R. v. Thirlwell James Mario and Another

CACC000332/1996

IN THE COURT OF APPEAL

1996, No.332

(Criminal)

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Coram: Hon. Power, Ag. C.J. Mortimer & Ching, JJ.A.

Dates of hearing: 25 February & 4, 5 March 1997

Date of delivery of judgment: 18 April 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

The Charge

1. The 1st applicant, James Mario Joseph Thirlwell ("Thirlwell"), and the 2nd applicant, Pang Wing-hung ("Pang"), faced one count of conspiracy to accept an advantage. Thirlwell was a Chief Inspector and Pang was a Sergeant in the Royal Hong Kong Police Force. The offence particularized that between 1st August 1993 and 30th September 1994, they conspired with Yuen Kam-bor ("Yuen"), Ha Sau-wing ("Ha") and Tang Yin-sum ("Tang"), without lawful authority or reasonable excuse, to accept advantages namely gifts of sums of money from vice-establishment operators in the Wong Tai Sin area as an inducement to or reward for performing acts in their capacities as public servants, namely providing prior warning of impending police raids on the vice-establishments to their operators. Both applicants were convicted on 28th May 1996, after trial before Judge Surman in the District Court, and each was sentenced to imprisonment for four years. Each now seeks to appeal against that conviction.

The Crown Case

2. It was the Crown case that Thirlwell had been appointed District Operations Officer ("D.O.O.") of Wong Tai Sin Police District in September 1993 and was in that capacity responsible for supervising the policing of dangerous drugs, gambling and vice activities in the area and had, under his command, along with other groups, special duty squads SDS I, II & III. Each of these squads consisted of an inspector, a sergeant and several P.C.s. Thirlwell held the post of D.O.O. Wong Tai Sin until October 1994. Between 1986 and 1993 Pang had worked with Thirlwell both in the Narcotics Bureau and in the Anti-Smuggling Task Force. During the charge period, however, from August 1993 to September 1994, Pang was stationed on Lantau Island. Yuen had been the S.D.S. III Squad Sergeant before the arrival of Thirlwell. It was the prosecution case that information regarding police vice activities was passed from Thirlwell to Pang who then passed it on to Yuen who in turn passed it on to vice-establishment operators.

The Accomplice Conspirators

3. Yuen, who was PW1 at trial, was the team sergeant of Special Duty Squad III, Wong Tai Sin between December 1992 and September 1993. He ceased working in that capacity upon the arrival of Thirlwell at Wong Tai Sin. Yuen had been initially arrested on 19th January 1995 but was then released only to be re-arrested on 5th July 1995. In August 1995 he pleaded guilty to conspiring with other police officers and with Ha who operated a vice-establishment in Wong Tai Sin area between 1st December 1992 and 30th September 1994 to accept advantages from vice-establishment operators in the area in exchange for providing prior warning of police raids. He was sentenced to 3½ years' imprisonment but remained in I.C.A.C. custody and was, in fact, in I.C.A.C. custody when he gave evidence against Thirlwell and Pang. It was the prosecution evidence that Yuen passed the information he received from Pang onto Ha.

4. Ha, who was a vice-establishment operator, on 23rd August 1995 pleaded guilty to three charges of conspiracy, in one of which he was jointly charged with Yuen. He was sentenced to 27 months' imprisonment. He also was in I.C.A.C. custody when he gave evidence at trial. Ha said that he had paid bribe money to the police since the end of 1992 and that the payments came from money he collected from vice-establishments. He said that towards the end of 1992 he was introduced to Tang, who was PW4 at trial.

5. Tang was also a vice-establishment operator but not in the Wong Tai Sin area. He had been the go-between used by Ha to pay money to Yuen. Tang had, prior to the present trial, pleaded guilty to one charge of conspiracy to accept advantage between 1st December 1992 and 30th September 1994 and was sentenced to imprisonment for 18 months. He also was in I.C.A.C. custody when he gave evidence at trial.

