The Queen v. Wong Sik-kwong and Others

DCCC000249/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 205 OF 1976

249

250

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Coram: Judge Rhind in Court.

Date of Judgment: 7th April 1977

Mr. Whetter, counsel for the Crown.

Mr. Shuen & Miss Tam present.

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JUDGMENT

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I. Findings of Primary Fact

1. My findings of fact are as follows under the rest of this heading.

2. D8 is a civilian, whilst the other ten defendants are all police officers who were attached to the 6th, 7th or 8th Platoons of "B" Company of the Police Tactical Unit.

3. After undergoing some twelve to fifteen weeks of training between November or December 1975 and the end of February 1976 at the Police Training School at Fanling, the 6th, 7th and 8th Platoons were together posted as a unit at the beginning of March 1976 to take up duties on Hong Kong Island. Compendiously I will refer to that unit made up of those three platoons as "B" Company.

4. For comprehensive information on the organizational structure of "B" Company, reference can be made to the chart, Exh. P2, but for present purposes it might be helpful briefly to describe the structure of a platoon.

5. At the top of the platoon hierarchy are two inspectors. Below them are five sergeants, each in charge of a column.

6. The most senior of those sergeants is the Platoon Sergeant who is in charge of the Headquarters Column. In the Headquarters column are six police constables. One of those six constables is an orderly, three are drivers and the remaining two are lorry guards.

7. The remaining four sergeants are each in charge of a column made up of seven constables, one of whom is designated as Second-in-Command (2 i/c) of his column.

8. D7 was an inspector with the 7th Platoon. D9, D11 and D4 were Platoon Sergeants of the 6th, 7th and 8th Platoons respectively. D10, D3 and D2 were Column Sergeants in the 6th, 7th & 8th Platoons respectively. D5 was a 2 i/c of the First Column of the 8th Platoon. D6 was a police constable in the Second Column of the 8th Platoon. D4 was a lorry guard in the Headquarters Column of the 8th Platoon.

9. When posted to Hong Kong Island, one of the principal duties of a Police Tactical Unit Company is to police the Jockey Club's horse race meetings at Happy Valley. Another of their duties is to assist the various police Divisions on Hong Kong Island on Anti-Crime work which entails patrols and raids directed against vice establishments engaged in illicit gambling, drug or sex activities.

10. Some time in February 1976, PW2 (a Column Sergeant of the 8th Platoon); D2 (another Column Sergeant of the 8th Platoon) and D4 (the Platoon Sergeant of the 8th Platoon) got together in a class-room at the Fanling Camp. Possibly other personnel of "B" Co also attended that gathering. At that meeting PW2, D2 and D4 discussed together what were their prospects of making some corrupt money for themselves out of "B" Company's forthcoming posting to Hong Kong Island.

11. At that meeting PW2 indicated a willingness to take on the role of organizing the collection and distribution of corrupt monies for the benefit of himself and his colleagues in "B" Company. Those present at the meeting concurred in PW2's taking on this task.

12. D2 made it known at the meeting that he could arrange to put his colleagues in touch with a civilian who would be able to assist them with a scheme to get corrupt monies for themselves.

13. Prior to joining the Police Tactical Unit, D2 had encountered a civilian named Ah Ngau who had explained to D2 that he was involved in organizing a system of corrupt payments for the benefit of the Police Tactical Unit Company which was then stationed on Hong Kong Island, and when D2 announced that he was due to go for Police Tactical Unit training Ah Ngau indicated that he would be willing to set up a similar corrupt scheme for D2's Police Tactical Unit company when the time came for it to be posted to Hong Kong Island. (The prosecution alleged that D8 was this Ah Ngau but the evidence against D8 was insufficient to identify him as the Ah Ngau of the present case. However, that a certain individual known as Ah Ngau existed and that he played the role described in these findings of fact was established. Ah Ngau becomes a co-conspirator who falls into the category of the "other persons unknown" referred to in the particulars of the charges).

14. Thus D2 now arranged for PW2, D4, himself and possibly others to meet Ah Ngau. This next meeting took place a day or two after the Fanling class room meeting just described.

15. After meeting at the Australia Restaurant in Wanchai, PW2, D2, and D4 went on to the Sun Tung Lok Restaurant where they conferred with Ah Ngau on proposals for a corrupt scheme to benefit members of "B" Company. At that meeting Ah Ngau made it clear to those present that he could arrange for money to be made it clear to those present that he could arrange for money to be made available to the personnel of "B" Company from bribes collected from the operators of unlawful activities in the areas where "B" Company was to carry out its duties, and PW2, on the police side, was put forward as "B" Company's representative who would receive those monies from Ah Ngau and would then be responsible for organizing the distribution of the money among his police colleagues.

16. At a further meeting between PW2 and Ah Ngau final details of the corrupt scheme were worked out.

17. Next a meeting was called at the Soldiers and Sailors Restaurant in Wanchai at which PW2, D2, D4 and other officers of "B" Company of at least the rank of sergeant were present. I cannot pinpoint the date of that meeting more accurately than saying that it was towards the end of February and in any event before the passing-out parade on 27th February 1976. At that meeting PW2 announced to all those present the details of the corrupt scheme he and Ah Ngau had worked out together.

18. The proposed corrupt scheme was as follows. There were to be what were described as two "accounts". Firstly there was to be "a horse-racing account". Each platoon was to be paid $1,000 from funds furnished by Ah Ngau for each Saturday afternoon race meeting for which it was on duty. That $1,000 would be paid to the Platoon Sergeant who would be responsible for sharing it amongst the participating sergeants in his platoon. For his share a participating police officer was required to forbear from taking any action to interfere with the illegal book-makers operating at the race course. On the same basis $500 was available to each platoon whenever it was on night horse-racing duty.

19. Secondly there was to be a "weekly account" of $1,000 for each platoon in consideration of the participating sergeants refraining from disturbing the activities of the operators of drug, gambling and sex establishments in the areas where "B" Company might be called on to carry out its duties. Again it would be Ah Ngau who would attend to the collection of the necessary monies from those vice operators at source.

20. Everyone present at that meeting at the Soldiers and Sailors Restaurant (including D2 and D4) agreed that the schemes for these weekly and horse-racing "accounts" should go ahead.

21. From what they learnt at that gathering at the Soldiers and Sailors Restaurant, as well as from the preceding meeting they had had with PW2, Ah Ngau and possibly also with others, both D2 and D4 were fully conversant with the whole scheme described so far. They might be described as founder members.

22. D2 and D4 were both present at a gathering at the Mayflower Restaurant on 27th February 1976, convened for the purpose of introducing all the police officers then participating in the corrupt scheme to Ah Ngan. That was the day of "B" Company's passing-out parade, and they were due to take up their duties on Hong Kong Island the following week. At the Mayflower Ah Ngau paid PW2 $10,000 in D2's presence as an advance of the "weekly account". PW2 then paid D4 the sum of $800, being the 8th Platoon's allocation from the "weekly account" for the forthcoming week, that figure of $800 having been arrived at by PW2 deducting his own share of $200 as a sergeant of the 8th Platoon from the $1,000 entitlement of the platoon. That balance of $800 was available for D4 toshare among himself and the other sergeants of the 8th platoon, and he gave $200 or $250 to D2 and kept a similar amount for himself.

23. D4 continued to collect the "weekly account" from PW2, and share it in the same way till about May 1976. Likewise throughout the same period D4 collected the day and night horse racing "accounts" for the 8th Platoon from PW2, and shared out the money amongst himself and the other sergeants including D2 in similar fashion to the "weekly account".

24. Thus in a week when there was both day and night racing the sergeants of the 8th Platoon would be sharing some $2,500 from all the accounts.

25. D3 who was a Column Sergeant in the 7th Platoon received $150 whenever there was day horse racing and $100 for night racing out of the horse racing "account" monies PW2 furnished to the 7th Platoon. D3 also knew that the money he received was derived from illegal gambling operators at the race-course. I cannot be sure that D3 attended the gatherings at Soldiers and Sailors Restaurant and at the Mayflower to which "B" Company's sergeants were invited. There is only PW2's word that he was there, and, for reasons which I deal with later, I am only prepared to accept PW2's evidence in so far as it is corroborated. Similarly I cannot be sure D3 was in receipt of "weekly account" money.

26. However, even on the limited primary facts I find against D3, I have no doubt that in receiving the horse account money D3 knew full well he was a party to a scheme in which he and his fellow police officers were joined together in creating a safe environment at the race-course for illegal book-makers who for their part were furnishing the funds from which D3 and like-minded colleagues got their sub rosa payments. I will have more to say on the inferences to be drawn from the primary facts in due course.

27. Up till the occasion of the first race meeting at which "B" Company performed duty, no police officer below the rank of sergeant was permitted to participate in the corrupt scheme so far described (a minor exception was one police constable representing a sergeant with a broken leg). At that first race meeting, which was on 3rd March 1976, the action of police constables in arresting illegal book-makers, who presumed themselves to be protected by virtue of the 'levy they paid to Ah Ngau, made it clear that the scheme as originally constituted was not viable: the cooperation of the police constables would have to be secured to make it work.

28. Therefore, PW2 and Ah Ngau held discussions together on how to eliminate this problem created by the police constables. The upshot was that Ah Ngau undertook to furnish PW2 with additional funds so that PW2 could buy the cooperation of the police constables. For whichever platoon happened to be on duty at the Public Enclosure, there was to be $500 available for sharing among its police constables, $350 for the constables at the Members' Enclosure and $250 for those at the Infield Enclosure. This money was known as the police constables horse race "meal money".

29. For the collection of this "meal money" from Ah Ngau and for its distribution among the police constables, PW2 instituted a somewhat complex system which admitted of variations from time to time. Basically, the system was that one police constable would be designated from each platoon to collect his platoon's meal money at each race meeting from Ah Ngau, or one of his henchmen. That collection would take place at the race-course while the race-meeting was in progress. A share of that money would then be passed on to the 2 i/c's of each of the five columns of the platoon, and each 2 i/c in his turn would share out the money with the police constables in his column. By the time the money had filtered down in this way, a police constable would finish up getting a comparatively small amount like $10 for a race meeting.

30. This development of bringing the police constables into the corrupt scheme was first implemented at one of the race meetings shortly after the race meeting on 3rd March.

31. On this inaugural occasion of "meal money" for police constables, D5 was the police constable who collected it for his platoon from Ah Ngau's representative, and D5 made the distribution to the other 2 i/c's in his platoon. Regarding the police constables in the column of which he was 2 i/c, D5 told them the shares he held for them, and rather than make a distribution to them then, they assented to his suggestion that he should accumulate the money for them along with future payments.

32. At future race meetings D5 did not collect "meal money" on the whole platoon's behalf, but he continued to receive his share.

33. D1 took over from D5 the role of collecting the 8th Platoon's meal money from Ah Ngau or his representative. D1 made these collections on at least five occasions, passing on the money to PW2 or, at PW2's direction, to the 2 i/c's of the 8th Platoon. D1 shared in his column's meal money.

34. The police constables of "B" Company received this "meal money" at every race meeting till about May.

35. From time to time there occurred variations in the scheme described above, but it is unnecessary to burden these findings of fact with those details which are not necessary for a basic understanding of how the scheme worked.

