HKSAR v. See Wah Lun and Others

CACC 370/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 2009

(On Appeal From High Court Criminal Case No. 13 of 2009)

________________________

BETWEEN

________________________

Before : Hon Cheung, Kwan JJA and Lunn J in Court

Date of Hearing : 1 March 2011

Date of Judgment : 22 March 2011

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving judgment of the Court):

1.The five applicants were tried and convicted by Verina Bokhary J sitting with a jury of two joint charges, namely ‘acting as members of a triad society’, contrary to section 20(2) of the Societies Ordinance (Cap. 151) (Charge 1) and ‘conspiracy to cause grievous bodily harm with intent’, contrary to section 17(a) of the Offences against the Person Ordinance (‘OAPO’) (Cap. 212) and section 159A of the Crimes Ordinance (Cap. 200) (Charge 2). In addition the 1^st applicant was convicted of two separate charges, namely ‘conspiracy to commit murder’ contrary to section 5 of the OAPO (Charge 3) and ‘soliciting to murder’ contrary to section 5 of the OAPO (Charge 4).

2.The applicants were sentenced as follows :

1.	1st applicant	1st charge		2½ years
		2nd charge		11 years
		3rd charge		14 years
		4th charge		12 years ________________
		All concurrent	Total	14 years
2.	2nd applicant	1st charge		1½ years
		2nd charge		9 years ________________
		All concurrent	Total	9 years
3.	3rd applicant	1st charge		1 years	(Reduced from 1½ years 1 years due to clear record)
		2nd charge		8 ½ years ________________	(Reduced from 9 years  8 ½ years due to clear record)
		All concurrent	Total	8 ½ years
4.	4th applicant	1st charge		1½ years
		2nd charge		9 years ________________
		All concurrent	Total	9 years
5.	5th applicant	1st charge		1½ years
		2nd charge		9 years ________________
		All concurrent	Total	9 years

3.The five applicants applied for leave to appeal against conviction and sentence.

Prosecution case

4.On 15 May 2008 the five applicants together with others including PW1, Lau Ming Yee, were supposed to carry out a plot to abduct PW6 Wong Kam Ming (nicknamed Wong Ming Chai). 

5.The initial plan was to kidnap PW6, bring him to a secret hiding place and chop his arms and legs (Charge 2).  The five applicants had carried out preparatory work leading to the intended abduction by attending meetings to discuss how the plot was to be carried out, taking photographs of the vicinity where PW6 was to be abducted, carrying out surveillance on the movement of PW6 by following his car, arranging the hideaway and getting face masks and weapons.  The applicants are all triad members and in carrying out these acts the prosecution contended that they acted as triad members (Charge 1).

6.The 1^st applicant received instructions to carry out the plot from the triad boss who later instructed him to arrange for PW6 to be killed after he was abducted (Charge 3).  The 1^st applicant asked the 2^nd, 3^rd, 4^th and 5^th applicants to carry out the killing (Charge 4).

7.Before the plot was carried out, PW1 who was also a police informer revealed the plot to the Police through his friend PW8, a policeman called Tang Shing Hang (nicknamed Ah Sing).  PW1 is also a triad member.  He took part in the preparatory work and he agreed with the 1^st applicant initially to maim and later to kill PW6.  The Police took action and arrested the applicants and PW1 when they met on the morning of 15 May 2008 at a Village Office in the New Territories.  The 1^st applicant had a room on the second floor of that office.  Inside that room, the Police found three beef knives and a Japanese dagger placed in a rucksack.  Three peaked caps and shredded balaclavas were also found scattered in the 1^st applicant’s room.  Two stun guns and two pairs of handcuffs were found inside a locked storeroom at the Village Office.  Two licence plates and some martial arts weapons were also found at the Village Office.  A notebook which contained the particulars of PW6’s car and PW6’s family members was found on the 3^rd applicant.  Further weapons were seized at an abandoned school situated next to the Village Office.

PW1’s evidence

8.PW1 was given immunity from prosecution. He gave evidence of the plot.  He was 25 years of age.  He became a triad member when he was aged 13 by first joining the 14K and later when he was aged 17 or 18 joined the Wo Hop To (‘WHT’) as a follower of the 1^st applicant who is his triad ‘Elder Brother’.  After he knew the 1^st applicant, he came to know the 2^nd and 5^th applicants.  The 1^st, 2^nd and 5^th applicants were of the same rank in WHT.  The 3^rd applicant is also a WHT member, one rank higher than PW1.  The 4^th applicant is also a follower of the 1^st applicant.

9.The Judge summarised the evidence of PW1 as to what the 1^st applicant had told him and the other applicants about the reason for abducting and injuring PW6 :

‘ Then the 1^st accused (i.e. the 1^st applicant) told them that Wong Ming Chai (i.e. PW6) would be going to Pat Heung Police Station on 15 May to extend his bail, and after Wong Ming Chai had been abducted to another car, he would be taken to the prepared den where he would be beaten up and his hands and legs would be hit, that is broken. The 1^st accused said that the reason why they had to hit Wong Ming Chai and break his hands and legs was that he had taken Lan Do Ping to Macau for gambling and Lan Do Ping had won a lot of money.

He said that Wong Ming Chai was a person commonly known as a “mud chip dealer”. He said that Lan Do Ping had given $30 million to Wong Ming Chai as tips; that Wong Ming Chai told somebody to break Lan Do Ping’s hands and legs; that Lan Do Ping’s big brother was Sik Gor; that Sik Gor was a good friend of Tsang Pau; and so Tsang Pau told them to look for Wong Ming Chai.’

10.Tsang Pau is the nickname of Cheung Chi Tai and he is the triad leader who gave instructions to the 1^st applicant to injure and later kill PW6.

