Patrick Michael Miller Field and Others v. The Queen
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CACC000871/1977
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 25th July, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The ten appellants, eight of whom were formerly members of the Royal Hong Kong Police Force, appeal against their convictions for conspiracy. The conspiracy alleged was to obstruct the course of public justice in that they, together with certain other named conspirators and other police officers unknown, should act contrary to their public duty as police officers in relation to the administration of the law. The period of the conspiracy was charged as between the months of January 1970 and October 1976. The case for the Crown rested upon accomplice evidence and Mr. Hidden, leading counsel for the eight former police officers, attacks the judge's approach to the evidence in the light of the form of immunity from prosecution granted by the Crown to the accomplice witnesses and also impeaches the credibility of the uncorroborated evidence of those witnesses. The precise nature of the criminal activity alleged was the collection and distribution by successive barrack sergeants at Tsimshatsui Police Station of what may be termed protection money from gambling and vice establishments in that area. It was not the case for the Crown that the barrack sergeants, indoor employees at the station with no responsibility for handling money in an official capacity, themselves collected money from the illegal establishments: that was the function of so-called "collectors" who paid over their takings to the barrack sergeant who thereafter paid different amounts to certain police officers at that station. The appellants thus fall into three groups, collectors, barrack sergeants and payees. Adopting the numbering employed in the Court below, the 21st and 22nd defendants, who were civilians, were collectors; the 16th, 17th and 18th defendants were barrack sergeants, whilst the payees were the 2nd and 3rd defendants who were Sub-divisional Inspectors (S.D.I.s), the 4th defendant, an Assistant Sub-divisional Inspector (A.S.D.I.), and the 9th and 13th defendants who were station sergeants. 2. The immunities granted to each of the principal Crown witnesses were in identical terms and read:-
3. It is to be observed that the immunity from prosecution did not extend to common law offences nor did it exclude liability from civil process. It remained open to the Crown to bring an action against each of the former barrack sergeant witnesses to recover the corrupt money which they had received by virtue of their office held under the Crown. See Reading v. The Attorney General(1). 4. The learned judge, having commented that the absence of corroboration made the case an anxious one, went on to say:-
In regard to the witness Lam Sau Yat the learned judge said:-
5. It was Mr. Hidden's contention that in these passages the learned judge had looked at the matter through the wrong end of the telescope since the wider the immunity offered the more likely it was that the truth would emerge from the subject thereof whereas the narrower the immunity, the greater need for the judge to be on guard; where a witness had self-confessedly received corrupt money and was not clothed with civil immunity it was in his interest to describe how he had paid that money out so that he was not worth pursuing in the civil courts, that is, in the present case, in his interest to stick to the original story which he had told to the Independent Commission Against Corruption irrespective of its truth. 6. Whilst there is some attraction in those remarks of counsel, it is of course for the Crown to decide what degree, if any, of immunity to offer to a particular accomplice witness and for the judge, in the knowledge of the actual immunity offered, to assess the value of the witness's evidence. In the present case the judge displayed a very keen awareness of the nature of the evidence laid before him and it may assist in an appreciation of that fact if the passage in which he said that "one may expect that an accomplice armed with an immunity would tell the whole truth," be considered, not in isolation, but in the context of what preceded and followed that remark. The complete passage in the judgment ran:-
7. So that looking at the first of the two remarks of the learned judge regarding immunity which Mr. Hidden criticizes, and putting it in its context, we would not be disposed to agree that the judge was holding the telescope the wrong way round whilst the second remark, that relating to Lam Sau Yat, was not a general remark but was concerned with that witness only - a witness whom the judge had heard and observed; the remark reflected the judge's impression of that particular witness and it would be most difficult for this Court to say that that impression was wrong. 8. Again the judgment must be read as a whole and, putting the first remark complained of further into context, a quite different passage in the judgment is of significance. At pages 2480/1 the judge said:-
