HKSAR v. LEE YUEN-FOOK AND OTHERS

CACC 69/2018

[2022] HKCA 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2018

(ON APPEAL FROM DCCC NO 67 OF 2017)

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J U D G M E N T

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

1.  On 31 January 2018, the 1^st, 2^nd and 3^rd appellant, who we will refer to by their trial designations as D1, D2 and D3 respectively, were convicted after trial by District Court Judge E Yip (the judge) of conspiracy to commit misconduct in public office, contrary to common law and sections 159A and 159C of the Crimes Ordinance, Cap 200, and section 101(1) of the Criminal Procedure Ordinance, Cap 221. The judge sentenced D1 to 3 years’ imprisonment, D2 to 2 years and 6 months’ imprisonment, and D3 to 2 years and 3 months’ imprisonment.

2.  All three appellants applied for leave to appeal against conviction and sentence.

3.  On 27 September 2019, D2 and D3 formally abandoned their appeals against sentence which were marked dismissed. 

4.  At the leave hearing on 3 October 2019, D1 abandoned his appeal against sentence which was duly dismissed.  The Single Judge refused D1, D2 and D3 leave to appeal their convictions on the grounds advanced, except he was satisfied that there was a reasonably arguable ground on the question of whether the judge had sufficiently and appropriately set out the evidence on which he found each appellant guilty of the offence of conspiracy to commit misconduct in public office.[1]  D2 renewed his leave application on another ground, which he has since abandoned. 

The offence

5.  The offence in the present case of conspiracy to commit misconduct in public office concerned two police officers agreeing to procure and provide confidential information about a murder investigation to a third party for monetary reward.

6.  At the material time, D1 and D2 were serving police officers, holding the rank of police constable and station sergeant respectively.  D3 was a civilian and an acquaintance of D1.  It was alleged that between 8 October 2014 and 7 June 2015, the appellants conspired together with other unknown persons in order that D1 and D2, being public officials, “without reasonable excuse or justification, would wilfully and intentionally misconduct themselves in the course of or in relation to their public offices, in return for monetary reward, by: (i) procuring and obtaining confidential information of the police investigation into the murder of Wong Man-kin (“the Investigation”); and (ii) divulging confidential information of the Investigation to other persons.”

The murder investigation

7.  The murder investigation concerned the death of Wong Man-kin, whose nickname was “Ah Tsz” (the deceased).  On 5 October 2014, the deceased together with a Chinese male, assaulted two customers at a restaurant in Tsim Sha Tsui.  They fled the scene but were caught nearby by a gang of Chinese males armed with knives.  The deceased was attacked and stabbed, sustaining injuries to his head, which resulted in his death two days later.  A murder investigation was undertaken by the police which was initially conducted by Team 1 of the District Anti-Triad Section at Yau Tsim District (DATS YTDIST) but was later transferred to Team B of the Regional Crime Unit at Kowloon West Regional Headquarters (RCU KW).[2] The police units to which D1 and D2 were attached were not involved in the murder investigation.

8.  The police identified five suspects, Tang Wai-yeung, also known as “Tak Hau” (Tang), Chan Wai-yip, also known as “Wai Chai” (Chan), Kan Chun-hoi, also known as “Sai Chun” (Kan), Lau King-hei, also known as “Ah Now” (Lau), and Luk Wing-sum, also known as “Ah Kwong” (Luk). 

9.  Two of the suspects, Tang and Chan, were arrested by the police on 7 and 8 October 2014 respectively, while the other three were at large, with Kan and Lau having left Hong Kong via the Macau Ferry Terminal on 6 October 2014.  On 10 October 2014, Tang was charged with the murder of the deceased while Chan was released on police bail.  The case against Tang was adjourned to 30 January 2015 for further inquiries.  He participated in an identification parade on 9 December 2014 but was not identified.  On 30 January 2015, he was released unconditionally on the basis of insufficient evidence.  On 7 November 2014, Luk was arrested and released on police bail.  Several months later, on 5 January 2015, he too was released unconditionally also on the basis of insufficient evidence.  Lau and Kan, accompanied by legal representatives, surrendered to the police on 21 and 28 May 2015 respectively. They remained silent under caution.  Eventually no prosecution was initiated against them and they were also released unconditionally on the basis of insufficient evidence.

The prosecution case

10.  The prosecution case was that, in the early stages of the murder investigation, D3 contacted D1 in order to procure and provide information about the progress of the murder investigation and the state of evidence against the suspects.  D1 then contacted D2 to obtain such information.  D2 in turn contacted Cheng Pak-to (Cheng), a police sergeant, who was a member of the team investigating the murder at Yau Tsim District. Whatever information D2 received, he would provide it to D1, who in turn conveyed it to D3.  It was agreed that D3 would pay D1 and others, including D2, a monetary reward for the information provided.

