HKSAR v. YEUNG KING LUN AND OTHERS

DCCC 299/2021

[2024] HKDC 2107

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2021

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Reasons for Verdict

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1.  This case involves 5 Defendants. At the time of the alleged offences, D1 and D2 were officers of the Correctional Services Department, whilst D3, D4 and D5 were prisoners. They are charged as follows:

(1)  D1 and D3 are jointly charged with “Conspiracy to commit misconduct in public office”, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 1);

(2)  D2, D3, D4 and D5 are jointly charged with “Conspiracy to commit misconduct in public office”, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 2); and

(3)  D3 is charged with “Conspiracy to doing an act tending and intended to pervert the course of public justice”, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 3);

2.  D2 and D5 pleaded guilty to Charge 2 and were sentenced by another Court. This trial only relates to D1, D3 and D4.

Issues

Charge 1

3.  D1 and D2 were officers of the Correctional Services Department (CSD). At the time of the alleged offences, they were posted to work at Tong Fuk Correctional Institution (TFCI)  and were responsible for the supervision and discipline of the activities of the prisoners assigned to work at the Construction and Maintenance Unit (CMO)  in TFCI. During the time of the alleged offences, D3, D4 and D5 were prisoners in TFCI and were assigned to work at the CMO.

4.  Because of suspicions in respect of the alleged offences, a covert operation was mounted by the ICAC with the collaboration of the CSD. A micro-recording device was planted on D1. There was no dispute that the location of the recording device was subject to Public Interest Immunity. The authorization for the covert recording, which included the location of the device was shown to the Court. A printed copy of a redacted version under the Interception and Communication Surveillance Ordinance with Annex to Authorization is produced as P100. Suffice it to say that the device was on D1’s person throughout the recording process.

5.  The operation turned overt on 23 October 2020. A body search was conducted on D3 at TFCI and a number of unauthorized articles were found and seized from him, including a black mobile telephone and a China Mobile SIM card. On the same day, a search was conducted at the workshop of the CMO and further unauthorized articles were found and seized. D1 and D3 were subsequently arrested for Charge 1.

6.  The Prosecution alleged that D3 was in possession of and was using the mobile telephone seized on 23 October 2020. The Prosecution asserted that D1 had conspired with D3 for D1, a public official, to willfully and intentionally misconduct himself in the course of or in relation to his public office without reasonable excuse and justification by:

(1)  conniving with D3 in the unauthorized possession and use of the mobile telephone by D3; and

(2)  Rendering assistance to D3 to improve the signal reception of one of the SIM cards used in the mobile telephone.

7.  Amongst other documentary and verbal evidence, the Prosecution sought to rely on the covert recordings. Mr. Lee Siu On (PW9)  was called by the Prosecution to identify the speakers in the recording.   This evidence was hotly contested.

8.  The issues for D1 in respect Charge 1 are:

(1)  whether PW9’s evidence was credible and / or reliable;

(2)  whether D1 was one of the speakers in the recordings;

(3)  whether D1 had connived in D3’s unauthorized possession and use of the mobile telephone;

(4)  whether D1 had rendered assistance to D3 to improve the signal reception of a SIM card used in the mobile telephone;

(5)  In the event that the Court finds that D1 had connived in D3’s possession and use of the mobile telephone and had rendered assistance to D3 to improve the signal reception of a SIM card used in the mobile telephone, whether such conduct amounts to misconduct in public office; and

(6)  Whether there was any agreement between D1 and D3 for D1 to commit misconduct in public office.

9.  D3 raises the same issues as D1. In addition:

(1)  D3’s counsel questioned whether the mobile phone could belong to another prisoner and / or could be planted on D3;

(2)  In his video recorded interview, D3 alleged that the mobile telephone was given to him by D1 and D2 and that he had only kept the phone under D1’s coercion. D3’s counsel questioned whether possession in such circumstances amounted to an agreement.

Charge 2

10.  The Prosecution alleges that D3, D4 and D5 had conspired with D2, a public official, to willfully and intentionally misconduct himself in the course of or in relation to his public office without reasonable excuse or justification, namely:

(1)  conniving in the unauthorized possession and use of the mobile telephone by D3; and

(2)  Introducing unauthorized cigarettes into TFCI for D3.

11.  There is no dispute that a WhatsApp chat group was created by D2 and that D4 and D5 (but not D3)  were both members of the chat group. For this charge, amongst other evidence, the Prosecution relies on the messages in this chat group.

12.  Apart from the issues raised in respect of the mobile telephone in respect of Charge 1, D3 raised the issue as to whether the messages amongst D2, D4 and D5 could be used as evidence against D3.

13.  For D4, the issues are:

(1)  whether there was any agreement as alleged or at all amongst D2 to D5;

(2)  since D4 was neither a prisoner nor a CSD officer at the time of the alleged offence, whether D4 had the power to connive in the unauthorized possession and use of the mobile telephone and unauthorized introduction of cigarettes into TFCI; and

(3)  whether D4 had done anything to facilitate or contribute to D3’s possession of the mobile telephone or introduce unauthorized cigarettes into TFCI for D3.

Charge 3

14.  There is no dispute that some prisoners were found to be gambling inside D3’s dormitory and that Li Chun Ping (PW5)  admitted to be one of the gamblers and was convicted of a disciplinary offence. The Prosecution alleges that in fact D3 was one of the gamblers; PW5 never took part in the gambling and that D3 and PW5 had conspired together for PW5 to admit to the disciplinary offence in D3’s stead for a reward. The main issue in respect of this charge is the credibility of PW5.

Admitted Facts

15.  A large part of the Prosecution’s evidence was not in dispute. Five sets of admitted facts were produced pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 as P98, P99, P102, P103 and P106 respectively.

16.  In order not to be repetitive, I will refer to the admitted facts when appropriate.

The Prosecution Evidence

17.  The Prosecution called a total of 15 witnesses. PW2 to PW4, PW6, PW9, PW11 and PW12 are all CSD officers. Save for PW11 and PW12, the other CSD officers were all posted to TFCI at the material time. PW1, PW7, PW10, PW13 to PW15 were ICAC officers. PW5 and PW8 were civilian witnesses.

Background

18.  The background of this case is not in dispute. They are set out in paragraphs 1 to 16 of the 1^st set of Admitted Facts [P98], paragraphs 1 to 7 of the 2^nd set of Admitted Facts [P99].

(1)  TFCI is a medium security institution of the CSD housing convicted male adults. Prisoners would be assigned to work in different working units when serving that custodial sentence. One of those working units was “construction maintenance unit” (CMO)  [1^st Admitted Facts P98 §1].

(2)  At all material times, CSD officers were prohibited to bring their personal electronic or communication devices including telephones into TFCI whilst on duty. They were allowed to bring 20 cigarettes, except the brand of “Wealth” and “Gentori” into TFCI for self-consumption at designated areas where they were not in contact with any prisoner [1^st Admitted Facts P98 §2].

(3)  All material times, prisoners incarcerated in TFCI allowed to receive certain articles on the List of Approved Hand-in Articles (the List)  from visitors. Cigarettes and mobile telephones were not on the List. Prisoners were prohibited from having mobile telephones in their possession or custody [1^st Admitted Facts P98 §3].

(4)  Prisoners of TFCI could use that wages earned during prison terms to purchase cigarettes of two specific brands, namely “Wealth” and “Gentori” through the arrangement of CSD [1^st Admitted Facts P98 §4].

Background of D1, D2, D3, D4 and D5

(5)  D1 joined the CSD on 19 July 1999 as Assistant Officer II. Between 4 December 2013 and 9 December 2018, D1 was posted to Shek Pik Prison. From 10 December 2018 onwards, he was posted to TFCI [1^st Admitted Facts P98 §5].

(6)  On 4 May 2019, D1 was promoted to Assistant Officer I. From 16 September 2019 onwards, he was in charge of the CMO [1^st Admitted Facts P98 §6].

(7)  D1’s Staff Records properly and accurately maintained in the Human Resources Management System of the CSD is produced as P1 [1^st Admitted Facts P98 §7].

(8)  From 3 June 2019 until 22 October 2020, D1 was posted to the Centre Division. D1’s working schedule at TFCI was from 0815 hours to 1700 hours from Mondays to Fridays; and from 0815 hours to 1645 hours on Saturdays. Lunch time was from 1245 hours to 1345 hours. On 22 October 2020, D1 worked from 0814 hours until around 1245 hours. On 23 October 2020, D1 was on leave [1^st Admitted Facts P98 §8].

(9)  The record of the Centre Division Staff Duty and Post Record properly maintained by the CSD for the period from 29 June 2020 to 25 October 2020 is produced as P2 [1^st Admitted Facts P98 §9].

(10)  D1 does not have a criminal record in Hong Kong [1^st Admitted Facts P98 §10].

(11)  D2 joined the CSD on 4 March 2019 as Assistant Officer II. Since 12 August 2019, D2 was posted to TFCI. Between mid-July 2020 and 23 October 2020, D2 was assigned to work at CMO or “Grass Cutting”. D2 admitted to and was convicted of Charge 2 on 11 May 2022 [1^st Admitted Facts P98 §11].

(12)  The Staff Record of D2, which was properly and accurately maintained in the Human Resources Management System of the CSD, is produced as P23 [2^nd Admitted Facts P99 §1].

(13)  Between 16 July 2020 and 23 October 2020, D2 was the assistant to the officer in charge (namely D1)  of the CMO of TFCI. When D1 was on leave or engaged with other duties, D2 would act as the officer in charge of the CMO [2^nd Admitted Facts P99 §2].

(14)  At all material times, D3 was a serving prisoner at TFCI. His designated bed was situated at Dormitory F3 [1^st Admitted Facts P98 §12].

(15)  At all material times, D3’s name was LAU Yin Chun [1^st Admitted Facts P98 §13].

(16)  Between 20 March 2018 and 22 October 2020, D3, who was also known as WONG Di-Chun alias “Luk Tau”, was incarcerated in TFCI. From 21 March 2019 to 23 October 2020, D3 was assigned to work at the CMO of TFCI under the supervision of D1 and D2. D3’s designated bed was bed number 14 situated in Dormitory F3. His penal record, properly maintained by the CSD, is produced as P24, its certified English translation is produced as P24a [2^nd Admitted Facts P99 §3].

(17)  D4 served his sentence of imprisonment at TFCI from 8 August 2018 until he was released on 6 May 2020. Between 10 August 2018 and 6 May 2020, D4 was assigned to work at the CMO and his designated bed was situated in Dormitory F3. D4’s penal record retrieved from the Penal Record Information System II properly maintained by the CSD is produced as P3 [1^st Admitted Facts P98 §14].

(18)  D5 served his sentence of imprisonment at TFCI from 4 January 2019 until he was released on 3 September 2020. Between 24 April 2020 and 7 August 2020, D5 was assigned to work at the CMO. Between 12 July 2019 and 7 August 2020, D5’s designated bed was mostly situated in Dormitory F3. D3’s penal record retrieved from the Penal Record Information System II and properly maintained by the CSD is produced as P4. D5 admitted to and was convicted of Charge 2 on 11 May 2022 [1^st Admitted Facts P98 §15].

(19)  Principal Officer Li Siu-on was posted to TFCI on 24 October 2017 and took charge of security related matters, including monitoring the conduct of CSD staff and prisoners in TFCI. As at 23 October 2020, 6 prisoners including D3 were assigned to work at the CMO. The working hours of prisoners who were assigned to work at the CMO were from 0930 hours to 1215 hours and from 1400 hours to 1630 hours from Mondays to Saturdays. In his capacity of Principal Officer (Security)  of TFCI, Mr. Li Siu-on can access prison visit recordings of prisoners including those of D3 who was incarcerated there [2^nd Admitted Facts P99 §4].

(20)  A sketch of TFCI prepared by Mr. Li Siu-on, CSD Principal Officer, is produced as P5 [1^st Admitted Facts P98 §16].

Prison Rules

Arrangement for prisoners to make telephone call

19.  A prisoner who wanted to contact his relatives or friends by telephone, could submit a written request to the Rehabilitation Unit to arrange to make the telephone call. All telephone calls made by or for the prisoner were recorded in the “Record Form for Telephone Calls by Persons in Custody” properly and accurately kept by the Rehabilitation Unit, the first 4 digits of the call number display received is “2980” [2^nd Admitted Facts P99 §6].

20.  Between 6 March 2020 and 23 October 2020, D3 did not submit any written request to the Rehabilitation Unit to make any telephone calls [2^nd Admitted Facts P99 §7].

PW4

21.  Mr. Ho Siu Fung (PW4)  is also a CSD officer. Since 12 November 2018, he was the Principal Officer at TFCI. He was in charge of the Centre Division and was D1’s supervisor.

22.  D1 was the officer-In-charge of the CMO and was responsible for the supervision of prisoners doing repair work at different locations within TFCI. PW4 would assign work to D1 every day. Usually D1 would work alone. However, if D1’s workload was too heavy, PW4 would assign an Assistant Officer II to assist D1.

23.  Prisoners are not allowed to possess USB players, DVD players in prison. CSD officers were not allowed to give their own cigarettes to prisoners. If a prisoner is found in possession of unauthorized articles such as a mobile telephone, CSD officers should stop the prisoner and the CSD officer report to his superior. PW4 has never received any report from D1 or D2 that D3 was in possession of any mobile telephone or unauthorized cigarettes in TFCI.

24.  Contact between CSD officers and prisoners is regulated by the Prisons Ordinance, Cap 234 and its Regulations, Cap 234A. CSD officers are not allowed to conceal a prisoner’s possession of unauthorized articles; they are also not allowed to assist prisoners to check the status of any SIM card used by the prisoner in prison.

25.  CSD officers were also not allowed to be friends with prisoners or former prisoners. It was not part of a CSD officer’s duty to communicate with former prisoners.

Adjudications in the CSD

26.  At all material times, Mr. Lau Yee-kan Ronald (SP Lau)  was the Superintendent of the CSD. He was posted to TFCI and was responsible for, among other duties, conducting adjudication hearings in respect of any breaches of or offences against prison discipline by prisoners. By virtue of Rule 62 of the Prison Rules, SP Lau had the authority to make determinations and order punishment upon the hearings [P99 §5].

The Gambling Incident

PW5

27.  Between September 2018 and 7 September 2020, Li Chun Ping (PW5)  was a prisoner in TFCI. He was granted immunity to testify in this case. The letter of Immunity together with its Chinese translation are produced as P101 and P101A.

28.  In about June 2020, PW5 was assigned to Dormitory F which was divided into F3 and F4. The other prisoners addressed PW5 as “Ah B” 「阿 B」or “Ah Ping” 「阿平」. PW5 used to work in the kitchen but he was assigned to do “sweeping” duties instead of kitchen work when he was transferred to Dormitory F. D3 was also an inmate of Dormitory F3. PW5 met D3 when he was transferred to Dormitory F3. D3’s nickname was ‘Luk Tau”.

29.  One day in mid-August 2020, the Observatory announced that typhoon 8 would be hoisted. After dinner that day, the prisoners returned to their dormitories and the dormitory gate was closed. At about 1600 to 1700 hours, 4 prisoners including D3 (but not PW5)  were gambling in Dormitory F3. They used homemade chess pieces to play a game similar to “Big 2” 「鋤大弟」. The chess pieces were left behind by previous inmates and were kept inside the cabinet at the far end of the Dormitory. Each player had 8 chess pieces which were made by writing words on buttons including king 「公」, Car「車」, Horse 「馬」, Canon 「炮」, General 「仕」, Elephant 「象」 and Solider 「兵」. The players take turns to play their chess pieces. A player can only play a chess piece that is larger in value than the chess piece played by the last player 「鬥大」.  The person who gets rid of all his chess pieces first wins the game. At the end of the game, the buttons left in the 3 losers’ hands are counted. Each button incurs 1 point. However, a player may also incur double, triple or quadruple points; this depends on the number of chess pieces left in the loser’s hand at the end of each game. Before they start playing, the players would agree on the number of chess pieces that would incur double, triple and quadruple points. For example, if the loser has 7 buttons in his hand at the end of the game, he may incur triple points (i.e. 7 X 3 = 21 points); if he still has all 8 chess pieces, he may incur quadruple points (i.e. 8 X 4 = 32 points). At the end of 10 games, the points would be counted. The bets are placed in cigarettes. Each cigarette is worth 10 points.

30.  PW5 explained that gambling was not allowed inside prison. CCTV cameras were installed near the entrance and at the furthest end of Dormitory F3. The gambling took place at the furthest end of Dormitory F3, near the prisoners’ lockers and close to D3’s bed. That area could not been seen on the CCTV camera. Although there was an iron gate at the entrance of the Dormitory, the view of the CSD officers outside the gate was blocked by the bunk beds.

31.  At about 1800 on the same day, 2 to 3 CSD officers discovered that the prisoners were gambling inside Dormitory F3. The 4 prisoners who were gambling stopped playing and D3 handed the chess pieces to the CSD officers as instructed. The CSD officers then left.

32.  The next morning, 2 CSD officers took D3 out of the Dormitory for a chat. When D3 returned, he told the other prisoners (including PW5)  that the CSD officers demanded the prisoners to hand over the 4 prisoners who were gambling. D3 asked if anyone would take the blame for him and said that money would be paid to that person. PW5 told D3 that he was willing to take the blame and admit to gambling in D3’s stead as PW5 would be released in about 2 more weeks. D3 promised to ask his friends or family to pay PW5 $10,000. PW5 wrote down his Bank of China bank account number and gave it to D3. 

33.  Later on the same day, 2 to 3 CSD officers came to the Dormitory before lunch to arrest the 4 gamblers, PW5 and the other 3 gamblers volunteered to go the security office. Inside this office, CSD officers asked if PW5 and the 3 other gamblers gambled inside Dormitory F3 the previous night. PW5 and the 3 other gamblers admitted to gambling and were given a “plead guilty” form 「認罪書」. They were then held in solitary confinement 「水飯房」pending disciplinary action.

34.  On the following day, PW5 was charged with breach of good order and discipline in prison. An adjudication hearing was held on 20 August 2020 where the 4 alleged gamblers pleaded guilty. As punishment, they were detained in solitary confinement for 2 weeks, their prison term was extended by 1 day and they were deprived of all welfare and privileges.

35.  As a result of the punishment, PW5 never returned to Dormitory F3 before his release. However, he met with D3 on 3 to 4 occasions when D3 came to the solitary confinement cells to perform repair work. PW5 asked D3 how he would be paid for taking the blame of gambling for D3. D3 promised that money would be deposited. At their last meeting, D3 gave PW5 the telephone numbers of D3’s elder brother and younger brother. D3 told PW5 to call D3’s brothers upon discharge from prison.

36.  PW5’s mobile telephone number (5117 9586)  was activated on 7 September 2020 after he was released from prison. He called D3’s younger brother with this mobile telephone number. PW5 told D3’s younger brother that he was D3’s friend in TFCI and that “Luk Tau” had asked PW5 to obtain “Luk Tau’s” telephone number in TFCI. D3’s younger brother hung up immediately but called PW5 back after a few minutes and gave D3’s telephone number to PW5. PW5 saved D3’s telephone number (6598 7379)  in his own telephone [P87 and P87a]. A total of 10 calls were exchanged between PW5’s phone and 6598 7379. Each call was answered by D3.

37.  PW5 asked D3 why no money had been deposited. D3 stated that he had recently lost a lot of money and finances were tight. He asked PW5 to wait. Subsequently, during one of their telephone conversations, D3 gave PW5 the telephone number of a friend called “Ah Ki” and told PW5 that “Ah Ki” will pay PW5 on D3’s behalf.

38.  PW5 called “Ah Ki”. He told “Ah Ki” that he was calling to ask for a deposit of money pursuant to D3’s instructions. “Ah Ki” told PW5 that he would talk to PW5 on WhatsApp. PW5 and “Ah Ki” exchanged WhatsApp messages on 17 and 21 October 2020. On 20 October 2020, a sum of $2,000 was deposited into PW5’s bank account and D5 sent an image of a deposit slip for $2,000 on WhatsApp to PW5 [P71].

39.  PW5 called D3 again to ask why only $2,000 had been deposited when D3 had agreed to pay him a reward of $10,000 for taking D3’s place in the gambling incident. However, D3 did not answer the call and there was no further contact with D3 thereafter.

PW6

40.  Mr. Chan Yik Wang (PW6)  is a CSD officer. He has been posted to TFCI since 2018. In July 2020, he was assigned to the Security Unit of TFCI and was on duty from 0645 hours to 1345 hours on 19 August 2020.

41.  At about 0700 hours on 19 August 2020, Principal Officer of the Security Unit, Mr. Li Siu On instructed PW6 and Assistant Officer II, Mr. Tai Chun Wai to interview 4 prisoners, namely Mak Ka Leung, Wong Kwok Tai, Cheung Sin Ki and Li Chun Ping (PW5). Mr. Li Siu On told PW6 that these prisoners were suspected of being in breach of Prison rules inside Dormitory F3 on the evening of 18 August 2020.

42.  PW6 and Mr. Tai interviewed each of the 4 prisoners individually inside the security room in the Security Unit in “Sheung Wai”「上圍」. PW6 was responsible for asking questions whilst Mr. Tai acted as a witness to the interview. PW6 explained the purpose of the interview to each of the prisoners and asked them for an explanation. Each of the 4 prisoners admitted that on 18 August 2020 they had played a game of chance （機會性遊戲） inside Dormitory F3, using homemade chess pieces made with buttons. PW6 immediately cautioned and took a statement from each prisoner. Under caution, the prisoners told PW6 that the chess pieces were placed inside a cloth bag. The prisoners took turns to draw out the chess pieces from the bag. The prisoner who drew out the chess piece with the smallest value would have to pay 1 cigarette to the other prisoners.

43.  PW6 explained that gambling was regarded as a breach of good order and discipline because gambling involved benefits and would cause conflict and arguments amongst prisoners.

44.  Each of the prisoners was allowed to read their own cautioned statements and signed to confirm that their statements were true. Based on their cautioned statements, PW6 believed that the 4 prisoners were the ones involved in the gambling incident. There was no reason for him to believe that these 4 prisoners were not the real offenders. If there were such suspicions, PW6 would have continued the investigation.

45.  After the completion of the interviews, PW6 handed the cautioned statements to the Duty Officer and reported that the 4 prisoners were in breach of good order and discipline in prison.

46.  Subsequently, a disciplinary hearing was held on 20 August 2020. PW6 was summoned to the meeting as the reporting officer. The normal punishment upon conviction is solitary confinement. The sentence would depend on the nature of the breach and according to guidelines. The convicted prisoner would also be moved to another Dormitory and work place and will be deprived of welfare and privileges.

Adjudication in relation to the Gambling Incident

47.  On 20 August 2020, an adjudication hearing was heard before SP Lau Yee Kan, Ronald (case number TF 107/20). In the hearing, four prisoners (namely PW5, Mak Ka Leung, Wong Kwok Tai and Cheung Sin Ki)  pleaded guilty to having participated in a game of chance inside Dormitory F3 on 18 August 2020, contrary to section 61(p)  of the Prison Rules. The Adjudication Report was an accurate record of the hearing process and the result of the hearing and is produced as P25 and its certified English translation as P25a [4^th Admitted Facts P103 §1].

Covert Operation

48.  Lam Tak-hung (PW1)  is an ICAC Investigator. At about 1723 hours on 22 October 2020, he was assigned to go to a location near TFCI where he collected a recording device (the Recording Device)  from Mr. Li Siu-on. PW1 arrived at the ICAC headquarters with the Recording Device at about 1820 hours on the same day and handed it over to the Technical Section of the ICAC at about 1826 hours.

49.  At about 1510 hours on 23 October 2020, whilst PW1 was on duty, a colleague handed a compact disc to him (the Compact Disc). The compact disc was a copy of the audio recording contained the Recording Device. He knew that the audio recording was recorded on 22 October 2020. Pursuant to the terms of the authorization, the recording was to commence at 0900 until 1200 of 22 October 2020. PW1 then prepared a transcript of the audio recording on the Compact Disc (the Transcript). He confirmed that the Transcript was an accurate record of the audio recording. The Compact Disc and the Transcript are produced as P76 and P76C respectively. PW1 confirmed that parts of the audio recording were omitted in the Compact Disc and that he was not the one who decided the omissions.

Arrests

D1

50.  There is no dispute that D1 was arrested at his residence by PW15 on 23 October 2020.

PW15

51.  Mr. Chan Kin Hing (PW15)  was tendered for cross-examination pursuant to a request of the Defence. PW15 is a Chief Investigator of the ICAC. On 23 October 2020, he was tasked to arrest D1 at D1’s residence. PW15 understood that the search warrant had been signed but was yet to be delivered to him. In those circumstances, before PW15 went to D1’s home, there was no plan to search D1’s residence immediately.

52.  Upon arrival at D1’s residence, PW15 declared arrest on D1 and told D1 that he would be taken to the ICAC. As they were leaving, D1 asked if he could speak to his domestic helper. D1 then shouted to his helper to break all the digital devices and valuable property in his home. PW15 and his colleagues immediately subdued D1, handcuffed D1 and took him back into the unit. PW15 informed D1 that a search warrant had been signed and that a search will be conducted immediately. PW15 also informed D1 that D1 may already have committed perverting the course of public justice and cautioned him. The ICAC then conducted a search of D1’s residence.

53.  PW15 admitted that he pushed D1 to the wall and swore at D1 after D1 yelled to his helper. He also instructed D1 to kneel down and was handcuffed. These were measures to control D1 and prevent him from going to other areas inside the unit to damage possible exhibits. After a while and after 2 colleagues started a search, D1 was given a chair to sit on.

54.  D1’s arrest was recorded by the CCTVs installed at the doorway of his residence. The CCTV footages were produced as D2A and D2B. The CCTV footages were then shown to PW15. He denied that he told D1 to kneel, swore at him to humiliate D1. He denied that he was abusing his authority. PW15 explained that he kneed D1 once to subdue D1 and make him kneel. D1 had openly shouted to his helper to destroy objects. PW15 feared that D1 would destroy exhibits. That was why he asked D1 to also kneel inside the unit.

D2

55.  On 23 October 2020, D2 was arrested by the ICAC. A black mobile telephone with a memory card and a SIM card were seized from D2. The mobile telephone, together with the memory card and SIM card are produced as P38. The mobile number of the SIM card is 5340 5825 and was used by D2 [2^nd Admitted Facts P99 §8].

D3

PW2

56.  Mr. Lam Man-mang is a CSD officer who was posted to TFCI at the material time. He was on leave on 23 October 2020 but returned to TFCI at about 1540 hours pursuant to the instructions of Mr. Li Siu-on. At about 1620 hours, prisoners who worked at the CMO under D2’s supervision were intercepted by PW2, Mr. Li Kiu-kwong (PW3)  and 2 other CSD officers. PW2 took D3 to the Security Unit office. He told D3 that D3 was suspected of being in possession of unauthorized articles and that a search would be conducted on D3. The interception and search of D3 was recorded by video. The video of the search is produced as P26. The transcript of the video and its English translation are produced as P26A and P26B respectively.

57.  D3 was carrying a bag at the time of interception. Upon search of the bag, PW2 found 1 unopened packet of Marlboro cigarettes (produced as P28), 1 unopened packet of Mevius cigarettes (produced as P30), 4 lighters (produced as P31, P32, P33 and P35), a black foldable mobile telephone (produced as P27), a smart watch with no watch strap, 1 nail clipper, 1 home made plastic pliers and 1 key. On D3’s body, PW2 found a 3 colored ball pen, 1 opened packet of Marlboro cigarettes contains 7 cigarettes (produced as P29)  and 1 lighter (produced as P34).

58.  PW2 explained that Marlboro and Melvius were not authorized brands of cigarettes in prison. PW2 laid out all the above items on a table and cautioned D3 [Counter 37]. D3 remained silent under caution. When PW2 asked D3 about the key found inside the bag, D3 said “No, this key was picked up, then (it)  was intended to be given to you” （唔係喎，呢條鎖匙係執到跟住諗住俾你咋喎） [Counter 80]. D3 also later stated “This bag / (exhibit)  envelop is not (marked with)  my number” （呢個袋都唔係我 Number 㗎）[counter 109] and “The things are not mine, only picked (them)  up, big brother （啲嘢唔係我㗎喎，執返嚟㗎咋大佬）[Counter 113].

59.  PW3 then took photographs of each of the items and made a record of them before PW2 placed the items into exhibit bags and sealed them. Those photographs were produced by as P36(1)  - (13) by consent. Then PW2 also wrote the date, time, D3’s name, PW2’s name, rank and UI number on each of the bags. He asked D3 to sign each of the bags but D3 refused.

60.  PW2 explained that not every prisoner had a bag. A prisoner had to make a request in the “Request Book” before they could purchase a bag. The prisoner’s number would be written on the bag. Once a prisoner is assigned a prisoner number, his number would be used for life and would never change. D3’s prisoner number was 340943 whereas the number on the bag held by D3 in the search video was 494941.

61.  PW2 agreed that there were some papers found inside the bag in D3’s possession and that he never checked those papers. He confirmed that he had never seen anyone found in possession of 11 packets of cigarettes. He cannot say whether it was possible to smuggle 11 packets of cigarettes into prison. CSD officers would conduct routine checks for unauthorized articles. Stop and search would only be conducted if the CSD receive specific intelligence. He disagreed that security was so tight that no one could ever smuggle 11 packets of cigarettes into TFCI.

62.  D3’s bed was also searched by the ICAC. PW2 was present during the search. No cigarettes or other packets were found.

63.  PW2 agreed that rehabilitation was one of the missions of the CSD and some CSD officers might become mentors to prisoners during their incarceration. However, a CSD officer should not be friends of ex-prisoners.

