HKSAR v. KONG KIN SANG and Another

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 407
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicants (Kong and Tong) were charged, together with a detective constable and a female co-defendant, with conspiracy to obtain property by deception in the District Court before His Honour Judge McMahon. These applicants were convicted after trial and sentenced. They seek leave to appeal against conviction.

2. The offence charged arose from these facts:

3. Madam Lee (PW1) stole cheques from Sky Tress Co. Ltd. in which Mr Fung Po-keung (PW3) and his wife (PW4) had a controlling interest. Madam Lee (PW1) was a de facto employee of PW3 in Sky Tress Co. Ltd. Consequently, PW1 and her husband Yau King-sang (PW2) became suspects in a police investigation into the cheques theft. PW1 was arrested by the police and detained in Cheung Sha Wan Police Station. Her husband, PW2 attempted but failed to settle privately with his wife's former employer, PW3. The detective constable, a co-defendant of these applicants in the conspiracy charge, took up the preliminary investigation into this theft case. He interviewed PW1, PW3 and PW4 respectively. The amount of the stolen cheques was about $1m. PW4 was pregnant and had arranged to have her baby in Canada. The detective constable spoke to PW1 in confidence with a proposition that the case might be amicably resolved by making part restitution to PW3 and PW4. The investigation was later transferred to another police unit. Later, PW2 was also arrested for theft involving three of the stolen cheques, which had been deposited into a joint account held by him and his wife, PW1. The next day after his arrest, both PW1 and PW2 were released on bail.

4. Between 20 to 27 June 1995, the detective constable supplied Applicant Kong with the name and telephone number of PW1 and PW2. Applicant Kong was instructed by the detective constable to collect a "debt" from PW1 and PW2. It was agreed that the money collected would be shared between them. Later, the money so collected was to be divided amongst the conspirators. Applicant Kong approached Applicant Tong for assistance. According to Applicant Tong's statement to ICAC, Applicant Kong invited him to take up "a debt collecting" case. Applicant Kong gave him a bare outline, including the imminent departure of PW4 for the birth of her child in Canada. Applicant Tong was told that Applicant Kong would use that as an excuse for approaching PW2 to see if he was "eager to fix up the case". Applicant Kong would also speak to PW2, if PW2 showed interest, about returning $350,000 so as to assist him, Applicant Kong to request PW3 to "say something more favourable when giving statement, i.e. to try as far as possible to make (PW2) and his wife (PW1) get out of trouble". This is evidence of a conspiracy to pervert the course of justice. All this was disclosed in Applicant Tong's same statement to ICAC. Applicant Tong accepted the assignment. Applicant Kong then contacted PW2 by telephone, claiming to be acting on behalf of PW3 and PW4. By pre-arrangement, on 27 June 1995 PW1 and PW2 met Applicant Kong in the company of Applicant Tong in the Terrace Restaurant at Mei Foo Sun Chuen. Acting on the advice of their legal advisers, PW1 and PW2 caused the conversation of about ten odd minutes to be secretly taped. The cassette tape was produced at the trial as "P 1". A sum of $350,000 was then suggested by Applicant Kong. After the meeting, PW1 and PW2 reported the matter to ICAC the same evening. PW2 was later contacted by telephone, and the calls were monitored by ICAC. The partial payment was finally settled at $250,000. On instructions, PW2 was to deliver the money to the Terrace Restaurant in the afternoon of 30 June 1995. The female co-defendant was a girl-friend of Applicant Kong. She was recruited by Applicant Kong to act as a lookout. PW1 and PW2 attended at the Terrace Restaurant as instructed but they were redirected over the telephone to a nearby Shanghainese Restaurant. Outside the Shanghainese Restaurant, PW1 and PW2 were met by Applicant Kong. Applicant Tong and the female co-defendant acted as lookouts. $30,000 marked cash and a cheque for $220,000 were passed over to Applicant Kong. ICAC closed in and arrested the lookouts. Applicant Kong managed to escape. Applicant Kong claimed to have passed over the cash and the cheque to the detective constable in the vicinity. Applicant Kong was subsequently intercepted and arrested by ICAC officers in Tsim Sha Tsui. With the co-operation of Applicant Kong, the detective constable was also arrested the same evening.