9. Moreover the matter is to be looked at in the further context of the whole current situation in regard to corruption trials in Hong Kong. In Cunningham and Thompson and The Queen(2) this Court said:-
10. So also here although the learned judge at one point said that "one may expect that an accomplice armed with an immunity would tell the whole truth", when that remark is put into its proper context it is seen not to bear the significance which Mr. Hidden would have us place upon it. 11. Moreover the primary concern of accomplice witnesses of the type with which we are concerned must surely be to escape prosecution and possible imprisonment. That they could only do if they gave full and true evidence and we find it difficult to credit the witnesses concerned with either the subtlety or the stupidity to play a game of brinksmanship by telling lies in the box about their disposal of the corrupt monies so as to avoid a hypothetical civil action whilst, by their very perjury, throwing off the cloak of immunity and risking prosecution and prison. In our view the learned judge's remarks were justified and do not merit the perhaps initially plausible criticism levelled at them. In short, we would not allow these appeals upon the basis of the alleged inadequacy of the immunity offered to the accomplice witnesses. We are not overlooking the fact that nowhere in the judgment is there any reference to the actual terms of the immunities but the learned judge was well aware of those terms and had set them out in extenso in his ruling upon the submission of no case to answer. 12. It therefore becomes necessary to consider the credibility of the uncorroborated evidence of those witnesses. Mr. Hidden contended strongly that the learned judge's approach had been to take the evidence of one unreliable witness and bolster it with that of another thus indulging in a process of adding nought to nought. We are satisfied that in general that was not so although the judge had reservations about many of the witnesses. It seems to us that what the judge was relying upon was the quality of the evidence and whilst the quality was not good, the witnesses being accomplices, it must not be overlooked that it was open to the learned judge, having warned himself of the danger of so doing, to have convicted upon the evidence of any single accomplice. We have given anxious consideration to this ground of appeal which affects not only Mr. Hidden's clients but also the 22nd defendant who, together with the 21st, was represented upon the appeal by Mr. Rodway. In the result, close scrutiny of the very careful reasons given for the conviction of each of the appellants in this case does not reveal any general process of adding incredible evidence to incredible evidence in order to achieve credibility. 13. There are however exceptions and we turn to the case of the 2nd defendant. In assessing the merits or demerits of that conviction it is necessary to consider the evidence both against the 2nd and the 1st defendants the latter of whom was acquitted. The evidence against the 1st defendant came solely from the accomplice Hui Sum who was at one time a barrack sergeant at the police station with which we are concerned and his evidence was four-pronged. He spoke of a conversation with the 1st defendant at which the latter asked him to take over as barrack sergeant, a post which he assumed on 1st June 1972; of collecting illicit monies from the 21st defendant and one Lam Tak and paying out those monies to (inter alios) the 1st defendant such payments being made on the 1st, 5th, 15th, 25th and 30th of each month until, in September 1972, the 1st defendant was transferred; of a meeting at the Golden Crown Restaurant between himself and the 1st and 5th defendants at which the 5th defendant asked him to disclose to the 1st defendant details of the "accounts" which disclosure was not made since the 1st defendant expressed himself as satisfied with matters; and lastly of a final meeting with the 1st defendant at which he gave the latter an additional five thousand dollars. Hui Sum's evidence against the 2nd defendant was only three-pronged. The 2nd defendant had succeeded the 1st as the Sub-divisional Inspector and according to Hui Sum some two or three days after that event called Hui Sum to his office asking "What is the position?" which Hui Sum took to mean the position concerning illicit monies; Hui Sum said he explained to the 2nd defendant the method in which he would be making payments to him which was the same as that with his predecessor the 1st defendant, that is to say five hundred dollars on the 1st of the month, two thousand five hundred dollars on the 5th, three thousand dollars on the 15th, two thousand five hundred dollars on the 25th and one thousand dollars on the 30th. Hui Sum said that thereafter he gave the 2nd defendant money on those days and in those amounts; the third item of evidence against the 2nd defendant was Hui Sum's account of how he had had a conversation with the 2nd defendant reporting to him that the 5th defendant was