Au Tak-wing v. The Queen
|
CACC000935/1979
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 12 June 1980 ----------------- JUDGMENT ----------------- Leonard, J.A. : 1. The appellant seeks leave to appeal against his conviction for the offence of conspiracy to pervert the course of public justice. 2. The particulars of offence alleged were
3. It was established that IP Wai-keung was so prosecuted for that offence and that he did not commit it. 4. The question for the trial judge then was whether the appellant agreed with Pai Kwat and others to pervert the course of public justice by causing Ip to be prosecuted. In his reasons for verdict the trial judge defines the "primary issues" as
5. At about 12.30 p.m. on the 12th of May 1978 Pai Kwat telephoned CHOI Chung-yuen and arranged to meet him at the Olympia Restaurant. There Choi also met a Mr. CHENG Wing-cheung (whom he already knew) and the appellant to whom he was introduced as "Au Sir". He understood that the appellant was a policeman. 6. The conversation was general but in the course of it the appellant and Pai Kwat went to another table where they had a private conversation. What can have been the purpose of Choi being invited to join them on this occasion is a mystery for he says that any conversation in which he joined was only casual. 7. At about 11.30 p.m. that evening Choi received another telephone call from Pai Kwat who told him that he had made an arrangement to meet a few girls and asked him to come to the Roseland Restaurant in King's Road and to bring with him IP Wai-keung whom Pai Kwat already knew slightly. 8. On that occasion Pai Kwat was insistent that Ip should be brought along "as without him there would not be as much fun". Choi then rang up Ip. Ip refused to come. Choi went to the Roseland Restaurant alone. 9. Pai Kwat arrived some five minutes later carrying a plastic bag which he told Choi contained a collapsible umbrella. He asked Choi to ring Ip again and persuade him to come out. As it was then about midnight Ip was still reluctant to come. According to Choi, Pai Kwat spoke to him and persuaded him to come. Ip contradicts this and says he spoke only to Choi. Ip was clearly regarded by the trial judge as a more trustworthy witness than Choi. 10. It must have been well after midnight when Ip arrived. He was not carrying anything when he came and after some conversation he enquired as to the whereabouts of the girls. Pai Kwat assured him that they would be along soon but they did not come. 11. After a short period a person in shorts and down trodden sneakers came in, went to the telephone and used it concluding his conversation over it with the words "Mother, I am coming back". Unknown to Ip he was a police officer. It would appear likely that this telephone call was some kind of signal. 12. Shortly thereafter Pai Kwat asked Choi to go on an errand for him and seemingly Choi reluctantly agreed to go. After he left Pai Kwat made an excuse to Ip and ran after Choi catching him near the junction of Tong Shui Road. 13. At the junction of Tong Shui Road, Choi saw a party of policemen running towards the Roseland Restaurant across King's Road from the junction of Ming Yuen Street West. Some members of the party of policemen were in uniform and some in mufti. They entered the Roseland Restaurant and Choi asked Pai Kwat what was going on. Indeed he suggested that they return to find out. Pai Kwat refused to return saying that it was very late and
14. Choi's evidence was that he did not expect that Ip would be in any difficulty and that he went along with Pai Kwat's suggestion that they should go home. This seems quite extraordinary behaviour on Choi's part if he was not a conspirator. According to Choi, he had left the restaurant to look for another acquaintance of Pai Kwat's to get him to join the party with the girls who were expected to arrive at the restaurant. 15. Pai Kwat, the professed organizer of the party who had invited the girls along suggested that they should desert Ip. He and Pai Kwat did not go to look for the fourth man. He did not worry as to what would happen when the girls got to the restaurant and found nobody there. He tamely accepted Pai Kwat's suggestion and went home, leaving Ip and the party of police in the restaurant and not knowing what had occurred. 16. I must now pass to the evidence of station sergeant, NG Yuk-wan, who on that night was Sub-Unit Commander attached to the Uniform Branch of the North Point Sub-Division. He was on night shift from 11.00 p.m. on the 12th to 7.00 a.m. on the 13th. He was in charge of two police Land Rovers. He stated that he had gone to North Point Police Station before 11.00 p.m. on the 12th of May and at about 11.15 p.m. he was approached by the appellant. The appellant was a member of his Sub-Unit and the sergeant was in command of one of the Land Rovers while the appellant, although only a police constable and subject to the orders of the sergeant, was in charge of the other. 