DCCC299/2021

DCCC299/2021

A A B B DCCC 299/2021 C [2024] HKDC 2107 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 299 OF 2021 F F G ---------------------------- G HKSAR H H v I YEUNG KING LUN (D1) I WONG DI CHUN (formerly known (D3) J J as LAU YIN CHUN) K CHEUNG YUI MING (D4) K ---------------------------- L L M Before: Her Honour Judge A N Tse Ching in Court M Date: 17 December 2024 N N Present: Ms Rosa Lo, Senior Public Prosecutor, and Mr Timothy Chen, O Acting Senior Public Prosecutor, for HKSAR/Director of O Public Prosecutions P P Mr Gibson Shaw, instructed by Cheung & Liu, assigned by Q Q the Director of Legal Aid, for the 1st Defendant R Ms Cindy Kong, instructed by HK&JY Solicitors, assigned R rd by the Director of Legal Aid, for the 3 Defendant S S Mr Andrew Raffell, instructed by T K Tsui & Co, assigned by T the Director of Legal Aid, for the 4th Defendant T U U V V  -2- A A B B Offences: [1] Conspiracy to commit misconduct in public office (串謀 C 犯藉公職作出不當行為罪) – against D1 & D3 C [2] Conspiracy to commit misconduct in public office (串謀 D D 犯藉公職作出不當行為罪) – against D3 & D4 E E [3] Conspiracy to doing act tending and intended to pervert F the course of public justice (串謀作出傾向並意圖妨礙司法 F 公正的行為) – against D3 G G H H ---------------------------- I Reasons for Verdict I ---------------------------- J J 1. This case involves 5 Defendants. At the time of the alleged K K offences, D1 and D2 were officers of the Correctional Services L L Department, whilst D3, D4 and D5 were prisoners. They are charged as M follows: M N (1) D1 and D3 are jointly charged with “Conspiracy to N commit misconduct in public office”, contrary to O O sections 159A and 159C of the Crimes Ordinance, Cap. P 200 and section 101I(1) of the Criminal Procedure P Ordinance, Cap. 221 (Charge 1); Q Q R R (2) D2, D3, D4 and D5 are jointly charged with S “Conspiracy to commit misconduct in public office”, S contrary to sections 159A and 159C of the Crimes T T Ordinance, Cap. 200 and section 101I(1) of the U U V V  -3- A A B B Criminal Procedure Ordinance, Cap. 221 (Charge 2); C and C D D (3) D3 is charged with “Conspiracy to doing an act tending E and intended to pervert the course of public justice”, E contrary to Common Law, sections 159A and 159C of F F the Crimes Ordinance, Cap. 200 and section 101I(1) of G the Criminal Procedure Ordinance, Cap. 221 (Charge G 3); H H I 2. D2 and D5 pleaded guilty to Charge 2 and were sentenced by I another Court. This trial only relates to D1, D3 and D4. J J K Issues K L L Charge 1 M M 3. D1 and D2 were officers of the Correctional Services N N Department (CSD). At the time of the alleged offences, they were posted O to work at Tong Fuk Correctional Institution (TFCI) and were responsible O for the supervision and discipline of the activities of the prisoners assigned P P to work at the Construction and Maintenance Unit (CMO) in TFCI. During Q the time of the alleged offences, D3, D4 and D5 were prisoners in TFCI Q and were assigned to work at the CMO. R R S 4. Because of suspicions in respect of the alleged offences, a S covert operation was mounted by the ICAC with the collaboration of the T T CSD. A micro-recording device was planted on D1. There was no dispute U U V V  -4- A A B B that the location of the recording device was subject to Public Interest C Immunity. The authorization for the covert recording, which included the C location of the device was shown to the Court. A printed copy of a redacted D D version under the Interception and Communication Surveillance Ordinance E with Annex to Authorization is produced as P100. Suffice it to say that the E device was on D1’s person throughout the recording process. F F G 5. The operation turned overt on 23 October 2020. A body G search was conducted on D3 at TFCI and a number of unauthorized articles H H were found and seized from him, including a black mobile telephone and a I China Mobile SIM card. On the same day, a search was conducted at the I workshop of the CMO and further unauthorized articles were found and J J seized. D1 and D3 were subsequently arrested for Charge 1. K K 6. The Prosecution alleged that D3 was in possession of and was L L using the mobile telephone seized on 23 October 2020. The Prosecution M asserted that D1 had conspired with D3 for D1, a public official, to willfully M and intentionally misconduct himself in the course of or in relation to his N N public office without reasonable excuse and justification by: O O (1) conniving with D3 in the unauthorized possession and P P use of the mobile telephone by D3; and Q Q (2) Rendering assistance to D3 to improve the signal R R reception of one of the SIM cards used in the mobile S telephone. S T T U U V V  -5- A A B B 7. Amongst other documentary and verbal evidence, the C Prosecution sought to rely on the covert recordings. Mr. Lee Siu On (PW9) C was called by the Prosecution to identify the speakers in the recording. D D This evidence was hotly contested. E E 8. The issues for D1 in respect Charge 1 are: F F G (1) whether PW9’s evidence was credible and / or reliable; G H H (2) whether D1 was one of the speakers in the recordings; I I (3) whether D1 had connived in D3’s unauthorized J J possession and use of the mobile telephone; K K (4) whether D1 had rendered assistance to D3 to improve L L the signal reception of a SIM card used in the mobile M telephone; M N N (5) In the event that the Court finds that D1 had connived O in D3’s possession and use of the mobile telephone and O had rendered assistance to D3 to improve the signal P P reception of a SIM card used in the mobile telephone, Q whether such conduct amounts to misconduct in public Q office; and R R S (6) Whether there was any agreement between D1 and D3 S for D1 to commit misconduct in public office. T T U U V V  -6- A A B B 9. D3 raises the same issues as D1. In addition: C C (1) D3’s counsel questioned whether the mobile phone D could belong to another prisoner and / or could be D planted on D3; E E F F (2) In his video recorded interview, D3 alleged that the G mobile telephone was given to him by D1 and D2 and G that he had only kept the phone under D1’s coercion. H H D3’s counsel questioned whether possession in such I circumstances amounted to an agreement. I J J Charge 2 K K 10. The Prosecution alleges that D3, D4 and D5 had conspired L L with D2, a public official, to willfully and intentionally misconduct himself M in the course of or in relation to his public office without reasonable excuse M or justification, namely: N N O (1) conniving in the unauthorized possession and use of the O mobile telephone by D3; and P P Q (2) Introducing unauthorized cigarettes into TFCI for D3. Q R R 11. There is no dispute that a WhatsApp chat group was created S by D2 and that D4 and D5 (but not D3) were both members of the chat S group. For this charge, amongst other evidence, the Prosecution relies on T T the messages in this chat group. U U V V  -7- A A B B C 12. Apart from the issues raised in respect of the mobile telephone C in respect of Charge 1, D3 raised the issue as to whether the messages D D amongst D2, D4 and D5 could be used as evidence against D3. E E 13. For D4, the issues are: F F G (1) whether there was any agreement as alleged or at all G amongst D2 to D5; H H I (2) since D4 was neither a prisoner nor a CSD officer at the I time of the alleged offence, whether D4 had the power J J to connive in the unauthorized possession and use of K the mobile telephone and unauthorized introduction of K cigarettes into TFCI; and L L M (3) whether D4 had done anything to facilitate or M contribute to D3’s possession of the mobile telephone N N or introduce unauthorized cigarettes into TFCI for D3. O O Charge 3 P P Q Q 14. There is no dispute that some prisoners were found to be R gambling inside D3’s dormitory and that Li Chun Ping (PW5) admitted to R be one of the gamblers and was convicted of a disciplinary offence. The S S Prosecution alleges that in fact D3 was one of the gamblers; PW5 never T took part in the gambling and that D3 and PW5 had conspired together for T U U V V  -8- A A B B PW5 to admit to the disciplinary offence in D3’s stead for a reward. The C main issue in respect of this charge is the credibility of PW5. C D Admitted Facts D E E 15. A large part of the Prosecution’s evidence was not in dispute. F F Five sets of admitted facts were produced pursuant to section 65C of the G Criminal Procedure Ordinance, Cap 221 as P98, P99, P102, P103 and G P106 respectively. H H I 16. In order not to be repetitive, I will refer to the admitted facts I when appropriate. J J K The Prosecution Evidence K L L 17. The Prosecution called a total of 15 witnesses. PW2 to PW4, M M PW6, PW9, PW11 and PW12 are all CSD officers. Save for PW11 and N PW12, the other CSD officers were all posted to TFCI at the material time. N PW1, PW7, PW10, PW13 to PW15 were ICAC officers. PW5 and PW8 O O were civilian witnesses. P P Background Q Q R 18. The background of this case is not in dispute. They are set out R in paragraphs 1 to 16 of the 1st set of Admitted Facts [P98], paragraphs 1 S S nd to 7 of the 2 set of Admitted Facts [P99]. T T U U V V  -9- A A B B (1) TFCI is a medium security institution of the CSD C housing convicted male adults. Prisoners would be C assigned to work in different working units when D D serving that custodial sentence. One of those working E units was “construction maintenance unit” (CMO) [1st E Admitted Facts P98 §1]. F F G (2) At all material times, CSD officers were prohibited to G bring their personal electronic or communication H H devices including telephones into TFCI whilst on duty. I They were allowed to bring 20 cigarettes, except the I brand of “Wealth” and “Gentori” into TFCI for self- J J consumption at designated areas where they were not K in contact with any prisoner [1st Admitted Facts P98 K §2]. L L M (3) All material times, prisoners incarcerated in TFCI M allowed to receive certain articles on the List of N N Approved Hand-in Articles (the List) from visitors. O Cigarettes and mobile telephones were not on the List. O Prisoners were prohibited from having mobile P P st telephones in their possession or custody [1 Admitted Q Q Facts P98 §3]. R R (4) Prisoners of TFCI could use that wages earned during S S prison terms to purchase cigarettes of two specific T brands, namely “Wealth” and “Gentori” through the T st arrangement of CSD [1 Admitted Facts P98 §4]. U U V V  - 10 - A A B B Background of D1, D2, D3, D4 and D5 C C D D (5) D1 joined the CSD on 19 July 1999 as Assistant Officer E II. Between 4 December 2013 and 9 December 2018, E D1 was posted to Shek Pik Prison. From 10 December F F 2018 onwards, he was posted to TFCI [1st Admitted G Facts P98 §5]. G H H (6) On 4 May 2019, D1 was promoted to Assistant Officer I I. From 16 September 2019 onwards, he was in charge I of the CMO [1st Admitted Facts P98 §6]. J J K (7) D1’s Staff Records properly and accurately maintained K in the Human Resources Management System of the L L st CSD is produced as P1 [1 Admitted Facts P98 §7]. M M N (8) From 3 June 2019 until 22 October 2020, D1 was N posted to the Centre Division. D1’s working schedule O O at TFCI was from 0815 hours to 1700 hours from P Mondays to Fridays; and from 0815 hours to 1645 P hours on Saturdays. Lunch time was from 1245 hours Q Q to 1345 hours. On 22 October 2020, D1 worked from R 0814 hours until around 1245 hours. On 23 October R 2020, D1 was on leave [1st Admitted Facts P98 §8]. S S T (9) The record of the Centre Division Staff Duty and Post T Record properly maintained by the CSD for the period U U V V  - 11 - A A B B from 29 June 2020 to 25 October 2020 is produced as C P2 [1st Admitted Facts P98 §9]. C D D (10) D1 does not have a criminal record in Hong Kong [1st E Admitted Facts P98 §10]. E F F (11) D2 joined the CSD on 4 March 2019 as Assistant G Officer II. Since 12 August 2019, D2 was posted to G TFCI. Between mid-July 2020 and 23 October 2020, H H D2 was assigned to work at CMO or “Grass Cutting”. I D2 admitted to and was convicted of Charge 2 on 11 I May 2022 [1st Admitted Facts P98 §11]. J J K (12) The Staff Record of D2, which was properly and K accurately maintained in the Human Resources L L Management System of the CSD, is produced as P23 M [2nd Admitted Facts P99 §1]. M N N (13) Between 16 July 2020 and 23 October 2020, D2 was O the assistant to the officer in charge (namely D1) of the O CMO of TFCI. When D1 was on leave or engaged with P P other duties, D2 would act as the officer in charge of Q Q the CMO [2nd Admitted Facts P99 §2]. R R (14) At all material times, D3 was a serving prisoner at S S TFCI. His designated bed was situated at Dormitory F3 T [1st Admitted Facts P98 §12]. T U U V V  - 12 - A A B B (15) At all material times, D3’s name was LAU Yin Chun C [1st Admitted Facts P98 §13]. C D D (16) Between 20 March 2018 and 22 October 2020, D3, who E was also known as WONG Di-Chun alias “Luk Tau”, E was incarcerated in TFCI. From 21 March 2019 to 23 F F October 2020, D3 was assigned to work at the CMO of G TFCI under the supervision of D1 and D2. D3’s G designated bed was bed number 14 situated in H H Dormitory F3. His penal record, properly maintained I by the CSD, is produced as P24, its certified English I translation is produced as P24a [2nd Admitted Facts J J P99 §3]. K K (17) D4 served his sentence of imprisonment at TFCI from L L 8 August 2018 until he was released on 6 May 2020. M Between 10 August 2018 and 6 May 2020, D4 was M assigned to work at the CMO and his designated bed N N was situated in Dormitory F3. D4’s penal record O retrieved from the Penal Record Information System II O properly maintained by the CSD is produced as P3 [1st P P Admitted Facts P98 §14]. Q Q R (18) D5 served his sentence of imprisonment at TFCI from R 4 January 2019 until he was released on 3 September S S 2020. Between 24 April 2020 and 7 August 2020, D5 T was assigned to work at the CMO. Between 12 July T 2019 and 7 August 2020, D5’s designated bed was U U V V  - 13 - A A B B mostly situated in Dormitory F3. D3’s penal record C retrieved from the Penal Record Information System II C and properly maintained by the CSD is produced as P4. D D D5 admitted to and was convicted of Charge 2 on 11 E May 2022 [1st Admitted Facts P98 §15]. E F F (19) Principal Officer Li Siu-on was posted to TFCI on 24 G October 2017 and took charge of security related G matters, including monitoring the conduct of CSD staff H H and prisoners in TFCI. As at 23 October 2020, 6 I prisoners including D3 were assigned to work at the I CMO. The working hours of prisoners who were J J assigned to work at the CMO were from 0930 hours to K 1215 hours and from 1400 hours to 1630 hours from K Mondays to Saturdays. In his capacity of Principal L L Officer (Security) of TFCI, Mr. Li Siu-on can access M prison visit recordings of prisoners including those of M D3 who was incarcerated there [2nd Admitted Facts P99 N N §4]. O O (20) A sketch of TFCI prepared by Mr. Li Siu-on, CSD P P st Principal Officer, is produced as P5 [1 Admitted Facts Q Q P98 §16]. R R Prison Rules S S Arrangement for prisoners to make telephone call T T U U V V  - 14 - A A B B 19. A prisoner who wanted to contact his relatives or friends by C telephone, could submit a written request to the Rehabilitation Unit to C arrange to make the telephone call. All telephone calls made by or for the D D prisoner were recorded in the “Record Form for Telephone Calls by E Persons in Custody” properly and accurately kept by the Rehabilitation E Unit, the first 4 digits of the call number display received is “2980” [2 nd F F Admitted Facts P99 §6]. G G 20. Between 6 March 2020 and 23 October 2020, D3 did not H H submit any written request to the Rehabilitation Unit to make any telephone I calls [2nd Admitted Facts P99 §7]. I J J PW4 K K 21. Mr. Ho Siu Fung (PW4) is also a CSD officer. Since 12 L L November 2018, he was the Principal Officer at TFCI. He was in charge M of the Centre Division and was D1’s supervisor. M N N 22. D1 was the officer-In-charge of the CMO and was responsible O O for the supervision of prisoners doing repair work at different locations P within TFCI. PW4 would assign work to D1 every day. Usually D1 would P work alone. However, if D1’s workload was too heavy, PW4 would assign Q Q an Assistant Officer II to assist D1. R R 23. Prisoners are not allowed to possess USB players, DVD S S players in prison. CSD officers were not allowed to give their own T cigarettes to prisoners. If a prisoner is found in possession of unauthorized T articles such as a mobile telephone, CSD officers should stop the prisoner U U V V  - 15 - A A B B and the CSD officer report to his superior. PW4 has never received any C report from D1 or D2 that D3 was in possession of any mobile telephone C or unauthorized cigarettes in TFCI. D D E 24. Contact between CSD officers and prisoners is regulated by E the Prisons Ordinance, Cap 234 and its Regulations, Cap 234A. CSD F F officers are not allowed to conceal a prisoner’s possession of unauthorized G articles; they are also not allowed to assist prisoners to check the status of G any SIM card used by the prisoner in prison. H H I 25. CSD officers were also not allowed to be friends with I prisoners or former prisoners. It was not part of a CSD officer’s duty to J J communicate with former prisoners. K K Adjudications in the CSD L L M M 26. At all material times, Mr. Lau Yee-kan Ronald (SP Lau) was N the Superintendent of the CSD. He was posted to TFCI and was responsible N for, among other duties, conducting adjudication hearings in respect of any O O breaches of or offences against prison discipline by prisoners. By virtue of P Rule 62 of the Prison Rules, SP Lau had the authority to make P determinations and order punishment upon the hearings [P99 §5]. Q Q R The Gambling Incident R S PW5 S T T U U V V  - 16 - A A B B 27. Between September 2018 and 7 September 2020, Li Chun C Ping (PW5) was a prisoner in TFCI. He was granted immunity to testify in C this case. The letter of Immunity together with its Chinese translation are D D produced as P101 and P101A. E E 28. In about June 2020, PW5 was assigned to Dormitory F which F F was divided into F3 and F4. The other prisoners addressed PW5 as “Ah B” G 「阿 B」or “Ah Ping” 「阿平」. PW5 used to work in the kitchen but he G was assigned to do “sweeping” duties instead of kitchen work when he was H H transferred to Dormitory F. D3 was also an inmate of Dormitory F3. PW5 I met D3 when he was transferred to Dormitory F3. D3’s nickname was ‘Luk I Tau”. J J K 29. One day in mid-August 2020, the Observatory announced that K typhoon 8 would be hoisted. After dinner that day, the prisoners returned L L to their dormitories and the dormitory gate was closed. At about 1600 to M M 1700 hours, 4 prisoners including D3 (but not PW5) were gambling in N Dormitory F3. They used homemade chess pieces to play a game similar N to “Big 2” 「鋤大弟」. The chess pieces were left behind by previous O O inmates and were kept inside the cabinet at the far end of the Dormitory. P Each player had 8 chess pieces which were made by writing words on P buttons including king 「公」, Car「車」, Horse 「馬」, Canon 「炮」, Q Q General 「仕」, Elephant 「象」 and Solider 「兵」. The players take R R turns to play their chess pieces. A player can only play a chess piece that is S larger in value than the chess piece played by the last player 「鬥大」. S The person who gets rid of all his chess pieces first wins the game. At the T T end of the game, the buttons left in the 3 losers’ hands are counted. Each U U V V  - 17 - A A B B button incurs 1 point. However, a player may also incur double, triple or C quadruple points; this depends on the number of chess pieces left in the C loser’s hand at the end of each game. Before they start playing, the players D D would agree on the number of chess pieces that would incur double, triple E and quadruple points. For example, if the loser has 7 buttons in his hand at E the end of the game, he may incur triple points (i.e. 7 X 3 = 21 points); if F F he still has all 8 chess pieces, he may incur quadruple points (i.e. 8 X 4 = G 32 points). At the end of 10 games, the points would be counted. The bets G are placed in cigarettes. Each cigarette is worth 10 points. H H I 30. PW5 explained that gambling was not allowed inside prison. I CCTV cameras were installed near the entrance and at the furthest end of J J Dormitory F3. The gambling took place at the furthest end of Dormitory K F3, near the prisoners’ lockers and close to D3’s bed. That area could not K been seen on the CCTV camera. Although there was an iron gate at the L L entrance of the Dormitory, the view of the CSD officers outside the gate M was blocked by the bunk beds. M N N 31. At about 1800 on the same day, 2 to 3 CSD officers O discovered that the prisoners were gambling inside Dormitory F3. The 4 O prisoners who were gambling stopped playing and D3 handed the chess P P pieces to the CSD officers as instructed. The CSD officers then left. Q Q R 32. The next morning, 2 CSD officers took D3 out of the R Dormitory for a chat. When D3 returned, he told the other prisoners S S (including PW5) that the CSD officers demanded the prisoners to hand T over the 4 prisoners who were gambling. D3 asked if anyone would take T the blame for him and said that money would be paid to that person. PW5 U U V V  - 18 - A A B B told D3 that he was willing to take the blame and admit to gambling in C D3’s stead as PW5 would be released in about 2 more weeks. D3 promised C to ask his friends or family to pay PW5 $10,000. PW5 wrote down his Bank D D of China bank account number and gave it to D3. E E 33. Later on the same day, 2 to 3 CSD officers came to the F F Dormitory before lunch to arrest the 4 gamblers, PW5 and the other 3 G gamblers volunteered to go the security office. Inside this office, CSD G officers asked if PW5 and the 3 other gamblers gambled inside Dormitory H H F3 the previous night. PW5 and the 3 other gamblers admitted to gambling I and were given a “plead guilty” form 「認罪書」. They were then held in I solitary confinement 「水飯房」pending disciplinary action. J J K K 34. On the following day, PW5 was charged with breach of good L order and discipline in prison. An adjudication hearing was held on 20 L August 2020 where the 4 alleged gamblers pleaded guilty. As punishment, M M they were detained in solitary confinement for 2 weeks, their prison term N was extended by 1 day and they were deprived of all welfare and privileges. N O O 35. As a result of the punishment, PW5 never returned to P Dormitory F3 before his release. However, he met with D3 on 3 to 4 P occasions when D3 came to the solitary confinement cells to perform repair Q Q work. PW5 asked D3 how he would be paid for taking the blame of R gambling for D3. D3 promised that money would be deposited. At their R last meeting, D3 gave PW5 the telephone numbers of D3’s elder brother S S and younger brother. D3 told PW5 to call D3’s brothers upon discharge T from prison. T U U V V  - 19 - A A B B 36. PW5’s mobile telephone number (5117 9586) was activated C on 7 September 2020 after he was released from prison. He called D3’s C younger brother with this mobile telephone number. PW5 told D3’s D D younger brother that he was D3’s friend in TFCI and that “Luk Tau” had E asked PW5 to obtain “Luk Tau’s” telephone number in TFCI. D3’s E younger brother hung up immediately but called PW5 back after a few F F minutes and gave D3’s telephone number to PW5. PW5 saved D3’s G telephone number (6598 7379) in his own telephone [P87 and P87a]. A G total of 10 calls were exchanged between PW5’s phone and 6598 7379. H H Each call was answered by D3. I I 37. PW5 asked D3 why no money had been deposited. D3 stated J J that he had recently lost a lot of money and finances were tight. He asked K PW5 to wait. Subsequently, during one of their telephone conversations, K D3 gave PW5 the telephone number of a friend called “Ah Ki” and told L L PW5 that “Ah Ki” will pay PW5 on D3’s behalf. M M 38. PW5 called “Ah Ki”. He told “Ah Ki” that he was calling to N N ask for a deposit of money pursuant to D3’s instructions. “Ah Ki” told PW5 O that he would talk to PW5 on WhatsApp. PW5 and “Ah Ki” exchanged O WhatsApp messages on 17 and 21 October 2020. On 20 October 2020, a P P sum of $2,000 was deposited into PW5’s bank account and D5 sent an Q Q image of a deposit slip for $2,000 on WhatsApp to PW5 [P71]. R R 39. PW5 called D3 again to ask why only $2,000 had been S S deposited when D3 had agreed to pay him a reward of $10,000 for taking T D3’s place in the gambling incident. However, D3 did not answer the call T and there was no further contact with D3 thereafter. U U V V  - 20 - A A B B PW6 C C D 40. Mr. Chan Yik Wang (PW6) is a CSD officer. He has been D posted to TFCI since 2018. In July 2020, he was assigned to the Security E E Unit of TFCI and was on duty from 0645 hours to 1345 hours on 19 August F F 2020. G G 41. At about 0700 hours on 19 August 2020, Principal Officer of H H the Security Unit, Mr. Li Siu On instructed PW6 and Assistant Officer II, I Mr. Tai Chun Wai to interview 4 prisoners, namely Mak Ka Leung, Wong I Kwok Tai, Cheung Sin Ki and Li Chun Ping (PW5). Mr. Li Siu On told J J PW6 that these prisoners were suspected of being in breach of Prison rules K inside Dormitory F3 on the evening of 18 August 2020. K L L 42. PW6 and Mr. Tai interviewed each of the 4 prisoners M individually inside the security room in the Security Unit in “Sheung Wai” M 「上圍」. PW6 was responsible for asking questions whilst Mr. Tai acted N N as a witness to the interview. PW6 explained the purpose of the interview O to each of the prisoners and asked them for an explanation. Each of the 4 O prisoners admitted that on 18 August 2020 they had played a game of P P chance （機會性遊戲） inside Dormitory F3, using homemade chess Q Q pieces made with buttons. PW6 immediately cautioned and took a R statement from each prisoner. Under caution, the prisoners told PW6 that R the chess pieces were placed inside a cloth bag. The prisoners took turns to S S draw out the chess pieces from the bag. The prisoner who drew out the T chess piece with the smallest value would have to pay 1 cigarette to the T other prisoners. U U V V  - 21 - A A B B C 43. PW6 explained that gambling was regarded as a breach of C good order and discipline because gambling involved benefits and would D D cause conflict and arguments amongst prisoners. E E 44. Each of the prisoners was allowed to read their own cautioned F F statements and signed to confirm that their statements were true. Based on G their cautioned statements, PW6 believed that the 4 prisoners were the ones G involved in the gambling incident. There was no reason for him to believe H H that these 4 prisoners were not the real offenders. If there were such I suspicions, PW6 would have continued the investigation. I J J 45. After the completion of the interviews, PW6 handed the K cautioned statements to the Duty Officer and reported that the 4 prisoners K were in breach of good order and discipline in prison. L L M 46. Subsequently, a disciplinary hearing was held on 20 August M 2020. PW6 was summoned to the meeting as the reporting officer. The N N normal punishment upon conviction is solitary confinement. The sentence O would depend on the nature of the breach and according to guidelines. The O convicted prisoner would also be moved to another Dormitory and work P P place and will be deprived of welfare and privileges. Q Q Adjudication in relation to the Gambling Incident R R S S 47. On 20 August 2020, an adjudication hearing was heard before T SP Lau Yee Kan, Ronald (case number TF 107/20). In the hearing, four T prisoners (namely PW5, Mak Ka Leung, Wong Kwok Tai and Cheung Sin U U V V  - 22 - A A B B Ki) pleaded guilty to having participated in a game of chance inside C Dormitory F3 on 18 August 2020, contrary to section 61(p) of the Prison C Rules. The Adjudication Report was an accurate record of the hearing D D process and the result of the hearing and is produced as P25 and its certified E English translation as P25a [4th Admitted Facts P103 §1]. E F F Covert Operation G G 48. Lam Tak-hung (PW1) is an ICAC Investigator. At about 1723 H H hours on 22 October 2020, he was assigned to go to a location near TFCI I where he collected a recording device (the Recording Device) from Mr. I Li Siu-on. PW1 arrived at the ICAC headquarters with the Recording J J Device at about 1820 hours on the same day and handed it over to the K Technical Section of the ICAC at about 1826 hours. K L L 49. At about 1510 hours on 23 October 2020, whilst PW1 was on M M duty, a colleague handed a compact disc to him (the Compact Disc). The N compact disc was a copy of the audio recording contained the Recording N Device. He knew that the audio recording was recorded on 22 October O O 2020. Pursuant to the terms of the authorization, the recording was to P commence at 0900 until 1200 of 22 October 2020. PW1 then prepared a P transcript of the audio recording on the Compact Disc (the Transcript). He Q Q confirmed that the Transcript was an accurate record of the audio R recording. The Compact Disc and the Transcript are produced as P76 and R P76C respectively. PW1 confirmed that parts of the audio recording were S S omitted in the Compact Disc and that he was not the one who decided the T omissions. T U U V V  - 23 - A A B B Arrests C C D1 D D E 50. There is no dispute that D1 was arrested at his residence by E PW15 on 23 October 2020. F F G PW15 G H H 51. Mr. Chan Kin Hing (PW15) was tendered for cross- I I examination pursuant to a request of the Defence. PW15 is a Chief J Investigator of the ICAC. On 23 October 2020, he was tasked to arrest D1 J at D1’s residence. PW15 understood that the search warrant had been K K signed but was yet to be delivered to him. In those circumstances, before L PW15 went to D1’s home, there was no plan to search D1’s residence L immediately. M M N 52. Upon arrival at D1’s residence, PW15 declared arrest on D1 N and told D1 that he would be taken to the ICAC. As they were leaving, D1 O O asked if he could speak to his domestic helper. D1 then shouted to his P helper to break all the digital devices and valuable property in his home. P PW15 and his colleagues immediately subdued D1, handcuffed D1 and Q Q took him back into the unit. PW15 informed D1 that a search warrant had R been signed and that a search will be conducted immediately. PW15 also R informed D1 that D1 may already have committed perverting the course of S S public justice and cautioned him. The ICAC then conducted a search of T D1’s residence. T U U V V  - 24 - A A B B 53. PW15 admitted that he pushed D1 to the wall and swore at D1 C after D1 yelled to his helper. He also instructed D1 to kneel down and was C handcuffed. These were measures to control D1 and prevent him from D D going to other areas inside the unit to damage possible exhibits. After a E while and after 2 colleagues started a search, D1 was given a chair to sit E on. F F G 54. D1’s arrest was recorded by the CCTVs installed at the G doorway of his residence. The CCTV footages were produced as D2A and H H D2B. The CCTV footages were then shown to PW15. He denied that he I told D1 to kneel, swore at him to humiliate D1. He denied that he was I abusing his authority. PW15 explained that he kneed D1 once to subdue J J D1 and make him kneel. D1 had openly shouted to his helper to destroy K objects. PW15 feared that D1 would destroy exhibits. That was why he K asked D1 to also kneel inside the unit. L L M D2 M N N 55. On 23 October 2020, D2 was arrested by the ICAC. A black O O mobile telephone with a memory card and a SIM card were seized from P D2. The mobile telephone, together with the memory card and SIM card P are produced as P38. The mobile number of the SIM card is 5340 5825 and Q Q was used by D2 [2nd Admitted Facts P99 §8]. R R D3 S S T PW2 T U U V V  - 25 - A A B B 56. Mr. Lam Man-mang is a CSD officer who was posted to TFCI C at the material time. He was on leave on 23 October 2020 but returned to C TFCI at about 1540 hours pursuant to the instructions of Mr. Li Siu-on. At D D about 1620 hours, prisoners who worked at the CMO under D2’s E supervision were intercepted by PW2, Mr. Li Kiu-kwong (PW3) and 2 E other CSD officers. PW2 took D3 to the Security Unit office. He told D3 F F that D3 was suspected of being in possession of unauthorized articles and G that a search would be conducted on D3. The interception and search of D3 G was recorded by video. The video of the search is produced as P26. The H H transcript of the video and its English translation are produced as P26A and I P26B respectively. I J J 57. D3 was carrying a bag at the