11.  The Independent Commission Against Corruption (the ICAC) carried out a covert operation in relation to the dealings between the appellants during the relevant period.  ICAC officers placed recording devices inside the motor vehicles of D2 and D3.  They conducted six covert surveillance operations (which were designated at trial as CS1 to CS6), between 5 November 2014 and 6 June 2015: CS1 concerned a meeting between D1 and D2 in D2’s motor vehicle on 5 November 2014; and CS2, CS3, CS4, CS5 and CS6 concerned meetings between D1 and D3 in D3’s motor vehicle on 14 January, 25 February, 6 March, 2 June, and 6 June 2015 respectively.  During each of the surveillance operations, the ICAC officers had the relevant appellants inside the motor vehicle under observation while their conversation was covertly recorded.  The audio recordings and transcripts of the six monitored meetings were produced as exhibits by way of admitted facts.[3]

12.  The prosecution presented a chronological summary of the communications between the appellants.  Prior to CS1, there were various messages exchanged between D1 and D2 via WhatsApp.  On 8 October 2014, the day after the deceased had died, D1 informed D2 that “someone” wanted to know about the murder case, which appeared to be handled by “Tsim Sha Tsui Anti-Triad”.[4]  At that time, Tang had already been arrested and detained by the police.  On 9 October 2014, D1 told D2 “Fanling has fixed up”.  D2 reminded D1 to delete the messages and D1 responded that he did not keep them.[5]  On 10 October 2014, D1 asked D2 if he had a “ghost phone” and D2 gave him a telephone number. [6] On 16 October 2014, D1 asked D2 if there was “anything new” and to call him on his “ghost phone” any time.  D2 replied that he would ask about it tomorrow.[7]  On 17 October 2014, D1 asked D2 to call him any time “if the latest information was available”.  D1 also informed D2 of his “new ghost phone” number.[8]  On 20 October 2014, D1 asked D2 if there was any latest news and “any idea when that lad can come out”.[9] 

13.  On 5 November 2014, during CS1, there was a lengthy discussion between D1 and D2 about the murder investigation.  They discussed the “blood test” which D2 expected would produce nil results because all the blood belonged to the victim.  This was consistent with the negative DNA forensic result on 3 November 2014.  They also discussed the evidence of the only eye witness, surmising that the chopping could not be proved because he only saw the fight, not the chopping itself.  D1 said “Ah Lau”, “Tak Hau” and someone nicknamed “Ah Wai” had not returned, while D2 noted that “Tak Hau” had already been arrested.  They also discussed about the available witnesses and whether it would be necessary to conduct an identification parade.  D2 noted that no witness had seen the actual murder and the only identification parade would be for the previous fight.[10]

14.  Prior to CS2, on 12 December 2014, D1 asked D2 if he had heard anything and he told him it would not be so soon, not until next week.[11] On 24 December 2014, Cheng informed D2 that he would ask for information.[12]  On 2 January 2015, D1 asked D2 if he still had heard nothing “from your close friend of ‘Fanling’”.  D2 replied not yet.[13]  On 14 January 2015, during CS2, D1 mentioned to D2 the matter on the 30^th (a reference to Tang’s court appearance on 30 January 2015) and that he had earned “6 Dou” ($600,000).[14] 

15.  On 22 January 2015, D1 texted D2 that concerning the 30^th, “he (referring to someone else) is very nervous” and “if his close friend can’t walk out … he doesn’t know how to give an explanation!”.[15]  This coincided with Tang being released unconditionally on the basis of insufficient evidence on 30 January 2015.

16.  On 30 January 2015, D2 told D1 to be careful because he thought he (D2) was being followed.[16]

17.  On 25 February 2015, during CS3, D1 told D3 that there were still two persons who had not yet returned and a warrant had been issued against them.  This was consistent with Kan and Lau being at large at the time and arrest warrants having been issued against them.  D3 asked if the file had been closed, and D1 said it should be alright “theoretically and secretly”.[17]

18.  On 28 February 2015, Cheng in two messages to D2 provided the full Chinese names and nicknames of the five suspects.  Cheng told D2 that Tang and Chan were arrested and that the others were wanted.  On the next day, 1 March 2015, D1 sent the two messages from Cheng to D3.[18] 

19.  On 6 March 2015, during CS4, D1 advised D3 that those persons who had not returned, should come back one at a time and be accompanied by a lawyer to prevent them from revealing anything upon being questioned.  D1 asked D3 to inform him in advance so that he could pass on the information to others.  He said if those people returning were to be handled by his (D1’s) people, they would be alright.  D1 told D3 that three people coming back together would probably be held for one or two months.  D1 asked D3 to send a message to tell the other side that the police, that is his (D1’s) side, would try to suppress everything, for example “CCTV was blurred”, “could not find witnesses”, and so on.  He reiterated that if the persons who returned were handled by his people, they would be alright.  They discussed that the previous suspect was remanded for a couple of months until his court hearing on 30 January 2015.[19]

20.  Between 7 March and 20 May 2015, the appellants kept updating each other via WhatsApp about the return of “Sai Chun” (Kan) and “Ah Lau” (Lau).  On 14 and 15 April 2015, D1 enquired of D2 if he had any news as he was being asked every day about it and D2 responded that he was making inquiries.  D2 also suggested that they talk face-to-face as mobile calls would leave a record and would be inconvenient.[20] On 27 April 2015, D2 sent the previous two messages to Cheng and D1 respectively.  D1 sent the two messages to D3.  He told D3 that the CCTV captured “Tak Hau” and “Sai Chun” (Tang and Kan respectively) holding knives and walking along the street, and “Ah Lau” in the bar.  He said that it was known that “Ah Lau” was the elder brother who led the team and that he was the cause.  He advised D3 that no one upon their return should admit anything even if beaten to death because a guilty plea and cooperation would not mitigate murder or reduce a life sentence.  He stressed that a lawyer should accompany them.[21] 

