HKSAR v. Lee King Man

CACC 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 96 OF 2005 

(ON APPEAL FROM HCCC 121 & 272 OF 2004 (consolidated))

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Before: Hon Yeung JA in Chambers (Open to Public)

Date of Hearing:  27 November 2006 

Date of Decision: 27 November 2006  

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DECISION

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 1.The applicant-Lee King-man was convicted before Lunn J with a jury of wounding with intent and sentenced to eight years’ imprisonment. It was the prosecution case against the applicant that he counselled and procured the offence by engaging others to unlawfully wound the victim.

2.The evidence against the applicant came mainly from an immunized witness, PW18- Lee Wai-ching. PW18 said the applicant recruited him to tail the victim, having earlier told him that he was looking for someone to chop the victim. PW 18 followed the victim and reported his movements to the applicant by phone for over 10 odd times before the attack took place.

3.On the day of the attack, namely the 28 May 2003, PW18 acted as the lookout and alerted the applicant, with his mobile phone, of the victim’s arrival at a certain location. PW 18 did not specify the number that he called on that day, but said that he had always contacted the applicant by the same mobile phone number, which was 6032 2314.

4.In the course of his evidence, the police gave him a copy of the transcripts of his video-recorded interview.

5.The prosecution produced the call records of PW18’s mobile phone, which showed that between 7 and 24 May 2003, there were frequent contacts between PW 18’s mobile phone (9740 5003) and that of the applicant (6032 2314). When those telephone contacts were made, PW18 was in the vicinity of either the victim’s home or his place of work. There was, however, no record of any telephone contact between those two numbers subsequent to the 24 May 2003, except one in June 2003.

6.There was also the evidence of an undercover police officer (PW20) who had posed as a prisoner and was put in the same cell with the applicant and another suspected- Wong. PW 20 said, whilst pretending to be sleeping, he overheard a conversation between the applicant and Wong, which indicated that the applicant was involved in the attack. PW 20 recorded down the conversation in writing shortly after he left the cell.

7.Originally PW20 was wired with a view to record the conversation with a recorder. However, it was the police case that the device was not in proper function and no recording was in fact made. The defence was aware of this at trial.

8.The applicant did not give or call any evidence. However, it was suggested in cross-examination that PW18 had framed him. It was also suggested that the telephone calls between him and PW18 only related to second hand cars as the applicant was a part-time second hand car dealer and PW18 had asked him to sell cars belonging to his friends.

9.It was further suggested that PW20 was lying, as there was never the conversation he alluded to. In any event, PW20 could not have remembered the exact conversation and that the conversation, even if carried out, was either not referable to the offence or too vague to amount to an admission.

10.The existence of the mobile telephone number 6125 6150, a pre-paid SIM card and thus its account holder or the actual user could not be traced, was referred to in the committal bundle. The number also appeared in the call records of PW18’s mobile telephone and that of D4. However, the call records of 6125 6150 covering the period from 19 May 2003 to 8 June 2003 were not produced at trial nor supplied to the defence as the police did not find them to be of any evidential value when its account holder or the user could not be identified.

11.There can be no doubt, however, that the defence could have asked for and obtained such records at trial if they wanted.

Grounds of Appeal

12.The applicant applies for leave to appeal against conviction and puts forward five grounds.

13.Ground 1 alleges that the prosecution’s failure to disclose the call records of 6125 6150 infringes the applicant’s right to adequate facilities for the preparation of his defence.

14.Ground 2 relates to the supply of a copy of the transcript of the video recorded interview to PW 18 in the course of his evidence.

15.Ground 3 suggests that the judge was wrong to allow PW20’s evidence to be led before the jury.

16.Ground 4 alleges that the applicant’s counsel at trial was incompetent.

17.Ground 5 sums up the first four grounds and suggests that the conviction was, therefore, both unsafe and unsatisfactory.

The Application

18.The applicant’s application for leave to appeal against conviction has been set down for hearing on 17 and 18 January 2007.

19.On 12 October 2006, by a Notice of Motion under s 83V(1) of the Criminal Procedure Ordinance, the applicant seeks a number of reliefs relating to grounds 1 to 3. It may not be necessary to set out in details the nature of the reliefs sought, however, it is the applicant’s contention that the prosecution and/or the police had grossly misconduct themselves in the prosecution against the applicant.

