HKSAR v. CHAU PAK KIN

CACC 444/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2011

(ON APPEAL FROM DCCC NO. 205 AND 208 OF 2011)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Tang VP (giving the Reasons for Judgment of the Court) :

INTRODUCTION

1.  The Applicant was charged together with the 2nd Defendant  (“Ryan”) with conspiracy to obtain services by deception, contrary to section 18A (1) of Theft Ordinance, Cap. 210 at sections 159A and 159C of the Crimes Ordinance, Cap. 200.

2.  The particulars of offence, read :

“ CHAU Pak-kin and CHAN Wing-chung, between the 1st day of March, 2010 and the 16th day of December, 2010, both dates inclusive, in Hong Kong, conspired together and with Ah Doi and other persons unknown to dishonestly obtain services from Air Canada, namely to allow unauthorized passengers to board flights of Air Canada departing from Hong Kong to Canada, on the strength of boarding passes issued to other persons for the said flights, by deception, namely by falsely representing that the said persons to board the flights were the persons named in the boarding passes.”

3.  After trial the Applicant was convicted as charged but the 2nd Defendant was acquitted.  On 11 September 2012, we dismissed the Applicant’s application for leave appeal again conviction.  We now give our reasons.

Background

4.  Between March and October 2011, the Applicant was employed by Singapore Air Terminal Services Limited (SATS) as a ground service agent (GSA).  SATS provided ground services for a number of International Airlines including Air Canada at Hong Kong International Airport (HKIA).  It was agreed at trial that

“According to standard procedure before a passenger is allowed to embark on an aircraft through the boarding gate the passenger must present their boarding pass and passport and other relevant documents for inspection by the GSA. Upon inspection the boarding pass will be scanned and a portion retained by the GSA.

According to standard security procedure a GSA is allocated a unique colour marking pen to mark a code exclusively assigned to a particular flight on all boarding passes inspected by him/her.”

5.  At trial 4 incidents were relied on by the prosecution.  However, as the Applicant only performed boarding gate duties in connection with the second and the fourth incidents, we need only to mention them.

The 2nd incident : flight AC 18, 14 October 2010

6.  It was the prosecution case that two persons had travelled on the flight to Canada under the name of LO Yat-wah and WAI Tsz-yiu.  They both checked-in at around 12:18 pm and had produced to PW3 their HKSAR passports for check-in purpose.  PW3 found no problem with the documents.  He wrote the passport numbers of the two passengers on the stubs of the boarding passes, which were then retained by the airline upon presentation by the passengers for boarding (exhibit P22 and P24).

7.  However the Immigration record showed that two persons by identical names had remained in Hong Kong. The learned judge for reasons given by him at para 245 to 253 of his reason for verdict (the reason) concluded that it was an irresistible inference that the two passengers had used false travel documents to board the flight.

The 4th incident : flight AC 18, 29 October 2010

8.  A person using the name Carey Henry Scott, with the appearance of an elderly Caucasian man had checked-in for flight AC 18 on the 29^th of October 2010.  He had gone missing during the flight.  Another passenger, a young Chinese man was later found on board who was unable to produce any travel documents or boarding pass.  The prosecution case was that the young man had put on a silicon mask to disguise himself as Scott in order to board the flight.

9.  The Applicant performed checking duty at a scanning machine for business class passenger for this flight. 

The case against the Applicant

10.  Basically the prosecution case against the Applicant and the 2nd Defendant depended largely on their cautioned statements.  The 2nd Defendant, who had been acquitted, had made no material admission in any of his statements. 

11.  As for the Applicant, the prosecution relied on a verbal statement made by him upon his arrest on the 8th of January 2011 when he said :

“Ah Sir, it has nothing to do with me. I was acting on the instruction of Ah Doi to let people board the flight. I played no part in it.”

This statement was later recorded in a written post-record of that statement (exhibit P63) which the Applicant had signed. The prosecution also relied on a video recorded interview (exhibit P67) and the transcript of this interview (exhibit P63).

12.  As the learned judge rightly recognized, the statements made by the Applicant were mixed statements.  They contained information which was detrimental to the Applicant as well as information which was exculpatory in nature.  In accordance with well establish authorities the learned judge considered the whole of the statement to consider where the truth laid. 

13.  The Applicant challenged the admissibility of his post-record statements and the video interview.  The grounds of objection included violence, threat and inducement as well as a complaint that he was not allowed to make telephone calls despite repeated request for permission to do so.  The alternative procedures were adopted to determine the issue.  The Applicant did not give evidence and called no witnesses.  The learned judge has given detailed reasons for his decision to admit the statements in the reason at para 163 to 272. 

14.  Mr William Tam, Deputy Director of Public Prosecution appearing for the Respondent, submitted there were only two real issues at trial concerning the Applicant.  First, were his statements voluntary and whether they should be admitted into evidence?  Secondly, could the judge safety rely on the Applicant’s statement to find him guilty of the conspiracy charge?  The learned judge decided both issues against the Applicant.

15.  Mr Tam submitted that in essence the Applicant was asking this Court to retry these two issues on appeal.  He submitted that because the learned judge’s decision revolved around the creditability of witnesses it should not be lightly disturbed on appeal.

16.  In HKSAR v Lee Hon Shun (CACC 626/1999; unreported – 13 March 2001) Lugar-Mawson J giving the judgment of the court said at page 5:

“On the issue of the Applicant’s criticism of the judge’s acceptance of the prosecution evidence, this was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The person appointed to resolve issues of credibility is the trier of fact, in the District Court the trial judge. It is not for an appellate court to usurp his function. The courts have made this abundantly clear.”

17.  Lugar-Mawson J also quoted what Blair-Kerr J said in R v R.E. Low [1961] HKLR 13 at page 82 as follows:

“…. an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended upon the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable.”

