HKSAR v. CHEUNG YUN KEI

CACC 292/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2000

(ON APPEAL FROM DCCC 1049 OF 1997)

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J U D G M E N T

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Hon Mayo VP and Stock JA:

1. The applicant was convicted after a trial in the District Court before H.H. Judge Wright of one charge of conspiracy to rob and one charge of possession of an offensive weapon in a public place. He was sentenced to a total of 6 years imprisonment and now seeks leave to appeal against his convictions and sentences.

2. Initially the applicant was charged with these offences with two other men. He was granted bail. He failed to answer to the terms of the bail and the case proceeded against the other two men. They were convicted of the offences and sentenced to 41/2 years imprisonment. Subsequently their convictions were set aside on appeal and the sentences quashed.

3. The applicant was arrested after his return from the Mainland and the case against him was then proceeded with. All of this explains the passage of time which has elapsed from the date of the commission of the offences in August 1997 and the date of the trial which was in June 2000.

4. The prosecution placed heavy reliance upon two video recorded interviews.

5. In these interviews the applicant gave a detailed description of his involvement in the alleged conspiracy including reference to obtaining the beef knives which were to be used.

6. To briefly summarise the matter the applicant said that he had been approached by a man known to him as Fat Chai. Fat Chai told him that he would be delivering $800,000 to $1 million for his employer to a third party a few days hence and suggested that if the applicant was able to successfully organise a robbery they could each obtain 20% of the proceeds and that the balance could be kept by those who actually performed the robbery.

7. The applicant put in hand the necessary arrangements with a man called Lau Sai Kei ("Lau"). These arrangements included obtaining the offensive weapons the subject of the second charge.

8. On the morning of the day when it was intended that the robbery would take place, 11 August 1997, the applicant was picked up in a car. Lau and another man Ng Nang Sing ("Ng") were in the car. The beef knives were collected and put in the boot of the car. The car then proceeded to the scene of the contemplated robbery at Cheung Sha Wan. The applicant and Ng got out of the car. The purpose of this was so that the applicant could show Ng the site where the robbery would take place. After this they returned to the car and it was driven to a Wilson car park. The men then went to the Treasure Restaurant where they met some other men who would be participants in the robbery. The plan was that they would await receiving a signal from Fat Chai concerning the delivery of the money and the robbery would then take place. It is pertinent to add that the movements of the applicant on the morning in question were the subject of a surveillance operation which was undertaken by the police. In almost all important respects the evidence of the officers undertaking this exercise could be reconciled with the contents of the applicant's admissions in his interviews.

9. Shortly before 12 o'clock the police officers entered the restaurant and arrested the men.

10. The admissibility of the applicant's interviews was contested at the trial. The Judge gave detailed reasons why he accepted the truth of the evidence of the police officers concerned and rejected the testimony of the applicant. At the conclusion of the voire dire the Judge admitted the transcripts of the interviews being satisfied that the admissions made in the interviews had been made freely and voluntarily.

11. There were a number of admitted facts and three witnesses gave oral testimony. The applicant did not give evidence on the general issue. The Judge being satisfied of the truth of the contents of the interviews found both charges proved to the appropriate degree and convicted the applicant as charged.

12. The first ground of appeal was that the Judge was wrong to admit the transcript and the interviews as evidence.

13. Particulars are then given of where it is alleged that the Judge was in error. It has to be said immediately that none of the particulars which are given are in any way convincing. What has to be borne in mind is that where a judge makes findings of fact after hearing oral evidence a heavy burden is placed upon a party attempting to impugn the findings. Here the Judge was mindful of the passage of time which had elapsed and of the inevitable consequence that to an extent it would be difficult for the witnesses to accurately recall all of the details of what had transpired.

14. The Judge did deal with the inconsistency in the evidence of the two police officers over the question whether the sergeant had entered the room to obtain the applicant's consent to the interview being video taped.

15. All that the applicant is now attempting to do is to have a retrial of the voir dire. This is not a permissible exercise. There is no merit in this ground and it is dismissed.

16. In the second ground of appeal complaint is made that the transcript of the first interview should not have been admitted as evidence as it contained a number of leading questions.

17. The first point which needs to be made is that no complaint was made on this score at the trial. This is perhaps not altogether surprising as a perusal of the record would indicate that the complaint is not justified. Many of the questions identified by Mr Yim for the applicant are nothing more than attempts by the interviewing officer to clarify or summarise what has previously been said. It can also be added that there is nothing wrong in leading questions being asked so long as there is no oppression or unfairness.

