HKSAR v. SUNDIP SINGH SUNNY AND OTHERS

DCCC 386/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 386 OF 2014

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

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

Reasons for Verdict

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

1. There are three defendants before me, Sundip Singh Sunny (D1), Chen Kin-man (D2) and Cheung Chak-sek (D3), each of the defendants is a teenager with a clear criminal record.

2. This case arose from a police undercover operation codenamed “Highscorer”. DPC 10029 (PW1) took part in the operation and was assigned the role of an undercover officer.  During the operation, PW1 concealed his identity as a police officer and adopted “Ah Ho” and “Siu Po” as his pseudonyms.  PW1 started to act as undercover agent on 17 June 2012.  The operation turned overt on 29 March 2013.  During a street identification, PW1 identified D1, D2 and D3 in the presence of CIP Chan Siu-ming.  The three defendants were arrested and subsequently charged.

3. D1, D2 and D3 face a joint charge of “Conspiracy to Wound with Intent” (Charge 5). 

4. D1 also faces a charge of “Claiming to be a Member of a Triad Society” (Charge 1), one of “Inviting a Person to Become a Member of a Triad Society” (Charge 2) and two charges of “Acting as a Member of a Triad Society” (Charge 3 and 4). 

5. D1, D2 and D3 all pleaded not guilty to the respective charges laid against them.

6. The prosecution sought to put in five video recorded interviews of D1.  Mr Khosa for D1 took issue with the admissibility of all five video recorded interviews.  He lodged a written grounds of objection, which sets out D1’s various complaints against DPC 5989 (PW2) and DPC 51440 (PW3), the two officers who interviewed D1 in the video recorded interviews.  I held a voire dire to determine the admissibility of the video recorded interviews.  At the end of the voire dire, I ruled against the prosecution.  I ruled that all five video recorded interviews are inadmissible.

7. After the prosecution closed its case, I found that D1, D2 and D3 each had a case to answer on the respective charges against them.

8. D1 elected to give evidence but called no witness.  Both D2 and D3 elected not to give evidence and called no witness.

9. The prosecution called only three live witnesses:  PW1, PW2 and PW3.  PW1 gave evidence under an immunity from prosecution.  As for PW2 and PW3, their evidence concerned the special issues only.

10. The following statements are admitted pursuant to Section 65B of the Criminal Procedure Ordinance: 

(1) a statement of CIP Chan Siu-ming, the officer who conducted the on-street identification;

(2) a statement of DPC 58500, the officer who arrested D2;

(3) a statement of DPC 33015, the officer who arrested D3;

(4) a statement of Mr Lam Yiu-on, the Chinese/English interpreter who took part in the video recorded interviews of D1;

(5) a statement of Madam Mak Kwok-po, the Chinese/English interpreter who took part in the video recorded interviews of D1 and; and

(6) four statements of Sergeant 49287. Sergeant 49287 is a triad expert.

11. The statements of the interpreters, Mr Lam and Madam Mak, are not relevant to the general issues.

12. Three sets of admitted facts are put in pursuant to Section 65C of the Criminal Procedure Ordinance: 

(1) P12 concerns the production of five photo albums;

(2) P28 concerns the clear record of all three defendants, the street identification and the arrest of the three defendants;

(3) P27 is the admitted facts reached between the prosecution and D1. It concerns what PW1 and his handling officer would do when the two met at the safe house during the operation “Highscorer”.

13. The evidence of PW1 can be summarised as follows. 

Charge 1

14. In the late hours on 3 August 2012, PW1 met Wong Chun-sing (pseudonym “Sing Chai”) and Lau Lee-pang (pseudonym “Lau Lee”) at Tsing Yi and Kwai Fong respectively.  The trio then went to a cybercafé at Hing Fong.  They left at around 0343 hours on 4 August 2012 and proceeded to Hing Fong Road playground.  There they met D1, who was with an “Ah Fung”, a male whose name PW1 did not know and two unknown males. The party chatted at the location.  D1 spoke in fluent Cantonese.  Although the gathering on 4 August was not the first time that PW1 saw D1, PW1 saw D1 for the first time on 29 July 2012; it was on 4 August 2012 that PW1 was first introduced to D1.  PW1 came to know D1’s name is “Sunny” when “Lau Lee” chatted with D1, later, when those present were chatting together, D1 asked for PW1’s name and the two exchanged telephone numbers.  D1 told PW1 to drop his name and call him if anything or any trouble occurred in Kwai Fong.  He was of Tsuen Wan “Wo Shing Wo”.  “Ah Fung” was his follower.  After the aforesaid utterance by D1, PW1 remained at the scene for some time until he left at around 0550 hours. 

