HKSAR v. CHAN YAT CHUEN

CACC472/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. CACC 472 OF 2006

(ON APPEAL FROM DCCC NO. 523 OF 2006)

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REASONS FOR JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. The applicant was convicted after a trial in the District Court before Judge Chua, of doing acts tending and intended to pervert the course of public justice contrary to common law, and was sentenced to 18 months’ imprisonment.  He sought leave to appeal his conviction and at the conclusion of the hearing we granted leave, treated the hearing as the appeal, allowed the appeal and quashed the conviction.  We now give our reasons.

2. The charge was particularised as follows :

“Particulars of Offence

CHAN Yat-chuen, on or about the 25^th day of February 2004, in Hong Kong, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that he incited, induced and instructed CHAN Ying-kin, Ken to make a false statement under caution to the Hong Kong Police Force concerning a case of wounding, namely Police case number TPRN04001715.”

3. The prosecution case was that the applicant was a police detective constable attached to Tai Po Police Station and was a member of a team of police who in February 2004 were investigating a quite vicious acid-throwing attack on two victims at a location in Tai Po.  It was thought the person Chan Ying-kin particularised in the charge, who became PW1 at trial, was one of the attackers.  

4. Police suspected the attack had been instigated by another person, Wan, who had fallen out with one of his sons and had hired a triad personality called “Monkey” who was PW1’s “big brother” to carry out the attack against Wan’s son and the son’s wife.  PW1 had, together with another individual called “Ah Lung”, carried out the attack on the instructions of “Monkey” although, as it transpired, the wrong persons were attacked resulting in horrific injuries to one wholly innocent victim in particular.  

5. PW1 was subsequently arrested for another offence and was on bail for that offence when, on 25 February 2004, he was contacted by the applicant and two other members of the applicant’s police team.  They met PW1 at the Tai Po Jockey Club Centre and drove him in a private car to the Lam Tsuen River where the applicant and PW1 then left the car and sat and talked beside the river.  According to PW1, upon whose evidence the prosecution case relied almost entirely and who was accepted by the judge as a witness of truth, the applicant told him the police knew he was involved in the acid attack and asked him what he wanted to say.  PW1 then told the applicant that he and the person “Ah Lung” had carried out the attack on the instructions of “Monkey”, but that they had in fact thrown the acid at the wrong couple and, as a result, had not been paid (the “Monkey” version).

6. PW1’s evidence continued to the effect that the applicant then told him to “point the figure at his co-defendants” or that he, PW1, would take sole responsibility for the whole matter.  PW1 was reluctant to do so as it meant incriminating “Monkey” and “Ah Lung”, his triad brothers and, eventually, according to PW1, the applicant suggested that he could incriminate someone else when he spoke to police about the matter and that he could say he carried out the attack with an imaginary instigator “Billie” who had also actually thrown the acid (the “Billie” version).  PW1 said he agreed to tell the police this as it meant he would not be incriminating either “Monkey” or “Ah Lung” and was minimising his own role.  PW1 and the applicant then returned to the car where the applicant arrested him.  It was this riverside conversation which formed the basis of the prosecution case. 

7. According to PW1 on the way to the police station, he repeated the true version of events, stating the involvement of “Monkey” and “Ah Lung” to the applicant within the hearing of the other two police officers, a sergeant and a driver.

8. Subsequently PW1 signed a post record purporting to evidence the conversation he had with the applicant at the riverside in terms of the false “Billie” version of events.  After that a video interview was conducted by the applicant, in the course of which PW1 again repeated the concocted “Billie” version. 

9. Almost immediately following that, however, PW1 was interviewed again by the applicant in the presence of the sergeant and other police officers in an informal interview conducted in the “big room” at Tai Po Police Station which was audio recorded with a digital recorder, which PW1 said he was unaware was being used.  That audio recording became P15 at trial and evidenced an interview which began in the following terms :

“B [the applicant] :  Listen!  Ah KEN, the VIR is just over.  The video recording is finished.  Listen!  For the stuff you said, it’s also finished.  However, listen!  Now, it’s neither a video recording nor a written record, huh.  I have to listen to the true story.

C [another police officer] :  The nickname is Ah KEN, right?

A [PW1] :  Yes.

C :   (You) hear it.  Talk to us.

B :   What’s the true story first?  Listen, well, who’s the one who formally ordered you to do it?  (Noise)

A :   ‘Your Majesty’.

B :   Pardon?

A :   ‘Your Majesty’.

B :   ‘Your Majesty’.  [A :  Hm.]  Who is ‘Your Majesty’.?

A :   MONKEY.

B :   MONKEY.  Who was present when he told you.”

