John Simon Wilson and Others v. The Queen
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CACC000918/1977
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 12th May, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The six appellants were convicted by Judge Bewley at Victoria District Court of two offences of conspiracy contrary to Common Law. The first charge alleged that on divers dates between the 1st January 1973 and the 30th June 1975, in this Colony, they conspired together and with one Wong Ping and with other persons unknown to accept, without lawful authority or reasonable excuse, advantages, namely periodic sums of money from members of the public, as an inducement to or reward for or otherwise on account of their abstaining from performing acts in their capacity as public servants, namely as police officers taking action in respect of possible offences. The second charge related to the same period of time and likewise to conspiracy with Wong Ping and other persons unknown the allegation on this occasion being conspiracy to obstruct the course of public justice in that they should act contrary to their public duty as police officers in relation to the administration of the law. On the facts alleged the two charges clearly stood or fell together. 2. The first five appellants were police officers and the sixth a civilian. The first appellant was the Superintendent of Operations at Fanling and responsible for the general supervision of the Emergency Unit New Territories but was not in charge of the day-to-day operations of that Unit. The second appellant was Station Sergeant of the Unit whilst the third, fourth and fifth appellants were Sergeants attached at different times to that Unit. Wong Ping, one of the conspirators named but not charged, had, many years ago, been a police officer but at the relevant time was a fruit hawker and the first appellant was one of his customers. In brief compass the facts alleged were that the first appellant was said to have met Wong Ping at a night-club where they arranged to meet at Fanling Police Headquarters; following this later meeting the first appellant apparently took Wong Ping to a room where were the second and sixth appellants. Wong Ping was introduced to the second appellant after which the first appellant left; the second appellant then introduced Wong Ping to the sixth appellant and, with the expression "you people fix it up", left the room. That was the only evidence against the second appellant given by Wong Ping; according to Wong Ping's evidence, on the next two Saturdays the sixth appellant took him around three areas in Kowloon or the New Territories instructing him in the collection of money from various drug stalls and gambling stalls; thereafter the sixth appellant fell out of the picture but Wong Ping continued to collect from these stalls from, according to his evidence, March 1974 to February 1975 collecting approximately nine thousand dollars a month. Of this he kept one thousand five hundred dollars himself, gave four thousand dollars to the first appellant and the balance of between three and four thousand he gave over a first period of three or four months to the third appellant, over a second period of three or four months to the fifth appellant and over a final similar period of time to the fourth appellant. There was evidence, somewhat ironically, that by February 1975 most of the stalls concerned had closed down as a result of police action. It was Wong Ping's evidence that the payments which he effected to the first appellant were made at that appellant's flat and those which he made to the third, fourth and fifth appellants were made at Wong Ping's own dwelling. 3. The matter was investigated by the Independent Commission Against Corruption those investigations coming to fruition in January or February of 1977. The third and sixth appellants made certain statements but, those apart, the case against the appellants rested upon the evidence of Wong Ping and upon the interrogations made by officers of the Independent Commission Against Corruption. 4. The initial attack of Mr. Mathew, leading counsel for all the appellants was broad-based, having reference to all six appellants and being directed to the background and evidence of the main prosecution witness, Wong Ping. There can be no doubt that much of the criticism levelled in respect of this witness was justified. Indeed the judge had said that the Crown case stood or fell upon the evidence of this witness who, as has been seen, was alleged to have collected money from drug and gambling stalls on behalf of the first five appellants and who had been granted immunity from prosecution in respect of that activity on his undertaking to give "full and frank evidence" in this case. The witness admitted to having been a drug-addict until 1975 and the judge did say of him that it was possible that, on the basis of symptoms which he displayed in court, he was still addicted; that his answers in cross-examination contained an abundance of contradictions and were in several instances unsatisfactory; that he was confused as to dates; that he had given his evidence on the basis of the statement which he had made to ICAC officials and from which he had refreshed