Lo Sun Wa and Others v. The Queen
Read the full judgment text of CACC 538/1979 on BabelCite. This Court of Appeal judgment was delivered on 10 April 1980.
1. 15 defendants were charged before the District Court on four charges of conspiracy.
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CACC000538/1979
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----------------- Coram: Roberts, C.J., Pickering, J.A. & Leonard, J.A. Date of Judgment: 10 April 1980 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. 15 defendants were charged before the District Court on four charges of conspiracy. 2. The first charge, which was brought against the first, second, third and fourth defendants, read -
3. In the second charge, the first five defendants were said to have similarly conspired with persons unknown. 4. The third charge was brought against the first to fourth and sixth to thirteenth defendants, alleging that they conspired similarly with TSUI Ying-man and others. 5. The fourth charge was brought against the 14th and 15th defendants only. 6. The 1st defendant was convicted of the first three charges and sentenced to three years' imprisonment on each charge, to run concurrently. 7. The 2nd, 3rd and 4th defendants were convicted of the first three charges and sentenced to two and a half years' imprisonment concurrent. 8. The 5th defendant was convicted of the second charge and sentenced to one years' imprisonment. 9. The 15th defendant was convicted of the fourth charge and sentenced to two years' imprisonment. 10. D.15 withdrew his application, and we did not permit him to renew it. The others sought leave to appeal against their convictions. 11. We dismissed the applications and announced that we would give our reasons later, which we now do. The conspiracy 12. The charges alleged a conspiracy to obstruct the course of public justice in the Frontier Division of the Royal Hong Kong Police Force between the 22nd November, 1978 and 10th January, 1979. 13. D.1, D.2, D.3 and D.4 were, at all material times, members of a Special Duty Squad in the Frontier Division. The squad was under the command of Inspector FUNG Kam-tong, who was the first prosecution witness. The essence of the conspiracy between D.1, D.2, D.3 and D.4 was that they should act contrary to their duty to enforce the provisions of the Gambling Ordinance in the Frontier Division. This meant that members of the squad would refrain from taking proper action against gambling, if they were paid off by persons who ought to have been the subject of police inquiries. 14. In order to ensure that they should not be suspected, the conspirators arranged for some of those who were paying them off to stage, from time to time, either a 'small fish case', or a Tai Lung Fung. The intention was that sham raids, accompanied by faked arrests, would mislead their superiors into thinking that they were doing their duty. 15. A "small fish" case involved the employment, by the man who had paid off the conspirators, of actors, who would pretend to be gambling when the squad conducted a mock raid. The actors would be taken into custody and charged. 16. The Tai Lung Fung method was somewhat more elaborate, involving supposed players sitting at a table with stake money and gaming equipment, with one person playing the role of keeper of the establishment. The group would be arrested by the squad and, with the money and equipment, taken to a police station and charged. 17. Whichever method was used, the actors would plead guilty. Their fines were paid for them by the gambler who had engaged them; they also received extra payment for having played their parts in the sham raids. 18. The first charge related to WONG Tai-shing, the second to LEE Kam-wah (D.5), the third and fourth to TSUI Ying-man (D.15). These were the persons who agreed to pay the members of the squad for not performing their duty. None of these was a police officer. 19. The other nine defendants, i.e. D.6 to D.14, also not police officers, were acquitted. They were alleged to have taken part as actors, though they were not participants themselves in the main conspiracy. Summary of facts 20. The Special Duty Squad was set up by the Commissioner of Police to take action against illegal gambling in the Frontier Division. Insp. Fung (P.W.1) assumed command of the squad on 20th November, 1978. 21. Insp. Fung was chosen for that position by Supt. Whitton of the Frontier Division (P.W.2). The other members of this squad were D.1, D.2, D.3, D.4; also a woman police constable, who took no part in the conspiracy and knew nothing about it. 22. Insp. Fung testified that the first approach was made to him by D.1, on the 23rd November. D.1 made it clear that he was suggesting that if the Inspector kept his eyes closed he would find this very much to his advantage. The Inspector, who interpreted this as an invitation to take corrupt money, replied that he hated corruption. 