11.The evidence PW1 gave against each of the applicants is summarised by the Judge as follows

‘ 1^st applicant

…..... The 1^st accused (i.e. the 1^st applicant) told Lau (i.e. PW1) to drive Ah Yuen to Tai Cheung Street to look for vehicle 8816. When informed by Lau that 8816 had been located, the 1^st accused told Lau to keep an eye on 8816. When 8816 had been followed to a car park in Kimberley Road and that was reported to the 1^st accused by Lau, the 1^st accused told Lau that the 5^th accused (i.e. 5^th applicant) would drive there and change vehicles with him.

At Ho Man Carpark B on 22 April 2008, the 1^st accused discussed with the 2^nd accused (i.e. 2^nd applicant) some photographs of the vicinity of Pat Heung Police Station and some diagrams of the exit and entrance of that police station.

At a later meeting at Ho Man Carpark B, the 1^st accused told Lau that a boss wanted them to harm the person whom they had to locate. The 1^st accused was told by Lau that Lau would give him an answer on the following day.

On this or some other occasion at Ho Man Carpark B, the 1^st accused was present when the 2^nd accused disclosed that Wong Ming Chai was going to extend his bail at Pat Heung Police Station on 15 May 2008.

On the subsequent day, the 1^st accused scolded Lau when he asked Lau what was the result of his thinking about the matter, when Lau responded by saying that his girlfriend was pregnant.

Later, around the end of April, at Ho Man Carpark B, with the 2^nd, 3^rd (i.e. 3^rd applicant) and 5^th accused (i.e. 5^th applicant) present, the 1^st accused talked about how to abduct 8816 with one vehicle in front and one vehicle behind. The 1^st accused said the persons responsible for chopping would be the 3^rd and 4^th accused (i.e. the 4^th applicant), Ah Yuen and Lau.

Earlier at this meeting, the 1^st accused had asked the 2^nd accused about the preparation, and had been told by the 2^nd accused that gloves, hoods, knives, and extendable batons had been prepared, and that a den had also been prepared.

The 1^st accused told them that Wong Ming Chai was going to Pat Heung Police Station on 15 May to extend his bail and that Wong had to be abducted to another car and taken to the prepared den where his hands and legs would be broken.

At the beginning of May 2008, in the 1^st accused’s room at the Village Office, where the persons present included the 2^nd, 4^th and 5^th accused, the 1^st accused told them that the operation to be held on 15 May would be elevated from the breaking of the person’s hands and legs to the taking of that person’s life. It was said that Wong Ming Chai would be abducted outside Pat Heung Police Station, made unconscious, taken back to the den and then killed. At some stage it was said that a stun-gun would be used to make Wong unconscious. It was the 1^st accused who raised this subject.

……

2^nd applicant

The 2^nd accused asked Lau to drive him to Pat Heung Police Station. Upon having been driven there by Lau, the 2^nd accused got out with a digital camera, and later returned looking at digital images.

At the Ho Man Carpark B on 22 April 2008, the 2^nd accused discussed with the 1^st accused some photographs of the vicinity of that police station and some diagrams of that police station’s exit and entrance. The 2^nd accused disclosed that Wong was going to extend his bail at that police station on 15 May 2008.

At around the end of April, at a meeting at Ho Man Carpark B, the 2^nd accused was present when the 1^st accused talked about abducting 8816 and about the responsibility for chopping. And the 2^nd accused had said that gloves, hoods, knives and extendable batons had been prepared, and that a den had also been prepared.

The 2^nd accused was one of the persons who told the 1^st accused which locations in some papers corresponded to what areas in some photos.

The 2^nd accused was in the 1^st accused’s room in the Village Office when the 1^st accused told them about the breaking of hands and legs being elevated to the taking of life.

3^rd applicant

The 3^rd accused arrived in a car which he was driving after 8816 was located on an occasion in April 2008. When 8816 entered the car park at Kimberley Road, the 3^rd accused followed it into that car park and then followed it out when it came out. 8816 was then followed to Yuen Long where it was lost because of the traffic lights. The 3^rd accused took part in following 8816 on subsequent days.

The 3^rd accused was present at the meeting at Ho Man Carpark B when the 1^st accused talked: about the abduction of 8816; about the 3^rd accused being one of the persons responsible for chopping; and about preparations.

4^th applicant

The 4^th accused arrived in a car which he was driving after 8816 was located on an occasion in April 2008. 8816 was followed to the car park at Kimberley Road and then to Yuen Long. The 4^th accused took part in following 8816 on subsequent days.

The 4^th accused was one of the persons who remained behind after the 2^nd and 5^th accused left on the occasion when photos of the vicinity of Pat Heung Police Station and diagrams of the exit and entrance of that police station and diagrams of the exit and entrance of that police station were looked at.

After the 1^st accused spoke to Lau about Lau giving him an answer on the following day, the 1^st and 4^th accused spoke.

The 4^th accused was in the 1^st accused’s room in the Village Office when the 1^st accused told them about the breaking of hands and legs being elevated to the taking of life.

5^th applicant

After 8816 had been followed to the car park at Kimberley Road, the 5^th accused arrived in a seven-seater and changed vehicles with Lau and Ah Yuen. When 8816 came out of that car park, it was followed to Yuen Long.

Sometime which Lau thought was after 10^th and before the 20^th of April, the 5^th accused told Lau that the reason why they had to follow 8816 was to locate Wong Ming Chai.

The 5^th accused was present at Ho Man Carpark B on 22 April 2008 when the 1^st and 2^nd accused discussed some photographs of the vicinity of Pat Heung Police Station and some diagrams of that police station’s exit and entrance. The 5^th accused left with the 2^nd accused.

The 5^th accused was present at Ho Man Carpark B when the 2^nd accused disclosed that Wong was going to renew his bail at Pat Heung Police Station on 15 May 2008.

When they saw a man sitting in the driver’s seat of 8816 at Hop Yick Road, the 5^th accused told Lau that that man was Wong Ming Chai’s younger brother.

