The Queen v. Ho Ling-hung and Others

CACC000563/1982

Police perversion of the course of justice: set up as opposed to frame up: evidence supplemented twisted and altered: perjury: corroboration of suspect witnesses.

IN THE COURT OF APPEAL

BETWEEN

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Coram:  McMullin, V.-P., Li & Silke, JJ.A.

Date:  29th March 1983

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JUDGMENT

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Silke, J. A.:

1. The three appellants: Sergeant 14315 Ho, Constable 7630 Lui and Constable 21402 Yuen appeared for trial, with a 4th defendant who is not before us, on a total of fifteen charges.

2. The first two appellants were convicted on the first and second of two sets of charges and the third in relation to the first of those sets.

3. The first set concerned a person, LAM Chee Hang, and the second set one CHAN Chi Kwong.

4. The first charge was that of conspiracy to pervert the course of justice. The particulars are that the appellants falsely represented the circumstances in which Lam was arrested on the 16th September 1980.

5. The third charge on the charge sheet concerned the 1st appellant and alleged his perjury at the time of the trial of Lam in the Magistracy in that he made a false material statement that one packet of dangerous drugs had been found by the 3rd appellant in Lam's shirt pocket.

6. The fourth charge on the charge sheet concerned the 3rd appellant and alleged his perjury at the trial of Lam in that he made a false material statement that he had found the red packet of dangerous drugs in Lam's shirt pocket.

7. That which I termed the second set of charges consisted of the fifth charge and this was that the 1st and 2nd appellants conspired to pervert the course of justice by falsely representing the circumstances in which CHAN Chi Kwong was arrested on the 12th October 1980: the thirteenth charge was one of perjury by the 1st appellant in that he made a false material statement in the trial of Chan in the District Court that Chan had been arrested by him together with the 4th defendant on the 12th October: the fourteenth charge was one of perjury by the 2nd appellant in that he made a false material statement in the trial of Chan that the 1st appellant and the 4th defendant had arrested Chan on the 12th October.

8. In respect of the perjury charges, if the evidence proved the several statements to be false, then it followed as the night the day that the makers knew them to be false.

9. The appellants appear before us by leave of the single judge.

10. I shall deal with each of the sets of charges separately.

11. Lam Chee Hang was a drug trafficker and an unsavory character - he was the first prosecution witness. Lau Pak Ying was a drug trafficker police informer, agent provocateur and an even more unsavory character. He was the second prosecution witness.

12. Their evidence showed that Lam was set up by Lau, whom he knew in prison, by an offer to buy drugs from him. This was, done at the instigation of the Special Duty Team 1 of the Wong Tai Sin Police Station of which the appellants were members.

13. On the 16th September the plan came to fruition and Lam and Lau met at the Tung Hing Restaurant in Tze Wan Shan. Lam's arrangement with Lau was to supply him with two "bags" - that is two half ounce packets - of heroin.

14. Lam arrived at the restaurant with three bags and at 10:00 a.m. His evidence was that the three packets were contained in one laisee packet and it in turn was wrapped in newspaper. Lau's evidence on this differed in detail in that he said there were three laisee packets - each containing a bag - of which he examined two as he only desired to buy two.

15. Lam continued that he left the drugs on a chair and that a man came up to speak to Lau. Lam watched this man leave and at the door of the restaurant he saw a group whom he recognised as vice squad officers. This group included the 2nd appellant whom he had previously known. He then accused Lau of pulling a fast one on him upon which Lau left the restaurant. Lam was then approached by the 1st and the 3rd appellants and he dropped the laisee packet of drugs on the floor.

16. He was searched by the 1st appellant and nothing was found upon him. The 1st appellant said that he would take Lam to Lam's home for a search and as they left the restaurant the 3rd appellant said that he had found the drugs and he handed the newspaper, the laisee packet and the drugs to the 1st appellant who opened the laisee packet which he then put in his pocket.

17. The journey to Lam's home, which was in the next-door housing estate, continued. He was accompanied by the 1st, 2nd and 3rd appellants together with a Woman Police Constable.

