HKSAR v. CHUEN LAI SZE AND OTHERS

HCMA470/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 470 OF 1998

(On appeal from TWC1899 of 1997)

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J U D G M E N T

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1. On 17 April 1998, Miss Alison Thompson, Permanent Magistrate sitting at Tsuen Wan Magistracy, convicted each of the four appellants on a joint charge of assault occasioning actual bodily harm, contrary to common law and Section 39 of the Offences Against the Person Ordinance.

2. The 1st and 2nd appellants were sentenced to six months' imprisonment and the 3rd and 4th appellants were sentenced to four months' imprisonment. I am concerned in this judgment with their appeal against conviction.

3. The evidence led at trial relevant to the issues in this appeal is as follows.

4. All four appellants are police officers from the Special Duty Squad at Kwai Chung Police Station. In the early evening of 3 March 1997, YIU So-man, the first prosecution witness, was intercepted by the 3rd and 4th appellants at the Ground Floor of Wing Lok House on the Fuk Loi Estate, Tsuen Wan, close to where he lived. He was handcuffed and taken to the refuse room on the 16th Floor. Having been asked what he thought he had done wrong and having refused to answer, he was ordered to lie on the floor on his back. The 3rd appellant sat on his pelvis and punched him in the chest. The 4th appellant removed his spectacles and sat on his shins. The 2nd appellant entered the room and, after discussion with her colleagues, told him that his methadone card had been found, together with a quantity of heroin. When YIU denied that the heroin was his, he was punched in the chest by the 3rd appellant.

5. The 1st appellant, the inspector in charge of the team, then joined the officers and a further discussion took place which YIU was unable to hear. The second appellant stuffed a shoe in his mouth. Then the 1st appellant, followed by the 2nd appellant, poured water from metal drinks cans into his ears, nose and mouth until he found it difficult to breathe, whilst the 3rd and 4th appellant sat on his body. He said that a Coca-Cola can and a San Miguel beer can were used to do this. Some sheets of cardboard were placed under him.

6. He was told that he would be released if he was able to borrow money to buy drugs. When he expressed doubt at being able to do this, all four officers carried him to the railings in the refuse room and the 1st appellant threatened to have him thrown to the ground. He agreed to co-operate. He was returned to his position on the floor, where the 3rd appellant pressed his thumbs onto his neck, whilst the 2nd appellant poured more water into his nose and mouth, which caused him to lose consciousness.

7. When he came around, the 4th appellant handed him a mobile phone. He made a call to his mother and asked her for $7,000. Other police officers then arrived. He was given a change of clothing, as his own were wet, and released on the basis that they would be in touch with him again shortly. He managed to receive his spectacles, which were broken, and his wallet from which he said $200 was missing.

8. YIU was uncertain as to exactly how long the incident lasted but believed that it was approximately four hours and that he had been released at around 10 pm. He was not convinced at the time that those who had assaulted him were police officers.

9. At his elder brother, YIU So-kan, the third prosecution witness's insistence, a report was made to Tsuen Wan Police Station four hours later.

10. He was sent to Yan Chai Hospital. The medical officer who examined him at 3 am only found abrasions to his chest. However, greater injuries were found on the following day when the senior forensic pathologist gave him a more comprehensive examination. Detective Senior Police Constable 14103, the second prosecution witness, saw YIU at Yan Chai Hospital at 2.40 am on 4 March. He noticed redness on his face, neck and wrists. This was before any medical examination of YIU.

11. YIU's brother, YIU So-kan, said that when he went to Yan Chai Hospital that night, he noticed marks on YIU's neck and wrists and that he was not wearing his spectacles. He also noticed that YIU was wearing different clothing to that which he had seen him go out in earlier. In particular, YIU So-kan noticed a scratch mark on the left side of YIU's neck, and described his wrists looking as if they had been bound.

12. YIU's mother, CHAN Lai-ping, the fourth prosecution witness, said she received three phone calls from him during the evening of 3 March. This was while she was at her daughter's home. She had picked up her daughter's residential phone on each occasion. She had turned on the call forward facility on her mobile phone so she did not know which number had originally been dialled.

13. In the first call he said that he needed $7,000, without giving further explanation. In the second, he mentioned a friend's sick daughter and asked for $2,000 or $3,000. During the third call she said that her daughter spoke to YIU. Following a call from YIU So-kan, the elder brother, she joined him at Tsuen Wan Police Station where she said she gave $1,500 to a man she only knew as AU Wing.

