HKSAR v. TANG LING KWAI AND ANOTHER

CACC277/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.277 OF 2002

(ON APPEAL FROM DCCC NO.102 OF 2002)

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REASONS FOR JUDGMENT

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Burrell J (giving the judgment of the Court) :

1. The applicants were two out of seven defendants who were convicted after trial in the District Court on 16 May 2002. All seven were charged with blackmail (Cap.210, section 23) and the 2nd to 7th defendants were charged with acting as members of a triad society (Cap.151, section 20(2)). The 1st defendant had also been charged with offences of criminal intimidation (relating to an incident which had occurred about a week earlier at the same location) and claiming to be a member of a triad society. The learned deputy judge, Deputy Judge Yau, found all charges proved. The 3rd and 5th defendants seek leave to appeal conviction. At the conclusion of the hearing we dismissed both applications. We now give our reasons.

2. The prosecution case was, in outline, as follows. On 21 November 2001 the 1st defendant and another person had gone to a construction site near Lau Fau Shan in the New Territories and during a conversation with a security guard said that if protection money was not paid, they would set fire to the site. This was the basis of the first charge.

3. All the other charges related to an incident of 27 November 2001. On that day seven men came to the site. The principal prosecution witnesses who gave evidence about this incident were PW3 and PW4. The police had been alerted about the incident on 21 November and so PW4, a police officer, was posing as a security guard. PW3 was an employee on the site.

4. PW4 spoke to the group at the main gate of the site. After their arrival and while PW4 was speaking to them, PW3 telephoned the police from the site office. The 1st defendant said to PW4 that they had come to collect Tor Tei, protection money. PW4 said there was no need for so many people. The 3rd defendant then told the four men who were standing behind the 1st and 2nd defendants to move away - they crossed the road. The 3rd defendant then joined them, leaving the 1st and 2nd defendants at the main gate. The effect of the ensuing conversation was that the 1st defendant repeated their demands for money and said that they were triads.

5. About 10 to 15 minutes after the group's arrival at the main gate, a team of police officers arrived, lead by PW5, a Detective Sergeant. All seven defendants were arrested. The 3rd to 7th defendants were arrested at a place across the road about 35 to 40 metres from the main gate and the 1st and 2nd defendants at the main gate.

6. The 1st and 4th defendants elected to give evidence, the applicants elected not to give evidence or call witnesses. The 1st defendant's case was that he was not demanding protection money but that he was trying to sell concrete. The 4th defendant said he was waiting for a mini-bus with the 3rd, 5th to 7th defendants whom he did not know, when he was arrested. He had never been to the main gate of the construction site.

7. No point is taken on appeal about the fact that the offences, as charged, were committed by the group of men who came to the main gate of the construction site. The learned judge correctly identified the ingredients of those offences and correctly found that those ingredients had been proved. The sole issue on appeal is whether the learned judge was entitled to find that the 3rd and 5th defendants had been part of the group of seven who had gone to the main gate.

8. Both counsel for the applicants, Mr C. Grounds for the 3rd defendant and Mr A. Macrae, SC for the 5th defendant, submit that there was insufficient evidence for the court to be satisfied that the applicants had been in the group that committed the offences. At the time of their arrest they were two out of a group of five men, standing 35 to 40 metres from the main gate and about 10 to 15 minutes had elapsed since the offending group had first arrived at the gate. Mr Grounds also makes criticism of the way in which the learned judge evaluated the evidence and submits that, as a result, his findings of fact were flawed which rendered the conviction unsafe and unsatisfactory.

9. We feel it necessary to make a preliminary comment before dealing with real issues in this appeal. Mr Macrae, SC had included in his perfected grounds of appeal a final ground which he abandoned at the outset of his submission. The ground was based on the fact that the penultimate paragraph of the transcript of the learned judge's reasons for verdict, which had been delivered orally, contained the following sentence : "Taking all the irrelevant evidence into consideration, it was of no doubt that ...". The written grounds of appeal went on to state that if the learned judge had relied on irrelevant evidence the conviction must be based on inadmissible evidence. This ground should never have been advanced. A simple check of the recording would have revealed that the judge actually said "relevant" not "irrelevant". A failure to check such a simple matter is difficult to understand. Even if the judge had said "irrelevant" it would so plainly have been a slip of the tongue as to make such a ground utterly devoid of merit. In short, it should never have been included as a ground of appeal and the criticisms we make are not remedied by the abandonment on the day of the appeal, not least because it put the court to the trouble of obtaining and listening to the tape for itself.

