THE QUEEN v. TSE KWOK FU AND ANOTHER

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Tse Kwok Fu - "the applicant" - appeared for trial before Bewley, J. and a jury on an indictment containing a single count of conspiracy to pervert the course of public justice, contrary to Common Law.

3. The original particulars, for the particulars were amended on 15th October 1990, read:

"TSE Kwok-fu alias Daai Saan, on divers days between the months of March 1988 and February 1989 in Hong Kong, conspired together with WONG Kwai-nam and other persons unknown to pervert the course of public justice by providing details of confidential police information and details of intended police operations to the said WONG Kwai-nam and others knowing that the said WONG Kwai-nam and others would misuse this information and such details to assist persons whom he knew to be under investigation for various offences by the Organized and Serious Crimes Bureau within the Royal Hong Kong Police Force, wherein he at the relevant time held the rank of Detective Police Constable, Service Number 13355 '(DPC 13355)', to defeat and pervert the course of public justice."

4. The amendment on 15th October was to add the names, in the fourth line of the indictment, and immediately after the first reference to Wong Kwai Nam, of Wong Kwai Fun, Wong Kwai Wing, Lau Kwok Wah, Wan Hin Chung.

5. Upon conviction the applicant was sentenced to a period of 5 years imprisonment. He sought leave to appeal against that conviction. Originally, he also sought leave to appeal against his sentence but that application has been abandoned.

6. At the hearing we refused the leave sought and stated that we would hand down our reasons later. This we now do.

7. The applicant, who was one of those unfortunate persons who fell outside the limits set by the legislature as to the means of persons who can be granted legal aid, was unrepresented at trial. He had applied through the Secretary for the Civil Service for representation to be granted to him but this application was refused. In this court he has the benefit of being represented by Mr. Remedios.

8. It was the case for the Crown that the Organized and Serious Crime Bureau - "OSCB" - was investigating a loan shark syndicate. Persons thought to be involved in the syndicate were Wong Kwai Nam, Wong Kwai Fun, Wong Kwai Wing and others of the Wong family. Two of the named co-conspirators gave evidence - Lau Kwok Wah and Wan Hin Chung. A series of witnesses, who had been customers of the syndicate or had known members of it, were questioned by the OSCB. They gave statements to the Bureau. Subsequently a number of them received telephone calls intimating that the caller knew of the fact that they had made statements and, in certain cases, suggesting that they be careful what they said. Others, who had changed their addresses, suddenly found themselves the subject of similar type of phone calls.

9. Witnesses involved in other trials relating to this matter had been approached by the applicant. One, Mr. Chung Wan Chau, a taxi driver, having received a witness summons to appear at a trial of Wong Kwai Fun, found persons knocking on his door. He had just moved to a new address and thought that only the police in police headquarters knew that address. He reported the incident to the police and the applicant was sent as a form of protection for Mr. Chung. He told Mr. Chung that he, Mr. Chung, had made a mistake: he had borrowed money from Wong Kwai Nam not from Wong Kwai Fun. Mr. Chung said he was worried about making a wrong identification in court and asked the applicant what should he do. The applicant advised him to think about it and decide what to tell the judge.

10. Sergeant 16051 served in the Serious Crime Bureau between March and July of 1988. Records were kept of investigations into loan-sharking. Index cards were prepared. The applicant was one of the three police officers in the exhibits office and all documents from the exhibits office came through the applicant. When the sergeant wanted information he asked the applicant for it because he himself was not allowed into the exhibits room. It was in that room that the records of the loans were kept. He found the applicant enthusiastic and helpful; he sometimes asked if the debtors had been able to make identification and how many of the debtors had been interviewed. That team was dissolved in July 1988 and a new team formed which also included the applicant.

11. Mr. Lau Kwok Wah - whom it will be remembered was a named co-conspirator - gave evidence under immunity and was clearly an accomplice in the loan-sharking business. The judge gave a full. and proper warning in respect of him. He spoke of a meeting with the applicant when the applicant was on guard duty and was advised by the applicant not to become a prosecution witness in another trial. Mr. Lau was ' surprised to hear- this because he, and another named co-conspirator, Wan Hin Chung, had, while in Lai Chi Kok, asked a chief inspector of the Royal Hong Kong Police Force if they could become prosecution witnesses. He did not think that anybody else knew about this. He became aware from a subsequent: conversation with Wong Kwai Wing that the Wong brothers called their informer in the OSCB "Ah Chau".

