HKSAR v. LEE YUEN FOOK AND OTHERS

DCCC 67/2017

[2018] HKDC 357

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 67 OF 2017

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Reasons for Verdict

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Charge

1.  D1 – D3 deny a charge of conspiracy to commit misconduct in public office as follows:

Statement of Offence

Conspiracy to commit misconduct in public office, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.

Particulars of Offence

LEE Yuen-fook, YIP Kwok-leung and HUNG Wai-ming, between the 8^th day of October 2014 and the 7^th day of June 2015, both dates inclusive, in Hong Kong, conspired together with other unknown persons that LEE Yuen-fook and YIP Kwok-leung, being public officials, namely Police Constable UI 49901 and Station Sergeant UI 46093 respectively of the Hong Kong Police Force (“the Police”) of the Government of the Hong Kong Special Administrative Region, without reasonable excuse or justification, would wilfully and intentionally misconduct themselves in the course of or in relation to their public offices, in return for monetary reward, by:-

(i) Procuring and obtaining confidential information of the Police investigation into the murder of WONG Man-kin (‘the Investigation”); and

(ii) Divulging confidential information of the Investigation to other persons.

Crux of the Prosecution Case

2.  D3 was a civilian.  D1 and D2 were serving police officers.  D3 requested D1 to procure and obtain confidential information of the Investigation at various junctures during the period in question.  D1 told D2 that someone was interested in such information.  D2 procured and obtained such information and divulged it to D1. D1 in turn divulged it to D3.  It was agreed that D3 would pay D1 and others, including D2, monetary rewards for their acts. 

3.  During the period in question, ICAC mounted 6 covert surveillances (“CS1 – CS6”) of meetings between D1 and D2 in D2’s car, or D1 and D3 in D3’s car, as the case may be, resulted in audio records.   There were about 1,000 whatsapp messages in total between D1 and D2, D1 and D3, D2 and other persons, retrieved from SIM cards from mobile phones relating to them.  The audio records and the whatsapp messages construed together reflect a conspiracy in the terms as particularized in the charge.

Stance of the Defence

4.  The defence disputes the following:

(1) D1 – D3’s voices were in the audio records of CS1 – CS6;

(2) D1 – D3 sent or received the whatsapp messages retrieved from the SIM cards relating to them;

(3) In any event, the information being procured or obtained or divulged was confidential.

5.  D1 and D2 have a clear record.  D3 has a criminal record[1] for drink-driving.  When considering the credibility of their evidence and their propensity to commit the present offence, I have to adopt a view more favourable to them.   D1 – D3 do not give evidence or call any witnesses. 

Law of Misconduct in Public Office

6.  As stated by Sir Anthony Mason NPJ in Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192:

The offence is committed where:

(1) a public official;

(2) in the course of or in relation to his public office;

(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification;

(5) and where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and the extent of the departure from those responsibilities.”

Prosecution Case

The Murder Case and the Investigation

7.  In the early hours on 5/10/2014, WONG Man-kin nicknamed “Ah Tsz” (“the Deceased”) and a Chinese male assaulted two customers at Hot Shot Bar in Chatham Road, Tsim Sha Tsui. They fled the scene afterwards.  The Deceased was caught nearby by a gang of knife-wielding Chinese males in Cameron Road.  The Deceased was stabbed and severely injured in his head.  He was certified dead two days later on 7/10/2014 (“the Murder Case”).  The Murder Case was initially investigated by DATS 1 YTDIST.  It was taken over by Team 1B of Regional Crime Unit, Kowloon West Regional headquarters (RCU 1B KW) on 6/10/2014. 

8.  D1 is a Police Constable (PC 49901).  At all material times, he was attached to Tsim Bei Tsui 1, Tin Shui Wai Division (TBT 1 TSWDIV).  D2 is a Police Station Sergeant.  At all material times, he was attached to the District Intelligence Section of Kowloon City District (DIS KCDIST)[2]. CHENG Pak-to (“Sgt CHENG”) is a Police Sergeant (Sgt 33447) attached to the District Anti-Triad Section Team 1 of Yau Tsim District (DATS 1 YTDIST) between 10/6/2012 and 2/5/2015.  He was attached to DIS KCDIST, the same team as D2, between 3/5/2015 and 2/6/2016[3].

9.  At all material times, the two Police units to which D1 and D2 were attached, ie TBT 1 TSWDIV and DIS KCDIST, were not involved in the investigation of the Murder Case. 

The Suspects

10.  Shortly after the attack on the Deceased, the Police had already identified and suspected TANG Wai-yeung (“TANG”), LAU King-hei (“LAU”), KAN Chun-hoi (“KAN”), CHAN Wai-yip (“CHAN”), and LUK wing-sum (“LUK”) as being involved in the attack on the Deceased.  

11.  As regards suspect TANG, he was arrested on 7/10/2014[4]. He was charged with murder on 9/10/2014.  He was brought to Kowloon City Magistracy on 10/10/2014, resulting in a return date of 30/1/2015.  Meanwhile he was remanded in jail custody.  Negative DNA results were found of him by the Government Laboratory on 3/11/2014.  The witness could not identify him in an identification parade held by the police on 9/12/2014.  He was brought to Kowloon City Magistracy for mention to have the charge against him withdrawn on 30/1/2015; he was released unconditionally for insufficient evidence. 

12.  As regards suspect KAN, he left Hong Kong via Macau Ferry Terminal on 6/10/2014.  The police obtained a warrant of arrest against him on 11/11/2014.  Accompanied by his lawyers, he surrendered to Kowloon City Police Station on 28/5/2015; he was arrested for the murder; he remained silent under caution.  He was released on police bail on 29/5/2015.  He was released unconditionally by the police for insufficient evidence on 21/8/2015. 

13.  As regards suspect LAU, he left Hong Kong via Macau Ferry Terminal on 6/10/2014.  The police obtained a warrant of arrest against him on 11/11/2014.  Accompanied by his lawyers, he surrendered to Kowloon City Police Station on 21/5/2015; he was arrested for the murder; he remained silent under caution.  He was released on police bail on 22/5/2015.  He was released unconditionally by the police for insufficient evidence on 21/8/2015.  

14.  As regards suspect CHAN, he was arrested on 8/10/2014.   He was released on police bail on 10/10/2014.  Negative DNA results were found of him by the Government Laboratory on 3/11/2014.  He was released unconditionally by the police on 19/1/2015.  

15.  As regards suspect LUK, he was arrested on 7/11/2014; he was released on police bail. Negative DNA results were found of him by the Government Laboratory on 15/12/2014. 

VRIs of D1 – D3

16.  D1 and D2 were arrested at an earlier hour on 7/6/2015.  D3 was also arrested on 7/6/2015. 

17.  D1 refused to answer questions in VRIs except for those concerning his general background[5].

18.  D2 admitted to have met D3 on some occasions[6], D3 had a nickname “Fanling”[7], and before arrest he was in the lounge in Yuen Long to meet D1, D3 and others for a drink[8]. D2 also admitted to know Police Sgt CHENG, who was attached to OCTB YTDIST, for 2 – 3 years.  He had official dealings with Sgt CHENG at work, such as exchange of different types of intelligence to facilitate future police investigation[9]. He was not limited to the exchange of intelligence with police colleagues of the same district[10]. He learned from his colleagues that the culprits in the Murder Case had fled to the Mainland[11]. He could not recall if he had shared any intelligence with others in the Murder Case[12]. He had money dealings with D3 as he would help D3 to buy something[13].

