HKSAR v. LEE KING MAN

CACC 96/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2005

(ON APPEAL FROM HCCC 121 & 272 OF 2004 (consolidated))

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. The applicant was the fifth defendant upon an indictment that charged him and four others with the offence of wounding with intent to do grievous bodily harm, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212.  After a trial before Mr Justice Lunn and a jury he was convicted of that offence on 16 February 2005 and sentenced to a term of eight years’ imprisonment.  He now seeks leave to appeal against that conviction.

2. It is undisputed that on the morning of 28 May 2003, Mr Wong Kam Tai arrived at his place of work at the offices of a container terminal in Kwai Chung.  After leaving his motor vehicle he was attacked by two men, one armed with a beef knife, the other with a long torch or rod.  The first four defendants were arrested in January 2004 and the case against them depended upon admissions they had made.  Their respective roles matter not for the purpose of this application.

3. This applicant was arrested on 30 May 2004.  The case against him depended upon the evidence of two witnesses:

(1)

Lee Wai Ching, an accomplice who gave evidence under an immunity from prosecution.  His testimony was that the applicant recruited him in mid-May 2003 to follow the victim to and from his home and place of work, to relay his movement details to the applicant and to act as a lookout on the day of the attack.  The prosecution also relied upon telephone record evidence of calls made in May 2003 between Lee and the applicant.  He said that on 28 May 2003 he was acting as a lookout at the Kwai Chung terminal and notified the applicant of the victim’s arrival there, later confirming to the applicant that there were no police about and, finally, that the attack had been successful.  He said that the applicant had paid him $10,000 for his services.

(2)

The evidence of an undercover police officer who feigned sleep in the cell in which the applicant had been placed with another arrested man, Wong Shek Ming, on 30 May 2004.  The officer testified that he heard a conversation between the two which was said by the prosecution to inculpate the applicant.

4. The applicant did not give evidence.  His case put in cross-examination was that his contacts by telephone with Lee were in relation to the sale of motor vehicles.  The suggestion was that Lee had asked the applicant to sell motor vehicles for Lee’s friends and had also permitted the applicant to register a motor vehicle in Lee’s name.  Lee was said to have a grudge against the applicant and, further, to be willing to implicate him in order to escape his own complicity in the crime.  As for the police officer’s evidence, the suggestion was that the conversation about which he testified had not taken place.

Provision of a transcript

5. The first three grounds of appeal relate to one incident, namely, the furnishing by a police officer to the witness Lee with a transcript of a video-recorded interview.  The record was of an interview of Lee by the police after Lee’s arrest.  The irregularity in this course was that Lee was in the middle of cross-examination when this happened, counsel for the applicant having applied for an adjournment so that such a transcript could be obtained so that Lee could be cross-examined upon it.  It was during the adjournment that the transcript was supplied by a police officer to Lee, an opportunity which, as we shall see, Lee took to check discrepancies between the oral testimony he had thus far provided and details in the interview.

6. The testimony of this witness was highly detailed, providing particulars of the circumstances in which he was approached by the applicant, of the many telephone calls between them, of the ten or more visits to the container terminal area as well as of trips to the victim’s residence, what the witness saw on the day of the attack, what the applicant had said to him about the purpose of the entire exercise, and of the reward for Lee’s part in it.  Counsel for the applicant at trial spent a considerable portion of his cross-examination seeking to establish disparities between details provided in evidence and those provided by Lee to the police at various stages.

7. Cross-examination of this witness commenced early on 1 February 2005.  It began with a suggested disparity between oral testimony and something the witness had told the police upon his arrest as to whether by the time of the attack he, the witness, had departed the scene.

8. In the latter part of the afternoon session of 1 February 2005, counsel for the applicant asked for an adjournment for a full day.  Although counsel had been in possession for some time of a record of the video interview of Lee, he wanted to prepare a transcript of it for further cross-examination, omitting prejudicial or non-admissible parts.  He gave an example of the type of disparity with which he wished to confront the witness: it related to whether on the occasion of the first visit to the container terminal, the witness went by himself or with the applicant.  An adjournment was granted to 3 February 2005.

