, and accordingly I find him guilty of that offence.

52. The second Defendant maintains two bank accounts in the United Kingdom (i) a current account No. 30876550 with Barclays Dank Ltd. 50 Jewry Street, Winchester, Hampshire, England (Exh. P10) and (ii) a deposit account No. A/G 07493 also at the same branch of the said bank. (Exhs. P11 and P12). In Schedule B to this judgment there is a list giving details of the drafts sent to and paid into those two accounts, and in my view these payments also provide some corroboration of the evidence of Lau Cheong Wah of the 2nd Defendant's participation in the conspiracy as charged in the first count on the indictment. Accordingly I also find him guilty of that offence.

53. It has been submitted with regard to the 2nd charge against the first Defendant that there is no evidence to indicate that the statutory declaration dated 12th March 1975 was made by the first Defendant and that there is no corroboration that the statement made therein, i.e. "that he was not aware that any other person on his behalf or purportedly on his behalf had sent money out of the Colony other than those persons named in the said declaration was untrue. I have already considered the first part of the submission earlier on in this judgment and I have stated that the circumstances indicate that the first Defendant had acknowledged that that statutory declaration was made by him. With regard to corroboration of the statement referred to, I would refer to the findings which I have made in respect of the first charge which I consider to be sufficient corroboration required by section 43 of the Crimes Ordinance, Cap. 200, and I accordingly find the first Defendant guilty of the 2nd offence set out in the indictment.

54. It has further been submitted that the 3rd charge is bad for duplicity in that the particular statutory declaration referred to in the charge has not been specified. I do not agree because only one statutory declaration was made in reply to the notice served on the first Defendant under section 14(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, and that is the statutory declaration dated 12th March 1975 and which is mentioned in the second charge. For the reasons I have set out in respect of the offences in the first and second charges, I find that the first Defendant did not comply with the said notice as charged, and I accordingly find him guilty of the offence in the 3rd charge.

55. The second Defendant made a statutory declaration on 10th September 1975 in reply to a notice served on him under section 14(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, the statutory declaration having been handed over by him personally to Mr. Guy of the Independent Commission Against Corruption. I think the paragraph upon which the 4th charge against the 2nd Defendant is based on is:

"3. In respect of any moneys or other valuable property which may have been sent out of the Colony by any other person on my behalf or allegedly on my behalf authentic accurate information giving particulars if any are not in my possession."

56. In my view this statement to put it at its lowest is equivocal in that it may be construed that if the requisite amount of time were given to him or if he were in possession of the information required he might have furnished it. No evidence has been adduced that the second Defendant was asked, after Mr. Guy received the statutory declaration to provide an explanation as to why and what information was not in his possession, nor is there any evidence to indicate that he would not have complied with such a request if it were made. No offence has been committed by the second Defendant in respect of the 4th charge, and accordingly that charge against him is dismissed.

SCHEDULE