THE QUEEN v. LEE KWONG YIN AND ANOTHER

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the court):

1. Lee Kwong Yin (D1) and Ma Yin Hing (D2) were tried in the High Court (Hooper, J. and a jury) on an indictment which contained 15 counts. At the time of the trial, which lasted most of the month of May 1990, D1 was a Detective  Police Constable. D2 was of the same rank out he had passed the Sergeants' promotion examination which would, in the normal course, have led to his promotion to that rank.

2. Before detailing the offences charged in the indictment, we mention that they arose out of a massive investigation, involving at one time 15 men and 25 charges, allegedly committed during the years 1984 to 1987. D1 originally faced 13 charges while D2 was accused of 18 offences.

3. The principal witnesses for the prosecution were Chung Nam Yun (PW1) and Fong Kai Yee (PW8) who both gave evidence under offers of immunity from prosecution. They were treated as accomplices in the fullest sense of the word and each had bad criminal records. The judge directed the jury that there was no corroboration of their evidence connecting the applicants with the particular offences charged against them. Neither appellant elected to give evidence or to call witnesses.

4. Chung (PW1) told the jury that he first met D1 at the end of 1982 or the beginning of 1983, when he was a 14 year old schoolboy. He was with a friend at the time who was intending to sell a bicycle he had borrowed from another friend to Chinese sailors at Sai Wan Ho Old Pier when they were stopped by D1 and two other plain clothes policemen. When the boys told their story they were threatened with arrest. Chung said that after he had begged for mercy, D1 had taken him aside and told him that he would be released if he agreed to supply him with information about crime. He agreed and was given D1's pager number.  At first he was unable (he said because of his youth) to come up with any information of the kind D1 wanted whenever D1 used to telephone him. One day at the beginning of 1984 he ran into D1 and when he told D1 why he could not supply information, D1 suggested that he should commit some burglaries with some of his young friends, and only they would be arrested. This was how it came about that nearly all the alleged offences were committed.

5. The indictment charged D1 alone with the following offences:

6. In the indictment, D2 was charged alone with the following offences:

7. D1 and D2 were jointly charged in Count 9 of the indictment, which was in these terms:

"                                       STATEMENT OF OFFENCE

Conspiracy to pervert the course of public justice, contrary to Common Law.

PARTICULARS OF OFFENCE

                LEE Kwong-yin and MA Yin-hing, on the 4th day of October, 1985 at Shaukiwan, in Hong Kong, conspired together with CHUNG Nam-yun [PW1] and FONG Kai-yee [PW8] to pervert the course of public justice, by allowing CHUNG Nam-yun to avoid arrest and prosecution for two burglaries that LEE Kwong-yin and MA Yin-hing, then believed he had committed, by falsely reporting the circumstances of and the background to the arrest of FONG Kai-yee for the burglaries of the Sai Wan Ho Market building on the 11th day of September, 1985 and the Wan Hing Metalware Company on the night of the 14th and 15th days of September 1985, intending thereby to pervert the course of public justice."

8. The judge's summing up concluded just before 1 p.m. on 24th May. The jury were out over night and gave their verdicts at 5.20 p.m. on the following day.

9. The jury found D1 not guilty of the offences charged in Counts 1, 2, 3 and 4 and D2 not guilty on Counts 5, 7, 8, 10, 12, 13, 14 and 15. However, they convicted D1 and D2 on Count 9, the only count in which they were jointly indicted. They also convicted D2 on Counts 6 and 11. The verdict on Count 9 was unanimous. The convictions of D2 on Counts 6 and 11 were by majority verdicts, respectively of 5:2 and 6:1.

10. D1 was sentenced to 2 years' imprisonment. D2 was sentenced to 2 1/2 years' imprisonment on Counts 6 and 9 and to 12 months' imprisonment on Count 11. The sentences on Counts 6 and 9 were ordered to run concurrently and the sentence on Count 11 was ordered to run consecutively to those sentences.