10. PW1 then went on in the course of that interview to again detail his and “Ah Lung’s” involvement in the acid throwing attack at the behest of “Monkey”.  Subsequently it was suggested to PW1 that he consider giving evidence for the prosecution against “Monkey” and PW1, after speaking to his parents, agreed to do so.  We were informed during the course of the appeal that PW1 did in fact give such evidence and that, as a result, “Monkey” was convicted for his role in the attack and sentenced to 18 years’ imprisonment.  

11. The Independent Commissioner Against Corruption (ICAC) had become involved with PW1 in mid-2005 as a result of approaches being made to him by fellow prisoners and others, while PW1 was in custody in Pik Uk Prison.  Those approaches were designed to discourage PW1 from giving evidence against “Monkey”, partly by threats and partly by the offer of sums of money.  During the course of a number of interviews with the ICAC in July 2005 PW1, for the first time, mentioned the riverside conversation with the applicant.  He apparently did so in an attempt to explain why he had originally proffered the “Billie” version of events to the police.  That formed the basis of the case against the applicant.

12. The prosecution case against the applicant was faced with something of a dilemma.  Even if the riverside conversation between the applicant and PW1 took place in the terms described by PW1 in his evidence, it seemed a most unusual circumstance for the applicant, immediately following upon PW1’s initial video interview during which he gave the agreed false version of events, to re-interview PW1 so as to get the truth in the terms set out in P15.  This created a difficulty for the prosecution in that the terms of the informal interview suggested that, even if PW1’s evidence was accepted as to the riverside conversation, the real intention of the applicant may have been to continue to urge PW1 to divulge the truth and to, through PW1, eventually be in a position to prosecute “Monkey”.  In those circumstances it may well have been thought that the applicant lacked the requisite intention to pervert the course of justice and indeed intended at all times to further the investigation and prosecution of “Monkey” and “Ah Lung”.

13. The applicant did not give evidence, but he did call as witnesses various police officers including his superintendent who had overall responsibility for the investigation.  The defence case at trial was that while there had been a riverside conversation, PW1 had, without prompting during that conversation, given the applicant the false “Billie” version of events and subsequently maintained that version during the course of the later post recording of events and the video interview.

14. Mr Dominic Yeung, who came late into this appeal, relied on grounds of appeal which complained of the judge’s approach to the applicant’s decision not to give evidence; of her failing to deal with fundamental problems relating to PW1’s credibility and of the judge wrongly drawing inferences adverse to the applicant.

15. We do not set those grounds out in any detail because this application succeeded on a somewhat different basis, which we raised and which we allowed Mr Yeung to adopt.  That basis was quite simply that the prosecution had failed to sufficiently prove, and the judge had failed to consider whether it had been properly established, that the applicant intended to pervert the course of justice.

16. It was alleged by the prosecution that, assuming the riverside conversation had taken place as PW1 said, the applicant was intending to prevent the prosecution of the real culprits “Monkey” and “Ah Lung”.  Any such suggestion however had to explain the contents of the initial part of that conversation where, according to PW1’s evidence, the applicant had pressured him to “point the figure at his co-defendants” and, more starkly, the contents of the informal interview recorded in P15 during which, in the most unambiguous of terms, an interrogation of PW1 was undertaken by the applicant apparently because the police team did not believe the false “Billie” version given by PW1 during his video interview. 

17. These matters did not sit easily with the prosecution case.  Regrettably the position taken by the prosecution as to precisely what intention it was alleged the applicant had in suggesting the “Billie” version of events to PW1 during the riverside conversation was not wholly clear at trial.  It was towards the end of the evidence in the defence case that the following discussion took place between the judge and the prosecutor during the cross-examination of DW1, the applicant’s supervising superintendent :

“COURT :   Your opening seems to tell me that the defendant, in the way he approached Ken at the riverside, was acting on his own or with another or others, but not as part of his police duties, that he might have been protecting someone.  Therefore he used that approach by saying ‘Either tell all or take all the responsibility yourself’, which he knew would not be attractive — either propositions would not be attractive to Ah Ken at that stage — and then bring the proposition he really wanted…

MR IU :       The Billy perversion.

COURT :     … which is — yes.  That means by doing, so, as you have told me in the opening, this meant there was no lead to Monkey and other people.”

To which the prosecutor replied :

“MR IU :     We thought at the time the reasons for the defendant giving the proposition were along those lines.  As I put in my opening, namely, if he’s out there to protect somebody, probably Monkey.  That’s what I said in the opening.  Having heard the superintendent’s evidence, it’s apparently clear that whatever the purpose the defendant had, suits the police purpose as well.  The police now was in fact looking for these people, evidence against these people.  The lead — they wanted this man, Ken, PW1, to break and tell all.

