HKSAR v. FU MING YUNG & OTHERS

CACC 133/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 2001

(ON APPEAL FROM DCCC 965 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag. CJHC (giving the judgment of the Court):

Introduction and background

1. On 4 April 2001, following a trial in the District Court before Judge Chua, the Applicants (D4, D7, D8 and D12 respectively) were convicted of a variety of offences related to triad activities which were alleged to have taken place in the vicinity of Tsuen Wan between January and July 2000.

2. Having regard to the generality of most of the grounds of appeal which have been advanced, it suffices at this stage to say that the Applicants and their co-defendants at trial, in varying combinations, faced eleven charges of acting as members of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151. Some of the Applicants were also convicted of assault or fighting in a public place.

3. The Applicants now seek leave to appeal against conviction.

4. The evidence on almost all the charges came from an undercover police officer (PW12) who had infiltrated the Wo Shing Wo triad society in Tsuen Wan by purporting to become one of their members in mid-January 2000. The judge was impressed by the evidence given by this witness, both as to its veracity and as to its accuracy, and she described him as having a "prodigious memory". PW12 had no difficulty for the most part in recalling the roles played by the Applicants and their numerous co-defendants in the events related to the nineteen charges before the trial court. This was largely done without reference to his notes which he had recorded as soon afterwards as practicable.

5. Evidence from a defence witness known as "Twiggy" (DW5) was called in an attempt to discredit PW12 by making him appear as if he could not be relied upon. DW5 had been the "girlfriend" of PW12 during the relevant time covered by the charge sheet. She gave evidence that PW12 drank alcohol and smoked cannabis in excess. The judge rejected her evidence after careful analysis.

6. None of the Applicants gave evidence.

7. Although the evidence in the trial was all one way, PW12 made one important mistake in connection with the evidence concerning the 13th charge. It was brought out in cross-examination that PW12 had included in his notes the fact that D7 had been amongst those who had gathered at the premises of a discotheque on 11 April 2000. This entry in PW12's diary had been repeated in his statement dated 26 July 2000. The effect of the entry was that when he had reached the Co Co Duck discotheque, he saw six named individuals, including D7, together with five or six others. However, other evidence, which the prosecution accepted, was put before the court to show that D7 had gone to the Mainland before the meeting of alleged triad members at the discotheque. D7 did not return to Hong Kong until two days later.

8. D7 was not included in charge 13 as a defendant and PW12 had not identified him as being present when he gave evidence in-chief. The reason for this was that a video film, taken at the scene of events on 11 April 2000, had been made by another officer and only those who were identified in the film were charged. On a minor point, where again PW12 was mistaken, the officer filming the scene was a plain-clothes officer whereas PW12 had thought he was a uniformed officer.

Grounds of Appeal

9. Mr William Allan, on behalf of D4, has advanced five substantive grounds of appeal.

10. D4 featured in seven of the charges. The guilty findings were based upon the evidence in each case given by PW12. As we have said already, PW12 was regarded by the judge as a highly impressive witness. Furthermore, it had not been suggested that he had resorted to any deliberate invention or fabrication of evidence against any of the defendants at trial. Although he had been mistaken in one important aspect of his evidence in relation to D7, the judge's confidence in his overall reliability was not shaken.

11. Mr Allan, in his first and second grounds of appeal criticised the judge's handling of the evidence given by "Twiggy" (DW5). In particular, he submitted that the judge was wrong to have examined DW5's evidence, with a view to seeing whether she had lied about PW12, by starting from a basis that DW5 had "admitted longstanding friendships with all the defendants". Although Mr Allan was able to demonstrate that at one stage of her evidence DW5 had said that she was not "very close to the defendants", she had been able to identify most, if not all, of them by name at trial.

12. Mr Allan also spoke of the judge placing "unfair emphasis" on the fact that DW5 had been brought into the trial court by the girlfriends of D3 and D17. However, the judge did no such thing. She merely observed, as she was perfectly entitled to do:

"The first time (DW5) was brought into court she was accompanied by D3's girlfriend. On the second occasion, she was with the same woman as well as D17's girlfriend. She said she was only recently asked to give evidence but nobody told her on what matters. This is not believable. While she admits to knowing all the defendants, some for longer than she has known PW12, she has sought to give the impression they were only casual acquaintances. I doubt this is in fact so." (Tr. p.28)

13. This passage also illustrates a point which was well made in Mr Madigan's written reply, that although DW5 may not have been very close to the Applicants or their friends, or some of them at least, at the time of the alleged offences, she apparently knew them well enough by the time of the trial. There were eighteen defendants named in the charge sheet of whom only three had pleaded guilty at the outset of the trial.

