DCCC67/2017 HKSAR v. LEE YUEN FOOK AND OTHERS - LawHero
DCCC67/2017
區域法院（刑事）HH Judge E. Yip30/1/2018[2018] HKDC 357
DCCC67/2017
A A
B DCCC 67/2017 B
[2018] HKDC 357
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 67 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H LEE Yuen Fook (D1) H
YIP Kwok Leung (D2)
I I
HUNG Wai Ming (D3)
J ----------------------------------- J
Before: HH Judge E. Yip
K K
Date: 31st January 2018 at 9:36 am
L Present: Mr Derek LAI, SADPP (Ag.) and Mr William SIU, Senior L
Public Prosecutor, of the Department of Justice, for HKSAR
M M
Mr David KHOSA and Ms Polly CHUANG, instructed by
N M/s Wong & Co for D1 N
Mr Oliver DAVIES and Ms Annie BU and Ms Stephanie KO,
O O
instructed by M/s Wong & Co for D2
P Mr CHAN Ka Sing and Mr Jason LEE, instructed by M/s P
KCL & Partners for D3
Q Q
Offence: [1] Conspiracy to commit misconduct in public office (串謀公職
R R
人員行為失當罪)
S ---------------------------- S
Reasons for Verdict
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A A
B Charge B
C C
1. D1 – D3 deny a charge of conspiracy to commit misconduct
D in public office as follows: D
E E
Statement of Offence
F Conspiracy to commit misconduct in public office, contrary F
to Common Law and sections 159A and 159C of the Crimes
G G
Ordinance, Cap. 200 and section 101I(1) of the Criminal
H Procedure Ordinance, Cap. 221. H
I I
Particulars of Offence
J LEE Yuen-fook, YIP Kwok-leung and HUNG Wai-ming, J
between the 8th day of October 2014 and the 7th day of June
K K
2015, both dates inclusive, in Hong Kong, conspired together
L L
with other unknown persons that LEE Yuen-fook and YIP
M
Kwok-leung, being public officials, namely Police Constable M
UI 49901 and Station Sergeant UI 46093 respectively of the
N N
Hong Kong Police Force (“the Police”) of the Government of
O
the Hong Kong Special Administrative Region, without O
reasonable excuse or justification, would wilfully and
P P
intentionally misconduct themselves in the course of or in
Q relation to their public offices, in return for monetary reward, Q
by:-
R R
S (i) Procuring and obtaining confidential information of the S
Police investigation into the murder of WONG Man-kin (‘the
T T
Investigation”); and
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A A
B (ii) Divulging confidential information of the Investigation B
to other persons.
C C
D D
Crux of the Prosecution Case
E E
2. D3 was a civilian. D1 and D2 were serving police officers.
F F
D3 requested D1 to procure and obtain confidential information of the
G Investigation at various junctures during the period in question. D1 told G
D2 that someone was interested in such information. D2 procured and
H H
obtained such information and divulged it to D1. D1 in turn divulged it to
I D3. It was agreed that D3 would pay D1 and others, including D2, I
monetary rewards for their acts.
J J
K 3. During the period in question, ICAC mounted 6 covert K
surveillances (“CS1 – CS6”) of meetings between D1 and D2 in D2’s car,
L L
or D1 and D3 in D3’s car, as the case may be, resulted in audio records.
M There were about 1,000 whatsapp messages in total between D1 and D2, M
D1 and D3, D2 and other persons, retrieved from SIM cards from mobile
N N
phones relating to them. The audio records and the whatsapp messages
O construed together reflect a conspiracy in the terms as particularized in the O
P
charge. P
Q Q
Stance of the Defence
R R
4. The defence disputes the following:
S S
T (1) D1 – D3’s voices were in the audio records of CS1 – CS6; T
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A A
B (2) D1 – D3 sent or received the whatsapp messages retrieved B
from the SIM cards relating to them;
C C
(3) In any event, the information being procured or obtained or
D D
divulged was confidential.
