HKSAR v. Tsui Chung Hang

HCMA 148/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGITRACY APPEAL NO. 148 OF 2006

(ON APPEL FROM ESCC 3602 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Dates of Hearing : 19.9.2006

Date of Judgment : 28.9.2006

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J U D G M E N T

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1.The appellant was convicted after trial of an offence of “Conspiracy to introduce unauthorized articles into prison”, contrary to section 18(1) of the Prisons Ordinance, Cap. 234, and section 159A and 159C of the Crimes Ordinance, Cap. 200.  He was fined $1,800. He now appeals against the conviction.

Particulars of the offence

2.The particulars of offence was that the appellant “on divers days between the 15^th day of December 2004 and the 30^th April 2005, in Hong Kong, conspired together with NG Siu-ping, YEUNG Wai-ming, CHENG Yat-ming and LEUNG Ka-fai and other persons, to introduce into Shek Pik Prison unauthorized articles, namely four black roller pens, eight ball pens, three Sony headphones, 1,000 stamps (each of HK$1.40 value), one map book, one MassMatual note-book, one bottle of chemical fluid and several cassette tapes”.

Prosecution case

3.The prosecution case, in a nutshell, was that the appellant conspired with those named in the charge and others to introduce those unauthorized articles into Shek Pik Prison.

4.The appellant was an officer with the Correctional Services Department (CSD), working at the Shek Pik Prison at all material times. It was not in dispute that the articles particularized in the charge were unauthorised ones and that they were found inside the cells of two inmates, namely CHENG Yat-ming (CHENG) and LEUNG Ka-fai (LEUNG) named in the charge.

5.The evidence of YEUNG Wai-ming (PW2) was that she received a letter from her boyfriend LEUNG, requesting for certain items to be sent to him. On instructions from LEUNG, PW2 mailed those items to an address, on the understanding that the items would eventually reached LEUNG. The address was that of NG Siu-ping (PW1). PW2 did not know PW1. The items sent by PW2 were indeed found inside the cell of LEUNG.

6.PW1 gave evidence that she was in a habit of posting books and magazines to her brother-in-law CHENG through the mail in the past. However, sometime in 2004 she received a letter from CHENG, instructing her to contact someone call “grasshopper” (草蜢). She was given a mobile phone number. She was later instructed by CHENG to use the same mobile phone number to contact someone called “Siu Pan Yau” (小朋友). The mobile phone number was 9189-2369. PW1 stored the number in her own mobile phone (9200-6221).

7.It is admitted that the said mobile phone number belonged to the appellant and he had not lent it to anyone at all material times. It is also admitted that there were three telephone contacts between PW1’s mobile phone and the appellant’s mobile phone. On 6 March the call was from PW1’s phone to the appellant’s, then shortly after, a call from the appellant’s phone to PW1’s. On 8 March, the call was again from the appellant’s phone to PW1’s.

8.PW1 gave evidence that she met this “Siu Pan Yau” on three occasions. On each occasion they met at a health food shop at the MTR station in Central and she passed some items to him so that they could be brought into Shek Pik Prison. The first occasion was sometime in 2004, the second was on 18.12.2005 and the third on a Saturday in March of 2005. PW1 positively identified the appellant at an identification parade in August 2005 and in court before the learned magistrate.

Defence case

9.The appellant did not give evidence himself. In relation to the admitted telephone communication between the appellant’s mobile phone and PW1’s in March, the following scenario was suggested to PW1 during cross-examination: PW1 called the appellant’s number on 6March and a woman answered the call, later the appellant came to the phone and asked PW1 what she wanted.  PW1 was not prepared to say and hung up. On 8 March 2005 there was a further telephone conversation when PW1 indicated she wanted to meet the appellant to talk about some important matter. The appellant agreed to meet with PW1 and they did meet up at the MTR station in Central later that afternoon (i.e. 8 March). When PW1 asked the appellant whether he could deliver something to someone in Shek Pik Prison the appellant flatly refused, raised his voice to say it was an offence, and walked away. PW1 did not agree with the suggested scenario.

10.The appellant did not give or call any evidence to support the said scenario. 3 defence witnesses were called. DW1 and DW2 were CSD officers. They gave evidence to show the work-schedule of the appellant at the material time and how long it would take for an officer to go from Shek Pik Prison to the MTR station in Central.