his memory some three days before giving evidence; that on his own admission he was anxious to give evidence satisfactory to the prosecution; that he was "a scoundrel of the first water" his evidence being tainted in the sense that he had a motive for telling the Court the same story which he had told to the ICAC seven to eight months prior to the trial - that was avoiding prosecution of himself; that he might have reasons of his own, unknown to the ICAC or to the Court, for implicating some or all of the defendants. In the light of those comments the judge's further remark that Wong Ping was "far from a perfect witness" was an understatement. Yet, despite his awareness of the nature of the man and of his evidence the learned judge was unable to find any satisfactory answer to the question why Wong Ping should have spun a false story to the ICAC in the first place and considered it inconceivable that the ICAC should have got hold of "this pathetic little man" and, having made up a story about collecting money from gambling stalls, should have bullied him into memorising it for their own dishonest purposes. That was a hypothesis which the judge utterly rejected. On the contrary the learned judge said that Wong Ping's description of how he collected money from gambling stalls and drug stalls was "immensely impressive" and "rang absolutely true". 5. The fact is that the trial judge, having had the advantage of seeing and hearing the witnesses and being well aware of the deficiencies of Wong Ping, having also reminded himself repeatedly of the dangers of convicting upon his uncorroborated evidence and being clearly alive to the possibility that Wong Ping might have reasons of his own for implicating some or all of the appellants unjustly, did in fact believe Wong Ping in regard to the collection and distribution of money. In the light of the judge's heightened awareness of the nature of this witness and of his evidence including the fact that he had lied in regard to his physical and psychological treatment at the hands of ICAC, we are unable to accept Mr. Mathew's submission that the witness's whole evidence should have been regarded as incredible so that the learned judge should not have looked for corroboration but should have stopped the trial on the basis that Wong Ping was simply not to be believed in regard to his allegations against the six appellants. The broad-based attack must therefore fail and we turn to consider the case of each of the appellants. In doing that it will be convenient to adopt the order in which argument was addressed to us. 6. The grounds of appeal of the first appellant were to the effect that the learned trial judge had wrongly concluded that the first appellant had deliberately lied to the ICAC officers when being questioned regarding his relationship with Wong Ping and also as to the number of visits made by Wong Ping to his home and had wrongly inferred that this indicated a guilty conscience; it was further said that the learned judge was wrong in rejecting the evidence of the witnesses called on behalf of the first appellant. 7. Mr. Mathew's all out assault upon the character of Wong Ping aside, his painstaking and skilful attack upon the learned judge's reasons for convicting the first appellant was necessarily confined to questions of fact. A not unsubstantial portion of the attack centred upon whether the two had known each other and had associated from time to time in a club known as the Club de Rich before the events the subject matter of the charges but this was essentially a peripheral matter and what was of real moment was the alleged introduction of Wong Ping by the first appellant to the second appellant in the presence of the sixth appellant in a barrack room and the subsequent visits said to have been made by Wong Ping to the flat of the first appellant for the purpose of paying him some four thousand dollars monthly. It was the evidence of Mr. Buckle of the ICAC that the first appellant, in an interview, had said that Wong Ping had visited his flat on only one occasion and that in connection with the delivery of a fish tank; the first appellant, on the other hand, said that he had told Mr. Buckle that there may have been other occasions. It was the evidence of the first appellant's then wife that Wong Ping had come to the flat on occasion to deliver fruit and once in connection with the installation of a fish tank but she denied regular monthly visits. The first appellant's amah said that Wong Ping came to the door of the flat at the most on some four occasions and that to deliver fruit. Their evidence and that of the first appellant himself in this connection was rejected by the learned judge and whilst, as Mr. Ogden conceded, there were inaccuracies in the learned judge's reasons for verdict as for example mention of a failure on the part of the first appellant to identify the name Wong Ping whereas what was demonstrated was merely an initial reluctance to answer questions about Wong Ping for which the first appellant was not to be blamed in the light of the caution administered to him, it is none the less clear on a consideration of the whole of the evidence that the first appellant's interviews with the ICAC did not reveal a true picture