HKSAR v. LEUNG KA YIN

CACC 225/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 1999

(ON APPEAL FROM DCCC 1386 OF 1998)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court) :

1. This is an application for leave to appeal against conviction. The defendant was convicted of the following two offences by His Honour Judge de Souza on 24 March 1999:

(1) that he had on or about 5 November 1998, at the office of Sun Fook Kong Construction Site, Phase 4, Area 102, Tin Shui Wai, Yuen Long, New Territories, in Hong Kong, claimed to be a member of a triad society, namely, the Sun Yee On Triad Society, contrary to s.20(2) of the Societies Ordinance, Cap. 151; and

(2) that he on or about 5 November 1998, at the same place referred to above, with a view to gain for himself, made an unwarranted demand of allowing him to run a canteen in the said construction site from LI Chiu-wing, with menaces, contrary to s.23(1) and (3) of the Theft Ordinance, Cap. 210.

Facts found by the Judge

2. In his Reasons for Verdict, the Judge found a number of facts being proven.

3. On 23 October 1998, several men entered the construction site referred to in the charges. One of them identified himself as a "tor tei" (local bully) and requested to see the site agent. The site agent was not there; so the man left with PW2, CHEUNG Fai-keung, an employee at the site, a piece of paper with a name "Ah Wai" and a telephone number written on it. He instructed PW2 to ask the responsible person to call. PW2 left a message to PW1, LI Chiu-wing, with the information copied from the piece of paper.

4. On 26 October 1998, PW1 called the number. He spoke to a person who identified himself as "Ah Wai" and claimed to be a "tor tei" of the Sun Yee On from the Tin Shui Wai and Yuen Long areas. This person demanded that he operate the canteen at the construction site, or else he would set fire at the site. PW1 then reported the matter to the police.

5. On 27 October 1998, PW1 went to the Yuen Long Police Station and made a statement. At the police station, as instructed by the police, he called the number and told the person Ah Wai that he would get back to him in a few days.

6. On 4 November 1998, two men came to the site. They spoke to PW3, LI Kin-hang, and asked to see the responsible person. PW3 told them that the person was not there. One of the men wrote down a pager number on a piece of paper and told PW3 to ask the person to call Ah Wai. After learning about this visit, PW1 informed the police and went to the Tin Shui Wai Police Station. There he called the pager number. Ah Wai returned his call. They arranged to meet later that day, but the meeting did not materialise and was postponed to the next day, 5 November.

7. On 5 November, DSPC 16808, posing as a member of the staff at the constriction site, waited with PW1 in the site office. Other police officers took up surveillance posts around the site.

8. At about 3 pm, four persons drove into the construction site. They went into the site office. When PW1 rose to meet them, the defendant told his companions to leave and wait in their vehicle. The three men then left the defendant behind. He asked PW1 if he was Mr Li. PW1 inquired from the defendant as to how he would like to be addressed. The defendant replied that he was called Ah Wai and immediately suggested that they should go straight to the point. The defendant then said he was Sun Yee On and demanded to have the right to run the canteen at the site or he would burn it down. PW1 then raised the subject of problems they were recently experiencing from trouble-makers at the site. The defendant responded that he should have no worry if they were allowed to "look after the place". More particularly, he said, "if you have got us the Sun Yee On 'tor tei' to look after it, you don't have to be afraid of that". Then, there followed a brief exchange of about what assurance against further trouble could be given. These facts as found by the Judge were the bases of the convictions of both charges.

The ground of appeal

9. The defendant has raised, in substance, only one ground of appeal. It is that the Judge erred in that he wrongly directed himself upon the manner in which he should evaluate the evidence of witnesses and/or wrongly took into account irrelevant considerations when he was evaluating the evidence of the police officers involved in the investigation and/or wrongly regarded the police officers involved in the investigations as a special category of persons as distinct from other members of the public or witnesses when he evaluated the evidence and/or wrongly considered that police officers were less likely than other members of the public to tell lies. The passage complained of in the Judge's Reasons for Verdict is as follows:

"In relation to the defence suggestion that the police involved in the investigation had gone beyond their duty to help out an old friend and former colleague and resort to perjury in the process, I find it difficult to believe or accept. They had nothing to gain while risking their careers and possibly exposing themselves to prosecution. This is the more so as, having considered the testimony of the police officers, particularly DSPC 16808, I find that they have each given truthful accounts of what they had done."

