THE QUEEN v. LOK MAN CHIU

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J U D G M E N T

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Power, J.A.:

1. The applicant faced four charges at trial. The first two were charges of living on the earnings of prostitution and assisting in the management of a vice establishment. These offences were alleged to have occurred on 11th April 1989 and both were said to have been committed at Kam Sha Villa, 330 King's Road, 2nd floor, Block A_, North Point. He faced two further charges: one of living on the earnings of prostitution and the other of managing a vice establishment. These were said to have been committed on 19th April 1988 at Block A and C, 2nd floor, Mei Do Building, 330 King's Road, North Point.

2. After trial before Deputy Judge Gould the applicant was found not guilty of the first two charges but was convicted on the 2nd charge of living on the earnings of prostitution and on the lesser charge of assisting in the management of a vice establishment. He was sentenced to imprisonment for six months on each charge, the sentences to he served concurrently. He now appeals against those convictions.

3. When coming to his conclusions of guilt the trial judge made the following observation:

"The Prosecution case, on the 5th and 6th charges must stand or fall, as I have intimated earlier, on the evidence of PW7 alone, excluding the evidence of PWs 5 and 6."

The 5th and 6th charges were the charges on which the applicant was found guilty. PW7 was P.C. 45188 and PW5 was P.C. 14045. These were the two undercovered police officers who had gone to the premises in order to establish that it was being used as a vice establishment.

4. The first ground of appeal, and this is the only one to which we addressed ourselves as it was unnecessary in the light of the attitude we took to this ground to go on and consider the other six grounds, reads:

"1. The learned Judge erred in fact and law, in after rejecting the evidence of PW5 which was to the effect that he had collaborated with PW7, the learned Judge accented inconsistently, that PW7 had not collaborated with PW5. In the, circumstances, the learned Judge should have rejected the evidence of PW7 which was substantially indistinguishable from, the evidence given by PW5, particularly as the learned Judge ruled that the only evidence to support the charges came from PW7."

5. The record shows that when PW5 was cross-examined he admitted that in his statement recording the events of the evening which be made after he returned to the police station he had written: "14045 and I^" i.e. using his own number, and not, as he should have, that of his colleague 45188. The trial judge's findings as regards this matter were as follows:

"The fact that PW5 wrote his own number on his own statement lends credence to the Defence allegation that PW5 and PW7 had to the extent of collusion with each other. It is not credible that PW5 would get mixed up about his own number; police officers are proud of their own number, and use numbers familiarly, as can be seen when a police officer slips off a string of numbers in the witness box to refer to his colleagues. In a sense there was a double chance to correct this skip, immediately after it was written. If he had not been alerted when writing '14045' as a reference to hrinself, he should have been alerted when he wrote 'and I' (if he thought he had alrcady made a reference to himself). I cannot find that PW5 did copy from PW7's statement; but there is a strong likelihood that hd did. In any event, I find that PW5 for his part did collaborate with PW7 to a greater extent than he admitted."

6. We have here a finding by the trial judge of "a strong likelihood" that PW5 had copied from the statement of PW7. Because of this the trial judge went on to say:

"I cannot rely on any of the details of PW5's evidence."

His findings as regard PW7 were:

"There is no evidence that PW7 copied from PW5, or that he allowed his statement to be copied by PW5. There is evidence that, he collaborated with PW5 about time. This kind of collaboration was not regarded as sinister in Lo's case, and I do not regard it as sinister here. I find PW7's evidence reliable, notwithstanding the collaborations, and notwithstanding the 'discrepancy' ($350) with PW5's evidence ($380). As indicated above, I did not find PW5's evidence reliable."

7. The trial judge was, in effect, finding that if PW5 had copied from a statement of PW7 as was a strong likelihood, it was without the knowledge or permission of PW7. What we must do now look to the evidence of PW7 to see whether his evidence does admit of the possibility of such a finding. PW7 said at p.19 of the record:

"I remember making a statement at 2345. It was the first written record I made of the incident. When I made the statement I was in the same room as 14045 but we were seated apart. We only discussed about time, nothing else. I did not show him any part of my statement as it was completed. (Shown two documents). One is my statement of 2345 19.4.88 in my handwriting. The other is statement of my colleague 14045 made at 2358 19.4.88. There is no way 14045 could have access to my statement. When I finished a page of my statement, I signed my name on it. I handed my statement, the entire statement, to Inspector. It took me slightly over 1 hour to finish my statement."

8. The evidence of PW7 is that he and PW5 sat in the same room and wrote the statements for about an hour collaborating only as to time and that PW5 was not show his his statement while it was being made and that there was no way that he could have seen it thereafter. We are unable to understand how this version can co-exist with the likelihood which was accepted by the trial judge that PW5 had copied from PW7's statement. Given that the statement was immediately handed by PW7 to the inspector, if there was a copying it must, it seems clear, have been done prior to the handing over of the statement. The finding of the trial judge of a strong likelihood that there was a copying logically involves a strong likelihood that this did happen, i.e. that the copying took place before the handing over the statement to the inspector. Given the firm denial by PW7 that any such thing had happened, his evidence must he viewed with grave suspicion: Indeed the same suspicion that occasioned the rejection by the trial judge of the evidence of PW5. The trial judge failed, we are satisfied, to give proper weight to the fact that the evidence of PW7 was not simply that if PW5 copied from his statement it was without his knowledge. His evidence went much further than that. What he was saying in specific terms was that there had not been, and could not have been, any copying from his statement. Once the strong likelihood that PW5 did copy from his statement was accented then his evidence was inevitably suspect.

9. This conviction is, we are satisfied, unsafe for this reason and we therefore treat the hearing of the application as the hearing of the appeal and allow the appeal.