The 5^th accused was present at the meeting at Ho Man Carpark B when the 1^st accused talked: about the abduction of 8816; about the responsibility for chopping; and about preparations. At this meeting, the 5^th accused was one of the persons who told the 1^st accused which locations in some papers corresponded to what areas in some photos.

The 5^th accused was in the 1^st accused’s room in the Village Office when the 1^st accused told them about the breaking of hands and legs being elevated to the taking of life.’

PW6 and PW4

12.PW6 was a ‘mud chip dealer’.  He apparently had introduced PW4 Siu Yun Ping nicknamed ‘Lan Do Ping’ to gamble in a gambling hall in one of the Macau casinos of which the triad boss Cheung Chi Tai had an interest in the operation.  PW4 won over $100 million over a six month period between August 2007 and January 2008.  PW6 received $50 to $60 million by way of commissions and tips.

13.After the huge win, PW4’s house was set on fire.  There were threatening telephone calls to his home and in mid-February 2008, he was assaulted by five men in Shenzhen.  They attacked him with objects injuring his arms and legs.  PW6 accompanied him to report the attack to the police.  PW6 received a telephone call asking him to attend a meeting to discuss about PW4 having cheated at the gambling.  He did not attend the meeting. 

Interviews of the 1^st applicant

14.The prosecution also produced two video recorded interviews of the 1^st applicant, the admission of which was unchallenged.  In the interview the 1^st applicant admitted that he lived at the Village Office.  He also admitted possession of the beef knives, which he claimed had been bought for Tsoi Lai Shun, DW1, who ran a canteen.  The 1^st applicant claimed that the Japanese dagger found in his rucksack was for decoration only.  He also claimed that the shredded balaclavas were used for waxing and cleaning only.

Expert evidence

15.Two experts (a triad expert and a stun gun expert) were also called to give evidence.  The stun gun expert gave evidence that at the time of seizure, the stun guns could be used to stun people.

Defence’s evidence

16.The applicants did not give evidence. The 1^st applicant adduced a set of defence admitted facts.  Five defence witnesses were called.

17.DW1 was called by the 1^st applicant.  DW1 was the operator of a canteen and a friend of the 1^st applicant.  He said that one day when he was with the 1^st applicant, one of his staff phoned him and told him that the canteen needed more beef knives.  The 1^st applicant heard that and offered to buy them for him.

18.Fung Ka Shing, DW2, was called by the 2^nd applicant.  He said that his wedding banquet was to be held on 15 May 2008.  He had invited the 1^st to 5^th applicants to the banquet.  The dinner was due to start at 8 p.m.

19.Choi Ka Chun, DW3, was called by the 3^rd applicant.  His evidence was that he observed a police officer holding a black notebook and asking whether it belonged to the 3^rd applicant.  DW3 had criminal records.

20.Ho Chi Wai, DW4, was also called by the 3^rd applicant.  He stated that he had lent his car to the 3^rd applicant.

21.Wong Pak Yan, DW5, was called by the 2^nd applicant.  He used to be a village representative of Tai Kei Leng Village, where the Village Office was situated.  The Village Office was unlocked and everyone had access to it.  The serrated-edged knives were for cutting trees.  He also taught the applicants martial arts with tridents but not with stun guns, extendable police baton or beef knives.

Grounds of appeal

22.Mr. Cheng Huan S.C. and Mr. John Haynes as counsel for the 1^st applicant advanced three major grounds against the conviction.  The first is procedural in nature relating to PW1 who gave evidence by live television link.  The second is in respect of PW1 refreshing his memory by reading his witness statements while giving evidence. The third is in respect of the substance of the summing up.  Mr. Boyton who appeared for the other applicants on their application on conviction adopted the grounds advanced by Mr. Cheng and Mr. Haynes without any written or oral submissions (save as submissions on law relating to the summing up).

I. Live television link evidence

23.The first challenge is the Judge’s decision to allow PW1 to give evidence by way of live television link at the request of the respondent.

24.Section 79B(4) of the Criminal Procedure Ordinance (‘CPO’) (Cap. 221) provides that,

‘ (4) Where a witness in fear is to give evidence in proceedings in respect of any offence, the court may, on application or on its own motion, permit the person to give evidence by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.’

25.Section 79B(1) of the CPO provides that,

‘ “witness in fear” (在恐懼中的證人) means a witness whom the court hearing the evidence is satisfied, on reasonable grounds, is apprehensive as to the safety of himself or any member of his family if he gives evidence.’

26.In granting the application the Judge held that,

‘ 2. In my view, there are reasonable grounds on which to be satisfied that the witness in question is a witness in fear, being apprehensive as to his own safety and that of members of his family if he gives evidence for the prosecution. And I am satisfied that he is a witness in fear who has that apprehension. Because of this apprehension, he say, he would be very scared if and when he has to face the accused in the same room. That would, he says, affect his ability to testify. And, he says, he would be able to give evidence at ease and feel less pressure if he were permitted to give evidenceseparated from them. Saying no more than is necessary, I find myself satisfied, on what I consider to be reasonable grounds, that all of that is true.

3. Does it warrant the permission now sought? Giving the judgment of the Court of Appeal in Leung Kam Ting v. HKSAR, CACC No. 33 of 2008, 20 February 2009, Tang VP said at p. 8, para. 27 that “a witness in fear may not be in any actual danger and her fear may only be that of meeting her assailant face to face”. That was of course a rape case. But there is no reason in principle why fear of meeting an accused or a number of accused face-to-face is to be considered relevant only in cases of that kind. The witness in the present case is, I am satisfied on what I consider to be reasonable grounds, a witness in fear of reprisals against himself and his family and that, in that fear, he would be more fearful giving evidence in the courtroom than he would be giving evidence by a live television link. All things considered, I am of the view that permission for him to give evidence by a live television link should be granted, and I grant such permission.

