HKSAR v. NG KA-CHUN JACKY & ANOTHER

CACC 278/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2001

(ON APPEAL FROM DCCC 166 OF 2001)

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REASONS  FOR  JUDGMENT

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Hon Mayo VP (giving the reasons for judgment of the Court):

1. D3 is appealing against his conviction for conspiracy to defraud.

2. D2 abandoned his application for leave to appeal against his conviction and it was dismissed. However he now seeks leave for the court to treat his abandonment as a nullity and requests an extension of time to appeal against his conviction and sentence. In this connection it should be added that D2 did not file the appropriate form to include his application for an extension of time for his appeal against sentence.

3. Originally three defendants appeared before His Honour Judge Day. There were altogether four charges. D1 pleaded guilty to three counts of obtaining property by deception. The prosecution thereupon agreed to amend the fourth count, the conspiracy count, and proceed only against the two applicants who were D2 and D3.

4. It was the prosecution case that D2 and D3 together with others conspired to defraud a company trading under the name Chung Yuen Electrical Company Limited (Chung Yuen). Chung Yuen sold electrical goods.

5. The way the scam was designed to operate was that goods would be ordered in the name of the Information Technology Services Department of the HKSAR Government to be delivered at an office address in Tsuen Wan.

6. Needless to say the Department had no knowledge of the goods being purchased.

7. After they had been delivered to these premises they would be sold by the conspirators who would then presumably divide the proceeds amongst themselves.

8. Reference was made in the Reasons for Verdict to the consignments of goods.

9. The first two consignments were delivered to the office premises and disposed of.

10. There was evidence from an employee of Chung Yuen PW1 that for the reasons he gave he became suspicious of the orders which were being received by the company.

11. He asked D2, who was an employee of Chung Yuen, to attend at the office address in Tsuen Wan and check whether they were in fact occupied by the Information Technology Services Department.

12. D2 did so and reported back that it was so occupied. Notwithstanding this PW1 later made his own investigation and discovered that the offices were not occupied by the Department.

13. This discovery was made shortly before the third order was due to be delivered.

14. A report was made to the police and they supervised the third delivery. D1 was present at the premises and when he left the premises with the goods he was arrested by the police.

15. A search was undertaken by the police at the office premises.

16. Besides various forms, quotations and other documents and what appeared to be counterfeit chops of government employees, the original purchase order of the first consignment of goods was found.

17. An expert on the subject fingerprints gave evidence that D2's fingerprints were on the purchase order.

18. He also gave evidence that D3's fingerprints were found on one of the quotations.

19. Both D2 and D3 made cautioned statements to the police.

20. After hearing voire dires the Judge ruled all of the statements to be admissible as evidence.

21. The applicants also both gave evidence in the general issue. The Judge was satisfied at the appropriate level that the charge had been proved against both men.

22. D2 has filed homemade grounds in support of his application for the abandonment of his appeal to be treated as a nullity.

23. What is noteworthy about this application is that no satisfactory explanation is forthcoming as to why the application is being made.

24. The only reason which is advanced as to why he abandoned his appeal was an insufficiency of funds to obtain legal representation.

25. The test which is adopted in determining whether an abandonment of an appeal should be treated as a nullity is whether the applicant is able to satisfy the Court of Appeal that his mind did not go with the abandonment. Here quite clearly it did.

26. What the applicant is endeavouring to achieve is a retrial of his case. There is no reason whatever to justify this course being adopted.

27. D2 is also appearing to seek an extension of time to lodge an appeal against the sentence of imprisonment imposed upon him.

28. Again no satisfactory reason has been given why this extension of time should be granted.

29. D2's applications are accordingly dismissed.

30. D3's appeal is centred around a number of complaints made in relation to the admission of the seven cautioned statements made by him.

31. The main complaint being that a police officer, who it is claimed was sufficiently identified, was not called as a witness by the prosecution on the voire dire and that when the matter was drawn to the attention of the Judge he did not reconsider the admissibility of the statements in the light of this alleged lacuna.

32. D3 alleges that this officer, who he referred to as being the "be-spectacled" officer, had participated in extracting the confession from him.

33. Perhaps a good starting point in this exercise is to consider the nature of the outlines of the objections which would be made to the admission of the statements as evidence.

34. These are at pages 91-93 of the appeal bundle:

"(D3's counsel): ....

These are the grounds of objection on behalf of D3 as to the admissibility of the evidence of this officer.

1)

The case for D3 on the voir dire is that the evidence of the questions asked and answers given by the defendant on his arrest and subsequently during the course of seven interviews occurring during 15 March 2000 and 19 April 2000, should not be admitted in evidence at trial for reason that the answers were given involuntarily insofar as they were the consequence of threat of violence, violence, suppression and inducement.

