HKSAR v. CHEUNG CHUN WO AND ANOTHER

[English Translation – 英譯本]
HCMA 358/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 358 OF 2013

(ON APPEAL FROM ESCC 4340 OF 2012)

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J U D G M E N T

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1. Both Appellants were convicted after trial by Magistrate Mr. David Chum respectively of one count of “Misconduct in a Public Office”[1]. The first Appellant was sentenced to three months’ imprisonment and the second Appellant two months’ imprisonment. Both Appellants appeal against conviction.

Summary of facts

2. Both Appellants are police officers. The first Appellant joined the police force on 19 January 1987. When the incident happened he was attached to Criminal Investigation Team 9 of Wan Chai District as a sergeant. The second Appellant joined the police force on 7 January 2002 and was also attached to Criminal Investigation Team 9 of Wan Chai District at the material time. He was a police constable and a subordinate of the first Appellant.

3. On 14 December 2011, the 1^st prosecution witness, Madam Choi, went to Wan Chai Police Station to make a report, bringing along a digital memory card previously picked up by her which she said contained some photographs of female underskirt. The case was transferred to the team to which the two Appellants were attached for further investigation. It was alleged by Madam Choi that the first Appellant said to her when meeting her that an arrest would probably have to be made on her since she failed to make a report to the police not until long after she had picked up the memory card. Subsequent to what was said she was even taken outside the police station by both Appellants where the first Appellant suggested she leave with the memory card and lodge her report at another police station, but that she should falsely claim she had discovered the card the day before. The first Appellant even suggested to Madam Choi that the memory card should be destroyed, whereupon she agreed and the card was finally split into halves.

4. Madam Choi said that during the entire course the second Appellant had been staying by the entrance of the police station and not until the first Appellant asked her about her purpose of bringing the memory card to the police station did the second Appellant interpose and ask, “Exactly! What’s your purpose? What do you actually want?”

5. The particulars of the charge against both Appellants were that they  “in the course of or in relation to the public office, without reasonable excuse or justification, wilfully misconduct themselves by (i) threatening to arrest [Madam] Choi and persuading her to leave Wan Chai Police Station without lodging any reports; (ii) suggesting that [Madam] Choi should make an allegation which they knew or believed to be false when making a report to the police officers of other police stations, namely that a digital memory card was found just one day prior to the report of the matter; (iii) destructing a digital memory card provided by [Madam] Choi; and (iv) failing to make a record in respect of the visit of and the report made by [Madam] Choi.”

6. In response to Madam Choi’s allegations, both Appellants in their respective record of interview given voluntarily to the police admitted that they had met Madam Choi on the material date to investigate the matter and spoken to her outside the police station but they denied having ever allowed themselves into the commission of any misconduct as specified in Madam Choi’s allegation. The first Appellant pointed out in his record of interview that on the day after he had explained to Madam Choi the need to have a statement in detailed form taken from her concerning the case for which she was trying to lodge a report, Madam Choi became hesitant and undecided on whether she would give such a statement or not and asked to go outside the police station to consider the matter. Subsequent to that, she demanded the return of the memory card as well as the card reader from the Appellants, and then left. According to the second Appellant who had examined the content of the memory card using the card reader, there were in the memory card only photos taken from behind some sexually dressed females that carried no indecency at all.

7. None of the appellants gave evidence in the trial, nor did they call any witnesses.

Grounds of appeal

The 1st Appellant

8. Mr Wong for the first Appellant submits four grounds of appeal, which I would summarise as follows:

(1) The magistrate erred in finding that the record of interview taken from the first Appellant was“wholly exculpatory” whereas it was in effect a “mixed  statement”. Therefore, the magistrate failed to consider the truthfulness of the statement given by the first Appellant in his own record of interview;

(2) The magistrate failed to give due consideration of the inconsistencies and unreasonable matters in Madam Choi’s evidence which he had wrongfully accepted fully and entirely;

(3) The magistrate erred in failing to consider whether the first Appellant had any reasonable excuse in his defence; and

(4) The magistrate ignored the explanations given by both Appellants as to why there was the need to have conversation outside the police station and no record was made of Madam Choi’s report, as a result of which he drew an adverse inference against both Appellants.

The 2nd Appellant

9. The grounds of appeal submitted by Mr Ng for the second Appellant can be summarised as follows:

 (1) The magistrate failed to consider whether there was sufficient evidence to    prove that the second Appellant was in joint enterprise with the first Appellant;

 (2) The magistrate erred in finding that the record of interview made by the    second Appellant was a “wholly exculpatory statement”; and

 (3) The magistrate should not have accepted Madam Choi’s evidence since her evidence was inherently improbable.