4. I should mention that while all defence counsel argued primarily that the witness should give evidence in the courtroom and under the ordinary arrangements, some of them raised the possibility of something between the normal course and the course of giving evidence by a live television link, namely the giving of evidence in the courtroom but behind a screen. I am persuaded however that the appropriate course in all the circumstances is none other than evidence by a live television link.’

27.It is argued on behalf of the 1^st applicant that,

1) The convictions depended on the truthfulness and accuracy of PW1 who is an accomplice of the crime. The way in which he gave his evidence deprived the jury, counsel and the Judge of the ‘best evidence’ of observing and testing his evidence according to the accepted norms.

2) The use of section 79B(4) should be confined to rare and exceptional event.

3) The circumstance of PW1 who is a 25 years old man with a long criminal association does not justify the use of section 79B(4). He is not vulnerable in terms of age or nervous disposition.

4) PW1’s method of giving evidence gave him an undeserved unique status and a false veil of vulnerability. From this the jury may draw prejudicial inferences against the applicants by attributing some imponderable ferocity to the applicants. This prejudice cannot be removed by any direction by the Judge.

28.The applicant, however, is not challenging the constitutionality of section 79B(4).

Principles

29.The following principles can be stated on this topic :

(1) An accused is entitled to the fundamental right of a fair trial. The accused is also entitled to confront his accuser and see him in the eye. It is not necessary to decide whether the right to a fair trial includes the right to confront and look the accuser in the eye. It appears that the common law right of a face to face confrontation is not guaranteed by the European Convention on Human Rights (see R. (D) V. Camberwell Green Youth Court [2005] 2 Cr. App. R 1). This view may probably be explained by the fact that, apart from England, many European countries do not have the requirement of seeing the witness in court. In the context of the Basic Law and Bill of Rights in Hong Kong, such a rationale may not necessarily be applicable. In any event, even under common law, the right to confront and see the witness can be curtailed. As Lord Coleridge J stated in R v George Smellie (1919) 14 Cr. App R 128 at 130 :

‘ If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter.’

(2) These rights, however, are now subject to statutory intervention by allowing a witness in fear to give evidence by way of live television link.

(3) It is rare and exceptional to adopt the live television link approach. The Court must consider the interests of the accused.

(4) At the same time the Court must balance the interests of the accused and the significant public interest of witnesses giving evidence without occasioning danger to themselves or to members of the community. The fact that an accused may suffer some forensic disadvantage does not mean such an order should be refused.

(5) An adult witness can still be a witness in fear. In deciding whether he is a witness in fear, the Court is to have regard to the circumstances of the case and the nature and circumstances of the witness. Factors such as the witness being an accomplice and has been under a witness protection scheme may be taken into account.

(6) A witness in fear may not be in any actual danger and that his fear may only be that of meeting the assailant face to face.

(7) The critical issue in determining whether a witness can be characterized as a ‘witness in fear’ is the state of mind of the witness. It is not necessary that their fears be objectively justified or that those fears are directly attributed to conduct on the part of the accused.

See Leung Kam-ting v. HKSAR [2009] 3 HKLRD 476, R v. Wong Kwai Nam (DCC 100053/95), R v. Goldman [2004] VSC 165, Director of Public Prosecutions (Vic) v. Finn [2008] VSC 303 and Bruce & McCoy Criminal Evidence in Hong Kong Para IX [553.3] and IX [553.4].

Our view on live television link

30.PW1 had stated that he was in fear of giving evidence in front of the applicants.  PW1 and his girl-friend have been under the protection of the Police under the witness protection scheme for more than a year and have been living in a secret location.  There was the evidence of PW1’s father of having seen two suspicious males loitering in the vicinity of his home.  These pieces of evidence clearly support the respondent’s case that PW1 was a ‘witness in fear’.  The subjective view of PW1 is amply supported by the background of the case.  PW1 was a triad member giving evidence against his ‘triad elder brother’ i.e. the 1^st applicant and his other triad brethrens i.e. the 2^nd, 3^rd, 4^th and 5^th applicants.  The charges against the five applicants were that they had committed some extremely serious crimes involving a plan to cause serious personal injuries and even death to PW6.  The order to carry out these heinous crimes were given by a triad boss.  PW1 had expressed reluctance to take part in injuring or killing PW6 but he was pressurized to agree to do so.  PW1 belonged to a secret society in which the members had sworn alliance to be loyal to each other.  Instead he was doing the exact opposite and became a supergrass helping the Authorities to prosecute his triad associates who would be going to jail for a long long time if convicted.  With this background, the Judge was clearly correct to come to the view that PW1 was a witness in fear if he was to give evidence face to face in front of the applicants.  In our view the discretion to order the live television link evidence has been correctly exercised.

Alternative method of using a screen

31.In the Court below, an alternative suggestion was made that the witness was to be screened so that the applicants could not see him until such time as a dock identification was required.  It should be pointed out that section 79B(4) does not require the Judge to consider any alternative means of giving evidence once the Judge is satisfied that a witness is indeed a witness in fear.  The suggested method in fact would defeat the idea of a defendant seeing his accuser.  This was the point raised by the Judge and accepted by the then counsel for the 1^st applicant who had submitted on the use of the screen.  He did not press the application.  A live television link on the contrary provided the applicants with the opportunity of seeing PW1 on the television screens.

32.In this Court it was submitted that the screen could be positioned in such a way that the applicants would be blocked from seeing PW1 but which would allow counsel conducting the cross-examination to be able to look PW1 in the eye. This was not how the matter was raised before the Judge.

Review of decision?

33.It is further argued that the decision to allow PW1 to give evidence by live television link should have been reviewed in the course of PW1’s evidence when it was shown that he was not in fear of giving information to the Police.  We do not consider this to be a valid argument.  According to the admitted facts the previous information given by PW1 as an informer to the Police included information on other triad activities.  And as is clear from the transcript of the evidence, what PW1 said about him not being in fear of giving information to the Police was in respect of those matters not concerning the applicants.  He specifically stated that it was a different consideration in respect of the information against the applicants

‘ Q. Now, you will remember that about, I think it was last Wednesday, my last question to you, when we stopped, was that, do you believe that giving information to the police at the same time as being a triad member is a dangerous thing to do.

