R. v. YAU MAN WO

IN THE COURT OF APPEAL

1996, No. 2

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): On 27th November 1995 the applicant was convicted by His Honour Judge McMahon in the District Court of one offence of blackmail and was later sentenced to 3 years imprisonment. He applies through Mr Y.C. Yeung - who appears for him - for leave to appeal against that conviction.

2. At trial there were 7 defendants. The judge acquitted most of them. One of them had pleaded guilty and one other was convicted of one count. The applicant was himself acquitted of other counts which he faced. Those are not now relevant to our consideration.

The facts

3. The facts as accepted by the judge were simple. The applicant approached the management of a construction company, asking if his associates could be employed in security for a building site. Perhaps the nature of the approach is evidenced to some degree by the fact that on 12 May 1994 PW1 - an undercover police officer - was introduced to the applicant as the person who was in charge of hiring staff for the management company. There was one other undercover officer in the case. He was PW3 but it was PW1 who in particular gave evidence upon the offence of blackmail which resulted in the conviction. PW1 and this applicant went to a restaurant. There the applicant demanded $8,000 a month from the construction company on the pretext that wages would be paid for employees to protect the building site. It was made quite clear that failing this arrangement, the site would be damaged. That took place on 12 May. On the following day there was a further meeting between the applicant and PW1. Further matters were agreed.

The trial

4. There was evidence concerning other offences. Some of this was circumstantially relevant to the blackmail offence. There was evidence of a number of further meetings between the undercover officers and the applicant. Although those meetings took place in May, June and July 1994, the trial did not take place until November 1995. In the course of their duties, the officers had made statements which became a central matter of cross-examination at the trial. To those we will return in a moment.

5. The evidence consisted mainly of the undercover officer PW1. But his evidence was circumstantially supported by the other undercover officer PW3, who came into the picture later, and by PW2 who was the project manager for the construction company. Also there were certain documents which came into existence. These the judge had to consider as circumstantial support for the officers' evidence. The main one was P5 - a receipt spoken of by both the undercover officers - written out by PW1 and handed to the applicant who signed the receipt in a false name. The receipt reads:

"I, Chan Wai-kwok, received the wage of HK$8,000.00 from Leighton Brunckner Foundation Ltd being the protection fees for the construction site in Hung Shui Kiu."

6. The officers were cross-examined about statements they had made. Those statements were not used by them to refresh their memories in the witness box but they had been used to refresh their memories outside the court and before they gave evidence. The statements made by one officer had over 1,300 characters which were identical or almost identical with statements made by the other. The officers gave evidence that those statements had been made independently. Not surprisingly, the judge was not prepared to accept that. He was faced with two officers who had not told the truth about the original record that they had made of the events which were the subject of this charge and others.

7. Further, the judge was faced with evidence about seven accused persons and many meetings. In certain cases, the exact words used in conversations by a particular accused were relevant. The record was not sufficiently reliable to be a safe aide memoir for the witnesses. So they were throwing their minds back in the witness box some 18 months to recall specific details.

8. The judge found unquestionably that the officers, or at least one of them, had been guilty of lying in court about those statements and therefore he felt that he could not rely upon either officer's evidence totally.

9. In those circumstances he convicted the applicant of the blackmailing offence. In doing so he considered the matters which we have set out including the unreliability of the officers in the respects which we have mentioned. Bearing those in mind he considered whether their evidence supported by other matters was such that he could be satisfied beyond reasonable doubt that the applicant was guilty of this offence. Having considered the matter, he was so satisfied.

The application

10. Mr Yeung submits that that conviction is unsafe. He puts forward a number of grounds.

11. The first is that if it had been known by the Crown that the statements had been made by those officers in the manner which came out at trial and that they were lying about those statements, this prosecution would never have been pursued. Therefore, he says, the judge ought to have stopped the case whereas he did not. This Court ought to rule that is a ground upon which we can allow the appeal. With respect, if there is anything in that point, it is one which ought to have been raised in the court below. It was not raised. As we see it, the judge's duty was to consider the evidence which was presented to him and to try the case. That is what he did. It is too late now to revisit the case on this basis.

12. The second ground is that the witnesses, PW1 and PW3, were demonstrated to be so unreliable that it was not open to the judge to accept their evidence and convict. Counsel supports that submission in a number of ways. He relies particularly upon the judge's finding that they lied. He relies then upon the judge's approach to those charges where particular words used by particular accused persons was vital to the finding of guilt. Where proof of such words was vital, the judge was very reluctant to accept the recollection of the officers and he acquitted. So, Mr Yeung says, this conviction also depended upon particular words used and the same principle ought to apply.

13. Then he submits that because one officer was relying upon a statement that may have come from the other officer, his evidence may be regarded as hearsay. He also suggests that the judge ought to have looked for support for the witnesses' evidence and there was none upon which he could rely. Or that having looked for support and found it, the evidence was not sufficient.

14. Finally, he says that the judge was not entitled to use the words in Exhibit P5 which in Chinese were "Po Wu Fai", meaning protection fee, against the applicant because one of the prosecution witnesses who was asked about this said that such may not involve a criminal request. We turn to these matters.

15. The judge - in discharging his duty - gave reasons which were detailed and consistent. They showed, in the view of this Court, an appreciation of his duty to consider the evidence both fairly and in accordance with the law. The consideration he gave to the case is exemplary. He bore in mind the matters which had been raised by counsel. He had to consider whether in the light of those he could still rely so that he was sure upon the evidence of PW1. He looked for support and he found it in the evidence of PW3 and in the documentary evidence, P2, P3, P4 and P5 - particularly P5 which was a receipt for the payment of money. He saw and heard these witnesses. He was in a position in which this Court never can be.

16. Has it been made out that the judge's reasoning or the basis for his finding were in any way flawed? He was certainly entitled to find as he did. As to Mr Yeung's point on hearsay evidence, with the greatest respect, this was not a question of hearsay at all. It was simply a question of what weight the judge ought to give to the evidence of PW1 in all the circumstances. It was not necessary for the judge to look for corroboration; he looked for support and he found circumstantial support and relied upon it.

17. As to the suggestion that he might have taken the words "Po Wu Fai" and protection fee as indicating by the very words used that there was a criminal content, there is nothing in his reasons which could suggest that, although he used that document rightly as circumstantial support for the prosecution case.

18. There is one other matter to which we must turn.

19. PW1 gave evidence before the magistrate's court in another case after this conviction. It was an allegation by him of assault. He was at the time also acting as an under-cover agent. The magistrate, having heard the evidence threw the case out on the basis that there had been gross exaggeration by the police witnesses, including this witness. He said "I am certain that there has been gross exaggeration of virtually non-existent injuries. I didn't say I suspect that. I am certain of that. I suspect that there has been gross exaggeration of whatever incident did take place in that room". He added at the end "These under-cover agents and their senior officers have been dealing with duplicity and deception for so long that it is starting to overflow into their normal duties".

20. The first question is whether that was relevant to the district judge's consideration of this case? Of course, it could not be because he knew nothing of it. Is it relevant therefore to our consideration of the case? There are circumstances arising after trial concerning a witness which do become important and relevant for the consideration of the Court of Appeal. Usually this is where a witness gives different evidence about the same events, or relevant personal facts are revealed about him in another case. Here the witness gave witness about other events not relevant to this case. He was found to be exaggerating by the magistrate. But that is nothing to the point when considering whether the judge in the instant case was entitled to convict on the whole of the evidence that he heard. This is an irrelevant matter which does not affect the safety of the conviction. For these reasons, this application is refused.