HKSAR v. CHUNG CHEUK PANG

CACC 104/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 104 OF 2016

(ON APPEAL FROM DCCC NO 998 OF 2015)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1. Following a trial in the District Court before HH Judge Douglas Yau (“the trial judge”), the appellant was convicted on 20 April 2016 of two charges: one of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 (Charge 1); the other of burglary, contrary to section 11(1)(b) and (4) of the same Ordinance (Charge 2). He was sentenced on the same day to an overall term of 1 year and 9 months’ (or 21 months’) imprisonment.

2. On 14 June 2016, the appellant was granted bail pending his appeal by a single judge of this Court[1].

3. On 26 August 2016, the appellant was granted leave to appeal against his conviction, but refused leave to appeal against sentence, by another single judge of this Court[2]. He was further granted a legal aid certificate in respect of his appeal against conviction.

4. Given the entirely proper response of the respondent to this appeal, we can adopt the summary of the prosecution case, the defence case and the Reasons for Verdict set out in the judgment of the single judge hearing the application for leave to appeal against conviction[3].  For present purposes, it is merely relevant to identify the findings made by the trial judge in respect of the credibility of the police witnesses.  The trial judge held:

“Finding on whether the Police officers framed the defendant

114. The police officers are experienced officers, they would be risking their career and possible criminal sanctions for what the defendant alleged them to have done. Even if the defendant is convicted for the two offences, it is unlikely that the officers will gain much from the convictions in terms of career prospect.

115. The officers were at the cyber café together with officers from other sections of the Police force and they were conducting a licensing check on the premises. It is undisputed that the defendant did reside at Room 1322 of Kwai On House at the time of the two offences, as well as when he was picked out by the Police officers on 25 September 2015. There is no suggestion whatsoever from the defence of previous grudges held against the defendant by the Police. There was no suggestion that the officers’ encounter with the defendant was not by mere chance.

116. I find it inherently improbable that the Police officers would go to so much trouble and to put themselves under so much risk just to frame the defendant for the offence of stealing (attempting to steal in relation to charge 1) two pairs of shoes.”

5. Of this reasoning, the single judge at the leave application considered that in a case which, as the trial judge noted, “rest(ed) entirely on the truth of the contents of the (appellant’s) admissions made under caution”, and therefore which depended solely upon the credibility of police officers who had obtained those admissions, the findings of the trial judge at para’s 114 to 116 arguably ran counter to the guidance approved by the Court of Final Appeal in Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349, at 357G-358B.  Accordingly, the appellant was granted leave to appeal against his conviction on this basis.

6. Leave having been granted, Mr Ross was instructed to represent the appellant at this appeal.  However, the respondent has since indicated by letter[4] that it does not intend to oppose this appeal against conviction, and that the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221 would be inappropriate.  The reasons for its decision were articulated and have been adopted by Mr Franco Kuan, on behalf of the respondent, before us this morning.

7. Essentially, the respondent accepts that paragraphs 114-116 of the trial judge’s Reasons for Verdict did offend the principles adopted by the Court of Final Appeal in Lee Fuk Hing v HKSAR; in particular, paragraphs 114 and 116 conveyed the message that the trial judge believed that police witnesses were less likely to fabricate evidence by virtue of their status as police officers.  Since the entire case against the appellant depended upon his alleged admissions, which in turn depended upon the credibility of the police witnesses, this flaw in the trial judge’s reasoning was fatal to the convictions; notwithstanding that the trial was before a single judge rather than a jury.

8. The respondent helpfully drew to our attention the recent decision of the Court in HKSAR v Man Shun Tai[5], where comments by a District Court judge in a similar vein to the present case, also in relation to an attempted burglary charge, resulted in the conviction being quashed.

9. We agree that the respondent’s concession is well made and responsibly advanced.  In our judgment, the conviction cannot stand in the light of the trial judge’s clear indication as to how he viewed the credibility of police officers against whom allegations of impropriety had been made.  To say that police officers would be risking their careers and criminal sanction for what they were alleged to have done, and that, therefore, it was inherently improbable that they would have gone to so much trouble, and placed themselves at such risk, for a relatively trivial offence, not only suggests that the playing field was not level as between police witnesses and the appellant, but it distracts from the real question for the tribunal of fact, which is whether the evidence of the prosecution witnesses, regardless of their status as police officers, was believable to the required criminal standard of proof or not.  Furthermore, there was no evidential basis for the assumption that the careers of the officers concerned would not benefit in some way from the fact of the appellant’s conviction.

10. We also agree with the respondent that this is not a proper case for the application of the proviso.  Accordingly, the appeal against conviction is allowed, the conviction quashed and the sentence set aside.

11. Given the time that the applicant had already served in custody before being bailed pending his appeal by Pang JA, as well as the difficulties in re-calling the arresting officer, who has since resigned from the Hong Kong Police force and relocated to the Mainland, the respondent does not seek an order for retrial.  With that decision, we also agree. Accordingly, there will be no order for retrial.