II Reasons for Findings of Primary Fact

36. The prosecution case hinged on two types of evidence. Firstly, there was the evidence of witnesses who came clearly within the classification of "fellow accomplices", as described in DPP v. Kilbourne [1973] AC 729. Figuring in this category are firstly PW2, PW3 and PW4, all former "B" Company colleagues of the police officers accused in this case, and secondly PW6 and PW7, who together operated the Sheraton Apartment House which was essentially a brothel.

37. Secondly there were the admissions, whether written or oral, of D1 to D5 which were allowed into evidence as a consequence of my ruling on the voire dire.

38. Regarding the approach a tribunal of fact should make to the evidence of "fellow accomplices" the law appears to be well settled. On the one hand, a tribunal of fact, having warned itself of the danger of convicting on the uncorroborated evidence of an accomplice, can, nonetheless, convict on such evidence. On the other hand, even if evidence amounting to corroboration could be said to be present, the tribunal of fact should not convict on the testimony of an accomplice whose evidence is not reliable and credit-worthy. The position is aptly summed up by Lord Hailsham in the following passage from DPP v. Boardman [1974] 3 All E R 887 at 906 "When a jury is satisfied beyond doubt that a given witness in telling the truth, they can, after a suitable warning, convict without corroboration. What I said in Kilbourne was not that to give or require corroboration a witness must be believed without doubt. What I said and mean was that unless a witness's evidence was intrinsically credible he could neither afford corroboration, nor be thought to require it. In such cases the witness's evidence is rejected before the question of corroboration arises. Of course a conviction in such a case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. But this is because the independent evidence has proved the case independently of the unreliable witness and not because the unreliable witness is corroborated." However, the court does not weigh the credit-worthiness of an accomplice in isolation from the rest of the evidence in the case. As stated by James L.J. in R. v. Turner and others (1975) 61 Cr. APP. R 67 at 84 "The credibility of the witness whose evidence requires corroboration is judged not on his evidence alone but on all the evidence in the case. In some cases that which adds credence to the evidence of the witness also to corroborate his evidence." A useful Hong Kong authority summarising the correct approach to accomplice evidence is CHAN Siu-hung v. R. Criminal Appeal 1091/75.

39. Needless to say, one accomplice cannot corroborate another.

40. In the present case the Defence urged that the accomplice evidence was unreliable so that nothing remained to be corroborated. The main force of the Defence attack was directed against the testimony of PW2 who was the principal prosecution witness. Reasons why PW2 might, according to the Defence, be regarded as unreliable can be summarised as follows : (i) his wicked character as revealed by his admissions of long-standing involvement in corruption in the police force including all his admitted acts of corruption while attached to "B" Company; (ii) the circumstances of his attempt on the day of his arrest to trade immunity from prosecution for corruption in exchange for the story which is now his evidence against his former colleagues; (iii) his continuing dependence on ICAC because of the limited form of immunity he enjoys; (iv) the generally incredible nature of his testimony and (v) the numerous discrepancies between his evidence and the other evidence in the case regarding such details as dates, times, places and the identification of individuals involved in particular incidents.

41. Complaints along similar lines are levelled against the other accomplice witnesses.

42. The conclusion I have reached regarding PW2's evidence is that it meets Lord Hailsham's requirement of being "intrinsically credible", but all the same I am only prepared to accept it as establishing facts in so far as it is corroborated by other independent evidence. All the facts I found, as set down in Section I above, either stem from or are corroborated by the admissions of D1 to D5. Further on, I will have more to say on why I regarded their admissions as true. Moreover, even if I had concluded that PW2's testimony should be discarded entirely as unreliable, I would still have made the same findings of fact on the strength of D1 - D5's admissions alone. It would then have been a case where in Lord Hailsham's words "the independent evidence (i.e. the admissions) is strong enough". Also such independent evidence would have "... proved the case independently of the unreliable witness and not because the unreliable witness is corroborated". However, that is all academic because I did not regard PW2 or the other accomplices as unreliable.

43. Accomplice evidence is approached with caution by the courts as witnesses of this type might well have purposes of their own to serve. In PW2's case (and much of this also applies to some of the other accomplices) two such possible purposes have to be guarded against. Firstly, he might have found it to his advantage to invent a story against his colleagues so as to furnish himself with material which could then be used as a bargaining counter while seeking immunity for himself for past offences. At the time of his arrest, PW2 might well have thought that ICAC already had sufficient information (e.g. Inspector Powell's allegations) to prosecute him for corruption. Secondly, even if his story of syndicated corruption "B" Company is basically true, there could be a risk that while identifying some genuine culprits he might also take advantage of such an opportunity to settle some old private grudges by naming others who might not in fact have been involved.

44. Although PW2 undoubtedly did try to bargain with ICAC officers for immunity on the day of his arrest, the prosecution evidence left me in no doubt that from the outset it was made clear to him that no promise of advantage was being held out to him in exchange for information likely to be of interest to ICAC. ICAC officer Partridge (PW20) described the events leading up to PW2 furnishing ICAC with information about the corrupt activities of "B" Company, and though Partridge is a self-confessed bigamist who once made a false declaration to the Registrar of Marriages, I was left in no doubt that he told me the truth in court.

45. Even if ICAC refrained from making any promises to PW2, it would be unrealistic to pretend that after his arrest PW2 did not have hopes of his own that he would benefit by denouncing his colleagues, and in fact as matters have turned out he has done fairly well for himself by cooperating with ICAC. For a long career of corruption, he has finished up with a sentence of only eighteen months imprisonment.

46. However, by the time he gave his evidence in court before me, PW2 was cut free from hope of advantage for himself. He had already been sentenced for his part in the present conspiracy, and from what he had to say in the witness box while being questioned about the extent of the immunity he currently enjoys (see pages 217-221 of the record), I received the firm impression that he no longer regards himself as liable to prosecution for his corrupt activities while a policeman. A lawyer construing the document (Exh. P5) conferring immunity on PW2 might consider that it does not give him the degree of absolution from past corrupt activities which PW2 appears to believe it does. For example, it protects him against prosecution for past offences against the Bribery Ordinance but is silent on past common law offences such as conspiracy. However, for the purpose of determining the quality of PW2's evidence what counts is not how Exh. P5 should be construed as a matter of legal interpretation, but how PW2 perceives he is affected by the document. I am sure PW2 thinks he is effectively protected from future prosecution for his part corrupt activities while a policeman. Moreover it is realisetic for his to think that way, as it is hardly conceivable that the Crown would see fit to prosecute him for such activities now. As he no longer regarded himself as beholden to ICAC by the time he gave his evidence in court, I do not think it reasonable to suppose that he had any material advantage to hope for by giving evidence favourable to the Crown.

47. The impression I formed on why he gave evidence the way he did was that he was trying to salvage some of his self-respect by telling the truth.

48. Even though relieved of any inducement to go on pleasing ICAC, the problem reamins whether PW2 might have availed himself of the opportunity presented by this trial to despatch one or more innocent men whom he does not like, as well as some guilty ones. Avcidance of such a possibility was one of the considerations which prompted me to require corroboration of PW2's testimony. Where the evidence discloses a character as despicable as PW2's, obviously the court will be mindful of the dangers involved: hence the resort to corroboration.

49. Although none of the other accomplice witnesses appears even remotely as flawed in character as PW2, I, nonetheless, required corroboration for the evidence of each and every one of them before I was prepared to accept it. They enjoyed a more limited form of immunity than PW2's, and unlike PW2, they appeared to have cause to continue to ingratiate themselves with ICAC or the Crown at the time they gave their evidence.

50. As there was no corroboration of the relevant evidence of PW6 and PW7, I have disregarded their evidence for the purpose of assisting the Crown prove its case.

51. Like PW2, I regarded PW3 and PW4 as intrinsically credible, but needing corroboration. Their evidence would have carried even more weight had they been granted more extensive immunities, and if decisions had been communicated to them before they gave their evidence on whether their police careers are going to be terminated.

52. No one could gainsay that the prosecution evidence is marked by a large number of discrepancies and contradictions. The accomplices contradict each other on details, and on some points they are at variance with the admissions made by D1-D5. Also the admissions of one accused appear to conflict with those of another on points of detail. Counsel on both sides have ably canvassed those discrepancies in their addresses to me, and I do not intend to deal with each and everyone, though I will later touch on what I regard as some of the more significant ones in relation to particular defendants. Suffice it to say at this stage that when different people are giving their own accounts of protracted and complex events which happened a considerable time ago discrepancies are inevitable, no matter how honest and well intentioned the witnesses. None of the conflicts or discrepancies pointed out in the present case, whether considered singly or collectively, is such as to leave me with a doubt about the basic truthfulness of the accomplices PW2, PW3 and PW4 or about the basic truthfulness of the contents of the admissions made by the defendants. Having said that, I, nonetheless, must add that I took the presence of such discrepancies into account when deciding to require corroboration for the accomplices. Discrepancies among accomplices call for more rigorous attention than when the testimony is from ordinary witnesses.

53. Besides particular discrepancies, the Defence also suggested that PW2's evidence was generally incredible or inherently improbable. For a start, the Defence argued that it was unlikely that PW2's fellow sergeants in "B" Company would ever have allowed him to fill the role of "care-taker" meaning organizer of the syndicate he described. According to PW2, the care-taker got a far larger share of the syndicate's income than any of the other participating officers of "B" Company so why, the Defence asked, would sergeants more senior to him allow him rather than one of themselves to hold this lucrative post. Moreover, he acknowledged in his evidence that he had had no previous experience of running a syndicate, and lacked contacts so there was nothing in his favour to qualify him for this task. Were the office of "care-taker" a sinecure there might be more force in this argument. However, the evidence showed that the "caretaker" had to put a lot of effort into the job and this would not necessarily be to everyone's liking. The sergeants more senior in rank to PW2 might well have thought all the bother of the job was not worth the extra money, and not everyone has a taste for the type of administration the job entailed. Moreover, at a time of intensive ICAC activity such as has existed in Hong Kong for the past two or three years, "caretaker" is a high risk occupation, and only the most fearless or foolhardy would care to take it on. Because he is involved in so many more corrupt transactions, the "caretaker" runs a far greater risk of getting caught by ICAC, and if convicted his pivotal role in the syndicate will earn him more severe punishment. Thus, I saw nothing surprising in PW2's evidence that there was no rush of takers for this job.

54. Another aspect of PW2's story branded by the Defence as inherently improbable or even impossible was the part about the "weekly account" paid to "B" Company for taking no action against vice establishments. As "B" Company never patrolled the areas where those vice establishments were supposed to be located on a regular basis, it would have been pointless for the operators to contribute to a fund for "B" Company's benefit, so the argument went. The evidence did show that when "B" Company or parts of it went on what were known as Anti-Crime patrols it was only while attached to one of the police Divisions for that purpose. The frequency of those Anti-Crime patrols would depend on "B" Company's other commitments and the demands of the Divisions. Until the actual day of getting assigned to a Division, a sergeant of "B" Company would not know the area he was required to patrol, and when he did know the area, his orders from the Division would confine him to visiting premises specified by the Division.

