HKSAR v. LING YEUNG AND OTHERS

CACC 378/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 378 OF 2005

(ON APPEAL FROM DCCC NO. 448 of 2005)

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REASONS FOR JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background and facts

1. This case concerned an allegation of conspiracy (charge 1) against all of the appellants (D1 to D7 at trial) to steal trees of a kind which are described as ‘Buddhist pines’.  There was an alternative (charge 2) of handling stolen Buddhist pines.  On 1 September 2005, the appellants were convicted in the District Court by Deputy Judge Chainrai on the 1^st charge.

2. In addition, Chan Siu-fai (D2) was convicted of assisting the passage within Hong Kong of Ling Yeung (D1), an unauthorised entrant (charge 3), contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.  Tin Hung-fei (D7) was similarly convicted on charge 4.  In his case, he was alleged to have given assistance to four unauthorised entrants, namely, Yeung Fei (D3), Lai Kam-tong (D4), Yeung Hung (D5) and Chau Ki-fuk (D6).

3. The appellants sought leave to appeal against conviction on the 1^st charge.  The applications of D1, D4 and D5 were out of time.  D2 additionally sought leave to appeal against the sentence of 5½ years’ imprisonment imposed on him in regard to charge 3 and D7 applied for leave, out of time, to appeal in respect of his 5½-year sentence on charge 4.

4. At the conclusion of the proceedings on 16 August 2006, we gave leave to all the appellants and, treating the hearing as the hearing of their appeals, we allowed all the appeals against conviction.  Likewise, in the cases of D2 and D7 on charges 3 and 4 respectively, leave was given and their appeals succeeded to the extent that their sentences were reduced to such terms as would enable their immediate release subject to the power to detain them pending their repatriation to the Mainland.  We now give our reasons for so doing.

5. The facts of the case were straightforward and, having regard to the essential nature of the appeal which is common to all the appellants on conviction, these only need to be dealt with in short form.  The allegation was that two motorised sampans were used for the purpose of taking men from the Mainland to steal Buddhist pines from land within the jurisdiction of Hong Kong before returning to the Mainland with the trees.  D2 and D7 were the steersmen of these boats.

6. It was at about 6.33 pm on 16 March 2005 that the Marine Police, stationed in their Radar Room, first noticed the appellants’ vessels on their radar screen.  Two patrol boats were despatched to investigate at a time when the appellants’ sampans were in Hong Kong waters, about five to six nautical miles to the east of Waglan Island and about two nautical miles from the southern border of Hong Kong waters.  They were heading in a northeasterly direction (towards Nan’ao in the Mainland).  Both the sampans, travelling very close together, were observed to be carrying what appeared to be small trees.  When the police vessels sounded their sirens and fired flares to illuminate the scene, the immediate response by the steersmen of the two sampans (referred to at trial as Vessels A and B) was for them to take different directions at speed, constantly altering course to avoid interception.  The police observed between ten and twenty trees on Vessel B being thrown into the sea.  Four were later recovered from the sea and, in due course, these were identified as Buddhist pines.

7. Vessels A and B were intercepted after a chase lasting ten or fifteen minutes.  There were twenty-six Buddhist pines on Vessel A.  All the trees on Vessel B had been thrown into the sea.

8. There was undisputed evidence at trial that Vessels A and B were not only unsuitable for the sea around Hong Kong but also that they had no navigational lights, fire-fighting appliances or suitable life-saving equipment.

Defence case

9. All of the appellants were interviewed and four of them, D1, D2, D3 and D6 testified at trial.

10. D1’s case was that he had gone on a trip for fun from Shenzhen to Dangan Island (Dangan) but, because he had been seasick and dizzy, he had no idea how trees came to be on his boat (Vessel A) although later in his evidence he said that they had been transferred there by others.

11. D2 was the steersman (or coxswain) of Vessel A.  He stated that he had throughout remained in Mainland waters.  According to him, he had been asked to transport something from Dangan to Nan’ao and he only found out the nature of the cargo on arrival at Dangan.