19.  When arrested, D3 was in possession of an iPhone.  There was a SIM card for mobile phone number 6111 1355.  He admitted to be the user of the mobile phone number relating to the SIM card installed in the iPhone[14]. The prosecution says the SIM card contained whatsapp messages probative of the proof of the conspiracy. 

6 Covert Surveillances

20.  The ICAC conducted 6 covert surveillances (CS1 – CS6) which resulted in audio records pertaining to the present charge.  CS1 related to D1 and D2 on board D2’s car.   CS2 – CS6 related to D1 and D3 on board D3’s car. 

21.  ICAC officers taking part in the CSs were given ROP photos[15] of the targets such as D1, D2, and D3 in briefings on the same day before the CS in question.  The number of targets grew to about 10 over a period of over 2 years.  Therefore, near the end of the whole case, they had about 10 faces to identify. 

Observation in CS1 on 5/11/2014

22.  At about 1500 h PW5 (Rainie KOO Mei-wan) attended a briefing in which she received more than a set of copies of 5 ROP black and white photos, including one for D1 and one for D2. The respective ROP photos of D1 and D2 were a bit more blurry than the ones produced in court[16]. After 1600 h, she began to study D1’s and D2’s photos for about 20 minutes each. She could memorise their faces. She left office without the ROP photos.  

23.  At about 1848 h on 5/11/2014, she was at her observation post on Po Ping Road near North District Hospital. Four males come out of the entrance of the hospital to walk to Po Ping Road. She was pacing slowing about the spot and observed them for about 10 seconds when they passed her. She focused on each of D1’s and D2’s faces for 3 – 4 seconds. Lighting was sufficient from the street lamps and the entrance of the hospital. She followed D1 and D2 at 3 – 4m away into the open air carpark. D1 boarded D2’s car SA7862. She walked past the car when D1 was at the front passenger seat and D2 on the driver’s seat. She immediately informed PW5 (Kenix POON Hong-ying) at 1848 h. PW5 immediately switched on the audio recording device secretly pre-installed in D2’s car. PW5 saw D2’s car at 1850 h at the exit of the car park. CS1 spanned between 1850 h and 1904 h[17].

24.  The defence[18] challenges first, the poor quality of her observation; secondly, the possibility of someone boarding and/or alighting from D2’s car in the 2-minute gap; thirdly, the absence of details in her written record of what ROP photos she had received in the briefing and of the circumstances of the observation.

25.  I first consider the quality of her observation. She had studied each of D1’s and D2’s ROP photos, which were taken about 10 years before, for 20 minutes before her departure for the observation post. She was tasked to observe them if they appeared. It was not a surprise encounter. D1 and D2 were walking towards her direction and then past her. She had a close look of them. Out of her observation of the four for 10 seconds, she spent 3 – 4 seconds on the identification of D1 and D2 each. She relied on the lighting from street lamps and the entrance of the hospital. She then followed D1 and D2 to D2’s car in the open air carpark. In such circumstances of observation, the Turnbull guidelines shall be applicable. I have viewed the photo of the location[19] and D1’s and D2’s ROP photos. I note from the position of the street lamps and lights from the entrance of the hospital that such lighting if lit on, could illuminate the spot where she identified D1 and D2. I believe her evidence that such lighting was lit on and sufficient at that time. I also note that D1’s and D2’s faces in court still bear a clear and close semblance to their ROP photos. I am satisfied that her identification of D1 and D2 in CS1 was accurate and reliable.

26.  I come to consider the implications of the 2-minute gap between 1848 h and 1850 h. I think the real issue should not be just for the 2 minutes but whether D1 and/or D2 had alighted from the car in the whole course of the audio recording between 1848 h and 1904 h. I have listened to the audio record. There is no sound of the opening or closing of D2’s car doors throughout. I am satisfied that there was no one boarding or alighting from D2’s car until PW5 switched off the audio recording device.

27.  I consider the absence of details in her written record of what ROP photos she had received in the briefing and of the circumstances of the observation. Poor record keeping it surely was on the part of her OC case PW10 (Henry LUNG Ho-yan) to destroy such copies of ROP photos distributed to ICAC officers and later retrieved from them. However, there is overwhelming oral evidence that the unrecovered copies of ROP photos were copies of the ROP photos adduced in court. It is true that as regards the circumstances of observation in CS1, PW3’s notebook, as a nearly contemporaneous record of the event, did not give a detailed description of the circumstances of observation or of D1’s and D2’s features. I have the opportunity of assessing how she responds to the questions for details. Her answers are given forthwith and coherent. I am satisfied that she is an honest witness and her memory of the events is good and sufficient.

Observation in CS2 on 14/1/2015

28.  PW7 (Henry CHEUNG Ka-kit) had observed D1 on 3/11/2014, 15/3/2014, 9/10/2014, and D1 and D2 together on 25/12/2014. He was able to recognize them in CS2 on 14/1/2015.

29.  He was making observation at Tin Yiu Estate near Tin Yiu Plaza from about 2040 h in CS2 on 14/1/2015.  Through the windscreen, D3 was seen at the driver seat of JT265 as the car drove towards and past him.  He could not see if there were other people on board.  It came to a stop at the roundabout opposite to him.  P60 is a set of photos showing the location.  He marked on Photo 2 where the car stopped very close to the kerb and the continuous line of railing.  There was sufficient lighting from the street lamps and the lights of the staircase where the car stopped.  From his position, he could only see the right hand side of the car.  He saw D1 for 5 – 6 seconds as D1 was walking towards the car.  He could not see through the car windows the inside of the car.  At first there was a bit of D1’s head over the car roof near the left side door and then that bit disappeared.  When a data sheet of the same model[20]as D3’s car suggests that the car roof ought to be higher than D1’s head, he amends his evidence to that of seeing D1 walk to the left hand side of the car and disappear there.  He infers therefore that D1 had boarded the car.  He immediately called his PW6 (Edison LIEH Kiu-kwan) to switch on the audio recording device pre-installed in D3’s car.  Between 2043 h and 2055 h no one came to or left the car.  At 2055 h, D1 walked away from the car.  PW7 immediately called PW6 to switch off the audio recording device.  CS2 spanned between 2043 h and 2055 h[21].   

30.  The defence[22]challenges first the quality of his observation and secondly the lack of detailed description in his written record of his previous observations of D1 and D3 and the circumstances of his identification of D1 and D3 in CS2.    

31.  I first consider the quality of his observation.  I note from the position of the street lamps and lights from the staircase that such lighting, if lit on, could illuminate the spot where he identified D1.  I believe his evidence that such lighting was lit on and was sufficient at that time.  I note the position where the car stopped.  There was not much room for an adult to squeeze into the gap between the car and the railing without boarding the car.  It is implausible that D3 had just squatted on the kerb side in the tight space between the car body and the railing for 12 minutes without boarding the car.  PW7’s observation of D1 and D3 was each for a short duration, and, in the case of D1, at some distance whereas, in the case of D3, D3’s was behind the windscreen.  In such circumstances of observation, the Turnbull guidelines shall be applicable.  I am satisfied that his identification aided by his recognition of D1 and D3 was each accurate and reliable.   

32.  I also consider the lack of detailed description in his written record of his previous observations of D1 and D3 and the circumstances of his identification of D1 and D3 in CS2.  Mr. Chan for D3[23] submits that PW7 did not record whether he went to the closest position of the edge of the bush area. He did not record the car making a U-turn in his notebook either. I have the opportunity of assessing his responses to the questions for details. His answers are given forthwith and coherent. Mr. Chan also submits[24]that his evidence of seeing D1’s head partly over the car roof has turned out to be incorrect as the car was proved by its specifications handout that its roof was higher than D1’s head.  I am aware of his evidence originally that D1’s head could be partly seen over the car roof and, upon knowing that the car roof was higher than D1’s head altogether, amended to be an inference that he had boarded the car.  It is not so significant as to affect his credibility and reliability.  I am satisfied that he is an honest witness and subject to the aforesaid aspect, his memory of the events is good and sufficient.  