11.The main witness for the defence was DW3, the wife of the appellant. She in effect gave alibi evidence for the defence. Her evidence was that on Saturday 12 March she was at a flower show with the appellant. It was not possible for the appellant to have gone to the MTR station in Central on that day at the time alleged by PW1.

Grounds of appeal

12.Mr. Keith Oderberg, who also represented the appellant during the trial, submitted the conviction was unsafe and unsatisfactory on 6 grounds. They were mainly directed at the learned magistrate’s approach and findings in relation to the evidence of PW1 and DW3.

13.In relation to DW3, Mr. Oderberg submitted as DW3 gave credible evidence for the defence, the learned magistrate should not have rejected her evidence simply because she was the appellant’s wife and she was not able to produce the admission tickets to the flower show to corroborate her evidence.

14.In relation to PW1’s identification of the appellant being the so-called “Siu Pan Yau”, Mr. Oderberg submitted the learned magistrate failed to properly weigh PW1’s evidence (that the lips of “Siu Pan Yau” were cracked, swollen and distinctive-looking) against the evidence of the appellant’s wife (that the appellant never had such a condition) and his colleagues (that they did not notice anything unusual with the appellant’s lips). Mr. Oderberg also submitted the fact that PW1 was not able to say if this “Siu Pan Yau” wore glasses further throws doubt on her ability to correctly identify the appellant being “Siu Pan Yau”.

15.Mr. Oderberg also raise, as a ground of appeal, that the learned magistrate erred in law in failing to place weight on the fact that the prosecution failed to produce the mobile phone records to support PW1’s evidence that there were telephone contact between them in 2004.

Judgment

16.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see CHOU SHIH BIN v HKSAR, FACC No. 11 of 2004.

17.In my view, it must be acknowledged that a magistrate has the advantage of observing witnesses giving evidence in court, the judge on appeal could only rely on the a written transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate. Where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory. 

18.Both PW2 and PW1 are named co-conspirators in the charge and they gave evidence under immunity. PW2 described how she was instructed by her boyfriend to post the items to an address, which turned out to be the address of PW1. PW1’s evidence was that she, as instructed by her brother-in-law, passed on items to someone she contacted by mobile phone and then met up at the MTR station in Central.

19.PW1 said she had seen this person on three occasions. She could not remember when the first occasion was but it was sometime in 2004. She could remember the second time being 18.12.2004 as it was the birthday of a relative. As to the third occasion, while at first she did say it was on 8 March 2005 she was adamant that the meeting took place on a Saturday. She was so sure as she was only free in the afternoon on a Saturday, having to work afternoons during weekdays.

20.Having read the relevant transcript I am satisfied PW1’s evidence was to the effect that the meeting took place on the Saturday after telephone contacts were made. As the record clearly showed that telephone contacts were made on 6 and 8 March, the Saturday on which the meeting took place was 12 March. PW1 did not insist that Saturday was 8 March as suggested by Mr. Oderberg.

21.According to PW1, the first meeting only took about 10 seconds. On the third occasion, about 1-2 minutes since there was a conversation between her and “Siu Pan Yau”. She was in a hurry to leave as well.

22.PW1 did describe “Siu Pan Yau” as someone having a lip condition – cracked, swollen and distinctive-looking. PW1 picked out the appellant during the identification parade and in court before the learned magistrate. I do not have any record of how the appellant’s lips looked then. I certainly did not notice anything unusual about the appellant’s lips when he appeared before me on 19.9.2006. Judging from the evidence of DW3 (that the appellant had never suffered from such a condition) and of his colleagues (they did not notice anything unusual about the appellant’s  lips), it would appear that the appellant’s lips were as I have noticed them when he was at the identification parade and before the learned magistrate. The learned magistrate commented that the said condition was not the same as having a “hare lip”. In other words, the learned magistrate was of the view that the cracked and swollen lips were not a permanent feature. The question to be asked is: does the said condition raise doubt about the quality of PW1’s identification of the appellant being “Siu Pan Yau”?