18. They were at his house for about two hours and while there the 1st appellant took out the laisee packet from his pocket and emptied the packets out onto a chest of drawers. All the appellants were present when this was done. The 1st appellant found but two packets and asked Lam if Lau had taken the other one away. The 1st appellant also used the telephone during this period.

19. Lam was then taken to Tze Wan Shan Police Station. In evidence Lam said he did not see the drugs again until about 4:00 p.m. In statements to the Independent Commission, which initiated the investigations which led to the prosecution, he had said he had "stealthily" seen the drugs when the 1st appellant had "stealthily" taken them out: this earlier than 4:00 p.m.

20. A Woman Police Constable was told by the 1st appellant to write out a Pol 159 and make reference to two Packets. This form was later torn up and a new one was made out referring to but one packet.

21. The three appellants, said Lam, had a discussion concerning the alteration of the note book of the 3rd appellant. This note book was altered by the overwriting of the Arabic figure   "2" which originally appeared in it with the elaborate, not the simplified, Chinese character for the figure one. This alteration is clearly visible; and expert evidence was given upon it. The fact of the alteration was not contested - the reason for it was. The 3rd appellant said it was the correction of a simple mistake .

22. Lam was charged and the entry in the Constable's note book was said to have started at 12:50 p.m. and it made reference to Lam's arrest at 12:15 p.m. at the restaurant.

23. Lam was subsequently tried and convicted of being in possession of one packet of dangerous drugs found in his shirt pocket. He has since received a Governor's pardon in respect of that conviction. I should mention here that all the civilian witnesses at this instant trial were granted immunity.

24. The evidence of the 1st and 3rd appellants given in Lam's trial, before the Magistrate sitting at San Po Kong, was the basis for the perjury charges.

25. Lau, in his evidence, differed from Lam in detail. I have already referred to the three versus one laisee packet issue. He also said Lam at one point went away to the cockloft of the restaurant but was unsure whether Lam took the drugs with him. The newspaper which had been used to wrap up the laisee packets remained in the chair and before the appellants arrived on the scene and after the return of Lam, as I understand it, Lau touched that newspaper with his hand which could only cover the space of two packets and he felt them to be there. He said he was refused an opportunity to sample them.

26. Lau then saw a Constable Hing Chai appear. He asked him where was the 1st appellant and his squad and was told they were in place and he could go if he wished. He went and, on leaving, saw the 2nd appellant at the door of the restaurant.

27. It was also his evidence that these arrangements were finalized with the appellants on the evening of the 15th October. He went on to say that at about 11:30 a.m. on the 16th he paged the 1st appellant who then rang him back and informed them that he was still in the course of the search of Lam's flat.

28. The trial judge also had before him the evidence of the Inspector in Charge of the squad which evidence he found to be most unreliable.

29. The appellants denied Lam's allegations and, as they did in Lam's trial - though not the 2nd appellant at that trial - put the events forward as a perfectly straightforward arrest acting upon information received and based on the finding of a single packet in Lam's shirt pocket. This all taking place about noon and the search of Lam's house having taken place at about 4:00 p.m. subsequent to Lam's having been brought to the police station and charged.

30. The trial judge warned himself in detail on all the deficiencies of the witnesses for the prosecution. He had clearly in mind their nature - and the invitation extended to him by the Crown, which he accepted, to view their evidence with "Sustained suspicion". He addressed himself fully on corroboration and warned himself of the need for it. Having done so his judgment went on:

"For the above reasons the testimony of the above mentioned witnesses was treated as requiring corroboration in the Baskerville sense if found to be credible."

He did find them credible in the sense of being capable of being believed.

31. He further directed himself, quite properly, that if those witnesses for whom corroboration was required were not participes criminis, then the evidence of one suspect witness is in law capable of corroborating the evidence of the other .

32. Mrs. Penlington, who appears for all three appellants in this court, submits that witnesses such as Lam and Lau, and Lau and Hui in relation to the second set of charges, being suspect as they are accepted to be should be corroborated in every detail. Further it s her complaint that the trial judge, having properly directed himself, then went on to ignore his own directions as he accepted some portions of the evidence given by those witnesses which was uncorroborated. She particularises the evidence of the physical arrest of Lam at a time when Lau had left the restaurant.