COURT ;    Yes, yes.

MR IU ;      And they believed that Ken was the prime target, was one of the assailants.  Well, that needs to be the proposition that the defendant put to PW1 at the material time; take all responsibility or tell all.  I don’t think it contradicts my proposition from the beginning.

COURT ;    No, it does, because now are you trying to say because of the superintendent’s evidence, you’re saying this is all part of a police tactic to get Ken …

…. Well, then you have no case, do you?”

18. With respect to the prosecutor the allegation against the applicant was far from clear, and the prosecution’s stated position seemed internally contradictory.   What had however become abundantly clear during the superintendent’s evidence was that the police investigation was directed towards obtaining evidence, using PW1, against “Monkey”.  That that was so was more than amply supported by the contents of P15.

19. The fundamental evidential difficulty the prosecution had was that during the afternoon interview recorded in P15, it was apparent that the applicant was attempting to get from PW1 the truthful version of events and to record that version.  That was entirely consistent with the objective of the investigation.  For the purposes of the appeal it was entirely irrelevant as to whether that was proper police procedure or not, though doubts as to its propriety may go some way towards explaining the applicant’s decision not to give evidence and his later reluctance to admit to the use of his digital recorder during that informal interview conducted during the afternoon of 25 February 2004.

20. In any event these two matters, that is the initial part of the riverside conversation and the contents of P15, apparently contradicted the prosecution’s position that the applicant intended by a psychological ploy to have PW1 agree to blame an imaginary “Billie” as the instigator of the attack on the two innocent victims so as to preserve “Monkey” from prosecution.  On the morning following the informal interview, and still entirely consistently with the defence case, PW1 was asked whether he was prepared to be a prosecution witness against “Monkey”.  He agreed.

21. It is difficult to see, even assuming that PW1 was reliable in his evidence concerning the riverside conversation, how the prosecution case had proven the applicant in some way intended to shield “Monkey” from prosecution.  There was a fundamental dichotomy between the actual events which took place, even on PW1’s evidence, and the prosecutor’s case that the applicant had tried to preserve “Monkey” from prosecution.  This dichotomy required careful resolution before the court found the prosecution case proven, but no such resolution appears in the judge’s reasons for verdict.  The judge gave no reason for finding the applicant’s conducting the P15 interview almost immediately after the conclusion of the video recorded interview to have been consistent with an intention by him to pervert the course of justice. 

22. There was, in particular, no specific finding that the applicant had conducted the P15 interview only after abandoning an intention to cover up the case against “Monkey”.  No suggestion was made in the materials provided to us of any reason for such a dramatic about-turn by the applicant only a short while after concluding the initial video interview with PW1.  Nor, somewhat surprisingly, given the discussion with counsel set out above, was there any finding of precisely what the intention of the applicant had been in participating in the riverside conversation with PW1.  There was no specific finding that the applicant intended to preserve “Monkey” or any other person from prosecution.  There was a general finding that the elements of the offence had been proven.

23. The judge’s reasons concerning both these matters were insufficient.  Mr Sham, during the course of the hearing, told us that he no longer opposed the appeal.  That, in our view, was realistically the only appropriate course. 

24. It should have been apparent to the prosecution at the preparatory stage of this case that there was some difficulty in matching the applicant’s initial statement to PW1 (even according to PW1’s evidence) with an intention to protect “Monkey” and an even more fundamental difficulty in matching the applicant’s interrogation of PW1, recorded in P15 immediately after PW1’s video recorded interview, with any such intention.  It was wholly unsatisfactory that the prosecution’s position was still unclear late in the defence case.  That uncertainty, in our view, contributed to the judge’s failure to deal properly with the fundamental issue of the applicant’s intent.

25. For these reasons the conviction was unsafe and unsatisfactory and we allowed the application, treated the hearing as the appeal and quashed the applicant’s conviction.  In view of the state of the evidence no question of a re-trial ever arose.

26. There is one further matter.  For some reason, in dealing with the “consequences” of the election of the applicant to not give evidence, the judge relied upon dicta in the case of R. v. Burdett, 4 B & Ald 95.  That case was decided in 1820.  The portion of the case relied upon by the judge was as follows (at 161) :

“… No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but, when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? …”

27. We wish to emphasise the dangers of relying on case law from the era before Woolmington v. DPP [1935] AC 462 in areas of law relating to the burden of proof or of the import which may be given to a defendant electing not to give or call evidence.  Relying on cases decided in the distant past at a time when the understanding of the operation of the burden and standard of proof was far from that of the present, and acceptance of a changing evidential onus was common, is wholly undesirable.