33.  On the issue of whether D1 and/or D3 had alighted from the car in the course of the audio recording.  I have listened to the audio record.  There is no sound of the opening or closing of the car doors throughout.  I am satisfied that there was no one boarding or alighting from the car.   

Observation in CS3 on 25/2/2015

34.  PW8 (May CHEUNG Hoi-lam) had observed D1 on 10/10/2014, D1 and D3 together on 15/10/2014, D1 on 27/11/2014, D1 and D3 together on 29/1/2015, D1 and D3 together on 31/1/2015.  She was able to recognize them in CS3 on 25/2/2015. 

35.  At about 2005 h on 25/2/2015, her observation post was at the junction of Chuk Yau Road and San Tin Highway.  She saw D3 driving JT265 towards the road junction.  In court, she marks on a map to indicate the car at various positions[25]. Its first position was where she could see its front car plate JT265 and the second position was where she could see the faces of D1 and D3.  She immediately called PW9 (Karen LAW Wing-chi) to switch on the audio recording device.   CS3 spanned between 2005 h and 2018 h[26].

36.  The defence challenges the quality of her observation in CS3.  She wrongly remembers that the junction of Chuk Yau Road was a right angle, she cannot remember a big bus stop a little ahead of the junction, she wrongly remembers the position of the mini bus stop.  When she is cross-examined on the discrepancy in her notebook and another sketch she draws in court[27]and whether her initial position was before or behind the mini bus stop, she changes her evidence to say she was both in front and behind the mini bus stop.  She says she was 20 meters away from the junction when she saw the faces of D1 and D3. The defence submits that from this distance it is impossible to see clearly.  It is also difficult to understand why she would run away towards the mini bus stop where the lighting was not as good as her original position when she saw the number plate of JT265.  At first she says there were only two cars that drove past when JT265 came to the junction and she cannot remember whether there were other cars on the road. Later she says there were many other cars passing on both sides of the road, so she could see the faces by the lighting from the headlights.  I do not find these matters so significant as to affect her case.  In such circumstances of observation, the Turnbull guidelines shall be applicable. I am satisfied that her identification aided by her recognition of D1 and D3 was each accurate and reliable. 

37. The defence also challenges her alleged previous observations of D1 and D3.  Her notebook was the only record of the events but there was a lack of detailed description of the circumstances of her observations[28]. The defence queries how she can give more details in court from pure memory.  I have the opportunity of assessing how she responds to the questions for details.  Her answers are given forthwith and coherent.  I am satisfied that she is an honest witness and her memory of the events is good and sufficient.

38.  On the issue of whether D1 and/or D3 had alighted from the car in the course of the audio recording.  I have listened to the audio record.  There is no sound of the opening or closing of the car doors throughout.  I am satisfied that there was no one boarding or alighting from the car.   

Observation in CS4 on 6/3/2015

39.  PW11 (Stephen KWOK Kwok-kei) had observed D1 and D3 together on 30/7/2014.  He was able to recognize them in CS4 on 6/3/2015. 

40.  At 1902 h on 6/3/2015, his observation post was at Tin Yiu estate near Tin Yiu Plaza.  He saw D3 driving JT265 arrive near him and parked near where he stood.  At 1904 h, when D1 boarded the car, he immediately called PW6 to switch on the audio recording device.  He saw D1 for about 10 seconds before D1 boarded the car.  CS4 spanned between 1904 h and 1920 h[29].   

41.  The defence submits[30] that he had only made a very brief entry in his notebook[31] regarding the observation.  There was no mention of any briefing or anything about the ROP photos in his notebook.  However, after more than 2 years, he is able to remember in court enough to mark on a sketch the details the distances and the position of himself and the car at various junctures[32].  I have the opportunity of assessing his responses to the questions for details.  His answers are given forthwith and coherent.  I am satisfied that he is an honest witness and his memory of the events is good and sufficient. 

42.  The defence submits that his previous observation of D1 and D3 at Chief Lounge on 30/7/2014, which was approaching 8 months ago, cannot aid his identification in CS4 on 6/3/2015. I am of the view that it can aid the actual sighting in CS4. 

43. In such circumstances of observation in CS4, the Turnbull guidelines shall be applicable. I am satisfied that his identification aided by his recognition of D1 and D3 was each accurate and reliable. 

44.  On the issue of whether D1 and/or D3 had alighted from the car in the course of the audio recording, I have listened to the audio record.  There is no sound of the opening or closing of the car doors throughout.  I am satisfied that there was no one boarding or alighting from the car.   

Observation in CS5 on 2/6/2015

45.  PW13 (Michael CHOW Kai-tung) had observed D1 on 10/10/2014.  In CS 5 at 2124 h on 2/6/2015, he saw D3 driving JT265 turn into Chuk Yau Road from San Tin Road.  The car slowed down and stopped for 1 – 2 seconds at the junction.  At 2135 h, it reappeared and stopped at the junction for 2 – 3 seconds.  He saw D1’s and D3’s faces for 3 – 5 seconds through the windscreen and front window of the passenger seat. Apart from the street lamps at and near the junction, there were head lamps from cars on San Tam Highway to provide lighting for his observation.  He immediately called PW6 to switch on the audio recording device.  CS5 spanned between 2135 h and 2232 h[33].  

46.  At 2150 h, PW5 (Kenix POON Hong-ying) at 8 m away saw D3 driving and D1 sitting beside him in JT265 arrive and park near Po Lok Square.  She walked up Ping Shun Street and had another look at them for about 3 seconds. There was no one else in the car.  No one boarded or alighted from the car until 2232 h when D1 alighted from the car to walk along Ping Shun Street to On Ning Road.  There were street lamps to provide lighting for her observation throughout. 

47.  The defence submits[34] that they had only made very brief entries in their notebooks[35] regarding the observation.  There was no mention of any briefing or anything about the ROP photos in their notebooks.  However, after more than 2 years, they are able to remember in court enough to give the details of their observation.  I have the opportunity of assessing how they respond to the questions for details.  Their answers are given forthwith and coherent.  I am satisfied that they are honest witnesses and their memory of the events is good and sufficient. 

48.  The defence submits that PW13’s previous observation of D1 on 10/10/2014 had been 8 months before CS5 on 2/6/2015 cannot aid his identification in CS5 on 2/6/2015.  I am of the view that it can aid the actual sighting in CS5. 

49.  In such circumstances of observation in CS5, the Turnbull guidelines shall be applicable. I am satisfied that PW13’s and PW5’s identification of D1 and D3 was each accurate and reliable. 

50.  On the issue of whether D1 and/or D3 had alighted from the car in the course of the audio recording, I have listened to the audio record.  There is no sound of the opening or closing of the car doors throughout.  I am satisfied that there was no one boarding or alighting from the car.      

Observation in CS6 on 6/6/2015

51.  PW14 (Winson WONG Wing-shun) had observed D1 on 6/1/2014, D1 and D3 together on 30/5/2014, 30/7/2014, 14/12/2014, and D1 on 12/5/2015, 14/5/2015, 16/5/2015, and 2/6/2015.  In CS 6 at 2203 h on 6/6/2015, he saw D3 driving JT265 into Ping Shun Street and park it at Po Lok Square.  He saw D3 at the driver’s seat. One minute later, D1 walked from On Ning Road towards the front of the car and got into the front passenger seat.    There were street lamps to provide the lighting for his observation. 