5. The prosecution case is that Applicant Kong and Applicant Tong conspired with two others to obtain money from PW1 and PW2 by pretending to them that the money would be paid over to PW3 and PW4. At the trial, mention was made of a scheme to induce PW3 and PW4 by part payment to make less incriminating statements to the police. This appeal involves only Applicant Kong and Applicant Tong.

6. After the arrest of Applicant Kong, he was taken to his mother's flat at Glee Path in Mei Foo Sun Chuen. A search was conducted therein and Applicant Kong gave statements to ICAC. The Judge was not satisfied that these statements were made without any improper ICAC inducement. He could not feel sure that a suggestion put to Applicant Kong by ICAC "did not act as an inducement to him to cooperate". For the same reason, the Judge also rejected Applicant Kong's subsequent telephone calls including those made to and from the detective constable, his later conversations with ICAC, his interviews by ICAC and his assistance rendered to ICAC in recreating the route he took on 30 June 1995 after accepting the money and cheque from PW1 and PW2. What was left to connect Applicant Kong to the charged conspiracy to deceive was his prior verbal statement (the verbal) made to an ICAC officer soon after his arrest.

7. At the trial, trial counsel objected to the admissibility of the statements including the verbal. The alternative procedure was adopted. Written objections were furnished to the court. As to the verbal, trial counsel informed the court that Applicant Kong did not make it and that the belated post-recording of the verbal written up some three hours later, could hardly be expected to be accurate or reliable.

8. The decision of Thakoen Gwitsa Thaporn Thongjai and Another v. R [1997] HKLRD 648 had not been delivered. The law was then universally understood to be that where a defendant denied making an oral statement, he could not also argue that the trial judge should exclude it as being involuntary. That proposition of law was affirmed as erroneous in Thongjai case.

9. The admissibility of the verbal which Applicant Kong denied as having made was not ruled upon by the Judge nor was he invited to do so. Before us counsel for Applicant Kong submits that he "was deprived of the very important safeguard" provided by such a ruling and that the verdict against him on the deception conspiracy charge cannot stand.

10. Faced with the decision in Thongjai case, counsel for HKSAR, Miss Chan submits, first, that Applicant Kong had chosen to leave with the trial judge only one issue, namely, whether he did make this verbal statement to an ICAC officer. Legal advisers of Applicant Kong had been duly served with a copy of the statement of the ICAC officer, which explicitly referred to the verbal. Trial counsel had, so Miss Chan argues, deliberately confined himself to that single issue. Secondly, counsel invites us to treat Applicant Kong's belated attempt to raise this issue of the verbal in this court as an afterthought.

11. Miss Draycott, counsel for Applicant Kong on appeal did not represent him at the trial. She has encountered difficulty in obtaining sufficient information for the conduct of this appeal. On instructions previously given to her by Applicant Kong, counsel understood that the ICAC officer's statement did not contain any reference to the verbal. That is clearly inaccurate from the statement of the ICAC officer shown to Miss Draycott in court today. Applicant Kong is presently not at all sure what the position was. His explanation is that he was very much confused by the late introduction of the notebook which contained the verbal he allegedly made. On taking further instructions, Miss Draycott offers this court her up-to-date information at Bar: what transpired was that Applicant Kong instructed his legal advisers, including trial counsel that being aware of police involvement, at least by one officer, ICAC were enquiring of him if he was a police officer. He replied in the negative. Applicant Kong was pressed by ICAC to provide information as to whether there were other police officers in the same plot. Thereupon, Applicant Kong expressed his interests in knowing what ICAC would do for him if he should provide information. No definite offer came from ICAC, but it was made clear to Applicant Kong by ICAC officers that "it would be good or better for him". An objection on like grounds was made to the other statements which the judge eventually excluded because it was not established to his satisfaction that no improper inducement had come from ICAC. Miss Draycott submits that the inducement under consideration by the trial judge had or must have commenced at an earlier stage, right from the time surrounding the making of the verbal. Miss Draycott informs us that these very same instructions she received were given to trial counsel and legal advisers representing Applicant Kong before the judge.