12. D3 testified that he was employed as a construction worker.  He was taken, so he was informed, to Dangan from where he was picked up with D4 and D5, by Vessel B.  D6 was with the steersman, D7.  He denied that any trees were thrown overboard but, after they had been intercepted and taken off their vessel by the police, he found that the police had put a number of trees on board.

13. D4’s interview contained an admission that he had been asked to steal Buddhist pines but he said that he had refused to do so.  He denied that there had been any such trees on his boat before the police intercepted it.  His account was that he had been to Dangan.

14. A similar version to that given by D4 was provided by D5 in his interview.

15. D6 testified that he was on Vessel B when D7, the steersman, went to an island to collect D3 to D5 who, according to him, he had not seen before.  The trees on board Vessel B were put there by police after the interception of their boat.  There had, according to him, been no trees on board beforehand.

16. D7 admitted in his interview that he and D6 were employed to pick up D3, D4 and D5, with whom he was acquainted, and to take them from Dangan to Nan’ao.  He said that he had not been aware that they had entered Hong Kong waters.  Close to Dangan, on the way back, he saw Vessel A loaded with Buddhist pines and he admitted that some of these were transferred to Vessel B.

17. None of the appellants in Vessel B admitted knowing any of the people in Vessel A and, equally, there were no admissions made by the two appellants travelling in Vessel A to having any knowledge about any of those in Vessel B.

The application

18. The appellants were all Mainlanders and none of them had travel documents enabling them to travel within Hong Kong waters.  The accounts they gave were variously described by the judge, who drew attention to numerous inconsistencies in the stories they told, as “absurd” or “inherently incredible”.  This was a perfectly understandable observation.  However, although not the subject of any ground of appeal, we observed that the judge, when dealing with this part of the evidence said:

“38. Insofar as the defendants who gave evidence, who also each gave a video record of interview voluntarily, their video records of interviews [were] therefore evidence in the case generally which was I entitled to consider in discussing the evidence in respect of each defendant.”

19. We merely point out that as a statement of law this was, with respect, inaccurate.  The contents of the interviews concerning the appellants who had testified could only have become “evidence in the case generally” if and when they were adopted by their makers.  To take the example of D2, he disclaimed his earlier answers to the police by alleging that he had been taught what to say.

20. There was, however, a matter of far greater significance in the overall context of this case to which we now turn.

21. The only real issue at trial, which has also been the focus of this appeal, related to whether the prosecution could prove that the conspiracy to steal Buddhist pines was an offence committed in Hong Kong.  The six appellants who professed some knowledge or belief about where they had been prior to the interception of their boats, had stated they went to Dangan.  This lies outside Hong Kong’s territorial waters.  The case presented on their behalf by the same counsel who also represent them in these proceedings was that if the trees were stolen at all (there being no evidence as to whether this would constitute theft in the Mainland) this offence had occurred at Dangan.  This is an island which lies a considerable distance to the south of the Po Toi Islands and Waglan Island which are, in turn, south-east of Cape D’Aguilar.  It was submitted both here and below that if this was a ‘Mainland conspiracy’, or might be so, the conspiracy to steal Buddhist pines lay outside the criminal jurisdiction of the Hong Kong courts.  Mr Stanley Chan, for the respondent, agreed, but he submitted that the judge was fully entitled to conclude on the totality of the evidence that the theft of Buddhist pines had occurred inside Hong Kong territorial waters.

22. The prosecution, well aware of the importance of showing that the offence alleged in the 1^st charge was committed within the jurisdiction of Hong Kong, called Station Sergeant Wong (PW4) of the Marine Police.  He produced, amongst other things, a computer-generated ‘radar plot’ (exhibit P12) which showed the movements of the two police vessels and the appellants’ sampans prior to the police chase.  This exhibit, produced at the request of the defence, had originally been part of the prosecution’s ‘unused’ material but unfortunately, through inadvertence, it is apparent that this was not disclosed to the defence until the second day of the trial.

23. Exhibit P12 showed the course taken by the two police vessels between 18.33 hours and 18.46 hours as they set out to intercept the sampans.  Their course was charted by a series of dots joined together by red lines.  In view of their size and proximity to each other, the two sampans appear on the same radar plot as one vessel.  Their course is charted between 18.37 hours and 18.46 hours following a straight line of direction to the north-east.  The chase itself, for technical reasons due to the speed of the vessels and the constant alteration of course, could not be charted.