PW3

64.  Mr. Li Kiu Kwong (PW3)  was the deputy officer-in-charge of the Security Unit in TFCI. He was on duty on 23 October. He was the leader of the search operation on D3 and witnessed the search. He also took photographs of the items found inside the bag and on D3.

65.  PW3 explained that at the time of the search, he thought that the bag belonged to D3 as he saw D3 holding it. He was not aware of the prisoner number on the bag at the time. He only first noticed the prisoner number on the bag when he watched the video of the search a few weeks before trial. However, even if he had noticed the prisoner number on the bag, he would still proceed to search the bag for the following reasons:

(1)  D3 was holding the bag upon interception;

(2)  D3 was informed of the reason for the search and he never stated that the bag did not belong to him;

(3)  D3 held onto the bag when the CSD told him the reasons for a search. From PW3’s experience, D3’s behavior and demeanor at the time of the search indicated to PW3 that the bag belonged to D3 and D3 knew that there were unauthorized articles inside [See video recording of search P26 at 1:33].

66.  PW3 stated that prisoners were not allowed to exchange their bags. If prisoners are found to have swapped their bags, they would be subjected to disciplinary prosecution.

67.  The CSD would conduct a body search on each prisoner when they left the dormitory each morning. The prisoner would be asked to take out all metal objects from the bag. Then the prisoner would go through a metal detector gate with the bag. The CSD would open the bag and take a look at the opened bag. Such searches would be repeated whenever a prisoner enters or leaves a location (e.g. workplace, canteen or sports ground). The objective of the search was to look for unauthorized articles. During the World Cup, CSD officers would also look for betting slips.

68.  PW3 explained that if a mobile phone were made mainly with plastic, it may be possible for it to pass through the metal detector unnoticed. It depended on the construction, type and model of the telephone.

69.  PW3 further stated that the names of prisoners (and not their numbers)  are printed on their uniforms. CSD officers would generally only remember the prisoners’ names, but not their prisoner numbers. Prisoners also addressed each other by name or nicknames. PW3 knew that D3’s nickname was “Luk Tau”.

70.  PW3 agreed that CSD officers are required to change into their uniforms and leave their bags before entering the secured area of the prison. A small waist bag is part of the uniform. He cannot say whether it was possible for someone to bring 11 packets of cigarettes into prison as people can always find ways to commit a crime.

D4

71.  On 23 October 2020, at around 1651 hours, ICAC Assistant Investigator SUNG Ka-hei and his team members, including Mr. Steven NG, intercepted D4 at the front gate of Ground Floor, No. 96, Tan Kwai Tsuen, Hung Shui Kiu, Yuen Long. At around 1652 hours, ICAC Investigators arrested D4 at his residence at No. 96, Tan Kwai Tsuen, Hung Shui Kiu, Yuen Long [1^st Admitted Facts P98 §18].

PW7

72.  Initially, ICAC Officer Sung Ka Hei (PW7)  was not expected to give evidence. He was only called as a witness because of the death of his partner, Mr. Stephen Ng. The arrest of D4 by PW7 and his partner was not in dispute [See 1^st Admitted Facts P98 §18]. PW7 was only cross examined about the ICAC’s suspicions at the time of arrest and the purpose of searching D4’s residence on the day after his arrest (24 October 2020). He explained that the ICAC suspected that there was a conspiracy to offer rewards to CSD officers for the introduction of unauthorized articles (mainly a mobile telephone)  into prison for prisoners. D4 was suspected to be part of that conspiracy. He knew that the ICAC already had communication records between D4’s mobile telephone and a telephone inside TFCI but he did not know the contents of those communication records. He had no recollection of cigarettes being mentioned. During the search, ICAC officers were looking for book-keeping records of the alleged bribes, deposit slips, records of communication and unauthorized articles. He confirmed that no cigarettes were seized from D4’s home but D4’s mobile telephone was seized during a body search at the ICAC.

D5

73.  On 23 October 2020, D5 was arrested by the ICAC. The following articles were found and seized from D5’s home [2^nd Admitted Facts P99 §18]:

(1)  A blue mobile telephone with 2 SIM cards. The mobile telephone together with the 2 SIM cards are produced as P58. The mobile telephone number of one of the SIM cards is 6898 1997, which was used by D5;

(2)  An Octopus card numbered 08983931(2)  is produced as P59, was used by D5.

Investigation

Mobile Telephones

74.  At 1755 hours on 23 October 2020, ICAC Officers commenced a search of D1’s residence in the presence of D1 without search warrant. At 1915 hours, search warrants were produced and explained to D1 [5^th Admitted Facts P106 §1].

75.  At 1923 hours on 23 October 2020, ICAC Officer seized the following from D1’s residence [5^th Admitted Facts P106 §2]:

(1)  one black color mobile telephone marked “SAMSUNG”. The telephone is produced as P79; and

(2)  A sheet of paper with handwriting “6598 7379 CSL” and with the form CSD 197A (9/2012)  of CSD overleaf. The paper is produced as P81.

76.  On 11 November 2020, ICAC Assistant Investigator TSE Kin-shing took 6 photographs of the mobile telephone seized from D1’s residence with telephone number 6682 6288. Those photographs, showing the serial number of the mobile telephone and the call logs dated 23 October 2020 are produced as P6 [1^st Admitted Facts, P98 §17].

77.  At all material times, D4 was the subscriber and user of mobile telephone number 9588 2770 [1^st Admitted Facts P98 §19].

78.  At about 1445 hours on 13 November 2020, ICAC Officer Tse Kin Shing, inside Room 1908, 19^th floor, ICAC Headquarters, found one prepaid SIM card of China Mobile Hong Kong Company Limited with serial number 89852122004078176206 at the SIM card slot of the mobile telephone P27 seized from D3. The mobile telephone number of the said prepaid SIM card is 5608 7429 [3^rd Admitted Facts P102 §1].

CSL Hotlines audio-recordings

79.  At all material times, CSL Mobile Limited maintained an audio-recording system of all enquiries made to their Hotline numbers 2888 2123 and 179179. The audio recordings of these hotlines were accurately stored in the company’s central computer system [1^st Admitted Facts P98 §20].

80.  CHOW Kin-bong was the Assistant Manager of the Corporate Security and Fraud Management Department of the CSL Mobile Limited. CHOW retrieved the following audio-recording files from the company’s central computer system:

(1)  File name 66826288-_Call1_29201023_102145_102211 which contained the conversation of enquiry between hotline number 2888 2123 and mobile number 6682 6288 on 23 October 2020 between 1021 hours and 1022 hours; and

(2)  File name 66826288_Call2_20201023_102833_103346 which contained the recorded conversation of enquiry between hotline 179179 and mobile number 6682 6288 on 23 October 2020 between 1028 hours and 1033 hours.

The above audio-recording files were completely and accurately stored in a compact disc which is produced as P7 [1^st Admitted Facts P98 §21].

81.  NG Chin-ting was the staff member of CSL Mobile Limited. On 23 October 2020, he was responsible in answering the Hotline 2888 2123. NG identified his voice in the aforesaid audio-recording file name 66826288_Call1_20201023_102145_102211 in P7. The accurate transcript of that audio-recording is produced as P8 and its certified English translation is produced as P8a [1^st Admitted Facts P98 §22].

82.  WONG Tsz-yin was a staff member of CSL Mobile Limited. On 23 October 2020, she was on duty. WONG identified her voice in the aforesaid audio-recording file named 66826288_Call2_20201023_102833_103346 in P7. The accurate transcript of this audio-recording and its certified English translation is produced respectively as P9 and P9a [1^st Admitted Facts P98 §23].

Subscribers’ checks and call records

83.  Produced as P17, the computer certificate prepared by CHEUNG Yuk-lan of CSL Mobile Limited showing that [1^st Admitted Facts P98 §33]:

(1)  the mobile telephone number 6598 7379 between 16 July 2020 and 1 March 2021 was prepaid without subscriber details; and

(2)  The call records of the said 6598 7379 between 16 July and 23 October 2020.

84.  Produced as P18, the computer certificate prepared by WONG Po-yi of Hutchison Telecommunications (Hong Kong)  Limited showing that [1^st Admitted Facts P98 §34]:

(1)  the subscriber of mobile telephone number 6682 6288 between 28 June 2019 and 17 February 2021 was under the name of D1;

(2)  the call records of the said 6682 6288 between 17 and 23 October 2020; and

(3)  the SIM card reference record of the said 6682 6288.

85.  Produced as P19, the computer certificate prepared by TSANG Pik-yin of HKT Services Limited showing that [1^st Admitted Facts P98 §35]:

(1)  the subscriber of mobile telephone number 5340 5825 between 15 October 2016 and 16 March 2021 was under the name of LEE Tim-Kiu (mother of D2);

(2)  the SIM card reference record of the said 5340 5825;

(3)  the call records of the said 5340 5825 between 20 June and 23 October 2020;

(4)  the subscriber of mobile telephone number 6901 0617 between 8 June 2018 and 16 March 2021 was under the name of WONG Yin-lung (brother of D3);

(5)  the SIM card reference record of the said 6901 0617; and

(6)  the subscriber of the mobile telephone number 6698 8665 between 10 January 2012 and 16 March 2021 was under the name of Wong Wai-ping (former name of WONG Sin-yu, a prosecution witness).

86.  Produced as P20, the computer certificate prepared by KEUNG Pui-chu of China Mobile Hong Kong Company  Limited showing that [1^st Admitted Facts P98 §36]:

(1)  the mobile telephone number 5608 7429 (SIM card seized from D3)  between 21 August 2020 and 22 June 2021 was prepaid without subscriber details;

(2)  the SIM card reference record of the said 5608 7429;

(3)  the call records of the said 5608 7429 on 21 August and 23 October 2020;

(4)  the subscriber of the mobile telephone number 5108 4690 between 10 August 2018 and 22 June 2021 was under the name of LAU Tin-ching (sister of D3);

(5)  the subscriber of the mobile telephone number 6349 8187 between 13 June 2014 and 22 June 2021 was under the name of WONG Sang-Choi (father of D3);

(6)  the subscriber of the mobile telephone number 6301 0269 between 13 January 2008 and 22 June 2021 was under the name of NG Siu-chi (mother of D3);

(7)  the mobile telephone number 5514 5212 used by LAW Kin-wing (a prosecution witness)  between 5 March 2019 and 22 June 2021 was a prepaid SIM card;

(8)  the SMS records of the said 5608 7429 (SIM card seized from D3)  between 21 August and 23 October 2020;

(9)  the SMS records of the said 5108 4690 (D3’s sister)  between 16 July and 23 October 2020; and

(10)  the top-up record of the said 5608 7429 (SIM card seized from D3)  in October 2020.

87.  Produced as P21, the computer certificate prepared by TSANG Tat-yuen of SmarTone Telecommunications Limited showing that [1^st Admitted Facts P98 §37]:

(1)  the subscriber of the mobile telephone number 9588 2770 between 15 May 2020 and 23 March 2021 was under the name of D4;

(2)  the call records of the said 9588 2770 (D4)  between 15 May and 23 October 2020;

(3)  the call forwards records of the said 9588 2770 (D4)  between 17 May and 23 October 2020;

(4)  the mobile telephone number 6898 1997 used by D5 between 7 July 2018 and 23 March 2021 was prepaid without subscriber details;

(5)  the SIM card reference record of the said 6898 1997 (D5);

(6)  the call records of the said 6898 1997 (D5)  between 3 September and 23 October 2020;

(7)  the subscriber of the mobile telephone number 6056 6694 between 2 June 2020 and 23 March 2021 was under the name of WONG Yin-kit (D3’s brother);

(8)  the SIM card reference record of the said 6056 6694 (D3’s brother);

(9)  the subscriber of the mobile telephone number 6541 8876 between 23 February 2019 and 23 March 2021 was under the name of TSANG Shuk-yee (family member of TSANG Sze-wing Rain, a prosecution witness); and

(10)  the subscriber of the mobile telephone number 6791 6789 between 1 November 2017 and 23 March 2021 was under the name of WONG Yin-lin (D3’s sister).

88.  The computer certificate prepared by TAM Sze-wan Cindy of Telecom Digital showing that the subscriber of the mobile telephone number 5117 9586 between 7 September 2020 and 8 April 2021 was under the name of LI Chun-ping is produced as P22 [1^st Admitted Facts P98 §38].

CMO Chat Group between D2, D4 and D5

89.  42 photographs were taken of D2’s mobile telephone (P38), which accurately depicted the messages of a WhatsApp chat group named “CMO” among the mobile numbers of D2 (5340 5825), D4 (9588 2770)  and D5 (6898 1997)  (CMO Chat Group)  exchanged between 4 September 2020 and 19 October 2020. The photographs are produced as P39 and the certified English translation of the messages is produced as P39a [2^nd Admitted Facts P99 §9].

90.  A compact disc containing 108 audio files retrieved from the CMO Chat Group for the period between 4 September 2020 and 19 October 2020 (which were accurately extracted from D2’s mobile telephone (P38)  is produced as P40 and the list of the audio files with the file name, path, size and modified date is produced as P41 [2^nd Admitted Facts P99 §10].

91.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged in the CMO Chat Group between D2, D4 and D5 between 4 September 2020 and 19 October 2020, accurately extracted from D2’s mobile telephone (P38)  is produced as P42 and its certified English translation is produced as P42a [2^nd Admitted Facts P99 §11].

Communication between D2 and D5

92.  A compact disc containing 62 audio files retrieved from the WhatsApp communications between the mobile telephone numbers of D2 (5340 5825)  and D5 (6888 1997)  for the period between 8 September and 23 October 2020, extracted from D2’s mobile telephone (P38)  is produced as P43. The list of these audio files with file name, path, size and modified date is produced as P44 [2^nd Admitted Facts P99 §12].

93.  14 photographs were taken of D2’s mobile telephone (P38), which accurately depicted the WhatsApp messages exchanged between the mobile numbers of D2 (5340 5825)  and D5 (6898 1997)  for the period between 8 September and 23 October 2020. Those photographs are produced as P45 and the certified English translation is produced as P45a [2^nd Admitted Facts P99 §13].

94.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged between D2 and D5 during the period between 8 September and 23 October 2020, accurately extracted from D2’s mobile telephone (P38)  is produced as P46 and its certified English translation as P46a [2^nd Admitted Facts P99 §14].

Extracts from the mobile telephones seized from D3 and his family members

95.  The contact records retrieved from D3’s mobile telephone (P27)  are produced as P47 and the certified English translation as P47a [2^nd Admitted Facts P99 §15].

96.  The Short Message Service (SMS)  records of mobile number 5608 7429 (SIM seized from D3)  are produced as P48 and the certified translation as P48a [2^nd Admitted Facts P99 §16].

97.  On 24 October 2020, the following mobile telephones and SIM cards were seized [2^nd Admitted Facts P99 §17]:

(1)  A black mobile telephone with a SIM card were seized from the home of Wong Sang-Choi (formerly known as LAU Sang-choy), father of D3. The mobile telephone, with the SIM card information are produced as P49 and P50 respectively. WONG Sang-choy was the user of mobile telephone number 6349 8187.

(2)  A black mobile telephone with a SIM card was seized from the bedroom of NG Siu-chi, mother of D3. The mobile telephone with the SIM card of mobile telephone number 6301 0269, and its SIM card information are produced respectively as P51 and P52. NG Siu-chi was the user of the mobile telephone number 6301 0269.

(3)  A mobile telephone with a SIM card was seized from WONG Yin-lung (formerly known as LAU Yin-lung), twin brother of D3. The mobile telephone with the SIM card of mobile number 6901 0617 and its SIM card information are produced as P53 and P54 respectively. WONG Yin-lung was the user of the mobile telephone number 6901 0617.

(4)  A rose gold mobile telephone with one SIM card was seized from WONG Yin-kit (formerly known as LAU Yin-kit), younger brother of D3. The mobile telephone with its SIM card of mobile telephone number 6056 6694 and its SIM card information are produced respectively as P55 and P56. WING Yin-kit was the user of the mobile telephone number 6056 6694.

D5’s mobile telephone records

98.  Nine contact record entries extracted from D5’s mobile telephone (P58)  are produced as P60 and their certified English translations as P60a [2^nd Admitted Facts P99 §19].

Messages between D2 and D5

99.  A compact disc containing 62 audio files and one video file retrieved from the WhatsApp messages between the mobile numbers of D2 (5340 5825)  and D5 (6898 1997)  for the period between 8 September and 23 October 2020, accurately extracted from D5’s mobile telephone is produced as P61 [2^nd Admitted Facts P99 §20].

100.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged between D2 (5340 5825)  and D5 (6898 1997)  during the period between 8 September and 23 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P62 and its certified translation as P62a [2^nd Admitted Facts P99 §21].

Messages exchanged between D3 and D5

101.  The SMS records exchanged between the mobile telephone numbers 6598 7379 and D5 (6898 1997)  for the period between 3 September and 21 October 2020, accurately extracted from D5’s mobile telephone (P58)  are produced as P63 and its certified translation as P63a [2^nd Admitted Facts P99 §22].

102.  The SMS records exchanged between the mobile telephone numbers 5608 7429 and D5 (6898 1997)  on 23 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P64 and the certified translation as P64a [2^nd Admitted Facts P99 §23].

Messages exchanged between mobile number 9588 2770 and D5

103.  A compact disc containing 117 audio files from the WhatsApp messages between the mobile telephone numbers 9587 2770 (subscriber and user being D4)  and 6898 1997 (used by D5)  for the period between 3 September and 9 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P65 [2^nd Admitted Facts P99 §24].

104.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged between mobile telephone numbers 9588 2770 (subscriber and user being D4)  and 6898 1997 (user by D5)  during the period between 3 September and 9 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P66 and the certified translation as P66a [2^nd Admitted Facts P99 §25].

Messages exchanged in the CMO Chat Group

105.  A compact disc containing 108 audio files retrieved from the CMO Chat Group, accurately extracted from D5’s mobile telephone (P58)  is produced as P67 [2^nd Admitted Facts P99 §26].

106.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged in the CMO Chat Group during the period between 4 September and 19 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P68, its certified English translation as P68a [2^nd Admitted Facts P99 §27].

Messages exchanged between D5 and D5’s father

107.  A compact disc containing 6 audio files retrieved from the WhatsApp messages between the mobile numbers of D5 (6898 1997)  and D5’s father (6313 3886)  on 5 October 2020, 6 October 2020 and 22 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P69 [2^nd Admitted Facts P99 §28].

108.  A table of the WhatsApp text messages and transcripts of the audio messages exchanged between D5 (6898 1997)  and his father (6313 3886)  on 5 October 2020, 6 October 2020 and 22 October 2020, accurately extracted from D5’s mobile telephone (P58)  is produced as P70 and its certified English translation as P70a [2^nd Admitted Facts P99 §29].

Messages exchanged between D5 and PW6 Li Chun Ping

109.  The WhatsApp messages exchanged between the mobile telephone of D5 (6898 1997)  and Li Chun Ping (PW5)  (5117 9586)  for the period between 17 October 2020 and 21 October 2020 with one image file attachment, accurately extracted from D5’s telephone (P58)  is produced as P71 and its certified English translation as P71a [2^nd Admitted Facts P99 §30].

Records of CSL Mobile Limited (CSL)  relating to mobile number 6598 7379

110.  The prepaid CSL SIM card with the mobile number of 6598 7379 was activated on 16 July 2020. Between 16 July and 23 October 2020, a total sum of $1,400 was recharged to the prepaid CSL SIM card on a total of 17 occasions. The computer certificate of the prepaid CSL SIM card with the mobile number of 6598 7379 is produced as P72 [2^nd Admitted Facts P99 §31].

111.  At about 1623 hours on 8 September 2020, D5 recharged $300 to mobile telephone number 6598 7379 at a CSL branch in Tsing Yi by using his Octopus card (P59). A compact disc containing the accurate footage captured by the closed circuit television system (CCTV)  system of the CSL branch between 1600 and 1700 hours on 8 September 2020 is produced as P73. The screen captures of the said CCTV footages are produced as P74 and the certified translation as P74a [2^nd Admitted Facts P99 §32].

112.  Between 16 July 2020 and 23 October 2020, calls and SMS were exchanged between the mobile telephone number of 6598 7379 and D4, D5, D3’s parents, D3’s siblings and a number of persons. The details are as follows [2^nd Admitted Facts P99 §33]:

Tel.No.	Calls	SMS	Subscriber	Exhibit	User
9588 2770	324	29	D4	P21	D4
6898 1997	93	48	Prepaid	P21	D5
5514 5212	8	14	Prepaid	P20	Law Kin wing
9154 7536	6	0	/	/	Law Kin wing
5117 9586	10	1	Li Chun Ping	P22	Li Chun Ping (PW5)
6698 8665	150	105	Wong Wai Ping	P19	Wong Sin Yu
6541 8876	152	232	Tsang Shui Yee	P21	Tsang Sze Wing
9085 9983	251	46	Wong Yuk Ling	/	Wong Yuen Man
6349 8187	4	0	Wong Sang Choy	P20	D3’s father Wong Sang Choy
6301 0269	27	0	Ng Siu Chi	P20	D3’s mother Ng Siu Chi
6901 0617	107	33	Wong Yin Lung	P19	D3’s brother Wong Yin Lung
6056 6694	41	6	Wong Yin Kit	P21	D3’s brother Wong Yin Kit
5108 4699	87	697	Lau Yin Ching	P20	D3’s sister Lau Yin Ching
6791 6789	8	1	Wong Yin Lin	P21	D3’s sister Wong Yin Lin
6313 3886	5	0	Lam Siu Wai	/	D5’s father Lam Siu Wai
Others	962	613	/	/	/
Total	2,234	1,825

Records of China Mobile Hong Kong Company Limited relating to mobile telephone 5608 7429

113.  The prepaid SIM card of China Mobile Hong Kong Company Limited with mobile telephone number 5608 7429 (SIM seized from D3)  was activated on 21 August 2020 [2^nd Admitted Facts P99 §34].

114.  Between 21 August and 23 October 2020, calls and SMS messages were exchanged between the mobile telephone number 5608 7429 and D4, D5, D3’s parents, D3’s siblings and other persons. The details are as follows [2^nd Admitted Facts P99 §35]:

Tel. No.	Calls	SMS	Subscriber	Exhibits	User
9588 2770	2	0	D4	P21	D4
6898 1997	8	4	Prepaid	P21	D5
6349 8187	1	0	Wong Sang Choy	P20	D3’s father Wong Sang Choy
6301 0269	1	0	Ng Siu Chi	P20	D3’s mother Ng Siu Chi
5208 4690	1	29	Lau Yin Ching	P20	D3’s sister Lau Yin Ching
6901 0617	20	17	Wong Yin Lung	P19	D3’s brother Wong Yin Lung
9085 9983	8	14	Wong Yuk Ling	/	Wong Yuen Man
Others	30	57	/	/	/
Total	71	121

Bank Statement of D5

115.  On 21 October 2020, a sum of $2,000 was transferred from D5’s Bank of China (Hong Kong)  Limited (BOC)  account numbered 012-739-2-006559-6 to Li Chun Ping’s (PW5)  bank account numbered 012-806-1-030687 also maintained with BOC. The bankers’ affirmation of D5’s BOC account is produced as P75 and its certified English translation as P75a [2^nd Admitted Facts P99 §36].

CCTV of 7-Eleven

116.  Chiu Shui-yu Maggie was the Senior Security Manager of the  7-Eleven at Shop C, G/F, Po Yan Building, 36 Wai Yan Street, Tai Po, New Territories (the 7-Eleven Shop). A CCTV system was installed at the 7-Eleven Shop, which was operating properly at all material times. The CCTV footage files covering the activities at the 7-Eleven Shop for the period from 1906 hours to 1947 hours on 9 October 2020 stored in a USB flash drive is produced as P10 [1^st Admitted Facts P98 §24].

117.  The transaction records of the 7-Eleven Shop were stored in a computer installed at the 7-Eleven Shop. The computer was operating properly at all the material times. The transaction record of the 7-Eleven Shop on 9 October 2020 showing the sale of one piece of Mevius Option Fizzy at the price of $60 and an EPS withdrawal of $500 is produced as P11 [1^st Admitted Facts P98 §25].

CCTV of Circle K

118.  TANG Hoi-lam was the Senior Service Process Executive of the Circle K located at Shop 1, Wan Tau Tong Shopping Centre, 10 Hiu Fai Road, Tai Po, New Territories (the Circle K Shop). A CCTV system was installed at the Circle K Shop, which was operating properly at all material times. The CCTV footage files covering the activities at the Circle K Shop from 0530 hours to 0630 hours on 23 October 2020 stored in a USB flash drive is produced as P12 [1^st Admitted Facts P98 §26].

119.  The transaction records of the Circle K Shop were stored in a computer installed at the Circle K Shop. The computer was operating properly at all material times. The transaction records of the Circle K Shop from 0555 hours to 0610 hours on 23 October 2020, which showed the sale of 2 pieces of Mevius Option Fizzy at the price of $60 each at 06:04:07 hours on 23 October 2020 is produced as P13 [1^st Admitted Facts P98 §27].

Purchases of Cigarettes by D2

120.  At about 1918 hours on 9 October 2020, D2, who was in grey vest with check pattern shorts, purchased a pack of cigarettes at a branch of 7-Eleven located at Shop C, G/F, Po Yan Building, 36 Wai Yan Street, Tai Po, New Territories (CCTV footage: P10; transaction record: P11). The screen captures of the said CCTV footage (P10)  are produced as P10a and the certified English translation as P10b [2^nd Admitted Facts P99 §39].

121.  At about 0604 hours on 23 October 2020, D2, who was in a white tee shirt with colorful horizontal stripes and light grey shorts, purchased 2 packs of cigarettes at a branch of Circle K located around Shop 1, Wan Tsu Tong Shopping Centre, 10 Hiu Fai Road, Tai Po, New Territories (CCTV footage: P12; transaction record: P13).  The screen captures of the said CCTV footage (P12)  are produced as P12a and the certified English translation as P12b [2^nd Admitted Facts P99 §40].

Mark Six Results

122.  Mark Six is a lottery operated by the Hong Kong Jockey Club (HKJC)  under a lottery license issued by the Hong Kong Government. According to the records of the Mark Six Lottery accurately kept by the HKJC, the Mark Six Lottery results on 8 and 22 October 2020 are as follows [1^st Admitted Facts P98 §30]:

Lottery No. / Drawn Date	Drawn Numbers and Extra Number
Lottery No. 20 / 011 drawn on 8 October 2020	21, 28, 33, 34, 40, 47 and Extra number 49
Lottery No. 20 / 013 drawn on 22 October 2020	1, 13, 19, 24, 29, 45 and Extra number 26

Mark Six Results and SMS messages

123.  The Mark Six Lottery results on 8 October 2020 were 21, 28, 33, 34, 40, 47 and Extra Number 49 (1^st Admitted Facts P98 §30], which matched the SMS message sent by the mobile telephone number of Wong Yuen Man (9085 9983)  to mobile telephone number 5608 7429 (SIM seized from D3)  at 2133 hours on 8 October 2020 [2^nd Admitted Facts P99 §37].

124.  The Mark Six Lottery results on 22 October 2020 were 1, 13, 19, 24, 29, 45 with Extra Number 26 (1^st Admitted Facts P98 §30), which matched the SMS sent by the mobile telephone number of Wong Yuen Man (9085 9983)  to mobile telephone number 5608 7429 (SIM seized from D3)  at 2133 hours in 22 October 2020 [2^nd Admitted Facts P99 §38].

Results for Football Matches

125.  The computer certificate containing the results for the football matches in respect of the 2020 / 2021 UEFA Europa League on 23 October 2020 prepared by TSANG Hiu Wa, the Trading Development Manager of the Hong Kong Jockey Club is produced as P15 [1^st Admitted Facts P98 §31].

Records of D5’s Octopus Card

126.  Produced as P16 is the computer certificate prepared by LUNG Tsz-hung of Octopus Cards Limited showing that [1^st Admitted Facts P98 §32]:

i. the Octopus card number 8983031 was registered under the name of D5;

ii. the transaction records of the said Octopus card between 7 and 9 September 2020 which showed that D5 had added value of $300 to the said Octopus card at 1618 hours on 8 September 2020 at a 7-Eleven store and used $300 at 1623 hours on the same day to top-up the prepaid SIM card of 6598 7379 at CSL Limited; and

iii. the merchant’s contact information

Bank Statement

127.  The bank statement issued by the Bank of China to LI Chun Ping (PW5)  dated 14 November 2020 accurately recorded that a bank transfer deposit of $2,000 was made to the bank account numbered 012-806-030687-8 held in the name of LI Chun Ping on 21 October 2020. This bank statement is produced as P14 [1^st Admitted Facts P98 §28].

128.  The aforesaid $2,000 deposit was transferred from a Bank of China account numbered 012-739-006559-6 held in the name of LAM Hon-ki, i.e. D5 [1^st Admitted Facts P98 §29].

Chain of Evidence

129.  The chain of evidence of all the exhibits produced under the 2^nd Admitted Facts P99 is not in dispute. All the photographs produced in the proceedings accurately depict the relevant images and have not been altered or otherwise interfered or tampered with in the process of the preparation of the same [2^nd Admitted Facts P99 §§41 and 42].

130.  The chain of evidence of the prepaid China Mobile SIM card mentioned in the 3^rd Admitted Facts [P102] is not in dispute. The said prepaid SIM card has been properly kept and has not been improperly interfered or tampered with [3^rd Admitted Facts P102 §2].

