HKSAR v. CHEUNG WAI MING

CACC 571/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 571 OF 1998

(ON APPEAL FROM HCCC 19 OF 1998)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of one count of conspiracy to murder, contrary to section 5 of the Offences against the Person Ordinance, Cap. 212 and one count of conspiracy to pervert the course of public justice after a trial in the High Court before Gall J and a jury. He was sentenced to 27 years imprisonment on the first count and 6 1/2 years on the second which was ordered to be served concurrently. He now seeks leave to appeal against his convictions and the sentences which were imposed.

2. Particulars of the offences were as follows:

"First Count

CHEUNG Wai-ming and WONG Kwong-kai, between the 1st day of August 1994 and the 1st day of April 1995, in Hong Kong, conspired, confederated and agreed with CHENG Hing, CHENG Wui-yiu, LEE Yiu-man and TIN Sau-kwong and other persons unknown to murder Tommy CHUI To-yan in Singapore.

Second Count

CHEUNG Wai-ming and WONG Kwong-kai, between the 1st day of August 1994 and the 1st day of April 1995, in Hong Kong, conspired together and with CHENG Hing, CHENG Wui-yiu, LEE Yiu-man and TIN Sau-kwong and other persons unknown to, with intent to pervert the course of public justice, do an act which had a tendency to pervert the course of public justice, namely prevent Tommy CHUI To-yan from being a witness in the trial of CHONG Tsoi-jun, TIN Sau-kwong and YEUNG Kam-fai in Hong Kong."

3. To obtain a sufficient understanding of this case it is necessary to consider the background.

4. In July 1993 the Independent Commission Against Corruption ("ICAC") initiated an investigation into the activities of a company called Giant Island Ltd ("GIL") which traded in cigarettes. Mr Tommy Chui ("Chui"), the victim named in the murder conspiracy was one of the shareholders in GIL. The company had extensive dealings with Henfrey Trading Co a Hong Kong company which is owned by Tin San Kwong ("Tin") one of the named conspirators in both counts.

5. Prior to the commencement of this investigation Chui had emigrated with his family to Singapore.

6. Mr Ricky Yu a Chief Investigator with ICAC went to Singapore in April 1994 and took a statement from Chui. In this statement he made a number of damaging allegations against Tin.

7. Various people including Tin had been arrested in March 1994 as a result of the ongoing investigation which was being conducted by ICAC.

8. By October 1994 at the latest it would have become apparent to Tin that the main source of the evidence against him derived from Chui.

9. Mr Wong Kak-lik who is the brother in law of Chui gave evidence at the trial that he had been an employee of GIL and knew Tin well. Tin had instructed him to go to Singapore to try and persuade Chui to withdraw the statements he had made to ICAC.

10. The next significant aspect of the background to this case which must be considered is the triad association of the conspirators. There were two main sources of evidence concerning this. The first was the evidence of Mr Ringo Wong ("Ringo") whose evidence mainly related to the factual situation and the second was the expert evidence of Detective Chief Inspector Ip Pau-fuk ("Ip").

11. Ringo was born in Hong Kong in the Li Cheng Uk Estate at Shamshuipo. It was the same estate as the one the applicant was brought up in. He gave evidence of the general conditions prevailing there and the fact that a large number of the youths or young men attached themselves to leaders who they believed to be members of the Wo On Lok triad society. They regarded themselves as being members of that triad society. Ringo knew the applicant and it was his evidence that he was also a member of the triad society. He also knew Tin who had been involved in a number of fights and he thought that he was a senior member of the triad society.

12. Ringo continued his association with his triad friends. He worked for a man called Teddy To ("To") who was a business associate of Tin. Amongst To's business interests was a club in Hong Kong called the Kartel Association. Tin's wife operated the canteen.

13. To also had business interests in Singapore. He had an interest with Tin in the Skylight Karaoke Nightclub and Tin had links with an establishment which traded under the name the Windsor Sauna.

14. Ringo was transferred to work in Singapore. He was instructed to rent premises at 55A Paterson Road. He complied with these instructions. He gave evidence that when the applicant and his co-conspirators visited Singapore they stayed at the Paterson Road flat and frequented the Windsor Sauna on numerous occasions.

15. Ip gave evidence that a person could become a member of a triad society even if they did not undergo a formal initiation ceremony. He gave expert evidence that membership could be quite informal. He also gave evidence that senior members of a triad society could order junior members to undertake tasks for them and that the junior member would consider himself obligated to do as he was asked to do. Ip also gave significant evidence concerning triad symbols which will be dealt with later in this judgment.

