HKSAR v. Wong Kam Keung

HCMA 71/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 71 OF 2014

(ON APPEAL FROM ESCC 292 OF 2013)

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J U D G M E N T

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1.The appellant appeals his conviction for acting as a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151. 

2.The facts supporting that conviction were that an undercover police officer infiltrated the Wan Chai Branch of the Sun Yee On Triad Society and became acquainted with a number of its apparent members. 

3.The charged offence related to a gathering of about a dozen individuals that were, by the prosecution case, members of the triad society in a room at an establishment in Wan Chai called the Encore Club. 

4.The appellant was alleged to have acted as a member of the triad society by entering the room where the others, including the undercover police officer, had gathered and making certain statements to them which I will deal with in due course.

5.So far as this appeal is concerned three material grounds are relied upon by Mr Bruce, Senior Counsel.  They may be summarised as follows:

(1)   The magistrate was wrong to rely upon the undercover officer as a credible witness as his evidence had been disbelieved previously by a District Court Judge and subsequently by another magistrate in cases heard by them arising out of the same undercover operation. 

(2)   Even if the undercover officer’s evidence could properly be regarded as credible, his evidence as to what the appellant did and said at the gathering of individuals at the Encore Club could not be sufficient proof that the appellant had acted as a triad; and

(3)   The magistrate erred in rejecting the evidence of the sole defence witness, the proprietor of the Encore Club.

Ground One

6.The only substantial criticism Mr Bruce makes of the undercover officer is that the officer had had his evidence rejected by a court on two occasions prior to this appeal. 

7.The first of those occasions was in the District Court (which I will refer to as “the District Court case”) and that case and the Judge’s comments concerning the undercover officer had been brought to the attention of the magistrate in the present case.  That was in the course of the defence counsel seeking and obtaining the leave of the magistrate in the present case to cross-examine the undercover officer as to the Judge in the District Court case having rejected his evidence.

8.The second occasion was a Magistracy hearing which took place after the conviction in the present case, (which I shall refer to as ESCC 3219 of 2013). 

9.Mr Bruce sought by Notice of Motion to have the magistrate’s findings in ESCC 3219 of 2013 as to the credibility of the undercover officer produced before me in evidence, presumably so as to seek to call that witness before me or to seek a retrial.

10.I ruled against him at the commencement of the appeal and dismissed the application the subject of the Notice of Motion.  My reasons for doing so are as follows.

11.I accept, regarding the admission of new evidence in this appeal, that I have the same powers as are granted to the Court of Appeal by section 83V(1) subsections (a), (b) and (c) of the Criminal Procedure Ordinance, cap 221: see section 118(1)(b) of the Magistrates Ordinance, cap227.

12.The other subsections of section 83V brought into effect by section 118(1)(b) for the purpose of magistracy appeals namely section 83V subsections (6) to (10) are irrelevant to this appeal.  I do not understand, I must say, why section 83V(2) is not also brought into effect by way of section 118(1)(b), but our legislature has presumably decided that for the purposes of a magistracy appeal section 83V(1) is sufficient.

13.Section 83V(1) is as follows:

“(1) For the purposes of this part the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence if tendered, of any witness.”

14.The determination of the appellant’s Notice of Motion thus depended upon my being satisfied that the admission of the magistrate’s findings in ESCC 3219 of 2013 was “necessary or expedient” so far as the interests of justice in the present case were concerned.

15.Obviously, if those findings had been ruled by me as being admissible under section 83V(1)(a) as “necessary in the interests of justice”, those findings would have been admissible for the purpose only of cross-examination of the undercover officer.  As I say, that could have been achieved before me by the operation of section 83V(1)(b) or by ordering a re-trial.

16.I might add that the word “expedient” contributes nothing to the determination of the preliminary issue of the admissibility of the magistrate’s findings in ESCC 3219 of 2013, but may well have had application to what course was adopted had I ruled those findings admissible in evidence.

17.I, therefore, initially considered simply whether the findings as to the undercover officer’s credibility in ESCC 3219 of 2013 were “necessary” so far as the interests of justice in this case were concerned.

18.Obviously, for the admission of the magistrate’s findings in ESCC 3219 of 2013 as to the credibility of the undercover officer’s evidence to be necessary to the interest of justice before me, it must be established that those findings would have been, in principle, admissible as evidence for the purpose of cross-examining the undercover officer. 

19.Before proceeding, however, I should say that I do not think it matters that ESCC 3219 of 2013 was decided after the present case.  This appeal on the matter in issue is by way of a re-hearing of that matter, being the credibility of the undercover officer, and it seems to me that evidence necessary for the determination of that matter should be admitted before me in the interests of justice where, if it had been available at the time of trial of the present case, it would have been admissible into evidence at that trial for the purpose of cross-examining the undercover officer.