131.  The chain of evidence of the exhibits produced under the 5^th Admitted Facts (P106)  is not in dispute. The said exhibits had been properly kept and had not been improperly interfered or tampered with [5^th Admitted Facts P106 §3].

PW8

132.  Ms. Tsang Sze Wing, Rain (PW8)  is D3’s friend. She has known D3 for over 10 years and calls D3 by his nickname “Luk Tau”. She knew that D3 had committed crimes and that he was in prison. She wrote him letters and visited D3 in prison in 2020. TFCI’s address was on D3’s letters to her. 

133.  D3 had contacted PW8 by telephone before she visited him in prison. PW8’s telephone number is 6541 8876. She started to visit D3 at TFCI after the first telephone call from D3. There was no dispute that there were 232 SMS messages and 151 telephone calls between PW8’s telephone number and 6598 7379.

134.  PW8’s birthday is on 8 September. At 2046 hours on 8 September 2020, PW8 received a telephone call from D3. The telephone number used by D3 was 6598 7379.

Voice Identification of Covert Audio Recordings and The Telephone Message Incident

PW9

135.  Mr. Li Siu On (PW9)  was called to give evidence about his identification of the voices in covert audio- recordings. His evidence was highly controversial, not only because of the dispute as to the voice identification, but also because of what happened during PW9’s testimony. Witnesses were interposed in the course of PW9’s evidence. This eventually gave rise to an application for a permanent stay, which was dismissed. For ease of reference, I have set out PW9’s evidence by reference to the dates he gave evidence.

13 December 2022 (Day 1)

136.  PW9 has been the Principal Officer of the Security Unit at TFCI since 28 December 2018. His daily duties include the supervision of activities of staff members and prisoners, to ensure that there are no contraventions of Prison rules or the Laws of Hong Kong. If PW9 suspects that there have been such contraventions, he would gather evidence and report the matter to the Duty Officer of TFCI, as well as follow up the progress of the investigation. If the matter involves the breach of Prison rules by a prisoner and can be dealt with by TFCI, the Duty Officer would examine the evidence gathered by PW9 and decide whether to conduct a Disciplinary Hearing. If the matter involves a breach of the law, PW9 would also report to his direct superior in the Service Quality Department.

137.  D1 has been posted to TFCI since 10 December 2018. D3, whose nickname is “Luk Tau”, was a prisoner in TFCI from 20 March 2018 to 23 October 2020.

138.  At about 7 pm on 18 August 2020, the Hong Kong Observatory announced that the number 8 typhoon signal would be hoisted. As the Principal Officer of the Security Unit, PW9 had to go back to TFCI to inspect the facility prior to the typhoon and assess the security risks. When PW9 reached the gate of Dormitory F3, he saw 4 to 5 prisoners gathered at the far end of the Dormitory near D3’s bed. One of the prisoners shouted “Staff is here （有職員到場）”, whereupon the prisoners immediately scattered. PW9 then noticed that 4 of the prisoners looked nervous and that there was a bag at the location where the prisoners had gathered. PW9 memorized the faces of those 4 prisoners. He then asked one of the prisoners to hand over the bag for inspection and discovered that there were chess pieces made with prisoners’ buttons inside the bag. In those circumstances, PW9 suspected that the prisoners have been gambling, which was a breach of the Prison rules. Gambling is not allowed in prison because it involves benefits such as cigarettes, which give rise to conflicts and seriously affects discipline.

139.  PW9 seized the bag and the chess pieces before going back to his office to look for and confirm the identities of the 4 nervous prisoners amongst the photos in his computer. On the following day (19 August 2020), PW9 gave the names of those 4 prisoners to CSD officers Chan Yik Wang (PW6)  and Tai Chuo Wan (Mr. Tai)  for investigation.

140.  Subsequently, PW6 and Mr. Tai reported to PW9 that the 4 prisoners had admitted to playing a “game of chance” (which is regarded as gambling)  inside Dormitory F3 on 18 August 2020. The prisoners used the chess pieces to play “Big and Small （大細）” and the wager was cigarettes. These two CSD officers also told PW9 that they had reported the matter and handed the related evidence, including the cautioned statements of the prisoners to the Duty Officer to conduct a Disciplinary Hearing.

141.  CCTV cameras were installed at both ends of Dormitory F3 but the location of the gambling was not covered by the CCTV.

142.  Prisoners are not allowed to admit to a breach of Prison rules in lieu of another prisoner because this affects fairness both within the correctional institute and at the Disciplinary Hearing. It also affects the daily enforcement of rules inside prison.

143.  D1 was assigned as the supervisor of the CMO in early 2020. Because the work performed by the CMO involved security, PW9 would speak to D1 about once every 2 weeks to discuss security requirements in respect of the work to be performed by the CMO. These are not formal meetings and each of such discussions usually lasted for about 5 to 10 minutes. As a result, PW9 is able to recognize the voice of D1.

144.  PW9 explained that he inspected TFCI with the Superintendent once a week and would see all prisoners, including D3 during such inspections. During such inspections, D3 would proactively greet PW9 and the Superintendent. Their interaction would only last for about 1 minute.

145.  Between September 2020 and late October 2020, PW9 was informed by Prison Headquarters that D3 was suspected to be involved in a case that was being investigated by the ICAC. He was asked to conduct an investigation by listening to the audio recordings of D3’s prison visits. Between September and October 2020, D3 had visitors on 4 to 5 occasions and PW9 listened to the audio recordings of each of those visits at least once or twice. Those recordings lasted for about 3 to 4 hours. As he listened, PW9 would copy excerpts of the recordings which are related to the investigation and report to his supervisor. After listening to those audio recordings, PW9 is able to recognize D3’s voice.

146.  At about 9:42 am on 30 December 2020, PW9 attended the ICAC for voice identification. The ICAC played audio recordings of conversations. PW9 was also given a transcript of those recordings. The transcript marked by PW9 and its English translation are produced respectively as P76a and P76b.

147.  PW9 was able to identify 3 voices in the audio- recordings, namely PW9’s own voice and that of D1 and D3. PW9 used a separate letter to denote each of the voices he recognized and marked them accordingly on the transcript. The letter “A” denotes D1; the letter “B” denotes D3 and the letter “C” denotes PW9. The audio-recordings were played to PW9 in court and he confirmed that the markings he made on the transcript were correct. In the transcript, D1’s name “King Lun” was mentioned [P76a, counter 724]. The phrase “Shui Kee （水記）” is the area for solitary confinement, i.e. 「水飯房」 [P76a, counter 727]. There were some amendments to the markings on the transcript. All the countersigning signatures belong to PW9. He admitted that when he spoke to D1 face to face, D1’s voice was different from D1’s alleged voice in the recordings. However, he only marked the transcript if he was very sure that it was D1’s voice. He denied that his alleged identification of the voices was based on the context of the conversations.

148.  PW9 explained that:

(1)  All CSD officers would be checked as they enter the prison but not when they leave the prison. There is an officer at the main gate of every correctional institution. This officer is responsible for the security checks of every person who enters the institution, including CSD officers. Each CSD officer would be asked to take out all metal objects and unauthorized items before he walks through the metal detector gate. If the alarm of the metal detector gate were activated, a hand held metal detector would be used to perform another security check. If CSD officers did not deliberately hide them to avoid detection, they would not have any unauthorized items inside the prison;

(2)  These checks are conducted to ensure that CSD officers are not bringing unauthorized items into the prison area;

(3)  CSD officers would not be searched again after the security check at the main gate;

(4)  CSD officers are not allowed to bring their own mobile telephones into the prison area;

(5)  Prisoners had to go through a security check when they leave their dormitory by walking through a metal detector gate. A body search would only be conducted if the alarm on the metal detector were activated or if the CSD suspected that the prisoner was in possession of unauthorized items;

(6)  Prisoners working in the CMO worked with sharp tools inside the workshop. They had to go through security measures before leaving the workshop. CSD officers would pat the prisoner’s pockets and body to ensure that there are no concealed objects. If the prisoner had a bag, he would be asked to open the bag to and CSD officers would look inside to see if there were unauthorized items. This security check is normally performed by the CMO supervisor;

(7)  Similar security measures would be conducted when the prisoners go from the CMO to the canteen and from the canteen to the dormitory. The security check at the canteen is performed by officers from other units;

(8)  If D1 suspected that a prisoner working in the CMO was in possession of an unauthorized article, as the supervisor, D1 had the power to stop and search the prisoner. If unauthorized items were found from a prisoner, D1, as the CMO supervisor had the power to seize the item. D1 would then have to report the matter to his immediate superior to commence disciplinary procedures. If the items were illegal (such as drugs), the matter would have to be reported to the CSD Headquarters (i.e. the Service Quality Department)  and passed on to law enforcement agencies;

(9)  Prisoners are only allowed to have “Wealth” and “Gentori” cigarettes but other brands of cigarettes are prohibited;

(10)  Prisoners are not allowed to have unauthorized articles such as mobile telephones in prison;

(11)  Prisoner wages are very low. Cigarettes are comparatively expensive commodities in prison. The prisoners are likely to use cigarettes for illegal transactions and dealings which would affect discipline by causing conflicts and fights. That is why ownership and possession of cigarettes are controlled in prison;

(12)  If the prisoners were allowed to have mobile telephones, they would be able to contact people outside prison and may engage in illegal activities, such as illegal gambling or plans to escape prison, without the detection of the CSD. Not only would this affect discipline inside prison, it may endanger the public. That is why ownership and possession of mobile telephones are also controlled in prison;

(13)  CSD officers are not allowed to give unauthorized items to prisoners;

(14)  If a CSD officer discovers that a prisoner is in possession of an unauthorized item, he should immediately report it to his immediate superior;

(15)  A prisoner is not allowed to ask a CSD officer for favors, such as checking the prisoner’s SIM card. If such a request were made by a prisoner, the CSD officer should report the matter to his immediate superior;

(16)  CSD officers are not allowed to make friends with prisoners during their remand;

(17)  CSD officers are not allowed to communicate with former prisoners;

(18)  Inside prison, the Mevius brand of cigarettes is known as “Cantaloupe”. The nickname of one cigarette is “one fei （一飛）”.

149.  According to CSD records, neither D1 nor D2 had ever reported that D3 was in possession of a mobile telephone or unauthorized cigarettes.

150.  Under cross-examination, PW9 explained that there were under 300 prisoners in TFCI at the material time. During the weekly inspections, the Superintendent and PW9 would spend about an hour inspecting the dormitories, the workshops and the storage. During the inspection, prisoners were expected to stand and greet the Superintendent and PW9 as a group. However, some prisoners, like D3 would proactively initiate greetings to the officers, including PW9. That was the reason why PW9 could recognize D3’s voice.

151.  PW9 denied that there was no mention of D3’s proactive greetings to him in his witness statement. He admitted that he gave his first witness statement (the 1^st witness statement)  in respect of his voice identification on 30 December 2020 (i.e. the same day as the voice identification). It was only almost 2 years later and shortly before the commencement of the trial, on 29 November 2022 that he made his second witness statement (the 2^nd witness statement)  where for the first time, he mentioned that D3 greeted him proactively during the weekly inspections. Initially, he stated that he was invited by the ICAC to give a further statement. Upon further cross-examination, he admitted that he remembered this shortly before the commencement of the trial and he informed the ICAC. That was why the 2^nd witness statement was taken from him.

152.  The first day of PW9’s evidence ended with the defence putting to PW9 that he had lied about his biweekly interactions with D1 and his weekly interactions with D3. This was denied by PW9. He asserted that he could recognize D3’s voice for 2 reasons:

(1)  He had studied the audio-recordings of D3’s prison visits; and

(2)  D3 had greeted him proactively during the weekly inspections.

153.  During Day 1, the Court rose on a number of occasions for the parties to deal with various matters. Every time the matter was stood down, PW9 was reminded not to speak to anyone about the present case. This reminder was repeated before the matter was adjourned to the following day.

14 December 2022 (Day 2)

The Telephone Message Incident

154.  In the morning of Day 2, the Prosecutor informed the Court that she had a matter to report and asked for the Court’s directions. She stated that the officer in charge of the present case, Ms. Cheng Sha (the OC Case)  had been asked to remain outside the Courtroom as it was inappropriate for her to hear the discussions.

155.  The Prosecutor told the Court that at about 1953 hours on Day 1, she received a WhatsApp message from the OC Case and they had a short exchange of messages (the Telephone Message Incident). A copy of the messages on the Prosecutor’s mobile telephone was marked as MFI-2 and reads as follows:

OC Case	Prosecutor
Li wish to have a chance to clarify when he did voice ID, he mainly relied on the visit recordings that he listened intensively around that period. The routine patrol conversations were not he most relied on, that only gave him an impression of D3 Can ask him about it when re-exam!
	I think we can’t talk to him now
I didn’t talk to him…just CSD liaison expressed such view
	IC. Scared the sxxx out of me
	This kind of communication should be stopped too.
Ok emoji

156.  The Court asked the Defence for their observations. D1’s counsel commented that the incident reflected on the quality of PW9’s evidence and that he was not to be trusted. Counsel stated that it was up to the Prosecution to decide whether they wished PW9 to continue giving evidence, D3’s counsel stated that PW9 had clearly disobeyed the Court’s order. D4’s counsel stated that he was shocked by PW9’s behavior but he would like PW9 to continue giving evidence. The Court then suggested giving PW9 a very stern warning.

157.  With the Court’s leave, the Prosecution then decided to interpose with the OC Case (PW10)  to give evidence about Telephone Message Incident before PW9 resumed his evidence.

PW10

158.  PW10 is the officer in charge of the present case. She admitted that at about 6:30 in the evening on Day 1, she received a telephone call from the CSD Liaison Officer, Mr. Wong Pak Wing (PW11). Mr. Wong told her that his colleagues who were observing the case had told him about the situation in Court.  Mr. Wong said that PW9’s evidence was not sufficiently clear. He told PW10 to ask the Prosecutor to re-examine PW9 and allow him to clarify the basis of his voice identification of D1 and D3. That was the whole of their conversation. PW10 promised to ask the Prosecutor. She then sent the above WhatsApp messages to the Prosecutor.

159.  Under cross-examination, PW10:

(1)  Admitted that she saw a male sitting in the Courtroom on the first day of trial and this male confirmed to PW10’s colleague Ms. Salina Siu that he was a CSD officer. Since then, CSD officers were in the Courtroom observing the trial every day. For reasons unknown to PW10, no CSD officer was present on Day 2 (i.e. on the day the Telephone Message incident was reported to the Court);

(2)  Admitted that she was in regular contact with the CSD Liaison Officer, Mr. Edwin Wong Pak Wing. They exchanged mobile telephone numbers in July 2021 when she took over the present case. She would usually communicate with Mr. Wong with the land line in her office. There would also be formal contact through memos;

(3)  There was contact between PW10 and Mr. Wong three to four times after the commencement of the trial. These were to arrange the attendance of CSD officers to give evidence;

(4)  Mr. Wong called PW10 in the evening of Day 1. The call only lasted for a few minutes. However, PW10’s call record showed that her conversation with Wong lasted for 22 minutes;

(5)  Initially, PW10 denied that there was any discussion about PW9’s evidence during this telephone call. However, she changed her evidence almost immediately and said Mr. Wong told her that he knew about PW9’s evidence in Court. He said that he had some ideas and he told PW10 about them. She sent the WhatsApp messages to the Prosecutor after she “digested” what Mr. Wong said;

(6)  PW10 denied that she had requested the Prosecutor to re-examine PW9 in accordance with her WhatsApp message. She said she only wanted advice. However, she agreed that in order to obtain advice, it was not necessary to tell the Prosecutor what the CSD wanted;

(7)  She admitted that she stated in her WhatsApp message that PW9 wanted to be re-examined along the lines of her message. She alleged that the wording of her message was a mistake;

(8)  She admitted that she had been asked by the Prosecutor to stay outside the Courtroom that morning because it was inappropriate for her to hear the discussions inside the Courtroom. However, she was communicating with Ms. Salina Siu by WhatsApp during this time. PW9 alleged that the conversation was about the arrangement of witnesses, especially a colleague called Johnny who had contracted COVID. However, their conversation was as follows:

PW10	Ms. Siu
Let me know what’s happening inside
Li’s in the room near court 6. I’m in the other room
	Ok! Rosa (the Prosecutor)  is talking to them abt last night issue
	The defence just reply ‘he is lying’
	Rosa showed them wtsapp conversation (emojis)
	Court haven’t started yet Rosa just told d1’s counsel about johnny
	They r still finding ways to make copy court haven’t start yet

(9)  She knew that PW9 was incommunicado and should not be discussing his evidence with anyone. She agreed that she should have stopped the conversation. She thought that Mr. Wong’s concerns arose from the observation of CSD officers in Court;

PW11

160.  PW11 is CSD Officer Yu Ho Yin, who is attached to the Headquarters Inspectorate and Security Unit. PW11 admitted that he had been in Court to observe the proceedings on one occasion prior to attending as a witness. He attended Court as part of his work duty and described it as “case monitoring and understanding the progress of the case”. After his observation in Court, he would report to his superior about the progress of the trial, for example the next hearing date. 

161.  Under cross-examination, PW11 admitted that Mr. Wong had sent him to observe the proceedings. He admitted that he was taking notes of the evidence, but denied that these were part of his report to Mr. Wong. He asserted that those notes were for his perusal. However, under further cross-examination, PW11 admitted that he would report to Mr. Wong what had been said in Court but continued to denied that that was the purpose of taking notes. He also denied that he reported what PW9 said in evidence to Mr. Wong. PW11 maintained that he was only in court to “monitor” the proceedings, report whether PW9 was late, the progress of the proceedings and the next hearing date. PW11 admitted that apart from him, there was another CSD officer observing the proceedings in Court but alleged that that officer was not from his Unit and would not be reporting to Mr. Wong.

PW12

162.  PW12 is Mr. Edwin Wong Pak Wing (Mr. Wong). He is attached to the Inspectorate and Security Unit and is the Liaison Officer in this case.

163.  PW12 admitted that he called the officer in charge of this case (PW10)  at about 6:55 pm on Day 1. He explained that he wanted to know the progress and procedure of the case and he also wanted to know about witness arrangements. There was no other reason for his telephone call. However, during his conversation with PW10, he mentioned that the defence alleged that PW9 had fabricated his evidence and asked whether PW9 would be re-examined about that. PW10 then stated that she would consult the Prosecutor. That was the whole of their conversation.

164.  Mr. Wong admitted that he had asked CSD colleagues to sit in the Courtroom on each day of the trial. The purpose was to understand the progress of the proceedings and to arrange the attendance of witnesses because he had to arrange for other colleagues to be on stand by.

165.  Under cross-examination, Mr. Wong admitted that the arrangement of CSD witnesses was not that complicated. He needed to know the progress of the proceedings to arrange manpower in the Correctional Institution if the witness has not completed his evidence. However, he admitted that CSD officers work according to a Duty Roster and that officers giving evidence are assigned “Court Duty” in the Roster.

166.  Mr. Wong alleged that he only called PW10 to see whether PW9 would complete his evidence on Day 2. Subsequently, Mr. Wong admitted that he knew about cross-examination and re-examination. He knew that PW9’s cross-examination had not yet been completed. Under further cross-examination, Mr. Wong asserted despite that knowledge, he wanted to know if PW9 had to attend Court on Day 2.

167.  Mr. Wong denied that he had spoken to PW9 before he called PW10. However, he admitted that he spoke to PW9 after his call to PW10. He explained that the purpose of his call was to inform PW9 that PW9 had to go back to TFCI after he finished giving evidence. He also told PW9 about security issues in the Correctional Institution and told PW9 to follow up. He also reminded PW9 to return to Court the following day and not to speak to anyone about his evidence. He denied that PW9 had told him about PW9’s evidence in Court and PW9’s reliance on audio recordings of prison visits.

168.  Mr. Wong also stated that he had never read PW9’s witness statements. He was asked whether he knew the basis of PW9’s voice recognition. He repeatedly avoided answering the question until the Court ordered him to do so. He stated that he only knew they were based on audio recordings of prison visits after PW9 started giving evidence.

15 December 2023 (Day 3)

169.  Because of the Telephone Incident set out below, PW9 only resumed his evidence on Day 3. The Prosecution had disclosed the telephone records of PW10 and Mr. Wong before they gave evidence.

170.  PW9 denied that he had called Mr. Wong in the evening of Day 1 but admitted that Mr. Wong had called him on his mobile telephone that evening between 7:30 to 8 pm and they spoke for 5 to 10 minutes. He said that they spoke about the following matters:

(1)  Mr. Wong knew that PW9 had been transferred to Pik Uk Prison on 30 November 2022. Mr. Wong also knew that when PW9 had to be quarantined, there were 2 serious security incidents at Pik Uk. Mr. Wong called to instruct PW9 to follow up those security matters after completing his evidence;

(2)  Mr. Wong knew that PW9 did not finish his evidence on Day 1. Mr. Wong reminded PW9 that He may not communicate with anyone about these proceedings and that PW9 had to be in Court punctually.

171.  When he was cross-examined, PW9 was asked to check his telephone records to see if Mr. Wong had called PW9 with Mr. Wong’s mobile telephone. PW9 then stated that he was unable to do so because he had deleted all his telephone records. He asserted that because he was a Security Officer, he had the practice of deleting all his work telephone records every evening. He was afraid that he might lose his telephone and someone may use it for illegal purposes.

172.  PW9 had 2 telephones, one was his personal telephone and the other was a work telephone. During the morning break, the Defence made enquiries with the telephone service providers of PW9’s telephones. SmarTone (the service provider for PW9’s personal telephone)  would need a week to provide the telephone records. The registered user of the telephone is able to access the SmarTone website and can obtain the call records immediately. China Mobile (the service provider for PW9’s work telephone)  need 3 to 4 weeks to provide the call records.

173.  PW9 confirmed that he used his personal telephone to talk to Mr. Wong. He stated that he was willing to obtain the call records of that telephone and provide them to the Defence.

174.  PW9 admitted that although he was in the habit of deleting all call records, he kept the photos inside his telephone. Those photos were marked as MFI-4 and MFI-5. The first page of MFI-4 was a photo of D3’s prison visiting record which was taken at 7:46 on Day 2. He admitted that because he was incommunicado, he should not have looked at documents without the Court’s leave. Photos 2 to 4 were all unredacted photos of Identity Cards of his wife, his son and his domestic helper. There was also a photo of PW9’s Hong Kong Bank Account number and a photo of handwritten notes about security issues in prison. He admitted that although having photos of these information on his telephone was a security risk, he did not delete them. The photo of the handwritten notes on security issues in prison posed a much higher risk. He denied that he had deliberately deleted the call records. He did not know that the call records of other witnesses have been disclosed.

175.  PW9 stated that ICAC officers would also contact him to remind him to attend Court punctually. Other than that, he had only been in contact with Mr. Wong a few times since 13 December. He spoke to Mr. Wong on the evening of Day 1 between 7:30 and 8 pm. He also reported his attendance to Mr. Wong in the morning of Day 2. This call lasted for about 5 minutes because Mr. Wong reminded him not to be late and not to speak to anyone related to these proceedings.

176.  PW9 stated that he would not report to Mr. Wong about this case. Mr. Wong was of a higher rank and the Liaison Officer but he was not PW9’s immediate superior.

177.  Excerpts from PW9’s work telephone was marked MFI-15. He agreed that pages 1 and 2 of MFI-15 was related to incidents in prison, including a case of fighting and self-harm in prison. Page 3 of MFI-15 was a copy of PW9’s witness statement. PW9 admitted that these documents posed security risks but he did not delete them from his telephone. There were 4 recently deleted photos in PW9’s telephone. They were photos of:

(1)  A TVB 55^th Anniversary;

(2)  A CSD officer and another gentleman at a passing out parade;

(3)  A boy with a plate of rice;

(4)  A Facebook page screen capture 「唔緊要嘅：你個人行開咗」.

178.  PW9 explained one of the photos showed his son’s face and he felt the need to delete that photo. There was also a photo of a senior CSD officer at a passing out. However, he agreed that he did not delete all photos that involved security risks. PW9 did not deny that there were many undetected photos of his son in his telephone but denied that he was lying about the deletions.

179.  PW9 asserted that he did not know that CSD would send officers to observe the proceedings. He has not spoken to any of those officers.

180.  PW9 denied that Mr. Wong was the point of contact between the CSD and ICAC during the arrest operation. He stated that the point of contact for the CSD was a Superintendent in the Headquarters of the CSD Inspectorate and Security Unit. PW9 was directly instructed by the Superintendent Tang (Superintendent Tang)  to deal with this case at TFCI. PW9 was the person in charge of the investigation within TFCI. He was assisted by Li Kiu Kwong (PW3)  and Lam Man Meng (PW2). PW9 knew that there was an investigation in September 2020 and that D1 and D2 may also be involved. PW9 was asked to check D3’s prison visit records and collect intelligence about D3 within TFCI. However, PW9 was only informed of the intended arrest operation by Superintendent Tang on the day of D3’s arrest. That was why CSD officer Lam Man Mang (PW2), who was on leave that day, was asked to return to TFCI. PW9 did not have to meet with the ICAC officers who came to interview D3.

181.  PW9 does not know why D3 was not interviewed by the ICAC in TFCI. He was told by Superintendent Tang that D3 had been moved to Stanley prison. The decision for ICAC to interview D3 at Stanley Prison was not made by PW9. As far as he knew, there were CCTVs inside visit rooms in all correctional institutions. Those CCTVs have video recording but not audio recording capabilities. Facilities with both video and audio recording capabilities are only available in the CSD Academy.

182.  The matter was adjourned for the Prosecution to obtain PW9’s call records. PW9’s 2 telephones were also seized by the ICAC.

19 December 2022 (Day 4)

183.  PW9’s personal and work telephones were seized on 15 December 2022. The call records of both telephones between 13 to 15 December 2022 were available and were served on the Defence. The parties were able to identify some of the telephone numbers in those records. However, PW9 refused to disclose the passwords to his WhatsApp on those telephones. The police were trying to see if they could access the deleted messages without passwords.

184.  On the same day, a medical certificate from a private doctor was submitted to the Court, which stated that PW9 had been given 2 days’ sick leave as he was not mentally fit at attend Court to give evidence. The proceedings were adjourned until 21 December 2022.

21 December 2022 (Day 5)

185.  The Court was informed that the police were unable to retrieve PW9’s deleted WhatsApp messages or WhatsApp call records without passwords. A further medical certificate from the same private doctor was submitted to the Court. Which stated that PW9 was suffering from depression and anxiety; PW9 had been given 8 days sick leave until 28 December 2022. The Defence wanted to finish the evidence of PW9 before other prosecution witnesses are called; the Defence may have “an application” to make at the end of PW9’s evidence. The matter was adjourned to 29 December 2022.

29 December 2022 (Day 6)

186.  A further medical certificate from the same private doctor was submitted. It stated that PW9 was still unfit to give evidence. The Prosecution invited the Court to adjourn the matter to 3 February 2023 for the Prosecution to update the Court and the Defence on PW9’s condition and the Prosecution’s position in respect of PW9’s evidence. Counsel for D4 had also tested positive for COVID. The parties asked for 27 and 28 March 2023 to be reserved for argument, as the objected to the way in which the Prosecution wished to deal with PW9’s evidence.

3 February 2023 (Day 7)

187.  The Prosecution informed the Court that PW9’s sick leave ended in 6 January 2023 and has returned to work. He is still on medication but is not required to attend regular follow-up treatment. The Prosecution confirmed that PW9 would be able to attend Court on 27 March 2023.

27 March 2023 (Day 8)

188.  Under cross-examination, PW9 stated that he only knew that Mr. Wong was posted to the Inspectorate and Security Unit. This unit was responsible for security facilities in the CSD and data security. Mr. Wong was a Superintendent but PW9 did not know Mr. Wong’s role within the Unit. PW9 is an Acting Chief Officer. Under work protocol, if Mr. Wong had instructions for PW9, Mr. Wong should contact PW9’s direct superior, who is also a Superintendent. PW9’s direct superior would then give PW9 the appropriate command.

189.  PW9 agreed that Mr. Wong’s office was in the Wanchai Headquarters. However, he said he was not sure if that office was in the Court building. PW9 stated that there was no reason for him to contact any other CSD officer at the Wanchai Headquarters.

190.  PW9 admitted that his work telephone was issued to him by the CSD. He was careful to differentiate between his personal and work telephones; his work telephone would only be used for work. He would use his own telephone for personal matters.

191.  PW9 admitted that he knew that the CSD can have access to records of his work telephone. He asserted that he was not sure if Mr. Wong had his work telephone number. He admitted that prior to the present case, there was no reason for Mr. Wong to contact him directly.

192.  PW9 stated that he did not know that Mr. Wong called PW10 at about 6:45 pm on Day 1 or that call lasted for until about 7:17 pm (i.e. 32 minutes). PW9 admitted that he received a telephone call from Mr. Wong at 07:18 pm. He admitted that Mr. Wong never had any reason to call him about work prior to Day 1. PW9 admitted that there was no reason for Mr. Wong to talk to him except about the present proceedings. However, he denied that the whole purpose of Mr. Wong’s call in the evening of Day 1 was to discuss his evidence.

193.  PW9 alleged that he cannot remember what was discussed during the telephone call in the evening of Day 1. He cannot recall what he told the Court in his previous evidence. PW9 admitted that according to his work roster, save for 10 December 2022, he was not required to be in the Correctional Institution between 5 and 18 December 2022 (MFI-8).

