The Queen v. Chow Cheung and Others

IN THE COURT OF APPEAL

1986, No. 524
(Criminal)

_______________

BETWEEN

_______________

Coram: Hon. Kempster, J.A. Hon. Power & Hon. Penlington, J.J.

Date of hearing: 13th January 1987

Date of delivery of judgment 13th January 1987

_______________

JUDGMENT

_______________

Penlington, J.

1. There are applications for leave to appeal against convictions by Judge Sharwood at Victoria District Court on 14th October 1986 for conspiracy to pervert the course of justice (all applicants) and also for assault (the 3rd applicant).

2. The three applicants were serving police officers and the evidence against them was that one HO Wai-chun, who was a junk collector and also a drug addict, was seen by the 1st and 2nd applicants in Sau Mau Ping Estate on the 1st of April of last year. He said he was stopped, searched and then taken back to the Neighbourhood Police Reporting Office. (“NPO”) At the N.P.O., he said that the 3rd applicant arrived and then opened a desk drawer. Mr. HO said that inside this drawer, there were a some 30 odd identity cards and other documents. The 1st applicant chose one of these and showed that to Mr. HO and asked him to admit possession of it. This was a bank card relating to a funk of China account held by Mr. PANG Ping-sum. He declined to agree that he had been found in possession of this bank card and was then told that he would have to plead guilty to some offence. Eventually, he was charged with being found in possession of this bank card. A small quantity of dangerous drugs was also produced and he was charged with being in possession of that also. He said that he was not willing to make a statement about either of these alleged offences but having been assaulted by the 3rd applicant he agreed to sign a statement. He was charged, then released on bail and eventually, on the 7th of April, went to the I.C.A.C. and complained that he had been framed. I.C.A.C. investigated that allegation and in due course handed the matter over to the "Complaints Against the Police Office". They conducted a search of the N.P.O. on the 28th of April and a large number of cards were found in the drawer of the office, as had been alleged by Mr. HO in his evidence. Some of these cards were also the property of Mr. PANG.

3. Mr. HO's evidence was challenged at the trial on various grounds. The difficulties faced by Mr. Westbrook here are that these grounds were, first of all, essentially matters of fact and therefore primarily for the trial judge to assess and, secondly, that they were fully canvassed before him. As his 'Reasons for Verdict make clear, all were carefully considered.

4. Mr. West brook submitted that there was no apparent reason for Mr. HO being forced to sign these statements because they were either exculpatory or ambiguous as to whether they amounted to admissions of guilt. It is also suggested that there was no motive and no reason why Mr. HO should be framed by these officers in the manner that he has alleged. These matters were considered by the judge. He said that there may well have been reasons why these charges were brought. It was suggested that Mr. HO was being asked to act as informer and perhaps some pressure would be put on him to provide information. The statements are certainly not confessions but again it was said by Mr. HO, and possibly with some justification, that this was a manner in which the case to be brought against him could be made more credible. These matters were carefully considered by the judge. Another matter was that Mr. HO said that while he was being assaulted in an office, the door was shut. The Crown called a station sergeant and his evidence was that the door was always kept open except on very rare occasions and that on that day he heard no unusual sounds or conversation.

5. The Judge again says that he does not accept that the sergeant, looking back some six months to the occasion when this incident was alleged to happen, could be as certain as he was in his evidence. Finally, Mr. HO said that he complained about the way he had been framed and assaulted to a C.I.D. officer, Mr. SO Chun-fung who gave evidence who said that in fact no complaint had been made to him. The judge said that while he was not prepared to say he disbelieved Mr. SO, he thought that there was a possibility either that he had become confused or simply had forgotten about this complaint.

6. The evidence of Mr. HO, if taken alone, may well have not have been sufficient on its own, but quite clearly what was the main basis of the Crown's case was the finding of the documents in the Police Office.

7. It was suggested at the trial, on behalf of the applicants, that they had no knowledge of the documents found in the drawer. It is to be noted however, that none of the applicants gave evidence relating to this or any other matter. There was no record in the N.P.O. showing how the documents came to be in the drawer. If they had been found and brought in by members of the public a proper record should have been kept. There was no such record.

8. Mr. Westbrook fairly admits that as some of these other documents related to the same account holder, Mr. PANG, the possibility that Mr. HO picked up another document relating to that man and was found with it is so remote a coincidence as to be dismissed and that really the only explanation consistent with the innocence of the applicants is that the cards were planted in the office. This has been fully considered and, even if it is a matter which could be raised at this stage, and we have some doubts as to whether it can be because of the lack of any evidence from the applicants on that point, the trial judge has come to the conclusion that the only explanation for the presence of those documents in the drawer in N.P.O. is that Mr. HO was telling the truth and that he was framed and assaulted in the manner that he has alleged.

9. We see no reason to interfere with those findings and the applications for leave to appeal are refused.

Simon Westbrook inst'd by Messrs. Michael O'Cock & Partners for D1, D2 & D3

T.R.W. Jenkyn-Jones, S.C.C. for Respondent