HKSAR v. WONG KWAN FUK AND ANOTHER

CACC119/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 119 OF 2009

(ON APPEAL FROM HCCC NO. 254 OF 2007)

---------------------------

BETWEEN

---------------------------

-------------------------------------------

REASONS FOR JUDGMENT

-------------------------------------------

McMahon J (giving judgment of the Court) :

1.  The applicants were tried jointly before Wright J and a jury on a numbers of charges arising out of an alleged conspiracy with others to rob the grave of the deceased wife of a prominent Hong Kong businessman and demand a ransom from him for the return of her remains.  Both applicants were found not guilty of the charged conspiracy to blackmail, but the 1^st applicant was convicted of an offence of theft which concerned the stealing of property from the cemetery caretaker and his wife who had been subdued to allow the grave to be accessed.  He was convicted also, together with the 2^nd applicant, of criminal damage to the grave caused by the gang’s unsuccessful attempt to open it.  The 1^st applicant was sentenced to a totality of 3 years and 6 months’ imprisonment; the 2^nd applicant to a totality of 2 years and 6 months’ imprisonment.

2.  Each applicant renewed his application for leave to appeal his conviction, leave having been refused for each by a single judge.  Neither applicant sought leave to appeal sentence.  At the hearing on 14 January 2011 we dismissed both applications and reserved our reasons.  We now give those reasons.

3.  The prosecution case was largely based on the evidence of three accomplice witnesses.  One, “Ah Zhi” gave oral evidence.  Two others “Ah Dou” and “Ah Hua” gave their evidence by way of video recordings of their examinations conducted in the Mainland pursuant to letters of request.  “Ah Zhi” was imprisoned in Hong Kong at the time of his giving evidence as a result of pleading guilty to his role in the present offences, the other two were imprisoned on the Mainland in respect of a robbery offence.  The accomplice’s evidence formed the core of the prosecution case that the two applicants, who were resident in Hong Kong, had conceived a scheme whereby the remains of the wife of Mr Li Ka Shing would be stolen from her grave at Cape Collision Cemetery and then money would be demanded of Mr Li for their return.  The applicants, after deciding on this plan then recruited several people from the Mainland (including the three accomplice witnesses) to execute it.  The applicants familiarised their recruits with the lay-out of the cemetery and the location of the grave and with the route to and from the cemetery. This was done by way of the 1^st applicant who was a taxi driver by occupation driving them in his taxi.  The 2^nd applicant accompanied them on at least some of these trips and was alleged to have provided the tools which were used in the attempt to open the grave.

4.  On 29 January 2006 the attempt to open the grave of Mr Li’s wife was made.  Although there was some conflict in the evidence as to the exact role of each applicant, both were said to be present or at least in the near vicinity.  When the caretaker of the cemetery and his wife approached the scene it was alleged the 1^st applicant instructed they be intercepted and bound up, and later instructed that their property be taken from them.

5.  It was not suggested on the prosecution evidence that the 1^st applicant personally attempted to open the grave.  The allegation was that he, as organiser of the whole scheme had been present or nearby  (seemingly acting as lookout) and was part of the joint venture to break open the grave.

6.  So far as the 2^nd applicant was concerned it was the prosecution case that he was one of those who, in the attempt to open the grave, had damaged it.  The prosecution evidence connecting both applicants to the offences came from “Ah Zhi” who, at identification parades, identified both as the individuals responsible for the conduct of the criminal scheme.

7.  Neither applicant gave evidence.  Their cases were presented in cross-examination and in the case of the 2^nd applicant by way of an alibi witness.  No admissions had been made by either applicant after arrest and no recorded interviews of either applicant were produced in evidence.

8.  The 1^st applicant’s case was that he had nothing to do with the conspiracy and that his only role had been to drive the conspirators around Hong Kong in his taxi by prior arrangement when they came from the mainland, and to arrange a place for them to stay.  His case was that in doing so he was acting wholly innocently and had no idea the conspirators were planning the offences with which we are concerned.  His case was that he had been identified by “Ah Zhi” only because “Ah Zhi” was familiar with his face from the various taxi trips.

9.  The 2^nd applicant’s case was simpler.  He had no connection in any way with the conspiracy or with any person involved in the conspiracy.  His identification by “Ah Zhi” was simply in error.

10.  By their self-made grounds of appeal each applicant (unrepresented before us) raises a number of complaints, most of which are renewed submissions on the evidence at trial. Each complains also of the incompetence of his counsel at trial.  For that reason we had before us the affirmations of the counsel who represented each applicant at trial.  No challenge was made to the contents of those affirmations by either applicant.

