HKSAR v. TSOI SHING CHUEN AND OTHERS

Consolidated
DCCC 782, 858, 875, 878 & 995A/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 782, 858, 875, 878 AND 995A OF 2013

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REASONS FOR VERDICT

Procedural History

This is an eventful trial in terms of procedural matters.

2. The trial of this case did not involve all defendants listed above.  D6[1], D11[2] and D22[3] have pleaded guilty to the respective charges laid against them, and were sentenced by another judge in early 2014. 

3. D4, D12, D16 and D17 have pleaded guilty to the respective charges laid against them before me at the beginning of this trial.  D8 also pleaded guilty to the charges laid against him at a much later stage.  I will hear their mitigation and sentence them after delivery of my verdict.

4. At the 3^rd Pre-trial Review on 30 April 2014, by consent of prosecution and defence, I granted the severance of D18's trial owing to his health conditions.  D18 (CHEE Yan-fat) faces Charge 9 (Claiming to be a member of a triad society) on the original Charge Sheet.  In order to avoid confusion, I have asked prosecuting counsel to simply delete Charge 9 from the Charge Sheet and to keep the charge numbers as they are.

Change of prosecuting counsel

5. On the 1^st day of trial (7 May 2014), original prosecuting counsel, Mr. Maurice Tracy, informed me that he was medically unfit to prosecute this case; and Mr. Shaun Kelly has been briefed to take his place.  Mr. Kelly would be available on 19 May.  All defence counsel indicated that they were optimistic about finishing the trial on time despite the time lost.  With almost no choice, I allowed Mr. Tracy to discharge himself and adjourned the trial to 19 May.

Absence of defendants

6. D13 was absent on 7 May 2014; I issued a warrant of arrest against him on the same day.  He was re-arrested and brought before me on 26 May.  Time was taken to have counsel re-assigned to him and for counsel to take instructions.  The trial came to a halt.  Mr. IU was ready to proceed on 28 May.  Regrettably, D21, who had been absent since Day 1 and was without legal representation, was brought before me on that day.

7. D21 absconded long before the commencement of the trial; a warrant of arrest was issued against him back in December 2013.  He was re-arrested and brought before me on 28 May.  Time was taken to process his legal aid application and to have counsel assigned to him.  The trial came to a halt again.  Mr. LEUNG was ready to proceed on 30 May.

8. D1 was absent on 27 May; I issued a warrant of arrest against him on the same day. He was re-arrested and brought before me on 23 June.  By then, PW1 had already completed his evidence.  Owing to D1's absence, PW1 had to be recalled for cross-examination by Mr. FUNG on 24 June.

9. D8 was absent on 23 May; I issued a warrant of arrest against him on the same day.  He was re-arrested and brought before another judge on 11 July (as I was on leave).  He appeared before me on 28 July.  On 1 August, Mr. LEUNG informed me of D8's intention to plead guilty.  As parties required time to settle the Summary of Facts, I adjourned D8's plea to 14 August.  D8 pleaded guilty to Charges 5 and 8 on 14 August.

10. D10 was absent on 20 May; I issued a warrant of arrest against him on the same day.  He was re-arrested and brought before me on 26 August.  By then, the evidence has completed and the case was adjourned with directions given for parties to prepare and file their written submissions.  PW1 had to be recalled on 16 September for cross-examination by Mr. IU.

11. When the defendants mentioned above absconded, I ordered the trial to proceed in their absence according to the legal principles laid down in R v Jones [2003] 1 AC 1[4].  In any event, all of them were re-arrested before final submissions and eventually represented by counsel.  In other words, all defendants involved in this trial had legal representation.

Change of dates for final submissions and delivery of verdict

12. This case was set down for trial from 7 May to 3 July 2014 (40 days).  Despite the loss of time as a result of changing prosecuting counsel and absent defendants, the evidence was completed on 4 July.  On that day, I gave directions for the prosecution to file its written submissions on or before 25 July; and defence, on or before 8 August.  I adjourned the case to 14 August for final submissions.  It was also agreed by all parties that 16 September was the tentative date for delivery of verdict.

13. I went on leave from 7 to 27 July.

14. D8 was re-arrested and brought before another judge on 11 July.  The matter was adjourned to 28 July before me for mention.  I dealt with D8 as described in paragraph 9 above.  Mr. Kelly also informed me on 28 July that he was ill in the preceding 10 days, thus unable to comply with the deadline for filing his written submissions.  I invited him to liaise with defence and to propose a new schedule for all the landmark dates.

15. In his letter dated 12 August 2014, Mr. Kelly proposed that he would file his written submissions by 14 August; whereas defence should file theirs by 29 August.  The original proposed date for verdict (16 September) would be used for final submissions instead.  I approved Mr. Kelly's proposal and defence agreed to the landmark dates.

16. In the meantime, D10 was re-arrested and brought before me on 26 August.  On 2 September, he was represented by Mr. IU.  Mr. IU applied to recall PW1 on 16 September for cross-examination, to which Mr. Kelly did not object in the interest of justice.  I granted Mr. IU's application.

17. The No.8 Typhoon Signal was in effect in the morning on 16 September.  All court hearings did not resume until 2:30 pm that day.  Despite the loss of half a court day, Mr. IU finished his additional cross-examination of PW1 and all counsel completed their final submissions in that afternoon.  After a lengthy consultation of counsel's diaries, I adjourned the case to 3 November for verdict.