14. LAM Shut-kam, the fifth prosecution witness, said that his mother was responsible for cleaning Wing Lok House and that he had been helping her on the night of the incident. He said that at about 7 pm he had gone to the refuse room on the 16th floor, intending to clear away rubbish. There a man, who claimed to be a police officer, told him to leave. As he left he saw two men, one of whom was handcuffed. He left and joined his mother downstairs.

15. Shortly after 9 pm, just before he left the building, he went to check the 16th floor refuse room. A man was standing outside the door to the room. He looked like the man he had seen before, but he was not certain he was the same man. The door to the room was not quite closed. He spoke as to the type of padlock used on the refuse room door and said that the locks to all the refuse rooms in the building were the same. He said there was a water tap in the 16th floor refuse room.

16. None of the appellants gave evidence, but they called one witness, Detective Sergeant 17239, who was a member of the Special Duty Squad team that evening. The sergeant said that after receiving a briefing from the 1st appellant, the whole team went to Wing Lok House, arriving there at 5.30 pm. The team was on an anti-dangerous drugs operation and was looking for a particular suspect.

17. They went up to Room 1409, where the 1st appellant introduced him to a man called Ah Wing who he believed to be a police informer. He then kept observation on the ground floor. He believed that the 1st appellant had gone to the 16th floor. He joined her there at 7.45 pm and was told to search for drugs on the staircase.

18. He had only joined the Special Duty Squad that day and he left it one week later. He could not remember the content of the debriefing, which followed the operation. He did not find out that the 1st appellant had contact with YIU in the refuse room until after the officers from CAPO began their investigation.

19. He had little recollection of events that evening and saw nothing whilst he was on the ground floor. He claimed not to have seen any of his colleagues before he left Wing Lok House at around 10 pm. It was an admitted fact in the defence case that on 17 February 1997 a CHEUNG Chi-wing lived at 1409 Wing Lok House.

20. There were a number of admitted facts at trial. Those of significance in this appeal are:

21. Photographs show that the 16th floor refuse room has railings open to the outside and that there were two separate Coca-Cola cans and a San Miguel beer can in the room.

22. The 2nd appellant's fingerprint was found on one of the Coca-Cola cans, and amylase stains, suggestive of saliva, were found on this can.

23. The enzyme amylase, found in human saliva, was found on two shoes found in the refuse room. It could not be determined whether or not this had come from YIU.

24. Sheets of cardboard were found on the floor of the refuse room.

25. No phone calls, either to YIU's mother's mobile phone or her daughter's residential line, were made over the relevant period, from any of the mobile phones which can be traced to the four appellants or their team colleagues.

26. Four phone calls, each of unknown duration, were made from a residential line installed in Room 1409 Wing Lok House to YIU's mother's mobile phone which were call forwarded to her daughter's residential line between 10 pm and 11.37 pm that evening.

27. A call was made from Yan Chai Hospital to YIU's mother's mobile phone at 11.58 pm, which was call forwarded to her daughter's residential line.

28. By 3 March 1997, YIU had been a drug addict for six years.

29. The appellants, through their counsel, Mr Lawrence LOK, contend that Miss Thompson failed, firstly, to consider how the appellants might have been handicapped by the unavailability of a vital witness and thereby prevented from having a fair trial.

30. Secondly, to evaluate or consider the evidence from the prosecution witnesses properly.

31. Thirdly, to evaluate or consider the forensic evidence properly.

32. I deal with the first ground. Mr LOK's argument on this ground centred on the fact that a man, CHEUNG Chi-wing, about whom I have more to say later, was not available as a witness for the defence. Mr LOK accepts that only in exceptional circumstances can a stay of proceedings be granted where a defence witness is unavailable. The defendant seeking the stay has to demonstrate that by reason of the witness's unavailability, it is impossible for him to obtain a fair trial, for which see R v Michiya (1990) 1 HKC 73; R v Holgate (No. 1) (1996) 3 HKC 205.

33. For this to succeed as a ground of appeal the appellants have to demonstrate to me that they did not receive a fair trial by reason of it. At the hearing of the appeal Mr LOK conceded that his argument was not supportable and that the appeal could not succeed on this ground. It is, therefore, not necessary for me to consider it further.