18. Overall this complaint has not been made out and this ground also must be dismissed.

19. The application for leave to appeal against convictions is dismissed.

20. There is one ground of appeal in relation to sentence. It is that the Judge failed to take into account the fact that the offence could not have taken place.

21. The Judge considered this in some detail in his reasons for sentence. He distinguished the present case from other cases on this topic by observing that there was no evidence before him that a police informer was involved. He did of course accept that the police had been in possession of relevant intelligence which was why they were keeping the applicant under surveillance but he desisted from speculating upon how this came about.

22. There is however an aspect of this that does require to be considered. We were informed by Mr Chapman for the respondent that there was no question of police entrapment in this case. We have no reason to doubt this.

23. There does however appear to be a real likelihood that the applicant was "set up", even though by someone other than the police. To this effect there are clear indicia. They include the fact that the targeted business was not only one to which there was to be no delivery on the day in question of cash in the amounts suggested by Fat Chai, but was one to which there was to be no delivery of any cash on the particular day, and to which there never were deliveries of cash in the normal course of business. Furthermore, it is clear, as we have earlier mentioned, that the applicant had been under surveillance by the police on the day in question. Mr Chapman for the respondent concedes that the police were acting on information and whilst we have, understandably, not been told who the source of that information was, he did not tell us that it was not Fat Chai.

24. The question then arises as to whether the fact that the applicant appears to have been set up constitutes a mitigating factor.

25. The first point which needs to be made is that there is nothing in the cases which were referred to us to suggest that a reduction of sentence should only be given if it can be established that there has been entrapment by the police. Reference is often made to police informers and it is by no means invariably the case that the informers will be acting on the instructions of police officers.

26. Parker LCJ considered the principles to be adopted at p. 472 of Birtles (1969) 53 Cr App R 469.

"As I have said, no one will perhaps ever know the exact truth, but it certainly seems to this Court, doing the best that they can in the matter, that there is a real possibility here that the appellant was encouraged by the informer and indeed by the police officer concerned to carry out this raid on the post office. Whether or not he would have done it without that, again no one can say, but there is, as it seems to this Court, a real likelihood that he was encouraged to commit an offence which otherwise he would not have committed.

It is in those circumstances that this Court is asked to review this sentence. On that assumption, that he was so encouraged, the Court is quite satisfied that some reduction in sentence is required."

27. On the facts briefly set out in this judgment it would certainly appear to be likely that the applicant committed these offences as a result of the encouragement that he received from Fat Chai and that without that encouragement the offences would not have been committed. Whilst this court does not know for sure that Fat Chai was a police informer, what is known is that from 5 August onwards the police had information that a robbery would take place and from 9 August it was known what the target premises would be.

28. Adopting the principles laid down by Parker LCJ it would appear that the applicant is entitled to some reduction in his sentence.

29. In determining the extent of the reduction it is necessary to have regard to the overall circumstances of the case.

30. The applicant was aged 39 at the time of these offences. It is apparent from the interviews that he was fully prepared to assume an active role in the conspiracy as it was his function to recruit the persons who would actually undertake the robbery. It is accordingly the case that the amount of the discount he is entitled to is not very great.

31. Mr Yim accepts that the starting point of 6 years adopted by the Judge was neither excessive nor wrong in principle. With this we agree. In the circumstances we have described we consider that the applicant is entitled to a reduction of 1 year's imprisonment. This being the case we allow the application and treat it as the appeal. We order that the sentence of 6 years imprisonment on the charge of conspiracy to rob be reduced to 5 years imprisonment. To this extent this appeal is allowed.

Hon Keith JA:

32. I agree that the application for leave to appeal against conviction should be dismissed, but I wish to add a few words of my own about the application for leave to appeal against sentence.

33. Two features of the evidence strongly suggest that there may well have been an element of entrapment in the case. First, in his witness statement which was read to the trial judge, the proprietor of the business at the premises where the robbery was to have been carried out said that large amounts of cash were not held on the premises, not even for the purpose of paying staff. Secondly, the Applicant and his confederates were tracked on the day of their arrest by the police who kept the Applicant under observation from when he left his home.

34. These two features of the evidence do not necessarily show that the Applicant was the victim of a trap. After all, Fat Chai may have believed the information which he had been given about the delivery of money, even though that information turned out to have been wrong, and he may indeed have intended to participate in the carrying out of the robbery. On this scenario, the police would have been keeping observation on the Applicant because they had received information from someone other than Fat Chai that the Applicant was going to be involved in a robbery. In these circumstances, no question of entrapment would arise.