6. It was the prosecution case that Yuen, Ha, Tang and others had been involved in a conspiracy to offer and accept advantages well before Thirlwell was posted to Wong Tai Sin. The prosecution alleged that Thirlwell joined the existing conspiracy and that Pang, having been introduced by Tang to Yuen, offered to provide information which was to be supplied by Thirlwell regarding raids planned to be carried out on vice-establishments in the area. The information was to pass from Thirlwell to Pang and then to Yuen who would then pass it on to Tang and Ha to distribute it to the establishment operators. It was the prosecution case that there were seven villas involved and that each paid monthly sums ranging from $3,000 to $15,000 a month, the total income being $40,000 in each of the first two months and $50,000 in the remaining ten months. Ha collected the money from the villas and would pass it on to Tang who in turn passed it to Pang who divided the money between himself and the 1st defendant with a separate payment to Yuen.

7. A Sergeant Poon (PW3) became the sergeant of SDS Team III when Yuen left and was in that team from October 1993 to June 1994, the first nine months of the conspiracy period. He admitted that he was engaged in other corrupt activities but denied providing information relevant to this charge to establishment operators and denied that he had accepted any bribes from such persons.

The Defence Contention

8. Mr. Plowman Q.C., with him Mr. Simon Westbrook, who appeared before us for Thirlwell, contended that the prosecution case against Thirlwell depended entirely upon the evidence of the accomplices Yuen, Ha and Tang and that if their evidence was suspect, it could not properly be used to convict Thirlwell.

The Reasons for Verdict

9. The judge stated at the outset of his reasons that he had taken 1,200 pages of notes in a trial that had extended over 30 working days. He said:

"I have mentioned the size of it, because I want to make it clear that, although I may not and cannot refer to every detail of the evidence in this judgment, I have in fact read and studied all of it, and I have also carefully considered the detailed and helpful submissions made by both Counsel."

The judge gave himself a number of directions, the first of these was that he had to satisfy himself so that he could be sure that Thirlwell and Pang "entered into an agreement with the others concerned, to effect a common purpose, that is conspiracy, namely the acceptance of bribes paid by vice operators in the Wong Tai Sin area in exchange for information". The judge stated explicitly that he had read, studied and carefully considered all of the evidence and the detailed submissions of counsel. It is clear that he focussed at the very outset upon the essential matter that the Crown had to prove, i.e. was there agreement into which the accused entered to accept bribes from vice operators as a reward for information?

10. He noted that neither Thirlwell nor Pang gave evidence stating that this was not a criticism but that he mentioned it to emphasize that he had to make his findings based on the evidence that was before him.

11. He referred to the Co-conspirators' Rule which allows evidence of things said by one conspirator in the furtherance of the conspiracy to be used as evidence against co-conspirators.

12. He then turned to consider Yuen, Ha and Pang noting that they were co-conspirators and that they had pleaded guilty to earlier connected offences and that, as a consequence, "what they say needs to be looked at with considerable care". He went on to say:

"I want to make it clear that I have warned myself about this. I am well aware of it and I have been vigilant in the review of the evidence that each of these three has given to me."

He stated that each had been in the witness box for several days and that he had "therefore had the opportunity to see them and hear them, and I have been able to assess their worth". He also noted that other witnesses including Sergeant Poon had given evidence under immunity and that their evidence would have to be approached with caution. Having referred to the prior association between Thirlwell and Pang he then made it plain that he was fully conscious of the bad character and dubious associations of Yuen, Ha and Tang. Of these three witnesses, he said:

"Each of them was examined and cross-examined at length, but there were common threads in the evidence of all these three men. I simply do not accept that each of them got together with the others and concocted a story to the prejudice of these two Defendants."

The judge makes it plain that he made his assessment of these witnesses bearing in mind their character, the manner in which they gave their evidence and the way in which that evidence interlocked.