The 1^st applicant

11.  The 1^st applicant firstly complains that the contents of various blackmail letters produced in evidence which were sent to the victim after the gang had fled following the failed attempt to steal the remains of the victim’s wife, were plainly an attempt to “frame” him.

12.  Three letters were sent to the victim from the mainland by “Ah Hua”, one of the accomplice witnesses who gave evidence.  They were admitted in evidence by way of s.65C of the Criminal Procedure Ordinance and in their unedited form had sought a reward for providing the particulars of the “Mr Wong” who had been responsible for the criminal acts which formed the subject matter of the charges.  The reference to “Mr Wong” was edited out of the letters to avoid any association with the 1^st applicant before they were produced to the jury pursuant to the admitted facts.  They were produced in evidence at trial so as to provide material for defence counsel in their attempt to discredit the accomplice witnesses.

13.  The 1^st applicant argued before us that the letters demonstrate, by their original reference to a “Mr Wong”, that there was an attempt to “frame him up”.  He suggests that the letters did demonstrate such an intent as the accomplices would not have incriminated one of their own.  He, by this argument suggests that his case would have been better presented by allowing the jury to have had before them the unedited version of the letters which referred to him as the “mastermind” of the offences.  With respect to the 1^st applicant this is a layman’s point.  If the letters had been presented to the jury in their unedited form, the reference to “Mr Wong” would have been extremely prejudicial to the 1^st applicant’s case.  His counsel was quite right to have them go before the jury only in their edited form and it cannot be said that the applicant thereby lost any realistic opportunity to advance his case by this being done.

14.  The 1^st applicant complains also that during the police investigation he was shown statements attributed to other accomplices and so suspected that the police had likewise shown his statement to others.  He suggests that by doing so the police were encouraging collusion amongst the various suspects some of whom eventually gave evidence against him (i.e. the three accomplice witnesses).

15.  There is no merit to this complaint.  The police, from the applicant’s own submissions before us, simply showed him other suspects’ statements and asked him if he had any comment. They asked him to sign copies of the statements shown to him as a record of that fact.  The applicant did so, he made no comment.  The copy statements were, obviously, never produced in evidence.

16.  It seems to us that the police acted entirely properly and that the applicant’s complaint is little more than unwarranted speculation.

17.  A third complaint (which is common also to the 2^nd applicant) stems from the evidence of the accomplice witnesses that, following the failed attempt by the gang to obtain the remains of the victim’s wife, they stole money and property from the cemetery caretaker and his wife and then retreated to a mah-jong parlour to divide the spoils which amounted to cash of about HK$30,000.  The 1^st applicant says this was impossible as at the time this was said to have occurred (3–4 a.m.) the law in Hong Kong prohibited mah-jong parlours from operating.

18.  Again, there is no merit in this point.  There was no suggestion on the evidence that at the time the gang went to the mah-jong parlour it was open for business.  The extent of the evidence was simply that there were persons present in the parlour.  Why the gang went to that particular parlour was unclear, other than that it appears to have been at least with the consent of the 1^st applicant whose case at trial, somewhat inconsistently with this ground, accepted that he had driven the gang to the mah-jong parlour, though for the purpose of collecting his taxi fare.

19.  Another complaint of the 1^st applicant was that the three accomplice witnesses “Ah Zhi”, “Ah Dou” and “Ah Hua” did not mention him in their initial witness statements.  We accept however that the 1^st applicant was, in those statements, consistently referred to by the accomplice witnesses by his nickname “Ah Fuk”, and eventually by his full name “Wong Kwan Fuk”.  In those witness statements he was also identified as the “mastermind” of the criminal scheme. There is no merit to this complaint.

20.  Other complaints made by the 1^st applicant are wholly without merit and can be dealt with very briefly.  He argues that, as he drove his taxi on a day shift, he could not have driven the gang members around Hong Kong to familiarise them with the cemetery and other locations at night as the accomplice witnesses said.  This wholly overlooks the 1^st applicant’s own case at trial that he did drive the gang in his taxi to the cemetery and later to the mah-jong parlour on the night of the attempt to break open the grave of the victim’s wife. 

