HKSAR v. Tang Chak Hung

CACC369/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 369 OF 2008

(ON APPEAL FROM DCCC NO. 790 OF 2007)

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BETWEEN

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Before :     Hartmann JA and Beeson and Saw JJ

Date of Hearing :     30 March 2010

Date of Judgment :     14 May 2010

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JUDGMENT

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Saw J (giving the judgment of the Court) :

1.On 10 October 2008 the applicant was convicted after a trial before Deputy District Judge A. Kwok of 16 charges namely :

(i)  ten charges of acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151 (charges 6, 10-16, 19 and 22);

(ii)  two charges of inviting another person to become a member of a triad society, contrary to section 22(2) of the Societies Ordinance, Cap. 151 (charges 3 and 9);

(iii)  one charge of claiming to be a member of a triad society contrary tosection 20 (2) of the Societies Ordinance, Cap. 151 (charge 7);

(iv)  one charge of blackmail contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 (charge 20),

(v)  one charge of conspiracy to blackmail contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210 and section 159A and C of the Crimes Ordinance, Cap. 200 (charge 21);

(vi)  one charge of inhaling a dangerous drug contrary to section 8(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (charge 5).

2.On 24 October 2008 he was sentenced to terms of imprisonment which amounted to 4 years. He timeously applied for leave to appeal the convictions and the sentences.

3.He has abandoned his appeal against the sentences.

4.This is his application for leave to appeal the convictions.

5.The applicant was the 2^nd defendant in a trial of 4 defendants. The 1^st and 4^th defendants pleaded guilty to some of the charges they faced. The remaining charges were ordered to be left on the court file and not to be allowed to proceed without the leave of the court. The applicant and the 3^rd defendant proceeded to trial.

The background

6.It was the evidence of one witness, a triad expert, that the Wo Hop To triad society (“Wo Hop To”) was one of several active triad societies in Hong Kong. Its areas of influence were extensive and included Wanchai and Causeway Bay. The main criminal activities of the Wo Hop To were said to include criminal intimidation, blackmail, the extortion of protection money and the like.

7.Between 13 June 2005 and 25 January 2006 officers from the Hong Kong Police carried out an undercover anti-triad operation against the Wo Hop To.

8.It was the intention of the police operation to have a young police constable infiltrate the Wo Hop To, obtain evidence and ultimately for the operation to become overt and arrest those who had committed offences.

9.PW1 Police Constable No. 3906 was assigned the responsibility of infiltrating the Wo Hop To. PW1 was at the time 23 years of age. It was the evidence of the triad expert that ongoing recruitment was critical to the survival of any triad society. Thus it was that PW1 began to frequent various amusement game centres hoping to be approached to join the Wo Hop To. According to his evidence that is precisely what happened.

10.In late January 2006 the undercover operation ceased and a number of persons including the applicant were arrested and charged with various triad related offences.

11.Over the period when the operation was covert PW1 kept almost daily diary notes of his dealings with the defendants and others, his observations, discussions and the like.

12.There can be no doubt that the prosecution case against the applicant and his co-accused was wholly dependent upon the integrity, reliability and credibility of PW1. There can equally be no doubt that the judge was aware of this. There is no issue in this application that if his evidence was properly accepted by the judge then the elements of each of the charges he was convicted of were established. It is for this reason that we need not traverse much of the evidence.

13.PW1 gave evidence over 5 days. He was, according to the judge, “vigorously” cross-examined. It was the judge’s conclusion that his evidence was unshaken. In the judge’s reasons for verdict. He said this :

“PW1 had spent a total of 5 days in the witness box giving evidence and was subjected to vigorous cross-examinations by both Mr. Tse and Mr. Beel, on behalf of D2 and D3 respectively.  His testimony on the events which he sought to cover in relation to all the charges in the trial concerning the defendants and the others was unshaken.  He took time to consider each question about the events carefully and did his best to answer it accurately and honestly.”

and later :