time of interception. Upon search K of the bag, PW2 found 1 unopened packet of Marlboro cigarettes (produced K as P28), 1 unopened packet of Mevius cigarettes (produced as P30), 4 L L lighters (produced as P31, P32, P33 and P35), a black foldable mobile M telephone (produced as P27), a smart watch with no watch strap, 1 nail M clipper, 1 home made plastic pliers and 1 key. On D3’s body, PW2 found N N a 3 colored ball pen, 1 opened packet of Marlboro cigarettes contains 7 O cigarettes (produced as P29) and 1 lighter (produced as P34). O P P 58. PW2 explained that Marlboro and Melvius were not Q Q authorized brands of cigarettes in prison. PW2 laid out all the above items R on a table and cautioned D3 [Counter 37]. D3 remained silent under R caution. When PW2 asked D3 about the key found inside the bag, D3 said S S “No, this key was picked up, then (it) was intended to be given to you” T （唔係喎，呢條鎖匙係執到跟住諗住俾你咋喎） [Counter 80]. D3 T also later stated “This bag / (exhibit) envelop is not (marked with) my U U V V  - 26 - A A B B number” （呢個袋都唔係我 Number 㗎）[counter 109] and “The things C are not mine, only picked (them) up, big brother （啲嘢唔係我㗎喎，執 C 返嚟㗎咋大佬）[Counter 113]. D D E E 59. PW3 then took photographs of each of the items and made a F record of them before PW2 placed the items into exhibit bags and sealed F them. Those photographs were produced by as P36(1) - (13) by consent. G G Then PW2 also wrote the date, time, D3’s name, PW2’s name, rank and UI H number on each of the bags. He asked D3 to sign each of the bags but D3 H refused. I I J 60. PW2 explained that not every prisoner had a bag. A prisoner J had to make a request in the “Request Book” before they could purchase a K K bag. The prisoner’s number would be written on the bag. Once a prisoner L is assigned a prisoner number, his number would be used for life and would L never change. D3’s prisoner number was 340943 whereas the number on M M the bag held by D3 in the search video was 494941. N N 61. PW2 agreed that there were some papers found inside the bag O O in D3’s possession and that he never checked those papers. He confirmed P that he had never seen anyone found in possession of 11 packets of P cigarettes. He cannot say whether it was possible to smuggle 11 packets of Q Q cigarettes into prison. CSD officers would conduct routine checks for R unauthorized articles. Stop and search would only be conducted if the CSD R receive specific intelligence. He disagreed that security was so tight that no S S one could ever smuggle 11 packets of cigarettes into TFCI. T T U U V V  - 27 - A A B B 62. D3’s bed was also searched by the ICAC. PW2 was present C during the search. No cigarettes or other packets were found. C D D 63. PW2 agreed that rehabilitation was one of the missions of the E CSD and some CSD officers might become mentors to prisoners during E their incarceration. However, a CSD officer should not be friends of ex- F F prisoners. G G PW3 H H I 64. Mr. Li Kiu Kwong (PW3) was the deputy officer-in-charge I of the Security Unit in TFCI. He was on duty on 23 October. He was the J J leader of the search operation on D3 and witnessed the search. He also took K photographs of the items found inside the bag and on D3. K L L 65. PW3 explained that at the time of the search, he thought that M M the bag belonged to D3 as he saw D3 holding it. He was not aware of the N prisoner number on the bag at the time. He only first noticed the prisoner N number on the bag when he watched the video of the search a few weeks O O before trial. However, even if he had noticed the prisoner number on the P bag, he would still proceed to search the bag for the following reasons: P Q Q (1) D3 was holding the bag upon interception; R R (2) D3 was informed of the reason for the search and he S S never stated that the bag did not belong to him; T T U U V V  - 28 - A A B B (3) D3 held onto the bag when the CSD told him the C reasons for a search. From PW3’s experience, D3’s C behavior and demeanor at the time of the search D D indicated to PW3 that the bag belonged to D3 and D3 E knew that there were unauthorized articles inside [See E video recording of search P26 at 1:33]. F F G 66. PW3 stated that prisoners were not allowed to exchange their G bags. If prisoners are found to have swapped their bags, they would be H H subjected to disciplinary prosecution. I I 67. The CSD would conduct a body search on each prisoner when J J they left the dormitory each morning. The prisoner would be asked to take K out all metal objects from the bag. Then the prisoner would go through a K metal detector gate with the bag. The CSD would open the bag and take a L L look at the opened bag. Such searches would be repeated whenever a M prisoner enters or leaves a location (e.g. workplace, canteen or sports M ground). The objective of the search was to look for unauthorized articles. N N During the World Cup, CSD officers would also look for betting slips. O O 68. PW3 explained that if a mobile phone were made mainly with P P plastic, it may be possible for it to pass through the metal detector Q unnoticed. It depended on the construction, type and model of the Q telephone. R R S 69. PW3 further stated that the names of prisoners (and not their S numbers) are printed on their uniforms. CSD officers would generally only T T remember the prisoners’ names, but not their prisoner numbers. Prisoners U U V V  - 29 - A A B B also addressed each other by name or nicknames. PW3 knew that D3’s C nickname was “Luk Tau”. C D D 70. PW3 agreed that CSD officers are required to change into E their uniforms and leave their bags before entering the secured area of the E prison. A small waist bag is part of the uniform. He cannot say whether it F F was possible for someone to bring 11 packets of cigarettes into prison as G people can always find ways to commit a crime. G H H D4 I I 71. On 23 October 2020, at around 1651 hours, ICAC Assistant J J Investigator SUNG Ka-hei and his team members, including Mr. Steven K NG, intercepted D4 at the front gate of Ground Floor, No. 96, Tan Kwai K Tsuen, Hung Shui Kiu, Yuen Long. At around 1652 hours, ICAC L L Investigators arrested D4 at his residence at No. 96, Tan Kwai Tsuen, Hung M M Shui Kiu, Yuen Long [1st Admitted Facts P98 §18]. N N PW7 O O P 72. Initially, ICAC Officer Sung Ka Hei (PW7) was not expected P to give evidence. He was only called as a witness because of the death of Q Q his partner, Mr. Stephen Ng. The arrest of D4 by PW7 and his partner was R not in dispute [See 1st Admitted Facts P98 §18]. PW7 was only cross R examined about the ICAC’s suspicions at the time of arrest and the purpose S S of searching D4’s residence on the day after his arrest (24 October 2020). T He explained that the ICAC suspected that there was a conspiracy to offer T rewards to CSD officers for the introduction of unauthorized articles U U V V  - 30 - A A B B (mainly a mobile telephone) into prison for prisoners. D4 was suspected to C be part of that conspiracy. He knew that the ICAC already had C communication records between D4’s mobile telephone and a telephone D D inside TFCI but he did not know the contents of those communication E records. He had no recollection of cigarettes being mentioned. During the E search, ICAC officers were looking for book-keeping records of the alleged F F bribes, deposit slips, records of communication and unauthorized articles. G He confirmed that no cigarettes were seized from D4’s home but D4’s G mobile telephone was seized during a body search at the ICAC. H H I D5 I J J 73. On 23 October 2020, D5 was arrested by the ICAC. The K following articles were found and seized from D5’s home [2 nd Admitted K Facts P99 §18]: L L M (1) A blue mobile telephone with 2 SIM cards. The mobile M telephone together with the 2 SIM cards are produced N N as P58. The mobile telephone number of one of the SIM O cards is 6898 1997, which was used by D5; O P P (2) An Octopus card numbered 08983931(2) is produced Q Q as P59, was used by D5. R R Investigation S S Mobile Telephones T T U U V V  - 31 - A A B B 74. At 1755 hours on 23 October 2020, ICAC Officers C commenced a search of D1’s residence in the presence of D1 without C search warrant. At 1915 hours, search warrants were produced and D D explained to D1 [5th Admitted Facts P106 §1]. E E 75. At 1923 hours on 23 October 2020, ICAC Officer seized the F F following from D1’s residence [5th Admitted Facts P106 §2]: G G (1) one black color mobile telephone marked H H “SAMSUNG”. The telephone is produced as P79; and I I (2) A sheet of paper with handwriting “6598 7379 CSL” J J and with the form CSD 197A (9/2012) of CSD K overleaf. The paper is produced as P81. K L L 76. On 11 November 2020, ICAC Assistant Investigator TSE M Kin-shing took 6 photographs of the mobile telephone seized from D1’s M residence with telephone number 6682 6288. Those photographs, showing N N the serial number of the mobile telephone and the call logs dated 23 O October 2020 are produced as P6 [1st Admitted Facts, P98 §17]. O P P 77. At all material times, D4 was the subscriber and user of Q mobile telephone number 9588 2770 [1st Admitted Facts P98 §19]. Q R R 78. At about 1445 hours on 13 November 2020, ICAC Officer Tse S Kin Shing, inside Room 1908, 19th floor, ICAC Headquarters, found one S prepaid SIM card of China Mobile Hong Kong Company Limited with T T serial number 89852122004078176206 at the SIM card slot of the mobile U U V V  - 32 - A A B B telephone P27 seized from D3. The mobile telephone number of the said C prepaid SIM card is 5608 7429 [3rd Admitted Facts P102 §1]. C D CSL Hotlines audio-recordings D E E 79. At all material times, CSL Mobile Limited maintained an F F audio-recording system of all enquiries made to their Hotline numbers G 2888 2123 and 179179. The audio recordings of these hotlines were G accurately stored in the company’s central computer system [1 st Admitted H H Facts P98 §20]. I I 80. CHOW Kin-bong was the Assistant Manager of the Corporate J J Security and Fraud Management Department of the CSL Mobile Limited. K CHOW retrieved the following audio-recording files from the company’s K central computer system: L L M (1) File name 66826288- M _Call1_29201023_102145_102211 which contained N N the conversation of enquiry between hotline number O 2888 2123 and mobile number 6682 6288 on 23 O October 2020 between 1021 hours and 1022 hours; and P P Q Q (2) File name R 66826288_Call2_20201023_102833_103346 which R contained the recorded conversation of enquiry S S between hotline 179179 and mobile number 6682 6288 T on 23 October 2020 between 1028 hours and 1033 T hours. U U V V  - 33 - A A B B The above audio-recording files were completely and accurately stored in C C st a compact disc which is produced as P7 [1 Admitted Facts P98 §21]. D D 81. NG Chin-ting was the staff member of CSL Mobile Limited. E E On 23 October 2020, he was responsible in answering the Hotline 2888 F 2123. NG identified his voice in the aforesaid audio-recording file name F 66826288_Call1_20201023_102145_102211 in P7. The accurate G G transcript of that audio-recording is produced as P8 and its certified English H translation is produced as P8a [1st Admitted Facts P98 §22]. H I I 82. WONG Tsz-yin was a staff member of CSL Mobile Limited. J J On 23 October 2020, she was on duty. WONG identified her voice in the K aforesaid audio-recording file named K 66826288_Call2_20201023_102833_103346 in P7. The accurate L L transcript of this audio-recording and its certified English translation is M produced respectively as P9 and P9a [1st Admitted Facts P98 §23]. M N Subscribers’ checks and call records N O O 83. Produced as P17, the computer certificate prepared by P P CHEUNG Yuk-lan of CSL Mobile Limited showing that [1st Admitted Q Facts P98 §33]: Q R R (1) the mobile telephone number 6598 7379 between 16 S July 2020 and 1 March 2021 was prepaid without S subscriber details; and T T U U V V  - 34 - A A B B (2) The call records of the said 6598 7379 between 16 July C and 23 October 2020. C D 84. Produced as P18, the computer certificate prepared by D WONG Po-yi of Hutchison Telecommunications (Hong Kong) Limited E E st showing that [1 Admitted Facts P98 §34]: F F (1) the subscriber of mobile telephone number 6682 6288 G G between 28 June 2019 and 17 February 2021 was under H the name of D1; H I I (2) the call records of the said 6682 6288 between 17 and J J 23 October 2020; and K K (3) the SIM card reference record of the said 6682 6288. L L M M 85. Produced as P19, the computer certificate prepared by N TSANG Pik-yin of HKT Services Limited showing that [1st Admitted Facts N P98 §35]: O O P (1) the subscriber of mobile telephone number 5340 5825 P between 15 October 2016 and 16 March 2021 was Q Q under the name of LEE Tim-Kiu (mother of D2); R R (2) the SIM card reference record of the said 5340 5825; S S T (3) the call records of the said 5340 5825 between 20 June T and 23 October 2020; U U V V  - 35 - A A B B C (4) the subscriber of mobile telephone number 6901 0617 C between 8 June 2018 and 16 March 2021 was under the D D name of WONG Yin-lung (brother of D3); E E (5) the SIM card reference record of the said 6901 0617; F F and G G (6) the subscriber of the mobile telephone number 6698 H H 8665 between 10 January 2012 and 16 March 2021 was I under the name of Wong Wai-ping (former name of I WONG Sin-yu, a prosecution witness). J J K 86. Produced as P20, the computer certificate prepared by K KEUNG Pui-chu of China Mobile Hong Kong Company Limited showing L L that [1st Admitted Facts P98 §36]: M M (1) the mobile telephone number 5608 7429 (SIM card N N seized from D3) between 21 August 2020 and 22 June O 2021 was prepaid without subscriber details; O P P (2) the SIM card reference record of the said 5608 7429; Q Q (3) the call records of the said 5608 7429 on 21 August and R R 23 October 2020; S S T T U U V V  - 36 - A A B B (4) the subscriber of the mobile telephone number 5108 C 4690 between 10 August 2018 and 22 June 2021 was C under the name of LAU Tin-ching (sister of D3); D D E (5) the subscriber of the mobile telephone number 6349 E 8187 between 13 June 2014 and 22 June 2021 was F F under the name of WONG Sang-Choi (father of D3); G G (6) the subscriber of the mobile telephone number 6301 H H 0269 between 13 January 2008 and 22 June 2021 was I under the name of NG Siu-chi (mother of D3); I J J (7) the mobile telephone number 5514 5212 used by LAW K Kin-wing (a prosecution witness) between 5 March K 2019 and 22 June 2021 was a prepaid SIM card; L L M (8) the SMS records of the said 5608 7429 (SIM card M seized from D3) between 21 August and 23 October N N 2020; O O (9) the SMS records of the said 5108 4690 (D3’s sister) P P between 16 July and 23 October 2020; and Q Q R (10) the top-up record of the said 5608 7429 (SIM card R seized from D3) in October 2020. S S T T U U V V  - 37 - A A B B 87. Produced as P21, the computer certificate prepared by C TSANG Tat-yuen of SmarTone Telecommunications Limited showing C st that [1 Admitted Facts P98 §37]: D D (1) the subscriber of the mobile telephone number 9588 E E 2770 between 15 May 2020 and 23 March 2021 was F F under the name of D4; G G (2) the call records of the said 9588 2770 (D4) between 15 H H May and 23 October 2020; I I (3) the call forwards records of the said 9588 2770 (D4) J J between 17 May and 23 October 2020; K K (4) the mobile telephone number 6898 1997 used by D5 L L between 7 July 2018 and 23 March 2021 was prepaid M without subscriber details; M N N (5) the SIM card reference record of the said 6898 1997 O (D5); O P P (6) the call records of the said 6898 1997 (D5) between 3 Q September and 23 October 2020; Q R R (7) the subscriber of the mobile telephone number 6056 S 6694 between 2 June 2020 and 23 March 2021 was S under the name of WONG Yin-kit (D3’s brother); T T U U V V  - 38 - A A B B (8) the SIM card reference record of the said 6056 6694 C (D3’s brother); C D D (9) the subscriber of the mobile telephone number 6541 E 8876 between 23 February 2019 and 23 March 2021 E was under the name of TSANG Shuk-yee (family F F member of TSANG Sze-wing Rain, a prosecution G witness); and G H H (10) the subscriber of the mobile telephone number 6791 I 6789 between 1 November 2017 and 23 March 2021 I was under the name of WONG Yin-lin (D3’s sister). J J K 88. The computer certificate prepared by TAM Sze-wan Cindy of K Telecom Digital showing that the subscriber of the mobile telephone L L number 5117 9586 between 7 September 2020 and 8 April 2021 was under M the name of LI Chun-ping is produced as P22 [1st Admitted Facts P98 §38]. M N N CMO Chat Group between D2, D4 and D5 O O 89. 42 photographs were taken of D2’s mobile telephone (P38), P P which accurately depicted the messages of a WhatsApp chat group named Q “CMO” among the mobile numbers of D2 (5340 5825), D4 (9588 2770) Q R and D5 (6898 1997) (CMO Chat Group) exchanged between 4 September R 2020 and 19 October 2020. The photographs are produced as P39 and the S S certified English translation of the messages is produced as P39a [2nd T Admitted Facts P99 §9]. T U U V V  - 39 - A A B B 90. A compact disc containing 108 audio files retrieved from the C CMO Chat Group for the period between 4 September 2020 and 19 C October 2020 (which were accurately extracted from D2’s mobile D D telephone (P38) is produced as P40 and the list of the audio files with the E file name, path, size and modified date is produced as P41 [2nd Admitted E Facts P99 §10]. F F G 91. A table of the WhatsApp text messages and transcripts of the G audio messages exchanged in the CMO Chat Group between D2, D4 and H H D5 between 4 September 2020 and 19 October 2020, accurately extracted I from D2’s mobile telephone (P38) is produced as P42 and its certified I English translation is produced as P42a [2nd Admitted Facts P99 §11]. J J K Communication between D2 and D5 K L L 92. A compact disc containing 62 audio files retrieved from the M WhatsApp communications between the mobile telephone numbers of D2 M (5340 5825) and D5 (6888 1997) for the period between 8 September and N N 23 October 2020, extracted from D2’s mobile telephone (P38) is produced O as P43. The list of these audio files with file name, path, size and modified O date is produced as P44 [2nd Admitted Facts P99 §12]. P P Q 93. 14 photographs were taken of D2’s mobile telephone (P38), Q which accurately depicted the WhatsApp messages exchanged between the R R mobile numbers of D2 (5340 5825) and D5 (6898 1997) for the period S between 8 September and 23 October 2020. Those photographs are S produced as P45 and the certified English translation is produced as P45a T T [2nd Admitted Facts P99 §13]. U U V V  - 40 - A A B B C 94. A table of the WhatsApp text messages and transcripts of the C audio messages exchanged between D2 and D5 during the period between D D 8 September and 23 October 2020, accurately extracted from D2’s mobile E telephone (P38) is produced as P46 and its certified English translation as E P46a [2nd Admitted Facts P99 §14]. F F G Extracts from the mobile telephones seized from D3 and his G family members H H I 95. The contact records retrieved from D3’s mobile telephone I (P27) are produced as P47 and the certified English translation as P47a J J nd [2 Admitted Facts P99 §15]. K K 96. The Short Message Service (SMS) records of mobile number L L 5608 7429 (SIM seized from D3) are produced as P48 and the certified M M translation as P48a [2nd Admitted Facts P99 §16]. N N 97. On 24 October 2020, the following mobile telephones and O O SIM cards were seized [2nd Admitted Facts P99 §17]: P P (1) A black mobile telephone with a SIM card were seized Q Q from the home of Wong Sang-Choi (formerly known as R LAU Sang-choy), father of D3. The mobile telephone, R with the SIM card information are produced as P49 and S S P50 respectively. WONG Sang-choy was the user of T mobile telephone number 6349 8187. T U U V V  - 41 - A A B B (2) A black mobile telephone with a SIM card was seized C from the bedroom of NG Siu-chi, mother of D3. The C mobile telephone with the SIM card of mobile D D telephone number 6301 0269, and its SIM card E information are produced respectively as P51 and P52. E NG Siu-chi was the user of the mobile telephone F F number 6301 0269. G G (3) A mobile telephone with a SIM card was seized from H H WONG Yin-lung (formerly known as LAU Yin-lung), I twin brother of D3. The mobile telephone with the SIM I card of mobile number 6901 0617 and its SIM card J J information are produced as P53 and P54 respectively. K WONG Yin-lung was the user of the mobile telephone K number 6901 0617. L L M (4) A rose gold mobile telephone with one SIM card was M seized from WONG Yin-kit (formerly known as LAU N N Yin-kit), younger brother of D3. The mobile telephone O with its SIM card of mobile telephone number 6056 O 6694 and its SIM card information are produced P P respectively as P55 and P56. WING Yin-kit was the Q Q user of the mobile telephone number 6056 6694. R R D5’s mobile telephone records S S T T U U V V  - 42 - A A B B 98. Nine contact record entries extracted from D5’s mobile C telephone (P58) are produced as P60 and their certified English translations C nd as P60a [2 Admitted Facts P99 §19]. D D Messages between D2 and D5 E E F F 99. A compact disc containing 62 audio files and one video file G retrieved from the WhatsApp messages between the mobile numbers of D2 G (5340 5825) and D5 (6898 1997) for the period between 8 September and H H 23 October 2020, accurately extracted from D5’s mobile telephone is I produced as P61 [2nd Admitted Facts P99 §20]. I J J 100. A table of the WhatsApp text messages and transcripts of the K audio messages exchanged between D2 (5340 5825) and D5 (6898 1997) K during the period between 8 September and 23 October 2020, accurately L L extracted from D5’s mobile telephone (P58) is produced as P62 and its M certified translation as P62a [2nd Admitted Facts P99 §21]. M N N Messages exchanged between D3 and D5 O O P 101. The SMS records exchanged between the mobile telephone P numbers 6598 7379 and D5 (6898 1997) for the period between 3 Q Q September and 21 October 2020, accurately extracted from D5’s mobile R telephone (P58) are produced as P63 and its certified translation as P63a R [2nd Admitted Facts P99 §22]. S S T 102. The SMS records exchanged between the mobile telephone T numbers 5608 7429 and D5 (6898 1997) on 23 October 2020, accurately U U V V  - 43 - A A B B extracted from D5’s mobile telephone (P58) is produced as P64 and the C certified translation as P64a [2nd Admitted Facts P99 §23]. C D Messages exchanged between mobile number 9588 2770 and D D5 E E F F 103. A compact disc containing 117 audio files from the WhatsApp G messages between the mobile telephone numbers 9587 2770 (subscriber G and user being D4) and 6898 1997 (used by D5) for the period between 3 H H September and 9 October 2020, accurately extracted from D5’s mobile I telephone (P58) is produced as P65 [2nd Admitted Facts P99 §24]. I J J 104. A table of the WhatsApp text messages and transcripts of the K audio messages exchanged between mobile telephone numbers 9588 2770 K (subscriber and user being D4) and 6898 1997 (user by D5) during the L L period between 3 September and 9 October 2020, accurately extracted from M D5’s mobile telephone (P58) is produced as P66 and the certified M translation as P66a [2nd Admitted Facts P99 §25]. N N O Messages exchanged in the CMO Chat Group O P P 105. A compact disc containing 108 audio files retrieved from the Q CMO Chat Group, accurately extracted from D5’s mobile telephone (P58) Q is produced as P67 [2nd Admitted Facts P99 §26]. R R S 106. A table of the WhatsApp text messages and transcripts of the S audio messages exchanged in the CMO Chat Group during the period T T between 4 September and 19 October 2020, accurately extracted from D5’s U U V V  - 44 - A A B B mobile telephone (P58) is produced as P68, its certified English translation C as P68a [2nd Admitted Facts P99 §27]. C D Messages exchanged between D5 and D5’s father D E E 107. A compact disc containing 6 audio files retrieved from the F F WhatsApp messages between the mobile numbers of D5 (6898 1997) and G D5’s father (6313 3886) on 5 October 2020, 6 October 2020 and 22 G October 2020, accurately extracted from D5’s mobile telephone (P58) is H H produced as P69 [2nd Admitted Facts P99 §28]. I I 108. A table of the WhatsApp text messages and transcripts of the J J audio messages exchanged between D5 (6898 1997) and his father (6313 K 3886) on 5 October 2020, 6 October 2020 and 22 October 2020, accurately K extracted from D5’s mobile telephone (P58) is produced as P70 and its L L certified English translation as P70a [2nd Admitted Facts P99 §29]. M M Messages exchanged between D5 and PW6 Li Chun Ping N N O 109. The WhatsApp messages exchanged between the mobile O telephone of D5 (6898 1997) and Li Chun Ping (PW5) (5117 9586) for the P P period between 17 October 2020 and 21 October 2020 with one image file Q attachment, accurately extracted from D5’s telephone (P58) is produced as Q P71 and its certified English translation as P71a [2nd Admitted Facts P99 R R §30]. S S Records of CSL Mobile Limited (CSL) relating to mobile T T number 6598 7379 U U V V  - 45 - A A B B C 110. The prepaid CSL SIM card with the mobile number of 6598 C 7379 was activated on 16 July 2020. Between 16 July and 23 October 2020, D D a total sum of $1,400 was recharged to the prepaid CSL SIM card on a total E of 17 occasions. The computer certificate of the prepaid CSL SIM card E with the mobile number of 6598 7379 is produced as P72 [2nd Admitted F F Facts P99 §31]. G G 111. At about 1623 hours on 8 September 2020, D5 recharged $300 H H to mobile telephone number 6598 7379 at a CSL branch in Tsing Yi by I using his Octopus card (P59). A compact disc containing the accurate I footage captured by the closed circuit television system (CCTV) system of J J the CSL branch between 1600 and 1700 hours on 8 September 2020 is K produced as P73. The screen captures of the said CCTV footages are K produced as P74 and the certified translation as P74a [2nd Admitted Facts L L P99 §32]. M M 112. Between 16 July 2020 and 23 October 2020, calls and SMS N N were exchanged between the mobile telephone number of 6598 7379 and O D4, D5, D3’s parents, D3’s siblings and a number of persons. The details O are as follows [2nd Admitted Facts P99 §33]: P P Q Tel.No. Calls SMS Subscriber Exhibit User Q 9588 2770 324 29 D4 P21 D4 R R 6898 1997 93 48 Prepaid P21 D5 S 5514 5212 8 14 Prepaid P20 Law Kin wing S 9154 7536 6 0 / / Law Kin wing T T 5117 9586 10 1 Li Chun Ping P22 Li Chun Ping (PW5) U U V V  - 46 - A A B B 6698 8665 150 105 Wong Wai Ping P19 Wong Sin Yu C 6541 8876 152 232 Tsang Shui Yee P21 Tsang Sze Wing C 9085 9983 251 46 Wong Yuk Ling / Wong Yuen Man D D 6349 8187 4 0 Wong Sang Choy P20 D3’s father Wong Sang Choy E E 6301 0269 27 0 Ng Siu Chi P20 D3’s mother F Ng Siu Chi F 6901 0617 107 33 Wong Yin Lung P19 D3’s brother G Wong Yin Lung G 6056 6694 41 6 Wong Yin Kit P21 D3’s brother H Wong Yin Kit H 5108 4699 87 697 Lau Yin Ching P20 D3’s sister I Lau Yin Ching I 6791 6789 8 1 Wong Yin Lin P21 D3’s sister J Wong Yin Lin J 6313 3886 5 0 Lam Siu Wai / D5’s father K Lam Siu Wai K Others 962 613 / / / L L Total 2,234 1,825 M M Records of China Mobile Hong Kong Company Limited N N relating to mobile telephone 5608 7429 O O 113. The prepaid SIM card of China Mobile Hong Kong Company P P Limited with mobile telephone number 5608 7429 (SIM seized from D3) Q was activated on 21 August 2020 [2nd Admitted Facts P99 §34]. Q R R 114. Between 21 August and 23 October 2020, calls and SMS S messages were exchanged between the mobile telephone number 5608 S 7429 and D4, D5, D3’s parents, D3’s siblings and other persons. The T T details are as follows [2nd Admitted Facts P99 §35]: U U V V  - 47 - A A B B Tel. No. Calls SMS Subscriber Exhibits User C C 9588 2770 2 0 D4 P21 D4 D 6898 1997 8 4 Prepaid P21 D5 D 6349 8187 1 0 Wong Sang Choy P20 D3’s father E E Wong Sang Choy F 6301 0269 1 0 Ng Siu Chi P20 D3’s mother F Ng Siu Chi G 5208 4690 1 29 Lau Yin Ching P20 D3’s sister G Lau Yin Ching H 6901 0617 20 17 Wong Yin Lung P19 D3’s brother H Wong Yin Lung I 9085 9983 8 14 Wong Yuk Ling / Wong Yuen Man I J Others 30 57 / / / J Total 71 121 K K Bank Statement of D5 L L M 115. On 21 October 2020, a sum of $2,000 was transferred from M N D5’s Bank of China (Hong Kong) Limited (BOC) account numbered 012- N 739-2-006559-6 to Li Chun Ping’s (PW5) bank account numbered 012- O O 806-1-030687 also maintained with BOC. The bankers’ affirmation of P D5’s BOC account is produced as P75 and its certified English translation P as P75a [2nd Admitted Facts P99 §36]. Q Q CCTV of 7-Eleven R R S S 116. Chiu Shui-yu Maggie was the Senior Security Manager of the T 7-Eleven at Shop C, G/F, Po Yan Building, 36 Wai Yan Street, Tai Po, T New Territories (the 7-Eleven Shop). A CCTV system was installed at the U U V V  - 48 - A A B B 7-Eleven Shop, which was operating properly at all material times. The C CCTV footage files covering the activities at the 7-Eleven Shop for the C period from 1906 hours to 1947 hours on 9 October 2020 stored in a USB D D flash drive is produced as P10 [1st Admitted Facts P98 §24]. E E 117. The transaction records of the 7-Eleven Shop were stored in a F F computer installed at the 7-Eleven Shop. The computer was operating G properly at all the material times. The transaction record of the 7-Eleven G Shop on 9 October 2020 showing the sale of one piece of Mevius Option H H Fizzy at the price of $60 and an EPS withdrawal of $500 is produced as I P11 [1st Admitted Facts P98 §25]. I J J CCTV of Circle K K K 118. TANG Hoi-lam was the Senior Service Process Executive of L L the Circle K located at Shop 1, Wan Tau Tong Shopping Centre, 10 Hiu M M Fai Road, Tai Po, New Territories (the Circle K Shop). A CCTV system N was installed at the Circle K Shop, which was operating properly at all N material times. The CCTV footage files covering the activities at the Circle O O K Shop from 0530 hours to 0630 hours on 23 October 2020 stored in a P USB flash drive is produced as P12 [1st Admitted Facts P98 §26]. P Q Q 119. The transaction records of the Circle K Shop were stored in a R computer installed at the Circle K Shop. The computer was operating R properly at all material times. The transaction records of the Circle K Shop S S from 0555 hours to 0610 hours on 23 October 2020, which showed the sale T of 2 pieces of Mevius Option Fizzy at the price of $60 each at 06:04:07 T hours on 23 October 2020 is produced as P13 [1st Admitted Facts P98 §27]. U U V V  - 49 - A A B B Purchases of Cigarettes by D2 C C D 120. At about 1918 hours on 9 October 2020, D2, who was in grey D vest with check pattern shorts, purchased a pack of cigarettes at a branch E E of 7-Eleven located at Shop C, G/F, Po Yan Building, 36 Wai Yan Street, F Tai Po, New Territories (CCTV footage: P10; transaction record: P11). The F screen captures of the said CCTV footage (P10) are produced as P10a and G G nd the certified English translation as P10b [2 Admitted Facts P99 §39]. H H 121. At about 0604 hours on 23 October 2020, D2, who was in a I I white tee shirt with colorful horizontal stripes and light grey shorts, J J purchased 2 packs of cigarettes at a branch of Circle K located around Shop K 1, Wan Tsu Tong Shopping Centre, 10 Hiu Fai Road, Tai Po, New K Territories (CCTV footage: P12; transaction record: P13). The screen L L captures of the said CCTV footage (P12) are produced as P12a and the M certified English translation as P12b [2nd Admitted Facts P99 §40]. M N Mark Six Results N O O 122. Mark Six is a lottery operated by the Hong Kong Jockey Club P P (HKJC) under a lottery license issued by the Hong Kong Government. Q According to the records of the Mark Six Lottery accurately kept by the Q HKJC, the Mark Six Lottery results on 8 and 22 October 2020 are as R R follows [1st Admitted Facts P98 §30]: S S Lottery No. / Drawn Date Drawn Numbers and Extra Number T T Lottery No. 20 / 011 drawn on 8 21, 28, 33, 34, 40, 47 and Extra number 49 October 2020 U U V V  - 50 - A A B B Lottery No. 20 / 013 drawn on 22 1, 13, 19, 24, 29, 45 and Extra number 26 October 2020 C C Mark Six Results and SMS messages D D E 123. The Mark Six Lottery results on 8 October 2020 were 21, 28, E F 33, 34, 40, 47 and Extra Number 49 (1st Admitted Facts P98 §30], which F matched the SMS message sent by the mobile telephone number of Wong G G Yuen Man (9085 9983) to mobile telephone number 5608 7429 (SIM H seized from D3) at 2133 hours on 8 October 2020 [2nd Admitted Facts P99 H §37]. I I J 124. The Mark Six Lottery results on 22 October 2020 were 1, 13, J 19, 24, 29, 45 with Extra Number 26 (1st