12. Miss Chan for HKSAR is unable to demonstrate from the Appeal Bundle that on the admissibility of the verbal, Applicant Kong had decidedly pursued no other ground than the two advanced to the judge at the trial viz. he was not the author and the late post recording was hardly reliable enough for proving guilt. On instructions, trial counsel had apparently a good point to make on authorship before the judge. Responsible counsel could not have been expected to waste time on futile contentions. As the law then stood, trial counsel could not have run a parallel objection based on involuntariness when his client, Applicant Kong denied making the oral. Miss Draycott submits that on her instructions and in the light of the material accessible to her, the issue of admissibility grounded on inducement would have been raised at the trial if the correct legal position had then been reinstated as in Thongjai. We are, therefore, unable to say that counsel ought nevertheless to have objected to the admissibility of the verbal on account of alleged inducement nor that in the circumstances, by not so objecting to the admissibility of the verbal, Applicant Kong had evinced an intention to limit himself to one single issue before the judge and that he is, therefore, precluded from complaining of the absence of an admissibility ruling in this appeal. But clearly it was not raised before the judge because of a then general misconception entertained by us all. Miss Chan for HKSAR has not directed our attention to any material in the Appeal Bundle to substantiate her accusation that this is Applicant Kong's afterthought.

13. In addition, it is contended on behalf of Applicant Kong that his answers given to the questions asked of him in the verbal were insufficient to link him with the deception conspiracy as charged. The answers relied upon by the prosecution were:

"Kong: You sir, I don't understand why people didn't arrest me at the podium.

Yu: I am not sure about the situation at that time. When did you realize that something had gone wrong?

Kong: After I had collected the money, I telephoned my partner. No other could ever had answered phone calls made to this partner of mine. When I heard the call being answered by another man, I knew that something had gone wrong."

"Yu: Do you have a job now?

Kong: No, this time, I intended to become a small swindler, like other people do. In fact, I do hope to get a proper job. I have just wanted to apply for a bus driver job. You see, I have even obtained an application form. I had taken taxi-driver tests several times in the past, but was unsuccessful every time."

14. Applicant Kong had never met PW3 and PW4. He relied on the detective constable who was virtually using him as the front-man. It was only to be expected that Applicant Kong would receive from the detective constable some details of the police case against PW1 and PW2. Evidence of communication between Applicant Kong and the detective constable was less than full or comprehensive. Therefore, Applicant Kong's knowledge of details of the theft case as disclosed in the recorded conversation in the cassette tape "P 1" would not be, by itself, evidence of his participation in the deception conspiracy. What Applicant Kong had done and the circumstances in which he was apprehended could give rise to no irresistible inference that he must be connected, as a member, with the deception conspiracy as charged.

15. The judge relied heavily on the above answers in the verbal. Even if the verbal should have been admitted and was accurate, Applicant Kong's answer viz. "This time, I intend to become a small swindler" to a question about his current employment, must be obscure. Moreover, Applicant Kong continued:

"Kong: Wait a minute, you sir, would I be out of trouble if I tell you about the case?

Yu: I have no say, but you can tell me and I'll inform my senior officers, to see if they could help you."

16. That question piles more uncertainty upon uncertainty in the previous ambiguous answer. From this question, it can be observed that Applicant Kong could not have intended to give away any information about the case then being investigated by ICAC officers. It would have been absurd for Applicant Kong to give away case information that he was in fact swindling PW1 and PW2 just when he was about to bargain with ICAC officers, offering to say all he knew "about the case".

17. The earlier reference in the verbal to "partner" must be inconclusive as to whether Applicant Kong said he was a partner in a deception conspiracy rather than a conspiracy to pervert the cause of justice or other conspiracy to relieve PW1 and PW2 of an amount of cash.