The Charges

18. This trial only concerns D1, D2, D3, D5, D7, D9, D10, D13, D14, D15, D19, D20 and D21 in respect of Charges 1 to 8 only.  The table below sets out which charge concerns which defendant(s) :-

Charges	Offences	Defendants
1	Acting as a member of a triad society	D1 only
2	Inviting a person to become a member of a triad society	D2 only
3	Conspiracy to commit criminal damage	D1, D3 and D5 (D4 and D22 pleaded guilty)
4	Conspiracy to commit criminal damage	D1, D3 and D5 (D4 pleaded guilty)
5	Conspiracy to commit common assault	D1, D3, and D7 (D6 and D8 pleaded guilty)
6	Acting as a member of a triad society	D1, D9, D10 and D13 (D6, D11 and D12 pleaded guilty)
7	Acting as a member of a triad society	D1, D3, D10, D14, D15, D19 and D20 (D16 pleaded guilty; D12 and D17 left in court file)
8	Acting as a member of a triad society	D1 and D21 (D8 and D17 pleaded guilty)

The Prosecution Case

Background

19. This case originates from an undercover operation.  The evidence came primarily from PW1 (PC 7480).

20. PW1 joined the Police Force in March 2007.  From April 2011 to January 2013, PW1 was assigned to be an undercover agent (using the name "Ah Chi") to infiltrate into triad societies for the purpose of collecting intelligence and evidence of criminal activities.

21. PW2 (Sgt. 52011) was PW1's handler.  He was responsible for monitoring the activities of PW1 as an undercover agent on a daily basis.  PW2 had custody of the 2 Occurrence Books:  one is PW1's daily log (referred to as the "OB" throughout the trial); and the 2^nd one, a record of exhibits collected by PW1 (referred to as the "Exhibits OB" throughout the trial).  PW2 would bring both OBs to the "safe house" for PW1 to record the details therein.

22. The "safe house" was the place at which PWs 1 and 2 met on a daily basis.  PW1 did not reside at the "safe house".  He resided at another location during the undercover operation.

23. The identity of each defendant on trial is not in dispute.  Defence accepts that PW1 has correctly identified the respective defendant(s) in each charge.  In fact, all of them admitted presence at the scene of each offence.

Charge 1 (against D1)

24. On 22 May 2012, PW1 received a phone call from "Fei Gor" （飛哥；D2）.  PW1 did not answer, but called D2 back.  They talked about buying and selling mobile phones.  D2 asked PW1 to meet him in Mongkok about 4:00 pm.

25. Later, D2 phoned PW1 again. He told PW1 "Tonight, I will arrange you to meet my  'Lo Biu'[5] （老表）and 'Seh Gor' （蛇哥；D1）for a meal."

26. PW1 later met up with D2 in Mongkok.  D2 said to PW1 "I don't know why you follow 'Fei Fai' （肥輝）.  Why don't you follow me.  No,why don't you follow 'Seh Gor' (D1).  I will tell 'Seh Gor' later on." As they were walking around in Mongkok, D2 said to PW1 "Later on I will help you ask 'Seh Gor' (D1) to accept you.  You will become my 'yellow paper brother'[6] （黃紙兄弟）."

27. PW1 and D2 went to a hotpot restaurant in Mongkok.  D2 made a phone call.  Afterwards, D2 asked PW1 if PW1 had a red packet with him.  D2 somehow found a red packet and asked PW1 to put $36.6 inside and hand it to "Seh Gor" (D1) later.

28. About 8:30 pm, D1 came to the restaurant.  D1 said to PW1 "Fei Chai（飛仔；meaning D2）has already told me.  There won't be any problem regarding me accepting you."  In D1's presence, D2 said to PW1 "Ah Chi, you may put $36.6 into the red packet."  PW1 then went to the washroom and put $36.6 in the red packet.

29. Afterwards, D2 said to PW1 "You give the red packet to Seh Gor (D1) and say to him 'Seh Gor, I would like to follow you'."  PW1 did so.  D1 said "Alright".  He took the money out and returned the empty red packet to PW1. D2 then told PW1 that D1 would give PW1 a briefing.  D1 said to PW1 "What matters most is we are all brothers, and we shouldn't take actions against fellow brothers.  If any brother is in trouble, we need to help out.  Don't ask other people for help if you come into trouble.  When I'm in trouble and when I need someone to help, don't disappear."  D1 also told PW1 to tell "Fei Fai" that PW1 would dump him and follow D1 instead.

30. A few hours later, PW1 went to the safe house.  He handed the empty red packet (Exhibit P1) to PW2.

Charge 2 (against D2)

31. Charge 2 shares the same facts with Charge 1.  In Charge 2, D2 invited PW1 to become a member of a triad society and a follower of D1.  PW1 has revealed in the early part of his evidence that D2 has once mentioned to him that D2 belongs to "14" (meaning the "14K" triad society).

Charge 3 (against D1, D3and D5)

32. Some time after 6:00 pm on 31 May 2012, upon D1's instructions,  PW1, "Ah Fung" （阿鋒； D3）and a male named "Ho Yin" arrived at Room 3901, Tsz Kwai House, Kwai Chung Estate, the residence of "Doh Ba" （刀疤； D22, who has pleaded guilty to this charge）.  When they arrived, D1, "Sai B" （細B； D6）and a female were already in the flat.

33. D1 took out 2 pieces of paper.  One piece read "Room 1706, Kwai Yan House, Kwai Fong Estate.  7-9 pm.  No password."  The 2^nd piece read "Flat E, 28/F, Block 15, Riviera Gardens, Tsuen Wan.  7-9 pm."  The 1^st piece of paper was given to D3; and the 2^nd piece, "Ho Yin".

34. D1 said to everyone present "Paint needs to be splashed at these 2 units. After it was done, there would be $1,000.  But when the work is being done, it has to be a group of 2 at each place.  One person takes photos and the other splashes the paint.  What matters most is to splash the paint at the same time.  When you have arrived, call the other side.  Your action needs to correspond with each other and has to be done simultaneously."  D1 also said "The paint is now with 'Doh Ba' (D22).  He is on the 31/F. 'Doh Ba' also said he would do it."

35. D3 told D1 that he wanted to be partner with PW1.  "Sai B" (D6) did not want to be partner with "Doh Ba" (D22), so D6 did not do it.