23. Later that day, Insp. Fung consulted Insp. Cheung, an old colleague of his. As a result of their conversation, Insp. Fung made notes about the approach which had been made to him. 24. The next day, D.1, during a phone conversation with the Inspector about a different matter, asked him what he thought about the conversation they had had the day before. Thereupon the Inspector said "That's enough" and hung up. The same evening, Insp. Fung received a telephone call from D.2, Sergeant Kwok, who asked him what the present position was. When the Inspector replied that he was busy, D.2 said that Lo (D.1) and Yu, (D.4) had something to say to Insp. Fung about 'squeeze'. Insp. Fung replied "That's all? Let's see when I return." 25. After the telephone call, Insp. Fung talked to Chief Inspector Newton about the approaches which had been made to him. Chief Inspector Newton told him that he would get in touch with Supt. Whitton. 26. The following morning, the 25th November, Insp. Fung received a telephone call from D.1 asking the Inspector if he were free. After lunch, D.1 called on him and again raised the question of payment, mentioning that Insp. Fung could himself expect $1,000 a week. 27. Later that afternoon, the Inspector saw Supt. Whitton, who instructed him not to give an answer to those who had approached him until after he, Supt. Whitton, had obtained instructions from his superior officers. The same evening. Supt. Whitton took a lengthy statement from Insp. Fung, which was handed to the Divisional Commander of the Frontier Division on the 27th November. 28. On the 29th November, Mr. Maloney, and another I.C.A.C. officer, met Insp. Fung and Supt. Whitton at the latter's home. At that meeting, Insp. Fung was instructed to go along with corrupt offers made to him, but not to act as an agent provocateur. Thereafter, the Inspector regarded himself as acting at all times in accordance with these instructions. He continued to make careful notes of any conversation with members of the squad, and of anything relevant to their corrupt activities, and to hand these notes and his share of various corrupt payments to Supt. Whitton. 29. During a patrol on 28th November, D.1 again asked Insp. Fung whether he was prepared to join with the others in the squad. On the 29th November, during a night patrol, D.3 talked in terms which Insp. Fung understood as meaning that the squad wanted him to accept corrupt money, combined with a threat that, if he didn't go along with them, he would find himself in trouble; and that he had better either be corrupt or at least shut his eyes to the corrupt activity of the others. D.1, D.2, D.3 and D.4 all spoke in the course of this conversation. 30. On the 1st December, the squad went to Shatin Heights, where D.1 introduced Insp. Fung to D.15. Insp. Fung and D.15 had a conversation alone in the Inspector's car, during which D.15 said that he had reached an agreement with D.1 and discussed the arrangements for a Tai Lung Fung and how much money would be needed to set this up. He proposed that Insp. Fung should ask Supt. Whitton to come along and have a look. D.15 promised the Inspector $1,000 a week and handed him a laisee packet containing a $500 note. 31. On the 4th December, D.1, in the presence of D.2, D.3 and D.4, told the Inspector that the necessary arrangements had been made for a fictitious raid on D.15's gambling premises at Luen Wo Hui and asked the Inspector to invite Supt. Whitton to attend the raid. 32. Insp. Fung told Supt. Whitton, who briefed the squad as if it were a genuine raid. Thereafter, D.1, D.2, D.3 and D.4 went to Luen Wo Hui. Insp. Fung and Supt. Whitton left headquarters separately later. At Luen Wo Hui, D.3 led Insp. Fung and the Superintendent to a wooden but, where there were six males and two females, the actors in the fake raid, in addition to the members of the squad. 33. The four defendants later took the gamblers to Sheung Shui Police Station, where they were formally charged. 34. Later that night, at the suggestion of D.3, members of the squad and Insp. Fung went to a restaurant where D.1 said he would like to talk to Ah Song about gambling stalls. D.4 adding that "In future, if we united together and are alert, we can get more money." 