34. I turn to the second ground. Mr LOK's argument on this ground is that as Miss Thompson accepted the prosecution case rested on the credibility of YIU, her finding that she could rely upon his evidence ignored the agreed fact that the four phone calls came from a residential phone in Room 1409, and that none came from a mobile phone belonging to any of the appellants, as YIU maintained. This, he says, was a significant and vital difficulty in the evidence which she never properly resolved. It is probable that YIU, or possibly the man CHEUNG Chi-wing who was the resident of the flat, made the four phone calls from Room 1409 between 10.50 and 11.37 pm. This must cast doubt upon YIU's credibility and reliability, as he denied ever going to that room in the evening of 3 March. The question, whether YIU made the phone calls from the refuse room or from CHEUNG's room goes to the heart of the question whether he could accurately be described as a truthful and reliable witness.

35. Mr LOK submitted that these inconsistencies are not capable of being explained away in the way Miss Thompson did in her reasons for verdict. They go to the root of the subject-matter of the charges and she never resolved them properly, or at all. She failed to acknowledge that YIU gave different versions of the incident and failed to explain why she was prepared to accept the version that was most damaging to the appellants.

36. Mr LOK relied upon the authority of R v MA Yuen-ching Criminal Appeal No. 391 (1996) (Unreported), at page 8 of the transcript where Power V-P, Acting Chief Justice, said, "He" - that's the judge:

"Failed, however, to acknowledge that the victim had given three versions of the occurrence and said nothing to explain why he was prepared to accept the version which was most damaging to the applicant. In the outcome we cannot help but be left with a lurking doubt as to the propriety of the conviction."

37. I turn to the third ground. In his report, the Government Forensic Scientist said that he could not tell whether the amylase found on the shoes was from YIU. In R v CHAN Chun-man (1986) HKC 261, the Court of Appeal at page 265 held that:

"the presence of blood, or semen, of the same group as that of a defendant, while capable of amounting to corroboration, should be given very little weight unless the grouping falls within a narrow sector of the population. He, the judge, should have warned the jury in clearer terms of the limited weight which they should have attached to this evidence."

38. In this case, Mr LOK says, the forensic evidence is even weaker because it was not possible to determine whether the amylase was YIU's. Miss Thompson erred, both in law and fact, in accepting that the presence of amylase tended to support YIU's account.

39. Mr LOK argued that the fact that one of the two Coca-Cola cans found in the refuse room had the 2nd appellant's fingerprint on it can only raise a suspicion that it was one of the cans used to pour water into YIU's mouth and nose. He cited McMullen V-P's words quoting Devlin J in R v CHEUNG Kwong (1992) HKC 463, that: "... you cannot put a multitude of suspicions together and make proof out of it," - and argued that the presence of the fingerprint only goes to suggest that the 2nd appellant had contact with the can and cannot be used to determine whether the 2nd appellant used it to pour water into YIU's mouth and ears. There is a possibility that some unknown person put the cans in the room. He says that Miss Thompson erred in the use she made of the fingerprint on the can when she had merely found that the 2nd appellant had "handled the Coke can in the vicinity of the refuse room."

40. Mr LOK ended his submissions by arguing that in all the circumstances of the case the convictions as entered against all four appellants are unsafe and unsatisfactory.

41. In considering an appeal of this nature I have to ask two questions. Firstly, was it open to Miss Thompson to convict each appellant on the evidence before her? And secondly, before convicting, did she properly and sufficiently consider and evaluate the evidence before her?

42. As to the first question, Mr LOK has not suggested that there was no evidence upon which Miss Thompson could convict, clearly there was evidence. It is, however, strenuously submitted that Miss Thompson failed in her duty to properly consider and evaluate the evidence.

43. YIU was three days giving evidence and was subject to extensive cross-examination by Mr John McLanachan, the appellants' then counsel. Miss Thompson would have been in no doubt that the question when and where the phone calls were made was an important issue. Clearly, YIU told lies about this and it was incumbent upon her to deal with this matter. But in the final analysis, it was not for her to determine why YIU lied, but to look for the significance of the effect of his lies.