194.  PW9 admitted that all his call records have been deleted before 9:30 am on Day 3 but he claimed that he does not recall when they were deleted. He also claimed that he does not recall that Mr. Wong’s personal telephone number is 9543 6943. PW9 admitted that according to his call records (MFI-6 and MFI-6a):

Dialed No.	Start Date and Time	Duration	Subscriber No.	Dialed No. / Caller No. display
61225624	13 December 2022 17:24:12	37	62390270	61225624
Incoming call	13 December 2022 17:29:45	9	62390270	95512440
95512440	13 December 2022 17:43:26	131	62390270	95512440
61225624	13 December 2022 19:07:58	176	62390270	62225624
Incoming call	13 December 2022 19:18:10	618	62390270	95436943 Mr. Wong’s personal telephone
Incoming call	13 December 2022 19:18:10	159	62390270	95512440
95512440	13 December 2022 20:11:17	23	62390270	95512440
68995159	14 December 2022 07:15:54	328	62390270	68995159
25826022	14 December 2022 07:26:25	363	62390270	25826022 Mr. Wong’s office landline
Incoming call	14 December 2022 07:34:38	109	62390270	68995159
Incoming call	14 December 2022 07:43:40	178	62390270	25822900
Incoming call	14 December 2022 07:48:06	435	62390270	25822900
90206407	14 December 2022 09:17:30	125	62390270	90206407 Mr. Wong’s work telephone
Incoming call	14 December 2022 10:03:35	4	62390270	25822900
Incoming call	14 December 2022 11:27:02	34	62390270	25822900
68995159	14 December 2022 12:28:25	39	62390270	68995159
Incoming call	14 December 2022 13:31:17	29	62390270	51191204 Ms. Salina Siu
25826022	14 December 2022 13:32:46	36	62390270	25826022 Mr. Wong’s office landline
25826021	14 December 2022 13:38:15	43	62390270	25826021 CSD Wanchai Headquarters (MFI-7)
21287278	14 December 2022 16:55:57	17	62390270	21287278

195.  PW9 claimed that he does not recall whose number was 61225634 or 95512440. He does not remember any of these telephone calls although he previously gave evidence about the calls at 7:18 pm (from Mr. Wong’s personal telephone)  on Day 1 or 09:17 (from Mr. Wong’s work telephone)  on Day 2. When asked about the incoming telephone calls from numbers starting with “2582”, he asserted that he called the CSD office in Wanchai to ask about arrangements as he has been waiting to give evidence all day.

196.  PW9 denied that he wanted to be re-examined on the basis of his voice recognition or that he told Mr. Wong that he relied mainly on the audio prison visit recordings and not the weekly greetings from D3. He said that PW10 was making things up.

197.  When asked about his previous evidence, PW9 stated that he had no memory of anything he told the Court, including:

(1)  whether he relied on the audio of recordings of prison visits or the weekly interactions with D3 for his voice recognition or any of his evidence about the basis of his voice identification;

(2)  that D3 would greet him proactively during weekly inspections of TFCI;

(3)  the actual basis of his voice recognition;

(4)  that he went to the ICAC to do voice recognition;

(5)  the Gambling Incident on 18 August 2020 or any of the evidence he gave about that incident;

(6)  his identification of D3 in Court. He can only recognize one of the Defendants as a former colleague;

(7)  whether he conducted any investigation about the ownership of the mobile phone seized by the ICAC, and what sort of investigation, if any.

198.  PW9 admitted that prisoners may apply for a bag. The prisoner’s number is printed in the bag. However, some prisoners leave their bags when they are discharged and allow other prisoners to keep their bags. The CSD had no mechanism to ensure that prisoners return their bags upon discharge but CSD officers would perform periodic checks to see if prisoners had unauthorized items. He can no longer recall whether this was done in TFCI in 2020.

199.  PW9 admitted that prisoners would place their bags on the ground when they are occupied with some activities, such as basketball. It was possible for prisoners to get mixed up with their bags. He does not remember the number of the bag seized from D3.

Special Issue: D3’s Record of Interview

200.  The voluntariness of D3’s record of interview was in dispute.

PW13

201.  Mr. Lai Kwun Hung (PW13) is an ICAC investigating Officer. He arrived at TFCI with his colleague Mr. Chong Yik Pui at about 1610 hours on 23 October 2020 in the course of his duties. The purpose of his visit was to interview D3 and conduct a search of D3’s dormitory and work place.

202.  After his arrival at TFCI, CSD officers took the ICAC officers near the Duty Officer’s office. The CSD officers pointed out D3, who confirmed his identity to PW13. PW13 then told D3 that the ICAC suspected that:

(1)  D3 had bribed a CSD officer; and

(2)  D3 had conspired with a CSD officer to introduce unauthorized items into prison.

203.  After D3 was cautioned by PW13, CSD officers arranged for PW13 and his colleague to search D3’s dormitory (Dormitory F)  and work place. At the time of the search, PW13 knew that a Magistrate had signed the search warrants which are yet to be delivered to him at TFCI. He admitted that the search was conducted before the arrival of those warrants.

204.  The search of D3’s dormitory took about 30 minutes (from about 4:45 pm to 5:15 pm). Three items were seized, including P37, which was a document that appeared to belong to another prisoner called Lam Hon Ki (no. 411208). P37 was found in a plastic drawer under D3’s bed inside the Dormitory.

205.  PW13 and his colleague then went to the CMI Workshop to conduct a search. PW13 asked D3 how D3 charged his telephone and the location of the charger. D3 took PW13 to the storage room of the Workshop and pointed at a DVD player. At the time, there was a USB cable on top of the DVD player. These 2 items were seized. The USD cable was produced as P77 and the DVD player as P78.

206.  During the search, PW13 was informed by CSD officers that D3 had to be transferred to Stanley Prison immediately because of security reasons. Items seized from D3 by the CSD were handed over to PW13. PW13 and his colleague left the prison before 6 pm.

207.  At about 8:45 pm on the same day, PW13 and his colleague met D3 again at Stanley Prison to take a record of interview from him. PW13 repeated the ICAC’s suspicions to D3 and D3 agreed to an interview. A notice to persons under investigation by the ICAC was served on D3, which D3 read and signed. The notice is produced as P86. The record of interview commenced at 8:58 pm inside a visitor’s room in Stanley Prison. PW13 repeated the ICAC’s suspicions and cautioned D3 again. PW13 then described what had happened at TFCI earlier that day. PW13 then wanted to show the seized items to D3 (including the DVD player, the USB cable, the prisoner’s bag, the mobile telephone, 3 packets of cigarettes, 5 lighters, 1 nail clipper, 1 tri-colour ball pen, a pair of homemade clippers, a watch without a strap, and a key or some keys). Those items (which were inside a sealed evidence bag)  had been placed inside a locker of the visitor’s room. PW13 asked for permission to bring the seized items into the visitor’s room but was not allowed to do so.  He therefore proceeded with the interview without the seized items. During the interview, PW13 asked questions, whilst his colleague Mr. Chong recorded the questions and answers in writing. During the interview, D3 asked to go to the washroom. He was allowed to do so and returned to the room to continue the record of interview at 2203 hours (and not 2133 hours which was written by mistake in the record of interview). The record of interview ended at 2355 hours. D3 read the record of interview and was informed of his rights. D3 also signed at the end of each of his answers. PW13 confirmed that the record of interview was given by D3 voluntarily.

208.  PW13 met D3 again at about 4 pm on the following day (24 October 2020)  in the visitor’s room of Stanley Prison to give D3 a copy of the record of interview and D3 signed to acknowledge receipt of the same. PW13 informed D3 that some further items related to the present case have been found and explained that he also wanted to conduct a second record of interview. However, D3 refused to answer any further questions or sign PW13’s notebook. PW13 and his colleague then left.

209.  Under cross-examination, PW13 agreed that the ICAC would conduct records of interview by using video recorded facilities if possible and practicable. However, he explained that no such facilities were available in prisons. He denied that he had deliberately conducted D3’s record of interview in the absence of video-recording facilities. It was suggested to PW13 that:

(1)  D3 asked for a lawyer but his request was refused;

(2)  D3 was threatened by PW13 and / or his colleague that unless D3 co-operated with the ICAC, D3’s whole family would be arrested (「你已經衰咗，要同我哋合作，如果唔係，就拉埋你全部屋企人」）；

(3)  PW13 or his colleague told D3 that the ICAC already knew that D3 had used the telephone to call his family;

(4)  PW13 or his colleague told D3 that D3’s family would not be arrested if D3 co-operated;

(5)  PW13 or his colleague told D3 that the ICAC mainly wanted to “nail’ the 2 CSD officers. D3 should refuse to answer questions if they were against his interests;

(6)  PW13’s colleague fabricated the answers which did not come from D3;

(7)  CSD officers pointed out the DVD player or the USB cable to PW13, not D3.

210.  PW13 denied each of those allegations.

211.  PW13 stated that the search of the Dormitory was conducted in D3’s presence. He denied that the seized items have not been shown to D3 but agreed that the items seized from the Dormitory were not mentioned in the record of interview. He explained that those items were not unauthorized objects and some of them appeared to be related to another person. Those items were not a priority during the record of interview.

212.  PW13 did not take photographs of the seized items because he was not allowed to bring his telephone into prison and had no camera. On 24 October 2020, PW13 was allowed to bring the seized items into the visitor’s room of Stanley Prison and wanted to ask D3 to confirm that the items were found and seized during the searches. However, D3 refused to answer questions.

PW14

213.  Mr. Chong Yik Pui (PW14)  is also an ICAC Investigation Officer. He went to TFCI with PW13 on 23 October 2020 to conduct a search of D3’s dormitory and workplace, as well as a record of interview.

214.  Upon arrival at TFCI, PW14 understood that the CSD officers had already conducted a search of D3 and unauthorized articles have been seized. When the two ICAC officers saw D3, the ICAC’s suspicions were explained and D3 was cautioned.

215.  PW13 and PW14 first searched Dormitory F in the presence of D3 and CSD officers. Three items were seized from a plastic box under D3’s bed in the dormitory, including P37, P104 (a piece of paper)  and P105 (a notebook). On the piece of paper were the names and details of another prisoner Lam Hon Ki. A search was then conducted at the CMO Workshop. During the search, PW13 asked D3 how D3 charged his telephone. D3 took the ICAC officers to a storage area inside the workshop and pointed at a DVD player. There was a USB cable on top of the DVD player. During the search, CSD officers stated that D3 had to be transferred to another prison. A bag containing items seized from D3 by the CSD was handed to PW13 (including a foldable telephone, 3 packets of cigarettes, some lighters). PW14 then left TFCI with PW13.

216.  PW14 met D3 again sometime before 9 pm in Stanley Prison to conduct a record of interview inside a visitor’s room. A notice to persons under investigation by the ICAC was served on D3. D3 signed the notice after rights set out in the notice were read out and explained to him.

217.  The record of interview started at about 8:58 pm. PW13 asked questions whilst PW14 was responsible for recording the questions and answers in writing. D3 read the record of interview. D3 signed at the end of each answer and at the corner of each page. The last sentence on page 7 of the record of interview was written by D3.

218.  PW14 explained that it was the original plan to show the seized items to D3. However, the ICAC was told that they had to make a written request for permission to take the seized items into the visitor’s room. PW13 and PW14 therefore decided to proceed with the record of interview without the seized items. During the record of interview, D3 asked to use the washroom. The time that D3 returned to the room was a typographical error. The interview ended at 2355 hours.

219.  PW14 went to Stanley Prison with PW13 again at about 3:30 pm on 24 October 2020. The purpose of this visit was to serve a copy of the record of interview on D3. The ICAC also wanted to conduct a further record of interview. D3 refused to answer any further questions and PW14 left with PW13.

220.  Under cross-examination, it was suggested to PW14 that:

(1)  D3 never pointed out the DVD player or the USB cable to the ICAC. It was the CSD who brought the items to PW13 and PW14;

(2)  D3 told PW13 and PW14 that he wanted a lawyer for the record of interview;

(3)  All the answers came from PW14 and not D3;

(4)  D3 was threatened by PW13 and / or his colleague that unless D3 co-operated with the ICAC, D3’s whole family would be arrested (「你已經衰咗，要同我哋合作，如果唔係，就拉埋你全部屋企人」）；

(5)  PW13 or his colleague told D3 that the ICAC already knew that D3 had used the telephone to call his family;

(6)  PW13 or his colleague told D3 that D3’s family would not be arrested if D3 co-operated;

(7)  PW13 or his colleague told D3 that the ICAC mainly wanted to “nail’ the 2 CSD officers. D3 should refuse to answer questions if they were against his interests.

221.  All the above allegations were denied by PW14.

Application for Permanent Stay

222.  At the end of the Prosecution evidence and before dealing with the admissibility of D3’s record of interview, Counsel for each Defendant made an application for permanent stay of proceedings in the light of the Telephone Message Incident. That application was dismissed [See separate ruling].

Defence Evidence on Special Issue

223.  After the application for permanent stay was dismissed, I ruled that D3 a case to answer on the special issue. D3 elected to give evidence on the special issue.

224.  D3 admitted that he was intercepted, searched and arrested in 23 October 2020 and that the video-recording of the interception and search was played in Court (P26). After the video-recording was stopped, many CSD officers brought a collection of evidence before the arrival of the ICAC. Thereafter, D3 was taken to Stanley Prison.

225.  D3 was interviewed by 2 ICAC officers (PW13 and PW14)  between 8:30 pm and midnight in a visitor’s room in Stanley Prison on the same day. Before the commencement of the record of interview, D3 told PW13 and PW14 that he was very tired and was not mentally or physically fit to make a statement. He also told the ICAC that he wanted a lawyer. However, this was ignored by the 2 ICAC officers. They told D3 that D3 was doomed and that he had to co-operate with the ICAC; otherwise D3’s family will all be arrested. If D3 co-operated with the ICAC, the ICAC will not mess with D3’s family. D3 was very scared and tired. He asked the 2 ICAC officers how he should co-operate (「我應該點樣配合你哋」). The 2 ICAC officers told D3 that they wanted to nail the 2 CSD officers (「整死兩個懲教署職員」). They told D3 that they will ask questions but they will also provide the answers. They also told D3 not to answer questions that are against his own interest. If D3 cooperated, the ICAC will not mess with D3’s family (「如果對你自己不利嘅就唔好答。如果你配合我哋，我哋就唔搞你屋企人」). The ICAC then wrote all the questions and answers. When the ICAC officers asked D3 to sign the statement, D3 hesitated. The 2 ICAC officers said “if you do not co-operate now, if you do not follow our script, we will arrest you and the people that you called” (「如果你而家唔合作，唔跟住我哋故事行嘅話呢，就拉你同你打過電話俾佢哋嘅人」). At this time, D3 noticed that there were CCTV cameras inside the visitor’s room. The CSD officers in Stanley Prison can see that D3 never picked up a pen until he was asked to sign the record of interview. He was scared but eventually decided to sign the record of interview involuntarily.

226.  Under cross-examination, D3 agreed that in TFCI, lunch time was between 12:15 pm and 2 pm. He asserted that he did not have lunch on 23 October 2020. When it was pointed out that he was only intercepted at about 4 pm on 23 October 2020, his explanation was that he did not know the time because prisoners had no access to clocks. D3 admitted he wrote his name and signed the notice to persons under investigation by the ICAC. However, he alleged that he did not read the notice. He further alleged that on his way to the visitor’s room, he had told CSD officers at Stanley Prison that he was mentally and physically unfit to give a statement but the CSD officers insisted on D3 attending the interview. In any event, prisoners had no right to refuse to attend an interview.

227.  D3 admitted that he not only signed at the end of each answer, he also wrote the date and time. However, he asserted that none of the answers were given by him. They were all fabricated by the ICAC. He did not read the record of interview carefully. He only signed because he was very tired, scared and unfit to give a statement.

228.  At about 3:30 pm on the following day (24 October 2020), PW13 and PW14 went to Stanley Prison to see D3 again. The Prosecution pointed out that PW13 and PW14 gave evidence that they served D3 a copy of the record of interview and asked for a 2^nd record of interview. D3 accepted a copy of the record of interview but refused to have a second interview or sign anything. That evidence was never disputed. D3 said he did not remember any of those matters. 

229.  The Prosecution pointed out that D3 never asked for a lawyer or told the ICAC that he was unfit to give a statement. Those allegations were denied by D3. He denied that he had fabricated the allegations against the ICAC officers. D3 admitted that he knew that it was not a criminal offence for his family to receive his telephone calls. He explained that because he had admitted calling his family, he was worried that his family may be affected.

Analysis of Evidence

Principles

230.  The is a criminal court. I remind myself that the Prosecution bears the burden of proving each of the charges beyond all reasonable doubt. If there were any reasonable doubt, the benefit of that doubt must go to the Defendants.

231.  D1 has a clear record. I remind myself that he is more likely to tell the truth and less likely to commit an offence.

232.  There are a number of Defendants in the present case. I remind myself that admissions made by one defendant is not evidence against the other defendants.

The Prosecution Evidence

PW1 to PW4

233.  The evidence of PW1, PW2, PW3 and PW4 were basically not in dispute. Although there was some cross-examination, those questions were only for clarification. PW4 was cross examined about the number of sections within the Centre Division which was wholly irrelevant. Their evidence was clear and direct.  PW2 and PW3’s evidence was also consistent with the video recording of the search. I found them to be credible and reliable witnesses, I accept their evidence.

PW5

234.  PW5’s evidence was self-contradictory and inconsistent with undisputed evidence:

(1)  Initially said that the gambling was discovered by 2 to 3 CSD officers when they came into Dormitory F3 and asked what the prisoners were doing. However, he then immediately changed his evidence and stated that the CSD officers only shouted through the gate, said the prisoners were gambling and told D3 to bring the homemade chess set out to them. He even agreed under cross examination that the CSD officer who discovered the gambling never opened the gate of Dormitory F;

(2)  PW5 was asked to describe the game that the prisoners were playing. He stated that the game was similar to “Big 2” (鋤大弟）. Each player had 8 chess pieces which were made by writing words on buttons including king 「公」, Car「車」, Horse 「馬」, Canon 「炮」, General 「仕」, Elephant 「象」 and Solider 「兵」). The players take turns to play their chess pieces. A player can only play a chess piece that is larger in value than the chess piece played by the last player 「鬥大」. The person who gets rid of all his chess pieces first wins the game. At the end of the game, the buttons left in the 3 losers’ hands are counted. Each button incurs 1 point. However, a player may also incur double, triple or quadruple points; this depends on the number of chess pieces left in the loser’s hand at the end of each game. Before they start playing, the players would agree on the number of chess pieces that would incur double, triple and quadruple points. For example, if the loser has 7 buttons in his hand at the end of the game, he may incur triple points (i.e. 7 X 3 = 21 points); if he still has all 8 chess pieces, he may incur quadruple points (i.e. 8 X 4 = 32 points). At the end of 10 games, the points would be counted. The bets are placed in cigarettes. Each cigarette is worth 10 points. This was wholly inconsistent with his description of the game during the investigation and in the Adjudication Report (P25 and P25a). At that time, PW5 stated that the home made chess pieces were placed inside a bag. Each of the players drew a chess piece out of the bag. The player with the chess piece of lowest value would be the loser and had to pay each of the winners 1 cigarette;

(3)  PW5 stated that the morning after the gambling incident, CSD officers asked D3 to go out of Dormitory F for a chat. When D3 returned, he stated that 4 prisoners including PW5 had to go to the CSD officers to confess. There is no evidence of such incident from PW6;

(4)  PW5 stated that when the CSD officers came to Dormitory F to effect the arrest of the gamblers, no gamblers had yet been identified. The CSD officers only asked who was involved in the gambling. This evidence was inconsistent with the evidence of PW6 and PW9. According to PW6, the names of the suspects were given to him by PW9. PW9’s evidence was consistent with PW6.

235.  The Prosecution admitted that PW5’s description of the game in Court was inconsistent with the description in the Adjudication report. However, the Prosecution argued that the cautioned statements of PW5 and the 3 other prisoners were not available to be produced as exhibits; the exact circumstances in which the cautioned statements were taken are not known.

236.  Firstly, PW6 is a prosecution witness. Unless the Prosecution applies to turn a prosecution witness hostile, it is bound by the evidence of its own witness.

237.  P25 and P25a are prosecution exhibits which were admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221. It was further admitted that the Adjudication Report was an accurate record of the hearing. Such evidence is conclusive evidence.

238.  By the end of PW5’s evidence, it would be clear to the Prosecution that PW5’s description of the game was wholly inconsistent with the Adjudication record. Further, PW6 described the circumstances in which the cautioned statements were taken in Court. The Prosecution never sought clarification from PW6. PW6 was never asked whether the cautioned statement of PW5 was available for production. The Prosecution is giving evidence from the Bar bench.

239.  PW5 was recalled for further cross examination. PW6’s description of the game was put to PW5. Not only did PW5 disagree with PW6’s description, he denied that he gave the same description in his cautioned statement. This was wholly contrary to the Adjudication Report (P25 and P25a). According to the Adjudication Report, PW6 was called to give evidence during the Adjudication. PW6 gave a description of the game which was wholly consistent with his evidence in Court. PW5 confirmed during the Adjudication that he understood PW6’s evidence and he agreed with it. There was no re-examination by the Prosecution.

240.  In the circumstances, I did not find PW5 to be an honest or reliable witness. I only accept the parts of his evidence that are undisputed, namely:

(1)  PW5 was a prisoner of TFCI at the material time;

(2)  PW5 was assigned to Dormitory F3 and lived with D3 at the material time;

(3)  There was a gambling incident inside Dormitory F3 on 18 August 2020;

(4)  The game was a game of chance that was played using chess pieces made with buttons;

(5)  The gambling was discovered by the CSD;

(6)  On 19 August 2020, 4 prisoners including PW5 were interviewed by PW6 where they all confessed to taking part in the game;

(7)  An Adjudication hearing was conducted where the 4 prisoners pleaded guilty and admitted the allegations made by PW6;

(8)  P25 is an accurate record of the Adjudication process;

(9)  PW5 was punished after the Adjudication hearing;

(10)  After discharge from prison, PW5 called D3’s younger brother;

(11)  After discharge, there were 10 calls from PW5’s mobile telephone number to mobile telephone number 6598 7379;

(12)  Subsequently, PW5 called D5’s mobile telephone;

(13)  Between 17 and 21 October 2020, WhatsApp messages were exchanged between PW5 and D5 (P71 and P71a);

(14)  In the WhatsApp messages, PW5 asked D5 to make payment on D3’s behalf;

(15)  On 21 October 2020, D5 deposited $2,000 into PW5’s bank account and sent PW5 an image of the deposit slip.

PW6

241.  PW6’s evidence was basically undisputed. Although he was cross-examined, he was only asked to clarify some details. His evidence was consistent with the disciplinary hearing record (P25 and P25a).  I found him honest and reliable. I accept his evidence.

PW7

242.  PW7’s evidence was clear and direct. He was unshaken under cross-examination. I found him to be an honest and credible witness. I accept his evidence.

PW8

243.  PW8’s evidence was not in dispute. She was not even cross examined. I found her to be an honest and credible witness. I accept her evidence.

PW9 to PW12

244.  I did not believe PW9, PW10, PW11 and PW12. Their evidence was self-contradictory, inconsistent with each other, illogical, contrary to telephone records:

PW9

(1)  Under work protocol, if Mr. Wong had instructions for PW9, Mr. Wong should contact PW9’s direct superior, who is also a Superintendent. PW9’s direct superior would then give PW9 the appropriate command. However, when confronted with Mr. Wong’s direct call to him about this case, PW9 changed his evidence. He stated that Mr. Wong could call anyone if the matter involved security;

(2)  PW9 called the number 61225624 twice on Day 1 and spoke for a total of 213 seconds (i.e. 3 minutes and 33 seconds). Yet he claimed that he did not know who this telephone number belonged to;

(3)  On Day 1, there were 4 telephone calls between PW9 and 95512440; 2 of which were initiated by PW9. They spoke for a total of 182 seconds (i.e. 3 minutes and 2 seconds). Yet PW9 claimed that he did not know who this number belonged to;

(4)  PW9 and Mr. Wong claimed that they only spoke for a few minutes in the evening of Day 1. Mr. Wong only reminded PW9 to be punctual, not to speak to anyone about his evidence and to follow up on security matters in prison after he completes his evidence. However, PW9’s call records show that the conversation lasted for 618 seconds (i.e. 10 minutes and 18 seconds);

(5)  PW9 alleged that he only called Mr. Wong once on Day 2 to report his attendance (at 09:17:30). This call was made to Mr. Wong’s office land line at 07:26:25 on Day 2 which lasted for 363 seconds (i.e. 6 minutes and 3 seconds). There were 2 further calls from a number starting with “2582” at 07:43:40 and 07:48:96 which lasted a total of 791 seconds (i.e. 13 minutes and 11 seconds). That means a total call time of 19 minutes and 14 seconds). At that time, the Prosecution had not yet reported the Telephone Message Incident to the Court. PW9 admitted that apart from the present case, there was no reason for him or Mr. Wong to call each other;

(6)  Initially, PW9 asserted that he called at 09:17:30 to report his attendance in Court and Mr. Wong reminded him not to speak to anyone about these proceedings. However, that conversation lasted for 125 seconds (i.e. 2 minutes and 5 seconds);

(7)  In the afternoon of Day 2, when PW8 was still waiting to resume his evidence, PW9 received a call from Mr. Wong’s office landline (25826022), followed by mother call from a 25826021. Those 2 calls lasted for a total of 79 seconds (i.e. 1 minute and 19 seconds);

(8)  PW9 claimed that part of his conversation with Mr. Wong related to security issues in Pik Uk prison. Firstly, PW9 admitted that this was contrary to normal work protocol. Secondly, PW9 admitted that there was no reason for him and Mr. Wong to speak about work, other than the present case. Thirdly, Mr. Wong alleged that he called PW10 to talk about witness arrangement, as he had to assign another officer to take PW9’s place in PW9’s absence. In other words, another officer assigned to take PW9’s place could deal with urgent matters if necessary. PW9 also admitted that the officers in prison would call him for instructions if anything urgent arose in his absence. Fourthly, according to PW9’s work roster, he was not even due back in prison until 19 December 2020. In the normal course of events, PW9 would have been able to resume his duties in prison as scheduled. There was clearly no urgency for Mr. Wong to speak to PW9 when PW9 was in the course of giving his evidence;

(9)  PW9 admitted that there was no reason for him to speak to anyone in the Wanchai Headquarters apart from Mr. Wong. The only and irresistible inference is that all the telephone calls between PW9 and the Wanchai CSD headquarters telephone numbers were conversations with Mr. Wong. In other words, PW9 spoke to Mr. Wong for a total of 1,719 seconds (i.e. 28 minutes and 39 seconds)  between 19:18:10 on Day 1 and 09:17:30 on Day 2 before the Telephone Message Incident was reported to the Court. PW9 and Mr. Wong’s description of their conversations cannot be true.

(10)  When asked to explain the incoming calls from 25822900 on Day 2, PW9 stated he called the Wanchai Headquarters to ask about witness arrangements. This was clearly untrue, as it was the Headquarters calling PW9;

(11)  After his call records were available, PW9 alleged that he could not recall anything, including matters that he told the Court he was sure about in his previous evidence.

PW10

(1)  In examination in chief, PW10 stated that in the evening of Day 1 she only spoke to Mr. Edwin Wong Pak Wing for a few minutes. However, this was inconsistent with her telephone call record which showed that her conversation with Wong lasted for 22 minutes;

(2)  PW10 stated in examination in chief that during the telephone call, Mr. Wong only told her that he was aware of PW9’s evidence of voice identification in court. Mr. Wong said that he was not sure that PW9’s evidence was sufficiently clear and wanted the Prosecution to re-examine on the matter. That was the whole of their conversation. Under cross examination, she even denied that there was any discussion about PW9’s evidence. However, when she was confronted with the length of her conversation with Mr. Wong, PW10 admitted that he told her what he knew about PW9’s Court testimony; Mr. Wong then stated that he had some ideas and proceeded to tell her about them. In other words, the conversation was much more than what she told the Court in her examination in chief;

(3)  PW10 denied that she discussed PW9’s evidence with Mr. Wong. She also denied that the request for re-examination about PW9’s voice identification came from PW9. This was plainly untrue. PW10’s 1^st message to the Prosecutor began with “Li wish to have a chance to clarify”. The meaning of this sentence is plain: the request came from PW9. I am further reinforced in my view by the wording of the remainder of the message, namely “when he did the voice ID, he mainly relied on the visit recordings that he listened intensively around the period. The routine patrol conversations were not he most relied on, that only gave him an impression of D3”. There was no way in which PW10 or PW12 could have known about PW9’s state of mind when he did the voice identification. This information could only have come from PW9. It was also very telling that PW10 subsequently admitted that she listened to Mr. Wong to understand “what message he wanted” PW10 “to relate” to the Prosecutor;

(4)  On Day 2, the Prosecutor asked PW10 to remain inside a witness room outside the Courtroom. PW10 knew that this was because it was inappropriate for her to hear what was being said inside the Courtroom. Despite that, she texted Ms. Salina Siu to find out what was happening in Court. PW10 explained that she only wanted to know what was happening in Court because she had to make arrangements for the attendance of witnesses, especially when one of the ICAC witnesses had contracted Covid. However, on Day 2, PW9’s cross-examination by D1 was far from finished. There was still the cross-examination by 2 other Defence counsel and re-examination by the Prosecutor. She knew that the Court could only deal with the present case in the morning as another case was listed for the afternoon. There was simply no urgency to deal with the attendance of other witnesses that day. In any event, there were 2 other ICAC officers inside the Courtroom and they could have dealt with the simple matter of witness arrangement. Moreover, PW10’s explanation is also inconsistent with her explanation. It was clear from PW10’s WhatsApp messages with Ms. Siu that PW10 wanted to know what was happening inside the Courtroom.