21.  He suggests that the telephone call records between himself and “Ah Zhi” show that it was always “Ah Zhi” who initiated contact with him prior to “Ah Zhi” coming from the mainland to Hong Kong.  He suggests this was inconsistent with him, the 1^st applicant, being the mastermind of the scheme as “Ah Zhi” alleged.  Those records were not produced in evidence on the advice of his counsel.  The record the applicant refers to relate to only one mobile telephone for which the applicant asked his counsel to obtain telephone records.  According to the 1^st applicant’s counsel the record would not have taken matters further as it would not have excluded the 1^st applicant having initiated contact with “Ah Zhi” on those occasions by other means, perhaps by another telephone.  For that reason they were not obtained.  That was a perfectly logical and proper course.  Counsel went on to say in his affirmation that he advised there was an inherent risk to the 1^st applicant’s case in producing a record of telephone contacts between the applicant and “Ah Zhi” prior to the night of the attempted theft of the victim’s wife’s remains.  The sense of that advice is obvious.  No complaint of any substance can be made in this regard.

22.  The 1^st applicant complains also that the contents of “Ah Zhi’s” statement to the effect the applicant asked “Ah Zhi’s” younger brother to join the scheme was incredible, as “Ah Zhi” could and should have done so himself, if the younger brother was to be recruited.  This, with respect, was a wholly trivial and neutral matter which was not, understandably, pursued in evidence as it could not conceivably carry the applicant’s case forward in any material way. 

23.  The 1^st applicant argued that as there was no evidence of him receiving any reward from the failed scheme, that was also a matter which supported his suggestion his conviction was unsafe.  However it goes without saying that as the scheme was a failure there were no ransom proceeds to distribute.  The division of the more minor spoils taken from the caretaker and his wife was not an important part of the prosecution case and accordingly was, apparently, not dealt with in detail.  This cannot form the basis of any substantial complaint, and most certainly does not render the 1^st applicant’s conviction unsafe. 

24.  One other matter raised by the 1^st applicant was his assertion that another of the gang, Wu Chun Sing, who had earlier been separately prosecuted, had been acquitted.  The 1^st applicant suggests this demonstrated that the accomplice witnesses had not been believed. 

25.  This is a wholly misleading submission.  Wu was acquitted after his cautioned statements were ruled inadmissible as evidence.  The prosecution, following that ruling offered no evidence against Wu.  None of the accomplice witnesses “Ah Zhi”, “Ah Dou” or “Ah Hua” had given evidence at that trial. 

26.  Before proceeding with the final complaint of the 1^st applicant we should point out that much of what is complained of was to a greater or lesser extent before the jury, and was no doubt considered by them.  In any event the 1^st applicant’s arguments are effectively simply attempts to make further submissions before us on the evidence against him at trial. 

27.  The final complaint of the 1^st applicant is that his counsel was incompetent.  This assertion is wholly without substance or merit.  The basis of the allegations against his counsel are that the matters we have dealt with above were not properly put to witnesses by counsel. 

28.  We do not intend to repeat what we have said above in dealing with this final allegation, it is sufficient to say that we have seen counsel’s affirmation in response to these allegations and we accept that which is stated therein to the effect that the 1^st applicant was :

“32. … ‘at all times informed and aware of what was and what was not being presented as part of his defence and the reasons for those decisions… the applicant appeared to understand and was always in agreement with the advice given.’ [paragraph 13]”

29.  At the risk of some repetition we will give some examples of counsel’s responses to the applicant’s allegations :

(a)   So far as the 1^st applicant’s assertion is concerned that, by deleting reference to his surname in the blackmail letters sent to the victim from the mainland by “Ah Hua”, the jury was robbed of the full flavour and force of the “frame up” against him, we accept counsel’s response that :

“18. At the trial in Hong Kong, the Applicant was advised that the letters were to be edited to take out any possible prejudicial effect, their prejudicial effect being that the Applicant (or a Mr. Wong) was named as the Hong Kong person responsible for the criminal acts. The edited letters were adduced by way of Admitted Facts in an attempt to discredit the accomplice witnesses, who denied any framing-up and in order to show some basis of a concerted plan by the mainland group to falsely implicate the Applicant form the time they returned to the Mainland.”

The sense of that course is self-evident.

(b)   The 1^st applicant also criticised his counsel for not obtaining taxi driving logs to demonstrate that he drove (apart from the night of the offence) only day shifts.  Counsel’s response was :

“27. The Applicant gave instructions that he could not have been the driver of the taxi on a number of earlier evening visits to the cemetery prior to the commission of the offences because he drove the shared taxi on the morning shift only. He did not dispute though that he had driven the taxi on the night of the commission of the offences or on the visits immediately prior to that night. I was advised by my Instructing Solicitors that the Applicant had been asked on a number of occasions to provide the details of the relevant parties and addresses. My Instructing Solicitors advised me that the Applicant was not able to provide any record or witnesses.”

