THE QUEEN v. WONG HAK ON AND ANOTHER

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. These are applications for leave to appeal against convictions in the District Court by Chua D.J. on charges of taking part in the management of an unlawful society, namely the 14K triad society, (Wong Hak On, D.1, only), of conspiracy on the 14th June 1982 to cause criminal damage to the Concorde Sauna in Kimberly Road, Tsimshatsui, Kowloon (both applicants, D.1 and D.2) and of conspiracy (D.1 and D.2) to maliciously wound a certain unnamed person if he was found at the sauna when it was attacked.. As it transpired he was not in fact present but the Crown's case was that the conspiracy had by then been formed and whether or not it was carried out did not affect the criminal liability of the applicants.

3. The Crown's case depended almost entirely on the evidence of two undercover agents who had been police officers. As Mr. Howard, leading counsel for both applicants, said the fact that they had been formally discharged from the police force before the events took place makes no difference. They were for all practical purposes police officers who carried out their duties, at no small risk to themselves, in acting as undercover agents over a considerable period of time. This was one small facet of a very large police operation aimed at the heart of the notorious 14K Triad Society. It is however a substantial ground of appeal, and one which has been argued before us at length, that because these agents described events which took place in the middle of 1981 and beginning, of 1982 at a trial which took place in 1987, the applicants were prejudiced by that delay to such an extent that they could not have been afforded a fair and Proper trial.

4. An application was made before the trial judge for a stay of the proceedings on the basis that there had been on the face of the record an inordinate delay in bringing the proceedings and that the Crown should be called upon to provide a satisfactory explanation for that delay, and that in the absence of such an explanation the proceedings should be stayed, as being an abuse of the process of the Court. Reliance was put on dicta of Yang Ag. C.J. in R. v. Leung Hung⁽¹⁾ -

"     In our judgment, the Judge ought, in the circumstances, to have ruled that, on the face of it, there had been an inordinate delay which called for an explanation by the prosecution. If the explanation was satisfactory, then the trial would proceed in the normal course. If no satisfactory explanation was given, then the Judge would have to go on to consider whether there was such prejudice as to constitute an abuse of process. An abuse of process covers anything unjustifiable done deliberately or inadvertently by the prosecution which has seriously prejudiced the possibility of the accused defending himself successfully. If the Judge should find that there was no prejudice then the trial would proceed in the normal course. If the Judge should decide that the defendant was prejudiced by the inordinate delay then he might, depending on the seriousness of the prejudice, exercise his discretion and order a stay of the proceedings."

5. Accordingly, evidence was called by the Crown as to the reasons for the delay from two witnesses Superintendents Horner and Vickers. Both these officers were cross-examined by Mr. Tolliday-Wright who appeared for both applicants at the trial. It emerged from their evidence that the two agents, who were known at the trial and can remain so named as Rodney and Sandy, had in fact concluded their own undercover operations by 1982, and it is argued that, in the absence of evidence to the contrary, at that stage there was no reason why the applicants should not have been arrested and the trial taken Place. Superintendents Horner and Vickers gave evidence that while Rodney and Sandy had concluded their part of the operation it was still going on and that if they had been called to give evidence at that stage and had had to reveal their identities it would have endangered other agents. Complaint is however made by Mr. Howard as to that evidence. Superintendent Horner said that even after Rodney and Sandy returned "from out of the cold, to use Mr. John LeCarrel's expression, to have used them as witnesses would he to gravely endanger the other agents still undercover. When however he was asked by Mr. Tolliday-Wright for details of this he was not prepared to give them and the judge ruled that only general questions could be asked. He did however say that if it was revealed that two agents had in fact penetrated the 14K Triad Society a search would then go on for any others who were still operating. However when asked specifically "so we don't know whether there were any other undercover agents in jeopardy?" he gave the somewhat strange answer "no you don't". That is, rightly, relied on very heavily by Mr. Howard but it must I think be seen in the context of Superintendent Horner's other evidence which seems clearly to have been that there were indeed such other agents still very much at risk.

6. Superintendent Horner moved out of control of the operation in June 1984 but further evidence was given by Superintendant Vickers who was in charge of disciplinary proceedings resulting from an attack on a Japanese Restaurant in 1985. He also gave evidence that the activities of Rodney and Sandy were only part of a major operation and officers of the C.I.D., New Territories, were suspected of being involved.

7. Taking the evidence of both Superintendents Horner and Vickers as a whole there can he no doubt that they were both reluctant to give detailed evidence as to the overall operation against the 147 Triad Society in which Rodney and Sandy played what seemed to have been a fairly minor part. Some of their answers may not have been as frank as one would perhaps have hoped but their reasons for reluctance are understandable and clearly were accepted by the trial judge as affording a reasonable explanation for the delay.