10. This ground has been crystallised in the skeleton argument of Mr Grounds, for the defendant, in that police officers are not in any special category as witnesses so that they are less likely to be telling lies by virtue of their position or indeed by virtue of the consequences which may or will flow from their giving false evidence. It is submitted that the Judge wrongly considered or entertained the notion that the police witnesses were in a special category and/or that "police impropriety is a rarity and that it could safely be disregarded as a highly improbable occurrence ...".

The law

11. Reliance is placed mainly on two decisions of this Court, differently constituted. In R v WONG Kim Wah and Anor [1993] 2 HKC 305, at 310I to 311C where the trial judge in his summing-up to the jury said:

"Some people can get very excited when it comes to police brutality. Some people can be very emotional about such a matter. I ask you not to be and please do not be affected by what you might have seen on television or in movies as they may not be real. You may think that the police are not always the most popular people around until perhaps their assistance is required. You may feel that there had been incidents of misconduct by police here in Hong Kong as elsewhere in any civilized world, but you may also feel that most police do a difficult and thankless task involving long hours and heavy responsibility. Being a disciplinary force, they have strict rules and regulations to follow.

Was it possible that the police party would assault the defendant in the street and on board the police vehicle at the scene of crime when, on the evidence, there was quite a crowd gathering, and in fact when there were, according to a witness, ten to 20 journalists taking photographs? Is it possible that the defendants, in particular the second defendant, had been so brutally assaulted by the police? And despite such brutal assaults the matter was not pursued?

If the allegation that the second defendant was not fingerprinted at all on 13 April 1992, if such allegation was correct, it would mean not only did the police lie on such matters, but they actually falsified written records on such matters."

Penlington JA, giving the judgment of the Court of Appeal, said at p.311 D-I:

"There is clear authority that it is wrong to compare the evidence given by police officers with that given by other members of the public or by the defendants themselves on the basis that police officers are less likely to be telling lies: R v Culbertson (1970) 54 CrAppR 310; R v Fisher (1983) CrimLR 486. That, however, was the clear implication when the judge referred to the police officers as being members of a disciplinary force with strict rules and regulations to follow. Nobody would disagree with his comments that most police officers have a difficult and thankless task involving long hours and heavy responsibility, but those are not matters to be considered by the jury. They should consider the evidence of police officers in the same way as that of any other witnesses. This matter came before this court recently in R v Mok Wing Hung (CrimApp 404/90), where the trial judge commented on the police evidence and said that the jury should consider whether police officers would risk their career by behaving in the way that they were alleged to have done and by then coming to court to commit perjury. We said:

'It has been said on many occasions that a trial judge is entitled to comment and to comment strongly on the evidence, provided that he makes it clear to the jury that questions of fact are entirely for them. We are satisfied, however, and with some reluctance in view of the Crown's evidence, that, here, the judge went too far and that his remarks, coupled with the comments made by Crown counsel in his closing address, that the jury may have been inhibited from giving the apparent evidence the impartial view to which it was entitled.'

We feel that similar considerations apply here. Again, with some reluctance in light of the Crown evidence, we consider that this conviction is unsafe and the application for leave to appeal against conviction is allowed. We treat this as the hearing of the appeal and quash the conviction.

The Crown having applied for a retrial, we order that the appellant be retried on a fresh indictment."

12. The defendant also places reliance on The Queen v TAM Chun Fai, CrimApp 663/1993 (4 August 1994, unreported) where the trial judge uttered the following passage in his summing-up to the jury:

"As to police impropriety which has been fully addressed to you by defence counsel, well, there may be occasionally - occasionally, very rarely, that you may have heard of police impropriety. But is it likely, in this case, that no less than six of them in the party would engage in a conspiracy to frame up the defendant out of no motive at all?

If they were to embark on some impropriety, would they do it with a party of six? And if they had framed up the defendant, would they be so daring as to publicise it, saying that we have got a big haul of drugs worth about almost $20,000? For what glory should they publicise the catch if it is a frame-up?"