15. PW1 disagreed with the suggestion put to him by Mr Khosa that the meeting at Hing Fong Road Park was just a common gathering of youngsters, those present just chatted their way and nobody ever uttered anything about triad society.

Charge 2

16. At 0713 hours on 6 August 2012, PW1 was outside the ground floor of Kwai Chi House, Kwai Fong Estate with D1, “Lau Lee”, “Sing Chai” and D2, Chen Kin-man (pseudonym “Tai Man”). During the gathering, there were one-to-one conversations and group conversations among those present.  D1 asked PW1 if he was following any big brother.  PW1 said he was not.  D1 then said, “If you have not, why not follow me?  I am of ‘Shing Wo’.  My big brother is ‘Big Nose’.  If anything happens, quote my name.  It’s okay.”

17. Mr Khosa cross-examined PW1 why he did not reply to D1’s invitation that evening.  PW1 explained he did not know D1 deep enough at the time and he did not know what effect it would have on the operation if he were to give a “yes” or “no” reply.  His decision at the time was not to make any reply and he should record accurately later on what D1 had said. 

18. PW1 disagreed with Mr Khosa’s suggestion that in the early hours on 6 August 2012, D1 had never invited him to follow him or to join “Wo Shing Wo”.

Charge 3

19. At 2251 hours on 10 August 2012, PW1 was having a gathering with “Lau Lee”, “Sing Chai”, Sze Yu-fung (pseudonym “Sze Fei”), “Ah Yin”, Wong Chung-sing (pseudonym “Ah Sing”) outside Kwai Hei House, Kwai Fong Estate when D1 appeared with D3, Cheung Chak-sek (pseudonym “Sek Chai”). 

20. D1 said to those present:  “I have arranged to meet and negotiate with a group of “Shui Fong Chai”, follow me to “Kwai Kong”.  PW1 understood D1 was going to have a negotiation talk with people of “Shui Fong”.  The whole party proceeded to and arrived at the third floor of Kwai Chung Plaza at 2310 hours.  The vicinity was outside the Yoshinoya restaurant and next to the exit door of a rear staircase.  There were a lot of youngsters congregated at the vicinity at that time.  At 2340 hours, a male, Leung Chi-kin, appeared from the exit door of the rear staircase.  Leung walked up to D1 and said, “Your subordinates are very cheeky.  I will definitely bother the (four-letter word) out of him.  Don’t see us ‘Shui Fong Chai’ as nothing.”  D1 responded by saying, “Go ahead and bother.”  D1’s group, together with PW1, left at 2357 hours. 

21. It was put to PW1 that:

(1) D1 had never told him he was going to Kwai Chung Plaza for a settlement talk with “Shui Fong” people;

(2) the meeting with Leung outside Yoshinoya was a chance meeting; and

(3) there was no triad talk of any kind between D1 and Leung outside Yoshinoya.

22. PW1 disagreed.

Charge 4

23. Since D1 invited PW1 to join “Shing Wo” on 6 August 2012, D1 had twice asked PW1 for a “lai see” (red packet).  D1 first asked PW1 for a “lai see” in mid-August 2012, PW1’s response at that time was that he would prepare it when he was free.  PW1 believed that by then he had gained trust from D1.  On 15 September 2012, D1 reminded PW1 to give him a “lai see”.  On one of the aforesaid occasions, D1 told PW1 that the “lai see” should contain three $1 coins, one 50-cent coin and one 10-cent coin, as only coins of round edge should be used.  After the reminder from D1 on 15 September 2012, PW1 prepared a red packet of $3.60 and carried it with him.

24. In the evening on 18 September 2012, when PW1 met D1 by chance at Shing Fong Street Playground in Kwai Fong, D1 asked PW1 whether he had prepared the “lo mo” D1 had asked for. PW1 understood D1 was asking about the “lai see”.  He told D1 that he had prepared the same and he passed a “lai see” of $3.60 to D1.  D1 then told PW1 words to the effect that from then onwards, they were fellowmen.  For anything that might occur, PW1 would be part of it.  D1 also told PW1 that he would soon go over to “Lo Sun” and he would ask PW1 to do the same.  D1 also said he would call PW1 if he had any news about the going over to “Lo Sun”.

