HKSAR v. FUNG HIN WAH EDWARD

[English Translation – 英譯本]
CACC 263/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2009

(ON APPEAL FROM DCCC 297 OF 2008)

__________________

__________________

_____________

JUDGMENT

_____________

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

Introduction

1.  There were three defendants in the present case, namely, Lau Kim-hung (“Lau”), Chu An-bin (“Chu”) and the Applicant, Fung Hin-wah Edward.

2.  Lau and Chu were charged with “conspiracy to offer advantages to a public servant” (the Applicant) in return for the Applicant’s providing prior warning of police impending action to them, “Ah Chun” and “Yiu Gor”, thereby enabling them to avoid culpability.

3.  The Applicant was charged with “misconduct in public office” by giving advice in relation to unlawful dangerous drugs and vice activities to Lau, Chu, “Ah Chun” and “Yiu Gor”.

4.  Lau, Chu and the Applicant all pleaded not guilty to the charges and their trial came before Deputy District Judge J. Lam.

5.  Before the commencement of the trial, the Applicant asked to be tried separately from Lau and Chu.  But his application was refused by Deputy District Judge Lam.

6.  During the trial, the Applicant, Lau and Chu all applied for a permanent stay of the trial and for the exclusion of the evidence alleged to be the conversations between them and “Ah Chun” and “Yiu Gor”, who were both undercover officers of the Independent Commission Against Corruption (“ICAC”).  Their applications were also refused by Deputy District Judge Lam.  Subsequently, Lau and Chu reversed their pleas to ones of guilty, whereas the Applicant maintained his plea of not guilty.

7.  The Applicant was convicted after trial and sentenced to 6 months’ imprisonment.  He was aggrieved with the conviction and now applies for leave to appeal against conviction.

Prosecution’s Allegations and Evidence

8.  The Applicant was a serving police sergeant and had been attached to Special Duties Squad 3 of Mong Kok District between January 2006 and March 2007.

9.  In early 2007 the ICAC was informed that a police officer provided protection to criminals by providing prior warning of police impending action to them, and an “undercover” investigator (“Ah Chun”) was thus assigned to make investigation.  Lau was the only target person of the ICAC at that time.

10.  On 15 February 2007, “Ah Chun” was introduced to Lau, and through Lau he came to know Chu. Chu claimed to “Ah Chun” that he was engaged in trafficking in dangerous drugs and that his dangerous drugs activities had been under the protection of a police officer nicknamed “Wah Gor”.  “Ah Chun” falsely claimed to Lau and Chu that his boss would like to set up a private club involving dangerous drugs and vice activities.  Chu indicated to “Ah Chun” that (they) would have to offer advantages to “Wah Gor” in return for his protection.

11.  “Ah Chun” introduced another ICAC “undercover officer”, “Yiu Gor”, posing as his boss, to Lau and they had a site visit at a place intended to be used for running the unlawful club.  It was agreed by both parties that Lau would be responsible for the interior decoration of the club and he would waive the decoration fee in return for some shares of the club.

12.  On 5 June 2007, “Ah Chun” met Lau and Chu.  During the meeting, Lau suggested that he would transfer his portion of shares of the club to Chu, who would supply dangerous drugs to the club.  They also indicated that they would transfer a portion of their shares to “Wah Gor” who, in return, would provide protection, namely, by providing prior warning of impending police enforcement action against the club to them. Chu further suggested that the shares should be transferred to “Wah Gor” through the wife and relatives of “Wah Gor” in order to cover up their dealings.

13.  On 22 June 2007, “Ah Chun” and “Yiu Gor” met Lau, Chu and the Applicant at Victoria City Seafood Restaurant.  When the Applicant came to know about the plan for setting up an unlawful club which would involve the supply of dangerous drugs and hostess services, he gave “Ah Chun” and “Yiu Gor” some advice for the purpose of avoiding or mitigating any harm or inconvenience that would be caused to the unlawful club by police actions.

14.  On 5 July 2007, Lau and the Applicant accompanied “Ah Chun” and “Yiu Gor” to attend a site visit at a place intended to be used for operating the club.  The Applicant gave further advice for the purpose of mitigating the risk arising from operating an unlawful establishment with dangerous drugs and vice activities.

15.  During an interview with ICAC investigators after his arrest, the Applicant admitted to having attended the above two meetings.

16.  In fact, both meetings in which the Applicant had participated had been audio-taped by the undercover ICAC officers, and the meeting at Victoria City Seafood Restaurant had been video-taped as well.  The contents of the audio/video recordings were consistent with the evidence of the undercover ICAC officers.  The defence did not allege that the contents of the audio recordings were unreliable or likely to cause misunderstanding.

17.  According to the audio/video recordings of the meeting at Victoria City Seafood Restaurant on 22 June 2007 (P11 and P13), Lau, Chu, the Applicant, “Ah Chun” and “Yiu Gor” showed up together and remained in a room at the restaurant for nearly 3 hours.