Sufficiency of evidence of identification

10. It was said that the evidence of identification was insufficient. The guidelines in the classic identification authority, R. v. Turnbull [1977] QB 224, were referred to and relied on. Reliance on the Turnbull guidelines in this case was to a very large extent misplaced. It was pointed out on behalf of the applicants, that the men said to be the 3rd and 5th defendants were only at the main gate for one to two minutes before they moved away, across the road, leaving the 1st and 2nd defendants talking to PW4. It was pointed out that the 5th defendant was said to be in a group of four that were behind the 1st, 2nd and 3rd defendants. The group of five (the 3rd to 7th defendants) were arrested about 10 minutes later and during that 10 minutes or so PW4 did not keep them in his sight for the whole of the time.

11. A careful examination of the distance between PW4 and the applicants, evidence of descriptions, the lapse of time between the offence and the arrest, obstructions to PW4's view, etc.; namely, the classic considerations in the usual type of identification case, misses the point. In the present case, the task of the judge was to ask himself whether, on the evidence, he could be sure that the group of five who walked 35 to 40 metres away at about 10:05 a.m. was the same group that was arrested at about 10:15 a.m. at the location to which the group of five had walked. He had to address the issue of whether there was any risk that the group that was arrested was in any way different, either wholly or individually, from the group that had walked away. If there was any reasonable possibility that it might have been a different group of five or that an innocent passer-by had taken the place of one of the group then the prosecution would fail. This issue was canvassed in the evidence at trial and dealt with by the learned judge in his reasons for verdict. In addition he cautiously and wisely reminded himself of the Turnbull guidelines. The verdict relied heavily on the evidence of the undercover police officer, PW4. On the crucial issue the judge said :

"... According to PW4, he had observed the group for one minute in broad daylight before the five of them, whom he identified to be the 3rd to 7th accused, walked from the main gate to Deep Bay Road. PW4 in fact had ample opportunity to observe these five persons. Although the group had walked away, PW4 had not lost sight of them completely because PW4 said that despite his view being partly blocked by the grass and trees he had been able to see some of them from time to time when they moved about. PW4 said that he had pointed out this group of people to PW5 at a distance of about 100 feet and he had seen his colleagues intercept the group. PW4 said that from the impression he had and the heights and age of the group he was able to say that the group intercepted by the police was the same group he had seen earlier on at the main gate."

12. If the evidence had been, and the judge had found, that the key witness had kept the group under observation constantly, that there was no-one else in the vicinity, and that he witnessed the arrest of that group, the matter would end there. In such circumstances the appearance, clothing, heights, ages etc. of the individuals in the group would be of no significance. The only issue would be whether the group remained in tact and thus its members would not have altered.

13. In the present case however the evidence, as recognized by the judge, does not go as far as that. Counsel for the applicants have referred to passages in the transcript of the evidence which demonstrate that PW4 was not looking at the group constantly, that the group was not stationary but moved around, that PW4's view was partially obstructed and that, in one respect, the group arrested was different from the group at the gate (that one difference being that the group of five at the gate had been described as being between 16 and 20 years of age whereas the 5th defendant was in fact 31).

14. It is necessary therefore to examine these aspects of the evidence to determine whether or not the judge's finding that the group remained the same group from the time of offence to the time of arrest is safe and satisfactory.