55. Of course, if everyone in "B" Company dutifully carried out his orders from the Division while on Anti-Crime patrol, the opportunity for interference with the contributing vice establishments might have been small indeed, and it would accordingly be unlikely that those establishments would want to pay any protection money for "B" Company. However, the evidence also established that once out on Anti-Crime patrols it was physically possible for personnel of "B" Company to visit premises other than those authorized by the Division to which they happened to be attached that day. Supervising these Anti-Crime patrols seems to have been a real problem for the senior officers of "B" Company, and what I gathered from the evidence as a whole Has that, once out on Anti-Crime patrol, "B" Company's personnel had the opportunity for wide-ranging movements, whether on the streets or inside buildings. Moreover even if "B" Company's excursions on Anti-Crime patrol were not frequent this would not mean it was not worth the while of the operators of vice establishment to pay them for no harrassment on such occasions as they did manage to sally forth. The prospect of even an occasional raid would be one to guard against.

56. Yet another reason advanced by the Defence for treating PW2's story as improbable was the fact that during the period the syndicate was supposed to be operating, illegal bookmakers did in fact get arrested by "B" Company at Happy Valley. The evidence for this is the record of arrests contained in Exh. P9. If the syndicate described by PW2 were functioning then, how could it be that such arrests occurred? I could find several reasonable explanations for this, other than that PW2 had invented his story. One was that some of the police constables in the syndicate were so greedy, as claimed by PW2, that they tried to extract money directly from the bookmakers in the syndicate. If the bookmaker refused to pay, it is not inconceivable that such a police constable would arrest him. Another possibility is that the book-makers arrested were selected because they were not contributing to the syndicate. Another explanation could be that some of the personnel of "B" Company did not participate in the syndicate.

57. Before turning to the individual cases of each accused, it will be convenient to comment on some of the discrepancies between PW2's evidence and the other evidence in the case. These discrepancies can be placed into the categories of those which relate to incidents involving several accused and those which relate to just one accused. Incidents involving several accused will be dealt with now. Those involving just one accused can wait till I deal individually with the case of that accused. However, whether one or more accused is involved in the incident the issue is still the same - PW2's credibility and whether a fact has been established as true.

58. In particular, two incidents allegedly involving several accused drew Defence criticism of PW2's evidence in the course of contrasting it with other evidence in the case. One incident was the series of meetings PW2 described as occurring between himself and various accused at different places (a Fanling classroom, the Australia Restaurant and the Sun Tung Lok Restaurant, wherever he met Ah Ngau, and the Soldiers and Sailors Restaurant) on three successive days towards the end of the 12th week of the Fanling course. By resorting to official records such as Occurrence Books, the Defence were able to demonstrate that some of the accused would not have been free to attend meetings at the precise times and places PW2 said they did. However, having assessed the evidence as a whole, I am satisfied that PW2 has made an honest mistake here. Frequently, honest witnesses are made to look fools over dates. I got the impression with much of his evidence that he was confused about dates and places, and got mixed up about who was where, when. I think that basically PW2's version of events is true but I think also there could be an ex post facto element in some of his evidence. This happens frequently with otherwise honest witnesses who want to tell a coherent story. Subsconsciously they re-order events and even introduce some guess-work for the sake of producing a comprehensive picture. I was very much alive to that risk with PW2.

59. The other such incident was the gathering at the Mayflower Restaurant on the day of the passing-out parade. According to PW2, eighteen people, each of whom he identified, would have sat together around the one table for a meal. As the table was of the usual circular type found in Chinese restaurants, this was clearly impossible. Even fourteen at the table would have been a squeeze.

60. There might be some simple explanation of how it could be that with 18 people at the gathering only 1 table was required. Perhaps some left before the actual dinner started, for example. Another possibility is that PW2's recollection of who was there is faulty. However I am sure there was such a dinner as he described for the purpose he described, and that at least D2 and D4 were there Again corroboration guards against false identifications by PW2 on that occasion.

61. So far I have sought to reveal the general considerations I had in mind for determining whether facts had been sufficiently proved in the present case. (of course, the level of proof I required was beyond reasonable doubt and I do not think it necessary for me to elaborate on what I said about the onus and standard of proof in criminal cases in the introductory part of my ruling on the voire dire) I now turn to consider what could be proved against each individual defendant, bearing in mind what has been said above.

62. Very little needs to said about the cases of D6 to D11. The sole evidence relied on by the Crown to prove its case against them came from accomplices; corroboration was absent. Flowing from this court's insistence on corroboration, it follows that the Crown failed to prove any incriminating facts against D6 to D11.

63. With regard to D1 to D5, though, the position was otherwise. Besides accomplice evidence, each of them made admissions which constituted not merely corroboration but also a source of independent proof of incriminating facts.

64. Needless to say, I assessed the evidence against each of D1 to D5 separately, particularly bearing in mind the rule that the content of an extra-judicial admission can only be evidence against the actual maker, never against a co-accused. I also directed myself that whereas at the stage of my ruling on the voire dire the issue was the voluntariness of the disputed admissions; now at the end of the trial the issue was the truthfulness of their content. Unless the Crown could now satisfy me beyond reasonable doubt of such truthfulness no weight was to attach to them.

65. Looking firstly at the case against D1, the evidence relied on by the prosecution to establish incriminating facts against him consisted of the testimony of the accomplices PW2, PW3 and PW4 as well as his alleged admissions in the document Exh. P16, and also his alleged oral admissions covering the same ground to ICAC officers Cheng (PW19) and Barrett (PW12) shortly before signing that document.

66. In its submissions for D1 on the voire dire, the Defence had already urged that the content of D1's alleged admissions was untrue, being merely an ICAC fabrication instead of anything emanating from D1's mind. The same arguments were also employed at the stage of final submissions in the case for the purpose of urging that no weight should be attached to those admissions, and in addition now that the Court was aware of the content of Ex.P16 the Defence was able to mount further arguments based on internal features of Ex. P16.

67. What the Defence pointed out about P16 was that in it D1 purported to admit that on 20th March 1976 he, being in the 8th Platoon, was on duty in the Public Stand, whereas there was undisputed evidence (see Ex. D13) that on that date the 8th Platoon was on duty in the Infield Enclosure. Likewise Ex. P16 shows the 8th Platoon to have been on duty in the Public Stand on 3rd April, whereas really it was again at the Infield Enclosure. If Ex. P16 could be demonstrated as untrue in those respects, so the Defence argument ran, might it not also be untrue in other respects? After I weighed all the evidence, the conclusion I reached was that D1 had merely fallen into error on dates and locations, but it did not dispose me to think that Ex. P16 was otherwise generally untrue.

68. Another feature of Ex. P16 which showed its contents to be untrue, according to the Defence, was that in it D'1 purported to admit participating in activities at the Phoenix Apartment, the American Restaurant and the Sheraton Guest House which would have occupied him for the whole of an evening which other evidence in the case fixed as 4th March 1976. It was not disputed that 4th March 1976 was exactly one month after the birth of D1's daughter. He claimed in the course of giving evidence that on the evening of 4th March he was attending a feast with his relatives to celebrate the birth of his daughter, and if this might have been so it would of course lend colour to his suggestion that Ex. P16 was an ICAC creation and hence not to be believed. However, whether D1 might have been at such a celebration depends on the view the Court takes on credibility in this case.

69. In approaching the assessment of credibility the Court did not overlook that D1 - and the same applies to D2 to D5 - was a man of heretofore unblemished character, for otherwise he would not have been a policeman.

70. For the purpose of ruling on the voire dire, the Court made a provisional assessment of credibility; for the findings of fact set out above the Court has had to come to a final assessment.

71. The Court is now sure that it was told the truth by the prosecution witnesses on how Ex. P16 and D1's oral admissions came to be made, and in the light of all the evidence in this case, the only reasonable conclusion is that D1's admissions were basically true. I can think of no other reasonable explanation of why D1 would have made those admissions.

72. Standing alone D1's admissions are sufficient to establish my findings of fact. Coupled with the accomplice evidence, they prove the facts very firmly indeed. This accomplice evidence, while requiring corroboration was, nonetheless, powerful in its own right. It was not the sort of story policemen were likely to make up against their colleagues.

73. D1's defence basically was that he knew nothing about the corruption alleged against him, and at the end of the day I disbelieved him on this.

74. One further matter in relation to D1 calls for comment. As already mentioned, in Ex. P16, D1 describes a visit to the Phoenix Apartment House on 4th March 1976. Accoring to Exh. P16, this culminated in his receiving a bribe of $50. While I am sure this happened, I have not included any reference to it in my findings of fact as I regard it as irrelevant. An almost identical situation occurs with regard to D5's statements and I will discuss this topic of relevancy then. What I say with regard to D5 in this respect will also apply to D1.

75. The only evidence against D2 were the admissions in his statement Exh. P13 and the testimony of PW2.

76. It was contended for D2 that an examination of some of the contents of Exh. P13 raised doubts on whether it could be regarded as a truthful account of the events it recorded. This supplemented the arguments already advanced on the voire dire that Exh. P13 was concocted by ICAC officer Kung (PW18). There were conflicts between D2 in Exh. P13 and PW2 in his evidence when both were supposed to be describing the same events, and also independently of PW2, there were a couple of features of Ex. P13 which the Defence claimed called its veracity into question. Those two features were firstly that, contrary to the record of his movement shown by the appropriate Wanchai Police Division duty roster, Exh. P13 showed D2 on patrol in the Luard Road area of Wanchai in September/October 1975 when he was supposed to have first made contact with Ah Ngau, and secondly D2 is shown by Exh. P13 to have driven from Fanling to the Mayflower Restaurant with two other sergeants of the 8th Platoon on the day of the passing-out parade with the result that the 8th Platoon would only have been left with two other sergeants at the most of accompany the 2 lorries carrying its arms to Happy Valley Police Station.

77. Regarding whether D2 could have first encountered Ah Ngau while patrolling in the Luard Road area, the position was that D2 had been posted in Wanchai Division since 1974, so that if it was not in September and October 1975 this can be explained as a mere mistake as to dates on D2's part.

78. Regarding whether D2 and two other sergeants of the 8th Platoon could have been absent while the platoon's vehicles were transferring its arms to Happy Valley Police Station, there could be several reasonable explanations of how reference to this was included in Exh. P13. On such a point of peripheral detail D2 might have made a mistake in Exh. P13 and maybe, for example, not all those sergeants accompanied him. In any event if they did accompany him, there was not necessarily anything wrong in that. Superintendent Steele was seemed to think one sergeant per lorry was enough, and the 8th Platoon only had 2 lorries. Further even if two sergeants per lorry was the regulation number, it is not inconceivable that the rule was broken. People do not always do what they they are supposed to do.

79. There were several contradictions pointed out to me between PW2's evidence and Exh. P13. There were on such peripheral matters as when the classroom meeting was held at Fanling and who attended, who suggested the Mayflower gathering and whether PW2 accompanied D2 in his car to the Mayflower.

80. I see nothing sinister in those discrepancies. If Exh. P13 were an ICAC concoction as D2 suggests, it is unlikely that any discrepancies would have been allowed to occur: any ICAC officers embarking on such improper conduct would surely have seen to it that all the i's were dotted and all the t's crossed. The discrepancies such as they are can be attributed to nothing worse than the frailty of human recollection. The conclusion I reached at the end of the case was that Exh. P13 was basically true. That seems the only reasonable explanation of why D2 made that statement.

81. D2's defence was basically a denial of any involvement in corruption. He also mentioned that PW2 had a grudge against him over being refused lifts in D2's car. I rejected D2's evidence as untrue.