13. He then reviewed the evidence of Yuen who said that prior to August 1993, he, Ha and Tang had an agreement that Ha would collect money from vice-establishments which he would, give to Tang who would, in turn, hand it to Yuen in exchange for information about police raids. Yuen said that in August 1993 he was introduced to Pang by Tang who told him that he had discussed with Pang the bribe payments from the vice-establishment operators. It was his evidence that Sergeant Poon replaced Yuen as Sergeant in S.D.S.III but that it was decided not to use him as it was not known whether he would be reliable. Yuen said that in September 1993 Pang indicated to Tang that Thirlwell, who was referred to as "Big Brother" was about to be posted to Wong Tai Sin as D.O.O. Yuen told of a dinner in 1993 at which he, Tang, and Pang were present where Pang confirmed that Thirlwell would be going to Wong Tai Sin and would know the dates of the operations against vice-establishments. Yuen said that the new arrangement would be that from September 1993, the dates of the raids on vice-establishments would be passed by Thirlwell to Pang who would pass it to Yuen who, in turn, would pass it to Ha for distribution to the vice operators. Bribe money was to be collected by Ha who would give it to Tang who would pass it on to Pang at mahjong meetings at Tang's villa in Tsuen Wan. Yuen said that the first meeting with Thirlwell took place at the East Lake Restaurant in late September or early October 1993. He said that he was introduced to Thirlwell by Pang and that there was the discussion at this meeting as to whether the bribe money should be paid to Yuen or to Pang and that Pang insisted the money come to him. Referring to Thirlwell's involvement in this meeting the judge said that he

".... was not involved in the details of this discussion about the money, but I am totally satisfied that this meeting did take place with those people there and, in particular, that both the 1st Defendant and the 2nd Defendant were present at it. It was a small meeting, there were only four people there. This meeting alone, if nothing else, demonstrates the establishment of a prima facie case of conspiracy against the Defendants."

14. We pause to note that the judge here again clearly focussed upon the real issue before him i.e. was there an agreement? The judge went on to say that he accepted Yuen's evidence of regular mahjong meetings thereafter at some of which both Thirlwell and Pang were present along with Yuen, Ha and Tang. He accepted Yuen's evidence that Pang had given him his share of the money after these meetings.

15. It was Yuen's evidence that the information about the dates of the police raids was given to him by Pang using Mark-six numbers as a code. The judge considered that of particular importance was his evidence of an occasion when Ha asked him to ask Thirlwell about the use of "northern girls". He said that Thirlwell had said it was "Okay" but that later he was told that Thirlwell's boss was making a bit of a fuss about the use of such girls. The judge accepted this evidence and was satisfied that it put Thirlwell in the very centre of the conspiracy with full knowledge thereof. That there was such an incident was confirmed in the evidence of Ha.

16. The judge then reviewed the evidence of Ha who said that he had first met Yuen in 1990 and had paid bribe money to the police at the end of 1992 in the sum of $40,000 a month for five or six villas. As he was uneasy about the making of such payments it was agreed that Tang would be the go-between. He said that in September 1993 it was agreed that he would continue paying bribes and that in return Yuen would deliver information to him using Mark Six numbers. Ha said that the amount paid was later increased to $50,000 per month and was paid on the occasion of mahjong dinners.

17. The judge then turned to the evidence of Tang saying that he looked younger than his 60 years but was "sprightly for his age" and very precise with his answers". He bore in mind the possibility that Tang was concocting evidence saying "that he was either a man with a good and accurate memory, or he was's arrest in May 1995 he had contacted Ha and Yuen and discussed the matter. He was mindful of the fact that in the initial stages Tang had lied about his association with Thirlwell and Pang and that by July 1995, although Tang was telling the ICAC about Yuen's alleged involvement, he was still avoiding mention of Pang. Tang absconded to China in August 1995 returning in January 1996 when he first told the ICAC a version which involved both Thirlwell and Pang. Tang confirmed the evidence of Ha that there had been an arrangement prior to the present conspiracy period in which Ha had collected $40,000 a month which he gave to Tang for onward transmission to Yuen. This continued until the beginning of September 1993. He said that he had first met Pang when he was a Sergeant carrying out licence checks in Tsuen Wan where his villa, the Fu Ho, was situated. He said that Pang came, on occasions accompanied by Thirlwell, to the villa to meet prostitutes. This evidence was challenged in cross-examination but a later witness, Madam Lai Wai-yim, an employee at the villa, said that she was positive that she had seen both Thirlwell and Pang at the Fu Ho Villa. Tang said that, initially, he saw Pang on an occasion at the Fu Ho Villa and told him that money was still being collected and that Yuen had a share in it. He said that he arranged a meeting at the East Lake Restaurant where he and Yuen met Pang. The fact that Poon would be replacing Yuen was discussed as was the future possible involvement of Thirlwell. At a later meeting at the same restaurant the three agreed that Thirlwell would give information on police raids to Pang who would pass it on to Yuen who would in turn tell the villas involved. It was to be Ha's job to collect the money and pass it to Tang, who in turn would give it to Pang. Tang said that Poon was not to be included because there were doubts as to his reliability. Tang told of later mahjong games when bribe money was paid at which Thirlwell was sometimes present which continued until September 1994.

