HKSAR v. LI CHI MING and Others

IN THE COURT OF APPEAL

1996, No. 461
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 10 July 1996 the three applicants were convicted of various triad related offences by His Honour Judge Wong in the District Court. The offences were committed by the applicants Li Chi-ming (D1), Tsim Hung-wo (D2) and Choi Wing-fat (D3) as follows:

(1) Counts 1 and 2 relate to offences committed on 30 July 1995. It was said that D2 at the Heung Kong Restaurant claimed to be a triad member and demanded payment of $10,800 from Cheung Hin-kwan with menaces. D2 said that leaflets for decoration work had been distributed without permission.

(2) The 3rd and 4th charges relate to D1. These were committed on 4 August 1995. It was said that at a herbal-tea shop, D1 threatened a witness not to distribute advertising leaflets and demanded a similar sum. He claimed to be an office bearer of a triad society.

(3) The 5th charge took place on 15 August in Chai Wan Road. D1 and D3 were said to have threatened to chop Cheung Hin-kwan and Hung Hon-tai to death if they continued to distribute leaflets, and finally

(4) Four counts which took place on 16 August. All three applicants were involved. They were said to have threatened Hung Hon-tai and others with injury with intent to alarm them and three joint offences of common assault at the Bo Bo Fast Food Shop.

All those offences related to much the same activity.

2. At the end of the trial, each of the applicants was sentenced to 3 years imprisonment for his part in the offences. Each applies for leave to appeal against conviction.

The trial

3. This serious of offences arose out of the police operation to deserve and arrest, those involved in triad related offences of extortion with violence, threats of violence and, claiming to be members or officers of triad societies.

4. Three under-cover police officers - who were PW1, PW2 and PW3 in the case - posed as decoration workers for Dashing Design & Construction Company. That was a real business in which other witnesses worked, carrying on business from an address near newly completed home-ownership housing estates. It was in the promotion of that business that the officers soon attracted the attention of the applicants and others.

At trial

5. The evidence at trial consisted chiefly of the three under-cover officers together with some civilian witnesses who had worked for the Dashing Design Company. As they were working under-cover they did not make contemporaneous notes as officers normally would have done. In the evenings they took part in the briefing to record conversations and happenings of the day. The notes which were made by each were used to refresh their memories in the witness-box. They are known as POL155s.

6. The defence, was that the officers had completely fabricated the case against the applicants. It was alleged that they identified the applicants as persons involved in this kind of activity but then put their heads together to fabricate statements and present false evidence at the trial. That was the main issue before the judge.

7. None of the applicants chose to give evidence themselves. One of them called a witness (Lo Won-fat) to say that he worked at the Bo Bo Fast Food Shop and that from a record of attendance he had been at work on the day when the last four offences were said to have been committed. Adding that no assaults took place when he was there.

8. However, the judge, having considered his evidence, rejected it. Apart from him, there was no evidence given on behalf of the accused.

9. So the issues for the judge were primarily whether the police officers were telling the truth and had not fabricated the case, and secondly, whether the judge could rely upon what they had said to the necessary standard in order to convict. In other words, whether on the whole of the evidence he was satisfied beyond reasonable doubt, of guilt.

The application

10. Mr Oderberg, who appears for the applicants, submits that we ought to quash these convictions. He takes several points. The first relates to two statements of the trial judge when he was assessing the evidence of the police officers. At 16H he said this:

"I have also observed the demeanour of all the police witnesses. I cannot say that they have not told the truth concerning what happened."

In a similar way at 17H-J, he said this:

"Having carefully considered all the points made by counsel and the evidence in the witness box, I cannot say that they have fabricated the evidence as to what transpired."

Mr Oderberg says that there, the judge was stating principle. He was stating the manner in which he was assessing the police officers' evidence and that in doing so, he was applying the wrong standard of proof. And in those circumstances this Court must allow the appeal on the basis that it is not possible to be sure that the judge applied the correct test.

11. In spite of the fact that the judge is experienced and must well know the proper standard and burden of proof, if he applied the wrong test, then it follows that we would have to allow the appeal. We could not say in the circumstances that if the judge applied the wrong test to these important witnesses, he must have applied the right test to the rest of the evidence - there being, of course, some other evidence apart from the police officers.

12. It is to that issue that we turn. Did the judge apply the right test? Did he properly apply the burden and standard of proof that was necessary for the prosecution to achieve before convicting?