16. There was other evidence concerning the applicant's triad involvement. A Scottish police officer Stephen Ward gave evidence that the applicant in 1987 in Glasgow gave a statement to the police in which he admitted he was a member of a triad society.

17. It is necessary next to consider the evidence such as it is in relation to Chui's murder.

18. Sajari Bin Satari ("Satari") gave evidence in Singapore on commission. In this connection Mr Egan for the applicant had complained in the perfected grounds of appeal that the requirements of section 77 E (1) (d) of the Evidence Ordinance, Cap. 8 had not been complied with. However he did not condescend to any particularity and this ground was not argued before us. Satari was never subjected to cross-examination and the Judge made it clear to the jury that they must take cognisance of this when considering his testimony.

19. Satari gave evidence that on the morning of 29 March 1995 at about 10:15 am he saw a black Porsche sports car being driven into the Shenton Way car park. It was driven by a Chinese man who was formally dressed. It seems likely this man was Chui.

20. About 15 minutes later the car emerged from the car park being driven by another man. He could see some damage to the body-work of the car. It was followed by a red Honda car which was driven by another Chinese man with three men in the back of the car. From this evidence it might be inferred that the abduction of Chui had taken place. There was however no evidence relating to this incident implicating any of the conspirators.

21. Later both these cars were found abandoned. Nearby three keys belonging to Chui were found in a distinctive configuration. Ip gave expert evidence that this configuration was symbolic of a triad killing.

22. On 1 April 1995 Chui's body was found in the sea near to Clifford's Pier. It had been bound up and weights had been attached to it. The Pathologist who examined the body was of the opinion that the cause of death had been asphyxiation. Tape had been found to have been applied over his mouth and nose. There was also multiple bruising on his body. However what was of particular significance was that Ip expressed the expert opinion that the way in which the weights had been attached to the body symbolised a triad murder.

23. There was other evidence of a general nature which tended to implicate the conspirators. There was the fact that some time later when a search was conducted at the Paterson Road flat a magazine was found with a drawing sketched in it which appeared to resemble the relevant area at the Shenton Way car park where it would appear that Chui's abduction took place. Ground 5 of the perfected grounds of appeal relates to this and it will be considered later in this judgment.

24. There was also evidence that on a number of occasions when the applicant visited Singapore he travelled with some or others of the conspirators and that the timing of their visits coincided with developments which took place in connection with Tin's criminal case earlier referred to. Perhaps most important of all the applicant and three of his alleged co-conspirators travelled from Hong Kong to Singapore on 28 March 1995 and returned on 30 March 1995.

25. All of this was consistent with the prosecution case that the applicant and his triad associates had on the instructions of Tin made numerous visits to Singapore for the planning and implementation of the murder of Chui. This was further supported so far as the applicant was concerned by the evidence of his flight. As soon as news emerged from Singapore of the discovery of Chui's body the applicant left Hong Kong and went to the Mainland. He was subsequently arrested by the Chinese Authorities and eventually returned to Hong Kong.

26. The next matter which has to be considered is perhaps the most important evidence implicating the applicant.

27. Leung Sze-lai ("Leung") gave evidence that on 6 March 1997 when awaiting to appear in Court at Eastern Magistracy came into contact with the applicant and his co-accused and they engaged in conversation. During this conversation the applicant made an admission that he had been one of the men who had killed the man who was to be the witness in the $8 billion case. There would appear to be no doubt whatever that the reference to the $8 billion case was a reference to the criminal proceedings relating to cigarette smuggling which Tin had been involved in. The applicant had gone on to say that all that he could be charged with was being a member of a triad society as this was the only admission he had made. It has to be said immediately that Leung had a very bad criminal record and at the time faced very serious charges including murder, conspiracy to murder, robbery and rape.

28. The defence called two witnesses to challenge this evidence.

29. The first was Chan Ki-nang ("Chan") who was a co-accused with Leung in the criminal proceedings pending against him. He gave evidence of a conversation with Leung when he had said that he was seeking revenge against the applicant as the applicant had recently been one of the leaders of a group of men who had attacked Leung while he had been in detention. It was accepted that Leung had been the victim of an attack in which he had sustained some physical injuries.

30. The second witness was Yip Kei-chun ("Yip"). He was a fellow inmate of Leung. He gave evidence concerning the injuries which had been sustained by Leung.

31. The Judge gave the jury a full warning concerning the dangers of accepting Leung's testimony. This was both in respect of his criminal record and the fact that Leung might think that he had much to gain by giving evidence to assist the prosecution in the instant case as he might think that he may receive some reduction in sentence in relation to the offences he faced.