15. In short, the judge relied on PW4's evidence that it was "the same group". An analysis of the event demonstrates this to be a perfectly safe and satisfactory finding. The evidence showed that one to two minutes after the verbal confrontation by seven males, five of them walked away (four at first, followed by a fifth), they crossed the road together and stayed in a group together, they observed the two who remained behind talking to PW4. PW4 looked at the group from time to time while he was talking to the other two for about 10 minutes. He remained aware of their position about 35 to 40 metres away. With the exception of the evidence from the 4th defendant to which I shall refer later, there is no evidence that other people were, in fact, in the vicinity at the material time, who could have become embroiled in this group and taken the place of one or more of the offenders only to find themselves being arrested a few minutes later. Five males had walked away, the group remained in tact and remained within PW4's conscious awareness and five were arrested at the place to which the five had walked. The learned judge clearly, by his verdict, regarded any suggestion that innocent passers-by had got caught up in this incident as fanciful. Neither applicant commented about the injustice of their arrest at the time.

16. On the issue of the sufficiency of evidence in support of the correctness of the finding that the 3rd and 5th defendants had been part of the group at the main gate, Mr Macrae summed up his arguments by saying "The case proceeded on the basis that there had been an identification of the 5th defendant when in fact there had been none." This is correct in the sense that there had been no individual identification of the 5th defendant by reference to his clothing, features etc. but wrong in the context of the real issue of the case namely whether he had been correctly accused as having been one of the members of the offending group. In that sense, he had been identified.

Flawed evaluation of evidence

17. Mr Grounds submitted that the way in which the learned judge dealt with a number of particular aspects of the evidence was flawed and, if it was, it could render the convictions unsafe and unsatisfactory.

(a) Mr Grounds contended that the judge's reasons for disbelieving and rejecting the 4th defendant's evidence (he being the only one of the group of five who elected to give evidence) were illogical and unreasonable. The 4th defendant had said that he was on the road in question because he was waiting for a minibus and he thought the others were also waiting for a minibus so he joined them. The judge saw and heard the 4th defendant, he was in the best position to assess his credibility. It is neither unreasonable nor illogical to reject the 4th defendant's account. The particular reasons given for rejecting it, namely that he was on the wrong side of the road for the bus and that he made no protest or innocent explanation when arrested, are perfectly sound.

(b) Criticism was also made of the learned judge's acceptance of PW4's account in preference to PW3's with regard to relatively minor discrepancies in their evidence. The judge found PW3 to be "confused" at times, whereas PW4 was "clear and unequivocal". The judge was entitled to make this distinction, having seen the witnesses, and the transcript bears out his evaluation.

(c) The remaining particulars of "flawed evaluation" (Ground 1.(3)-(6)) are based on the premise that the 4th defendant's evidence and the conflicting parts of PW3's evidence were wrongly rejected. As the basic premise is not made out, these grounds have no merit.

18. Ground 1.(7) concerns the issue of identification which has already been dealt with. There are, however, two final matters which merit comment.

19. First, the transcript contains a number of references to identification by PW4 of the 3rd defendant, in particular, not merely generally as a member of the group. Mr Grounds made a preliminary point based on the fact that the learned judge placed no weight on the "dock identification" of the 3rd defendant by PW4. He submitted that the non-reliance of a dock identification, or any other post event identification, identifying the 3rd defendant as the person about whom the particular references had been made in the course of evidence, nullified any probative value of that evidence. Therefore, he submitted, the 3rd defendant was in no worse a position than the 5th defendant, about whom no particular identification was made, for the purposes of the appeal.

20. In the event, any merit which this submission may have is entirely academic because the 5th defendant's appeal has also been dismissed.

21. Secondly, evidence that the arrested group was in fact differently constituted from the group of offenders at the main gate would, if accepted, be fatal to the prosecution of the group (in the absence of any particular evidence of identification of individuals). An extreme example would be if the offenders were described as "four young men" and no more, but the arrested group were two men and two women. Here, it was submitted that the arrested group was indeed different because the offenders (the 3rd to 7th defendants) were often described in evidence, as being between 16 and 20 years old, whereas the 5th defendant was 31.

22. Describing the approximate age of a group of men is a subjective perception. The fact that one of the group is older than the ages estimated does not in our judgment, given all the other evidence, sow any seeds of doubt about the core issue that the entire group who were arrested were those who had committed the offences charged so as to render the convictions unsafe and unsatisfactory.

23. These are our reasons for dismissing the 3rd and 5th defendants' applications for leave to appeal their convictions.