PW11

(1)  PW11 stated that he was only in Court to observe the proceedings, so that he could report on the progress of the trial and the next hearing date. Firstly, the trial commenced on 6 December 2023. PW11 admitted that he was observing the case on one occasion during the first few days of the trial. The trial was fixed for 20 days. The next hearing date would naturally be the next working day. Mr. Wong’s office is in the Court building. The Court’s Daily Cause List is also freely available online. Mr. Wong had access to all this information without speaking to anyone. Secondly, PW10 was in contact with Mr. Wong. Both PW10 and Mr. Wong alleged that their communication (especially in the evening of Day 1)  related to the progress of the proceedings and arrangements for witness attendance. PW10 could also inform Mr. Wong whether any CSD witnesses were late. There was absolutely no reason for Mr. Wong to send any CSD officer to “monitor” the proceedings and even less reason for these officers to take notes of the evidence;

(2)  PW11 denied that he reported about PW9’s Court testimony to Mr. Wong. This is wholly inconsistent with the evidence of PW10 and Mr. Wong. PW10 stated that Mr. Wong told her that he discovered from other CSD officers observing in Court that PW9’s evidence about voice identification was not sufficiently clear. Mr. Wong stated that according to the report from his colleagues, the defence alleged that PW9 had fabricated evidence;

(3)  In fact, PW9 was the last witness from the CSD. There were no other CSD witnesses. Except for PW9 attending Court to complete his evidence, there was nothing for the CSD to arrange;

PW12 (Mr. Wong)

(1)  Mr. Wong stated that he only sent CSD officers to observe the proceedings because he was responsible for the arrangement of witnesses. Mr. Wong had PW10’s land line and mobile telephone numbers. He could have called PW10 to check on progress at any time;

(2)  PW9 was in fact the last CSD witness. No other CSD officers were coming to give evidence. But for the Telephone Message Incident, PW9 would probably have finished his evidence by Day 2 and he was on Court Duty that day;

(3)  Mr. Wong stated that he only called PW10 to ask about the progress of the proceedings to enable him to make witness arrangements. He also happened to mention that the credibility of PW9 had been challenged by the defence. If that were true, the conversation would not have lasted 22 minutes;

(4)  Mr. Wong explained that he only mentioned the credibility of PW9 because he wanted to know the Court procedures. Firstly, he has been a Court Liaison Officer for the CSD for a year. This was not the first case he had dealt with. Secondly, he admitted that he knew that a witness could be re-examined. Thirdly, Mr. Wong knew that PW9 was still being cross-examined. His explanation that he wanted to know if PW9 was required to attend Court on Day 2 was simply ridiculous;

(5)  Mr. Wong was asked whether he knew the basis of PW9’s voice recognition. This was a perfectly simple question. However, he repeatedly avoided answering the question until the Court ordered him to do so;

(6)  Mr. Wong denied that he told PW10 that PW9 relied mainly on the audio recordings of prison visits for his voice identification. He stated that he never asked PW10 to raise this in re-examination. However, PW10 stated that she was merely relating Mr. Wong’s ideas to the Prosecutor;

(7)  Mr. Wong admitted he called PW9 after speaking to PW10. He explained that the purpose of his call was to inform PW9 that PW9 had to go back to TFCI after he finished giving evidence. He also reminded PW9 to return to Court the following day and not to speak to anyone about his evidence. PW9 was only in Court because he was a prosecution witness. He was the Principal Officer of the Security Unit in TFCI. His return to TFCI was a matter of course. At the end of Day 1, PW9 knew that he had to return to give evidence on Day 2 and that he was not to speak to anyone about the present case. There was no need for Mr. Wong to tell him;

(8)  Mr. Wong asserted that he had to know about the progress of the proceedings because he had to arrange for someone to deal with PW9’s duties if PW9 were occupied in Court. If some other colleague is dealing with PW9’s duties and PW9 can deal with the matters after giving evidence, there was no urgency to speak to PW9 in the evening of Day 1 when PW9 was incommunicado;

245.  Despite the above matters, part of PW9’s evidence was not in dispute. I accept that:

(1)  PW9 was the Principal Officer of the Security Unit of TFCI at the material time;

(2)  PW9’s description of the Prison rules;

(3)  The rules and procedure when unauthorized articles are found in the possession of prisoners;

(4)  PW9’s evidence about the Gambling Incident; and

(5)  PW9 was asked by the ICAC to perform voice identification of the audio-recordings during the covert operation.

246.  Apart from that, I found PW9 to PW12 be wholly dishonest, incredible and unreliable. I reject the evidence of PW10, PW11 and PW12. After being cross-examined about the Telephone Message Incident, PW9 claimed to have forgotten everything, including the basis of his voice identification. Further, since there is evidence to suggest that PW9 may have discussed his voice identification evidence with PW12, I reject his voice identification evidence.

PW13

247.  PW13’s evidence was clear and direct. He was unshaken under cross examination. His evidence was also consistent with the contents of D3’s record of interview. I found him honest and credible. I accept his evidence.

PW14

248.  Although PW14 could not remember clearly the exact time and sequence that D3 signed each of the answers in the record of interview, his evidence was consistent with PW13. I found him honest and credible. I accept his evidence.

PW15

249.  PW15’s evidence was clear and direct. His evidence was also consistent with the CCTV footages produced by the Defence. I found him to be honest and credible. I accept his evidence.

Defence Evidence in Special Issue

D3

250.  I did not believe D3. His evidence was self-contradictory, illogical and inconsistent with undisputed evidence and his own grounds of objection. The most salient are as follows:

(1)  D3 alleged that he had not eaten that day. He admitted that lunch time in TDCI was from 12:15 pm to 2 pm. He was only intercepted at about 4:20 pm. D3’s assertion cannot be true;

(2)  D3 asserted that the ICAC told him that they only wanted to “nail” the 2 CSD officers. They told D3 to only answer questions which were not prejudicial to D3. At the same time, D3 stated that PW14 fabricated all the answers. If the ICAC were going to provide all the answers, they would not have to tell D3 to avoid questions which were prejudicial to D3;

(3)  D3 alleged that he asked for a lawyer to be present during the record of interview. This was not even one of the reasons given in his grounds of objection;

(4)  D3 stated that he told the CSD officers at Stanley Prison that he was unfit to give a record of interview. This was not a reason given in his grounds of objection. In any event, not only was there no evidence that D3 told PW13 and PW14 that he was unfit, he signed the notice to persons under investigation by the ICAC;

(5)  D3 stated that because he was in prison, he could not refuse to attend a record of interview. Firstly, there was no dispute that he was cautioned; he knew that he had a right to silence. Even if he had been forced by the CSD at Stanley Prison to go to the visitor’s room in the evening of 23 October 2020, he knew that he did not have to say anything. In fact, D3 refused to answer 2 questions during the record of interview (P85 and P85a):

Number	Question	Answer
26	Have you offered them any advantages as a reward for the harboring or conniving you to use the phone? 你有冇俾過利益佢哋，作為佢哋包庇或者縱容你用電話嘅報酬？	I don’t want to answer this question of yours for now 我唔想答你呢個問題住。
40	Regarding the cigarettes and the lighter/s, were you required to offer any advantages to get (them)? 就煙同火機，你需唔需要要俾利益先攞到？	I will not answer for now. Ah Sir, can (you)  help me become a tainted witness? I was under duress while threatened by someone. 我唔答住。阿Sir可唔可以幫我做污點證人啊？我都係俾人要挾㗎咋。

(6)  I am further reinforced in my view by what happened in the afternoon of 24 October 2020. The 2 ICAC officers went to Stanley Prison to interview D3 again. He refused to sign any document or answer any questions;

(7)  D3 alleged that the ICAC only wanted to “nail” the 2 CSD officers and all the answers were fabricated by the ICAC. However, according to P85 and P85a, when D3 was asked questions which may implicate D1 and D5, he refused to answer;

(8)  D3 stated that he was told by the 2 ICAC officers to only answer questions which were not prejudicial to him. However, he signed after every answer, which included answers which were solely self-incriminatory (P85 and P85a):

Number	Question	Answer
14	Did you use the phone after accepting it? 你收咗電話之後，有無用部電話？	I did. 有用。
17	What was the phone for? 電話用嚟做咩？	Called my family for chit-chat, but didn’t say anything dubious. They just thought that I approached the welfare officer to call them. 打過俾親人傾吓閒偈，不過冇講衰嘢。佢哋只係以為我搵福利官打俾佢哋。
20	How did (you)  top up the phone? 電話點樣增值？	I asked “Ah Ki” to top up for me, but (I)  don’t remember when I asked. 我搵「阿褀」幫我增值，不過唔記得幾時叫過。
23	Then how was (it)  charged with the cable? 跟住又點用條線叉？	Connected to the DVD player, that is the one (I)  pointed out to you today, and charged. 駁落 DVD 機度叉，即係今日只俾你睇果部。
46	Where is the card now? 依家果張卡喺邊？	(It)  could not be used and so (it was)  flushed away afterwards. 用唔到，所以之後沖咗。
49	Why was the phone with you today? 今日點解部電話會喺你身？	I told Ho-Wai that (I)  needed to get the phone for use. He raised no objection. 我同浩維講要拎部電話嚟用，佢冇反對。

(9)  D3 alleged that he only signed the record of interview after the entire document was fabricated by the ICAC. He only signed at the end because he was tired, scared and worried about his family. However, he asked to supplement his answers (P85 and P85a):

Number	Question	Answer
48	Would you take a look at this record of interview? You may correct, alter or add anything. [At 2238 hours, Lau Yin-Chun started reading the above record of interview.] 你睇吓呢份會議紀錄，你可以作任何修改更正或增補。 [劉燕俊於 2238 時開始閱讀這會見紀錄]	I would like to add that my family thought I applied to the welfare officer and that’s how I could call them. 我想補充，我親人以為我向福利官申請到打電話俾佢哋。

(10)  D3 asserted that because he had admitted to calling his family with the telephone, he was worried that he might get them into trouble. That was one of the reasons why he signed the record of interview. However, PW2 stated that after the telephone was found, he cautioned D3. D3 remained silent and only answered one question about a key. PW2’s evidence was not in dispute. The interception and search of D3 was also recorded (P26). PW13 stated that he cautioned D3 upon arrival at TFCI. D3 only stated that he understood. PW13 never asked D3 who he called with the telephone during the search in TFCI. In other words, D3 never admitted that he used the telephone before the record of interview.

251.  I found D3 dishonest and incredible. I reject his evidence.

Ruling on Special Issue

252.  The Prosecution originally intended to produce D1’s record of interview as evidence. However, they changed their minds even prior to PW15 giving evidence. It is therefore unnecessary for the Court to deal with D1’s record of interview.

253.  As for D3, I find that the Prosecution has proved beyond reasonable doubt that D3’s record of interview was made by D3 voluntarily. D3’s record of interview and its English translation are produced respectively as P85 and P85a. The notice to persons under investigation by the ICAC is produced as P86. 

Issues raised by the Defence

254.  It is more convenient for me to first deal with some issues raised by the Defence.

Whether it is possible to introduce unauthorized items into the Prison area

255.  The Defence suggested that in the light of the security measures, it was impossible to introduce unauthorized items into prison. This argument is absurd. There is no dispute that the relevant unauthorized items were found inside the prison area.

The Covert Audio-Recordings

256.  The issue of voice identification was discussed by the Court of Final Appeal in HKSAR v Yeung Ka Ho (2013)  16 HKCFAR 609:

“48. The issues surrounding evidence in the form of recordings are broadly similar though the means of recording may be different. Audio tapes, video tapes, films, photographs, even DNA analysis, whatever the technology used, raise issues of authenticity and accuracy that must be addressed with reference to the particular circumstances. When a recording is relied on for identification, not only the accuracy of the record, but also the reliability of the witness identifying what is recorded may arise. These matters are facts which must be proved.

49. Visual identifications are well recognized as requiring care and the courts recognize this as the decision in Turnbull clearly shows. The same care and equivalent warnings are applicable to other forms of identification evidence, including voice identifications.

50. In HKSAR v Lai Wai Cheong, the Court of Appeal accepted that the Turnbull guidelines are applicable to evidence of identification, whether of appearance or voice. A tape recording can be admitted and relied upon as evidence of the contents where a proper basis for its reliability is established. In the early case of R v Maqsud Ali, Marshall J, for the Court of Criminal Appeal, said:

“…We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.”

51. In Choi Kit Kau v R, Roberts CJ said:

[T]he best method of proving that a tape recording produced in court is authentic is to show that it has been, since the time it was recorded, continuously in the custody of persons who assert that it was not tampered with. This is a course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not.

52. Where the “best” method is unavailable, the authenticity of a tape may still be capable of proof. In HKSAR v Lee Chi Fai and Others, the Court of Appeal adopted the analysis in R v Murphy and Another:

“Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources.”

53. In R v Chen, the Victoria Court of Criminal Appeal received evidence of tape recordings where the makers were dead or unavailable. The court said:

“The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduce those originally made by the persons identified by the evidence. In other words, there must be evidence, which the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.”

54. …

55. The Court of Appeal in England in R v Flynn [2008] 2 Cr App R 20 (p.266)  ruled that evidence of recognition of a voice by a lay person was admissible…

56. “…So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of familiarity of the witness with the suspect’s voice. Even then the dangers of a mis-identification remain; the more so where the recording of the voice to be identified is poor.”

57. In Jones & Harris, the Court of Criminal Appeal of Victoria rejected submissions for two appellants that evidence of voice identifications should not be received. In the case of the appellant Jones tape-recorded telephone conversations together with circumstantial evidence consistent with factual statements made during the telephone calls was received as probative of identity. Similarly, in the case of Harris, voice identification evidence from witnesses familiar with his voice and supported by circumstantial evidence was held to have been rightly admitted.

58. I see no reason why, in certain circumstances, the identity of participants and, the timing and circumstances of a recorded conversation, cannot be proved by reference to the content of the recording. It must be possible as where the maker is unknown or unavailable and the content when placed in a context of known facts establishes time and place. Similarly, the identity of a speaker may emerge from what is said. Statements revealing the facts or knowledge that only an offender could know frequently can lead to identification. For example, statements made by disguised offenders in the course of a robbery can be relied upon to identify them. Statements made anonymously in writing or in the course of a telephone call demanding ransom after a kidnapping may support identification.

59. Of course other possible contingencies must be excluded – such as voice imitation. Those matters go to the weight to be accorded the evidence of the conversation.

60. The authorities make clear the care with which tape recordings must be considered. But with appropriate safeguards, and careful directions, there is no reason to construct rigid exclusionary rules. As with all evidence, reliability is to be assessed in all the circumstances.

61. In many cases, it would be question-begging to seek to prove the authenticity of a tape recording from the contents of the recording itself. Mr Chan, for the appellants, submitted that the voice identification in this case is flawed because PW1 was not shown to have recognized the speakers solely by their voices and without reliance on the context with which the speakers exhibited familiarity…

62. I do not accept that the “context”, indeed all the surrounding circumstances, may not be taken into consideration in evaluating evidence of identification. The argument to the contrary is unreal and inconsistent with the authorities already mentioned.

257.  In the present case, there was no dispute that the micro audio- recording device was planted on D1. Initially, some parts of the recording were ‘screened out’ by the ICAC. Eventually, apart from the parts which are subject to Public Interest Immunity, the ‘screened out’ sections were provided to the Defence. It was evident that the ‘screened out’ parts were irrelevant. The authenticity and admissibility of the covert audio-recordings were not in dispute. There were also no suggestions from the Defence that the recordings have been tampered with. In other words, the only issue is whether the voices in the recordings can be properly identified.

258.  Although I have rejected PW9’s evidence on voice identification, that is not the end of the matter. In assessing the evidence, I remind myself of the principles set out in R v Turnbull and in Yeung Ka Ho. In drawing inferences, I remind myself of the principles set out in HKSAR v Lau Hon Keung CACC 426/2011, unreported and HKSAR v Au Hau Ching CACC 146/2008.

259.  In my judgment, there is more than cogent evidence to identify some of the speakers in the audio recordings (P76). Firstly, the CCTV footages of D1’s arrest were produced as D2A and D2B. Not only was D1’s voice heard in those video footages, the video images mean that the identities of the speakers in those videos were indisputable. D3 elected to give evidence on the special issue. That evidence is also recorded. The recordings of D1 and D3’s voices can be used as reference for identification. Moreover, in parts of the covert audio-recording, the speakers either identified themselves or the person they are speaking to. The voice(s)  in parts of the recordings can be identified by context. Although some of the voices can be identified in a large part of the recordings, some parts are irrelevant.  I shall deal with the more relevant parts where voice identification is possible by reference to the transcript (P76C):

A. Counters 723 to 758

Counter Number	Speaker	Content
723	D1	[Radio sound] Over （對講機響聲）請講
724		[Radio] Hello, Hey, it’s POS, are you King-Lun? [Beep sound] [對講機] 你好，喂 POS 啊，你係咪敬倫啊啊？（嘟聲）
725	D1	Yes, LI Sir, good morning. 係啊，李sir 早晨
726		[Radio] Hey, good morning, nothing. ‘Ah Yat’ (transliteration), later on, er, he’s going for a walk. Where will you, you be, which location? [Beep sound] [對講機] 喂，早晨啊，無，阿一陣間誒佢散緊步啊，你你會喺邊個位置啊？（嘟聲）
727	D1	Ah Sir, I am now working on the anti-skid dressing near ‘Shui Kee’ (transliteration), conducting anti-skid surfacing works on the slope. 阿Sir，我而家係水記附近做緊鋼沙，個斜坡鋪緊鋼沙
728		[Radio] Copy that, copy that. We’ll, later on, he’ll start walking in around ten minutes. Will you still stay in the original location? [對講機] 收到，收到。咁陣間佢大概十分鐘後起步，你咪都喺原有位置啊？（嘟聲）
729	D1	Yes Sir, is there anything to help? [Beep sound] 喺啊：sir，有冇嘢幫到手啊？（嘟聲）
730		[Radio] Oh, alright, good, alright, alright. He just asked for you as well. I’ll tell Ah Sir, thank you. [Beep sound] [對講機] 哦，好啊，掂啊，好啊好啊，佢叫埋你咋嘛，我話返俾阿 Sir 聽，唔該你啊（嘟聲）
731	D1	Copy that, thank you. 收到，唔該（嘟聲）
732		[Radio] Copy that, thank you [Beep sound] [對講機] 收到，唔該（嘟聲）
733		[Indistinct]…don’t know （聽不清）⋯唔知啊
734		Ah Yat’ (transliteration)  is looking for you? 阿一搵你？
735	D1	Yes, maybe to ask me about…er, how’s your wife? 係啊，可能問下我呢⋯誒你老婆點阿？
736		Who…who is looking for you? 邊個⋯邊個搵你啊？
737	D1	He knows my wife 佢識我老婆啊嘛
738		POS? POS 啊？
739	D1	POS  approached me and said that ‘Ah Yat’ (transliteration)  is looking for me, and asked which location I am at. (He)  said ‘Ah Yat’ (transliteration)  is looking for me, huh, I thought, look for me again? POS 搵我話阿一搵我，問我喺邊個位置。話阿一搵我，下我心諗，又搵我？
740		What does he know, know about your wife? 佢知咩，佢知你老婆啲嘢咩？
741	D1	Fuck, Cathay Pacific is no secret now. [Noise] Alas, really…have really been unlucky these few months, really. Fuck, the maid is gone as well, and my wife is like this now. [Noise] 屌，國泰通晒天㗎啦。（雜聲）唉真係⋯呢幾個月真係黑仔啊真係。屌，工人又冇咗，老婆又咁樣。（雜聲。）
742	D1	Fuck your mother, even this sort winds up, such a big company, fucking nuts. [Noise] So fucking many people (working)  in that industry, the entire company closes down. 屌你老母，竟然咁樣都執，咁大間公司，痴閪線。（雜聲）呢一行咁撚多人，成間公司倒閉
743		Huh? 吓？
744		Layoffs in ways of closing down, 倒閉形式嘅裁員
745		(I)  don’t know. 唔知啊
746		Attention, ‘Ah Yat’ *transliteration)  will patrol at ten thirty 留意十點半嗌一巡視
747		‘Ah Yat’ (transliteration)  will probably not watch…[indistinct] 阿一應該唔睇⋯（聽不清）
748	D1	It’s not not watch, he asked me to stay in the original place, but probably won’t come see me for a chat, perhaps. 唔係唔睇啊，佢叫我留原位啊，不過應該唔會嚟搵我傾計㗎啦可能
749		POS LI sir, that voice? POS 李 sir 咁嘅聲嘅？
750		Yes, Li Sir. 係啊，李 sir
751		The one who wears glasses? 戴眼鏡嗰個啊？
752		Huh? 嗄？
753		The one who wears glasses? 戴眼鏡嗰個啊？
754		What? (It’s)  POS. 咩啊？POS 啊
755		That’s the one who wears glasses. 咪戴眼鏡嗰個
756	D1	[Ringing sound] what’s up? Looking for me? （響聲）點啊搵我呀？
757		‘Lun Kwo’ (transliteration) 倫哥
758	D1	Hey, oh 喂，哦

At counters 723-725, the speaker answered the radio, the caller asked for “King Lun”, which is D1’s name. Then the speaker confirmed his identity. From counters 726 to 732, there were only 2 people in the conversation. As was explained above, a micro recording device was planted on D1 in the covert operation. In the light of the location of the recording device and the context of the conversation, the only and irresistible inference is that the speaker was D1. Thereafter, there was a conversation amongst several people. One of those voices is consistent with that of D1. In the light of the context of the conversation, the only and irresistible inference that the words in bold above were uttered by D1. In counters 756 to 758, the name ‘Lun Kwo’ was mentioned again and he confirmed his identity. Having regard to the location of the recording device, the only and irresistible inference that D1 was the speaker.

B. Counters 808 to 832

Counters Number	Speaker	Content
808	D1	So fucking awful, my wife is now like this, you, why? Look, in fact, others are the other way round, it should be like, the pension saved should grow more and more in sum. 好撚慘啊，我老婆而家咁樣，你點解呢，嗱其實人哋呢就調返轉嘅，應該就儲嗰啲退休金就越儲越多錢㗎嘛
809		Yes. 係啊
810	D1	You now, bang, at one blow, she now counts in the pension together with the mandatory, together with those whatsit. 你而家澎一聲，佢而家計埋個退休金連埋公⋯連埋嗰啲咩
811		[indistinct] （聽不清）
812	D1	Sixty, sixty-odd. Hey, for others, the last ten-odd years, still have ten-odd years (before)  retirement. It is those ten-odd years for one to make money, the time of snowballing ⋯六十六十多少少，喂人哋last 嗰十幾年，就仲有十幾年就退休，就係嗰十幾年要搵錢嘅時候，就係越滾越大嘅時候
813		Ah Sir 阿 Sir
814	D1	And you, and you fucking cut (it), you say, is it fucking awful? 你又你又cut 撚咗，咁你話係咪好撚慘
815		Yes 係啊
816	D1	Right? That is, what to do when one gets old, eat shit when one gets old, luckily, luckily, luckily, like, I’m like stable, stable work, stable pay 係咪先，咁啫係老咗點啊，老咗食屎，好彩，好彩，好彩叫做，我都叫做穩陣，穩打穩賺
817		You definitely are, stable work, stable pay. 你一定穩打穩賺
818	D1	No, like, there’s some investment, but still doomed, with the economy now. If I had no skills, there’d be even more troubles. 唔係啊叫做有啲投資，但都死啊，宜家咁嘅經濟。如果我無一門技能就仲撚大獲
819		No what? 冇咩話？
820	D1	I said if I had no skills, on my wife, was not one of those sharp, smart ones, there’d be even more troubles. Don’t know what ability you have to survive on. [Noise] 我話如果我冇一門技能啊，或者我老婆唔係嗰啲 Sharp 醒嗰啲啊仲撚大鑊，你都唔知有咩生存能力（雜聲）
821		Locking the gate of the light room 燈房鎖閘
822	D1	Later on… well, when this is done, finish handling ‘Shui Kee’ (transliteration)  there, I may not come back in the afternoon, I still don’t know whether I’ll come back or not. 一陣⋯嗱呢度整完，水記嗰度搞掂，下晝我可能唔番，我未知我番唔番
823		Just handle (it)  tomorrow, no hurry, (it)  doesn’t matter. 聽日先搞，唔急啊無所謂
824	D1	If not, ‘Wai Kwo’ (transliteration)  will supervise you guys, or, whoever supervises you guys 如果唔係呢就維哥帶你哋，或者邊個帶你哋都好啦
825		OK 好
826	D1	You guys handle some of the stockrooms for me. 你哋幫我做咗某啲倉
827		That’s fine 得㗎啦
828	D1	Just some minor maintenance (work). 啲小維修啫
829		That’s fine 得㗎啦
830	D1	Huh, just those again, fans again, those water tanks again, that sort. 嗄，都係嗰啲又係風扇啊，又係嗰啲水箱啊嗰啲
831		Put the mask back on 帶返口罩啊
832	D1	Huh, just those things again. [Noise.] 嗄，又係嗰啲嘢啫（雜聲）

In counters 735 to 742, D1 was talking about his wife losing her employment. Counters 808 to 818 are of that subject. From Counter 819 to 832 are work instructions. In the light of the voice, the context and the location of the recording device, the only and irresistible inference is that it was D1 speaking.

C. Counters 833 to 857

Counter Number	Speaker	Contents
833		How old is your thing? 你嗰部幾耐啊？
834		Oh, a little, then, you know. 哦，少少咪咩囉
835	D1	[indistinct] …’Ah Wai’ (transliteration)  said no reply could be sent to you out there. （聽不清）⋯阿維話出面覆唔到你
836		Yes 係啊
837	D1	Still have to reply, have to check in that case. 咁都要覆，都要 check 格
838		[indistinct] （聽不清）
839	D1	You give (it)  to me first anyway 你照俾我先啦
840		Alas 唉
841	D1	After checking, I’ll give a reply to “Ah Wai” (transliteration), I’ll tell ‘Wai Kwo’ (transliteration), I’ll say I answer you two things, no money, nothing.’ Check 完之後我覆阿維啦，我同阿維哥講，我話我答你兩樣嘢，無錢，無事
842		Mm, mm, mm 嗯嗯嗯
843	D1	Huh 嗄
844		Mm,mm,mm 哦哦哦
845	D1	You just tell him this, need not pay extra money. 你就咁同佢講，唔使補錢
846		Need not pay extra money 唔使補錢
847	D1	Or Suspend. 或者暫停
848		Okay 好
849	D1	Suspend means no signal at all 暫停即係直程冇signal
850		Okay 好
851	D1	You know, if normal, huh, is fine, then fine. 你話如果正常啊，嗄，冇事就係冇事呀嘛
852		Okay, okay, okay. 好好好
853	D1	Is that okay? He asks me, I’ll tell him myself, huh, this morning, you tell ‘Ah Wai’ (transliteration)  that things arranged this morning are OK, are fine. 好無啊，佢問我，我自己同佢講啊，嗄今朝，你同阿維講，今朝安排咗啲嘢OK 㗎啦，無事㗎啦
854		Okay, okay, okay. 好好好
855		If there’s a problem, there’s a problem, just wait till you come back. 如果係有問題就，有問題就等你返嚟先
856		Huh 嗄
857		So ask. OK, that’s it. [Noise] 問啦。OK，就咁（雜聲）

There are only two people in this conversation. The voice of one of the speakers is the same as D1. In view of the location of the recording device, the only and irresistible inference is that the speaker is D1. Even if I were wrong, in the light of the location of the recording device, D1 was in very close proximity and could hear the conversation.

D. Counters 1012 to 1023

Counter number	Speaker	Contents
1012	D1	These works are really, supervising the workers to work, really, I really fucking give up, again. 呢班works 真係帶班工人做嘢真係，我真係頭撚晒降呀又係。
1013		‘Lun Kwo’ (transliteration), please / thank you. 倫哥唔該。
1014	D1	All of the screws weren’t done properly, he, most, most, most importantly, even 粒粒都上唔齊喎，佢最最最緊要係，仲要係。
1015		‘Lun Kwo’ (transliteration), (they)  can’t be tightened, some are…(Indistinct) 倫哥，收唔到喎，有啲呢（聽不清）。
1016	D1	It’s fine if you can’t tighten (them)  , you just drive a new one. You, he, was worse is he didn’t do that. 你收唔到唔緊要，你打番口新呀嘛，你佢最衰佢又唔打。
1017		Of course he didn’t drive (them).  (If)  he drives a screw in, that will fucking, fucking scratch the wires. 佢緊係唔打啦，佢打口螺絲入去會整撚，整撚到啲電線會花。
1018		Maybe (he)  was just afraid of fucking scratching the wires. 驚整撚到啲電線啫可能。
1019	D1	He should have used a hammer to hammer it before pushing (it)  down, alas, (I)  don’t know about him. 佢應該搵隻錘仔揼一揼佢先再打落去，唉唔知佢。
1020		[Indistinct] use a strap to fasten it, quick and perfect. （聽不清）搵條索帶索撚住佢，快靚正。
1021	D1	No, we, no. You see, (it)  is falling out here too, alas, ‘Ah Yat’ (transliteration)  will nag about (it)  later. 無呢，我哋冇，你睇呢度又甩啦，一間呀一又講
1022		No, oh, yes 無，哦，係喎
1023	D1	Damn it. 你老母

This conversation was between two people. One of them was addressed as ‘Ah Lun’. The voice of one of the speakers is the same as D1. In view of the voice, the context and the location of the recording device, the only and irresistible inference is that one of the speakers was D1.