25. Mr Khosa put to PW1 that he did not give any “lai see” to D1 and the alleged utterance by D1 did not take place.  PW1 disagreed.

Charge 5

26. At around 2045 hours on 20 November 2012, PW1 and D2 walked together to Shing Fong Street Playground, where they met D1 and D3.  D1 said to PW1, D2 and D3 words to the effect that on the following day, PW1, D2 and D3 had to do something for D1’s big brother, Mo Chong-man (pseudonym “Sai Kwai”).  “Sai Kwai” had instructed them to go to Eastern Court on the following day to beat up someone.  D1 said they would discuss the matter with “Sai Kwai” soon and asked the trio to wait for his telephone call. 

27. PW1 and D2 then went to a cybercafé.  PW1 and D2 remained at the cybercafé with “Lau Lee”, who was also at the cybercafé.  At 2158 hours, D2 received a phone call which he said was a phone call from D1.  PW1, D2 and “Lau Lee” then proceeded to Shing Fong Street Playground, where they met D1, D3, a male called Li Leung-fai (pseudonym “Ah Fai”) and a male known as “Fei Nun”. The whole party then took two taxis and went to a bar in Tsuen Wan, where they met “Sai Kwai” at around 2230 hours. 

28. “Sai Kwai” told the group that he needed them to go to Eastern Court the following day to beat a taxi driver who had had a car crash with “Sai Kwai”’s big brother.  The big brother had thus had an issue with the taxi driver and they must beat the taxi driver until his eyes burst.  “Sai Kwai” said he would go out with them on the following day.  He further instructed PW1 to buy a glass bottle of something the following day from an OK convenience store and burst it on the taxi driver. 

29. D1, D2 and D3, “Fei Nun”, “Ah Fai” and “Lau Lee” and PW1 left the bar and went back to Kwai Fong.  D2, D3, “Fei Nun”, “Ah Fai” and PW1 returned to the cybercafé and were later joined by D1.  D1 then asked D2, D3 and PW1 to go outside of the cybercafé, where each was paid $500 as payment for the attack.

30. At around 0705 hours on 21 November 2012, D1, D2, D3 and PW1 went to the ground floor of Kwai Hei House, where they were joined by “Sai Kwai”.  The party took a taxi to Eastern Court and arrived at 0735 hours.  Upon arrival at Eastern Court, D1 told D2, D3 and PW1 to walk around in the vicinity and wait for instructions as to when the taxi driver would appear from Eastern Court, D1 also told the trio to see if there were police officers around and be careful. D2, D3 and PW1 wandered in the vicinity from 0735 hours till 1340 hours.  They were once stopped and questioned by some uniformed police officers. Eventually, D3 received a phone call and the trio then took a taxi to Shau Kei Wan MTR station, where they met D1 and “Sai Kwai”.  “Sai Kwai” said there were too many police officers in the vicinity and the job was called off.  The whole party then returned to Kwai Fong. 

31. The $500 that PW1 received from D1 was produced as P1.

32. Mr Khosa put to PW1 that the $500 from D1 was, in fact, a loan to PW1 and D1 did not go to Eastern Court on 21 November 2012.  PW1 disagreed.

33. Mr Ng put to PW1 that the plan to attack a taxi driver on 21 November did not exist and no such instructions were ever given.  PW1 disagreed.

34. PW1 disagreed with Mr Leung for D3 that “Sai Kwai” was trying to test PW1 out by asking PW1 to take part in an attack which did not really exist.  PW1 said while he was wandering in the vicinity of Eastern Court, he saw D1 and “Sai Kwai” staring at the entrance of the court building.  PW1 also disagreed with Mr Leung that only D2, D3 and PW1 took a taxi to Eastern Court on 21 November 2012.

35. D1 gave evidence that he grew up in Kwai Fong Estate.  He had made a lot of friends living in the estate.  In his spare time, he would roam around in Kwai Chung Plaza or in parks. 

36. He was 17 at the time the alleged offences took place.  He worked for his father, who engaged in demolishing and cleaning flats under renovation.  He worked on a part-time basis.  He made on average $6,000 a month, but his father would only pay him 1,000 to 2,000 dollars per month. 

37. D1 denied he was a member of a triad society.  He denied he ever did anything concerning the work of triad societies.