36. D3, "Ho Yin" and PW1 left Room 3901 to go to Room 3107, Hui Kwai House[7] in the same estate to meet up with D22.  Whilst waiting for the elevator, D1 came out to the lift lobby to ask if they had any money.  He then gave "Ho Yin" and PW1 each $200.  When they reached the Ground Floor of Hui Kwai House, D3 told PW1 that he would splash the paint and PW1 would take photos. D3 also told PW1 that he had no money, so PW1 gave him $100.

37. After obtaining paint from D22, PW1 and D3 went to the Kwai Fong Estate address and waited at the staircase on the 17^th Floor of Kwai Yan House.  Upon receiving a phone call from "Ho Yin" signalling them to take action, D3 splashed the paint on the door of Room 1706 and PW1 recorded the incident using his cell phone.

38. Later on in the same evening, D3, PW1 and "Ho Yin" went to a Thai restaurant in Kowloon City to meet "Kit Gor" （傑哥； D4, who has pleaded guilty to this charge）.  D4 asked them about the results of the paint-splashing operation.  "Ho Yin" said he had mistakenly splashed the paint on the unit next to the targeted one.  D3 and PW1 reported that they had recorded footage of their action.  D4 then took them to see "Keung Gor" （強哥； D5）.  D4 told PW1 to transmit the video footage to D5.  After viewing PW1's footage, D5 said to them "Thank you, brothers.  Very good.  Much obliged.  There will be more to come."

39. About 3:00 am on 1 June 2012, PW1 handed over to PW2 one of the $100 notes (Exhibit P2) given to him by D1.

40. In the evening on 1 June, D1 went to Room 3107, Hui Kwai House at the request of D3.  There D1 said to PW1 "Yesterday's (money) hasn't been given to you yet."  D1 then gave PW1 three $100 notes saying that they were PW1's reward for the paint-splashing job.  Later on, PW1 passed the three $100 notes (Exhibit P3) to PW2.

Charge 4 (against D1, D3 and D5)

41. Charge 4 can be regarded as a sequel to Charge 3.

42. In the afternoon on 12 June 2012, PW1 went to Room 3107, Hui Kwai House where he joined D3 and "Ho Yin".  About 5:00 pm, "Ho Yin" woke up from his sleep and made a phone call (allegedly to D1).  PW1 heard "Ho Yin" say the following:

You know what happened to Dai Kit's thing.

But last time, Ah Chi (PW1) and Ah Fung (D3) went to Kwai Yan House, I suppose their action was exposed.

Should there be a swap this time?

Oh, I know. I will tell them.

Thereafter, "Ho Yin" sent a text message to PW1, which read:

Room 1706, Kwai Yan House, Kwai Fong Estate

28E, Block 15, Riviera Gardens

Passcodefor Gate 3216

43. About 6:30 pm, PW1 left Room 3107 to go shopping.  Later, he received a phone call from D3 telling him that "Ho Yin" had asked PW1 and D3 to buy paint first, but D3 did not have any money.  Therefore, D3 asked PW1 to buy paint and gloves.  PW1 then phoned "Ho Yin" telling him that he did not have any money either.  "Ho Yin" told PW1 that he was busy and could not come.  He gave D4's phone number to PW1 and asked PW1 to call D4 (who has pleaded guilty to this charge) to ask for money.

44. PW1 called D4.  D4 asked PW1 if he had any account number with the Bank of China.  PW1 replied in the negative.  D4 told PW1 that there was no need to buy so much paint; within $100 would be enough.  D4 also told PW1 to buy red paint and that the splashing act must be recorded.  Furthermore, the action time must be between 7 to 9 pm; and both acts must correspond with each other in terms of timing.

45. PW1 went to a hardware store in Kwai Chung.  He bought 1 can of red ceramic paint; 1 bottle of turpentine; and 2 pairs of gloves.  The total price was $79 (see Exhibit P6).  PW1 took all the items back to Room 3107, Hui Kwai House.  He diluted the paint and distributed the paint to D3 and "Ho Yin".

46. PW1 and D3 went to the targeted flat at Riviera Gardens.  D3 splashed the paint and PW1 used his mobile phone to record D3's act.

47. As PW1 and D3 were leaving, PW1 received a phone call from "Ho Yin" requesting for assistance.  PW1 and D3 then went to Kwai Yan House.  Upon arrival, D3 asked PW1 to act as a look-out.  PW1 remained at the Ground Floor. Later, "Ho Yin" phoned PW1 telling PW1 that his action was exposed. PW1 saw 2 males chasing after "Ho Yin" at Ground Floor, Kwai Yan House.

48. Some time later, PW1 met up with D3 at a convenience store.  D3 told PW1 that he had failed to record the splashing act of "Ho Yin".  PW1 phoned D1 to report what had happened.  D1 told him to leave as soon as possible.

49. PW1 also received a phone call from D4.  He asked PW1 what had happened and PW1 relayed the events to him.  D4 asked PW1 and D3 to meet him at a Thai restaurant in Kowloon City.  They arrived outside the restaurant about 10:25 pm.

50. PW1, D3 and D4 then went to Lok Fu Shopping Centre from Kowloon City by taxi.  In taxi, D4 asked PW1 more questions about "Ho Yin" being chased by 2 males.  PW1 also received a phone call from D1.  D1 asked PW1 to pass the phone to D4.  After the phone call, D4 said "Go to Lok Fu to check the footage."

51. Upon arriving at Lok Fu, PW1, D3 and D4 went to a Chinese restaurant to meet D5.  D5 asked PW1 and D3 to wait at the entrance.  D5 and D4 went into a room.  Later, D5 asked PW1 to transfer the video footage to him.  After viewing the video clip, D5 commented "Very good, this one."  D5 then asked what happened at Kwai Yan House.  PW1 explained that no video recording was made and "Ho Yin" was being chased by 2 males.  D5 said to PW1 "I'll try to tell the people up there that there is no video recording.  But what matters most is nothing happened to our brothers."

52. PW1 saw D5 passing $200 to D4.  D5 then asked PW1 "How much did it cost to buy the materials?"  PW1 replied "$79".  As PW1, D3 and D4 were leaving, D5 said to them "Thank you, brothers.  I hope nothing has happened to the brothers."  Later, D4 gave $100 (Exhibit P7) to PW1 and said it was for his travelling expenses.