30.  Other complaints of the 1^st applicant regarding his counsel are of the same ilk.  There is no substance to any of them and, in our view, it is obvious from the judge’s summing-up at trial that the 1^st applicant’s case was fairly and firmly advanced on his behalf by counsel. 

31.  This last ground can be best dismissed as a wholly unwarranted and opportunistic attack by the applicant on his own counsel in an attempt to bolster what, by any measure, were a series of misleading and misplaced complaints concerning the prosecution case against him at trial. 

The 2^nd applicant

32.  The evidence against the 2^nd applicant depended on the reliability of “Ah Zhi’s” identification of him. 

33.  As did the 1^st applicant, the 2^nd applicant advances a series of complaints concerning failings in the prosecution case against him and a final assertion that his counsel was incompetent. 

34.  His initial complaint was that “Ah Zhi’s” evidence concerning the applicant providing the tools for the attempt to open the grave on 29 January 2009 was unreliable because he could not provide details as to how the applicant demonstrated the use of the tools, and that his evidence in this regard was generally vague.  He complains also that “Ah Hou’s” evidence of the same demonstration (though “Ah Hou” did not identify the applicant as the demonstrator) was also vague.

35.  This cannot possibly amount to a ground of appeal.  It is not surprising that two separate witnesses gave vague and differing evidence as to how a demonstration of the use of the tools took place.  But more importantly there was no real issue that some such an event had taken place.  The only issue was whether the 2^nd applicant had been at the scene of the offence and was the person referred to by “Ah Zhi”.

36.  The 2^nd applicant complains also that as his fingerprints were not found on any of the objects at the scene, the prosecution case, which depended on the credibility and reliability of “Ah Zhi’s” identification of him, was thereby undermined. That assertion wholly ignores the fact that workmen’s gloves were seized at the scene by police.  They were obviously left at the scene by the gang. 

37.  The 2^nd applicant also argues that the evidence of the accomplice witnesses to the effect that the spoils of the theft from the caretaker and his wife were subsequently divided up at a mah-jong parlour, was contradicted or negated by the prohibition in Hong Kong’s laws of such businesses operating at the time this was said to have happened.  We will not repeat in detail what we have already said about this matter.  It is sufficient to say it was not suggested by the prosecution witnesses that the mah-jong parlour was operating at the time the gang went there to divide up the stolen property. 

38.  Finally, the 2^nd applicant complains about the competence of his counsel at trial.  He criticises his counsel for not cross-examining sufficiently forcefully on those matters we have already dealt with concerning the evidence of him providing and demonstrating the use of the tools to be used to open the grave, and the evidence of the gang going to the mah-jong parlour in the early hours of the morning.  It follows from what we have said above that any such cross-examination would have contributed little or nothing to the 2^nd applicant’s case and counsel cannot be criticised for directing his energies elsewhere. 

39.  A final criticism of counsel’s conduct of the 2^nd applicant’s case concerned the failure to call an accomplice witness.  The 2^nd applicant’s case was that he had been misidentified by “Ah Zhi” as one of the gang and as being present on the night of the offences at the cemetery. 

40.  His case was that he, on that night, had been to a friend’s place with a group of others for dinner and had then played mah-jong for several hours.  There were two other persons present who were available to give evidence to this effect.  One was called and gave evidence in the above terms.  The other was not called.  The 2^nd applicant complaints of this, and says there was no good reason not to call the second alibi witness. 

41.  The applicant’s counsel, in his affirmation, gave the following reason for not doing so :

“d. I told him my opinion of the witness who had just completed her evidence and told him the second witness could at best only repeat her evidence and at worst could damage his alibi if he proved to be unreliable or if his memory of events differed from her memory;

e. I told Mr. LAU that my advice based on my experience was that calling two witnesses was not necessarily better than calling only one and explained the potential pitfalls of calling the second alibi witness;

f. I told Mr. LAU that my advice was to leave things as they stood but emphasized that the decision had to be his decision;

g. Mr. LAU accepted my advice and signed a short contemporaneous note prepared by my solicitor to that effect;”

42.  We accept that an informed decision was made by the 2^nd applicant himself, that there was a reasoned basis for the 2^nd applicant’s decision and that counsel in providing the advice he gave acted entirely properly and on the basis of well-founded experience. 

43.  No complaint can be made by the applicant regarding this aspect of the case. 

Conclusion

44.  Both applicants received a fair trial.  Their arguments before us amounted to little more than attempts to renew submissions on the evidence against them.  Their criticisms of their counsel were without merit and opportunistic.  Their convictions were safe and their applications for leave to appeal were dismissed for the reasons we have given.