9. On the occasion of each break in proceedings, whilst Lee was testifying, the judge warned the witness not to discuss the evidence he had been giving or to allow anyone to raise with him the subject matter of his evidence.

10. Cross-examination on 3 February 2005 commenced with counsel putting to Lee the contention that during the video interview, the witness told the police that on the first visit to the container terminal he had been by himself rather than with the applicant, and that that was different from the testimony that he, the witness, had given in court.  The witness accepted the disparity and explained that the incident had taken place two years ago and that he could not at the time he came to testify remember exactly what had happened.  Shortly thereafter the court asked whether he, the witness, had ever read a transcript of the interview and the witness said: “No, never.”  There was then a very brief exchange between the Court and counsel for the applicant about playing part of the tape, when the witness interrupted:

“	[Lee]:	I wish to ask something.
	Court:	Yes.
	A.	I wish to modify my answer which I told the court earlier.  In fact, I have received the transcript of the record of interview yesterday and I have read it.
	Q [Counsel]:		But Mr Lee , who gave you the transcript of your interview yesterday?
	A.	A police sergeant.
	Q.	A sergeant gave it to you.  Did you request that transcript be given to you?
	A.	Not upon my request.
	Q.	Well, did you know that I was going to ask you about the transcript?
		…
	A.	No, I did not know.”

11. Cross-examination then proceeded upon discrepancies, with answers given, and then a little later the issue of the transcript was revived:

“	Q.	Mr Lee.  Have you been studying your transcript for some time yesterday?
	A.	I read it twice.
	Q.	And you spotted out any discrepancies between what you told the members of the jury and what you told the police, isn’t that right?
	A.	Yes.
	Q.	And you’ve been thinking of how to answer questions about these discrepancies, isn’t that right?
	A.	Right.
	Q.	Now, as a man of the truth, why did you so worry about all these things?  You’re here to tell the members of the jury of the truth.  Why have you worked this out and get all these discrepancies ironed out?
	A.	After the record of interview, I had not seen the transcript of it until yesterday.  When I read it, I noticed that there are discrepancies between the evidence I gave to the jury and what I told the police in the video, so for that reason, I read it twice.”

12. After cross-examination was concluded, counsel for the prosecution expressed his dismay that the record of interview had been shown to the witness at the stage it was, and the Court said that inquiries about the circumstances of its delivery to the witness should be made.  No comment in this regard was made by counsel for the applicant who appeared, as we shall see, content to leave the matter to his closing speech.  The judge alluded to it in his summing-up.  He told the jury that the provision of the transcript to the witness during the adjournment had been quite wrong, particularly since he had repeatedly advised the witness not to discuss his evidence with others or allow them to discuss the matter with him.

13. The complaint now advanced on behalf of the applicant is that the provision of the record of interview to the witness was a material irregularity and that the trial judge erred in allowing the trial to proceed without first having ascertained all the circumstances surrounding its provision and, further, that the judge failed to give an adequate direction to the jury as to how to regard the evidence of the witness following the “unauthorised memory refreshing exercises”.

14. It is accepted by Ms Sin on behalf of the respondent upon this appeal that the provision of the transcript to the witness in the particular circumstances that arose was, without leave of the court, inappropriate.  We have affidavit evidence from counsel who prosecuted at trial as to the inquiries that subsequently were made and it is asserted on the basis of information obtained from the officer concerned, that nothing was said to the witness but that the transcript was merely supplied to him.  It ought not to have been supplied, certainly not without the Court’s leave, for the effect was thereby to enable the witness to prepare for questions about disparities and one is bound to be disconcerted by the possible motive of the officer who took the step of supplying the transcript.