E E
F 5. D1 and D2 have a clear record. D3 has a criminal record1 for F
drink-driving. When considering the credibility of their evidence and their
G G
propensity to commit the present offence, I have to adopt a view more
H favourable to them. D1 – D3 do not give evidence or call any witnesses. H
I I
Law of Misconduct in Public Office
J J
6. As stated by Sir Anthony Mason NPJ in Sin Kam Wah &
K K
Another v HKSAR (2005) 8 HKCFAR 192:
L L
The offence is committed where:
M (1) a public official; M
(2) in the course of or in relation to his public office;
N N
(3) wilfully misconducts himself; by act or omission, for
example, by wilfully neglecting or failing to perform his
O O
duty;
(4) without reasonable excuse or justification;
P P
(5) and where such misconduct is serious, not trivial, having
Q regard to the responsibilities of the office and the Q
officeholder, the importance of the public objects which
they serve and the nature and the extent of the departure
R from those responsibilities.” R
S S
1
T D6 is the criminal record for Driving a motor vehicle with alcohol concentration above the prescribed T
limit, sentenced on 25/6/2015
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A A
B Prosecution Case B
The Murder Case and the Investigation
C C
D 7. In the early hours on 5/10/2014, WONG Man-kin nicknamed D
“Ah Tsz” (“the Deceased”) and a Chinese male assaulted two customers at
E E
Hot Shot Bar in Chatham Road, Tsim Sha Tsui. They fled the scene
F afterwards. The Deceased was caught nearby by a gang of knife-wielding F
Chinese males in Cameron Road. The Deceased was stabbed and severely
G G
injured in his head. He was certified dead two days later on 7/10/2014
H (“the Murder Case”). The Murder Case was initially investigated by DATS H
1 YTDIST. It was taken over by Team 1B of Regional Crime Unit,
I I
Kowloon West Regional headquarters (RCU 1B KW) on 6/10/2014.
J J
8. D1 is a Police Constable (PC 49901). At all material times,
K K
he was attached to Tsim Bei Tsui 1, Tin Shui Wai Division (TBT 1
L L
TSWDIV). D2 is a Police Station Sergeant. At all material times, he was
M
attached to the District Intelligence Section of Kowloon City District (DIS M
KCDIST) . CHENG Pak-to (“Sgt CHENG”) is a Police Sergeant (Sgt
2
N N
33447) attached to the District Anti-Triad Section Team 1 of Yau Tsim
O
District (DATS 1 YTDIST) between 10/6/2012 and 2/5/2015. He was O
attached to DIS KCDIST, the same team as D2, between 3/5/2015 and
P P
2/6/20163.
Q Q
R R
S S
2
P53 Admitted Facts Part 1, paras. 1 and 2
T T
3
P53 para. 7
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A A
B 9. At all material times, the two Police units to which D1 and D2 B
were attached, ie TBT 1 TSWDIV and DIS KCDIST, were not involved in
C C
the investigation of the Murder Case.
D D
The Suspects
E E
F 10. Shortly after the attack on the Deceased, the Police had F
already identified and suspected TANG Wai-yeung (“TANG”), LAU
G G
King-hei (“LAU”), KAN Chun-hoi (“KAN”), CHAN Wai-yip (“CHAN”),
H and LUK wing-sum (“LUK”) as being involved in the attack on the H
Deceased.
I I
J 11. As regards suspect TANG, he was arrested on 7/10/2014 4 . J
He was charged with murder on 9/10/2014. He was brought to Kowloon
K K
City Magistracy on 10/10/2014, resulting in a return date of 30/1/2015.
L L
Meanwhile he was remanded in jail custody. Negative DNA results were
M
found of him by the Government Laboratory on 3/11/2014. The witness M
could not identify him in an identification parade held by the police on
N N
9/12/2014. He was brought to Kowloon City Magistracy for mention to
O
have the charge against him withdrawn on 30/1/2015; he was released O
unconditionally for insufficient evidence.
P P
Q 12. As regards suspect KAN, he left Hong Kong via Macau Ferry Q
Terminal on 6/10/2014. The police obtained a warrant of arrest against
R R
him on 11/11/2014. Accompanied by his lawyers, he surrendered to
S Kowloon City Police Station on 28/5/2015; he was arrested for the murder; S
T T
4
P6 Chronology of events
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A A
B he remained silent under caution. He was released on police bail on B
29/5/2015. He was released unconditionally by the police for insufficient
C C
evidence on 21/8/2015.
D D
13. As regards suspect LAU, he left Hong Kong via Macau Ferry
E E
Terminal on 6/10/2014. The police obtained a warrant of arrest against
F him on 11/11/2014. Accompanied by his lawyers, he surrendered to F
Kowloon City Police Station on 21/5/2015; he was arrested for the murder;
G G
he remained silent under caution. He was released on police bail on
H 22/5/2015. He was released unconditionally by the police for insufficient H
evidence on 21/8/2015.