E. Counters 1026 to 1073

Counter Number	Speaker	Contents
1026		[Radio sound] [indistinct] [對講機響聲]（聽不清）
1027		See if go there or not. 睇吓過唔過去囉
1028	D1	Over. Won’t go, won’t go. 請講。唔過啦唔過啦。
1029		[Radio] ‘Lun Kwo’ (translation), it’s ’Wai Wai’ (transliteration), any phone to contact you? [對講機] 倫哥，維維啊，有無電話聯絡到你？
1030	D1	Er…call T2, T2 誒⋯打T2 、T2 呀
1031		[Radio] Copy that, thank you. [對講機] 收到，唔該
1032		[Phone ringing sound] （電話響）
1033	D1	Good morning, yes. Mm, again, as usual, need to, er, er, (one word indecipherable)  anti-skid dressing. AB glue. Er…yellow, black, white, water-soluble road mark paint. I don’t know, I don’t know if ‘Ah Pong’ (transliteration)  has (one word indecipherable)  or not. You, you, you better contact him. These are what I need the most now, and then…. Well, you’ll be in great trouble then. 早晨，哦，一樣照樣要誒誒揼鋼沙 AB 膠。誒⋯水溶性嘅馬路漆黃色黑色白色，我唔知呀，我唔知呀邦揼咗未。你你你最好同佢聯絡吓，我而家最緊要需要呢啲嘢，然後⋯嗱，你就大檸樂啦咁就
1034	D1	Fuck it. Ah, fuck. Listen, what I can answer you is that, er… I input ‘Shing Kwo’ (transliteration)  in the list. I know that ‘Shin* Kwo’ didn’t come in, you ask ‘Yam Kwo’ (transliteration)  for (it). 我屌呀，呀，屌呀。嗱，我可以答你，誒⋯我入個list寫咗俾阿城哥嘅，我知道城哥無番，你問阿任哥攞
1035	D1	Oh, you give me ten minutes, wait until ‘Ah Yat’ (transliteration)  walks past, I, I’ll then get back to the office, I’ll check the list, I’ll tell you what’s (in)  the list. Acrylic boards, we used two boards these two days. You can order (them)  as usual.. Er, East sides, concerning the bunch of screws which you have previously applied for, previously bought, I don’t know if they have been all restocked or not, anyway, ‘Shing Kwo’ (transliteration)  couldn’t give (them)  to me, just gave me a few, this fucking made me stuck at the works all the time. Well, besides, er… and those ‘valves’ (one wrong written character, those, especially those flushing cisterns, do you know that those flushing cisterns always have broken arms, the pulls, the cistern pulls. Well, er, workshop six, workshop six, AY, is it (do you)  remember that the old ones are used, with a string connecting to the head, once pulled, the kind with a cistern pull, remember? Remember, right? Isn’t there, isn’t it designed in the way with an arm, a very long arm for people to pull, yes, the leverage arm is always broken. Will you see if there’s any solution? 哦，你俾10分鐘我，等呀一行過咗，我我返寫字樓我睇返個list，我話俾你聽有啲咩list。亞加力膠板我哋呢兩日用咗兩塊，你可以照入，誒，另外仲有嗰堆螺絲啊。之前你申請，之前有買，我唔知番晒定未番晒，總之阿城哥俾唔到我，俾咗少少我，咁樣搞撚到我成日都做嘢都棘住晒。咁呀，另外，誒⋯仲有啲水制啊，有啲，特別係嗰啲水箱啊，你知唔知嗰啲水箱咪成日斷嗰啲臂嘅，拉手掣啊、拉手水箱啊。呢誒六廠，六廠AY 咪係記唔記得佢係用舊式嗰啲用繩吊住嗰頭，一拉，拉廁個隻，記唔記得。諗到啦，嗰度咪，佢個設計咪裏面有條，一個臂嘅，有條好長嘅臂人扯嘅，係呀，槓桿嗰條臂咪成日斷，你睇下有無辦法。
1036	D1	Alas, they, those bosses, made a fuss about the procurement I made previously. Find them, now, I don’t do procurement, all those procured are either broken, or whatever, and what I procured are too expensive they complain, the high-quality (stuff)  procured don’t need to [Radio sound] 唉，我之前我買，佢班大哥又嗶哩吧啦，宜家好啦：我唔買又全部買咗番嚟又唔係爛，又唔知咩嘢，我買又嫌貴，人哋買啲高質素唔洗（對講機響聲）
1037	D1	Fucking can’t stand them, I don’t know what they want (to do). 怕撚咗佢哋，我都唔知佢哋會想點
1038	D1	[Radio sound] Over （對講機響聲）請講
1039		[Radio] ‘Lun Kwo’ (transliteration), [indistinct] ah, where are you, which location? [對講機] 倫哥，（聽不清）啊，你而家係咩位置啊？
1040	D1	I just got down to T2 我啱啱落到 T2
1041		[Radio] copy that, I’m coming over now. [對講機] 收到，我而家嚟
1042	D1	Thank you, ‘Yip’ (transliteration). 唔該晒葉
1043	D1	Hello [Beep sound], er… can go without R151, 151 is expensive. Changed to a yellow, yellow, yellow, water-soluble road mark paint. 喂（咇聲），誒⋯可以唔要 R151，151 貴呀嗎，轉左水溶性黃黃黃色嘅馬路漆㗎
1044	D1	Then just go ahead, yes. I don’t, as for the anti-skid dressing, in fact, as far as I know, there are still a lot, er, Tong Fuk’s [indistinct], there is no AB glue instead, a batch of AB glue was bought, but probably still not enough, have to further 咁照落囉，係呀，我唔鋼沙其實我所知道誒塘福個（聽不清）仲有好多嘅，反而係無 AB 膠啫，AB 膠買咗批，但係應該都仲係唔夠，仲要再
1045	D1	He has a new, new batch, you, you, he should have already released a new one, have to 佢有批新新㗎你你，佢應該出咗張新㗎要
1046	D1	I need to go back to have a look, will tell you afterwards, right? Er, well, second, talking about the flushing stuff just now. In respect of the acrylic boards, you, I don’t know how many you should order, you should think about (it). Instead, the other way round, the PVC blinds are more important. Remember the PVC blinds? It’s better for you to ask ‘Ho Siu-Fung’ (transliteration)  to see if (you)  need to order (them). Look, those PVC blinds are with straps in winter time normally. They, those young chaps set their PVC blinds, some, went missing, some said, not sure where (they)  went. 我要返入去，睇完話俾你聽，好無。誒，咁啊第二就，頭先講沖廁嗰啲嘢啦。亞加力膠板嗰度你，我唔知你入幾多啊，你睇一睇啦，反而調返轉膠簾緊要啲。記唔記得有啲膠簾啊，你問一問何少鋒睇吓使唔使入好過啦。呢，平時冬天啲膠簾會落索帶嘅。佢哋啲膠簾佢哋啲靚仔有啲又話唔見咗、有啲又話唔知去邊
1047	D1	This year, this, this year, what I learned is that no PVC blinds have been bought. You ask ‘Ho Siu-Fung’ (transliteration)  if (they)  can be ordered. [indistinct]. If he says you can place (the order)  as usual, then you just do so by following the previous number. Check the number of PVC blinds, then just take photos, right? Or, make further arrangement. Besides, the straps, well, ‘Lung Kwo’ (transliteration)  promised to get six, give me six hundred next week. Well, because all PVC blinds of the entire Ring have to be strung with straps, those PVC boards. Well, he has reserved six hundred straps for me, he, one PVC board takes at least like eight to ten straps. 今年，今今年我收到嘅消息好似係未買過膠簾嘅，你問一問何少鋒俾唔俾出（聽不清），如果佢話你照出啦，咁你咪跟返上次嗰啲數做囉。搵返膠簾嘅啲數跟住咪影相囉。吓嘛，或者再安排，另外索帶，就阿龍哥應承咗下個禮拜六，六百條俾我。咁呀，因為成個環頭啲膠簾全部要落晒索帶啲膠板，咁佢預咗六百條俾我，佢一塊膠板都要成八至十條
1048	D1	Well, then, so, then, besides, is there anything else to take? 咁呀，所以，咁呀，另外仲有啲乜嘢嘢要攞
1049	D1	Ah, ah, yes, (we)  don’t need that much anti-skid dressing, just a little will do. 呀，呀，係，鋼沙唔使要咁多，要少少得啦
1050	D1	Yea, ten sets, OK. But more plastics is needed, plastics, ten sets of plastics are needed, ten sets, ah, ah. 係呀，十Set，好。但係膠要多啲喎，膠，膠要十set 呀，十set，呀，呀
1051	D1	Alright, alright, alright, besides, PVC blinds, PVC blinds, PVC blinds, winter, urgent, the ‘foki’ (transliteration)  must be in a hurry. Well, besides, yes, those other trivial fittings, screws, those things, I don’t know if he has (them). In fact, handles are the most important, you, you, pack more handles from him. Because many of Ah Sir’s, those handrails, those, all take many handles. 好，好，好，另外，膠簾，膠簾，膠簾冬天急，啲伙記一定急。咁阿另外，係囉，其他嗰啲濕聲配件螺絲嗰啲，我唔知佢有無。其實拉吧最緊要，你你同佢執多啲拉吧。因為阿Sir好多嗰啲扶手啊嗰啲全部用好多拉把
1052	D1	No, it’s not in inches, it’s in how many m, the size, you take some in 10 m, 10 m, yes, 10 m for me. Er…2-inch, 10 m screws. 唔係，佢唔係用寸㗎，佢用幾多 m 㗎個 size，你同我攞啲十 m 呀，十 m 係十 m。誒⋯兩吋十 m 螺絲
1053	D1	Ah, you give me a second. ‘Ah Cho’ (translation), are 2-inch enough for those 10-m handles, or 4-inch instead? 呀，你等我一陣，呀咗呀，兩吋夠唔夠十m 嗰啲拉把定四吋呀？
1054		2-inch? 兩吋呀？
1055	D1	Are 2-inch enough, or 4-inch instead? 兩吋夠唔夠定四吋呀？
1056		Just 2-inch, (it)  doesn’t matter. 兩吋囉，冇所謂
1057	D1	No, is it enough for you to make, make the handrails? 唔係，你打打扶手夠唔夠？
1058		[indistinct] the deeper, the better. （聽不清）越深越好嘅
1059	D1	4-inch, 3-inch or 4-inch, just in between, either either 3-inch or 4-inch [“: 3-inch]. 10 mm, you work it out using the remaining amount. Besides, also, what’s that called? Hex, hex head, ‘self-tapping’ (two wrong characters)  screws in hexagonal head. Hexagon shaped head ‘self-tapping’ (two wrong characters)  screws. Huh, huh, er, one pack, er, hey, how many are needed, hex, those ‘self-tapping’ (two wrong characters)  screws in Hexagonal head? 四吋啦，三吋或者四吋啦，中規中矩啊，三吋四吋是但一樣（？：三吋呀）。十mm，你攞條尾數做啦。另外，仲有嗰啲叫做六角、六角模、六角模嘅子宮螺絲。六角形嘅模子螺絲。嗄嗄，誒一包囉，誒，喂，要幾多啊，六角，六角帽嗰啲子宮螺絲？
1060		[indistinct] went up to play basketball （聽不清）上咗去打籃球啊
1061		Just take one pack. 攞一包囉
1062	D1	One pack then, probably 100 of them in a pack, probably. 一包囉，一包應該一百口嘅應該
1063		Er, two four zero right nine three 誒二四零八九三
1064	D1	This time, you say, say, where was fixed last time? Oh, then fix workshop six this time. 今次你咪講，上次係講整邊度啊？哦，咁今次係整六廠
1065		Er… strike the iron, ah, not strike the iron; use a straight jaw to strike the iron 誒…打鐵呀，呀唔係打鐵呀，用直口打鐵
1066	D1	Okay, alright, four, okay, okay, okay, okay 得、好四、得得得得
1067	D1	Okay, that’s okay, let’s talk about it again if he has any needs, just to collaborate. 得，可以嘅，如果佢有咩需要再溝通呀，大家合作啫
1068	D1	Besides, you are going to fill in for me this afternoon? You know, something happened to my wife. 另外，你下晝係咪頂我，我老婆出咗事呀嘛
1069	D1	Yes, yes, that means no one. Right, who can fill in for me? 係、係，咁啫係無人，係囉，有邊個頂我呀？
1070	D1	I’ll ask first, huh, I’ll ask first, I’ll see 我問一問先，嗄，我問一問先，我睇
1071	D1	No, she, the entire industry can no longer work. It’s verbally said two thousand (staff members)  were fired, but in fact almost all were fired. Cathay Pacific fired - we counted the people (we)  know, only takes like ten percent, around ten percent, ten, twenty percent staying. But those who stay are all single. We suspect that group, in the other way, round, will still get fired, just that the matter is, those are single, right? Well, (they)  have no burden. He/she wants to keep them, because. He/she has to do some calculations to settle the payment. Well, we, this group is a big one, right? Then the next group is probably not small. Because the second group is, isn’t now that there’s the second tranche of something - something - Employment Support Scheme? After the second tranche ends, together with the whatever, if also considering the situation now, even if the economy gets a little bit better later on, definitely, there’ll be not much improvement for sure. Then Cathay Pacific (can)  find some excuses (one wrong character), (saying)  no good, then just fire people if no good. 無喎、佢通行都冇得做㗎啦。佢把口就話炒兩千呀嘛，實質就差唔多炒晒呀。國泰炒，我哋數埋識嘅人都得嗰一成，一成度囉，一兩成度留低，但係留低嗰啲全部都係單身嘅。我哋懷疑嗰班調返轉都係要炒嘅，只係個問題係嗰班單身呀嘛，咁阿無負擔呀嘛。佢想留低佢哋，因為佢要計條數找數呀嘛，咁我哋呢批係大㗎嘛，咁應該下一批唔會細。因為第二批係，宜家咪咪有第二批咩咩保就業計劃嘅，第二批完咗之後再加埋咩，如果再加埋宜家個情況，一定遲啲經濟就算好番少少都冇乜起色㗎啦肯定，咁然後國泰啊搵藉口呀唔掂，咁唔掂咪炒人囉
1072	D1	Yes, instinct. Okay. You’re just in the office, right? I’ll call you, I’ll call you. 係直覺，得啦，你係寫字樓啫，我打俾你啊，我打俾你啊
1073	D1	Huh, mm, bye bye. 嗄，嗯，拜拜

This was clearly a telephone conversation where the words of the voice of the person on the other end of the line cannot be heard. The voice is the same as D1’s voice. Having regard to the voice, the context and the location of the recording device, the only and irresistible inference is that the speaker was D1.

F. Counters 1074 to 1097

Counter Number	Speaker	Contents
1074	D1	Ah Sir, good morning. 呀Sir，早晨
1075		Good Morning 早晨
1076	D1	(It)  went well? Good morning, CMO, thank you sir 順利呀？呀早晨，CMO，唔該Sir
1077		Good morning, ‘Lun Kwo’ (transliteration) 早晨，倫哥
1078	D1	Good morning [Noise] 早晨呀。（雜聲）
1079	D1	What’s up? 乜料啊？
1080	D1	If I really open the stall, about opening the stall, if that guy says not to chip in, I’ll find you then. 如果我真係開檔，開檔嗰度，嗰條友唔夾嘅話，到時候我先搵你啦
1081		Who? 邊個？
1082	D1	The one who previously said running a vehicle repair workshop, running a motor vehicle repair workshop. 之前話做車房，做流動車房嗰個
1083		Mm, mm, okay, no problem. 哦哦，得啦，冇問題
1084	D1	If he doesn’t chip in, then the other way round, you take it as injecting capital For ‘Ah Ki’ (transliteration)  to operate. 如果佢唔夾，調返轉你當注資俾阿褀做囉
1085		If he works with heart, then of course, no problem. 佢有心做緊係冇問題啦
1086	D1	You talk to him first. 你同佢溝通吓先啦
1087		I will, I will. 我會我會
1088		‘Shing Kwo’ (transliteration) 勝哥
1089	D1	Ah ‘Shing Kwo’ (transliteration)  [Noise] 呀勝哥（雜聲）
1090		[Indistinct] ah, these are dirty （聽不清）⋯呀呢啲污糟
1091	D1	There’s nothing can be done, these, water-based, not oil-based 無辦法，呢啲水性呀，唔係油性
1092		Getting dirty and messy when placed for a while. 擺一擺就污糟辣撻
1093	D1	There’s the difference, that’s why. You get what you pay for. 有分別囉，所以咪。一分錢一分貨。
1094		Ah, wash the tools, ah, over to you. [Noise] 呀、洗架餐，呀，交俾你啦（ 雜聲 ）
1095		Ha, ha, ha, ha. Run for another two laps…[indistinct] What 哈哈哈哈，再跑番兩個圈⋯（聽不清），咩啊？
1096		Forty two forty three…[indistinct] 四呀二、四呀三⋯（聽不清）
1097		[Indistinct] first. （聽不清）⋯先

The name ‘Lun Kwo’ was mentioned, the voice of the person who responded to this address is the same as D1. In view of the voice, context and the location of the recording device, the only and irresistible inference is that the above words were spoken by D1.

G. Counters 1098 to 1123

Counter Number	Speaker	Contents
1098	D1	Yes, ‘Wai Wai’ (transliteration), you’re looking for me? ‘Lun Kwo’ (transliteration). 係呀維維，你搵我呀？倫哥
1099	D1	Yes, what’s up? (It’s)  not relevant, I’ve just arrived, just didn’t open the door in time, I (two characters indecipherable), yes, yes. 係點啊、唔關事，我啱啱到，開唔切門啫，我古根，係呀係呀
1100	D1	You, give me a second to check first, 10-mm, handles, screws, yes, right, you already ordered. Enough thread seal tapes for you guys? 你等我一陣，睇睇先，十mm 拉把螺絲，係呀啱呀你入咗啦。水喉膠布應夠唔夠你哋？
1101	D1	(I)  don’t know. I wrote down the materials, (these)  are what are needed, five rolls of thread seal tapes, three packs of cement are needed, he gave me one pack yesterday, four - I really don’t know, so what’s of the worst quality is - 0.5-inch ‘elbow’ (one wrong character), 0.5-inch ‘female’ (one wrong character), hand fittings, five bottles of silicone glue are needed, ‘self-tapping’ (two wrong characters)  screws are ordered already. Cutting down one inch and a half of some of the extra wires, steel screws, number six, ten wash, hand washing taps, those crossed (two indecipherable characters)  ones are needed, do you know which one? You can come down to take a photo, ten, handwashing taps, basin taps are needed. 唔知。我寫咗物料就係要呢啲，水喉膠布五卷，英泥要三包，佢俾咗一包我琴日，四，我真係唔知呀，所以就係最水皮係四分藍曲、四分內瓦、手抽配件、玻璃膠要五枝，子宮螺絲入咗啦。有啲剪接線收寸半六號瓦螺絲，洗洗手龍頭呀，十隻、要十字塘橫個隻，知唔知邊隻。你可以攞落嚟影幅相嘅，要十隻，洗手龍頭、洗手盆龍頭
1102	D1	Not the one in Crystal, remember, er, no, remember, er, what’s the dorm right above workshop five? Dorm J is above workshop five, not dorm J, ah, dorm J. Remember once repairing the leaks in dorm J? Remember that shower valve being a crossed (two indecipherable characters)? (Do you)  remember, recall that? 唔係水晶嗰隻，記唔記得誒唔係，記唔記得誒五廠對上嗰嗰係咩倉。五廠對上嗰係J 倉呀，唔係J 倉，呀J 倉，記唔記得J 倉做有次漏水呀，記唔記得嗰個沖涼制係十字塘橫，記唔記得，有無印象？
1103		Flathead screwdrivers are not needed either 一字批都唔洗
1104	D1	Yes, (it)  doesn’t matter, if that’s the case, I’ll ask ‘Luk Tau’ (transliteration)  to take (it)  next time, no, ask ‘Luk Tau’ (transliteration)  to take the crossed (two indecipherable characters)  up there when it’s time to eat. You can have a look. 係、唔緊要，如果係嘅下次我叫阿六頭攞，呀唔係，食飯時候叫六頭攞十字糖橫上去。你可以睇一睇。
1105		Which three are here? 有邊三個係到呀？
1106	D1	I know, paint rollers, you order paint rollers for me, er, 3-inch small paint rollers. 我知道，油碌呀、你同我入油碌呀，誒三寸細油碌
1107		‘Tsang Sai-wing’ (transliteration) 曾世榮
1108	D1	You just order for me as well, take as many as there are, er, order one hundred, 3-inch small paint rollers. 你都照同我入呀，有幾多攞幾多，三吋細油碌要誒一百個呀
1109	D1	Huh? Ten a row, he sells in rows, yes, three hundred, don’t even have three hundred dollars? You just handle (it)  for me if there’s any. 吓，一排十個，佢一排排計呀，係，三百啦、三百蚊都無呀。如果有幾多、你同我搞啦
1110	D1	(Two indecipherable characters)  changed to anti-skid dressing plate, drill bits, those things are not relevant, yes, these are needed. Mm, yes, yes, mm, mm, mm, mm, okay, okay, then don’t order the crossed (two indecipherable characters)  first, I’ll approach whatshisname. That is, at the end, find you again, need me again. Find you and me again to do it. Said previously that was not a good idea, should be handled by the works. Now, at the end, huh, fuck, fucking go to hell, actually, actually (it’s)  you know. Fuck, I already asked ‘Ah Pong’ (transliteration)  to do (it), ‘Ah Pong’ (transliteration)  must have fucking stopped (it)  again. Well, well, everybody knows what has happened. ‘Ah Pong’ (transliteration)  ordered once, but after that, stopped up to now, I believe that he didn’t order. Second, that time he ordered, (he)  probably has fucking gotten into trouble, not all were ordered. 牛角轉鋼沙板，轉咀嗰啲唔關事，係囉，要呢啲呀。嗯、係、係、嗯、嗯、嗯、嗯、好、好，咁咁個十字塘橫唔好入住啊，我再搵呀咩。啫係最後尾咪又係要搵你、又係要我。又係搵返你同我做。之前又話唔好，要works做。宜家最後尾，嗄，屌、好撚仆街呀，根本根本就咩嘢。屌，之前我已經叫呀邦做，呀邦又停撚咗啦肯定。咁咁大家知發生咩事啦。呀邦入咗一次，但入咗之後停到宜家，我相信佢無入。第二樣嘢，佢入嗰次，應該都係賴撚咗嘢，未入晒
1111	D1	Because, he, er, I don’t know, I don’t know, okay, okay, okay, got to go, bye. 因為佢，唉，我唔知，我唔知，好好好，唔講啦，拜
1112	D1	Good morning, Sir, it’s ‘Ah Lun’ (transliteration). Just now, ‘Ah Yat’ (transliteration), at the anti-skid dressing area, (3 indecipherable characters). Well, he told me… 早晨 sir，呀倫呀，頭先呀一係誒鋼沙嗰度誒接咗殺，咁佢同我講咗⋯
1113		[Radio] [indistinct] [對講機] （聽不清）
1114	D1	Then I’ll follow his rules 哦咁我跟番佢啲規矩得啦⋯
1115		[Radio] Over. [對講機] 請講。
1116	D1	Follow his… 跟返佢個⋯
1117		[Radio] [indistinct] [對講機] （聽不清）
1118		[Radio] er, haven’t, haven’t, for the time being [對講機] 誒暫時未有未有
1119	D1	He will, confirm in November, still so serious, he’s really very serious. Okay, let’s talk again later. 佢十一月confirm㗎啦喎，仲咁認真，佢真係好認真啊，好啦再傾
1120	D1	‘Wai Wai’ (transliteration), have you seen ‘Lung Kwo’ (transliteration)? 呀維維呀，你有無見過呀龍哥啊？
1121	D1	In which location? 喺邊個位置？
1122	D1	Centre Division, I can’t reach him even after calling many times. 水飯房，我打極都搵唔到佢
1123	D1	(I)  see, you make a call to ask (about it). He’s now in the office, 128. Right, no, I don’t goddamn know, you, you ask, look, I’ll ask, I’ll ask, do you want me to ask? Yes, okay, mm, bye [Noise] 哦，你打去問一問啊，佢而家係寫字樓呀128。係呀，無呀，我鬼知咩呀。你你問啦，呢我問啦我問啦，你係咪想我問啊，係啦，好啦，嗯，拜(雜聲)

There was basically only one person speaking. The speaker identified himself as ‘Lun Kwo’. His voice is the same as that of D1. In view of the voice, the context and the location of the recording device, the only and irresistible inference is that D1 was the speaker.