52.  PW16 (Lawrence WONG Pui-wai) had observed D1 on 26/9/2014, D1 and D3 together on 28/2/2015, and D1 on 18/3/2015.  In CS6, he saw JT265 parked at Po Lok Square for 5 – 10 minutes when D1 walked along On Ning Road and turned left to get into the front passenger seat at 2200 h.  There were street lamps to provide the lighting for his observation.  CS6 spanned between 2205 h and 2222 h[36].   

53.  The defence argues that PW14 could not be lurking nearby JT265 without concealing his presence.  I think that as it was a public place, as long as he did not do anything too conspicuous or odd, he did not have to conceal his presence.   

54.  The defence argues that PW14 has drawn a right angle at the entrance of Po Lok Square but the photo[37]shows it was a wide circular corner.   In the two sketches in his notebook[38]he marked the front of JT265 to be parallel to the edge of the pavement without jutting out, but in his sketch drawn in court[39]JT265 was partly jutting out of the pavement thus partly blocking the entrance of Po Lok Square. He explains that he was not a professional so he did not draw professionally in his notebook.  I find this explanation credible. 

55.  The defence argues[40] that he had only made a very brief entry in his notebook regarding the observation.  There was no mention of any briefing or anything about the ROP photos in his notebook.  However, after more than 2 years, he is able to remember in court enough to mark on a sketch in detail the distances and the position of himself and the car at various junctures.  I have the opportunity of assessing his responses to the questions for details.  His answers are given forthwith and coherent.  I am satisfied that he is an honest witness and his memory of the events is good and sufficient. 

56.  In such circumstances of observation in CS6, the Turnbull guidelines shall be applicable. I am satisfied that PW14’s and PW16’s identification aided by their recognition of D1 and D3 was each accurate and reliable. 

57.  On the issue of whether D1 and/or D3 had alighted from the car in the course of the audio recording, I have listened to the audio record.  There is no sound of the opening or closing of the car doors throughout.  I am satisfied that there was no one boarding or alighting from the car.       

Value of Voice Identification Evidence

58.  PW24 (Dr. LO Tsz-fung) is unchallenged as an expert in voice identification.  He wrote 2 reports[41] and elaborates on them in court.  His methodology is not challenged either.  It was based on well-recognised methodology and literature.  His evidence on voice identification has been accepted by court before (although it is not specified as a civil or criminal court or in what jurisdiction).  After comparing D1 – D3’s voices in their respective video-recorded interviews with the voices recorded in CS1 – CS6, his conclusion was that it was more likely than not that in CS1, D2 was one of the 2 speakers, and that in CS1 – CS6, there were 2 speakers in conversation.  The defence argues that this is below the criminal standard of proof.  I think this argument is correct. 

59.  PW19 (Inspector LAU Wing-fai) had been D1’s supervisor for some time.  After listening to the audio records of CS1 – CS6, he could recognize a voice similar to D1’s in CS2, CS4, CS5, and CS6 but he was not certain of it.  

60.  I am of the view that the evidence of Dr. LO and Inspector LAU alone cannot prove beyond reasonable doubt that CS1 contained D1’s and D2’s voices whereas CS2 – CS6 contained D1’s and D3’s voices. 

Whether D1 – D3 were the Sender/Recipient of Whatsapp Messages

Who were the Actual Users of the Relevant Mobile Phone Numbers

61.  There were 432 whatsapp messages between 9348 4901 (which the prosecution suggests was the number used by D1) and 6111 1355 (which the prosecution suggests was the number used by D3).  There were 430 whatsapp messages between 9348 4901 (which the prosecution suggests was the number used by D1) and 9809 1857 (which the prosecution suggests was the number used by D2).   There were 91 whatsapp messages between 9809 1857 (which the prosecution suggests was the number used by D2) and Sgt CHENG’s mobile phone[42]. The defence disputes the alleged users of such mobile phone numbers. 

62.  As regards 9348 4901, its subscriber was D1’s wife LAI Yuk-heung, Fanny.  Was she or someone else the user of this phone number?  I note that the user sent a Hong Kong Jockey Club betting account number, 05381401, out by this number on 21/9/2014[43]; this was D1’s betting account number.  The user sent a photo out on 1/2/2015[44] (D1 was standing in the middle of a group people all smiling into the camera.  The user received and acknowledged a birthday greeting on 4/2/2015[45] (this was one day after D1’s birthday of 3/2/2015[46]).  Someone sent 7 photos out on 12/2/2015[47] (D1 was standing in the middle of different groups of people all smiling into the camera; D1 is the only person to appear on every photo).  Someone texted to meet up with the message recipient (which the prosecution says is D3) at “Ngok Wan” (transliteration of Music Lounge) on 6/6/2015 (soon D1 arrived at Music Lounge and met up with D3 there). 

63.  Mr. Khosa submits[48] that the personal record form from TBT Police Station had D1’s phone registered rather as 6736 0499 and that had to be his phone number at certain junctures.  I think that he could have another phone number for the personal record but it did not alter the fact that he was also regularly using 9348 4901. 

64.  I am satisfied that the user of this mobile phone number was D1 at all material times. 

65.  As regards 9809 1857, its subscriber was D2’s wife CHAN Pui-fong.  Was she or someone else the user of this phone number?  The user set the user name as “ericyip”.  PW22 (S/Sgt CHEUNG Ho-yin) knew D2 for over 25 years (this was D2’s phone number he knew of).    Between 17/3/2015 and 16/4/2015, the user was asked by police officer CHENG if the user’s team had any vacancy for him (Sgt CHENG).  On 16/4/2015, the user replied to Sgt CHENG that he (Sgt CHENG) would probably go to the user’s team on 3/5/2015 (it turned out that Sgt CHENG was actually transferred to D2’s team DIS KCDIST on 3/5/2015).  D2 was arrested with the SIM card for this phone number.  ROP records, vehicle registration records, and police personnel records each showed that it was his reported phone number.  

66.  I am satisfied that the user of this mobile phone number was D2 at all material times. 

67.  As regards 6111 1355, it was subscribed in D3’s own name.  On 7/6/2015, he admitted under caution in VRI voluntarily that he had been using this number for 3 – 4 years[49]. He was arrested with the SIM card for this phone number.  ROP records, vehicle registration records, and the Jockey Club betting account each showed that it was his reported phone number.  

68.  I am satisfied that the user of this mobile phone number was D3 at all material times. 

Whether to Exclude Whatsapp Messages in D3’s SIM Card as Unlawfully Obtained Evidence

69.  D3 was arrested on 7/6/2015 in possession of an iPhone with SIM card[50] for phone number 6111 1355.  Relying on Sham Wing Kan v Commissioner of Police [2017] 6 HKC 265, Mr. CHAN for D3 submits that as the whatsapp messages were retrieved from the SIM card without a warrant, they were unlawfully obtained evidence.  So the court should not admit such whatsapp messages into evidence[51]. 