13. The judge approached the case initially on the real issue that was before him. The issue raised by the defence - this is a fabricated case, a false case advanced by police officers. So at 17C-F the judge said:

"What I have to consider is whether the evidence they [the police officers] gave in the witness box is truthful. In considering this, I have also to consider the evidence of the other civilian witnesses who had not discussed with them as to what happened on the dates in question."

So the first matter was whether the police officers were speaking the truth. Of course, if he was not satisfied that the officers were speaking the truth, then he would have answered the question he posed by acquitting. It is in that context that the remarks criticised were made. Indeed, before he made the first statement criticised, he specifically refers to the matters put forward by counsel for the defence on fabrication and lying by the police. He considers the first question and in its full context the second challenged statement, is:

"Having carefully considered all the points made by counsel and the evidence in the witness box, I cannot say that they have fabricated the evidence as to what transpired. I find that they are truthful witnesses and that they told me t the best of their ability as to what happened during those encounters with the aid of the POL 155s.

No doubt, I am aware that it is always the duty of the prosecution to prove the case and that the defendant needed not to prove anything, but there was no other evidence to contradict their evidence as to what was said during those encounters by those police officers acting as under-cover agents."

So in his process of reasoning, the judge gets thus far. He is satisfied that they had not fabricated their evidence. He started by saying that he could not say that they had not told the truth. Then he finds that they were truthful witnesses a little further in his process of reasoning. Next, he deals with the point that the defence need not prove anything but that there was nothing to contradict the evidence of the police officers.

14. By this stage had reached this point. He was satisfied that they were telling the truth; there was nothing to contradict them but one question remains for him to consider. Could he rely upon the accuracy of what had been said to the extent of being able to convict and be satisfied beyond reasonable doubt?

15. At that stage, the judge turns to consider the civilian witnesses PW4, PW5 and PW6 and assesses their evidence - pointing to matters that were put in cross-examination by defence counsel. Having done so, in each case he reached the conclusion that he could rely upon those witnesses and that those witnesses in various ways supported the evidence that has been given by the police officers.

16. PW6 deserves special mention. He was not able to give any detailed evidence but was able to identify the occasion at the Heung Kong Restaurant and say who was there. Although he did not give detailed evidence, he still was able to provide some support for the police officers.

17. The judge then turned to the defence witness and was not able to rely upon him at all.

18. Finally he considered the case against each defendant separately. In evaluating the case against defendant on each charge, he undoubtedly applied the proper standard and test. He said, for example, about the events at the Heung Kong Restaurant on 30 July - that is counts 1 and 2.

"I am satisfied beyond doubt that the gist of the conversation was as described by PW1 and 3.

I am satisfied, therefore, that the Crown has proved the 1st and 2nd charges against the 2nd defendant,"

Similarly, he applied the same standard to each of the other offences on which he convicted the applicants, finally, acquitting on one of the charges. There is no doubt that the judge here applied the correct test. The mental process which he set out in his reasons was perfectly proper. The statements criticised are no more than one stage in his reasoning. We dismiss the first ground upon which these convictions are challenged.

19. We turn to the second ground of appeal which is that the judge erred in law in engaging in mere speculation about the conduct and motives of the PW1, 2 and 3 in respect of their POL 155 statements and further, he erred in taking into account that PW3 stated that without the use of his POL 155 he would be virtually unable to give evidence of relevant matters at all. This is related also to ground 3(b) in which it is submitted that the judge failed to address the defence submission concerning the similarity of the records of each officers' POL 155.

20. These are matters which went purely to the credibility of the police officers. The judge had the defence submissions in mind. He dealt with them in his judgment. Although has been said by Mr Oderberg that the precise reasoning of the judge is somewhat unclear, this is not a matter which in any way can flaw the overall assessment that he made of the credibility of those witnesses. That ground is also dismissed.

21. We can deal with grounds 4 and 5 briefly. In ground 4, it is suggested that the judge failed to adequately address the absence of evidence which in some circumstances would be expected to have been available to the Crown. For example photographs of the injuries and evidence from other customers or staff in the restaurant where assaults and threats took place. The judge dealt with the evidence that was put before him as was his duty. He had those matters in mind.

22. The final matter - ground 5 - is that on the first count the police witness against whom the threat was made did not give evidence of it. The evidence was given by one of the other witnesses. Why this was so is not apparent from the transcript. It suffices to say that there was clear evidence upon which the judge was entitled to act. The fact that he did not mention his reasons that no evidence was given by one of the officers about the matter carries the matter no further forward. There is nothing in that point.

23. For those reasons we dismiss the application for leave to appeal in respect of each of the applicants.