A. I do not think so.

Q. So you feel perfectly safe about doing that?

A. First of all, I don’t think I’ve done anything that would harm the interests of our group of people, so there’s no problem.

Q. So by the words “There’s no problem,” that means that you feel perfectly safe, is that what you’re saying?

A. I do not think there’s any problem. I think it’s safe.

Q. Right. And you’ve never felt fearful or apprehensive about it?

A. It depends on what had been done.

Q. It doesn’t depend on that. I’m asking you a personal question. Have you ever felt fearful about it?

A. Are you talking about everything that I’ve done, or what?

Q. I’m asking you whether, since August of -- well, since 2007, let’s say, it’s now 2009 - since 2007, have you ever felt fearful about the fact that you were giving information?

A. No.

Q. I see. And I think you told us that you felt you had no reason to fear this group of people, some of whom are in the dock.

A. When compared with the information provided earlier on, now, it’s something different.’

Jury direction on live television link

34.Counsel further challenged the direction given by the Judge to the jury on PW1’s live television link evidence.  The Judge, in accordance with the Judiciary’s ‘Specimen Directions in Jury Trials’, directed the jury that,

‘ Lau Ming-yee, whose name appears in Counts 2 and 4 of the indictment, has given evidence by live television link. As I have already told you, the giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness gives. The fact that this witness’s evidence has been so given must not in any way be considered by you as prejudicial to any of the accused.’

35.The terms of the Hong Kong Specimen Direction is similar to the one adopted in England.  As noted in the ‘Crown Court Benchbook’ [Chapter 6(1)] the warning in fact reflects the statutory requirement that the judge give the jury such warning, if any, that the judge considers necessary to ensure that the fact that a special measure or direction was given in relation to a witness ‘does not prejudice the accused’.

36.It is submitted by the 1^st applicant that there is nothing ‘normal’ in allowing a mature male informer, whose identity is already known to the applicants to give evidence in this matter and that it was a misdirection to do so.  It is submitted that the Judge should tell the jury that it was at PW1’s request that he was permitted to give evidence in such a way.  The jury should further be told that all the interested parties were thereby precluded from seeing PW1 in the flesh and of seeing him being tested in Court in the usual way.

37.We disagree with this approach.  The words ‘perfectly normal’ were qualified by the words that followed, namely ‘in cases like this’.  That direction is correct in the sense that the procedure is allowed by legislation and approved by the Court.  As the decision to order live television link is arrived at after balancing the conflicting interests of the accused and that of the public, the direction given to the jury is likewise based on a consideration of the conflicting interests.  To simply tell the jury in the way as suggested by counsel will not present the jury with the complete picture.  Inevitably the jury will ask why was the request made in the first place?  Is the Judge then not obliged to also go into the reason of the request, namely, PW1 is a witness in fear and refer to them to the matters that support this contention?  This would create a more prejudicial impression against the applicants in the minds of the jury.  In our view the present direction is a balanced one and is rightly adopted in a situation like this.

38.As a matter of fact, it is necessary to point out that the Judge had prior to the final summing up, directed the jury on PW1’s live television link evidence along the same lines of the direction we have referred to on two separate occasions on 11^th and 14^th September 2009.  If defence counsel considered that there were objections of substance to the directions, no doubt they would have raised them with the Judge, as they had done so in other matters prior to her summing up.  This topic was, however, not canvassed by them.

39.We would add that while the words ‘perfectly normal’ are correct, in order to avoid any suggestion of unfairness, it may well be that these two words can be replaced by a simple statement that the procedure is in accordance with the law.

II. PW1 refreshing his memory

40.The next ground of appeal deals with PW1 reading his witness statements in the course of giving evidence.  It emerged at the outset of the cross-examination of Mr. Haynes that PW1 had brought photocopies of his witness statements with him when he was giving evidence and he had ‘looked’ at them after he had started to give evidence.  He agreed that no one had advised him that it would be better not to look at them once he had started giving evidence.  After an adjournment of several days when PW1 resumed his testimony he said that in the intervening period he had not looked at the statements.  Thereafter, nothing more was said of the matter.  He had given four witness statements dated 19, 20, 23 June 2008 and 16 July 2008 respectively.  It was submitted by counsel that the reason why PW1 needed to read the statements was because he had fabricated a story against the applicants and he needed to remind himself of the false story that he had made up.

41.The question of a witness refreshing his memory has been considered by this Court (Fuad VP, Penlington JA and Ryan J) in R v. Leung Chi Yuen & Ors [1989] 2 HKC 24.  After referring to R v Richardson (1971) 55 Cr. App. R. 244 where it was said that a line is drawn of a witness reading his statement once he enters the witness box, Penlington JA held at 33B that :

‘ While at first sight, Richardson appears to support the defence submissions on this point, we feel that an important part of the decision is that, whatever the desirability, the courts should not in matters such as this lay down a rule which in practice they cannot enforce. If a witness does have possession of a previous statement, whether contemporaneous or not, and clearly here, the statements were made a very long time indeed after the events, there is nothing to prevent him looking at that statement during court adjournments, even if he is warned not to do so.’

42.He then referred to an earlier decision of this Court :

‘ The question of a witness refreshing his memory before giving evidence from an earlier statement was considered by this court in R v Keung Sai-chung & Ors [1986] HKLR 833. At p 836, Cons VP said:

It is well settled that a witness may refresh his memory before giving evidence from a statement which was made earlier. The reasons why are set out in the judgment of the full court in R v Lau Pak-lam [1966] HKLR 246 and had been approved by the Court of Appeal in England in Richardson. There is nothing in those reasons to suggest that the principle is limited to statements made contemporaneously and indeed, counsel for the defendants concedes that no objection could be taken were a witness to be shown, before the trial, a copy of his deposition taken at committal proceedings including, if appropriate, the cross-examination that then took place.