endeavouring to take control of the barrack sergeant's account which would mean that the 2nd defendant would receive less money than previously; to this Hui Sum said, the 2nd defendant had said "No, that will not do." 14. It is therefore apparent that there was less evidence against the 2nd defendant from Hui Sum than there was against the 1st and it follows that the 2nd defendant could not have been convicted simply upon the basis of Hui Sum's evidence for the 1st defendant had been acquitted. The only other evidence against the 2nd defendant came from one Pang Kam Tong who said that he was posted to Tsimshatsui in April 1973 and that shortly after he arrived there he was instructed by the 2nd defendant not to pay too much attention to the hawker problem; this witness said thereafter for a period of more than two months he personally received weekly sums of money from Sergeant 2713 which monies had been collected from hawkers and which he distributed amongst the sergeants in Tsimshatsui. At the beginning of November 1973 Pang became barrack sergeant taking over from one Lung Fai. According to Pang, from February 1974 he received envelopes from Lung Fai at the latter's residence containing monies for, amongst others, the 2nd defendant which monies he delivered to the 2nd defendant at the rate of six thousand dollars per month until May 1974 when the 2nd defendant ceased to be Sub-divisional Inspector. Pang's further evidence was that during this period he also paid to the 2nd defendant certain weekly sums of three hundred dollars although not every week. 15. It was of Pang that the learned judge said:-
16. The judge further described Pang as a man who "on occasions ... misled the Court" and who was "undoubtedly an unscrupulous person who will stop at nothing, not even obstructing justice to secure his own ends". The learned judge further described Pang's account of his purchase of a second flat for one hundred and twenty thousand dollars from savings as "unbelievable" and also said that his claim never to have asked the 17th defendant about the barrack sergeant's account, although aware of the existence of such an account, when he was understudying the 17th defendant, was "incredible". 17. We have already seen that the 2nd defendant could not have been convicted upon the evidence of Hui Sum since the 1st defendant was acquitted and Hui Sum gave more evidence against the 1st defendant than he did against the 2nd. It follows that the conviction of the 2nd defendant must have rested upon the evidence of Pang or upon the totality of Hui Sum's evidence and that of Pang. We do not think however that either of these witnesses can legitimately be used to bolster up the testimony of the other. The only substantial distinction between the cases of the 1st and the 2nd defendant is the evidence of Pang and having regard to the learned judge's opinion and description of that witness we cannot but consider that a conviction resting upon the evidence of Hui Sum and Pang is unsafe and unsatisfactory and the conviction of the 2nd defendant is therefore quashed. 18. It is unnecessary to recount the evidence against the 4th defendant but sufficient to say that it is virtually the same evidence as that against the 2nd defendant so that for the same reasons the conviction of the 4th defendant must also be quashed. 19. The evidence against the 16th defendant came from Hui Sum as did that against the 1st defendant. It cannot be said that the evidence against either was stronger than that against the other yet the 1st defendant was acquitted and the 16th convicted: what appears to have influenced the learned judge in regard to the 16th defendant was that during the material period he had been a barrack sergeant and barrack sergeants were known to have been the pivot of the conspiracy since even before the commencement of the charge dates. We think this a somewhat tenuous foundation upon which to base the conviction of the 16th defendant and it is impressively in his favour that he refused the offer of immunity in return for Crown evidence upon the ground that he had never been corrupt. In all the circumstances we must consider the conviction of the 16th appellant unsafe and unsatisfactory and his appeal is allowed. 20. Having, with the three exceptions with which we have dealt, found ourselves unpersuaded by Mr. Hidden's general grounds of appeal relating to the judge's approach to the effect of the immunities and to the alleged process of his having added nought to nought in his consideration of the evidence, grounds adopted by Mr. Rodway on behalf of the 21st and 22nd defendants, we have carefully considered the individual grounds of appeal put forward on behalf of the remaining appellants but have found nothing therein to persuade us that the conviction of any those appellants should be set aside and their appeals are dismissed. Representation: Hidden, Q.C. and Miss M. Tam (T.S. Tong & Co.) for 1st to 8th Appellants. G. Rodway (Director of Legal Aid) for 9th and 10th Appellants. Conway for Crown/Respondent. (1) 1951 A.C. 507. (2) Cr. App. 96/1976. |