15. Nonetheless, despite the fact that we deprecate what happened, we are concerned here with the effect in the appellate context of what transpired on the propriety of the conviction and we are satisfied that the dangers and effect of what transpired are not such as to warrant upsetting the conviction.  We say that for several reasons.  First, the unchallenged evidence of the witness – who quite unprompted, it must be remembered, volunteered what had happened – was that he was not forewarned about the use that was to be made of the transcript.  Secondly, there was nothing to stop the witness seeing the record before he commenced testimony.  Had that happened in the present case it may well be that the material for cross-examination – in other words the discrepancies – would not have emerged in the first place.  It was some two years between the events in question and the testimony given, and the failure in this case to provide the witness in advance with a copy of this interview record ran the danger of rendering the exercise something of a memory game.  Mr Percy makes the point in answer to this that the witness had a written statement anyway before him from which he had refreshed his memory, which witness statement must have mirrored the video interview.  If that be the case, then provision of the video interview record would have made little difference.

16. Furthermore the jury was made aware of the fact that the witness had been provided with this opportunity to see the transcript before cross-examination about it and nothing could obliterate the fact that the disparities were established.  The only disadvantage to which defence counsel was put was that as a result of the memory refreshing exercise taking place when it did, the witness was in a position to provide reasons which might have sounded more cogent than had he not had that opportunity.  We doubt that in reality there was much in that advantage.  Considerable attention is often placed in cross-examination on discrepancies, often of little value when events are so stale, rather than on more cogent tests of reliability, such as inherent probabilities or obvious oddities in conduct, and in this particular case the detail and extent of the witness’ testimony was of itself telling.  In the event, counsel for the applicant turned the occasion to his advantage, as we see from his closing speech to the jury, in which he made the suggestion that so worried was the witness about the discrepancies which were apparent, that he had had twice to study the transcript to consider what answers he might give.  So in this sense the matter cuts both ways.  The jury was aware that what had happened ought not to have happened and were adequately warned about the care to take with the testimony of this witness.  Criticism is made by Mr Percy of the fact that the judge did not hold a voir dire to ascertain in detail what had happened.  But in answer to this, the fact is that counsel for the applicant took a tactical decision and did not invite further inquiry or a conclusion to the inquiry before the trial’s end nor, in particular, did he seek to cross-examine the officer who provided the transcript.

17. Although the ground is one sufficiently arguable to warrant the granting of leave to appeal, it is in our judgment not a ground that can succeed.

Eavesdropping

18. DPC Chan Chit posed as a prisoner in the detention cell to which the applicant and Wong Shek Ming were taken on the morning of 30 May 2004.  The officer testified that he pretended to be asleep and overheard the applicant say to Wong: “The prat confessed everything to the cops, saying that I asked him to shadow the fool.  He even confessed my telephone number and the amount of money I paid him.”  Then, according to this testimony, Wong said to the applicant: “I’m not afraid of this, at the most, I would be detained for 48 hours … .  At the most I would be detained for 14 days.  Remember that the three mandrax prats taking part in the attack even confessed everything, were just detained for several days.  We even did not say anything, what we should fucking be afraid of?”, to which the applicant is said to have responded: “That’s right.”

19. It is said upon this application that the judge erred in the exercise of his discretion in allowing this evidence to be adduced.  Mr Percy relies expressly upon the decision in R v Lee Yi-choi [1985] 1 HKC 578.  In that case, the defendant was charged with murder.  After he had been charged, a detective constable was introduced into his cell under the pretence of being a fellow prisoner.  There then took place, directly between that police officer and the defendant, a lengthy conversation of about one hour, during which the officer pretended that he had been arrested for committing a robbery in which someone had been killed.  In the course of that conversation, the defendant made inculpatory remarks which proved to be significantly corroborative of the main prosecution witness’ evidence.  Their Lordships took the view that the conduct of the police officer made a mockery of the caution that had been administered when written statements had been taken from him and when he was charged, and that the confession had been obtained as a result of a trick, wherefor the judge ought to have excluded the testimony.