70.  I understand that Sham Wing Kan’s case is about the balance to be had between a citizen’s constitutional rights for privacy of personal data in his mobile phone and the police powers for search and examination of it without a warrant.  There the interpretation of s. 50(6) of the Police Force Ordinance, Cap. 232 is in issue.  Our present case shall depend on the interpretation of s. 10C (1) (c) of ICAC Ordinance, Cap. 204.  Mr. LAI for the prosecution submits that the latter allows the ICAC to “seize and detain anything which such officer has reason to believe to be or to contain evidence of the offences …” and that shall include the personal data in the mobile phone.  I do not think the wording in the former is that limited.  It reads, “it shall be lawful for such [police] officer to search for and take possession of any newspaper, book or other document or extract therefrom and any other article or chattel which may be found on his person …”  The part underlined can arguably also include personal data in the mobile phone. 

71.  Assuming that the personal data were unlawfully obtained by ICAC and thus in breach of D3’s privacy rights afforded by the Basic Law, I consider its implications.  CJHC MA J in the Court of Appeal in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 has this observation:

115. But the following question now requires to be answered in Hong Kong: what effect do the provisions of the Basic Law and ICCPR[52] [International Covenant on Civil and Political Rights] have on the exercise of discretion to exclude evidence in criminal matters? Do they eliminate the existence of the discretion altogether or if not, how prominent are they in the exercise of the discretion? …

116. In our view, the questions posed in the previous paragraph fall to be answered in the following way. First, account must of course be taken by the court of any breaches of rights contained in the Basic Law or the ICCPR. Secondly, any breach as aforesaid will not, however, automatically result in the exclusion of the evidence obtained in consequence of the breach: the court still retains a discretion to admit or exclude the evidence. Thirdly, the discretion in the court to admit or exclude evidence involves a balancing exercise in which the breach of constitutional rights is an important factor whose weight will depend on mainly two matters: the nature of the right involved and the extent of the breach.

…

(4) Mr Blanchflower [for the Applicant] made it clear in his submissions that he was not advocating an automatic exclusion of evidence should a breach of or derogation from the right to privacy occur. In our view, he was right not to do so. While it may be tempting to adhere so closely to the fundamental rights contained in Part III of the Basic Law that any breach of or derogation from them should result in the direst of consequences, this is in our view too simplistic a stance. One of the fundamental themes of a constitutional document such as the Basic Law (and the ICCPR) is the recognition that society has many different interests to be taken into account and very often, a balance must be struck. Derogations from constitutional rights are sometimes permitted where they can be justified as being necessary, rational and proportionate. This is in no way to undermine the importance of constitutional rights but a court must at times perform what can be a delicate balancing exercise.

(5) In the present context, there are two main competing interests, both facets of what can broadly be called the public interest: on the one hand the interest in protecting and enforcing constitutionally guaranteed rights; on the other, the interest in the detection of crime and bringing criminals to justice...

(6) The balancing exercise that faces the court in the exercise of its discretion in each case where there has been a breach of or derogation from constitutional rights, involves a consideration of the two facets mentioned in the last paragraph. The objective of the exercise of judicial discretion is to ensure that a fair trial of the accused takes place. We have already referred to relevant passages in the decision of the House of Lords in R v Sang and that of the Court of Final Appeal in Lam Tat Ming (see paragraphs 112 and 114 above). In R v Khan (Sultan), a case involving covert surveillance, Lord Nicholls of Birkenhead referred to the discretion to admit or exclude evidence and the right to a fair trial contained in Article 6.1 of the European Convention as being concerned to ensure that those facing criminal charges would receive a fair trial: at 583B-C. He added at 583C-D: -

“In the present case the decision of the European Court of Human Rights in Schenk v Switzerland, 13 E.H.R.R. 242 confirms that the use at a criminal trial of material obtained in breach of the rights of privacy enshrined in article 8 does not of itself mean that the trial is unfair.”

(7) More recently, in R v Looseley (Attorney-General’s Reference No.3 of 2000)[2001] UKHL 53; [2001] 1 WLR 2060, the House of Lords considered the question of entrapment in the context of the right to a fair trial under Article 6 of the European Convention. We believe this decision provides valuable guidance as to both the nature and the exercise of the discretion under discussion. It qualifies what might appear to have been the effect of R v Sang by emphasizing the principle that the court could exclude evidence obtained by unfair means in circumstances where the court considered the admission of the evidence to have such an adverse effect on the fairness of the proceedings that the evidence ought to be excluded: at 2066D-F (paragraph 11), 2067F (paragraph 16), 2098A (paragraph 122)…

(8) In considering the fairness of a trial, the court must take a broad view of the overall circumstances. The court must look at the fairness of the actual trial itself: for example, whether the evidence obtained in breach of constitutional rights is reliable in the first place. Thus, for example, evidence which has been “tricked” out of a person (say, by inducements improperly made) may be so inherently unreliable that it ought to be excluded.

(9) However, the court does not just look at procedural fairness in the actual trial. It is also entitled to look at the overall behaviour of the investigating authority or the treatment of the accused. Thus, circumstances may be such that it would simply be unfair to an accused person to allow certain evidence to be used at trial, for example, where an innocent person has been enticed to commit a crime. There can be situations in which it would be such an affront to the public conscience or the integrity of the criminal justice system is so compromised that the court must step in to put a stop to it. It is clear from the passage from Lord Scarman’s speech in Sang (see paragraph 112 above) that there must be justice done to the accused himself…

(10) On the other hand, the breach of or derogation from constitutional guaranteed rights may be outweighed by the public interest in ensuring that crimes are detected and punished. Here, one needs to look closely at two inter-related aspects: the right that has been breached and the extent of the breach. Though all rights guaranteed by a constitution are to be accorded great respect and any breach or derogation must always be considered a cogent factor in excluding evidence, one must bear in mind that some rights are more fundamental and important than others and that where a right is breached, this can occur in a multitude of different situations…

(11) Where the gravity of a breach or derogation is small but the crime involved is a serious one, the public interest will lean more favourably towards the latter factor with the consequence that any evidence obtained as a result of the breach or derogation will be admitted…

(Underlined are my emphases)

72.  In our present case, there is no suggestion by D3 that the whatsapp messages were obtained by oppression, trickery or unfair means, or that such evidence would be reliable in any way.  The search was done 2 years before the decision in Sham Wing Kan of 2017.  I cannot say that ICAC had acted in bad faith for not applying for a warrant in 2015.  Had an application for a warrant been made to the court at that time, I think it would have been granted.  I am satisfied in the investigation of a case of such serious nature as our present one, my discretion shall be to admit the whatsapp messages into evidence.  

Matters Discussed in the Whatsapp Messages

73.  Based on my finding that D1 – D3 were the users of the phone numbers at the material times I also find them to be the senders or recipients, as the case may be, of the whatsapp messages.  I come to consider the matters discussed by them. 

74.  On 8/10/2014, D1 texted D2 that someone wanted to know the Murder Case and the case appeared to be handled by DATS YTDIST. 

75.  On 9/10/2014, D1 texted D2 that someone called “Fanling” had fixed up.  D2 reminded D1 to delete the messages.  D1 replied that he did not keep them. 

76.  On 16/10/2014, D1 texted D2 to ask if there was anything and told D2 to call his ghost phone at will.  D2 replied that he would ask about it tomorrow.  

77.  On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any time if the latest information was available.  D1 also informed D2 of his ghost phone number. 

78.  On 20/10/2014, D1 texted to ask D2 if there was any latest news and when “that lad” could come out. 

79.  On 12/12/2014, D1 texted D2 to ask if there were any updates.  D2 replied that it had to be next week, not so soon. 

80.  On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG) would ask for information.

81.  On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing from his close friend of “Fanling”.  D2 replied in the negative. 

82.  On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about the matter of the 30^th day. D1 said someone was very nervous and, if that one’s close friend could not walk out, someone would not know how to explain. 

