HKSAR v. Tang Yuk Fai and Another

CACC 406/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 406 OF 2007

(ON APPEAL FROM HCCC NO. 66 OF 2007)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock JA and McMahon J

Date of Hearing: 26 November 2008

Date of Judgment: 22 January 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 6 November 2007, the applicants, Tang Yuk-fai (D2) and Sze King-kwok (D4) were convicted of conspiracy to murder, contrary to section 5 of the Offences Against the Person Ordinance, Cap. 212, following a trial in the High Court before Mr Recorder A. Macrae SC and a jury.  They were each sentenced on 9 November 2007 to 20 years’ imprisonment.

2.This now comes before us as an application by D2 and D4 for leave to appeal against conviction.  Originally, there were additional applications made by D2 and D4 in regard to sentence.  However, as these were not pursued, both of those applications were dismissed.

3.The facts were straightforward.  In count 1, the murder conspiracy, D2 and D4 were charged as co-conspirators with Hung Pui-hing (D1) whom the jury acquitted.  Similarly, Wong Dung (D3) was acquitted by the jury on a 2^nd count of assisting an offender.  Earlier, the Recorder had ruled that D3 had no case to answer on the 3^rd count of possession of a firearm without a licence.

4.The particulars of the 1^st count against D2 and D4 alleged that they, between a day in March 2006 and the 12 June 2006, conspired with Kee Sai-ho, Chan Tsz-him and other persons to murder Tang Pui-chuen.

5.The Recorder set out a synopsis of the basic factual elements in the prosecution’s case which were not disputed when, in the opening remarks of the summing up, he stated:

“… In the early hours of 12 June last year, two men approached the Lo Yau Kee store on the ground floor of Leung Tin Tsuen in Tuen Mun. Inside were a gathering of people playing mahjong and watching a World Cup soccer match on the television. One of those, who was watching the television from a sofa, was a man called Tang Pui-chuen.

One of the two men entered the store, went up to Mr Tang, pointed a gun at his chest, and pulled the trigger. The gun did not fire. A fight then broke out between Mr Tang and his assailant and between the other man who had accompanied the assailant and one of those who had been at the gathering inside the store but had gone outside to make a telephone call.

The assailant and his accomplice managed to make their escape, but not before leaving behind at the scene, both inside and outside the store, a magazine from a gun, five bullets, and two mobile telephones.” (Appeal bundle p. 1)

6.Later that day, at around 4.05 pm, a housekeeper in a hotel in Tin Shui Wai (‘the hotel’), discovered a bag containing 15 bullets similar to those left behind at the crime scene.  These were found under the bed in Room 2312 which had been vacated that same day.  Room 2312 had been booked for three nights by Chan Tsz-him (PW3), using his real name and identity card.

7.A report was made to the police and, at around 2.25 am on 13 June 2006, PW3 and his girlfriend were intercepted by the police as they left their home in Tai Po.  A search was conducted of their ground floor premises where, amongst other things, the police found some drugs and a small notebook (Exhibit P8) in which four telephone numbers were recorded.  One of these numbers was the telephone number of the SIM card of one of the mobile telephones left at the scene of the attack on PW1. 

8.Later, at about 4.25 am, following PW3’s arrest, he led the police to a pistol (Exhibit P9) wrapped in newspapers and plastic bags.  It had been placed in a gully near 23A Tai Wo Tsuen in Tai Po.  It subsequently emerged that D3 lived at 22 Tai Wo Tsuen.

9.PW3, who gave evidence under immunity, was rightly described by the Recorder as the witness on whom the case against each conspirator ultimately depended.  His credibility was a central issue in the trial.

10.On 25 October 2006, PW3 was charged with aiding and abetting murder in addition to other charges he faced.  He then instructed his lawyer to approach the police with a view to becoming a prosecution witness.