18.  It is not necessary for this Court to repeat what each individual said and did during the meeting.  But the Applicant was certainly aware of matters such as that “Ah Chun” and his boss, “Yiu Gor”, intended to set up a club where dangerous drugs and prostitutes would be supplied.  The Applicant not only explained to “Ah Chun” and “Yiu Gor” what actions the police would take against clubs of the same kind, he also gave them some advice for the purpose of avoiding and mitigating the difficulties that might be faced by the unlawful club.  The Applicant also mentioned about certain matters relating to the business of the unlawful club, such as liquor licences, what incidents would cause the club to be ordered to close down, and in case anything happened to the club, how to handle the situation if there was no “bouncer” at the club.

19.  Nevertheless, the Applicant made it clear that he did not know when police raids would be conducted, and that he could not offer any assistance in that kind of matter because police officers could not do so anymore.  The Applicant indicated that he did not want to get involved in complicated situations, nor did he wish to participate in the business (of the club).  But he agreed to have a look at the environment of the premises chosen to be the address of the club and to give some advice as a friend.

20.  Subsequently, at the appointed time on 5 July 2007, the Applicant went together with “Ah Chun”, “Yiu Gor” and Lau to a flat in Hang Lung Mansion, the chosen address of the unlawful club as alleged by “Ah Chun” and “Yiu Gor”.  There was also an audio recording of this meeting as evidence (P17).

21.  The Applicant said there should not be any problem regarding the application for liquor licence for the chosen address.  When “Yiu Gor” asked him whether it was necessary to install a rear door to facilitate “girls” “to get away in the event of police raid”, the Applicant said that it was very difficult “to get away in the event of police raid”, and that if the unlawful establishment was decorated in a too conspicuous manner, it would all the more arouse suspicion of the police.  The Applicant suggested that CCTV should be installed at the unlawful club so that whoever got in and out of the club could be monitored, and it would be better for security purpose.  The Applicant also suggested that a notice board had to be put up in the unlawful club to remind customers not to take dangerous drugs.  The Applicant did ask whether or not “girls” or “prostitutes from the Mainland” would be made available in the unlawful club, but he indicated that he was not quite familiar with how to handle matters relating to prostitutes in unlawful clubs.  But he had also expressed some opinion on that issue as well as on how to handle the supply of dangerous drugs to the unlawful club.

22.  The Applicant lastly said he had not given any assistance to “Yiu Gor”, that he only made those remarks casually, and that what he had said might be incorrect.

The Applicant’s Defence and Evidence

23.  The Applicant did not give evidence in court.  But he had called his wife and a retired police sergeant to give evidence for him.

24.  The case of the Applicant was that during the two meetings he only expressed some ideas in terms of words and behaviour, which did not amount to actual crime, and that the opinion expressed by him was common knowledge.

25.  The defence maintained that given the post of the Applicant, he could not offer any assistance to “Ah Chun” and “Yiu Gor”.  Therefore, his words and conduct did not constitute serious misconduct.

26.  When the Applicant’s wife gave evidence in court, she said the Applicant was eager to help others, and he would from time to time answer some legal questions raised by friends and relatives.  According to the retired police sergeant who gave evidence for the Applicant, the Applicant was an honest and reliable person who would not disclose any confidential information of his work.  The retired police sergeant said sometimes it was necessary for police officers to contact informers in order to obtain intelligence.

The Trial Judge’s Verdict

27.  The trial judge refused to deal with the Applicant in a trial separately from Lau and Chu and also refused to grant a permanent stay of the proceedings or to exclude the evidence against the Applicant.  The trial judge took the view that “Ah Chun” and “Yiu Gor” did not arrest the Applicant by entrapment, nor was the way they conducted the investigation so repulsive that it amounted to an affront to the public conscience.

28.  In respect of the charge against the Applicant, Deputy District Judge Lam stated clearly and unequivocally that he only gave weight to the conversation records relating to the two occasions in which the Applicant had participated, namely, P11, P13 and P17 and the relevant transcripts, namely P12 and P18.

29.  Based on the authorities including Shum Kwok Sher [2002] 5 HKCFAR 381, Sin Kam Wah [2005] 8 HKCFAR 192 and Wong Kwong Shun Paul [2009] 4 HKLRD 832, the trial judge set out five elements involved in the offence of misconduct in public office. After having carefully analyzed the Applicant’s words and conduct during the relevant meetings, the trial judge concluded that the Applicant’s words and conduct matched with the five elements, and therefore the Applicant did commit misconduct in public office.

Grounds of Appeal

30.  A number of grounds of appeal have been advanced by Mr. S. K. Khattak, counsel for the Applicant.  Mr. Khattak submitted that the trial judge should not have heard the trial of the charge against the Applicant and the trial of the charge against Lau and Chu together.  Mr. Khattak argued that the joint trial had caused grave prejudice to the Applicant and had deprived him of a fair trial.