Macdougall VP, delivering the judgment of the Court of Appeal, said:

"We agree that the effect of this passage was to deny the applicant a fair trial. There is a real danger that the jury may have understood from the deputy judge's opening sentence that police impropriety is a rarity and that they could safely disregard it or at least treat it as being a highly improbable occurrence in the present case.

In the next sentence the deputy judge told the jury, in effect, that the police could have no motive for conspiring to frame the applicant. The applicant's defence was that he had been framed by the police. Since the jury would naturally conclude that the police would not engage in impropriety unless they had a reason to do so, the judge's comment was tantamount to telling them that they could safely dismiss the applicant's defence."

The court concluded that the cited passage of the trial judge was so unbalanced that the defendant was denied a fair trial. The conviction was quashed and a retrial was ordered.

13. Mr Blanchflower, for the respondent, on the other hand, in his written submissions, draws our attention to two authorities of this Court for comparison purposes with the above cases cited for the defendant. In HKSAR v Lam San-yau, CrimApp 775/1997 (8 July 1998, unreported), where the following passage appeared in the judge's summing-up to the jury:

"The allegations the defendant makes are very serious ones in relation to the police because obviously the police, if they behaved in the way the defendant said they did, are guilty of criminal offences. They are guilty of a conspiracy to pervert the course of justice, by taking an innocent man and framing him with the possession of the quantity of drugs that they either found in the rubbish room of the 16th floor or found somewhere else at Block 40. So, they are very serious allegations and that is why you have to pay particular attention to what the police officers have said in their evidence."

Delivering the judgment of the Court of Appeal, Mortimer VP said:

"If there is any point to be made by Ms Panesar on this passage, it is that the judge unnecessarily categorised the alleged police behaviour as serious crime. Although it can be said that it is better if judges do not refer to such as allegations of crime because of the consequences which an intelligent juror could possibly take into account, the principle which we have to apply is simply this. A judge must never put a witness, police or otherwise, into a special position before a jury. In other words, he must not indicate to the jury that a witness is one who would not lie because he would put his career at risk or for any other reason. He must not put a witness out of the reach of the jury's criticism. We have been reminded of what was said in R v Mok Wing-hung (1991) 2 HKC at 145 which deals with comments which are fatal to a conviction for this reason.

The judge made these comments in order to focus the jury's attention on the central issue. But there was no question of her putting the police witnesses in a special position or out of the reach of the jury's judgment. There is no suggestion that there were reasons why the police would not lie. There is no reason for this Court to give leave to appeal on this ground."

14. In The Queen v CHIU Hung Wong, CrimApp 161/1994 (3 February 1995, unreported), the trial judge said in summing up to the jury:

"Now the allegations that the police officers have together lied and produced false evidence are most serious. The seriousness of the allegations does not necessarily mean that the allegations can't be true. It is however a factor which you may bear in mind. Would the officers go so far as to risk disciplinary proceedings and even charges if found out? I am not saying that they must be telling the truth, that's a matter for you and you should consider all relevant factors."

Macdougall VP, delivering the judgment of the Court of Appeal, said:

"However, the observation made by the deputy judge in the instant case was similar to that made by the judge in R v Wellwood-Kerr [1978] CrimLR 760:

'You may even wonder if this officer would be so stupid as to risk his career in manufacturing evidence of the sort that this defendant says he has.'

The Court of Appeal, consisting of a particularly strong bench of Roskill LJ, Ackner and Stocker JJ, dismissed the appeal, holding that there was no material irregularity. The Court went on, however, to stress that it was desirable to avoid comments of this sort.

While we too disapprove of such comments and take this opportunity to remind judges to avoid making them, we do not consider that what the deputy judge said went as far as the observations made either in the Hong Kong cases to which we have referred or in R v Culbertson (1970)54 CrAppR 310 and R v Fisher [1983] CrimLR 486. The deputy judge's observation, although undesirable, did not render the verdicts unsafe or unsatisfactory."

15. From the authorities referred to above, it can be discerned:

(1) that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted for a criminal offence or a serious criminal offence, or liable to lose his job;

(2) that a trial judge must not indicate to the jury that the police as a category or otherwise are unlikely to fabricate evidence, or are more unlikely than other witnesses to fabricate evidence; and

(3) that words which may lead the jury to believe that the police are less likely to tell lies, or give any due weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.