11.In November 2006, PW3 supplied the police with three non-prejudicial statements.  According to PW3, who was 19 years old at the time of the trial, he joined the Sun Yee On triad society when he was 15.  In January 2006, a man called Kee Sai Ho (‘Ah Kee’) was his ‘Big Brother’.  D2 was the ‘Big Brother’ of Ah Kee and D1 was the Big Brother of D2.  PW3 saw D2 once or twice a week.  He knew D2 as Tang Yuk-fai and also as ‘Ah Kwai’.

12.PW3 described a meeting held in D2’s house in early March 2006 which was attended by D1, D2, and Ah Kee, his triad protector.  There was a discussion about hiring a Mainlander to shoot PW1 because of competition over what was described as “illegal marked oil and the white powder business”. 

13.The dates and times of meetings described by PW3 were by no means easy to follow.  However, at a meeting with Ah Kee in a restaurant in Mongkok, PW3 said that they discussed the recruitment of a killer and the obtaining of a gun from the Mainland.  Ah Kee allegedly came up with the name of Sze King Kwok (D4) as someone who could help.  Ah Kee then telephoned D4 to tell him about the plan and PW3 said that Ah Kee mentioned also that D2 would provide several hundred thousand dollars for killing the proposed target.

14.Some time later, Ah Kee and PW3 went to a massage centre in Shenzhen where they met D4 and D4’s nephew (‘Yin Tsai’).  There was a discussion about the source of guns and the hiring of a killer.  D4 said he would keep a close eye on matters after his nephew had warned that many guns in circulation were only imitations.

15.After that, at some time in May 2006, Ah Kee and PW3 met D4 and others in a discotheque in Shenzhen.  Two guns were shown to those present.  The silver-coloured gun was chosen for the killing.  When concern was expressed about taking the gun to Hong Kong, D4 said he could find someone to do this.

16.Ah Kee and PW3 returned to Hong Kong the next day.  They went to see D2 in the office of a car park in Tuen Mun.  Ah Kee reported to D2 what had happened in Shenzhen.  D2 said it was no longer necessary to get a gun because ‘Hing Gor’, whom PW3 understood to be D1, would be able to find a gun.  Detailed arrangements were then discussed.  Ah Kee was to bring the killer to Hong Kong and PW3 was to book a hotel room for several days.  D4’s role was still not decided except that it was said that he had to be involved because he knew about the plan.  Mention was made by D2 of the target and in particular how he was known to frequent a specific store.  It was also mentioned that there was an informer who would report on the target’s movements and, at the appropriate moment, the informer would telephone D2 as to when to take action. 

17.The three men then went for a meal, at which time Ah Kee asked D2 for about $100,000 for travelling expenses and for making various arrangements.  D2 replied that there was no problem.

18.The next meeting took place several days later.  This, again, was in the office of the car park in Tuen Mun.  D2, Ah Kee and PW3 were present.  D2 showed Ah Kee and PW3 a gun (Exhibit P9) which he said would be used.  It was decided that the killer would be the one chosen by D4 in the Mainland.  Ah Kee then asked PW3 to transmit a photograph of the gun by SMS to D4 so that the killer would be able to view it.  Receipt of the photograph was confirmed by D4 on the telephone after which the SMS was deleted.

19.One or two days later, PW3 saw the gun inside a flat in Lam Tin.  D3 also visited this flat but apparently at this meeting he was not shown the gun and neither D2 nor D4 were present.

20.In May, a further meeting took place.  On this occasion, D2, Ah Kee and PW3 were present.  The Recorder reminded the jury in his summing up that:

“this meeting, which was apparently in early May, only came out ... in cross-examination. It was not mentioned [by PW3] in examination-in-chief, as I am sure you are aware …”

21.On 9 June 2006 a further meeting took place at the car park in Tuen Mun.  D2 and his wife, Ah Kee and PW3 were all present.  D2 instructed PW3 to rent a room at the hotel in Tin Shui Wai for three days and he gave PW3 several thousand dollars as they travelled to the hotel in a car driven by D2’s wife.  Ah Kee instructed PW3 to buy four SIM cards which were to be distributed later.  The SIM card telephone numbers were written down in PW3’s notebook (Exhibit P8).  Ah Kee, in D2’s presence, also said that before the job was carried out, he (Ah Kee) would need to return to the Mainland through lawful channels and return to Hong Kong illegally.