Discussion

The 1st Appellant

10. Concerning the records of interview of the Appellants, the magistrate made the following findings:

“14. I have carefully considered the versions put forward by both defendants. First, the statements which they made in their records of interview were exculpatory, and accordingly I should consider only the reaction they gave under caution Besides, I am of the view that since when they had already indicated to her that a statement was required to be taken from her and they had intended to make arrangements for taking a statement, they should not have taken PW1 outside the report room for discussion. This was neither necessary nor consistent with the assertion of arrangements being made for taking a statement. I find that both defendants had failed to tell the truth in their records of interview. I eventually decide to refuse to accept their records of  interview as the basis of my finding of facts in this case.”

11. The magistrate considered that he treated the statements of both Appellants in their records of interview as “exculpatory statements”, and further that he “would direct himself to consider only the reaction given by both defendants under caution”. It is thus clear that the magistrate did not treat the records of interview of the Appellants as “mixed statements” in his consideration. The Appellants admitted in the records of interview on the one hand some of the allegations put against them by Madam Choi, such as that the three of them once had a conversation outside the police station, and denied on the other hand some matters of crucial importance.  It is obvious that the statement given by each of the Appellants in their respective record of interview was of the nature of a mixed statement. Mr Hui, SADPP for Respondent, did not dispute that. The magistrate had erred on this issue[2].

12. That said, however, the magistrate stated in the latter half of the same paragraph of his statement of findings that he had considered what the Appellants stated in their records of interview, and provided reasons why he refused to accept the Appellants’ accounts given therein as the basis of his finding of facts in the case.

13. Mr Hui submitted that although the magistrate had not found the Appellants’ records of interview to be of mixed nature, his statement of findings indicated that he had in substance considered what the two Appellants said in their records of interview as if they were mixed statements.

14. Both the Court of Final Appeal and the Court of Appeal had made observations in Li Defan[3] and Poon Hoi Wing[4] respectively on how a mixed statement should be dealt with. Both the inculpatory and the exculpatory parts of a mixed statement are admissible as evidence of their truth but the inculpatory part will be given a greater evidential weight than the exculpatory part. This is an approach that is completely different from that in respect of a statement considered to be entirely exculpatory. A solely exculpatory statement, putting it at the highest, can merely be used in considering the reactions of the defendant when he was first confronted with the allegations.

15. The magistrate gave reasons to say that he found the two Appellants had not told the truth in their records of interview, following which, he stated, “I eventually decide to refuse to accept their records of interview as the basis of my finding of facts in this case.” I am of the view that the magistrate was not evaluating the probative value of the Appellants’ statements in their records of interview. Rather the magistrate was only stating that he disbelieved their statements as part of his reasons for refusing to accept the said evidence. I therefore do not agree with Mr Hui’s submission that the magistrate had in substance considered both Appellants’ statements given in their records of interview.

16. All the more important is that the grounds put forth by the magistrate for disbelieving both Appellants were far from convincing. The magisrate’s basis was that he found their act of taking Madam Choi out of the report room for discussion to be inconsistent with their assertions on other aspects. However, the Appellants had never stated in their records of interview that they “took” Madam Choi “out of” the report room, rather it was Madam Choi asked on her own that she would like to go out of the police station to consider the matter.

17. The magistrate in his consideration of Madam Choi’s evidence had also raised the matter of the two Appellants dealing with the case outside the police station for the purpose of rejecting the Defence’s contention that the alleged destruction of the memory card was inherently improbable:

“With regard to the allegation by the defence that [Madam Choi’s] evidence wasunreasonable, including the suggestion that it was inherently improbable that the first defendant asked that the memory card be destroyed, I disagree with that. In my view, the two defendants, by not handling the case inside the police station, had manifested their intention to get rid of the case, and want to deal with it by improper means outside the police station. Destroying the memory card is a way to ensure that the matter would come to an end, that PW1 would not continue to pursue the matter. This is also a way to bring the matter to an end. This is consistent with the first defendant indicating repeatedly his intention to arrest PW1 and telling her to make a report at another police station. The first defendant acted with the purpose of not handling the case and he used different ways to get rid of and not handle the case. Accordingly, destroying the memory card was not against the inherent probabilities. Having considered all the matters, I find PW1 to be an honest and reliable witness. I do not consider that there was any reasonable doubt in her evidence. I accept her evidence to be the basis of my finding of facts.”

18. Therefore, if the magistrate had properly and correctly considered both Appellants’ statements in the records of interview, one cannot rule out the possibility that the magistrate may regard those statements capable of casting doubts on Madam Choi’s evidence.

19. Accordingly, I find that the error made by the magistrate in the matter of dealing with the records of interview of both Appellants is sufficiently serious to cause the convictions to be unsafe.

20. In respect of Ground 2 of the grounds of appeal raised by the first Appellant, I do not find any contradiction or unreasonableness in the parts of the testimony of Madam Choi that Mr Wong had listed out. With the exception of the aforesaid error made in dealing with the records of interview of both Appellants, I am of the view that the magistrate did not err when he considered and accepted Madam Choi’s evidence.

