HKSAR v. CHAN HAU KIN DANNY

CACC278/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.278 OF 1999

(ON APPEAL FROM DCCC NO.68 OF 1999)

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J U D G M E N T

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Woo J. (delivering the judgment of the Court) :

1. The Applicant was charged together with four other persons and tried before District Judge Whaley. The five persons before the Judge faced four charges that involved claiming to be a member of a triad society and blackmail. The matter arose out of a report by a restaurateur to the police that protection money was demanded from him for his restaurant which was to be opened soon in Tsimshatsui. That demand took place on 15 October 1998 and it was made by D1 and D3. On that occasion, D1 also claimed to be a member of a triad society. As a result, the first charge was against D1 for so claiming and the second charge of blackmail was laid against D1 and D3.

2. Consequent upon the report to the police, the police set up a meeting at the Lobby Lounge of the Kowloon Shangrila Hotel on 16 October 1998 with those who made the demand. Two police officers disguised as employees of the restaurant accompanied the restaurateur to meet with two persons at the Lobby Lounge, namely D1 and the Applicant who was D2 at the trial. At the meeting, according to the evidence of DSI Williams and DPC 11434 (PW4), who were disguised as the employees, the Applicant claimed to be a member of a triad society and he and D1 both made unwarranted demands of $10,000 from the restaurateur and the disguised police officers with menaces.

3. While the meeting was taking place at the Lobby Lounge, on the mezzanine floor overlooking the lounge, there were other police officers including DSPC 13387 (PW13) who noticed the presence of three persons on the mezzanine floor who were paying attention to the meeting. These persons under the surveillance of the police were D3, D4 and D5 at the trial. After the meeting had gone on for 15 to 20 minutes, PW13 noticed that D5 used his mobile phone and spoke : "Police, move quickly." At the same time, PW13 noticed that D1 in the Lobby Lounge below was also talking over a mobile phone. PW4's evidence was that close to the end of the meeting, he noticed that D1 answered a call on his mobile phone and after briefly talking over the telephone, D1 asked those at the meeting : "Did you report to the police?"

4. The conversations at the meeting were conducted mainly in Cantonese and DSI Williams and the restaurateur had only a smacking of that dialect. PW4 had been instructed to and did act as a translator of what was said by D1 and D2 to his superior.

5. The Judge was of the view that PW4's evidence of the conversations at the meeting was crucial, because it was first-hand evidence as to what was said as opposed to the interpretation that DSI Williams was receiving. No doubt, the Judge relied on the evidence of PW4 to find the Applicant guilty of two charges, namely, the 3rd charge of claiming to be a member of a triad society and the 4th charge of blackmail. At the trial, the prosecution sought to produce the cautioned statements made by D4 and D5 in evidence. That was subject to objection and the admissibility of the confessions was inquired into. Eventually, the Judge was not satisfied that the confessions had been given freely and voluntarily and therefore he excluded those confessions. Thereupon, on the invitation of the prosecution, D4 was acquitted.

6. Despite the exclusion of the two confessional statements made by D5, the Judge found him guilty of the 4th charge of blackmail, on the basis of a joint enterprise to which he was satisfied that D5 was a party. The evidential basis of the 4th charge against D5 was that PW13 directly heard D5 warning D1 by means of his mobile phone about "Police, move quickly" while PW13 also observed D1 talking over a mobile phone in the lobby. That evidence of PW13 was corroborated by PW4 who testified that towards the end of the meeting D1 received a call on his mobile phone and at the end of that call he asked if anyone at the meeting had reported to the police. On top of this oral evidence, the Judge apparently also accepted the mobile phone records detailing the incoming and outgoing calls regarding D1's and D5's mobile phones.