82. What significance should be attached to the discrepancies between PW2's version of events and D3's oral admissions to ICAC officers Tsui (PW22) and Barrett (PW12) has already been explored in my ruling on the voire dire. Besides those admissions, the only other evidence against D3 is PW2's testimony that he was present at the meeting at the Soldiers and Sailors Restaurant and at the Mayflower Restaurant.

83. D3's evidence on the general issue amounted to a denial of any involvement in the corruption alleged. He explained that he would have been too busy to attend the alleged meetings at the Soldiers and Sailors Restaurant and the Mayflower Restaurant as his wife was ill in February and March with the result that all his off-duty time was occupied with his domestic responsibilities.

84. Whether D3 actually was at the Soldiers and Sailors and the Mayflower Restaurant meetings I cannot say on the evidence before me: there is only PW2's word for that, and without corroboration, his word does not suffice.

85. However what I am sure of is that D3 was in regular receipt of a share of the "horse-racing account" monies, and he knew this money derived from the illegal gambling operators at the race-course. To the extent of receiving at least a share of this "horse racing account" money, D3 was a participant in the syndicate PW2 described, but what were the exact mechanics for actually getting this money into D3's hand I cannot say on the evidence before me.

86. The only reasonable explanation of D3's admissions in the light of the whole of the evidence in this case is that he was a participant in the syndicate to the extent just stated, but because of his reluctance to implicate his colleagues the details of how he received payment remain obscure.

87. At the end of the day I rejected D3's denials.

88. D4's explanation of the allegations against him was a straight traverse and he also hinted that PW2 might have wanted falsely to accused him on account of D4's having reported PW2 to the Company Commander for some dereliction of duty. Differences between the content of D4's statement (Exh. P11) and PW2's evidence were pointed to as tending to show that Exh. P11 was worthy of no weight, having been forced out of D4 by his ICAC interrogators. Those differences are particularised at page 2521 of the record and all are on peripheral matters.

89. Weighing all the evidence I was sure that D4's admissions against himself in Exh. P11 were basically true: hence my findings of fact.

90. My findings of fact against D5 stem from my acceptance of the truthfulness of the parts of his statement Exh. P15 which relate to the corrupt "meal money" for police constables at the race-course, and also the evidence of PW2, PW3 and PW4 on this in so far as corroborated by Exh. P15. The content of D5's other statement, Exh. P14, does not feature in my findings of fact as on the view I take of the present case it is irrelevant.

91. Exh. P14 relates to various excursions D5 made with PW2 and others to sex establishments such as Phoenix House and a drug den on 4th March 1976, resulting in D5 collecting a $50 bribe from PW2, but this is irrelevant to the present trial. The prosecution have alleged through the testimony of PW2 that D5 participated in a scheme for the police constables to receive corrupt "meal money" from the vice establishments which contributed to the "weekly account" for sergeants and above, but this arrangement for police constables would not have occurred till later than 4th March according to PW2's evidence. The police constables "meal money" at the races was not arranged till after the first horse race meeting which was 3rd March, and as the "meal money" from the vice establishments was arranged later than that, any money collected from that type of establishment as early as 4th March was obviously no more than a private frolic of PW2's, unrelated to the present charges. Likewise with regard to the parts of Exh. P15 dealing with D5's excursions with PW2 to the Crown Guest House and the Wild Apple Music Parlour (also D5 gives an expanded version of his activities with PW2 on the night of his visit to Phoenix House i.e. 4th March) there was nothing to show these were connected with the syndicated corruption PW2 and Ah Ngau had set in motion. Those excursions could have antedated PW2's and Ah Ngau's formalised arrangements for "meal money" from vice stalls for police constables on Anti-Crime patrol. I will have more to say on the extent of the conspiracy in due course. Suffice it to say for the time being that there were no relevant admission in either Exh. P14 or Exh. P15 to show that D5 was involved in the arrangements between PW2 and Ah Ngau for "meal money" for police constables on Anti-Crime Patrol. As there was only the uncorroborated evidence of PW2 on this aspect, I was not prepared to make any findings of fact against D5 on this.

92. For similar reasons I regarded D1's admissions in P16 relating to his excursion to various apartment houses one night as irrelevant.

93. In so far as Ex. P15 is relevant, i.e. the parts dealing with the "horse racing account", the Defence argues that contradictions between its version of events and the versions given by the accomplices PW2, PW3 and PW4 who implicate D5 tend to suggest that the content of P15 is not true. D5 claims that Exh. P15 is the creation of ICAC officer Cheng (PW19).

94. There undoubtedly are differences on peripheral matters (see the summary of Mr. Shuen's arguments at page 2522 of the record) but the evidence as a whole in the case has eliminated any fabrication by Cheng or other ICAC officers as a reasonable possibility. I was convinced at the end of the case that Exh. P15 was D5's own creation and that what it relates is basically true. The discrepancies arose, I am sure, from the phenomenon that people's memories play tricks on them. In this category I would put the variation between PW4's evidence that D5 paid him $70, whereas Exh. P15 puts the figure at $40. Also the same could be said about Exh. P15's version of the incident where D1 is supposed to have gambled away the 8th Platoon's police constables "meal money". Perhaps D5's recollection is faulty when he relates in Exh. P15 that PW2 claimed he had given the police constables' meal money to D4 (the Platoon Sergeant) for distribution among the police constables. That would contradict PW2's evidence that the chain of distribution of that money was other than through the Platoon Sergeants. However it is also possible that on this particular occasion the money could have gone through the Platoon Sergeant. The system PW2 described was clearly a highly flexible one where adjustments and variations were made to meet special situations.

95. Defence Counsel also pointed out that Exh. P15 refers to each of the platoons collecting its meal money "from the off-course betting stalls which were operated in the 'stand' or 'booth' it patrolled." whereas PW2's evidence had been that such money was collected from Ah Ngau's representative. I saw nothing significant in this and, concluded that D5 was just speaking loosely about this. Even if the money was collected from Ah Ngau's representative it was derived from the stalls, so it was not so unnatural for someone to speak loosely of the money being collected "from the off-course betting stalls".

96. Having weighed all the evidence, including D5's denials on oath, I accepted the prosecution version of how D5 made Exh. P15 and the combined weight of Exh. P15 together with the evidence of PW2, PW3 and PW4 proved beyond reasonable doubt the facts I found against D5. I was sure that the only reasonable explanation of Exh. P15 was that its contents were basically true: D5 is not the type of compulsive individual who goes around owning up to things he might not have done, nor are D1 to D4. Adding the content of Exh. P15 to their testimony also corroborated that PW2, PW3 and PW4 had told the truth about D5.

III Findings of Secondary Fact

97. In conspiracy cases, whether an accused has joined in an agreement with others to carry out an unlawful scheme is normally a matter of inference to be deduced from overt acts consistent only with the existence of such an agreement. Also the state of knowledge and the intention of an accused is usually a matter of inference.

98. The present is one of those rare cases, at least in so far as D2 and D4 are concerned, where there is direct evidence that they participated in bringing into being an agreement for an illegal scheme. Their admissions and the evidence of PW2 chronicle the steps by which this was done.

99. Participating in the setting up and implementing of the scheme, D2 and D4 clearly had full knowledge of what was happening, and the inference is irresistible that they intended this illegal scheme to come into existence and to continue to function. D2 and D4 were fully involved in both aspects of the illegal scheme, namely the part relating to illegal book-makers at the race course and the part relating to the vice establishments in the Divisions.

100. There was no direct proof of D3 agreeing with others that an illegal scheme should be set up or that it should continue. All that was directly proved against him was that for the occasions he was on race duty he received regular payments of money which he knew came from the illegal gambling operators at the race-course. Nonetheless, I find the inference irresistible that D3 knew full well he was part of a scheme involving "B" Company personnel to receive bribes from the illegal book-makers at the race course, and he intended to participate in that scheme. As a matter of common sense any police officer receiving regular payments in the way D3 did would inevitably know he was part of a corruption syndicate. That D3 knew he was part of a wider corrupt scheme than just himself and whoever it was that actually paid him his share of bribes can be gathered from the following exchange between ICAC officer Tsui and D3 (see p.1336 of the record):

Tsui: "I have reason to believe there has been a corruption syndicate in Police Tactical Unit "B" Company between February and April 1976 involving sergeants of all 3 platoons".

D3: "Yes, everybody was in it but it was not that long. It only lasted about 3 weeks."

Tsui: "How many of them are receiving money?"

D3: "Almost 20. All sergeants and a few police constables."

There might be many details that he did not know about the syndicate, but that it existed and that he was one of its members he would know full well. In the language of conspiracy cases, D3 "adhered" to the scheme. (See R. v. Simmonds 1969 1 QB 685 at 696F) He was not a founder member; he was not even a full member as I have not found it proved that he enjoyed a share of the "weekly account", but, nonetheless, he was a member to the extent of participating in the horse race "account" activities. Most of the remarks I have made about D3 apply mutatis mutandis to D1 and D5. They only know directly about the police constables' horse race "meal money" end of the scheme. Even if they only knew a part of the overall scheme and did not know the full extent of the network of people involved in it, they, nonetheless, were fully aware that they were participating in a syndicate, some, at least, of the common purposes of which they shared. Any policeman receiving money in the circumstances admitted by D1 and D5 would, I am sure, have a conscious understanding that the scheme extended to far more people than the few he personally knew to identify as belonging. As a matter of common sense a police officer would know that such a scheme would have to include a lot of his colleagues and a lot of book-makers, for otherwise it could not function at all at the race-course. Each of D1 and D5 knew he had joined a pre-existing corrupt scheme and was adhering at least to the common design of "B" Company leaving the book-makers alone in exchange for bribes.

IV The Nature and Extent of the Conspiracy

101. A question arises whether the facts I have found proved disclose one all-encompassing conspiracy or several separate conspiracies. As I understand the position it will be a question of mixed law and fact whether a given situation amounts to just the one conspiracy or several.

102. The several conspiracies which the Defence says can be discerned are one for the "horse racing account" for sergeants and above, another for the "weekly account", and yet another for the police constables horse-racing "meal money". (There would also have been another for the police constables' "meal money" from vice establishments had the prosecution's allegations about this come up to proof) In arguing for one all-encompassing conspiracy the Prosecution claims that what the Defence see as several conspiracies are merely phases of the same conspiracy. That was the approach in R. v. Greenfield & others 1973 IWLR 1151 which gives a useful summary of the law on this topic.

103. I have come to the conclusion that the correct construction of the proved facts is that they reveal just the one conspiracy pivoting around the central figures of PW2 and Ah Ngau. Those two characters provide the continuity between all the phases of the conspiracy, and they provide the link with all the participants. Another way to look at the problem is to say that the evidence proved one conspiracy, albeit a conspiracy based on more than one overt act. That was the approach in R. v. Hammersley (1958) 412 Cr. App. R. 207 at 216.

104. The basic object of the conspiracy was to enrich all the participators from a symbiotic relationship in which police officers from "B" Company for their part agreed for bribes to refrain from action which might hinder participating civilians in their activities, whether operating gambling at the race-course or the running of different types of vice establishments in areas to which "B" Company's duties might take them, and for their part the civilians could rest assured that so long as they paid the bribes they could pursue those activities free from worrisome police interference. In essence it was a scheme for those engaged in vice of one type or another to bribe a section of the police.