as to his relationship with Wong Ping; again, the learned judge referred to contradictions between the evidence of the witnesses for the first appellant which contradictions do not appear to have substance. But these errors are not sufficiently grave as to invalidate the primary findings. The judge accepted the evidence of the ICAC witnesses and that of Wong Ping and was convinced upon that evidence, and in the face of the evidence of the first appellant and his witnesses, of the guilt of the first appellant. We have considered with care all the able arguments advanced by Mr. Mathew but we are far from convinced that upon what are essentially questions of fact, we would be justified in this instance in interfering with the conclusions of the learned judge. It follows that the application of the first appellant must be dismissed. 8. We turn to the case of the second appellant as to whom Wong Ping's evidence was that the second appellant and he had joined the Police Force at about the same time some twenty-five years prior to the trial in the Court below. Wong Ping further said that on occasion in the 1950s he had seen the second appellant on duty near Mongkok Police Station but had not spoken to him. The next occasion upon which he claims to have seen the second appellant was at the meeting to which we have referred when the first appellant took Wong Ping to a room at Fanling Police Headquarters where were the second appellant and the sixth appellant and where, having introduced Wong Ping to the second appellant the first appellant left the room whereafter the second appellant introduced Wong Ping to the sixth appellant with the phrase "you people fix it up" and thereupon himself left the room. It was the second appellant's case that he had never met Wong Ping but, however that may be, even on Wong Ping's story his acquaintance with the second appellant was of the slightest. Wong Ping's identification of the second appellant took place at a confrontation of the two in ICAC Headquarters but a very significant feature of this confrontation was that just prior to it Wong Ping had been shown not only a photograph of the second appellant but a photograph which bore the second appellant's particulars. This tactic was rightly described by the second appellant's counsel in the Court below as at best undesirable and at worst despicable. We do not know the reason why the ICAC officials resorted to this device of confrontation supported by a photograph bearing particulars of the second appellant rather than to the more usual identity parade but the production of a photograph was quite improper and any identification based upon it immediately and highly suspect. We trust that for the future this improper and unfair device will be abandoned and we warn that if this is not the case identifications obtained in this manner are unlikely to stand up in court except possibly where the arrested person and his identifier were already previously well-known to each other. Even in those circumstances however a photograph of an arrested person who is to be placed on an identity parade or confronted by a possible witness should never previously be shown. The case of Haslam(1) is authority for the proposition that the police are not entitled to assist the identification of suspected persons already under arrest by showing photographs, including that of the suspect, to possible or likely witnesses against him. We are aware that in the case of Seiga(2) identification of this nature did not result in the quashing of the conviction by the Court of Appeal in England but in that case there was other identification of the accused which was independent of any photograph. In the present case even accepting Wong Ping's story and rejecting the second appellant's denial of ever having met Wong Ping, the two men were so very slightly acquainted that it is seriously open to doubt whether identification would have been possible but for the prior sight of the photograph by Wong Ping. In the light of this totally unsatisfactory identification of the second appellant it is unnecessary to consider his further grounds of appeal and his appeal is allowed, his conviction quashed and sentence set aside. 9. As in the case of the second appellant so also was Wong Ping shown photographs of the fourth and fifth appellants before being asked to confront them. Again this was quite improper and should not have happened. The crucial point however is whether the sight of the photographs could have assisted Wong Ping in his identification of these two appellants. We think it could not and that the showing of the photographs was superfluous for it was the evidence of Wong Ping that for three to four months he had paid over part of his illicit collections to the fifth appellant at intervals of ten days, two weeks or a month and that thereafter for a similar period he had made such payments to the fourth appellant at monthly intervals. In other words he knew the two men and, as Mr. Ogden says, the issue is not one of identity but of truthfulness in regard to his earlier relationship with the two. The learned judge believed Wong Ping as to that relationship and we cannot agree with Mr. Mathew that to accept the identification of the fourth and fifth