HKSAR v. LEUNG CHOI

CACC 217/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 217 OF 2005 

(ON APPEAL FROM DCCC 1295 of 2004 )

_______________________

______________________

_________________________

REAS0NS FOR JUDGMENT

_________________________

Hon Yeung JA (giving reasons for judgment of the Court):

Introduction

1.  On 26 April 2005, Deputy Judge Andrew Chan in the District Court convicted the applicant, Leung Choi, of conspiracy to offer advantages to a public servant, and on 11 May 2005 sentenced him to 36 months’ imprisonment.

2.  The applicant has applied for leave to appeal against conviction. We dismissed his application on 31 August 2006. We indicated that we would hand down our reasons in due course and this we now do.

The Prosecution Case

3.  At the material time, the applicant – a long serving police sergeant of 24 years was attached to a patrol sub-unit of the uniform branch in the Mongkok District. The prosecution alleged that the applicant conspired with others so that he would be paid money for providing information on anti-vice operations in Mongkok to Ki Chi-ming (“Ki”), who arranged Mainland prostitutes to work in Hong Kong, particularly in the Mongkok area.

4.  Ki was the main prosecution witness, giving evidence under immunity.  Ki had a bad criminal record with previous convictions for criminal damage, being a member of a triad society, theft, blackmailing and gambling.

5.  Ki admitted that since mid-2002, he started to arrange Mainland prostitutes to work in Hong Kong. He provided them with accommodation and introduced them to other pimps for “business”, himself earning $40 per customer. Ki said he was able to earn $50,000 to $60,000 per month from such illicit business.

6.  According to Ki, in September/October 2003, at a Shenzhen hotel coffee shop, Chan Yin introduced the applicant to him by his nickname,  “construction worker”, a nickname reflecting the applicant’s dark complexion.

7.  The applicant told Ki that he was a police officer attached to Mongkok and he wanted to earn money as he had lost much in business. From what the applicant said, Ki understood that the applicant could provide information on raids on prostitutes in the Mongkok area, so he gave 5,000 Renminbi to the applicant through Chan Yin. Ki said he also gave his telephone number to the applicant and the applicant phoned him the same night to thank him for the money.

8.  Subsequently, Ki learned of an anti-vice operation by immigration officers and he witnessed the applicant making arrests of prostitutes in the street. Impressed by what he saw, Ki again through Chan Yin, gave several thousand dollars to the applicant who also thanked him over the telephone.

9.  According to Ki, there were a further four or five occasions when he paid the applicant $4,000 to $6,000 each time for providing anti-vice information and the applicant invariably thanked him over the telephone for the money.

10.  Ki met the applicant again in March/April 2004 at a restaurant in Shenzhen when Ki again paid the applicant $4,000 to $5,000. On that occasion, Ki told the applicant not to approach him for money again as all except one of his “girls” had been arrested. However, the applicant asked Ki to continue to help him as he had many credit card loans to repay.

11.  The applicant was arrested by the ICAC and put on an identification parade on 27 May 2004. Ki identified the applicant and claimed to be 80% to 90% sure. He also said he found the applicant’s face familiar as he might have come across him when the applicant was on plainclothes duty.

12.  The applicant was found to be in possession of two mobile telephones and five SIM cards. There were frequent contacts between those SIM cards and Ki’s mobile telephones, and many of the calls were made when the applicant was on police shift duty.

13.  Ki retrieved telephone number 13927424704 from his telephone and said that the applicant had contacted him after the 1^st meeting with such telephone number. The telephone number 13927424704 was not in service between 1 April 2003 and 16 February 2004.

14.  Anti-vice operations in Mongkok area were conducted by plainclothes Special Duty Squad officers, sometimes assisted by uniform branch officers and sometimes accompanied by immigration officers.

15.  Information on raids conducted with the Immigration Department would be given one day prior to the operation and information on decoy operation would be given a few hours before on a need-to-know basis.

16.  The applicant was attached to Special Duty Squad III and was mainly involved with anti dangerous drugs operations between April 2002 and May 2003. He was then on leave until end of June 2003 and was posted back to the uniform branch after 29 June 2003.

Defence Case

17.  The defence amounted to a denial of Ki’s allegation and he was accused of either lying or being mistaken in his identification of the applicant. The defence suggested that Ki only saw the applicant in gambling raids and that there were neither meetings in Shenzhen nor telephone contact between them.

18.  It was emphasized that the applicant was attached to the uniformed branch and could not therefore have participated in any anti-vice raids.

19.  The applicant chose not to give evidence. He, however, called Senior Inspector Ma Kin-wai, an officer who had been transferred out of Mongkok at the material time, to give evidence. Apart from saying that the applicant was a dutiful officer, and an honest and reliable person, Senior Inspector Ma said it was very rare for uniform branch officers to be loaned to Special Duty Squad for operation purposes. He said the only time when he made such a request, his superior turned it down.

20.  Senior Inspector Ma also said Special Duty Squad was mainly concerned with anti-dangerous drugs raids. However, 20% of its manpower resource was spent on anti-vice activities with other squads.

The Judge’s Findings

21.  The judge found Ki to be an honest and reliable witness and that he had correctly identified the applicant as the “construction worker’ introduced to him by Chan Yin. The judge further found that at the first meeting in Shenzhen, Chan Yin said that the applicant was a policeman and could provide anti-vice information for money.

22.  The judge pointed out that uniform officers could be involved in anti-vice operations and that in any event, the applicant could have obtained information on those operations and passed this on to Ki. The judge took the view that the applicant might not know details of specific targets, but would be aware of imminent anti-vice operations.