I I
J 14. As regards suspect CHAN, he was arrested on 8/10/2014. He J
was released on police bail on 10/10/2014. Negative DNA results were
K K
found of him by the Government Laboratory on 3/11/2014. He was
L L
released unconditionally by the police on 19/1/2015.
M M
15. As regards suspect LUK, he was arrested on 7/11/2014; he
N N
was released on police bail. Negative DNA results were found of him by
O
the Government Laboratory on 15/12/2014. O
P P
VRIs of D1 – D3
Q Q
16. D1 and D2 were arrested at an earlier hour on 7/6/2015. D3
R R
was also arrested on 7/6/2015.
S S
T T
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A A
B 17. D1 refused to answer questions in VRIs except for those B
concerning his general background5.
C C
D 18. D2 admitted to have met D3 on some occasions6, D3 had a D
nickname “Fanling”7, and before arrest he was in the lounge in Yuen Long
E E
8
to meet D1, D3 and others for a drink . D2 also admitted to know Police
F Sgt CHENG, who was attached to OCTB YTDIST, for 2 – 3 years. He F
had official dealings with Sgt CHENG at work, such as exchange of
G G
9
different types of intelligence to facilitate future police investigation . He
H was not limited to the exchange of intelligence with police colleagues of H
the same district10. He learned from his colleagues that the culprits in the
I I
11
Murder Case had fled to the Mainland . He could not recall if he had
J shared any intelligence with others in the Murder Case12. He had money J
dealings with D3 as he would help D3 to buy something13.
K K
L L
19. When arrested, D3 was in possession of an iPhone. There was
M
a SIM card for mobile phone number 6111 1355. He admitted to be the M
user of the mobile phone number relating to the SIM card installed in the
N N
O 5
P41 – P43 O
6
MFI-5; P30 # 58, # 123 – 154
P P
7
MFI-5; P30 # 156 – 166
Q 8
MFI-5; P30 #247 – 270 Q
9
MFI-6; P31 # 17 – 68, 117 – 118
R R
10
MFI-6: P31 # 141 – 144
S 11
MFI-6; P31 # 238 – 253 S
12
MFI-6; P31 # 340 – 353
T T
13
MFI-6; P31 # 474 – 489
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A A
B iPhone14. The prosecution says the SIM card contained whatsapp messages B
probative of the proof of the conspiracy.
C C
D 6 Covert Surveillances D
E E
20. The ICAC conducted 6 covert surveillances (CS1 – CS6)
F which resulted in audio records pertaining to the present charge. CS1 F
related to D1 and D2 on board D2’s car. CS2 – CS6 related to D1 and D3
G G
on board D3’s car.
H H
21. ICAC officers taking part in the CSs were given ROP photos15
I I
of the targets such as D1, D2, and D3 in briefings on the same day before
J the CS in question. The number of targets grew to about 10 over a period J
of over 2 years. Therefore, near the end of the whole case, they had about
K K
10 faces to identify.
L L
M
Observation in CS1 on 5/11/2014 M
N N
22. At about 1500 h PW5 (Rainie KOO Mei-wan) attended a
O
briefing in which she received more than a set of copies of 5 ROP black O
and white photos, including one for D1 and one for D2. The respective
P P
ROP photos of D1 and D2 were a bit more blurry than the ones produced
Q in court16. After 1600 h, she began to study D1’s and D2’s photos for about Q
R R
S 14
MFI-4; P16 # 109 – 147 S
15
Copies of Registration of Persons Record (“ROP”) photos from Immigration Department record
T T
16
P2 @ 35; P3 @ 38
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A A
B 20 minutes each. She could memorise their faces. She left office without B
the ROP photos.
C C
D 23. At about 1848 h on 5/11/2014, she was at her observation post D
on Po Ping Road near North District Hospital. Four males come out of the
E E
entrance of the hospital to walk to Po Ping Road. She was pacing slowing
F about the spot and observed them for about 10 seconds when they passed F
her. She focused on each of D1’s and D2’s faces for 3 – 4 seconds.
G G
Lighting was sufficient from the street lamps and the entrance of the
H hospital. She followed D1 and D2 at 3 – 4m away into the open air carpark. H
D1 boarded D2’s car SA7862. She walked past the car when D1 was at the
I I
front passenger seat and D2 on the driver’s seat. She immediately informed
J PW5 (Kenix POON Hong-ying) at 1848 h. PW5 immediately switched on J
the audio recording device secretly pre-installed in D2’s car. PW5 saw
K K
D2’s car at 1850 h at the exit of the car park. CS1 spanned between 1850
L L
h and 1904 h17.