24. A radar plot cannot in itself identify the particular kind of vessel from the dots which mark its course.  However, there was no dispute that the single line of dots representing the course taken by the two sampans inside Hong Kong waters did in fact represent the two sampans in which the appellants were travelling.

25. The delay in disclosing exhibit P12 put the defence at a disadvantage for two principal reasons.  The first of these was that exhibit P12 only charted the direction of the sampans from 18.37 hours whereas, if Mr Cheung Yiu-leung had known of its existence earlier, he could have taken steps to obtain computer-generated radar plots which showed the course of the sampans from an earlier stage in their journey.  His hope, in this regard, was to establish a course taken by the sampans consistent with making a return journey from Dangan before making a shortcut, by “cutting a corner” through Hong Kong waters, on the way back to the Mainland.  The second disadvantage was even more serious as it emerged from PW4 that such radar plots are, as a matter of policy, maintained by the police for only “100 days” before the computer records are destroyed.  Seemingly, this is done whether or not a prosecution is pending with the result, in the present case, that the defence were unable, by the time of the disclosure of exhibit P12, to obtain further radar plots from the Marine Police.  In this respect, we merely comment that the policy of destroying records which may have relevance to ongoing proceedings should, we believe, be looked at again with a view to possible revision.

26. Added to these features of the case, we were informed originally that the police had themselves made no attempt to check the route taken by the sampans before 18.37 hours.  On the face of it, as Mr Chan agreed, the police seemed to have destroyed the very material which might have established that the route taken by the sampans had included a visit to any of the places where Buddhist pines were said to be growing in Hong Kong, including Cape D’Aguilar and the Po Toi Islands.  However, Mr Chan has since indicated to us in writing that attempts were made to track the sampans from an earlier time but the results were negative.  In a letter written on 18 August 2006, Mr Chan explained what had happened in the following terms:

          “Further enquiry was made in the meeting with the officer in charge of this case DSIP Poon (o/c case) yesterday, I was instructed that the said plot (P-12) was prepared under the instruction of the o/c case on 17 March 2005, shortly after the arrest of the Applicants on 16 March 2005.  As radar detection at that time was not that stable and consistent, the vessel movement cannot be recorded clearly on the lot, let alone the identification of the vessels concerned.  There was also no merging of the movements of the vessels concerned as it should be the case when the police vessels intercepted the sampans, Vessel A and Vessel B, which carried the Applicants.  At that time, the o/c case did not have the assistance or aid of the radar plots provided by the Marine Department.  The o/c case had made specific instruction to the police radar operator to see if vessel movements of the vessels could be tracked further down preferably well before the time of 1830 hours on the day.  The result of his enquiry was in the negative.  Accordingly, at that stage, it was considered that the said plot (P-12) did not have the probative value nor was it considered that it could advance any possible defence for the Applicants.  In the circumstances, the said plot was not included in the transfer bundle.

          Had the Preparation and Prosecuting counsel known of the existence of the said plot, the Prosecution would have no difficulty to include the same in the transfer bundle.  There was no motive nor did it serve any purpose for the Prosecution to withhold the disclosure of this piece of information contained in the exhibit P-12.  The said plot was eventually tendered and marked as an exhibit by agreement at trial.”

27. Whilst we entirely accept the explanation with which we have now been provided, we are somewhat disturbed that a senior police officer had taken it upon himself to decide that the radar plot (exhibit P12) had no probative value to the defence.  This was not, of course, a decision for him to make and it is an illustration of the importance of full disclosure being made by those whose task is to investigate crime to those whose duty is to prepare and prosecute the case.  Only then can a decision be made about what it is proper to disclose based upon well-established legal principles.

28. After the disclosure of exhibit P12 to the defence, Mr Cheung and his instructing solicitor worked as fast as they could during the remaining days of the trial to find out if there was an alternative source from which to establish the route taken by the appellants’ sampans.  This was done in out-of-court hours so as not to disrupt the proceedings.  They were eventually able to obtain the assistance of the Marine Department whose computer records were fortunately still in existence.  There were numerous difficulties confronting Mr Cheung in his endeavours to obtain the material he needed but he was eventually able to obtain eight consecutive radar plots (exhibit D1) going back to 18.30 hours which confirmed that the sampans were on a northeasterly course from the southern boundary of Hong Kong waters.