Admitted Facts P98 §30), which K K matched the SMS sent by the mobile telephone number of Wong Yuen L Man (9085 9983) to mobile telephone number 5608 7429 (SIM seized from L D3) at 2133 hours in 22 October 2020 [2nd Admitted Facts P99 §38]. M M N Results for Football Matches N O O 125. The computer certificate containing the results for the football P matches in respect of the 2020 / 2021 UEFA Europa League on 23 October P 2020 prepared by TSANG Hiu Wa, the Trading Development Manager of Q Q the Hong Kong Jockey Club is produced as P15 [1st Admitted Facts P98 R §31]. R S S Records of D5’s Octopus Card T T U U V V  - 51 - A A B B 126. Produced as P16 is the computer certificate prepared by C LUNG Tsz-hung of Octopus Cards Limited showing that [1st Admitted C Facts P98 §32]: D D i. the Octopus card number 8983031 was registered under E E the name of D5; F F G ii. the transaction records of the said Octopus card G between 7 and 9 September 2020 which showed that H H D5 had added value of $300 to the said Octopus card at I 1618 hours on 8 September 2020 at a 7-Eleven store I and used $300 at 1623 hours on the same day to top-up J J the prepaid SIM card of 6598 7379 at CSL Limited; and K K iii. the merchant’s contact information L L M Bank Statement M N N 127. The bank statement issued by the Bank of China to LI Chun O Ping (PW5) dated 14 November 2020 accurately recorded that a bank O transfer deposit of $2,000 was made to the bank account numbered 012- P P 806-030687-8 held in the name of LI Chun Ping on 21 October 2020. This Q bank statement is produced as P14 [1st Admitted Facts P98 §28]. Q R R 128. The aforesaid $2,000 deposit was transferred from a Bank of S China account numbered 012-739-006559-6 held in the name of LAM S Hon-ki, i.e. D5 [1st Admitted Facts P98 §29]. T T U U V V  - 52 - A A B B Chain of Evidence C C 129. The chain of evidence of all the exhibits produced under the D D 2nd Admitted Facts P99 is not in dispute. All the photographs produced in E the proceedings accurately depict the relevant images and have not been E altered or otherwise interfered or tampered with in the process of the F F preparation of the same [2nd Admitted Facts P99 §§41 and 42]. G G 130. The chain of evidence of the prepaid China Mobile SIM card H H mentioned in the 3rd Admitted Facts [P102] is not in dispute. The said I prepaid SIM card has been properly kept and has not been improperly I interfered or tampered with [3rd Admitted Facts P102 §2]. J J K 131. The chain of evidence of the exhibits produced under the 5th K Admitted Facts (P106) is not in dispute. The said exhibits had been L L properly kept and had not been improperly interfered or tampered with [5th M Admitted Facts P106 §3]. M N N PW8 O O 132. Ms. Tsang Sze Wing, Rain (PW8) is D3’s friend. She has P P known D3 for over 10 years and calls D3 by his nickname “Luk Tau”. She Q knew that D3 had committed crimes and that he was in prison. She wrote Q him letters and visited D3 in prison in 2020. TFCI’s address was on D3’s R R letters to her. S S 133. D3 had contacted PW8 by telephone before she visited him in T T prison. PW8’s telephone number is 6541 8876. She started to visit D3 at U U V V  - 53 - A A B B TFCI after the first telephone call from D3. There was no dispute that there C were 232 SMS messages and 151 telephone calls between PW8’s C telephone number and 6598 7379. D D E 134. PW8’s birthday is on 8 September. At 2046 hours on 8 E September 2020, PW8 received a telephone call from D3. The telephone F F number used by D3 was 6598 7379. G G Voice Identification of Covert Audio Recordings and The H H Telephone Message Incident I I PW9 J J K 135. Mr. Li Siu On (PW9) was called to give evidence about his K identification of the voices in covert audio- recordings. His evidence was L L highly controversial, not only because of the dispute as to the voice M identification, but also because of what happened during PW9’s testimony. M Witnesses were interposed in the course of PW9’s evidence. This N N eventually gave rise to an application for a permanent stay, which was O dismissed. For ease of reference, I have set out PW9’s evidence by O reference to the dates he gave evidence. P P Q 13 December 2022 (Day 1) Q R R 136. PW9 has been the Principal Officer of the Security Unit at S TFCI since 28 December 2018. His daily duties include the supervision of S activities of staff members and prisoners, to ensure that there are no T T contraventions of Prison rules or the Laws of Hong Kong. If PW9 suspects U U V V  - 54 - A A B B that there have been such contraventions, he would gather evidence and C report the matter to the Duty Officer of TFCI, as well as follow up the C progress of the investigation. If the matter involves the breach of Prison D D rules by a prisoner and can be dealt with by TFCI, the Duty Officer would E examine the evidence gathered by PW9 and decide whether to conduct a E Disciplinary Hearing. If the matter involves a breach of the law, PW9 F F would also report to his direct superior in the Service Quality Department. G G 137. D1 has been posted to TFCI since 10 December 2018. D3, H H whose nickname is “Luk Tau”, was a prisoner in TFCI from 20 March 2018 I to 23 October 2020. I J J 138. At about 7 pm on 18 August 2020, the Hong Kong K Observatory announced that the number 8 typhoon signal would be hoisted. K As the Principal Officer of the Security Unit, PW9 had to go back to TFCI L L to inspect the facility prior to the typhoon and assess the security risks. M When PW9 reached the gate of Dormitory F3, he saw 4 to 5 prisoners M gathered at the far end of the Dormitory near D3’s bed. One of the prisoners N N shouted “Staff is here （ 有 職 員 到 場 ） ”, whereupon the prisoners O O immediately scattered. PW9 then noticed that 4 of the prisoners looked P nervous and that there was a bag at the location where the prisoners had P gathered. PW9 memorized the faces of those 4 prisoners. He then asked Q Q one of the prisoners to hand over the bag for inspection and discovered that R there were chess pieces made with prisoners’ buttons inside the bag. In R those circumstances, PW9 suspected that the prisoners have been S S gambling, which was a breach of the Prison rules. Gambling is not allowed T in prison because it involves benefits such as cigarettes, which give rise to T conflicts and seriously affects discipline. U U V V  - 55 - A A B B C 139. PW9 seized the bag and the chess pieces before going back to C his office to look for and confirm the identities of the 4 nervous prisoners D D amongst the photos in his computer. On the following day (19 August E 2020), PW9 gave the names of those 4 prisoners to CSD officers Chan Yik E Wang (PW6) and Tai Chuo Wan (Mr. Tai) for investigation. F F G 140. Subsequently, PW6 and Mr. Tai reported to PW9 that the 4 G prisoners had admitted to playing a “game of chance” (which is regarded H H as gambling) inside Dormitory F3 on 18 August 2020. The prisoners used I the chess pieces to play “Big and Small （大細）” and the wager was I cigarettes. These two CSD officers also told PW9 that they had reported J J the matter and handed the related evidence, including the cautioned K statements of the prisoners to the Duty Officer to conduct a Disciplinary K Hearing. L L M M 141. CCTV cameras were installed at both ends of Dormitory F3 N but the location of the gambling was not covered by the CCTV. N O O 142. Prisoners are not allowed to admit to a breach of Prison rules P in lieu of another prisoner because this affects fairness both within the P correctional institute and at the Disciplinary Hearing. It also affects the Q Q daily enforcement of rules inside prison. R R 143. D1 was assigned as the supervisor of the CMO in early 2020. S S Because the work performed by the CMO involved security, PW9 would T speak to D1 about once every 2 weeks to discuss security requirements in T respect of the work to be performed by the CMO. These are not formal U U V V  - 56 - A A B B meetings and each of such discussions usually lasted for about 5 to 10 C minutes. As a result, PW9 is able to recognize the voice of D1. C D D 144. PW9 explained that he inspected TFCI with the E Superintendent once a week and would see all prisoners, including D3 E during such inspections. During such inspections, D3 would proactively F F greet PW9 and the Superintendent. Their interaction would only last for G about 1 minute. G H H 145. Between September 2020 and late October 2020, PW9 was I informed by Prison Headquarters that D3 was suspected to be involved in I a case that was being investigated by the ICAC. He was asked to conduct J J an investigation by listening to the audio recordings of D3’s prison visits. K Between September and October 2020, D3 had visitors on 4 to 5 occasions K and PW9 listened to the audio recordings of each of those visits at least L L once or twice. Those recordings lasted for about 3 to 4 hours. As he M listened, PW9 would copy excerpts of the recordings which are related to M the investigation and report to his supervisor. After listening to those audio N N recordings, PW9 is able to recognize D3’s voice. O O 146. At about 9:42 am on 30 December 2020, PW9 attended the P P ICAC for voice identification. The ICAC played audio recordings of Q Q conversations. PW9 was also given a transcript of those recordings. The R transcript marked by PW9 and its English translation are produced R respectively as P76a and P76b. S S T 147. PW9 was able to identify 3 voices in the audio- recordings, T namely PW9’s own voice and that of D1 and D3. PW9 used a separate U U V V  - 57 - A A B B letter to denote each of the voices he recognized and marked them C accordingly on the transcript. The letter “A” denotes D1; the letter “B” C denotes D3 and the letter “C” denotes PW9. The audio-recordings were D D played to PW9 in court and he confirmed that the markings he made on the E transcript were correct. In the transcript, D1’s name “King Lun” was E mentioned [P76a, counter 724]. The phrase “Shui Kee （水記）” is the F F area for solitary confinement, i.e. 「水飯房」 [P76a, counter 727]. There G were some amendments to the markings on the transcript. All the G countersigning signatures belong to PW9. He admitted that when he spoke H H to D1 face to face, D1’s voice was different from D1’s alleged voice in the I I recordings. However, he only marked the transcript if he was very sure that J it was D1’s voice. He denied that his alleged identification of the voices J was based on the context of the conversations. K K L 148. PW9 explained that: L M M (1) All CSD officers would be checked as they enter the N prison but not when they leave the prison. There is an N officer at the main gate of every correctional institution. O O This officer is responsible for the security checks of P every person who enters the institution, including CSD P officers. Each CSD officer would be asked to take out Q Q all metal objects and unauthorized items before he R walks through the metal detector gate. If the alarm of R the metal detector gate were activated, a hand held S S metal detector would be used to perform another T security check. If CSD officers did not deliberately hide T U U V V  - 58 - A A B B them to avoid detection, they would not have any C unauthorized items inside the prison; C D D (2) These checks are conducted to ensure that CSD officers E are not bringing unauthorized items into the prison E area; F F G (3) CSD officers would not be searched again after the G security check at the main gate; H H I (4) CSD officers are not allowed to bring their own mobile I telephones into the prison area; J J K (5) Prisoners had to go through a security check when they K leave their dormitory by walking through a metal L L detector gate. A body search would only be conducted M if the alarm on the metal detector were activated or if M the CSD suspected that the prisoner was in possession N N of unauthorized items; O O (6) Prisoners working in the CMO worked with sharp tools P P inside the workshop. They had to go through security Q Q measures before leaving the workshop. CSD officers R would pat the prisoner’s pockets and body to ensure R that there are no concealed objects. If the prisoner had S S a bag, he would be asked to open the bag to and CSD T officers would look inside to see if there were T U U V V  - 59 - A A B B unauthorized items. This security check is normally C performed by the CMO supervisor; C D D (7) Similar security measures would be conducted when E the prisoners go from the CMO to the canteen and from E the canteen to the dormitory. The security check at the F F canteen is performed by officers from other units; G G (8) If D1 suspected that a prisoner working in the CMO H H was in possession of an unauthorized article, as the I supervisor, D1 had the power to stop and search the I prisoner. If unauthorized items were found from a J J prisoner, D1, as the CMO supervisor had the power to K seize the item. D1 would then have to report the matter K to his immediate superior to commence disciplinary L L procedures. If the items were illegal (such as drugs), the M matter would have to be reported to the CSD M Headquarters (i.e. the Service Quality Department) and N N passed on to law enforcement agencies; O O (9) Prisoners are only allowed to have “Wealth” and P P “Gentori” cigarettes but other brands of cigarettes are Q Q prohibited; R R (10) Prisoners are not allowed to have unauthorized articles S S such as mobile telephones in prison; T T U U V V  - 60 - A A B B (11) Prisoner wages are very low. Cigarettes are C comparatively expensive commodities in prison. The C prisoners are likely to use cigarettes for illegal D D transactions and dealings which would affect discipline E by causing conflicts and fights. That is why ownership E and possession of cigarettes are controlled in prison; F F G (12) If the prisoners were allowed to have mobile G telephones, they would be able to contact people H H outside prison and may engage in illegal activities, such I as illegal gambling or plans to escape prison, without I the detection of the CSD. Not only would this affect J J discipline inside prison, it may endanger the public. K That is why ownership and possession of mobile K telephones are also controlled in prison; L L M (13) CSD officers are not allowed to give unauthorized M items to prisoners; N N O (14) If a CSD officer discovers that a prisoner is in O possession of an unauthorized item, he should P P immediately report it to his immediate superior; Q Q R (15) A prisoner is not allowed to ask a CSD officer for R favors, such as checking the prisoner’s SIM card. If S S such a request were made by a prisoner, the CSD officer T should report the matter to his immediate superior; T U U V V  - 61 - A A B B (16) CSD officers are not allowed to make friends with C prisoners during their remand; C D D (17) CSD officers are not allowed to communicate with E former prisoners; E F F (18) Inside prison, the Mevius brand of cigarettes is known G as “Cantaloupe”. The nickname of one cigarette is “one G fei （一飛）”. H H I 149. According to CSD records, neither D1 nor D2 had ever I reported that D3 was in possession of a mobile telephone or unauthorized J J cigarettes. K K 150. Under cross-examination, PW9 explained that there were L L under 300 prisoners in TFCI at the material time. During the weekly M inspections, the Superintendent and PW9 would spend about an hour M inspecting the dormitories, the workshops and the storage. During the N N inspection, prisoners were expected to stand and greet the Superintendent O and PW9 as a group. However, some prisoners, like D3 would proactively O initiate greetings to the officers, including PW9. That was the reason why P P PW9 could recognize D3’s voice. Q Q R 151. PW9 denied that there was no mention of D3’s proactive R greetings to him in his witness statement. He admitted that he gave his first S S witness statement (the 1st witness statement) in respect of his voice T identification on 30 December 2020 (i.e. the same day as the voice T identification). It was only almost 2 years later and shortly before the U U V V  - 62 - A A B B commencement of the trial, on 29 November 2022 that he made his second C witness statement (the 2nd witness statement) where for the first time, he C mentioned that D3 greeted him proactively during the weekly inspections. D D Initially, he stated that he was invited by the ICAC to give a further E statement. Upon further cross-examination, he admitted that he E remembered this shortly before the commencement of the trial and he F F informed the ICAC. That was why the 2 nd witness statement was taken G from him. G H H 152. The first day of PW9’s evidence ended with the defence I putting to PW9 that he had lied about his biweekly interactions with D1 I and his weekly interactions with D3. This was denied by PW9. He asserted J J that he could recognize D3’s voice for 2 reasons: K K (1) He had studied the audio-recordings of D3’s prison L L visits; and M M (2) D3 had greeted him proactively during the weekly N N inspections. O O 153. During Day 1, the Court rose on a number of occasions for the P P parties to deal with various matters. Every time the matter was stood down, Q PW9 was reminded not to speak to anyone about the present case. This Q reminder was repeated before the matter was adjourned to the following R R day. S S 14 December 2022 (Day 2) T T U U V V  - 63 - A A B B The Telephone Message Incident C C 154. In the morning of Day 2, the Prosecutor informed the Court D D that she had a matter to report and asked for the Court’s directions. She E stated that the officer in charge of the present case, Ms. Cheng Sha (the E OC Case) had been asked to remain outside the Courtroom as it was F F inappropriate for her to hear the discussions. G G H 155. The Prosecutor told the Court that at about 1953 hours on Day H 1, she received a WhatsApp message from the OC Case and they had a I I short exchange of messages (the Telephone Message Incident). A copy J of the messages on the Prosecutor’s mobile telephone was marked as MFI- J 2 and reads as follows: K K L OC Case Prosecutor L Li wish to have a chance to clarify when he did M voice ID, he mainly relied on the visit recordings M that he listened intensively around that period. The routine patrol conversations were not he N most relied on, that only gave him an impression N of D3 O O Can ask him about it when re-exam! P I think we can’t talk to him now P I didn’t talk to him…just CSD liaison expressed Q such view Q IC. Scared the sxxx out of me R R This kind of communication should be stopped too. S S Ok emoji T T U U V V  - 64 - A A B B 156. The Court asked the Defence for their observations. D1’s C counsel commented that the incident reflected on the quality of PW9’s C evidence and that he was not to be trusted. Counsel stated that it was up to D D the Prosecution to decide whether they wished PW9 to continue giving E evidence, D3’s counsel stated that PW9 had clearly disobeyed the Court’s E order. D4’s counsel stated that he was shocked by PW9’s behavior but he F F would like PW9 to continue giving evidence. The Court then suggested G giving PW9 a very stern warning. G H H 157. With the Court’s leave, the Prosecution then decided to I interpose with the OC Case (PW10) to give evidence about Telephone I Message Incident before PW9 resumed his evidence. J J K PW10 K L L 158. PW10 is the officer in charge of the present case. She admitted M that at about 6:30 in the evening on Day 1, she received a telephone call M from the CSD Liaison Officer, Mr. Wong Pak Wing (PW11). Mr. Wong N N told her that his colleagues who were observing the case had told him about O the situation in Court. Mr. Wong said that PW9’s evidence was not O sufficiently clear. He told PW10 to ask the Prosecutor to re-examine PW9 P P and allow him to clarify the basis of his voice identification of D1 and D3. Q That was the whole of their conversation. PW10 promised to ask the Q Prosecutor. She then sent the above WhatsApp messages to the Prosecutor. R R S 159. Under cross-examination, PW10: S T T U U V V  - 65 - A A B B (1) Admitted that she saw a male sitting in the Courtroom C on the first day of trial and this male confirmed to C PW10’s colleague Ms. Salina Siu that he was a CSD D D officer. Since then, CSD officers were in the Courtroom E observing the trial every day. For reasons unknown to E PW10, no CSD officer was present on Day 2 (i.e. on F F the day the Telephone Message incident was reported G to the Court); G H H (2) Admitted that she was in regular contact with the CSD I Liaison Officer, Mr. Edwin Wong Pak Wing. They I exchanged mobile telephone numbers in July 2021 J J when she took over the present case. She would usually K communicate with Mr. Wong with the land line in her K office. There would also be formal contact through L L memos; M M (3) There was contact between PW10 and Mr. Wong three N N to four times after the commencement of the trial. O These were to arrange the attendance of CSD officers O to give evidence; P P Q Q (4) Mr. Wong called PW10 in the evening of Day 1. The R call only lasted for a few minutes. However, PW10’s R call record showed that her conversation with Wong S S lasted for 22 minutes; T T U U V V  - 66 - A A B B (5) Initially, PW10 denied that there was any discussion C about PW9’s evidence during this telephone call. C However, she changed her evidence almost D D immediately and said Mr. Wong told her that he knew E about PW9’s evidence in Court. He said that he had E some ideas and he told PW10 about them. She sent the F F WhatsApp messages to the Prosecutor after she G “digested” what Mr. Wong said; G H H (6) PW10 denied that she had requested the Prosecutor to I re-examine PW9 in accordance with her WhatsApp I message. She said she only wanted advice. However, J J she agreed that in order to obtain advice, it was not K necessary to tell the Prosecutor what the CSD wanted; K L L (7) She admitted that she stated in her WhatsApp message M that PW9 wanted to be re-examined along the lines of M her message. She alleged that the wording of her N N message was a mistake; O O (8) She admitted that she had been asked by the Prosecutor P P to stay outside the Courtroom that morning because it Q Q was inappropriate for her to hear the discussions inside R the Courtroom. However, she was communicating with R Ms. Salina Siu by WhatsApp during this time. PW9 S S alleged that the conversation was about the T arrangement of witnesses, especially a colleague called T U U V V  - 67 - A A B B Johnny who had contracted COVID. However, their C conversation was as follows: C D D PW10 Ms. Siu Let me know what’s happening inside E E Li’s in the room near court 6. I’m in the F other room F Ok! Rosa (the Prosecutor) is talking to G them abt last night issue G The defence just reply ‘he is lying’ H H Rosa showed them wtsapp conversation (emojis) I I Court haven’t started yet Rosa just told d1’s counsel about johnny J J They r still finding ways to make copy court haven’t start yet K K (9) She knew that PW9 was incommunicado and should L L not be discussing his evidence with anyone. She agreed M that she should have stopped the conversation. She M thought that Mr. Wong’s concerns arose from the N N observation of CSD officers in Court; O O PW11 P P Q 160. PW11 is CSD Officer Yu Ho Yin, who is attached to the Q Headquarters Inspectorate and Security Unit. PW11 admitted that he had R R been in Court to observe the proceedings on one occasion prior to attending S as a witness. He attended Court as part of his work duty and described it as S “case monitoring and understanding the progress of the case”. After his T T U U V V  - 68 - A A B B observation in Court, he would report to his superior about the progress of C the trial, for example the next hearing date. C D D 161. Under cross-examination, PW11 admitted that Mr. Wong had E sent him to observe the proceedings. He admitted that he was taking notes E of the evidence, but denied that these were part of his report to Mr. Wong. F F He asserted that those notes were for his perusal. However, under further G cross-examination, PW11 admitted that he would report to Mr. Wong what G had been said in Court but continued to denied that that was the purpose of H H taking notes. He also denied that he reported what PW9 said in evidence to I Mr. Wong. PW11 maintained that he was only in court to “monitor” the I proceedings, report whether PW9 was late, the progress of the proceedings J J and the next hearing date. PW11 admitted that apart from him, there was K another CSD officer observing the proceedings in Court but alleged that K that officer was not from his Unit and would not be reporting to Mr. Wong. L L M PW12 M N N 162. PW12 is Mr. Edwin Wong Pak Wing (Mr. Wong). He is O attached to the Inspectorate and Security Unit and is the Liaison Officer in O this case. P P Q 163. PW12 admitted that he called the officer in charge of this case Q (PW10) at about 6:55 pm on Day 1. He explained that he wanted to know R R the progress and procedure of the case and he also wanted to know about S witness arrangements. There was no other reason for his telephone call. S However, during his conversation with PW10, he mentioned that the T T defence alleged that PW9 had fabricated his evidence and asked whether U U V V  - 69 - A A B B PW9 would be re-examined about that. PW10 then stated that she would C consult the Prosecutor. That was the whole of their conversation. C D D 164. Mr. Wong admitted that he had asked CSD colleagues to sit E in the Courtroom on each day of the trial. The purpose was to understand E the progress of the proceedings and to arrange the attendance of witnesses F F because he had to arrange for other colleagues to be on stand by. G G 165. Under cross-examination, Mr. Wong admitted that the H H arrangement of CSD witnesses was not that complicated. He needed to I know the progress of the proceedings to arrange manpower in the I Correctional Institution if the witness has not completed his evidence. J J However, he admitted that CSD officers work according to a Duty Roster K and that officers giving evidence are assigned “Court Duty” in the Roster. K L L 166. Mr. Wong alleged that he only called PW10 to see whether M PW9 would complete his evidence on Day 2. Subsequently, Mr. Wong M admitted that he knew about cross-examination and re-examination. He N N knew that PW9’s cross-examination had not yet been completed. Under O further cross-examination, Mr. Wong asserted despite that knowledge, he O wanted to know if PW9 had to attend Court on Day 2. P P Q Q 167. Mr. Wong denied that he had spoken to PW9 before he called R PW10. However, he admitted that he spoke to PW9 after his call to PW10. R He explained that the purpose of his call was to inform PW9 that PW9 had S S to go back to TFCI after he finished giving evidence. He also told PW9 T about security issues in the Correctional Institution and told PW9 to follow T up. He also reminded PW9 to return to Court the following day and not to U U V V  - 70 - A A B B speak to anyone about his evidence. He denied that PW9 had told him C about PW9’s evidence in Court and PW9’s reliance on audio recordings of C prison visits. D D E 168. Mr. Wong also stated that he had never read PW9’s witness E statements. He was asked whether he knew the basis of PW9’s voice F F recognition. He repeatedly avoided answering the question until the Court G ordered him to do so. He stated that he only knew they were based on audio G recordings of prison visits after PW9 started giving evidence. H H I 15 December 2023 (Day 3) I J 169. Because of the Telephone Incident set out below, PW9 only J resumed his evidence on Day 3. The Prosecution had disclosed the K K telephone records of PW10 and Mr. Wong before they gave evidence. L L 170. PW9 denied that he had called Mr. Wong in the evening of M M Day 1 but admitted that Mr. Wong had called him on his mobile telephone N that evening between 7:30 to 8 pm and they spoke for 5 to 10 minutes. He N said that they spoke about the following matters: O O P (1) Mr. Wong knew that PW9 had been transferred to Pik P Uk Prison on 30 November 2022. Mr. Wong also knew Q Q that when PW9 had to be quarantined, there were 2 R serious security incidents at Pik Uk. Mr. Wong called R to instruct PW9 to follow up those security matters after S S completing his evidence; T T U U V V  - 71 - A A B B (2) Mr. Wong knew that PW9 did not finish his evidence C on Day 1. Mr. Wong reminded PW9 that He may not C communicate with anyone about these proceedings and D D that PW9 had to be in Court punctually. E E 171. When he was cross-examined, PW9 was asked to check his F F telephone records to see if Mr. Wong had called PW9 with Mr. Wong’s G mobile telephone. PW9 then stated that he was unable to do so because he G had deleted all his telephone records. He asserted that because he was a H H Security Officer, he had the practice of deleting all his work telephone I records every evening. He was afraid that he might lose his telephone and I someone may use it for illegal purposes. J J K 172. PW9 had 2 telephones, one was his personal telephone and K the other was a work telephone. During the morning break, the Defence L L made enquiries with the telephone service providers of PW9’s telephones. M SmarTone (the service provider for PW9’s personal telephone) would need M a week to provide the telephone records. The registered user of the N N telephone is able to access the SmarTone website and can obtain the call O records immediately. China Mobile (the service provider for PW9’s work O telephone) need 3 to 4 weeks to provide the call records. P P Q 173. PW9 confirmed that he used his personal telephone to talk to Q Mr. Wong. He stated that he was willing to obtain the call records of that R R telephone and provide them to the Defence. S S 174. PW9 admitted that although he was in the habit of deleting all T T call records, he kept the photos inside his telephone. Those photos were U U V V  - 72 - A A B B marked as MFI-4 and MFI-5. The first page of MFI-4 was a photo of D3’s C prison visiting record which was taken at 7:46 on Day 2. He admitted that C because he was incommunicado, he should not have looked at documents D D without the Court’s leave. Photos 2 to 4 were all unredacted photos of E Identity Cards of his wife, his son and his domestic helper. There was also E a photo of PW9’s Hong Kong Bank Account number and a photo of F F handwritten notes about security issues in prison. He admitted that G although having photos of these information on his telephone was a G security risk, he did not delete them. The photo of the handwritten notes on H H security issues in prison posed a much higher risk. He denied that he had I deliberately deleted the call records. He did not know that the call records I of other witnesses have been disclosed. J J K 175. PW9 stated that ICAC officers would also contact him to K remind him to attend Court punctually. Other than that, he had only been L L in contact with Mr. Wong a few times since 13 December. He spoke to Mr. M Wong on the evening of Day 1 between 7:30 and 8 pm. He also reported M his attendance to Mr. Wong in the morning of Day 2. This call lasted for N N about 5 minutes because Mr. Wong reminded him not to be late and not to O speak to anyone related to these proceedings. O P P 176. PW9 stated that he would not report to Mr. Wong about this Q Q case. Mr. Wong was of a higher rank and the Liaison Officer but he was R not PW9’s immediate superior. R S S 177. Excerpts from PW9’s work telephone was marked MFI-15. T He agreed that pages 1 and 2 of MFI-15 was related to incidents in prison, T including a case of fighting and self-harm in prison. Page 3 of MFI-15 was U U V V  - 73 - A A B B a copy of PW9’s witness statement. PW9 admitted that these documents C posed security risks but he did not delete them from his telephone. There C were 4 recently deleted photos in PW9’s telephone. They were photos of: D D (1) A TVB 55th Anniversary; E E F F (2) A CSD officer and another gentleman at a passing out G parade; G H H (3) A boy with a plate of rice; I I (4) A Facebook page screen capture 「唔緊要嘅：你個人 J J 行開咗」. K K 178. PW9 explained one of the photos showed his son’s face and L L he felt the need to delete that photo. There was also a photo of a senior M CSD officer at a passing out. However, he agreed that he did not delete all M photos that involved security risks. PW9 did not deny that there were many N N undetected photos of his son in his telephone but denied that he was lying O about the deletions. O P P 179. PW9 asserted that he did not know that CSD would send Q officers to observe the proceedings. He has not spoken