“From his answers, PW1 impressed me to be a diligent as well as an intelligent police officer.  He prepared his case really well before coming up to the witness box and throughout his testimony on the events during the operation; he had a full grasp of the materials and good independent memory of it.  Following the ruling in HKSAR v. WONG Fuk-tak and others [2000] 2 HKLRD G4, the practice of reading by an under cover police witness from his diary to refresh his memory when testifying in witness box was acceptable and permissible in cases of complexity to avoid mistake and confusion.  PW1 however did not take full advantage of this ruling by simply having the diary open in front of him when he was giving evidence so that he could read from it as he went along.  Instead, when he testified, he endeavoured to recall the events and even the content of conversations largely from his own independent memory and only requested to look up the relevant entry in the diary at times when the events were complicated by the presence of so many different characters as well as prolonged conversations among them.  He impressed me as not a witness who had no recollection of events but he was merely anxious to avoid falling into error when he requested me for permission to read from his diary.

In so doing, PW1 had displayed a remarkable ability to have carefully observed and recorded the events as they unfolded.  The importance of keeping a contemporaneous record to ensure accuracy in a complex case which lasted for more than half a year should not be understated. …”

14.At the heart of the defence case was the premise that PW1 had fabricated the allegations he made against the applicant and his co-accused. Of this assertion the judge said :

“The idea that the whole case was an invention by PW1 was quite unrealistic.  No one suggested for one moment that PW1 did not join the Wop Hop To as assigned and mingled with its members during the operation. …”

15.Defence counsel had suggested to the judge that the diary entries made by PW1 could not be the originals and must have been re-written. This proposition was rejected by the judge.

16.The applicant did not give evidence in the trial. Defence witnesses were called with a view to cast doubt upon the evidence of PW1. The judge did not accept their evidence. Those findings are not now challenged.

Perfected grounds of appeal

17.Perfected grounds of appeal against conviction were filed in May 2009.

18.The essence of the applicant’s complaints is that :

(I)	the judge should not have accepted the evidence of PW1 because of his “involvement” in another case, namelyDCCC1280/2005, in which the evidence of his colleagues was disbelieved [Grounds 1(a) and (b)];
(II)	the judge was wrong to have taken into account the content of a letter from a Deputy Director of Public Prosecutions when assessing the credibility of PW1 [Ground 1(c)]; and
(III)	the verdicts were unsafe and unsatisfactory because a different judge in a later case i.e. DCCC380/2008 did not accept the evidence of PW1 [Ground 2].

19.It was the applicant’s case in the court below made apparent in cross-examination and in final submission that PW1 could not be relied upon because he was one of several police officers involved in a case where there had been demonstrated impropriety on the part of some of the officers.  In that case, DCCC1280/2005, the trial judge concluded that several police officers who had been called as witnesses had discussed the evidence they had given or were about to give thus tailoring their evidence one to the other.  PW1 was not a witness in that trial.  The judge when considering the submission said this :

“In order to undermine the credibility of PW1, Mr Beel sought to cross-examine PW1 on his involvement in an earlier case HKSAR v LAU Hon-keung & 8 Others DCCC1280/2005 (‘the earlier case’).  It is noteworthy that PW1 was not a police witness in the earlier case but they were attached to the same investigation team.  PW1 was assigned duties so that he was present in the court building and had spent times in the witness room.  He was later called upon by the prosecution to give statements after it was disclosed by the defence that there were in existence recordings made secretly of conversations between police witness and certain other officers that had taken place in the witness room during adjournments in the trial.

The recordings were played to the police officers said to be speaking on them.  The court held a voir dire and decided that the recordings were prima facie authentic and admissible.  A total of 8 police officers including PW1 were interviewed out of which 5 were prosecution witnesses and they were recalled to give evidence to comment on the recordings.  In his Reasons for Ruling, the court recognized that quite apart from the inherent difficulties in any voice identification on the recordings, parts of the recordings were clear enough to enable satisfactory voice identifications and in many cases, he was of the view that it was apparent from the content of the recordings and from the context who was speaking.  One example given was Daisy, the officer in charge of the earlier case who was the only female voice recorded.

The court find it highly improbable that none of the police witnesses recalled were able to recognize whether his own voice had been recorded and he did not recognize any of the voices of his colleagues.