35. On 10th December, D.1 gave laisee packets, containing money, to D.2, D.3 and D.4 and two packets to the Inspector, saying they were from D.15 (a defendant in the fourth charge). On the 11th December, the Inspector met D.1 and D.15. At this meeting D.15 said "Is that all right for last night's Tai Lung Fung?" and went on to complain about the expense of employing actors, saying that business was not very good, and asking if "squeeze" could be reduced to $1,000 a week. He said he would arrange a small fish case soon and a Tai Lung Fung about 28th or 29th. 36. Later that day, the Inspector, in company with D.1, D.2, D.3 and D.4 met Ah Song, whose name is WONG Tai-shing, the conspirator named in the first charge. WONG Tai-shing, at that meeting handed the Inspector a $1,000 note as "laisee for meeting". Wong told him that he had already discussed the general details with D.1 and that he intended to operate one or two gambling stalls and to pay the Inspector $1,500 per week. 37. On the 14th December, D.1 told the Inspector that a small fish case had been arranged for later that day. That evening, D.1, D.2, D.3, D.4 and the Inspector went to Luen Wo Hui where D.3 alighted from the vehicle and soon returned with three males saying to P.W.1 "These persons have fixed up a small fish case for us." The three men were taken to the police station and charged with illegal gambling. 38. On the 18th December, Insp. Fung was introduced by D.1 to LEE Kam-wah (D.5)(a defendant in the second charge) who told the Inspector that he had had a general talk with D.1 D.5 disclosed how much he would be prepared to pay the Inspector and the other members of the squad and gave laisee packets to D.1, D.2, D.3 and D.4. He handed two such packets, each containing a $100 note, to the Inspector. 39. On the 18th December, D.15 met the Inspector at a restaurant. They went together to the toilet where D.15 put a laisee packet containing money in a pocket of the Inspector's trousers. Later that day, D.1 told the Inspector that Ah Song's business was not good, that he wanted to reduce the amount of squeeze and gave the Inspector $800. D.1 handed to the Inspector a further $500, purporting to come from WONG Tai-shing on the 24th December. 40. Further payments were made by D.15 to the Inspector on 25th December, 5th January and 8th January. And the Inspector received further sums from D.1 on 6th January. 41. On 9th January D.1, D.2, D.3 and D.4 were arrested by I.C.A.C. officers. Grounds of appeal 42. There are two grounds of appeal -
Credibility of Inspector Fung 43. At page 425, the judge considers the evidence of Insp. Fung through whom the Crown sought to prove the major part of their case. 44. Apart from his testimony, there was no other evidence at all against D.3 and D.4 and against D.1, D.2 and D.5 only admissions made by them to I.C.A.C. officers. 45. It is important to remember that Insp. Fung made notes of the various events soon after they occurred and handed them to Supt. Whitton. He refreshed his memory from them during the trial, so that the chances of his recollection being accurate, when he gave evidence about six months after the events, were considerably enhanced. 46. The evidence of the Superintendent and of Mr. Maloney, an I.C.A.C. officer, establish without doubt that Insp. Fung was acting, from the 29th November onwards, in accordance with instructions issued to him, with the concurrence of I.C.A.C. by the Superintendent. 47. The judge found that the Inspector was doing his duty, in "going along" with the corrupt proposals, and that he never intended to take part; therefore he was not an accomplice. We agree. 48. The judge showed himself to be fully aware of the crucial importance of the evidence of Insp. Fung and assessed the Inspector and his testimony with great care. However, we were invited to find that the Inspector was a man not worthy of belief, for reasons which will be considered alter. To support this contention, we were referred to Yu v. R (1) in which this court quashed a conviction on the ground that the main prosecution witness was a man of so tainted a character that to rely on him was unsafe. That man was a drug addict, a drug trafficker, a forger, blackmailer, perjurer and smuggler. The Inspector is a man of excellent education and an impeccable record and was thus inherently likely to be credible, just as the other man was inherently unlikely to be worthy of belief. 49. Once the judge had decided that Insp. Fung was worthy of belief, as he was clearly entitled to do, the conviction of the defendants must have followed, since none of them gave any evidence or called any witness. 