to any of those Q officers. R R S 180. PW9 denied that Mr. Wong was the point of contact between S the CSD and ICAC during the arrest operation. He stated that the point of T T contact for the CSD was a Superintendent in the Headquarters of the CSD U U V V  - 74 - A A B B Inspectorate and Security Unit. PW9 was directly instructed by the C Superintendent Tang (Superintendent Tang) to deal with this case at C TFCI. PW9 was the person in charge of the investigation within TFCI. He D D was assisted by Li Kiu Kwong (PW3) and Lam Man Meng (PW2). PW9 E knew that there was an investigation in September 2020 and that D1 and E D2 may also be involved. PW9 was asked to check D3’s prison visit F F records and collect intelligence about D3 within TFCI. However, PW9 was G only informed of the intended arrest operation by Superintendent Tang on G the day of D3’s arrest. That was why CSD officer Lam Man Mang (PW2), H H who was on leave that day, was asked to return to TFCI. PW9 did not have I to meet with the ICAC officers who came to interview D3. I J J 181. PW9 does not know why D3 was not interviewed by the ICAC K in TFCI. He was told by Superintendent Tang that D3 had been moved to K Stanley prison. The decision for ICAC to interview D3 at Stanley Prison L L was not made by PW9. As far as he knew, there were CCTVs inside visit M rooms in all correctional institutions. Those CCTVs have video recording M but not audio recording capabilities. Facilities with both video and audio N N recording capabilities are only available in the CSD Academy. O O 182. The matter was adjourned for the Prosecution to obtain PW9’s P P call records. PW9’s 2 telephones were also seized by the ICAC. Q Q 19 December 2022 (Day 4) R R S 183. PW9’s personal and work telephones were seized on 15 S December 2022. The call records of both telephones between 13 to 15 T T December 2022 were available and were served on the Defence. The U U V V  - 75 - A A B B parties were able to identify some of the telephone numbers in those C records. However, PW9 refused to disclose the passwords to his WhatsApp C on those telephones. The police were trying to see if they could access the D D deleted messages without passwords. E E 184. On the same day, a medical certificate from a private doctor F F was submitted to the Court, which stated that PW9 had been given 2 days’ G sick leave as he was not mentally fit at attend Court to give evidence. The G proceedings were adjourned until 21 December 2022. H H I 21 December 2022 (Day 5) I J J 185. The Court was informed that the police were unable to K retrieve PW9’s deleted WhatsApp messages or WhatsApp call records K without passwords. A further medical certificate from the same private L L doctor was submitted to the Court. Which stated that PW9 was suffering M from depression and anxiety; PW9 had been given 8 days sick leave until M 28 December 2022. The Defence wanted to finish the evidence of PW9 N N before other prosecution witnesses are called; the Defence may have “an O application” to make at the end of PW9’s evidence. The matter was O adjourned to 29 December 2022. P P Q 29 December 2022 (Day 6) Q R R 186. A further medical certificate from the same private doctor was S submitted. It stated that PW9 was still unfit to give evidence. The S Prosecution invited the Court to adjourn the matter to 3 February 2023 for T T the Prosecution to update the Court and the Defence on PW9’s condition U U V V  - 76 - A A B B and the Prosecution’s position in respect of PW9’s evidence. Counsel for C D4 had also tested positive for COVID. The parties asked for 27 and 28 C March 2023 to be reserved for argument, as the objected to the way in D D which the Prosecution wished to deal with PW9’s evidence. E E 3 February 2023 (Day 7) F F G 187. The Prosecution informed the Court that PW9’s sick leave G ended in 6 January 2023 and has returned to work. He is still on medication H H but is not required to attend regular follow-up treatment. The Prosecution I confirmed that PW9 would be able to attend Court on 27 March 2023. I J J 27 March 2023 (Day 8) K K 188. Under cross-examination, PW9 stated that he only knew that L L Mr. Wong was posted to the Inspectorate and Security Unit. This unit was M responsible for security facilities in the CSD and data security. Mr. Wong M was a Superintendent but PW9 did not know Mr. Wong’s role within the N N Unit. PW9 is an Acting Chief Officer. Under work protocol, if Mr. Wong O had instructions for PW9, Mr. Wong should contact PW9’s direct superior, O who is also a Superintendent. PW9’s direct superior would then give PW9 P P the appropriate command. Q Q R 189. PW9 agreed that Mr. Wong’s office was in the Wanchai R Headquarters. However, he said he was not sure if that office was in the S S Court building. PW9 stated that there was no reason for him to contact any T other CSD officer at the Wanchai Headquarters. T U U V V  - 77 - A A B B 190. PW9 admitted that his work telephone was issued to him by C the CSD. He was careful to differentiate between his personal and work C telephones; his work telephone would only be used for work. He would use D D his own telephone for personal matters. E E 191. PW9 admitted that he knew that the CSD can have access to F F records of his work telephone. He asserted that he was not sure if Mr. Wong G had his work telephone number. He admitted that prior to the present case, G there was no reason for Mr. Wong to contact him directly. H H I 192. PW9 stated that he did not know that Mr. Wong called PW10 I at about 6:45 pm on Day 1 or that call lasted for until about 7:17 pm (i.e. J J 32 minutes). PW9 admitted that he received a telephone call from Mr. K Wong at 07:18 pm. He admitted that Mr. Wong never had any reason to K call him about work prior to Day 1. PW9 admitted that there was no reason L L for Mr. Wong to talk to him except about the present proceedings. M However, he denied that the whole purpose of Mr. Wong’s call in the M evening of Day 1 was to discuss his evidence. N N O 193. PW9 alleged that he cannot remember what was discussed O during the telephone call in the evening of Day 1. He cannot recall what he P P told the Court in his previous evidence. PW9 admitted that according to his Q work roster, save for 10 December 2022, he was not required to be in the Q Correctional Institution between 5 and 18 December 2022 (MFI-8). R R S 194. PW9 admitted that all his call records have been deleted S before 9:30 am on Day 3 but he claimed that he does not recall when they T T were deleted. He also claimed that he does not recall that Mr. Wong’s U U V V  - 78 - A A B B personal telephone number is 9543 6943. PW9 admitted that according to C his call records (MFI-6 and MFI-6a): C D D Dialed No. Start Date and Duration Subscriber Dialed No. / Time No. Caller No. display E E 61225624 13 December 2022 37 62390270 61225624 17:24:12 F F Incoming call 13 December 2022 9 62390270 95512440 17:29:45 G G 95512440 13 December 2022 131 62390270 95512440 17:43:26 H H 61225624 13 December 2022 176 62390270 62225624 19:07:58 I I Incoming call 13 December 2022 618 62390270 95436943 19:18:10 Mr. Wong’s J personal telephone J Incoming call 13 December 2022 159 62390270 95512440 K 19:18:10 K 95512440 13 December 2022 23 62390270 95512440 L 20:11:17 L 68995159 14 December 2022 328 62390270 68995159 M 07:15:54 M 25826022 14 December 2022 363 62390270 25826022 N 07:26:25 Mr. Wong’s office N landline O Incoming call 14 December 2022 109 62390270 68995159 O 07:34:38 P Incoming call 14 December 2022 178 62390270 25822900 P 07:43:40 Q Incoming call 14 December 2022 435 62390270 25822900 Q 07:48:06 R 90206407 14 December 2022 125 62390270 90206407 R 09:17:30 Mr. Wong’s work S telephone S Incoming call 14 December 2022 4 62390270 25822900 T 10:03:35 T U U V V  - 79 - A A B B Incoming call 14 December 2022 34 62390270 25822900 11:27:02 C C 68995159 14 December 2022 39 62390270 68995159 12:28:25 D D Incoming call 14 December 2022 29 62390270 51191204 13:31:17 Ms. Salina Siu E E 25826022 14 December 2022 36 62390270 25826022 13:32:46 Mr. Wong’s office F landline F 25826021 14 December 2022 43 62390270 25826021 G 13:38:15 CSD Wanchai G Headquarters (MFI-7) H H 21287278 14 December 2022 17 62390270 21287278 I 16:55:57 I J 195. PW9 claimed that he does not recall whose number was J 61225634 or 95512440. He does not remember any of these telephone calls K K although he previously gave evidence about the calls at 7:18 pm (from Mr. L Wong’s personal telephone) on Day 1 or 09:17 (from Mr. Wong’s work L telephone) on Day 2. When asked about the incoming telephone calls from M M numbers starting with “2582”, he asserted that he called the CSD office in N Wanchai to ask about arrangements as he has been waiting to give evidence N all day. O O P 196. PW9 denied that he wanted to be re-examined on the basis of P his voice recognition or that he told Mr. Wong that he relied mainly on the Q Q audio prison visit recordings and not the weekly greetings from D3. He R R said that PW10 was making things up. S S 197. When asked about his previous evidence, PW9 stated that he T T had no memory of anything he told the Court, including: U U V V  - 80 - A A B B (1) whether he relied on the audio of recordings of prison C C visits or the weekly interactions with D3 for his voice D recognition or any of his evidence about the basis of his D voice identification; E E F F (2) that D3 would greet him proactively during weekly G inspections of TFCI; G H H (3) the actual basis of his voice recognition; I I (4) that he went to the ICAC to do voice recognition; J J K (5) the Gambling Incident on 18 August 2020 or any of the K evidence he gave about that incident; L L M (6) his identification of D3 in Court. He can only recognize M one of the Defendants as a former colleague; N N O (7) whether he conducted any investigation about the O ownership of the mobile phone seized by the ICAC, and P P what sort of investigation, if any. Q Q 198. PW9 admitted that prisoners may apply for a bag. The R R prisoner’s number is printed in the bag. However, some prisoners leave S their bags when they are discharged and allow other prisoners to keep their S bags. The CSD had no mechanism to ensure that prisoners return their bags T T upon discharge but CSD officers would perform periodic checks to see if U U V V  - 81 - A A B B prisoners had unauthorized items. He can no longer recall whether this was C done in TFCI in 2020. C D D 199. PW9 admitted that prisoners would place their bags on the E ground when they are occupied with some activities, such as basketball. It E was possible for prisoners to get mixed up with their bags. He does not F F remember the number of the bag seized from D3. G G Special Issue: D3’s Record of Interview H H I 200. The voluntariness of D3’s record of interview was in dispute. I J J PW13 K K 201. Mr. Lai Kwun Hung (PW13) is an ICAC investigating L L Officer. He arrived at TFCI with his colleague Mr. Chong Yik Pui at about M 1610 hours on 23 October 2020 in the course of his duties. The purpose of M his visit was to interview D3 and conduct a search of D3’s dormitory and N N work place. O O 202. After his arrival at TFCI, CSD officers took the ICAC officers P P near the Duty Officer’s office. The CSD officers pointed out D3, who Q Q confirmed his identity to PW13. PW13 then told D3 that the ICAC R suspected that: R S (1) D3 had bribed a CSD officer; and S T T U U V V  - 82 - A A B B (2) D3 had conspired with a CSD officer to introduce C unauthorized items into prison. C D 203. After D3 was cautioned by PW13, CSD officers arranged for D PW13 and his colleague to search D3’s dormitory (Dormitory F) and work E E place. At the time of the search, PW13 knew that a Magistrate had signed F F the search warrants which are yet to be delivered to him at TFCI. He G admitted that the search was conducted before the arrival of those warrants. G H H 204. The search of D3’s dormitory took about 30 minutes (from I about 4:45 pm to 5:15 pm). Three items were seized, including P37, which I was a document that appeared to belong to another prisoner called Lam J J Hon Ki (no. 411208). P37 was found in a plastic drawer under D3’s bed K inside the Dormitory. K L L 205. PW13 and his colleague then went to the CMI Workshop to M conduct a search. PW13 asked D3 how D3 charged his telephone and the M location of the charger. D3 took PW13 to the storage room of the N N Workshop and pointed at a DVD player. At the time, there was a USB cable O on top of the DVD player. These 2 items were seized. The USD cable was O produced as P77 and the DVD player as P78. P P Q 206. During the search, PW13 was informed by CSD officers that Q D3 had to be transferred to Stanley Prison immediately because of security R R reasons. Items seized from D3 by the CSD were handed over to PW13. S PW13 and his colleague left the prison before 6 pm. S T T U U V V  - 83 - A A B B 207. At about 8:45 pm on the same day, PW13 and his colleague C met D3 again at Stanley Prison to take a record of interview from him. C PW13 repeated the ICAC’s suspicions to D3 and D3 agreed to an D D interview. A notice to persons under investigation by the ICAC was served E on D3, which D3 read and signed. The notice is produced as P86. The E record of interview commenced at 8:58 pm inside a visitor’s room in F F Stanley Prison. PW13 repeated the ICAC’s suspicions and cautioned D3 G again. PW13 then described what had happened at TFCI earlier that day. G PW13 then wanted to show the seized items to D3 (including the DVD H H player, the USB cable, the prisoner’s bag, the mobile telephone, 3 packets I of cigarettes, 5 lighters, 1 nail clipper, 1 tri-colour ball pen, a pair of I homemade clippers, a watch without a strap, and a key or some keys). J J Those items (which were inside a sealed evidence bag) had been placed K inside a locker of the visitor’s room. PW13 asked for permission to bring K the seized items into the visitor’s room but was not allowed to do so. He L L therefore proceeded with the interview without the seized items. During M the interview, PW13 asked questions, whilst his colleague Mr. Chong M recorded the questions and answers in writing. During the interview, D3 N N asked to go to the washroom. He was allowed to do so and returned to the O room to continue the record of interview at 2203 hours (and not 2133 hours O which was written by mistake in the record of interview). The record of P P interview ended at 2355 hours. D3 read the record of interview and was Q Q informed of his rights. D3 also signed at the end of each of his answers. R PW13 confirmed that the record of interview was given by D3 voluntarily. R S S 208. PW13 met D3 again at about 4 pm on the following day (24 T October 2020) in the visitor’s room of Stanley Prison to give D3 a copy of T the record of interview and D3 signed to acknowledge receipt of the same. U U V V  - 84 - A A B B PW13 informed D3 that some further items related to the present case have C been found and explained that he also wanted to conduct a second record C of interview. However, D3 refused to answer any further questions or sign D D PW13’s notebook. PW13 and his colleague then left. E E 209. Under cross-examination, PW13 agreed that the ICAC would F F conduct records of interview by using video recorded facilities if possible G and practicable. However, he explained that no such facilities were G available in prisons. He denied that he had deliberately conducted D3’s H H record of interview in the absence of video-recording facilities. It was I suggested to PW13 that: I J J (1) D3 asked for a lawyer but his request was refused; K K (2) D3 was threatened by PW13 and / or his colleague that L L unless D3 co-operated with the ICAC, D3’s whole M family would be arrested (「你已經衰咗，要同我哋 M 合作，如果唔係，就拉埋你全部屋企人」）； N N O O (3) PW13 or his colleague told D3 that the ICAC already P knew that D3 had used the telephone to call his family; P Q Q (4) PW13 or his colleague told D3 that D3’s family would R not be arrested if D3 co-operated; R S S (5) PW13 or his colleague told D3 that the ICAC mainly T wanted to “nail’ the 2 CSD officers. D3 should refuse T to answer questions if they were against his interests; U U V V  - 85 - A A B B C (6) PW13’s colleague fabricated the answers which did not C come from D3; D D E (7) CSD officers pointed out the DVD player or the USB E cable to PW13, not D3. F F G 210. PW13 denied each of those allegations. G H H 211. PW13 stated that the search of the Dormitory was conducted I in D3’s presence. He denied that the seized items have not been shown to I D3 but agreed that the items seized from the Dormitory were not mentioned J J in the record of interview. He explained that those items were not K unauthorized objects and some of them appeared to be related to another K person. Those items were not a priority during the record of interview. L L M 212. PW13 did not take photographs of the seized items because M he was not allowed to bring his telephone into prison and had no camera. N N On 24 October 2020, PW13 was allowed to bring the seized items into the O visitor’s room of Stanley Prison and wanted to ask D3 to confirm that the O items were found and seized during the searches. However, D3 refused to P P answer questions. Q Q PW14 R R S 213. Mr. Chong Yik Pui (PW14) is also an ICAC Investigation S Officer. He went to TFCI with PW13 on 23 October 2020 to conduct a T T search of D3’s dormitory and workplace, as well as a record of interview. U U V V  - 86 - A A B B C 214. Upon arrival at TFCI, PW14 understood that the CSD officers C had already conducted a search of D3 and unauthorized articles have been D D seized. When the two ICAC officers saw D3, the ICAC’s suspicions were E explained and D3 was cautioned. E F F 215. PW13 and PW14 first searched Dormitory F in the presence G of D3 and CSD officers. Three items were seized from a plastic box under G D3’s bed in the dormitory, including P37, P104 (a piece of paper) and P105 H H (a notebook). On the piece of paper were the names and details of another I prisoner Lam Hon Ki. A search was then conducted at the CMO Workshop. I During the search, PW13 asked D3 how D3 charged his telephone. D3 took J J the ICAC officers to a storage area inside the workshop and pointed at a K DVD player. There was a USB cable on top of the DVD player. During the K search, CSD officers stated that D3 had to be transferred to another prison. L L A bag containing items seized from D3 by the CSD was handed to PW13 M (including a foldable telephone, 3 packets of cigarettes, some lighters). M PW14 then left TFCI with PW13. N N O 216. PW14 met D3 again sometime before 9 pm in Stanley Prison O to conduct a record of interview inside a visitor’s room. A notice to persons P P under investigation by the ICAC was served on D3. D3 signed the notice Q Q after rights set out in the notice were read out and explained to him. R R 217. The record of interview started at about 8:58 pm. PW13 asked S S questions whilst PW14 was responsible for recording the questions and T answers in writing. D3 read the record of interview. D3 signed at the end T U U V V  - 87 - A A B B of each answer and at the corner of each page. The last sentence on page 7 C of the record of interview was written by D3. C D D 218. PW14 explained that it was the original plan to show the E seized items to D3. However, the ICAC was told that they had to make a E written request for permission to take the seized items into the visitor’s F F room. PW13 and PW14 therefore decided to proceed with the record of G interview without the seized items. During the record of interview, D3 G asked to use the washroom. The time that D3 returned to the room was a H H typographical error. The interview ended at 2355 hours. I I 219. PW14 went to Stanley Prison with PW13 again at about 3:30 J J pm on 24 October 2020. The purpose of this visit was to serve a copy of K the record of interview on D3. The ICAC also wanted to conduct a further K record of interview. D3 refused to answer any further questions and PW14 L L left with PW13. M M 220. Under cross-examination, it was suggested to PW14 that: N N O (1) D3 never pointed out the DVD player or the USB cable O to the ICAC. It was the CSD who brought the items to P P PW13 and PW14; Q Q (2) D3 told PW13 and PW14 that he wanted a lawyer for R R the record of interview; S S (3) All the answers came from PW14 and not D3; T T U U V V  - 88 - A A B B (4) D3 was threatened by PW13 and / or his colleague that C unless D3 co-operated with the ICAC, D3’s whole C family would be arrested (「你已經衰咗，要同我哋 D D 合作，如果唔係，就拉埋你全部屋企人」）； E E (5) PW13 or his colleague told D3 that the ICAC already F F knew that D3 had used the telephone to call his family; G G (6) PW13 or his colleague told D3 that D3’s family would H H not be arrested if D3 co-operated; I I J (7) PW13 or his colleague told D3 that the ICAC mainly J wanted to “nail’ the 2 CSD officers. D3 should refuse K K to answer questions if they were against his interests. L L 221. All the above allegations were denied by PW14. M M Application for Permanent Stay N N O 222. At the end of the Prosecution evidence and before dealing O with the admissibility of D3’s record of interview, Counsel for each P P Defendant made an application for permanent stay of proceedings in the Q light of the Telephone Message Incident. That application was dismissed Q [See separate ruling]. R R S Defence Evidence on Special Issue S T T U U V V  - 89 - A A B B 223. After the application for permanent stay was dismissed, I C ruled that D3 a case to answer on the special issue. D3 elected to give C evidence on the special issue. D D E 224. D3 admitted that he was intercepted, searched and arrested in E 23 October 2020 and that the video-recording of the interception and search F F was played in Court (P26). After the video-recording was stopped, many G CSD officers brought a collection of evidence before the arrival of the G ICAC. Thereafter, D3 was taken to Stanley Prison. H H I 225. D3 was interviewed by 2 ICAC officers (PW13 and PW14) I between 8:30 pm and midnight in a visitor’s room in Stanley Prison on the J J same day. Before the commencement of the record of interview, D3 told K PW13 and PW14 that he was very tired and was not mentally or physically K fit to make a statement. He also told the ICAC that he wanted a lawyer. L L However, this was ignored by the 2 ICAC officers. They told D3 that D3 M was doomed and that he had to co-operate with the ICAC; otherwise D3’s M family will all be arrested. If D3 co-operated with the ICAC, the ICAC will N N not mess with D3’s family. D3 was very scared and tired. He asked the 2 O ICAC officers how he should co-operate (「我應該點樣配合你哋」). O P The 2 ICAC officers told D3 that they wanted to nail the 2 CSD officers P (「整死兩個懲教署職員」). They told D3 that they will ask questions but Q Q they will also provide the answers. They also told D3 not to answer R questions that are against his own interest. If D3 cooperated, the ICAC will R not mess with D3’s family (「如果對你自己不利嘅就唔好答。如果你 S S 配合我哋，我哋就唔搞你屋企人」 ). The ICAC then wrote all the T T questions and answers. When the ICAC officers asked D3 to sign the U U V V  - 90 - A A B B statement, D3 hesitated. The 2 ICAC officers said “if you do not co-operate C now, if you do not follow our script, we will arrest you and the people that C you called” (「如果你而家唔合作，唔跟住我哋故事行嘅話呢，就拉 D D 你同你打過電話俾佢哋嘅人」). At this time, D3 noticed that there were E CCTV cameras inside the visitor’s room. The CSD officers in Stanley E Prison can see that D3 never picked up a pen until he was asked to sign the F F record of interview. He was scared but eventually decided to sign the G record of interview involuntarily. G H H 226. Under cross-examination, D3 agreed that in TFCI, lunch time I I was between 12:15 pm and 2 pm. He asserted that he did not have lunch J on 23 October 2020. When it was pointed out that he was only intercepted J at about 4 pm on 23 October 2020, his explanation was that he did not K K know the time because prisoners had no access to clocks. D3 admitted he L wrote his name and signed the notice to persons under investigation by the L ICAC. However, he alleged that he did not read the notice. He further M M alleged that on his way to the visitor’s room, he had told CSD officers at N Stanley Prison that he was mentally and physically unfit to give a statement N but the CSD officers insisted on D3 attending the interview. In any event, O O prisoners had no right to refuse to attend an interview. P P 227. D3 admitted that he not only signed at the end of each answer, Q Q he also wrote the date and time. However, he asserted that none of the R answers were given by him. They were all fabricated by the ICAC. He did R not read the record of interview carefully. He only signed because he was S S very tired, scared and unfit to give a statement. T T U U V V  - 91 - A A B B 228. At about 3:30 pm on the following day (24 October 2020), C PW13 and PW14 went to Stanley Prison to see D3 again. The Prosecution C pointed out that PW13 and PW14 gave evidence that they served D3 a copy D D of the record of interview and asked for a 2 nd record of interview. D3 E accepted a copy of the record of interview but refused to have a second E interview or sign anything. That evidence was never disputed. D3 said he F F did not remember any of those matters. G G 229. The Prosecution pointed out that D3 never asked for a lawyer H H or told the ICAC that he was unfit to give a statement. Those allegations I were denied by D3. He denied that he had fabricated the allegations against I the ICAC officers. D3 admitted that he knew that it was not a criminal J J offence for his family to receive his telephone calls. He explained that K because he had admitted calling his family, he was worried that his family K may be affected. L L M Analysis of Evidence M N N Principles O O 230. The is a criminal court. I remind myself that the Prosecution P P bears the burden of proving each of the charges beyond all reasonable Q doubt. If there were any reasonable doubt, the benefit of that doubt must Q go to the Defendants. R R S 231. D1 has a clear record. I remind myself that he is more likely S to tell the truth and less likely to commit an offence. T T U U V V  - 92 - A A B B 232. There are a number of Defendants in the present case. I remind C myself that admissions made by one defendant is not evidence against the C other defendants. D D The Prosecution Evidence E E F F PW1 to PW4 G G 233. The evidence of PW1, PW2, PW3 and PW4 were basically H H not in dispute. Although there was some cross-examination, those I questions were only for clarification. PW4 was cross examined about the I number of sections within the Centre Division which was wholly J J irrelevant. Their evidence was clear and direct. PW2 and PW3’s evidence K was also consistent with the video recording of the search. I found them to K be credible and reliable witnesses, I accept their evidence. L L M PW5 M N N 234. PW5’s evidence was self-contradictory and inconsistent with O undisputed evidence: O P P (1) Initially said that the gambling was discovered by 2 to Q 3 CSD officers when they came into Dormitory F3 and Q asked what the prisoners were doing. However, he then R R immediately changed his evidence and stated that the S CSD officers only shouted through the gate, said the S prisoners were gambling and told D3 to bring the T T homemade chess set out to them. He even agreed under U U V V  - 93 - A A B B cross examination that the CSD officer who discovered C the gambling never opened the gate of Dormitory F; C D D (2) PW5 was asked to describe the game that the prisoners E were playing. He stated that the game was similar to E “Big 2” (鋤大弟）. Each player had 8 chess pieces F F which were made by writing words on buttons G including king 「公」, Car「車」, Horse 「馬」, G Canon 「炮」, General 「仕」, Elephant 「象」 and H H Solider 「兵」). The players take turns to play their I I chess pieces. A player can only play a chess piece that J is larger in value than the chess piece played by the last J player 「鬥大」. The person who gets rid of all his K K chess pieces first wins the game. At the end of the L game, the buttons left in the 3 losers’ hands are counted. L M Each button incurs 1 point. However, a player may also M incur double, triple or quadruple points; this depends on N N the number of chess pieces left in the loser’s hand at the O end of each game. Before they start playing, the players O would agree on the number of chess pieces that would P P incur double, triple and quadruple points. For example, Q if the loser has 7 buttons in his hand at the end of the Q game, he may incur triple points (i.e. 7 X 3 = 21 points); R R if he still has all 8 chess pieces, he may incur quadruple S points (i.e. 8 X 4 = 32 points). At the end of 10 games, S the points would be counted. The bets are placed in T T cigarettes. Each cigarette is worth 10 points. This was U U V V  - 94 - A A B B wholly inconsistent with his description of the game C during the investigation and in the Adjudication Report C (P25 and P25a). At that time, PW5 stated that the home D D made chess pieces were placed inside a bag. Each of the E players drew a chess piece out of the bag. The player E with the chess piece of lowest value would be the loser F F and had to pay each of the winners 1 cigarette; G G (3) PW5 stated that the morning after the gambling H H incident, CSD officers asked D3 to go out of Dormitory I F for a chat. When D3 returned, he stated that 4 I prisoners including PW5 had to go to the CSD officers J J to confess. There is no evidence of such incident from K PW6; K L L (4) PW5 stated that when the CSD officers came to M Dormitory F to effect the arrest of the gamblers, no M gamblers had yet been identified. The CSD officers N N only asked who was involved in the gambling. This O evidence was inconsistent with the evidence of PW6 O and PW9. According to PW6, the names of the suspects P P were given to him by PW9. PW9’s evidence was Q Q consistent with PW6. R R 235. The Prosecution admitted that PW5’s description of the game S in Court was inconsistent with the description in the Adjudication report. S However, the Prosecution argued that the cautioned statements of PW5 and T T the 3 other prisoners were not available to be produced as exhibits; the U U V V  - 95 - A A B B exact circumstances in which the cautioned statements were taken are not C known. C D D 236. Firstly, PW6 is a prosecution witness. Unless the Prosecution E applies to turn a prosecution witness hostile, it is bound by the evidence of E its own witness. F F G 237. P25 and P25a are prosecution exhibits which were admitted G under section 65C of the Criminal Procedure Ordinance, Cap. 221. It was H H further admitted that the Adjudication Report was an accurate record of the I hearing. Such evidence is conclusive evidence. I J J 238. By the end of PW5’s evidence, it would be clear to the K Prosecution that PW5’s description of the game was wholly inconsistent K with the Adjudication record. Further, PW6 described the circumstances in L L which the cautioned statements were taken in Court. The Prosecution never M sought clarification from PW6. PW6 was never asked whether the M cautioned statement of PW5 was available for production. The Prosecution N N is giving evidence from the Bar bench. O O 239. PW5 was recalled for further cross examination. PW6’s P P description of the game was put to PW5. Not only did PW5 disagree with Q PW6’s description, he denied that he gave the same description in his Q R cautioned statement. This was wholly contrary to the Adjudication Report R (P25 and P25a). According to the Adjudication Report, PW6 was called to S S give evidence during the Adjudication. PW6 gave a description of the game T which was wholly consistent with his evidence in Court. PW5 confirmed T U U V V  - 96 - A A B B during the Adjudication that he understood PW6’s evidence and he agreed C with it. There was no re-examination by the Prosecution. C D D 240. In the circumstances, I did not find PW5 to be an honest or E reliable witness. I only accept the parts of his evidence that are undisputed, E namely: F F G (1) PW5 was a prisoner of TFCI at the material time; G H H (2) PW5 was assigned to Dormitory F3 and lived with D3 I at the material time; I J J (3) There was a gambling incident inside Dormitory F3 on K 18 August 2020; K L L (4) The game was a game of chance that was played using M chess pieces made with buttons; M N N (5) The gambling was discovered by the CSD; O O (6) On 19 August 2020, 4 prisoners including PW5 were P P interviewed by PW6 where they all confessed to taking Q part in the game; Q R R (7) An Adjudication hearing was conducted where the 4 S