21.  The appellants kept communicating with each other about the investigation and between 4 and 20 May 2015, D1 texted D2 that “Sai Chun” (Kan) would probably “go back” within a short period of time and asked D2 if there was anything he should tell him.  D2 said not yet.  D1 asked if there would be “any big problem” telling him to go back and D2 said there should not be.  D1 texted D3 and told him to go to Team 1, RCU, Kowloon West. D2 texted D1 asking if “the kid” had gone yet.  D1 replied to D2 that it would be around 11 o’clock.  There was exchange of messages between D1 and D3 about the delay of the suspect’s attendance and the problems it was creating.[22] 

22.  On 21 May 2015, Lau surrendered to the police and remained silent under caution.  The appellants kept updating one another via WhatsApp about Lau’s situation as well as providing other information about the investigation.  D3 texted D1 that Lau would appear in court at 8 am the next day.  D1 sent the same message to D2.  D1 and D2 discussed what was likely to happen at the court hearing.  He asked D2 to find out if Lau would be detained for some weeks.  D2 said that it would be a good thing for Lau to go to court soon.  He said no identification parade was arranged as there was no witness and no physical evidence.  D1 texted D2’s view to D3.  D1 texted D2 to ask if Lau would have a good chance for bail at the court hearing and he replied that they had been reminded of what had been done at another suspect’s bail hearing.[23] 

23.  On 22 May 2015, D1 texted D2 that “the close friend’s close friend” has probably come out.[24]

24.  Between 26 and 28 May 2015, D1 and D2 discussed via WhatsApp about the return of the last “kid” as well as the strength of the evidence.  D2 told D1 that all samples at the scene had been probably proved to belong to the victim and therefore “Ah Lau” was not detained because they were checking the samples.  D1 asked D2 to make enquiries about “Ah Lau” and find out whether there was “any yellow sheet” (any bail paper) concerning the case. D2 replied that there was “no evidence whatsoever, only images”.  He said that even if there was a holding charge, it was highly likely that the court would grant bail.[25]

25.  Also, on 28 May 2015, D1 texted D2 that the last “kid” would arrive at 11 o’clock.[26] On that day, Kan surrendered to the police who remained silent under caution. 

26.  On 31 May 2015, D1 told D2 that the “kid” (Kan) had come out and asked whether Kan and “Ah Lau” got the “yellow sheet” (bail paper).[27]

27.  On 2 June 2015, D1 and D2 via WhatsApp discussed the amount of reward to be received and shared.[28]  Later the same day during CS5, D1 and D3 discussed about how to chase up the outstanding reward and how to divide the money.  Concern was expressed that the other side would evade payment by reporting to the ICAC.  D3 asked D1 to tell “someone” that after giving the 50%, the rest had to be paid to others at the end of the month as it was believed that Lau would be released after his first court appearance two to three months thereafter at the most.  D3 asked D1 to call “someone” to pay $150,000, half of the outstanding payment.  They believed that as they had quoted $600,000, “someone” might mark up the price to $1,000,000.  They had received $300,000 from “someone”, with $300,000 still outstanding.  The first payment was $200,000.  The second payment was $100,000 when a suspect was released after his second court appearance.  The first payment was shared by four persons, while the second payment was shared by five persons.  They also agreed the final payment should be shared by five persons.  D1 said he was willing to share $20,000 to $30,000 with “Fei Sam” (D2), as he had rendered assistance to him in a number of cases, to which D3 agreed.[29]

28.  On 6 June 2015, during CS6, D1 and D3 discussed how they would split the $150,000 cash they had with them.  D1 reiterated that the money be divided among five persons and that “Fei Sam” was entitled to $20,000, to which D3 agreed and added that “Fei Sam” had good connections and could be of use.[30]

29.  In the early hours of 7 June 2015, D1 and D2 were separately arrested by ICAC officers, after they had left the Music Lounge Bar in Yuen Long.  D3 had also been at the Music Lounge Bar but had left earlier and was elsewhere when he was arrested.  D2 was arrested first at 1:15 am.  He had in his possession a mobile telephone number 98091857 and a memory card, together with a total of $27,190 cash.[31] D1 was arrested next at 1:27 am.  Apart from a Nokia mobile telephone and three keys, he had no other personal items in his possession, such as a wallet, cash or his Hong Kong Identity Card.[32]

30.  D3 was arrested by ICAC officers at about the same time as the others at an estate in Tin Shui Wai.  D3 had in his possession two mobile telephones with the number 61111355 (the 1^st iPhone) and 91400080 (the Nokia Phone) respectively, as well as a total of $44,390 cash.  A search of D3’s office also uncovered a mobile telephone with a prepaid Sim card, which had a Hong Kong number 67394742 and a Mainland number 14715684742 (the 2^nd iPhone); and cardholder certificates for the 2^nd iPhone and the Nokia Phone.[33]