22.On 10 June 2006, PW3 met D4 at the hotel during the morning.  D4 had arrived from the Mainland together with a Mainlander nicknamed ‘Si Fu’.  The two of them, together with PW3, stayed in the hotel room.  Ah Kee arrived there during the afternoon and telephoned D2.  The plan was to be carried out later that night and a pistol had been arranged to be delivered to the hotel a few hours before the operation.  Ah Kee said that he would accompany Si Fu to the scene of the shooting.  D4 would be responsible for driving a getaway car.  

23.When the handgun duly arrived at the hotel, Si Fu examined it.  He requested some lubricant which, after it had been obtained, he sprayed onto the gun. 

24.At about 1.40 am on 12 June 2006, the attempted shooting of PW1 took place which, had the pistol fired, would almost certainly have killed him.  In this regard, a firearm expert (PW4) was called to give evidence.  In his examination of the pistol (Exhibit P9), PW4 noted that it had a safety catch which had been in the safety position when it was recovered by the police.  He said that if the safety catch had been on when the gunman entered the store, it would not have been capable of firing.  The firearm was otherwise in proper working order and the ammunition found with it was live and suitable for firing from this weapon.

25.After the failed attempt to kill PW1, Ah Kee called PW3 and directed him to go to the hotel.  The four men, Ah Kee, D4, Si Fu and PW3 then made what can only be described as an inept attempt to clean up the hotel room as they failed to notice the two zipper bags which contained a total of fifteen rounds of ammunition under the bed (Exhibits P5 and P6).  It was this mistake which provided the police with an all-important lead as to the identity of the culprits involved in this incident.

26.After they had left the hotel, D4 and Si Fu immediately left for the Mainland.  PW3 and Ah Kee went to D3’s home in Tai Po.  Ah Kee spent the night there and told D3 and PW3 how the intended shooting had failed.  The pistol was then wrapped up in plastic bags and newspaper and hidden a short distance from D3’s house where it was found when D3 led the police to it.  Later in the day, Ah Kee disappeared and has apparently not been located since that time.

27.D2 and D4 (as well as D1 and D3) elected not to give evidence.  They also called no witnesses although two witnesses were called on D3’s behalf.  

28.In summing up D2’s case, the Recorder said:

“The 2^nd defendant also did not give evidence. It is his case that he too was not part of any conspiracy; nor, like D1, was he present at the scene of the attack on PW1; and it has been suggested that PW3 has named him because he knows him from working at the Sun Pa garage.” (Appeal bundle p. 37)

In regard to the defence advanced on behalf of D4, the Recorder said:

“The 4^th defendant also has not given evidence, and again, I have given you directions in relation to that matter. Again, it is his case that he was not part of any conspiracy and that PW3 has deliberately and falsely singled him out from the word go for reasons which even PW3 said he did not understand.” (Appeal bundle p. 39)

Grounds of appeal

29.On D2’s behalf, Mr McGowan advanced three substantive grounds of appeal. One of these grounds was closely mirrored in the two substantive grounds of appeal argued by Mr Philip Chau on D4’s behalf.

PW3’s lies and reasons for lying

30.Taking the first of Mr McGowan’s grounds, which was common to both applicants, he submitted that the Recorder had failed to direct the jury sufficiently “as to why and how PW3 might have reasons to lie and invent evidence … and to provide … examples of this and [PW3’s] general lack of credibility in his testimony and ‘out of court statements’”.

31.Mr Chau similarly complained in his 1^st ground that the jury were not sufficiently directed as to the reasons why PW3 might tell lies against D4 and, in his 2^nd ground, he contended that the Recorder had failed to highlight adequately the lies told by PW3 and the inconsistencies in his account.