23.  The judge emphasized the frequent contact between the applicant and Ki with the use of different telephone numbers.

24.  The judge found the charge against the applicant proved.

Grounds of Appeal

25.  Mr Shahmim K Khattak, on behalf of the applicant, raises many grounds of appeal. He says Ki failed to identify the applicant beyond a reasonable doubt and the judge had failed to consider the inherent weakness of Ki’s identification evidence as well as the risk involved in voice identification.

26.  He says the judge was wrong to rely on hearsay evidence of Chan Yin and was speculative when he said the applicant could have obtained information on anti-vice raids.

27.  Mr Khattak suggests that the judge had failed to take into account the fact that many of the SIM cards used in the alleged contacts were not registered in Ki’s name.

28.  Mr Khattak emphasizes Ki’s evidence that he did not have any further contact with the applicant after the second meeting in Shenzhen, yet the judge still relied on the frequent contacts between the SIM cards found in their respective possession.

29.  In his 72-page written submission, Mr Khattak points out that the two alleged short meetings in Shenzhen between Ki and the applicant could not give rise to any conspiracy or illegal practice when the applicant did not directly tell Ki that he could provide anti-vice information.

30.  Mr Khattak emphasizes that Ki was only 80% to 90% sure of the applicant’s identity and hence the charge against the applicant had not been proved beyond reasonable doubt.

31.  Mr Khattak also emphasizes that the applicant could not have taken part in vice raids and in so far as the judge found that the applicant was so involved, he was speculating.

32.  Mr Khattak submits that there was no direct contact between the applicant and Ki and in so far as the information came through a third party, the evidence of the third party was hearsay evidence and therefore inadmissible against the applicant.

33.  Mr Khattak complains that the judge had failed to take into consideration evidence favourable to the applicant. He points out that the telephone numbers allegedly used by Ki to contact the applicant were not registered in his name and that it could be someone else contacting the applicant with those telephone numbers. Mr Khattak emphasizes Ki’s evidence that he did not have any further contact with the applicant after the 2^nd Shenzhen meeting.

34.  Mr Khattak refers extensively to the evidence and a substantial number of authorities to support his complaints.

Discussion

35.  We do not find it necessary to deal with each of the points raised by Mr Khattak. The main issue was simply whether Ki was honest and reliable when he said he met the applicant twice in Shenzhen in connection with anti-vice information provided by him.

36.  In our view, the judge was entitled to conclude that the applicant could have learnt about imminent vice-raids and could have passed on the information to Ki.

37.  The applicant was a long service police officer. He had been attached to the Special Duty Squad in Mongkok for over one year and spent 20% of his time on vice operations.

38.  As the judge had pointed out, the applicant could have obtained information by his own observation or conversations with his colleagues. After all the evidence showed that sergeants and constables involved in the vice-raids did have prior information and that sometimes immigration officers gathered at Mongkok Police Station before the vice-raids started.

39.  In any event, it was never the prosecution case against the applicant that the information he supplied to Ki was always reliable. After all, according to Ki, the police in fact arrested all except one of his “girls”.

40.  The applicant was in possession of SIM cards, which had been used to make frequent calls to telephone numbers used by Ki.

41.  In the absence of any explanation to the contrary, the only reasonable inference was that the applicant had frequent contact with Ki. The fact that the telephone number 13927424704 was not in service between 1 April 2003 and 16 February 2004 hardly made any difference as according to Ki the applicant in fact used different numbers to contact him.

42.  The importance of this evidence was that they were in contact when the applicant was a police officer and Ki was running a prostitute business. No explanation was given for this.

43.  The judge was, in our view, entitled to rely on such telephone communications to strengthen Ki’s identification evidence against the applicant.

44.  Ki said he was 80% to 90% sure of the applicant’s identity. That did not mean on the whole of the evidence that a doubt existed in the prosecution case against the applicant.

45.  It was not a case of recognizing the face of a stranger in a “fleeting glance” situation. Ki had come across the applicant on several occasions in the street. They met twice in Shenzhen and had many telephone conversations. The applicant acknowledged over the telephone every time Ki made payment to him. Ki knew the applicant well enough and recognised his voice. Ki identified the applicant at the identification parade held shortly after he last met him.

46.  The judge was entitled to find that Ki had correctly identified the applicant as the “construction worker” he had met and spoken to, particularly in the absence of any evidence from the defence to contradict, explain or undermine Ki’s evidence.

47.  Chan Yin was a co-conspirator. She was named as such in the charge and there was ample evidence showing her to be so. Her words and acts relating to the payments were spoken and done in furtherance of the conspiracy.

48.  Ki’s evidence certainly constituted a “prima facie case” as defined in AG v Li Fook Shiu [1990] 1 HKC 1, triggering the operation of the co-conspirator’s rule, rendering Chan Yin’s evidence admissible against the applicant (See the judgment of Yang CJ in R v Au Shui Yuen Alick [1993] 2 HKC 219).

49.  In any event, the admissibility of the evidence relating to what Chan Yin said or did was in fact not challenged at trial. The suggestion that the judge was wrong to rely on her evidence has no merit.

50.  There might not be direct evidence of a positive agreement between Ki, Chan Yin and the applicant that he would provide information on vice-raids for payments by Ki. There was hardly any need for direct evidence when the inference that a conspiracy existed between them was overwhelming

51.  At the meeting with Ki, the applicant said he wanted to earn money and was able to provide information about anti-vice operations. The applicant asked Ki for help and Ki paid him money on a number of occasions for anti-vice information provided by him. The applicant acknowledged such payments by thanking Ki.

52.  Mr Khattak’s suggestion that the evidence was insufficient to give rise to the conspiracy is, in our view, unrealistic.

53.  We agree with the observation of Mr Alex Lee, counsel for the respondent, that the grounds of appeal, individually or collectively, have no merit and do not affect the safety of the conviction against the applicant. We therefore refused the application for leave to appeal against conviction.