He goes on to say:

It seems to us to go to the weight of the evidence is no more a matter for the jury. In that respect, we might add that as we have earlier indicated, the jury were fully appraised of the situation in the present instance.’

43.Penlington JA concluded by holding that,

‘ We were concerned with this ground of appeal and have given it most anxious consideration. We consider that while it was not a ground for excluding Tam’s evidence from the jury, this was a factor which the jury should have been told to take into account when assessing his evidence. We are satisfied that from the judgment in Richardson, the court should not, even in the case of an accomplice who is in custody, lay down that it is fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that he should do so and most certainly if he does that, it should be brought out, as indeed it was here, but a total prohibition would be ignored by the dishonest witness and would lead to the court being deceived as to the correct position. Here, although the jury were not given a direction along the lines we have suggested, they were fully aware of the position in relation to this aspect of Tam’s evidence. We do not consider this was a material misdirection.’ [underlining added]

44.In the present case, counsel for the 1^st applicant did not ask PW1 why he needed to read the statements and the extent of his reading.  He also did not address the jury in his final submission about PW1 reading his statements.

45.After this matter was first raised, no counsel applied to the Judge to direct PW1 not to read the statements except in court and only with the consent of the Judge.  The Judge herself did not do so.  Also, the Judge did not direct the jury in her summing up of the relevance of the evidence of PW1 reading the statements after he had begun to give evidence.  Clearly, she should have done so.  Furthermore, when the matter first emerged the Judge ought to have ordered that the statements be removed from PW1. 

46.Ultimately, the matter is one that concerns the weight of PW1’s evidence.  Although the Judge did not direct the jury that PW1’s refreshing of his memory after he had begun his evidence was a factor which they may take into account in assessing his evidence, the jury was aware of PW1 reading his statements, as this was brought out twice in their presence.  Further as discussed at paragraph 50(1) the Judge had repeatedly warned the jury of the need to be extra cautious in relying on the evidence of PW1.  Having considered the whole of the case, we do not consider that this matter constitutes a material irregularity which affects the conviction.

III. Unbalanced summing up

47.The Judge had invited counsel to submit written summaries of their ‘defence points’ to the jury in order to assist her in her summing up.  Counsel complied with the request.  The complaint now is that counsel could reasonably expect the summing up to contain adequate coverage of the written summaries, but instead the Judge only briefly listed many of the matters in the written summary, but without reference to the details of the evidence that was capable of supporting the defence points.  Further, many of the defence submissions were characterised as ‘attacks’, ‘complaints’ and ‘accusations’.  It is submitted that the net effect was ‘unfairly dismissive of sensible defence points’.

48.This is a point that has given us the most anxious consideration.  What happened in this case is that the Judge first summarised the evidence of PW1.  It is a lengthy summary.  This is then followed by the Judge summarising the cross-examination of PW1 by counsel for each of the applicants.  To give an example of the summary, this is what the Judge said in respect of the cross-examination of PW1 by counsel for the 1^st defendant:

‘ …. Mr. Haynes’ cross-examination, which you will consider in its entirety, involved Mr Haynes asking Lau about many matters and putting various suggestions to Mr Lau which he denied.

Among other matters, Mr Haynes asked Lau: about his having looked at his witness statements after commencing his evidence; about his background including his having joined the 14K Triad Society at the age of 13; about whether giving information to the police was dangerous; about his dealings with the policeman Ah Shing; about Sik Gor, Tsang Pau, Lan Do Ping and Wong Ming Chai; about information given to the police; about his giving evidence by video link; about his immunity from prosecution; about his girlfriend; about his being registered as an informer; about the contents of his witness statements; and about the details of his evidence which the cross-examiner probed and challenged.

The suggestions put by Mr Haynes and denied by Mr Lau included suggestions that he had been evading debt collectors; that the car park rental collected by him had gone missing; that he had put stun-guns in the village office; that he was trying to get revenge; that his evidence is fantasy; and that he was lying. These and other suggestions were put by Mr Haynes and denied by Lau.’

49.After the Judge had dealt with the cross-examination of PW1, she summarised the evidence of the other witnesses and referred to the admitted facts.  She then summarised PW1’s evidence against each of the applicants individually. Afterwards the Judge summarised the content of counsel’s submission.  In respect of the 1^st applicant, this is what she said :

‘ You will remember and consider everything said in final speech by Mr Haynes for the 1^st accused. It included the following. Mr Haynes attacked Lau’s credibility and the reliability of his evidence. He suggested that Lau’s evidence had shifted and that it could not be true as to the meeting on the day his client went to Macau.

He said that Lau had been wrongly and preferentially dealt with by the police. He complained of the fact that Lau gave evidence by video link. He said that Lau could have made up a story, and did so. He attacked Lau for disloyalty to friends. He accused Lau of saying that the 1^st accused was a mud chip dealer in order to throw mud at him. He told you, rightly of course, to disregard media reports.

He discussed the evidence in detail dealing with, among other matters: the fact that no key to the locked storeroom had been found; the absence of fingerprints on the notebook Exhibit P307A; and the absence of any CCTV evidence.

He asked you to ignore any weapons found in the abandoned school. He talked about the telephone records. He dealt with the expert evidence on triad societies and on stun-guns. He talked about the knives being said by the police to be in full view even though the prosecution evidence is that about 20 minutes elapsed before the police gained entry to where they were and that hoods had been cut up.

He talked about scams which casinos may engage in. He dealt with parts of his client’s video-recorded interview. He complained of what he called ‘small potatoes’ being charged and what he called ‘big potatoes’ going free.