Charge 1

38. D1 said he could not remember where he was in the early hours on 4 August 2012, but he denied he ever said to PW1 that he was a member of Tsuen Wan “Shing Wo” and “Ah Fung” was his follower.  He denied he ever told PW1 to drop his name and call him if the latter got into any trouble in Kwai Fong.

Charge 2

39. D1 denied he had engaged in the alleged conversation with PW1 in the morning on 6 August 2012. He did not ask if PW1 had a big brother and he did not invite PW1 to follow him.

Charge 3

40. PW1 said he and his companions often went to Kwai Chung Plaza during the summert ime for the air-conditioning.  For the gathering outside Kwai Hei House, D1 said he often met his friends like this outside Kwai Hei House.  For the visit to Kwai Chung Plaza, i.e. the one referred to by PW1, D1 said he and his friends went there for food.  He met a friend called “Ah Kin” outside Yoshinoya restaurant by chance.  At “Ah Kin”’s invitation, D1, PW1 went out with “Ah Kin” to smoke cigarettes.  The conversation between D1 and “Ah Kin” had nothing to do with triad societies.

Charge 4

41. D1 said he could not remember if he was at Shing Fong Street Playground at around 9 pm on 18 September 2012.  He denied he had ever asked PW1 for “lai see”.  He also denied he asked for, and received a “lai see” of $3.60 from PW1 on 18 September 2012.  He denied he had said anything about he and PW1 had become fellowmen and that he had a plan to leave “Shing Wo” for “Lo Sun”.

Charge 5

42. D1 denied he had ever asked PW1, D2 and D3 to beat someone for the “big brother”. 

43. For the visit to the bar in Tsuen Wan, D1 said he, D2, D3, “Ah Fai”, “Fei Nun” and PW1 went to the bar just for drinks.  D1 did know a person called “Sai Kwai”. D1 used to play basketball with “Sai Kwai” in Kwai Fong Estate.  In the evening in question, D1 met “Sai Kwai” by chance in a bar.  “Sai Kwai” was with his friends at a table close to D1’s.  On that occasion, “Sai Kwai” had invited D1 to play drinking games with him, but nothing about beating up a taxi driver at Eastern Court was ever mentioned during D1’s stay at the bar.

44. D1 said he did give $500 to PW1 as a loan, not as the reward for PW1’s participation in the plan to attack.  PW1 asked for a loan at that time and promised to repay D1 the next month. 

45. D1 said he did not go to Eastern Court with PW1, D2 and D3 in the morning on 21 November 2012 nor did he meet up with them at the Shau Kei Wan MTR station later in the afternoon.

46. When cross-examined by Mr Ng, D1 said D2 did not go with him to the bar in Tsuen Wan.  D1 saw D2 when D1’s party was about to leave the bar.

Voire dire

47. I considered the evidence relevant to the special issues and the submissions made by Mr Tracy and Mr Khosa.

48. I am aware that D1 has a clear record, hence he is more likely to tell the truth in his evidence.

49. PW2 and PW3 remained unshaken under cross-examination.  Both witnesses impressed me as honest and reliable witnesses.  They gave their evidence in a straightforward manner. 

50. D1 did not impress me as an honest and reliable witness.  D1 complained that, as a result of what was said by PW3, he agreed to make a deal with the police.  In the video recorded interviews that were to take place, D1 would admit all the triad-related charges and deny all the other non-triad related allegations.  Obviously, the aforesaid evidence of D1 does not sit well with the admissions and denials made by D1 in the five video recorded interviews sought to be produced.  D1 did not admit all the triad-related offences.  He made admissions to the alleged conspiracy to wound.  D1 could not explain satisfactorily why he acted contrary to the deal he alleged he had made with PW3. 

51. D1 complained he was denied access to contact his family members, he could not satisfactorily explain why he did not ask the Duty Officer to let him contact his family members while he was in the custody of the Duty Officer.

52. I am concerned, however, with the protest made by D1 to the Punjabi interpreter in one of the video recorded interviews.  The way D1 protested to the interpreter at the end has caused me some concern about the voluntariness or otherwise of the video recorded interviews.  There is a reasonable doubt in my mind and D1 must be given the benefit of it.  I ruled, therefore, that the prosecution has failed to prove beyond reasonable doubt the five video recorded interviews were given by D1 freely and voluntarily.  I ruled all five video recorded interviews inadmissible.