8. There are various authorities which have been cited to us on the question of the powers of the Court to stay proceedings as being an abuse of process where there has been delay. Possibly the strongest one for the applicants here is that of R. v. Brentford Justices Ex parte Wong⁽²⁾ where it transpired that the proceedings were deliberately delayed. Summonses had not been served because the Crown had not really made the decision to prosecute. The informations were laid simply to overcome the 6 months' statutory time limit. The proceedings were not ready to proceed and it was held that it was wrong, having laid the information, not to go ahead and serve the summons and proceed with the trial. Another case which although perhaps not of strong authority in itself does set out the relevant principles is a District Court case in New South Wales referred to us by Mr. Bruce for the Crown. That is R. v. McConnell⁽3) where Moore C.D.J. said in reference to delay in bringing proceedings as affording grounds for a stay of proceedings:-

"mere delay, prolonged to such a degree where it can truly be described as oppressive, vexatious or harassing. The courts have declined to fix any form of artificial limitation period."

We think that is right and in looking at the period of delay regard must be had to all the circumstances of the particular case. Here having regard to those circumstances we are of the view that, having heard the evidence as to the reasons for the delay here, the trial judge was not wrong in refusing a stay. There can he no doubt that it is much better for a trial to take place as soon as possible after the events upon which the charges are based. The longer the delay clearly the more difficult it is for a defendant to challenge the Crown's evidence. Here however the evidence was about meetings and events which were alleged to be triad meetings and triad activities and about conversations which took place which were alleged to be in connection with such triad activities and they were such that we feel no innocent person could possibly have had any doubts as to whether or not they were present at such meetings or conversations and whether or not they took part in such activities. We do not think that the delay here was such as to prevent the applicants having a fair and proper trial.

9. The second ground argued by Mr. Howard is that the judge has failed properly to consider all the evidence that was put before her. The trial judge has in her Reasons for Verdict gone through the evidence in considerable detail and appears to have fully analysed it and with respect we think that she has analysed it well. It is however pointed out that the judge has not referred to Rodney's evidence that he could not remember if D.2 was in fact present at a very important meeting of the 14K leaders on the 5th December 1981. While the judge seems to have accepted that he was there she has in fact acquitted him of the charge relating to his alleged activities on that specific day and said that mere presence at the meeting did not in itself constitute an act of management. She did however consider that there was ample other evidence to support a finding that he was part of the conspiracy to damage the Concorde Sauna and to, take part in the planned wounding.

10. It is also submitted that there was several inconsistencies between the evidence of Rodney and that of Sandy and that furthermore the judge has not referred to the use by those witnesses log-books which they kept and used to refresh their memory when giving evidence.

11. While the trial judge has not referred specifically to each inconsistency raised we are satisfied that she has fully considered the quality of the evidence and has found specifically that she can accept them as being reliable. As to Rodney in particular, she said that she accepted his evidence in its entirety. We do not consider that the inconsistencies raised were so glaring that they require to be specifically dealt with by the trial judge in her reasons. The note-books kept were, it is true, not prepared as was inevitable, as soon after the events portrayed As was desirable, but we do not see any reason to differ with the judge's ruling on their use. Having considered the evidence and those reasons we see no ground for interfering with the judge's decision on the basis that she has failed adequately to consider all the evidence.

12. It is also complained that so far as the 2nd applicant is concerned the trial judge wrongly allowed a dock identification. Such identifications are now considered to be of little value but there is certainly no authority to say that they are in themselves wrong. (R. v. John 1973 C.L.R. 113.) Here the trial judge' has in any event quite clearly said that she did not put any weight on that dock identification, but she did rely on the evidence of Rodney, supported by his record said that on one occasion D.2 had produced his identification card and that he had recorded the number on that card. It also appeared to have D.2's photograph. There was evidence upon which the judge could come to the conclusion that D.2 was the person referred to in the evidence as Ah Bui who clearly was one of the conspirators.

13. The final ground which Mr. Howard in his opening said was he thought perhaps his strongest, is a passage in the Reasons for Verdict where the trial judge says -

"D2 gave evidence but I was not able to say from watching his demeanour or examining the answers he gave, in the box, whether he was telling the truth or not. He denied being involved in any way. He denied knowing D1 (the 1st accused) or Rodney or Sandy. Of course the burden of proving their case rests squarely on the Crown."

It is argued that these words must be given their plain meaning which is that the judge was not able to decide if D.2 was telling the truth and that she should have resolved that doubt in his favour by concluding that his evidence was true and therefore he was not involved.

14. The trial judge has however also said that she accepted the evidence, particularly of Rodney, in its entirety and it is quite clear from her Reasons for Verdict as a whole therefore that she could not have accepted the evidence given by D.2 as being true. It may well be that her comment on his evidence is not worded as happily as it might have been, but we are satisfied that what she was saying was that purely by his demeanour and by the actual answers he gave in the box she could not be satisfied whether or not he was telling the truth but that compared with the evidence given by the Crown witnesses she was satisfied that he was not, the onus of course being on the Crown to satisfy her that such was the case beyond reasonable doubt.

15. Having considered the various grounds of appeal which have been fully and ably argued here by Mr. Howard we are satisfied that none of them is such as to cause us to be concerned as to the safety of the convictions here and the applications for leave to appeal against those convictions are therefore refused.

(1) Criminal Appeal 617 of 1986

(2) (1981) 73 Cr.App.R. 67

(3) (1985) 2 N.S.W.L.R. 269