31.  Each of the appellants was interviewed under caution.  D1 exercised his right of silence and did not answer questions about the matter under investigation.[34]

32.  D2 also exercised his right of silence but answered some of the questions asked of him.  He admitted that he had met D3 on some occasions, whom he knew as “Fanling”, and before his arrest he was in the lounge in Yuen Long to meet D1, D3 and others for a drink.  He admitted that he knew Cheng, when they were attached to the same police team, and that he had known D1 for about 8 to 10 years, with whom he would occasionally go out for meals.  He said he had learnt from colleagues that the culprits in the murder case had fled to mainland China but could not recall if he had shared any intelligence with others about the case.  He confirmed he had money dealings with D3 as he would help D3 to buy things.[35]

33.  D3 was also interviewed under caution.  He admitted that he had used the mobile telephone number 61111355 for at least 3 years and that he was also a user of the mobile telephone number 91400080.[36] 

34.  The ICAC retrieved about a thousand WhatsApp messages between D1 and D2, D1 and D3, and D2 and Cheng, from the Sim cards of the mobile telephones of D2 and D3.[37]

35.  The prosecution case against the appellants was mainly based on the evidence of the ICAC officers as to the surveillance operations and their observations; the audio recordings of the meetings between the appellants; and the WhatsApp messages.  The nature and subject of the recorded communications between the appellants were significantly clearer when put in context with related events and circumstances. 

The defence case

36.  At trial, the appellants neither gave evidence, nor called evidence on their behalf.  The defence case was directed to whether D1, D2 and D3’s voices were on the audio recordings of the covert surveillance operations; whether they sent or received the WhatsApp messages retrieved from the Sim cards relating to them; and whether the information procured and provided was confidential.

The reasons for verdict

37.  The judge in his reasons for verdict accepted the evidence of the ICAC officers in relation to their identification of the participants and observations of the six meetings, CS1 to CS6.  He found that most of the ICAC officers evidence confirmed that they had recognised the particular appellant because they had seen them previously.  He concluded that there was no other person getting in and out of the motor vehicle at each of the meetings after listening to the relevant audio recording of the six meetings.  He also found that the appellants were the users of their respective WhatsApp accounts and the senders or the receivers of the messages in question. 

38.  The judge rejected the defence argument that the agreement between the appellants was for D1 and D2 to procure and obtain information in the public domain.  He was satisfied that the information procured and divulged was information kept by the police for the detection of crime, which he determined was confidential as it fell within the following categories:

“(1) the results of forensic examination;

(2) the evidence of an eye-witness;

(3) information concerning the suspects;

(4) status of the investigation;

(5) information about the issue of warrants of arrest;

(6) information about CCTV footages;

(7) information about the bail or custody of the arrested persons;

(8) information about the identification parade.”[38]

39.  The judge found that the case against the appellants was proven and that they were guilty of the charge of conspiracy to commit misconduct in public office.[39]

The basis of the appeal

40.  The issue under challenge by the appellants is whether the judge’s reasons for verdict were adequate and whether his reasoning entitled him to convict them of the conspiracy as charged. 

41.  Mr Andrew Bruce SC,[40] for D1, submits that the judge simply found the appellants guilty without articulating what evidence he considered in favour of guilt or pointed the other way.  He refers to HKSAR v Egan[41] on the requirement for adequate reasons for verdict.  While acknowledging that the judge recited the evidence at length in his reasons for verdict, he submits he was short on analysis and did not say why he considered the case of a conspiracy to commit misconduct in public office was proved against the appellants.  Mr Oliver Davies,[42] for D3, adopts the submissions of Mr Bruce.

42.  Mr Joseph Tse SC,[43] for D2, refers to Oriental Daily Publisher v Commissioner for Television and Entertainment Authority[44] and Zhuo Cui Hao v Ting Fung Yee,[45] and submits that the reasons for verdict did not satisfy what is required to constitute a fair and adequate judgment.  He supports his submission by reference to three discreet issues.

The aspect of the conspiracy

43.  Mr Tse submits that as the charge alleged a conspiracy to commit misconduct in public office, the judge failed to address the conspiracy aspect of the charge, citing HKSAR v Harjani Haresh Murlidhar[46] in support of his argument.  He contends that despite the length of the judge’s reasons for verdict, he did not adequately address the ingredients of the conspiracy.  Matters such as the inception of the conspiracy, the parties and their individual knowledge and intent were not dealt with.  When the judge set out the elements of the offence of misconduct in public office, the element of conspiracy was omitted.  He generally complains that it was unclear whether the judge had ever turned his mind to the conspiracy element of the charge. 

44.  In his submission, Mr Tse argues that the judge ought to have considered the evidence against each appellant separately, identifying against each of them the evidence as to his knowledge and belief, rather than the knowledge and beliefs of other persons, and then assess whether there was sufficient evidence to prove that he was a knowing party to the conspiracy charged with the intention to carry it out.  This resulted in the judge not making an assessment in terms of whether the evidence could prove that D2 had knowingly joined a conspiracy to commit the offence charged.  He contends the judge simply concluded that the appellants were guilty of the charge after rejecting the defence arguments (on identification, the senders and recipients of the WhatsApp messages and the non-confidential nature of the information).

