HKSAR v. TUO PEI-CHUNG

CACC 95/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2001

(On Appeal from DCCC No. 974 of 2000)

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

1. The applicant, who was tried before Judge Poon in the District Court, was convicted of five triad-related charges on 13 October 2001. The judge sentenced him to a total of three years' imprisonment. He now seeks leave to appeal against conviction.

2. PW1 PC 51567 Yiu Shui-hon, nicknamed Ah B or Sai B, was an undercover police officer who gave the only evidence implicating the applicant on the five charges. The prosecution case was that on 21 February 1998 in the presence and hearing of PW1 the applicant claimed himself to be a member of a triad society, Wo Shing Wo, and invited PW1 to become a member of the triad society. These formed the basis of charges 1 and 2. PW1 also testified that on 25 February 1998, the applicant acted as a member of the triad society by participating in a leading role in an incident where a large number of members of the triad society were taken in a coach from Yaumati to outside a mahjong school in Wanchai. This formed the basis of charge 3. PW1 also gave evidence that the applicant acted as a member of the triad society in relation to a dispute between the applicant and one Ah Dan on 1 April 1998. This was charge 4. On 9 April 1998, PW1 saw two groups of people gathering outside a restaurant in which the applicant was discussing with others. After the discussion, the opposite group of people left. This formed the basis of charge 5.

3. The applicant gave evidence before the judge and called four witnesses. He admitted that while he was busily playing mahjong, he first met PW1. He had only met PW1 on about three occasions and the things described by PW1 about his involvement with the triad society never happened.

4. The complaints raised by the grounds of appeal relate, however, to the judge's dealing with the evidence of a meeting alleged to have been held between the applicant of the one part and PW1 and PW2 PC 46734 Yiu Sung-chi, nicknamed Lar Chiu, of the other part at a disco in Shenzhen on 8 July 2000.

5. The applicant testified about this meeting. The applicant had as from August 1998, after the dates mentioned in the charges, been running a restaurant in Shenzhen. It was an admitted fact that he did not return to Hong Kong until 5 September 2000 when he surrendered to the police at the Lo Wu checkpoint. He said he learned from a friend that he was wanted by the police in Hong Kong and that PW2 was able to make arrangements that PW1 would tell the truth that he (the applicant) was not involved in triad activities in Hong Kong. The meeting in the disco was arranged with PW2. On 8 July 2000, the applicant met with PW2 and PW1 in the disco. After some discussion about PW1's willingness to tell the truth in court, PW1 left while PW2 stayed on. The applicant then paid $50,000 to PW2 for the agreed purpose that PW1 would tell the truth in court. The $50,000 had been brought to the applicant by DW4, referred to below. The applicant felt unwell and he summoned a friend Mr Chiu Wing-li ("Chiu") to come to the disco to keep PW2 company before he left. Chiu went to the disco and eventually took PW2 and a woman to the Lushan Hotel. By reason of this meeting and dealing between the applicant of the one part and PW1 and PW2 of the other, it was suggested that PW1's evidence against the applicant on the charges must be suspect.

6. PW1 and PW2 both denied the meeting with the applicant in Shenzhen although they admitted that they were in Shenzhen on 8 July 2000. It was admitted pursuant to section 65C of the Criminal Procedure Ordinance that PW1 departed Lo Wu at 18.29 hours and arrived at Lo Wu at 22.39 hours on 8 July 2000, whereas PW2 departed Lo Wu at 18.29 hours on 8 July 2000 and arrived at Lo Wu at 14.54 hours on 9 July 2000. Indeed, another officer was with them for part of the time: it was an admitted fact that DSgt 3480 (PW3) departed Lo Wu at 18.47 hours on 8 July and arrived at Lo Wu at 15.01 hours on 9 July 2000. All these movement times were borne out by immigration records. It was also admitted by PW1 and PW2 in evidence that they went across the border together and they waited for about 20 minutes at the arrivals hall in Shenzhen to meet with the sergeant.

7. The applicant was to call Chiu to give evidence but Chiu returned to the Mainland for fear of publicity of the case after he had identified PW2 amongst six police constables in a line up parade properly held in courtroom No 10 in the Wanchai District Court on 3 March 2001. This identification took place before the commencement of the trial of this case. Owing to the unavailability of Chiu as a witness at the trial, the applicant applied for a stay which was refused by the judge.

8. The registration record of the Lushan Hotel was also produced as exhibit D1, which showed, among other particulars, the name, birth date and Hong Kong residential address of PW2. These particulars were agreed by PW2 to be correct. This record was obtained by DW3, a clerk of the solicitors acting for the applicant, who testified that he obtained it consequent upon instructions given to him by Chiu. DW2 was counsel who had made known the complaint to a magistrate when the applicant first appeared in court. DW4 was the person who told the court that he brought $50,000 to the applicant in Shenzhen, which sum the applicant testified that he paid to PW2. DW4 also told the judge that he saw PW1 on his way back to Hong Kong from Shenzhen. DW5 was a person nicknamed Ah Dan, referred to in PW1's evidence relating to charges 4 and 5. DW5 told the judge that he had been a good friend of the applicant and he did not have any major disagreement with the applicant.

9. The judge did not believe the applicant, DW4 and DW5. She also held that the absence of Chiu as a witness did not handicap the applicant's case as the effect of Chiu's evidence was well covered by DW3's evidence and the registration record that DW3 obtained and produced to the court. The judge accepted PW1 as an honest and reliable witness and was satisfied beyond reasonable doubt with his evidence of the incidents referred to in the charges and as to the guilt of the applicant.

10. Mr Cheung, for the respondent, submits that the prosecution did not rely on PW2 or PW3 to prove the charges. The only evidence of the applicant's guilt on the charges came from PW1 and once that evidence was believed, the judge could convict. We agree that this is correct as a general proposition.