The present case

16. In the present case, which was a trial before a District Judge alone without a jury, the above cited authorities are not particularly apt, because he is a professional judge, most unlikely to think that the police are less likely to lie than other witnesses. His position must be treated differently from that of a jury who have little legal training or experience in dealing with testimonies of witnesses.

17. While the Judge trod almost the same path as the trial judges in the authorities cited by referring in the passage complained of to the consequences of the police witnesses in the present case fabricating evidence, he was dealing with the defendant's suggestion that the police involved in the investigation of the case had gone beyond their duty to help out an old friend and former colleague, i.e., PW1, and resort to perjury in the process. He found the defence suggestion difficult to believe or accept. In fact, throughout his Reasons for Verdict, the Judge only expressly placed great reliance on the evidence of PW1 and DSPC 16808. DSPC 16808 was the only police officer whose testimony had any bearing on the convictions. The Judge dealt with the evidence of PW1 independently and found him to be a truthful witness. PW1 was a former police officer who had been a member of the District Anti-Triad Squad. He was dismissed from the Police Force after being convicted of bribery. The Judge also took into consideration that PW1 and his wife were directors of a company which eventually ran the canteen at the construction site. He warned himself of all these criticisms of PW1 when assessing the veracity and reliability of his evidence. Despite all these complaints about PW1, the Judge found him to be an impressive, truthful, unexaggerating and convincing witness. This founded the convictions.

18. Separately, the Judge also found DSPC 16808 to have given a truthful account of what he witnessed. The Judge found as a fact that what happened at the meeting at the site office on 5 November 1998 was as described by both of these witnesses.

19. Despite the passage complained of, we are not satisfied that it had affected the Judge's assessment of the witnesses or the evidence in this case as to make the convictions unsafe or unsatisfactory. He never used words to put the police witnesses in this case in any special position or out of the reach of his own criticism. He never compared the police evidence with the evidence given on behalf of the defence. He never said the police witnesses were less likely to lie.

20. Moreover, apart from the defendant's suggestion of the police witnesses fabricating evidence against him, the defence was borne out by the only witness called by the defence, DW1, Mr LAI Kin-sing. The defendant did not testify. The Judge examined Mr Lai's evidence, which is to the effect that on 5 November 1998 he had an appointment to meet with the defendant at another construction site of Sun Fook Kong Construction Co. Ltd, a site different from, albeit near to, the site mentioned in the charges. The defendant did not turn up for the meeting. What the evidence suggested was that the defendant went to the wrong site (the site mentioned in the charges) instead of the proper site to meet with Mr Lai. The Judge took little trouble to dismiss the evidence. In our view, this evidence conflicts head-on with the suggested frame-up, because it is inconceivable that the police witnesses would be so quick to frame the defendant when unexpectedly he happened to be at the wrong place and at the wrong time. The Judge was not satisfied with the identification evidence that the defendant had been present at the site or had had telephone contacts with PW1 on any date prior to 5 November 1998. If the police witnesses and PW1 were framing the defendant, it would be almost impossible for them to have anticipated that the defendant, with whom they had not had any dealings before, would come to meet PW1 on that day at the site office. The ability to frame the defendant in such circumstances would amount to a sudden reaction by DSPC 16808 and PW1 to a totally unexpected opportunity. Therefore, however undesirable the passage complained of, what the Judge said about the consequences of a fabrication of evidence by the police witnesses is almost irrelevant in the light of the defence evidence.

21. Notwithstanding, we must take this opportunity to remind judges that it is undesirable to mention, let alone emphasise, consequences of fabrication of evidence that a witness may face, whatever job or position the witness does or occupies. Indeed, whether a witness is a police officer does not matter. Whenever a person bears false witness, he is liable to be prosecuted for perjury and if convicted, likely to lose his job. It is generally purposeless to make this kind of comment either in a verdict or in a summing-up to a jury, because the consequences from giving false evidence affecting the witness' criminal liability, career or reputation are normally not a fact-finder's proper concern.

22. In the circumstances, the application is dismissed.