20. It would have been better had Mr Percy drawn our attention to a decision of the Court of Appeal in Hong Kong subsequent to Lee Yi Choi, namely HKSAR v Ng Wai Man [1998] 3 HKC 103 and better still had he drawn our attention to what the Court of Final Appeal had to say in the Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168 both in respect of this issue generally and in relation to Lee Yi Choi.

21. In Lam Tat Ming, the Court addressed the specific question of undercover operations that involve a suspect, as opposed to an operation in relation to an ongoing crime.  In the normal course of events a suspect has to be cautioned if he is to be asked any questions but, their Lordships pointed out at p. 181:

“	With an undercover operation, this obviously could not be done. In this situation, once the officer actively questions the suspect, we enter into an area which may engage the exercise of the residual discretion.
	40.	How it should be exercised will depend on what follows. If all the officer does is to draw attention to the incident which gives rise to the offence charged, in the absence of any other relevant circumstances, there is no persuasive reason for excluding a confession made. The officer is doing no more than providing an opportunity for the suspect to speak. If however what the officer does amounts to interrogation, the discretion would ordinarily be exercised so as to exclude the confession. Such an interrogation would constitute a derogation of the accused’s right of silence and thus prejudice his fair trial.”

22. The Chief Justice, in Lam Tat Ming, addressed the decision in Lee Yee Choi.  He pointed out, at p. 183, that in that case the applicant had been more than a mere suspect; he had been charged and was in custody:

“

The Secretary for Security’s rules and directions provide that it is only in exceptional cases that questions relating to the offence should be put to the accused after he has been charged or informed that he may be prosecuted. It is unnecessary to consider in this appeal the correctness of that decision involving an accused who had been charged and was in custody. In any event, that decision may be distinguishable on the ground that the evidence of the confession was unreliable as the officer could only make a note of the conversation the next morning, although this aspect was not mentioned in the judgment.”

23. Although in this particular case the applicant was in custody, he was a suspect who had not been charged or questioned and in any event it is sufficiently clear to us from Lam Tat Ming that in the factual context that here obtained – a conversation between two suspects, not engineered or triggered by the police officer and a conversation in which the officer did not in any way engage – evidence of the conversation did not require to be excluded.  This was a serious case in which the applicant was suspected as a prime player and he took part in the conversation in his cell without any invitation or prompting by the police officer in circumstances in which it must have been obvious to the applicant that he was at risk of being overheard by a third party: there was a third party in the cell for all the world to see.  These are much the same considerations as persuaded the court in R v Keeton (1970) 54 Cr App R 267, referred to in Lam Tak Ming, that the exercise of the judge’s discretion in the court below not to exclude the testimony was correct.

24. We note that in the course of the proceedings in the court below the invitation to the trial judge to exclude the evidence was based on the sole basis that the evidence was more prejudicial then probative; and not on the basis of the suggested trick upon which Mr Percy now relies.  Mr Percy repeats the argument that the evidence was more prejudicial than probative, on the footing that the recollection of the police officer was unreliable because he had only made a record of conversation the next morning.  The point is weak.  This was pre-eminently a matter for the jury.

25. Then Mr Percy advances the rather surprising submission that the evidence of the police officer was inadmissible because it was hearsay evidence.  In so far as we understand the intent of the submission, we think it is to the effect that the truth of what Wong said to the applicant in the cell could not be proved by the evidence of the police officer; alternatively, as it is put in the written submissions from Mr Percy, that “the jury should have been directed that [the applicant] could not have made an admission of his involvement by stating ‘That’s right’ when there was no admissible evidence of the truth of what Wong said”.  The short answer is that the evidence adduced was that of an admission against interest by the applicant, constituted not only by what he, the applicant, said, but also by his suggested agreement with statements made by Wong.  Admissions against interest are an established exception to the hearsay rule.  There are other points allied to the admission of this evidence which we need not itemize.  We have considered them and, in our view, there is nothing in them.

Conclusion

26. Accordingly, whilst we grant the applicant leave to appeal against conviction and treat the hearing of this application as the appeal, the appeal is dismissed.