17. According to the sergeant, the appellant told him that he had information that at about 12.30 a.m. there was to be a robbery at the Roseland Restaurant; that his information came from an informer and that it was possible that the robbers would have knives or guns. They decided to keep watch on the premises. 18. The sergeant told him to instruct somebody from his vehicle to put on plain clothes and he told him that he would be going along on the raid as well. He told the appellant to park his vehicle in Ming Yuen Street West near King's Road. The appellant left for that location and the arrangement was that he and his party were to await the sergeant's further instructions there. The sergeant in plain clothes went to the vicinity of the restaurant in a taxi. 19. His evidence was that he found a vantage point standing on some steps in premises immediately opposite the Roseland Restaurant. When he arrived the appellant's police vehicle was already there. P.C. 19006 was there also in plain clothes. The appellant was standing next to the police vehicle. They spoke and the sergeant said that he would be watching and "If I give you an order to rush in then you rush in". At his vantage point the sergeant had some difficulty watching the Roseland Restaurant in that he had to bend down in order to do so. He remained at that vantage point for about an hour. He said he saw a man coming out of the restaurant and going back in again and then he saw another man entering the restaurant holding a bag in his hand, a white colour plastic bag. His description of the man carrying the bag identified him as Ip. He said he then saw P.C. 19006 going into the restaurant in plain clothes and shortly afterwards coming out. It is clear therefore that P.C. 19006 was the man who Choi said had earlier used the telephone. The sergeant said that he then saw two parsons come out. One was tall and the other was short and the tall one was the man who had first attracted his attention by coming out of the restaurant and returning to it. By implication these two were Choi and Pai Kwat. He said they walked hastily in the direction of Tong Shui Road. Then the sergeant said he saw P.C. 19006 running into the restaurant followed closely by the appellant. He himself then went to the restaurant where there were two police officers in uniform guarding the entrance. He pulled out his gun and entered. He saw P.C. 19006 pressing against Ip and he says he saw the appellant standing next to them holding the parcel which contained the knife. It was the suggestion of the sergeant that Ip was the person whom he had seen carrying that parcel into the restaurant. 20. Ip's story as to the happenings of that evening conflicted with Choi's and with the sergeant's. His evidence was that he received two telephone calls, the first of which was taken by his sister and the second by himself. Both were from Choi and only Choi spoke to him over the telephone. Choi was insistent that he should come to the restaurant. He went reluctantly. There he met Choi and "Pai Kwat". This name or rather nickname he only discovered after he had sat down in the restaurant. After the three of them had chatted for a short time a man came in, looked about the restaurant and went to the telephone (this was obviously P.C. 19006). He was at the telephone for quite some time. Pai Kwat then told Choi to go out and look for a fourth man. Choi made some protest but left. Very shortly afterwards Pai Kwat said he had forgotten to tell Choi something, put down $20 on the table for the bill and went after Choi. 21. A few seconds later the police rushed in. The party was dressed both in plain clothes and uniform. There were three : the one who had used the telephone i.e. P.C. 19006; the accused who was in uniform and who held a revolver and said "Raise your hands. Don't move. Police officers" and a "fat man" who was the sergeant. The knife was then revealed and, according to Ip, the "fat man" said he had seen him bringing it into the restaurant. Up to that moment Ip had not seen the knife. The fat man said "I saw you bring it in and you still deny it." (It was this remark that persuades us that the fact man was the sergeant.) 22. Ip was brought to the police station and there charged with possession of an offensive weapon in a public place contrary to section 33(1) of the Public Order Ordinance Cap. 245. After a number of appearances in the magistracy the prosecution, on the 9th June, withdrew the charge against him. In cross-examination he said that he had never met Pai Kwat before but his answers indicated that they might have met before but he had never previously known his name. It was suggested to him that when Pai Kwat left he, Ip, knew the knife was there and this he rejected saying that he did not even notice the parcel. 