35. On the other hand, it is quite possible that Fat Chai had decided to set the Applicant up, by spinning him a yarn about the delivery of a large sum of cash (which we know to have been completely untrue) and then telling the police about the robbery which he had inveigled the Applicant into agreeing to commit. On this scenario, Fat Chai would have been the source of the information which the police had received. The fact that the police were keeping the Applicant under surveillance in connection with a robbery in which there was nothing to steal could very well be explicable on that basis.

36. Mr Peter Chapman for the prosecution confirmed to us what had been obvious from the fact of the surveillance operation, namely that the police had been acting on information received. Mr Chapman did not tell us who the source of that information was, but as Mayo V-P has pointed out what is crucial is that he did not tell us that it was not Fat Chai. Thus, the possibility that Fat Chai set the Applicant up - in the sense that he got the Applicant to agree to commit a robbery with him which the Applicant would not otherwise have committed (because the Applicant had known nothing about the supposed delivery of money before Fat Chai had told him about it) and in which Fat Chai was never going to participate, and then told the police about what the Applicant was planning to do in the hope that the Applicant would be caught red-handed and arrested - cannot be excluded. Indeed, Mr Chapman expressly accepted at the hearing before us that the entrapment of the Applicant in the sense which I have described could not be excluded.

37. Entrapment does not have to be by a police officer to warrant a reduction in sentence. If the offender's participation in the offence has been instigated or encouraged by a police informer in circumstances amounting to entrapment, the entrapment will amount to a mitigating factor: see R. v. Sang [1980] AC 402 at p. 432B and R. v. Birtles (1969) 53 Cr. App. R. 469 at p. 472. But what constitutes entrapment? In Birtles, it was said that to constitute entrapment so as to justify a reduction in sentence, the offender has to have been encouraged to commit an offence which he would not otherwise have committed. For my part, I would go further. The actual offence which the offender committed must not only have been an offence which the offender would not have committed but for the encouragement, but the offence must have been of a type which the offender would not have been likely to commit but for the encouragement - for example, because his criminal record shows that he has not in the past committed offences of that kind or because he can be shown to have turned his back on crime. Moreover, the person who encouraged the offender to commit the offence must have done so with a view to the offender being caught. It is that which constitutes the trap.

38. What this means is that not every trap set by the police or an informer will justify a reduction in sentence. The drugs dealer who is caught selling drugs to an undercover police officer posing as a buyer has committed an offence which he would not otherwise have committed (i.e. supplying drugs to that officer), but his entrapment would not justify a reduction in sentence because the trap was a legitimate one: see HKSAR v. Kai Chi Chung (CA 259/97). That is because the offender was engaged in a course of conduct, and his supply of drugs to the undercover police officer was part of that course of conduct. He would not have supplied drugs to the officer without the officer encouraging him to do so by pretending to be a buyer, but the drugs dealer's supply of drugs to the officer posing as a buyer showed that he was supplying drugs to anyone whom he believed to be a buyer.

39. If entrapment is to be established as having occurred, what is the standard of proof required? In his judgment in Birtles, Lord Parker CJ referred at different times to "a real possibility" and "a real likelihood" of the offender being encouraged to commit an offence which he would not otherwise have committed. I suspect that the phrase "a real possibility" reflects what Lord Parker truly had in mind, because it would be wrong to deny the offender the benefit of any real doubt on the matter, even if it could not be said that entrapment was more likely than not to have occurred.

40. Returning to the present case, the Applicant's criminal record was not one which suggests that he would have committed the offence of robbery had he not been encouraged by Fat Chai to do so. If the Applicant had been set up in the circumstances which I have described, that would undoubtedly have amounted to entrapment of such a kind as to warrant a reduction in sentence. Indeed, if Fat Chai had been the source of the information which the police had been given, the inference that he had set up the Applicant in circumstances amounting to entrapment is overwhelming. Since Mr Chapman did not tell us that Fat Chai was not the informant, the possibility of entrapment is a very real one indeed.

41. The trial judge recognised that the police must have got some intelligence on the basis of which they mounted the surveillance operation, but he declined to discount the Applicant's sentence on the basis of entrapment in the absence of any evidence before him that a police informer had been involved. It is unfortunate that the information which we have been given - namely that the police were acting on information received - had not been before the judge. If it had been, it may be that his approach would have been very different.

42. For these reasons, I agree that the Applicant's sentence should be varied to reflect the very real possibility of entrapment. Mr Valentine Yim for the Applicant did not challenge the judge's starting point of 6 years' imprisonment, and I agree that the reduction in the Applicant's sentence on the charge of conspiracy to rob which is appropriate in the particular circumstances of the case to reflect the very real possibility of entrapment is 1 year's imprisonment.