14. Other matters which Mr Allan raised in regard to DW5's evidence were of less importance than those we have mentioned and carried grounds 1 and 2 no further forward. We could find no substance in these grounds.

15. In grounds 3 to 5, Mr Allan criticised the judge's treatment of PW12's evidence in a number of ways. One aspect of criticism related to PW12's mistaken identification of D7 in relation to the events in charge 13. We shall deal with this aspect in greater detail when we come to deal with D7's application. Plainly if there were substance in the suggestion that PW12's mistake crucially affected his general credibility or reliability, this would have had an impact on these applications. However, we can indicate now that there was no substance to the point.

16. In addition, various relatively minor matters were raised as indeed, in fairness to him, Mr Allan found himself describing some of his points. We do not propose to deal with these as the judge had expressed her reasons for reaching her conclusions with clarity, and Mr Allan's bare assertion that the judge had not considered these points is plainly at odds with the Reasons for Verdict.

17. We should, however, deal with the point made by Mr Allan that the judge "failed to consider properly or at all and/or failed to give herself any proper direction and/or remind herself in her Reasons for Verdict of the fact that PW12 had omitted and/or concealed from his superior officer (PW4) he had developed a close relationship with PW12." It goes almost without saying that the judge was fully aware of this glaringly obvious issue which had arisen in the case and about which much had been said. This was referred to when the judge was summarising the evidence concerning PW12 in these terms:

"PW12 saw Twiggy (DW5) about 10 times in all during the whole period, perhaps once or twice a week. He admitted he had never written her name in the diary, although he had put down other people's names, even those not arrested, because his instructions were to record triad and criminal activities and she had not been involved in them. He had, however, noted her presence in an outing at 1 pm to the Ocean Park one Sunday. PW12 had told PW4 (his supervising officer), who he saw regularly, about her." (Tr. pp. 25-26)

18. Later the judge went on to deal with a summary of DW5's evidence concerning her allegedly "close and intimate" relationship with PW12, highlighting how her account differed from the one given by PW12.

19. The evidence against D4 in all the charges he faced either stood or fell on the judge's assessment of PW12's reliability and credibility. The judge's analysis of the evidence enabled her to conclude with confidence that the charges had been made out. There is no substance in any of Mr Allan's criticisms of the judge's approach and therefore all the grounds he has raised fail.

20. Turning next to D7, he was convicted on the fifth and only charge that he faced, of acting as a member of a triad society on 26 February 2000.

21. Mr Thomas Iu, on D7's behalf, has advanced two grounds of appeal which can be dealt with together. The first complaint was that D7's conviction on charge 5 was unsafe and unsatisfactory in the light of PW12's mistaken identification of D7 during the incident, on the 11 April 2000, relating to charge 13. In his second ground, he submitted that mere presence at the scene, where other triad members were meeting, following a triad call-out was insufficient, without more, to support the inference that D7 was acting as a triad member.

22. It is, as we have said earlier, clearly established that PW12 had made a mistake about D7's identity when noting in his diary, and later in his statement, that D7 had been present at events which took place on 11 April 2000.

23. The judge was mindful of this and, in the course of delivering her Reasons for Verdict, she said:

"There was really only one challenge to the accuracy of what (PW12) recorded in the diary. It relates to the 11 (April) event and his inclusion of D7 as participating in the large show of force at 10.30 pm outside Co Co Duck Disco, for D7 could prove by immigration documents that he had departed Hong Kong at 5.14 pm that day and only returned two days later." (Tr. p. 25)

24. Later, when the judge directed her specific attention to charge 13 in which, of course, for reasons we have already covered, D7 was not included, she reverted to PW12's mistake. She said:

"The relevant entry where (PW12) wrongly included D7 amongst those present goes like this:

'When I reached Co Co Duck I saw Tai Cheong leading Man Chai, Ah Kwan, Fei Chai, Ah B, Chi Mo (D7) and five or six others.'

Cross-examined, he said he saw D7 with Tai Cheong and Ah B for a few minutes. These were the people he caught sight of among the crowd on arrival at the scene, not people he had been with earlier on. When the tape was played in court, he had a matter of seconds to identify a face in the crowd. There was no challenge to those he identified. D7 was not on the tape.

PW12 made another mistake. He said he saw an officer in uniform filming the scene. This proved not to be so. This was clearly a difficult situation, trying to catch, recognise and memorise a face in a crowd, as the faces turned and moved, must have presented a real challenge. It was a remarkable feat of observation and memory that he could only be faulted on one identification. The police, also aware of the dangers of the 'fleeting glance', played this tape to PW12 and only those who appear on this tape have been charged. There is less room for mistake regarding the other defendants with whom he had waited at different locations." (Tr. p.41)

25. Not surprisingly, in the light of the judge's assessment of the significance of PW12's mistake, coupled with the fact that there were no suggestions at trial that PW12 had at any time invented evidence and that he was able, as the judge put it, with "conspicuous ease and confidence", to identify the defendants at trial, she felt able to rely on PW12's account.