General issues

53. I attach full weight to the statements produced under Section 65B, except the statements by the English/Chinese interpreters.  The statement of Mr Lam and Madam Mak are of no relevance to the general issues after my ruling on the special issues. 

54. The prosecution case stands or falls on the evidence of PW1. 

55. All three defendants are young men of clear criminal record.  D1 to D3 are less likely to offend against the law.  D1 is more likely to tell the truth in his evidence on the general issues. 

56. The prosecution brought the proceedings against the defendants, it is for the prosecution to prove its case against each defendant beyond reasonable doubt.

57. I am grateful to counsel for their written closing submissions.  Before I reached my verdict, I have considered all the evidence relevant to the general issues and submissions made.  The fact that I have not mentioned a particular piece of evidence or argument made by counsel in my verdict does not mean the same as escaped my attention.

58. Mr Khosa questions the ability of PW1 to remember accurately what happened between 4 August 2012 and 22 November 2012.  On the evidence before me, I accept PW1’s evidence as to how he recorded the relevant incidents in the Occurrence Book.  When PW1 wrote his witness statements, the Occurrence Book was the only record that PW1 used to refresh his memory.  It is quite true that PW1 had to refer to the Occurrence Book on occasions when he testified in court, it does not mean that PW1 had difficulty in remembering what happened at the material times.  Giving evidence in court is not a test of one’s ability to memorise details that happened a long time ago.  In a case like the present one, when PW1 is called upon to remember details of events that happened in 2012, for example, who else were present with him when he saw D1 for the first time on 29 July 2012, it is only reasonable and understandable that he would refer to the Occurrence Book.

59. I do not think the way PW1 recorded his Occurrence Book shows that what he recorded was a fabrication.  Mr Khosa complains about the purported precision and exactness of the timing of the events.  I accept as reasonable and credible the evidence of PW1 that he would look at his watch to see what the time was when certain events happened.  When PW1 made his record in the Occurrence Book, of course, he had to rely on his recollection as to the timing of the events.  As PW1 stressed in his evidence, there would be discrepancies about the timing.  The records about timing of events in the Occurrence Book are only rough estimation and approximation by PW1 after a day’s work.  When the times concerned telephone conversations that PW1 had with somebody, PW1 would refer to his mobile phone to find out when the conversations took place.  On the evidence before me, I do not think PW1 recorded the times with purported exactness and precision shows that he fabricated what happened. 

60. One can see from the Occurrence Book that when PW1 purported to record what was said by people, he recorded what people said in direct speech.  Mr Khosa complains that it is impossible for PW1 to have remembered the purported verbatim exchange of lengthy conversations, hence, the Occurrence Book was fabricated by PW1.  In my judgment, when PW1 witnessed an exchange of conversation which revealed some criminal activities were going on, there is nothing wrong for PW1 to record the conversation using direct speech, making a record of who said what and the order of the exchange.  It is undesirable to record just a gist of conversation when there was more than one person involved.  A record in the form of a summary is undesirable, as a reader of the record would not be able to find out what was said by whom.  Of course, PW1 could have recorded the exchange of conversations in indirect speech instead of direct speech, it is really a matter of style and I do not think the use of direct speech shows that PW1 fabricated what happened.  I accept as credible and reliable the evidence of PW1 that, the records he made as to what was said might not be faultless verbatim records, but the meaning and contents are accurate.  Mr Ng submits that there is nothing wrong for PW1 to make a brief note of what happened before he had the opportunity to make his record in the Occurrence Book, Mr Ng says he was puzzled by PW1’s answer that he had made no brief note of the kind suggested by Mr Ng.  In my judgment, if PW1 were to make a brief note of what happened and if he were found out, that would have placed him in a most dangerous position.  I accept PW1’s evidence that he tried his very best to record down the relevant incidents in the Occurrence Book to the best of his ability.  In my judgment, PW1’s way of recording relevant incidents accord with good common sense.

61. Mr Khosa submits that it is inherently improbable that D1 would reveal his triad background to PW1 when the two spoke for the first time. I do not agree.  In my judgment, there is nothing inherently improbable in the account given by PW1, that a 17-year-old youngster revealed his triad background and claimed himself to be a member of “Wo Shing Wo” Triad Society.  PW1 was then with “Sing Chai” and “Lau Lee”, whom D1 also knew.  When PW1 saw D1 on 29 July 2012, PW1 was with “Sing Chai” and “Lau Lee” too.  Given the youth of D1 and his limited education, I do not think that there is anything inherently improbable in the evidence of PW1, as far as Charge 1 goes.