18. Sergeant Poon Hing-nan gave evidence under immunity. He had been convicted of conspiracy to receive money from Yuen in exchange for information concerning police raids on gambling establishments but not vice establishments except for what were called Scapegoat Operations' and sent to prison for eight months. He replaced Yuen at Wong Tai Sin in September 1993. He admitted that he had been involved in scapegoat operations in which substitute villa operators and substitute prostitutes, planted in the villas to be raided, were arrested and convicted while the persons who really operated and provided services in the villas escaped prosecution. Poon denied ever passing information to Yuen, Ha or Tang. He said, as did Senior Superintendent Robbins, who also gave evidence, that the dates of the "Levington" operations were an open secret. These were operations, planned and carried out at colony, region and district levels, to check, inter alia, for vice and gambling offences. Poon said that he knew nothing of the conspiracy involving Thirlwell and Pang. This witness assumed a particular importance as it was suggested by the defence that he might well have been the person who was actually passing the information which the Crown alleged was coming from Thirlwell.

19. Madam Fan Wing-hung gave evidence that she operated the Kam Pik Yuen Villa, which was one of those which paid money to Ha. She said that the payments went on until September 1994. Pursuant to the defence suggestion that the real culprit might have been Poon it was put to her, as it was to the next witness Madam Chu Yuet-wah, who operated the C7 Villa, that when Poon departed from Wong Tai Sin in June 1994, the information that had been supplied to them became less accurate. The judge was not prepared to accept this saying that the information received by the ladies was, for the most part, accurate and correct. What is perhaps more significant is the unlikelihood that any information could have come from Poon after his departure from the station in June 1994. The judge was satisfied, having considered Poon's evidence and the evidence of the two ladies, that Poon was not the source of the information.

20. As we have already indicated there was evidence from a Madam Lai Wai-yim, who was a cashier/cleaner at Tang's Fu Ho Villa. She gave evidence under immunity saying that Pang regularly came to the villa to meet prostitutes and had been accompanied on a number of occasions by Thirlwell. The judge felt that this was evidence of importance as it showed the degree of fraternisation in questionable activities between Thirlwell and Pang. She also said that Tang had got her on occasion to contact Pang to warn him that Yuen had been apprehended by the I.C.A.C.

The Conclusions of the Judge

21. The judge was satisfied that Madam Fan and Madam Chu had paid money to Ha for information, and the accuracy rate of the information remained high until September 1994. He accepted Poon's evidence that the information did not come from him. He rejected the suggestion that Yuen, Tang and Ha had fabricated their accounts of the meetings at the Fu Ho Villa stating:

"There may be minor differences in the evidence that they have given but there are consistent strands going through each of their evidence."

He was satisfied that the evidence against D2 was overwhelming and he found him to be "a main schemer, planner, organiser and member of this conspiracy".

22. He said, having excluded Poon from the conspiracy, that "the suspicion inevitably falls on the 1st Defendant as the source of the precise information from Wong Tai Sin for distribution to the villa operators" but that having eliminated Poon, he had to look to see whether the information might have come from other possible sources. He ruled out Yuen and Pang as neither was stationed at Wong Tai Sin during the conspiracy period. He particularly bore in mind five matters when considering the case against Thirlwell:

(i) he was stationed at Wong Tai Sin at the relevant time;

(ii) he had access to the relevant information;

(iii) he had a close personal alliance with Pang;

(iv) he had attended various mahjong meetings;

(v) the expiry of his tenure at Wong Tai Sin coincided with the end of the bribe payments.

Having taken all these matters together, he was satisfied that Thirlwell was a party to the conspiracy.