The Court also concluded from the content of the recordings that the 5 police witnesses (PW’s 2, 4, 5 and 10) recalled had ignored the warning not to discuss the evidence and what was more, they went beyond uncontroversial conversations but were talking about aspects of evidence that had earlier been given or questions that might be asked in the future.

In the end, because the conduct of the police witnesses undermined and weakened the evidence to such an extent that there was no case to answer for each defendant and they were acquitted accordingly.

Mr Beel argues that this particular aspect of the evidence should have seriously undermined PW1’s credibility in the present case.  Under cross-examination, it was confirmed that PW1 gave a total of 12 witness statements to the prosecution in relation to the recordings.  The questions were whether he could recognize his own voice, whether he could recognize anybody else’s voice and whether he wished to make any other comment.  In all the witness statements, he answered the questions in the negative, as did the other police officers who had also occupied the room during the trial.

It is submitted that if PW1 had testified, he too would not have been believed.  By giving the same answers in the witness statements, it is also submitted there was collusion between him and the other police officers in the making of their statements which is indicative of a culture developed within the police force of doing what it takes to secure a conviction.

Prosecution did not object to such application on the basis of fairness to the defendants, particularly in light of the special background of the previous acquittals in the earlier case.  However, prosecution did not accept that PW1 had been found to have lied in the earlier case as PW1 had never been a witness  in the earlier case …”

Having set out the background in the passages quoted above the judge said :

“The issue before me was therefore after listening to PW1’s evidence, did the cross-examination on him as to credit showed that he was a witness that ought not to be believed on oath and that his conduct in the earlier case has adversely affected his standing as a witness in the present case.  After carefully consider the evidence and submission in the round, the answer must be in the negative.  I can do no more than repeating what I have said that there was simply not a string of evidence to support that PW1 had improperly discussed evidence with other police witnesses in the earlier case.  His similar response in the statements and explanations in this court that he could not make any voice identification on the recordings may well be prima facie suspicious as indicative of a foul play among the other police officers whose evidence had been disbelieved but if he had not discussed any evidence with those other police witnesses in the witness room, how could PW1 be accused of doing what it takes to secure a conviction?  His similar stance in the matter of voice identification and his similar response in his statements after listening to the recordings may not become him well in the eyes of the defence but I will keep in mind the different standing of PW1 as opposed to the other discredited officers as well as the very different circumstances of PW1 under which he was called upon to give those statements in the earlier trial.  Unlike those other officers who had took part in the discussion of the earlier case, PW1 would not be able to identify any of those voices and certainly not himself by reference to the content and context of those notorious conversations in the recordings.  As such, after a critical and independent assessment of his response in those statements, I concluded that while I could not exclude the possibility of collusion among the 5 discredited police officers in the earlier trial to refuse any voice identification after the recordings surfaced, PW1’s negative response might well be innocuous and there was nothing sinister as contended by Mr Beel.”

and later the judge said this :

“I rejected the defence suggestion that PW1 had shown to be a liar with a motive to secure a conviction in the earlier case.  In the present case, he has demonstrated to be particularly careful both as to accuracy and honesty.  His ability to recall the incidents in the trial indicated his capacity to absorb the details of the lead up and execution of the events giving rise to the charges in terms of time, place and characters.  As I have already rejected the suggestion that the diaries were rewritten and have been replaced, the 5 diaries were all faithfully and diligently complied by PW1 during the 7 months between June 2005 and January 2006 i.e., even before he was attached to the present team of police officers after 26 January 2006.  In the circumstances, any suggestion that the making of the records in the diaries was subjected to possible adverse influence by the dubious culture of the team members, if any, would be none or minimal.  All in all, considering all the evidence in the round, I found PW1 an honest and truthful witness whose evidence I could rely without hesitation.”

20.Mr Simon Tam, SPP on behalf of the respondent submitted that in the above passages the judge had correctly directed himself as to how he should approach the credibility and reliability of PW1. He points out that counsel for the defence were allowed to cross‑examine PW1 extensively on the latter’s previous “involvement” in DCCC1280/2005 and that as a consequence the judge was in a position to fairly assess not only the degree of his involvement (if any), and the effect (if any) on his credibility in the trial before him. We agree.