appellants on the basis that because Wong Ping had been truthful as to the payments made to them he was truthful as to identification and not falsely accusing the pair, was "to put the cart before the horse". Moreover we are unable to agree with Mr. Mathew that the learned judge, having warned himself of the danger of convicting the fourth appellant upon the uncorroborated evidence of Wong Ping, virtually used as corroboration Wong Ping's account of visiting his own dentist, the father of the fourth appellant, when the former was ill. Corroborative evidence must come from a source which is independent of the witness whose evidence is to be corroborated and what the learned judge said of this incident was that it strengthened immeasurably Wong Ping's evidence. It could not be and was not used as corroboration. Whilst thoroughly deprecating the production of a photograph to Wong Ping before his confrontation with the fourth appellant we are unable to say, in the light of the learned judge's acceptance of Wong Ping's evidence regarding payments made by him to the fourth appellant, that any real harm was done and there being no merit in the subsidiary point raised by Mr. Mathew, the application of the fourth appellant must be dismissed. 10. We have dealt with the production of a photograph of the fifth appellant to Wong Ping before the two confronted each other. Two subsidiary points upon the appeal of the fifth appellant related to Wong Ping's breaking down and crying when confronted with the fifth appellant and to a comment made by the fifth appellant when, after repeatedly denying that he knew Wong Ping and after being shown a statement implicating him with Wong Ping, said "It was two years ago." Wong Ping's explanation for breaking down upon his confrontation with the fifth appellant was that they had been friends and that it went against the grain to denounce the fifth appellant. The learned judge regarded that evidence as persuasive confirmation that Wong Ping was telling the truth about his relationship with the fifth appellant. That was a view which was open to the learned judge and one from which we would not be justified in differing. As to the remark "It was two years ago", one interrogating ICAC officer saw this as the first mistake made by the fifth appellant in his interview and as an admission; the other investigating officer apparently did not see the remark in that light but there can be no question that it was a revealing remark and the learned judge was entitled to his conclusion that the fifth appellant had been lying in his previous answers in regard to his acquaintanceship with Wong Ping. These two matters were, as Mr. Ogden rightly observed, jury questions and we do not consider that we would be justified in interfering with the learned judge's findings upon them. The application of the fifth appellant is dismissed. 11. As to the application of the sixth appellant who was not a policeman and in respect of whom no question of identity arises, it is unnecessary to say more than that he made clear admissions to ICAC officials of his complicity in the events charged. We cannot consider that the criticisms levelled by Mr. Mathew at the circumstances in which those admissions were made carry any adequate weight. It is doubtful if even total rejection of Wong Ping's evidence could have resulted in the success of this appellant's appeal. His application must be dismissed. 12. The third appellant, in the course of four interviews which took place over a period of two days at the Headquarters of the ICAC, made certain verbal statements which culminated, during the fourth interview, in a written statement. The voluntary nature of that statement was disputed in the Court below but, after a lengthy trial within a trial, the learned judge admitted the statement into evidence. The learned judge gave a detailed and careful ruling and the question we have to ask is whether the third appellant has demonstrated that that ruling was wrong. The judge rejected the allegation of actual ill-treatment as by his being denied sleep for forty-eight hours and being subjected to excessively cold air-conditioning and excessively bright lighting. There was evidence that there was a bed in the room in which this appellant was confined and that the light switch and the air-conditioning control buttons were inside that room and at his command. What has exercised this Court is the question whether the statement was induced in a subtle manner by the interviewing officers of the Independent Commission. The statement ends
Thus it is clear that the third appellant hoped to be granted an immunity in return for his testifying on behalf of the Crown and the learned judge had to consider whether such hope was implanted by the interrogating officers. 13. The rule as we understand it is that which was stated by Winn L.J. in Richards(3):