31.  Mr. Khattak maintained that before the Applicant had any involvement in the incidents, “Ah Chun” had already made contact with Lau and Chu on a number of occasions, and during those occasions, they had talked about the Applicant and the contents of those conversations were extremely unfavourable to the Applicant.  Therefore, the trial judge should have dealt with the Applicant in a trial separately from Lau and Chu.  Mr. Khattak stressed that the charge faced by the Applicant was different from that faced by Lau and Chu; while the prosecution further alleged that Lau and Chu were the persons who unlawfully offered advantages to the Applicant, the Applicant was unable to instantly give a reply or raise a defence to those allegations.  Further, Lau and Chu even pleaded guilty to the charge, which showed that they agreed that they had indeed offered advantages to the Applicant.  Mr. Khattak also submitted that the joint trial had deprived the Applicant of the opportunity to call Lau and Chu to give evidence for him.

32.  Mr. Khattak emphasized that the evidence in support of the charge was obtained by entrapment and excessive use of leading questions by the investigating officers, in breach of the freedom of speech empowered by the Basic Law and the Bill of Rights.  Therefore, the trial judge should not have refused to stay the trial or to exclude the evidence against the Applicant.  Mr. Khattak maintained that the degree of entrapment in the present case was an extremely serious one, which was sufficient for the court to stay the trial or to exclude the evidence unfavourable to the Applicant.  Mr. Khattak had cited various authorities including judgments given by the British courts, the European Court of Human Rights and the Hong Kong courts in support of his argument.  The cases most particularly relied upon by Mr. Khattak include Teixeira de Castro v Portugal [1998] 28 EHRR 101 and R v Loosely [2001] 4 All ER 897. Mr. Khattak submitted that the investigative means adopted by “Ah Chun” and “Yiu Gor” was identical to the one adopted by the two police officers in Teixeira de Castro, and thus it should be reproached as well.

33.  In his 114-page long written submission, Mr. Khattak stressed that during the first meeting, the ICAC officers took the initiative to provide whisky to the Applicant and create a “drinking” ambience.  In the opinion of Mr. Khattak, the approach adopted by the ICAC officers was inappropriate, and seriously undermined the Applicant’s right of silence, namely, the right to make a statement voluntarily and the right of freedom of speech.  Mr. Khattak maintained that there was nothing to show that the Applicant was predisposed to commit the offence of offering protection on criminal activities; and instead, the Applicant was simply making some improper remarks under the influence of alcohol.

34.  Mr. Khattak emphasized that the Applicant’s words and conduct during the two meetings did not match with the necessary elements of the offence of misconduct in public office, and that the trial judge also failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct.  Mr. Khattak maintained that even if the Applicant’s words and conduct were improper, they were not too serious.  In respect of the above issue, Mr. Khattak in his written submission had set out in detail the testimonies and contents of the audio recordings of the relevant witnesses.  Mr. Khattak submitted that the misconduct done by the Applicant was not intentional.  Further, the Applicant’s misconduct was not serious and he had a reasonable excuse, therefore the court should not have found him guilty.

35.  In addition to the above grounds of appeal, Mr. Khattak also submitted that not only were the investigative means adopted by the ICAC officers in breach of the Independent Commission Against Corruption Ordinance (“ICAC Ordinance”), the course of investigation was also an abuse of process, being sufficient to amount to an affront to the public conscience. Mr. Khattak argued that since “Ah Chun” and “Yiu Gor” were the ones who offered advantages to Lau and Chu to induce the Applicant, the investigative means adopted by the ICAC and the course of the investigation would amount to an affront to the public conscience.

36.  It was submitted by Mr. Khattak that according to the ICAC Ordinance, only when ICAC officers made discovery in the course of investigating offences under the Prevention of Bribery Ordinance or Election (Corrupt and Illegal Conduct) Ordinance in connection with those offences, could they continue to follow up the matters and take actions.  Mr. Khattak asserted that the ICAC, “in defiance of the law”, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to corruption, and that there was insufficient evidence to prove that the Applicant had committed any offence.  Mr. Khattak further stated that this problem must be addressed in a serious manner, otherwise once this precedent was allowed, ICAC officers could make use of whatever means to investigate any suspected offence.

37.  In the early paragraphs of his written submission, Mr. Khattak also set out in detail the Applicant’s background and the commendations and meritorious awards which the Applicant had received while serving in the Police Force.

Discussion

Joint Trial

38.  Where there are more than one defendant and each of them faces individual charges, the court has a discretion to decide whether they should be tried together.  Sachs J at page 261 (line B-C) of the judgmentof Assim [1996] 2 QB 249 had this to say:

“Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of courts (sic) in one indictment and can, subject always to the discretion of the court, be tried together.”

39.  At page 573 of the judgment of Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567, their Lordships also stated clearly that:

“…the proper conclusion to be drawn from the judgments as a whole is that the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.”

