R. v. Lo Tak Lee

CACC000341/1995

IN THE COURT OF APPEAL

1995, No.341
(Criminal)

HEADNOTE

Evidence - destruction of Police notebooks before trial - reliance on witness statements based on notebooks as aide memoire.

IN THE COURT OF APPEAL

1995, No.341
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. and Stuart Moore, J.

Date of hearing: 31 October 1995

Date of judgment: 31 October 1995

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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. On 10th May 1995, before Deputy Judge Davies, as he then was, this Applicant was convicted of blackmail and claiming to be a member of a triad society. Both offences were alleged to have occurred on 31st July 1991.

2. The reason for the long delay before trial is that the Applicant failed to answer his bail. He could not be found until 13th September 1994 when he was re-arrested on warrant. One result of this delay was that police officers, who were the main witnesses to give material evidence, were forced to rely on their memories as to what happened. They were, however, able to refresh their memories from witness statements they had made five days after the original arrest, which in turn were based upon their notebook entries. The notebooks themselves had been destroyed.

3. It emerged during the trial that there is a Police Force policy that when a case is three years old the notebooks relating to that case are destroyed. Aside from any other consideration in the matter presently before us, and on the assumption that the learned Deputy Judge had been correctly informed about the practice, we should like to take this opportunity to express our concern over the destruction of police notebooks before a case has been finalized. The trial judge expressed similar concerns and we hope that this is something which can be speedily reviewed.

4. The Applicant now seeks leave to appeal against his conviction and his self-made grounds, which he has set out with commendable clarity, depend to a large extent upon the failure by the police to produce their notebooks at trial. His grounds expressed today in court are less clear but the effect is that he is complaining that the evidence against him was insufficient, that doubts were raised by the conflicting evidence that was given in the trial and that, without their notebooks, the police relied on contradictory witness statements to refresh their memories. He further submits that those statements were inconsistent with the evidence given by the witnesses in court.

5. All of the evidence in the trial came from witnesses for the prosecution as the Applicant elected not to go into the witness box and he called no other evidence.

6. The allegation was straightforward. The applicant with one other, who I shall refer to as D1, went to a restaurant in Old Peak Road to meet representatives of the management. D1 made a demand for protection money and claimed to be a member of the 14K triad society. The Applicant this morning says he was unable to hear the conversation but it was clearly heard by others around the table because, unbeknown to the applicant and D1, some of those were undercover police officers who were posing as personnel of the restaurant. They had been tipped off as to the likelihood of this approach because of an earlier blackmailing telephone call to the restaurant manager. At the meeting, Inspector Chun prevaricated over payment by pretending that another director of the restaurant needed to be consulted first. This resulted in a second meeting being arranged for the same day. At this meeting the Applicant allegedly contributed to the conversation by repeating the demand for a protection fee and by giving indications that he was also a member of the 14K triad society. The Applicant and D1 were asked to demonstrate their strength. They both left the restaurant and within a few minutes came back with a much larger group of men. They surrounded the table in a menacing fashion. A signal was given to waiting police officers who immediately arrested all the culprits.

7. Quite apart from what was said at the table, the evidence provided a very strong circumstantial case against this Applicant. All of that evidence was reviewed with great care and in detail by the learned Deputy Judge and, in particular, he dealt with all of the shortcomings to which this Applicant has drawn our attention both today and in his written Notice of Appeal.

8. During the trial an application to stay the proceedings, which was made on the ground that potential exhibits in the form of the notebooks had been destroyed, was refused. The prosecution had argued that the applicant had had the opportunity to examine the notebooks in all the usual ways that he could have done had he remained within the jurisdiction. Instead he chose to absent himself and his opportunity to examine the books therefore came and went.

9. The learned Deputy Judge found that the destruction of the books in the circumstances of the case went to the weight of the evidence but did not render the trial an unfair one and with that finding we entirely agree. Furthermore he had the principles set out in The Queen v. Richardson (1971) 2 All E.R. 773 and The Queen v. da Silva (1990) 90 Cr.A.R. 233, in mind when dealing with an apparent irregularity that arose in the course of the trial when it was discovered that one of the officers on the second day of his part-heard evidence had read his statement again prior to re-entering the witness box. The learned Deputy Judge was told that that had been done in ignorance of the general rule that if a memory refreshing document is to be referred to after a witness has started his evidence it should only be done with the permission of the Court.

10. It seems to us that the other criticisms which are made of the Reasons for Verdict do not merit any deep consideration as these relate to aspects of the case which were dealt with equally flawlessly by the learned Deputy Judge. We can see no reason whatever to interfere with his findings. Accordingly, leave to appeal is refused and the application is dismissed.

Representation:

Mr. Wayne Walsh, C.C. for Crown.

Applicant in person.