HKSAR v. WONG PUI SHAM

CACC 272/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 272 OF 1999

(ON APPEAL FROM DCCC 1292/1998)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The applicant was convicted on 21 May 1999 by Judge Line after a trial in the District Court of three charges. The 1st charge is accepting an advantage. This charge alleges that the applicant, being a Government Officer, a Superintendent of the Customs and Excise Department ("C&E"), on 20 March 1998, without the permission of the Chief Executive, accepted a loan of $50,000 from Peter SIU Sik-sum ("Peter SIU"). The 2nd charge is soliciting an advantage. This charge alleges that the applicant, being a public servant, a Superintendent of the C&E, on 24 April 1998 solicited from Peter SIU a deferment of repayment or a discharge of the loan of $50,000 as a reward or on account to him having in his capacity as a public servant, informed Peter SIU that a letter of complaint had been received by the C&E and copied to the ICAC and the Police, in which it was alleged that the factories operated by Golden Science Technology Ltd ("GSTL") were manufacturing pirated video compact discs. The 3rd charge is doing an act tending and intended to pervert the course of public justice. This charge alleges that the applicant on 24 April 1998 revealed to Peter SIU, a Director and Manager of GSTL that the C&E had received the letter of complaint that the factories operated by GSTL were manufacturing pirated video compact discs. He now applies for leave to appeal against conviction.

2. The applicant was a Superintendent of the C&E and head of the Prosecution, Intelligence and Investigation Bureau ("PIIB"). Peter SIU was a Director and Manager of GSTL. GSTL operated factories which manufactured video compact disc ("VCD") but part of the factories was used with the complicity of Peter SIU to manufacture pirated VCDs. Peter SIU knew the applicant for ten years. He was the brother-in-law of a former colleague of the applicant.

3. On 24 April 1998 an anonymous complaint letter addressed to the Secretary for Security, the Commissioner of Police, the C&E Commissioner and the ICAC was delivered to the mailbox of the PIIB. It complained that GSTL was manufacturing pirated VCDs and claimed that C&E officers were corruptly protecting the company's illegal operation. Under the Standing Orders of the C&E, when a letter of this nature is received, it has to be kept confidential and passed to the head of the PIIB for onward transmission to the ICAC and no C&E action should be taken on it. At about 5:30 p.m. the same day, following the Standing Orders, the letter was passed to the applicant because he was head of the PIIB.

4. That evening, the applicant attended a dinner at the Super Star Restaurant in Wan Chai hosted by Peter SIU for senior C&E officers and Police officers and other guests. The dinner was arranged some time before 24 April 1998. Quite independent of the complaint letter, the ICAC was then conducting an investigation into alleged corrupt activities of C&E officers in connection with pirated VCDs and had mounted surveillance outside the restaurant to monitor those who attended the dinner. The time of the applicant's arrival at the restaurant and the movements of Peter SIU outside the restaurant were recorded by the surveillance officers.

5. The prosecution case was that at the dinner, the applicant told Peter SIU about having received the complaint letter. Peter SIU immediately alerted a Mr Tsoi who in turn caused instructions to be given to the factory staff to shut down the production line of pirated discs and to remove all pirated discs and stamps for such discs from the factory. The instructions were instantly carried out by those on duty in the factory. It was also the prosecution case that on 20 March 1998, about a month before that incident, the applicant had asked Peter SIU for a loan of $50,000 to enable him to go on a trip abroad. On the same day, Peter SIU went to the bank, withdrew $50,000 and gave it to the applicant. On the night of the dinner, the applicant tipped off Peter SIU in return for deferring repayment of the loan to Peter SIU.

6. Peter SIU was arrested by the ICAC on 27 April 1998 for his involvement in manufacturing pirated VCDs. After his arrest he initially denied his involvement and lied to the ICAC but subsequently during an interview on the night of 28 and 29 April 1998, he agreed to provide to the ICAC information about corrupt activities of C&E officers in connection with pirated VCDs, on a without prejudice basis.