prisoners pleaded guilty and admitted the allegations S made by PW6; T T U U V V  - 97 - A A B B (8) P25 is an accurate record of the Adjudication process; C C (9) PW5 was punished after the Adjudication hearing; D D E (10) After discharge from prison, PW5 called D3’s younger E brother; F F G (11) After discharge, there were 10 calls from PW5’s mobile G telephone number to mobile telephone number 6598 H H 7379; I I (12) Subsequently, PW5 called D5’s mobile telephone; J J K (13) Between 17 and 21 October 2020, WhatsApp messages K were exchanged between PW5 and D5 (P71 and P71a); L L M (14) In the WhatsApp messages, PW5 asked D5 to make M payment on D3’s behalf; N N O (15) On 21 October 2020, D5 deposited $2,000 into PW5’s O bank account and sent PW5 an image of the deposit P P slip. Q Q PW6 R R S 241. PW6’s evidence was basically undisputed. Although he was S cross-examined, he was only asked to clarify some details. His evidence T T U U V V  - 98 - A A B B was consistent with the disciplinary hearing record (P25 and P25a). I C found him honest and reliable. I accept his evidence. C D PW7 D E E 242. PW7’s evidence was clear and direct. He was unshaken under F F cross-examination. I found him to be an honest and credible witness. I G accept his evidence. G H PW8 H I I 243. PW8’s evidence was not in dispute. She was not even cross J J examined. I found her to be an honest and credible witness. I accept her K evidence. K L PW9 to PW12 L M M 244. I did not believe PW9, PW10, PW11 and PW12. Their N evidence was self-contradictory, inconsistent with each other, illogical, N O contrary to telephone records: O P PW9 P Q Q (1) Under work protocol, if Mr. Wong had instructions for R PW9, Mr. Wong should contact PW9’s direct superior, R who is also a Superintendent. PW9’s direct superior S S would then give PW9 the appropriate command. T However, when confronted with Mr. Wong’s direct call T U to him about this case, PW9 changed his evidence. He U V V  - 99 - A A B B stated that Mr. Wong could call anyone if the matter C involved security; C D D (2) PW9 called the number 61225624 twice on Day 1 and E spoke for a total of 213 seconds (i.e. 3 minutes and 33 E seconds). Yet he claimed that he did not know who this F F telephone number belonged to; G G (3) On Day 1, there were 4 telephone calls between PW9 H H and 95512440; 2 of which were initiated by PW9. They I spoke for a total of 182 seconds (i.e. 3 minutes and 2 I seconds). Yet PW9 claimed that he did not know who J J this number belonged to; K K (4) PW9 and Mr. Wong claimed that they only spoke for a L L few minutes in the evening of Day 1. Mr. Wong only M reminded PW9 to be punctual, not to speak to anyone M about his evidence and to follow up on security matters N N in prison after he completes his evidence. However, O PW9’s call records show that the conversation lasted O for 618 seconds (i.e. 10 minutes and 18 seconds); P P Q Q (5) PW9 alleged that he only called Mr. Wong once on Day R 2 to report his attendance (at 09:17:30). This call was R made to Mr. Wong’s office land line at 07:26:25 on Day S S 2 which lasted for 363 seconds (i.e. 6 minutes and 3 T seconds). There were 2 further calls from a number T starting with “2582” at 07:43:40 and 07:48:96 which U U V V  - 100 - A A B B lasted a total of 791 seconds (i.e. 13 minutes and 11 C seconds). That means a total call time of 19 minutes and C 14 seconds). At that time, the Prosecution had not yet D D reported the Telephone Message Incident to the Court. E PW9 admitted that apart from the present case, there E was no reason for him or Mr. Wong to call each other; F F G (6) Initially, PW9 asserted that he called at 09:17:30 to G report his attendance in Court and Mr. Wong reminded H H him not to speak to anyone about these proceedings. I However, that conversation lasted for 125 seconds (i.e. I 2 minutes and 5 seconds); J J K (7) In the afternoon of Day 2, when PW8 was still waiting K to resume his evidence, PW9 received a call from Mr. L L Wong’s office landline (25826022), followed by M mother call from a 25826021. Those 2 calls lasted for a M total of 79 seconds (i.e. 1 minute and 19 seconds); N N O (8) PW9 claimed that part of his conversation with Mr. O Wong related to security issues in Pik Uk prison. P P Firstly, PW9 admitted that this was contrary to normal Q Q work protocol. Secondly, PW9 admitted that there was R no reason for him and Mr. Wong to speak about work, R other than the present case. Thirdly, Mr. Wong alleged S S that he called PW10 to talk about witness arrangement, T as he had to assign another officer to take PW9’s place T in PW9’s absence. In other words, another officer U U V V  - 101 - A A B B assigned to take PW9’s place could deal with urgent C matters if necessary. PW9 also admitted that the C officers in prison would call him for instructions if D D anything urgent arose in his absence. Fourthly, E according to PW9’s work roster, he was not even due E back in prison until 19 December 2020. In the normal F F course of events, PW9 would have been able to resume G his duties in prison as scheduled. There was clearly no G urgency for Mr. Wong to speak to PW9 when PW9 was H H in the course of giving his evidence; I I (9) PW9 admitted that there was no reason for him to speak J J to anyone in the Wanchai Headquarters apart from Mr. K Wong. The only and irresistible inference is that all the K telephone calls between PW9 and the Wanchai CSD L L headquarters telephone numbers were conversations M with Mr. Wong. In other words, PW9 spoke to Mr. M Wong for a total of 1,719 seconds (i.e. 28 minutes and N N 39 seconds) between 19:18:10 on Day 1 and 09:17:30 O on Day 2 before the Telephone Message Incident was O reported to the Court. PW9 and Mr. Wong’s description P P of their conversations cannot be true. Q Q R (10) When asked to explain the incoming calls from R 25822900 on Day 2, PW9 stated he called the Wanchai S S Headquarters to ask about witness arrangements. This T was clearly untrue, as it was the Headquarters calling T PW9; U U V V  - 102 - A A B B C (11) After his call records were available, PW9 alleged that C he could not recall anything, including matters that he D D told the Court he was sure about in his previous E evidence. E F F PW10 G G (1) In examination in chief, PW10 stated that in the H H evening of Day 1 she only spoke to Mr. Edwin Wong I Pak Wing for a few minutes. However, this was I inconsistent with her telephone call record which J J showed that her conversation with Wong lasted for 22 K minutes; K L L (2) PW10 stated in examination in chief that during the M telephone call, Mr. Wong only told her that he was M aware of PW9’s evidence of voice identification in N N court. Mr. Wong said that he was not sure that PW9’s O evidence was sufficiently clear and wanted the O Prosecution to re-examine on the matter. That was the P P whole of their conversation. Under cross examination, Q she even denied that there was any discussion about Q PW9’s evidence. However, when she was confronted R R with the length of her conversation with Mr. Wong, S PW10 admitted that he told her what he knew about S PW9’s Court testimony; Mr. Wong then stated that he T T had some ideas and proceeded to tell her about them. In U U V V  - 103 - A A B B other words, the conversation was much more than C what she told the Court in her examination in chief; C D D (3) PW10 denied that she discussed PW9’s evidence with E Mr. Wong. She also denied that the request for re- E examination about PW9’s voice identification came F F from PW9. This was plainly untrue. PW10’s 1st G message to the Prosecutor began with “Li wish to have G a chance to clarify”. The meaning of this sentence is H H plain: the request came from PW9. I am further I reinforced in my view by the wording of the remainder I of the message, namely “when he did the voice ID, he J J mainly relied on the visit recordings that he listened K intensively around the period. The routine patrol K conversations were not he most relied on, that only L L gave him an impression of D3”. There was no way in M which PW10 or PW12 could have known about PW9’s M state of mind when he did the voice identification. This N N information could only have come from PW9. It was O also very telling that PW10 subsequently admitted that O she listened to Mr. Wong to understand “what message P P he wanted” PW10 “to relate” to the Prosecutor; Q Q R (4) On Day 2, the Prosecutor asked PW10 to remain inside R a witness room outside the Courtroom. PW10 knew S S that this was because it was inappropriate for her to hear T what was being said inside the Courtroom. Despite that, T she texted Ms. Salina Siu to find out what was U U V V  - 104 - A A B B happening in Court. PW10 explained that she only C wanted to know what was happening in Court because C she had to make arrangements for the attendance of D D witnesses, especially when one of the ICAC witnesses E had contracted Covid. However, on Day 2, PW9’s E cross-examination by D1 was far from finished. There F F was still the cross-examination by 2 other Defence G counsel and re-examination by the Prosecutor. She G knew that the Court could only deal with the present H H case in the morning as another case was listed for the I afternoon. There was simply no urgency to deal with I the attendance of other witnesses that day. In any event, J J there were 2 other ICAC officers inside the Courtroom K and they could have dealt with the simple matter of K witness arrangement. Moreover, PW10’s explanation is L L also inconsistent with her explanation. It was clear from M PW10’s WhatsApp messages with Ms. Siu that PW10 M wanted to know what was happening inside the N N Courtroom. O O PW11 P P Q (1) PW11 stated that he was only in Court to observe the Q proceedings, so that he could report on the progress of R R the trial and the next hearing date. Firstly, the trial S commenced on 6 December 2023. PW11 admitted that S he was observing the case on one occasion during the T T first few days of the trial. The trial was fixed for 20 U U V V  - 105 - A A B B days. The next hearing date would naturally be the next C working day. Mr. Wong’s office is in the Court C building. The Court’s Daily Cause List is also freely D D available online. Mr. Wong had access to all this E information without speaking to anyone. Secondly, E PW10 was in contact with Mr. Wong. Both PW10 and F F Mr. Wong alleged that their communication (especially G in the evening of Day 1) related to the progress of the G proceedings and arrangements for witness attendance. H H PW10 could also inform Mr. Wong whether any CSD I witnesses were late. There was absolutely no reason for I Mr. Wong to send any CSD officer to “monitor” the J J proceedings and even less reason for these officers to K take notes of the evidence; K L L (2) PW11 denied that he reported about PW9’s Court M testimony to Mr. Wong. This is wholly inconsistent M with the evidence of PW10 and Mr. Wong. PW10 N N stated that Mr. Wong told her that he discovered from O other CSD officers observing in Court that PW9’s O evidence about voice identification was not sufficiently P P clear. Mr. Wong stated that according to the report from Q Q his colleagues, the defence alleged that PW9 had R fabricated evidence; R S S (3) In fact, PW9 was the last witness from the CSD. There T were no other CSD witnesses. Except for PW9 T U U V V  - 106 - A A B B attending Court to complete his evidence, there was C nothing for the CSD to arrange; C D PW12 (Mr. Wong) D E E (1) Mr. Wong stated that he only sent CSD officers to F F observe the proceedings because he was responsible for G the arrangement of witnesses. Mr. Wong had PW10’s G land line and mobile telephone numbers. He could have H H called PW10 to check on progress at any time; I I (2) PW9 was in fact the last CSD witness. No other CSD J J officers were coming to give evidence. But for the K Telephone Message Incident, PW9 would probably K have finished his evidence by Day 2 and he was on L L Court Duty that day; M M (3) Mr. Wong stated that he only called PW10 to ask about N N the progress of the proceedings to enable him to make O witness arrangements. He also happened to mention O that the credibility of PW9 had been challenged by the P P defence. If that were true, the conversation would not Q have lasted 22 minutes; Q R R (4) Mr. Wong explained that he only mentioned the S credibility of PW9 because he wanted to know the S Court procedures. Firstly, he has been a Court Liaison T T Officer for the CSD for a year. This was not the first U U V V  - 107 - A A B B case he had dealt with. Secondly, he admitted that he C knew that a witness could be re-examined. Thirdly, Mr. C Wong knew that PW9 was still being cross-examined. D D His explanation that he wanted to know if PW9 was E required to attend Court on Day 2 was simply E ridiculous; F F G (5) Mr. Wong was asked whether he knew the basis of G PW9’s voice recognition. This was a perfectly simple H H question. However, he repeatedly avoided answering I the question until the Court ordered him to do so; I J J (6) Mr. Wong denied that he told PW10 that PW9 relied K mainly on the audio recordings of prison visits for his K voice identification. He stated that he never asked L L PW10 to raise this in re-examination. However, PW10 M stated that she was merely relating Mr. Wong’s ideas to M the Prosecutor; N N O (7) Mr. Wong admitted he called PW9 after speaking to O PW10. He explained that the purpose of his call was to P P inform PW9 that PW9 had to go back to TFCI after he Q Q finished giving evidence. He also reminded PW9 to R return to Court the following day and not to speak to R anyone about his evidence. PW9 was only in Court S S because he was a prosecution witness. He was the T Principal Officer of the Security Unit in TFCI. His T return to TFCI was a matter of course. At the end of U U V V  - 108 - A A B B Day 1, PW9 knew that he had to return to give evidence C on Day 2 and that he was not to speak to anyone about C the present case. There was no need for Mr. Wong to D D tell him; E E (8) Mr. Wong asserted that he had to know about the F F progress of the proceedings because he had to arrange G for someone to deal with PW9’s duties if PW9 were G occupied in Court. If some other colleague is dealing H H with PW9’s duties and PW9 can deal with the matters I after giving evidence, there was no urgency to speak to I PW9 in the evening of Day 1 when PW9 was J J incommunicado; K K 245. Despite the above matters, part of PW9’s evidence was not in L L dispute. I accept that: M M (1) PW9 was the Principal Officer of the Security Unit of N N TFCI at the material time; O O (2) PW9’s description of the Prison rules; P P Q (3) The rules and procedure when unauthorized articles are Q found in the possession of prisoners; R R S (4) PW9’s evidence about the Gambling Incident; and S T T U U V V  - 109 - A A B B (5) PW9 was asked by the ICAC to perform voice C identification of the audio-recordings during the covert C operation. D D 246. Apart from that, I found PW9 to PW12 be wholly dishonest, E E incredible and unreliable. I reject the evidence of PW10, PW11 and PW12. F F After being cross-examined about the Telephone Message Incident, PW9 G claimed to have forgotten everything, including the basis of his voice G identification. Further, since there is evidence to suggest that PW9 may H H have discussed his voice identification evidence with PW12, I reject his I voice identification evidence. I J J PW13 K K 247. PW13’s evidence was clear and direct. He was unshaken L L under cross examination. His evidence was also consistent with the M contents of D3’s record of interview. I found him honest and credible. I M accept his evidence. N N O PW14 O P P 248. Although PW14 could not remember clearly the exact time Q and sequence that D3 signed each of the answers in the record of interview, Q his evidence was consistent with PW13. I found him honest and credible. R R I accept his evidence. S S PW15 T T U U V V  - 110 - A A B B 249. PW15’s evidence was clear and direct. His evidence was also C consistent with the CCTV footages produced by the Defence. I found him C to be honest and credible. I accept his evidence. D D Defence Evidence in Special Issue E E F D3 F G G 250. I did not believe D3. His evidence was self-contradictory, H illogical and inconsistent with undisputed evidence and his own grounds H of objection. The most salient are as follows: I I J (1) D3 alleged that he had not eaten that day. He admitted J that lunch time in TDCI was from 12:15 pm to 2 pm. K K He was only intercepted at about 4:20 pm. D3’s L assertion cannot be true; L M M (2) D3 asserted that the ICAC told him that they only N wanted to “nail” the 2 CSD officers. They told D3 to N O only answer questions which were not prejudicial to O D3. At the same time, D3 stated that PW14 fabricated P P all the answers. If the ICAC were going to provide all Q the answers, they would not have to tell D3 to avoid Q questions which were prejudicial to D3; R R S (3) D3 alleged that he asked for a lawyer to be present S during the record of interview. This was not even one T T of the reasons given in his grounds of objection; U U V V  - 111 - A A B B C (4) D3 stated that he told the CSD officers at Stanley Prison C that he was unfit to give a record of interview. This was D D not a reason given in his grounds of objection. In any E event, not only was there no evidence that D3 told E PW13 and PW14 that he was unfit, he signed the notice F F to persons under investigation by the ICAC; G G (5) D3 stated that because he was in prison, he could not H H refuse to attend a record of interview. Firstly, there was I no dispute that he was cautioned; he knew that he had I a right to silence. Even if he had been forced by the J J CSD at Stanley Prison to go to the visitor’s room in the K evening of 23 October 2020, he knew that he did not K have to say anything. In fact, D3 refused to answer 2 L L questions during the record of interview (P85 and M P85a): M N N O O P P Q Q R R S S T T U U V V  - 112 - A A B B Number Question Answer C 26 Have you offered them any advantages as a I don’t want to answer this C reward for the harboring or conniving you to question of yours for now use the phone? D D 我唔想答你呢個問題 你有冇俾過利益佢哋，作為佢哋包庇或 住。 E 者縱容你用電話嘅報酬？ E F 40 Regarding the cigarettes and the lighter/s, I will not answer for now. F were you required to offer any advantages to Ah Sir, can (you) help me get (them)? become a tainted witness? I G was under duress while G threatened by someone. H 就煙同火機，你需唔需要要俾利益先攞 H 到？ 我唔答住。阿 Sir 可唔可 以幫我 做污 點證人 啊？ I I 我都係俾人要挾㗎咋。 J J (6) I am further reinforced in my view by what happened K K in the afternoon of 24 October 2020. The 2 ICAC L officers went to Stanley Prison to interview D3 again. L He refused to sign any document or answer any M M questions; N N (7) D3 alleged that the ICAC only wanted to “nail” the 2 O O CSD officers and all the answers were fabricated by the P ICAC. However, according to P85 and P85a, when D3 P was asked questions which may implicate D1 and D5, Q Q he refused to answer; R R (8) D3 stated that he was told by the 2 ICAC officers to S S only answer questions which were not prejudicial to T T him. However, he signed after every answer, which U U V V  - 113 - A A B B included answers which were solely self-incriminatory C (P85 and P85a): C D D Number Question Answer 14 Did you use the phone after accepting I did. E E it? 有用。 F 你收咗電話之後，有無用部電話？ F 17 What was the phone for? Called my family for chit-chat, G but didn’t say anything dubious. G 電話用嚟做咩？ They just thought that I H approached the welfare officer to H call them. I 打過俾親人傾吓閒偈，不過冇 I 講衰嘢。佢哋只係以為我搵福 J 利官打俾佢哋。 J 20 How did (you) top up the phone? I asked “Ah Ki” to top up for me, K but (I) don’t remember when I K 電話點樣增值？ asked. L 我搵「阿褀」幫我增值，不過 L 唔記得幾時叫過。 M M 23 Then how was (it) charged with the Connected to the DVD player, cable? that is the one (I) pointed out to N you today, and charged. N 跟住又點用條線叉？ 駁落 DVD 機度叉，即係今日 O O 只俾你睇果部。 P 46 Where is the card now? (It) could not be used and so (it P was) flushed away afterwards. 依家果張卡喺邊？ Q 用唔到，所以之後沖咗。 Q 49 Why was the phone with you today? I told Ho-Wai that (I) needed to R get the phone for use. He raised R 今日點解部電話會喺你身？ no objection. S S 我同浩維講要拎部電話嚟用， 佢冇反對。 T T U U V V  - 114 - A A B B (9) D3 alleged that he only signed the record of interview C C after the entire document was fabricated by the ICAC. D He only signed at the end because he was tired, scared D and worried about his family. However, he asked to E E supplement his answers (P85 and P85a): F F Number Question Answer G G 48 Would you take a look at this record of I would like to add that H interview? You may correct, alter or add my family thought I H anything. [At 2238 hours, Lau Yin-Chun applied to the welfare started reading the above record of interview.] officer and that’s how I I could call them. I 你睇吓呢份會議紀錄，你可以作任何修改 更正或增補。 我想補充，我親人以為 J J [劉燕俊於 2238 時開始閱讀這會見紀錄] 我向福利官申請到打電 話俾佢哋。 K K L L (10) D3 asserted that because he had admitted to calling his M family with the telephone, he was worried that he might M get them into trouble. That was one of the reasons why N N he signed the record of interview. However, PW2 stated O that after the telephone was found, he cautioned D3. D3 O remained silent and only answered one question about P P a key. PW2’s evidence was not in dispute. The Q interception and search of D3 was also recorded (P26). Q PW13 stated that he cautioned D3 upon arrival at TFCI. R R D3 only stated that he understood. PW13 never asked S D3 who he called with the telephone during the search S in TFCI. In other words, D3 never admitted that he used T T the telephone before the record of interview. U U V V  - 115 - A A B B 251. I found D3 dishonest and incredible. I reject his evidence. C C D Ruling on Special Issue D E E 252. The Prosecution originally intended to produce D1’s record F of interview as evidence. However, they changed their minds even prior to F PW15 giving evidence. It is therefore unnecessary for the Court to deal G G with D1’s record of interview. H H 253. As for D3, I find that the Prosecution has proved beyond I I reasonable doubt that D3’s record of interview was made by D3 J voluntarily. D3’s record of interview and its English translation are J K produced respectively as P85 and P85a. The notice to persons under K investigation by the ICAC is produced as P86. L L Issues raised by the Defence M M N 254. It is more convenient for me to first deal with some issues N O raised by the Defence. O P Whether it is possible to introduce unauthorized items into the P Prison area Q Q R 255. The Defence suggested that in the light of the security R measures, it was impossible to introduce unauthorized items into prison. S S This argument is absurd. There is no dispute that the relevant unauthorized T T items were found inside the prison area. U U V V  - 116 - A A B B The Covert Audio-Recordings C C D 256. The issue of voice identification was discussed by the Court D of Final Appeal in HKSAR v Yeung Ka Ho (2013) 16 HKCFAR 609: E E F “48. The issues surrounding evidence in the form of F recordings are broadly similar though the means of recording may be different. Audio tapes, video tapes, films, photographs, G G even DNA analysis, whatever the technology used, raise issues of authenticity and accuracy that must be addressed with H reference to the particular circumstances. When a recording is H relied on for identification, not only the accuracy of the record, but also the reliability of the witness identifying what is recorded I may arise. These matters are facts which must be proved. I J 49. Visual identifications are well recognized as requiring J care and the courts recognize this as the decision in Turnbull clearly shows. The same care and equivalent warnings are K applicable to other forms of identification evidence, including K voice identifications. L L 50. In HKSAR v Lai Wai Cheong, the Court of Appeal accepted that the Turnbull guidelines are applicable to evidence M of identification, whether of appearance or voice. A tape M recording can be admitted and relied upon as evidence of the contents where a proper basis for its reliability is established. In N N the early case of R v Maqsud Ali, Marshall J, for the Court of Criminal Appeal, said: O O “…We can see no difference in principle between a tape recording and a photograph. In saying this we must not P be taken as saying that such recordings are admissible P whatever the circumstances, but it does appear to this Q court wrong to deny to the law of evidence advantages to Q be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the R voices recorded properly identified; provided also that R the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. S S Such evidence should always be regarded with some caution and assessed in the light of all the circumstances T of each case. There can be no question of laying down T any exhaustive set of rules by which the admissibility of such evidence should be judged.” U U V V  - 117 - A A B B 51. In Choi Kit Kau v R, Roberts CJ said: C C [T]he best method of proving that a tape recording produced in court is authentic is to show that it has been, D since the time it was recorded, continuously in the D custody of persons who assert that it was not tampered E with. This is a course which should be followed if the E authenticity of a tape is challenged and is desirable even if it is not. F F 52. Where the “best” method is unavailable, the authenticity of a tape may still be capable of proof. In HKSAR v Lee Chi Fai G G and Others, the Court of Appeal adopted the analysis in R v Murphy and Another: H H “Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct I way is to call the cameraman who took it and the court I will normally expect him to be called. But if he is not J available, he need not be called; other evidence will J suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways K and from other sources.” K L 53. In R v Chen, the Victoria Court of Criminal Appeal L received evidence of tape recordings where the makers were dead or unavailable. The court said: M M “The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to N N conclude that the recorded sounds reproduce those originally made by the persons identified by the O evidence. In other words, there must be evidence, which O the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be P admissible if proved by oral testimony. In our opinion, P admissibility does not depend on the party tendering the Q tapes having removed absolutely any chance that they are Q inaccurate.” R 54. … R 55. The Court of Appeal in England in R v Flynn [2008] 2 Cr S S App R 20 (p.266) ruled that evidence of recognition of a voice by a lay person was admissible… T T 56. “…So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of U U V V  - 118 - A A B familiarity of the witness with the suspect’s voice. Even B then the dangers of a mis-identification remain; the more C so where the recording of the voice to be identified is C poor.” D 57. In Jones & Harris, the Court of Criminal Appeal of D Victoria rejected submissions for two appellants that evidence of E voice identifications should not be received. In the case of the E appellant Jones tape-recorded telephone conversations together with circumstantial evidence consistent with factual statements F made during the telephone calls was received as probative of F identity. Similarly, in the case of Harris, voice identification evidence from witnesses familiar with his voice and supported G G by circumstantial evidence was held to have been rightly admitted. H H 58. I see no reason why, in certain circumstances, the identity of participants and, the timing and circumstances of a recorded I conversation, cannot be proved by reference to the content of the I recording. It must be possible as where the maker is unknown or J unavailable and the content when placed in a context of known J facts establishes time and place. Similarly, the identity of a speaker may emerge from what is said. Statements revealing the K facts or knowledge that only an offender could know frequently K can lead to identification. For example, statements made by L disguised offenders in the course of a robbery can be relied upon L to identify them. Statements made anonymously in writing or in the course of a telephone call demanding ransom after a M kidnapping may support identification. M 59. Of course other possible contingencies must be excluded N N – such as voice imitation. Those matters go to the weight to be accorded the evidence of the conversation. O O 60. The authorities make clear the care with which tape recordings must be considered. But with appropriate safeguards, P and careful directions, there is no reason to construct rigid P exclusionary rules. As with all evidence, reliability is to be Q assessed in all the circumstances. Q 61. In many cases, it would be question-begging to seek to R prove the authenticity of a tape recording from the contents of R the recording itself. Mr Chan, for the appellants, submitted that the voice identification in this case is flawed because PW1 was S S not shown to have recognized the speakers solely by their voices and without reliance on the context with which the speakers T exhibited familiarity… T U U V V  - 119 - A A B 62. I do not accept that the “context”, indeed all the B surrounding circumstances, may not be taken into consideration C in evaluating evidence of identification. The argument to the C contrary is unreal and inconsistent with the authorities already mentioned. D D 257. In the present case, there was no dispute that the micro audio- E E recording device was planted on D1. Initially, some parts of the recording F were ‘screened out’ by the ICAC. Eventually, apart from the parts which F are subject to Public Interest Immunity, the ‘screened out’ sections were G G provided to the Defence. It was evident that the ‘screened out’ parts were H irrelevant. The authenticity and admissibility of the covert audio- H recordings were not in dispute. There were also no suggestions from the I I Defence that the recordings have been tampered with. In other words, the J J only issue is whether the voices in the recordings can be properly K identified. K L 258. Although I have rejected PW9’s evidence on voice L identification, that is not the end of the matter. In assessing the evidence, I M M remind myself of the principles set out in R v Turnbull and in Yeung Ka N Ho. In drawing inferences, I remind myself of the principles set out in N O HKSAR v Lau Hon Keung CACC 426/2011, unreported and HKSAR v O Au Hau Ching CACC 146/2008. P P 259. In my judgment, there is more than cogent evidence to Q Q identify some of the speakers in the audio recordings (P76). Firstly, the R CCTV footages of D1’s arrest were produced as D2A and D2B. Not only R was D1’s voice heard in those video footages, the video images mean that S S the identities of the speakers in those videos were indisputable. D3 elected T T to give evidence on the special issue. That evidence is also recorded. The U recordings of D1 and D3’s voices can be used as reference for U V V  - 120 - A A B B identification. Moreover, in parts of the covert audio-recording, the C speakers either identified themselves or the person they are speaking to. C The voice(s) in parts of the recordings can be identified by context. D D Although some of the voices can be identified in a large part of the E recordings, some parts are irrelevant. I shall deal with the more relevant E parts where voice identification is possible by reference to the transcript F F (P76C): G G A. Counters 723 to 758 H H I Counter Speaker Content I Number J 723 D1 [Radio sound] Over J （對講機響聲）請講 K 724 [Radio] Hello, Hey, it’s POS, are you King-Lun? [Beep K sound] [對講機] 你好，喂 POS 啊，你係咪敬倫啊啊？（嘟聲） L L 725 D1 Yes, LI Sir, good morning. M 係啊，李 sir 早晨 M 726 [Radio] Hey, good morning, nothing. ‘Ah Yat’ N (transliteration), later on, er, he’s going for a walk. Where will N you, you be, which location? [Beep sound] [對講機] 喂，早晨啊，無，阿一陣間誒佢散緊步啊，你 O 你會喺邊個位置啊？（嘟聲） O 727 D1 Ah Sir, I am now working on the anti-skid dressing near P P ‘Shui Kee’ (transliteration), conducting anti-skid surfacing works on the slope. Q 阿 Sir，我而家係水記附近做緊鋼沙，個斜坡鋪緊鋼沙 Q 728 [Radio] Copy that, copy that. We’ll, later on, he’ll start R walking in around ten minutes. Will you still stay in the R original location? [對講機] 收到，收到。咁陣間佢大概十分鐘後起步，你 S S 咪都喺原有位置啊？（嘟聲） T 729 D1 Yes Sir, is there anything to help? [Beep sound] T 喺啊：sir，有冇嘢幫到手啊？