Whether “Fei Sam” was D2

45.  It is submitted that the judge did not indicate how he resolved the issue of who was “Fei Sam”.  D1 and D3 mentioned “Fei Sam” in conversation in CS5[47] and CS6[48] as someone who was to share in the reward.  It is noted that D2 in his cautioned interview denied that he was “Fei Sam”.[49] The prosecution called two witnesses to prove that D2 was “Fei Sam”,[50] which evidence was disputed by the defence. 

46.  Mr Tse refers to HKSAR v Au Ling Man Steve,[51] where a conviction was quashed because of a failure to deal with defence evidence that contradicted the evidence of the main prosecution witness.

Whether “Fanling” was D3

47.  Similarly, it is submitted that the judge did not indicate how he came to find that “Fanling” was D3.  Mr Tse submits that the basis for the prosecution’s contention that “Fanling” was D3, was D2’s cautioned interview, which was inadmissible against D1 and D3.  He also points out that D2 did not in fact admit that “Fanling” was D3, it was only a suggestion put to D2 by the ICAC officer, to which he never expressed agreement.[52] He notes that in his second video record of interview, D2 denied knowledge as to who “Fanling” was.[53] 

48.  Mr Tse contends that it was possible the judge had wrongly attributed to D2 the knowledge that “Fanling” was D3 who was seeking information, and that this was a critical factor on which D2 was convicted.

The respondent’s reponse

49.  Mr Derek Lai,[54] for the respondent, submits that the judge was only obliged to give adequate reasons for his verdict.  What would be adequate would depend on the context of the proceedings and the nature of the evidence and the issues in the case.  The judge did not have to deal with each and every point raised by the parties at trial.  He submits that the judge’s reasons were sufficient and adequate when viewed in their entire context and provided the basis on which to discern the foundation for the judge’s conclusions: HKSAR v Hon Ming Kong,[55] HKSAR v Okafor,[56] HKSAR v Liu Po-shing and Another,[57] and HKSAR v Kong Wai Chun and Others.[58]

50.  It is submitted that the issue of conspiracy was raised by the parties and the judge had clearly turned his mind to it, in particular when he stated that the contents of the audio records from CS1 to CS6 and the WhatsApp messages reflected a conspiracy as particularized in the charge.[59] There was also a reference to the conspiratorial agreement,[60] when the judge rejected the defence submission that the agreement between D1 and D2 was to procure information in the public domain.  It is submitted that the contents of the audio recordings and WhatsApp messages spoke for themselves, and that once accepted by the judge, this was cogent proof of the conspiracy.

51.  As to the argument concerning the appellants’ knowledge and intention to exchange confidential information, Mr Lai submits that in rejecting the defence that D1 and D2 were to be paid for information already in the public domain, the judge had plainly considered the issue of their knowledge and intention and found that they were fully aware that the information was confidential.  He contends that on the evidence as a whole, in particular the audio recordings and the WhatsApp messages, the inescapable conclusion was that the appellants had conspired as alleged in the charge and that was what the judge found.

52.  In respect of the identities of “Fanling” and “Fei Sam”, Mr Lai makes the following submissions.  As for the identity of “Fanling”, firstly there was evidence that D2 had dealings with a person called “Fanling”, who from the relevant circumstances was D3.  Secondly, the impugned paragraphs[61] in the judge’s reasons, where the reference to the name “Fanling” is associated with D3, is in the section where the judge sets out the prosecution’s interpretation of the evidence from the meetings and messages.  Thirdly, there was evidence from PW22, a former colleague of D2, that D2 had the nickname “Fei Sam”.[62]  He also adds that the judge did not have to address every point in his reasons for verdict as long as he gave adequate reasons for his decision. 

53.  It was the respondent’s contention that once the judge resolved the issues in contention, a conviction against the appellants was inevitable given the overwhelming evidence against them.

Discussion

54.  We turn to the issue engaged in this appeal concerning the adequacy of the judge’s reasons in convicting the appellants of the conspiracy to commit misconduct in public office.  Before we do that, it is appropriate to set out the general principles that apply to a professional judge when giving reasons for verdict.

55.  It is well recognized that a judge alone is not obliged to deal with each and every point raised by the parties in the reasons for verdict.  It will suffice for the judge only to refer to those parts of the evidence which bear upon the issues that have to be decided.  An appellate court would be extremely reluctant to interfere where the judge’s findings appear reasonable having regard to the whole of the evidence: HKSAR v Hon Ming Kong.  A judge is not required to set out elementary rules of law in his reasons for verdict as it would be assumed that he knows and had the rules in mind, unless it were shown clearly that he failed to treat relevant matters properly: HKSAR v Liu Po-shing and Another.[63]

56.  As a guiding principle, a judge is under a duty to give adequate reasons for any decision which he has made.  What would amount to adequate reasons would depend on the context in which the decision-maker is operating and the circumstances of the case in question: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority.[64] In the case of a judge alone, “what is necessary in any given trial depends entirely upon the nature of the evidence and the issues in the case concerned”: HKSAR v Kong Wai Chun and Others.[65]

57.  It was held in HKSAR v Kwok Chi Wah,[66] that it is usually preferable, when a judge is assessing the evidence, that he or she should start by setting out the elements of that offence which are specifically in issue. Where the judge is a professional judge sitting alone, it can be assumed, unless there are indications to the contrary, that the judge is well aware of the elements of the offence charged and that the reasons, pointing to where the evidence is accepted or rejected, are directed to those elements.

