In Re STEPHEN TSE

IN THE COURT OF APPEAL

1994, No. 122
(Civil)

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J U D G M E N T

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Nazareth, J.A.:

1. The appellant was committed to custody by a magistrate pending extradition. He applied ex parte, as is usual, for leave to issue a writ of habeas corpus. Wong J, before whom the application came, refused leave. The only record available of his reasons consists of the words "Too technical. Leave refused." The appellant now appeals against that Order.

2. The Governor's Order which led to the appellant being committed to custody specified the following crime:

"Stephen Tse, [i.e. the appellant] on the 29th day of December, 1998, did conspire with another person or persons to murder Dai Keung and Chao Va Meng, contrary to common law and section 5 of the Offences against the Persons Ordinance, Cap. 212."

3. The first ground of appeal that is pursued by Mr McCoy, for the appellant, is that the judge applied the wrong standard. The standard Mr McCoy submits should have been that propounded in relation to judicial review by this Court differently constituted in Re Ho Ming-sai [1994]1 HKLR 21:

"In considering whether to grant leave, the judge should have asked himself whether the material before him disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief claimed."

4. I accept that this accurately embodies what was said in that appeal by Kempster JA, as he then was, at pp.23 and 24 and by Godfrey J, as he then was, at p.31. Having not called upon Mr Bruce for the Government of the United States of America, we have not heard submissions to the contrary, and I will accordingly accept that as the test without deciding that it is necessarily the appropriate one, reserving it for argument in the future.

5. I turn then to address Mr McCoy's second point, i.e. the evidence does not disclose the offence of conspiracy to murder upon the standard I have just outlined. The applicant, he says, conceded, indeed somewhat unusually, admitted before the magistrate not the offence of conspiracy to murder, but incitement to conspiracy to murder. Mr McCoy submits that the evidence, while it might support the charge admitted, does not support the charge of conspiracy. I do not find it necessary to go into the nice distinctions between the offences of incitement and of conspiracy. Mr McCoy did assist the Court in relation to the distinction canvassed in at least one authority. I find it sufficient to simply proceed directly to the evidence.

6. This is contained in the affirmation of one Albert Cheung. I need refer only to the substance of the material part of that evidence which was read to us. Albert Cheung deposed that he knew the appellant. He was the leader of the Ping On gang (which was frankly conceded by Mr McCoy to be a triad society). Albert Cheung said he also was a member of the gang. Chao Va Meng had also been a member but had left. He and Dai Keung, who were members of a rival gang, challenged the authority of Ping On. The appellant learnt that the two had collected money from Albert Cheung and another member of Ping On. He was incensed. He instructed another member called Michael Kwong to provide guns to Ping On members, Jimmy Soo Hoo and Kwok-wah Chan. Michael Kwong gave his keys to Ping On member, Cheuk Man Tsang, who left the restaurant, went to Michael Kwong's car which was parked across the street.

7. The appellant ordered Jimmy Soo Hoo and Kwok-wah Chan to find Dai Keung and Chao Va Meng and kill them immediately. Albert Cheung saw Cheuk Man Tsang take out one or two bags from Michael Kwong's car, return to the restaurant and hand them to Michael Kwong who gave them to Jimmy Soo Hoo and Kwok-wah Chan. The appellant told the latter to take the gun upstairs and load them. They went off.

8. The appellant then sent for Danny Chao from where he worked nearby. When he arrived, the appellant told him that the Ping On gang was going to kill his brother because the latter had betrayed the Ping On.

9. Jimmy Soo Hoo and Kwok-wah Chan returned a few minutes later. The appellant asked if they were ready. Both said yes. The appellant then ordered them to shoot Chao Va Meng and Dai Keung. He told them where the two could be found nearby. They left with guns they referred to as "heavy metal", the expression the gang used for automatic weapons. Thereafter there was heavy automatic fire in the vicinity of the club at which Chao Va Meng and Dai Keung were employed.

10. The peripheral evidence need not be detailed. Suffice it to say that it lent credibility to the charge of a conspiracy to murder the two named men.

11. Mr McCoy submits that what transpired here was that the two men accused were "ordered", and that in describing this, the word "instructed" was also used. He submits that what was deposed to was a person with high authority in a triad gang ordering two others to go and kill someone. That, he says, is clear evidence of incitement of those to agree to go and kill, not an agreement to murder. However, it seems to me that this evidence, viewed realistically, is evidence on which the magistrate could commit. That it might be argued that it could also support a charge of incitement does not, in my view, alter the fact that the evidence was such the magistrate could clearly come to the conclusion that it was sufficient to commit the appellant on a charge of conspiracy to murder. In my view, the evidence clearly discloses a prima facie case of conspiracy to commit murder. It is not necessary that the participants should utter words showing that they agree. I am satisfied there is no merit in the second ground.

12. Reverting to the first ground, I am not necessarily persuaded that the judge did apply the wrong test. A record so brief does not set out all or even the actual process by which the judge came to his conclusion. But if he did misdirect himself as contended, then it is open to this Court to discharge the function the judge should have. For myself, I am satisfied that the evidence is clearly sufficient to disclose a prima facie case, one upon which the magistrate could commit. Upon that basis, the first ground also fails.

13. In terms of the test adverted to earlier, I am satisfied that the material before us simply does not disclose matters which on further consideration might demonstrate an arguable case on either of the first two grounds; significantly although this point was addressed, there was no suggestion of that possibility.

14. Proceeding to Mr McCoy's third ground, this turned upon the ruling the magistrate apparently made, i.e. that the appellant could make an unsworn statement before him. The matter arose in this way. The magistrate was invited to give a ruling as to whether the appellant could make an unsworn statement. That, Mr McCoy explains, resulted from the fact that in a similar case, apparently a magistrate had decided that an alleged fugitive could give an unsworn statement. Upon being so invited, the magistrate here indicated that that appellant could make an unsworn statement. The appellant then elected to make no statement at all! I would accept for the purposes of Mr McCoy's submission, that the ruling was that it was lawful to make an unsworn statement. It should be said that statutory provisions empowering this appear to have been only partly repealed. Mr McCoy says that ruling put the appellant in a dilemma. He then had to decide whether to give an unsworn statement or a sworn evidence. Mr McCoy has taken us through the relevant provisions. Interesting as they are, I see no reason to work my way through them, for the simple reason that I cannot see how the situation as outlined in any way prejudiced the appellant, or can found the basis of a rational challenge to the proceedings before the magistrate and to his decision.

15. At the end of the day whatever view the magistrate took, the appellant chose not to give evidence. If the magistrate was wrong, I cannot see what possible difference it would have made or how it could have invalidated the proceedings. Upon that basis, this ground of Mr McCoy's must also fail, and with it the appeal which I would dismiss.

Litton, J.A.:

16. I agree and I have nothing to add.

Penlington, J.A.:

17. I also agree that this appeal should be dismissed.