HKSAR v. WONG KAM KEUNG

FAMC No 62 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 62 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO 71 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ (Delivering the reasons of the Appeal Committee):

Introduction

1. It was an agreed fact that between May 2011 and 15 December 2012 (when the operation ended), PW1 infiltrated a triad society in an undercover operation.  For the present purpose, it is sufficient to note that PW1 gave evidence in 3 prosecutions[1] arising out of his undercover operation.  In all these cases, the credibility and reliability of PW1 was critical to the prosecution. 

2. The applicant was charged with and convicted of the offence of “acting as a member of a triad society” contrary to s 20(2) of the Societies Ordinance, Cap 151 in one such prosecution, the subject of the instant application.  In the other 2, insofar as the prosecution depended solely on PW1’s factual evidence the defendants were acquitted.  One of these acquittals took place before the applicant’s trial and the other, after the conclusion of the trial but before the hearing of his application for leave to appeal which was heard before Deputy Judge McMahon.

3. At the defendant’s trial, the magistrate permitted PW1 to be cross-examined on the acquittal in DCCC 654/2013.  The learned magistrate was of the view that the “acquittal involved a finding that the judge did not believe PW1’s evidence.”  In other words, it affected the credibility of PW1.  However, notwithstanding the cross-examination, she found PW1 to be a credible and reliable witness and convicted the applicant.  On appeal before Deputy Judge McMahon, the applicant applied to be admitted as new evidence the acquittal in ESCC3219/2013 under s 83V(1) of the Criminal Procedure Ordinance, Cap 221 because it was necessary or expedient in the interest of justice to do so.  The purpose of the new evidence was to show that PW1 was not a reliable witness because he had been disbelieved by the magistrate in ESCC3219/2013. This went to the only ground which is relevant to this application, namely, that the magistrate was wrong to rely on PW1 as a reliable witness as he had been disbelieved in 2 prosecutions arising out of the same undercover operation.[2] Since the acquittal in ESCC3219/2013 took place after the trial, its admissibility fell to be determined on appeal.  If the acquittal was admissible, the judge should either deal with such new evidence by way of a re-hearing or order a new trial.  Thus, even if the acquittal was admissible it by no means followed that the applicant would be acquitted.

This application

4. Cross-examination as to discreditable acts is widely allowed, but the cross-examination must be relevant.  In HKSAR v Wong Sau Ming [3],Chief Justice Li said:

“32. In principle, in order to satisfy the test of relevance, cross-examination as to credit on the ground of veracity by reference to an acquittal in an earlier case should only be permitted where the following threshold requirements are met: It must clearly be established that:

(1) The verdict of acquittal in the previous case involved a finding by the court that the witness in question had lied (or which amounts to the same thing, that the court had disbelieved the witness); and

(2)   The circumstances of the previous case are of such a kind when compared to those in the instant case and the previous finding is not so remote in time that the finding of lying in the previous case would materially affect the court’s assessment of the witness’s veracity in the instant case.  Unless these requirements are satisfied, cross-examination by reference to the acquittal in the previous case should not be permitted.”

5. The learned Deputy Judge said :

“21. In my view, the statement by the Chief Justice, the rest of the court apparently agreeing, that there was no difference between a court disbelieving a witness and that court finding that the witness had lied must be looked at in the context of the whole of the judgment.

22.  It is, in my view, clear from the reasoning of the judgment and the approach to the issue and the subsequent analysis that the principles set out are restricted in their operation to a finding, however that is expressed or whatever language is used, that the witness has lied. In my view, the Chief Justice in using the phraseology ‘had lied (or which amounted to the same thing, that the court had disbelieved the witness)’ was simply saying that a finding that a witness had lied could be expressed in different ways.  A court rarely states that a witness has lied.  Findings of that sort are usually expressed in less blunt language, but the finding however expressed must be, effectively, that the witness had lied.”

6. The learned Deputy Judge held that he should not admit the new evidence unless the “findings would have been, in principle, admissible as evidence for the purpose of cross-examining (PW1).”[4]  Deputy Judge McMahon was of the view that PW1 had not been disbelieved in the relevant sense and he refused to admit the evidence of the acquittal and dismissed the application for leave to appeal.  Moreover, he took the view that the magistrate should not have allowed cross-examination on the acquittal in DCCC 654/2013 and it was irrelevant whether she was right in giving the acquittal no weight.

7. The applicant now applies for leave to appeal to this court and puts forward the following question of law as a question of great or general public importance:

“Does the test for the admissibility of evidence in the cross‑examination of a witness relating to a prior occasion where the witness had given evidence and been disbelieved require a specific conclusion by the tribunal before whom that witness gave evidence a prior occasion that the witness had lied, or is a conclusion that the witness had been disbelieved sufficient assuming that such a conclusion is relevant to the issues of credibility of that witness in the present case.”