58.  In addressing a complaint about the adequacy of the judge’s reasons, an important consideration is what was in issue at trial.  If a particular matter was not in issue and accepted by the parties, then it can hardly be said that failure to address it by the judge in his reasons constituted a material irregularity or a miscarriage of justice.  Matters that have been accepted or are not in issue do not necessarily have to be addressed by the judge in his reasons.  In the present case, there was no doubt that the issues at trial concerned who were the participants at the monitored meetings and whether the information was confidential.  It was in this respect that the judge was asked to determine whether the conspiratorial enterprise of misconduct in public office by D1 and D2 had been established. 

59.  Mr Tse complains that the judge did not address the conspiratorial aspect of the charge, but that was not an issue at trial as it is now on appeal. 

60.  The thrust of the defence case was to challenge the evidence that variously identified the appellants at the meetings, and the contents of what had been discussed at the meetings and in text messages, and to argue that the information was not confidential. 

61.  The matters in issue and what was disputed between the parties was stated by the judge at the outset of his reasons for verdict:

“4. The defence disputes the following:

(1) D1 – D3’s voices were in the audio records of CS1 – CS6;

(2) D1 – D3 sent or received the WhatsApp messages retrieved from the SIM cards relating to them;

(3) In any event, the information being procured or obtained or divulged was confidential.”[67]

62.  These very issues were reflected in the closing written submissions of the parties.[68]  The submissions were primarily focused on whether the elements of the offence of misconduct in public office could be established on the evidence.  It would appear it was accepted by the parties that if the issues were resolved in the prosecution’s favour then the conspiracy alleged would be made out.  From our overview and distillation of the evidence, we can understand why counsel for the appellants at trial did not dispute that there was a conspiratorial enterprise underway but rather focused their challenge against the prosecution case on the issue as to whether the appellants were a party to it.

63.  As the murder investigation progressed in relation to the five suspects there were a series of text messages and meetings between D1, D2 and D3, during which the case was discussed and information was conveyed about the state and progress of the murder investigation by the police.  The recorded communications clearly indicated the conspiracy as alleged and the only real issue was whether the voices on the audio recordings belonged to the appellants as claimed.  Once that had been determined it is hard to see how it could be argued that there was no conspiratorial agreement for police officers to misconduct themselves by the provision of confidential and sensitive information for reward to others in respect of an ongoing murder investigation.

64.  The judge set out in detail what was said in the text messages and the meetings which were audio recorded.[69]  He accepted the evidence that identified the appellants as present at the relevant meetings[70] and as the users of the telephones of the relevant WhatsApp messages.[71] He adopted the general summary of the information that was passed between them and concluded the information was confidential.[72]  He said:

“149. I am satisfied on the evidence that between 8/10/2014 and 7/6/2015 there was a conspiracy for D1 and D2 and others to procure and obtain confidential information of police investigation into the murder of WONG Man-kin and divulge it to D3 in return for monetary reward. The aforesaid act of procuring, obtaining, and divulging was to be a continuum of wilful misconduct in their course of or in relation to their public office as police officers. There was no reasonable excuse or justification for them to do so. Such misconduct was serious in that it was contrary to the public interest in the investigation of crimes and the apprehension of suspects.

150. I find all ingredients of the charge proved beyond reasonable doubt. D1 – D3 are convicted as charged.” [73]

65.  In his reasons for verdict, the disputed evidence in respect of the elements of misconduct in a public office were carefully and thoroughly reviewed by the judge and after resolving the matters in issue he convicted the appellants of conspiracy as charged.  The judge’s reasons were a reflection of what was in issue at trial and what he had to address.

66.  We are satisfied that it was abundantly clear from the contents of the recorded communications that information was being disclosed and discussed about the state and progress of the police investigation into the murder of the deceased, and that a substantial reward had been provided, which was to be shared amongst those who had participated in this illicit and corrupt arrangement.  We are also satisfied that the evidence was overwhelming as to who was present and participated in the meetings in question.  There was the surveillance evidence and the ownership of the particular vehicle that was under observation, and the text messages between the particular appellants which correlated in time and content with the relevant meeting.  

67.  In our view, the conspiratorial enterprise alleged against the appellants was conclusively proven by the content as well as the timing and circumstances of the communications variously between D1, D2 and D3 (and D1 and Cheng) and the illicit and surreptitious nature of their dealings with each other.  It would have been clearly apparent to the relevant appellant that the information was “confidential” by its very nature and the manner in which it was sought and conveyed.