11. However, apart from the applicant's denial of the evidence of PW1 on the charges, the evidence adduced by the applicant was the meeting in Shenzhen on 8 July 2000 between him and PW1 and PW2. The effect of his evidence was that extortion was practised on him during that meeting at which he paid $50,000 to PW2. The judge accepted the evidence of both PW1 and PW2 that this meeting never took place. She also commented that the registration record of the Lushan Hotel and the identification of PW2 by Chiu could be for "innocent reasons" and not necessarily occasioned by the meeting.

12. It is necessary for us to examine carefully the evidence about the meeting and the effect of such evidence. The judge accepted PW1's evidence in total, including his evidence about the charges against the applicant and his denial of the meeting with the applicant on 8 July 2000. There is, of course, nothing to prove PW1's presence at all in the disco, apart from the evidence of the applicant. But the judge's rejection of the applicant's evidence in this regard and acceptance of PW1's denial and PW2's denial of the meeting does give rise to grave concern. Had PW2 not met with the applicant with Chiu joining them later in the disco as alleged, it would be quite impossible for Chiu to have identified PW2 in the line up parade in the courtroom. It would also have been impossible for DW3 to gather the registration record of the Lushan Hotel which contained PW2's correct birth date and residential address unless, as he said, Chiu had told him where to go. These pieces of evidence tend to support the applicant's evidence that Chiu came to the disco to keep PW2 company or at least a reasonable doubt has arisen in this regard. The judge's acceptance of PW2's denial of the meeting was contrary to the documentary evidence of the registration record which at least appeared on its face to be true, showing as it does, PW2's correct birth date and residential address.

13. This also impacts on the correctness of the judge's acceptance of PW1's denial of the meeting and his evidence of the involvement of the applicant as charged. There was concrete proof that PW1 accompanied PW2 in their trip to Shenzhen on 8 July 2000, and this was admitted by both of these witnesses. PW1's association with PW2 in that trip might be entirely innocent, but his explanations must be examined closely. He said he started to know PW2 as a colleague in the Organised Crimes and Triad Bureau after he had accomplished his task as an undercover agent against triad societies in August 1998. Eventually he learned from PW2 that PW2 was interdicted or under police investigation for having met with triad members not in the course of police duties and having made false statements to the police. PW2 was dejected by these events and asked him to go together to Shenzhen to have fun. PW2 had asked him several times and he had not been free until 8 July 2000. He only had a massage in Shenzhen and on seeing that a colleague (DSgt 3480) was with PW2, he returned to Hong Kong after the massage. He did not plan to stay overnight as the other two officers did.

14. Accepting, as the judge did, that PW1 was with PW2 in Shenzhen on 8 July 2000 for an entirely innocent reason as both of them testified, there would seem to be nothing to indicate impropriety or to cast any doubt on PW1's evidence on the charges against the applicant. However, if the applicant had not seen PW1 in the disco as he alleged, it would be very difficult, if not impossible, to explain why he knew of PW1's trip to Shenzhen with PW2 on that day. Although the applicant's knowledge of PW1's presence in Shenzhen could have come from DW4 who saw PW1 on DW4's way back to Hong Kong, that could not explain the applicant's knowledge that PW2 was also in Shenzhen that very same day. It might be that the applicant only met with PW2 in the disco and PW1 was not there and PW1 was merely in Shenzhen for the innocent purpose as he described, and that PW2's involvement with the applicant, whether at that meeting or otherwise, was outside the knowledge of PW1 who played no part in it at all. But was it fortuitous that the applicant got to know of PW1's presence in Shenzhen on that day because DW4 had so informed him or because PW2 happened to be there? One does not know. In her reasons for verdict, the judge did not deal with this aspect at all. She simply rejected the evidence of the applicant and DW4 altogether. On the other hand, PW1 admitted that he knew of PW2's interdiction or being investigated by the police and the general reasons for that but he nonetheless was willing to go to Shenzhen with him. At that time, PW1 knew that he was going to give evidence against the applicant once the applicant was caught and he realized the difficulty he would face when giving that evidence as his role in the offences charged of the applicant was that of an undercover officer pretending to have been recruited by the applicant as a member of the triad society. In such circumstances, he should have avoided close connection with PW2 altogether. The judge's only comment was "It may be said that he (PW1) was unwise to have gone to Shenzhen with PW2" (p 9N of the transcript) and she concluded: "I find PW1's evidence was not tainted in any way [n]or was it affected by the evidence of PW2" (p 10G of the transcript). We consider, however, that all these unsatisfactory features in the case cast serious doubt on the veracity of PW1's evidence of denial of the meeting with the applicant in the disco. Moreover, the fact that the applicant had disappeared from Hong Kong from August 1998 and returned to Hong Kong on 5 September 2000 to turn himself in lends credence to the existence of the meeting, albeit that might have been between the applicant and PW2, and not necessarily PW1.

15. In the opinion of this court, without a full analysis on the part of the judge about the various possible doubts which had been raised in the evidence about the meeting in Shenzhen between PW1 and the applicant, it is impossible to say that all such doubts have been eliminated. In other words, on all the evidence, it might be that such a meeting did take place. Where there was clearly a reasonable doubt as to the truth of PW1's denial of the meeting, the reliability of his evidence regarding the involvement of the applicant in the offences charged would be reasonably questionable. The reasons for verdict had not addressed this question, let alone provided any resolution of it.

16. For all these reasons, we have come to the conclusion that the conviction of the applicant based purely on the reliability of the evidence of PW1 and the judge's acceptance of it without providing sufficient reason was unsafe and unsatisfactory.

17. In the circumstances, we grant leave to appeal and treating the application as the appeal proper, we allow the appeal, quash the conviction and set aside the sentence.