83.  On 30/1/2015, D2 texted D1 that it seemed he (D2) was being followed. 

84.  On 28/2/2015, Sgt CHENG in two messages (“Two Messages”) texted to D2 the nicknames and corresponding full Chinese names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt CHENG told D2 that suspects TANG and CHAN among them were arrested and the others were being wanted. 

85.  On 1/3/2015, D1 sent the 2 same messages to D3. 

86.  On 7/3/2015, D2 texted D1 to ask when and how many would come back.  D1 answered that one had been told to come back individually. 

87.  On 24/3/2015, D1 texted D2 that those wretched friends would not be back until early 5/2015.

88.  On 9/4/2015, D3 texted D1 to ask if a reply could be given to the other side.  Later on the same day, D1 texted D2 to ask for news about the case. 

89.  On 14/4/2015, D1 texted to ask if there was any news as it was being asked by someone every day. 

90.  On 15/4/2015, D2 texted D1 that he (D2) had already asked someone to ask again.  D2 suggested to have them talk face to face as mobile calls would leave records, inconvenient. 

91.  On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and to D1 respectively.  D1 sent the Two Messages to D3.  D1 texted D3 that CCTV captured “Tak Hau” and “Sai Chun” holding knives and walking on the street.  D1 told D3 that no one upon their return should admit anything even if beaten to death and that was because guilty plea and cooperation would not mitigate murder or a sentence of life imprisonment. 

92.  On 4 – 20/5/2015, D1 texted D2 that KAN would probably go back within a short period of time.  D1 texted D3 to go to find RCU 1KW.  D2 texted to ask D1 if the kid had gone yet. D1 texted to reply D2 that it was around 11 o’ clock.  D1 then texted the same message to D3.  D3 texted D1 about risking life for landing. 

93.  On 21/5/2015, D3 texted D1 that the “buddy” had come back.  D3 texted D1 that suspect AH LAU would appear in court at 8 am tomorrow.  D1 texted the same message to D2.  D1 texted D2 to discuss about the potential court hearing tomorrow.  D1 texted D2 to ask if Ah LAU, who surrendered to the police would be “sing-ma-thai”.  D2’s opinion was that it should be a good thing for Ah LAU to go to court so soon. No identification parade was arranged as there was no witness, no evidence.  D1 texted D2’s opinion to D3.  D1 texted D2 to ask if Ah LAU would have a good chance for bail in the court hearing tomorrow.  D2 replied that they had been reminded of what should be done about the bail hearing. 

94.  On 22/5/2015, D1 texted D2 that “the close friend’s close friend” had probably come out. 

95.  On 26 – 27/5/2015, D1 texted D2 to discuss about the return of the last “kid”.  D2 texted D1 that all samples at the scene had been probably proved to belong to the victim, hence Ah LAU was not detained for checking the samples.  D1 texted D2 to ask around about Ah LAU and whether there was any yellow sheet concerning the case.  D2 replied that there was no evidence in the case, only images. Even if there was to be a holding charge, it was highly likely that the court would grant bail. 

96.  On 28/5/2015, D1 texted D2 that the last “kid” would arrive at 11 o’clock. 

97.  On 31/5/2015, D1 texted D2 that suspect KAN had come out and whether KAN and Ah LAU got the “yellow sheet”. 

98.  On 2/6/2015, D1 texted D2 and discussed about the quantum of their reward to be received and how to share it.

Matters discussed by the Speakers in CS1 – CS6[53]

99.  In CS1 on 5/11/2014, 1^st male asked 2^nd male how the progress was. They discussed about blood test.  2^nd male expected nil results as all blood belonged to the victim.  The PIC of “Hot Hard Hot” was the only witness and this witness only saw a fight but not anyone being chopped.  So chopping could not be proved.  1^st male said “Ah Lau[54]”, “Tak Hau”, and someone nicknamed “Ah Wai” had not returned.  2^nd male said “Tak Hau” had already been arrested.  They discussed about the available witnesses, whether it was necessary to conduct identification parade in this murder case.  2^nd male said there was no witness who had seen the part of murder.  Only an identification parade for the previous fighting scene but not for the murder. 

100.  In CS2 on 14/1/2015, 1^st male mentioned to 2^nd male the matter of 30^th.  1^st male said he (1^st male) earned “6 Dou”.

101.  In CS3 on 25/2/2015, 1^st male said 2 persons were not yet back.  2^nd male asked if the file had been closed.  1^st male said that it should be alright theoretically and secretly.  1^st male said it seemed a warrant was issued for the two who were not yet back.

102.  In CS4 on 6/3/2015, 1^st male advised 2^nd male that those who were not back yet should come back one at a time to be accompanied a lawyer to prevent them from revealing anything upon being questioned.  1^st male asked 2^nd male to inform him (1^st male) in advance so that he (1^st male) could pass the information on to others.  If those people returning were to be handled by his (1^st male’s) people, those people would be alright.  1^st male told 2^nd male that three people coming back together would probably be held for one or two months.  They (1^st and 2^nd males) would collect things quickly, if the people came back one by one.  1^st male asked 2^nd male to send a message to the other side that the police, that is his (1^st male’s) side, would try to suppress everything, eg CCTV was blurred, could not find witnesses, etc.  If the persons who returned were to be handled by his people, they would be alright.  But if they were to be handled by other teams, they would be booed.  They discussed that the previous one was remanded for a couple of months until 30^th January. 

103.  In CS5 on 2/6/2015, 1^st male told 2^nd male of a concern that the other side would evade payment by reporting to ICAC.  2^nd male  mentioned “Ah Lau”.  2^nd male asked 1^st male to tell someone that after giving the 50%, the rest had to be paid to others at the end of the month as it was believed that “Ah Lau” would probably be released after the first appearance in court or after 2 – 3 months at most.  2^nd male asked 1^st male to call someone to urge for $150,000, being half portion of the outstanding payment.  They believed that as they had quoted $600,000, someone might have made up the price of $1,000,000.  They had received $300,000 from someone and so $300,000 was still outstanding.  1^st and 2^nd males recapped how much they had already received from the other party.  The first payment was $200,000.  The second payment was $100,000 when someone was released after the second court appearance, ie before new year.  The first payment of $200,000 was shared by 4 persons while the second payment was shared by five persons.  1^st and 2^nd males agreed to have the final payment divided into 5 shares.  1^st male was willing to share $20,000 - $30,000 with “Fei Sam” as “Fei Sam” had rendered assistance to him in a number of cases.  2^nd male agreed to it. 

104.  In CS6 on 6/6/2015, 1^st male and 2^nd male discussed about how to split the $150,000 cash they had with them.  1^st male reiterated that it was to be divided among 5 persons and “Fei Sam” was entitled to $20,000.  2^nd male agreed to it.  1^st male said “Fei Sam” had good connections and could be of use.  1^st male told 2^nd male that he (1^st male) would ask “Fei Sam” to come down later to take the $20,000.

Prosecution’s Interpretations of CS1 – CS6 and Whatsapp Messages Put Together

105.  I consider the prosecution’s suggested interpretations [in square brackets] of CS1 – CS6 and whatsapp messages put together in chronological order.  The whatspp messages are in italics. 

106.  On 8/10/2014, D1 texted D2 that someone wanted to know the Murder Case and the case appeared to be handled by DATS YTDIST. 

107.  On 9/10/2014, D1 texted D2 that someone called “Fanling”[D3] had fixed up.  D2 reminded D1 to delete the messages.  D1 replied that he did not keep them. 