29. Mr Wong Chun-kit (DW5), a radar expert, made himself available to give evidence for the defence based upon his reading of the radar plots.  He was to some degree hampered by having had insufficient time in which to prepare a further radar plot (now before us) showing the course taken by the sampans from an even earlier stage.  Nevertheless, he was still able to give oral evidence to the court below as to what he had been able to observe on the computer screen prior to 18.30 hours.  Amongst other things, the effect of what he was able to say was that the single line representing the two sampans travelling in close proximity to each other showed that they had in fact travelled into Hong Kong waters from Mainland waters.  This, as we have said, was consistent with a journey from Dangan, although Mr Wong obviously had to concede that he was “not sure” that the line of dots actually represented the sampans as the dots did not identify the kind of vessel or vessels being tracked.

30. Mr Cheung was satisfied, understandably, that the evidence Mr Wong had given was sufficient for his purposes.  The radar plots (D1) were consistent with the course taken by the sampans as this line of dots followed the same line as the radar plots shown in exhibit P12 starting at 18.37 hours.  Mr Cheung did not, therefore, ask for an adjournment to obtain further radar plots which, with more time, Mr Wong could have produced.  We have been greatly impressed by Mr Cheung’s industry, perseverance and adversarial skills and we do not for a moment criticise his decision to proceed with the trial without asking for more time in which to produce further radar plots.

31. Mr Cheung’s real complaint at this stage is that he could not have anticipated that the judge would approach Mr Wong’s evidence in a way which had the effect of dismissing what he had had to say as being of no value at all.  We shall, in due course, return to this aspect of the judge’s Reasons for Verdict, but her approach led to an application, made by Mr Cheung in these proceedings, to adduce fresh evidence.  This was resisted by Mr Chan.  The fresh evidence consisted of the radar plots which effectively bore out Mr Wong’s testimony at trial with one small qualification.  It is apparently Marine Department policy never to release charts which plot any sea vessels on the Mainland side of the maritime boundary.  Consequently, there is no chart which shows the sampans actually crossing the boundary.

32. Having heard extensive argument on the evidence Mr Cheung proposed to adduce, we acceded to the application.  We have now seen for ourselves the two further radar plots which the Marine Department had been unable to produce in time for the trial but which Mr Wong had described in his oral testimony.

33. With this background, Mr Cheung complained, firstly, that the judge had been in error when she made the following findings:

“57.   Clearly, from the direction of travel of the two boats they were coming from areas of Hong Kong where there is growth of Buddhist pines.  I reject the claim that the Buddhist pines had come from Dangan.  I accept that these Buddhist pines are not unique to Hong Kong, but the direction of travel taken with the circumstances of how the trees were being moved, namely, in the dark on small unlit boats without any papers and that the boats fled in different directions upon being aware of the police presence and that the Buddhist pines on vessel B were thrown overboard, led me to find that the trees came from Hong Kong territory.” (Emphasis added)

34. Mr Cheung submitted that none of the evidence necessarily supported the view that the appellants had stolen that Buddhist pines from Hong Kong territory.  He argued that whilst the various factors to which the judge drew attention were undoubtedly consistent with the appellants being found in Hong Kong waters with stolen trees on their boats having regard to their furtive actions, the evidence did not go so far as to confirm that the sampans were coming from “areas of Hong Kong where there is growth of Buddhist pines”.  The radar plot (exhibit P12) which came from the Marine Police was just as consistent with the sampans having travelled from Dangan as from Hong Kong territory.  However, Mr Wong of the Marine Department had been able to trace the same line of dots back to a point showing that these same vessels had crossed the southern maritime boundary into Hong Kong waters shortly before 18.22 hours which was about twenty minutes before they were intercepted.