32.The pivotal role played by PW3 in the trial was described by the Recorder in these terms:

“It is correct to say that the case against each accused ultimately depends on whether you are prepared to accept so that you are sure what the witness, PW3, says in relation to each defendant so far as the charge which that defendant faces. If you are not sure of the witness’ evidence in relation to any one of the defendants on the charge he faces, it would be your duty to acquit him, because without the evidence of PW3, those facts which either cannot be disputed or are not disputed would not by themselves be enough to convict any of the defendants. I will be giving you further directions on how to approach PW3’s evidence in due course.” (Appeal bundle p. 3)

33.Whilst Mr McGowan did not complain about this direction, he submitted that the Recorder never properly returned to the point by reminding the jury of what had been revealed in cross-examination which had undermined PW3’s credibility.   In saying this, Mr McGowan accepted that the judge had given a proper direction to the jury, warning them of the possible motives PW3 might have to make up lies against those charged with the conspiracy and describing PW3 as an ‘accomplice’ and as a ‘co-conspirator’.  He accepted also that the Recorder, in his discretion, had informed the jury, in more generous terms than the law required (see section 60 of the Criminal Procedure Ordinance, Cap. 221) that:

“… in view of [PW3’s] status as an accomplice witness and the concerns which attach to such witnesses as I have just indicated, and in the light of what appear to be inconsistencies in his evidence, I direct you that it would be wise to look for some supporting material before acting on his evidence.

Evidence which is capable of supporting the witness would be, for example, the evidence that a hotel room was booked in his name and with his identity card at the Harbour Plaza Resort City Hotel for three nights; that live ammunition was found under a bed in this room suitable for firing in Exhibit P9, to which the witness led the police; that in that room was also found a comb - that is, Exhibit P7 - containing D4’s DNA, suggesting that he had been in Room 2312; and that a telephone of one of the assailants discarded at the scene was found to have a recently activated SIM card number which was recorded in the witness’ notebook, P8, at his home after his arrest.

Now, whether these pieces of evidence do in fact support PW3’s account is a matter for you. So, members of the jury, you should look for supporting material before acting on PW3’s evidence. However, provided that you do bear well in mind the need for treating PW3’s evidence with great caution, you may rely on it if you are satisfied so that you are sure he is telling you the truth.

In the course of his evidence PW3 was cross-examined on his three so-called non-prejudicial witness statements, excerpts of which you have before you. He was also cross-examined on his two video-recorded interviews, his answer to the caution upon arrest, and his statements to the Complaints Against Police Office, also known as CAPO for short, which are incorporated in Exhibit D6.

You may be satisfied that PW3 has previously made a statement which conflicted with his evidence. What use may you make of that previous statement? You have undertaken to try the case according to the evidence. If a witness comes to court and states what he saw and what he heard, that is evidence of what he saw and heard. Whether you accept that evidence or not is another matter, but in law, it has the status of evidence of what he asserts.

On the other hand, if on a previous occasion not in this court before you the witness has stated what he saw or heard on a particular day, that is not evidence that he in fact saw that event or heard that comment; it is merely evidence that that is what he asserted at some earlier time.

So what you may do is to take into account the fact that he has made such a previous statement when you consider whether he is believable as a witness, but the statement itself is not evidence of the truth of these matters except for those parts of it which he has told you in court are true.

