Mak Chi Kin and Others v. The Queen
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CACC000891/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 891 OF 1973 -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 15th March 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. These three Appellants were charged in the District Court on three charges but we are concerned with only two of them. They both relate to alleged offences under the Prevention of Bribery Ordinance. Both charges were of corruptly soliciting and the particulars of the first charge were that these three men "being public servants, namely police constables of the Royal Hong Kong Police Force, did, together with another person not in custody, on a day unknown in May 1973 at 63 Hennessy Road, fifth floor in this Colony, without lawful authority or reasonable excuse, solicit the sum of $3,000 Hong Kong currency from CHAN Ping alias CHAN Wai as an inducement to, or otherwise on account of, their abstaining from performing an act in their capacity as public servants, namely taking action against the said CHAN Ping alias CHAN Wai in respect of an alleged offence under the Dangerous Drugs Ordinance". In the second charge the particulars were identical save that they related to an alleged offence on 14th June 1973 at the Wan Chai Police Station and concerned an alleged demand for $2,000. All three Appellants were convicted and were sentenced to three years' imprisonment concurrent on each of the two charges. 2. The evidence was substantially as follows. At the material time these three men were members of a special duty squad on Hong Kong Island, that squad being concerned with the putting down of vice, gambling and drugs offences. The squad normally operated as either a single team or as two teams and was in the charge of an Inspector Croft. The offences were alleged to have been committed by these three men together with another member of that team, a sergeant who has since left the Force and has not been arrested. The Complainant in both charges is a man of doubtful character. He was first convicted for loitering at night and was thereafter deported, or ordered to be deported, and he has a number of convictions for breach of the deportation order. He was later convicted of aiding and abetting a larceny, of membership of a triad society and of showing indecent films. There was evidence by himself that the deportation orders were never effectively carried out. Some point was made of this in the course of the appeal but we attach no great weight to it because it is notorious that in the early 1950s there was great difficulty in carrying out deportation orders and many deportees either did not leave the Colony or very shortly were able to return. In 1972 there was a raid on this flat where the Complainant lived and he himself and a sub-tenant were both arrested on a charge under the Dangerous Drugs Ordinance. The sub-tenant was convicted and sentenced to a substantial term of imprisonment but the Complainant was acquitted. It would seem that the Appellants and the Complainant were not previously acquainted until the date in the first charge but clearly the Appellants had some knowledge of the Complainant. The four men, these three and the sergeant, went to his flat and they asked for the Complainant by name. They proceeded to search the premises. They had no authority whatsoever to go to those premises or to search the premises: they had no warrant and they were in breach of express orders, going there without the knowledge of the Inspector. That in itself, of course, is a serious breach of police regulations and it is also a civil tort but it does not make them guilty of the offence with which they are charged: it is a significant matter and it is one to which the learned judge obviously gave great weight. Nothing was found during the search but the Appellants, or rather the fourth man, then made hints, or what were taken as hints by the Complainant, that he would be framed and that he would be arrested. In fact he says that they tried to handcuff him and one hand was handcuffed. The Complainant thought that the men must be intent on obtaining money corruptly and therefore he asked what else they could do and the fourth man said "a sum of $3,000 was required". (Those were the words as translated to the learned judge. The tense of the verb could be of significance). The Complainant had no money and he offered to pawn a Rolex watch which he had and with which he thought he could raise $700, and offered to give them that. The first Appellant then sent the others from the room and he asked the Complainant to give him some work to do. The Complainant says:
He replied that he did not know but he sent for a sub-tenant, who was a drug addict and who he thought would know but she also said she did not know. The sub-tenant gave evidence to confirm that she was called in and asked this question. That evidence was contradicted by the first Appellant, who was the only one of the three who actually gave evidence. However, the Complainant did promise that he would make enquiries and after this it was agreed between him and the first Appellant that the first Appellant would call or would telephone, two days later. 3. In fact nothing more happened. The Complainant said in evidence that he was not afraid but, apparently, his wife was afraid because she made certain remarks which led him to go off to Macau. In fact he went to Macau and back several times. His contention is that he went there in order to keep out of the way of the Appellants. The defence suggests that he went there purely for his own purposes, namely for gambling. 