105. D2 and D4 knew the whole scheme, whereas D1, 3 & 5 knew only a phase of it. However, that did not prevent them from being co-conspirators in the same scheme. As was said in R. v. Griffiths (1965) 49 Cr. App. R 279 at 290 "They may join in at various times, each attaching himself to that agreement, any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attached himself but what each must know is that there is coming into existence or is in existence a scheme which goes beyond the illegal act which he agrees to do".

106. Although the police constables' horse-racing "meal money" arrangement did not come into existence till well after the horse racing and weekly "accounts" had been set into operation, it evolved from the original agreement and was no more than a phase of its implementation. Also, without developing the scheme so as to let the police constables join in it, the sergeants' weekly horse racing "account" would have foundered as the result of the police constables' obstructive action in arresting book-makers.

V The Charges

107. Although the Crown has laid two counts, it has all along conceded that they both stem from the same conspiracy.

108. The first count in essence charges the accused with conspiracy to engage in conduct of a type prohibited by section 4(2) of the Prevention of Bribery Ordinance, Cap. 201, i.e. the acceptance of advantages by public servants. In so far as D1 to D5 are concerned the facts proved against them bring them squarely within that count.

109. Up till the close of the prosecution case, the Defence sought to show that the non-Jockey Club book-makers at the race-course were not committing any offence by carrying on their book-making there, and further that it was no part of "B" Company's duty to take any action against those book-makers. The Defence were seeking to lay the foundation for an argument along the lines that, at least as far as the horse racing aspect of the conspiracy was concerned, even if the Prosecution proved its allegations of payments to police officers from the horse racing "accounts" this would not mean they had abstained from performing their duty as public servants, and unless such abstaining was established an essential ingredient of a charge based on section 4(2) would be missing. The fallacy of this line of reasoning has been exposed in such cases as R. v. LUK Shun 1966 H.K.L.R. 820, R. v. KONG Kam-pui 1973 H.K.L.R. 120, SO Sun-leung v. R. H.K. Cr. App. 261/73 and R. v. Godber 1975 H.K.L.R. 320 at 353, 355 & 356, and once those cases were drawn to their attention Defence Counsel gracefully conceded they could no longer rely on their argument in this regard.

110. In considering the corruptness of the payments made to the police officers in the present case, the correct question to ask, according to R. v. KONG Kam-pui, is, "Would those payments have been given or could they have been effectively solicited if the persons in question were not the kind of public servant they in fact were?" The answer is "Of course not. The payments were only made to them because they were police officers".

111. Whether the second charge could also be supported by the proved facts I regard as a matter of academic interest only. Those accused against whom there are incriminating facts are all caught by the 1st Charge which embraces all the facts found against them. To convict them on both charges would not be fair, for then their criminal record would subsequently make it appear they had been guilty of involvement in two conspiracies whereas the true position is that they have been engaged just in the one; hence the second count against them will be dismissed.

VI Verdicts

112. In view of the foregoing I find D1, 2, 3, 4 & 5 all guilty on the first charge but dismiss the second charge against them. In respect of D6-D11 I find each of them not guilty on both counts.

Representation:

Mr. Whetter, counsel for the Crown.

Mr. Shuen & Miss Tam present.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 205 OF 1976

249

250

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Coram: Judge Rhind, D.J. in Court.

Date of Judgment: 11 March 1977

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RULING

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Unless the Crown proves affirmatively beyond reasonable doubt that a challenged statement of an accused person was made voluntarily, that statement is necessarily inadmissible. A simple formulation of how a judge should approach this task of determining voluntariness has been provided by Lord Hailsham in the recent House of Lords' case of Director of Public Prosecutions v. Ping Lin 1973 3 All E at 183: "In the light of all the facts in their context, he (the judge) should ask himself this question and no other: 'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage or held out by a person in authority or by oppression'". That is also the test enunciated by Lord Reid with the concurrence of the other Law Lords in The Commissioners of Customs & Excise v. Hang & Power 51 Cr. App. R. 123 at 155. What is embraced by the concept of "oppression" has been extensively explored in a line of cases including R. v. Priestley 51 Cr. App. R 1; R. v. Prager 1972 1 All E.R. 1114 and R. v. Clarke 1973 N.I.R. 45. Particularly helpful on the meaning of "oppression" is this passage of Sachs J. in Priestley "... to my mind this word, in the context of the principles under consideration imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary. Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, whether the accused has been given proper refreshment, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world".

Even if the Crown succeeds in establishing that a statement is voluntary in the sense just described, I still regard myself as possessing a discretion to exclude it on account of unfairness, whether arising by virtue of breaches of the Judges Rules (in Hong Kong the 1918 formulation applies), or because the prejudicial effect of the statement would outweigh its probative value, or because in some more general way to admit the statement would seem unfair. This latter notion is usually described as a residual discretion to exclude.

With the reservation that at this stage of the trial I can only make a provisional assessment of the credibility of the witnesses (including D1-6) whom I have heard, my approach to determining whether this special issue of voluntariness has been proved will be the same as that to be applied to the general issue of guilt at the end of the whole trial. Concerning the onus and standard of proof in criminal cases I have sought to bear in mind the well-known principles recently reiterated by the Court of Appeal in R. v. Aplin & others: 707/76 and also the following passage from the Full Court case Lok Chi-wai v. R., Criminal Appeal No. 845/73 which offers useful guidance on proof in a criminal matter: "I think it is a fundamental part of the judicial function to resolve any conflict in the material evidence, it being always remembered that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence, but between the truth and possible falsehood of the story told by the witnesses for the prosecution. There are usually two matters which enable a judge to resolve the conflict. One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is his assessment of the credibility of those witnesses from their demeanour."

For ease of exposition I will dealt with the defendants according to the chronological order in which they were arrested.

D5

I accept the Crown's evidence that D5 was arrested at 9.55 a.m. on 7th June and taken to Hutchison House at 12.30 p.m.

It is common ground that D5 was made aware that the reason for his detention by ICAC was an allegation by Inspector Powell that he had been involved in an incident at Shaukiwan the previous March when Sergeant 7149 (PW2) had handed Powell a bribe in the presence of D5 and PC8869 (PW3). D5's interrogation on 7th June was concerned solely with that incident which I am satisfied was the full extent of ICAC's knowledge of corruption in "B" Company at that stage.

That afternoon D5 underwent an interview of almost 5 hours duration with Lok (PW13) and Cheng (PW19), the exact times being from 2.20 p.m. to 7 p.m. During the course of that interview D5 was told of Powell's detailed allegations against him.

At this point it will be convenient to make some general observations on ICAC's practice, as revealed by the present case, of informing a suspect of specific allegations made against him in a statement by another suspect or co-accused and then asking for comments on those allegations. A variation practised by ICAC on the same theme has been to show the suspect such a statement prior to asking him what he has to say about the allegations it contains against him.

I find nothing per se reprehensible in this method of interrogation. So long as the accused has been made aware of his right to remain silent - and in the present case I am sure that each of D1-6 being policemen were well aware of that right besides being reminded of it by cautions from ICAC officers at appropriate times - and so long, of course, as there was no accompaniment of threats, inducements, oppression or other types of unfairness, I can see nothing wrong with this interrogation technique.

At first blush it might appear that this interrogation method infringes Rule 8 of the Judges Rules but in the light of the explanation of the purpose of Rule 8 in R. v. Mills 1946 2 All E 776 I do not think such a breach could have any significance in the present case. Lord Goddard in that case explained that if the contents of a co-accused's statement are put to an accused and the jury are then told about this, it can lead to inadmissible hearsay coming to their attention for the co-accused's statement is not evidence against the accused. As a professional judge I am fully aware of the elementary principle that a co-accused's statement to the police is not evidence against another accused and I realize the need to discard such inadmissible hearsay from my mind.

Even if this practice were technically in breach of the Judges Rules, I would not feel impelled to exclude evidence obtained as the result of it unless I considered it had resulted in some unfairness to the accused. A recent Hong Kong case where the Court of Appeal did not see fit to exclude evidence obtained by methods similar to those under discussion was Lee Chun Ming & others v. R. 1026/74.

One further general observation which can be made at this point is on the topic of whether ICAC were entitled to interrogate any of the accused at all in view of the undisputed fact that they were not mere suspects but accused persons in custody. At one time there was a school of thought that once a person had moved from the category of a mere suspect to an actual accused person under arrest he was not liable to be questioned at all except to clear up discrepancies in whatever he might have said already. As I understand the position, that view no longer prevails and law enforcement officers, whether Police or ICAC, are entitled to question accused persons they hold in custody, and, subject of course to considerations of voluntariness and fairness, admissions made are receivable in evidence. R. v. Prager & R. v. Clarke, already referred to, are illustrations of this.

Where an accused is detained by ICAC, the question arises whether section 10A(6) of Cap. 204 can affect the admissibility of statements resulting from interrogation. That subsection provides that a person who is detained at the offices of ICAC "....... shall be brought before a magistrate as soon as practicable and in any event within 48 hours after his arrest unless he is sooner released ......."

As I read that subsection it does not mean that ICAC can automatically sit back for 48 hours before bothering to take a detainee before a magistrate. They are required to take the detainee before a magistrate "as soon as practicable", and in the case of all of the accused who made statements (except for D1 who was arrested in the evening and made his admissions that same evening) the Crown case discloses no reason why it would not have been practicable to take them in front of a magistrate long before they made their admissions. Those arrested in the morning could have been taken before a magistrate on the very day of their arrest in fact. What then is the effect of ICAC's failure to fulfil the requirements of section 10A(6)?

I regard section 10A(6) as establishing what is sometimes described as a provision of "imperfect obligation": the requirement is directory rather than mandatory. A confession made by an accused after it was practicable to take him before a magistrate will not by virtue of the mere fact of delay thereby be rendere inadmissible. However, such delay will fall to be considered by the court in the context of "oppression" when determining voluntariness.

ICAC might well bear in mind for the future that taking an accused person before a magistrate as soon as practicable can serve not only to protect the rights of the accused but also to safeguard ICAC against insinuations of delay for the purpose of pursuing dubious investigatory tactics.

Returning now from general principles to the particular facts of D5's case, it is common ground that D5 denied all of Powell's allegations, as put to him by Lok in that interview which finished at 7 p.m. on the 7th June.

According to D5 the first instance of ICAC impropriety occured at the end of that interview when Cheng said to him "We are not after P.C.s. You think it over clearly".

D5's next interview was with Barrett (PW12) and Cheng, and I find it lasted from 10 p.m. till 11.15 p.m. on 7th.

According to Barrett and Cheng, D5 was again questioned concerning Powell's allegations, and this time he made extensive oral admissions about a trip he made with Powell, PW2 and PW3 to Shaukiwan at which PW2 paid D5 $50 of bribe money he collected at a village there (p.1394 of the record refers).

D5 disputes having made those oral admissions and maintains that the interview was occupied with Barrett and Cheng offering him immunity if he would cooperate by making a statement implicating someone of a higher rank than police constable and threatening him with the consequences to himself if he failed to make such a statement. In consequence of this promise of immunity, so D5 says, he signed the disputed statement (Exh. MFI P14) which I gather covers the same ground as the oral admissions he allegedly made to Barrett and Cheng.

Both Barrett and Cheng denied any impropriety, and at the end of these voire dire proceedings, having considered all the evidence so far, including what the witnesses had to say and how they said it, I find that Barrett and Cheng told me the truth, thus negativing any suggestion of impropriety. Both Barrett and Cheng made a good impression on me and it strikes me as unreasonable to suppose that either of them might have perjured himself.