50. The assessment of the Inspector's evidence was essentially a matter of fact for the judge. We see no ground on which we could interfere with his acceptance of the Inspector as a reliable witness who was telling the truth. It seems to us to have been the correct conclusion. 51. We have, of course, considered whether the various supposed unsatisfactory features of his evidence, to which our attention was drawn, ought to raise in our minds such doubts as to his credibility that we should overturn the judge's conclusion and find that Insp. Fung was not worthy of belief. 52. For instance, we were invited to infer that Insp. Fung's evidence was unreliable because he needed to impress his superior, C.I. Elias with whom he was said to be on poor terms. Suffice it to say that C.I. Elias had ceased to be Insp. Fung's direct superior before the Inspector joined the squad. We see nothing in this. 53. It was suggested that a small discrepancy as to the amount seized in agenuine raid on 12th December showed his unreliability. The Inspector said $76 was seized at one point in his evidence and $72 in another. This error was minor and irrelevant, as the incident was not part of the conspiracy at all. 54. It was argued that we should disbelieve him because, in permitting actors to be charged and convicted, he showed himself to be prepared to mislead the court. It was suggested that anyone who would do that cannot be said to be worthy of belief. 55. We are satisfied that Insp. Fung thought that he had the support of his superior officers to take part in sham raids. Supt. Whitton knew that the raid, which he was invited to witness on 4th December, was false. He knew that actors, not genuine gamblers, would be charged with gambling offences which they had not in reality committed. But he made no effort to restrain Insp. Fung from taking part or lending his support to a course which inevitably involved presenting an untrue version of the facts to a court. No doubt the Superintendent, in his turn, was acting under instructions from I.C.A.C. 56. The actors were willing victims. They ran little risk of more than a fine, if they pleaded guilty. They did so, their fines were paid by their "employer" and they received payment for their trouble. They can be described as innocent only in the sense that they were not guilty of the charges to which they pleaded guilty. Sympathy, therefore, need not be wasted on them. 57. But this is a practice which, however laudable the objectives of the officers involved, has obvious and grave dangers and we do not wish it to be thought that anything which we say is intended to give approval to a course which necessarily involves a deception of the courts. 58. Insp. Fung, however, was entitled to conclude that his superiors approved and that he had their support for what falsities were involved, such as the completion of untrue entries in the occurrence book, the payment of informers' rewards which were unearned, and the signing of an inaccurate statement of facts to put before the court. 59. Because we accept that the Inspector believed himself to be acting under orders, we do not regard his general credibility as affected by the fact that he was prepared to lend his support to the false raids and to the falsehoods which were inseparable from them. He believed that it was necessary to act as he did, if he was to preserve his pose as a man prepared to take part in the corrupt enterprises of his squad. 60. We were referred to a statement by Insp. Fung that the records of gambling raids in the occurrence book at Fanling Police Station after 29th November were false, although he admitted that some of the entries referred to genuine raids. We think that the Inspector can only have meant that the occurrence book was false in relation to the sham raids, not in relation to all raids. Most entries in the book were obviously genuine. This point is of no substance. 61. None of these criticisms has been substantiated to a point which leaves us with reservations about the judge's finding that he could accept the evidence of Insp. Fung. Admission of verbal statements 62. If the Inspector's testimony is accepted, there is no need for other evidence to establish the Crown case. In relation to D.3 and D.4 there was no further evidence. As against D.1, D.2 and D.5 there was evidence of verbal or written statements to I.C.A.C. officers. 63. Statements said to have been made by D.4 were ruled inadmissible; one by D.3 was admitted but is innocuous. First Defendant's admission 64. In relation to D.1, the judge admitted -