Now, it is suggested that the previous statements made by PW3 are inconsistent with the evidence in this court in a number of respects. In examining suggested inconsistencies, you will wish to decide first whether there is in fact and in true context an inconsistency; and, if you decide that there is an inconsistency, you will wish to decide whether it is material and relevant or, on the other hand, insignificant or irrelevant. If there is an inconsistency, it might lead you to conclude that the witness is generally not to be relied upon; alternatively, that a part only of his evidence is inaccurate; or you may accept the reason he has provided for the inconsistency and consider him nevertheless to be reliable as a witness.” (Appeal bundle pp. 9-11)

34.Other criticisms which were made of PW3 as a witness of truth were summarised by the Recorder later on when he reminded the jury that:

“Mr Lok [D2’s senior counsel at trial] also explored with the witness why he had an apparent change of heart in November 2006 when he instructed a new set of lawyers to approach the police and see if they would accept him as a prosecution witness. The witness confirmed that he was from an early stage concerned about his mother and younger brother in relation to the drugs found in his premises, and on 15 June 2006 at Fanling Magistrates’ Court they, as well as his girlfriend, were in the dock alongside him, charged with possession of ‘Ice’ found in his premises.

It later emerged in Mr Pannu’s cross-examination [for D3] that the younger brother and the witness’ mother were released from the drugs charge altogether on 23 November 2006.

The witness also confirmed that his lawyer had, at that same appearance at Fanling Magistrates’ Court in June, notified the magistrate in open court that he, the witness, had been assaulted and threatened by police. He conceded the complaint was untrue.

Of course, at that stage PW3 was not a prosecution witness, he was a defendant, and as a result of the alleged assault a complaint file was opened by CAPO. Mr Lok took the witness through his CAPO complaint, Exhibit D6, which you have, and you may think it is not entirely clear whether the witness was saying in evidence whether he was or was not assaulted by the police, but ultimately you will want to consider whether his answers in this area affect his credibility on the crucial aspects of his evidence in any way.

On 25 October 2006, the witness told us, he was charged with an additional offence of aiding and abetting murder, and that obviously worried him. He accepted that when he had appeared at Fanling Magistrates’ Court the next day, 26 October, he asked for a four-week adjournment of the matter, and on 22 November 2006 he gave his first of three non-prejudicial witness statements. He agreed it was after he heard about the aiding and abetting murder charge that he instructed his lawyer to approach the police in order to turn him into a prosecution witness.

It was put to the witness that he had got to know D2 when working at the Sun Pa garage as a lorry attendant when D2 was a manager there. He agreed he worked at the garage; however, he said it was after he started to follow Ah Kee and Ah Kee started to follow D2 that he got to know D2.

……

He was taken through the various meetings by Mr Lok and it then became apparent that the witness had left out the second meeting in May in the 2nd defendant’s home, although it was in his first non-prejudicial witness statement. The witness explained that the witness statements were taken about half a year after the incident, while his evidence in court was another eight to nine months after the time of that statement, so more than one year after the event, and it was therefore impossible to remember each part of it.” (Appeal bundle pp. 28-29)

35.After this, the Recorder went on to remind the jury of further criticisms about PW3 which had been made by counsel for D3.  This was followed by a summary of some of the suggestions made to PW3 by Mr Chau who had also appeared for D4 at trial.  The jury were reminded that PW3 admitted peddling drugs, earning from this between $10,000 and $20,000 each month, and that he had attended the Drug Addiction Treatment Centre in 2005.

36.The judge went on, in regard to Mr Chau’s cross-examination, to remind the jury about some of the shortcomings in PW3’s evidence concerning his meetings in the Mainland with Ah Kee.  The Recorder reminded the jury, in this context, that:

“The witness [PW3] was asked about his relationship with D4, and he told us that he worked for him directly until the time he was discharged from a drug addiction treatment centre program at the end of July 2005; then their contact became less frequent. Mr Chau took him through various meetings. In particular, he asked the witness about the two meetings on the mainland, namely the massage parlour meeting and the disco meeting.

In relation to the massage parlour meeting, the witness said he thought he left through Lok Ma Chau at the same time, past midnight. He could not remember if he was alone when he returned to Hong Kong the same day. When pressed as to whether he returned with Ah Kee, he said, ‘I think probably we returned together.’ You may think, members of the jury, from that answer that he was not very sure.