18.  Here, the learned trial judge had the advantage of seeing the prosecution witnesses who had been subjected to lengthy cross examination by the defence.  He was satisfied with their creditability.  Furthermore, he also had the benefit of the video recorded interview of the Applicant.  The interview had lasted about one and half hours and the transcript of which was over 300 pages long.

19.  This is what the learned judge said about the interview:

“138. The behaviour of the two officers during the interview was nowhere near being oppressive. D1 was free to give his answer. His demeanours and response during the interview were in no way consistent with any of allegations put against the officer. The way D1 made his statement is inconsistent with the allegation that he had been asked to make up his story.

139. The video recording revealed no sign that D1 had been assaulted, as it was alleged, or at all.”

20.  Mr Jim for the Applicant submitted that the learned judge had failed to give sufficient reasons to resolve some of the alleged discrepancies in the evidence from police officers.  We do not agree.  It is clear the learned judge was aware of the alleged discrepancies. He also said at para of 86:

“In the circumstances, if any real discrepancies can be said to exist, I find the discrepancies minor and are not so material as to affect creditability of the witnesses concerned.”

Indeed, it could be said the learned judge had dealt with the alleged discrepancies in greater detail than they deserved.

21.  Mr Jim repeated most of the submissions he made before the learned judge before us.  For example, he submitted that when the police officers said that they had taken two minutes to search the Applicant, that was not true because the search could not have been completed in such a short time.  As the Learned judge had explained, given the nature of the search, two minutes was ample.  The learned judge said 

“126… it was just a brief action of taking out the items from the bag and taking some of them into possession.”.

22.  Mr Jim also submitted that, in fact, the Applicant had not been searched and that in so far as PW16 said he had been searched PW16 was trying to fill up the time gap.  The learned judge rejected the argument because the search had only taken 2 minutes, and was hardly likely to have been invented to fill any time gap.  Then Mr Jim complained that some time was uncounted for, because the police officers could not have taken 38 minutes to post-record the Applicant’s admission upon arrest.  He said the uncounted for time must have been used for the purpose of assault threat or inducement.  The learned judge said:

“74. Spending 38 minutes on a 1½ page of record was not a quick exercise, but I do not consider the time spent was so excessive and in the circumstances an indication of the alleged matter.”

23.  Another complaint was the allegation that the Applicant had been refused permission to make a call.  That had been fully dealt with by the learned judge in para 34-37 and 97-122 of his reasons for verdict.  We can see no basis upon which we could possibly disagree with the learned judge.

24.  There is nothing in any of these complaints.

25.  Nor is it necessary to deal in any detail with Mr Jim’s submission that the statements do not support the conviction

26.  The learned judge has given detailed reasons for refusing to accept the exculpatory parts of the Applicant’s statement.  The video statement showed that in late March or April 2010, Ah Doi asked the Applicant whether he was interested in making quick money by assisting illegal immigrants to board flights.  He was told that he would receive around $20,000 for letting a client board a flight.  Essentially, he was told to turn a blind eye.

27.  The learned judge specifically concluded that he did not believe the Applicant had refused to participate in the conspiracy when Ah Doi first mentioned it to him.  Nor did he believe the Applicant’s reason for not informing SATS of Ah Doi’s approach. 

28.  In the video interview, the Applicant said there were 2 occasions when he was told that some illegal immigrants would board a flight.  The first was around early or mid May 2010 and the other was in late October 2010.  The Applicant said he knew it was illegal and that on both occasions, he was asked to turn a blind eye.

29.  On the first occasion, the Applicant said Ryan told him to pretend not to see anything or notice anything when he was on duty that day.  Ryan told him that when they were changing clothes in the male locker room in the company.  Ryan told him to ignore everything and to pretend knowing nothing.

30.  Then, on 29 October 2010, when they were changing clothes, Ah Doi told him the same thing.  Ah Doi asked him to show no regard to anything and he was to conduct card-tearing duties at the gate on that day.  He was responsible for tearing boarding passes and somebody would board the flight illegally on that day.  He let an illegal immigrant board the flight on the instructions of Ah Doi and he made no effort to intervene.

31.  The Applicant also said he was told that if a “client” was to board a plane, he would be informed when he changed clothes.  If he was at the gate at the time on the day, they would tell him.  He understood ‘client’ refer to illegal immigrant; because Ah Doi, Ryan and Ah John called the illegal immigrants clients.

32.  The Applicant also claimed to have no idea as to how they made prior contact with the clients and how to arrange for the boarding passes.  According to his knowledge, Ah John (a supervisor of SATS), Ryan and Ah Doi had participated in assisting illegal immigrants to go to other countries from Hong Kong.  He knew about Ah John because Ryan and others had mentioned his name.

33.  After the incident involving the missing elderly Causasian which had caused a stir, there were investigations by the Canadian Consulate, the Immigration Department and senior management of SATS.  In the video interview, the Applicant said Ah Doi said briefly to him in the changing room that he should pretend to know nothing or that it had nothing to do with him.  According to the Applicant, Ah Doi said to him, “Just ignore it.  It has nothing to do with us, all those things.  That is, (we) know nothing.”

34.  We agree with Mr Tam that in the light of these admissions and bearing in mind that his exculpatory statement were rejected (and we agree rightly rejected), the learned judge was clearly entitled to find that the Applicant was guilty of the conspiracy as charged.  We respectfully agree with the learned judge that the Applicant would not have been asked by Ah Doi or Ryan to turn a blind eye unless he was part of the conspiracy.  Nor would he have been told by Ah Doi to say he knew nothing.

35.  For these reasons, we have dismissed the Applicant’s application for leave to appeal against conviction.