Thus, where the act complained of is that of a person not in authority the proper test is whether a confession has in fact been induced, whereas in a case where the act complained of is that of a person in authority there is a rebuttable presumption that the confession has been induced and the prosecution must prove affirmatively that the inducement did not operate at all upon the mind of the person to whom it has been made. 14. We have perused with extreme care the learned judge's ruling as to the admissibility of the third appellant's statement and all the evidence surrounding the taking of that statement and have considered anxiously whether there was anything in the conduct of the various interviews capable of constituting an inducement to this appellant to make a statement in the belief that thereafter he would be allowed to turn Queen's evidence. As we read the judge's ruling he accepted that the confession was made in the hope of immunity but thought that the hope was self-induced and we are not persuaded that that conclusion was wrong. Indeed upon the appellant asking one of the interviewers "What benefit will there be to me if I co-operate?" the answer he received was that the Independent Commission could not use any evidence which they had obtained as a result of promises and that the interviewers personally could not make any promises; the appellant was at that stage reminded that any such conduct would be contrary to the Judges' Rules. In short the statement was not made in the belief, but in the hope, that he would be allowed to become a Crown witness but that hope was not induced by the interviewing officers. 15. The other inducement relied upon by Mr. Mathew lay in the general conduct of the interrogation. The learned judge touched upon some aspects of this but did not, perhaps, deal with the matter as fully as he might have done. He was satisfied that the more length of the questioning was not oppressive and that the third appellant was given adequate rest and refreshment. He mentioned the long silences and the emphasis which the officers placed upon their having sufficient evidence to convict the third appellant and on the likelihood that he would go to prison if convicted. He did not, however, mention that the repeated adjournments of the interrogation were introduced by words to the effect that the third appellant had something to worry about and that it was good for him "to think about it", or the suggestion that the answer to the third appellant's difficulty in knowing how to reply to the question "Do you agree that there is a problem for you?" was "to tell the truth", followed by the question "How can you be innocent when the money collector says you have taken money from him?". All this was designed to persuade the third appellant to answer the questions being put to him, at a time when he was in custody and was not obliged to answer questions. The judge found as a fact that the officers were seeking a confession. He then appears to have held that their conduct "did not amount to oppression". Such a conclusion involved two stages: first it had to be decided whether the conduct was capable of amounting to an inducement and, second, if it was so capable whether the prosecution had shown that such inducement had not operated on the mind of the third appellant. It is not entirely clear that the learned judge considered both these matters. However, it is implicit in his statement that the third appellant "made a confession in the hope of getting immunity" that he found that even if the conduct was capable of amounting to an inducement, the causa causans of the confession was the self-induced hope of immunity. It was a question of fact for the judge to decide and we are of the view that there is no sufficient ground upon which we could interfere. 16. The third appellant's statement was an entirely adequate basis for his conviction but it is also for comment that even had the statement not existed, the other evidence against him was substantially the same as that against the fourth and fifth appellants who made no statements but were none the less convicted - in our view rightly. The third appellant's application is dismissed. 17. The third, fourth and fifth appellants have not pressed their appeals against sentences of two years' imprisonment each and their applications are dismissed. The first appellant was sentenced to four years' imprisonment and, having regard to the fact that he was the senior officer concerned and that he profited to a much greater degree than his co-appellants we do not consider that we would be justified in interfering with that sentence. His application for leave to appeal against sentence must be dismissed. 18. The sixth appellant is sixty-one years of age and had previously a clear record. He was sentenced to three years' imprisonment as against the sentences of two years imposed upon the third, fourth and fifth appellants. Whilst it is true that the sixth appellant was the actual collector of illicit monies from the stallholders, it is equally true that he was the only one of the appellants who was not in a position of trust. We do not consider that he deserves to be punished more harshly than those who were in such a position. His application for leave to appeal against sentence is allowed, the sentence of three years' imprisonment set aside and substituted by a sentence of two years' imprisonment. Representation: J.C. Mathew, Q.C. and A.W. Sedgwick (Peter Mo & Co.) for appellants. E.M. Ogden, Q.C. and G.F. Edwards for Crown/respondent. (1) 14 Cr. App. R. 59. (2) 45 Cr. App. R. 220. (3) [1967] 51 Cr. App. R. 266, 268. |