So far as the disco meeting, which he believed was two or three days later - in-chief he said he thought it was about a week - he said he had gone up to the mainland with his girlfriend at night some time. It was put to him that he had said in-chief that he came down from the mainland with Ah Kee. In fact, what PW3 said in-chief was not quite that. He was asked by the prosecutor: ‘After this meeting late at night in Shenzhen, did you and Ah Kee come back to Hong Kong the next day’, to which he said, ‘Yes.’ PW3 did not actually say they came back together.

In any event, in answer to Mr Chau’s question that the witness said he came down with Ah Kee, he said, ‘Maybe. Maybe so. I can’t remember. I can’t be sure. It’s possible.’ The witness was then confronted with the travel records of himself and Kee Sai-ho. You have those; they are Exhibits P26 and P28. And as Mr Chau pointed out, it does not seem that on the occasions the witness was in the mainland, Kee Sai-ho was there at the same time, at least legally, according to his Immigration records, save for 26 May 2006 for a very short period or, as Mr Luk later pointed out, 5 April 2006.” (Appeal bundle pp. 31-32)

37.A less significant discrepancy about which the Recorder also reminded the jury was the admitted fact that PW3’s SIM card was activated on 8 June 2006 yet PW3 had said this was only done after he had registered at the hotel on 9 June 2006.  Ultimately, PW3 had said he could not be sure of the sequence of events.

38.Mr McGowan submitted that whilst all of this was before the jury in the summing up, nevertheless the Recorder should have covered these and other points more fully.  He particularly emphasised that PW3 had pleaded guilty to assisting an offender, the possession of a firearm without a licence and trafficking in a dangerous drug, in regard to all of which he was awaiting sentence.  However, it is difficult to see what more the Recorder could have said when it is remembered that the trial only lasted about a fortnight and when the jury were reminded in the summing up that:

“… we later learned in cross-examination that it was in November - he was contacted and interviewed by the police at Pik Uk Prison with a view to his being a prosecution witness. I think more accurately, the police were contacted on his behalf. As a result of that contact, further statements were taken. In due course, he pleaded guilty to three offences of, firstly, assisting an offender; secondly, possession of arms without a licence; and thirdly, trafficking in dangerous drugs, and is currently awaiting sentence in this court.” (Appeal bundle p. 20)

39.The weakness of Mr McGowan’s argument is perhaps best illustrated by the fact that he had to resort to the suggestion that PW3 was an admitted drug addict with several minor criminal convictions, both of which points he suggested the Recorder ought to have mentioned in terms to the jury.  In the light of the thorough review of PW3’s evidence which the Recorder gave to the jury, this was material which could not have failed to escape the attention of the jury.

40.We do not need to deal with every point raised by Mr McGowan or by Mr Chau who adopted these points.  Plainly, the Recorder did not go into fine detail about each and every answer given by PW3 in reply to the suggestions made to him when counsel were seeking to weaken his credibility.  As we have shown, from earlier citations taken from the summing up, the Recorder was rightly intent upon providing the jury with a summary and not a recitation of all the evidence they had heard.  In particular, when the Recorder made reference to the possibility of PW3 giving evidence to serve his own purposes and to counsel having “properly explored some of those possible motives” in regard particularly to PW3’s concern that “his family members should not be detained or prosecuted”, we consider that this was an ample reminder to the jury of the crucial issues behind the attack on PW3’s credibility.

41.Mr McGowan’s suggestion that PW3 may have had several reasons for giving evidence as a prosecution witness against D2 and D4 after initially having lied to the police in his interviews may well be so but the summing up properly reflected these criticisms about PW3’s credibility.