7. The prosecution case was principally founded on the evidence of Peter SIU who was an accomplice in the case against the applicant. He gave evidence under a conditional immunity.

8. Peter SIU's evidence of his loan to the applicant is this: On 20 March 1998, he met the applicant at the car park of the applicant's office at Rumsey Street, supposedly to have lunch together in a restaurant in Western. At the car park, the applicant asked him for a loan to enable him to go on a trip. They then got into Peter SIU's car. Because of busy traffic, they could not go to lunch and the car eventually took them to the Central Market Branch of the Hong Kong Bank where Peter SIU alighted, went into the bank, withdrew $50,000 and passed the money through the car window to the applicant who was then sitting at the rear seat. The driver of Peter SIU's car, PW9, gave evidence that he did not recall anything being given to the applicant by Peter SIU but he confirmed the meeting of the applicant and Peter SIU and the subsequent trip to the bank. The bank withdrawal slip confirmed the withdrawal was made on 20 March 1998 at 1:00 p.m. The following day the applicant left Hong Kong on a trip to attend a regional conference.

9. On this issue, the Judge accepted the evidence of Peter SIU and he did not find the evidence of PW9 affected his acceptance of that evidence.

10. Peter SIU's account of the applicant's tip off at the dinner on 24 April 1998 is this: The dinner was one of the usual dinners he gave to his officer friends in C&E and the Police Force. This had been arranged before 24 April 1998. At about 6:00 p.m., the applicant rang him saying that he (the applicant) would be late. But B B Kwan whom he knew for sometime and whom he had also invited to the dinner arrived at 6:00 p.m. The applicant came after 7:00 p.m. when he was playing mahjong. After he introduced the applicant to other guests, the applicant took him aside and told him that he (the applicant) had received a complaint letter just before finishing work. The letter implicated Peter SIU and GSTL and others in manufacturing pirated VCDs. Peter SIU said that when he heard that he became worried and spent 10 minutes pondering what to do. Thereafter, he went outside the restaurant to make a phone call to a Mr Tsoi and arranged to meet him at 8:10 p.m. He then returned to the restaurant to wait for Mr Tsoi's arrival. At 8:10 p.m. he met Mr Tsoi at a garden outside the restaurant and told Mr Tsoi about the letter. Mr Tsoi immediately phoned the factory instructing the staff there to cease production of the pirated discs. Mr Tsoi was not called as a witness at the trial.

11. The ICAC officers in surveillance outside the restaurant recorded that the applicant arrived at the restaurant at 7:32 p.m. and Peter SIU left the restaurant and made the mobile phone call at 7:42 p.m. and returned to the restaurant at 7:47 p.m. It is to be noted that the record relating to mobile phone calls made at about this time was not produced. For reasons best known to himself Peter SIU refused to give his consent to secure the record and equally surprising the prosecution made no application to the Judge for an order to compel production fully knowing its importance and that it was most material.

12. PW10 and PW11 were workers on duty at the factory at the time. They gave evidence that they received instructions to shut down the plant and to pack up and remove the pirated compact discs. They gave different versions as to the time the instructions were received: PW10 said he received the instructions to shut down between 8:00 p.m. and 8:30 p.m. and the clearing up went underway immediately and was completed at 9:00 p.m. PW11 said the instructions came at about 7:00 p.m. and after clearing up, there was still time for rest before going off at 9:00 p.m. Both said it took more than half an hour to pack up and remove the discs.

