HKSAR v. Pui Kam Fai and Another

HCMA1079/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA1079 OF 2004

(ON APPEAL FROM NKCC 1858 OF 2004)

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BETWEEN

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Before:  Deputy High Court Judge Line, in Court

Date of Hearing:  15 March 2005

Date of Judgment:  15 March 2005

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J U D G M E N T

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1.In this appeal, two appellants, who were D4 and D6 in the court below, seek to overturn their convictions for claiming to be a member of a triad society.  Their prosecution arose from the infiltration into a triad society of an undercover officer.  The undercover officer was introduced around to various people and, in the course of that, introductions were made, so the prosecution case ran, to D4 and D6 in a social context and that remarks were made upon the meetings which amounted to a claim by those two men to being members of a triad society. 

2.Mr Davies appears for D6; D4 is unrepresented.  The points raised by Mr Davies are based on, for the most part, the delay between the event in question and the subsequent identification parade which took place 17 months later.  His first ground of appeal in relation to his client, D6, is that the identification, in those circumstances, was manifestly unsatisfactory.  He also says - and this is his second ground of appeal - that the Magistrate did not specifically give himself a Turnbull warning. 

3.The evidence was that the undercover officer and his client had been together for some three or four hours in a social setting with ordinary lighting in a karaoke where they were socialising.  But after that, the undercover officer went home and wrote his note. 

4.Dealing with the second ground first, it is absolutely apparent why the Magistrate did not give himself a Turnbull warning using the exact words from that case because the way the trial had been conducted before him had not put in issue whether or not the undercover officer had made a mistake in saying that he had met and talked to D6 on the occasion in question.  I will read from the second question put of the cross-examination by counsel who appeared for D6 in the court below.  It was this:

“I put it to you that, in fact, you and So Kai met D6 and his friends in the street accidentally.”

5.And three pages later in the transcript, a further question by D6’s counsel:

“I put it to you that, in fact, it was D6 who introduced himself to you.” 

6.In other words, the defence run was not mistaken identity; the defence run was “you did meet the 6th Defendant, but he didn’t say what you said he did.” 

7.The Magistrate, in his statement of findings, clearly dealt with the question of identification and even though it had not been run on a Turnbull basis, he addressed those issues such as the length of time, the lighting and the like, which Turnbull requires a court to look at.  The point Mr Davies makes is that he did not do that, so he says, when he gave some oral reasons at the end of the trial in the Magistrates Court.  But in fact, a close reading of the transcript does reveal that he had mistake in mind, and that his mind went to that issue because he said this, and this is at page 108 of D6’s appeal bundle.  He said:

“In the case of all other defendants, I bear in mind that PW1 had met many people in connection with the operation and identified many in subsequent identification parades.”

8.The only point of the Magistrate saying he bore that in mind is to address, it seems to me, the issue of mistake.  And he went on, over the page at 109, to deal with why he was satisfied that the identification was both reliable and accurate.  So the point made that it was not in the Magistrate’s mind, in fact, on the transcript, is bad.

9.As regards the first ground of appeal that the evidence was unreliable concerning the identification of the 6th Defendant, what I have already said about how the case was run below, in large part, puts paid to that argument.  But the fact was that the undercover officer would have, within a short time, easily within 24 hours, have been making up his note - and this applies to the case of both the appellants I am dealing with now - naming the person to whom he had been introduced.  The naming was done by nickname but in each case it was the last name of the defendant in question.  So when it comes to 17 months having gone by and him picking these people out in the identification parade, it was the fact that the person he managed to recognise and identify at the identification parade bore the same name that he would have written down in his notebook within a few hours of the event in question.    It comes to this:  that I am quite satisfied that the identification here was both reliable and accurate.  

10.The third point taken by Mr Davies is that the Magistrate found that there were inconsistencies but then, in some way, did not deal with them satisfactorily.  This arises out of the way the statement of findings has been drafted.  At paragraph 13, the Magistrate sets out the general matters which he considered and what he was there doing, quite clearly, was setting out the points that had been made to him by counsel below.  And in fact in the transcript of what was said orally by the Magistrate at the conclusion of the case, that becomes very clear because he there says at page 107 of the bundle, page 4 of the transcript:

“In consideration of the matter, I have had regard to everything said by learned defence counsel, the general matters which I have considered included...”

and in both cases, using the same words, he says one of those things was:

“...inconsistencies in his own evidence and discrepancies with other evidence.”

11.Mr Davies would have it that that indicates that he had made a finding that there were such discrepancies. 

12.At paragraph 13 under the bulleted remarks set out there, these words appear:

“There were little material inconsistencies in his own evidence.”

13.Again, Mr Davies says that is a finding that there were inconsistencies.  I regret to say that I differ.  What the Magistrate was there doing was setting out what he considered.  His finding appears at paragraph 24 of the statement of findings, and I quote:

“PW1 gave a cogent account of what had happened. What he said was reasonable.  There was no material inconsistency or discrepancy.”

14.And that is the finding he made.  In those circumstances, he dealt with the issue perfectly adequately and there is nothing in the third point taken by Mr Davies. 

15.In the case of D6, I am satisfied that the conviction was made on good evidence of identification.  No evidence was called by any of the defendants below and, in those circumstances, conviction was inevitable and, in the case of the 6th Defendant, I confirm the order made by the Magistrate and accordingly dismiss the appeal.

16.D4, unrepresented before me today, adopted the arguments of Mr Davies but added that he was unrepresented below - that the trial was conducted in English which he did not speak and that he wanted to have a lawyer there.  It is clear from what he said to me that he had not taken steps to get himself a lawyer before the trial day.  This was a eight-handed trial; the others were all represented.  I am afraid you cannot delay organising your legal representation to the morning of the trial and then expect it to be adjourned.  I know from having sat as a Magistrate myself that, at every stage, it is brought to the attention of defendants that they can apply for representation by the Duty Lawyer and they are told that if they are not going to take that course, then they have got to get their house in order in ample time.  D4 had not done that.  But the fact was that although he was alone and unrepresented, he was surrounded by lawyers for all of the other defendants.  I have absolutely no doubt it would have helped their case if they could have seen anything in the case as it affected D4 that attacked the evidence, in any way, of PW1 and they would have taken the point for him in order to advance their own cases let alone helping out someone they saw to be unrepresented.  I have no doubt that the defendant had a fair trial below and, indeed, one can see from the care taken by the Magistrate in the preparation of his statement of findings how he assiduously addressed every point and I can see from the parts of the transcript I have that he called upon D4 and advised that it was time to address him and the like, and gave him every opportunity to do so. 

17.An important decision in a court in any criminal case is whether or not to give evidence.  If this defendant alone had failed to do so, then it would have been a point worthy of note.  But the fact is, it is clear that all these defendants decided not to give evidence, in the circumstances. If he was refused an adjournment, I find he was refused for good reason. 

18.Accordingly, in the case of the 4th Defendant, I confirm the order made by the Magistrate and dismiss his appeal.

Representations:

Ms Vivian Chan, Government Counsel, of the Department of Justice, for the Respondent

1st Appellant, Pui Kam-fai, in person

Mr Oliver H Davies, instructed by Paul Chan & Co., for the 3rd Appellant