44. Indeed, a submission that Miss Thompson should have determined why YIU lied about the place and time he made the phone calls makes no sense, as there was no evidence before her on which she could have made that determination. This was not a case of her having to resolve inconsistencies, because these are lies, and not inconsistencies, and are incapable of resolution. No case is ever going to be perfect. A prosecution witness's evidence where it is clear that he is lying on an issue must be approached by the trier of fact with the greatest of care. But the witness's evidence on other matters can nevertheless be accepted, provided that the trier of fact - be that a magistrate sitting alone or a jury - is satisfied that he is telling the truth on those other issues and that, despite the existence of the lies, it is safe to accept it. That is trite law.

45. What Miss Thompson said about the phone calls in her reasons for verdict is this, at paragraph 21, page 364:

"Before I deal with my evaluation of the evidence, I shall summarise the main points of the defence closing submissions."

46. She then set out a series of lettered paragraphs. At lettered paragraphs (j) and (l):

"(j) There is no record of a phone call being made from D4's or indeed any of the officer's phones to PW4."

(l) The records show that 4 calls were made from a residential phone just 2 floors below a room in which Chung had lived, to PW4."

At paragraph 22, page 364:

"The defence argue that there is an irresistible inference to be drawn that PW1 made those calls himself and that his lies in relation to this matter effectively poisoned the whole case such that the court could not rely on his evidence in relation to any other matters."

At paragraph 27, page 366:

"PW1 believes that the telephone he was given by D4 was a small mobile type. It is most unlikely that any officer intent on causing such a call to be made would use the phone registered to him so the fact that no calls were traced to these is without significance. The only calls to PW4 however are from 2 floors below and, short of the possibility of this being a cordless telephone that was used, must point to the fact that PW1, if he made the first call to his mother at that stage, made it from Chung's home.

PW1 claims to have made his second call to his mother from the restaurant of which there is no record. He also said that he phoned Chung from here first, having received his pager call, and of course it has only been the records of PW4's mobile phone that have been sought in this case, hence there is no verification of such a call to Chung. PW1 also said that he went to Yan Chai Hospital because Chung left a message on his pager that he was there. PW4 thought that it was in the second call to her that her son had claimed to have been at Yan Chai Hospital and PW3, though he could not recall the matter in court, agreed that in his statement he had said that PW1 had claimed to have been there in his second call. Hence it is possible that PW1 is simply mistaken about the second call being from the restaurant.

It may simply just have been Chung that he telephoned from there and then he went straight to the hospital to meet Chung and phone his mother. There is a record of such a call from the hospital at 11.58 pm. Of course, what is said by third parties as to what PW1 said on the phone about his whereabouts is hearsay as to the truth of what he said, but PW3 and PW4 remember there being only 2 or 3 calls from PW1 and not the 4 calls that PW4 recalled.

There is, however, no explanation for there being 4 calls from Chung's home line, unless there was simply a problem with the connection that meant that the number had to be redialled, a matter that none of the witnesses mentioned."

At paragraph 31, page 367:

"PW1's mother was a simple trusting woman who was without doubt telling the truth about the calls she received from her son. I could not rely on the accuracy of her evidence as regards the timing of the calls."

At paragraph 45 at page 370 in her conclusions:

"In particular I've taken into account the evidence in relation to PW1's phone calls. There was an inference that he may be lying or mistaken as to the placing of these calls. There may be a number of reasons for this. It is not appropriate for the court to speculate and it is not possible for the court to resolve the issue. I am satisfied that they were made and were of the nature that he described."

At paragraph 46, page 370:

"Notwithstanding that PW1 may have lied about the calls, I'm satisfied that his account of the violence inflicted upon him was a compelling and truthful one. The very detail of his testimony, such as the placing of cardboard under his body and the change of clothes, is persuasive of its authenticity. I'm satisfied that his credibility and integrity as a witness has not been undermined by any anomalies or inconsistencies in his evidence."

47. Although she could have expressed herself more forcibly, it is clear from the above that Miss Thompson was aware that YIU was lying about when and where the phone calls were made. At paragraph 45 she makes it clear that she did not accept his evidence as to the place and time he made them. However, she was sure that he made the calls and that they were of the nature he described. It is clear that she was aware she was dealing with a witness who had lied on an important matter. Nevertheless she, as trier of fact, felt able to accept that on other matters he was truthful and that she could accept his evidence on those matters. That is her job.