4. The actual date of this incident was in May but it was not certain when. Some three weeks later - and this date is known on 14th June - the four men came again to the flat. They saw the Complainant and asked where he had run to. Thereupon, the Complainant says, the fourth man produced a packet, showed it to him and said "Is this enough?" He says they handcuffed him and then took him away to Wan Chai Police Station. A sub-tenant, who was in the premises at the time, corroborates his evidence to some extent at least, but I shall have to recite her evidence in some detail in a moment. The issue at this point is whether the Complainant was taken under arrest to the Wan Chai Police Station or, as the first Appellant said in his evidence, at his own request because it would be easier for them to talk there. 5. The prosecution case was that at the police station the Complainant's finger prints were taken: while that was being done his wife, who had received information from the sub-tenant had gone post haste to the police station, came to the first Appellant and pleaded for a favour: the third Appellant was then asked to take the wife away to a cafe and there was further conversation between the other Appellants and the Complainant: certain threats were made and the Complainant then got the impression that he was being asked to suggest terms for his release: the first Appellant said:
the Complainant had no money but he then suggested that there was a man from whom he had borrowed money previously, a man called CHAN Kuen, and as a result of this the police took him to CHAN Kuen's residence: he went in and asked CHAN Kuen for a loan but was refused: (much turns in this case upon the evidence of CHAN Kuen, who also corroborated the Complainant to some extent. The question which arises as to his evidence is whether the visit which he speaks of when the Complainant asked him for a loan took place on the date that he said it took place) the Complainant was taken back to the police station: there was further discussion and a second time he was allowed to go without any charge having been laid against him: the following day the Complainant made a report to the Anti-Corruption Branch and it was as a result of that that this case was brought against the Appellants: he himself, the Complainant, went to Macau: he made, again, various visits to Macau: the Anti-Corruption Branch went to interview CHAN Kuen with a view to seeing whether there was any truth in the Complainant's story and on 15th, the same date as the report was made (the day following the events the subject of the second charge) they took a statement from CHAN Kuen. That statement was taken by a detective sergeant and his evidence was that CHAN Kuen then said that "on 14th June" the Complainant had come and asked for a loan. He was quite clear that the Complainant had said "on 14th June": he did not say "yesterday". That is of great significance in the case made out on appeal. 6. The case is one under s.83(1)(a) alleging an unsatisfactory verdict. There are a number of points which have been taken. I shall mention only five of them. First there is a dispute about whether or not the Complainant was handcuffed at the time he was taken from the flat to the police station. The learned judge as to this said:
It is not clear what she told the Complainant's wife, but nothing turns upon that. The question is, what was the judge actually finding there? Was he not persuaded that the man was handcuffed inside the flat or was he not satisfied that he was handcuffed at any time inside or outside the flat. The evidence of the sub-tenant was as follows. She said at first that the men came and she was pushed into the front room and then she says:
Later it was put to her that she never saw CHAN Wai leaving or in handcuffs and the record then reads as follows:
Now, interrupting there for a moment, with respect to counsel I do not think that that was entirely correct. The first answer which I have recited was at best ambiguous: "I saw CHAN Wai already handcuffed and he was taken away": it could have meant that he was handcuffed and taken away from the flat in handcuffs or it could mean that he saw the man outside in handcuffs. The record continues:
The corridor as will appear was outside the flat.
Again, with respect, that question is not altogether clear. To what does it relate? Does it relate to what was seen, or to the person who was looking?
It would at least seem that when she said "at the doorway" it was she who was at the doorway and that she saw the man outside by the lift: it was also she who was "in flat near lift". Her evidence was quite clear that she saw him in handcuffs. Now, with respect to the learned judge, we think perhaps he misunderstood that evidence. Quite clearly he had doubts about the evidence of this woman. Why he had doubts about this particular piece of evidence is by no means clear to us unless he thought that she was contradicting herself and that that is what he did think appears from the manner in which he set out part of the evidence which I have recited in full. In our view there was nothing contradictory in that woman's evidence. There was nothing to raise any doubt that she was saying quite clearly that she saw this man in handcuffs and, therefore, there is no doubt in our mind that the evidence of this sub-tenant did corroborate that of the Complainant and there was no question of her having contradicted herself. It is not clear what weight the learned judge would have attached to her evidence if he had not thought she had contradicted herself. 7. I turn then to the second point which has been taken and which is one of more substance. That relates to the evidence of CHAN Kuen. I have said that his statement to the police made it clear that the events which he was describing took place on 14th June which was the day before that on which he made his statement. However, his evidence in court was, to say the least of it, muddled. He said that when he made the statement he was asked about the date and this passage appears in his evidence:
Now there is an unequivocal statement by the witness that he did not know the date when he was asked and that at the time he made the statement he actually telephoned and asked. Of course, the detective sergeant, who was recalled to be asked what had been said, made no mention whatever of the witness's having made a telephone call in the course of the statement and it was never suggested to him that he had done so. The rest of the evidence is, as I say, extremely muddled. CHAN Kuen seems to say that the Anti-Corruption Branch officers came only once and that that was two or three days after the incident. There is no doubt at all that the Anti-Corruption Branch officers came on the 15th and if they came two or three days after the incident that would put the incident before the 14th. Until the questions in re-examination there did seem to be some doubt but it seems to us that the matter was there put beyond doubt that he was saying that he did not know himself when this was and that the telephone call which he had all along said he had made was made during the making of the statement. If that be correct, and we think we must accept that that is possibly correct, then quite clearly no reliance whatever can be placed upon the evidence of CHAN Kuen: it is no corroboration of the Complainant. Of course, we are left with the position that the Complianant himself said that it was on the 14th that he went to ask for this loan. What we have to consider is what view the learned judge would have taken had he not tended to brush aside this part of the evidence. What the learned judge said was:
and that is all. In our view there was very much more to it than the learned judge appears to have appreciated and insufficient attention was given to this apparent inconsistency in the evidence. It is very difficult for us to know whether the learned judge would have believed the Complainant had he fully appreciated the problem posed by CHAN Kuen's evidence. 8. It is necessary for us to go on and consider the other matters because the case made out by Mr. Yu is not that there was any one misdirection but, quite properly, he says that the whole case leaves a lurking doubt whether the conviction is safe. 9. The third point is that the learned judge said:
Complaint is made that it is net necessary for there to have been an unholy conspiracy or any conspiracy at all. In our view this part of the learned judge's judgment is not open to criticism. The evidence of the wife included an allegation that she had a conversation with the first Appellant, quite clearly alleging that the first Appellant had been asking for money and he did not care whether he got it "today or next year". If that was true there was every reason to believe that it was the result of a conspiracy. The first of the sub-tenants gave evidence about an enquiry as to a possible source for buying drugs. The first Appellant denied that the woman was ever called in and asked that question. Therefore, if she is telling lies when she says that she was called in and asked that question, there is every reason to believe it was the result of a conspiracy. And similarly, the evidence of the second sub-tenant who was called relating to the handcuffing: if she gave false evidence about the Complainant's having been handcuffed there is every reason to believe it was the result of a conspiracy. Therefore, we see no objection to the learned judge's having used what was, perhaps, a fairly strong expression but nevertheless one which was not unjustified. 10. However, what was perhaps open to criticism was his statement:
We think that it was unfortunate that the learned judge expressed himself in these words. Probably what he meant was that there was a complete denial and a complete fabrication in relation to the corrupt demand. There was, as counsel has shown us quite clearly, a very great deal of common ground in this case - and it is that which has made it so difficult for us. So there was some ground for criticism of the words used but we think it is not of any very great significance. 11. Next, considerable weight was attached to the fact that the wife of the Complainant was unable to identify the first Appellant at an identification parade. In our view this is of no importance at all for the reason that both sides rely upon the wife's having seen the first Appellant at least twice in circumstances which would make it very surprising if she could not identify the first Appellant. The fact is she could not and we are left with that surprising fact, but it does not assist, in our view, the defence more or less than the prosecution. 12. The final matter to which we refer is the learned judge's comments - there are two of them - that certain matters were not recorded either in a notebook or elsewhere. He comments first that there are no entries of any visit made to the Complainant's premises or of any interviews with him or his wife and he adds:
Secondly he said that there was no entry made of the fact that according to the wife the first Appellant said to her in the police station:
Why any record should appear of this second piece of evidence we are unable to understand. We think it not at all surprising that there was no record of the first matter which ...(illegible) to. The learned judge appears to have thought that there was something strange about the absence of a record. 13. The question which we have to answer is whether taking into account the three matters upon which we think there was some failure or error on the part of the learned judge there is sufficient to warrant our interfering with these verdicts. We think they acquire special importance in a case like the present where there was so much common ground between the Complainant and the Appellants which was consistent with there being either an attempt to coerce the Complainant into acting as a police informer or an attempt to extort money from him. After the most anxious and careful consideration we have come to the conclusion that we are left with that lurking doubt which requires that we exercise the powers which we have. As we have indicated, it is very clear that these men are not entirely without blame so far as breaches of police regulations are concerned but, in our view, it is doubtful whether they ought to have been convicted on the judgment of the learned judge. 14. These appeals are allowed and the convictions quashed. 15th March 1974. Representation: |