40.  It is a matter for the discretion of the court to decide, where there are more than one defendant and each of them faces individual charges, whether they should be tried together.  An appeal based on the ground of an erroneous exercise of such discretionary power stands very little chance of success.

41.  In the present case, “Ah Chun” and “Yiu Gor” came into contact with the Applicant successfully through Lau and Chu, as a result of which there were two meetings (on 22 June 2007 and 5 July 2007 respectively) between them and the Applicant.

42.  The dealings between “Ah Chun” and “Yiu Gor” and Lau and Chu were obviously connected to those between “Ah Chun” and “Yiu Gor” and the Applicant, which took place one after the other.  It was during the above dealings that Lau and Chu alleged that a police officer offered protection on the crime of trafficking in dangerous drugs, and finally Lau and Chu even admitted to having committed the offence as charged.  The police officer referred to by them was obviously the Applicant.  Although the charge against the Applicant was different from that against Lau and Chu, both charges arose from the same undercover operation and involved common background and witnesses.  There were sufficient reasons for the trial judge to exercise his discretion to conduct a joint trial of the charge against the Applicant and that against Lau and Chu.

43.  Mr. Khattak maintained that during the dealings between Lau and Chu and “Ah Chun”, they had said a lot of things unfavourable to the Applicant.  As the Applicant was unable to properly call Lau and Chu to give evidence for him, it was therefore unfair to the Applicant for him to be tried together with them.

44.  Before the commencement of the hearing on the case of the Applicant, Lau and Chu had already pleaded guilty to their charge, the Applicant could have called them to give evidence for him.  As the Applicant elected not to do so, he could not rely on this ground to support his contention that the trial was unfair to him.  In view of the charge to which Lau and Chu had pleaded guilty, it is unrealistic to suggest that the Applicant would have called them to give evidence.

45.  It cannot be denied that in the absence of the Applicant, Lau and Chu had said something unfavourable about him on various occasions.  But this case was tried by a professional judge alone, not by a jury.  The trial judge could certainly identify which evidence could be given in evidence against the Applicant, and which evidence could not.

46.  In fact, the trial judge stated clearly at paragraph 63 of his judgment that the conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, which took place in the absence of the Applicant, definitely could not be used as evidence against the Applicant.  The same position was taken by the prosecution.  The trial judge stated clearly that no bias would be formed and no adverse inference would be drawn against the Applicant on the basis of what Lau and Chu had said, and that in deciding the charge against the Applicant, he would only take into account the conversations in which the Applicant had participated.

47.  In deciding whether or not the Applicant was guilty as charged, both the trial court and this Court can only base upon the conversations which took place during the two meetings, on 22 June 2007 and 5 July 2007 respectively, between the Applicant and “Ah Chun” and “Yiu Gor”.  Both “Ah Chun” and “Yiu Gor” were present on both occasions.  They both gave evidence in court and there were audio/video recordings in respect of the course of the events.  Further, no issue was ever taken by the Applicant on the contents of the conversations during the two meetings.

48.  In the above circumstances, we do not see any unfairness in the decision of the trial judge in exercising his discretion to try the Applicant, Lau and Chu together.  There is no basis at all to support this ground of appeal advanced by Mr. Khattak.

Entrapment

49.  Before the judgment of R v Sang [1980] AC 402 was given, there were a series of judgments to suggest that the court had a discretion to exclude any evidence relevant to the offence but obtained by unlawful, improper or unfair means.

50.  The legal issue involved in Sang is: where the court is satisfied that the offence with which the accused is charged was committed at the instigation of an instigator, and that but for the instigation of the instigator, the accused would not have committed the relevant offence, whether the court should exclude the evidence adduced by the prosecution against the accused and/or grant a stay of the trial.

51.  The House of Lords took the view that no matter how wide the scope of discretion for excluding any admissible evidence was, the evidence of an offence could not be excluded by reason that it was caused by the instigation of an instigator, because entrapment did not constitute a defence to any offence.

52.  In dealing with the above issue, the House of Lords also had to consider whether the court had a discretion to refuse to allow evidence – being evidence other than evidence of admission – to be given in any circumstances in which such evidence was relevant and of more than minimal probative value.

53.  In Sang, Viscount Dilhorne of the House of Lords had this to say at page 437 of the judgment:

“(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur.”

54.  Lord Steyn at page 112 of the judgment of R v Latif [1996] 1 WLR 104 made the following observations on whether the court should stay the trial where entrapment was involved in a case:

“If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.”

55.  Mr. Khattak maintained that the role played by “Ah Chun” and “Yiu Gor” in the present case was identical to that played by the two police officers in Teixeira de Castro, and that it was held by the European Court of Human Rights that the two police officers’ actions had gone beyond those of undercover agents of a law enforcement agency, thereby constituting entrapment.  In Teixeira de Castro, it was concluded by the European Court of Human Rights that the two police officers involved in the case had incited the commission of the offence, and that but for their incitement Mr. Teixeira de Castro would not have committed the offence of trafficking in dangerous drugs at all.  Mr. Khattak argued that but for the pressure persistently and repeatedly imposed by “Ah Chun” and “Yiu Gor”, who first induced Lau and then came into contact with the Applicant through the intermediary of Chu, the Applicant would not have committed the relevant offence at all.