20.It is suggested that there had been suppression of the call records of 6125 6150 and the micro-cassette tapes used by PW 20 to try to record the conversation between the applicant and Wong. It is further suggested that the police had acted improperly by supplying PW 18, in the course of his evidence, materials to refresh his memory without the leave of the court.

21.The applicant seeks disclosure of not just the call records of 6125 6150, the micro-cassette tape-recorder and the two micro-cassette master tapes, but all records relating to the authorization of the covert surveillance, including Police General Order, Headquarters Order and Force Procedural Manual, and the identities of all the officers involved in the operation.

22.The applicant suggests those officers, once identified, should appear for cross-examination as “the motive or reason for the non-disclosures and improprieties may affect the outcome of the applicant’s appeal and there has yet been any independent inquiry in respect of all these matters”.

23.All these, Mr Anthony Butt argues on behalf of the applicant, are necessary in the interest of justice. He says “the Orders sought aim to discover the motives or reasons behind all those irregularities” and that “their relevance to the appeal itself is self-evident”. He also says “his own curiosity and suspicion must be satisfied to enable him to argue the applicant’s case fearlessly”.

24.On the applicant’s request, the call records of 6125 6150 had been supplied on 31 March 2006, the two mirco-cassette master tapes were made available for inspection and an inspection took place on 31 March 2006.

25.The respondent’s position remains that the tapes were blanked. The applicant’s legal representative did not wish to listen to the blank-tapes, but instead asked for the release of the tapes for an inspection by their expert. The respondent, in the absence of any safeguard, or undertaking not to temper with them, quite rightly, refused the request for the release of the tapes.

26.There is no dispute that, under s 83V(1) of the Criminal Procedure Ordinance, the Court of Appeal has a wide power to order discovery to ensure that the Court will have all the information and material that is or might be relevant to the issues in the appeal, in order for there to be a just determination of the appeal.

27.However, I fail to see why the orders sought are relevant to the issues in the appeal, in particular, why the court should enquire into the motive of the police officers concerned in this case.

28.With regard to the admission or exclusion of evidence at the trial, the court is primarily concern with relevance of such evidence and a fair trial for the accused. 

29.Under common law, it is no part of a judge’s function to exercise disciplinary powers over the police or the prosecution regarding the ways in which evidence to be used at trial is obtained, the judge, however, has a discretion to exclude evidence to ensure that the accused has a fair trial (See Kuruma v The Queen [1955] AC 197, R v Sang [1980] AC 402, R v Lee Yi Choi [1985] 1 HKC 578).

30.The Court of Final Appeal in Secretary for Justice v Lam Tat Ming & another (2003) 3 HKCFAR 168 confirmed the common law approach, emphasizing the importance of the circumstances of each case and the “overriding duty” of the court to ensure a fair trial (see the judgment of Li CJ at 178-182).

31.I do not rule out the possibility that in a case of blatant disobedience, disrespect and insolence of the relevant rules and procedure by the police or the prosecution and when the accused has no knowledge at trial of such disobedience, disrespect or insolence until the appeal stage, the Court of Appeal may order the disclosure of further evidence and the attendance of officers and others so that the reason or motive for such disobedience, disrespect and insolence can be ascertained as they might have a bearing on the result of the appeal, although the incidence of such occurrence must be extremely rare.

32.Mr Butt relies on the decision of Tang JA (as he then was) in HKSAR v Chan Kau Tai CACC 26/2004) when Tang JA made a similar order as the one sought by the applicant. The circumstances of that case have not been made clear in the judgment. However, the order was made on the basis that “members of this court…had expressed the view that the motives for non-disclosure might have a bearing on the result of the appeal”.

33.In the present case, I am not persuaded, on the available information, that the orders sought would have any bearing on the result of the appeal at all.

34.At trial, PW18 stated that on the day of the attack, he called the applicant without specifying the number. The implication was that the number he called was 6032 2314, which was the number he usually called. The existence of 6125 6150 was referred to in the committal bundle and other documents.

35.The prosecution could not have adduced as evidence, the call records of 6125 6150 as its account holder or the user could not be identified.

36.The defence chose not to request for the call records of 6125 6150, obviously for tactical reasons. It is not difficult to understand the reason for such tactical move as the disclosure of the call records might have eradicated an obvious loophole in PW 18’s evidence as he must either be untruthful or unreliable when he impliedly said he was calling the applicant on 6032 2314 on the day of the attack when the call records did not support such evidence.