62. As for Charge 2, I do not think it is inherently improbable for D1 to repeat his triad affiliation to PW1 on 6 August 2012.  In my judgment, if D1 wanted to recruit PW1 into “Shing Wo”, it is only reasonable that he would tell PW1 which triad society he belonged, albeit for the second time.  PW1 was with “Lau Lee”, “Sing Chai” and D2 on 6 August 2013, there is nothing inherently improbable for D1, an unsophisticated youngster, to recruit PW1 to become a member of “Shing Wo” when it became apparent to D1 that PW1 was a friend of “Sing Chai” and “Lau Lee”, who often frequented with D1 in Kwai Fong district.

63. PW1 did not give a “yes” or “no” answer to D1’s invitation to join “Shing Wo”, he adopted a wait-and-see attitude.  I do not think there is anything inherently improbable in PW1’s evidence in this regard.  If D1 did not press for an answer and did not appear to be offended by PW1’s response, I do not think there was any urgency on the part of PW1 to accept the invitation. 

64. I do not think the criticisms that Mr Khosa made of Charge 3 are valid ones. According to PW1’s evidence, he was somebody that D1 wanted to recruit.  By bringing PW1 to the settlement talk, D1 could prove to PW1 that he was someone who would conduct settlement talk for “Shing Wo” and, as far as the settlement talk is concerned, it would be in D1’s party interest if he could bring more people.  I do not think the prosecution, in order to succeed on Charge 3, have to prove “Sing Chai”, “Lau Lee”, “Sze Fei”, “Ah Yin”, “Ah Sing” and D3 were triad members; I do not think the prosecution have to prove people from the other side were triads either.  The evidence of PW1 is that there were a lot of people congregated outside Yoshinoya restaurant at a time when the restaurant and most of the shops of Kwai Chung Plaza had been closed.  The scene as depicted by PW1 does not negate the possibility of a triad settlement talk.  I accept as credible and reliable PW1’s evidence that, as he was concentrating on D1, he did not pay any attention to where “Sing Chai”, “Lau Lee”, “Sze Fei”, “Ah Yin”, “Ah Sing” and D3 were.  PW1 was able to recall “Ah Sing” and “Ah Yin” were not among the group when the group left Kwai Chung Plaza after the settlement talk.  It is not PW1’s case that the others who went with D1 to the settlement talk were not in the vicinity, it is just that PW1 did not pay attention to where they were, as he focused his attention on D1.

65. On Charge 4, I accept the evidence of PW1 that he bought a “lai see” packet from a stationery shop. A “lai see” packet is an ordinary household item in Hong Kong, I do not think it was necessary for PW1 to fabricate the purchase of the “lai see” packet.  His story would have been equally probable if he chose to say he took a “lai see” packet at home for use in the undercover operation.  A receipt from a stationery shop is no proof that PW1 had indeed handed a “lai see” of $3.60 to D1.  I do not think the lack of receipt for the “lai see” packet undermines the credibility or reliability of PW1’s evidence.

66. In my judgment, PW1 had explained why he decided to prepare a “lai see” of $3.60.  D1 had on two previous occasions mentioned the issue of a “lai see”:  once in August and once on 15 September 2012.  On 15 September 2012, in response to D1’s reminder, PW1 told D1 he would prepare it when he had time.  I accept as true and reliable PW1’s evidence that he decided to prepare a “lai see” for D1 after 15 September 2012.  By then, according to PW1’s evidence, PW1 had accompanied D1 to a settlement talk at Kwai Chung Plaza.  D1 had mentioned twice about the payment of a “lai see”.  PW1 thought time was ripe for him to act and I do not see there is anything wrong in PW1’s evidence in this regard.

67. As for D1’s intended transfer to “Lo Sun”, again, we are dealing with what PW1 said was said by a 17-year-old young man.  The question is whether D1 had mentioned to PW1 about his intended transfer to “Lo Sun”, not whether it was wise for D1 to tell PW1 so or whether the intended transfer satisfied the orthodox requirements of triad societies.

68. As for Charge 5, there is no evidence that the “big brother” referred to by D1 and “Sai Kwai” was “Tai Bei” (“Big Nose”) or “Tai Bei” had anything to do with the plan to attack a taxi driver. 