108.  On 16/10/2014, D1 texted D2 to ask if there was anything and told D2 to call his ghost phone at will.  D2 replied that he would ask about it tomorrow.  

109.  On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any time if the latest information was available.  D1 also informed D2 of his ghost phone number. 

110.  On 20/10/2014, D1 texted to ask D2 if there was any latest news and when “that lad” [one of the suspects] could come out. 

111.  In CS1 on 5/11/2014, D1 asked D2 how the progress was.  They discussed about blood test. D2 expected nil results as all blood belonged to the victim.  The PIC of “Hot Hard Hot” [Hot Shot Bar] was the only witness and this witness only saw a fight but not anyone being chopped.  So chopping could not be proved.  D1 said “Ah Lau” [LAU King-hei][55], “Tak Hau” [TANG Wai-yeung], and someone nicknamed “Ah Wai” had not returned. D2 corrected D1 that “Tak Hau” [TANG Wai-yeung] had already been arrested. They discussed about the available witnesses, whether it was necessary to conduct identification parade in this murder case.  D2 said there was no witness who had seen the part of murder.  Only an identification parade for the previous fighting scene but not for the murder. 

112.  On 12/12/2014, D1 texted D2 to ask if there were any updates.  D2 replied that it had to be next week, not so soon. 

113.  On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG) would ask for information.

114.  On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing from his close friend “Fanling” [D3].  D2 replied in the negative. 

115.  In CS2 on 14/1/2015, D1 mentioned the matter of 30^th [30/1/2015, the date of court hearing of suspect TANG in Kowloon City Magistracy].  D1 earned “6 Dou”[56] [$600,000].

116.  On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about the 30^th [30/1/2015, the court hearing].  D1 said someone was very nervous and, if that one’s close friend [suspect] could not walk out [get bail], someone would not know how to explain. 

117.  On 30/1/2015, D2 texted D1 that it seemed he (D2) was being followed.

118.  In CS3 on 25/2/2015, D1 said 2 persons [suspects] were not yet back.  D3 asked if the file [police file] had been closed.  D1 said that it should be alright theoretically and secretly.  D1 said it seemed a warrant [warrant of arrest] was issued for the two who were not yet back.

119.  On 28/2/2015, Sgt CHENG in two messages (“Two Messages”) texted to D2 the nicknames and corresponding full Chinese names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt CHENG told D2 that suspects TANG and CHAN among them were arrested and the others were being wanted. 

120.  On 1/3/2015, D1 sent the Two Messages to D3. 

121.  In CS4 on 6/3/2015, D1 advised D3 that those who were not back yet should come back one at a time to be accompanied by a lawyer to prevent them from revealing anything upon being questioned.  D1 asked D3 to inform him (D1) in advance so that he (D1) could pass the information on to others.  If those people returning were to be handled by his (D1’s) people, those people would be alright.  D1 told D3 that three people coming back together would probably be held for one or two months.  D1 asked D3 to send a message to tell the other side that the police, that is his (D1’s) side, would try to suppress everything, eg CCTV was blurred, could not find witnesses, etc.  They discussed that the previous one was remanded for a couple of months until 30^th [30/1/2015, the court hearing]. 

122.  On 7/3/2015, D2 texted D1 to ask when and how many would come back.  D1 answered that one had been told to come back individually. 

123.  On 24/3/2015, D1 texted D2 that those wretched friends would not be back until early 5/2015.

124.  On 9/4/2015, D3 texted D1 to ask if a reply could be given to the other side. Later on the same day, D1 texted D2 to ask for news about the case. 

125.  On 14/4/2015, D1 texted D2 to ask if there was any news as it was being asked by someone every day. 

126.  On 15/4/2015, D2 texted D1 that he (D2) had already asked someone to ask again. D2 suggested to have them talk face to face as mobile calls would leave records, inconvenient. 

127.  On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and D1 respectively.  D1 sent the Two Messages to D3.  D1 texted D3 that CCTV captured “Tak Hau” and “Sai Chun” [suspects TANG and KAN] holding knives and walking on the street.  D1 told D3 that no one upon their return should admit anything even if beaten to death and that was because guilty plea and cooperation would not mitigate murder or a sentence of life imprisonment. 

128.  On 4 – 20/5/2015, D1 texted D2 that “Sai Chun” [suspect KAN] would probably go back within a short period of time.  D1 texted D3 to go to find RCU 1KW.  D2 texted to ask D1 if the kid had gone yet.  D1 texted to reply D2 that it was around 11 o’ clock.  D1 then texted the same message to D3.  D3 texted D1 that risking life for landing. 

129.  On 21/5/2015, D3 texted D1 that the “buddy” [suspect] had come back.  D3 texted D1 that “Ah Lau” [suspect LAU] would appear in court at 8 am tomorrow.  D1 texted the same message to D2.  D1 texted D2 to discuss about the potential court hearing tomorrow.  D1 texted D2 to ask if “Ah Lau”, who surrendered to the police would be “sing-ma-thai”.  D2’s opinion was that it should be a good thing for “Ah Lau” to go to court so soon.  No identification parade was arranged as there was no witness, no evidence.  D1 texted D2’s opinion to D3.  D1 texted D2 to ask if “Ah Lau” would have a good chance for bail in the court hearing tomorrow.  D2 replied that they had been reminded of what should be done about the bail hearing. 

130.  On 22/5/2015, D1 texted D2 that the close friend’s close friend had probably come out. 

131.  On 26 – 27/5/2015, D1 texted D2 to discuss about the return of the last “kid” [suspect].  D2 texted D1 that all samples at the scene had been probably proved to belong to the victim, hence “Ah Lau” was not detained for checking the samples.  D1 texted D2 to ask around about “Ah Lau” and whether there was any yellow sheet [bail paper] concerning the case.  D2 replied that there was no evidence in the case, only images.  Even if there was to be a holding charge, it was highly likely that the court would grant bail. 

132.  On 28/5/2015, D1 texted D2 that the last “kid” [suspect] would arrive at 11 o’clock. 

133.  On 31/5/2015, D1 texted D2 that the “kid” [suspect] had come out.  D1 asked D2 if “Ah Lau” and the last kid had any yellow sheet [bail paper]. 

134.  On 2/6/2015, D1 texted D2 and discussed about the payment of their reward to be received and how to share it. 

135.  In CS5 on 2/6/2015, D1 and D3 discussed about the concern that the other side would evade payment by reporting to ICAC.  D3 mentioned “Ah Lau”.  D3 asked D1 to tell someone that after giving the 50%, the rest had to be paid to others at the end of the month as it was believed that “Ah Lau” would probably be released after the first appearance in court or after 2 – 3 months at most.  D3 asked D1 to call someone to urge for $150,000, being half portion of the outstanding payment.  They believed that as they had quoted $600,000, someone might have made up the price of $1,000,000.  They had received $300,000 from someone and so $300,000 was still outstanding.  D1 and D3 recapped how much they had already received from the other party.  The first payment was $200,000.  The second payment was $100,000 when someone was released after the second court appearance, ie before new year.  The first payment of $200,000 was shared by 4 persons while the second payment was shared by five persons.  D1 and D3 agreed to have the final payment divided into 5 shares.  D1 was willing to share $20,000 - $30,000 with “Fei Sam” [D2] as “Fei Sam” [D2] had rendered assistance to him in a number of cases.  D3 agreed to it. 

136.  In CS6 on 6/6/2015, D1 and D3 discussed about how to split the $150,000 cash they had with them.  D1 reiterated that it was to be divided among 5 persons and “Fei Sam” [D2] was entitled to $20,000.  D3 agreed to it.  D1 said “Fei Sam” [D2] had good connections and could be of use.  D1 told D3 that he (D1) would ask “Fei Sam” [D2] to come down later to take the $20,000. 