It is urged on D5's behalf that it would be unnatural for him to want to confess in view of his previous denials unless some new development such as an offer of immunity had occurred. The psychological mechanisms which prompt people to confess are extremely complex, and I find nothing surprising in D5 wanting to confess for reasons other than that threats or promises were held out to him.

D5 dictated that statement to Cheng between 11.55 p.m. on the 7th and 2.40 a.m. on the 8th, so I find.

In respect of some people a day such as that undergone by D5 with long interviews, capped by the taking of a statement in the small hours of the morning, might result in their will-power being undermined, so that their admissions could not be said to be voluntary, but I am sure there was no risk of that having occurred in D5's case. From my observations of him in court I am sure he is well able to look after himself even in unfavourable circumstances.

Even while D5 was dictating his statement Exh. MFI P14, the evidence discloses that ICAC got their big break-through in the present case: on the night of the 7th and early morning of 8th June PW2 made his revelations of syndicated corruption in B Company, and one of the names he named was D5's.

Thus, on the 8th at 12.15 p.m. D5 had his next interview, this time Barrett and Cheng putting to him the allegations now made against him by PW2. By this time I am satisfied D5 was properly rested.

I accept the evidence of Barrett and Cheng that D5 made oral admissions in that interview which seems to have gone on till about 12.40 p.m., and reject D5's explanation that he denied these allegations and only agreed to make a further incriminatory statement after Cheng told him it would assist his getting immunity.

Between 3.20 p.m. and 10.35 p.m. Cheng took a written statement (Exh. MFI P15) under dictation from D5. Though there might have been the odd break for D5 to phone his wife, to take refreshment or go to the toilet, the impression I got was that Cheng and D5 were almost continuously engaged between the times I have mentioned in taking that statement or attending to related ICAC business such as confronting D1. In D5's case I do not regard such a long interview as possibly oppressive.

PC8809 (PW3) who was arrested at the same time as D5, gave evidence about two encounters he had with D5 on 8th June. As I regard PW3 as an accomplice with possible purposes of his own to serve, and also bearing in mind the limited form of immunity granted him by ICAC which leaves him in a position where he has cause to ingratiate himself with ICAC by giving evidence favourable to them, I have treated his evidence with great circumspection.

It is common ground there was a confrontation between PW3 and D5 at ICAC on the afternoon of 8th June. I accept the evidence of Cheng and Barrett who claim to have been present regarding what was said.

According to Cheng D5 said to PW3 "I have told the truth about the money from the race-course", whereas according to PW3, D5 said "Things have come to such a situation. 7149 will divulge everything sooner or later. What about letting us tell everything now".

This discrepancy among the prosecution witnesses does not lead me to infer that any of them are lieing on this. I accept Barrett and Cheng's version as the accurate one, bearing in mind they made notes shortly after the event. I got the impression that PW3 was hazy in recalling conversations and just tried to tell the court the gist. D5's version of this confrontation is entirely different. According to him no ICAC personnel were present at it, and he told PW3 that ICAC had offered him (D5) immunity. PW3 in his evidence denied that D5 had mentioned being offered immunity. I reject D5's evidence regarding this confrontation.

If before making the statements Exh. P14 & 15, D5 had made remarks to PW3 to the effect that he was expecting immunity, this might have tended to raise doubts concerning the credibility of Barrett and Cheng in denying that any such offer had been made. Even then the significance of such a remark from D5 would not necessarily have been all that great as he could have been relying on his own guess-work rather than anything said by any ICAC officer.

By observing to PW3 after they were granted bail on 9th June "They are after sergeants and not police constables", D5 does very little to undermine the credibility of Barrett or Cheng. At that stage D5 would have had plenty of time to think over the effect of the statements he had made on the 7th and 8th, and he could have reached the conclusion in his own mind that ICAC were not after police constables as the result of self-induced optimism and intelligent guess-work.

The second encounter PW3 had with D5 on 8th June was the occasion of the confrontation with D1. Again I accept Barrett and Cheng's version of what happened. Present at that confrontation was also ICAC officer Danny Lau. The discrepancies among the prosecution witnesses regarding what was said at that confrontation were not of a nature to suggest that any of them were lieing. Those who did not take notes had to rely on fallible memories. In his evidence PW3 gave two different versions of what D5 is supposed to have said (see pages 744 and 807) but the gist was the same.

Regarding this confrontation D5 and D1 gave almost identical evidence. They said in effect that this confrontation was the idea of Barrett who wanted to use D5 and PW3 for the purpose of persuading D1 to confess. It was urged by the Defence that it was inherently unlikely that D1 would of his own initiative have sought to see D5 and PW3, and for Barrett to suggest otherwise was indicative of how he was not worthy of belief. I will be dealing with this confrontation more fully in connection with D1's case, and, for the time being, suffice it to say that in the circumstances in which D1 found himself I regard it as wholly natural that he would have wanted to see D5 and PW3.

It was common ground that D5 went back to ICAC at Cheng's request on 12th June, and the Defence maintain this could only have been for the purpose of Barrett and Cheng keeping up the pressure on him to be a Crown witness in exchange for immunity. By itself the mere fact of Cheng asking D5 back to ICAC on the 12th does not indicate to me that ICAC was up to anything sinister, and has no effect on my view of the credibility of the witnesses in this case.

While on the topic of credibility D5's description of how he was prepared to sign the statements without even reading them struck me as far fetched as did in fact his whole explanation of how the statements came to be made.

As I am sure that D5 made the statements Exh. MFI P14 & 15 voluntarily and as I have not discerned anything in the nature of unfairness which might prompt me to exercise my discretion to exclude, I have decided to admit both statements into evidence.

D1

D1 was arrested at 6 p.m. on 8th June.

It is clear from the evidence that within two and a half hours he had an interview with Barrett and Lau and he was informed of the detailed allegations of corruption made against him by D5 and PW3 in their statements to ICAC. D1 was already aware that D5 and PW3 had been arrested.

According to Barrett and Lau, D1 asked to be given the opportunity to see D5 and PW3, whereas D1 claims the confrontation was arranged by Barrett, unbeknown to D1.

I find it perfectly natural for D1 to want to see his colleagues in the circumstances in which he found himself. As he only had the word of ICAC officers on what his colleagues were supposed to have said about him, he might well have suspected some sort of trick to get him to confess, and the persons best able to tell him what had happened so that he would know where he stood were those very colleagues themselves. That persons can in fact want to confront their accusers can be discerned from the behaviour of D6 who wanted to see the colleagues who had named him. Of course, what D6 did is entirely collateral to anything D1 did several days earlier, and I do not suggest it has any probative value as far as D1 is concerned, but I only mention it as an illustration of how there is nothing strange about someone wanting to confront those who have implicated him.

PW3's version of how it came about that he went in with D5 to confront D1 is that Barrett came in to him and said "Perhaps you and D5 would go in and advise D1". PW3 says he understood Barrett to mean that he and D5 should advise D1 to admit taking part in corruption. From Barrett's evidence I am satisfied he did not intend PW3 to understand that and the words "Perhaps you and D5 would go in and advise D1" are consistent with Barrett meaning no more than that PW3 and D5 should go in and advise D1 that they had actually made the admissions which ICAC claimed they had. Further PW3's power of recall did not strike me as very good, and to the extent there is any apparent conflict between his and Barrett's recollection, I accept Barrett's evidence.

If I thought Barrett had sent in D5 and PW3 other than at the invitation of D1, I would have excluded D1's subsequent admissions as I would have regarded them as unfairly obtained. Also if I thought Barrett might have got up to tricks like that it would have affected my whole attitude towards his credibility.

I found that at the confrontation D5 said to D1 something along the lines of "We have told ICAC everything" or "We have told them the truth". There is a slight discrepancy between the evidence of Lau and Cheng on this but I am sure they have fairly conveyed the gist of what happened on that occasion.

To allow such words to be spoken to D1 in the presence of ICAC officers who are undoubtedly "persons in authority" does not to my mind involve any hope of favour, fear of prejudice or oppression.

Even one of PW3's versions of what was supposed to be said would not have given rise to involuntariness, the words being "Spy, better admit it. If you don't 7149 will sooner or later tell everything". Spoken to someone like a police officer, I do not regard it as realistic to imagine such words might deprive him of his free will to choose to remain silent.

D1 and D5 support each other regarding what was said but I reject their evidence.

Prior to the confrontation D1 says that Barrett made various threats about how he would go to gaol or be driven to suicide, with ruinous effects for his family unless he cooperated with ICAC by making a statement but promised him immunity if he did. Likewise Cheng too is supposed to have urged D1 after the confrontation to cooperate by giving a statement in exchange for immunity. Whether any of the improprieties occurred is largely an issue of credibility, and I am sure there were no such happenings.

According to Barrett and Cheng, D1 proceeded to make extensive verbal admissions immediately after the confrontation, and I accept their evidence on this, despite D1's denial that this ever occurred. I see nothing strange in D1 wanting to cooperate with ICAC once he realized from D1 and PW3 that the game was up.

It is common ground that Cheng wrote out a statement (Exh. MFI P16) which D1 signed at about 2 a.m. on 9th June. According to D1 he did not dictate it and did not even know what it contained prior to signing it. He claims it was the creation of Cheng and after he agreed to cooperate with Cheng after Cheng offered him immunity, Cheng just went ahead with writing out the statement. I accept Cheng's evidence on how it was done.

That statement commenced at 11.55 p.m. and finished at 2 a.m.

For someone who was not robust, the taking of a statement at that time of night could be an ordeal which might amount to oppression, but D1 does not fall into that category.

The statement Exh. P16 was made voluntarily, and I can see no reason to exercise my discretion to exclude. Hence it will be admitted into evidence.

D6

Although I am prepared to accept everything the Prosecution witnesses have said about how D6 was treated while in ICAC's custody, I am, nonetheless, not satisfied that the Prosecution has succeeded in eliminating the possibility that D6's verbal admissions and written statement MFI P17 resulted from "oppression" of the type that wore down his will-power, so I have decided to rule this challenged evidence inadmissible.

D6 was arrested at about 8 a.m. on 11th June, and that day had three separate interviews with ICAC officers regarding allegations made by D5 and D1 that he was implicated in the corrupt syndicate. Consistently he denied and offered the explanation he was being framed because he was unpopular with his colleagues.

Next day at 8.30 a.m., the interviews were renewed and the same ground was raked over again. At 2.20 p.m. he had a two hour interview, resulting in his giving a written statement on why he though his colleagues were framing him. At 5.50 p.m. there was yet another interview. Had there been a suggestion of some fresh development in the case so that there was new material to put before D6, as there was with other defendants in the case who were detained for periods comparable with D6, there might have been some justification for this latest interview, but nothing of that sort had occurred. By then the words of the caution "You are not obliged to say anything", which were no doubt dutifully recited to D6 at every interview, must have had a somewhat hollow ring about them. He could have been forgiven for thinking that he was free to say anything so long as it was a confession.

The manner ICAC went about treating D6 strongly suggests to me that ICAC is under the impression it has 48 hours in which it can try to wear down the resistance of its detainees. The sooner ICAC disabuses itself of any notion that section 10A(6) of Cap. 204 confers on it an "open season" of 48 hours for unrestricted interrogation, the better.