56.  We note that Teixeira de Castro is a case from Portugal.  The two police officers in the case hoped that through a drug addict (VS) they would be able to identify his dangerous drug supplier.  The two officers offered to buy several kilograms of dangerous drugsfrom VS, and VS agreed (to find a supplier).  However, despite being pressed by the two officers, VS was still unable to locate one.  Subsequently, the two officers went to VS’s home saying that they were now interested in buying heroin.  VS mentioned the name of Teixeira de Castro as being someone who might be able to find some dangerous drug; however, VS could only obtain the address of Teixeira de Castro from another person, FO.  Therefore, the two officers, VS and FO all went to the residence of Teixeira de Castro together.  After Teixeira de Castro, at FO’s request, met up with the two officers and VS, the officers said they wished to buy 20 grams of heroin for 200,000 Euros (sic) and produced a roll of bank notes from the Bank of Portugal.  Teixeira de Castro agreed (to procure the heroin) and went with FO to JPO’s home.  JPO then obtained three sachets of heroin, weighing 20 grams in total, from someone else and handed them over to Teixeira de Castro in exchange for a payment which exceeded 100,000 escudos (currency unit of Portugal and Cape Verde).  Teixeira de Castro took the dangerous drugs to VS’s home.  At that time, VS and the two officers were waiting outside.  Finally, when Teixeira de Castro took out a sachet of dangerous drug, he was arrested by the officers.  During a search of his body, the officers found another two sachets of dangerous drug, 43,000 escudos in cash and a gold bracelet.

57.  The European Court of Human Rights set out the features of Teixeira de Castro, including: (1) the drug-trafficking operation conducted by the police officers had not been ordered or supervised by a judge; (2) there was no reason for the competent authorities to suspect that Teixeira de Castro was a drug trafficker; in fact, he had no criminal record and no preliminary investigation concerning him had been opened; the police officers only came into contact with him through the intermediaries of VS and FO; (3) the dangerous drugs were not obtained from Teixeira de Castro’s home; they were obtained from a third party who had in turn obtained them from another person; (4) Teixeira de Castro did not have more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police; (5) there was no evidence to support the argument that Teixeira de Castro was predisposed to commit offences; and (6) Teixeira de Castro had been convicted mainly on the basis of the statements of the two police officers.  The European Court of Human Rights concluded that the two police officers did not confine themselves to investigating Teixeira de Castro’s criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence.  The European Court of Human Rights took the view that the two police officers’ actions went beyond those of undercover agents, because they instigated the offence and there was nothing to suggest that without their intervention it would have been committed.

58.  In Teixeira de Castro, the police officers violated the regulations by conducting an anti-drug-trafficking operation without an order of and supervision by a judge.  In the course of the operation, after they had come into contact with Teixeira de Castro by oppressive means, with a huge sum of money they further encouraged him to obtain dangerous drugs from another drug trafficker through a third person.

59.  In the present case, the investigation conducted by “Ah Chun” and “Yiu Gor” was not in breach of any regulation.  They investigated the Applicant because there were information and reasons for them to believe that a police officer had offered protection on criminal activities.  The crime committed by the Applicant was to offer assistance to people intending to engage themselves in unlawful activities, with his words and conduct forming the primary basis of the offence.  We do not see any oppression, incitement, instigation or encouragement imposed on him to say any incriminating words.  It was not necessary for the Applicant to go to the place which allegedly would be used as the address of the club, nor was there any oppression, incitement, instigation or encouragement in any form imposed by anybody on him to say anything.

60.  We do not see any similarity between the present case and Teixeira de Castro. The conduct of “Ah Chun” and “Yiu Gor” cannot be compared with that of the two police officers in that case.

61.  In R v Loosely, it was pointed out by Lord Hutton that in dealing with a case where undercover investigation of offences was involved, it was necessary for the court to balance two competing requirements: (1) those who commit crimes should be convicted and punished; and (2) there should not be an abuse of process which would constitute an affront to the public conscience.  At paragraph 100 of his judgment, Lord Hutton cited the observations made by McHugh J in Ridgeway v The Queen (1995) 184 CLR 19 at page 92 of the judgment:

“I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the process (sic) of the Court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.”

62.  Lord Hutton particularly pointed out at paragraph 101 of the judgment that:

“In balancing the relevant factors the English courts have placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer.”