53. About 11:20 in the same evening, PW1 received a phone call from D4 telling him to call D5.  PW1 called the number given by D4.  D5 answered the phone and asked PW1 details about the incident of "Ho Yin" being chased.

54. On 14 June 2012 (2 days after the paint-splashing incident), at Room 3107, Hui Kwai House, D1 gave $500 (Exhibit P8) to PW1 saying it was his reward for paint-splashing.  PW1 explained that he participated in the paint-splashing operation because he had already joined "14K" and D1 was his protector.

Charge 5 (against D1, D3 and D7)

55. About 4:20 pm on 18 June 2012, PW1 phoned D3.  D3 told PW1 that D1 had assigned a job to D3, D6 (who has pleaded guilty to this charge) and a girl.  The job was to go to someone's work place in Causeway Bay to take action.  PW1 then phoned D6 asking him if D3 had taken up a job.  D6 said yes and told PW1 to wait in Shamshuipo.

56. About 5:40 pm, PW1 received a phone call from D3.  D3 blamed PW1 for telling D6 that PW1 knew about this matter.  D3 said D1 had already accused him of telling people around about this matter.

57. About 6:35 pm, D3 phoned PW1 telling him to meet at D3's home in Shamshuipo.  About 6:50 pm, PW1 arrived.  He saw D3, D6 and a female "Mei Mei" (D7) there.

58. D3 explained to them that the job was to go to a jewellery shop located in the Basement of Times Square to look for a female, who worked there.  They should wait for the female to come out and use a shaver to shave her hair.  A video recording of the hair shaving had to be taken as well.  D6 said he already had the shaver ready.  D3 then took out a piece of paper, which was a photocopy of a photo depicting a 40-year-old male and a 30-year-old female.  D3 also took out another piece of paper which contained information about the target female.

59. D3 assigned tasks to each person.  D3 and D6 were responsible for shaving hair; and PW1 and D7, taking video footage of their action.  The 4 of them then took the MTR to Causeway Bay.  They went to different locations in Times Square and Causeway Bay until about 11:00 pm but failed to locate the target female.

60. The 4 of them then took a bus to leave Causeway Bay.  On the bus, D3 and D6 both told PW1 that D1 did not know PW1 had taken part in this job.  Thus, PW1 did not need to report the matter to D1.

61. About 4:30 pm on 21 June, PW1 received a phone call from D3 asking PW1 to go to Causeway Bay with him to take photos of the target female.  D3 also told PW1 that he had already informed D1 about PW1's involvement in this job and asked PW1 to have a word with D1 whether or not PW1 intended to help.

62. PW1 then called D1 telling D1 that he intended to do the job.  D1 said to PW1 "If you are not clear as to what to do later on, just ask D3."  He also asked PW1 to contact D3 on his own.  PW1 later informed D3 that he had told D1that he would do the job.

63. On 23 June, D3, D6 and PW1 tried to carry out the hair-shaving operation again.  This time, D8 (who has pleaded guilty to this charge) joined in and D7 was not present.  In the Basement of Times Square, D3 gave $100 (Exhibit P12), which allegedly came from D1, to PW1 as travelling expenses.  From 10:00 pm to 11:00 pm, they went to different locations in Times Square and Causeway Bay but failed to locate the target female.  The 4 of them took a bus to leave.

64. On the bus, D3 and D8 had an argument about D3's failure to spot the target female.  In the heat of their argument, D8 tried to hit D3's head with a hair shaver.  PW1 tried to protect D3 and warded off D8's attack with his left arm. The shaver landed on PW1's left forearm and was broken.  Later, PW1 took the broken shaver (Exhibit P11) from D3 telling D3 that he would try to fix it. 

65. About 6:00 pm on 24 June, PW1 received a call from D3.  D3 told PW1 that he was scolded by D1 for losing one of the photos of the target female.  D3 asked PW1 to call D1 to explain to D1 how the whole incident happened.  PW1 called D1 and explained to D1 that he last saw the photo (i.e. a photocopy of a photo) around 11:00 pm the previous day, and that he personally handed the photo to D6.  D1 said "What matters most now is to find out who has the photo."

66. Later on the same evening, PW1 joined D3, D6 and D8 in Causeway Bay again to carry out the hair-shaving operation.  Once more, D3 gave $100 (Exhibit P13), which allegedly came from D1, to PW1 as travelling expenses.  This time, D8 assigned tasks to everyone.  D8 was responsible for shaving the target's hair; PW1, taking photos; D3 and D6, assisting the party to escape.  From 9:45 pm to about 10:30 pm, they waited at different locations in Times Square but failed to locate the target female. 

67. Later, they decided to proceed to Homantin where the target resides.  They took a taxi from Causeway Bay to get there.  On the taxi, D8 took out a piece of paper which contained information about the target female.  PW1 had seen that piece of paper at D3's home before.

68. The group of 4 lingered around in the vicinity of the target's residence for about an hour.  Finally, D8 called the target's number from a phone booth pretending to be a wrong call.  After he hung up, D8 commented that the background of where the target was sounded too quiet.  He did not expect her being home so soon.  The 4 of them then took a taxi to Shamshuipo and parted.

Charge 6 (against D1, D9, D10 and D13)

69. In the early hours on 20 August 2012, D1, PW1, D6 (who has pleaded guilty to this charge), D9 （"Dai Mah Gor"; 大孖哥）, D10 ("Terry Gor"), D11 ("Ah Tin", who has pleaded guilty to this charge), D12 ("Ah Jim"; who has pleaded guilty to this charge) and a bald-headed male gathered at the main entrance of New Golden Cyber Cafe located in Shamshuipo.