65. The last statement contained clear admissions by D.1 that he had taken part in the conspiracies alleged and that he had received corrupt money for his part in them. 66. With regard to the verbal admissions, which emerged during a car journey from Fanling between 8.30 and 9.15 on the morning of D.1's arrest on 9th January, we were referred to R. v. Patterson and Laws (2), in which the English Court of Appeal expressed disquiet as to the reliability of the record of a conversation made by two police officers about an hour after it had occurred, no contemporaneous note having been taken. 67. In this case, the interval between the conversation and the recording of it was at least 1½ hours and the record was made by Mr. Shuttleworth, a European who spoke no Cantonese. He recorded what he remembered of what his interpreter, Mr. Cheng, told him D.1 was saying in the car. Mr. Cheng also made a record but this was only a copy of that already made by Mr. Shuttleworth. 68. We do not find any evidence that the verbal statements of D.1 were improperly obtained. He had already been cautioned, at the time of his arrest at Fanling Police Station and there is nothing to suggest any pressure, threats or inducements. The judge was therefore entitled to find that it had been established that these verbal admissions were voluntary. 69. But he did not direct his attention to the question of the reliability of what was recorded. The need to do so was reinforced by the fact that D.1 was never shown the record nor invited to sign it as correct. 70. Had the judge considered the reliability of the record, we believe that he might well have come to the conclusion that he should have excluded it, notwithstanding its voluntary nature, in the exercise of his overriding discretion to do so. Consequently, we think that evidence of these verbal admissions in the car should not have been admitted. 71. The vigorous cross-examination of D.1 in the I.C.A.C. offices on the 9th February covered a period of 7½ hours though it was not continuous. It is conceded by the Crown that D.1 was in custody throughout this period. 72. The first question which we have to determine is whether the mere asking of questions of a man in custody is by itself sufficient to make his answers inadmissible, even if the evidence establishes that they were not obtained by threats or inducements. 73. Counsel for D.1 drew our attention to Ibrahim v. R. (3) where Lord Summer puts the following question -
74. In R. v. Corr (4), Lord MacDermott, L.C.J. discusses the effect of a vigorous cross-examination as follows -
75. The passage above, does not answer 'No' to the question posed by Lord Summer. Its effect seems to be that answers to questions put to a person in custody are not admissible if the questions are asked in circumstances which amount to pressure of such a nature as to sap the will and make the subject talk. 76. There is no doubt that the long interrogation of D.1 amounted to a serious infringement of the Judges' Rules. A few years' ago, such an infringement would, by itself, have been sufficient to render the record of the interview inadmissible. For example, in Cheung Kun Sun & Others v. R. (5), the Full Court, when discussing Rule 3 of the Judges' Rules, as clarified by a Home Office Circular issued in 1930, says -
77. This case illustrates the strict view, taken at that time, that any serious infringement of the Judges' Rules would normally, by itself, be sufficient to exclude a confession obtained after such a breach. 78. However, this approach has been modified during the past decade. The principle is now firmly established that infringements of the Judges' Rules are only one element, albeit an important one, to be considered in deciding the central question, which is whether or not the Crown has established the voluntary nature of the admission. 79. An example of the present approach is LI Wing-loi v. R. (6), in which Briggs, C.J. says -
80. Counsel for D.1 further submitted that the Crown had failed to prove affirmatively that the statement was freely and voluntarily made. In support of this proposition he relied upon Wat Kwok-leung v. R.(7). 81. The relevant portions of this judgment are set out in R. v. Kwok Kwan-ho (8). At page 235 of the latter report, Huggins, J., delivering the judgment of the Full Court, explained the effect of Wat Kwok-leung in the following terms-