21. I agree with Mr Wong that, as far as Ground 3 is concerned, even assuming that the magistrate accepted Madam Choi’s version, the court was still obliged to examine the evidence in the case to find out whether there existed any reasonable excuse or justification for the Appellant’s acts. However, I cannot find any reasons which the first Appellant could possibly have advanced as a reasonable excuse or justification for his acts of persuading or urging Madam Choi to make a report at another police station and tell lies, and destroying the memory card concerned.

22. I hold that Grounds 2 and 3 raised by the first Appellant are not substantiated.

23. Ground 4 of the first Appellant actually forms part of Ground 1 in his grounds of appeal.

The 2nd Appellant

24. On the basis of the analysis above as to how the magistrate had dealt with the records of interview, Ground 2 of the second Appellant’s grounds of appeal must succeed.

25. Besides that, I also find Ground 1 advanced by the second Appellant forceful and convincing.

26. In the course of finding both Appellants guilty of the offence, the magistrate had not explained separately the reasons for convicting each of them. Taking the evidence of Madam Choi on the whole, it was the first Appellant who had all along been talking to her. No matter whether it was the moment when she was threatened with arrest, or the moment when she was told to make a report at another police station and tell lies, or the moment of the alleged destroying of the memory card, it was the first defendant who had committed all these alleged acts. The extent by which the second Appellant had participated was no more than the single sentence (see paragraph 4 above) which he allegedly uttered outside the police station.

27. The statement of findings indicates that the magistrate had all along taken both Appellants together when he considered the case and when he came to his verdict, he stated:

“26. I have carefully considered the evidence of PW1, PW3, PW4 and PW5. I find both defendants have misconducted themselves by committing the acts alleged by the prosecution. The notebooks of the two defendants show that they did not mention at all the visit of PW1; no record was made of the visit. I am of the view that the two defendants did not want to handle PW1’s case at all and used different ways to get rid of the case. I am also of the view that their conduct was in contravention to their police duty of being obliged to handle the case and they had in fact misconducted themselves and made no relevant records. Handling the reports and complaints lodged by citizens is a basic duty of police officers. The two defendants had not discharged this basic duty. Therefore the misconduct committed by both defendants was not trivial but a very serious breach of duty.”

28. Taking the second Appellant’s conduct alone, the only act committed by him which could possibly have been alleged as a breach of duty was his failure to record the report lodged by Madam Choi and stop the first Appellant from engaging in misconduct but if that is all which the prosecution alleged against him, I do not find it sufficient enough to constitute the offence of “misconduct in a public office”. That said, this in any event was not the foundation of the charge laid against the second Appellant by the prosecution either.

29. Obviously, the prosecution case was that both the first and the second Appellants participated in a joint enterprise which, however, was never discussed or analysed either factually or legally by the magistrate, who on the contrary, just dealt with both Appellants’ case together on a common basis.

30. I am reminded by Mr Hui that the magistracy appeal is an appeal by way of rehearing and he requests me to assess the evidence on my own to come to a conclusion as to whether the second Appellant is proved to have participated in the joint enterprise. Mr Hui submits that there were lots of opportunities for both Appellants to have contact with each other during the period when Madam Choi waited for them in the report room, in the meantime of which both Appellants probably had communicated and finally they jointly committed the alleged acts of misconduct.

31. To better capture the idea of what the two Appellants were doing during the aforesaid period, at the hearing of this appeal I watched the relevant CCTV tape of Wan Chai Police Station to see where each of both Appellants had been or stayed at the time after Madam Choi arrived at the report room. The footage, however, shows only that the second Appellant stayed most of the time in a room examining Madam Choi’s memory card, and that while the second Appellant met the other Appellant during the said period in a larger room, those encounter(s), as far as they can be seen, lasted for no more than a minute, and their conversation in the report room was no more than 30 seconds. Not to mention, I can by no means tell what the contents of their conversation were since the CCTV had no function of audio-recording.

32. The first Appellant was the supervisor of the second Appellant. The first Appellant was not obliged to report to the second Appellant how he dealt with a case. Although the second Appellant was present outside the police station when the first Appellant committed the alleged misconduct there, there was insufficient evidence to prove that the second Appellant had the knowledge that the first Appellant would commit such misconduct.

33. Not only do I find the magistrate had failed to analyze or make findings on the matter of whether the second Appellant had participated in the joint enterprise but I also find the prosecution had indeed failed to adduce sufficient evidence to positively prove that both the first and the second Appellants had participated in the joint enterprise.

34. For the aforesaid reasons, both Appellants’ appeals are allowed. I order that the conviction and sentence be set aside, and I would now hear submissions on the issue of retrial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.

[1] Contrary to Common Law and punishable under s.101I of the Criminal Procedure Ordinance, Cap.221.

[2] HKSAR v Wong Chi Wan [2006] HKEC 600.

[3] Li Defan & Another v HKSAR [2001] HKEC 853.

[4] HKSAR v Poon Hoi-wing [2001] HKEC 128.