THE QUEEN v. HO CHUNG YUM

Headnote

Police "informer" who discloses a crime in which he has participated is not immune from prosecution therefor.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, HO Chung-yum, was convicted in the District Court of being in possession of a "Smith & Wesson long barrelled 0.38 revolver" without a licence.

2. The offence alleged against the applicant, came to light in a rather curious way. Sergeant AU Kwong-chi (PW1) - the principal witness for the prosecution - had known the applicant for about 8 years. They had met frequently on social occasions and were connected through a common interest in a football team of which the sergeant was a member. The sergeant also regarded the applicant as one of his regular informers.

3. On the 9th of November 1984 the applicant phoned sergeant Au and said he had information to give him concerning firearms. A meeting was arranged and the sergeant interviewed the applicant, on that evening at 7:00 p.m. in Mong Kok Police Station. The applioant told PW1 that a man called SO Dee whom he described as a drug addict and a person with a criminal record, had approached him in September of the previous year and had asked him to find a safe place to keep a gun which had been stolen by another person and which was in SO Dee's possession. The applicant told PW1 that he had taken SO Dee in a taxi to a restaurant in San Po Kong where he had shown him a secure hiding place for the gun in the ceiling above a toilet in the restaurant. The gun was placed there by SO Dee in the applicant presence.

4. Sergeant Au said that he made a note of this information and subsequently informed his superior, Inspector TO Pak-kin. He himself took no immediate action against the applicant and it is clear that throughout these preliminary revelations he was dealing with him as a familiar and reliable source of information.

5. On the 13th of November the applicant led Inspector To, Sergeant Au and some other police officers to the same restaurant in San Po Kong. The gun described in the charge was recovered from its hiding place above the toilet together with six rounds of .38 ammunition.

6. Sergeant Au made it clear that throughout these events he was still dealing with the defendant on this matter as an informer and possibly as a potential witness and it was for that reason that he had neither cautioned him when originally approached nor had he charged him with any offence.

7. It seems equally clear that the officer in charge of the investigation of this matter was primarily, interested in finding SO Dee. On two occasions, once in November and once in December, Sergeant Au met the applicant again. The purpose of these meetings was to obtain further information which might lead to SO Dee's arrest. Nothing came of this however and the next thing that happened was that on the orders of Sergeant Au's superiors the applicant was called to the police station at Mong Kok two months later on the 14th of January. He was taken thence by a different party of police under the direction of a Sergeant Lam to Police Headquarters Kowloon where he was formally arrested and charged with possession of the gun and the ammunition. Sergeant Au was not a party to these proceedings.

8. A statement allegedly made by the defendant after caution while in custody was made the subject of objection by the defence and was not admitted in evidence. The applicant gave evidence on the question of admissibility of the statement but did not give evidence upon the general issue.

9. The applicant had also been charged in a separate count with possession of the ammunition. The District Judge found this charge not proved but found him guilty on the evidence above described of aiding and abetting SO Dee in possessing the gun found in the restaurant at San Po Kong.

10. It is common ground that the only evidence against the applicant upon the first charge was the statement made orally by him to Sergeant Au on the 9th of November. At the trial Mr. Bell - who appeared for the applicant also on the appeal - sought to have this evidence excluded on grounds which are substantially the same as those constituting his first ground of appeal. That is the principal ground of appeal and to that I will return, having dealt with the point which seeks more fundamentally still, to undermine the propriety of the conviction.

11. Mr. Bell argues - it is his third ground - that taking this evidence at its highest, and putting aside all question as to its admissibility, the Crown has failed to prove its charge. He points out that the applicant was not convicted of being jointly in possession with SO Dee but of being in possession as aider and abettor of the latter possession of the gun. He is charged with possession of that gun throughout the whole 14 months when it was, presumably, lying hidden in its place of concealment at the restaurant. Since the evidence shows no more than that the applicant on a certain day helped SO Dee to conceal the gun the most that could be said, counsel maintains, is that he aided and abetted SO Doe in his possession upon that day.

12. There might have been more point to this argument if it were the case that the police had discovered the whereabouts of the gun without the assistance of the applicant and had only been able to prove some initial assistance given by the applicant to SO Doe in his search for a hiding place.

13. Where, as here, the evidence showed the bestowing of the gun with the assistance of the applicant and its recovery with his assistance 14 months later without anything to suggest that in the interim anything might have occurred to render difficult or impossible, his access thereto, the only reasonable inference is that he had, until the gun was eventually recovered, acquiesced in SO Dee's possession thereof throughout that period. It was open to SO Dee to resort to it at any time in those 14 months; his possession of it continued and the aid given at the outset by the applicant must likewise be considered as continuing. The matter, that is to say, went beyond mere knowledge of the whereabouts of the gun. This is confirmed by Sergeant Au 's evidence that in making his disclosure the applicant referred to the hiding place as the place where "we kept the gun."

14. The first ground is of more substance. Mr. Bell does not argue that the oral statement should have been excluded on the basis that the applicant had not been cautioned nor yet that it should be excluded on the ground that it was obtained by a trick. His objection is based upon the general ground of public policy and fairness. Here, he says, you have a man who volunteers valuable information to a responsible police officer and neither being obliged nor yet intending to supply evidence against himself speaks freely in the absence of any inhibitory warning and by so doing enables the police to recover a dangerous weapon which very likely would never have been recovered but for that information.