63.  Although Mr. Khattak repeatedly emphasized that there was no basis for the ICAC to investigate into the case where a police officer was alleged to have provided protection on criminal activities, we do not agree with his argument.  From the dealings and conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, there were sufficient reasons for the ICAC to believe that someone provided protection on criminal activities.  As the Applicant was the police officer concerned, definitely there were reasons for the ICAC to investigate the suspected offence or offences, contrary to the argument put forward by Mr. Khattak that the investigation should have been stopped two months odd after its commencement.  Although the investigation made initially by the ICAC was about a police officer offering protection on the crime of trafficking in dangerous drugs, and the Applicant was eventually prosecuted for and convicted of the offence of misconduct in public office, as both offences by nature are about a police officer providing assistance to criminal elements, they are offences of the same kind.  The Applicant, together with Lau and Chu, met with “Ah Chun” and “Yiu Gor” twice.  In the absence of any reasonable explanation, this can be inferred as his having the intention to assist the criminal elements.  Given his capacity of a police officer, if he had no intention to assist the criminal elements, we do not see any reason why he would have attended those meetings, in particular the second meeting which took place at the chosen address of the unlawful club.

64.  There was no evidence to show that when “Ah Chun” and “Yiu Gor” met the Applicant, they had done any act by way of persuasion and inducement, encouragement, instigation, or compulsion to the Applicant in order to induce the Applicant to say anything to assist the criminal elements intending to set up an unlawful club.

65.  During the trial, it was mentioned that “Ah Chun” and “Yiu Gor”, through Chu, advised the Applicant to provide protection to the club and in so doing he could obtain indirectly some shares of the club as his reward. This might be a cause of inducement to him.  First of all, we must point out that the Applicant did not adduce any evidence to show that he had knowledge of the above suggestion, and thus he could not claim that he had been influenced by that cause of inducement.  In any event, even if the said cause of inducement did exist, such cause was not a reward unrelated to the offence in the present case or similar offences. As pointed out by Chu in one of the telephone conversations, a police officer would not, without any reason, do any act to assist a criminal, and when a police officer did any act to assist a criminal, he must be expecting to obtain a reward.

66.  Having considered the detailed submission made by Mr. Khattak, we do not agree that the present case involved any act of entrapment.  It was both right and necessary for the ICAC officers to conduct the investigation.

67.  Further, the Court of Appeal of Hong Kong has made detailed analysis on the legal issues arising from entrapment in HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621. The Court of Appeal agreed that even if the trial of the accused could be conducted fairly, a trial judge had jurisdiction to stay proceedings in a criminal trial on the basis that a defendant was subjected to entrapment by the law enforcement agency.  However, before staying the proceedings, the court would have to be satisfied that if the trial were to continue, it would be an abuse of process which amounted to an affront to the public conscience with severe consequences for public confidence in the administration of justice.

68.  The Court of Appeal pointed out that the factors to be considered by the court included the “Opportunity Test” and a balancing exercise between the nature and seriousness of the offence and the conduct of the law enforcement agency in order to achieve reasonable proportionality.

69.  The Court of Appeal clearly pointed out that if the accused had already had the intent to commit an offence and the law enforcement agency did no more than provide the defendant with an unexceptional opportunity to commit the offence, then the “entrapment” allegation might not stand.  The Court of Appeal further stressed that where serious offences were of a sort normally carried out in secrecy and were difficult to detect, then a more pro-active role on the part of the law enforcement agency was both necessary and excusable.

70.  In considering the question of “proportionality”, it was necessary for the court to determine whether the law enforcement agency’s activities and behaviour remained within acceptable bounds or went too far.  Even if the law enforcement agency’s activities and behaviour went beyond what was reasonable or necessary, the court must be satisfied that the investigator’s role in the defendant’s commission of any offence was an affront to the public conscience before making an order to stay the proceedings.

71.  In our view, the decision in Wong Kwok Hing on the relevant issues has provided very useful guidance.  We cannot ignore that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies to investigate unlawful activities, and the use of undercover operations plays an important part in combating serious crime, including corruption offences (see the judgment of Secretary for Justice v Lam Tat-ming (2000) 3 HKCFAR 168 at paragraphs 180J-181A).

72.  The background of the present case shows that the ICAC commenced the undercover operation after they have been informed that a police officer might have offered protection on criminal activities.  The undercover agents asked to meet the Applicant only after Lau and Chu had expressed that the Applicant could provide assistance in relation to the operation of the unlawful club.  When the Applicant showed up at Victoria City Seafood Restaurant on 22 June 2007, he met “Ah Chun” and “Yiu Gor” for the first time.  After the Applicant came to know that the unlawful club would involve the supply of dangerous drugs and “prostitutes from the Mainland”, he took the initiative to give advice, and when “Ah Chun” and “Yiu Gor” echoed what he had said, the Applicant further gave some more advice.