He also talked about his view of what the law was and should be regarding the need for corroboration or support of an accomplice’s evidence. Members of the jury, you will act on what the law is and you will take that from what I tell you; and you will remember what I tell you about accomplices’ evidence. Mr Haynes asked you to acquit.’

50.We have gone through the cross-examination of PW1 by Mr. Haynes and his written summary of his final submission.  It is apparent that the Judge’s summaries contained the gist of the topics covered in the cross-examination and in the written summary. What caused us concern is whether this approach is appropriate in a case like this, where the conviction depends on the jury’s assessment of the truthfulness of a witness who is an accomplice to the crime.  Focusing solely on the Judge’s summaries we have to say that we have seldom encountered a summing up where the defence is summarised in a precis form of such a brevity.  While each judge has his or her individual style in addressing the jury, one would usually expect an outline of the points raised by the defence, particularly those which are said to be important discrepancies of the witness, by more detailed reference to the evidence.  The need to do so is particularly important when the prosecution’s case hinged on the credibility of an accomplice who has been offered immunity from prosecution in return for him agreeing to testify against his gang. However, after giving this matter the most anxious thought, nonetheless, we have come to the view that the Judge’s approach does not affect the safety of the conviction for the following reasons :

(1) The Judge had clearly directed the jury that the prosecution’s case is dependent on PW1’s evidence. She had on three occasions repeatedly given a full warning to the jury of the need to be extra cautious in relying on the evidence of PW1. The jury must have been alerted by the repeated warnings of the proper approach to their consideration of PW1’s evidence.

(2) As we said earlier, the summaries by the Judge covered the topics that had been canvassed in the cross-examination and defence’s final submission. One has to proceed on the basis that the jury was aware of the issues raised by the defence.

(3.1) The Judge’s approach is sanctioned by the highest judicial authority in Hong Kong. In HKSAR v. Chin Kam Chiu & others CACC 179/2004, one of the complaints on appeal was that the trial judge has given an unbalanced summing up in that he failed in his summing up to encapsulate the case for each of the defendants either at all or sufficiently. The judge did not summarise what evidence that could be said to ensure the defendants’ benefit. This Court (Stock and Yeung JJA and Lugar-Mawson J) held that

‘ 183. None of these contentions [i.e. defence contentions] found their way into that part of the summing up that dealt with the evidence for and against the defendants. Despite the fact that the defendants did not give evidence at the trial, we think that the Judge should have alluded to them. It is, in our judgment, not in itself sufficient to say that they were points made in speeches and not in testimony by the defendants themselves. Whilst it is emphatically not a judge’s duty to search for a defence that has not been advanced, nor to lay down for the jury’s consideration every conceivable point made, what we have in this case is no encapsulation of the factors said by the defendants at trial to undermine the prosecution’s case as to their intentions, their dishonesty, and their appreciation of the particular risk upon which the prosecution case rested. Neither is there a rehearsal of the specific considerations said to attach to each defendant’s different role.

184. We have taken the view that the Judge ought to have summarised these points and that his failure to do so was an irregularity.’

However despite this omission this Court applied the proviso in dismissing the appeal because of the strong evidence against the defendants.

(3.2) The defendants’ application for leave to appeal to the Court of Final Appeal was refused by the Court of Final Appeal where the title of the case is Chow Wai Choi & Others v. HKSAR (2005) 8 HKCFAR 623. The Court of Final Appeal gave the following guidance :

‘ 6. We think that this should be said for future guidance. After final speeches have concluded and before the summing-up begins, a trial judge is entitled, if he feels that it would assist him in giving the accused a fair trial, to call upon defence counsel to provide him with a list of the points made for the defence in final speech. Having such a list would put the trial judge in a better position, when inviting thejury to consider everything urged by defence counsel in final speech, to remind them that it consisted of, or included, such and such points. Calling for a list of defence points will not always be necessary. It may not even be often necessary. But there will be cases where it will be in the legitimate interests of all concerned that such a list be called for and provided. Such cases are best exemplified by — but are not limited to — those in which the accused do not give or call evidence and rely essentially on what their counsel put and/or elicit in cross-examination and urge in final speech. Whether it will suffice for defence counsel to provide the list orally or whether it ought to be provided in writing is a matter for the trial judge to decide in all the circumstances. Either way the list should be provided in simple terms shorn of rhetoric. Above all it must be remembered that the exercise is to be a co-operative one between Bench and Bar in the pursuit of justice. That is the spirit in which it is to be approached and carried out.’

(4) We have to say immediately that the present case is a far cry from the deficiency in Chin Kam Chiu. As pointed out earlier the Judge’s summaries in fact encapsulated the defence’s case.

(5) While the summaries are indeed in a very brief form, on the three major issues now relied upon by Mr. Cheng and Mr. Haynes, the Judge had in fact covered them adequately in other parts of the summing up.

(5.1) First, it was said that PW1 had given false evidence on the timing (i.e. between 6 and 7 p.m.) of the first meeting on 22 April 2008 in which the 1^st applicant was present and that he had tried to explain his way out of the conflict with his testimony when confronted by the immigration records of the 1^st applicant which showed that he left for Macau on 22 April 2008 at about 6 p.m. This is a matter referred to by the Judge in her summary of Mr. Haynes’s final submission. In addition she had specifically referred to the evidence on this topic :

‘ When Mr Haynes for the 1^st accused was cross-examining Lau, he referred to Lau’s statement of 20 June 2008 in which Lau spoke of a meeting “Some time between 6 and 7 o’clock on the evening of 22^nd April 2008”. Mr Haynes asked Lau if that was the date and time of the meeting. Lau replied that he could not be sure of the time but was sure of the date.

Mr Haynes put to Lau the suggestion that he began to change the time to make it more open, that is to make a much wider time span, because the police came to him some weeks later and told him that they had found out from Immigration records that the 1^st accused had left Hong Kong at about 6 pm on that day, 22 April 2008. Lau denied that suggestion.

