HKSAR v. LI SIU HUNG

CACC 175/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.175 OF 2008

(ON APPEAL FROM DCCC NO. 959 OF 2007)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  On 7 May 2008 the applicant was convicted by Judge D’Almada Remedios in the District Court of four offences contrary to the Copyright Ordinance, Cap. 528.  He now seeks leave to appeal against those convictions.

2.  The offences were said to have taken place on 12 February 2007 at two premises on Hong Kong Island: in a flat in Whitty Building were found quantities of material that infringed copyright works as well as replicating machines; and in premises at a nearby building called Western Court there were also found pirated discs and blank discs.

3.  It was common ground that infringing material and replicating devices were found at those premises.  The sole issue was whether the applicant was party to possession and manufacture of such material at those premises.

4.  The prosecution relied on a confession which he was said to have made orally upon his apprehension at the first flat, on fingerprints which were said to have been found on discs at, and on his possession of keys to, both premises.

5.  The defence was that he visited the first premises for an innocent purpose, was pounced upon by a group of Customs and Excise officers, threatened and assaulted and made to sign a document containing a confession which was false.

6.  The question which the judge had to address was whether the prosecution had proved beyond reasonable doubt that he had made the confession and, if so, and unless excluded in the exercise of her discretion, that it was true.

7.  The prosecution case was that several teams of Customs officers had received a briefing about the possible presence of infringing material in the area and had congregated at a restaurant nearby and that a particular officer, Tang Shung Kit (PW1) had been assigned to go ahead to the Whitty premises to see if anything was happening.  When he reached the flat on 11^th floor, he saw the applicant emerge carrying a garbage bag.  The officer produced a search warrant and went with the defendant to the flat.  No-one was at the flat and in it the officer saw all the infringing material.  He thereupon questioned the applicant and asked him what the place was and the applicant replied that it was a place for burning pirated optical discs.  The applicant was arrested and cautioned and a number of questions were then put to him.  The effect of his answers was that he had been asked by someone called Ah B to go to work there for two days duplicating pirated discs, had provided the applicant with keys and some money and that 12 February was the first day that he had been working at the premises.

8.  According to this evidence six keys were taken from the applicant, who was asked to don plastic gloves.

9.  An exhibits officer arrived, and he was able to open the doors of the flat with two of the six keys.

10.  PW1 and the applicant then went to Western Court where they met another officer who had a search warrant for those premises.  The remaining four keys were used to open the door there.  Pirated discs were found in the premises and the defendant was cautioned again to which, according to this testimony, he replied: “Sir, I haven’t been to this place before, I don’t know what place this is, this has nothing to do with me.”

11.  PW1 and the applicant then returned to the Whitty Building flat.  There, PW1 made a ‘post-record’ of the earlier conversation, which he read over to the applicant who was asked whether he wanted to alter or correct it, which invitation the applicant declined and he signed the record.

12.  The applicant was then taken to the Customs Department in Tsim Sha Tsui.  He declined the offer of a video interview.

13.  The applicant’s evidence on the special issue was that he went to the 10^th floor of Whitty Building shortly after 9pm and was intercepted not only by PW1 but by many Customs officers.  PW1 threatened him.  The applicant says that he then noticed a girl on 10^th floor about to enter her own premises and who saw him surrounded by officers and that she was spoken to by one of them.  His evidence was that he was then taken into the flat on 11^th floor where his backpack was removed and he was handcuffed.  He was told by PW1 that he, the applicant, was at the premises ‘for barbeque’ – in other words to burn discs.  He was then assaulted by someone of whom he gave a description and who became known at trial as Officer A.  The assault took place in PW1’s presence.  He was taken outside the flat whilst photographs were being taken and then taken back inside.

14.  Then he was removed in a vehicle to the Customs Headquarters.  There he was spoken to by an officer, Officer B, in PW1’s presence.  Officer B cajoled him into signing a notebook or record on the basis that if he helped implicate or ‘nail’ Ah B, he would be released.  He signed the notebook and was then given bail.

15.  Evidence was adduced on the applicant’s behalf by a Ms Chan who is an assistant nurse who lived on the 10^th floor of Whitty Building.  She said that she did not know the applicant and that between about 9.30pm and 10pm on 12 February 2007 when she approached the door of her 10^th floor flat, she saw many people standing in the corridor holding the applicant and when she asked what they were doing they replied that they were public officers working there.  In October 2007 the applicant and his mother had approached her at her home and asked if she remembered an incident on 12 February that year and, because the incident had made a strong impression on her, she was able to remember what had happened.

16.  The first ground of appeal is that the judge ought to have excluded from the evidence the oral admissions allegedly made by the applicant inside the Whitty Building flat and the post-record of those admissions.

17.  Ten considerations are advanced as supporting this argument.  The first three relate to the fact that it emerged in the course of PW1’s testimony that in making his post-record the officer had used as an aide-memoire some notes which he had written at the time of the oral admissions themselves but had disposed of these notes.  It is said that there was no reason for the officer to prepare the post-record when there had existed contemporaneous notes; that it was wrong for PW1 to have destroyed the contemporaneous jottings; and that the applicant was deprived of his right to explore differences between the two documents.