How long ICAC can continue to interrogate before crossing over the line where their conduct becomes oppressive must depend on the circumstances of the particular case and the personality of the individual under interrogation.

Certainly by the time D6 gave his written denials on the afternoon of 12th June, I think ICAC had gone as far with their interrogation as they were entitled to go.

Having observed D6 in court I cannot say I am sure that ICAC's tactics could not have sapped his free will to the point where he felt obliged to give the only type of answer which would satisfy his interrogators: a confession.

I regard his oral admissions to Barrett and Cheng, his remarks to PW4 which could be construed as admissions and his written statement Exh. P17 as al subject to the same taint of oppression, and I rule them all inadmissible.

D4

There was substantial agreement between the prosecution and defence concerning the sequence and duration of the interviews carried out by ICAC officers with D4 from his arrest at 5.15 p.m. on 22nd June till he signed the disputed statement Exh. MFI P11 at 2.10 a.m. on 24th June.

His interrogation can conveniently be considered as falling into two phases. The first such phase covers the period from the time of his arrest till the afternoon of the 23rd June when ICAC became aware that members of D4's family were in control of share certificates worth some $500,000. The second phase covers the period after that.

In respect of the first phase D4 makes no complaint of any overt improper behaviour by his interrogators in the form of making threats to him or offering him promises. However, it is urged on his behalf that even in this first stage there might have been some oppression or unfairness.

The interrogation in this first phase was conducted by Barrett and Pratt (PW14) and basically took the form of apprising D4 of the contents of PW2's statement in which D4 was named as implicated in syndicated corruption, and asking D4 why one of his colleagues would name him in this way if it were not true.

Brief details of the interviews in that first phase are as follows. The first interview was a joint one conducted by Barrett and Pratt from 10.5 p.m. to 11.40 p.m. on the 22nd. On that occasion D4 was told of the contents of PW2's statement. The next interview was by Pratt alone from 10.30 to 10.45 a.m. next day. Then Barrett alone had an interview from 11/45 a.m. till noon, during the course of which he actually showed PW2's statement to D4, and Pratt followed that up with an interview at which he was alone with D4 (apart from a guard) from 12.15 p.m. to 12.40 p.m. That marks the end of the first phase of interviews.

At all those interviews D4 strongly denied PW2's allegations, but depsite those denials his interrogators persisted with the theme of why should PW2 lie.

I see nothing to complain of in the way the interrogations in this first phase were conducted. Barrett and Pratt were entitled to press their questions up to a point, and I do not think they overstepped the mark. As one would expect of a platoon sergeant, D4 impressed me as a strong character, and nothing occurred which was even remotely likely to sap his will-power or which might amount to unfairness as far as he was concerned.

The crucial new element in the second phase of the investigation was ICAC's becoming aware of the $500,000 worth of share certificates ...(illegible) the control of D4's family. It is common ground that D4 was now questioned by ICAC on the basis he was suspected of an offence under section 10 of the Prevention of Bribery Ordinance Cap.201 of being a government servant having assets disproportionate to his emoluments under his own or his family's control. Where the prosecution and the defence differ is that, whereas the prosecution witnesses claim they limited themselves to questions seeking further information from D4 concerning the source of the wealth used to buy these shares, D4, by contrast claims that the threat of a section 10 charge against him or his family was used as a lever by ICAC officers to exert pressure on him which resulted ultimately in his making the signed confession contained in MFI P11. The prosecution contends that any fears which might have beset D4 were self-induced; D4 says they were induced by the improper conduct of ICAC officers.

For this second phase there is no dispute regarding the times or duration of the interviews, nor of the ICAC personnel involved. The issue as I see it is basically one of credibility.

Barrett and Pratt told the court of an interview decorously conducted at 7.30 p.m. in which for an hour D4 was asked about the shares, and also he was asked again about PW2's allegations. Barrett acknowledges that in reply to a query from D4 that he let D4 know it might be possible ICAC would want to make enquiries from his relatives concerning the shares. Even on the prosecution version of what happened, there can be no doubt that the now line of enquiry was causing D4 anxiety, but the prosecution version does not disclose any attempt to play unfairly on those anxieties.

I see nothing oppressive in Barrett again going over PW2's allegations at this interview.

Nor do I see anything wrong in Pratt persisting with questions on PW2's statement when Barrett went off at 8.30 p.m. D4 continued to deny according to the prosecution.

If Pratt is to be believed the turning point came after Pratt switched the conversation to a more friendly, personal level. Following some general conversation about their careers and their families, D4 made some remarks to Pratt from which it was apparent that D4 was on the verge of making some admissions. That was about 9.45 p.m. If what Pratt said about this interview is true, I can see nothing for the defence to complain of in the way it was conducted.

The last relevant interview was the one conducted by Tsui and Kung between 10.10 p.m. till the statement Exh. P11 was signed at 2.10 a.m. If what they say is true they only looked in on D4 for a welfare visit, and it was D4 who pressed them to stay so that he could unburden himself. That would mean that D4 could hardly complain about the lateness of the hour at which the statement was taken.

By contrast D4's version of what happened on those occasions was very different.

Even before the interview with Barrett and Pratt at 7.30 p.m, Kung had looked in on him, D4 said, and foreshadowed trouble by telling him he would not be able to explain away the value of the shares which had come to light.

At the interview with Barrett and Pratt at 7.30 p.m. threats and inducements of the most blatant variety were proferred by Barrett, so D4 said. If he were to cooperate he would get benefits, but if not his family including his in-laws and wife and baby could be arrested in connection with the shares, his father-in-law could be investigated by the Inland Revenue Department for tax evasion in respect of the money used to buy the shares or alternatively his father-in-law's assistance might be enlisted to frame him as having furnished the funds for the shares. Pratt after Barrett's departure, is claimed to have urged D4 to cooperate with ICAC in the manner indicated by Barrett, and to have pointed out the dire consequences to D4's family who could be arrested if D4 failed to cooperate.

Tsui and Kung are claimed to have been as beastly as Barrett had been in the threats they uttered, and Kung, who admittedly had seen D4's father-in-law on the morning of 23rd June, is alleged to have told D4 that his father-in-law would chop D4 to death if anything went wrong with the shares. The way to avoid all this was to confess and immunity would be available too.

I accept the evidence of the ICAC witnesses regarding what happened at these interviews, and am satisfied that neither individually nor collectively did they perjure themselves.

Obviously D4 was highly vulnerable to improper pressures once suspicion of a section 10 offence was attracted to him by the discovery of the valuable shares. However I am sure from the evidence that the circumstances of the shares was not used as a lever to force D4 into admissions regarding the corruption syndicate. It was perfectly proper for Barrett and Pratt to want to make enquiries from D4 regarding the shares once they came to know about them and I am satisfied they went no further than they were entitled to with their investigation.

No doubt D4 was full of anxieties as anyone in his right mind would be if he were being investigated by ICAC, but I am sure the ICAC officers investigating this case did nothing to increase those anxieties beyond doing what they told the court they did.

It was urged on D4's behalf that it was unlikely he would wish to confess to Tsui whom he had not even met prior to the welfare call that evening. I see nothing strange in that, and from D4's point of view it can have mad

he described the ICAC officers having made to him. The suggestion they threatened to arrest his one and a half year old baby (later modified to saying they threatened to arrest his wife so that the baby would be sent to an orphanage) and that his father-in-law was threatening to chopper him to death struck me as particularly far-fetched. Very possibly D4 did have fears for his baby's welfare and feared his father-in-law's anger once ICAC let D4 know they were interested in the shares but, building on his own self-induced fears, he has now come up with these allegations against ICAC officers which I am sure are the product of nothing more than his own imagination.

Also his description under cross-examination (p.2014 of the record) of how Kung composed the statement indicated to me D4 was not telling the truth. According to D4, Kung got him to assist in creating the statement by repeating what he had gleaned in the course of being interrogated regarding PW2's statement. For Kung to do that just would not make sense, and if Kung had fabricated the statement he would surely have done the whole thing himself to ensure the end result fitted in conveniently with what PW2 said in his statement. There would just be no advantage to Kung in having D4 go through the charade D4 described.

Regarding D4's complaint to Steele and to the CID of criminal intimidation, I regard that as self-serving. It is not uncommon for people to regret having made a confession once they have had more time to think over and discuss with others the implications of what they have done.

Exh. MFI P11 will be admitted into evidence as it has been proved to be voluntary and there is nothing in the circumstances in which it was taken which lead me to exclude it in the exercise of my discretion.

D2

D2, a sergeant, was arrested 8 a.m. on 23rd June and wrote out a confession Exh. MFI P13 the afternoon of the next day. The period of his detention thus overlaps D4's.

At the time of D2's arrest the extent of ICAC's information against D2 was limited to what they had learnt from PW2. During the night of the 23rd/24th June, though, ICAC's investigation of D2 got fresh impetus from the disclosures made by D4 in his statement Exh. MFI P11.

The prosecution picture of D2's interviews on the first day of his detention is not completely clear. From this I see no reason why I should necessarily infer anything adverse to ICAC on this account, for in a complex investigation it is not surprising that a little confusion creeps in here and there. As far as I can work out from the prosecution evidence, he was interviewed by Partridge and Tam at 10 a.m. but I am not sure for how long, and they also interviewed him from 5 p.m. to 5.55 p.m. Barrett and Cheng interviewed him between 6.10 and 6.30 p.m. (see Cheng at p.1424, though Barrett does not remember this: p.1092) and Kung, Tsui, Airth and Partridge gave D2 his last interview for the day between 8.38 and 8.55 p.m.

Of course, it is up to the prosecution not merely to negative an accused's complaints but also to prove positively that ICAC conducted its investigation without that type of oppression which renders a challenged statement inadmissible. Of course, the absence of complaints is an important factor in determining whether the prosecution has eliminated the possibility of oppression, and in D2's case he is not suggesting that he was worn down by the length and frequency of questioning. Looking at such evidence as there is, it is unreasonable to suppose D2 underwent any oppression by virtue of prolonged and persistent questioning on the first day. In this connection his own evidence does not give the impression he was undergoing exhausting questioning the whole time, and my conclusion is that the prosecution has proved to me that oppression was absent. Throughout that first day at all his interviews D2 denied all the allegations put to him on the basis of PW2's statement and I do not think ICAC stepped beyond the limit by persisting with such interrogation on the first day.

What he complains of on that first day is some fairly rough treatment and threats he claims he got from the former ICAC officer Airth in the presence of Barrett and Cheng in an endeavour to get him to identify Ah Ngau from a photo. Although Airth was not available in court to rebut this suggestion, I am satisfied no such incident would have taken place for, I find it hard to imagine that an officer of Barrett's rank would have stood by while such conduct occurred, and Cheng did not strike me as the sort of person who would cover up such behaviour.

Having got D4's statement overnight, ICAC officers were in my opinion entitled to continue the interrogation of D2 the following day by putting D4's allegations to him.

It is common ground that in D2's first interview that morning - I find it was at 8.30 a.m. - Tsui informed D2 that he had now been implicated by D4 in a statement. It is also common ground that shortly after that D4 was brought into D2's presence and nodded assent when asked by D2 whether it was true he had made a statement.