20.The principles regarding the admissibility into evidence of another court’s finding as to the credibility of a witness are set out in the case of HKSAR v Wong Sau Ming (2013) 6 HKCFAR 135 at 150 where Li CJ said that in order for the evidence to be admissible for the purpose of cross-examination of a witness,

“It must clearly be established that:

(1) The verdict of acquittal in the previous case involved a finding by the court that the witness in question had lied (or which amounts to the same thing, that the court had disbelieved the witness); and

(2)    The circumstances of the previous case are of such a kind when compared to those in the instant case and the previous finding is not so remote in time that the finding of lying in the previous case would materially affect the court’s assessment of the witness’s veracity in the instant case.  Unless these requirements are satisfied, cross-examination by reference to the acquittal in the previous case should not be permitted.”

21.In my view, the statement by the Chief Justice, the rest of the court apparently agreeing, that there was no difference between a court disbelieving a witness and that court finding that the witness had lied must be looked at in the context of the whole of the judgment. 

22.It is, in my view, clear from the reasoning of the judgment and the approach to the issue and the subsequent analysis that the principles set out are restricted in their operation to a finding, however that is expressed or whatever language is used, that the witness has lied.  In my view, the Chief Justice in using the phraseology “had lied (or which amounted to the same thing, that the court had disbelieved the witness)” was simply saying that a finding that a witness had lied could be expressed in different ways.  A court rarely states that a witness has lied.  Findings of that sort are usually expressed in less blunt language, but the finding however expressed must be, effectively, that the witness had lied.

23.I am, therefore, satisfied that the first hurdle that the appellant in his Notice of Motion had to overcome was to establish that the magistrate in ESCC 3219 of 2013 had found the undercover officer had lied, whatever language was used.  That magistrate had in his statement of findings said this concerning the credibility of the undercover officer, who was PW3 in that case, and I quote:

“I have carefully considered Mr Chu’s submissions on this point including the relevant cross-examination and the answers. I am of the view that under the situation that PW3 admitted he was not sure, he was still willing to -- assuming there was no coercion, he was still willing to put down the names of the two defendants as 204 and 205, his work was at least slapdash and flippant. Concerning his evidence on identification, I therefore have doubts on the reliability of his evidence on identification because he was willing to put down something he was not sure about as if it was true. Another possibility was that, if his work was not slapdash or flippant, could it be the case that, as what the defence suggested, PW3 was willing to write like this in the statement, (namely,) putting down 204 and 205 as D1 and D2 because PW3 had obtained more information from PW4 other than the names, as suggested by the defence. Concerning the explanation give by PW4 saying that it was for clerical purposes, I have much reservation about it. As I have put to PW4 who also agreed that when PW3 was writing this statement, he could just describe the appearances, faces, builds and attires of 204 and 205. After PW3 had successfully identified, (he) could then write another statement after the identification parade. This could certainly be done on 9 January 2013. In view of this, even if PW3’s work was not slapdash or flippant, I still have doubts over his credibility although I would accept his evidence on other aspects, namely, his presence in such a gathering with triad implications together with Wah Chai who had a triad background and meeting Tai Hau Tsai and other people. However, regarding the identification, which is the core dispute of this case, I have doubts over the credibility and reliability of the evidence of PW3. Although the admission of the two defendants in their records of interview was very suspicious, as I have said, the evidence on identification was quite strong and it was supported by the admission of the two defendants. However since I have doubts over the credibility and the reliability of the evidence on identification of PW3, so the two defendants please stand up, I do not think the prosecution can prove the charges you are facing, (namely,) Charge 1 and 2 beyond reasonable doubt. Therefore my verdict is as follows: D1 is acquitted of Charge 1; and D2 is acquitted of Charge 2. Sit down.”

24.In my view, these findings fell far far short of an assertion by the magistrate that the undercover officer had lied.  The assertion was simply that the officer was “slapdash and flippant” and that the magistrate “doubted his reliability” and had “doubts over his credibility”, although it should be noted the magistrate accepted the officer’s evidence in some part. 

25.I do not think that putting at its highest the language used by the magistrate, it has been established the magistrate found the undercover officer to have lied in his evidence, and accordingly the first threshold test required to be met by the principles espoused in Wong Sau Ming was not met and the defence in the present case would not properly have been permitted to cross-examine the undercover officer on the findings in ESCC 3219 of 2013 which, therefore, were inadmissible as evidence.  For this reason the Notice of Motion was dismissed.

26.The principles of Wong Sau Ming are determinative also of Mr Bruce’s second argument under the first ground of appeal.  It is that while the magistrate in the present case allowed the undercover officer to be cross-examined on the Judge’s findings as to his credibility in the District Court case, the magistrate in the present case went on to say in her findings that the undercover officer was a credible and reliable witness. 

27.In regard to the District Court Judge’s findings, she had said this:

“Having read through the judgment I found that although the District Court Judge said that he was not saying PW1 was lying...”

PW1 being the undercover officer,

“...he, in effect, did not accept PW1’s evidence. He found there were inherently improbabilities in PW1’s evidence and found PW1’s evidence to be unreasonable. The District Court Judge stated that he had doubts as to PW1’s reliability and that it would be unsafe to rely solely on PW1’s evidence to convict.

I find that the first requirement set out in HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135 met in that the verdict of acquittal involved a finding that the Judge did not believe PW1’s evidence.