18. With Miss Chan's consent, we allow Miss Draycott, counsel for Applicant Kong and Applicant Tong to argue on the ground that the verdicts are, in all the circumstances, unsafe and unsatisfactory. For the absence of a ruling on admissibility of the verbal on the ground of alleged inducements and his obscure answers embraced by the judge to implicate Applicant Kong in the deception conspiracy, we find ourselves left in doubt as to whether or not injustice might not have been caused to Applicant Kong. Having asking ourselves the subjective question whether in the circumstances we are content to let the matter stand as it is, we reach the conclusion that his verdict is neither safe nor satisfactory. We find it unnecessary to deal with the other aspects from which the judge inferred Applicant Kong's knowledge of and participation in the conspiracy of deception. We quash his conviction and set aside his sentence.

19. As to Applicant Tong, of the three statements given to ICAC, only Exhibit P 16 contains two answers which the trial judge regarded as central to his guilty knowledge. Applicant Tong was asked by Applicant Kong to take up "a case of debt collecting". He never came into contact with any of the other alleged conspirators in the deception conspiracy charge. There was no evidence to show that he spoke to any persons involved other than Applicant Kong or that he was ever given the true nature of the activities in which he was engaged as a debt collector. There was also no evidence that he would not have agreed to collect except for a particular or some conspiracy. According to Applicant Tong, all he had been told by Applicant Kong was that PW2 would be approached, in the eve of PW4's departure for Canada, to return a sum of money so as to enable Applicant Kong to request PW3 "to say something more favourable when giving statement" for possibly getting (PW2) and his wife out of trouble with the police. His presence at the Terrace Restaurant on 27 June 1995 and in the vicinity of the Shanghainest Restaurant on 30 June 1995 would not take the matter further. Turning back to the two answers relied upon by the judge to implicate Applicant Tong in the deception conspiracy, they were given in his statement P 16 as follows:

"Lam 24: On the day in Sun World Restaurant, what else did Kong Kin-sang (Applicant Kong) also tell you?

Tong 24: Kong Kin-sang (Applicant Kong) with reference to the paper, told me that Fung Po-keung (PW3) is the proprietor of that company. His wife was pregnant and she was going to go to Canada to give birth to the baby. He talked about making use of this as an excuse to ask Yau King-sang (PW2) whether he was eager to fix up the case. If he was, just ask him to return $350,000 so as to help him ask Fung Po-keung (PW3) to say something "more favourable" when giving statement, i.e. to try as far as possible to make Yau King-sang (PW2) and his wife get out of trouble."

"Lam 59: Well, did you contact Fung Po-keung (PW3)?

Tong 59: No. I believed that he has nothing to do with this case and concerning the whole case, I believe that it was the police officer who disclosed the information wanted to obtain some money. I am not clear whether any police officer had contacted Fung Po-keung (PW3)."

20. Using the pregnancy and imminent departure of PW4 as an excuse to approach PW2 cannot be evidence probative of a conspiracy to obtain money by deception. The excuse put up for urging PW2 to respond promptly could be an excuse for perpetrating any scheme or conspiracy such as one to pervert the cause of justice.

21. Answer 59 was premised on Applicant Tong's personal belief. Applicant Tong was not pressed to divulge the cause or reason for his belief. The basis on which he was engaged to take up the case of debt collection was that the money so collected would assist Applicant Kong to persuade PW3, the former employer of PW2's wife, to provide a statement less incriminating to the police. The unsubstantiated personal belief of Applicant Tong as recorded in his statement to ICAC, P 16, cannot be cogent evidence of his knowledge of the nature of any conspiracy. After all, it has never been suggested that Applicant Tong was, as a collector, at all concerned with the means by which the amount was to be procured or the use to which the collected sum was designed to be put. That would make his personal belief even less credible. The trial judge placed considerable reliance on these two answers to establish Applicant Tong's knowledge of the deception conspiracy for ultimately finding him to be a conspirator therein. Unless Applicant Tong could be shown to have had sufficient knowledge of the deception conspiracy, he could not be said to have consented to participate in it. His conviction is, in our final analysis, unsafe and unsatisfactory. As in the case of Applicant Kong, it is quite unnecessary for us to dwell upon the other evidential aspects which had been taken into account by the trial judge. Accordingly, we quash his conviction and set aside his sentence.