82. It was suggested at one stage by counsel that the voluntary nature of the record of the statements had not been established because the officer who conducted the interview had not been asked in terms whether any threats or inducements had been offered to D.1 before or during the interview. 83. We regard this as a point without substance, in view of the clear ruling by the Full Court that no particular questions are required. Indeed, this question is quite valueless, since it could only expect to receive the answer 'No'. 84. The Crown put forward evidence which covered the whole period from D.1's arrest until the moment when he completed his written statement in the evening of the same day. He was cautioned at the time of his arrest and was reminded of this both at the beginning of the interrogation and again before he made his written statement. 85. His counsel, when giving particulars of the grounds on which he objected to the admission of these statements, stated that no forms of threat or inducement were alleged other than such as might appear from the record. Nor was any evidence tendered by the defendant himself as to any threats or inducements or to the effect that his will was sapped or that he was overborne by the long questioning to which he was subjected. 86. We find ourselves unable to say that a long interrogation must necessarily sap the will of the suspect. Whether it does so or not depends on the circumstances of each individual case; some suspects are overborne very easily, others never. D.1 was an experienced police officer, well aware of his rights and clearly far less likely to be overborne than most members of the public. 87. When the record of the interview is examined, it appears that what decided him to make a statement was a combination of his confrontation with Insp. Fung with the realization that the Inspector had been co-operating with the I.C.A.C. throughout, and the copy he was shown of D.2's statement containing admissions that D.2 had been part of the conspiracy. 88. It is difficult to say that the judge was wrong in coming to the conclusion that it was the combination of these factors, rather than oppression or the sapping of the will, which was responsible for D.1's change of heart. The judge considers the question of the admissibility of this recorded interview at considerable length and with great care. We would not have been surprised had he come to a different conclusion, but we cannot say that he was wrong in deciding as he did. 89. However, although it is not for us to criticize the practice of long interrogations of suspects who have been taken into custody, law enforcement agencies should be warned that admissions obtained as a result of long interrogations are bound to be viewed with suspicion by the courts. 90. It is likely that courts will be inclined to take the view that lengthy questioning of persons in custody will make it difficult for the Crown to establish the voluntary character of the answers, particularly where (which was not so in this case) the suspect himself gives evidence that long questioning overbore his will. 91. It follows from our conclusion with regard to the recorded interview that we see no reason to interfere with the judge's finding that the Crown had established that the written statement, recorded after a further caution at the dictation of D.1, was voluntary and admissible. Second defendant's admission 92. The second defendant was arrested by Mr. Carter, an I.C.A.C. officer, at 7.45 on the 9th January at Fanling Police Station and was cautioned at the time of his arrest. He was taken to the I.C.A.C. offices, where he was interviewed by Mr. Carter between 1157 and 1330. 93. After a number of questions and answers, in the course of which he denied various allegations put to him, he was shown a photograph of himself and others in a restaurant at which he commented "I am dead". He was told that Insp. Fung had been co-operating with the I.C.A.C. since the formation of the squad, whereupon he said "In that case I am finished" and expressed his willingness to make a statement under caution. 94. At 2.05 he was cautioned by an I.C.A.C. officer and wrote out his own statement between that time and 4.45. At this point, he consulted with his solicitor for 20 minutes; he resumed writing his statement, which he completed at 5.55. 95. The circumstances here, which are very different from those surrounding the statements of the first defendant, have given us much less concern. 96. The questioning had lasted for a much shorter time and fell far short of the degree of pressure to which D.1 may have been subjected. 97. There was a gap between the ending of the interrogation and the time when D.2 began to write out his statement. This was done in his own hand and signed by him. It is significant that, during the course of his statement, he had an interview with his own solicitor, but nevertheless continued to write his statement thereafter. The statement contains admissions that he took part in a conspiracy of the kind alleged. 