THE QUEEN v. WONG KWAI FUN AND OTHERS

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JUDGMENT

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Hunter, JA :

1. On 13th March 1989 Wong Chung-kwong (A2) and Hui Luen-chong (A3), together with Wong Kwai-fun (whom for convenience we will call Al, notwithstanding the abandonment of his application) were convicted after trial before Barnes J and a jury of the offence of assisting offenders contrary to s. 90(1) of the Criminal Procedure Ordinance, Cap 221. The particulars of offence as charged were : -

"Wong Kwai-fun, Wong Chung-kwong and Hui Luen-chong in or about the month of February 1988 in Hong Kong, knowing or believing that Leung Shek-fu, Fu Tze-chien, Poon Hon-sum and Cheung Yu-chung had committed an arrestable offence, namely, (the) unlawfully and maliciously causing grievous bodily harm to Chong Kai-ming with intent to do grievous bodily harm to Chong Kai-ming on 23rd January 1987, without lawful authority or reasonable excuse, ordered the disposal of and assisted in the actual disposal of a Honda "Accord" motor vehicle registered at the time of the commission of the above offence as DL214 which had been used in the commission of the said offence, with intent to impede the apprehension and prosecution of the said Leung Shek-fu, Fu Tse-chien, Poon Hon-sum and Cheung Yu-chung".

2. A2 and A3 now seek leave to appeal against their conviction.

3. The evidence led before the jury can be summarised as follows : -

The period of their respective employments was uncertain on the evidence, but the jury would have been entitled to conclude that they were so employed in and after March 1986. In December 1986 another employee of the group, Chong Kai-tax, disappeared owing the group, it was alleged, $750,000. His disappearance was said to have been known to everyone in the group. Repayment of this money as a "loan" was demanded of his brother, Chong Kai-ming. Three other employees, Chan Ying-kit, (who became the principal witness on trial), Cheung Yu-chung and Hui Luen-chong visited Chong and made this demand. They travelled together in a blue Honda Accord motor car index number DL214 (the car) which was said to have peen used regularly for what were called "night collections". This attempt failed.

4. Three other men were then recruited by Cheung Yu-chung. namely, Leung Shek-fu, Fu Tze-chien and Poon Hon-sum. On 23rd January 1987, travelling in the car they visited Chong Kai-ming again. The "collection" went disastrously wrong. Leung so severely injured Chong that he later died. The jury may well have inferred that that event became as well-known within the group as the original disappearance.

5. On 21st January 1988 A2 drove the car to garage for repair and took away its number plates, DL214, saying that the number was to be changed. He rang the garage later that day giving its new number. Documents showed this change was effective that day and inferentially this was done by A2.

6. On 28th January both A2 and A3 were arrested in connection with other matters.  A2 was not charged and was admitted to police bail. A3 was charged with an unspecified offence, and in March was released on court bail. On 6th February, Leung Shek-fu, Fu Tze-chien and Poon Hong-sum were arrested in connection with the attack upon Chong Kai-ming, and on 9th February Leung was charged with his murder. By 11th February the police were aware of the use made of a car in connection with this incident and were searching for it.

7. On 13th February A1 told Chan in the presence of A3 and Yip Tak-wah that the police were looking for the car. He told them that he wanted the car concealed and the seats and four floor coverings removed and destroyed. For this purpose A3 drove Chan and Yip to the garage. During the journey Yip told Chan that these steps were necessary to prevent the car yielding forensic evidence to the police. The car was removed from the garage to a parking space in Braemar Hill. A van was summoned, Chan said, by A3, and at his space the seats and floor coverings were removed from car to van. On A3's instructions, the van was driven to a squatter site in Western where the seats were left by A3 in the custody of a Mr and Mrs Fung. In early March A3 twice spoke to Mr Fung about these seats. On the second occasion when Fung confirmed that he had disposed of them, Fung asked A3 what this was all about. The answer was "nothing".

8. On 28th April 1988 A2 took a tow truck to the garage and was shown to the parking space in Braemar Hill. He there hitched up the car and towed it away. It has not been seen since.

9. On 9th May A1 was arrested and charged with this offence. On 10th May A3 accosted Fung and asked him to confirm his disposal of the seats. Fung asked what was the matter and was again told "nothing".

10. On 14th May A2 failed to answer to his police bail. On 19th May Fung led the police to the place where he had disposed of the seats. On 6th June A3 failed to answer to his court bail. On a date unknown A2 and A3 went to Taiwan.

11. In January 1989 a curious conversation took place between A3 and Fung. A3 telephoned and told Fung that he had his statement and said that he should call "a spade a spade". He added that if nothing went wrong, Fung would receive a red packet. On 18th February A2 and A3 were arrested and charged with this offence upon their return from Taiwan. At the trial both elected not to give evidence.

12. We have set out this evidence in some detail as the main submission advanced by Mr Loughran on behalf of both applicants is that the verdicts were unsafe and unsatisfactory as the evidence did not entitle the jury properly to infer that either applicant : -

13. It is accepted that in relation to both matters the judge gave an impeccable direction to the jury. He described these elements as "their major concern" and concluded : -

"Whether these matters had been proved depends upon whether you conclude that those are the only reasonable inferences to be drawn from the evidence you accept".

14. Later he invited the jury to consider what other possible explanations there might be of the applicant's conduct in a way which might have suggested that he could see none. But this was no misdirection, only a legitimate comment on the evidence. Having seen and heard the prosecution evidence, and having received no explanation from these applicants, the jury drew, and in our judgment were entitled to draw, inferences adverse to them.

15. For the same reasons Mr Loughran also submitted that the judge should have ruled that these applicants had no case to answer. This submission fails on the facts. It also fails on the ground that experienced counsel then appearing for both applicants made no such submission. On the contrary he denied its validity by inviting the judge to remind the jury of its power to stop the case. In a case of this nature there was no justification or need for counsel to seek to go behind the conduct at trial. All available arguments were open to him and were advanced in support of his primary submission.

16. Mr Loughran's next group of submissions were that the judge should have admitted no evidence in relation to flight and that he further misdirected the jury in relation to such evidence. We do not agree. This evidence was material. That in relation to the initial arrests and release on bail was, by agreement between counsel, put before the jury in the most neutral manner possible. That in relation to Taiwan was objected to, but we can see no reason to fault the judge's ruling. There was no misdirection. In his summing up he gave the. jury a direction wholly in the applicants' favour. He told the jury to ignore this trip to Taiwan as it could have stemmed from a concern not over this offence but other matters then under investigation.

17. On behalf of A3, Mr Loughran made two further submissions in relation to the evidence of the accomplice, Chan Ying-kit. First, he argued, somewhat faintly, that the judge was wrong to exclude direct evidence as to credit. In his evidence in chief Chan had put the date of his marriage as 1986. In cross-examination, he "corrected" this to 1987. Direct evidence was then sought to be led by the defence that tire true date was 1984. Mr Loughran properly conceded' that this evidence was collateral, and did not go to bias. This left him with no argument.

18. Secondly, Mr Loughran challenged the judge's exclusion of cross-examination of Chan in relation to previous trials where he had given evidence. The judge was told by counsel that there were 15 such trials which had resulted in four convictions and eleven acquittals. Counsel wished to put what the judge called this "football score, a statistic" before the jury. The judge was plainly right to reject this and when he said : -

"The evidence which it is sought to have leave to adduce is not, to my mind, such as to enable this jury to make its own independent assessment of this witness's credibility".

19. In the light of the strenuous efforts that were made in the court below to admit this cross-examination, we think it right to emphasise : -

20. For these reasons these applications fail and must be dismissed.