HKSAR v. Kwok Kin Ming

CACC 115/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 115 OF 2012

(ON APPEAL FROM HCCC NOS 153 & 286 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the judgment of the court):

INTRODUCTION

1.The applicant was the 3^rd defendant in the original trial before Beeson J and a jury.  He was jointly charged with the 2^nd defendant on a charge of Robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (1^st count); he was also jointly charged with the 1^st defendant on a count of Conspiracy to commit robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 and section 159A of the Crimes Ordinance, Cap 200 (2^nd count).  The applicant and the other two defendants were all convicted after trial.  The applicant was sentenced to a total of eight years imprisonment for both counts.

2.The applicant applied for leave to appeal against conviction.  After the hearing we dismissed his application.  Here are our reasons.

PROSECUTION EVIDENCE

3.On 27 September 2010, a PCCW worker surnamed Wong made delivery of mobile telephones to an address on 6/F Man On building, Sham Shui Po (which was the residence of the applicant) pursuant to a telephone order placed by a customer who gave his name as Lam Wa‑hung. When Wong arrived at the gate of the building at about 9:10 pm, he called the customer with the phone number provided by the customer, 6284xxxx.  A young man came down and asked Wong whether he was delivering mobile phones.  Wong was told to go up and he followed the young man to go up to somewhere about the 6^th or 7^th floor via the lift.  The young man went to the metal grille of a flat and appeared to be looking for a key.  At this juncture, Wong was firmly grabbed from behind and arm‑locked.  He felt something like a knife pressed against his neck.  Wong was told to move back and squat down, facing the wall.  Wong complied.  The young man who came up with him offered no assistance, but merely watched Wong without any expression.  Wong was told to take out everything and he again complied.  The young man then hit Wong on his left thigh.  The young man and another man then walked away.  Wong was frightened and he was unable to identify the culprits.  A report was made to the police.  (1^st count)

4.As a result of the robbery mentioned, the police carried out an undercover operation.  An undercover officer (the officer) posed as a PCCW employee.  The officer arranged with a would‑be purchaser —who had made a purchase order to PCCW via telephone—to make delivery of mobile phones to an address.  On 25 November 2010, a man (who was subsequently identified as the 1^st defendant) met the officer and the two entered the lift.  Two other plainclothes police officers followed them to provide security for the officer.  The 1^st defendant was seen pushing open the smoke‑stop door on 6^th floor to enter the staircase but he immediately turned and ran back the way he had come until he was stopped by the police.  Upon arrest the 1^st defendant said “Ah sir, it has nothing to do with me, it was Kin Ming (ie the applicant) who asked me to help him to rob”.

5.At around the same time, the applicant was arrested on the stairs by other police officers who were doing a sweep search up the stairs for persons suspected to be involved.  The applicant said upon arrest, “the lad (ie the 1^st defendant) had nothing to do with the last case of ‘lo lap’ (老笠)—meaning robbery—I [robbed] by myself.  This time I asked him to help me to [rob] again, he had just helped me to bring a PCCW staff upstairs.” (2^nd count)

6.Both the applicant and the 1^st defendant made further admissions during subsequent video‑recorded interviews.

7.As a result of information given by the applicant during the video‑recorded interview, the 2^nd defendant was arrested.  The 2^nd defendant said upon arrest that he was merely a lookout.

8.The 2^nd defendant also made further admissions during subsequent video‑recorded interview regarding his involvement in the robbery on 27 September 2010.

VOIR DIRE

9.The prosecution case relied solely on various admissions made by the applicant and the other two defendants.  Each of them challenged the admissibility of their admissions on the basis that there were assaults, threats, inducement, failure to comply with proper police procedure, coaching and oppressive behaviour on the part of the police.  Beeson J ruled them admissible after holding a voir dire.

ISSUES BEFORE THE JURY AND THE VERDICTS

10.The learned judge summed up the prosecution and defence case succinctly as follows” (page 23 of the Appeal Bundle, Line K‑R):

“ … The prosecution relies, effectively, solely on the confessions with some supporting evidence from the telephone records, but the confessions stand without the telephone records. The telephone records cannot stand without the confessions. The issue is the status of the confessions, whether they were made by the defendants as the police said in a proper manner and fairly. If that was the case you would then consider whether they were true.

The defence, of course, says that they were not taken fairly, that they were all framed for these offences.  That is basically the issue you have to decide as jurors, you have to decide the facts relating to that.”

11.The jury unanimously found the applicant and the other two defendants guilty of the counts they faced.

GROUNDS OF APPEAL AGAINST CONVICTION

12.The applicant, who was not legally represented, did not file any perfected grounds of appeal.  He did set out two complaints when he filed the Notice for Leave to Appeal.