11. D1 seeks leave to appeal against conviction and sentence, while D2's application relates only to his convictions.

12. We first turn to the evidence led by the prosecution in support of the offence laid in Count 9 of the indictment of which both applicants were convicted. Chung (PW1) and Fong (PW8) had given evidence relevant to Count 8 (in which D2 alone was charged - and was acquitted by the jury) a burglary in mid-September 1985 of the Wang Hing Metalware Company in Shaukeiwan. They gave full details about this burglary. Among the items they stole was a watch. They met D2 at an aquarium operated by him in Chai Wan and D2 asked for and was given the watch as a gift for the information he had given to enable the burglary to be committed. A few days later, according to Chung's evidence, he and Fong met D1 and D2 at Sai Wan Ho as a result of a telephone request made by D2. There D2, in the presence of D1, told the youths that another group of police officers, starting from Shau Kei Wan police station, were making enquiries about the Metalwork Company burglary and the burglary at the Sai Wan Ho Market building (both mentioned in the particulars of Count 9) and that one or other of the two had to be arrested. According to Fong, D1 said that the other police officers knew that he and Chung had committed those two burglaries. Chung said that D1 told them that it was Fong's turn to "carry the can" since he, Chung, had "shouldered 9 counts". Fong's evidence was that when D1 had said that either one of them had to be arrested - if not, both would be, he had volunteered to be the one. Then Fong was taken away. Before D1 left with him, he told Chung to go to the Shau Kei Wan Police Station to wait for him there. There D1 gave Chung a statement to sign (Exhibit P129) which was dated 4th October 1985. Chung said that it was not a true statement and he had signed it because D1 had told him to. He himself had never been prosecuted for either of the two burglaries.

13. D1 is shown to have been the recording officer of Exhibit P.129. His name appears at the head of the statement, and his signature witnesses that of Chung (PW1). Chung is recorded to have said:

"Now I am invited to Shaukiwan Police Station for assisting in the investigation of a case of burglary. I have a friend FONG Kai-yee who was arrested in connection with this case. After FONG Kai-yee had been arrested, police found a cassette recorder in my house. All along I did not know how my friend FONG Kai-yee got the cassette recorder. I did not ask him how he got it. I only knew that he was not on good terms with his family members and his family members did not allow him to return home. Therefore, he slept with me at my house two months ago. About 20 days ago FONG Kai-yee took a cassette recorder back to my house. He said that it was moved from his house for our entertainment, so I did not ask him how he got the recorder. This statement, consisting of one page in Chinese language, each signed by me, has been read by me. It is true to the best of my knowledge and belief and I have made it knowing that the making of a false statement is a criminal offence under Section 33 of the Crimes Ordinance."

14. Fong testified that after he had agreed to take the blame, D2 had produced the gold watch which had been handed over to him at the aquarium asserting that it had been found on his (Fong's) person. Fong had then been taken to court and had pleaded guilty to the two burglaries mentioned in Count 9.

15. It had been formally admitted that D1 and D2 were members of a five man police team which had arrested Fong (PW8). Chung said he had been charged for those offences, but his case had yet to be dealt with.

16. As regards the conviction on Count 9, Mr. Hemmings (he also defended D1 before the jury) submits on his behalf that the judge should have directed the jury that even if (a) Chung (PW1) had participated in the burglaries referred to in that count and (b) there had been a failure by D1 and D2 to arrest Chung on 4th October 1985, they could not irresistibly infer the existence of the conspiracy charged since the object of that conspiracy as averred was not their own failure to arrest Chung on that date but arranging matters so that Chung could avoid arrest and prosecution in the future. The means of achieving that object as stated in the Particulars of that count was by an alleged agreement falsely to report the circumstances of and the background to the arrest of Fong (PW8).

17. Mr. Hemmings also contends that the judge should have directed the jury that they could not legitimately infer the conspiracy as particularised because there was no evidence on any of the following matters:

Moreover, Mr. Hemmings relies upon the fact that the evidence showed that the investigation into the burglaries was in fact conducted by an independent team of police officers over venom D1 and D2 had no influence or control.

18. It is also submitted for D1 that the judge failed to direct the jury that there was no evidence capable of supporting the testimony of Chung (PW1) or Fong (PW8) and more particularly, the judge had failed to direct the jury that:

19. Mr. Hemmings also contends that the verdict in respect of Count 9 is unsafe and unsatisfactory in view of the jury's rejection of Chung's testimony in relation to Counts 1-5, 7, e; 10 and 12-15 and in particular that it was unsustainable in view of the jury's rejection of the evidence of Chung and Fong in relation to Counts 7 and 8.