48. I cannot accept Mr LOK's argument, in reply to Mr Darryl SAW, the Government Counsel's submission, that YIU's lie as to the place where the calls were made was so big and his evidence thereby so flawed that it was wrong for her to accept the remainder of his evidence. There was a stark issue for Miss Thompson to resolve but that is the daily task of magistrates. In doing it, they bring to bear, not only their skill in applying the law, but also their experience of judging facts.

49. What she said about the amylase on the shoes and the 2nd appellant's fingerprint found on the Coca-Cola can is this, at paragraphs 35 and 36 on page 368:

"35. As regards the finding of the salivary enzyme 'amylase,' I reject the defence suggestion that this could have been of animal origin. It is clear from the report that Mr WONG was specifically asked to look for 'human body materials' and would have confined his examination accordingly. I accept that PW1 makes no specific mention of one shoe and that the enzyme was found on both. I bear in mind that they are identical in type, being a pair, and that there were 2 separate sequences of water being poured into PW1's mouth.

Whilst he didn't specifically say that a shoe was used on the second occasion, we are dealing with a situation where PW1 claims to have been subjected to this water treatment for some considerable time during the course of which he lost consciousness. He was hardly likely to remember the finer points as to whether the left or the right shoe was being used. In any event, Mr WONG could not discover whether the saliva stains came from PW1 so the evidence can only be said to be tending to support PW1's account.

36. Whilst there is no specific evidence that the refuse room had been kept 'forensically intact,' there is nothing realistically to suggest that it wasn't. Access was sought at 5.40 am and the room found to be locked and the police must have returned by arrangement later on. The cleaners left at about 9 pm and the room had not been cleaned in the interim. Someone must have locked the room and the clear inference is that this must have been the officers of the defendant's team before they left. I'm satisfied that D2 must have handled the Coke can in the vicinity of the refuse room and that there's evidence to support PW1's account that she had used such a can to pour water into his mouth or ears."

50. At paragraph 43, page 370:

"His evidence is supported by the medical evidence in this case and is not inconsistent with the forensic evidence."

51. There is nothing there that indicates that Miss Thompson misunderstood the forensic evidence, or used it wrongly. She rejected a defence submission that the amylase could be of animal origin because the chemist had specifically looked for human body secretions. She was aware that the evidence could not show that the amylase was from YIU's saliva. She only found that its presence supported his claim that a shoe had been stuffed in his mouth, on the evidence, it was open to her to make that finding.

52. As to the fingerprint on the Coca-Cola can, her only finding is that the 2nd appellant must have handled the can while she was in the refuse room. The inference that one of the appellants, and no one else, must have left the can in the room, was one she could properly make from the evidence she accepted. It was open to her to find that the presence of the fingerprint supported YIU's claim that a drink can had been used to pour water into - as she put it - "his mouth and ears."

53. As Mr SAW said, the matters Mr LOK complains of have to be put into the context of the whole of the evidence led at trial. There is no doubt that YIU suffered a litany of injuries. The senior forensic pathologist's report shows he had been subjected to a brutal and extensive assault. Detective Senior Police Constable 14103 and YIU's brother noticed marks of injury on him at Yan Chai Hospital in the early hours of 4 March. This shows that the assault took place before they observed his injuries. Each appellant was a member of the police team that went to Wing Lok House in the evening of 3 March. CAPO officers found two shoes in the 16th floor refuse room, one had amylase on it. The 2nd appellant's fingerprint was found on one of the Coca-Cola cans found there. Sheets of cardboard were found on the floor, YIU said cardboard had been placed under him by his assailants. The appellants had handcuffs with them, LAM Shut-kam, the male cleaner, said when he went to the refuse room at 7 pm, a man ordered him to go away and this man was in the company of a man who was handcuffed. He went to the room at 9 pm, two hours later, and was again ordered to go away. These are an unusual series of coincidences and are capable of supporting YIU's evidence.

54. In substance, Mr LOK is asking me to substitute my own evaluation from a careful reading of the transcript of YIU's evidence for that of Miss Thompson, who heard and saw him, and all the other witnesses at the trial. That is not an exercise I can undertake unless it is shown that in some way she failed in her duty. I must ask, has her evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way? In spite of Mr LOK's careful, well presented and attractive submissions, this has not been demonstrated. The appeal of all four appellants against their convictions is dismissed.