（嘟聲） U U V V  - 121 - A A B B 730 [Radio] Oh, alright, good, alright, alright. He just asked for you as well. I’ll tell Ah Sir, thank you. [Beep sound] C [對講機] 哦，好啊，掂啊，好啊好啊，佢叫埋你咋嘛， C 我話返俾阿 Sir 聽，唔該你啊（嘟聲） D 731 D1 Copy that, thank you. D 收到，唔該（嘟聲） E E 732 [Radio] Copy that, thank you [Beep sound] [對講機] 收到，唔該（嘟聲） F F 733 [Indistinct]…don’t know （聽不清）⋯唔知啊 G G 734 Ah Yat’ (transliteration) is looking for you? 阿一搵你？ H H 735 D1 Yes, maybe to ask me about…er, how’s your wife? 係啊，可能問下我呢⋯誒你老婆點阿？ I I 736 Who…who is looking for you? 邊個⋯邊個搵你啊？ J J 737 D1 He knows my wife K 佢識我老婆啊嘛 K 738 POS? L POS 啊？ L 739 D1 POS approached me and said that ‘Ah Yat’ M (transliteration) is looking for me, and asked which M location I am at. (He) said ‘Ah Yat’ (transliteration) is looking for me, huh, I thought, look for me again? N N POS 搵我話阿一搵我，問我喺邊個位置。話阿一搵我， 下我心諗，又搵我？ O O 740 What does he know, know about your wife? 佢知咩，佢知你老婆啲嘢咩？ P P 741 D1 Fuck, Cathay Pacific is no secret now. [Noise] Alas, really…have really been unlucky these few months, really. Q Fuck, the maid is gone as well, and my wife is like this now. Q [Noise] R 屌，國泰通晒天㗎啦。（雜聲）唉真係⋯呢幾個月真係 R 黑仔啊真係。屌，工人又冇咗，老婆又咁樣。 （雜 聲。） S S 742 D1 Fuck your mother, even this sort winds up, such a big T company, fucking nuts. [Noise] So fucking many people T (working) in that industry, the entire company closes down. U U V V  - 122 - A A B B 屌你老母，竟然咁樣都執，咁大間公司，痴閪線。（雜 聲）呢一行咁撚多人，成間公司倒閉 C C D 743 Huh? D 吓？ E 744 Layoffs in ways of closing down, E 倒閉形式嘅裁員 F 745 (I) don’t know. F 唔知啊 G 746 Attention, ‘Ah Yat’ *transliteration) will patrol at ten thirty G 留意十點半嗌一巡視 H H 747 ‘Ah Yat’ (transliteration) will probably not watch…[indistinct] I 阿一應該唔睇⋯（聽不清） I 748 D1 It’s not not watch, he asked me to stay in the original J place, but probably won’t come see me for a chat, perhaps. J 唔係唔睇啊，佢叫我留原位啊，不過應該唔會嚟搵我傾 K 計㗎啦可能 K 749 POS LI sir, that voice? L POS 李 sir 咁嘅聲嘅？ L 750 Yes, Li Sir. M 係啊，李 sir M 751 The one who wears glasses? N 戴眼鏡嗰個啊？ N 752 Huh? O 嗄？ O 753 The one who wears glasses? P P 戴眼鏡嗰個啊？ 754 What? (It’s) POS. Q Q 咩啊？POS 啊 R 755 That’s the one who wears glasses. R 咪戴眼鏡嗰個 S 756 D1 [Ringing sound] what’s up? Looking for me? S （響聲）點啊搵我呀？ T 757 ‘Lun Kwo’ (transliteration) T 倫哥 U U V V  - 123 - A A B B 758 D1 Hey, oh 喂，哦 C C D At counters 723-725, the speaker answered the radio, the caller asked for D “King Lun”, which is D1’s name. Then the speaker confirmed his identity. E E From counters 726 to 732, there were only 2 people in the conversation. F As was explained above, a micro recording device was planted on D1 in F the covert operation. In the light of the location of the recording device and G G the context of the conversation, the only and irresistible inference is that H the speaker was D1. Thereafter, there was a conversation amongst several H people. One of those voices is consistent with that of D1. In the light of the I I context of the conversation, the only and irresistible inference that the J words in bold above were uttered by D1. In counters 756 to 758, the name J ‘Lun Kwo’ was mentioned again and he confirmed his identity. Having K K regard to the location of the recording device, the only and irresistible L inference that D1 was the speaker. L M M B. Counters 808 to 832 N N Counters Speaker Content O Number O 808 D1 So fucking awful, my wife is now like this, you, why? P Look, in fact, others are the other way round, it should P be like, the pension saved should grow more and more in sum. Q Q 好撚慘啊，我老婆而家咁樣，你點解呢，嗱其實人哋呢 就調返轉嘅，應該就儲嗰啲退休金就越儲越多錢㗎嘛 R R 809 Yes. 係啊 S S 810 D1 You now, bang, at one blow, she now counts in the pension together with the mandatory, together with those T whatsit. T U U V V  - 124 - A A B B 你而家澎一聲，佢而家計埋個退休金連埋公⋯連埋嗰啲 咩 C C 811 [indistinct] D （聽不清） D 812 D1 Sixty, sixty-odd. Hey, for others, the last ten-odd years, E still have ten-odd years (before) retirement. It is those E ten-odd years for one to make money, the time of snowballing F F ⋯ 六十六十多少少，喂人哋 last 嗰十幾年，就仲有十幾 年就退休，就係嗰十幾年要搵錢嘅時候，就係越滾越大 G 嘅時候 G 813 Ah Sir H 阿 Sir H 814 D1 And you, and you fucking cut (it), you say, is it fucking I I awful? 你又你又 cut 撚咗，咁你話係咪好撚慘 J J 815 Yes 係啊 K K 816 D1 Right? That is, what to do when one gets old, eat shit when one gets old, luckily, luckily, luckily, like, I’m like L stable, stable work, stable pay L 係咪先，咁啫係老咗點啊，老咗食屎，好彩，好彩，好 M 彩叫做，我都叫做穩陣，穩打穩賺 M 817 You definitely are, stable work, stable pay. N 你一定穩打穩賺 N 818 D1 No, like, there’s some investment, but still doomed, with O the economy now. If I had no skills, there’d be even more O troubles. 唔係啊叫做有啲投資，但都死啊，宜家咁嘅經濟。如果 P P 我無一門技能就仲撚大獲 Q 819 No what? Q 冇咩話？ R 820 D1 I said if I had no skills, on my wife, was not one of those R sharp, smart ones, there’d be even more troubles. Don’t know what ability you have to survive on. [Noise] S 我話如果我冇一門技能啊，或者我老婆唔係嗰啲 Sharp S 醒嗰啲啊仲撚大鑊，你都唔知有咩生存能力（雜聲） T T 821 Locking the gate of the light room 燈房鎖閘 U U V V  - 125 - A A B B 822 D1 Later on… well, when this is done, finish handling ‘Shui Kee ’(transliteration) there, I may not come back in the C afternoon, I still don’t know whether I’ll come back or C not. 一陣⋯嗱呢度整完，水記嗰度搞掂，下晝我可能唔番， D D 我未知我番唔番 E 823 Just handle (it) tomorrow, no hurry, (it) doesn’t matter. E 聽日先搞，唔急啊無所謂 F 824 D1 If not, ‘Wai Kwo’ (transliteration) will supervise you F guys, or, whoever supervises you guys 如果唔係呢就維哥帶你哋，或者邊個帶你哋都好啦 G G 825 OK 好 H H 826 D1 You guys handle some of the stockrooms for me. I 你哋幫我做咗某啲倉 I 827 That’s fine J 得㗎啦 J 828 D1 Just some minor maintenance (work). K 啲小維修啫 K 829 That’s fine L 得㗎啦 L 830 D1 Huh, just those again, fans again, those water tanks M again, that sort. M 嗄，都係嗰啲又係風扇啊，又係嗰啲水箱啊嗰啲 N N 831 Put the mask back on 帶返口罩啊 O O 832 D1 Huh, just those things again. [Noise.] 嗄，又係嗰啲嘢啫（雜聲） P P Q In counters 735 to 742, D1 was talking about his wife losing her Q employment. Counters 808 to 818 are of that subject. From Counter 819 to R R 832 are work instructions. In the light of the voice, the context and the S location of the recording device, the only and irresistible inference is that S it was D1 speaking. T T C. Counters 833 to 857 U U V V  - 126 - A A B B Counter Speaker Contents C C Number 833 How old is your thing? D D 你嗰部幾耐啊？ E 834 Oh, a little, then, you know. E 哦，少少咪咩囉 F 835 D1 [indistinct] …’Ah Wai ’(transliteration) said no reply F could be sent to you out there. （聽不清）⋯阿維話出面覆唔到你 G G 836 Yes 係啊 H H 837 D1 Still have to reply, have to check in that case. I 咁都要覆，都要 check 格 I 838 [indistinct] J J （聽不清） K 839 D1 You give (it) to me first anyway K 你照俾我先啦 L 840 Alas L 唉 M 841 D1 After checking, I’ll give a reply to “Ah Wai” M (transliteration), I’ll tell ‘Wai Kwo’ (transliteration), I’ll say I answer you two things, no money, nothing.’ N Check 完之後我覆阿維啦，我同阿維哥講，我話我答 N 你兩樣嘢，無錢，無事 O O 842 Mm, mm, mm 嗯嗯嗯 P P 843 D1 Huh 嗄 Q Q 844 Mm,mm,mm 哦哦哦 R R 845 D1 You just tell him this, need not pay extra money. 你就咁同佢講，唔使補錢 S S 846 Need not pay extra money T 唔使補錢 T U U V V  - 127 - A A B B 847 D1 Or Suspend. 或者暫停 C C 848 Okay 好 D D 849 D1 Suspend means no signal at all 暫停即係直程冇 signal E E 850 Okay 好 F F 851 D1 You know, if normal, huh, is fine, then fine. G 你話如果正常啊，嗄，冇事就係冇事呀嘛 G 852 Okay, okay, okay. H 好好好 H 853 D1 Is that okay? He asks me, I’ll tell him myself, huh, this I morning, you tell ‘Ah Wai ’(transliteration) that things I arranged this morning are OK, are fine. 好無啊，佢問我，我自己同佢講啊，嗄今朝，你同阿 J J 維講，今朝安排咗啲嘢 OK 㗎啦，無事㗎啦 K 854 Okay, okay, okay. K 好好好 L 855 If there’s a problem, there’s a problem, just wait till you L come back. 如果係有問題就，有問題就等你返嚟先 M M 856 Huh 嗄 N N 857 So ask. OK, that’s it. [Noise] O 問啦。OK，就咁（雜聲） O P There are only two people in this conversation. The voice of one of the P speakers is the same as D1. In view of the location of the recording device, Q Q the only and irresistible inference is that the speaker is D1. Even if I were R wrong, in the light of the location of the recording device, D1 was in very R close proximity and could hear the conversation. S S T D. Counters 1012 to 1023 T U U V V  - 128 - A A B B Counter Speaker Contents number C C 1012 D1 These works are really, supervising the workers to work, really, I really fucking give up, again. D 呢班 works 真係帶班工人做嘢真係，我真係頭撚晒降呀 D 又係。 E E 1013 ‘Lun Kwo ’(transliteration), please / thank you. 倫哥唔該。 F F 1014 D1 All of the screws weren’t done properly, he, most, most, most importantly, even G 粒粒都上唔齊喎，佢最最最緊要係，仲要係。 G 1015 ‘Lun Kwo ’(transliteration), (they) can’t be tightened, some H are…(Indistinct) H 倫哥，收唔到喎，有啲呢（聽不清）。 I 1016 D1 It’s fine if you can’t tighten (them) , you just drive a new I one. You, he, was worse is he didn’t do that. J 你收唔到唔緊要，你打番口新呀嘛，你佢最衰佢又唔 J 打。 K 1017 Of course he didn’t drive (them). (If) he drives a screw in, that K will fucking, fucking scratch the wires. 佢緊係唔打啦，佢打口螺絲入去會整撚，整撚到啲電線 L L 會花。 M 1018 Maybe (he) was just afraid of fucking scratching the wires. M 驚整撚到啲電線啫可能。 N 1019 D1 He should have used a hammer to hammer it before N pushing (it) down, alas, (I) don’t know about him. 佢應該搵隻錘仔揼一揼佢先再打落去，唉唔知佢。 O O 1020 [Indistinct] use a strap to fasten it, quick and perfect. （聽不清）搵條索帶索撚住佢，快靚正。 P P 1021 D1 No, we, no. You see, (it) is falling out here too, alas, ‘Ah Q Yat ’(transliteration) will nag about (it) later. Q 無呢，我哋冇，你睇呢度又甩啦，一間呀一又講 R 1022 No, oh, yes R 無，哦，係喎 S 1023 D1 Damn it. S 你老母 T T U U V V  - 129 - A A B B This conversation was between two people. One of them was addressed as C ‘Ah Lun’. The voice of one of the speakers is the same as D1. In view of C the voice, the context and the location of the recording device, the only and D D irresistible inference is that one of the speakers was D1. E E E. Counters 1026 to 1073 F F Counter Speaker Contents G G Number 1026 [Radio sound] [indistinct] H H [對講機響聲]（聽不清） I 1027 See if go there or not. I 睇吓過唔過去囉 J 1028 D1 Over. Won’t go, won’t go. J 請講。唔過啦唔過啦。 K 1029 [Radio] ‘Lun Kwo ’(translation), it’s ’Wai Wai ’ K (transliteration), any phone to contact you? [對講機] 倫哥，維維啊，有無電話聯絡到你？ L L 1030 D1 Er…call T2, T2 M 誒⋯打 T2 、T2 呀 M 1031 [Radio] Copy that, thank you. N [對講機] 收到，唔該 N 1032 [Phone ringing sound] O （電話響） O 1033 D1 Good morning, yes. Mm, again, as usual, need to, er, er, (one P word indecipherable) anti-skid dressing. AB glue. P Er…yellow, black, white, water-soluble road mark paint. I don’t know, I don’t know if ‘Ah Pong’ (transliteration) has Q Q (one word indecipherable) or not. You, you, you better contact him. These are what I need the most now, and R then…. Well, you’ll be in great trouble then. R 早晨，哦，一樣照樣要誒誒揼鋼沙 AB 膠。誒⋯水溶性嘅 馬路漆黃色黑色白色，我唔知呀，我唔知呀邦揼咗未。你 S S 你你最好同佢聯絡吓，我而家最緊要需要呢啲嘢，然後⋯ 嗱，你就大檸樂啦咁就 T T U U V V  - 130 - A A B B 1034 D1 Fuck it. Ah, fuck. Listen, what I can answer you is that, er… I input ‘Shing Kwo ’(transliteration) in the list. I know that C ‘Shin* Kwo ’didn’t come in, you ask ‘Yam Kwo ’ C (transliteration) for (it). 我屌呀，呀，屌呀。嗱，我可以答你，誒⋯我入個 list 寫 D D 咗俾阿城哥嘅，我知道城哥無番，你問阿任哥攞 E 1035 D1 Oh, you give me ten minutes, wait until ‘Ah Yat’ E (transliteration) walks past, I, I’ll then get back to the office, I’ll check the list, I’ll tell you what’s (in) the list. Acrylic F boards, we used two boards these two days. You can order F (them) as usual.. Er, East sides, concerning the bunch of G screws which you have previously applied for, previously G bought, I don’t know if they have been all restocked or not, anyway, ‘Shing Kwo’ (transliteration) couldn’t give (them) H to me, just gave me a few, this fucking made me stuck at the H works all the time. Well, besides, er… and those ‘valves’ (one wrong written character, those, especially those I I flushing cisterns, do you know that those flushing cisterns always have broken arms, the pulls, the cistern pulls. Well, J er, workshop six, workshop six, AY, is it (do you) remember J that the old ones are used, with a string connecting to the head, once pulled, the kind with a cistern pull, remember? K Remember, right? Isn’t there, isn’t it designed in the way K with an arm, a very long arm for people to pull, yes, the L leverage arm is always broken. Will you see if there’s any L solution? 哦，你俾 10 分鐘我，等呀一行過咗，我我返寫字樓我睇 M 返個 list，我話俾你聽有啲咩 list。亞加力膠板我哋呢兩日 M 用咗兩塊，你可以照入，誒，另外仲有嗰堆螺絲啊。之前 N 你申請，之前有買，我唔知番晒定未番晒，總之阿城哥俾 N 唔到我，俾咗少少我，咁樣搞撚到我成日都做嘢都棘住 O 晒。咁呀，另外，誒⋯仲有啲水制啊，有啲，特別係嗰啲 O 水箱啊，你知唔知嗰啲水箱咪成日斷嗰啲臂嘅，拉手掣 啊、拉手水箱啊。呢誒六廠，六廠 AY 咪係記唔記得佢係 P P 用舊式嗰啲用繩吊住嗰頭，一拉，拉廁個隻，記唔記得。 諗到啦，嗰度咪，佢個設計咪裏面有條，一個臂嘅，有條 Q 好長嘅臂人扯嘅，係呀，槓桿嗰條臂咪成日斷，你睇下有 Q 無辦法。 R R 1036 D1 Alas, they, those bosses, made a fuss about the procurement I made previously. Find them, now, I don’t do procurement, S all those procured are either broken, or whatever, and what S I procured are too expensive they complain, the high- quality (stuff) procured don’t need to [Radio sound] T T U U V V  - 131 - A A B B 唉，我之前我買，佢班大哥又嗶哩吧啦，宜家好啦：我唔 買又全部買咗番嚟又唔係爛，又唔知咩嘢，我買又嫌貴， C 人哋買啲高質素唔洗（對講機響聲） C D D E 1037 D1 Fucking can’t stand them, I don’t know what they want (to E do). 怕撚咗佢哋，我都唔知佢哋會想點 F F 1038 D1 [Radio sound] Over （對講機響聲）請講 G G 1039 [Radio] ‘Lun Kwo ’(transliteration), [indistinct] ah, where are H you, which location? H [對講機] 倫哥，（聽不清）啊，你而家係咩位置啊？ I 1040 D1 I just got down to T2 I 我啱啱落到 T2 J 1041 [Radio] copy that, I’m coming over now. J [對講機] 收到，我而家嚟 K 1042 D1 Thank you, ‘Yip’ (transliteration). K 唔該晒葉 L 1043 D1 Hello [Beep sound], er… can go without R151, 151 is L expensive. Changed to a yellow, yellow, yellow, water- M soluble road mark paint. M 喂（咇聲），誒⋯可以唔要 R151，151 貴呀嗎，轉左水溶 性黃黃黃色嘅馬路漆㗎 N N 1044 D1 Then just go ahead, yes. I don’t, as for the anti-skid dressing, in fact, as far as I know, there are still a lot, er, O O Tong Fuk’s [indistinct], there is no AB glue instead, a batch of AB glue was bought, but probably still not enough, have P to further P 咁照落囉，係呀，我唔鋼沙其實我所知道誒塘福個（聽不 清）仲有好多嘅，反而係無 AB 膠啫，AB 膠買咗批，但 Q Q 係應該都仲係唔夠，仲要再 R 1045 D1 He has a new, new batch, you, you, he should have already R released a new one, have to 佢有批新新㗎你你，佢應該出咗張新㗎要 S S T T U U V V  - 132 - A A B B 1046 D1 I need to go back to have a look, will tell you afterwards, right? Er, well, second, talking about the flushing stuff just C now. In respect of the acrylic boards, you, I don’t know how C many you should order, you should think about (it). Instead, the other way round, the PVC blinds are more important. D D Remember the PVC blinds? It’s better for you to ask ‘Ho Siu-Fung’ (transliteration) to see if (you) need to order E (them). Look, those PVC blinds are with straps in winter E time normally. They, those young chaps set their PVC blinds, some, went missing, some said, not sure where (they) F went. F 我要返入去，睇完話俾你聽，好無。誒，咁啊第二就，頭 G 先講沖廁嗰啲嘢啦。亞加力膠板嗰度你，我唔知你入幾多 G 啊，你睇一睇啦，反而調返轉膠簾緊要啲。記唔記得有啲 膠簾啊，你問一問何少鋒睇吓使唔使入好過啦。呢，平時 H H 冬天啲膠簾會落索帶嘅。佢哋啲膠簾佢哋啲靚仔有啲又話 唔見咗、有啲又話唔知去邊 I I 1047 D1 This year, this, this year, what I learned is that no PVC blinds have been bought. You ask ‘Ho Siu-Fung ’ J J (transliteration) if (they) can be ordered. [indistinct]. If he says you can place (the order) as usual, then you just do so K by following the previous number. Check the number of K PVC blinds, then just take photos, right? Or, make further arrangement. Besides, the straps, well, ‘Lung Kwo ’ L (transliteration) promised to get six, give me six hundred L next week. Well, because all PVC blinds of the entire Ring M have to be strung with straps, those PVC boards. Well, he M has reserved six hundred straps for me, he, one PVC board takes at least like eight to ten straps. N 今年，今今年我收到嘅消息好似係未買過膠簾嘅，你問一 N 問何少鋒俾唔俾出（聽不清），如果佢話你照出啦，咁你 O 咪跟返上次嗰啲數做囉。搵返膠簾嘅啲數跟住咪影相囉。 O 吓嘛，或者再安排，另外索帶，就阿龍哥應承咗下個禮拜 六，六百條俾我。咁呀，因為成個環頭啲膠簾全部要落晒 P P 索帶啲膠板，咁佢預咗六百條俾我，佢一塊膠板都要成八 至十條 Q Q 1048 D1 Well, then, so, then, besides, is there anything else to take? 咁呀，所以，咁呀，另外仲有啲乜嘢嘢要攞 R R 1049 D1 Ah, ah, yes, (we) don’t need that much anti-skid dressing, just a little will do. S S 呀，呀，係，鋼沙唔使要咁多，要少少得啦 T 1050 D1 Yea, ten sets, OK. But more plastics is needed, plastics, ten T sets of plastics are needed, ten sets, ah, ah. U U V V  - 133 - A A B B 係呀，十 Set，好。但係膠要多啲喎，膠，膠要十 set 呀， 十 set，呀，呀 C C 1051 D1 Alright, alright, alright, besides, PVC blinds, PVC blinds, D PVC blinds, winter, urgent, the ‘foki’ (transliteration) must D be in a hurry. Well, besides, yes, those other trivial fittings, screws, those things, I don’t know if he has (them). In fact, E handles are the most important, you, you, pack more E handles from him. Because many of Ah Sir’s, those F handrails, those, all take many handles. F 好，好，好，另外，膠簾，膠簾，膠簾冬天急，啲伙記一 定急。咁阿另外，係囉，其他嗰啲濕聲配件螺絲嗰啲，我 G G 唔知佢有無。其實拉吧最緊要，你你同佢執多啲拉吧。因 為阿 Sir 好多嗰啲扶手啊嗰啲全部用好多拉把 H H 1052 D1 No, it’s not in inches, it’s in how many m, the size, you take some in 10 m, 10 m, yes, 10 m for me. Er…2-inch, 10 m I screws. I 唔係，佢唔係用寸㗎，佢用幾多 m 㗎個 size，你同我攞啲 J 十 m 呀，十 m 係 十 m。誒⋯兩吋十 m 螺絲 J 1053 D1 Ah, you give me a second. ‘Ah Cho’ (translation), are 2-inch K enough for those 10-m handles, or 4-inch instead? K 呀，你等我一陣，呀咗呀，兩吋夠唔夠十 m 嗰啲拉把定 四吋呀？ L L 1054 2-inch? 兩吋呀？ M M 1055 D1 Are 2-inch enough, or 4-inch instead? N 兩吋夠唔夠定四吋呀？ N 1056 Just 2-inch, (it) doesn’t matter. O 兩吋囉，冇所謂 O 1057 D1 No, is it enough for you to make, make the handrails? P 唔係，你打打扶手夠唔夠？ P 1058 [indistinct] the deeper, the better. Q （聽不清）越深越好嘅 Q R R S S T T U U V V  - 134 - A A B B 1059 D1 4-inch, 3-inch or 4-inch, just in between, either either 3-inch or 4-inch [“: 3-inch]. 10 mm, you work it out using the C remaining amount. Besides, also, what’s that called? Hex, C hex head, ‘self-tapping’ (two wrong characters) screws in hexagonal head. Hexagon shaped head ‘self-tapping’ (two D D wrong characters) screws. Huh, huh, er, one pack, er, hey, how many are needed, hex, those ‘self-tapping’ (two wrong E characters) screws in Hexagonal head? E 四吋啦，三吋或者四吋啦，中規中矩啊，三吋四吋是但一 樣（ ？：三吋呀）。 十 mm，你攞條尾數做啦。另外，仲 F F 有嗰啲叫做六角、六角模、六角模嘅子宮螺絲。六角形嘅 模子螺絲。嗄嗄，誒一包囉，誒，喂，要幾多啊， 六 G 角 ， 六角帽嗰啲子宮螺絲？ G 1060 [indistinct] went up to play basketball H H （聽不清）上咗去打籃球啊 I 1061 Just take one pack. I 攞一包囉 J 1062 D1 One pack then, probably 100 of them in a pack, probably. J 一包囉，一包應該一百口嘅應該 K 1063 Er, two four zero right nine three K 誒二四零八九三 L 1064 D1 This time, you say, say, where was fixed last time? Oh, then L fix workshop six this time. 今次你咪講，上次係講整邊度啊？哦，咁今次係整六廠 M M 1065 Er… strike the iron, ah, not strike the iron; use a straight jaw to N strike the iron N 誒…打鐵呀，呀唔係打鐵呀，用直口打鐵 O 1066 D1 Okay, alright, four, okay, okay, okay, okay O 得、好四、得得得得 P 1067 D1 Okay, that’s okay, let’s talk about it again if he has any P needs, just to collaborate. 得，可以嘅，如果佢有咩需要再溝通呀，大家合作啫 Q Q 1068 D1 Besides, you are going to fill in for me this afternoon? You know, something happened to my wife. R R 另外，你下晝係咪頂我，我老婆出咗事呀嘛 S 1069 D1 Yes, yes, that means no one. Right, who can fill in for me? S 係、係，咁啫係無人，係囉，有邊個頂我呀？ T 1070 D1 I’ll ask first, huh, I’ll ask first, I’ll see T 我問一問先，嗄，我問一問先，我睇 U U V V  - 135 - A A B B 1071 D1 No, she, the entire industry can no longer work. It’s verbally said two thousand (staff members) were fired, but in fact C almost all were fired. Cathay Pacific fired - we counted the C people (we) know, only takes like ten percent, around ten percent, ten, twenty percent staying. But those who stay are D D all single. We suspect that group, in the other way, round, will still get fired, just that the matter is, those are single, E right? Well, (they) have no burden. He/she wants to keep E them, because. He/she has to do some calculations to settle the payment. Well, we, this group is a big one, right? Then F the next group is probably not small. Because the second F group is, isn’t now that there’s the second tranche of G something - something - Employment Support Scheme? G After the second tranche ends, together with the whatever, if also considering the situation now, even if the economy H gets a little bit better later on, definitely, there’ll be not H much improvement for sure. Then Cathay Pacific (can) find I some excuses (one wrong character), (saying) no good, then I just fire people if no good. 無喎、佢通行都冇得做㗎啦。佢把口就話炒兩千呀嘛，實 J 質就差唔多炒晒呀。國泰炒，我哋數埋識嘅人都得嗰一 J 成，一成度囉，一兩成度留低，但係留低嗰啲全部都係單 K 身嘅。我哋懷疑嗰班調返轉都係要炒嘅，只係個問題係嗰 K 班單身呀嘛，咁阿無負擔呀嘛。佢想留低佢哋，因為佢要 計條數找數呀嘛，咁我哋呢批係大㗎嘛，咁應該下一批唔 L L 會細。因為第二批係，宜家咪咪有第二批咩咩保就業計劃 嘅，第二批完咗之後再加埋咩，如果再加埋宜家個情況， M M 一定遲啲經濟就算好番少少都冇乜起色㗎啦肯定，咁然後 國泰啊搵藉口呀唔掂，咁唔掂咪炒人囉 N N 1072 D1 Yes, instinct. Okay. You’re just in the office, right? I’ll call you, I’ll call you. O 係直覺，得啦，你係寫字樓啫，我打俾你啊，我打俾你啊 O 1073 D1 Huh, mm, bye bye. P 嗄，嗯，拜拜 P Q Q This was clearly a telephone conversation where the words of the voice of R the person on the other end of the line cannot be heard. The voice is the R same as D1’s voice. Having regard to the voice, the context and the location S S of the recording device, the only and irresistible inference is that the T speaker was D1. T U U V V  - 136 - A A B B F. Counters 1074 to 1097 C C Counter Speaker Contents D Number D 1074 D1 Ah Sir, good morning. E 呀 Sir，早晨 E 1075 Good Morning F 早晨 F 1076 D1 (It) went well? Good morning, CMO, thank you sir G 順利呀？呀早晨，CMO，唔該 Sir G 1077 Good morning, ‘Lun Kwo ’(transliteration) H 早晨，倫哥 H 1078 D1 Good morning [Noise] I I 早晨呀。（雜聲） 1079 D1 What’s up? J J 乜料啊？ K 1080 D1 If I really open the stall, about opening the stall, if that guy K says not to chip in, I’ll find you then. 如果我真係開檔，開檔嗰度，嗰條友唔夾嘅話，到時候 L 我先搵你啦 L 1081 Who? M M 邊個？ 1082 D1 The one who previously said running a vehicle repair N N workshop, running a motor vehicle repair workshop. 之前話做車房，做流動車房嗰個 O O 1083 Mm, mm, okay, no problem. 哦哦，得啦，冇問題 P P 1084 D1 If he doesn’t chip in, then the other way round, you take it as injecting capital For ‘Ah Ki ’(transliteration) to Q operate. Q 如果佢唔夾，調返轉你當注資俾阿褀做囉 R R 1085 If he works with heart, then of course, no problem. 佢有心做緊係冇問題啦 S S 1086 D1 You talk to him first. 你同佢溝通吓先啦 T T 1087 I will, I will. 我會我會 U U V V  - 137 - A A B B 1088 ‘Shing Kwo’ (transliteration) 勝哥 C C 1089 D1 Ah ‘Shing Kwo’ (transliteration) [Noise] 呀勝哥（雜聲） D D 1090 [Indistinct] ah, these are dirty （聽不清）⋯呀呢啲污糟 E E 1091 D1 There’s nothing can be done, these, water-based, not oil- based F F 無辦法，呢啲水性呀，唔係油性 G 1092 Getting dirty and messy when placed for a while. G 擺一擺就污糟辣撻 H 1093 D1 There’s the difference, that’s why. You get what you pay H for. 有分別囉，所以咪。一分錢一分貨。 I I 1094 Ah, wash the tools, ah, over to you. [Noise] 呀、洗架餐，呀，交俾你啦（ 雜聲 ） J J 1095 Ha, ha, ha, ha. Run for another two laps…[indistinct] What 哈哈哈哈，再跑番兩個圈⋯（聽不清），咩啊？ K K 1096 Forty two forty three…[indistinct] L 四呀二、四呀三⋯（聽不清） L 1097 [Indistinct] first. M （聽不清）⋯先 M N The name ‘Lun Kwo’ was mentioned, the voice of the person who N O responded to this address is the same as D1. In view of the voice, context O and the location of the recording device, the only and irresistible inference P P is that the above words were spoken by D1. Q Q G. Counters 1098 to 1123 R R Counter Speaker Contents S S Number 1098 D1 Yes, ‘Wai Wai’ (transliteration), you’re looking for me? T T ‘Lun Kwo’ (transliteration). 係呀維維，你搵我呀？倫哥 U U V V  - 138 - A A B B 1099 D1 Yes, what’s up? (It’s) not relevant, I’ve just arrived, just didn’t open the door in time, I (two characters C indecipherable), yes, yes. C 係點啊、唔關事，我啱啱到，開唔切門啫，我古根，係 D 呀係呀 D 1100 D1 You, give me a second to check first, 10-mm, handles, E screws, yes, right, you already ordered. Enough thread seal E tapes for you guys? 你等我一陣，睇睇先，十 mm 拉把螺絲，係呀啱呀你入 F 咗啦。水喉膠布應夠唔夠你哋？ F 1101 D1 (I) don’t know. I wrote down the materials, (these) are G G what are needed, five rolls of thread seal tapes, three packs of cement are needed, he gave me one pack yesterday, four H - I really don’t know, so what’s of the worst quality is - 0.5- H inch ‘elbow’ (one wrong character), 0.5-inch ‘female’ (one wrong character), hand fittings, five bottles of silicone glue I are needed, ‘self-tapping’ (two wrong characters) screws I are ordered already. Cutting down one inch and a half of J some of the extra wires, steel screws, number six, ten wash, J hand washing taps, those crossed (two indecipherable characters) ones are needed, do you know which one? You K can come down to take a photo, ten, handwashing taps, K basin taps are needed. L 唔知。我寫咗物料就係要呢啲，水喉膠布五卷，英泥要 L 三包，佢俾咗一包我琴日，四，我真係唔知呀，所以就 係最水皮係四分藍曲、四分內瓦、手抽配件、玻璃膠要 M M 五枝，子宮螺絲入咗啦。有啲剪接線收寸半六號瓦螺 絲，洗洗手龍頭呀，十隻、要十字塘橫個隻，知唔知邊 N 隻。你可以攞落嚟影幅相嘅，要十隻，洗手龍頭、洗手 N 盆龍頭 O O 1102 D1 Not the one in Crystal, remember, er, no, remember, er, what’s the dorm right above workshop five? Dorm J is P above workshop five, not dorm J, ah, dorm J. Remember P once repairing the leaks in dorm J? Remember that shower valve being a crossed (two indecipherable characters)? (Do Q you) remember, recall that? Q 唔係水晶嗰隻，記唔記得誒唔係，記唔記得誒五廠對上 R 嗰嗰係咩倉。五廠對上嗰係 J 倉呀，唔係 J 倉，呀 J 倉， R 記唔記得 J 倉做有次漏水呀，記唔記得嗰個沖涼制係十 字塘橫，記唔記得，有無印象？ S S 1103 Flathead screwdrivers are not needed either T 一字批都唔洗 T U U V V  - 139 - A A B B 1104 D1 Yes, (it) doesn’t matter, if that’s the case, I’ll ask ‘Luk Tau’ (transliteration) to take (it) next time, no, ask ‘Luk C Tau’ (transliteration) to take the crossed (two C indecipherable characters) up there when it’s time to eat. You can have a look. D D 係、唔緊要，如果係嘅下次我叫阿六頭攞，呀唔係，食 飯時候叫六頭攞十字糖橫上去。你可以睇一睇。 E E 1105 Which three are here? 有邊三個係到呀？ F F 1106 D1 I know, paint rollers, you order paint rollers for me, er, 3- inch small paint rollers. G 我知道，油碌呀、你同我入油碌呀，誒三寸細油碌 G 1107 ‘Tsang Sai-wing’ (transliteration) H H 曾世榮 I 1108 D1 You just order for me as well, take as many as there are, I er, order one hundred, 3-inch small paint rollers. 你都照同我入呀，有幾多攞幾多，三吋細油碌要誒一百 J 個呀 J 1109 D1 Huh? Ten a row, he sells in rows, yes, three hundred, don’t K K even have three hundred dollars? You just handle (it) for me if there’s any. L 吓，一排十個，佢一排排計呀，係，三百啦、三百蚊都 L 無呀。如果有幾多、你同我搞啦 M 1110 D1 (Two indecipherable characters) changed to anti-skid M dressing plate, drill bits, those things are not relevant, yes, these are needed. Mm, yes, yes, mm, mm, mm, mm, okay, N N okay, then don’t order the crossed (two indecipherable characters) first, I’ll approach whatshisname. That is, at O the end, find you again, need me again. Find you and me O again to do it. Said previously that was not a good idea, should be handled by the works. Now, at the end, huh, fuck, P fucking go to hell, actually, actually (it’s) you know. Fuck, P I already asked ‘Ah Pong’ (transliteration) to do (it), ‘Ah Q Pong’ (transliteration) must have fucking stopped (it) Q again. Well, well, everybody knows what has happened. ‘Ah Pong’ (transliteration) ordered once, but after that, R stopped up to now, I believe that he didn’t order. Second, R that time he ordered, (he) probably has fucking gotten into S trouble, not all were ordered. S 牛角轉鋼沙板，轉咀嗰啲唔關事，係囉，要呢啲呀。 嗯、係、係、嗯、嗯、嗯、嗯、好、好，咁咁個十字塘 T 橫唔好入住啊，我再搵呀咩。啫係最後尾咪又係要搵 T 你、又係要我。又係搵返你同我做。之前又話唔好，要 U U V V  - 140 - A A B B works 做。宜家最後尾，嗄，屌、好撚仆街呀，根本根本 就咩嘢。屌，之前我已經叫呀邦做，呀邦又停撚咗啦肯 C 定。咁咁大家知發生咩事啦。呀邦入咗一次，但入咗之 C 後停到宜家，我相信佢無入。第二樣嘢，佢入嗰次，應 D 該都係賴撚咗嘢，未入晒 D E E F F G G H H I I 1111 D1 Because, he, er, I don’t know, I don’t know, okay, okay, J okay, got to go, bye. J 因為佢，唉，我唔知，我唔知，好好好，唔講啦，拜 K 1112 D1 Good morning, Sir, it’s ‘Ah Lun’ (transliteration). Just K now, ‘Ah Yat’ (transliteration), at the anti-skid dressing L area, (3 indecipherable characters). Well, he told me… L 早晨 sir，呀倫呀，頭先呀一係誒鋼沙嗰度誒接咗殺，咁 佢同我講咗⋯ M M 1113 [Radio] [indistinct] [對講機] （聽不清） N N 1114 D1 Then I’ll follow his rules 哦咁我跟番佢啲規矩得啦⋯ O O 1115 [Radio] Over. P [對講機] 請講。 P 1116 D1 Follow his… Q 跟返佢個⋯ Q 1117 [Radio] [indistinct] R [對講機] （聽不清） R 1118 [Radio] er, haven’t, haven’t, for the time being S [對講機] 誒暫時未有未有 S 1119 D1 He will, confirm in November, still so serious, he’s really T very serious. Okay, let’s talk again later. T U U V V  - 141 - A A B B 佢十一月 confirm㗎啦喎，仲咁認真，佢真係好認真啊， 好啦再傾 C C 1120 D1 ‘Wai Wai’ (transliteration), have you seen ‘Lung Kwo’ D (transliteration)? D 呀維維呀，你有無見過呀龍哥啊？ E 1121 D1 In which location? E 喺邊個位置？ F 1122 D1 Centre Division, I can’t reach him even after calling many F times. G 水飯房，我打極都搵唔到佢 G 1123 D1 (I) see, you make a call to ask (about it). He’s now in the H office, 128. Right, no, I don’t goddamn know, you, you ask, H look, I’ll ask, I’ll ask, do you want me to ask? Yes, okay, mm, bye [Noise] I 哦，你打去問一問啊，佢而家係寫字樓呀 128。係呀，無 I 呀，我鬼知咩呀。你你問啦，呢我問啦我問啦，你係咪 J 想我問啊，係啦，好啦，嗯，拜(雜聲) J K K There was basically only one person speaking. The speaker identified L himself as ‘Lun Kwo’. His voice is the same as that of D1. In view of the L voice, the context and the location of the recording device, the only and M M irresistible inference is that D1 was the speaker. N N H. Counters 1124 to 1236 O O Counter Speaker Contents P P Number 1124 D1 Joe ‘Kwo’ (transliteration), it’s ‘Ah Lun’ (transliteration) Q Q from CMO Joe 哥呀，CMO 呀倫呀 R R 1125 D1 Oh, you’re asking? Oh, okay. [Noise] 哦，我問緊呀，哦，好（雜聲） S S 1126 D1 I’m looking for ‘Luk Tau’ (transliteration) 我搵阿六頭 T T U U V V  - 142 - A A B B 1127 ‘Luk Tau’, Luk Tau’ (transliteration), ‘Lun Kwo’ (transliteration) is looking for you. C 六頭、六頭，倫哥搵你 C 1128 D1 ‘Luk Tau’ (transliteration) D 六頭 D 1129 D3 What? E E 咩啊？ 1130 D1 I’m coming in F F 我入嚟 G 1131 D3 Talk G 講呀 H 1132 D1 I’m coming in H 我入嚟 I 1133 D3 Who is it? I 邊個嚟㗎 ？ J 1134 D1 (It’s) me, ‘Lun Kwo ’(transliteration) J 我呀，倫哥 K 1135 D3 Huh? K 吓？ L L 1136 D1 ‘Lun Kwo’ (transliteration) 倫哥 M M 1137 D3 Oh 哦 N N 1138 D1 You know, wow, you brat. Get further in, further in. [Closing door sound] O 你依家，哇你個死仔。入啲，再入啲（關門聲） O 1139 D3 (It) can be used again now, (I’m) so confused. P P 依家又用到喎喎，𢲷哂頭 1140 D1 Huh? Q Q 下 R 1141 D3 (It) can be used again now. R 依家又用到喎 S 1142 D1 Can (it) be used now? S 用唔用到呀依家？ T 1143 D3 (It) can be used now, couldn’t be used just earlier, (I) don’t T know what (happened). U U V V  - 143 - A A B B 依家未用到，啱啱又用唔到，唔知點 C C 1144 D1 (It) can be used now. D 依家咪用到囉 D 1145 D3 Now (it) can be used, (I) don’t know why there was no signal E just earlier, (it) didn’t work the whole - whole time, but just E works now. 依家用到啫，啱啱冇訊號呀嘛唔知點解喎，成成日都唔 F F 得㗎喎，係啱啱先得咋喎 G 1146 D1 There is, now. G 有啦，佢依家 H 1147 But H 但係 I 1148 D1 That means, (that’s) not relevant. I 咁即係唔關事啦 J 1149 D3 But all the same. J 但係照問一問先囉 K 1150 D1 Wow, so fucking tiny, so fucking cool, have never really K 哇咁撚細嘅，咁撚有型嘅，真係未 L L 1151 D3 I assembled (it) on my own. 自己砌 M M 1152 D1 Have never fucking seen (one). 未撚見識過 N N 1153 D3 I assembled (it) on my own. Asked [indistinct] to bring (it) in for me after assembling O 自己砌㗎，砌完之後搵（聽不清）叫幫我攞入嚟 O 1154 D1 How to assemble, assemble (it), so tiny? P P 點樣砌㗎，砌到咁細隻 1155 D3 (It) has no brand, (I) assembled (it) on my own, assembled (it) Q Q with the mainland goods. People like us have ways, chill out, boss. R 無牌子㗎嘛，自己砌㗎，係大陸貨砌番嚟㗎嘛。我哋呢 R 啲有呢啲路㗎嘛，定啲嚟啦老細。 S 1156 D1 Wow, (it’s) really tiny, really tiny. S 哇，真係好細，真係好細 T T 1157 D3 Won’t be known at all. What’s up, anything you want from me? U U V V  - 144 - A A B B 根本就唔知。點呀，有嘢搵我呀你？ C C 1158 D1 I just came to see if your card works 我就係睇吓你張卡掂唔掂 D D 1159 [Indistinct]…food, vehicles [indistinct]…location…[indistinct] E （聽不清）⋯伙食車輛（聽不清）⋯位置⋯（聽不清） E 1160 [phone ringing sound] F （電話響） F 1161 D1 Yes, CMO, yes G G 係，CMO，係 H 1162 D1 Fuck H 我屌 I 1163 D1 Fuck, he’s so fucking bloody, lazy, really I 我屌，佢懶撚到仆街呀真係 J 1164 D1 Believe, you ask ‘Ah Yam’ (transliteration), call, ‘Ah J Yam’ (transliteration), no, have you called him? 信，你問呀任呀，call，呀任，唔係你有冇 call 過佢先 K K 1165 D1 Oh, not you who make the call, you call him to ask if, if there was any order, er, two eight two, to take the PVC L L blinds, you ask him directly that way. If he says no, then, then you can place the order, alright? M 哦，唔係你打電話，你 call 番聲問一問佢，有無，有無 M 出過誒二八二攞膠簾，你直接咁問佢，佢話冇喎，咁咁 N 你咪可以出囉，好無呀？ N 1166 D1 Er, then you really have to wait for ‘Ah Yam’ O (transliteration). Wait, okay, okay, okay, okay, bye O 誒，咁呀你真係要等下呀任喎，等呀，好，好，好， 好，拜 P P 1167 D1 [Radio sound] Over （對講機響聲）請講 Q Q 1168 [radio] [indistinct] R [對講機]（聽不清） R 1169 D1 Six, six, please. S 六個，六個，唔該 S 1170 [Radio] Six, copy that, thank you. T [對講機] 六個，收到，唔該晒 T U U V V  - 145 - A A B B 1171 D1 Wow, voice so fucking soft [Beep sound] this microphone. 嘩，好撚細聲喎（嘟聲）呢個咪頭 C C 1172 [Indistinct] （聽不清） D D 1173 Huh? 吓 E E 1174 [Indistinct]… cut already （聽不清）⋯ cut 咗呀 F F 1175 [Phone ringing sound] G （電話響） G 1176 D1 Yes, good morning, CMO, yes, yes, oh, nothing, just want H to ask, er, hey, those water taps used before, didn’t I use H up a few for you then, those in the garden? The young chaps now, again, want to get some, I want to ask if you I have those things? I 係，早晨 CMO, 係，係，哦無嘢，多口問句，誒喂嗰 J 啲，之前用嗰啲水喉頭呢，嗰陣時我咪幫你頂咗幾個 J 嘅，花園嗰啲呀，宜家班靚仔又想𢲷呀，我想問吓你有 無嗰啲咁嘅嘢呀？ K K 1177 D1 Did you buy (them)? L 有無買過呀？ L 1178 D1 At that time, I was supervising, you, you mean OP, those M things? OP…O… M 嗰陣時我指揮啫，你你意思係 OP 嗰啲呀？OP⋯O⋯ N 1179 D1 Yes, because the young chaos in Ha Wai, cool fan (and) N ‘Kin Kwo’ (transliteration) said (they) want two, well, there aren’t (any) as well. O O 係，因為下圍啲靚仔，呀 cool fan 健哥話想要兩隻，咁 又係無囉 P P 1180 D1 ‘Chi Fai’ (transliteration) ordered, that a great chance that (he) has (some) at his side? I don’t even know what Q he, ‘Chi Fai’ (transliteration), is doing now. I hardly see Q him, he said (he) handled the works, but he was never seen R when works were (conducted). Don’t know what he’s R doing. 子輝入，佢嗰邊好大機會有呀？