42.Mr Chau’s submission, in his 2^nd ground of appeal, that the lies told by PW3 and the inconsistencies in his evidence had been inadequately highlighted by the Recorder was, we considered, unmerited.  The Recorder’s summary may not have covered every single lie or discrepancy in PW3’s account but it provided a most adequate reminder of this aspect of PW3’s evidence.  By way of comment, in addition to the summary we have cited already, the Recorder also said:

“… PW3 has accepted on a number of occasions in cross-examination that what he had said in examination-in-chief was not or could not be right. You may well think that his concept of times and dates and, in some areas, sequence of events, could not be correct. Yet, say the defence, he has had months to think about his evidence. On the other hand, the prosecution say that PW3 had several meetings and events to recollect from memory over a span of several months, all of which events took place between 16 and 19 months ago. His recollection, says Mr Luk, may not be perfect, but the essential features of his evidence are reliable.” (Appeal bundle p. 9)

43.When the Recorder turned in detail to the testimony given by PW3, he said:

“… As I have mentioned, there are areas of his evidence-in-chief which he changed as a result of cross-examination, and I shall indicate those areas as I go through his evidence. Whether they are significant changes is ultimately a matter for you.” (Appeal bundle p. 19)

44.The Recorder then went on to deal with PW3’s evidence which had provided a host of discreditable features about PW3.

45.There was no merit in these grounds.

46.Mr McGowan’s 2^nd ground of appeal was that the Recorder, “when providing examples of evidence which ‘supported’ PW3’s testimony, failed to provide any ‘independent’ example which implicated D2”.

47.The passage of which complaint is made came early in the summing up when the Recorder directed the jury (in a passage cited earlier at paragraph 33) that it would be “wise to look for some supporting evidence” before they acted on his evidence.  This, it is apparent, was a general reference to PW3’s reliability and not a reference to corroboration in its strict sense as against individual defendants on trial.  The examples the Recorder went on to give, of PW3 using his identity card and true name to book the hotel, the finding of live ammunition in the room he had booked, the finding of D4’s DNA on a comb in that same room and the telephone number written in PW3’s notebook matching one of the SIM cards left at the crime scene, clearly illustrate that the judge was reminding the jury about evidence which might provide general support for PW3’s account.  The Recorder gave no hint of a suggestion that there was any independent evidence supporting PW3’s account against D2 and there was no need, in the circumstances, for him to have done so.

48.This ground fails.

49.The 3^rd ground advanced by Mr McGowan was that the Recorder “failed to warn the jury that certain of PW3’s testimony allegedly implicating [D2] was in fact ‘hearsay’”.  In support of this contention, Mr McGowan pointed to the fact that PW3’s evidence had gone further than providing a description of what occurred at meetings when D2 was present.  There was, as he rightly said, another meeting covered by PW3’s testimony when he was alone with Ah Kee and Ah Kee had said that D2 would be providing the money to do the job (Appeal Bundle pp. 296R, 297S – 298H).  A further piece of evidence was provided by PW3 to the effect that while he was at the hotel, Ah Kee telephoned D2 and was, according to PW3, told by D2 after this call that the gun would be conveyed when it was certain the target person was at the provision store.

50.Although these pieces of evidence were hearsay, they were, as Mr McGowan accepted, words uttered in furtherance of the conspiracy in D2’s absence by an alleged co-conspirator and, as such were admissible for the purpose of showing D2 to have been a participant.  He conceded also that there was other cogent evidence from PW3 which directly implicated D2 in the activities covered by the alleged conspiracy, but Mr McGowan submitted that the judge’s failure to have given some warning about the approach to be taken to this evidence was a material irregularity.  He relied, for this assertion on what was stated by Kennedy LJ in R v Jones and Ors [1997] 2 Cr App R 119 at 132G-133A:

“… It will, of course, be appropriate to warn the jury about the dangers of hearsay evidence, the strength and nature of the warning being tailored to the facts of the case, but it will not help the jury to try to segregate the evidence into circumstantial and hearsay evidence of participation, nor, Mr Pitchford submits, when the jury has to consider all of the evidence is it necessary to warn the jury not to find participation on the basis of hearsay evidence alone.”