20. On behalf of D2, Mr. Hatton (who appeared for him at the trial) argues that the judge failed to direct the jury properly that the gravamen of the particulars of Count 9 was that D2 had conspired with D1 and Chung to pervert the course of justice by allowing Chung to avoid future arrest and prosecution for the two burglaries mentioned in the Particulars, and on the law and the evidence regarding lawful arrest.

21. Mr. Hatton also submits that the judge failed to direct the jury properly as to whether there was any evidential relationship between Counts 7, 8 and 9 when dealing with these counts in his summing up. It is suggested that since the judge failed to direct the jury properly as to what evidence they had to accept before they could convict on Court 9, the jury (despite being told in the Crown's closing address that in effect their case was that the mens rea of D2 for Count 9 directly derived from his involvement in Counts 7 and 8) had returned an unsafe and unsatisfactory verdict on Count 9.

22. D2 relies on many of the same points as those raised by D1 in his grounds of appeal. He complains that his case had not been properly left to the jury because the judge had omitted to tell them that there was no evidence on any of the following matters:

It is also argued that in fairness to D2 it should expressly have been explained to the jury that as regards exhibit P.129, not only did it not confirm Chung's testimony, but it contradicted it and that it was common police practice for a witness statement to be in the handwriting of the interviewing police officer, to be then signed by the witness.

23. We mention here Mr. Hatton submits that the jury's verdict on Count 9 (and on Counts 6 and 11) was "untenable, unsafe and unsatisfactory" in the light of the inference which could clearly be drawn that the jury had rejected the evidence of Chung and Fong on the 12 other counts.

24. The trial was a long one, and a formidable task faced the judge and the jury in sorting out and considering the mass of evidence led by the prosecution to prove the 15 offences charged against the applicants.  It must be said at once that since it is plain that the jury, on the judge's careful and full directions, did not feel that it would be safe to accept the evidence of Chung (PW1) on Counts, l, 2, 3, 4, 5, 7, 11, 12, 13, 14 and 15, or the evidence of Chung or Fong (PW8) on  Count 8, it comes as a considerable surprise that they nevertheless found it possible to rely on the evidence of these two youths for the purposes of Count 9, and on the evidence of Chung in respect of Counts 6 and 11

25. Of course, the result may have been due to the jury's loyal obedience to the judge's direction that they must consider the evidence on each count separately, and there may have been something about the evidence concerning a particular count or the way one or other of the youths gave his testimony, that convinced them that that particular offence had been proved beyond reasonable doubt. In our view it is not possible here to explain the jury's somewhat puzzling verdicts on the basis that they may have thought that the recollection of either accomplice witness about one incident was more reliable than his recollection as to what happened on another occasion.

26. This court must not usurp the functions of the jury but it has the duty to allow an appeal against a conviction if we feel that the verdict should be set aside on the ground that taking all the circumstances into account, it is unsafe or unsatisfactory.

27. Leaving those considerations for the moment, it will be recalled that in Count 9, the Particulars refer to burglaries at Sai Wan Ho Market and the Wan Hing Metalware Company. It is averred that the applicants "then believed" that Chung (PW1) had committed them. From where did their information come? As to D2, if he had counselled and procured Chung to commit the burglary as laid in Count 7 and Chung and Fong to carry out the burglary as charged in Count 8, then, of course, he would have had the necessary knowledge which is the very foundation of the offence charged in Count 9 - but, as we have seen, the jury did not find Counts 7 and 8 proved. The judge did not tell the jury that they might consider that Counts 7, 8 and 9 (in relation to D2) stood or fell together, but it may not have occurred to the judge that the jury would convict D2 on Count 9, if they did not convict him on Counts 7 and 8.

28. We think that counsel for the applicants are right when they emphasise that there was in fact-no evidence that D1 or D2 had "falsely report[ed] the circumstances of and the background of the arrest of Fong ... for the burglaries ...", an essential ingredient of the offence as laid; and no amendment to the Particulars of Count 9 was sought or made.