98. The judge found that he was satisfied that the Crown had proved that D.2 answered the questions during the interview voluntarily and that his written statement was voluntarily made. 99. We see no grounds upon which we could interfere with his finding. The fifth defendant's admission 100. D.5, who is not a police officer, was arrested on the 9th January and taken to the I.C.A.C. offices. He was cautioned at the time of his arrest, and reminded of this caution before he was interviewed in the afternoon of the same day. This interview lasted from 2.40 to 4 o'clock, but contained no admissions of significance. 101. He was detained overnight; next morning, at about 10.15, he was interviewed again. At the outset of that interview, immediately after he was cautioned, he admitted that he had paid laisee to members of the squad, after the interviewing officer had informed him that three members of the squad had claimed to have received money from him. 102. There was nothing in the evidence to suggest that D.5 was in any way overborne by the interrogation which had taken place on the 9th January. Even if he had been, there was a gap of 18 hours between the conclusion of his first interrogation and his second interview on the following day. 103. Although certain passages in the second interview show an undesirable degree of pressure being applied to him, his significant admission occurred immediately after caution and before any pressure could be said to have been applied to him. Effect of confessions 104. We have therefore come to the conclusion that, while we might very well have reached a different result ourselves in some instances, we cannot say that the trial judge was wrong in admitting the various statements made by D.1, D.2 and D.5 (with the exception of the evidence of the conversation in the car between D.1 and I.C.A.C. officers). 105. For the sake of completeness, we think it advisable to say that, even if the judge had excluded these statements he would, in our view, necessarily have reached the same conclusion as to the guilt of the defendants, because he accepted the evidence of Insp. Fung. Had we excluded the statements, we would have applied the test set out in the case of Commissioners of Customs and Excise v. Harz and Anor (9). namely,
We are satisfied that the answer must be 'Yes'. 106. The judge convicted D.3 and D.4 solely on the basis of the Inspector's evidence, which was even more damaging against D.1 and D.2 than against D.3 and D.4. 107. Indeed, D.1 emerges from Insp. Fung's evidence as the driving force in the conspiracy. Since the judge had been ready to convict D.3 and D.4 on the uncorroborated evidence of the Inspector, he would inevitably have done so even if the evidence against D.1, D.2 and D.5 had not been supported by the evidence of the contents of their statements to I.C.A.C. officers. Case against the fifth defendant 108. It remains to consider whether the evidence against D.5 was sufficiently strong to justify his conviction or whether we should regard this as unsafe. 109. The evidence against him is entirely different from that adduced against D.1 to D.4, who were serving police officers and formed the heart of the conspiracy. D.5 joined it as one of the gambling operatives who were to pay off the police. He could, in a sense, even be described as a victim of the conspiracy as well as a participant in it. 110. In essence, the case against him may be summarized as follows -
111. Thus, on his own admission, D.5 paid money to various police officers, though he nowhere states the purposes for which the payments were made. 112. The "business which was to be resumed" must surely, taken in its context, having been that of a gambling establishment, which had been closed partly because of a dispute between the shareholders and partly because D.5 was having to pay off the C.I.D. as well as members of Insp. Fung's squad. 113. We consider it to be the only reasonable inference from the relevant evidence that D.5 was paying off members of the squad to dissuade them from raiding his gambling establishment and that he thus became part of the conspiracy, even though his role was limited and probably the initiative did not come from him. 114. In the result, we refused leave to all five applicants to appeal against conviction. Representation: Sanguinetti & Cheng Huan (D.L.A.) for A1, A2, A3, & A4 Sanguinetti & Cheng Huan (Wong, Hui & Souza) for A5 Reid for the Crown/Respondent (1) Criminal Appeal 1099/78 (2) [1974] 58 C.A.R. 417 (3) [1914] A.C. 599 at p.610 (4) [1968] N.I.L.R. 193 at p.211 (5) [1962] H.K.L.R. 13 (6) [1974] H.K.L.R. 440 at p.444 (7) [Cr. App. No. 880 of 1972 unreported] (8) [1973] H.K.L.R. 231 at p.235 (9) [1967] 1 All H.R. 177 at p.178 |