The Queen v. Lai Chi Man

CACC000365/1988

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Coram: Silke, V.-P., Clough & Macdoughall, JJ.A.

Dates of Hearing: 25, 26 & 27 April 1989

Date of Judgment: 27 April 1989

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J U D G M E N T

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Silke, V.P.:

1. Three defendants appeared for trial on 27th June 1987 before Miss Ester Toh sitting as a Deputy Judge of the District court.

2. The Charge Sheet, dated 3rd March 1988 and signed by a member of the Attorney General's Chambers, contained two charges: the first, common law false imprisonment and concerned only Lee Kam Kwan-D3; the second, common law conspiracy to pervert the course of justice, concerned D3 together with Chau Kam Chuen-D2 and Lai Chi Man-D1.

3. On the morning of the trial a document entitled "Draft/Amended Charged Sheet" was produced by counsel then appearing for the Crown who informed the Court that he sought amendments to the second charge. These involved a chance of date of the alleged conspiracy from "between the 28th day of September 1987 and the 16th day of December 1987" to "between the 28th day of September 1987 and the 11th day of November 1987" and the addition of the words "in Hong Kong". The phrase "on divers days" remained unaltered. The amendments were made without objection and the trial proceeded. An application for severance made on behalf of D1 by Mr. VanBuuren was refused.

4. D2 pleaded guilty to the conspiracy charge and became prosecution witness No.2 - we shall refer to him as D2   - in the trial proper. D3 was acquitted, there being found no case against him on the conspiracy charge in the course of the evidence of D2 and on the false imprisonment charge in the course of the evidence of Miss Hon Sau Ling, PW4. Miss Hon was the main witness on the 1st and the joint main witness on the 2nd charge.

5. At the conclusion of the trial D1 was convicted of conspiracy and was sentenced to three years' imprisonment. He now seeks leave to appeal against that conviction and if it be necessary the sentence.

6. D1 was a Sergeant in the Royal Hong Kong Police Force and, on 28th September 1987, was in the Crime Investigation Unit at Wanchai Police Station. D2 was a Detective Police Constable in the Force and was also a member of the same Unit.

7. The particulars of the conspiracy charge alleged that the three named defendants together with other persons unknown conspired to pervert the course of public justice by inducing by unlawful means Miss Hon, a potential witness at the trial of Lee (D3) and Keung Chi Ho to withdraw a lawful complaint of false imprisonment made by her against Lee (D3) and Keung.

8. It was the case for the Crown that Miss Hon was a frequent gambler who had lost $100,000 worth of gambling chips which she had borrowed from D3 and for which repayment was required. She had given two cheques in the sum of $50,000 as a "guarantee". These could no be met and repayment was delayed. On 28th September Keung, who has since died, approached her in the street caught hold of her arm and together with D3 who then came on the scene escorted her to the nearby Sun Chu Ching Restaurant. There she was prevented from leaving, threatened by being told Big Circle Boys would come to take her away and told to telephone her friends to get money. She was very scared. She made some unsuccessful telephone calls in the restaurant itself and attempted to obtain help from the waiters but with equal lack of success. She then under escort -D3 standing by the door of the restaurant to prevent her leaving and thereby inhibiting her conversation - made a further call on an outside telephone. The friend to whom she spoke realised she was in trouble and asked her if she wished him to contact the police. She said yes and he did so. Miss Hon from thereon pretended that she was waiting for him to come to the restaurant with $10,000.

9. The police arrived and D3 and Keung were arrested. They were brought to Wanchai Police Station where D2 became the investigating officer. There he took a statement from Miss Hon, who had also been brought back at the same time as D3, and in the course of it he had a friendly chat with her exchanging paging numbers. They became friendly enough for him to join her in a game of mahjong a few days later.

10. When Miss Hon left the police station at about 5:00 p.m. D2 met D1 -who, with Inspector Yip in overall command, was D2's superior in the Investigation Unit. D1 suggested that they given some thought to the case, that D3 belonged to the Wo Hop To Triad and that he, D1, was well acquained with the head of that Triad. If the matter could be fixed up and D3 and Keung not brought to Court the Triad would pay money of which D2 would get a share.

11. D2's initial reaction was that it was not worthwhile and he, a family man, could easily be in trouble.

12. The next morning D1 met him again and told him not to be afraid and assured him it was worthwhile. D2 again expressed disinterest but was told to think it over.

13. On 1st October D2 received instructions through Inspector Yip to obtain an affirmation from Miss Hon as to the truth of the contents of her statement. D1 was aware of this as he handed the case file to D2. D1 said to D2 that if things went through the proper channels, that is if Inspector Yip's instructions were carried out, things could go wrong and the matter could not be kept secret. He suggested to use the words of D2 in evidence as to what was said,

"lets do it this way, make an appointment with Hon and talk with her and talk her out of making affirmation."