12. Wan Hin Chung was also involved in the loan-sharking business, being an enforcer of the payment of debts. He elaborated upon the aspect of an informer within the police force by giving his number as "77". He spoke of various conversations taking place between Wong Kwai Nam and this "77" with Wong Kwai Nam paging "77" and "77" calling him back on Wong Kwai Nam's portable phone.

13. In January 1989 Wan Hin Chung was arrested for stealing furniture. The applicant guarded him. He heard the applicant speak and he thought the voice to be very similar to the one he had heard "77" use on the phone.

14. Without going into great detail there was a mass of evidence which suggested that there was a mole within the police force, and suspicion having fallen upon the applicant, a trap was laid for him. An apparently normal operation was mounted under the direction of Superintendent Pierce. It was intended that syndicate members would be arrested for breach of bail conditions and that Wong Kwai Nam would be arrested in relation to a fraud case then being investigated. Superintendent Pierce thought that Wong Kwai Nam was the applicant's contact and control.

15. After the arrest of Wong Kwai Nam the applicant was sent to guard him in a room which, unknown to the applicant, was wired for audio and video recording. A certain amount of information was fed to the applicant before he went on guard in that room. The applicant was given instructions to guard Wong and was not directed to interview him. While on guard the applicant had a conversation with Wong which started off by his telling Wong that "they wish to know the address in Tai Po Road". At one point the applicant asked Wong Kwai Nam if his telephone had been taken away by him. Again, it is not necessary to go into the record of this interview in detail. It is sufficient to say that the applicant asked questions which, for a normal police guard, would be highly unusual and that he did, in the course of it, disclose certain operational matters such as surveillance on the Tai Po Road address of Wong Kwai Nam.

16. In his defence, the applicant denied any wrong doing and said that, in the course of his conversation with Wong Kwai Nam, he was pretending to be an informer in order to gain Wong Kwai Nam's confidence. That was why he asked the questions he did.

17. Mr. Remedios fully accepts that there was evidence upon which the jury could base their findings of guilt. His sole ground of appeal, the first ground of the Perfected Grounds having been abandoned, centres round the person of Wong Kwai Nam, the bail conditions imposed on the applicant prior to trial, and which were continued at its commencement, and the judge's duty of assistance to an unrepresented accused.

18. Wong Kwai Nam was not called as a witness at trial. His name was not on the back of the indictment.

19. The bail terms originally granted in the magistrates court to the applicant included the condition that the applicant was:

"not to contact directly or indirectly any witness as involved in this case, any member of the Wong family, or any witnesses involved in their trials or any junior officers of the OSCB involved in the cases."

20. When the Crown's case had concluded, the trial judge gave the following advice to the applicant:

" Now, defendant, we reach the stage of the trial where it is open to you to give evidence if you wish to do so. There is no obligation on you to give evidence. Indeed there is no burden of proof resting upon you. If you do give evidence, I should point out to you that you will be cross-examined like any other witness.

You are also entitled to call witnesses, both as to the facts and as to your own character.

Do you wish to give evidence and/or call witnesses?"

To which the applicant replied:

"I will give evidence but I have no witness to call."

21. Thereafter the applicant was affirmed in punti and, with the assistance of the judge, gave evidence as to his personal particulars and as to matters concerning the case itself. He was cross-examined at some length. When the cross-examination had concluded, the trial judge asked the applicant a number of questions relating to his evidence and the crucial issue of the defence, that is that the applicant was attempting to become Wong Kwai Nam's informer to assist the investigation and not that he had been acting in that capacity. The applicant was then told that he could address the jury if he wished. The applicant did so. In the course of that address he said:

"Well, if I was charged with conspiring with WONG Kwai-nam, why was WONG Kwai-nam not brought to court and to testify against me!"

A comment which the applicant was perfectly entitled to make.

22. In the course of the summing up, the trial judge, having directed the jury that they should not speculate why some evidence had not been led, said:

"For example, the defendant asked why WONG Kwai-nam has not been called as a prosecution witness. Well, it is up to counsel for the Crown to call the evidence which he considers relevant and which is available, and you have to come to your decision on the evidence that has been placed before you. So, do not speculate, please, about evidence that is not before you."