70. D1 said to the group of people mentioned above "Dong Lo suffered a beating from Ah Poon for no reason.  Later on, we must locate the fuck face.  You guys need to give him a beating.  So many of us are standing here.  It's so fucking conspicuous.  Go down first."  Having heard what D1 said, the group went back down to the cyber cafe.  Later on, D13（"Sing Chai"; 星仔） arrived at the cyber cafe as well.

71. About 2:50 am, D1 told the group "Hey, we can go now."  PW1, D1, D6, D9, D10, D11, D12 and D13 left the cyber cafe together.  "Mak Dong Lo" and the bald-headed male followed too.

72. The group walked along Yen Chow Street towards Yee Kuk Street.  D1 ordered D13 to ask PW1 and D6 not to walk together in order not to be so conspicuous.  Later on, D9 also asked D6, D12, "Mak Dong Lo" and D10 not to huddle together in order not to be so conspicuous.  The group went to a suite situated at 13/F, Tak Cheong Building on Yee Kuk Street.

73. In the suite, a person who was believed to be "Ah Poon" was seen coming into the building on the CCTV system.  Having seen the person on the screen, D1 said "Ah Poon you fuck face did something to my follower.  I will definitely do something to you."  D1 asked PW1, D6, "Mak Dong Lo" and D12 to leave the suite together to look for "Ah Poon".  The group walked downstairs from the 13^th Floor to the Ground Floor.

74. On the way down, D1 said "Ah Poon" might have weapons with him, so he told the group to get some weapons just in case.  "Mak Dong Lo" and D12 each picked a mob stick from the staircase.  PW1 and D6 picked up metal rods. They went to the Ground Floor lift lobby but could not find "Ah Poon".  They returned to the suite.

75. In the suite, PW1 heard D1 talking on phone "Ah Poon, I have so many people here.  Who can you chop?  Do I have to call you Poon Gor when I walk by and see you?  It's alright that you did something to me.  What the fuck were you doing when you did something to my followers?"

76. About 4:00 am, D1 said to the people in the suite "Hey, you may leave separately."  PW1 saw D9, D10 and the bald-headed male leaving.  PW1 then left together with D11 and D12.

Charge 7 (against D1, D3, D10, D14, D15, D19 and D20)

77. About 9:45 pm on 26 October 2012, PW1 arrived at a unit situated at Shamshuipo Mansion located at Shek Kip Mei Street near Yee Kuk Street (D1's residence).  There, PW1 saw D1, D20（"Dai Sing"；大勝）, D19 （"Hak Chai"；黑仔）, D15 ("Michael") and 5 other persons.

78. PW1 heard D1 telling D19 "Hey, Hak Chai, the boss has arranged to go out to have a settlement talk.  The other party is people of Sing Wo[8]."  About 10:00 pm, D1 spoke to the people in the unit "Everyone should go to Sun Heung Yuen Restaurant at Kwei Lin Street.  There may be a fight.  But walk in different groups.  Don't be so conspicuous."  PW1, D20, D19 and 2 males walked to the restaurant as a group.  They sat down and ordered beverages.

79. Later, 5 more "brothers" arrived at the restaurant.  When D1 arrived, he told the group not to be so conspicuous in order to avoid being seen by the Police.  He told the group to go to New Golden Cyber Cafe at Un Chau Street. PW1 went there with D1, D20 and another male by taxi.

80. Upon arriving at the cyber cafe, D1 told PW1, D20 and the other male "Hey, listen.  Now the person of the other side is someone named 'Sor Lung' （傻龍）of 'Sui Fong'（水房[9]） ."

81. Later, PW1 was told that D1 wanted them to return to Sun Heung Yuen Restaurant.  PW1, D20, D19 and another male took a taxi to get there.  Upon arrival, PW1 phoned D1 informing him that they had reached the restaurant.  D1 told PW1 to look for someone named "Sor Lung" at Sun Heung Yuen.  That person is a figure of their rival society.  D1 asked PW1 to relay the same to D19.  PW1 did so.

82. Later, PW1 saw D3 at Kwei Lin Street near Kee Lung Street.  PW1 asked D3 "Oh, you are also here?"  D3 said he was informed of the situation. Subsequently, PW1 saw D1 and another male near the junction of Kee Lung Street and Kwei Lin Street.  D1 said to the group "When you see them, hit them."

83. At the entrance of Sun Heung Yuen, PW1 saw D10, D14 （"Gwai Gor"；鬼哥）, D15 and 2 other males.  All of them followed D1 walking on Kee Lung Street.  Later, D1 said to the group "Disperse and walk around.  When you see them, start the fight."  PW1, D3 and D14 then walked from Kee Lung Street to Pei Ho Street and turned into Tai Nan Street to look for "Sor Lung".

84. PW1 later bumped into D1, D12, D10, D19 and another male.  They were walking separately and observing.  The group followed D1 to his home.  At D1's home, PW1 overheard that the matter had been settled.

Charge 8 (against D1 and D21)

85. About 10:00 pm on 15 November 2012, PW1 phoned D3.  D3 told him to go to Garden Restaurant on Nathan Road to report to D1.  Upon arrival, PW1 did not go inside but phoned D1.  PW1 asked D1 if they were going to have a meal.  D1 said "Not having a meal, but blowing whistle to have a fight."  At that time, PW1 saw a male named "Siu Keung"（小強）.  PW1 told D1 that he saw "Siu Keung".  D1 asked PW1 and "Siu Keung" to wait for him.

86. Later, PW1 joined D8 (who has pleaded guilty to this charge) at a convenience store near Garden Restaurant.  D1, "Sei Ngan Mui"（四眼妹）, D17 (who has pleaded guilty to this charge) and D21 ("Uncle") joined them as well.  They then went to G/F, 484 Nathan Road （"Hung Sing Building"；鴻星大廈）.  There, D1 said to them "Now 'Ah Kay' wants to take 'Sei Ngan Mui' away.  But 'Har Gor' [10] （蝦哥）wants to support 'Ah Kay'.  Listen, later there may be a fight." 