18.  These are weak suggestions which, with respect, ought not to have seen the light of day.  The officer’s evidence, which emerged entirely spontaneously, was that these initial scribblings comprised incomplete Chinese characters and symbols and signs.  There could be no realistic suggestion in the circumstances that his destruction of them had any sinister motive.  Furthermore, and contrary to a suggestion made in oral submissions before us, the judge was fully alive to the fact of their making, to the circumstances in which they came to be made and to the fact that time had elapsed between the making of the jottings and the compilation of the post-record.  The judge had to deal with the evidence as it stood.  Had she concluded that there was some hidden or sinister motive for destruction of the shorthand notes, she would have acted accordingly.  Clearly, and understandably, she did not take that view and that is the end of the point.

19.  It is then suggested in all but one of the remaining 10 points that the officer’s evidence was inherently improbable.  We have been presented for the purpose of this application with over 250 pages of transcript covering the whole of the voir dire.  The cross-examination of this officer (by counsel other than those acting on this application) lasted for over a day.  This was a straightforward case on its facts and there was nothing in it that, even on a generous view, could conceivably have justified the pointless minutiae which counsel subjected to his microscope.  Although the judge attempted to limit the cross-examination to sensible proportions, counsel, for reasons best known to himself, pressed on hour after hour.  In the event, the judge had the advantage of seeing the witness and hearing his evidence over an extended period.  We do not think that his evidence reads implausibly and we see no reason to overturn the judge’s acceptance of his credibility.

20.  Finally in relation to the first ground, it is suggested that the applicant was not given an opportunity to identify Officers A and B.  It is difficult to know what it is that the defence expected in this regard.  Mr Cheng, SC, for the applicant, has not been able to particularize what it is that the prosecution should have done that they did not do.  As far as the prosecution were concerned there were no Officers A and B, in the sense that none of the officers with whom PW1 interacted played the role attributed by the applicant and it was PW1’s testimony that none of the officers in his group fitted the description of them given by the applicant.  Moreover, all the alleged abuse of the applicant by these two officers was said by him to have taken place in the presence of PW1; so the prosecution was able to adduce evidence by an officer covering the material period.  In so far as it is desirable nonetheless to tender for cross-examination particular officers against whom allegations have been made, that can only be done where the officers in question are sufficiently identified.  They were not.

21.  In the written submissions advanced on behalf of the applicant, there is a complaint that “there were no explanations at all from the prosecutor for the failure to arrange proper identification of the said officers and/or for failing to call the said officers or tendering them for cross-examination.”  And it is suggested by Mr Cheng today that other officers ought to have been tendered for the purposes of an identification exercise.

22.  The written complaint was noticeable for its lack of particulars, for it carried an implication that a request had been made by those acting for the applicant at trial for a specific group of officers to be presented to enable the applicant to identify his alleged assailants.  The Court therefore enquired of the parties by letter, ahead of this hearing of the application, whether such an identification had been requested and, if so, the terms of the request and whether the request had been refused.

23.  It transpires that a request was made and a number of officers were produced for the purpose but that the applicant did not identify his alleged assailants from amongst those presented.

24.  This is a case in which the prosecution was unable to produce for cross-examination an identified individual because the description provided by the applicant at trial did not, according to the testimony of the main prosecution witness, fit anyone he recognized.  In terms of who was present with PW1 and the applicant after his arrest, the account given by the applicant bore no resemblance to the account given by PW1.  Had it been common ground that other officers had been present at the time the assault and threats and inducements were alleged to have been made, even though the misconduct was denied, it would have been easy enough to produce those other officers from whom an identification of actual (alleged) miscreants could have been made.  This was not such a case and once a group of officers had been produced that failed to bear fruit for the applicant’s purposes, it was for those acting for the applicant to apply, if they wished, for others, sufficiently identified, to be presented for identification.  That is not what happened.

25.  We note in this regard a matter which one might have hoped would have been drawn to our attention, namely, that in the course of the trial a request was made by counsel then acting for the applicant for the production, for his examination, of a book that contained the record of duties performed by Customs and Excise team members on the night in question.  The relevant pages of the book were produced and examined after an adjournment specifically requested by counsel for the applicant for that purpose.  No questions were asked of any witness arising from entries in the book and after this examination of the book no request was made that officers named in the book and not earlier brought to court for possible identification, be presented for that purpose.

26.  In these circumstances, there was no default on the part of the prosecution.

27.  The second ground of appeal is that the trial judge unreasonably rejected the evidence of Ms Chan.  We have looked at this with considerable care for this was material testimony of a supposedly independent witness.  We have examined the transcript of her testimony and the full reasons given by the judge for rejecting it.  Not only had the judge the advantage of seeing the witness and hearing her testimony but, amongst other factors which persuaded her to reject it, the judge noted a telling slip by the witness who at first suggested that the people whom she saw outside her premises had identified themselves as ‘chai yan’ which colloquially means ‘police officer’.  This was at odds with the testimony of the applicant himself who said that the officer in question had identified himself as a Customs officer but the point is that when it became evident to the witness that this did not fit with the actual office held by the Customs officers, she said, laughing all the while in the witness box, that she had, rather, understood them to say that they were ‘public officers’.  The judge was not impressed with the witness and found her to be evasive.  We see no sufficient basis for an appellate tribunal to overturn that assessment.

28.  There is a third ground advanced which only survives if the other grounds do, so in the event it falls away.

29.  It is evident from the extensive transcript which we have read that this was a case handled with considerable patience by the trial judge and her Reasons for Verdict are notable for their clarity and logic.

30.  Accordingly, this application for leave to appeal against conviction is dismissed.