73.  Subsequently, after the meeting on 22 June 2007, the Applicant became the major target of the investigation and it was necessary to carry on the undercover operation.  On 5 July 2007, accompanied by Lau, the Applicant even went with “Ah Chun” and “Yiu Gor” to attend a site visit at a place which he fully knew would be used as the address of the unlawful club.  Meanwhile, the Applicant not only failed to discharge his duties as a police officer, he also gave some “expert” advice to “Ah Chun” and “Yiu Gor” on a number of occasions, for the purpose of helping them evade more effectively the consequence and criminal responsibility that their criminal acts would bring about.

74.  Mr. Khattak stressed that after the first meeting, Lau had called “Ah Chun”, saying that he had made some inappropriate remarks during the first meeting, thereby causing embarrassment to the Applicant.  Mr. Khattak’s argument is that the above incident shows that the Applicant was not happy with the questions raised by “Ah Chun”.  According to the contents of the telephone conversations between Lau and “Ah Chun”, the Applicant was unhappy simply because he thought the way in which “Ah Chun” had said about it was too obvious, not because he disagreed with the questions raised by “Ah Chun”.  Lau said the Applicant could say anything privately, but as that was just the first time that he had ever met “Ah Chun” and “Yiu Gor”, he would appear to be “evasive”.  Lau even said, “… As Wah Gor put it, in fact, if you operate it in this way, certainly there wouldn’t be any problem.  But who dare to guarantee, I mean, do you understand?  Others can’t tell you that, how could (others) answer you (?)  Even if it’s really like that, (others) still can’t answer you by saying ‘yes’…. If you have audio-taped what he had said, that would mean he’s done for, isn’t it (?)”

75.  Mr. Khattak said the Applicant was not happy with the way in which “Ah Chun” had put it.  It was not the substance of what “Ah Chun” had said that upset the Applicant, rather, it was the way in which “Ah Chun” had expressed it, because he (the Applicant) had misgivings.  This certainly cannot support the Applicant’s ground of appeal.

76.  Although the motive of the Applicant was unknown, it was obvious that he intentionally and willingly took the initiative to provide some information obtained by him in the capacity of a police officer to some people known to him as “criminal elements”, for the purpose of helping them evade or reduce the possibility of their being arrested by law enforcement agencies for their crimes.  During the two meetings with the Applicant, “Ah Chun” and “Yiu Gor” merely provided him with an opportunity to commit crime.  In the course of the events, “Ah Chun” and “Yiu Gor” played an active role which caused the Applicant to further express his “advice”.  What was done by “Ah Chun” and “Yiu Gor” was both necessary and reasonable, or, at least, excusable.

77.  In the opinion of the trial judge, “… even if members of the public hold a different view in respect of the sincerity, investigation conduct and means of “Ah Chun” and “Yiu Gor”, members of the public would never think that their approach is so repulsive that it amounts to an affront to the public conscience.  In the course of bringing prosecution against Lau, Chu and the Applicant, the prosecution has not abused any judicial process or brought disrepute to the administration of justice.  The continuation of the trial did not bring injustice to any of the defendants.  Lau, Chu and the Applicant were unable to prove on the balance of probabilities that their trial should be terminated.”  The ruling of the trial judge was a correct and reasonable one, with which we agree.

78.  The Applicant’s words and conduct during the two meetings were not confessions made as the result of some undercover operation after the commission of crime.  Before the meetings, there was no evidence to show that the Applicant had committed any crime.  In fact, it was during the two meetings that the Applicant said those incriminating words and did those incriminating acts.  The undercover agents merely provided an opportunity to the Applicant to commit an offence, rather than taking a statement of confession from him to support an offence which he had already committed.  In any event, having considered the audio recordings of the two meetings, we do not agree that “Ah Chun” and “Yiu Gor” did take the initiative to obtain information from the Applicant and that their conversations should be regarded as interrogation.

79.  Further, during the two meetings, so far as the Applicant was concerned, “Ah Chun” and “Yiu Gor” were merely two persons intending to operate an unlawful club.  There was no relationship of trust between the two parties.  In the presence of “Ah Chun” and “Yiu Gor”, the Applicant was not in a vulnerable position, nor did he feel that he was obliged to say those improper words and do those improper acts.  “Ah Chun” and “Yiu Gor” were also unable to manipulate the Applicant and to induce him to say anything which he should not have said.

80.  In fact, according to the audio recordings, when the Applicant was expressing his views to “Ah Chun” and “Yiu Gor”, he was very pro-active, willing and enthusiastic.  There is no reasonable basis to support Mr. Khattak’s suggestion that the Applicant had been deprived of his right of silence.

81.  When “Ah Chun” and “Yiu Gor” met the Applicant, they were investigating whether or not Lau and Chu had offered advantages to a police officer.  From the information obtained by their investigation, in particular the words and conduct of Lau and Chu, there were definitely sufficient reasons for “Ah Chun” and “Yiu Gor” to suspect that the Applicant might have committed an offence of having unlawfully accepted advantages or that his misconduct might be directly or indirectly resulted from a bribery offence.