26. The events leading up to the 5th charge revealed that after D3 had received a telephone call, he then announced that he was "blowing the whistle" which amounted to a call-out to his triad friends to show their strength. This was because of trouble between another triad group known as "Lo Fuk" and a person called "Song Kan" whose head was said to have been "smashed" at the Music Pub and Karaoke. PW12, with D3 and several others, then started to make their way to those premises. On the way, D7 and two others, one of whom was "Ah Man", joined their group. The judge said, as to the rest of the events:

"... Ah Man, told them it was he who first learnt about Song Kan and blew the whistle.

On arrival, there were police and the press everywhere. D3 directed them to return to the restaurant to wait. Half an hour later, D3 told them their help was no longer required. There is no doubt this was a triad call of strength as one of their own had been attacked by the Lo Fuk triad boys. ...

I infer D7 was with Ah Man in response to the triad summons.

There being no challenge to PW12's identifications, I find the charge proved beyond reasonable doubt." (Tr. pp. 36-37)

27. The judge then went on to convict D7 and six others on the charge.

28. There is no question that PW12 was acquainted by this time with D7. He was able to name D7's usual companions at the Co Co Duck Disco where he had seen D7 prior to the 26 February 2000. We bear in mind also, as the judge undoubtedly would have done, that the circumstances in which PW12 saw D7 on 26 February 2000 were very different to those where he had caught a glimpse of him amongst the crowd on 11 April 2000. On that occasion, PW12 had only a matter of seconds in which to identify D7's face in the crowd and, as it turned out, did so mistakenly.

29. Mr Iu also sought to argue that the mere "lack of challenge by the defence" to the identifications made by PW12, as found by the judge, did not mean that the prosecution was absolved from having to satisfy the court about the correctness of D7's identification. However, it is quite clear that the prosecution had satisfied the judge, on the only evidence which was before her, which also happened to be completely unchallenged, as to the correctness of the identification of D7.

30. Mr Iu further submitted that the inference drawn by the judge that D7 was acting as a triad member in the events to which charge 5 related was unsafe because there was no direct evidence to show that D7 had heard what 'Ah Man' said to PW12's group when the two groups had met. He also pointed out that D7 had not been heard to say anything to anyone which disclosed why he had gone along with the others after Ah Man had spoken about having blown the whistle.

31. However, the judge explained how she was able to draw the inference which is criticised. She said:

"Although mere presence is not sufficient to infer guilt, where the evidence establishes a triad summons had been made, then, in my view, anyone who turns up and joins the group and provides no innocent explanation for his presence can hardly complain if it is inferred that he was there acting as a member in answer to that summons. " (Tr. p.31)

32. In saying this, the judge had applied no more and no less than obvious common sense. Of course it is true that mere presence at the scene of an offence is not, by itself, sufficient evidence on which to convict. Here there was evidence, apart from D7's mere presence at the scene, from which a proper inference of involvement could be drawn. He had been with Ah Man at the time that Ah Man's group met D3's group when a conversation took place about the whistle being blown. D7 remained with D3 and the others when the two groups merged and made their way to the place where trouble was believed to be taking place. In the event, as we know, police had already arrived at the scene of the trouble and D7 and the others in the group of triad members then had to disperse. If there had been any evidence that D7 might have been present for a different reason to the one alleged by the prosecution then, obviously, this could have put a different complexion on the situation, but there was none.

33. The grounds raised on D7's behalf must accordingly fail.

34. D8 was convicted on four charges and he has complained in his home-made grounds of appeal that the evidence of prosecution witnesses did not agree with what was recorded in PW12's diary. He concluded this ground by stating that as "such evidence and recordings were given selectively, their credibility is significantly reduced".

35. Plainly this ground, as D8 confirmed today, relied on the mistake by PW12 concerning D7 and the evidence which generally related to the events about Charge 13 with which D8 was not involved. PW12 had given clear and largely unchallenged evidence about D8's involvement in the charges he faced and there is no substance in this ground of appeal.

36. At the end of the proceedings, D12 notified the court that he was not proposing to pursue his application. Accordingly, we dismissed his application.

Conclusion

37. The case presented against the Applicants who remain and all their co-defendants, save for the error made by PW12 relating to D7 on one occasion (where D7 was in any event not charged), was highly compelling evidence. Not only was it cogent evidence against the defendants on trial, including these Applicants, it was virtually unchallenged in every respect.

38. All of these applications are dismissed.