2) In particular, the following will be relied upon:-

14 to 15 March 2000:

1)	Prior to the interview of 15 March 2000, D3 had been detained in custody overnight. He had been arrested on 14 March 2000 at 2241 hours and it was not until 0813 hours the following day that the police brought D3 to a room for interview.
2)	Before anything was reduced into writing, the police discussed the matter with D3 and told him that he would have to accuse D1 or D2 as the chief plotter, or that if he, D3, refused to do so, then he would have to admit being the chief plotter himself.
3)	When D3 refused to do so, the police induced him by telling him in terms that the case was a small one, he'd be treated by way of a fine and short term of imprisonment and that they, the police, would consider letting D1 off if D3 admitted.
4)	One of police officers threatened D3 by asking whether he, D3, knew that D1 had been beaten and further, D3 was struck three times on the left-hand side.
5)	The police officers told D3 to admit being the chief plotter and that if he, D3, did so, then the case would close and save all troubles.
6)	When D3 agreed to admit, the police officers told him that they would write the statement in a way that would be less serious for D3.
7)	During the course of the interview, only some of the answers attributed by the police to D3 were his own. On occasions, D3 was told by the police officers either to make up an answer himself or he was told what answers he should give.

21 March 2000 to 19 April 2000

8)	Between 21 March and 19 April 2000, D3 was interviewed on six separate occasions, including twice on 23 March and twice on 24 March.
9)	D3 was still apprehensive from the misconduct of the police during the first interview and in any event, his will had been set by his knowledge of the admissions already attributed to him by the police.
10)	During the course of all these interviews, only some of the answers attributed to D1 were in fact his own. Some of the answers were provided by the police officers or suggested by them as the answers D3 should make.
11)	As to the first interview occurring on 23 March 2000, before any statement was reduced into writing, D3 was told by the police officer that there were some transactions which he would have to admit but some others which he need not. D3 was further told that he would not have to admit transactions in which electrical goods had not been delivered or received.
12)	The statements made as a result of the interviews on 23 and 24 March were the result of the inducement made by the police and for the most part contained information provided by the police officer and written down by him. Of those occasions where D3 had no admission attributed to him, this was by reason of the inducements previously offered D3, namely in terms, that if he admitted matters which would be made less serious for him and that he would only have to admit offences where goods had been delivered."

35. It will be noted from these objections that the identification of the police officers involved is not specific and certainly no reference is made to the fact that one of the officers against whom complaint is made was wearing spectacles.

36. Counsel for the prosecution proceeded with D3's voire dire on the basis of these objections. The first time the question of an allegation being made against an officer wearing spectacles was ventilated before the Judge was during the cross-examination of DPC 21812, the officer who took the statements from D3.

37. When it transpired that this complaint was being pursued the Judge endeavoured, without much success, to find out from D3's counsel what steps had been taken by him to ascertain from the prosecution who this officer might be.

38. In any event prosecuting counsel offered to conduct an identification parade of the officers who had been involved in the case, but this offer was never taken up.

39. From inquiries which were subsequently made it appears that D3 did instruct his legal advisers that a police officer wearing spectacles had participated in the misconduct he was alleging in relation to the taking of his statement on 15 March.

40. D3 had indicated that he had been unable to identify the officer in question. His counsel had requested D3 to inform his instructing solicitors if he recognized the officer during the course of the trial.

41. It would appear that the first time that D3 saw the "be-spectacled" officer was after D3 had given evidence in his voire dire. He informed his legal advisers of this and it was established that this officer was DSPC 3956 who was performing the duties of exhibits officer.

42. It is perhaps surprising that this officer was not identified before this. It is apparent that DSPC 3956 was one of the officers who escorted D3 to his home when a home search was made.

43. One would have thought that if D3's version of events is to be believed it would have been a simple matter for him to have instructed his legal advisers that one of the officers who had been guilty of misconduct had been the officer wearing spectacles who had been a member of the party which conducted the search at his home.

44. Had this information been given to the prosecution there would presumably have been no difficulty in establishing DSPC 3956's identity. He could then have been proffered by the prosecution for cross-examination on the voire dire.

45. He was not called as a witness for the prosecution as it was their case that the only officer who was present when the 15 March statement was taken was DPC 21812. He gave evidence to this effect.

46. It will be seen from the transcript of the particulars of the objections to the admissibility of the statements that no allegations of impropriety are made concerning any conduct alleged to have taken place other than when the statements were actually being taken. Understandably, the prosecution proceeded upon the basis that they did not need to concern themselves with anything which may have transpired outside the four corners of the allegations specified.