H. Counters 1124 to 1236

Counter Number	Speaker	Contents
1124	D1	Joe ‘Kwo’ (transliteration), it’s ‘Ah Lun’ (transliteration)  from CMO Joe 哥呀，CMO呀倫呀
1125	D1	Oh, you’re asking? Oh, okay. [Noise] 哦，我問緊呀，哦，好（雜聲）
1126	D1	I’m looking for ‘Luk Tau’ (transliteration) 我搵阿六頭
1127		‘Luk Tau’, Luk Tau’ (transliteration), ‘Lun Kwo’ (transliteration)  is looking for you. 六頭、六頭，倫哥搵你
1128	D1	‘Luk Tau’ (transliteration) 六頭
1129	D3	What? 咩啊？
1130	D1	I’m coming in 我入嚟
1131	D3	Talk 講呀
1132	D1	I’m coming in 我入嚟
1133	D3	Who is it? 邊個嚟㗎 ？
1134	D1	(It’s)  me, ‘Lun Kwo’ (transliteration) 我呀，倫哥
1135	D3	Huh? 吓？
1136	D1	‘Lun Kwo’ (transliteration) 倫哥
1137	D3	Oh 哦
1138	D1	You know, wow, you brat. Get further in, further in. [Closing door sound] 你依家，哇你個死仔。入啲，再入啲（關門聲）
1139	D3	(It)  can be used again now, (I’m)  so confused. 依家又用到喎喎，𢲷哂頭
1140	D1	Huh? 下
1141	D3	(It)  can be used again now. 依家又用到喎
1142	D1	Can (it)  be used now? 用唔用到呀依家？
1143	D3	(It)  can be used now, couldn’t be used just earlier, (I)  don’t know what (happened). 依家未用到，啱啱又用唔到，唔知點
1144	D1	(It)  can be used now. 依家咪用到囉
1145	D3	Now (it)  can be used, (I)  don’t know why there was no signal just earlier, (it)  didn’t work the whole - whole time, but just works now. 依家用到啫，啱啱冇訊號呀嘛唔知點解喎，成成日都唔得㗎喎，係啱啱先得咋喎
1146	D1	There is, now. 有啦，佢依家
1147		But 但係
1148	D1	That means, (that’s)  not relevant. 咁即係唔關事啦
1149	D3	But all the same. 但係照問一問先囉
1150	D1	Wow, so fucking tiny, so fucking cool, have never really 哇咁撚細嘅，咁撚有型嘅，真係未
1151	D3	I assembled (it)  on my own. 自己砌
1152	D1	Have never fucking seen (one). 未撚見識過
1153	D3	I assembled (it)  on my own. Asked [indistinct] to bring (it)  in for me after assembling 自己砌㗎，砌完之後搵（聽不清）叫幫我攞入嚟
1154	D1	How to assemble, assemble (it), so tiny? 點樣砌㗎，砌到咁細隻
1155	D3	(It)  has no brand, (I)  assembled (it)  on my own, assembled (it)  with the mainland goods. People like us have ways, chill out, boss. 無牌子㗎嘛，自己砌㗎，係大陸貨砌番嚟㗎嘛。我哋呢啲有呢啲路㗎嘛，定啲嚟啦老細。
1156	D1	Wow, (it’s)  really tiny, really tiny. 哇，真係好細，真係好細
1157	D3	Won’t be known at all. What’s up, anything you want from me? 根本就唔知。點呀，有嘢搵我呀你？
1158	D1	I just came to see if your card works 我就係睇吓你張卡掂唔掂
1159		[Indistinct]…food, vehicles [indistinct]…location…[indistinct] （聽不清）⋯伙食車輛（聽不清）⋯位置⋯（聽不清）
1160		[phone ringing sound] （電話響）
1161	D1	Yes, CMO, yes 係，CMO，係
1162	D1	Fuck 我屌
1163	D1	Fuck, he’s so fucking bloody, lazy, really 我屌，佢懶撚到仆街呀真係
1164	D1	Believe, you ask ‘Ah Yam’ (transliteration), call, ‘Ah Yam’ (transliteration), no, have you called him? 信，你問呀任呀，call，呀任，唔係你有冇call過佢先
1165	D1	Oh, not you who make the call, you call him to ask if, if there was any order, er, two eight two, to take the PVC blinds, you ask him directly that way. If he says no, then, then you can place the order, alright? 哦，唔係你打電話，你call番聲問一問佢，有無，有無出過誒二八二攞膠簾，你直接咁問佢，佢話冇喎，咁咁你咪可以出囉，好無呀？
1166	D1	Er, then you really have to wait for ‘Ah Yam’ (transliteration). Wait, okay, okay, okay, okay, bye 誒，咁呀你真係要等下呀任喎，等呀，好，好，好，好，拜
1167	D1	[Radio sound] Over （對講機響聲）請講
1168		[radio] [indistinct] [對講機]（聽不清）
1169	D1	Six, six, please. 六個，六個，唔該
1170		[Radio] Six, copy that, thank you. [對講機] 六個，收到，唔該晒
1171	D1	Wow, voice so fucking soft [Beep sound] this microphone. 嘩，好撚細聲喎（嘟聲）呢個咪頭
1172		[Indistinct] （聽不清）
1173		Huh? 吓
1174		[Indistinct]… cut already （聽不清）⋯ cut咗呀
1175		[Phone ringing sound] （電話響）
1176	D1	Yes, good morning, CMO, yes, yes, oh, nothing, just want to ask, er, hey, those water taps used before, didn’t I use up a few for you then, those in the garden? The young chaps now, again, want to get some, I want to ask if you have those things? 係，早晨CMO, 係，係，哦無嘢，多口問句，誒喂嗰啲，之前用嗰啲水喉頭呢，嗰陣時我咪幫你頂咗幾個嘅，花園嗰啲呀，宜家班靚仔又想𢲷呀，我想問吓你有無嗰啲咁嘅嘢呀？
1177	D1	Did you buy (them)? 有無買過呀？
1178	D1	At that time, I was supervising, you, you mean OP, those things? OP…O… 嗰陣時我指揮啫，你你意思係OP 嗰啲呀？OP⋯O⋯
1179	D1	Yes, because the young chaos in Ha Wai, cool fan (and)  ‘Kin Kwo’ (transliteration)  said (they)  want two, well, there aren’t (any)  as well. 係，因為下圍啲靚仔，呀 cool fan 健哥話想要兩隻，咁又係無囉
1180	D1	‘Chi Fai’ (transliteration)  ordered, that a great chance that (he)  has (some)  at his side? I don’t even know what he, ‘Chi Fai’ (transliteration), is doing now. I hardly see him, he said (he)  handled the works, but he was never seen when works were (conducted). Don’t know what he’s doing. 子輝入，佢嗰邊好大機會有呀？宜家子輝佢做咩我都唔知，我成日都見唔到佢，佢把口就話做works，但係永遠works 都見唔到佢，都唔知佢做咩嘢
1181	D1	(It’s)  actually very confusing. Second, have (you)  seen ‘Lung Kwo’ (transliteration)? [Indistinct] that side? I have, I have seen him, but no one answered when I made calls just now, so just ask. Oh, then fine, er, no, just mainly asked you this, because, because, (it)  was brought up yesterday, yesterday, so I, just let you know. Yes, alas, I do think these things are sometimes, very troublesome. But ‘Chi Fai’ (transliteration)  ‘ordered’ (one wrong character)  for you guys at that time. No. 其實好亂啊。第二樣嘢，呀見唔見呀龍哥呀，（聽不清）嗰邊呀，我有我有見過佢，不過我頭先打去無人聽咋嘛，問起，哦，咁得啦，誒無呀，最主要問你呢樣嘢啫，因為因為，琴日琴日提起，我早少少同你講聲，係囉，唉我就係覺得好煩有時呢啲嘢真係。但係嗰時呀子輝掟咗俾你哋，無
1182	D1	Yes. That is, bought by ‘Lung Kwo’ (transliteration). 係呀，啫係阿龍哥買嘅
1183	D1	Yes, yes, yes, oh then, fine then, I’ll look into it later on, I, I, I’ll tell ‘Kin Kwo’ (transliteration)  first. Tomorrow, right? 係，係，係，哦咁樣，咁得啦，我稍後再了解吓，我我我同阿健哥講咗先，聽日呀嘛，係嘛
1184	D1	Yes, yes, er, garage, is it ‘Tai Hau’ (transliteration)? I’ll call him to tell him (that). That is, there will be three carts for him at eleven o’clock, okay, I’ll tell him (that), okay, good. 係，係，誒車房係咪呀大口呀，我打俾佢同佢講呀，啫係十一點會有三板車俾佢，得我同佢講聲，得，好
1185	D1	Good morning, ‘Tai Hau Kwo’ (transliteration), yes, I’m ‘Ah Lun’ (transliteration)  from CMO. Hey, did Joe contact you, saying that there will be three carts of wooden boards coming tomorrow? 早晨，呀大口哥，係呀，我係CMO呀倫呀，喂呀Joe有無聯絡過你呀，話聽日咩有三版木板番
1186	D1	Right, did (he)? 係呀、有無呀？
1187	D1	(He)  did. Because, the situation is that I don’t know whether I’ll come in tomorrow, I have something (to take care of), but I’ll hand over (the work), well, but, I just let you know, OK? Well, in fact, there’ll be three carts tomorrow, with, with two hundred planks, OK? One hundred of them, in fact, have to be put into the cement stockroom, that is, where the cement stockroom is cleared when the rubbish is dumped. 有呀，因為個情況，聽日我唔知返唔返，我有啲事，咁但係我會交低咗嘅，咁但係我都同你講聲先，OK，嗱，其實聽日嗰度呢三板車啫，有有二百塊床板，OK，有一百塊呢其實要入英泥倉嘅，啫係平時倒垃圾係咪要清英泥倉嗰度
1188	D1	Yes, yes, one hundred pieces go to that place, the other one hundred pieces go to CMO. 係啦係啦，嗰度要攞一百塊，另外一百塊就要落去CMO個度
1189	D1	Yes, yes. That’s it, just to let you know. 係啦係啦。就咁樣嘅，咁你得個知字。
1190	D1	I don’t know yet, because, now, I still don’t know. Because my wife, something happened to my wife, ah, ah. Oh, I’ll also tell my young chaps about (that), my young chaps will tell the superior who takes over tomorrow when they get to work. Alright? Thank you so much, okay, thank you. [Noise] 我未知，因為宜家我都唔知，因為我太太，我太太有啲嘢，呀呀，哦，我都會同我啲靚仔講嘅，我啲靚仔會同聽日返工接頭老細講嘅。好無呀，唔該晒，好唔該（雜聲）
1191	D1	‘Luk Tau’ (transliteration). 呀六頭
1192	D3	Who’s this? 邊個
1193	D1	(It’s)  me, your boss, what is to be afraid of? Your boss can’t do anything. 我呀，你老細怕乜，你老細乜都得㗎啦
1194	D3	No, I was just wondering who this is. 唔係，我以為邊個啫
1195	D1	What are you doing? 有咩搞呀你
1196	D3	Nothing, (I was)  just thinking to look for ‘Ah She’ (transliteration)  for chit-, chit-chatting. 無嘢搞呀，啱啱諗住搵阿蛇吹吹緊水咋嘛
1197	D1	Wow, (it)  can be connected to the Internet? So fucking cool. 嘩乜上到網嘅咩，咁撚勁嘅
1198	D3	Here? 呢度？
1199	D1	Yes. 係呀
1200	D3	There is, is Wi-Fi 有有Wi-Fi
1201	D1	Can this be shared, shared or not? 呢個 share 唔 share 到？
1202	D3	Of course not. 梗係唔得啦
1203	D1	No, (it)  can be shared. Can your phone be connected to the Internet? 唔係喎， share到喎，你個電話有冇上網？
1204	D3	Surfing the Internet, how to surf, there’s no website address, not here. I just assembled this device on my own, (it)  can’t be connected to the Internet, dumb. No, (it)  can’t be connected to the Internet. 上網喎，點上呀，無網址呀，無㗎呢度，呢部我砌出嚟㗎咋，唔會有上網㗎，傻佬，無㗎唔會有上網㗎
1205	D1	Really? 係咩？
1206	D3	This thing is, just clicking the (buttons)  below. (It)  can’t be connected to the Internet, these kind of device doesn’t have (such function), (it’s)  a mainland device, can’t you see? Just for clicking, (it)  was only assembled (by pieces). 撳下面咋嘛呢個嘢係，唔會有上網㗎，呢啲機係唔會有，大陸機嚟㗎，你見唔到咩，撳嘅咋嘛，砌出嚟咋嘛
1207	D1	You rock, can even assemble (this). 咁好嘢，咁都俾你砌到
1208	D3	(I can)  Assemble one for you if you want. 你又想用咪幫你砌部囉
1209	D1	Fucking nuts, (I have)  many good stuff to use, what’s the need. 黐撚線，大撚把好嘢用啦，洗咩
1210	D3	No need. The (reason)  why I assembled (this)  is to facilitate doing things, because (it)  can’t be tracked, because inside this device, there’s no, no those numbers, no codes, do you understand (that)? That is, (it)  has no the, the so-called …(one indecipherable character), no, all are, all are those, those, er, impossible, won’t have those - anyway, that is, very safe. 唔洗呀，我點解要砌呢，就係因為方便做嘢，因為追唔到因為呢部機入面呢係無嗰啲 Number 嘅無 code 嘅呢個，你明唔明呀，即係無咩咩所謂嘟啊，無嘅，全部都係，全部都係啲啲啲誒冇可能，唔會有嗰啲呢，總知就，即係好穩陣㗎
1211	D1	You brat. 你個死仔
1212	D3	Of course (I)  have ways, anything to help you…[indistinct] 梗係有呢啲窿路㗎啦，有咩嘢可以幫到你⋯（聽不清）
1213	D1	Nothing, just be good. 無啊，你乖乖地啦
1214	D3	Call ‘Ah Ki’ (transliteration), that mother fucker must be sleeping. 打俾阿褀，屌佢老母喺度瞓緊覺一定
1215		Just wait 等等啦
1216	D3	To talk about what you told me. 商量你同我講嗰啲嘢
1217	D1	Okay, you, handle (it)  later, be good, stay low-key. 得啦你再搞啦，乖乖哋，低調啊
1218	D3	You’re leaving now? 走啦咩你宜家？
1219		Leaving what? Not yet. 走咩啫，未啊？
1220		Oh, not yet. 哦，未呀
1221	D1	I want to, will tell you later, about those things tomorrow. 我想同你，轉頭先講啦，聽日嗰啲嘢
1222		[Indistinct] （聽不清）
1223	D1	I’ll tell you in a while. Brett, always hiding inside, watching TV. [Noise] 我轉頭先同你講啦，死仔成日匿埋喺裏面睇電視（雜聲）
1224	D1	Er… ‘Ah Cheuk’ (transliteration), help me with a few things. 誒⋯呀雀呀，幫幫我幾樣嘢
1225		[Phone ringing sound] （電話響）
1226	D1	Good morning, CMO. 2-inch for the hex head screws, huh, fine. Huh, huh, huh, huh, huh, huh, okay, mm, okay, bye 早晨，CMO，六角螺絲要兩吋呀，嗄。得啦，嗄，嗄，嗄，嗄，嗄，嗄，好、嗯、好，拜
1227	D1	Ah Cheuk’ (transliteration), can (you)  affix the double side tape on these for me, or was it already affixed? When (you)  go up there later on, apply (them)  on all the guard kiosks for me. [Noise] 呀雀，呢啲可唔可以幫我癡雙面膠紙，定喺癡咗㗎啦本身，轉頭行上去嘅時候幫我癡晒啲更亭佢（雜聲）
1228	D1	Affixed or not? These are the double side tape. 有無癡呀，呢啲係雙面膠呀
1229		[Radio] [Radio sound] Hello [indistinct] ‘Kwo’ (transliteration), [indistinct] ‘Kwo’ (transliteration). [對講機]（對講機響聲） 喂（聽不清）哥（聽不清）哥
1230		Help affix the double-side tape 幫手痴咗啲雙面膠去呀
1231		[Radio] [Indistinct]…(I)  forgot to tell you just now…[indistinct] do the cleaning down in the sandpit, so now…[indistinct] ‘Kwo’ (transliteration)  will help you first, sorry.  [對講機]（聽不清）⋯頭先唔記得同你講啊⋯（聽不清）落去沙地嗰度呢做清潔，咁呀宜家（聽不清）⋯哥幫住你先唔好意思。
1232		[Radio] Copy that, copy that. [Beep sound] [對講機] 收到收到（嘟聲）
1233	D1	Good morning, ‘Lung Kwo’, ‘Lung Kwo’ (transliteration), I’m ‘Ah Lun’ (transliteration)  from CMO. Is there any phone to reach you? 早晨呀，龍哥龍哥，我係 CMO 呀倫呀，有無電話可以聯絡到你呀
1234		[Radio] ‘Ah Lun’ (transliteration), I know your place, I’ll come over later…[indistinct]. The thing this afternoon should be fine (I)  think. Well, I’ll give you a call later, I went down there, the gateway, there, to settle something first [beep sound]…[indistinct] let’s talk again later. [對講機] 呀倫呀，我知道你嗰個地方，我稍後時間嚟⋯（聽不清），今日下晝嗰單嘢應該無問題嘅，咁呀我淨間俾電話你呀，我落咗去下邊⋯關口嗰度搞啲嘢先（嘟聲）⋯（聽不清）再同你傾
1235	D1	Hey, thank you ‘Lung Kwo’ (transliteration), thank you for understanding. 喂，辛苦晒龍哥，多謝你體諒呀
1236		[Radio] Clear, clear. [Noise] [對講機] 清晰清晰。（雜聲）

During the most part of this recording, there were only two people speaking to each other face to face. One of the speakers repeatedly identified himself as ‘Ah Lun’ from CMO. In the light of the voice and the location of the recording device, the only and irresistible inference is that this speaker was D1. This speaker also asked to see ‘Luk Tau’, which was D3’s nickname. The voice of the ‘Luk Tau’ in the audio-recording is the same as D3’s voice when he gave evidence in court. The only and irresistible inference is that this ‘Luk Tau’ was D3.

Ownership of the Seized Telephone

260.  The Defence argued that there was no evidence to show that D3 was the owner of the seized mobile telephone. In cross-examination, the CSD witnesses were criticized by the Defence for they failure to investigate the ownership of the seized mobile telephone. This stance wholly disregards the wording of Charges 1 and 2 and the real issues in these proceedings.

261.  The particulars of Charges 1 and 2 are as follows:

Charge 1

(D1)  and (D3)  between the 16^th day of July 2020 and the 23^rd day of October 2020, both dates inclusive, in Hong Kong, conspired together for the said (D1)  while being a public official, namely the Assistant Officer I of the Correctional Services Department of the Hong Kong Special Administrative Region, holding the post of Officer-in-Charge of the Construction and Maintenance Unit at the Tong Fuk Correctional Institution (TFCI), to willfully and intentionally misconduct himself in the course of or in relation to his public office, without reasonable excuse or justification,

(a)  conniving at the unauthorized possession and use of a mobile phone in TFCI by the said (D3)  as a prisoner; and

(b)  rendering assistance to the said (D3)  in improving the signal reception of a SIM card used in the mobile phone at TFCI.

Charge 2

(D2), (D3), (D4)  and (D5)  , between the 16^th day of July 2020 and 23 October 2020, both dates inclusive, Hong Kong, conspired together for the said (D2), while being a public official, namely the Assistant Officer II of the Correctional Services Department of the Hong Kong Special Administrative Region, holding the post of Assistant to the Officer-in-charge of the Construction and Maintenance Unit at the Tong Fuk Correctional Institution (TFCI), to willfully and intentionally misconduct himself in the course of or in relation to his public office, without reasonable, excuse or justification,

(a)  conniving at the unauthorized possession and use of a mobile phone in TFCI by the said (D3)  as a prisoner; and

(b)  introducing unauthorized cigarettes into TFCI for the said (D3)  a prisoner.

262.  In short, the Prosecution only alleges that D3 was in possession and use of the seized mobile telephone. Ownership of that mobile telephone is wholly irrelevant.

263.  D3’s counsel submitted that there is evidence that the mobile telephone and the other unauthorized items belonged to another prisoner. I disagree. The bag that D3 was holding may belong to another prisoner. However, by reason of the matters mentioned below, there was overwhelming evidence to show that D3 was in possession and was using the seized mobile telephone. Even if ownership of the seized telephone were relevant, it was clear from D3’s record of interview that he was the owner.

Possession of the seized mobile telephone

264.  D3’s counsel questioned whether the seized mobile telephone could belong to another prisoner. She even went as far as suggesting that the seized telephone could have been planted on D3. This submission is ridiculous and wholly untenable:

(1)  D3’s interception and search were video recorded. The video footages were undisputed. It can be seen from the video that D3 was holding the prisoner’s bag immediately prior to his interception. When D3 was told that a search would be conducted, he held onto the prisoner’s bag in an attempt to obstruct the search [See P26 (1:33)];

(2)  It can be seen from the video of the search that the seized mobile telephone was found inside the bag that D3 was carrying;

(3)  After the seized mobile telephone and other unauthorized items were found, they were shown to D3 and D3 was cautioned;

(4)  In his record of interview [P85], PW13 narrated to D3 what happened during the search. D3 was told that a number of unauthorized items were found on him, including the seized mobile telephone and unauthorized cigarettes. When the CMO workshop was searched, D3 pointed to a charging cable inside the stockroom of the workshop. D3 confirmed PW13’s version of events [P85 Q and A 5];

(5)  During the record of interview, D3 was asked how he got the seized mobile telephone. D3 alleged that it was given to him by D1 and D2 [See P85 Q and A 7 to 11];

(6)  D3 also admitted in the record of interview that he has been using the seized mobile telephone and the telephone number of the CSL SIM card was 6598 7379. This SIM card could not be used and was flushed away [P85 Q and A 14 to 18 , 29 to 31 and 45 to 46];

(7)  D3 told the ICAC officers during the record of interview that he asked ‘Ah Ki’ to top up the seized mobile telephone for him [P85, Q and A 20];

(8)  D3 stated that D2 gave him the charging cable to charge the telephone and that D1 and D2 were both present when the telephone was frequently charged [P85, Q and A 21 to 25];

(9)  D3 admitted that there was a reception failure of the seized mobile telephone on 22 October 2020 and that D1 was approached for assistance. D1 promised to check for D3 [P85, Q and A 27 and 28];

(10)  It was not in dispute that a SIM card with the telephone number 5608 7429 was found inside the seized mobile telephone [3^rd Admitted Facts P102, §1]. [P85, Q and A 29 to 31];

(11)  One of the SIM cards could not be used and had been flushed away [P85, Q and A 46]

(12)  D3 asserted that he never gave or lent the seized mobile telephone to others but he does not know if others used it [P85, Q and A 32];

(13)  It is not in dispute that frequent telephone calls were made from the seized mobile telephone (including mobile telephone numbers 5608 7429 and 6598 7379)  seized from D3 to the telephone numbers of D3’s family and friends [See 2^nd Admitted Facts P99, §§ 15 to 17, §§ 31 to 35]. It is admitted that none of these telephone calls were made pursuant to the CSD’s arrangement;

(14)  PW8 is D3’s friend. She stated that she received telephone calls from D3. Her telephone number was 6541 8876, whereas D3’s calls were from 6598 7379. Her evidence was undisputed.

265.  By reason of the above matters, it is crystal clear that D3 was in possession of the seized mobile telephone and that he had been using it frequently.

Duress

266.  In his record of interview, D3 alleged that the seized mobile telephone was forced upon him by D1 and D2 and that he would be framed for possession of the telephone if he refused to accept it [P85 Q and A 8 to 10]. Counsel for D3 did not frame it as duress. She queried whether D3 was in possession of the telephone. D3’s assertions are wholly contradicted by the covert recordings.

267.  As can be seen from counters 1098 to 1123, D1 only saw the seized telephone for the first time when it was shown to him by D3. D1 was amazed by the tiny size of the telephone and stated that it was the first time he had seen a telephone of that size. Further, in the audio recording, D3 stated that he had made the telephone with parts from the Mainland. It was clear that the phone was not forced on D3 by anyone.

D1’s knowledge of the seized telephone

268.  It was clear from counters 1098 to 1123 of the covert audio recordings that D3 showed the seized telephone to D1. D3 told D1 how he had made the telephone and the two of them discussed the reception of the telephone and whether it had Internet access.

269.  On the day after the covert audio-recordings (i.e. 23 October 2020), two telephone calls were made from D1’s telephone number 6682 6288 to the CSL hotline. Those calls were recorded. The recordings and the transcripts were admitted as P8, P8a, P9 and P9a.

270.  The first call was made to the CSL hotline at 2888 2123 between 1021 hours and 1022 hours on 23 October 2020. The caller (i.e. from D1’s telephone), whose stated surname was Yeung, said that he had a prepaid SIM card with the telephone number 6598 7379. He was referred to the hotline 179179.

271.  The second call was made to the CSL hotline 179179 between 1028 hours and 1033 hours from D1’s telephone. The caller (i.e. from D1’s telephone)  whose stated surname was Yeung, stated that he had a prepaid SIM card with the telephone number 6598 7379. He said that there should still be over $400 in the SIM card but the reception has deteriorated. He asked whether the SIM card was still activated. He also told The CSL hotline staff that the SIM card was being used in the mountain area on Lantau Island.

272.  In fact, looking at the whole of the above, it was clear that D1 knew about D3’s possession and use of a mobile telephone even before the seized telephone was shown to him [See counters 833 to 857 and counters 1098 to 1149].

273.  On the following day, two calls were made from D1’s telephone to the CSL hotlines to enquire about the reception of 6598 7379 (which was one of the telephone numbers used by D3 to call his family and friends). A sheet of paper with a hand written number “6598 7379 CSL” was found and seized from D1’s residence.

274.  By reason of the above matters, I find that not only did D1 know about D3’s possession and use of the seized mobile telephone, he assisted D3 to make enquiries about the reception of the SIM card 6598 7379.

Whether it was possible for D4 to commit Charge 2 when he was not a prisoner at the time of the alleged offence

275.  D4’s Counsel argued that it was impossible for D4 to commit charge 2 because at the time of the alleged offence, D4 was neither a CSD officer or a prisoner. This argument is wholly untenable and contrary to established legal principles (See discussion of Legal Principles below). Counsel has completely lost sight of the fact that D4 is charged with conspiracy. The Prosecution’s case is that D2 was the person committing misconduct in public office. D4 is alleged to have conspired with D2 to do so.

Discussions

Legal Principles

Charges 1 and 2

276.  Section 159A(1)  of the Crimes Ordinance, Cap. 200 provides:

1. Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either -

(a)  will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b)  would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

277.  The elements of the offence of misconduct in public offence are set out in Shum Kwok Sher v HKSAR (2002)  5 HKCFAR 381. In that case, the Court of Final Appeal said at pp. 405C -E and 408D - 410A:

69. The difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence. This is because, to quote the words of PD Finn, "Public Officers: Some Personal Liabilities" (1977)  51 Australian Law Journal 313 at 315:

“The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position.”

70. It follows that what constitutes misconduct in a particular case will depend upon the nature of the relevant power or duty of the officer or of the office which is held, and the nature of the conduct set to constitute the commission of the offence…

Identifying the elements of the offence, including its mental element

81. As I have already noted, in an earlier article, "Public Officers: Some Personal Liabilities" (1977)  51 Australian Law Journal 313, Dr Finn had correctly pointed out (at 315)  that the essence of the offence is that an officer who has been entrusted with powers and duties for the public benefit has abused them or his official position. Abuse of such powers and duties may take various forms, ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty or exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, to oppression. In all these instances the conduct complained of by the public officer takes place in or in relation to, or under colour of exercising, the office.

82. The critical question is: what is the mental element required to constitute commission of the offence? In the case of nonfeasance, non-performance of a duty arising by virtue of the office or the employment, all that is required is wilful intent, accompanied by absence of reasonable excuse or justification. Mere inadvertence is not enough. So much is established by the authorities, notably the more recent cases including R v. Dytham and Question of Law Reserved (No. 2 of 1996)  at 418, per Doyle CJ.

83. In other cases, the question is more complex. That is because outside the area of non-performance of a duty, an additional element is generally, if not always required, to establish misconduct which is culpable for the purposes of the offence. In such cases, in the absence of breach of duty, the element of wilful intent will not be enough in itself to stamp the conduct as culpable misconduct. A dishonest or corrupt motive will be necessary as in situations where the officer is exercising a power or discretion with a view to conferring a benefit or advantage on himself, a relative or friend. A malicious motive will be necessary where the officer exercises a power or discretion with a view to harming another. And a corrupt, dishonest or malicious motive will be required where, an officer acts in excess of power. The point about these cases is that, absent the relevant improper motive, be it dishonest, corrupt or malicious, the exercise of the power or discretion would not, or might not, amount to culpable misconduct. Although the examples constitute some only of the range of situations which fall within the reach of misconduct in public office, they are enough to illustrate the proposition that the existence of an improper motive, beyond the existence of a basic wilful intent, is necessary to stamp various categories of conduct by a public officer as culpable misconduct for the purposes of the offence.

84. In my view, the elements of the offence of misconduct in public office are:

i. A public official;

ii. who in the course of or in relation to his public office;

iii. wilfully and intentionally;

iv. culpably misconducts himself.

A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. Subject to two qualifications, …

85. The first qualification is that, …, I consider that the misconduct must be “willful” as well as “intentional”… In other words, "wilfully" signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. For this reason "wilfully and "intentionally" are not employed disjunctively in the statement of the elements of the offence in the preceding paragraph.

86. The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

87. … the qualification is consistent with the concept of abuse of office and it is appropriate that the offence should be so qualified in the light of the creation of a range of disciplinary offences that now apply in the case of public sector employees. The qualification is not to be taken as a dividing line between the offence of misconduct in public office and disciplinary offences. There is no doubt a borderland in which the common law offence and disciplinary offences overlap.

278.  The elements of a conspiracy to commit misconduct in public office are set out in HKSAR v Siao Chi Yung Weslie & Anor [2023] 1 HKLRD 653:

153. In R v Chapman cited by Ms. Fan, the English Court of Appeal stated in a case involving the same offence:

(I)  In deciding whether the accused (A)  was guilty of “Conspiracy to commit misconduct in public office”, the juror must be sure:

(1)  that the person alleged to be a public official (B)  had committed the offence of “misconduct in public”; and

(2)  that there was an agreement between A and B, which, if carried out in accordance with their intentions, would necessarily involve B, acting as a public official, willfully committing misconduct.

(II)  The mental element of A was in reaching the agreement and intending B’s willfully performing the misconduct;

(III)  According to the provisions of the crime of conspiracy, the Prosecution did not need to prove that A knew or intended B’s behavior at the time of reaching an agreement to meet the degree of seriousness required by the law. Whether the misconduct met the requisite threshold of seriousness required consideration of a basket of factors, which would be the decision of the jurors after analyzing the evidence…

(IV)  The Prosecution must prove that A was aware of the circumstances under which B made they agreed at, and that the circumstances must be sufficient to make the seriousness of the relevant act reach the threshold for committing the offence in the present case.

Charge 3

279.  In HKSAR v Egan (2010)  13 HKCFAR 314, the Court of Final Appeal said:

125. A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect. Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.

126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice. It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible...” And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto. It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.

127. Investigations by law enforcement agencies do not themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”)  so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.

Application of the Legal Principles

280.  I will now apply the above legal principles to the present proceedings.

Charge 1

281.  There is no dispute that D1 is a public official. According to the Prosecution evidence, D1’s duties included the supervision and discipline of prisoners and was under a duty to report to his superior in the event that unauthorized items were found in the prisons’ possession. It is ridiculous to suggest that D1 had no power to seize unauthorized items found.

282.  As explained above, there is no doubt that D3 was in possession of the seized telephone and had been using it frequently. I found that D1 was not only aware of D3’s possession and use of the seized telephone, he also assisted D3 to improve the reception of his SIM card by calling the CSL hotlines.

283.  Counsel relied on HKSAR v Tsang Yam Kuen Donald (2019)  22 HKCFAR 176:

32. A considered decision not to disclose information may be deliberate in the sense that it is not inadvertent, but it may at the same time result from an error of judgment. To describe a decision not to disclose something as “deliberate concealment” adds a pejorative element. Where, as in the present case, the particulars of the alleged misconduct are failing to declare or disclose or concealing, there may be a need for care in distinguishing between the alternative possibilities. Concealment implies dishonesty. Failure to disclose, even if deliberate, may be the result of an error of judgment.

62. A failure by a decision-maker to disclose an interest in the subject matter of the decision may be deliberate in the sense that the decision-maker thought about disclosure and decided against it, but not wilful because the decision-maker did not know, or believe, there was an obligation to disclose in the circumstances of the case, and did not disregard the risk of there being such an obligation.”

284.  In the present case, there was more than a failure to report. D1 called the CSL hotlines in an attempt to improve the reception of D3’s SIM card. It was clearly not an error of judgment. Further, there was no evidence to suggest that D1 did not know, or believe that there was an obligation to report.

285.  Counsel further submitted that D1’s motive is relevant for his act to constitute misconduct. The motive has to be mala fide. She argued that even if D1 had failed to disclose or report D3’s behavior immediately to his superiors, it did not constitute misconduct as the majority element is absent.

286.  I disagree. This submission is wholly contrary to the legal principles above. This was a case of nonfeasance. As was pointed out in Shum Kwok Sher v HKSAR, in a case of nonfeasance, the Prosecution only has to prove that the failure to report was willful and intentional and there is lack of a reasonable excuse or justification. A motive only has to be proved if the allegation is one of misfeasance. D1’s calls to the CSL hotlines demonstrate that his nonfeasance was willful and intentional.

287.  Counsel for D1 relied on Sin Kam Wah v HKSAR (2005)  8 HKCFAR 192, the Court of Appeal said:

“46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.

C. The scope of misconduct in public office

47. As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1^st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters. To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1^st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2^nd appellant exercised control, direction or influence, that being a serious criminal offencee.

288.  Counsel for D1 submitted that in order for D1 to willfully misconduct himself, the Prosecution must prove that he knew D3’s possession of the seized telephone is a “primal offence” and that D1’s failure to report the same constitutes a criminal offence. This submission is clearly wrong and contrary to the cardinal principle that ignorance of the law is no Defence.