23. On the morning of the 13th of May Ip's sister and her boy friend went to Causeway Bay Magistracy where Ip was remanded. She met Choi there. She testified that he, Choi, said he was willing to give evidence on Ip's behalf but suggested that Ip might be well advised to plead guilty! This although, according to his own evidence, he knew that Pai Kwat and not Ip had brought the parcel containing the knife into the restaurant. He then arranged to meet her that evening at North Point Police Station. He did not turn up but Cheng who had been with Choi, Pai Kwat and the appellant at the first meeting at the Olympia Restaurant did. 24. It was Choi's evidence that shortly before mid-day on the 13th of May he had received a telephone call from Pai Kwat as a result of which he met him at the State Theatre. There Choi asked Pai Kwat why he should want to get Hung Chai into trouble. Hung Chai was the nickname of Ip. In reply Pai Kwat said :
25. According to Choi, Pai Kwat then told him that if he assisted the appellant's sister he would involve him, Choi, in the case. He thought the matter over, realized that it was he who had asked Ip to go to the restaurant, where he had himself been present, so that it would be very easy for Pai Kwat to involve him in it. He also realized that there were police officers involved in the matter and if he told the police everything frankly, those police officers would be involved, and the police might then do something detrimental to his interests. 26. These considerations, he suggested, persuaded him not to help Ip or Ip's sister. At a later stage that day, according to Choi, Pai Kwat told him that the police from North Point Police Station were going to arrest him and he had better go into hiding. He did so. Indeed, Choi suggested that Pai Kwat had told him that if he didn't run away, the police officers of the North Point Police Station might kill him or arrest him. It was Choi's evidence that for this reason he hid in the New Territories. Pai Kwat accompanied Choi to the New Territories but did not stay with him. He did visit him and gave him money. After he had stayed in the New Territories for two weeks Pai Kwat brought him back to Hong Kong and he stayed in a series of apartment houses for which Pai Kwat paid, allegedly having got the money to do so from the appellant. 27. On the 9th June, 1978 the case against Ip was dropped. About that time, Cheng who had been at the meeting in the Olympia Restaurant, suggested to Choi that Choi should go to the Philippines, the idea being that if diamonds and watches could be smuggled into the Philippines there would be a lot of money to be made from their sale. Pai Kwat who was brought into the scheme approved of this idea and he and Choi went to see the appellant. After meeting outside the Singapore Coffee Shop they took a taxi to the Furama Hotel. The appellant went in but came out saying that there were a lot of police officers inside and they went to the Cheung Shing Restaurant in Wanchai. Discussion about Choi's projected trip to the Philippines took place. The appellant told him to stay in the Philippines for four to five months after which everything would be all right and he promised to come over and visit Choi in the Philippines. The appellant also announced that Ip was no longer in any trouble and that Choi need no longer worry about Ip so far as the incident in the Roseland Restaurant was concerned. Choi went to the Philippines but before doing so he told the appellant that if the appellant treated him well he would not disclose the matter to the customs officers, even if he were asked. Nor would he disclose to the police anything about the incident in the Roseland Restaurant. Choi remained in the Philippines until the 17th May 1979 and whilst he was there the appellant made two trips. These were from the 3rd August to 6th August 1978 and again overnight on the 21st March 1979. It was Choi's evidence he had helped Choi with money. 28. Choi did not go to the Philippines until the 11th of June, 1978. The decision not to proceed against Ip was reached on the 9th June, 1978. 29. Mr. Huggins has argued before us that we should not have regard to what may have passed between the appellant and Choi after the 9th June 1978 because by that date any conspiracy to pervert the course of public justice by causing Ip to be prosecuted had been spent. 30. He emphasised that the conspiracy was one limited to the framing of Ip and once Ip was charged with the spurious offence all the evil pertinent to the offence was done. The conspiracy was complete. Subsequent conduct which could be attributable to a secondary conspiracy would be irrelevant. A distinction had to be made therefore between subsequent conduct evidencing the conspiracy charged and subsequent conduct evidencing a different or a possibly different conspiracy. 31. It was submitted that the trial judge did not appreciate this distinction and failed to consider the possibility that subsequent conduct could have been referable to compounding the framing of Ip without the appellant necessarily being a party to the conspiracy charged. 32. We do not think the judge erred in not sifting the evidence of subsequent conduct to see whether it was referable to the conspiracy charged or not. That he did so is apparent from his Reasons for Verdict where, alluding to a conversation which the judge found took place in the Philippines between the appellant and Choi in which the appellant told Choi that he had spent $10,000 to fix up the matter he said :