21.In the passages above the judge has demonstrated that he was alert to the possibility that PW1’s integrity and thus his evidence could be impugned by his involvement in DCCC1280/2005. He did this in the full knowledge that the whole of the prosecution case was dependent upon his evidence. In our opinion no valid criticism can be made of his approach and conclusions.

22.There is no merit in these grounds of appeal.

Ground 1(c)

23.Towards the end of his reasons for verdict that judge said :

“The role played by PW1 in the earlier case was minimal.  He was involved only because he was one of the officers that would have been present in the witness room during the trial when the recordings took place.  He did not take part in the investigation and he was only tasked to do some odd jobs to assist his team members during the trial.  His peripheral involvement means that he must be treated as a different category of witness as the other 5 police officers whose credibility had been so seriously questioned by the court.  This view was also supported by the assurance given by John Reading SC, Deputy Director of Public Prosecutions in a letter dated 22 September 2008 addressed to Mr Ng that after carefully considering the conduct of the various police officers in the earlier case by senior counsel from the Bar and by him, there is insufficient evidence to charge PW1 with any criminal offence arising out of his conduct during the earlier trial.”

The subject of this complaint is contained in the latter part of the passage above.  It is to the effect that the judge relied on a decision not to prosecute PW1 as giving support to his credibility.

24.What the judge was here saying must be read in context. On 3 September 2008, after all of the evidence had been given, there was a lengthy discussion between the judge and counsel as to when the Department of Justice would make a decision as to whether the five officers and/or PW1 involved in DCCC1280/2005 would be charged. It was said by counsel for the applicant that he was prepared to wait for such a decision and that the matter should not be left in limbo. The judge agreed and said he would like to be told of the situation because that was a matter which he should take into account. The judge asked prosecuting counsel to convey a message to the Department of Justice that he was of the view that it was most undesirable that he was to be kept in the dark as to what was to happen to PW1 since a decision to prosecute PW1 could impact upon his assessment of PW1’s credibility. Counsel for the Applicant and counsel acting for the third accused said the court should also be informed of any decision to take any action which was adverse to PW1 eg. Disciplinary proceedings. The case was then adjourned to 24 September 2008.

25.Given what was said in court on 3 September 2008, a letter dated 22 September 2008 signed by Mr John Reading, SC Deputy Director of Public Prosecutions was sent to counsel on fiat. The letter was copied to the clerk of the judge, the Director of Legal Aid as well as the defence solicitors.

26.When the hearing resumed on 24 September 2008, prosecuting counsel confirmed the content of the letter in open court. Neither counsel for the applicant or his co-accused made reference to this in the exchanges that followed which precedes their closing submissions. From the transcript of the exchanges on 3 and 24 September it is clear that it was accepted by them, the prosecutor and the judge that a decision to prosecute PW1 could possibly be a matter relevant to his credibility. At no time was it suggested that it was improper for the judge to be made aware of this.

27.It is nevertheless now suggested that the judge improperly took the fact that this decision had been made into account when assessing PW1’s credibility. We do not agree.

28.The judge had determined on the basis of the evidence before him that PW1’s involvement in DCCC1280/2005 was peripheral and that taking all matters into account he was to be considered separately from these officers whose integrity had been impugned. Having reached this conclusion, he noted that his conclusion appeared to be supported by the decision by the Department of Justice that he would not be prosecuted. Prior to making this observation the judge had clearly demonstrated the process by which he had concluded that PW1 was an honest and reliable witness. The observations complained of do not form part of that reasoning process. The judge was, with the agreement of all counsel attempting to ensure that any decision which might impact adversely on PW1’s credibility was made known to the parties before the conclusion of the trial.

29.This was in the unusual circumstances of this case entirely proper. There is no merit in this ground of appeal.