69. PW1 was at one point confused about the presence or otherwise of D2 at a bar in Tsuen Wan.  In fact, when PW1 testified about the departure from the cybercafé to the bar in Tsuen Wan, he said D2 left with him.  He then corrected himself and said D2 remained at the cybercafé and he appeared at the bar at a much later stage.  PW1 finally realised he had made a mistake in his evidence.  D2 had, in fact, left the cybercafé with him for the bar in Tsuen Wan, D2 was in the bar throughout.  PW1 had also missed out “Lau Lee” in his earlier evidence.  I considered PW1’s evidence on this issue carefully.  I accept his evidence as true and reliable and I also accept his explanation why he made the mistake he did.  In fact, not only did PW1 mention in the early part of his evidence that D2 left the cybercafé with him, after he wrongly corrected himself that D2 remained at the cybercafé, he told the prosecutor that he, D1 and D2 took a taxi to the bar in Tsuen Wan.  In my judgment, the initial mistakes made by PW1 were unfortunate, but he clarified the position when he was cross-examined by Mr Ng. 

70. I do not think PW1’s decision not to buy a bottle of drink and get a receipt as proof is an absurd one.  The targeted taxi driver had yet to appear and PW1, D2 and D3 were just told to wander in the vicinity.  After the trio were stopped and questioned by some police officers, PW1 had a good reason to be careful, albeit he was an undercover police officer.

71. Mr Leung, in his closing submissions submits that D3 might not be aware of what went on between D1, “Sai Kwai” and PW1.  According to the evidence of PW1, D3 was present at the playground when D1 first mentioned the plan to attack.  He was also present at the bar in Tsuen Wan when “Sai Kwai” ordered those present to attack a taxi driver on the following day.  D3 was given $500 by D1 and the latter said the money was the salary for beating up someone.  D3 went to the vicinity with D1, D2, “Sai Kwai” and PW1 in the following morning and stayed until some time after 1 pm.  I do not think it can reasonably be argued that, PW1’s evidence, if believed, cannot prove that D3 was a party to the conspiracy attack.

72. Mr Leung suggests the possibility that “Sai Kwai” was merely testing PW1 out.  This suggestion does not sit well with the evidence of the payment of $500 each to PW1, D2 and D3, and the surveillance at Eastern Court by D1 and “Sai Kwai”.

73. I reject as unreliable and untruthful the evidence of D1 on the general issues.

74. D1 could only remember he was present with PW1 at Kwai Chung Plaza, i.e. the incident re Charge 3 and the incident inside the bar in Tsuen Wan.  He could not remember where he was when Charge 1, 2 and 4 took place, but he denied the deeds and words attributed to him.  In the light of the positions taken by D1 in relation to Charge 1, 2 and 4, i.e. he could no longer remember where he was on the alleged days, it is hardly surprising, therefore that he remained unshaken under cross-examination, as far as these three charges are concerned.

75. I reject D1’s evidence that the payment of $500 to PW1 was a loan.  On D1’s evidence, he would receive $1,000 to $2,000 from his father per month for the work he performed for his father.  I do not think D1 would agree to loan $500 to PW1 in the circumstances he described.  In addition, the loan was never repaid.  D1 said he had asked PW1 for repayment, but that was never put to PW1 in cross-examination. 

76. D1 said he met “Ah Kin” by chance at Kwai Chung Plaza.  The meeting with “Sai Kwai” at the bar in Tsuen Wan was also a chance meeting.  “Ah Kin” just invited D1 and PW1 to go out to smoke cigarettes and “Sai Kwai” just played drinking games with D1 at a bar in Tsuen Wan.  In my judgment, the evidence of D1 about these chance meetings with “Ah Kin” and “Sai Kwai” does not have a ring of truth, so is the evidence of D1 that he and his companions went to Kwai Chung Plaza for food on 10 August 2012, it was late in the evening, Yoshinoya restaurant and most of the shops at Kwai Chung Plaza had been closed for business.

77. On the evidence before me, I made the findings as follows.

78. On 4 August 2012, at Hing Fong Road Playground, D1 claimed to PW1 that he was of Tsuen Wan “Shing Wo”. “Ah Fung” was his follower.  If PW1 was in trouble of any kind, PW1 could drop D1’s name and call him.