13. The applicant did not give evidence. His defence as put to prosecution witnesses was that Peter SIU in providing information about corrupt activities of C&E officers came up with the name of a C&E sergeant B B Kwan, but the ICAC considered that the information was not good enough because they were more interested in senior officers. Peter SIU therefore either of his own initiative or jointly with the ICAC officers came up with the story of the $50,000 loan to the applicant and the story of the applicant giving Peter SIU confidential information from a complaint letter. It was also suggested on his behalf that the tip off to Peter SIU on 24 April 1998 could have come from B B Kwan. Reliance was put on the references to B B Kwan and the words "B B Kwan verbally leaking confidential information" in the notes of the ICAC officers, B B Kwan's arrival at the dinner at 6:00 p.m. and PW11's evidence that instructions to shut down production came at about 7:00 p.m. This was well before the time Peter SIU said he alerted Mr Tsoi so that the shut down could not have been initiated from the applicant's tip off, if any, to Peter SIU.

14. The Judge found Peter SIU's evidence that he initiated three factory shut-downs by "pretending" that he had received a tip off about raids, in order to stop the pirated side of the business, hard to believe and that this obviously damaged Peter SIU's credibility. But he found that it did not follow that other parts of Peter SIU's evidence were untrue. He accepted Peter SIU's evidence on what happened at the dinner.

15. In dealing with the credibility of Peter SIU, the Judge stated that he had in mind that Peter SIU was an accomplice giving evidence under conditional immunity, had a criminal record and had told lies to the ICAC. He was thus aware of the danger of relying on a witness with such background when he found in favour of Peter SIU's credibility.

16. On the issue of the time when instructions to shut down were received at the factory, the Judge accepted PW10's evidence and rejected that of PW11.

17. The Judge also found the evidence from the ICAC officers reliable and rejected the suggestion that the references to B B Kwan in their notes indicated that Peter SIU had told the ICAC that it was B B Kwan who had tipped him off. He found that the suggestion that Peter SIU invented the story, either by himself or together with the ICAC officers, that the applicant accepted a loan from Peter SIU and had leaked confidential information to Peter SIU to defer repayment of the loan, was without basis. On the basis that Peter SIU was telling the truth, he convicted the applicant of all three charges.

18. The applicant's appeal is based on the ground that the verdicts were unsafe and unsatisfactory. The submission made on his behalf is that where the case, such as the present one, is decided by a single Judge, there is the danger of a single individual more likely than a jury, making idiosyncratic and mistaken judgments, based on a particular mind set or experience or intrinsic feeling and so to resolve issues of fact adversely to an accused because of subjective views and impressions, rather than by an objective assessment of the true weight of the evidence. This danger is greater, it was submitted, where the case turns on the evidence of one single witness who moreover was on his own evidence an accomplice who had previous convictions, who had been granted a very wide immunity and who admitted having lied to the ICAC on his arrest, and whose evidence the trial Judge in part rejected as not credible. We can say immediately that this was not a line of argument which carried any favour with this Court and we have rejected it.

19. However, Mr Griffiths SC, for the applicant, went on to submit that the Judge's approach to the case was wrong in failing to address his mind to the various weaknesses inherent in the prosecution case but instead rather focussed upon matters adverse to the applicant's case. In drawing inferences, it was submitted, the Judge drew and applied the inference most unfavourable to the applicant. The convictions, he submitted, are contrary to the weight of the evidence in the case.

20. The areas of weakness in relation to the 2nd and 3rd charges which Mr Griffiths referred to are the timing of the events at the dinner on 24 September 1998, the conduct of the ICAC officers in their dealings with Peter SIU and the possibility that B B Kwan had leaked the confidential information to Peter SIU. As regards the 1st charge, it was argued that the weakness lay in the fact that Peter SIU's sister, who was very close to him, died that morning on 20 March 1998 making it unlikely that the applicant would have in these circumstances, asked Peter SIU for a loan, especially when there was no independent evidence of the money being seen to pass to the applicant from Peter SIU.

21. Dealing firstly with the 2nd and 3rd charges, Mr Griffiths argued that it is abundantly clear from the notes of the ICAC officers that in Peter SIU's interview on the night of 28 and 29 April 1998, Peter SIU had identified B B Kwan as the person who leaked out the information using the code word "fire alarm". The ICAC officers were not being truthful when they denied that this was the case. He invited us to read the notes to see that this was obviously the case.