The Grounds of Appeal

23. In the first ground it was argued that the judge failed to appreciate the significance of the cross-examination of Yuen, Ha and Tang. The grounds states in terms that:

"It was never disputed (indeed it was emphasized) that the 3 witnesses were all initially reluctant to implicate others. The point was that from grossly inconsistent stories initially, each slowly changed his story during the course of the roughly 15-30 statements that each of them made to the ICAC over the course of many months until each finally arrived at startlingly consistent accounts which eventually sought to implicate the Appellant."

24. It is contended finally in the ground that the judge:

"etterly failed to consider this extraordinary state of affairs adequately nor the opportunities which cross-examination demonstrated that each had to get together and fabricate a joint story and the motive each had to thereby conceal the involvement of the real culprit or culprits."

This ground, stripped of its emotive terms which have no place in a properly phrased ground of appeal, is, shortly put, that the judge failed to consider the evidence of the witnesses in the light of the fact that they had, in a number of ways, modified their initial statements and had had the opportunity to put their heads together and fabricate their evidence. The ground can be shortly dealt with. The credibility of the witnesses was a matter essentially for the trial judge. He emphasized, as we have set out above, that he had warned himself that the evidence of these accomplices had "to be looked at with considerable care". We reject without hesitation the suggestion that he failed, when considering their evidence, to take into account that they had modified their original statements to the I.C.A.C. and that they had had an opportunity to put their heads together. There is nothing in this ground.

25. In the second ground it was suggested that the judge was wrong to conclude that the three witnesses did not receive "superior or special treatment during the time that each of them had been in ICAC custody". It is not easy to define what exactly is meant by this ground. It seems to be suggesting that the witnesses were given "superior or special treatment" as a result of which they gave statements which falsely implicated Thirlwell and Pang. Leaving aside the fact that there was no evidence of any real weight to establish "superior or special treatment" the weakness of this ground becomes apparent when it is borne in mind that it was never the defence case that the fabrication of any statement had been in response to any special treatment accorded to these witnesses. This ground was, in a real sense, a red herring as it has no bearing upon the principal thrust of the appeal which was that these witnesses had of their own volition and for their own ends falsely fabricated evidence.

26. In the third ground it was argued that the judge badly misunderstood the evidence on a crucial issue when he held that the evidence of Senior Superintendent Robbins "who was Mr. Thirlwell's immediate boss confirmed that Mr. Thirlwell would be in possession of all the relevant information regarding Levington Operation and other Police Licence Checks related to the villa establishments in those areas." The evidence was that as well as Levington Operations, which were planned well in advance and the dates of which were an "open secret", there were spot checks carried out by the S.D.S. squads which were planned no more than a day in advance.

27. It is suggested in this ground that there was no evidence that Thirlwell knew in advance or took any interest in the timing of these spot licence checks. We think it fanciful to suggest that the D.O.O. of the police station would not have known, if he made his business to do so, the times at which spot checks were to be carried out. To suggest that there was no evidence that the D.O.O. took any interest in the dates of such checks advances the matter not at all as, whatever his reason, he was clearly in a position, whether for corrupt purposes or acting assiduously in the performance of his duty, to keep himself informed as to the carrying out of such checks. There is nothing in this ground.

28. Ground 4, again using emotive language which has no proper place in the grounds of appeal, suggests that the judge

"totally failed to appreciate, let alone resolve, the most important point made on behalf of the Defence namely that the accomplices' joint story that the dates of the raids were passed to PW1 (Yuen) by A2 (Pang) disguised as Mark Six numbers cannot possibly be true."

It is submitted that both Yuen and Ha maintained that these dates were passed by Pang in one block for the whole of the month ahead when the uncontradicted evidence of all the prosecution witnesses who touched on this matter established that the dates of the spot licence checks were only decided on the same day or occasionally the day before the licence check was carried out. It suggested that this establishes inescapably that Yuen and Ha concocted the same false story.

29. It is true that the trial judge did not deal specifically with this aspect of the evidence. We reject, however, the suggestion that he failed to take it into account. The judge at the very outset made it plain that what he had to be satisfied about was whether Thirlwell and Pang had entered into an agreement with others to accept bribes in exchange for information. He warned himself in the most specific way that he had to take care with the evidence of the accomplices. He stated in terms that he had carefully considered the detailed and helpful submissions made by counsel. The submission encapsulated in this ground of appeal was put at length in a very detailed way in the final speech of Mr. Westbrook who appeared for Thirlwell in the court below. We reject the submission that the judge then ignored what the ground of appeal itself describes as the "constant emphasis in the closing speech for the defence" of this point.