35. The second important complaint made by Mr Cheung which closely followed the first, was that the judge’s dismissal of Mr Wong’s evidence as being of no weight came about in circumstances which the evidence did not justify except on a most superficial reading.  He submitted that if Mr Wong’s evidence had been accepted, the judge could not possibly have found the 1^st charge proved to the required standard.

36. Taking the salient parts of Mr Wong’s evidence at trial, he made reference to the radar plots contained in exhibit D1 which showed the single line of dots represented by the two sampans.  These were marked as (vessel) ‘4226’.  Having referred to the radar plot which was timed at 18.30 hours and 24 seconds, the following dialogue occurred:

“Court:	Just a moment, please.  That’s when the radar first picked up the vessel?
A.	In accordance with the record I viewed last night; it’s picked up earlier than that.
[Mr Cheung]:	And what did you see?
A.	I saw a target as detected by the radar going north, to the north of the Hong Kong region, towards north-east. … From the Hong Kong boundary.
[Mr Cheung]:	Say that again.
A.	Going north-east from the Hong Kong boundary.
Court:	This was in Hong Kong waters, or outside Hong Kong waters?
A.	Starting from Hong Kong boundary.
Court:	So, it was going; it was at the Hong Kong boundary and going away from Hong Kong?
A	Crossing Hong Kong boundary, towards north-east.
Court:	When you saw it, was it in Hong Kong waters or not?
A.	Going into Hong Kong waters.
[Mr Cheung]:	Yes.  When you say ‘this target’, you haven’t identified what this target was.  Well, does it have any relation with ‘4226’?
A.	The radar signal was consistent.
……
Court:	So, the vessel would have crossed the boundary into Hong Kong waters and heading towards north-east?
A.	Right.
Court:	But when you first – the signal, the first signal of this vessel, was it within Hong Kong waters or without Hong Kong waters?
A.	When I viewed the record last night, I merely traced the record back to the time when it crossed Hong Kong boundary.  I did not have sufficient time to look at the record much earlier than that.
Court:	Your answer is still not clear.  Was it – it was either in Hong Kong waters when you plotted it or it wasn’t.  Which is it?
A.	Outside.
[Mr Cheung]:	Are you able to confirm that that signal is connected with the line now under D3 ‘4226’?
A.	The movement continued.
Court:	No.  What you saw, was that that vessel that’s identified on this chart as ‘4226’?
A.	I think so.
Court:	But you’re not sure?
A.	It’s ‘4226’
Court:	So did you print that out?
A.	No, I didn’t.
[Mr Cheung]:	Do I understand that there is, in fact, a policy with the Marine Department that you are not supposed to disclose information outside the boundary of Hong Kong waters?
A.	It’s our normal practice not to do so.  I’m not sure whether it’s on the basis of authority or what.
……
[Mr Cheung]:	Do I understand that your radar system can detect vessel movement outside the borders of Hong Kong waters?
	Nevertheless, it’s your practice not to disclose information in relation to that.
A	It can be detected.  Vessels outside Hong Kong waters can be detected.
[Mr Cheung]:	Now, one final question is that.  We have Exhibit P12. … That’s a radar plot produced by the Marine Police.  I know that you have told us that the Marine Police is operating on their own tracking system.  But looking at these two radar plots, what’s your comment?
Court:	You mean on Exhibit P12?
Mr Cheung:	P12, yes.
A.	They are similar.
……
Court:	Just a moment please.  Are you able to say if they’re plotting the same vessels?
A.	I’m not sure.
Court:	Sorry.  The vessels that you have identified – ‘4226’ [by inference, the sampans], ‘763’ and ‘4448’ [from the routes taken by these vessels, these were the Marine Police vessels] – are you able to say what kind of vessels they are?
A.	No, I can’t.
Court:	Yes.” (Appeal bundle pp. 176-178)

37. As we have indicated, it is not possible, merely from a line of dots on a radar plot, to identify the type of vessel.  It follows, therefore, that even Mr Wong, with his long and undisputed expertise in the field, was in no position to assert positively that the line of dots he had viewed on exhibit D1 represented the same vessel(s) as the line of dots representing the sampans on exhibit P12.  Nevertheless, the radar plots for the sampans (‘4226’) contained in exhibit D1 extended up to 18.40 hours and by 18.44 hours they had totally merged with the police vessels (‘763’ and ‘4448’ as shown on exhibit P12).  The inference, despite Mr Wong’s natural reticence to say that he was “sure” that these were the sampans the police had intercepted, having tracked their way into Hong Kong waters on a steady northeasterly course from south of the maritime border, was overwhelming.