32. In Ground 12 complaint is made that the defence was not allowed to reopen their case during the course of the defence speech to inform the jury that Leung had been allowed to plead guilty to manslaughter.

33. Mr Egan suggested that the reason for this might be related to the fact that he had given evidence against the applicant in the instant case. Mr Ryan for the prosecution assured us that this was not the case. The reason why the prosecution had agreed to accept Leung's plea was that he had given evidence against his co-accused in his case.

34. Mr Egan has advanced this ground without providing any assistance, whether in the way of a transcript or by agreed recollection, as to the Judge's reasoning for refusing this application. He merely asserts the ruling to be unfair. Given the fact that Leung's plea was accepted for a reason disconnected with this trial and that the Judge very fully reminded the jury of Leung's criminal record and of Leung's "desire to assist himself in the trial he has faced," we cannot think that the calling of the evidence about the outcome of Leung's trial would have made "the slightest difference."

35. This short summary sets out the prosecution case against the applicant. The applicant did not himself go into the witness box.

36. Ground 14 was according to Mr Egan, his best ground. In this ground complaint is made that the Judge did not adequately summarise the evidence and indeed it was suggested that some of the evidence was contrary to the prosecution case. Particular complaint was made that the defence case was inadequately put to the jury.

37. Mr Egan was invited to particularise his complaints. He gave two examples.

38. The first was a complaint that when the Judge summarised the evidence of Ringo he failed to comment upon the inroads he had been able to make in cross-examination at the trial. He had been able to cast doubts upon whether either the applicant or Tin had ever been members of the triad society. This criticism is entirely without merit as can be seen from the directions given at p. 25 of the appeal bundle:

"The next matter the prosecution relies on is the evidence of membership of the Wo On Lok Triad Society by both TIN and the accused. The evidence against TIN comes from Ringo WONG. Now, he says that he was a fighter in the Wo On Lok Triad Society in Li Cheng Uk Estate and in that capacity he saw, prior to graduating to be a fighter because at this point he was young and too young to be allowed weapons, he saw TIN fight with weapons. He said TIN was a senior member in the Wo On Lok as he fought with weapons, and that after fights he conferred with the man WONG considered his own superior in that triad.

Against that, you have heard that WONG had no formal induction into the Wo On Lok Triad Society. His knowledge as to whom he was allied comes from what he was told by his superior, and he was told that TIN was in the same triad society. You must decide from all the evidence, and from those defects, whether you are sure that in the period covered by the first count on the indictment TIN was a member of the Wo On Lok Triad Society."

39. It can be seen from this that the Judge left this matter completely open to the jury. The jury would also of course have heard the evidence of Ip to the effect that initiation into membership of a triad society did not require an elaborate ceremony or the recital of poems.

40. The other example cited by Mr Egan related to the black screens which had been erected over the windows in the bedroom at 55A Paterson Road. He argued that this might have sinister implications. He had been able to establish in cross-examination that the reason for the erection of these screens had been to shut out the sunlight during the day when people occupying the room may wish to sleep. The Judge did not refer to the blinds in any way in his summing up. This is hardly surprising as it was not a matter of any comparative importance. The summing up was quite a short one having regard to the length of the trial. It is however evident that all of the important aspects of the case were sufficiently canvassed.

41. So far as the defence was concerned it has to be borne in mind that the applicant did not go into the witness box. Also he said very little in his cautioned statement which merited any reference being made to it in the summing up.

42. There is no merit in this ground and it is dismissed.

43. In Grounds 2 and 13, complaint is made that the Judge erred in law in allowing the prosecution to present the two counts on the indictment as separate, distinct and consecutive offences. It goes on to complain that no reasonable jury properly directed could have been satisfied that the agreement to kill took place in Hong Kong or that there was a separate and distinct agreement to pervert the course of public justice.

44. The first point which has to be considered is whether on the facts of the case as outlined it would have been open to the jury to come to different conclusions on the counts as charged. The answer to this is that they obviously could. It was open to the jury to conclude that whilst the applicant was party to a conspiracy to kill Chui, he may not have been told about the reason for the killing. If that were so, the applicant would be guilty of count 1, but not count 2. The verdict on count 2 demonstrates the jury's finding that the applicant conspired to kill, and, further, did so in order to prevent Chui's testimony in Hong Kong.

45. There is no merit in the suggestion that there was insufficient evidence before the jury to enable them to conclude that the agreements had been made in Hong Kong. There was an abundance of evidence. The criminal proceedings relating to Tin were taking place in Hong Kong. The applicant and co-conspirators were residing in Hong Kong at the time, and flow from Hong Kong to Singapore very shortly before Chui's abduction.