8. In HKSAR v Kong Wai Lun[5], the distinction between cross-examination as to credit and the admission of evidence to rebut a witness’s denial was clarified.  In the judgment of Lord Phillips [6] he repeated the general principles set out by Li CJ in Wong Sau Ming, which included the following passage:

“25. … In applying the test of relevance, the court should in its discretion usually permit questions in cross-examination as to credit if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony. Conversely, questions in cross-examination as to credit are usually not permissible if the truth of the imputation conveyed would not have any material impact on such opinion. …”

9. Lord Phillips went on to add,

“34. … Where a prosecution witness denies, under cross-examination as to credit, that he has been guilty of misconduct of a kind that would damage his credibility, evidence that unequivocally rebuts his denial, such as a finding by a court or tribunal to this effect, should normally be admitted for that purpose. Where, however, the truth of the allegation of misconduct made against the witness cannot be determined without what is, in effect, a separate trial relating to that issue, the finality rule will normally preclude the calling of evidence to challenge his denial.”

10. That is because:

“30. In a criminal trial the exploration of how a witness behaved on another occasion for the purpose of attacking his veracity is likely to distract the court, or the jury, from the primary issue of the behaviour of the defendant, to the detriment of the fairness of the trial…”

11. Hence,

“27. … evidence should not be admitted if its probative weight is insufficient to justify the complexity that it will add to the trial ...”

12. Mr Andrew Bruce SC who appeared for the applicant rightly accepted that  Kong Wai Lun has resolved the suggested question of great or general public importance.  However, he submitted that Deputy Judge McMahon’s refusal to admit the acquittal in ESCC 3219/2013 was a departure from the accepted norm such that leave to appeal should be granted on the substantial and grave injustice limb.  He also submitted that given the 2 acquittals the applicant should have been acquitted.  The substantial and grave injustice limb imposes a high hurdle and instances will be rare when this limb is satisfied.[7]

13. We turn to examine the three cases in which PW1 gave evidence in some detail.

The instant case

14. The applicant was convicted after trial before Ms Ho Wai Yang, Magistrate.  PW1, an undercover police officer who had infiltrated the triad society known as “Wanchai Sun Yee On”, provided the factual evidence on which the prosecution depended.

15. Briefly stated, PW1’s evidence was that on the day of the offence (13 October 2012), he went to a triad meeting at the Encore Club.  There, he saw the applicant greeted by the other men as “Big Brother” or “Gum Gor”.  According to PW1, the applicant after asking “have all the brothers of Sun Yee On arrived”, said “at this moment, things should be settled.  Tell the brothers to sit for a little longer before leaving.  Leave the bill to me.”

16. PW1 identified the applicant at an identification parade.  The applicant did not give evidence.  The reliability and credibility of PW1 was critical to the prosecution.  The applicant was convicted and sentenced to 12 months imprisonment.

17. At trial, counsel for the applicant (Mr Cheng Huan SC) was permitted to cross-examine PW1 concerning the acquittals in DCCC 654/2013.

DCCC 654/2013

18. In this case, PW1 had given evidence against 2 defendants who were acquitted in the District Court on triad related offences[8] arising out of the same undercover operation for which PW1’s evidence was critical to the prosecution.  D1 was acquitted of all charges.  D2 were convicted in respect of charges 1 and 4, the conspiracy to rob charges.  In convicting D2, Judge Gary Lam said:

“47. Based on the undercover’s[9] testimony and the admission/s made by D2, I am of the view that the Prosecution has proved Charges 1 and 4 [against D2] beyond reasonable doubt.”

19. However, the learned judge said:

“45. By looking at the undercover’s testimony as a whole, (it) seems that during the operation, those around him [at least the 2 defendants and Fei Chiu] had great trust in him. However, his attitude was so passive, apathetic and lack of enthusiasm, how could (he) gain the trust from the others? Regarding this question, I remain perplexed despite much thought. It is not that I suspect the undercover of having made things up, but in fact his testimony does contain a lot of (things that) do not make sense and lack persuasiveness. As a juror, I have doubts over the reliability of the undercover’s testimony. In my view, unless there is independent evidence[10], (it) seems unsafe just to rely on the one-sided story from the undercover.”

ESCC 3219/2013

20. In ESCC 3219/2013, two defendants were charged with the offence of claiming to be a member of a triad society.  PW1[11] was again the undercover police officer.  It was his evidence that on 23 June 2012 he met with the defendants outside a convenience store in Shaukeiwan. He was introduced to the defendants by their nicknames Ah Chun and Ah Lam.[12]  He said both of them told him that they were the younger brother of Ah Tsat, Wanchai Lo Sun.  The prosecution turned on the credibility and reliability of PW1.  PW1 identified the defendants at identification parades.  The magistrate regarded his evidence of identification as very strong.[13]  The defence case which has put to the PW1 was that the two defendants were present at the convenience store on the day of the offence, but PW1 had mistakenly identified as 204 and 205 respectively.  And they did not say to PW1 that he was the younger brother of Ah Tsat.

