Yee Po v. The Queen
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CACC000742/1977
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----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ .A. Date of Judgment: 10th November 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellant was charged before the District Court with conspiring to obstruct the course of public justice, the particulars being that he
He was convicted after a trial and now appeals against his conviction. 2. The first ground of appeal argued was that there was no evidence to support a finding that the conspiracy was one to obstruct the course of public justice. The prosecution proved that several persons who were carrying on illegal activities on Cheung Chau paid moneys to the Appellant through Wong Chuk-yu, who was himself engaged in illegal activities and paid moneys to the Appellant on his own behalf. There was evidence that if these men had not paid money to the police they would have been arrested. They were not arrested, although some of their employees were. It is not entirely clear which police officers would have carried out the arrests but the man who was the sub-divisional inspector at the material time said that the vice squad came under the command of the Inspector C.I.D. and that it was the detective sergeant who initiated raids on alleged gambling establishments and dangerous drugs divans. However, it does not appear to us that it was necessary to identify the officers who were responsible for making the arrests: it was sufficient that there was evidence (i) that illegal activities were taking place and (ii) that the police had information that such illegal activities were taking place. It then became the duty of the police force under the Police Force Ordinance to detect the offences being committed and to apprehend all persons whom it was lawful to apprehend in connection therewith. Whether it was the duty of the Appellant or the other named officers to make the arrests or whether that duty fell on "other police officers" it would obstruct the execution of that duty if the conspirators failed to take any action necessary to ensure that the arrests were made. Mr. Litton rightly says that it is not a criminal offence for a police officer not to do his duty simpliciter, but it may nevertheless be a criminal conspiracy for him to agree not to do his duty, for if that agreement is carried out the course of public justice will be obstructed. It is argued that the Appellant "may not have been aware of precisely what was going on". That may be so, but to succeed the Appellant must go further: it would be necessary to suggest that, having received moneys in the circumstances in which they were paid to him, he did not have information pointing so strongly to the existence of illegal activities that he was under a duty to take some steps to institute an investigation, if not actually to direct the making of arrests. The trial judge obviously thought that such a suggestion would be unrealistic and we respectfully agree with him: the Appellant had more than "a pretty good idea" that illegal activities were going on and he agreed to turn a blind eye. There was evidence from the sub-divisional inspector that when paying him a part of the corrupt moneys the Appellant told him that they had come from gaming houses and divans and that the part being paid over was "for not taking action against these unlawful establishments". On the other side, it would be absurd to suggest that Wong Chuk-yu and the others paid the moneys out of charity: they knew very well that they were corrupt payments in anticipation that a measure of protection against police action would be afforded to them. 3. Some point was made about the difference in practice between committal proceedings in the English courts and trials in the District Courts in Hong Kong. We are unable to see that such difference can have any bearing on this ground of appeal. In the event, therefore this ground of appeal fails. 4. Next, complaint is made that the judge misdirected himself by failing to mention the evidence of Wong Chuk-yu to the effect that he did not discuss with the Appellant why the money was paid to him, with the result that the judge's view of Wong's evidence was distorted. It is enough to say that, while a reference to that aspect of the evidence might have been desirable, in all the circumstances of the case the omission was not fatal. 5. Ground 5 in the Grounds of Appeal is in these terms:
It is not very clear to us what bearing the alleged discrepancies in the evidence could have on the question whether, before the question of corroboration arose, the judge had to be satisfied that Wong was a truthful and reliable witness. It is a matter of common sense that if a witness is not himself credible no purpose is served by looking for corroboration of his evidence: D.P.P. v Kilbourne(1). What appears to be contended is that the judge failed properly to evaluate the evidence of Wong Chuk-yu and that in consequence he made findings which were not supported by credible evidence. It is rightly argued that Wong was a tainted witness and that his evidence required to be weighed very carefully. The judge did not mention in his judgment a number of discrepancies between Wong's evidence and that of the other witnesses which suggest that Wong may at least have been exaggerating and we are grateful to Mr. Litton for supplying us with a schedule of the discrepancies upon which he relies. The judge's assessment of the evidence was made as follows:
The meaning of this may not be immediately clear but we think it must be that the judge found Wong Chuk-yu also to be a very candid witness whose evidence he was prepared to accept whether it was corroborated or not. As Mr. Graham has pointed out, counsel who appeared for the Appellant in the court below was in no doubt the judge would be driven to the conclusion that Wong Chuk-yu received payments of the kind described by him and the previous witnesses. In the light of that the discrepancies as to the amounts fade into insignificance. That being so, there is no substance in this ground of appeal. 6. The first three grounds of appeal relate to the admission of evidence that there was "'a tradition well known to everyone' that the detective sergeant at Cheung Chau should receive bribes in consideration of his tolerating illegal activities on the island and should pass some of the bribes received to superior officers". It is conceded by counsel for the Crown that this evidence should have been excluded, but he submits that no real harm has been done by its admission: there is nothing to show that the judge attached any importance to it. He referred to the evidence that
but he did not mention the evidence that the system was "well known to every one". There was other evidence which established beyond doubt that the Appellant did know the purpose of the moneys paid to him. It cannot be gainsaid that the evidence that the system was well known was of a highly prejudicial nature, but we have no hesitation in concluding that we ought to apply the proviso to s.83(1) of the Criminal Procedure Ordinance. 7. That leaves a ground of appeal which was, by leave, added at the commencement of the hearing:
Again it is conceded that the judge has not correctly stated the evidence, but we do not think that there was any such error. The precise turn of events was not canvassed as fully in the court below as it might have been and it can now be seen that some of the evidence is ambiguous. Ho Tung-leung said: "$2,000 is the monthly payment I promised defendant". If that evidence is taken at its face value Ho and the defendant must have been present together when the promise was made. Ho had mentioned two occasions when they had been together, one at the Hing Lung Restaurant in Tsim Sha Tsui and one at Cheung Chau. He said that at the former meeting the defendant asked him whether it would be all right for Wong Chuk-yu to collect his share of the money in the event that Ho was posted to Cheung Chau and that agreement was reached. This seems to indicate a prior agreement that, when Ho took over at Cheung Chau, he and the Appellant were to share the moneys which in the past had gone to the defendant alone. However, later in his evidence Ho said "I would pay this $2,000 per month to defendant from money I received from stall operators as long as I was posted in Cheung Chau". The position seems to be that it was agreed that the defendant should continue to receive $2,000, though whether it was actually to be paid to him by Wong or by Ho is uncertain. Whatever the precise agreement was, it had been made before the meeting in Tsim Sha Tsui, but it was alluded to at that meeting. Ho subsequently said that he instructed Wong Chuk-yu to pay the defendant "because defendant had asked me to let Wong pay him. I paid him up to August 1974 when I was arrested". In the court below it was not thought to be of any consequence when the defendant had made that request: the important thing was that the request had been made and counsel did not think it desirable to pursue that matter further. 8. We have come to the conclusion that there is no substance in any of the grounds of appeal advanced and the application is dismissed. 10th November 1977. Representation: (1) 1973 A.C. 729, 746 |