68.  The additional points made by Mr Tse are of little or no consequence.  He notes that “Fei Sam” was the person mentioned by D1 and D3 in their conversations in CS5 and CS6 as someone who was to receive a share in the reward.  Although D2 denied he was “Fei Sam” in his cautioned interview, PW22 testified that D2 had been referred to by colleagues in the past as “Fei Sam”.  He complains that the discussions between D1 and D3 in CS5 and CS6 when they mention “Fei Sam” together with other evidence might give rise to an inference (against D2).  However, the judge did not explain in his reasons for verdict whether he drew an adverse inference against D2 in respect of this evidence.  As already noted there was evidence from PW22 that D2 was known by the name “Fei Sam”.  More importantly, there were the messages and the meetings (CS1 to CS4) between D1 and D2 that evidenced that they were a party to the conspiracy.  There is no substance to this point.

69.  Mr Tse also notes that D1, in his communications with D2, referred to “Fanling” as the person for whom the information was collected.  The prosecution in its summary of the evidence, which the judge set out in his reasons for verdict, identified “Fanling” as D3.  The judge in his reasons for verdict sets out the prosecution’s interpretations of the meetings and messages.[74]

70.  Mr Tse argues that the only evidence that “Fanling” was D3 came from D2 in answers he gave in his cautioned interview. He complains that this evidence was not admissible against D1 and D3.  He also complains that D2 in his cautioned interview did not accept that “Fanling” was D3[75]; however, we note that D3 was known to D2 by the name “Fanling”.[76] He contends that it is possible the judge had wrongly accepted that when D1 informed D2 the information was for “Fanling”, D2 knew it was for D3.

71.  With respect, this submission of the identities of “Fei Sam” and “Fanling” reflects a very narrow view of the evidence.  As we have already said when the evidence is considered as a whole, the case against the appellants was conclusively proven.  The evidence was that D2 knew D3 as “Fanling”. That was also the case with D1 who referred to D3 as “Fanling” in his conversations with D2.  There was also the evidence that D2 had the nickname “Fei Sam”.  From the surrounding facts and circumstances, particularly the communications between the appellants, the evidence was overwhelming that D2 was a party to the conspiracy with D1 and D3 (whom D2 knew as “Fanling”).

72.  This point is also without merit.

Conclusion

73.  Once the audio recordings and text messages were accepted and attributed to the particular appellants, they proved conclusively the conspiratorial enterprise alleged against them.  This was made abundantly clear by the judge in his reasons for verdict as he addressed the evidence in finding them guilty of the conspiracy as charged.

74.  In light of what was in issue at trial and from the overall record of the proceedings, the judge’s reasons for verdict adequately addressed and analysed the evidence and clearly provided a sound basis for his conclusions.  We find no merit in the complaints by the appellants and accordingly their appeals are dismissed.

[1] [2019] HKCA 1105 per Zervos JA.

[2] Appeal Bundle, 25 – 35, Admitted Facts (Part 1), at [9] – [16], [19] – [22] and [26] – [28].

[3] Appeal Bundle, 36 – 40, Admitted Facts (Part 2), at [2]:CS1; at [3]:CS2; at [4]:CS3; at [5]:CS4; at [6]:CS5; and at [7]:CS6.

[4] Appeal Bundle, 82 and 88, Reasons for Verdict, at [74] and [106], and 1460 – 1461. 

[5] Appeal Bundle, 82 and 88, Reasons for Verdict, at [75] and [107], and 1461 – 1462. 

[6] Appeal Bundle, 1462. 

[7] Appeal Bundle, 82 and 88, Reasons for Verdict, at [76] and [108], and 1465. 

[8] Appeal Bundle, 82 and 89, Reasons for Verdict, at [77] and [109], and 1465. 

[9] Appeal Bundle, 82 and 89, Reasons for Verdict, at [78] and [110], and 1466.

[10] Appeal Bundle, 86 and 89, Reasons for Verdict, at [99] and [111].

[11] Appeal Bundle, 82 and 89, Reasons for Verdict, at [79] and [112], and 1468.

[12] Appeal Bundle, 82 and 89, Reasons for Verdict, at [80] and [113], and 1469.

[13] Appeal Bundle, 82 and 90, Reasons for Verdict, at [81] and [114], and 1469-1470 (the correct date is 2 January 2015). 

[14] Appeal Bundle, 86, Reasons for Verdict, at [100].  As explained by the judge at footnote 56, “Dou” is a common term for $100,000.

[15] Appeal Bundle, 83 and 90, Reasons for Verdict, at [82] and [116], and 1472. 

[16] Appeal Bundle, 83 and 90, Reasons for Verdict, at [83] and [117], and 1473.

[17] Appeal Bundle, 86 and 90, Reasons for Verdict, at [101] and [118].

[18] Appeal Bundle, 83 and 90 – 91, Reasons for Verdict, at [84] – [85] and [119] – [120], and 1487 – 1488.

[19] Appeal Bundle, 86 – 87 and 91, Reasons for Verdict, at [102] and [121]. 

[20] Appeal Bundle, 83 – 84 and 91 – 92, Reasons for Verdict, at [89] – [90] and [125] – [126]. 