M M
18
24. The defence challenges first, the poor quality of her
N N
observation; secondly, the possibility of someone boarding and/or
O
alighting from D2’s car in the 2-minute gap; thirdly, the absence of details O
in her written record of what ROP photos she had received in the briefing
P P
and of the circumstances of the observation.
Q Q
25. I first consider the quality of her observation. She had studied
R R
each of D1’s and D2’s ROP photos, which were taken about 10 years
S S
17
P23 the DVD, P23(a) the transcript as redacted, P23(b) the English translation of P23(a)
T T
18
D1’s closing submissions paras 11 – 14; D2’s closing submissions para 5 – 7
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A A
B before, for 20 minutes before her departure for the observation post. She B
was tasked to observe them if they appeared. It was not a surprise
C C
encounter. D1 and D2 were walking towards her direction and then past
D her. She had a close look of them. Out of her observation of the four for D
10 seconds, she spent 3 – 4 seconds on the identification of D1 and D2
E E
each. She relied on the lighting from street lamps and the entrance of the
F hospital. She then followed D1 and D2 to D2’s car in the open air carpark. F
In such circumstances of observation, the Turnbull guidelines shall be
G G
applicable. I have viewed the photo of the location and D1’s and D2’s
19
H ROP photos. I note from the position of the street lamps and lights from H
the entrance of the hospital that such lighting if lit on, could illuminate the
I I
spot where she identified D1 and D2. I believe her evidence that such
J lighting was lit on and sufficient at that time. I also note that D1’s and J
D2’s faces in court still bear a clear and close semblance to their ROP
K K
photos. I am satisfied that her identification of D1 and D2 in CS1 was
L L
accurate and reliable.
M M
26. I come to consider the implications of the 2-minute gap
N N
between 1848 h and 1850 h. I think the real issue should not be just for the
O
2 minutes but whether D1 and/or D2 had alighted from the car in the whole O
course of the audio recording between 1848 h and 1904 h. I have listened
P P
to the audio record. There is no sound of the opening or closing of D2’s
Q car doors throughout. I am satisfied that there was no one boarding or Q
alighting from D2’s car until PW5 switched off the audio recording device.
R R
S S
T T
19
D1
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A A
B 27. I consider the absence of details in her written record of what B
ROP photos she had received in the briefing and of the circumstances of
C C
the observation. Poor record keeping it surely was on the part of her OC
D case PW10 (Henry LUNG Ho-yan) to destroy such copies of ROP photos D
distributed to ICAC officers and later retrieved from them. However, there
E E
is overwhelming oral evidence that the unrecovered copies of ROP photos
F were copies of the ROP photos adduced in court. It is true that as regards F
the circumstances of observation in CS1, PW3’s notebook, as a nearly
G G
contemporaneous record of the event, did not give a detailed description of
H the circumstances of observation or of D1’s and D2’s features. I have the H
opportunity of assessing how she responds to the questions for details. Her
I I
answers are given forthwith and coherent. I am satisfied that she is an
J honest witness and her memory of the events is good and sufficient. J
K K
Observation in CS2 on 14/1/2015
L L
M
28. PW7 (Henry CHEUNG Ka-kit) had observed D1 on M
3/11/2014, 15/3/2014, 9/10/2014, and D1 and D2 together on 25/12/2014.
N N
He was able to recognize them in CS2 on 14/1/2015.
O O
29. He was making observation at Tin Yiu Estate near Tin Yiu
P P
Plaza from about 2040 h in CS2 on 14/1/2015. Through the windscreen,
Q D3 was seen at the driver seat of JT265 as the car drove towards and past Q
him. He could not see if there were other people on board. It came to a
R R
stop at the roundabout opposite to him. P60 is a set of photos showing the
S location. He marked on Photo 2 where the car stopped very close to the S
kerb and the continuous line of railing. There was sufficient lighting from
T T
the street lamps and the lights of the staircase where the car stopped. From
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A A
B his position, he could only see the right hand side of the car. He saw D1 B
for 5 – 6 seconds as D1 was walking towards the car. He could not see
C C
through the car windows the inside of the car. At first there was a bit of
D D1’s head over the car roof near the left side door and then that bit D
disappeared. When a data sheet of the same model20 as D3’s car suggests
E E
that the car roof ought to be higher than D1’s head, he amends his evidence
F to that of seeing D1 walk to the left hand side of the car and disappear there. F
He infers therefore that D1 had boarded the car. He immediately called his
G G
PW6 (Edison LIEH Kiu-kwan) to switch on the audio recording device
H pre-installed in D3’s car. Between 2043 h and 2055 h no one came to or H
left the car. At 2055 h, D1 walked away from the car. PW7 immediately
I I
called PW6 to switch off the audio recording device. CS2 spanned between
J 2043 h and 2055 h21. J
K K
22
30. The defence challenges first the quality of his observation
L L
and secondly the lack of detailed description in his written record of his
M
previous observations of D1 and D3 and the circumstances of his M
identification of D1 and D3 in CS2.