30. The judge was satisfied that Yuen, Ha and Tang were truthful witnesses. He was clearly not shaken in that satisfaction by the suggestion that the timing of the spot licence checks indicated that their evidence must be concocted. In the outcome he was satisfied for the reasons he gave which we have set out above that they were credible witnesses.

31. We do not intend to deal with Ground 5 other than by saying we find it of no merit.

32. Ground 6 argues that the judge failed to deal with the "many, very real problems" in the evidence of Ha. Similar considerations are urged in relation to the evidence of PW4 in Grounds 7 and 8. These are essentially matters of fact which were for the decision of the trial judge and to which, we are satisfied, he gave full consideration.

33. We find no merit in Grounds 9, 10 and 11 which suggest that the judge led himself into error by mis-stating the defence case when he said that it was the defence case that the information came from Poon rather than Pang. It is true that the defence case by way of cross-examination did not do more than suggest that Poon was the likely person from whom such information came but we are not satisfied that the judge in any way misapprehended this submission.

34. Ground 12 attacks in a way which we find wholly lacking in merit the judge's assessment of the evidence of Poon. We are satisfied further that the suggestion in Ground 13 that the judge was wrong to conclude that the accuracy of the information hardly declined after the departure of Poon from Special Duty Squad III in June 1994 is without merit. Given the evidence of the two witnesses, Madam Fan and Madam Chu, we are satisfied that the judge was entitled to take the view he did of the accuracy of the information.

35. We reject the suggestion in Ground 14 that we should be in some way influenced when assessing the propriety of the convictions in this matter by the view which Judge Britton took of the evidence in other charges involving members of Special Duty Squad III.

36. The application of Thirlwell for leave to appeal against conviction is dismissed.

37. Mr. Wright, with him Mr. Chau, for Pang relied upon all of the matters in the grounds argued on behalf of Thirlwell which had application to him and went on to argue that s.60 of the Criminal Procedure Ordinance, Cap.221, which abolishes the rule requiring corroboration in respect of the evidence of accomplices applies only to alleged accomplices and not to proven or admitted accomplices. He submitted that as there was no issue that Yuen, Ha and Pang were accomplices, s.60 has no application to them and the old rule requiring corroboration of their evidence applied. This argument can be quickly dealt with. Section 60 states:

"Abolition of corroboration rule in respect of alleged accomplices

(1) Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused is hereby abrogated.

(2) Any requirement that is applicable at a trial by a judge or magistrate and corresponds to the requirement mentioned in subsection (1) is hereby abrogated."

We are satisfied that the words "a lleged accomplice" were intended by the legislature to cover all persons against whom an allegation that they were accomplices was made. We reject entirely the suggestion that, if the person admits that he is an accomplice, or is otherwise conclusively proved to have been such, he is taken outside the operation of the rule.

38. Mr. Wright goes on to argue that even if this be not so, the wisdom of the law as it stood prior to the enactment of s.60 must not be ignored and judges today must look to the old law when directing themselves as to the way in which they should treat accomplice evidence . This submission we also reject. We cannot emphasize too strongly the observation in Regina v. Makanjuola [1995] 1 WLR 1348 in which Lord Taylor said at 1352:

"Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated."

Section 60 means what it says. The former requirements compelling a judge to warn himself about convicting on uncorroborated evidence of accomplices are abrogated. The judge in the present case did more than he was required to by warning himself in explicit terms of the need for caution when assessing the evidence of the accomplices.

39. The application of Pang is also dismissed.

Representation:

Mr. K.P. Zervos, S.C.C. (Crown Prosecutor) for the Respondent.

Mr. Plowman, Q.C. & Mr. Simon Westbrook instructed by Messrs. Charles Chu, Kenneth Sit & Wu for the 1st Applicant.

Mr. John Wright & Mr. Phil Chau assigned by D.L.A. for 2nd applicant.