15. Mr. Harris, for the Crown, conceded that this might well be an occasion for calling in question the exercise by the trial judge of his discretion in admitting this evidence on the grounds of unjust or unfair conduct on the part of the prosecuting authorities if the act of the applicant in volunteering this information were to be considered a bona fide disclosure by a police informer. The Crown, he says, has however never conceded that that was so in the present case. In this connection he refers to another part of the evidence which I have not yet mentioned. It appears that on the 7th of November, that is two days prior to the applicants disclosures to Sergeant Au, another police sergeant had executed a search warrant at the applicants premises and when it was discovered that the applicant was not at home, a note was left by that officer directing the applicant to contact him at the police station. It was the prosecution case at the trial that the applicant's intention in resorting to his friend, Sergeant Au, was to put himself right with the police while avoiding any action against himself. This point was made at the trial but the District Judge rejected it. He said:

"No evidence was given as to what PW4 was searching for it might have been a revolver but it might have been anything else. There was nothing to explain why, upon hearing that 'his Shatin flat had been searched on the 7th, the accused should have disclosed to the police on the 9th the whereabouts of a pistol which had for months lain safely hidden miles away in San Po Kong and which apparently could, not be connected with him."

The point assumed a special importance upon the hearing of the appeal because it was the understanding of Mr. Harris that the search warrant being executed by PW4 was one issued under the Firearms Ordinance. Had that been certainly established it would have lent considerable weight to the prosecution's suspicion that in going to Sergeant Au the applicant was taking prudent steps to protect himself in the knowledge that the police suspected him of possession of firearms. His reaction to the police visit to his home would undoubtedly then have fortified the appearance of guilty complicity when he came to break his long silence in respect of this particular firearm.

16. At the trial the warrant was shown to PW4 who identified it. It was never produced in evidence and there is nothing on the record to show that it had been issued under the Firearms and Ammunition Ordinance. Mr. Harris's information was that it was such a warrant but that does not square well with the judges comment (quoted above) and it therefore seems unlikely that he can have been apprised of its special character. We are not entitled at this stage to permit the prosecution to strengthen its case by reference to the special character of the warrant and we must proceed upon the basis, as the judge at the trial seems to have done, that it was a warrant of a more general character.

17. In the course of the trial of the admissibility of the applicant's statement to the police the judge had evidently entertained misgivings as to the propriety of the prosecution proceeding with the case at all, and he requested the prosecutor (page 33 of the record) to speak to the D.P.P. and to ascertain the Crown's attitude to proceeding "having regard to the peculiar circumstances". This was done but the Crown maintained its position.

18. In the end the judge convicted on the basis that the applicant's statement to Sergeant Au had been voluntary even though uncautioned and he said:

"It would be absurd to say that a criminal could obtain immunity from prosecution merely by informing on another person and at the same time directly or indirectly confessing to his own crime."

We fully agree. The point of public policy which was principally argued at the trial by defence counsel concerned the protection of a police informers identity. It is in the interests of the public generally that the valuable source of information available from police informers should not be put at risk by dealing with individual members of that class in such a way as to discourage the free flow of such information which is often vital in the detection and prosecution of crime. For that principle to be of overriding concern in any case such as the present, it becomes necessary for the magistrate or judge who is trying the case to decide whether, on the facts, the person on whose behalf the principle is being invoked is truly to be regarded as an informer. Where that person gives information which implicates himself in the commission of the crime which he is revealing a factual question falls for decision: is the information volunteered in truth a confession to complicity in the offence revealed? If a possible view of the evidence is that the informant has throughout been acting in the interest of law and order so that his complicity is apparent only and not actual then he will necessarily be acquitted - not upon the basis that such evidence should not have been admitted but on the basis that he has never been a criminal participant.

19. The passage quoted above from the reasons for decision is important in this regard because although the judge has apparently rejected the suggestion that the applicant's resort to Sergeant Au on the 9th of November was prompted by the earlier police visit to his premises - thus declining to rely upon what would evidently have been a suspicious circumstance - he nevertheless concluded that the applicant was not simply an informer in respect of the offence which he had disclosed but was criminally involved therewith.

20. On the evidence, even as he found it to be, and especially in the light of the applicant's failure to give any account of the reason for his long silence, the judge was fully entitled to convict the applicant upon his own admission. Whatever his motive may have been in making the admission it was clearly voluntary in the sense that it had not been the fruit of any threat of harm or inducement of any king; nor did it result from any unfair trickery on the part of the investigating authorities.

21. We are not persuaded that there is any principle, whether related to fair play or public policy, which would require us to interfere with the exercise of his discretion by the trial judge.

22. We would add that, notwithstanding the judge's observations, in our view the fact that the applicant sought to make this disclosure 14 months after the event and two days only after he became aware that the police were interested in him, coupled with the fact that he made it to Sergeant Au and not to the officer in charge of the regional unit who had left the note at his premises, justified the prosecution view that his purpose was primarily that of self-protection.

23. We have considered the decision in Magisterial Appeal 1422 of 1983, The Queen v. LAI Ming-kit ⁽¹⁾. Though similar the facts are not precisely the same as those in the present case. Bewley, J. cited The Queen v. Sang⁽²⁾ and The Attorney General v. IP Chong-kwan⁽³⁾. He found that on the facts before him it was manifest that the exercise of the discretion to admit the statement had been unreasonable and had resulted in injustice. We are not prepared to say that that was a position here. For these reasons the application must be refused.

(1)    Cr. App. No. 1422 of 1983

(2)    (1980) Appeal Cases 402

(3)    (1978) H.K.L.R. 141