21. However, the magistrate acquitted the defendants because in a statement which was presumably provided for the purpose of the prosecution, taken from him by D/Sgt54944, he was recorded to have said that he was introduced to “a male, namely, a Chinese male Mok Ka Chun(transliteration), nicknamed Ah Chun(阿振) [hereinafter ‘P204’], aged about 24.”  The same formula was used in his reference to D2 in his statement.  He gave the name of D2, followed by his nickname and (hereinafter 205). It transpired from the evidence of PW1 that he did not know the names of the defendants[14], and the names were supplied to him by D/Sgt 54944, who said in evidence at transcript 157 N to Q “because, in this undercover operation, nearly one hundred people had to be arrested, and all of them were in their nicknames.  To facilitate the clerical work and in view of the possibility to handle plenty of trials, I told the undercover police officer the names, only the names, that is, this nickname belonged to this person.  The purpose was, as I mentioned earlier, to facilitate the one doing the clerical work.”  

22. At p 5 of the statement of finding the magistrate said:  

“… (he had) carefully considered Mr Chu’s submissions on this point including the relevant cross-examination and the answers. I am of the view that, under the situation that PW3 admitted he was not sure, he was still willing to -- assuming there was no coercion, he was still willing to put down the names of the two defendants as 204 and 205, his work was at least slapdash and flippant. Concerning his evidence on identification, I therefore have doubts on the reliability of his evidence on identification because he was willing to put down something he was not sure about as if it were true. … In view of this, even if PW3’s work was not slapdash or flippant, I still have doubts over his credibility although I would accept his evidence on other aspects, namely, his presence in such a gathering with triad implication together with Wah Chai who had a triad background, and meeting Tai Hau Tsai and other people…”

23. The learned magistrate concluded at p 6:

“… Although the admission of the two defendants in their records of interview was very suspicious, as I have said, the evidence on identification was quite strong and it was supported by the admission of the two defendants. However, since I have doubts over the credibility and the reliability of the evidence on identification of PW3…”

He acquitted both defendants.

This Application

24. In the instant case, despite the cross-examination of PW1 on the basis that he had been disbelieved in DCCC 654/2013, the magistrate was satisfied that PW1 was an honest and reliable witness.  She was also satisfied with PW1’s identification of the applicant. With respect, her decision was plainly right.  Deputy Judge McMahon was of the view that the learned magistrate should not have permitted cross-examination. With respect, Kong Wai Lun shows that her decision to permit cross-examination could be supported.  At trial, it is very much a matter for determination by the exercise of practical commonsense whether to allow cross-examination and if so, the length or extent of such cross-examination. 

25. Deputy Judge McMahon refused to admit the evidence of the acquittals in ESCC 3219/2013.  He held it must be established that those findings would have been, in principle, admissible as evidence for the purpose of cross-examining the undercover officer.  And that those findings would have been admissible only if they showed that PW1 had lied.

26. As Kong Wai Lun has made clear, the test for cross-examination on credit and the admission of evidence to contradict an answer given is different. Even so:

“questions in cross-examination as to credit are usually not permissible if the truth of the imputation conveyed would not have any material impact on (the court’s opinion on his evidence).”[15]

27. I have set out in some detail the statement of findings in ESCC 3219/2013.  It is clear that there was no finding that he had lied.[16] Read fairly, we believe the defendants had been given the benefit of a reasonable doubt.  As Mr Andrew Bruce SC rightly accepted, if in ESCC 3219/2013 the defendants had been convicted, it would not follow that their appeals would succeed.  Looking at the matter with practical commonsense, the acquittal in ESCC 3219/2013 should not have any material impact on the court’s view of PW1’s evidence.  Since this acquittal took place after the trial, the decision whether or not to allow cross-examination fell on the learned Deputy Judge.  The learned Deputy Judge’s decision pre-dated the decision in Kong Wai Lun, so he did not have the benefit of that decision.  On the basis of Kong Wai Lun, the learned Deputy Judge would have been entitled to refuse cross-examination if he took the view the verdict would have no material impact on the court’s opinion on the veracity of PW1.

28. The question we have to resolve is whether there has been a grave and substantial miscarriage of justice?  We believe the clear answer is no.  The acquittal in ESCC 3219/2013 shows that the magistrate refused to rely on the   sole evidence of PW1 about what the two defendants had told him.[17] But in the instant case, PW1 was concerned with a different event and there was really no room for mistake.  The applicant has not satisfied the high threshold of showing that there has been a substantial and grave miscarriage of justice.  The acquittals when looked at singly or together do not cast any doubt on the correctness of the applicant’s conviction.

29. For these reasons we have refused leave to appeal.