33. As her complaints cover both sets of charges I shall now, briefly, deal with the second set.

34. CHAN Chi Kwong was a drug trafficker as was Hui San Fat. Chan did not appear at the trial though it was the intention of the Crown to call him. Hui was the sixth prosecution witness.

35. It was Lau's evidence that on the 12th October 1980 he and the 2nd appellant, the latter acting as an undercover policeman, went to look for drugs and, with the aid of Lau's younger brother - who gave evidence - they met middlemen and intimated to them that they wanted two pounds of drugs.

36. They eventually met Chan. Lau, the 1st and the 2nd appellants proposed to set up Chan and possibly, Hui. To effect this Lau met Chan at about 8:00 p.m. on the 12th October and there was talk of procuring two pounds of drugs. As a result Chan took Lau to the home of Hui San Fat where there was talk of price and quantity. Paging numbers were exchanged, Lau giving that of the 2nd appellant to Hui.

37. Hui was to look for sufficient drugs to make up two pounds he having but one and a half pounds available. Lau and Chan left Hui to do this and paged the 2nd appellant to pick them up which he did, driving the 1st appellant's car. They went to a dai pai dong for noodles and there were together at this stall the 1st, 2nd and 3rd appellants and the 4th defendant. Hui paged the 2nd appellant while the party were having their food. Lau returned the call and a meeting at a restaurant was arranged. Lau and the 2nd appellant went there in the 1st appellant's car. The 1st appellant and his squad were to keep observation.

38. Hui was at the restaurant when Lau and the 2nd appellant arrived. They were joined by Chan shortly afterwards. The quantity to be supplied was accepted at one and half pounds. The price was agreed.

39. Hui told Chan and the 2nd appellant to wait in the car while he and Lau went to an upper floor to bring out the drugs. Lau was to call the 2nd appellant's pager if all were well.

40. Hui and Lau, in fact, went to Hui's home and there Hui produced the one pound and a half in two separate bags. Lau took the bags which were wrapped in polythene and newspaper. He cut the bags open and tasted the contents. He was satisfied and he paged the 2nd appellant while Hui paged Chan.

41. Hui, in his evidence, differed somewhat from Lau as to the number of their previous meetings and as to his being shown the money at the car before Lau went to inspect the goods. It was Lau's evidence that on leaving Hui's home Hui it was who carried a plastic carrier bag into which the drugs had been put handing it over to Lau only when they came in sight of the car. Hui, on the other hand, said it was Lau who took the carrier bag down with him walking slightly ahead of Hui but close to him.

42. The net effect of this evidence, whoever was correct, was that at the time of the immediate approach to the car containing the 2nd appellant and Chan it was Lau who had the drugs.

43. It had been pre-arranged that the 2nd appellant should arrest Chan upon receiving a paging call. This did not seem to have materialised for when he saw Lau with the drugs the 2nd appellant asked Lau was it all right to which Lau replied "yes".

44. The 2nd appellant then caught hold of Chan's hand and said "Police". Lau saw no other squad members present. Chan tried to escape from the car but Lau, who had a pair of handcuffs, cuffed Chan's left hand. Hui tried to snatch the drugs back from Lau but, upon Lau's handing the free cuff of the handcuffs to the 2nd appellant, Hui ran off and disappeared out of the picture.

45. Lau, as the struggle went on, saw the 4th defendant "running up obliquely to assist to arrest Chan''.

46. Hui's evidence on what happened at this juncture was unclear. He said it was very confusing. He did see the 2nd appellant catching hold of Chan and he did see Lau rushing up and also catching hold of Chan. He then ran off leaving Lau still holding the drugs.

47. On both sets of charges there was evidence, uncontroverted, that Lam and Hui had not seen or spoken with Lau from the time of the respective incidents.