38. The Reasons for Verdict provide the following assessment of Mr Wong’s evidence:

“51.   … He was an electronic engineer and the Marine Department and the Marine Police share the same radar signals.  They have different tracking systems however.  He produced records of vessel movement from their system (Exhibit D1(1) to (8)).  Three vessels were identified on these pages but he could not associate these with the items on Exhibit P12.  He was unsure if the vessels plotted on his plots were the same as those plotted on P12.  He was unsure that the boat[s] had crossed the Hong Kong border.   Nor was he able to say what kind of boats were plotted on his plots.  He was unclear about what he had seen on the screens when he checked the computer screens; he could not remember.  I attached no weight to his evidence.” (Appeal bundle p. 30)

39. Three main criticisms of this paragraph in the Reasons for Verdict were made by Mr Cheung.  Firstly, he pointed out that while strictly speaking Mr Wong had been unable positively to say, using the judge’s words, that “the vessels plotted on his plots were the same as those plotted on P12”, he had said they were “similar”.  In our view, taking all the circumstances into account, this was the cautious answer of a responsible and wholly impartial expert witness who was unable to say truthfully that he was “sure”.  As we have indicated, there was, in reality, no other inference to draw.  The radar plots illustrated by exhibits P12 and D1 effectively merged.

40. Secondly, Mr Cheung complained about the judge’s statement that Mr Wong had said “he was unsure that the boat[s] had crossed the Hong Kong border” when Mr Wong, in answer to a question from the judge, had said he had seen Vessel ‘4226’ “crossing the Hong Kong boundary, going into Hong Kong waters” on a radar plot on his computer screen the night before.  This, as we have said, is now more or less confirmed by the latest radar plots we have been given, with the qualification that nothing is shown on the Mainland side of the boundary because of the policy adopted by the Marine Department not to reveal such movements.

41. The third criticism Mr Cheung made about this important paragraph in the Reasons for Verdict was that whilst it is true that Mr Wong was unable to say “what kind of boats had crossed the Hong Kong border” or “what kind of boats were plotted on his plots”, these were merely radar signals which tracked the direction of a vessel on the sea.  Radar plots cannot identify the type of vessel and are not intended for such a purpose.

42. We were, with respect, unable to agree with the judge’s conclusion that the evidence was open to only one inference.  The sampans were headed on a straight, northeasterly course for Nan’ao which was just as consistent with a return journey from Dangan as from any part of Hong Kong where Buddhist pines are known to grow.  Mr Wong’s evidence at trial that the radar plots for the “vessel” marked as ‘4226’ on exhibit D1 produced by the Marine Department and for the “vessel” on the Marine Police radar plot were “similar” has to be read in the context of an area of sea where there were no other vessels which were embarked upon a similar course in the immediate vicinity at the material time.  In such circumstances, we cannot accept that it was right to have treated Mr Wong’s evidence as having no value.  At the very least, he supplied evidence to the court which left open an inference that the sampans, so small and so close together that they appeared to be a single vessel on the radar plots, were returning from Dangan.

43. Accordingly, we concluded that the convictions on the 1^st charge were unsafe.

44. This left the conviction of D2 on charge 3 and the conviction of D7 on charge 4 on which each was sentenced to a term of 5½ years’ imprisonment.  Having regard to the quashing of their convictions on the 1^st charge, the offence of assisting the passage of unauthorized entrants within Hong Kong became somewhat technical in nature because, as the respondent accepted in this regard, all that was left was an allegation that the appellants were found in Hong Kong waters.  Mr Cheung’s description of this being a “shortcut” to Nan’ao was an apt one as to have strictly followed the maritime boundary would have involved a rather lengthier journey to the east and then north.  For this reason, we reduced the terms of imprisonment being served by D2 and D7 on these charges to such a length as would enable them to be released immediately subject to the power to detain them pending their repatriation to the Mainland.