DCCC380/2008 and Ground 2

30.Ground 2 is not a ground of appeal. It is an assertion that we should take a view different from that of the trial judge in respect of PW1’s credibility because of the decision in HKSAR v Yeung Pui Fung & Others DCCC380/2008, a case concluded two months after the applicant’s trial. PW1 was a key witness in both trials.

31.In DCCC380/2008 the judge Deputy Judge E. Yip was not prepared to rely on the evidence of PW1. In the certified translation of the judge’s reasons for verdict, he said this :

“The modus operandi of the operation, the role of PW1, his way of recording the incidents and the way other police officers handles his records contain doubts which cannot be dispelled.  In these circumstances, it is not safe to (rely on) PW1’s one-sided version.”

The basis for this conclusion is set out in paragraphs 12 to 16 of his reasons for verdict which are cryptic.  He said this :

“12.  Detective Sergeant 1435 Tse Sai Man (PW2) purchased notebooks with red and black hardcover in the market instead of providing police notebooks for Police Constable 3906 (PW1) to make records for the purpose of avoiding association of the contents of the notebooks, when found in the street or when accidentally found by burglars breading into the safe house, with highly confidential police intelligence.  The Defence Counsel pointed out during cross-examination that it was sufficient for anyone who turned to the first page or some of the pages therein to know that they recorded police intelligence.  PW2 said that other people might not even have interest in opening the notebooks when seeing that they were only ordinary ones and hence, they were, in his view, safer than those with printed police emblem.  I find this to be rather flimsy.

13.  Neither PW1 nor his superior, PW2, mentioned immunity from prosecution before the whole operation.  Again, it was not mentioned before he was about to commit a particular crime.  This protection was of imminent importance at that moment.  This is unbelievable.

14.  There was no specific duration, area (mainly on the Hong Kong Island) or triad society for PW1’s assignment.  He also did not have any intelligence support from his superiors.  Although he was said to have a higher chance of meeting triad members at places of entertainment, how could he possibly know which persons were triad-related.  Active accosting might arouse suspicion.  Keeping silent might not result in any progress.  If (the chance of success for) trying his luck or sticking to his folly and doing nothing was said to be too remote, then it is unbelievable that he met by chance (members of) Wo Hop To, which (according to the triad expert) was not too active in Causeway Bay, and claimed that D2 had invited him to be a member of Wo Hop To within one month.

15.  PW1 returned to the safe house a few hours after the incidents.  He relied on his memory or secret codes in his mobile phone to make his records.  Each incident involved quite a number of people, conversations and actions.  This method itself contained the possibility of writing too much or incorrectly.  When he gave evidence in the morning, he unintentionally neglected to mention D3 and suddenly recalled it only in the afternoon, which shows that his diaries may contain mistakes that he has not yet detected.  This undermines the reliability of PW1’s evidence.

16.  These notebooks had been kept by PW1’s superior, Senior Inspector Tang Suk Yee (not by the person designated to be in charge of exhibits in the police station) in her personal locker for quite some time for the purpose of investigation and follow-up.  PW1 had a 3-month break before starting to write out his witness statements (POL 154) according to his diaries.  The Defence Counsel doubted why the inspector privately kept the originals for a long time as copies could be used for investigation or follow-up.  PW1 could re-write the contents any time before he finished writing out his witness statements.  Given the fact that PW1 related what happened during the crimes according to the diaries and statements, I find that the way of handling the diaries contravenes common sense, thus undermining the credibility of PW1’s evidence.”

32.The respondent submitted that there is a huge difference, between a refusal to rely on the uncorroborated evidence of a particular witness to convict and a positive finding that that witness had lied on oath. He submits there was no finding on the part of the judge in DCCC380/2008 that PW1 had lied or was in any way dishonest. We agree.

33.The passages paragraphs 12 to 16 in the certified translation of the reasons for verdict in DCCC380/2008 are specific to the judgment in that case. They do not and could not form the basis upon which we should entertain a doubt as to the integrity of the convictions in the instant case.

34.We are satisfied that there is no merit in this application and it is dismissed.

Mr Simon Tam, SPP of the Department of Justice, for the Respondent

Mr Paul Tse, instructed by Messrs Pansy Leung Tang & Chua, for the Applicant