87. D1, D8, D17, D21 and PW1 all went up to a flat situated at 8/F, Hung Sing Building.  In the flat, there were 3 unknown females, 2 unknown males. "Ah Kay" was there.  "Har Gor" was also present.  "Har Gor" said to D1 "Dai Seh （大蛇）, we are all 'number'[11]. You don't have to bring so many fucking people here."  D1 and "Har Gor" then went into a room for a chat.

88. About 10:35 pm, D1 came out of the room.  He handed his mobile phone to PW1 and asked PW1 to answer his phone calls.  Later, D1 told PW1 "The matter had already been settled."  The group then left the flat.  PW1 saw D1, D21 and "Sei Ngan Mui' getting on a taxi together and left.

89. The prosecution also called PW2 (Handler of PW1) to give evidence.  I need not repeat his evidence here since I will deal with it in the latter parts of my reasons.  PW3 (Sgt 49287) is the triad expert.  His opinions were basically not challenged by defence.  PWs 4 to 7 were called to prove the arrest and the results of the ID Parades of the absent defendants.  They were, however, all re-arrested and granted legal representation before final submissions.  Time spent on receiving the evidence of PWs 4 to 7 was completely wasted.

No Case Submissions

90. D10 was facing 2 charges (Charges 6 and 7).  He jumped bail on 20 May 2014.  He was re-arrested and brought before me on 26 August.  Upon Mr. IU's application, PW1 was recalled for cross-examination on 16 September.  After PW1 finished his evidence, Mr. IU submitted no case to answer for D10 in respect of both charges.

91. Mr. Kelly conceded that it was difficult to resist Mr. IU's no case submissions and did not oppose.

92. I therefore ruled no case to answer for D10 in respect of Charges 6 and 7 and dismissed both charges against him.

Defence Case

93. D1, D2, D3, D13, D14, D15, D20 and D21 elected not to give evidence or call any defence witnesses.  This is their right; I drew no adverse inference against them in this regard.

94. D5, D7, D9 and D19 elected to give evidence but did not call any defence witnesses.

D5's Evidence (Charges 3 and 4)

95. D5 stated that he handled valet parking for several restaurants in Kowloon City. D4 (who has pleaded guilty to both charges) was his valet parking colleague.

96. About 8:25 pm on 31 May 2012, D5 was on duty in Kowloon City as usual.  D4 came with 2 to 3 friends (including PW1) to D5's work place looking for D5.  D4 asked D5 to lend him a spare mobile phone for transferring some photos to show another person.  D5 took out a phone from the drawer and passed it to D4.  D4 handed the phone to PW1 and they walked away.  After a while, PW1 gave the phone to D4.

97. After D4's friends had left, D4 asked D5 if he could borrow the phone for 1 to 2 hours; D4 had to show some photos to someone.  D4 returned the phone to D5 before they went off work that evening.  Out of curiosity, D5 tried to look at what photos D4 had loaded onto his phone, but could not find any.  D5 thought they were deleted.

98. In the evening on 12 June 2012, D5 went to a banquet in a restaurant at Lok Fu. After 10:00 pm, D4 came to the restaurant with 2 to 3 friends (including PW1). D5 met them at the entrance of the restaurant.  D4 asked D5 if he could borrow the phone he lent D5 last time.  D4 said he had to transfer some photos to show others.

99. D5 passed the phone to D4, and D4 passed it to PW1.  D4 and PW1 then walked away.  After a while, PW1 returned the phone to D4.  D4 pulled D5 aside and asked D5 if he had money on him.  D5 replied that he only had several hundred dollars.  D4 asked to borrow $200 from D5.  D5 took out $200 from his trouser pocket.  D5 then saw D4 giving $100 to PW1.  D5 claimed he heard D4 telling PW1 that it was for PW1's travelling expenses.  D4 also asked D5 to lend him the phone for 1 to 2 hours. D5 told D4 to return the phone to him the following day instead of later on the same evening.  D4 then left with his friends.

100. D5 denied having made the utterances which PW1 alleged he had made.  And on both occasions, D5 was not aware that D4 and his friends were involved in a paint-splashing operation.

D7's Evidence (Charge 5)

101. D7 admitted that she knew D1, D3 and D6 prior to the alleged offence.  D7 claimed that 1 or 2 weeks before 18 June 2012, she went to a flat in Kwai Chung to play cards with a female friend.  Whilst D7 was playing cards, she received a phone call from her boyfriend.  She then went into a room to take the call.  When she was on the phone, D1 and D6 came into the room and started discussing something.

102. When D7 finished the call and was about to leave the room, D1 accused her having heard the contents of his discussion with D6.

103. In the afternoon on 18 June, D7's friend ("Ah Kay") asked D7 to go to her home to discuss something with D7.  D7 went there and saw D1, D3 and D6 in the flat.  Later on, D1 forced D7 to take part in attacking a female at Times Square by shaving her hair.  Out of fear for her own safety and the safety of her family members, D7 agreed to do what D1 told her.

104. D1 conducted a briefing about the attack and assigned tasks to each person.  D3 and D7 were responsible for taking photos.  D1 also took out a copy of a photograph depicting a couple aged 25-35 and containing information about the target female.

105. In short, D7 claimed that she was under duress to go to Causeway Bay together with D3 and D6 that evening.  She also claimed that PW1 was not present at Ah Kay's home and did not go to Times Square that evening.  Furthermore, the hair-shaving operation took place between 6:00 to 8:00 pm instead.

106. After 18 June, D7 tried to cut off contact with D1 and D6 by not answering their repeated phone calls.  D7 did not participate in any of the subsequent operation in locating the target female.

D9's Evidence (Charge 6)

107. D9 claimed that before he went to New Golden Cyber Cafe on 20 August 2012, he was at a pub drinking beer with friends for about 2 hours.  He called D1 asking him to come out for night snack.  D1 asked him to go to the cyber cafe first.