29. We how turn to consider Count 6. It will be recalled that in that count D2 was charged with doing an act tending and intended to pervert the course of justice on 24th August 1985 - the act mentioned in the Particulars of Offence was that he failed to arrest Chung (PW1) and Fong (PW8) for burglary offences committed by them.

30. Chung (PW1) gave evidence  that he committed a burglary in the Seven Seas Commercial building at North Point With Fong (PW8) and a youth named Tuen Wood Chung who is now deceased. Fong supported this evidence. They described how they had gained access to the building and  stolen a number of wallets, "Walkman" recorders, some sports wear, the keyboard of an IBM computer and $5,000 in cash. They spent the night at Quarry Bay and shared out the stolen property.

31. Chung (PW1) said that a few days later he ran into D2 and by "a slip of the tongue" told him about the burglary. D2 asked him about other burglaries Committed by him and his confederates at doctors' clinics and what had happened about the arrangements Chung was supposed to make for someone to "carry the can" for them. D2 (whose nickname was Hak Chai) kept on saying that if this could not be arranged, then Tuen Wood Chung would be arrested. Chung said he told .D2 that he had committed the North Point burglary with Tuen and Fong (PW8) but that D2's reaction was nothing particular.

32. He (PW1) went on to say that several days later, he was paged by D2 and told to go to a certain sweet soup shop with Tuen. They went there as instructed and D2 asked again whether someone had been found to "carry the can" for the clinic burglaries. When they said they could find nobody to fill this role they were allowed to go. Later, on the telephone, D2 told Chung (PW1) that Tuen had already been arrested. He was very scared and went into hiding with Fong (PW8) for about one week (Fong said nothing about going into hiding). Later still, when Chung paged D2 and asked him what was happening, D2 told him not to worry; nothing would happen to them because Tuen had agreed to shoulder responsibility for everyone involved.

33. Mr. Hatton made a number of submissions about Count 6 but we consider it necessary only to deal with one. He complains that the judge wrongly directed the jury on the evidence relating this count at p.51 of the summing up, attributing to Fong something he did not say. The consequence of this was that the jury, having unanimously found D2 not guilty on Count 5 (on evidence which came from Chung (PW1) only) as to the events which occurred between 10th and 24th August 1985, had returned a majority verdict (5:2) of guilty on Count 6 which was unsafe and unsatisfactory; they must have relied on evidence which Fong did not in fact give.

34. This is the passage relied upon by Mr. Hatton:

"And FONG's evidence is much along the same line as that. They spent that night in the Venice Villa in Quarry Bay dividing the spoils, and FONG's [PW8] evidence agrees with that. And CHUNG [PW1] says that he got the major share of cash because he had to appear in court the next day, and his case adjourned. And he says that it was not long after the burglary, several days after, he and CHUNG again ran into Hak Chai [D2]. And he said that due to a slip of the tongue, he told Hak Chai as regards the Seven Seas burglary. And Hak Chai asked him what happened as regards the clinic burglaries which he and TUEN Wood-chung had committed and what happened as regards CHUNG getting somebody to carry the can. And CHUNG said that Hak Chai kept on saying that if he, CHUNG, could not get somebody to carry the can, Ah Chung, meaning TUEN Wood-chung, would be arrested. And CHUNG also said that he told Hak Chai that he had committed the Seven Seas burglary with TUEN Wood-chung and FONG Kai-yee but that Hak Chai's reaction was nothing particular. [Emphasis added]."

35. As regards the passage emphasised, it is common ground that Chung (PW1) was alone with D2 when he alleged that he told him about the Seven Seas burglary and so there was a mistake there. It is in any event, not clear to whom the judge intended to refer when he said "he and CHUNG."

36. Apart from this understandable mistake, which came in a summing up whose transcript ran to over 100 pages, there is a misdirection on p.52. In concluding his review of the evidence on Count 6, the judge summed up the position in this way:

"             And he [PW1] is really there saying that although the 2nd defendant knewthat he, CHUNG and FONG had committed burglaries at the clinics and at the Seven Seas Centre, he had failed to arrest them for these offences being a police officer.