82.  Section 10(2) of the Independent Commission Against Corruption Ordinance provides that where, during an investigation by the Commission of a (suspected) offence under the Prevention of Bribery Ordinance, another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence and he reasonably suspects that such other offence was connected with, or that either directly or indirectly its commission was facilitated by, the suspected offence under the Prevention of Bribery Ordinance.

83.  During the investigation by the ICAC of the Applicant on whether he had committed an offence of accepting an advantage, it was disclosed that the Applicant had committed the offence of misconduct in public office.  The ICAC was perfectly entitled to make investigation and arrest the Applicant for that offence.

84.  It was suggested by Mr. Khattak that the ICAC, in defiance of the law, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to “corruption”, and that this not only has violated the ICAC Ordinance, but was also an abuse of process.  This is an unfounded allegation and there is no basis at all to support it.

85.  We do not quite understand the allegation advanced by Mr. Khattak that the admission of the contents of the audio recordings in support of the offence has violated the freedom of speech.  Under the Basic Law and the Bill of Rights, Hong Kong residents are entitled to freedom of speech.  Freedom of speech, however, like any other rights, is not completely unrestricted.  In the present case, the matter which had to be dealt with was the incriminating words.  No matter how leniently the matter is to be dealt with, freedom of speech will never cover any incriminating words.

86.  In our view, the decisions by the trial judge to refuse to make an order to stay the trial and to refuse to exclude the evidence relating to the two meetings were correct and reasonable.

Whether the Applicant’s words and conduct amounted to misconduct

87.  According to the Police Force Ordinance, as a member of the Police Force, the Applicant shall be deemed to be always on duty (section 21), and his duties shall be to take lawful measures for:

(a)  Preserving the public peace;

(b)Preventing and detecting crimes and offences. (section 10)

88.  After the Applicant came to know that “Ah Chun” and “Yiu Gor” had rented and renovated a property for setting up a club which would involve offences such as supplying dangerous drugs and “prostitutes from the Mainland”, he went so far as to give them advice, including advice relating to actions which the police would take against establishments of the same kind, how to enable the club to evade or reduce the difficulties arising from the unlawful businesses, and how to make adjustments to the renovation and facilities of the club, in order to avoid as much as possible the criminal dealings carried out in the club being disclosed.  In his written submission, Mr. Khattak had carefully analyzed the words uttered by the Applicant during the two meetings.  Mr. Khattak stressed that what the Applicant had said was only his understanding of the law, and should not be regarded as advice.  Mr. Khattak submitted that the Applicant’s words and acts did not amount to serious misconduct.  We do not intend to make an excessively detailed analysis of the Applicant’s words and conduct during the two meetings. The key point is that while the Applicant knew full well that “Ah Chun” and “Yiu Gor” intended to be engaged in some unlawful businesses, he still met with “Ah Chun” and “Yiu Gor” twice through the arrangement of (a) suspicious person.  As an experienced police officer, the Applicant must have tried his best, in the course of saying those improper words and doing those improper acts, to cover up and tone down their seriousness.  There was only one purpose for the Applicant to meet “Ah Chun” and “Yiu Gor” – that is, to assist them in their conduct which the Applicant fully knew to be unlawful.  Mr. Khattak’s suggestion that the misconduct of the Applicant was not serious is entirely unconvincing.

89.  The conduct of the Applicant not only has violated his duties as a police officer, but would also, as ruled by the trial judge, harm the social ethics, assist the growth of crimes and harm public order.  The assistance provided by the Applicant to the criminal elements would facilitate them in committing crimes more easily and would make it more difficult for the police to crack those crimes, and certainly would also bring disrepute to the Police Force.

90.  When the Applicant gave advice to “Ah Chun” and “Yiu Gor”, he expressed that he would not participate in the operation of the club, or accept any advantage, or tip them off in advance; instead, he would only give advice as a friend.  This would not reduce the seriousness of his conduct.

91.  Of course, if the Applicant had really participated in the operation of an unlawful club, had accepted advantages and had given prior warning of the police’s impending action to them, he would have faced more serious allegations.

92.  We do not agree with Mr. Khattak’s suggestion that the Applicant’s words and conduct during the two meetings did not match with the elements of the relevant offence.  We also do not agree with Mr. Khattak’s suggestion that the trial judge had failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct.  There was no evidence whatsoever to show that the Applicant had any reasonable excuse or explanation for giving those advice and information to “Ah Chun” and “Yiu Gor” during the two meetings.  Nor was the Applicant’s ignorance of law and his thinking that it was not against the law if he did not accept any reward, a reasonable excuse capable of explaining away his misconduct which definitely was inconsistent with his capacity as a police officer.

93.  We agree with the analysis of the trial judge.  The Applicant’s words and conduct have squarely matched with the five essential elements of the offence of misconduct in public office.

Conclusion

94.  The decision to convict the Applicant of the above offence is absolutely a correct and reasonable one.  It is neither unsafe nor unsatisfactory.  The Applicant’s application for leave to appeal against conviction is dismissed.