46. There was however one matter which was less than satisfactory.

47. When giving directions to the jury the Judge directed that so far as the second count was concerned the jury did not have to be satisfied at the appropriate level that this conspiracy had been hatched in Hong Kong. This of course was an error as it is apparent from the wording of the second count that it is alleged that the conspiracy was committed in Hong Kong. This amounted to a misdirection. The question then arises as to whether it was a material misdirection. It was not. The jury accepted that the conspiracy on the first count took place in Hong Kong and on the facts of this case it is inconceivable that they could have come to the conclusion that the second conspiracy did not also take place in Hong Kong. It is pertinent to add that Mr Egan accepted that the directions given on the first count were clear and satisfactory

48. These grounds must also fail.

49. In ground 5 complaint is made that the Judge was in error in allowing the prosecution to introduce evidence by means of "PowerPoint Software".

50. This complaint relates to the sketch drawing which was found at 55A Paterson Road which appeared to conform in many respects to plans which were produced by the prosecution of the relevant part of the Shenton Way car park where it appears that Chui's abduction took place.

51. Before us Mr Egan contended that as a consequence of the computer programme the sketch had been enhanced and then superimposed over the formal plan of the relevant part of the car park. He went on to submit that this was impermissible as no expert evidence had been adduced as to the validity of the computer simulation.

52. Mr Ryan helpfully arranged for a demonstration to be given to us in court in a similar manner to the presentation which had been made to the jury.

53. Mr Egan's contentions cannot be made good.

54. All that the programme did was to illustrate the similarities in the sketch and the plan. There was no question of there being any superimposition.

55. The illustration could just as readily have been given by a witness producing the plan and nothing in the computer programme added anything of substance to the exercise.

56. What is also germane is that the jury had before them both the sketch and the formal plans and they would have been able to reach their own conclusions as to whether the sketch was indeed intended to represent the place where it was planned that the abduction would take place. There is nothing in this ground.

57. The final grounds which were argued by Mr Egan were Grounds 3, 4, 6 and 7 (a).

58. In general terms the complaint which is made in these grounds is that the Judge erred in allowing evidence relating to Tin to go before the jury as the co-conspirator's rule had not been triggered. He argued that there was an insufficient nexus between Tin and the applicant. He particularly objected to the evidence of Ricky Yu, Ip and Wong Kak-lik in this connection as well as the evidence of Stephen Ward, the Scottish Policeman.

59. It has to be said that the underlying objection in this complaint is misconceived. This was not a question which should be resolved on the basis of the co-conspirator's rule.

60. The first question which has to be asked is whether the evidence in question was relevant. It clearly was. In this connection there was powerful evidence of Tin's motive to commit these offences. It was very much in his interest that Chui should not give evidence against him at his trial. All of the evidence objected to by Mr Egan was relevant in tying him to the conspiracies.

61. Even if this was not the case there was undoubtedly evidence which if accepted would trigger the co-conspirator's rule. This was the evidence of Leung that the applicant had admitted the killing in the context of the $8 billion case. These grounds of appeal must also fail.

62. Although there were other grounds these were not seriously pursued on the application before us. For the reasons which have been given the application for leave to appeal against conviction is dismissed.

63. That then leaves the application for leave to appeal against the sentences imposed.

64. It is quite difficult to conceive of a more serious case than the present one. These were cold blooded conspiracies to go to almost any length to pervert the course of public justice including the murder of the person who was prepared to testify against Tin.

65. Although the sentences were heavy ones, heavy sentences were warranted, and it cannot be said in all of the circumstances of the case that they were either manifestly excessive or wrong in principle. This application is also dismissed.

66. We wish to add that what was put before this court purporting to be a skeleton argument on behalf of the applicant was of no assistance to us. For example: "Ground 8: Again this ground of appeal speaks for itself and the appellant adopts the arguments in the court below for the purposes of the appeal. (see transcript pages 786B-920G)." This is unacceptable. First, the ground did not speak for itself, referring as it did to a suggested failure to meet the requirements of section 77 of the Evidence Ordinance, without specifying the nature of the failure, without explaining who the witness was, or addressing the materiality of the evidence. Secondly, to tell this court to fish and find out for itself, by reading 134 pages of transcript, what the meat of the argument is, is offensive. We are, fortunately, rarely faced with material drawn in this way, but we warn that should this happen again, such a case will, in the absence of very good contrary reasons, be adjourned, and that counsel responsible will personally be at risk of a wasted costs order pursuant to the provisions of section 18 of the Costs in Criminal Cases Ordinance, Cap. 492.