289.  In any event, section 18 of the Prisons Ordinance provides:

Introduction of unauthorized articles into prison

(1)  Any person who brings, throws or in any manner introduces or conveys into any prison, or conveys to any prisoner while in custody outside the prison, or deposits in any place outside a prison with intent that it shall come into the possession of a prisoner, or carries out of a prison any arms, ammunition, weapon, instrument, intoxicating liquor, opium or other drugs, tobacco, money, clothing, provisions, letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence and shall be liable on conviction to a fine at level 1 and to imprisonment for 3 years.

(2)  Any officer of the Correctional Services Department or other person employed in the prisons who contravenes or permits any contravention of the provisions of subsection (1)  shall be liable, in addition to the above punishment and any other punishment, to forfeit his office.

290.  Discipline and security are of crucial importance in prisons. The introduction of unauthorized items into prisons endangers both discipline and security. It is clear from the provisions of the Prisons Ordinance that not only is the introduction of unauthorized items into prisons regarded as serious, it is a criminal offence. In addition to imprisonment and a fine, a CSD officer who introduces unauthorized articles into prisons or permits such introduction is liable to forfeit his office. Introduction of a mobile telephone into prison is extremely serious. In the present case, D3 told D1 that the seized telephone had no IP address and could not be traced. Not only would it endanger security and discipline, it would enable the prisoner to continue with criminal behavior.

291.  Counsel for D1 relied on HKSAR v Ho Hung Kwan Michael (2013)  16 HKCFAR 525:

26. In considering this important question, one must not lose sight of the object of this offence. It is clear from a review of the authorities that this offence is aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position…

29. In cases where corruption, dishonesty or other illegal practices are involved, it is not necessary to specifically consider the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct in public office. The misconduct speaks for itself: the seriousness of the consequences of such corrupt, dishonest or illegal practices will be obvious.

30. In other cases, where corruption, dishonesty or other illegal practices are not involved, the consequences of the misconduct may not be obvious. Nevertheless, this must be a factor which is also relevant when considering whether the misconduct is serious enough as to merit criminal sanction. I do not think the prosecution is disputing the relevance of this factor. Nor can this be disputed. This factor was not mentioned in the discussion of this offence in Shum Kwok Sher. That was a case of granting preferential treatment to a close relative in relation to some government contracts and the seriousness of such misconduct and its consequences could be readily seen. I also do not think the list of factors mentioned in that case was intended to be exhaustive. Further, in most cases, the consequences of the misconduct will usually have been considered when one is examining the nature and extent of the departure from those responsibilities.

31. The approach to be adopted in considering whether any misconduct was serious enough as to call for condemnation and punishment was further discussed in Chan Tak Ming v HKSAR (2010)  13 HKCFAR 745. Bokhary PJ said:

27. … trivial misconduct will of course not support a charge of misconduct in public office. That said, the question is whether the offence is serious having regard to – as stated in that item (5^th item of the reformulation)  – the responsibilities of the office and the office holder, the importance of the public objects which they serve and the extent of the departure from those responsibilities. It is in that way – and not by saying that it must be sufficiently serious since it is not trivial – that one goes about deciding whether the necessary seriousness exists.

32. One must consider all the circumstances of the case including the factors mentioned above. It would be wrong simply to conclude that if the misconduct in question is not trivial, then it must be serious enough to merit criminal sanction. It is a high threshold for the prosecution. As Pill LJ said in AG’s Reference (No.3 of 2003), [56]:

It supports the view expressed in the criminal cases, from R v Borrow 3 B & Ald 432 to Shum Kwok Sher v HKSAR 5 HKCFAR 381 that there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct.

292.  Counsel argued that as in Ho Hung Kwan Michael, it is endorsed that trivial conduct will not support a charge of misconduct in public office. It is wrong simply to conclude that if the misconduct in question is not trivial, then it must be serious enough to call for condemnation and punishment. There is a high threshold for the prosecution to prove the misconduct is serious, in that “there must be a serious departure from proper standards before the criminal offence is committed, and such departure is not merely negligent, but amount to an affront to the standing of the public interest or expectation. The threshold is one requiring conduct so far below acceptable standards as to amount to an abuse of the public trust in the office holder. The motive with which a public officer acts may be relevant to the decision whether the public trust is abused by the conduct”.

293.  Counsel stated that even if the Court finds that D1’s failure to report immediately D3’s possession of a mobile telephone was a serious mistake, it may not amount to misconduct if it does not involve an abuse of powers. A delay in reporting due to error of judgment is insufficient for him to be convicted.

294.  I again disagree. Misconduct in public office does not necessarily require an abuse of power. It can be committed by an abuse of duty i.e. non-feasance. As explained above, this was not an error of judgement. It was also not a delay in reporting. It is clear from the evidence that not only did D1 have no intention to report, he assisted D3 to improve the SIM card reception by calling the CSL hotlines.

295.  By reason of all the above matters, I find that D1’s permission of D3 to possess and use the seized telephone and his attempts to improve the reception of D3’s SIM card amounted to misconduct in public office. It was an affront to the public object of D1’s duties as a CSD officer.

296.  In his record of interview, D3 admitted that:

(1)  He had the seized mobile telephone;

(2)  Both D1 and D2 knew D3 had the telephone;

(3)  D1 was present when D3 made frequent telephone calls;

(4)  On 22 October 2020, D3 asked D1 to help him with the reception of the seized telephone;

(5)  D1 promised to check the reception for him;

(6)  D1 gave D3 the other SIM card.

297.  There was clearly an agreement between D1 and D3 for D3 to possess and use the seized telephone. D3 told D1 that he was having problems with the reception of his SIM card and D1 called the CSL hotlines to try and improve it.

298.  I find that the Prosecution has proved Charge 1 against D1 and D3 beyond all reasonable doubt. They are accordingly convicted.

Charge 2

299.  There is no dispute that D2 was in public office. There can be no dispute that D2 was guilty of misconduct in public office and that D5 conspired with him. They have both pleaded guilty and were convicted. Further, the undisputed evidence in the present trial shows that D2 and D5 knew that D3 was in possession of a telephone and that D2 was bringing unauthorized cigarettes into prison:

(1)  D2 obviously knew D3. D2 was the Assistant to D1 at the CMO and D3 was assigned to work at the CMO;

(2)  A WhatsApp chat group called “Chit-Chat Group” was set up by D4. This group was subsequently renamed as “CMO”;

(3)  The WhatsApp messages in D2’s telephone [P42] show that D2 was bringing unauthorized cigarettes into prison;

(4)  D5 was asking D2 to purchase cigarettes for D3 [See P42, P46]

(5)  D4 and D5 received numerous telephone calls from him;

(6)  D2 purchased cigarettes;

(7)  D5 helped to top up D3’s SIM card.

D3

300.  According to D3’s record of interview, both D1 and D2 knew that he had a telephone. D3 admitted that:

(1)  D2 knew that D3 had a telephone;

(2)  D2 was present when D3 used the telephone frequently;

(3)  D2 gave D3 the charging cable;

(4)  D1 and D2 gave D3 the cigarettes seized during the search;

(5)  D2 gave D3 the Mevius cigarettes;

(6)  D3 told D2 that he wanted to use the telephone on 23 October 2020 and D2 had no objection;

(7)  In his messages to D5, D3 asked D5 to get “Wai Gor” to buy cigarettes and bring them to D3 [See P63 counters 21 to 25]. Apart from cigarettes, D3 also asked D5 to get D2 to get him another SIM card and specified CSL [See P63 counters 44 to 45].

D4

301.  The only issue is whether D4 was part of the conspiracy. As explained above, it is undisputed that D3 made numerous telephone calls to D4 with D3’s telephone. D4 complained in the CMO WhatsApp chat group that he was receiving too many telephone calls from D3.

302.  The transcript of the text and voice messages [P42] show:

Counter number	D2	D4 (9588 2770)	D5 (6898 1997)
47			Wai Gor! Buy 2 packs of ‘mixed ice’ …for Luk Tau…tomorrow 維哥！聽日買兩包雜冰比阿六頭喎
52	What worries me the most is that, fuck, I couldn’t give him/her after buying (them). It’d be fucking idiotic to put (them)  in the vehicle. Did you know that, for the previous pack, it wasn’t until yesterday that I had a chance to go down to meet him/her in CMO(?)  (I)  was scared the fucking hell out of me 我最驚呢屌我又買完之後俾唔到佢喎，啲煙我呢擺喺車到好撚戇鳩㗎嘛，你知唔知我對上一包呀，琴日我先有機會落CMO 先見到佢，驚撚到仆街呀
53	Hey, did they tell you that I’d taking an e-cigarette back to them for fun? The prick, Luk Tau, holds (it and)  smokes (it)  every fucking day 喂，佢哋有無同你講呢我攞咗支電子煙返去俾佢哋玩？仆街六頭依家日撚日拎住起到吹。
55			Well, I think I’ll talk to him/her 咁我諗我同佢講啦
56	As usual, I’ll buy (it)  first (and)  give him/her. The chance is slight though. The commissioner kills. 照舊我買咗先見到先俾佢但機會唔大Y拿處長殺
57			Thank you Wai Gor, thank you Wai Gor 唔該你維哥，唔該你維哥
58	Right, alright. Hey, right, do you people know anyone from whom these tobacco pods can be obtained at a lower price? Tell me if you do, and then (I)’ll go get (them). Then, er, (I)’ll take (them)  back in 得啦掂啦，喂係喎你哋識唔識人呢？攞電子煙啲煙彈呢平呀？如果識嘅話我知，跟住然後我去攞，跟住，誒，攞番入去
59			（information about e-cigarettes) (有關電子煙的資料）
60			Er, you see if these are suitable, Wai Gor 誒你睇吓呢啲啱唔啱阿維哥。
61	Hey, silly chap, this electronically heated, tobacco isn’t what I need. What I need are ordinary, e-cigarettes, since, er…I’m paying 120 dollars for three (pods)  out there now. 喂Siri，傻佬呢隻電子加熱煙唔係我要嗰啲，我要嗰啲係普通電子煙，因為誒…我出面依家買呢就百二蚊三粒嘅
62	They’re such fucking pricks. Well, since every purchase requires a minimum of three (pods), well, (they)’re having (the flavor of)  mung bean soup right now. They said that they’d been fed up with (the flavor of)  mung bean soup. Then, I, fuck, there’s still one here. Then, subsequently, they said that (they)  had to give other flavors a try. 佢哋班友呢好撚仆街㗎，咁呢因為一買要買三粒㗎嘛，咁而家食緊綠豆沙啦，佢哋話綠豆沙呢食厭咗喎，跟住我屌那星仲有粒起喥喎？跟住然後佢哋話要試其他味喎。
63			120 dollars per packet 百二蚊一盒喎
64	Yes, with three pods in each packet 係丫一盒入面有三粒
65			Also 120 dollars only 都係百二蚊咋
66	But worth it, since three (pods)  could last an entire week. I took (them)  back on Saturday before last, and I’m having fun with just a second (pod] today. 但係抵玩嘅，因為都夠食成個禮拜㗎三粒，我上兩個禮拜六攞返去，玩到今日都仲玩緊第二粒咋喎
67			Wai Gor, remember to buy two packets of ‘mixed ice’… remember to give (them)  to Luk Tau tomorrow 維哥你記住聽日買兩包雜冰喎，聽日記住俾六頭喎
68			Thank you 唔該晒
69	Probably still not able to give him/her even after purchase, you understand 買咗都未必俾到佢，你明㗎
70			Buy (them)  first, Wai Gor. Try (your)  best to give (him/her) 買咗先囉維哥，盡比啦盡比
71	I will still do (it), after which (I)  will look into (it) 我照搞搞完研究吓
78			Has Wai Gor bought two packets of ‘ mixed ice’ for Luk Tau? 維哥有冇買兩包冰俾阿六頭啊？
80	Done I CMO 搞咗啦我CMO 丫麻
81			Ask Luk Tau not to call so early in the morning. It wasn’t until sometime after seven this morning that (I)  went to sleep. 叫六頭唔好咁早打嚟啊，今朝七點幾先瞓啊
84			He/She called me at sometime after 10 this morning 佢今朝10點幾打俾我啊
85	Does (he/she)  call you people every day (?) 佢係咪日日打俾你哋？
87			He/she is fucking bored 佢好撚悶
88			Right, inhumane 係呀，冇人性啊
91		I’m a lot smarter now (and)  have switched on the silent mode on the phone 我而家醒咗好多㗎啦將部電話校靜音
92		Wai Gor, you help me inform Luk Tau that the money,the five thousand dollars,has already been dealt with 阿維哥你幫我通知六頭話啲錢搞咗啦，嗰$5000
93	Alright 好
97	No wonder nobody answered when I called you people yesterday 唔怪得我尋日打俾你哋冇人聽
98		Yes, yes, so don’t mind it if I can’t answer your call(s) 係呀係呀所以你哋唔好介意我接唔到你哋電話
99	He/She does mind that you people keep ignoring him/her 佢介意㗎你哋成日唔理佢丫
100		Right, right, Wai Gor, while speaking, don’t tell (him/her)  that we switched on the silent mode 係阿係阿維哥，講還講呀，你唔好講話我哋較咗靜音啊
101		Forget it after hearing (it). Definitely don’t spread (it)  to his/ her ear 聽完就算數啦，千祈唔好傳返去佢耳邊阿
102	You people are fucking sly. Fuck, switched on the silent mode. Do you people know that he/she wants so much to chat with you on the phone every morning 好撚狗阿你哋，屌那星校靜音，你哋知唔知佢每個朝頭早都好想同你傾電話
103			Ignored him/her? Wouldn’t be like this if he/ she was ignored 唔理佢？唔理佢唔係咁㗎啦喎。
104		Fuck you, Wai Gor. That wasn’t chatting on the phone; that was giving an account (of things)  and distributing work. 我屌你啦維哥，嗰啲唔係叫傾電話，嗰啲叫交代，分配工作
105		As time goes by, sometimes it’d be, wow, so fucking ‘ba’, big brother 久而久之，有陣時就，嘩好撚巴㗎大佬
107			The fucking worst (situation)  is that the silent mode wasn’t switched on. Wow, it was so fucking noisy. Ah, jerked awake at some time past 10. Immediately switched-- immediately fucking switch it off. 最撚慘無較靜音，嘩幾撚嘈啊，阿紮一紮醒，10點幾，即刻較，即刻熄撚咗佢
108	That is, you people, with him/her, actually just listened to his/ her briefing but not, like, chatted about things on the mind 即係你哋呢，就同佢係聽佢briefing 㗎咋喎其實係，就唔係話咩傾心事㗎喎
110			Most likely something has to be done (if)  I am called 打比我都係搞野多㗎啦
113	Hey, perhaps let me ask him/ her not to call people until the afternoon, if that’s the case. You people anyway stay up late and wake up late. 喂，我叫佢不如晏晝先好打俾你哋啦，如果係咁，反正你哋個個都夜瞓又晏起身嗰啲
114		Hey, never do things like this. Anyway, leaving everything as it usually is (and)  asking him/her to call as usual would do 喂你呀千祈唔好搞呢啲嘢呀，總之一切呀，好似如常咁叫佢照打得㗎喇
116		Never go to talk to him/her, otherwise he/she might think that we have, what,… grumbles 你就千祈唔好走去同佢講，如果唔係就，佢就以為我哋有啲乜嘢⋯微言啊
120		No need, never, don’t, don’t, don’t. He/she’s used to making calls. Let him/her call 唔使呀，千祈唔好唔好唔好，佢慣咗打㗎啦，由得佢啦
122		In short, never, never, never ever, never ever tell him/her what we have just said(.)We are simply grumbling 總之千祈千祈千萬千萬唔好同佢講我哋啱啱講嘅嘢我哋純粹呻吓啫
123		Hey, Wai Gor, by the way,… the… actually, have you ever been in touch with Lun Gor? 喂維哥話時話⋯啲⋯其實呢你有冇同倫哥接觸過啊？
124		I’ve bought, fuck, the cigarettes… Fuck, I can’t give Lun Gor. Hey, you help me drive (them)  back to your place and give him/her, okay 我買撚咗屌啲煙⋯屌我又比唔到阿倫哥喂你幫我車返去你哋嗰個地方俾佢得唔得呀？
125	You give me(.) I will give (them)  to 6 directly 你比我啦我直接比6
126	Commissioner has finished the walk. There is probably a chan(ce)  that he may return to CMO 處長行完應該有機翻CMO
127			There’s a chan(ce). Not Luk Tau. This is required every day. 都有機嘅，唔係阿六頭，呢啲係指定日日要㗎喎
128		Fuck. I was there the whole week last week. You think, Lun Gor could tell them, Ah Luk Tau, that, what, I haven’t gone to work for a whole week. Then, I said, “How’s that fucking possible?” Throughout the whole week, I was there last week. Did you know that they said I didn’t go to work 屌那星我上個禮拜呢成個禮拜都起度，你諗吓，倫哥可以同阿六頭佢哋講話咩我成個禮拜無返工喎，跟住我話唔撚係呀？我成個禮拜都起度你知唔知我上個禮拜，佢哋話我冇返工喎
129		Wai Gor, I’m not giving him/her one (or)  two cartons but 11 cartons… of cigarettes. I’ve given “words of quarrel”… I’ve given all to Lun Gor. You give all to him.That’d do 維哥，我唔係一兩條啊，我係十一條⋯煙俾佢喎，我俾晒違言⋯我俾晒倫哥個喎，你俾晒佢得㗎啦
130		And I won’t give Lun Gor. If I give Lun Gor, he’ll know that I hang out with you people. Well, it’d be …Therefore, don’t… For fear of trouble 同埋呢我唔會俾倫哥㗎，如果我比倫哥呢佢就知我同你哋有玩埋㗎，咁變咗倫哥唔知㗎，廢事啦所以就
131		I (have)  a whole fucking box, like that. There’re 11 cartons. In short, you, the whole box, if, right… I give you and, when the time comes, you help me (bring)  it back (and)  give him. That’d do 我成個箱咁撚樣㗎，嗰度十一條，總之你成個箱如果係我俾你，到時候你幫我返到去比咗佢就得㗎啦
132	don’t, don’t, don’t, don’t, don’t let me give him. If I give him, he’ll know that I know what he’s made of. I’m afraid he’ll be more embarrassed than I’ll be. 唔好唔好唔好唔好，唔好我比佢，如果我俾佢，佢知我知佢咩料，我驚佢尷尬過我
133		Understood 明白
134		Understood, understood. Actually, it’s fucking hilarious. Fuck your mother, I contact you and also contact him. (I)  don’t what the problem is 明白明白，查實真係好撚好笑，屌你老味我又同你聯絡，我又同佢聯絡，都唔知有咩問題
135	Instead, you help me get one or two cartons of mixed ice here.He now said that (he)  took mixed ice. Then, subsequently, you give me. Then, I can pass him. Afterwards, it’d be Okay for me to give him when I see him now and then. 調返轉，你幫我搞一兩條雜冰起度啦，佢依家話食雜冰呀，跟住然後你比我跟住呢啲就可以我散俾佢啦，之後我久唔久見到嘅時候我比佢就 okay
136		You both are the ones whom cannot be contacted. Fuck you, it’s really fucking hilarious. 就係你兩個就唔聯絡得嘅，屌你真係好撚好笑
137		Let me think first 等我諗諗先
138	Since … that I don’t know what he told you. Well, in short, those I gave him, in short, those (I gave him)  when I saw him now and then, well, was for his, er, own consumption, as he told me. He will flag Lun Gor’s, and I’ve placed an e-cigarette below for him. He basically only smokes e-cigarettes in the workshop now. Well, and now I mainly give him tobacco pods only. Well, I give him one [or)  two pieces of Vitamin Agency only now and then. That is, just like normally, I give him one piece if (I)  see (him)  and safe (it)  up first if (I)  don’t (see him). Then, like yesterday, well, Ar Kay told me and, well, I happened to go to CMO. Well, I then brought pieces over, otherwise (it)  could hardly be done. 因為呢，那，我唔知佢點同你哋講啦，咁總之呢我比佢嗰啲呢，總之我久唔久見到佢嗰啲呢，咁就係佢誒自己食嘅佢就同我講，倫哥嗰啲呢佢就會放嘅，同埋呢我有支電子煙擺咗起下面比佢啦，佢基本上呢起數呢就剩係食電子煙嘅唧依家就，咁同埋我依家主要係剩係比煙彈佢，咁彩冰嗰啲就久唔久我先比一件兩件佢阿，即係好似平時咁樣我咪比一件佢囉，見到嘅話，見唔到咪就儲住先囉，跟住琴日咁樣咁，咁阿褀同我講咗咁我咪又咁啱落到CMO喎，咁我咪帶咗兩件過去囉，如果唔係嘅話都窄啲㗎
139	He’s afraid that if I came to know the things between him and you, people, I’d be fucking squeezing his sack 佢驚俾我知道佢同你哋啲嘢俾我摙撚住佢個春袋呀嘛
140	However, Lun Gor presumably doesn’t know that we keep in contact, so never mind, fuck 但係倫哥唔應該知我同你有聯絡㗎嘛，由佢囉咪屌
143		It’s Okay, I understand 得啦，我明嘅，明白
144		Can’t help it. Lun Gor has always thought big. Dammit, what a fucking waste of breath. 無計，倫哥長期都諗大，妖，哂撚氣
161		Remember what I’ve just said 記得我啱啱講咗啲咩
162			Yes, tell Luk Tay, yes. What if I don’t listen? Well, so what? What if ah She doesn’t listen? You talk to Luk Tau, thanks 係呀同六頭講係呀，我唔聽咁點呀？咁點呀？阿蛇唔聽咁點啊？你同阿六頭講唔該。
170	Hey, fuck, Luk Tau frequently enters his/her room. What the fuck to do? 喂屌，六頭呢入佢間房入呢成日㗎喎依家，有乜撚嘢搞啊？
171	Does he/she just keep talking to you people on the phone (?)  It takes him/her such a fucking long time? 佢唔係就係keep住同你哋講電話呀話搞咁撚耐嘅佢？
172		… said really don’t know what he/she is doing 話真係唔知佢搞咩㗎喎
173	I saw that he/she kept talking to people on the phone. That is, always heard him/her talking to himself/herself like a moron in the doorway 我見佢係咁喺度同人講電話㗎喎，即係門口成日聽到佢戇鳩鳩自言自語咁
174		No fucking shit, talking to himself/herself? Fuck, it’s sickness. Need to consult a doctor. 咁撚大鑊自言自語？屌你有病㗎喎呢啲，要睇醫生㗎喎。
188		I’ve taken a shower(.)Already gone up to the container 我沖咗涼上咗貨櫃啊
195	Hey, Lo She, where’s your container(?) We come over to you. 喂老蛇你貨櫃喺邊呀？我哋過嚟搵你呀。
196		Hey, you type Jubilee garden 餵你打銀禧花園啦
220			Wai Gor Wai Gor, buy one pack of cantaloupe for Luk Tau tomorrow 維哥維哥聽日買包哈密瓜俾阿六頭呀
223			維哥買2包哈密瓜俾比6

303.  It is evident from the above conversations that all 3 Defendants knew that D3 had a telephone. In the conversation in counters 124 to 140, there was a discussion between D2 and D4 about bringing cigarettes to CMO and giving them to D3. Looking at the transcript as a whole, this chat group was used by D2, D4 and D5 to discuss D3’s demands or needs and to find ways to carry out D3’s instructions.

304.  There is no dispute that D4 was the subscriber to and user of the telephone number 9588 2770 [2^nd Admitted Facts, P99 §33]. The messages between D4 and D5 [P62] show:

Counter number	D4’s telephone 9588 2770 (She)	D5
11	6598 7379 (D3’s telephone number)
12	He asked you to call him now 佢叫你而家打俾佢
13		Done 搞掂
108	… about those other - those ‘a chai’ that Luk Tau asked for, have you dealt with (them)?) 為另外嗰啲木頭要嗰啲a 仔你搞咗未啊？
109	Better deal with (them)  on the same day we have the meal which has been arranged, have it done for Wai Gor 最好就喺我哋約食飯嗰一日搞埋攞俾維哥
110	No, Luk Tau asked me to arrange to meet his younger sister, arrange to meet his younger brother, and arrange a meeting with Sau Sai, that sort…
111	[No sound] （沒有聲音）
112	That is, he means, his younger sister has been asked, his younger brother has been asked, Sai Sai asked to deal with three thumb drives 即係佢嘅意思係，叫咗佢細妹，叫咗佢細佬，叫阿西西搞三隻手指呀
116	As to Wai Gor, you arrange (a get together)  with him 咁阿維哥嗰邊，你約佢啦喎

305.  It was clear from those messages that D4 was doing D3’s bidding. He was getting thumb drives for D3 and handing them over to D2.

306.  Counsel for D4 criticized the use of the word “Connivance”. He argued that the use of the words ‘conniving at’ in the indictment is an unusual phrase for a conspiracy. He then proceeded to refer to the definition of this phrase in the Oxford Advanced learner’s Dictionary as “to seem to allow something wrong to happen”. He argued that one has to have the authority to allow something wrong to happen. One cannot be in a position to connive at a wrongdoing without being a person in authority in relation to the wrong doer. Since D4 was neither a prisoner nor a CSD officer during the period of the offence, he cannot have the power to connive at D3’s unauthorized possession and use of the mobile phone and unauthorized possession cigarettes.

307.  The word “connivance” was considered in HKSAR v Li Fung Ching Catherine [2012] 3 HKLRD 377:

“60. The terms used in Section 64B of the Employment Ordinance are “consent”, “connivance” and “neglect”. It is spelt out clearly that the intention is to target the three different situations.

61. In the ordinance, there is no definition given to the term “connivance”. Therefore, the term “connivance” should be interpreted in accordance with its usual meaning.

62. The New Longman Advanced Chinese Dictionary defines the word “conniving” as indulgence and non-interference of misconduct.

63. To connive at someone’s act, whether or not one agrees or disagrees with it is not important, what is important is one fails to stop it from happening knowingly.

64. The term “connivance” is used in the English version of the Ordinance. According to the Shorter Oxford English Dictionary, the definition of “connivance” includes assistance in wrongdoing by conscious failure to prevent or condemn; or tacit permission. The word “connive” means shutting one’s eyes to (something).

65. In the English-Chinese Dictionary of Joint Publishing, “connivance” carries the meaning of “turning a blind eye to an action one ought to oppose; and tacit permission” which corresponds with the translation given in The Oxford … English-Chinese Dictionary.

308.  However, Counsel has totally disregarded the fact that D4 has been charged with conspiracy to commit misconduct in public office and the elements required for that offence. The charge is that D2 committed the misconduct in public office and D4 had conspired with D2 and others for D2 to do so. There is absolutely no merit in this argument.

309.  There was some cross examination about whether it was possible to introduce 11 cartons of cigarettes into prison. According to the conversation between D2 and D4 [P42 counter 135], D2 was not going to bring all 11 cartons into prison at the same time. He described as “scatter” to him and giving it to (him)  from time to time 「散比佢⋯之後，我久唔久見到嘅時候我俾佢就 okay」[See also counter 138].

310.  It was also pointed out in cross examination that the alleged 11 cartons of cigarettes were never found. According to the conversation, D4 had a container in Jubilee Garden [P42, counters 195 and 196].

311.  I find that the Prosecution has proved Charge 2 against D3 and D4 beyond all reasonable doubt. They are accordingly convicted.

Charge 3

312.  In HKSAR v Egan (2010)  13 HKCFAR 314, the Court of Final Appeal stated:

125. A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect. Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.

126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings (including tribunals having authority to determine the rights and obligations of parties and having a duty to act judiciallly: R v Vreones [1891] QB 360, 369; R v Rogerson (1992)  174 CLR 268, 275-276). A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice. It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible…” And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto. It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.

127. Investigations by law enforcement agencies do not themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”)  so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.”

[See also HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046 §§ 19 to 29].

313.  There appears to be no dispute that the Adjudication hearing amounted to “the course of public justice” and “Curial proceedings”. The Prosecution submitted that the Adjudication Report, the call records, the WhatsApp messages and the bank record showed that PW9, a CSD officer, suspected some prisoners were gambling with homemade chess pieces and seized the bag which contained those chest pieces. The Prosecution further submitted PW5’s evidence was corroborated by the messages, call records and bank records. In those circumstances, there is sufficient evidence that D3 had requested PW5 to admit to gambling in D3’s stead. I disagree.

314.  With respect to the Prosecution, the Adjudication Report only showed that there was gambling inside Dormitory F and that 4 prisoners, including PW5 were charged and convicted of the disciplinary offence. The WhatsApp messages and the bank record only showed that:

(1)  PW5 told D5 that D3 had asked PW5 to call D5;

(2)  PW5 told D5 that D3 had told PW5 to ask D5 to pay PW5; and

(3)  A sum of $2,000 was paid by D5 to PW5.

315.  PW5 stated that he only met D3 when he was transferred to Dormitory F and that he had only been in that Dormitory for about 2 months. This evidence was never challenged. It is highly suspicious that D3 would owe PW5 $2,000 within such a short space of time. However, because I have rejected PW5’s evidence, there is no evidence to show that the sum was paid as a reward for PW5 taking the blame for D3 in the Gambling Incident. The Prosecution has failed to prove Charge 3 beyond reasonable doubt. D3 is acquitted of this charge.

Comments

316.  The behaviour of PW9 (Mr. Li Siu On), PW10 (the OC case, Ms. Cheng Sha), Ms. Salina Siu and PW12 (Mr. Edwin Wong Pak Wing, CSD liaison officer)  has been outrageous and wholly unbefitting of a member of a disciplinary Force). I order that a copy of this Judgment be served on the Commissioner of the Correctional Services Department and the Commissioner of the ICAC.