7. Mr Kwok on behalf of the Applicant raised only one ground of appeal against conviction on behalf of the Applicant. The ground is based on the fact that when PW4 was giving evidence on the conversations at the meeting at the Lobby Lounge, he became unable to remember the exact words exchanged. He was then allowed to use the Pol. 155 form, which was a preliminary report of the case made by him, to refresh his memory. PW4's evidence about his record of the conversations is to the effect that he had made notes of events up to 19.22 hours on 16 October 1998 in his notebook while he was in the hotel. After the arrest of the suspects, PW4 returned with them to the Tsimshatsui Police Station. He was leaving the hotel at about 20.20 hours and arriving at the Police Station at about 20.33 hours. He said in evidence that he started to prepare the Pol. 155 about 10 minutes after his arrival at the Police Station, making the time about 20.43 hours. He first copied what was recorded in his notebook onto the computer which had the Pol. 155 form set. It took him 11/2 hours to prepare the Pol. 155. He also said in evidence that he made his notebook entries by copying from the computer. He made his notebook entries in Room 304.

8. On the other hand, PW13 gave evidence that he brought D5 into Room 304 at 20.56 to 20.57 hours. No one else was in the room. No other officer was inside the room or entered the room between 20.55 hours and 00.05 hours, during which he took two confessional statements from D5. PW13 also said that Room 304 was the duty office of his team that included team member PW4 and team leader DSI Williams. He also told the Judge one of the computers in Room 304 belonged to PW4 and throughout the time of his interview with D5, there was no question of PW4 staying in Room 304 working on the computer.

9. Mr Kwok submitted that there is a clear discrepancy or even a direct conflict between the evidence of PW4 and PW13 regarding their presence in Room 304, because if PW4 was telling the truth that he was preparing the Pol. 155 on his computer from 20.43 hours, and taking 11/2 hours to complete the form, PW13 could not have been telling the truth when he said that during the whole interview that he had with D5 between 20.55 and 00.05 hours, PW4 was not in Room 304. However, as the Judge obviously believed PW13 when convicting D5 of the blackmail charge as a party to the joint enterprise, relying on the evidence of PW13 of D5 calling D1 over the mobile phone, PW4's evidence of the conversations, which was mainly based on his memory refreshed from the Pol. 155, could not at the same time be believed by the Judge.

10. Looking at the evidence of PW4 very carefully, it can be seen that although he said he started to prepare the Pol. 155 about 10 minutes after his arrival at the Police Station at 20.33 hours, and that it took him 11/2 hours to prepare the Pol. 155 on his computer, he never mentioned that he used his computer in Room 304 : he merely said that he made his notebook entries in Room 304. Nor did he state the time when he made his notebook entries. In the absence of such precise evidence, we do not feel that the so-called discrepancy in or conflict of evidence relied on by Mr Kwok has been clearly made out.

11. Further, even if there was a discrepancy in the evidence as described, that would only go to the time or place at which the entries in the Pol. 155 were recorded. This discrepancy certainly does not impinge on the essential issue to be determined at the trial, namely what words were uttered by the Applicant at the meeting in the Lobby Lounge. Even without the Pol. 155 being used to refresh his memory, PW4 had prior to his request to look at his notes, described the meeting with D1 and the Applicant and that in the presence of the other participants in the meeting, D1 uttered a demand of $10,000 for the protection of the restaurant. Of course, after his reference to the Pol. 155, PW4 was able to provide more details of the conversations, including the Applicant uttering an unwarranted demand with menaces and also claiming to be a member of a triad society.

12. Even if there is a discrepancy in the evidence as described by Mr Kwok, we are not persuaded that such a discrepancy would affect the veracity or reliability of the evidence of PW4. The Judge had ruled the confessional statements made by D5 to PW13 inadmissible, on the ground he was not satisfied that they were given freely and voluntarily. That might have been caused by the evidence of PW13 relating to the cautioned statements which were taken in circumstances appearing not entirely satisfactorily to the Judge. That would not have derogated, and in our view does not derogate, from the veracity or reliability of PW13's evidence of what he observed and heard in the hotel. Far from it that PW4's evidence of the conversations at the meeting in the Lobby Lounge can thus be successfully attacked.

13. For the above reasons, we dismiss the application for leave to appeal against conviction.