33. He did not have recourse to any of the appellant's nefarious activities in going to the Philippines which the evidence suggested was referable to smuggling. 34. But, Mr. Huggins argues, the trial judge did not sufficiently analyse the evidence as being possibly attributable to a conspiracy other than that charged. Might it not have been explicable by the appellant seeking to save face? It has been contended before us that the appellant's subsequent conduct was directed to that end. 35. The way in which the argument goes is this. Pai Kwat was the appellant's informer. It was Pai Kwat who told the appellant of the intended robbery thereby inducing the appellant to pass on the information to Sergeant Ng who set the machinery of the law in motion. Thus the appellant was duped by Pai Kwat and was completely unaware Pai Kwat was set on framing Ip. The appellant, it is suggested, only became aware of Pai Kwat's involvement after he had arrested Ip and he thereafter did what he did, not as a party to frame Ip, but to conceal Pai Kwat's wrong-doing fearing that if he disclosed Pai Kwat's mischief he too might be implicated in the framing of Ip. 36. This argument has been advanced before us to demonstrate how the appellant could have been innocent of the charge - his conduct being explicable by his commission of an entirely different offence. Gross dereliction of duty would not constitute the offence and we have asked ourselves whether the judge did consider this aspect even though it paints the appellant as a worthless officer of the peace. We are satisfied the judge did direct his mind to this possibility when he said he was satisfied that when the appellant told Choi he had spent $10,000 to fix up the matter "it was not simply to protect his informer Pai Kwat or to try and keep the good opinion the authorities may have formed of him." 37. The appellant made several statements to the police the longest of which was that made to Detective Senior Inspector Hubbard on the 7th June. The trial judge does not say what significance he attached to this statement and we are convinced it was wrongly admitted because of an inducement made. This is apparent from the evidence of Mr. Hubbard. The record reads :
We consider that there is but little doubt that these expressions used by Mr. Hubbard constituted an inducement to the appellant to make that statement. 38. The admission of the statement was not contested on the basis that it had been obtained as the result of an inducement. But this was clearly because the solicitor for the appellant was under the mistaken view that a statement not amounting to an admission or a confession of itself, could not be the subject of objection on that basis. Indeed, the appellant's solicitor, after an adjournment, made the following observations to the trial judge -
39. Thereupon, the Crown closed its case. The appellant elected to remain silent and did not call any evidence. 40. We are satisfied from a perusal of the record and Mr. Llewellyn's submissions as a whole, that in making that concession he did so under a mistake of law, thinking that because the statement viewed by itself was entirely exculpatory the question of its voluntariness did not arise. 41. We do not think this is the law. We have little doubt but that there was an inducement held out by Hubbard and that this could not but have acted on the mind of the appellant. That statement then should not have been admitted in evidence. 42. The appellant made a number of other statements. The first of these was made on the 13th May, 1978. In it he says -
43. In a statement made on the 18th May, 1978, he stated that he received a telephone call from his informer, whose particulars he was unwilling to disclose, and that his informer had described one of the persons who was to rob the Roseland Restaurant as "a Chinese male about 18-19 years old, wearing green floral patterned T-shirt, blue jeans. At the same time, the said man would take weapon/s inside." 44. The statement goes on to say that at 23.15 hours on the same evening he arrived at North Point Police Station and made a report to S/Sgt. Ng. The following passage occurs in this statement -