48. Chan was tried and convicted in the Kowloon . District Court on a charge of possession for trafficking and the 1st appellant gave it in evidence that he and the 4th defendant had arrested Chan. The 2nd appellant's evidence confirmed this.

49. A great deal of evidence was led as to what happened after Chan's arrest. It was Mrs. Penlington's contention that we should not consider anything other than the evidence in relation to the physical arrest of Chan by reason of the wording of the charge - " the circumstances of" Chan's arrest. I would agree with her in relation to that which occurred later. That evidence was led to ground other charges on the charge sheet with which we are not concerned. The appellants were acquitted on those charges. I do not, however, agree that we should give so narrow an interpretation to the words of the charge as to exclude from our consideration, and, by implication, as should have been excluded by the trial judge from his, the evidence of the events which led up to that actual arrest. These are, in my judgment, matters pertaining to and interleaved with the physical arrest.

50. It is true that both Lam and Chan were set up. They were not framed. Much as one may dislike the use of agent provocateur, as Lau clearly was, and police investigative tactics of this nature and dangerous as they are there is a world of difference between them and the actual framing of an innocent person. The gravamen of both of the conspiracy charges is not that either of those convicted at trial was framed or that they were not fully involved in the crimes alleged but that the appellants, guardians of the law as they were, supplemented, twisted and altered the evidence in order to copper fasten the convictions. They went on to deliberately lie to and mislead the courts of trial.

51. To come back to the complaints of Mrs. Penlington. I do not accept her proposition that corroboration, when dealing with suspect witnesses such as Lam, Lau and Hui entails corroboration of every single detail of their evidence. Neither do I accept that when a judge decides, as the trial judge here did, and having fully in mind the nature of the witnesses that a conviction upon their uncorroborated evidence would be unsafe that he must then go on to reject their evidence if there is not that detailed corroboration which she suggests is required.

52. I do not intend to delve into the murky waters of evidence "supporting" as distinct from - or indeed the same as - evidence "corroborating".

53. Baskerville (1), to which the trial judge referred himself - the aspects of which have been elaborated upon in both Hester(2) and Kilbourne(3)  - speaks of corroboration in a material particular tending to show that the accused committed the crime charged.

54. As Lord Reading, C.J. said in delivering the judgment of the Court at  page 667:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute."

55. Apposite here for the perjury charges are within such class of offences.

56. A little later Lord Reading went on:

"The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime."

57. The Court was there of course speaking in the context of accomplices but this does not derogate from the general principles involved.

58. Hester(2), and Kilbourne(3) approved Hester, was concerned with the issue of one witness who himself needs corroboration corroborating another in similar situation.

59. In this case the judge very carefully gave, and was seen to give, consideration to the issue of the credibility of Lau, Lam and of Hui. He borne in mind their very dubious character, the involvement of Lau and Hui in the setting up of Lam and Chan, their involvement in drugs generally, their status as witnesses holding immunity and the inconsistencies in their evidence. He found them credible. This is not the chicken and the egg situation. He was considering them as capable of belief for they must be that before they can either corroborate or be corroborated. He cannot here be faulted in his conclusions on this aspect.

60. He then found them, with all their failings, to corroborate each other as to the involvement of the appellants in the charges laid.

61. I accept that he made some findings of fact based on the uncorroborated evidence of one or the other but this does not vitiate his general finding as to the evidence of the suspect witnesses being sufficient to prove the guilt of the appellants. There was, and here I bear in mind that Lau was not present at, so to speak, the laying on of hands on Lam which affected his physical arrest, mutual corroboration between the suspect witnesses of evidence which implicated the appellants directly, not a mere tendency, in the commission of the crimes alleged. The judge was correct to find that this was enough to satisfy the common law practice and the statutory requirement.

62. For these reasons I would dismiss the appeals.

(1)    (1916) 2 K.B. 658

(2)    (1973) 57 C.A.R. 212

(3)    (1973) 57 C.A.R. 381

Representation:

Mrs. V.A Penlington instructed by Messrs. Howell & Lo for the appellants.

C. White, Esq., for Crown/Respondent.