37.Similarly for the cassette recording of the conversation between the applicant and Wong, the defence was fully aware that PW20 had been wired with a view to record any conversation; that the recording was unsuccessful because of recording failure and that PW20 was only able to make a written record of the conversation.

38.The defence accepted the prosecution’s case that there was no point in producing the blank-tapes and therefore made no attempt to compel the prosecution to disclose or play those tapes in Court. The reason is not difficult to comprehend, as the cassette tapes would be empty because of the recording failure. I do not see how defence counsel’s acceptance of the prosecution case in such circumstances can be subject to any unjustified criticism.

39.Instead defence counsel emphasized that the written record was not accurate as the applicant had never said what was attributed to him and/or that the conversation, even if said, might have referred to other incidents than the one in question. 

40.The alleged non-disclosure of the call records and the cassette tapes, far from being a blatant disobedience, disrespect or insolence of the relevant rules and procedure, was fully explained and justified on the evidence and the applicant took no issue with them at trial. It is doubtful whether the applicant is entitled to raise the issues on the appeal.

41.There was no suppression of evidence. The call records of 6125 6150 and the cassette tapes were not produced because they were considered to be either not relevant or not of sufficient probative value. The defence accepted such position and even sought to benefit from it.

42.I do not agree with Mr Butt’s submission that the applicant was prejudiced by the non-production of such evidence.

43.Mr Butt then, in response to the obvious point that defence counsel at trial did not seek production of the call records and/or the two cassette tapes, suggests that defence counsel was incompetent in defending the applicant.

44.The alleged incompetence of counsel has not properly formulated and has not been put to defence counsel for his comments, it is, therefore, immature to consider this point.

45.There is no dispute, as confirmed by the Court of Final Appeal in Leung Kwok Hung & Another v Chief Executive of HKSAR CACV 73 and 87 of 2006, that the convert surveillance in question infringed the freedom and privacy of communication, as protected by the Basic Law and the Bill of Rights.

46.Ms Sin, for the respondent tries to argue that the applicant had no reasonable expectation of privacy as he talked loudly to Wong and therefore the covert surveillance in question did not breach the Basic Law or the Bill of Right. The undisputed evidence that PW20 had to pretend to be sleeping to listen to the conversation, perhaps illustrates the fallacy of Ms Sin’s argument.

47.There can be no dispute that the police could not have been properly authorised in the sense that the covert surveillance in question could not have been done in accordance with legal procedures as such legal procedure did not come into existence until mid-2006.

48.However, it is important to bear in mind that evidence obtained in breach of the right of privacy is not inadmissible per se. The court has to carry out a balancing exercise “in which the fact that there has been a breach of the accused’s guaranteed right is a very important but not necessarily determinative factor” (per Blandchard J in R v Shaheed  [2002] 2 NZLR 377 at p 419) (see also HKSAR v Chan Ka-tai [2006] 1 HKLRD 400.

49.The issue, understandably, was not raised at trial by the defence. The Court of Appeal can deal with the issue of whether the breach of the applicant’s right to privacy had led to an unfair trial (see Chan Kau-tai (supra) and HKSAR v Li Man Tak & Another CACC 303/2005).

50.I am not persuaded that the records relating to the authorization of the covert surveillance, including the Police General Order, Headquarters Order or Force Procedural Manual and/or the motives of the officers in question would have any bearing on the issue of fairness of the trial to the extent that they should be produced and all officers relating thereto should be summoned for cross-examination.

51.The only remaining matter relates to the supply to PW 18, in the course of his evidence, the transcripts of his video-recorded interview. Prosecuting counsel acknowledged in open court that it was improper to do so. The matter was fully canvassed and the judge had pointed out to the jury that it was wrong for the police to do so. The relevant issue is whether such error would have compromised a fair trial that the applicant was entitled to and the issue will not doubt be dealt with in the appeal.

52.For obvious reasons, it is neither necessary nor desirable for me to express any strong view on the grounds of appeal put forward by the applicant. Suffice it for me to say that, on the facts, the present application, an over-zealous application if I may add, is completely misconceived.

53.The application is therefore dismissed.

Ms Mary Sin, SADPP and Ms Jasmine Ching of the Department of Justice, for the Respondent.

Mr Anthony Butt instructed by Messrs Tang Lai & Leung for the Applicant.