23.Different persons have different perceptions of another person’s features. What appears to be distinctive to one person may not be the case to another. If the only evidence against the appellant were the identification by PW1, the evidence in relation to the lips might well have thrown doubts on the correctness of PW1’s identification. However, this is not the case here. It is admitted that telephone contacts were made between PW1 and the appellant in March 2005. More importantly two of the three calls were made by the appellant’s phone to PW1’s. It is simply too much of a co-incidence for PW1 to have mistakenly picked out someone from a line of persons in an identification parade and that person happened to be not only a CSD officer stationed in Shek Pik Prison, but also the subscriber of the very mobile phone number used by PW1 to make contacts when she needed to pass items over for delivery to Shek Pik Prison!

24.I fully appreciate that PW1 disagreed with the scenario put forward by the appellant and the appellant did not give evidence to support that scenario. However, I cannot ignore the fact that such a scenario was an attempt by the defence to show how there could have been telephone contacts between the two; and how PW1 could have identified the appellant. The defence case, as suggested to PW1, was that PW1 did recognise the appellant – though not as “Siu Pang Yau”, but as the person whom PW1 wanted to meet to pass items over to bring to Shek Pik Prison, and to which suggestion the person firmly refused. Leaving aside for the moment the inherently improbability of such a version of event as suggested, according to the defence case, PW1’s ability to recognise the appellant could not be questioned. The only question is whether PW1 was telling the truth when she said the appellant was “Siu Pan Yau” and that she had passed items over to him for delivery to Shek Pik Prison.

25.I find no substance in the line of attack in relation to the quality of identification of the appellant by PW1. I wish to add here that PW1’s inability to say if “Siu Pan Yau” wore glasses makes no difference in the present case. As I said, this case does not rest on identification alone.

26.I find no substance in Mr. Oderberg’s contention that the learned magistrate failed to weigh the failure on the part of the prosecution in producing the telephone records for 2004.  The learned magistrate could only consider the evidence before him. He is not to speculate as to why certain evidence was not before him.

27.Coming now to the evidence of DW3. Mr. Oderberg’s contention is that once DW3’s evidence is shown to be credible - there is nothing incredible about a wife going to a flower show with a husband, such evidence throws doubt on PW1’s evidence. The learned magistrate should not have considered the relationship between DW3 and the appellant and should have acquitted the appellant.

28.Mr. Oderberg further elaborated on this argument and submitted that it is only when the evidence of the wife was shown to be inherently improbable that the court should look at the relationship – to  find an explanation why there was such inherent improbability. Where the evidence from the wife and the prosecution witness are both credible, the relationship simply does not come into the picture save with one exception, namely, when the evidence of the prosecution witness is shown to be unassailable.

29.While I accept a magistrate should not reject the evidence of someone related to a defendant simply on the ground of any particular relationship, I cannot accept it is only when the evidence of a defence witness is shown to be inherently improbable that the relationship came into the picture. As a fact-finder, a magistrate is constantly required to assess and evaluate evidence from witnesses. When considering what evidence to accept and what to reject, the magistrate would have to look at the evidence adduced, to use his/her common sense and life experience to see if the evidence was inherently improbable. The magistrate has to decide whether there is any motive for a particular witness (whether a witness for the prosecution or for the defence) to lie, or to hide the truth, or to embellish the evidence. These are all matters a fact-finder has to put into the weighing scale.

30.In the present case, the learned magistrate has properly taken into consideration the fact that DW3 is the appellant’s wife when assessing and evaluating her evidence. While one would not have expected a person to keep the admission tickets after visiting a flower show, it is nevertheless a fact that DW3’s evidence amounted to a “mere assertion”. PW1’s evidence, on the other hand, was strongly supported by the telephone contacts recorded. 

31.The learned magistrate was fully aware that both PW1 and PW2 gave evidence under immunity. In assessing and evaluating their evidence he would have taken that factor into consideration.

32.The evidence before the learned magistrate overwhelmingly proved that the appellant was the one whom PW1 had met, and had passed items to, for delivery to Shek Pik Prison.

33.The conviction was neither unsafe nor unsatisfactory. The appeal is dismissed.

Mr. TAM Yiu Ho, William, Senior Government Counsel of Department of Justice for the respondent

Mr. Keith J. ODERBERG, instructed by M/s Tang, Wong & Cheung for the appellant