51.Whilst we accept that the Recorder might well have commented upon the evidence given by PW3 in the way Mr McGowan contended, the evidence against D2 contained in these hearsay statements was only a small part of the evidence provided by PW3 against D2.  Examples of the parts of PW3’s evidence which covered these additional points were summarised by the Recorder in these terms:

“[PW3] testified about a meeting in March 2006 at the home of D2 some time around 3 or 4 pm. Present at this meeting were, he said, D1, D2, Ah Kee and himself. There was a discussion which lasted about one to two hours in which D1 and D2 did most of the talking. The witness and Ah Kee did not participate in the discussions unless they were asked questions which they answered. The discussion concerned the proposed killing of Tang Pui-chuen, or ‘Dai Bei Ngan,’ to use his nickname, because of competition over the illegal marked oil and white powder business. It was proposed that someone from the mainland would be recruited, a gun would be obtained, and they would then get a mainlander to come down to Hong Kong to do the killing.

……

The witness [PW3] and Ah Kee returned to Hong Kong the next day, and the witness was summoned to a meeting at around 5 or 6 pm in the afternoon in an office of a car park in Siu Hang Tsuen in Tuen Mun. Present were Ah Kee, D2 and the witness. Ah Kee explained what happened the night before in Shenzhen and mentioned the problem of the gun. D2 said it was no longer necessary to get a gun because ‘Hing Gor’, whom the witness understood to be D1, would be able to find a gun. Arrangements were discussed for Ah Kee to bring the killer down to Hong Kong and for the witness to book a hotel room, and after the job was done they would move hotels for several days.

……

At a meal after this meeting, Ah Kee asked D2 for money for making the arrangements and an amount of about $100,000 was mentioned. D2 said that was no problem.

Several days later in the afternoon another meeting took place in the same car park office. The same three men were present. D2 showed Ah Kee and the witness a gun and said, ‘Use this.’ He identified Exhibit P9 as the gun he then saw. It was decided that the killer would be the one chosen by D4. Ah Kee then asked [PW3] to transmit a photograph of the gun by SMS to D4 in the mainland so that the killer could view it. He gave the witness a telephone number and the witness sent the photograph by telephone, after which he deleted it.

……

The next meeting which took place was back in the car park at Siu Hang Tsuen in Tuen Mun. … Present on this occasion were Ah Kee, D2, D2’s wife, and the witness, PW3.

D2 instructed the witness to rent a room at the Harbour Plaza Resort City Hotel in Tin Shui Wai for three days. D2 gave the witness [PW3] several thousand dollars on the way to the hotel in a car driven, he said, by D2’s wife. The witness booked the room, although he did not at this stage obtain a keycard. The witness was also instructed in the car that when the job was done he should telephone D2’s wife to collect the money. It was also said by Ah Kee in D2’s presence that before the job was to be carried out, Ah Kee would need to return to the mainland through lawful channels but return to Hong Kong illegally. Ah Kee also instructed the witness in the car to buy four SIM cards, which the witness did, and each then jotted down each other’s number. Those numbers were written down, according to PW3, in Exhibit P8, after which the witness left.” (Appeal bundle pp. 21-24)

52.Such powerful direct evidence, if accepted, put the two hearsay references suggestive of D2 being a co-conspirator into the shade.  Whilst, therefore, a ‘hearsay’ warning about the dangers of relying on such evidence would not have been inappropriate, there was, in our opinion, no requirement here for such a warning.  The real issue, as it had been throughout the trial, was PW3’s credibility as a whole and this had, as we have indicated, been fully canvassed.

Conclusion

53.Both of these applications are dismissed.

Mr Arthur Luk, SC, DDPP and Ms Olivia Tsang, SPP, of the Department of Justice, for the Respondent.

Mr James McGowan, instructed by Messrs Quan & Co., for the 1^st Applicant (D2)

Mr Chau Ka Chun, Philip, instructed by Messrs Yuen & Partners, assigned by Director of Legal Aid, for the 2^nd Applicant (D4)

Application for leave to appeal by 1st applicant to Court of Final Appeal against conviction refused. Please refer to FAMC51/2010 dated 3 November 2010