HKSAR v. Tsoy Yiu Yeung

HCMA769/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 769 OF 2011

(ON APPEAL FROM TMCC NO. 1665 OF 2011)

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Before : Hon M. Poon J in Court

Date of Hearing : 29 March 2012

Date of Judgment : 29 March 2012

Date of Handing Down Reasons for Judgment :30 March 2012

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of one charge of “Claiming to be a member of a triad society, an offence contrary to section 20(2) of the Societies Ordinance, Cap. 151, Laws of Hong Kong (“the 1^st charge”). He was placed on probation for 12 months. I dismissed his appeal against conviction. These are the reasons.

Prosecution case

2.PW1 and PW2 were two undercover officers at the material time.  Their evidence was that they sat with Ah San and another male a long bench chatting at a basket ball court.  2 other males came over during their chat.  PW1 identified the appellant to be the one who told them that he and Yiu Yeung were of Lo Sun.   He remembered the appellant to be “Kam Kuen”.  Then one of the 2 males who came later also said that they were all of Lo Sun and followed the same big brother.

3.PW2, having initially pointed at the appellant to be the one originally with Ah San, later corrected herself to say that the appellant was one of the late comers.  She said the male originally with Ah San said that he and Yiu Yeung were all of Lo Sun, and it was the appellant who said that they were all of Lo Sun and both followed the same big brother.

Defence Case

4.The appellant elected not to testify.  He called one defence witness, Wan Chung Hang who told the court that he had known the appellant for 3 to 4 years, and usually met up for ball games 3 to 4 times a week.  He said at the material time he and the appellant sat on a bench whilst D2 and Ah San were about 10 feet from them.  He could not hear what they were saying to 2 people he now knew to have been undercover police officers.  He denied that the appellant had ever approach D2 and Ah San or said anything about “Lo Sun” or the Sun Yee On triad society.

Grounds of appeal

(1)   The Learned magistrate erred in his findings that the appellant had claimed to be Lo Sun when there was irreconcilable inconsistencies between the identification evidence of PW1 and PW2.

(2)   The Learned Magistrate erred  in relying on the evidence of PW2 when :

(i)   her first record of the alleged conversations was only made some 3 hours after the incident;

(ii)   Her evidence in court that she had met the boy with fat built prior to the incident was not recorded in her occurrence book; and

(iii)  she was mistaken as to the number of persons present at scene.

(3)The Learned Magistrate erred in rejecting the evidence of the Defence witness.

Respondent’s reply

5.The respondent accepted that there were discrepancies between the evidence of the two Prosecution witnesses.  It was submitted that these were not glaring inconsistencies and the Magistrate had resolved them.  The complaint that PW2’s first record of the chat was recorded some 3 hours afterwards or the omission of some minor matters in her statement does not render her recollection unreliable.  It was further submitted that the Magistrate had the advantage of observing DW1 give evidence in court, and although the Magistrate had not stated detailed reasons for refusing to accept the evidence of DW1, it is clear from his statement of findings that he had so analysed it before he rejected it.

My Judgment

6.The Magistrate pointed was alive to the discrepancies in the evidence of the Prosecution witnesses.  He concluded that PW1 was mistaken in his identification, but accepted the evidence of PW2 in total.  In his Statement of Findings, he set out his reasoning and analysis in full.  He concluded that it was an honest mistake by PW1. Part of his reasoning is based on the fact that it was evidence common to the two Prosecution witness that it was the male who was with Ah San originally who said that “I and Yiu Yeung are of Lo Sun”.  The Magistrate said :

“The name of the 1st defendant is Tsoy Yiu-yeung. That of the 2^nd defendant is Lee Kam-kuen. It would make no sense for the 1st defendant to have said, “I and Yiu Yeung.” I am sure that those words were uttered by the 2nd defendant. That it is PW1 who has made the mistake concerning identification is borne out by the other evidence of PW1 in which he mistakenly testified that the name of the 1st defendant was, “Kam Kuen”

7.These are sound and logical reasoning by the Learned Magistrate.

8.The Magistrate was also aware of other shortcomings in PW2’s evidence, he was perfectly entitled to find that these were immaterial and did not affect either her credibility or reliability.

9.I now turn to the last ground.  In the Statement of Findings, the Magistrate stated that DW1 testified that he and the appellant were close friends. Whilst he denied lying to protect the appellant, he admitted that he had found a summer job for the appellant.  The Magistrate, in rejecting DW1’s evidence, said that :

“… I do not believe that he was a witness of truth. His evidence was inconsistent with other good, cogent and credible evidence. I reject the testimony of DW1.”

10.Counsel for the appellant submitted that there was no basis on which the Magistrate rejected DW1’s evidence.

11.Deputy Judge Line, as he then was, in HKSAR v So Pui Wah, HCMA1106/2005 said that :

“At the centre of this case, as in so many other summary trials, was an issue in very short compass, which in effect amounted to assertion and counter assertion… It is not possible in circumstances like that to dissect and take apart the evidence given by the defendant. However, there can have been no doubt that this Appellant left the court knowing why he had lost the case, which was because the magistrate believed PW1…

Realistically the issue was, has the police officer made it up against the Appellant? Of course, police officers can invent cases, we all know that, but did he in this case? The magistrate who saw and heard the witness came to the clear conclusion that he had not, that he was telling the truth.  No sufficient material point taken before me makes me have any doubt about that finding. Once that finding was made it meant that the evidence of the defendant had to be rejected, because the two could not live together.”

12.It is clear in the present case that the evidence of the Prosecution and that of DW1 cannot live together.  The evidence of DW1 had to be rejected, and the Magistrate rightly did so.

13.There are no merits in this appeal and it is dismissed.  I affirm the conviction.

Miss Rosa Lo, PP of Department of Justice, for HKSAR.

Mr Gordon Wong Yun Wah, instructed by Messrs Y.K. Lau & Chu, assigned by D.L.A., for the Appellant.