D2 disputes this but I accept as true Tsui's evidence that this confrontation was at D2's request. As I am satisfied this confrontation was at D2's request, I can see nothing objectionable in ICAC allowing it it occur. This confrontation falls into the same category as that between D1 and PW3 and D5.

According to D2 there now followed a whole morning of unpleasantness from Tsui and Kung, obviously designed to get him to admit. Besides a direct threat from Tsui to beat him to death, he was also deprived of any food or drink that morning. The previous day he claimed he had been ignored by Tam and Partridge when he had asked for a drink of water, and he also claimed that he had been deprived of sleep that night by the ICAC guard insisting on the lights being kept on and the air-conditioning at an uncomfortably cold level. If I thought there might be some substance in these allegations of D2 that he was subjected to physical maltreatment of this type, I would exclude any ensuing statement as involuntary, but I do not believe D2 on this.

I accept Tsui's and Kung's evidence that they conducted an interview in a proper manner between 10.10 and 1143 a.m., and that at 1.50 p.m. when Kung next saw D2, D2 asked to be taken to see Tsui to get permission to see D4's and PW2's statements as he wanted to know what they had said about him. Having by now had plenty of time to digest the fact that he had been implicated by 2 colleagues, D2 was obviously in a highly anxious state and was wavering about whether he too would make admissions. However I am sure his anxiety was self-induced and I see nothing wrong in the way Tsui and Kung acted towards him either before or after this point.

Having been refused D2's request to see D4's statement, I find that D2 asked to see D4 again and a further confrontation was arranged.

According to the prosecution D4 said to D2 at that confrontation: "You may consider I have betrayed you but having regard to the present situation we should all think for ourselves. I have told them everything about it".

While disputing that D4 spoke those words, the defence urges that if he did they amount to an inducement as one can read into them the meaning that anyone in the position of D2 and D4 should try to get whatever advantages he could for himself. With respect, I cannot discern any such meaning in those words.

Tsui and Kung state that D4 added, "Try your best to assist Mr. Tsui. Tell the truth". Perhaps those words might conjure up a hope of advantage if addressed, say, to a sixteen year old boy held under detention but I would regard it as unrealistic to suppose they might have that effect on someone like a police sergeant. In any event Tsui immediately mullified any harmful effect they might have had by intervening to tell D2 in effect that he need not say anything unless he wanted to.

D2 and D4 corroborated each other's version of what transpired at this confrontation but I disbelieved them.

Also I rejected D2's explanation of how the statement he wrote out was dictated to him by Kung. The Defence submitted that a pointer towards Kung's unreliability as a witness was his claim that he left D2 while D2 wrote out his statement. It is suggested Kung would not have left D2 alone in a room with confidential documents. However Kung never said he was left completely alone but with a guard (p.1330).

I will admit Exh. P13 into evidence as I am sure it is voluntary and there is no reason to exclude it.

D3

(Oral ruling in open court re voir dire reduced into writing in chambers later)

There is substantial agreement between the prosecution and D3 regarding the content of D3's oral admissions to Tsui and Kung on the morning of 30th June, which was the day following his arrest, and to Barrett and Tsui in the afternoon of the 30th. D3 disagrees on certain points of detail, though. For example, whereas according to Tsui and Kung at their interview on putting a question about how many persons in the Police Tactical Unit were receiving corrupt money, D3 is supposed to have replied "Almost twenty. All sergeants and a few police constables", D3's version is that he merely replied "Ten odd to twenty". Also D3 denied Tsui and Kung's contention that he said, "I am not going to commit myself to paper. Once I sign I would be finished. I am more or less resigned to serve a term of imprisonment".

A detail of the interview with Barrett and Tsui he denied is that in answer to the question "Which other sergeants received money" he replied "I cannot say. I do not want to talk about them or their families".

Flowing from the view I formed on credibility, I accepted the prosecution evidence on the content of D3's admissions at those interviews.

Far more serious than D3's contention that he had been misrepresented on some comparatively minor details of his admissions was his explanation of the circumstances which had prompted him to make any admissions at all.

It was common ground that Barrett together with Cheng had interviewed D3 on the afternoon of 29th June. D3 claims on that occasion Barrett in effect offered to try to save him from prison in exchange for cooperation from D3, Barrett and Cheng deny any such impropriety.

Although D3 concedes that Barrett's alleged conduct at that interview did not have any effect of him, I would, nonetheless, have felt obliged to exclude D3's subsequent oral admissions if if I thought it possible there might have been some truth in what D3 contended. The possibility would not have been excluded to my satisfaction that such conduct on Barrett's part contributed to D3's subsequent decision to make admissions. However I accept the prosecution version of what transpired between Barrett and D3 at that interview.

It is also common ground that Tsui and Kung called upon D3 at about midnight on the evening of 29th June to deliver some food and clothes which D3's wife had just brought to ICAC for him.

According to D3, Kung stayed on for a short while after Tsui left and promised to arrange immunity for D3 if he would cooperate with ICAC, and Kung further pointed out that D3 would then be able to go home and look after his family.

The prosecution evidence is to the effect that Tsui and Kung were together as all times during this visit and they left together so there was never even any opportunity for Kung to have such a conversation alone with D3. I find that no such conversation with Kung ever took place.

It is common ground that Kung was the first person to interview D3 on the morning on 30th June. According to D3 he then informed Kung he accepted Kung's proposals of the previous night and then Kung went on to explain how he should cooperate by giving the answer "Yes" when questions were put to him. That, so D3 explained, was how it come about he made his verbal admissions later that day to Tsui and Barrett. D3 also elaborated that having seen the statements of PW2 and D4 while being interviewed the previous day, he knew the answers which were expected of him, and he was able to answer according to what he had learnt from their statements. This in its turn raises another issue of fact as, while the prosecution witnesses admitted telling D3 the contents of the statements of PW2 and D4 plus that of D2, they deny actually showing him any statements. This too boils down to a problem of credibility.

This explanation of D3's on how he came to make his verbal admissions strikes me as far-fetched.

True, at the time D3 was in custody, he would have been particularly vulnerable to any proposal which might get him bail early and then subsequently keep him out of gaol because his freedom was especially precious then as he needed to tend to his pregnant wife. However, I find it unconceivable that anyone like a police sergeant, no matter how pressing his domestic problems, would have been so shortsighted and unintelligent as to go along with such a scheme where he merely had Kung's word to guarantee the promised immunity. Moreover to make admissions to two senior officers like Barrett and Tsui in reliance on the word of a junior officer like Kung makes no sense from D3's point of view. D3 would never have gone along with such a scheme because it was so obviously a trap.

Also from ICAC's point of view the proposal makes little sense. If ICAC officers were prepared to resort to improper stratagems to get D3 to incriminate himself, then surely they would not have confined their efforts to getting verbal admissions but would have settled for nothing short of a written statement as that could be expected to have greater evidential value, avoiding, as it would, disputes over the contents of the admissions.

Further, Kung could surely have been expected to tutor D3 in such a way as to produce answers which dove-tailed with the other information which ICAC already had. D3 in his admissions to Tsui said that he received his corrupt payments directly from PW2 who was not his platoon sergeant and then only on three occasions over a three week period. This puts D3 in conflict with PW2 who had informed ICAC that D3 would have been paid by his platoon sergeant at every race meeting from March to May, which far exceeded three in number. According to D3's evidence it was Kung who taught him to say that PW2 paid him, but for Kung to do that would be positively inimical to ICAC's case. Why would Kung want to add further complications to the case?

It might be argued that perhaps Kung was acting on his own and did not realize the value of getting a written statement from D3 and did not appreciate the significance of telling D3 to admit his payments came from PW2 rather than his platoon sergeant. However, if Kung acted in the way D3 suggests, and if also Barrett and Tsui have perjured themselves in the way D3 suggests, then there must be a high probability they were acting in collaboration on 30th June in getting D3 to play along with this charade. Between the three of them one would have expected them to contrive admissions from D3 of better calibre than those now in fact presented to the court.

How Tsui is supposed to have perjured himself is by covering for Kung in saying that he left with Kung after seeing D3 on the night of the 29th after delivering the fruit and clothes from D3's wife, and Barrett is supposed to have perjured himself in his denials of what he said to D3 at the interview with Barrett and Cheng on the afternoon of 29th. Also, by disputing D3's version of the content of some of the oral admissions he made to them, he is implying they are perjuring themselves on that too.

It is difficult to imagine that Kung, a junior officer, could have acted in the way he is supposed to, without the active concurrence of the more senior Barrett and Tsui. I concluded that each of those ICAC officers had told me the truth.

On D3's behalf, it was urged that his answer about being paid thrice by PW2 in conflict with PW2's version that he would have been paid by his platoon sergeant and more frequently, was consistent with D3's absence of knowledge on the topic of which he spoke, and hence gave support to D3's explanation that he was merely trying to carry out his bargain with Kung by answering in the way he did. If a person makes admissions which are demonstrably false, it of course adds colour to a suggestion that the admissions stem from improper pressures and prompting rather than remorse.

While recognizing the weight in this particular submission of D3's, it did not ultimately leave me with a doubt concerning the veracity of Kung, Barrett or Tsui. On reflection, it did not seem so strange that D3 answered in the way he did. Although D3 disputed this, Barrett told how in reply to the question "Which other sergeants received money?", D3 replied "I cannot say. I do not want to talk about them or their families". That answer is indicative of D3 not wanting to implicate his colleagues. There is nothing unusual about a person being prepared to own up to what he has done, but not wanting to tell on others. Having considered all the evidence, I am sure that something of this nature occurred here. D3 would not be causing any difficulties for any new person such as his platoon sergeant by saying that the money was paid by PW2, and as far as naming PW2 was concerned that could not do any fresh harm as PW2 was already fully implicated by his own confession.

As for why D3 should have told Tsui he received 3 payments only, this could have been the result of carelessness on D3's part, or he might have been trying to play down the scale of the syndicate's activities. Even while confessing, it is not unknown for people to tell part truth and part lies, to admit some things but not others. Why D3 answered in that way about 3 payments can only be speculated on, and I do not pretend to know the answer, but in the context of the evidence as a whole that feature of the evidence does not leave me with doubt on the truthfulness of the prosecution witnesses. It is alsopertinent to observe that by the time D3 was interviewed by Barrett in the afternoon D3 modified his account by saying he had received payments at each race meeting in March, April and early May.

That the ICAC witnesses gave evidence which exposed obvious discrepancies between the versions given by PW2 and D3 was indicative that they were not trying to frame D3. I suppose it could be argued that those witnesses were so Machiavellian that they deliberately introduced elements of disparity into D3's evidence in case a court's suspicions would be aroused if D3's evidence matched PW2's too mechanically. Having observed the witnesses I discount that possibility.

After weighing all the evidence, I was sure the prosecution witnesses told me the truth, thus eliminating the possibility that fear of prejudice or hope of favour were present to render D3's admissions involuntary.

Although D3 did not complain specifically of conduct amounting to oppression or other types of unfairness I had to be sure they were not present before allowing D3's admissions into evidence.

On the 29th June, D3 claimed there were two interviews with Barrett and Cheng rather than the one the prosecution spoke of and he also told of an interview with Kung and Tsui before dinner. I accept the prosecution version of the number of interviews that day and can detect no trace of oppression or unfairness in the way ICAC treated him that day, or for that matter at any time prior to his admissions.

Representation:

Mr. Whetter, counsel for the Crown.

Mr. Shuen & Miss Tam present.