Could D1/D2/D3 Be Merely Present While Some Others On Board Talked or Used Speaker Phone

137.  I come to consider the possible contention that D1 – D3 might have kept quiet all the time while others on board were speaking or someone called in by speaker phone, resulting in the CS1 – CS6 audio records picking up voices attributable to other people, not D1 – D3.  I do not find merit in such contention in light of the perfectly coherent flow of matters discussed through the continuum of whatsapp messages and CS1 – CS6 put in chronological order as above.  It would have been impossible for anyone else, except D1 – D3, to weave into the continuum of whatsapp messages sent or replied among themselves so seamlessly if they had not been the very speakers in CS1 – CS6, as the case may be.

Defence Challenge to Prosecution’s Interpretations of CS1 – CS6 and Whatsapp Messages

138.  Mr. Khosa for D1 submits that, if D1 and D2 are found to be the speakers in CS1, there was no mention by D1 and D2 as to where D2’s information was from.  PW23 (WCIP YU Yuen-yan) had already sent a letter to the prosecutor in Kowloon City Magistracy regarding what outstanding investigation had to be done.  Besides, numerous crime messages were circulated to other police formations about the case.  Nothing D1 and D2 discussed was confidential.  I will deal with this issue of confidentiality later. 

139.  Mr. Khosa submits that in CS2, it is difficult to make sense of what D1 and D3 talked about, such as the immigration matters about someone being stopped, and loose references about land, Porsche, Uncle, some numbers, iPhone 6 functions, someone called Ah Ling, or soccer.  I do not think these matters talked between D1 and D3 had any significance at all.  

140.  Mr. Khosa submits that in CS3, the discussion was about Suspect TANG, who was already released by the court on 30/1/2015, and his negative DNA result publicized. Both matters were reported in the news[57] and in public domain.  I think the news only mentioned that DNA test was going to be conducted on TANG’s clothing.  It was never announced to the general public that it was already done or that the result was negative. 

141.  Mr. Davies for D2 argues that in CS1 on 5/11/2014, the speaker, if it was D2, said DNA results were not yet available whereas the undisputed evidence is that the results were available already on 3/11/2014[58]. I understand that D2 had to rely on others to provide such information to him. I do not think that he would be necessarily provided information within 2 days after it was completed.  Mr. Davies argues that the speaker in CS1 mentioned the evidence of the eye-witness despite such evidence being reported already in the newspaper[59]. I do not regard this part as confidential information.  Mr. Davies argues that the names of suspects would have been circulated to police officers.  The suspects themselves would know because police officers would have gone to their homes to look for them[60]. I think information circulated to a police officer remained to be confidential and, unless warranted by his official duty, he should not disseminate it to a third party.  The fact that the suspects knew or might believe themselves to be on the wanted list does not alter the confidential nature of the information.

Nicknames

142.  The prosecution suggests that certain nicknames were referable to the suspects in the Murder Case or the defendants, as the case may be.  The defence challenges the parity as not definite proof, such as whether “Tak Hau”must beTANG Wai-yeung, or “Ah Lau” must be LAU King-hei.  I agree that there is no concrete proof of such parity.  However, if there is a clear context in which the nickname appears, the nickname can suggest an actual person who, although being unidentified by a proper name, is occupying a particular role in the course of events.  As an example, it suffices for the prosecution if “Tak Hau” and “Ah Lau” are to be regarded as 2 unidentified persons on the police wanted persons' list in the Murder Case. 

Items of Information Involved in Present Charge

143.  The prosecution has identified 8 items of information which were passed by Sgt CHENG to D2, by D2 to D1, or by D1 to D3, as the case may be[61]. They include:

(1) the results of forensic examination;

(2) the evidence of eye-witness;

(3) information concerning the suspects;

(4) status of the investigation;

(5) information about the issue of warrants of arrest;

(6) information about CCTV footages;

(7) information about the bail or custody of the arrested persons;

(8) information about the identification parade.

144.  From the contents of whatsapp messages and CS1 – CS6, I am satisfied that these were passed between the parties as aforesaid. 

Whether the Information was Confidential

145.  The main thrust of the defence argument[62] is that when suspect TANG was brought to Kowloon City Magistracy on 9/10/2014, the police had written a memo to the prosecutor in court entitled “Request for remand in custody” setting out the investigation/prosecution work[63].  Its contents had become public knowledge.  There were media reporting of it.  Police investigation work done, such as the visit to the residences of wanted persons or their families, or the results notified to suspects after an identification parade might be freely spread around by the suspects and associates.  Or maybe the eye-witness told other people what he had seen.  The information from these civilians would become non-confidential.  D1 – D3 might only intend to deal with such non-confidential information. 

146.  To answer this argument, I think one has to differentiate between the information of police investigation work kept by the police (“Information Kept by the Police”) and the information of police investigation work in the public domain (“Information in the Public Domain”).   On the one hand, Information Kept by the Police was for the detection of crime.  A police officer is only in possession of such information because he has official duties in respect of it.  Such information must not be told to or shared with the general public.  The general police officers who have no official duties in respect of it are, as much as the general public, denied access to it.  In my view, it is in this sense “confidential”.  It remains confidential until the time has come for its official release to the general public.  On the other hand, Information in the Public Domain is such information already officially released to the general public, say, by way of the prosecution’s submissions to the judge in court.  Our present case does not concern with Information in the Public Domain.  It is only Information Kept by the Police that can qualify as “confidential” in our present case. 

147.  I note that in CS1 on 5/11/2014, D2 told D1 that nil results would be expected of the blood test as all the blood belonged to the victim.  I think such information necessarily had to come from Information Kept by the Police as the suspects and associates would not know it.  Besides, D2 told D1 that the person-in-charge of the restaurant was the only eye-witness to the fight.  Mr. Davies argues that such information was not confidential.  I think this eye-witness would not know if there were other eye-witnesses apart from himself.  Such information necessarily had to come from Information Kept by the Police.  In CS3 on 25/2/2015, D3 asked D1 if the file had been closed.  D1 replied that it should be alright theoretically and secretly.  I think only Information Kept by the Police can tell whether the file was closed.  These matters were denied to the general public.  I find it fanciful to argue that D1 and D2 were to be paid a hefty reward for simply being members of the public who gather news reports for D3 as Information in the Public Domain.  D3 would have sought out a news reporter if D3 was looking for Information in the Public Domain.  It is obvious that the official capacity of D1 and D2 as police officers give them access, whether direct or indirect (such as through Sgt CHENG for the list of wanted persons), to the Information Kept by the Police.  It must be the underlying reason for D3 to pay them such a hefty reward. 

148.  I reject the defence argument that the agreement was for D1 and D2 to procure and obtain Information in the Public Domain. 

Conclusion

149.  I am satisfied on the evidence that between 8/10/2014 and 7/6/2015 there was a conspiracy for D1 and D2 and others to procure and obtain confidential information of police investigation into the murder of WONG Man-kin and divulge it to D3 in return for monetary reward.  The aforesaid act of procuring, obtaining, and divulging was to be a continuum of wilful misconduct in their course of or in relation to their public office as police officers.   There was no reasonable excuse or justification for them to do so.  Such misconduct was serious in that it was contrary to the public interest in the investigation of crimes and the apprehension of suspects. 

150.  I find all ingredients of the charge proved beyond reasonable doubt.  D1 – D3 are convicted as charged.