45. In his statement, the appellant said that P.C. 19006 was wearing shorts and rubber shoes. He was specifically asked if he knew anyone called TSOI (CHOI) Chung-yuen, and he answered "I don't know and have never heard of him." 46. He was asked "Do you know anyone by the nickname of 'Pai Kwut'?" and answered "No.". 47. He gave a further statement on the 31st May, 1978; from this statement it would appear that he arrived at the King's Road junction about 00.10 hours, and that S/Sgt. Ng arrived about ten minutes later. "He just appeared." 48. In paragraph 13 of this statement, he stated that he, at approximately 0050 hours, heard Station Sergeant Ng calling him through the beat radio, and "at the same time, I saw a Chinese male with similar dress and appearance, as described by my informer, entering the restaurant. I could not see whether this Chinese male was carrying anything into the restaurant or not." 49. It is to be noted that in earlier statements he said he did not see him entering the restaurant. The statement goes on to describe how he and P.C. 19006 entered the restaurant and went to the table at which Ip was seated :
50. The statement goes on to suggest that it was at that stage that Station Sergeant Ng entered the restaurant. 51. When questioned about contacting his informer he said he did not know his address and if he wanted to get in touch with him he would instruct a hawker with a nickname called "Mo Ngar Chai" (no teeth boy) to look for him. He did not know the name and address of Mo Ngar Chai. He was asked "Do you know any person called 'Pai Kwat'?" and he replied "I could not remember". He was asked "Do you know any person named CHOI Chung-yuen?", and he answered "No, I have never heard of him." 52. On the evidence, it is clear that a conspiracy to pervert the course of public justice by causing IP Wai-keung to be prosecuted for an offence which he did not commit was abundantly established. The essential question for the trial judge was who were the parties to that conspiracy. 53. The evidence leaves us in no doubt that SZE Tin-sin alias Pai Kwat was a co-conspirator and whatever suspicious we entertain as to CHENG Wing-cheung, Choi, P.C. 19006 and Station Sergeant NG Yuk-wan we are satisfied that the reference in the particulars of the charge to other persons being involved is not incorrect. 54. We have considered whether the omission of any of those names in the charge might have adversely affected the appellant in the conduct of his defence or in his alleged criminality in the offence. If we felt such to be the case we would unhesitatingly allow this appeal. 55. We have also weighed the judge's assessment of the evidence of those who testified. 56. Speaking of Choi, the trial judge had this to say -
57. Of Station Sergeant NG Yuk-wan the trial judge charitably observed :
58. We have uppermost in our minds the danger that failure to realize the possible complicity of others in the conspiracy may have affected the approach of the judge but we have carefully studied the transcript and the Reasons for Verdict and we are satisfied that notwithstanding our suspicions of others in this case, the conviction of the appellant was the only proper verdict. 59. We think that even if the learned trial judge had treated Station Sergeant Ng as an accomplice whose evidence should have been corroborated nevertheless the verdict would have been the same as the evidence of the sergeant was not inimical to the appellant and we have already noted that Choi was treated as if he were an accomplice. 60. At the end of the day there still remained the appellant's flat denials of knowing Choi and Pai Kwat. His denial of knowing Pai Kwat might by a stretch of the imagination be explainable as arising from a wish to protect the anonymity of a police informer but no such excuse would be found for his denial of knowing Choi and these denials were made at a time when no other reasonable inference could have been drawn save his participation with Pai Kwat and others in the conspiracy to frame Ip. 61. We do not consider that the appellant was in any way prejudiced by the fact that others were not named as co-conspirators. The only flaw which we can find in the conduct of the trial arises from the introduction of the exculpatory statement made by the appellant. In view of his other statements to the same effect, in which he denied knowledge of Choi, we consider that no miscarriage of justice has resulted from the introduction into evidence of this statement and we therefore apply the proviso and affirm the conviction. 62. Having disposed of this appeal we feel obliged to record our disquiet at certain facts which have emerged in the course of these proceedings. 63. We think that the interests of justice demand that the complete record of these proceedings be sent to the Attorney General with a recommendation that further enquiries be made into the matters set out below and for him to institute such proceedings if any as he deems fit and whether disciplinary or otherwise dependent on the result of his investigations into :
64. The framing of any citizen by any police officer is a matter which requires the most detailed investigation and prompt prosecution of all involved therein. Representation: Mr. Adrian Huggins (Hampton, Winter & Glynn) for Appellant. Mr. T.M. Gall, Senior Crown Counsel, for Crown/Respondent. |