Mr Tam therefore re-examined Lau with a view to clarifying what, at least on the face of the statement which Lau made some weeks later on 16 July 2008, the police had asked Lau about the date and time in question and what he had replied. So re-examining, Mr Tam referred Lau to the last sentence of Question 1 of his fourth witness statement. This sentence is: “Can you tell us why you were able to remember that it was 22 April 2008?”

The answer given by Lau, which he read out in court to you, was:

“I am very sure that it was April 22 because I had a friend (whose birthday) was on April 23. After that day, I had a barbecue with my friend to celebrate his birthday. I was therefore very sure that it was April 22.”

Lau also read out Questions and Answers 2 and 3. They were:

“Q2: Why could you remember that it was sometime between 6 and 7 o’clock in the evening?

A2: Look, I am not very sure about this. I said 6 o’clock to 7 o’clock because it was only an estimated time which I had made roughly.

Q3: How did you estimate?

A3: After the discussion that day, everybody left B Carpark one after the other. I had my dinner after quite a while so I estimated that it was sometime between 6 o’clock and 7 o’clock in the evening. I am not sure whether the time was correct or not. Anyway, it was sometime before I had my dinner. It was not earlier than 2 pm and also not later than 7 pm either.”

The re-examination was interrupted by further cross-examination by Mr Haynes for the 1^st accused to deal with Lau having said in re-examination that the 1^st accused had been a mud chip dealer. You will remember and consider the whole of this further cross-examination. It included Mr Haynes’ suggestion that Lau had brought that out in order to throw mud at the 1^st accused. Lau disagreed with this suggestion.’

In our view, the Judge had properly referred the jury to the relevant evidence of this issue in order to assist them in the assessment of the truthfulness of PW1’s evidence.

(5.2) It is then said that PW1 only described the 1^st applicant as a ‘mud chip dealer’ in a floating casino in his re-examination, when he had not previously alluded to it in his evidence in chief or cross-examination or in any of his previous statements. It is said that this omission is most odd when it was PW1’s evidence that another ‘mud chip dealer’ i.e. PW6 was to be the victim of the plot. Counsel had suggested to PW1 that he was trying ‘to throw mud’ at the first applicant. The Judge had already, even before summarising the 1^st applicant’s defence where she specifically referred to this issue, directed the jury that,

‘ Members of the jury, for the 1^st accused’s protection, I direct you that his having been a mud chip dealer, if he had been one, would not be something that is to be taken into account against him in any shape or form.’

(5.3) As to the absence of reference to the immigration records which showed that between February 2006 and December 2007, the 1^st applicant had only been abroad for four nights on the floating casino (20 and 28 February, 2 March and 29 May 2006), the Judge had specifically asked the jury to look at the immigration records. More importantly in relation to this topic, PW1 specifically said that it was the 1^st applicant who told him that he was a mud chip dealer. Hence the immigration record did not really matter in this case.

(5.4) In respect of the third matter relied upon by counsel i.e. the Judge’s omission to address the jury on the live television link evidence, the Judge had in fact referred the jury to Mr. Haynes’ complaint on PW1’s evidence being given in such way. As the Judge had repeatedly directed the jury of the proper approach to the video link evidence, there was no need for the Judge to deal further with this topic.

(5.5) There are other matters referred to by counsel such as the record showing lack of frequent telephone calls between PW1 and the 1^st applicant, absence of independent evidence such as whether PW6 was in the car, the names of the car park, hotels and CCTV evidence, evidence relating to the beef knives, scientific measurement of the charge of stun gun and the nature of the activities of WHT. We do not consider that the Judge needed to specifically go into the details of the evidence regarding these topics. The jury had heard the evidence and one would expect them to assess the evidence accordingly. As to the reason why the triad boss wanted PW6 injured or killed, the evidence given by PW1 on this point does not exactly match what PW4 or PW6 said. However, again the jury must have been aware of the difference after listening to the evidence. In any event PW1 was merely narrating what the 1^st applicant said to him was the reason why the triad boss wanted PW6 to be targeted.

51.To conclude, we do not consider that the summing up was unbalanced.  Having said that, we would state our view firmly that it is not enough (which is not the case here) for a judge simply to summarise the defence’s case by way of a skeletal precis.  The summary must be supported by appropriate references to the evidence and the identification of the major discrepancies or conflicts in the evidence.  We do not consider that the guidance by the Court of Final Appeal can be construed as requiring anything less.  Ultimately, the summing up must be one that is balanced in substance.

Sentence

52.This can be dealt with shortly.  The most that can be said on behalf of the 1^st applicant is that the plot had not been carried out.  The Police arrested the applicants when they met to carry out the crime on 15 May 2008.

53.Even taken this factor into account, the plot devised by the 1^st applicant was an extremely heinous one involving the abduction of PW6 in the vicinity of the Police Station, taking him to a hideaway in order to chop his arms and legs and even kill him.  In our view the sentences imposed on the 1^st applicant were amply justified.

54.As for the 2^nd to 5^th applicants, even if the conspiracy that they were charged with is the one that does not involve the killing of PW6, they were parties to a conspiracy to cause PW6 grievous bodily harm with intent.  Considering the serious nature of the crime, we are of the view that the sentences imposed on them were not manifestly excessive at all or in any way wrong in principle.

Conclusion

55.The applications for leave to appeal against conviction and sentence are accordingly dismissed.

Mr. William Tam SADPP and Mr. Franco Kuan Ag. SPP of Department of Justice, for the Respondent

Mr. Cheng Huan SC and Mr. John Haynes, instructed by Messrs Lau, Chan & Ko, for the 1^st Applicant

Mr. David Boyton, instructed by Messrs Louis K. Y. Pau & Co., for the 2^nd to 5^th Applicants (on conviction)

Ms C Draycott SC and Mr. David Boyton, instructed by Messrs Louis K. Y. Pau & Co., for the 2^nd to 5^th Applicants (on sentence)