宜家子輝佢做咩我都唔 S 知，我成日都見唔到佢，佢把口就話做 works，但係永 S 遠 works 都見唔到佢，都唔知佢做咩嘢 T T U U V V  - 146 - A A B B 1181 D1 (It’s) actually very confusing. Second, have (you) seen ‘Lung Kwo’ (transliteration)? [Indistinct] that side? I C have, I have seen him, but no one answered when I made C calls just now, so just ask. Oh, then fine, er, no, just mainly asked you this, because, because, (it) was brought up D D yesterday, yesterday, so I, just let you know. Yes, alas, I do think these things are sometimes, very troublesome. E But ‘Chi Fai’ (transliteration) ‘ordered’ (one wrong E character) for you guys at that time. No. 其實好亂啊。第二樣嘢，呀見唔見呀龍哥呀，（聽不 F F 清）嗰邊呀，我有我有見過佢，不過我頭先打去無人聽 咋嘛，問起，哦，咁得啦，誒無呀，最主要問你呢樣嘢 G 啫，因為因為，琴日琴日提起，我早少少同你講聲，係 G 囉，唉我就係覺得好煩有時呢啲嘢真係。但係嗰時呀子 H 輝掟咗俾你哋，無 H 1182 D1 Yes. That is, bought by ‘Lung Kwo’ (transliteration). I 係呀，啫係阿龍哥買嘅 I 1183 D1 Yes, yes, yes, oh then, fine then, I’ll look into it later on, I, J I, I’ll tell ‘Kin Kwo’ (transliteration) first. Tomorrow, J right? K 係，係，係，哦咁樣，咁得啦，我稍後再了解吓，我我 K 我同阿健哥講咗先，聽日呀嘛，係嘛 L 1184 D1 Yes, yes, er, garage, is it ‘Tai Hau’ (transliteration)? I’ll L call him to tell him (that). That is, there will be three carts for him at eleven o’clock, okay, I’ll tell him (that), okay, M good. M 係，係，誒車房係咪呀大口呀，我打俾佢同佢講呀，啫 N 係十一點會有三板車俾佢，得我同佢講聲，得，好 N 1185 D1 Good morning, ‘Tai Hau Kwo’ (transliteration), yes, I’m O ‘Ah Lun’ (transliteration) from CMO. Hey, did Joe O contact you, saying that there will be three carts of wooden boards coming tomorrow? P P 早晨，呀大口哥，係呀，我係 CMO 呀倫呀，喂呀 Joe 有 無聯絡過你呀，話聽日咩有三版木板番 Q Q 1186 D1 Right, did (he)? 係呀、有無呀？ R R S S T T U U V V  - 147 - A A B B 1187 D1 (He) did. Because, the situation is that I don’t know whether I’ll come in tomorrow, I have something (to take C care of), but I’ll hand over (the work), well, but, I just let C you know, OK? Well, in fact, there’ll be three carts tomorrow, with, with two hundred planks, OK? One D D hundred of them, in fact, have to be put into the cement stockroom, that is, where the cement stockroom is cleared E when the rubbish is dumped. E 有呀，因為個情況，聽日我唔知返唔返，我有啲事，咁 但係我會交低咗嘅，咁但係我都同你講聲先， OK， F F 嗱，其實聽日嗰度呢三板車啫，有有二百塊床板， OK，有一百塊呢其實要入英泥倉嘅，啫係平時倒垃圾 G 係咪要清英泥倉嗰度 G 1188 D1 Yes, yes, one hundred pieces go to that place, the other one H H hundred pieces go to CMO. 係啦係啦，嗰度要攞一百塊，另外一百塊就要落去 I CMO 個度 I 1189 D1 Yes, yes. That’s it, just to let you know. J 係啦係啦。就咁樣嘅，咁你得個知字。 J 1190 D1 I don’t know yet, because, now, I still don’t know. Because K my wife, something happened to my wife, ah, ah. Oh, I’ll K also tell my young chaps about (that), my young chaps will L tell the superior who takes over tomorrow when they get L to work. Alright? Thank you so much, okay, thank you. [Noise] M 我未知，因為宜家我都唔知，因為我太太，我太太有啲 M 嘢，呀呀，哦，我都會同我啲靚仔講嘅，我啲靚仔會同 N 聽日返工接頭老細講嘅。好無呀，唔該晒，好唔該（雜 N 聲） O 1191 D1 ‘Luk Tau’ (transliteration). O 呀六頭 P 1192 D3 Who’s this? P 邊個 Q Q 1193 D1 (It’s) me, your boss, what is to be afraid of? Your boss can’t do anything. R 我呀，你老細怕乜，你老細乜都得㗎啦 R 1194 D3 No, I was just wondering who this is. S 唔係，我以為邊個啫 S 1195 D1 What are you doing? T 有咩搞呀你 T U U V V  - 148 - A A B B 1196 D3 Nothing, (I was) just thinking to look for ‘Ah She’ (transliteration) for chit-, chit-chatting. C 無嘢搞呀，啱啱諗住搵阿蛇吹吹緊水咋嘛 C 1197 D1 Wow, (it) can be connected to the Internet? So fucking D cool. D 嘩乜上到網嘅咩，咁撚勁嘅 E E 1198 D3 Here? 呢度？ F F 1199 D1 Yes. 係呀 G G 1200 D3 There is, is Wi-Fi 有有 Wi-Fi H H 1201 D1 Can this be shared, shared or not? 呢個 share 唔 share 到？ I I 1202 D3 Of course not. 梗係唔得啦 J J 1203 D1 No, (it) can be shared. Can your phone be connected to the Internet? K K 唔係喎， share 到喎，你個電話有冇上網？ L 1204 D3 Surfing the Internet, how to surf, there’s no website address, L not here. I just assembled this device on my own, (it) can’t be connected to the Internet, dumb. No, (it) can’t be connected M to the Internet. M 上網喎，點上呀，無網址呀，無㗎呢度，呢部我砌出嚟 N 㗎咋，唔會有上網㗎，傻佬，無㗎唔會有上網㗎 N 1205 D1 Really? O 係咩？ O 1206 D3 This thing is, just clicking the (buttons) below. (It) can’t be P connected to the Internet, these kind of device doesn’t have P (such function), (it’s) a mainland device, can’t you see? Just for clicking, (it) was only assembled (by pieces). Q Q 撳下面咋嘛呢個嘢係，唔會有上網㗎，呢啲機係唔會 有，大陸機嚟㗎，你見唔到咩，撳嘅咋嘛，砌出嚟咋嘛 R R 1207 D1 You rock, can even assemble (this). 咁好嘢，咁都俾你砌到 S S 1208 D3 (I can) Assemble one for you if you want. 你又想用咪幫你砌部囉 T T U U V V  - 149 - A A B B 1209 D1 Fucking nuts, (I have) many good stuff to use, what’s the need. C 黐撚線，大撚把好嘢用啦，洗咩 C 1210 D3 No need. The (reason) why I assembled (this) is to facilitate D doing things, because (it) can’t be tracked, because inside this D device, there’s no, no those numbers, no codes, do you E understand (that)? That is, (it) has no the, the so-called …(one E indecipherable character), no, all are, all are those, those, er, impossible, won’t have those - anyway, that is, very safe. F 唔洗呀，我點解要砌呢，就係因為方便做嘢，因為追唔 F 到 因為呢部機入面呢係無嗰啲 Number 嘅無 code 嘅呢 G 個，你明唔明呀，即係無咩咩所謂嘟啊，無嘅，全部都 G 係，全部都係啲啲啲誒冇可能，唔會有嗰啲呢，總知 就，即係好穩陣㗎 H H 1211 D1 You brat. I 你個死仔 I 1212 D3 Of course (I) have ways, anything to help you…[indistinct] J 梗係有呢啲窿路㗎啦，有咩嘢可以幫到你⋯（聽不清） J 1213 D1 Nothing, just be good. K 無啊，你乖乖地啦 K 1214 D3 Call ‘Ah Ki’ (transliteration), that mother fucker must be L sleeping. L 打俾阿褀，屌佢老母喺度瞓緊覺一定 M 1215 Just wait M 等等啦 N N 1216 D3 To talk about what you told me. 商量你同我講嗰啲嘢 O O 1217 D1 Okay, you, handle (it) later, be good, stay low-key. 得啦你再搞啦，乖乖哋，低調啊 P P 1218 D3 You’re leaving now? 走啦咩你宜家？ Q Q 1219 Leaving what? Not yet. 走咩啫，未啊？ R R 1220 Oh, not yet. 哦，未呀 S S 1221 D1 I want to, will tell you later, about those things tomorrow. T 我想同你，轉頭先講啦，聽日嗰啲嘢 T U U V V  - 150 - A A B B 1222 [Indistinct] （聽不清） C C 1223 D1 I’ll tell you in a while. Brett, always hiding inside, watching TV. [Noise] D 我轉頭先同你講啦，死仔成日匿埋喺裏面睇電視（雜 D 聲） E E 1224 D1 Er… ‘Ah Cheuk’ (transliteration), help me with a few things. F 誒⋯呀雀呀，幫幫我幾樣嘢 F 1225 [Phone ringing sound] G （電話響） G 1226 D1 Good morning, CMO. 2-inch for the hex head screws, huh, H fine. Huh, huh, huh, huh, huh, huh, okay, mm, okay, bye H 早晨，CMO，六角螺絲要兩吋呀，嗄。得啦，嗄，嗄， I 嗄，嗄，嗄，嗄， 好、嗯、好，拜 I 1227 D1 Ah Cheuk’ (transliteration), can (you) affix the double J side tape on these for me, or was it already affixed? When J (you) go up there later on, apply (them) on all the guard kiosks for me. [Noise] K K 呀雀，呢啲可唔可以幫我癡雙面膠紙，定喺癡咗㗎啦本 身，轉頭行上去嘅時候幫我癡晒啲更亭佢（雜聲） L L 1228 D1 Affixed or not? These are the double side tape. 有無癡呀，呢啲係雙面膠呀 M M 1229 [Radio] [Radio sound] Hello [indistinct] ‘Kwo’ (transliteration), [indistinct] ‘Kwo’ (transliteration). N [對講機]（對講機響聲） 喂（聽不清）哥（聽不清）哥 N 1230 Help affix the double-side tape O O 幫手痴咗啲雙面膠去呀 1231 [Radio] [Indistinct]…(I) forgot to tell you just P P now…[indistinct] do the cleaning down in the sandpit, so now…[indistinct] ‘Kwo’ (transliteration) will help you first, Q sorry. Q [對講機]（聽不清）⋯頭先唔記得同你講啊⋯（聽不 清）落去沙地嗰度呢做清潔，咁呀宜家（聽不清）⋯哥 R R 幫住你先唔好意思。 S 1232 [Radio] Copy that, copy that. [Beep sound] S [對講機] 收到收到（嘟聲） T T U U V V  - 151 - A A B B 1233 D1 Good morning, ‘Lung Kwo’, ‘Lung Kwo’ (transliteration), I’m ‘Ah Lun’ (transliteration) from C CMO. Is there any phone to reach you? C 早晨呀，龍哥龍哥，我係 CMO 呀倫呀，有無電話可以 D 聯絡到你呀 D 1234 [Radio] ‘Ah Lun’ (transliteration), I know your place, I’ll E come over later…[indistinct]. The thing this afternoon should E be fine (I) think. Well, I’ll give you a call later, I went down there, the gateway, there, to settle something first [beep F sound]…[indistinct] let’s talk again later. F [對講機] 呀倫呀，我知道你嗰個地方，我稍後時間嚟⋯ G （聽不清），今日下晝嗰單嘢應該無問題嘅，咁呀我淨 G 間俾電話你呀，我落咗去下邊⋯關口嗰度搞啲嘢先（嘟 聲）⋯（聽不清）再同你傾 H H 1235 D1 Hey, thank you ‘Lung Kwo’ (transliteration), thank you I for understanding. I 喂，辛苦晒龍哥，多謝你體諒呀 J 1236 [Radio] Clear, clear. [Noise] J [對講機] 清晰清晰。（雜聲） K K During the most part of this recording, there were only two people speaking L L to each other face to face. One of the speakers repeatedly identified himself M as ‘Ah Lun’ from CMO. In the light of the voice and the location of the M recording device, the only and irresistible inference is that this speaker was N N D1. This speaker also asked to see ‘Luk Tau’, which was D3’s nickname. O The voice of the ‘Luk Tau’ in the audio-recording is the same as D3’s voice O when he gave evidence in court. The only and irresistible inference is that P P this ‘Luk Tau’ was D3. Q Q Ownership of the Seized Telephone R R S 260. The Defence argued that there was no evidence to show that S D3 was the owner of the seized mobile telephone. In cross-examination, T T the CSD witnesses were criticized by the Defence for they failure to U U V V  - 152 - A A B B investigate the ownership of the seized mobile telephone. This stance C wholly disregards the wording of Charges 1 and 2 and the real issues in C these proceedings. D D E 261. The particulars of Charges 1 and 2 are as follows: E F F Charge 1 G G (D1) and (D3) between the 16th day of July 2020 and the 23rd day of H H October 2020, both dates inclusive, in Hong Kong, conspired together for I the said (D1) while being a public official, namely the Assistant Officer I I of the Correctional Services Department of the Hong Kong Special J J Administrative Region, holding the post of Officer-in-Charge of the K Construction and Maintenance Unit at the Tong Fuk Correctional K Institution (TFCI), to willfully and intentionally misconduct himself in the L L course of or in relation to his public office, without reasonable excuse or M justification, M N N (a) conniving at the unauthorized possession and use of a O mobile phone in TFCI by the said (D3) as a prisoner; O and P P Q (b) rendering assistance to the said (D3) in improving the Q signal reception of a SIM card used in the mobile phone R R at TFCI. S S Charge 2 T T U U V V  - 153 - A A B B (D2), (D3), (D4) and (D5) , between the 16th day of July 2020 and 23 C October 2020, both dates inclusive, Hong Kong, conspired together for the C said (D2), while being a public official, namely the Assistant Officer II of D D the Correctional Services Department of the Hong Kong Special E Administrative Region, holding the post of Assistant to the Officer-in- E charge of the Construction and Maintenance Unit at the Tong Fuk F F Correctional Institution (TFCI), to willfully and intentionally misconduct G himself in the course of or in relation to his public office, without G reasonable, excuse or justification, H H I (a) conniving at the unauthorized possession and use of a I mobile phone in TFCI by the said (D3) as a prisoner; J J and K K (b) introducing unauthorized cigarettes into TFCI for the L L said (D3) a prisoner. M M 262. In short, the Prosecution only alleges that D3 was in N N possession and use of the seized mobile telephone. Ownership of that O mobile telephone is wholly irrelevant. O P P 263. D3’s counsel submitted that there is evidence that the mobile Q telephone and the other unauthorized items belonged to another prisoner. I Q disagree. The bag that D3 was holding may belong to another prisoner. R R However, by reason of the matters mentioned below, there was S overwhelming evidence to show that D3 was in possession and was using S the seized mobile telephone. Even if ownership of the seized telephone T T U U V V  - 154 - A A B B were relevant, it was clear from D3’s record of interview that he was the C owner. C D Possession of the seized mobile telephone D E E 264. D3’s counsel questioned whether the seized mobile telephone F F could belong to another prisoner. She even went as far as suggesting that G the seized telephone could have been planted on D3. This submission is G ridiculous and wholly untenable: H H (1) D3’s interception and search were video recorded. The I I video footages were undisputed. It can be seen from the J video that D3 was holding the prisoner’s bag J K immediately prior to his interception. When D3 was K told that a search would be conducted, he held onto the L L prisoner’s bag in an attempt to obstruct the search [See M P26 (1:33)]; M N N (2) It can be seen from the video of the search that the O seized mobile telephone was found inside the bag that O D3 was carrying; P P Q (3) After the seized mobile telephone and other Q unauthorized items were found, they were shown to D3 R R and D3 was cautioned; S S (4) In his record of interview [P85], PW13 narrated to D3 T T what happened during the search. D3 was told that a U U V V  - 155 - A A B B number of unauthorized items were found on him, C including the seized mobile telephone and unauthorized C cigarettes. When the CMO workshop was searched, D3 D D pointed to a charging cable inside the stockroom of the E workshop. D3 confirmed PW13’s version of events E [P85 Q and A 5]; F F G (5) During the record of interview, D3 was asked how he G got the seized mobile telephone. D3 alleged that it was H H given to him by D1 and D2 [See P85 Q and A 7 to 11]; I I (6) D3 also admitted in the record of interview that he has J J been using the seized mobile telephone and the K telephone number of the CSL SIM card was 6598 7379. K This SIM card could not be used and was flushed away L L [P85 Q and A 14 to 18 , 29 to 31 and 45 to 46]; M M (7) D3 told the ICAC officers during the record of N N interview that he asked ‘Ah Ki’ to top up the seized O mobile telephone for him [P85, Q and A 20]; O P P (8) D3 stated that D2 gave him the charging cable to charge Q Q the telephone and that D1 and D2 were both present R when the telephone was frequently charged [P85, Q R and A 21 to 25]; S S T (9) D3 admitted that there was a reception failure of the T seized mobile telephone on 22 October 2020 and that U U V V  - 156 - A A B B D1 was approached for assistance. D1 promised to C check for D3 [P85, Q and A 27 and 28]; C D D (10) It was not in dispute that a SIM card with the telephone E number 5608 7429 was found inside the seized mobile E telephone [3rd Admitted Facts P102, §1]. [P85, Q and F F A 29 to 31]; G G (11) One of the SIM cards could not be used and had been H H flushed away [P85, Q and A 46] I I (12) D3 asserted that he never gave or lent the seized mobile J J telephone to others but he does not know if others used K it [P85, Q and A 32]; K L L (13) It is not in dispute that frequent telephone calls were M made from the seized mobile telephone (including M mobile telephone numbers 5608 7429 and 6598 7379) N N seized from D3 to the telephone numbers of D3’s O family and friends [See 2 nd Admitted Facts P99, §§ 15 O to 17, §§ 31 to 35]. It is admitted that none of these P P telephone calls were made pursuant to the CSD’s Q Q arrangement; R R (14) PW8 is D3’s friend. She stated that she received S S telephone calls from D3. Her telephone number was T 6541 8876, whereas D3’s calls were from 6598 7379. T Her evidence was undisputed. U U V V  - 157 - A A B B 265. By reason of the above matters, it is crystal clear that D3 was C C in possession of the seized mobile telephone and that he had been using it D frequently. D E E Duress F F 266. In his record of interview, D3 alleged that the seized mobile G G telephone was forced upon him by D1 and D2 and that he would be framed H for possession of the telephone if he refused to accept it [P85 Q and A 8 to H 10]. Counsel for D3 did not frame it as duress. She queried whether D3 I I was in possession of the telephone. D3’s assertions are wholly contradicted J J by the covert recordings. K K 267. As can be seen from counters 1098 to 1123, D1 only saw the L L seized telephone for the first time when it was shown to him by D3. D1 M was amazed by the tiny size of the telephone and stated that it was the first M time he had seen a telephone of that size. Further, in the audio recording, N N D3 stated that he had made the telephone with parts from the Mainland. It O was clear that the phone was not forced on D3 by anyone. O P P D1’s knowledge of the seized telephone Q Q 268. It was clear from counters 1098 to 1123 of the covert audio R recordings that D3 showed the seized telephone to D1. D3 told D1 how he R had made the telephone and the two of them discussed the reception of the S S telephone and whether it had Internet access. T T U U V V  - 158 - A A B B 269. On the day after the covert audio-recordings (i.e. 23 October C 2020), two telephone calls were made from D1’s telephone number 6682 C 6288 to the CSL hotline. Those calls were recorded. The recordings and D D the transcripts were admitted as P8, P8a, P9 and P9a. E E 270. The first call was made to the CSL hotline at 2888 2123 F F between 1021 hours and 1022 hours on 23 October 2020. The caller (i.e. G from D1’s telephone), whose stated surname was Yeung, said that he had G a prepaid SIM card with the telephone number 6598 7379. He was referred H H to the hotline 179179. I I 271. The second call was made to the CSL hotline 179179 between J J 1028 hours and 1033 hours from D1’s telephone. The caller (i.e. from D1’s K telephone) whose stated surname was Yeung, stated that he had a prepaid K SIM card with the telephone number 6598 7379. He said that there should L L still be over $400 in the SIM card but the reception has deteriorated. He M asked whether the SIM card was still activated. He also told The CSL M hotline staff that the SIM card was being used in the mountain area on N N Lantau Island. O O 272. In fact, looking at the whole of the above, it was clear that D1 P P knew about D3’s possession and use of a mobile telephone even before the Q Q seized telephone was shown to him [See counters 833 to 857 and counters R 1098 to 1149]. R S S 273. On the following day, two calls were made from D1’s T telephone to the CSL hotlines to enquire about the reception of 6598 7379 T (which was one of the telephone numbers used by D3 to call his family and U U V V  - 159 - A A B B friends). A sheet of paper with a hand written number “6598 7379 CSL” C was found and seized from D1’s residence. C D D 274. By reason of the above matters, I find that not only did D1 E know about D3’s possession and use of the seized mobile telephone, he E assisted D3 to make enquiries about the reception of the SIM card 6598 F F 7379. G G Whether it was possible for D4 to commit Charge 2 when he H H was not a prisoner at the time of the alleged offence I I 275. D4’s Counsel argued that it was impossible for D4 to commit J J charge 2 because at the time of the alleged offence, D4 was neither a CSD K officer or a prisoner. This argument is wholly untenable and contrary to K established legal principles (See discussion of Legal Principles below). L L Counsel has completely lost sight of the fact that D4 is charged with M conspiracy. The Prosecution’s case is that D2 was the person committing M misconduct in public office. D4 is alleged to have conspired with D2 to do N N so. O O Discussions P P Q Legal Principles Q R Charges 1 and 2 R S S 276. Section 159A(1) of the Crimes Ordinance, Cap. 200 provides: T T U U V V  - 160 - A A B B 1. Subject to the following provisions of this Part, if a C person agrees with any other person or persons that a C course of conduct shall be pursued which, if the D D agreement is carried out in accordance with their E intentions, either - E F F (a) will necessarily amount to or involve the G commission of any offence or offences by one or G more of the parties to the agreement; or H H I (b) would do so but for the existence of facts which I render the commission of the offence or any of J J the offences impossible, K K he is guilty of conspiracy to commit the offence L L or offences in question. M M 277. The elements of the offence of misconduct in public offence N N are set out in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381. In that O case, the Court of Final Appeal said at pp. 405C -E and 408D - 410A: O P 69. The difficulty which has been experienced in defining P with precision the elements of the offence stem not so much from Q the various ways in which they have been expressed as from the Q range of misconduct by officials which may fall within the reach of the offence. This is because, to quote the words of PD Finn, R "Public Officers: Some Personal Liabilities" (1977) 51 R Australian Law Journal 313 at 315: S S “The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, T T has in some way abused them, or has abused his official position.” U U V V  - 161 - A A B B 70. It follows that what constitutes misconduct in a particular C case will depend upon the nature of the relevant power or duty C of the officer or of the office which is held, and the nature of the D conduct set to constitute the commission of the offence… D E Identifying the elements of the offence, including its mental E element F 81. As I have already noted, in an earlier article, "Public F Officers: Some Personal Liabilities" (1977) 51 Australian Law Journal 313, Dr Finn had correctly pointed out (at 315) that the G G essence of the offence is that an officer who has been entrusted with powers and duties for the public benefit has abused them or H his official position. Abuse of such powers and duties may take H various forms, ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty I or exercise of a power with a dishonest, corrupt or malicious I motive, acting in excess of power or authority with a similar J motive, to oppression. In all these instances the conduct J complained of by the public officer takes place in or in relation to, or under colour of exercising, the office. K K 82. The critical question is: what is the mental element L required to constitute commission of the offence? In the case of L nonfeasance, non-performance of a duty arising by virtue of the office or the employment, all that is required is wilful intent, M accompanied by absence of reasonable excuse or justification. M Mere inadvertence is not enough. So much is established by the authorities, notably the more recent cases including R v. Dytham N N and Question of Law Reserved (No. 2 of 1996) at 418, per Doyle CJ. O O 83. In other cases, the question is more complex. That is because outside the area of non-performance of a duty, an P additional element is generally, if not always required, to P establish misconduct which is culpable for the purposes of the Q offence. In such cases, in the absence of breach of duty, the Q element of wilful intent will not be enough in itself to stamp the conduct as culpable misconduct. A dishonest or corrupt motive R will be necessary as in situations where the officer is exercising R a power or discretion with a view to conferring a benefit or advantage on himself, a relative or friend. A malicious motive S S will be necessary where the officer exercises a power or discretion with a view to harming another. And a corrupt, T dishonest or malicious motive will be required where, an officer T acts in excess of power. The point about these cases is that, absent the relevant improper motive, be it dishonest, corrupt or U U V V  - 162 - A A B malicious, the exercise of the power or discretion would not, or B might not, amount to culpable misconduct. Although the C examples constitute some only of the range of situations which C fall within the reach of misconduct in public office, they are enough to illustrate the proposition that the existence of an D improper motive, beyond the existence of a basic wilful intent, D is necessary to stamp various categories of conduct by a public E officer as culpable misconduct for the purposes of the offence. E 84. In my view, the elements of the offence of misconduct in F public office are: F i. A public official; G G ii. who in the course of or in relation to his public H office; H iii. wilfully and intentionally; I I iv. culpably misconducts himself. J J A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is K subject by virtue of his office or employment without reasonable K excuse or justification. A public official also culpably L misconducts himself if, with an improper motive, he wilfully and L intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or M justification. Subject to two qualifications, … M 85. The first qualification is that, …, I consider that the N N misconduct must be “willful” as well as “intentional”… In other words, "wilfully" signifies knowledge or advertence to the O consequences, as well as intent to do an act or refrain from doing O an act. Wilfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases P of non-feasance. There is no reason why the same mental P element should not be requisite in cases of misfeasance and other Q forms of misconduct in public office. For this reason "wilfully Q and "intentionally" are not employed disjunctively in the statement of the elements of the offence in the preceding R paragraph. R 86. The second qualification which I attach to the elements S S of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether T it is serious misconduct in this context is to be determined having T regard to the responsibilities of the office and the officeholder, U U V V  - 163 - A A B the importance of the public objects which they serve and the B nature and extent of the departure from those responsibilities. C C 87. … the qualification is consistent with the concept of abuse of office and it is appropriate that the offence should be so D qualified in the light of the creation of a range of disciplinary D offences that now apply in the case of public sector employees. E The qualification is not to be taken as a dividing line between the E offence of misconduct in public office and disciplinary offences. There is no doubt a borderland in which the common law offence F and disciplinary offences overlap. F G 278. The elements of a conspiracy to commit misconduct in public G office are set out in HKSAR v Siao Chi Yung Weslie & Anor [2023] 1 H H HKLRD 653: I I 153. In R v Chapman cited by Ms. Fan, the English Court of J Appeal stated in a case involving the same offence: J K (I) In deciding whether the accused (A) was guilty of K “Conspiracy to commit misconduct in public office”, the juror must be sure: L L (1) that the person alleged to be a public official (B) M had committed the offence of “misconduct in M public”; and N N (2) that there was an agreement between A and B, which, if carried out in accordance with their O intentions, would necessarily involve B, acting as O a public official, willfully committing misconduct. P P (II) The mental element of A was in reaching the agreement Q Q and intending B’s willfully performing the misconduct; R (III) According to the provisions of the crime of conspiracy, R the Prosecution did not need to prove that A knew or intended B’s behavior at the time of reaching an agreement to meet the S degree of seriousness required by the law. Whether the S misconduct met the requisite threshold of seriousness required T consideration of a basket of factors, which would be the decision T of the jurors after analyzing the evidence… U U V V  - 164 - A A B (IV) The Prosecution must prove that A was aware of the B circumstances under which B made they agreed at, and that the C circumstances must be sufficient to make the seriousness of the C relevant act reach the threshold for committing the offence in the present case. D D Charge 3 E E F 279. In HKSAR v Egan (2010) 13 HKCFAR 314, the Court of Final F Appeal said: G G H 125. A conspiracy to pervert the course of justice is an H agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect. I Where the conduct in question has a manifest tendency to pervert I the course of justice, the required intention may readily be J inferred from proof that the alleged conspirators intended that J the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the K specific intent of perverting the course of justice on the part of K the alleged conspirators. L L 126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of M justice in curial proceedings. A conspiracy to effect some other M unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the N N course of justice. It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant O acts must “have a tendency and be intended to frustrate or deflect O the course of curial or tribunal proceedings which are imminent, probable or even possible...” And the accused must know of or P contemplate the possible institution of such curial proceedings P and realise that the proposed conduct has the manifest or Q intended tendency to pervert the course of justice in relation Q thereto. It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the R accused’s act or agreement in question. R 127. Investigations by law enforcement agencies do not S S themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”) so that acts T which hinder or interfere with their investigations are not T sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency U U V V  - 165 - A A B and are intended to pervert the course of justice in relation to B curial proceedings which may result from the investigations, C they are capable of founding the offence. C D Application of the Legal Principles D E E 280. I will now apply the above legal principles to the present F F proceedings. G G Charge 1 H H 281. There is no dispute that D1 is a public official. According to I I the Prosecution evidence, D1’s duties included the supervision and J J discipline of prisoners and was under a duty to report to his superior in the K event that unauthorized items were found in the prisons’ possession. It is K ridiculous to suggest that D1 had no power to seize unauthorized items L L found. M M 282. As explained above, there is no doubt that D3 was in N N possession of the seized telephone and had been using it frequently. I found O that D1 was not only aware of D3’s possession and use of the seized O telephone, he also assisted D3 to improve the reception of his SIM card by P P calling the CSL hotlines. Q Q 283. Counsel relied on HKSAR v Tsang Yam Kuen Donald (2019) R R 22 HKCFAR 176: S S 32. A considered decision not to disclose information may be T deliberate in the sense that it is not inadvertent, but it may at the T same time result from an error of judgment. To describe a decision not to disclose something as “deliberate concealment” U U V V  - 166 - A A B adds a pejorative element. Where, as in the present case, the B particulars of the alleged misconduct are failing to declare or C disclose or concealing, there may be a need for care in C distinguishing between the alternative possibilities. Concealment implies dishonesty. Failure to disclose, even if D deliberate, may be the result of an error of judgment. D E E 62. A failure by a decision-maker to disclose an interest in the subject matter of the decision may be deliberate in the sense F that the decision-maker thought about disclosure and decided F against it, but not wilful because the decision-maker did not know, or believe, there was an obligation to disclose in the G G circumstances of the case, and did not disregard the risk of there being such an obligation.” H H 284. In the present case, there was more than a failure to report. D1 I I called the CSL hotlines in an attempt to improve the reception of D3’s SIM J card. It was clearly not an error of judgment. Further, there was no evidence J to suggest that D1 did not know, or believe that there was an obligation to K K report. L L 285. Counsel further submitted that D1’s motive is relevant for his M M act to constitute misconduct. The motive has to be mala fide. She argued N that even if D1 had failed to disclose or report D3’s behavior immediately N to his superiors, it did not constitute misconduct as the majority element is O O absent. P P 286. I disagree. This submission is wholly contrary to the legal Q Q principles above. This was a case of nonfeasance. As was pointed out in R Shum Kwok Sher v HKSAR, in a case of nonfeasance, the Prosecution only R has to prove that the failure to report was willful and intentional and there S S is lack of a reasonable excuse or justification. A motive only has to be T proved if the allegation is one of misfeasance. D1’s calls to the CSL T U hotlines demonstrate that his nonfeasance was willful and intentional. U V V  - 167 - A A B B C 287. Counsel for D1 relied on Sin Kam Wah v HKSAR (2005) 8 C HKCFAR 192, the Court of Appeal said: D D “46. The misconduct must be deliberate rather than accidental E in the sense that the official either knew that his conduct was E unlawful or wilfully disregarded the risk that his conduct was F unlawful. Wilful misconduct which is without reasonable excuse F or justification is culpable. G C. The scope of misconduct in public office G H 47. As it was argued in the courts below that the conduct H complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it I is appropriate to say something about these matters. To I constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the J J defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may K nevertheless have such a relationship with his public office as to K bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. In the L present case, if the charges as particularized are made out, there L can be no doubt that the misconduct had the necessary M relationship with the 1 st appellant’s public office and that it was M culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they N were provided by prostitutes over whom the 2 nd appellant N exercised control, direction or influence, that being a serious O criminal offencee. O P 288. Counsel for D1 submitted that in order for D1 to willfully P misconduct himself, the Prosecution must prove that he knew D3’s Q Q possession of the seized telephone is a “primal offence” and that D1’s R failure to report the same constitutes a criminal offence. This submission R is clearly wrong and contrary to the cardinal principle that ignorance of the S S law is no Defence. T T 289. In any event, section 18 of the Prisons Ordinance provides: U U V V  - 168 - A A B B Introduction of unauthorized articles into prison C C (1) Any person who brings, throws or in any manner D introduces or conveys into any prison, or conveys to any D prisoner while in custody outside the prison, or deposits in any place outside a prison with intent that it shall come E into the possession of a prisoner, or carries out of a prison E any arms, ammunition, weapon, instrument, intoxicating liquor, opium or other drugs, tobacco, money, clothing, F F provisions, letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made G under section 25 or by the Commissioner, be guilty of an G offence and shall be liable on conviction to a fine at level 1 and to imprisonment for 3 years. H H (2) Any officer of the Correctional Services Department or I other person employed in the prisons who contravenes or I permits any contravention of the provisions of subsection (1) shall be liable, in addition to the above punishment J and any other punishment, to forfeit his office. J K 290. Discipline and security are of crucial importance in prisons. K The introduction of unauthorized items into prisons endangers both L L discipline and security. It is clear from the provisions of the Prisons M M Ordinance that not only is the introduction of unauthorized items into N prisons regarded as serious, it is a criminal offence. In addition to N imprisonment and a fine, a CSD officer who introduces unauthorized O O articles into prisons or permits such introduction is liable to forfeit his P office. Introduction of a mobile telephone into prison is extremely serious. P In the present case, D3 told D1 that the seized telephone had no IP address Q Q and could not be traced. Not only would it endanger security and discipline, R it would enable the prisoner to continue with criminal behavior. R S S 291. Counsel for D1 relied on HKSAR v Ho Hung Kwan Michael T (2013) 16 HKCFAR 525: T U U V V  - 169 - A A B 26. In considering this important question, one must not lose B sight of the object of this offence. It is clear from a review of the C authorities that this offence is aimed at punishing an abuse by a C public officer of the power and duty entrusted to him for the public benefit or of his official position… D D 29. In cases where corruption, dishonesty or other illegal E practices are involved, it is not necessary to specifically consider E the consequences of the misconduct in deciding whether it is serious enough as to constitute the offence of misconduct in F public office. The misconduct speaks for itself: the seriousness F of the consequences of such corrupt, dishonest or illegal practices will be obvious. G G 30. In other cases, where corruption, dishonesty or other H illegal practices are not involved, the consequences of the H misconduct may not be obvious. Nevertheless, this must be a factor which is also relevant when considering whether the I misconduct is serious enough as to merit criminal sanction. I do I not think the prosecution is disputing the relevance of this factor. J Nor can this be disputed. This factor was not mentioned in the J discussion of this offence in Shum Kwok Sher. That was a case of granting preferential treatment to a close relative in relation to K some government contracts and the seriousness of such K misconduct and its consequences could be readily seen. I also do L not think the list of factors mentioned in that case was intended L to be exhaustive. Further, in most cases, the consequences of the misconduct will usually have been considered when one is M examining the nature and extent of the departure from those M responsibilities. N N 31. The approach to be adopted in considering whether any misconduct was serious enough as to call for condemnation and O punishment was further discussed in Chan Tak Ming v HKSAR O (2010) 13 HKCFAR 745. Bokhary PJ said: P P 27. … trivial misconduct will of course not support a charge of misconduct in public office. That said, the Q question is whether the offence is serious having regard Q to – as stated in that item (5th item of the reformulation) R – the responsibilities of the office and the office holder, R the importance of the public objects which they serve and the extent of the departure from those responsibilities. It S is in that way – and not by saying that it must be S sufficiently serious since it is not trivial – that one goes about deciding whether the necessary seriousness exists. T T U U V V  - 170 - A A B 32. One must consider all the circumstances of the case B including the factors mentioned above. It would be C wrong simply to conclude that if the misconduct in C question is not trivial, then it must be serious enough to merit criminal sanction. It is a high threshold for the D prosecution. As Pill LJ said in AG’s Reference (No.3 of D 2003), [56]: E E It supports the view expressed in the criminal cases, from R v Borrow 3 B & Ald 432 to Shum F F Kwok Sher v HKSAR 5 HKCFAR 381 that there must be a serious departure from proper standards G before the criminal offence is committed; and a G departure not merely negligent but amounting to an affront to the standing of the public office held. H H The threshold is a high one requiring conduct so far below acceptable standards as to amount to an I abuse of the public’s trust in the office holder. A I mistake, even a serious one, will not suffice. The motive with which a public officer acts may be J relevant to the decision whether the public’s trust J is abused by the conduct. K K 292. Counsel argued that as in Ho Hung Kwan Michael, it is L L endorsed that trivial conduct will not support a charge of misconduct in M public office. It is wrong simply to conclude that if the misconduct in M question is not trivial, then it must be serious enough to call for N N condemnation and punishment. There is a high threshold for the O prosecution to prove the misconduct is serious, in that “there must be a O serious departure from proper standards before the criminal offence is P P committed, and such departure is not merely negligent, but amount to an Q affront to the standing of the public interest or expectation. The threshold Q is one requiring conduct so far below acceptable standards as to amount to R R an abuse of the public trust in the office holder. The motive with which a S public officer acts may be relevant to the decision whether the public trust S is abused by the conduct”. T T U U V V  - 171 - A A B B 293. Counsel stated that even if the Court finds that D1’s failure to C report immediately D3’s possession of a mobile telephone was a serious C mistake, it may not amount to misconduct if it does not involve an abuse D D of powers. A delay in reporting due to error of judgment is insufficient for E him to be convicted. E F F 294. I again disagree. Misconduct in public office does not G necessarily require an abuse of power. It can be committed by an abuse of G duty i.e. non-feasance. As explained above, this was not an error of H H judgement. It was also not a delay in reporting. It is clear from the evidence I that not only did D1 have no intention to report, he assisted D3 to improve I the SIM card reception by calling the CSL hotlines. J J K 295. By reason of all the above matters, I find that D1’s permission K of D3 to possess and use the seized telephone and his attempts to improve L L the reception of D3’s SIM card amounted to misconduct in public office. M It was an affront to the public object of D1’s duties as a CSD officer. M N N 296. In his record of interview, D3 admitted that: O O (1) He had the seized mobile telephone; P P Q (2) Both D1 and D2 knew D3 had the telephone; Q R R (3) D1 was present when D3 made frequent telephone S calls; S T T U U V V  - 172 - A A B B (4) On 22 October 2020, D3 asked D1 to help him with the C reception of the seized telephone; C D D (5) D1 promised to check the reception for him; E E (6) D1 gave D3 the other SIM card. F F G 297. There was clearly an agreement between D1 and D3 for D3 to G possess and use the seized telephone. D3 told D1 that he was having H H problems with the reception of his SIM card and D1 called the CSL hotlines I to try and improve it. I J J 298. I find that the Prosecution has proved Charge 1 against D1 and K D3 beyond all reasonable doubt. They are accordingly convicted. K L L Charge 2 M M 299. There is no dispute that D2 was in public office. There can be N N no dispute that D2 was guilty of misconduct in public office and that D5 O conspired with him. They have both pleaded guilty and were convicted. O Further, the undisputed evidence in the present trial shows that D2 and D5 P P knew that D3 was in possession of a telephone and that D2 was bringing Q unauthorized cigarettes into prison: Q R R (1) D2 obviously knew D3. D2 was the Assistant to D1 at S the CMO and D3 was assigned to work at the CMO; S T T U U V V  - 173 - A A B B (2) A WhatsApp chat group called “Chit-Chat Group” was C set up by D4. This group was subsequently renamed as C “CMO”; D D E (3) The WhatsApp messages in D2’s telephone [P42] show E that D2 was bringing unauthorized cigarettes into F F prison; G G (4) D5 was asking D2 to purchase cigarettes for D3 [See H H P42, P46] I I (5) D4 and D5 received numerous telephone calls from J J him; K K (6) D2 purchased cigarettes; L L M (7) D5 helped to top up D3’s SIM card. M N N D3 O O 300. According to D3’s record of interview, both D1 and D2 knew P P that he had a telephone. D3 admitted that: Q Q (1) D2 knew that D3 had a telephone; R R S (2) D2 was present when D3 used the telephone frequently; S T T (3) D2 gave D3 the charging cable; U U V V  - 174 - A A B B C (4) D1 and D2 gave D3 the cigarettes seized during the C search; D D E (5) D2 gave D3 the Mevius cigarettes; E F F (6) D3 told D2 that he wanted to use the telephone on 23 G October 2020 and D2 had no objection; G H H (7) In his messages to D5, D3 asked D5 to get “Wai Gor” I to buy cigarettes and bring them to D3 [See P63 I counters 21 to 25]. Apart from cigarettes, D3 also asked J J D5 to get D2 to get him another SIM card and specified K CSL [See P63 counters 44 to 45]. K L L D4 M M 301. The only issue is whether D4 was part of the conspiracy. As N N explained above, it is undisputed that D3 made numerous telephone calls O to D4 with D3’s telephone. D4 complained in the CMO WhatsApp chat O group that he was receiving too many telephone calls from D3. P P Q 302. The transcript of the text and voice messages [P42] show: Q R R Counter D2 D4 (9588 2770) D5 (6898 number 1997) S S T T U U V V  - 175 - A A B B 47 Wai Gor! Buy 2 packs of C ‘mixed C ice’ …for Luk Tau…tomorr D D ow 維哥！聽日買 E 兩包雜冰比阿 E 六頭喎 F 52 What worries me the most is that, F fuck, I couldn’t give him/her after G buying (them). It’d be fucking idiotic G to put (them) in the vehicle. Did you know that, for the previous pack, it H wasn’t until yesterday that I had a H chance to go down to meet him/her I in CMO(?) (I) was scared the I fucking hell out of me 我最驚呢屌我又買完之後俾唔到 J 佢喎，啲煙我呢擺喺車到好撚戇 J 鳩㗎嘛，你知唔知我對上一包 K 呀，琴日我先有機會落 CMO 先見 K 到佢，驚撚到仆街呀 L L M 53 Hey, did they tell you that I’d taking M an e-cigarette back to them for fun? N The prick, Luk Tau, holds (it and) N smokes (it) every fucking day 喂，佢哋有無同你講呢我攞咗支 O 電子煙返去俾佢哋玩？仆街六頭 O 依家日撚日拎住起到吹。 P P Q Q 55 Well, I think I’ll talk to R him/her R 咁我諗我同佢 S 講啦 S T T U U V V  - 176 - A A B B 56 As usual, I’ll buy (it) first (and) give him/her. The chance is slight though. C The commissioner kills. C 照舊我買咗先 見到先俾佢 但機會 D 唔大 Y 拿 處長殺 D E 57 Thank you E Wai Gor, thank you F F Wai Gor 唔該你維哥， G 唔該你維哥 G 58 Right, alright. Hey, right, do you H people know anyone from whom H these tobacco pods can be obtained at I a lower price? Tell me if you do, and I then (I)’ll go get (them). Then, er, (I)’ll take (them) back in J 得啦掂啦，喂係喎你哋識唔識人 J 呢？攞電子煙啲煙彈呢平呀？如 K 果識嘅話我知，跟住然後我去 K 攞，跟住，誒，攞番入去 L L M 59 （ informatio M n about e- cigarettes) N N (有關電子煙 的資料） O O 60 Er, you see if these are P suitable, Wai P Gor Q 誒你睇吓呢啲 Q 啱唔啱阿維 哥。 R R S S T T U U V V  - 177 - A A B B 61 Hey, silly chap, this electronically heated, tobacco isn’t what I need. C What I need are ordinary, e- C cigarettes, since, er…I’m paying 120 dollars for three (pods) out there now. D D 喂 Siri，傻佬呢隻電子加熱煙唔係 我要嗰啲，我要嗰啲係普通電子 E 煙，因為誒…我出面依家買呢就 E 百二蚊三粒嘅 F F G G 62 They’re such fucking pricks. Well, since every purchase requires a H minimum of three (pods), well, H (they)’re having (the flavor of) mung bean soup right now. They said that I they’d been fed up with (the flavor of) I mung bean soup. Then, I, fuck, J there’s still one here. Then, J subsequently, they said that (they) had to give other flavors a try. K 佢哋班友呢好撚仆街㗎，咁呢因 K 為一買要買三粒㗎嘛，咁而家食 L 緊綠豆沙啦，佢哋話綠豆沙呢食 L 厭咗喎，跟住我屌那星仲有粒起 喥喎？跟住然後佢哋話要試其他 M M 味喎。 N N O O 63 120 dollars P per packet P 百二蚊一盒喎 Q 64 Yes, with three pods in each packet Q 係丫 一盒入面有三粒 R R 65 Also 120 dollars only S 都係百二蚊咋 S T T U U V V  - 178 - A A B B 66 But worth it, since three (pods) could last an entire week. I took (them) back C on Saturday before last, and I’m C having fun with just a second (pod] today. D D 但係抵玩嘅，因為都夠食成個禮 拜㗎三粒，我上兩個禮拜六攞返 E 去，玩到今日都仲玩緊第二粒咋 E 喎 F F 67 Wai Gor, remember to G G buy two packets of H ‘mixed ice’… H remember to give (them) to I I Luk Tau tomorrow J 維哥你記住聽 J 日買兩包雜冰 喎，聽日記住 K K 俾六頭喎 L 68 Thank you L 唔該晒 M 69 Probably still not able to give him/her M even after purchase, you understand 買咗都未必俾到佢，你明㗎 N N O O 70 Buy (them) first, Wai P Gor. Try P (your) best to Q give (him/her) Q 買咗先囉維 哥，盡比啦盡 R R 比 S 71 I will still do (it), after which (I) will S look into (it) 我照搞 搞完研究吓 T T U U V V  - 179 - A A B B 78 Has Wai Gor bought two C packets of C ‘ mixed ice’ for Luk Tau? D D 維哥有冇買兩 包冰俾阿六頭 E 啊？ E 80 Done I CMO F 搞咗啦 我 CMO 丫麻 F 81 Ask Luk Tau G G not to call so early in the H morning. It H wasn’t until sometime I after seven I this morning J that (I) went J to sleep. 叫六頭唔好咁 K 早打嚟啊，今 K 朝七點幾先瞓 L 啊 L 84 He/She called M me at M sometime N after 10 this N morning 佢今朝 10 點 O 幾打俾我啊 O 85 Does (he/she) call you people every P day (?) P 佢係咪日日打俾你哋？ Q Q 87 He/she is R fucking bored R 佢好撚悶 S 88 Right, S inhumane 係呀，冇人性 T T 啊 U U V V  - 180 - A A B B 91 I’m a lot smarter now (and) have C switched on the C silent mode on the phone D D 我而家醒咗好 多㗎啦 將部電 E 話校靜音 E 92 Wai Gor, you F help me inform F Luk Tau that the G money, the five G thousand dollars, has already been H dealt with H 阿維哥你幫我 I 通知六頭話啲 I 錢搞咗啦，嗰 $5000 J J 93 Alright 好 K K 97 No wonder nobody answered when I L called you people yesterday L 唔怪得我尋日打俾你哋冇人聽 M M 98 Yes, yes, so N don’t mind it if I N can’t answer your call(s) O 係呀係呀所以 O 你哋唔好介意 P 我接唔到你哋 P 電話 Q 99 He/She does mind that you people Q keep ignoring him/her 佢介意㗎 你哋成日唔理佢丫 R R S S T T U U V V  - 181 - A A B B 100 Right, right, Wai Gor, while C speaking, don’t C tell (him/her) that we switched on D D the silent mode 係 阿 係 阿 維 E 哥 ， 講 還 講 E 呀，你唔好講 F 話我哋較咗靜 F 音啊 G 101 Forget it after G hearing (it). Definitely don’t H H spread (it) to his/ her ear I 聽 完 就 算 數 I 啦，千祈唔好 傳返去佢耳邊 J J 阿 K 102 You people are fucking sly. Fuck, K switched on the silent mode. Do you people know that he/she wants so L much to chat with you on the phone L every morning M 好撚狗阿你哋，屌那星校靜音， M 你哋知唔知佢每個朝頭早都好想 同你傾電話 N N 103 Ignored O him/her? O Wouldn’t be P like this if he/ P she was ignored Q 唔理佢？唔理 Q 佢唔係咁㗎啦 R 喎。 R S S T T U U V V  - 182 - A A B B 104 Fuck you, Wai Gor. That wasn’t C chatting on the C phone; that was giving an D D account (of things) and E distributing E work. 我 屌 你 啦 維 F F 哥，嗰啲唔係 叫傾電話，嗰 G 啲叫交代，分 G 配工作 H H 105 As time goes by, sometimes it’d I be, wow, so I fucking ‘ba’, big brother J 久而久之，有 J 陣時就，嘩好 K 撚巴㗎大佬 K 107 The fucking L worst L (situation) is that the silent M M mode wasn’t switched on. N Wow, it was N so fucking noisy. Ah, O O jerked awake at some time P past 10. P Immediately switched-- Q immediately Q fucking R switch it off. R 最撚慘無較靜 音，嘩幾撚嘈 S S 啊，阿紮一紮 醒 ， 10 點 T 幾，即刻較， T 即刻熄撚咗佢 U U V V  - 183 - A A B B 108 That is, you people, with him/her, actually just listened to his/ her C briefing but not, like, chatted about C things on the mind 即係你哋呢，就同佢係聽佢 D D briefing 㗎咋喎其實係，就唔係話 咩傾心事㗎喎 E E 110 Most likely something has F to be done (if) F I am called G 打比我都係搞 G 野多㗎啦 H 113 Hey, perhaps let me ask him/ her not H to call people until the afternoon, if that’s the case. You people anyway I I stay up late and wake up late. 喂，我叫佢不如晏晝先好打俾你 J 哋啦，如果係咁，反正你哋個個 J 都夜瞓又晏起身嗰啲 K K L L 114 Hey, never do things like this. M Anyway, leaving M everything as it usually is (and) N N asking him/her to call as usual O would do O 喂你呀千祈唔 好 搞 呢 啲 嘢 P P 呀，總之一切 呀，好似如常 Q 咁叫佢照打得 Q 㗎喇 R R 116 Never go to talk to him/her, S otherwise he/she S might think that we have, what,… T grumbles T U U V V  - 184 - A A B B 你就千祈唔好 走去同佢講， C 如果唔係就， C 佢就以為我哋 D 有啲乜嘢⋯微言 D 啊 E 120 No need, never, E don’t, don’t, F don’t. He/she’s F used to making calls. Let him/her G call G 唔使呀，千祈 H 唔 好 唔 好 唔 H 好，佢慣咗打 㗎啦，由得佢 I I 啦 J 122 In short, never, J never, never ever, never ever K tell him/her what K we have just said(.) We are L L simply grumbling M 總之千祈千祈 M 千萬千萬唔好 N 同佢講我哋啱 N 啱講嘅嘢 我哋 純粹呻吓啫 O O 123 Hey, Wai Gor, by the way,… P P the… actually, have you ever Q been in touch Q with Lun Gor? 喂維哥話時話⋯ R R 啲⋯其實呢你有 冇同倫哥接觸 S 過啊？ S T T U U V V  - 185 - A A B B 124 I’ve bought, fuck, the C cigarettes… C Fuck, I can’t give Lun Gor. D D Hey, you help me drive (them) E back to your E place and give him/her, okay F 我買撚咗屌啲 F 煙⋯屌我又比唔 G 到阿倫哥喂你 G 幫 我 車 返去 你 H 哋嗰個地方俾 H 佢得唔得呀？ I 125 You give me(.) I will give (them) to I 6 directly 你比我啦 我直接比 6 J J 126 Commissioner has finished the walk. K There is probably a chan(ce) that he K may return to CMO 處長行完 應該有機翻 CMO L L M 127 There’s a M chan(ce). Not N Luk Tau. This N is required every day. O 都有機嘅，唔 O 係阿六頭，呢 P 啲係指定日日 P 要㗎喎 Q Q R R S S T T U U V V  - 186 - A A B B 128 Fuck. I was there the whole C week last week. C You think, Lun Gor could tell D D them, Ah Luk Tau, that, what, E I haven’t gone E to work for a whole week. F Then, I said, F “How’s that G fucking G possible?” Throughout the H whole week, I H was there last I week. Did you I know that they said I didn’t go J to work J 屌那星我上個 K 禮拜呢成個禮 K 拜都起度，你 諗吓，倫哥可 L L 以同阿六頭佢 哋講話咩我成 M 個禮拜無返工 M 喎，跟住我話 N 唔撚係呀？我 N 成個禮拜都起 度你知唔知我 O O 上個禮拜，佢 哋話我冇返工 P 喎 P Q Q R R S S T T U U V V  - 187 - A A B B 129 Wai Gor, I’m not giving C him/her one (or) C two cartons but 11 cartons… of D D cigarettes. I’ve given “words of E quarrel”… I’ve E given all to Lun Gor. You give F all to F him.That’d do G 維哥，我唔係 G 一兩條啊，我 係十一條⋯煙俾 H H 佢喎，我俾晒 違言⋯我俾晒倫 I 哥個喎，你俾 I 晒佢得㗎啦 J J 130 And I won’t K give Lun Gor. If K I give Lun Gor, he’ll know that I L L hang out with you people. M Well, it’d M be …Therefore, don’t… For fear N of trouble N 同埋呢我唔會 O 俾倫哥㗎，如 O 果我比倫哥呢 佢就知我同你 P P 哋有玩埋㗎， 咁變咗倫哥唔 Q 知㗎，廢事啦 Q 所以就 R R S S T T U U V V  - 188 - A A B B 131 I (have) a whole fucking box, C like that. C There’re 11 cartons. In D D short, you, the whole box, if, E right… I give E you and, when the time comes, F you help me F (bring) it back G (and) give him. G That’d do 我成個箱咁撚 H 樣㗎，嗰度十 H 一條，總之你 I 成個箱如果係 I 我俾你，到時 J 候你幫我返到 J 去比咗佢就得 㗎啦 K K 132 don’t, don’t, don’t, don’t, don’t let me give him. If I give him, he’ll L L know that I know what he’s made of. I’m afraid he’ll be more M embarrassed than I’ll be. M 唔好唔好唔好唔好，唔好我比 佢，如果我俾佢，佢知我知佢咩 N N 料，我驚佢尷尬過我 O O P 133 Understood P 明白 Q 134 Understood, Q understood. Actually, it’s R R fucking hilarious. Fuck S your mother, I S contact you and also contact T him. (I) don’t T U U V V  - 189 - A A B B what the problem is C 明白明白，查 C 實真係好撚好 D 笑，屌你老味 D 我 又 同 你 聯 絡，我又同佢 E E 聯絡，都唔知 有咩問題 F F 135 Instead, you help me get one or two cartons of mixed ice here. He now G G said that (he) took mixed ice. Then, subsequently, you give me. Then, I H can pass him. Afterwards, it’d be H Okay for me to give him when I see him now and then. I I 調返轉，你幫我搞一兩條雜冰起 度啦，佢依家話食雜冰呀，跟住 J 然後你比我跟住呢啲就可以我散 J 俾佢啦，之後我久唔久見到嘅時 K 候我比佢就 okay K L L 136 You both are M M the ones whom cannot be N contacted. Fuck N you, it’s really fucking O hilarious. O 就係你兩個就 P 唔聯絡得嘅， P 屌你真係好撚 好笑 Q Q 137 Let me think R first R 等我諗諗先 S S T T U U V V  - 190 - A A B B 138 Since … that I don’t know what he told you. Well, in short, those I gave C him, in short, those (I gave him) C when I saw him now and then, well, was for his, er, own consumption, D D as he told me. He will flag Lun Gor’s, and I’ve placed an e- E cigarette below for him. He E basically only smokes e-cigarettes in the workshop now. Well, and F now I mainly give him tobacco pods F only. Well, I give him one [or) two G pieces of Vitamin Agency only now G and then. That is, just like normally, I give him one piece if (I) H see (him) and safe (it) up first if (I) H don’t (see him). Then, like I yesterday, well, Ar Kay told me I and, well, I happened to go to CMO. Well, I then brought pieces J over, otherwise (it) could hardly be J done. 因為呢，那，我唔知佢點同你哋 K K 講啦，咁總之呢我比佢嗰啲呢， 總之我久唔久見到佢嗰啲呢，咁 L 就係佢誒自己食嘅佢就同我講， L 倫哥嗰啲呢佢就會放嘅，同埋呢 M 我有支電子煙擺咗起下面比佢 M 啦，佢基本上呢起數呢就剩係食 N 電子煙嘅唧依家就，咁同埋我依 N 家主要係剩係比煙彈佢，咁彩冰 嗰啲就久唔久我先比一件兩件佢 O O 阿，即係好似平時咁樣我咪比一 件佢囉，見到嘅話，見唔到咪就 P 儲住先囉，跟住琴日咁樣咁，咁 P 阿褀同我講咗咁我咪又咁啱落到 Q CMO 喎 ， 咁 我 咪 帶 咗 兩 件 過 去 Q 囉，如果唔係嘅話都窄啲㗎 R R S S T T U U V V  - 191 - A A B B 139 He’s afraid that if I came to know the things between him and you, C people, I’d be fucking squeezing his C sack 佢驚俾我知道佢同你哋啲嘢俾我 D D 摙撚住佢個春袋呀嘛 E E 140 However, Lun Gor presumably F doesn’t know that we keep in contact, F so never mind, fuck G 但係倫哥唔應該知我同你有聯絡 G 㗎嘛，由佢囉咪屌 H H 143 It’s Okay, I understand I I 得 啦 ， 我 明 嘅，明白 J J 144 Can’t help it. Lun Gor has K always thought K big. Dammit, L what a fucking L waste of breath. 無計，倫哥長 M 期 都 諗 大 ， M 妖，哂撚氣 N N 161 Remember what I’ve just O said O 記得我啱啱講 咗啲咩 P P 162 Yes, tell Luk Q Tay, yes. Q What if I don’t listen? R Well, so R what? What if ah She S S doesn’t listen? You talk to T Luk Tau, T thanks U U V V  - 192 - A A B B 係呀同六頭講 係呀，我唔聽 C 咁點呀？咁點 C 呀？阿蛇唔聽 D 咁點啊？你同 D 阿六頭講唔 E 該。 E F 170 Hey, fuck, Luk Tau frequently F enters his/her room. What the fuck G to do? G 喂屌，六頭呢入佢間房入呢成日 㗎喎依家，有乜撚嘢搞啊？ H H I 171 Does he/she just keep talking to you I people on the phone (?) It takes him/her such a fucking long time? J 佢唔係就係 keep 住同你哋講電話 J 呀話搞咁撚耐嘅佢？ K K L 172 … said really L don’t know what he/she is M M doing 話真係唔知佢 N 搞咩㗎喎 N 173 I saw that he/she kept talking to O people on the phone. That is, O always heard him/her talking to himself/herself like a moron in the P P doorway 我見佢係咁喺度同人講電話㗎 Q 喎，即係門口成日聽到佢戇鳩鳩 Q 自言自語咁 R R S S T T U U V V  - 193 - A A B B 174 No fucking shit, talking to C himself/herself? C Fuck, it’s sickness. Need D D to consult a doctor. E 咁撚大鑊自言 E 自語？屌你有 F 病㗎喎呢啲， F 要 睇 醫 生 㗎 喎。 G G 188 I’ve taken a shower(.) H H Already gone up to the container I 我沖咗涼上咗 I 貨櫃啊 J 195 Hey, Lo She, where’s your J container(?) We come over to you. K 喂老蛇你貨櫃喺邊呀？我哋過嚟 K 搵你呀。 L 196 Hey, you type L Jubilee garden M 餵你打銀禧花 M 園啦 N 220 Wai Gor Wai N Gor, buy one pack of O O cantaloupe for Luk Tau P tomorrow P 維哥維哥聽日 買包哈密瓜俾 Q Q 阿六頭呀 R 223 維哥買 2 包哈 R 密瓜俾比 6 S S T 303. It is evident from the above conversations that all 3 T Defendants knew that D3 had a telephone. In the conversation in counters U U V V  - 194 - A A B B 124 to 140, there was a discussion between D2 and D4 about bringing C cigarettes to CMO and giving them to D3. Looking at the transcript as a C whole, this chat group was used by D2, D4 and D5 to discuss D3’s D D demands or needs and to find ways to carry out D3’s instructions. E E 304. There is no dispute that D4 was the subscriber to and user of F F the telephone number 9588 2770 [2nd Admitted Facts, P99 §33]. The G messages between D4 and D5 [P62] show: G H H Counter number D4’s telephone 9588 2770 (She) D5 I 11 6598 7379 (D3’s telephone number) I 12 He asked you to call him now J J 佢叫你而家打俾佢 K 13 K Done 搞掂 L L 108 … about those other - those ‘a chai’ that Luk Tau asked for, have you dealt with (them)?) M 為另外嗰啲木頭要嗰啲 a 仔你搞咗未啊？ M N N 109 Better deal with (them) on the same day we have the meal which has been arranged, have it done for Wai O O Gor 最好就喺我哋約食飯嗰一日搞埋攞俾維哥 P P 110 No, Luk Tau asked me to arrange to meet his Q Q younger sister, arrange to meet his younger brother, and arrange a meeting with Sau Sai, that sort… R R S 111 [No sound] S （沒有聲音） T T U U V V  - 195 - A A B B 112 That is, he means, his younger sister has been asked, his younger brother has been asked, Sai Sai asked to C deal with three thumb drives C 即係佢嘅意思係，叫咗佢細妹，叫咗佢細佬，叫阿 D 西西搞三隻手指呀 D E 116 As to Wai Gor, you arrange (a get together) with him E 咁阿維哥嗰邊，你約佢啦喎 F F G G 305. It was clear from those messages that D4 was doing D3’s H bidding. He was getting thumb drives for D3 and handing them over to D2. H I I 306. Counsel for D4 criticized the use of the word “Connivance”. J He argued that the use of the words ‘conniving at’ in the indictment is an J unusual phrase for a conspiracy. He then proceeded to refer to the K K definition of this phrase in the Oxford Advanced learner’s Dictionary as L “to seem to allow something wrong to happen”. He argued that one has to L M have the authority to allow something wrong to happen. One cannot be in M a position to connive at a wrongdoing without being a person in authority N N in relation to the wrong doer. Since D4 was neither a prisoner nor a CSD O officer during the period of the offence, he cannot have the power to O connive at D3’s unauthorized possession and use of the mobile phone and P P unauthorized possession cigarettes. Q Q 307. The word “connivance” was considered in HKSAR v Li Fung R R Ching Catherine [2012] 3 HKLRD 377: S S “60. The terms used in Section 64B of the Employment T Ordinance are “consent”, “connivance” and “neglect”. It is spelt T out clearly that the intention is to target the three different situations. U U V V  - 196 - A A B B 61. In the ordinance, there is no definition given to the term C “connivance”. Therefore, the term “connivance” should be C interpreted in accordance with its usual meaning. D 62. The New Longman Advanced Chinese Dictionary defines D the word “conniving” as indulgence and non-interference of E misconduct. E 63. To connive at someone’s act, whether or not one agrees F or disagrees with it is not important, what is important is one fails F to stop it from happening knowingly. G G 64. The term “connivance” is used in the English version of the Ordinance. According to the Shorter Oxford English H Dictionary, the definition of “connivance” includes assistance in H wrongdoing by conscious failure to prevent or condemn; or tacit permission. The word “connive” means shutting one’s eyes to I (something). I J 65. In the English-Chinese Dictionary of Joint Publishing, J “connivance” carries the meaning of “turning a blind eye to an action one ought to oppose; and tacit permission” which K corresponds with the translation given in The Oxford … English- K Chinese Dictionary. L L 308. However, Counsel has totally disregarded the fact that D4 has M M been charged with conspiracy to commit misconduct in public office and N the elements required for that offence. The charge is that D2 committed the N misconduct in public office and D4 had conspired with D2 and others for O O D2 to do so. There is absolutely no merit in this argument. P P 309. There was some cross examination about whether it was Q Q possible to introduce 11 cartons of cigarettes into prison. According to the R conversation between D2 and D4 [P42 counter 135], D2 was not going to R bring all 11 cartons into prison at the same time. He described as “scatter” S S to him and giving it to (him) from time to time 「散比佢⋯之後，我久唔 T 久見到嘅時候我俾佢就 okay」[See also counter 138]. T U U V V  - 197 - A A B B 310. It was also pointed out in cross examination that the alleged C 11 cartons of cigarettes were never found. According to the conversation, C D4 had a container in Jubilee Garden [P42, counters 195 and 196]. D D E 311. I find that the Prosecution has proved Charge 2 against D3 and E D4 beyond all reasonable doubt. They are accordingly convicted. F F G Charge 3 G H H 312. In HKSAR v Egan (2010) 13 HKCFAR 314, the Court of Final I Appeal stated: I J 125. A conspiracy to pervert the course of justice is an J agreement to do an act which has a tendency to pervert the course K of justice, intending that the agreed act should have that effect. K Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be L inferred from proof that the alleged conspirators intended that L the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the M M specific intent of perverting the course of justice on the part of the alleged conspirators. N N 126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of O O justice in curial proceedings (including tribunals having authority to determine the rights and obligations of parties and P having a duty to act judiciallly: R v Vreones [1891] QB 360, 369; P R v Rogerson (1992) 174 CLR 268, 275-276). A conspiracy to effect some other unlawfulness but which has no tendency to Q cause a miscarriage of justice in curial proceedings, is not a Q conspiracy to pervert the course of justice. It is unnecessary for R such proceedings to have been instituted at the time of the acts R in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal S proceedings which are imminent, probable or even possible…” S And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the T T proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto. It matters not that U U V V  - 198 - A A B the relevant law enforcement agency has not itself considered B bringing proceedings at the time of the accused’s act or C agreement in question. C 127. Investigations by law enforcement agencies do not D themselves form part of “the course of justice” (an expression D synonymous with “the administration of justice”) so that acts E which hinder or interfere with their investigations are not E sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency F and are intended to pervert the course of justice in relation to F curial proceedings which may result from the investigations, they are capable of founding the offence.” G G [See also HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046 §§ H 19 to 29]. H I 313. There appears to be no dispute that the Adjudication hearing I amounted to “the course of public justice” and “Curial proceedings”. The J J Prosecution submitted that the Adjudication Report, the call records, the K WhatsApp messages and the bank record showed that PW9, a CSD officer, K suspected some prisoners were gambling with homemade chess pieces and L L seized the bag which contained those chest pieces. The Prosecution further M submitted PW5’s evidence was corroborated by the messages, call records M and bank records. In those circumstances, there is sufficient evidence that N N D3 had requested PW5 to admit to gambling in D3’s stead. I disagree. O O 314. With respect to the Prosecution, the Adjudication Report only P P showed that there was gambling inside Dormitory F and that 4 prisoners, Q Q including PW5 were charged and convicted of the disciplinary offence. The R WhatsApp messages and the bank record only showed that: R S (1) PW5 told D5 that D3 had asked PW5 to call D5; S T T U U V V  - 199 - A A B B (2) PW5 told D5 that D3 had told PW5 to ask D5 to pay C PW5; and C D D (3) A sum of $2,000 was paid by D5 to PW5. E E 315. PW5 stated that he only met D3 when he was transferred to F F Dormitory F and that he had only been in that Dormitory for about 2 G months. This evidence was never challenged. It is highly suspicious that G D3 would owe PW5 $2,000 within such a short space of time. However, H H because I have rejected PW5’s evidence, there is no evidence to show that I the sum was paid as a reward for PW5 taking the blame for D3 in the I Gambling Incident. The Prosecution has failed to prove Charge 3 beyond J J reasonable doubt. D3 is acquitted of this charge. K K Comments L L M 316. The behaviour of PW9 (Mr. Li Siu On), PW10 (the OC case, M Ms. Cheng Sha), Ms. Salina Siu and PW12 (Mr. Edwin Wong Pak Wing, N N CSD liaison officer) has been outrageous and wholly unbefitting of a O member of a disciplinary Force). I order that a copy of this Judgment be O served on the Commissioner of the Correctional Services Department and P P the Commissioner of the ICAC. Q Q R R ( A N Tse Ching ) S District Judge S T T U U V V