22. There are three sets of notes (Exhibits 115, 116 and 117). All three sets of notes commence with a declaration written in Chinese by Peter SIU himself to the effect that he was providing information to the ICAC and he understood that the information he provided would not be used as evidence against him in future legal proceedings. This was signed by Peter SIU, PW15 Chief Investigator Squires, PW14 Senior Investigator Andrew LO and PW16 Investigator Eric WONG. In each case, immediately following this declaration, are the notes of the ICAC officers.

23. Exhibit 115 recorded in English and in PW14 Senior Investigator Andrew LO's handwriting, contains the following material notes on page 3 -

And on the last page:

24. Exhibit 116 also in English and written by Senior Investigator Andrew LO contains these references in Chinese, "B B Kwan leaked verbally information".

25. Exhibit 117 is in English and written by Chief Investigator Squires and it contains this reference, "BB - ".

26. These ICAC officers all claimed in their evidence that these were notes they made for their own use in preparation of what to ask Peter SIU on his debriefing. PW14 Senior Investigator Andrew LO also said the notes were made to remind PW13 Investigator CHAN Ka-leung as to what he should ask Peter SIU during the interview.

27. Mr Griffiths argued that these notes all have the hallmarks of records of what Peter SIU told the ICAC during his debriefing and could not be what the officers claimed them to be. This rendered, it was submitted, the evidence of the ICAC officers unreliable and established the real possibility of Peter SIU revealing B B Kwan as the source of the leak. This was consistent with the suggestion that the tip off to Peter SIU came from B B Kwan.

28. Having studied these notes, we agree with Mr Griffiths that these notes could not have been made by the ICAC officers for their private use in preparation for the debriefing of Peter SIU. This is more than clear. If these were the officers' preparation notes, PW14 Senior Investigator Andrew LO must have known before the debriefing that B B Kwan disclosed the raids and the applicant obtained a loan from Peter SIU and disclosed receipt of the complaint letter in return for a deferment of repayment. But the evidence demonstrated that the officers were not aware of the complaint letter prior to the interview on the night of 28 and 29 April 1998 and the complaint letter did not reach the ICAC until 30 April 1998. How the information about B B Kwan, the complaint letter and the applicant's loan and subsequent disclosure found their way to the officers' notes was never explained. In our view, a possible explanation is that Peter SIU provided such information to the officer in his debriefing session and the information was recorded contemporaneously by the officers. In any event, we are left in considerable doubt as to the truth behind the entries in the notes made by the ICAC officers. We cannot, in such circumstances, give support to the Judge's finding that the ICAC officers could be relied upon to have told the whole truth.

29. Mr Griffiths submitted that the time gap between the arrival of the applicant and the appearance of Peter SIU outside the restaurant was a bare 5 minutes and it would have been impossible for Peter SIU to do all the things he said he did i.e. greeted the applicant, introduced him to other guests, being told about the complaint letter and pondering for 10 minutes as to what to do, within that period of time before proceeding to phone Mr Tsoi. The timing of the events at the dinner demonstrated, so Mr Griffiths submitted, that it was unlikely that the applicant had tipped off Peter SIU in the manner Peter SIU had testified. This threw doubt on Peter SIU's evidence and the Judge should have addressed himself in this regard when he assessed the credibility of Peter SIU.

30. The Judge accepted PW10's evidence as to the time instructions to shut down the production was received at the factory because he found PW10 to be brighter and the more intelligent witness with a better reason for remembering. It was submitted that this was insufficient reason to reject the evidence of PW11. The Judge's choice between PW10 and PW11 was important because, if the instructions came at 7:00 p.m. as PW11 testified, the tip off could not have come from the applicant in the circumstances described by Peter SIU. In this case, it would be more consistent with the suggestion that B B Kwan gave the tip off. All the more so, Mr Griffiths argued, because B B Kwan had known Peter SIU for many years and was attached to the Intellectual Property Intelligence Bureau ("IPIB") and could have seen the complaint letter, he was one of the invited guests at the dinner and arrived at 6:00 p.m. and the ICAC officers' notes had reference to him leaking confidential information verbally. He submitted that the prosecution, in such circumstances, had been unable to exclude the possibility that it was B B Kwan who had tipped off Peter SIU.