[21] Appeal Bundle, 84 and 92, Reasons for Verdict, at [91] and [127], and 1512 – 1513.

[22] Appeal Bundle, 84 and 92, Reasons for Verdict, at [92] and [128], and 1515 – 1523. 

[23] Appeal Bundle, 84 – 85 and 92 – 93, Reasons for Verdict, at [93] and [129], and 1524 – 1526.

[24] Appeal Bundle, 85 and 93, Reasons for Verdict, at [94] and [130], and 1527-1528.

[25] Appeal Bundle, 85 and 93, Reasons for Verdict, at [95] and [131], and 1528 – 1534.

[26] Appeal Bundle, 85 and 93, Reasons for Verdict, at [96] and [132], and 1532.

[27] Appeal Bundle, 85 and 93, Reasons for Verdict, at [96] – [97] and [133], and 1535.

[28] Appeal Bundle, 85 and 93, Reasons for Verdict, at [98] and [134], and 1537.

[29] Appeal Bundle, 87 – 88 and 93 – 94, Reasons for Verdict, at [103] and [135].

[30] Appeal Bundle, 88 and 94, Reasons for Verdict, at [104] and [136].

[31] Appeal Bundle, 30 – 31, Admitted Facts (Part 1), at [29].

[32] Appeal Bundle, 31, Admitted Facts (Part 1), at [30].

[33] Appeal Bundle, 31 – 32, Admitted Facts (Part 1), at [31] and [32].

[34] Appeal Bundle, 59, Reasons for Verdict, at [17].

[35] Appeal Bundle, 59, Reasons for Verdict, at [18].

[36] Appeal Bundle, 59 – 60, Reasons for Verdict, at [19].

[37] Appeal Bundle, 33 – 34, Admitted Facts (Part 1), at [34] – [37].

[38] Appeal Bundle, 97 – 98, Reasons for Verdict, at [143].

[39] Appeal Bundle, 52 – 101, Reasons for Verdict.

[40] Appears with Mr David Khosa.

[41] HKSAR v Egan (2010) 13 HKCFAR 314.

[42] Appears with Ms Stephanie Ko.

[43] Appears with Mr Wilson Tam.

[44] Oriental Daily Publisher v Commissioner for Television and Entertainment Authority (1997-1998) 1 HKCFAR 279.

[45] Zhuo Cui Hao v Ting Fung Yee [1993] 3 HKC 634.

[46] HKSAR v Harjani Haresh Murlidhar (2019) 22 HKCFAR 446.

[47] Appeal Bundle, 93, Reasons for Verdict, at [135].

[48] Appeal Bundle, 94, Reasons for Verdict, at [136].

[49] Appeal Bundle, 589, P31(b), counter 931.

[50] Appeal Bundle, 1105E – G and 1111N – R, PW22.

[51] HKSAR v Au Ling Man Steve, unrep., CACC 104/2019, 19 December 2019.

[52] Appeal Bundle, 233, P29(a), counter 16, and 300, P30(a), counter 58.

[53] Appeal Bundle, 543, P31(b), counters 508 – 509.

[54] Appears with Mr William Siu.

[55] HKSAR v Hon Ming Kong [2014] 3 HKC 160.

[56] HKSAR v Okafor [2012] 1 HKLRD 1041.

[57] HKSAR v Liu Po-shing and Another, unrep., CACC 110/2000, 11 May 2001.

[58] HKSAR v Kong Wai Chun and Others,CACC 252/2009, 20 May 2011.

[59] Appeal Bundle, 54, Reasons for Verdict, at [3].

[60] Appeal Bundle, 100, Reasons for Verdict, at [147] and [148].

[61] Appeal Bundle, 88 and 89, Reasons for Verdict, at [107] and [114].

[62] Appeal Bundle, 1105E – G.

[63] HKSAR v Liu Po-shing and Another, at 6.

[64] Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority, at 290. 

[65] HKSAR v Kong Wai Chun and Others, at [77].

[66] HKSAR v Kwok Chi Wah [1999] 1 HKLRD 481, at 486B – C.

[67] Appeal Bundle, 54 – 55.

[68] The Prosecution’s Closing Submissions, Appeal Bundle, 1565 – 1601; D1’s Closing Submissions, Appeal Bundle, 1602 – 1627; D2’s Closing Submissions, Appeal Bundle, 1117 – 1126; and D3’s Closing Submissions, Appeal Bundle, 1628 – 1637.

[69] Appeal Bundle, 81 – 94, Reasons for Verdict, at [73] – [136].

[70] Appeal Bundle, 60 – 74, Reasons for Verdict, at [20] – [60].

[71] Appeal Bundle, 74 – 81, Reasons for Verdict, at [61] – [72] and [73].

[72] Appeal Bundle, 97 -100, Reasons for Verdict, at [143] – [148].

[73] Appeal Bundle, 100 – 101.

[74] Appeal Bundle, 88 and 90, Reasons for Verdict, at [107] and [114].

[75] Mr Tse refers to Appeal Bundle, P31(a), 543, at counters 508 – 509.

[76] Appeal Bundle, P30(a), 296, at counter 21, 300, at counter 58, and 306 – 310, at counters 123 – 164.