28.The District Court Judge had said this in his findings:

“By looking at the undercover’s testimony as a whole, (it) seems that during the operation, those around him [at least the two defendants and Fei Chiu] had great trust in him. However, his attitude was so passive, apathetic and lack of enthusiasm, how could (he) gain the trust from the others? Regarding this question, I remain perplexed despite much thought. It is not that I suspect the undercover of having made things up, but in fact his testimony does contain a lot of (things that) do not make sense and lack persuasiveness. As a juror, I have doubts over the reliability of the undercover’s testimony. In my view, unless there is independent evidence, (it) seems unsafe just to rely on the one-sided story from the undercover.”

29.Again, in my view, this and other similar criticisms by the Judge fell far short of a finding that the undercover officer had lied in his evidence.  Accordingly, the magistrate in the present case was wrong to find as she did that “the first requirement of Wong Sau Ming had been met in that the verdict of acquittal involved a finding that the judge did not believe PW1’s evidence”. 

30.As I have said, in the context of the Wong Sau Ming judgment as a whole, the expression of disbelief in a witness’s evidence by a prior court must amount to a practical assertion by that court that the witness had lied.  That was not so in the District Court Judge’s findings and accordingly the cross-examination of the undercover officer in the present case on those findings should not have been allowed. 

31.That being so, the criticism by Mr Bruce to the effect that the magistrate in this case failed to place proper weight on the evidence obtained by that cross-examination, and indeed, had dismissed it of any assistance to the defence case for the wrong reasons is negated.

32.Because the cross-examination should on the authority of Wong Sau Ming not have been allowed, therefore no harm was done to the defence case by the magistrates rejecting the evidence obtained by it as being of any weight and it is irrelevant whether that rejection was for right or wrong reasons.  This ground fails.

Ground Two

33.Mr Bruce argues that, in any event, the undercover officer’s evidence was insufficient to establish the appellant had “acted” as a member of the triad society.  The evidence given by the undercover officer in that regard was, as summarised by the magistrate, as follows:

“(1) The appellant did enter the room of Encore Club that night and asked a male called Calbee, ‘Whether all the brothers of Sun Yee On have arrived here?’. Calbee responded, ‘Yes, Big Brother Gum’. And the appellant said, ‘At this moment, things should be settled. Tell the brothers to sit for a little longer before leaving. Leave the bill to me.’ The appellant then left the room.

(2) Prior to the appellant entering the room, there was no music in the room and no one was singing. Although some people were playing cards, PW1 described the “atmosphere” of the place to be serious.

(3) PW1 and three other men left 15 minutes after the appellant exited the room.”

34.On that evidence, which she accepted, the magistrate found that “the only irresistible” inference is that the appellant acted as a triad member.  She then went on to give reasons for that finding.  She said:

“From what the appellant said, clearly he had contemplated a gathering of Sun Yee On members in the room. In fact he said whether all the Sun Yee On brothers were there. This meant that the gathering was not only for a few Sun Yee On members but all of them to be gathered in the room. He then indicated the thing was settled and that the group could be dismissed. This again indicates that the appellant expected a group of Sun Yee On members to gather for some business albeit it is not clear what business. He also had the authority to dismiss the group of 12 men that gathered there and offered to settle the bill. This indicates that the appellant was in control or had authority to give orders to the group of Sun Yee On members.”

35.It should be borne in mind that the undercover officer’s evidence was that at the time these things were said by the appellant, the only people present in the Encore Club room were the 12 men who had gathered there, and out of those men four were, from the undercover officer’s prior dealings with them, triads and the undercover officer was himself purporting to be a triad. 

36.Additionally, others in the room called the appellant “Gum Gor”.  The triad expert called as a witness at trial by the prosecution was of the view that in the circumstances that reference was to the appellant’s triad status.   In that context, and for the reasons stated by the magistrate, I agree with her findings that the appellant had been proven to have acted as a member of a triad society, and this ground also fails.

Ground Three

37.The appellant did not give evidence and the defence called only one witness at trial.  She was the proprietor of the Encore Club.  She did not in her evidence materially contradict the evidence of the undercover officer.  She said she knew the appellant but could not remember whether he had been at her club on the charged date.  She said there had been customers in her club’s hallway on that evening, but she could not recall whether the large room in her club, which was where the gathering took place, had been occupied on the charged date by a group of men.  Her evidence quite simply took the case nowhere. 

38.The magistrate did not accept her evidence on the basis she had unreasonably failed to recollect events in her club on the charged date.  Mr Bruce’s criticism of the magistrate rejecting the evidence of the defence witness, when it had no inherent improbabilities, need not be analysed for the simple reason that whether that witness’s evidence had been accepted or rejected by the magistrate it had no material effect on the main issues in this case. 

39.There was no merit in this ground, and for these reasons the appeal is dismissed.

Ms Vinci W S Lam, Acting SADPP of the Department of Justice, for the respondent

Mr Andrew Bruce, SC, Ms Cindy S M Lee and Ms Denise L Souza, instructed by K L Leung & Co., for the appellant (on 10 June 2014)

Ms Cindy S M Lee and Ms Denise L Souza, instructed by K L Leung & Co, for the appellant (on 18 June 2014)