 

            If that is correct, you could regard that as an act tending and intending to pervert the course of public justice, and you could convict on that evidence. If you believe CHUNG or FONG's evidence, you could convict. However, both of them are admitted accomplices and they can't corroborate one another. There is no evidence capable of amounting to corroboration identifying the 2nd defendant with this offence. [Emphasis added]

37. In this long and difficult case, it is possible that the jury became confused and thought that Fong (PW8) had indeed somehow supported Chung's evidence on this count and, that although they were clearly directed that one accomplice cannot corroborate another, they felt more confident about the evidence when both youths testified as to the same occurrence.

38. D2, as we have seen, was also convicted on Count 11. In that count he was charged with counselling and procuring Chung (PW1) to steal some "Jack Wattley" fish, the property of Chan Chin Hung. Chung (PW1) gave evidence that for a short time, early in 1986 he had worked part-time for D2 at his aquarium. One day, he was told by D2 to burgle the Sea Star Aquarium in Main Street East, Shau Kei Wan, and to steal some fish of that particular variety. He was given a pair of wire-cutters, two battery operated pumps, and $100 with which to buy some drums to hold water and the fish when stolen.

39. Chung told the jury that a few days later, as directed, he carried out the burglary and stole about 50 fish. He used the wire-cutters to break into the back of the aquarium, and utilised the pumps and a drum he had bought. He said he took them to the hut where he was living at the time. D2 came the next day and took the fish away and Chung accompanied him. According to Chung, his mother and his sister were present when D2 came to collect the fish.

40. Chung (PW1) explained that some of the smaller fish were returned and kept by him at his hut, in accordance with D2's wishes. One day u2 telephoned him and told him to briny all the remaining fish to his home because police enquiries were being made at the homes of people with criminal records.

41. Chung's mother, Cheung Kna Mui (PW24) gave evidence about a day when her son had brought some fish home to their hut. The judge pointed out to the jury that this witness did not know what sort of fish her son had brought home and that she had been confused and inconsistent about the relevant dates.

42. The judge directed the jury that her evidence could not corroborate that of her son because she had stated that she was not at home when the fish were taken away the following day - her professed knowledge about that must have been based on hearsay - on the other hand, said the judge, she had confirmed the correctness of her statement which indicated that D2 (whom she knew) had come to her home at the end of 1986 (it will be recalled that the dates in Count 11 are between 1st February and 6th March 1986).

43. The judge told the jury that "due to her closeness" to Chung they should approach her evidence with the utmost caution - and they might regard her as a receiver in respect of some of the charges. There was, he directed the jury, no evidence to corroborate her son's testimony in relation to Count 11.

44. Mr. Hatton contends that the judge had failed to explain the significance of Madam Cheung's evidence to the effect that D2 had visited her home on one occasion, around noon, at the end of 1986 to take a bucket of fish away and that that occasion was the first time she had met him, which facts were not disputed by D2. It was not D2 who, through his counsel, had suggested that she had got the dates wrong. It is submitted that the judge should not have directed the jury to treat her as an accomplice. Madam Cheung's testimony, it is suggested, not only did not confirm her son's testimony out contradicted it in material respects.

45. If, as it appears, the jury were not prepared to accept Chung (PW1) as a reliable witness when his evidence was unsupported about a particular incident, we find it difficult to understand how his mother's testimony could make them feel sure about the guilt of D2 on Count 11. It must not be forgotten that there was evidence  that Chung was working temporarily for D2 at his aquarium during the relevant time. It might reasonably be said that Madam Cheung's evidence, in so far as it was led to prove the offence charged in Count 11 was so unsatisfactory that it should not have been accepted at all.

46. The learned judge made a valiant effort to assist the jury in this very difficult and lengthy trial and to be as thorough and fair as possible, but in view of the matters (taken together) to which we have drawn attention, we feel bound to announce that we have a lurking doubt about the guilty verdicts and to hold that the verdicts on Counts 6, 9 and 11 are unsafe and unsatisfactory.

47. We therefore allow the applications for leave to appeal against conviction and treat the hearing as the hearing of the appeals. We allow the appeals of Dl and D2, quash the convictions and set aside the sentences.