1^st complaint

13.The applicant said that during the voir dire, a police officer, DPC52407 Leung Po‑shing (Leung), was allowed to continue to assist the prosecutor by sitting in court to handle documents and listening to the evidence after Leung had given evidence, despite objection made to the learned trial judge by his counsel.

2^nd complaint

14.The 2^nd complaint was this.  It was an admitted fact that a telephone number 6284xxxx had been used by a person named Lam Wai‑hung, and yet both the prosecutor and the trial judge told the jury that the said telephone number, together with the identification information of Lam Wai‑hung had been used by the applicant to subscribe to PCCW for mobile phones on 27 September, thus misleading the jury.

15.Before us, prior to advancing his grounds of appeal, the applicant asked us to order the two officers assisting Ms Catherine Ko, Acting Assistant Director of Public Prosecution for the respondent, to leave the court on the basis that he had made complaints against those two officers.  The applicant in effect raised two further complaints against the police.  We numbered them 3^rd and 4^th complaints for ease of reference.

3^rd complaint

16.The applicant complained that an extra Chinese character “tong” (唐)—meaning “Chinese tenement”—was inserted in front of the characters “7/F”, thus effectively changing the address from 7/F to 6/F (as Chinese tenement 7/F was equivalent to 6/F).  The applicant said that the insertion was done after the arresting officer had finished making the record on the notebook and without the knowledge of the applicant.  The applicant was of the view that such an insertion completely invalidated the whole of the record—even though no issue was taken as to the place of arrest at the time of the trial.

4^th complaint

17.The applicant referred to the photographs adduced in evidence showing a delivery order issued by PCCW.  He said the police had falsely alleged that the document was found on his person upon his arrest, and that the police had fabricated evidence by putting the said document inside his flat when the photograph was taken.  He accused the police of perverting the course of public justice.  He also complained against the trial judge for failing to mention this to the jury during her summing‑up.

DISCUSSION

18.We will deal with these four complaints in turn.

1^st complaint

19.We were not provided with the relevant transcript of the hearing relating to the incident complained by the applicant.

20.Ms Catherine Ko, in her written submission, informed the court that Leung was not listed as a prosecution witness on the indictment (which was indeed the case when one checked the said indictment).  Leung assisted the prosecutor from the outset of the hearing.  Leung was called to testify during the voir dire relating to the 2^nd defendant. When the prosecutor indicated to the judge that Leung would be called to testify during the voir dire relating to the applicant, counsel for the applicant applied to the judge for Leung not to stay in court.  The judge refused the application after hearing arguments and Leung was allowed to remain in court to assist the prosecutor.  The prosecutor then called Leung as the first prosecution witness during the voir dire relating to the applicant.  Leung was not called to testify during the trial proper. There was no suggestion that Leung, by his presence in court, actually did, or even may have done, anything to the prejudice of the applicant.

21.We did not see any impropriety or unfairness to the applicant for Leung to remain in court to assist the prosecutor in the circumstances as described by Ms Ko.  This ground failed.

2^nd complaint

22.The admitted facts referred to a customer who had given his name as Lam Wai‑hung, a certain identification number and a mobile phone number 6284xxxx to place order for the purchase of mobile phones. The prosecution case was that the applicant, according to the admissions the applicant made during the video‑recorded interviews, was the person who had made use of the name and identification information of a certain Lam Wai‑hung to make the bogus purchase in order to rob the PCCW staff of the mobile phones and the latter’s personal properties.  The jury was not misled.  This ground also failed.

3^rd complaint

23.The prosecution case was the applicant was arrested at the staircase of the building.  As conceded by the applicant, that was not challenged during the trial.  Whilst we could see that an extra character “tong” (唐) appeared to have been inserted in front of the characters “7/F”, such insertion did not affect either the prosecution or the defence case since the arrest of the applicant at the staircase (be it 6/F or 7/F) was not in dispute.  What was in dispute was whether the applicant had made the admission as testified by the police officers and recorded in the notebook.  This ground failed.

4^th complaint

24.The applicant conceded that his complaint about the police having planted the delivery note issued by PCCW was raised in court, thus heard by the judge and the jury.  The jury would have been fully aware of his stance.  As correctly pointed out by the trial judge, the only issue in this case against all three defendants was whether each one of them had made admissions to the offences and whether the admissions were true.

25.The trial judge’s summing‑up was fair, thorough and balanced.  The omission in pointing out this particular complaint of the applicant did not render the conviction unsafe or unsatisfactory.  This ground also failed.

CONCLUSION

26.We saw no merits in the applicant’s request to have the two officers assisting Ms Ko left the court and we did not accede to his request.

27.For the reasons given, we refused the application for leave to appeal against the convictions.

Ms Ko Po Chui, Catherine, Acting ADPP of Department of Justice, for the respondent

Applicant in person, present