47. It has not been demonstrated that the prosecution were remiss in any way or that they should have done anything over and above what they did.

48. The next question which has to be addressed is whether D3's legal representatives failed to protect his interests.

49. It may well be the case that on the basis of the instructions he had, D3's counsel was fully justified in forming a professional opinion that the interests of his client might not be best served by making a late application to the Judge to re-open the issue of the admissibility of the cautioned statements. The equivocal nature of the situation is well illustrated by the passage at page 154 of the transcript where the Court is gently endeavouring to ascertain what the true position is:

"(Prosecuting counsel): I'm just thinking that I can perhaps ask my officers in charge here to see what they can do, if there are such people, should they be requested.

Court:I would imagine that that's already been done if it's necessary. I don't imagine that's going to be necessary now, Mr Andrews.

(D3's counsel): Well, it's not necessary because that's as far as I can go in trying to identify the fact that the 3rd defendant on the first interview was not interviewed by one officer but there were two officers.

Court: Are allegations being made against this officer with spectacles?

(D3's counsel): Yes.

Court: Why have you not sought to identify him in the usual way?

(D3's counsel): Well, because until I was able to investigate with this officer as far as I can with regard to the identity of this officer, I mean ...

Court: All you've been able to establish is that he had glasses. Presumably you knew that before you asked your first question...

(D3's counsel): Certainly.

Court: ... so you could have said to (prosecuting counsel)...

(D3's counsel): But I mean we...

Court: ...are there any other officers in his team with glasses?

(D3's counsel): Yes, but I mean the problem is, your Honour, that I don't know whether this second officer was even a member of this team. I mean, I simply had to pursue a line of enquiry with this officer to at least establish as far as I can.

Court: Well, if that's vague, there's no way that you can -- you can't parade a whole police station full of officers forward.

(D3's counsel): No. Well, your Honour, that was the difficulty I thought and I mean I'm not trying to be unfair with regard to this. It's always been my case, it's clear from the notice of objections that this man, particularly on the first interview -- sorry, with regard to the first interview was not on his own.

Court: If you're saying that it was one of his colleagues from the same team who was wearing spectacles...

(D3's counsel): No, I haven't said that.

Court: You're not saying that.

(D3's counsel): I haven't said that and I can't say it."

50. It is significant that in this appeal it has not been contended that D3's counsel was guilty of professional negligence.

51. One of the matters upon which Miss Remedios, who now represents D3 though she was not his counsel at trial, placed reliance was the necessity for the prosecution to discharge the burden of proof imposed upon it of proving that the statements had been made freely and voluntarily. She seemed to suggest that it was incumbent upon prosecuting counsel to himself call DSPC 3956 as a witness on the voire dire. Having regard to the vague nature of the allegations, and the fact that an officer wearing spectacles was not referred to in the objections which were particularised, we can see no merit whatever in this contention. In any event the evidence of the statement taker covered the entire period of alleged improprieties. The principle is established that:

"Although it was always highly desirable in any case in which a particular officer is accused of wrongful behaviour that he should be called to give evidence on the issue of admissibility, and although there may be circumstances when the court will feel it unsafe to rely upon other evidence which purports to discharge the onus on the Crown, there is no principle preventing the onus from being discharged by evidence aliunde." Leung Wing-ming v R [1981] HKLR 96, 101.

Over and above this it should be noted that apparently no submission was made at the conclusion of the voire dire that the prosecution had not made out a case which had to be answered.

52. That then leaves the question of the position taken by the Judge. The third and fourth grounds of appeal are framed in this way:

"3.	Further or in the further alternative, when the Appellant in the course of his evidence in chief on the general issue mentioned that he had subsequent to the ruling in the Voirdire identified the 'be-spectacled officer' as one of the officers who participated in extracting the confession from him, the learned Trial Judge wrongly indicated that it was too late to canvas this issue and/or that the same was irrelevant, thereby effectively ruling against the reopening of the Voirdire.
4.	In the event the learned Trial Judge failed adequately or at all to reconsider the voluntariness of the cautioned statements and/or the reliability of the same in the light of the failure to place before the Court the evidence of the 'be-spectacled officer'."

53. As to the complaint made in the third ground a perusal of the transcript of the proceedings shows that it is patently wrong. It is evident from the transcript that the Judge did not give any indication that he would not entertain an application to re-open the voire dire. It is undoubtedly the case that no application was made for this to be done and it is unrealistic, in all the circumstances, to suggest that the Judge should on his own initiative have required the parties to embark upon such an enterprise which was fraught with dangers. That disposes of the complaint made in ground 4.

54. There is no merit in any of these grounds. D3's conviction was in no way unsafe or unsatisfactory and this appeal is dismissed.