108. When D9 arrived at the cyber cafe, he said he was not sober.  He has no recollection talking to D1 there.  D9 could only recall "Terry" helping me to get to D1's home.  Upon reaching D1's home, D9 saw a bed and was very drunk.  He slept on the bed and woke up around 8 o'clock in the morning.  D9 admitted that his nickname is "Dai Mah"（大孖）.

D19's Evidence (Charge 7)

109. D19 admitted that he was at D1's residence on 26 October because he needed a place to stay the night before.  D19 said D1 is his "sworn brother" （契哥）.

110. D19 also admitted that he went to Sun Heung Yuen Restaurant to have a meal.  He and D1 and a few friends sat at the same table.  After the meal, D1 suggested to go to New Golden to play video games.  D19 said he has no knowledge of computer and seldom goes to a cyber cafe.  He did not go into New Golden.  Instead he went to the mall upstairs to look at things.

111. Later on, D1 suggested looking at the night stalls, so they travelled towards Sun Heung Yuen by taxi.  After alighting from taxi, D19 walked around the night stalls. Eventually, they all returned to D1's home.

Assessment and Analysis of Evidence

112. The burden of proof is on the prosecution to prove each element of each offence beyond reasonable doubt.

113. I have reminded myself that I need to consider the evidence against each defendant for each charge separately and independently.  Any admissions made by a defendant can only be used against that defendant.  I have disregarded all hearsay evidence.  What PW1 has heard from A about what B has said or done is not evidence against B. In this case, there is no need to invoke the co-conspirator's rule.

114. I have carefully considered the evidence of all witnesses (including the evidence of D5, D7, D9 and D19).  I have also observed their demeanours in the witness box.

115. D5 has no criminal record related to triad.  D7 has a clear record.  I have directed myself accordingly.

PW1's Evidence

116. Both the prosecution and defence accept that the crux of this case is the credibility and reliability of PW1's evidence.  I have borne in mind that the evidence against each defendant for each charge is a "one-against-one" situation.  I understand that the allegations made by PW1 against each defendant are easy to fabricate but difficult to rebut.

117. In relation to cases which involve a "one-against-one" situation, Mills-Owens J commented in LAM Tin-chung v The Queen [1970] HKLR 105 "Certainly there may be cases where the tribunal is left with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes." (1^st paragraph at p,107)

118.  Beeson J in HKSAR v Van Huijstee HCMA 459/2010[12] also held "Effectively, this was a case of one witness against another.  In such cases it is not always possible for a court to set out reasons which explain or justify the court's failure or refusal to accept the evidence of one or other witness.  In some cases the court can do little more than accept the evidence of one witness and not the other.  That is the position here."  (paragraph 48)

119. When assessing the credibility and reliability of PW1's evidence as well as his conduct and discipline as an undercover agent, I have borne in mind the criticisms against him made by each defence counsel.

120. As an undercover agent, PW1's primary duty was to collect intelligence and evidence of criminal activities.  I understand that he could only record the events and people he encountered each day on the OB at the end of that day.  He has frankly admitted that he could only rely on his memory to remember which person had said or done what each day and then recorded the same on the OB in one go at night.  As a juror, I do not find it an impossible task.  Of course, PW1 may not be able to remember fully all matters and events.  I believe he had recorded on the OB faithfully and completely what he could recall.  I accept that the OB may not be a complete record of what took place each day, but I believe, without a doubt, that what was recorded on the OB had actually happened and that such records are accurate.  For none but one reason, it was PW1's duty.  I reject the suggestion by defence that PW1 fabricated evidence to satisfy his superior or to make himself look effective.

121. Mr. FUNG criticized PW1 for having intentionally made his evidence unsupported.  Mr. FUNG submitted that PW1 had the means to do so (i.e. having a mobile phone which could record video footage, take still photographs and make audio records), but chose not to do it in order to make his evidence difficult to rebut.

122. In my view, as an undercover agent, PW1 knew best what he should and could do in different situations.  As a juror, I have reminded myself not to be affected by the mass media on the image of an undercover agent or things which they are capable of doing.  PW1 has stated clearly in his evidence that one of his concerns (if not the most important one) was his personal safety and preserving the trust on him by others.  I accept that he could not be overly aggressive in obtaining supporting evidence.  What seems to be easy and as a matter of course to Mr. FUNG might not have been perceived as feasible or something wise to do by PW1.  I can appreciate PW1's need to be cautious at all times.  Carrying a mobile phone which contains photos, video footage or audio records of people around him (even just for the day until he returned to the safe house) would certainly increase the risk of his personal safety and his true identity being revealed.

123. Mr. FUNG also criticized the reasonableness of the events described by PW1 (whether a particular defendant would do or say something in certain circumstances).  In my view, those matters highlighted in Mr. FUNG's written submissions are not so unreasonable.  Human behaviour is sometimes difficult to predict or explain.  Such "unreasonableness" in certain defendants' behaviour in fact enhances the credibility of PW1's evidence.  I accept without reservation PW1's account of all the events.

124. Mr. KWAN criticized PW1 and PW2 for not preserving the video footage in relation to Charges 3 and 4 as well as PW1's mobile phone itself.  I accept that both PW1 and PW2 should have been more sensitive about preserving evidence.  Perhaps they have focused too much on the entries contained in the OB.  On the other hand, failing to preserve evidence or having lost sight of the importance of preserving evidence do not leave me a doubt on PW1's credibility.  The absence of supporting evidence does not mean the events did not take place.  In this case, I have no reason to suspect fabrication of evidence against any defendant by PW1.

125. Mr. IU attacked PW1 heavily on the expenses he incurred and the reimbursement claims he made as an undercover agent.  Mr. IU also questioned PW1 extensively about the income generated from PW1's hawking.  It was suggested that PW1 had a motive to lie about the alleged criminal activities of the defendants in order to justify all the expenses.  Furthermore, it was suggested that PW1 had a motive to fabricate evidence against the defendants in order to sustain the undercover operation for his own financial gain.