79. On 6 August 2012, outside Kwai Chi House, Kwai Fong Estate, D1 asked PW1 if the latter had any “big brother”.  After PW1 replied in the negative, D1 further told PW1 since PW1 did not have one, why didn’t PW1 follow him.  He was of “Shing Wo” and D1’s “big brother” was “Big Nose” (“Tai Bei”).

80. On 10 August 2012, D1 met PW1, “Sing Chai”, “Sze Fei”, “Ah Yin”, “Ah Sing”, and D3 outside Kwai Hei House, Kwai Fong Estate.  D1 asked those present to attend a negotiation talk with “Shui Fong Chai”.  The group proceeded to the third floor of Kwai Chung Plaza, D1 spoke to a Leung Chi-kin there on triad-related matters.

81. On 18 September 2012, D1 met PW1 at Shing Fong Street Playground.  D1 asked PW1 if he had prepared the “lo mo” (red packet) that D1 had mentioned earlier.  PW1 then handed a red packet of $3.60 to D1.  D1 had twice asked PW1 for it in mid-August 2012 and 15 September 2012.  After D1 received the red packet, he told PW1 from then onwards, they were fellowmen.  D1 also mentioned about his intended move to “Lo Sun”. 

82. Between 20 September 2012 and 21 September 2012, D1, D2, D3 and “Sai Kwai” (ie Mo Chong-man) had formed an agreement to attack a taxi driver outside Eastern Court.  A glass bottle would be used in the attack and the attackers should attack the taxi driver until his eyes burst. 

83. The payment and receipt of money; the initial order of attack given by D1; the instructions from “Sai Kwai” at the bar in Tsuen Wan; D1, D2, D3 and “Sai Kwai” and PW1’s appearance in the vicinity of Eastern Court on 21 November; the wandering at the vicinity by D2, D3 and PW1; and the act of surveillance performed by D1 and “Sai Kwai” prove beyond doubt that D1, D2, D3 and “Sai Kwai” had agreed to attack a taxi driver.  The intended use of a glass bottle and the instructions to beat the victim until his eyes burst show the participants’ intent to cause grievous bodily harm to the taxi driver.  D1, D2 and D3 were all parties to an agreement to attack the taxi driver and cause the latter really serious injuries.

84. I attach full weight to the statements of the triad expert.

85. On Charge 1, the effect of what D1 said to PW1 was that D1 was telling PW1 that he was a member of “Wo Shing Wo” Triad Society.

86. On Charge 2, the effect of what D1 said to PW1 was that D1 was inviting PW1 to join “Wo Shing Wo” Triad Society and become a member of it.

87. On Charge 3, what D1 said and did outside Kwai Hei House, Kwai Fong Estate was that he was ordering those present to attend a triad negotiation talk with people from “Wo On Lok” Triad Society (“Shui Fong”).  When D1 met Leung Chi-kin on the third floor of Kwai Chung Plaza, Leung said to D1, “Your subordinates were very cheeky.  I would definitely, bother the (four-letter word) out of him.  Don’t see us ‘Shui Fong Chai’ as nothing.”  D1 responded by saying, “Go ahead and bother.”  On the evidence before me, during the gathering at the ground floor of Kwai Hei House and the meeting with Leung at Kwai Chung Plaza, although D1 had mentioned nothing about “Wo Shing Wo”/“Shing Wo”, when D1 spoke to PW1 on 4 August and 6 August 2012, D1 had told PW1 clearly that he was a member of “Wo Shing Wo”.  The evidence proves beyond reasonable doubt that D1 was attending a triad negotiation talk and he was acting as a member of “Wo Shing Wo” Triad Society.

88. On Charge 4, although D1 did not mention “Wo Shing Wo”/“Shing Wo” when he spoke to PW1 on 18 September 2012.  The asking for a red packet (ie “lo mo”) and the utterance of “he and PW1 had become fellowmen” clearly refer to D1’s involvement with “Wo Shing Wo”.  On the evidence before me, I am satisfied that D1 was acting as a member of “Wo Shing Wo” Triad Society on that occasion.

89. On Charge 5, D1, D2 and D3 were all parties to an agreement with Mo Chong-man (“Sai Kwai”) to attack a taxi driver outside Eastern Court on 21 November 2012.  The participants intended to cause very serious injuries to the taxi driver.

90. I convict D1 of Charge 1, 2, 3 and 4. 

91. I convict D1, D2 and D3 of Charge 5.