23. We have before us a notice of motion to adduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance. That fresh evidence consists of two affirmations by the applicant, of 11th December 1991 and 6th January 1992. Essentially, although in the first there was an indication that the applicant wished to adduce evidence from Wong Kwai Nam, the evidence sought to be placed before us is that the applicant desired to call Wong Kwai Nam at trial but was not given the opportunity to do so or to express that desire.

24. It is suggested that he was inhibited by the terms of his bail conditions which we have earlier set out, an inhibition which the trial judge failed to remove.

25. It is Mr. Remedios' further contention that the trial judge erred in failing to inform the applicant that he could, should he so wish, call Wong Kwai Nam or another member of the Wong family; that he failed to enquire specifically whether the applicant wished to call Wong Kwai Nam; and that he failed to vary the bail conditions imposed upon the applicant so as to permit him to contact Wong Kwai Nam, or any other member of the Wong family, for the purpose of calling them as witnesses.

26. It is clear that the trial judge in his advice to the applicant had followed that which was suggested as the formulae at paragraph 4-315, Vol. 1 of Archbold 1992. This, it is suggested, did not, here, go far enough. Mr. Remedios starts his reference to relevant authorities by bring to our attention The Queen v. Page (1846-48) 2 Cox CC 221 and the dicta of Maule, J. who said:

"The fiction of law in criminal cases is, that the judge is counsel for the prisoner; but here it is sought, not only to upset and to reverse that doctrine, and make me counsel for the prosecution, but to throw the whole burden of the prosecution on me, and leave me to make out the best case I can against the prisoner by a careful and diligent perusal of the depositions. But I will not do it. It is indecent. I will be counsel for the prisoner, and let the deposition be handed to some counsel to conduct the prosecution."

27. Mr. Remedios submits that it is the duty of a judge, where an accused is unrepresented, to act as his counsel. He has taken us to Andrews [1938] 27 Cr.App.Rep. 12 and Carter [1960] 44 Cr.App.Rep. 225, both of which cases, on their facts, were different from here. In both there was an total omission to ask an accused if he desired to call witnesses. Both, of course, emphasised the necessity and desirability of this course being taken by a trial judge in respect of an unrepresented defendant. He has also referred us to R. v. Yuen Yu Kin, Cr.App 807/79 (unreported), where Cons, J. (as he then was) spoke of the duties of a magistrate in respect of an unrepresented defendant, and to R. v. Szeto Ming [1978] HKLR 61 where O'Connor, J. said of the words of Maule, J. in Page - that the fiction of law in criminal cases is that the judge is counsel for the prisoner - that those words were still applicable today. O'Connor, J. went on:

"It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as is necessary for the proper conduct of his defence."

28. O'Connor, J. cited in support of that proposition - one from which this court would most certainly not derogate - R. v. Suen Chuen [1963] HKLR 630. He then went on:

"Admittedly a judge or magistrate must be careful not to step into the arena, but that does not mean that he is prohibited from ensuring that any defence a defendant might have or any point he has to make is fully brought out."

29. While the applicant in his affirmations suggests that he desired at trial to call Wong Kwai Nam neither then, nor now, does he have any idea what Wong Kwai Nam might have said if he had been called to testify, or what he might now say if he were called, by leave, to give fresh evidence before this court.

30. The applicant gave no indication that he wanted to call Wong.

31. The judge explicitly advised the applicant that he was entitled to call witnesses.

32. We do not consider that the trial judge erred in the manner in which he sought to assist the applicant. His question was completely unqualified. Had the applicant wanted to call Wong, but had genuinely thought that he was somehow inhibited by the conditions of his bail from so doing, it was open to him to explain his position to the judge. He failed to do so. The judge was entitled to take the applicant's answer at face value.

33. We do not think that a judge is obliged to suggest to an accused the names of witnesses whom he might call. Indeed such a course carries with it certain dangers. It must be remembered that any advice which the trial judge gave would have been given in the presence of the jury. No doubt he had that in mind in following the classic formula. Moreover, the likelihood of Wong Kwai Nam giving favourable evidence was remote in the extreme.

34. We did not consider this conviction to be either unsafe or unsatisfactory.