14. D2 agreed. This, says the Crown, constituted the conspiracy.

15. There was a great deal of further evidence of meetings which took place between D2 and D1, either jointly or severally, with Miss Hon. Suggestions were made to her that this was simply a debt which had to be repaid; that arrangements could be made by which that could be effected; that the two policemen were merely middle men and that they could help her to avoid trouble with D3. In particular there was a meeting at the Ramada Inn on either the 9th or 11th of October.

16. Miss Hon becoming dissatisfied at the way D1 and D2 were handling the matter made a report to the police and the matter into hands of the Independent Commission Against Corruption. She made a statement to them on 6th November and thereafter acted on their instructions. She was on occasions, in particular on the 11th, 18th and 30th November, carrying a tape recorder and the tapes and transcriptions of that which went on were introduced as evidence at trial.

17. On 16th December there was a meeting between D1, D3 and Hon which was both tape and video recorded when Hon handed D3 $10,000 as a part payment to the main debt. Both D1 and D3 were arrested at that point and D2, on the same day, was arrested at the police station.

18. D2 decided a day or so later to try to save his own skin and began his co-operation with the Independent Commission .

19. On 30th December, when D1 and D2 were reporting to the Headquarters of the Independent of the Independent Commission, D2 was armed with a tape recorder. He let D1 know this when, according to him, D1 wanted to search him. D1 on the other hand stigmatized this incident as a blatant attempt at blackmail by D2 and he made a report to this affect to the police.

20. If the existence of an agreement to get Miss Hon to withdraw her complaint, which in fact she did after much hesitation, is accepted then the evidence of that which took place after 1st October is capable of being construed as acts in furtherance of that agreement.

21. Mr. Howard, with him Mr. Vanbuuren, who appears for D1 in this application has advanced ten grounds: the 10th being the roll up ground of unsafe and unsatisfactory. With his usual frankness he accepts that, subject to those grounds which involved technical points, which he is of course perfectly entitled to take, the admissibility of evidence and a suggested material irregularity, his main task is to persuade us that the trial judge should not have placed reliance on the evidence of D2. Alternatively to persuade us that overall, and bearing in mind the quality of D2's evidence and all the other matters upon which we have been addressed, that we should have engendered in our minds a feeling of such unease as to have a very real doubt as to the safe and satisfactory nature of this conviction.

22. Dealing, and with no disrespect to Mr. Howard, shortly with the other matters we do not find any of them to have substance sufficient to lead to the overturning of this conviction.

23. The document "Draft/Amended Charge Sheet" was in our judgment an aid memoire and not a separate indictment. R.v. Morais [1988] 3 All E.R. 161 is clearly distinguishable. In that case, there was no indictment signed by the appropriate officer at all. A voluntary bill had been preferred under leave of a judge. The "indictment" upon which the trial took place did not, under the provisions of the Administration of Justice (Miscellaneous Provisions) Act 1933, become one until it was properly signed. The trial there was held to be invalid and a venire de novo was ordered.

24. Here there was a valid Charge Sheet to which all three defendants had pleaded not guilty on their first appearance in the District Court on 18th March 1988. This was, as we have indicated, amended without objection on 27th June and a fresh plea was, quite properly, taken.

25. While it would have been better practice to simply amend the original Charge Sheet and for the trial judge to endorse any such amendment the method used here was intended to be of assistance to the Court and counsel and the circumstances are a far cry from those in Morais.

26. The use of the expression "on divers days" in the particulars of a conspiracy charge is a time honoured device. It is contained in the suggested draft in Archbold 4th Edition and it use was not the subject of criticism in In Re Attorney Generals Reference [1988] 1 H.K.L.R. 375. It does not, in our judgment, make the charge duplicitous. Unlike if, for example, a theft had been charged, conspiracy is a continuing offence.

27. The evidence concerning the false imprisonment would of necessity have had to have been led as part of the matrix of facts leading to the conspiracy charge. The trial judge was correct to refuse to sever the charges particularly as D3 was concerned in both. D1 was not directly prejudiced as a result. This ground impinges on Mr. Howard's 9th ground based on the suggested material irregularity which occurred in the acquitting of D3 in the course of Miss Hon's evidence. It is submitted that this prevented D1 from having the benefit of the cross-examination of Miss Hon by counsel for D3 which could well, but of course it is not known, have destroyed her credibility.

28. We find the stand taken by counsel for the Crown -that there was not sufficient in the evidence of Miss Hon to raise a prima facie case of false imprisonment -surprising. He did however refer to her evidence as being "unreliable". We have only the record and not the seeing and hearing of the manner in which she gave her evidence. But be that as it may, if counsel for the Crown reaches a considered decision that there is insufficient evidence to allow a trial to go forward then it is his duty to bring that to the notice of the Court and opposing counsel as soon as he comes to it. This is what was done here and it might be though that the severance of the charges sought at the outset had come about in different circumstances. Mr. VanBuuren was given an opportunity to further cross-examine Miss Hon. We do not think that in the case of either of these grounds that D1 was prejudiced by the course taken so as to deprive him of a fair trial.