126. As a juror, I take the view that reimbursement claims and the bank account which held the income from hawking would be the last things on PW1's mind during and after the undercover operation.  I am sure that as an undercover agent, PW1 had more important things to worry about than obtaining receipts for his taxi journeys and making reimbursement claims for taxi fares or video games expenses.

127. In any event, it is clear from PW2's evidence that proper records were kept in respect of claims made and payments received by PW1.  Even the passbook for the bank account which held the income from hawking has all along been in PW2's custody.

128. Mr. IU criticized the lack of call records to support PW1's evidence.  Mr. IU criticized the lack of records on the instructions given by PW2 to PW1 and briefings between the 2 of them.  Again, perhaps Mr. IU's comments may be helpful suggestions on better police procedure, but I do not see how the lack of such records cast doubts on PW1's or PW2's credibility.  With the benefit of hindsight, there are always ways to improve.  But we are not asking for perfection or flawless operations.

129. Other matters such as actions taken to protect the intended victims in Charges 5 and 6 as well as the inadvertent mistakes made in the OB and Exhibits OB simply do not affect the credibility of PW1's evidence.  Mr. IU also complained that the entries in the OB are too good to be true since they are well-written with hardly any writing errors.  Mr. IU submitted that those entries are not contemporaneous records and they bear the hallmark of copying afterwards.  I have not had sight of any part of the OB (as it was not produced).  As a juror, I do not see any force in Mr. IU's submissions.  There are many reasons other than fabrication which can explain a well-written OB.  I need not speculate on this matter.  There is simply no evidence to suggest fabrication of OB entries by PW1.

130. Based on the reasons stated above, I find PW1 honest and reliable.  He is a witness of truth and I accept his evidence entirely.

D5's Evidence

131. D5's evidence simply defies common sense.  According to D5, D4 wanted to borrow a mobile phone to transfer some photos.  In other words, the photos must have been in D4's possession (electronically or otherwise).  The phone D5 allegedly lent to D4; however, clearly did not contain the photos which D4 intended to transfer.  There is simply no such evidence.  In order to use D5's phone to transfer photos, those photos had to be loaded onto D5's phone first.  As a juror, 4 words immediately came to my mind―"It doesn't make sense".

132. On this basis alone, I reject D5's evidence without hesitation.

D7's Evidence

133. D7 claimed that she went to Times Square with D3 and D6 under duress.  She said she was afraid if she did not comply with D1's request, D1 would hurt her and her family.  On the other hand, D7 admitted that D1 did not actually uttered those specific threats, but she felt in her mind that owing to D1's character, those threats would be that consequences of refusal to participate in the hair-shaving operation.

134. As a juror, I do not find D7 under duress in the evening on 18 June 2012.  There is no evidence showing D1 knew where D7 lived or who her family members are.  One would ask rhetorically "How could D1 harm D7 or her family members?"  Furthermore, no one was stopping her from leaving the MTR or Times Square.  She could have escaped any time at either place.  In fact, neither D3 nor D6 had told her she could not leave or what the consequences would be if she had left.

135. I find that D7 had participated in the hair-shaving operation on 18 June 2012 at her freewill and in the ways described by PW1.

D9's Evidence

136. D9 claimed that he was not sober upon arriving at the cyber cafe.  Except PW1's denial that D9 was drunk, there is no other evidence to rebut D9's allegation.  PW1 admitted that he did not pay attention to what D9 did upon returning to D1's home.  Furthermore, D9 did not go downstairs with PW1 and others to look for "Ah Poon".  The benefit of doubt must be given to D9.  I find D9's evidence may be true.

D19's Evidence

137. D19 admitted that in the evening on 26 October 2012, D1 asked him to go to Sun Heung Yuen Restaurant and New Golden Cyber Cafe.  Finally, D1 asked him to walk through the night stalls.  D19 went to such places with D1's group of people.  As a juror, I do not accept D19's claim that D1 asked his group of people to go here and there throughout the evening was for innocent purposes.  More importantly, the group followed D1's orders like an army.  The story given by D19 defies common sense.  I reject his evidence.

Conclusion

138. Based on the evidence of PW1, I am satisfied that the prosecution has proved each charge against the following defendant(s) beyond reasonable doubt.  Accordingly, I find :-

(i) D1, guilty of Charge 1.

(ii) D2, guilty of Charge 2.

(iii) D1, D3 and D5, guilty of Charge 3.

(iv) D1, D3 and D5, guilty of Charge 4.

(v) D1, D3 and D7, guilty of Charge 5. Regarding D7, her subsequent withdrawal from the conspiracy only goes to mitigation; it does not relieve her from criminal liability for what she had done on 18 June 2012.

(vi) D1 and D13, guilty of Charge 6; D9, NOT guilty of Charge 6. Regarding D13, although he was the last person in D1's group to arrive at the cyber cafe and he did not take part in the search for "Ah Poon" at Tak Cheong Building, at the street, D1 told him to tell the group to split up and not to be so conspicuous, and he did. In my view, these words would not have come out from someone innocent. As a juror, I am satisfied that D1 organized a group to seek revenge against "Ah Poon" in a triad way and to show force. D13 knew the purpose of that group and was ready, able and willing to assist.

(vii) D1, D3, D19 and D20 guilty of Charge 7; D14 and D15 NOT guilty of Charge 7. Regarding D14 and D15, there is insufficient evidence proving what they did and where they were at the critical moments. The fact that D1's opposite party suddenly changed from the people of "Sing Wo" to someone of "Sui Fong" does not cast doubt on PW1's credibility. The opposite parties being "Sing Wo" and "Sui Fong" are not mutually exclusive. It is possible that the boss having a settlement talk with "Sing Wo" and the search of "Sor Lung" of "Sui Fong" were 2 separate matters or that after clarification, D1 discovered that their target was "Sor Lung" of "Sui Fong" instead of the people of "Sing Wo".

(viii) D1 guilty of Charge 8; D21 NOT guilty of Charge 8. Regarding D21, there is insufficient evidence proving why he was present at the scene. It is possible that he might have been there to settle the matter of his daughter with D1.