31. Mr McWalters, on the other hand, submitted that though Peter SIU was unable to tell the exact time the events happened at the dinner, Peter SIU was able to say all these events did happen and his evidence had a ring of truth in it because it accorded with common sense. The Judge had this time element in the forefront of his mind when he considered Peter SIU's evidence. On the choice of PW10, Mr McWalters argued that the Judge's acceptance of his evidence was not in error because PW10 was able to say the message came between 8:00 p.m. to 8:30 p.m. by reference to the time he went off duty whereas PW11 was not able to fix the time by reference to any thing. He also submitted that there was no evidence to suggest that the complaint letter had gone to the IPIB or to both the PIIB and the IPIB. In addition B B Kwan himself said that he never knew that Peter SIU was involved in manufacturing pirated VCDs.

32. In our view, although the Judge was entitled to believe any witness and reject the evidence of other witnesses, in the present case it appears that he had preferred the evidence of PW10 which fitted in with the timing of the events according to the evidence of Peter SIU, and rejected that of PW11, without considering whether the inconsistency between their evidence might have been because the tip off could equally have come from B B Kwan, having regard to B B Kwan's relationship with Peter SIU, his attachment to the IPIB, his arrival at the dinner at 6:00 p.m. and the notes of the ICAC Officers making references to B B Kwan leaking information. On the timing of the events at the dinner, Peter SIU's evidence is so inconsistent with the undisputed evidence from the surveillance officers that it gives little support to the prosecution case. Where two prosecution witnesses are inconsistent in a crucial aspect of the case, in the absence of any sensible explanation resolving such material inconsistency, the doubt should usually be resolved in favour of the defendant. This principle must be applicable in the present case where the evidence of PW11 fits in with the case of the applicant and evidence of PW10 accords with the case according to Peter SIU. In these circumstances, the inference that the applicant tipped off Peter SIU was not the only inference that could be drawn.

33. In our view, the prosecution case on the 2nd and 3rd charges is beset by a number of weaknesses which we have attempted to address in this judgment and these have raised doubts which have caused us anxiety. In all the circumstances, we have concluded that there is a lurking doubt so far as the convictions on charges 2 and 3 are concerned. We are mindful of the caution we need to take in applying the lurking doubt test and must be cautious in imposing our subjective feelings for the conclusion reached by the Judge who had heard and seen the witnesses and assessed credibility. But, so far as these two charges are concerned, we think that the verdicts cannot be regarded as safe or satisfactory and that, accordingly they should not be allowed to stand.

34. As regards the 1st charge, the evidence of Peter SIU was clear and there was nothing to contradict his evidence which the Judge accepted. It was a separate incident, not dependent on the evidence of the ICAC officers, the notes, the surveillance and PW10 and it took place more than a month earlier. The death of the sister of Peter SIU is not inconsistent with the evidence of the loan. There was independent evidence of the meeting between the applicant and Peter SIU on 20 March 1998 and that the money was drawn from the bank by Peter SIU during that meeting, though not as regards passing the money to the applicant. The suggestion that the money was withdrawn for funeral expenses was not supported by evidence. The Judge was entitled to conclude it was drawn for the purposes of making a loan to the applicant. This conviction cannot be disturbed.

35. We accordingly treat the application for leave to appeal as the hearing of the appeal itself. We allow the appeal against conviction in part and in so far as the convictions on the 2nd and 3rd charges, these convictions are quashed and the sentences thereon set aside. The conviction on the 1st charge and the sentence thereon remain to stand.

Representation:

Remarks:
Appeal by the Appellant to Court of Final Appeal. Appeal allowed. Please refer to the Appeal Judgment FACC000004/2000.