29. Objection was taken at trial to the admission of the tape recordings of 11th and 30th November meetings first on the general ground that the use of a tape recorder constituted "unfairness" and second, concerning that of 30th November, that as that which transpired then fell outside the period refereed to in the charge it should not have been admitted for that additional reason. We do not in the circumstances here, before any arrest of D1 was effected, consider that the use of the tape recorder constituted unfairness of any kind. The 30th November meeting in the market was, we accept, contrived, part of the continuing investigation and could well be said to smack of entrapment. Nevertheless it was of considerable probative value and no improper pressure of any kind appears to have taken place in the course of it. It certainly is not disclosed on the face of the transcript. It was a legitimate tactic. It was, as any evidence is which tends to show the guilt of an accused, prejudicial. But that is all. The trial judge was quite correct to rule both admissible.

30. When Miss Hon went to Wanchai Police Station she started the wheels of justice turning. They continued to grind on over the period when her affirmation was being sought. If police officers attempt to frustrate the bringing of charges - here by improperly persuading Miss Hon not to make the required affirmation - they are beyond peradventure attempting to put a spoke in those wheels. Certainly where there is shown to be a false complaint the complainant can properly be asked to withdraw it. But that is very different from the situation here.

31. That brings us to the main thrust of this application. Mr. Howard in his useful skeleton of argument -would that they were always provided -sets out ten particular matters which he submits cumulatively show D2 to be an unrelibale witness. Differences in the dates of happenings as between examination in chief and cross-examination, differences in the time at which events happened which suggests that some matters of which D2 gave evidence happened not at all, failure to remember when pressed when and where certain events happened, suggested conflicts between himself and Miss Hon as to the presence of D1 at the Remada Inn meeting and what happened after that meeting, conflict between D2 and D1 as to a meeting between them on 11th November and the evidence concerning that which is said to be the blackmail attempt on 30th December, to which event we have referred, have all been carefully drawn to our attention.

32. All these individually had been brought also to the attention of the trial judge in clsoing submissions. In her clear and careful Reasons for Verdict the trial judge has stated herself to have considered Mr. VanBurren's "very helpful" written submissions. She had in mind the discrepancies indicated to her and other emerging from D2's evidence. She was fully conscious of the nature of a witness such as D2. She found him credible and honest, though tending to minimise the role he himself played. She found his demeanour in the witness box impressive. The discrepancies did not alter her assessment. This is not, with respect, really surprising. That which has been pointed out to us are matters typical of a witness giving evidence long after the events to which he is referring occurred. Neither individually nor collectively do they suggest his evidence to be incredible.

33. The trial judge also found Miss Hon in general to be retailing an honest and truthful account of that which happened. In it, and in the contents of the tapes, she found corroboration for D2's evidence.

34. It is not for this Court to substitute its views for those of a trial judge, unless the views of the trial judge are shown to be entirely erroneous or based on misapprehensing of the evidence, for the trial judge is in a much better position than are we, looking only at a cold record, to come to conclusions both of credibility and fact.

35. We are not persuaded that the trial judge here erred in her assessment or in the finding to which she came and which the evidence before her justified. Nor do we entertain that lurking doubt as to the safe and satisfactory nature of the conviction which Mr. Howard urges upon us.

36. The application for leave to appeal against conviction is refused.

Sentence

37. We have listened to and given consideration to everything that Mr. Howard had said on behalf of the Applicant. We accept that this man, a Sergeant with an unblemished record for 25 years, has lost all those years of service and his reputation. We further accept that this has undoubtedly caused harm to his family.

38. We do not accept that the activities of D2 in this matter were of greater moment than those of the Applicant. The Applicant was the instigator and he was D2's senior officer. The facts revealed a total dereliction of duty. As the trial judge said in passing the sentence she did:

"Members of the public are entitled to demand that those who betray their faith and confidence in the police force should be severely punished and this punishment should act as a deterence to others."

39. It may well be that the trial judge's treatment of D2 was over generous but she explained it is intended to encourage police officers to give evidence of their involvements in illegal activities of this kind and to purge to some extent their breach of trust. We are not, after anxious consideration of the matters upon which we have been addressed and of the general evidence in this case, persuaded that this sentence is such as to warrant our interference.

40. The application for leave to appeal against sentence is refused.

Representation:

William Howard, Esq., Q.C. & B. VanBuuren, Esq. (T.C. Lau & Co.) for Applicant

C.D.F. Coghlan, Esq. For Crown/Respondent