N N
O
31. I first consider the quality of his observation. I note from the O
position of the street lamps and lights from the staircase that such lighting,
P P
if lit on, could illuminate the spot where he identified D1. I believe his
Q evidence that such lighting was lit on and was sufficient at that time. I note Q
the position where the car stopped. There was not much room for an adult
R R
20
S D2 S
21
P24 the DVD, P24(a) the transcript as redacted, P24(b) the English translation of P24(a)
T T
22
D1’s closing submissions paras 15 – 20
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A A
B to squeeze into the gap between the car and the railing without boarding B
the car. It is implausible that D3 had just squatted on the kerb side in the
C C
tight space between the car body and the railing for 12 minutes without
D boarding the car. PW7’s observation of D1 and D3 was each for a short D
duration, and, in the case of D1, at some distance whereas, in the case of
E E
D3, D3’s was behind the windscreen. In such circumstances of
F observation, the Turnbull guidelines shall be applicable. I am satisfied that F
his identification aided by his recognition of D1 and D3 was each accurate
G G
and reliable.
H H
32. I also consider the lack of detailed description in his written
I I
record of his previous observations of D1 and D3 and the circumstances of
J his identification of D1 and D3 in CS2. Mr. Chan for D3 23 submits that J
PW7 did not record whether he went to the closest position of the edge of
K K
the bush area. He did not record the car making a U-turn in his notebook
L L
either. I have the opportunity of assessing his responses to the questions
M
for details. His answers are given forthwith and coherent. Mr. Chan also M
submits that his evidence of seeing D1’s head partly over the car roof has
24
N N
turned out to be incorrect as the car was proved by its specifications
O
handout that its roof was higher than D1’s head. I am aware of his evidence O
originally that D1’s head could be partly seen over the car roof and, upon
P P
knowing that the car roof was higher than D1’s head altogether, amended
Q to be an inference that he had boarded the car. It is not so significant as to Q
affect his credibility and reliability. I am satisfied that he is an honest
R R
S S
23
D3’s closing submissions para 3
T T
24
D3’s closing submissions para 5
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A A
B witness and subject to the aforesaid aspect, his memory of the events is B
good and sufficient.
C C
D 33. On the issue of whether D1 and/or D3 had alighted from the D
car in the course of the audio recording. I have listened to the audio record.
E E
There is no sound of the opening or closing of the car doors throughout. I
F am satisfied that there was no one boarding or alighting from the car. F
G G
Observation in CS3 on 25/2/2015
H H
34. PW8 (May CHEUNG Hoi-lam) had observed D1 on
I I
10/10/2014, D1 and D3 together on 15/10/2014, D1 on 27/11/2014, D1 and
J D3 together on 29/1/2015, D1 and D3 together on 31/1/2015. She was able J
to recognize them in CS3 on 25/2/2015.
K K
L L
35. At about 2005 h on 25/2/2015, her observation post was at the
M junction of Chuk Yau Road and San Tin Highway. She saw D3 driving M
JT265 towards the road junction. In court, she marks on a map to indicate
N N
the car at various positions25. Its first position was where she could see its
O front car plate JT265 and the second position was where she could see the O
faces of D1 and D3. She immediately called PW9 (Karen LAW Wing-chi)
P P
to switch on the audio recording device. CS3 spanned between 2005 h
Q and 2018 h26. Q
R R
S S
25
P62
T T
26
P25 the DVD, P25(a) the transcript as redacted, P25(b) the English translation of P25(a)
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A A
B 36. The defence challenges the quality of her observation in CS3. B
She wrongly remembers that the junction of Chuk Yau Road was a right
C C
angle, she cannot remember a big bus stop a little ahead of the junction,
D she wrongly remembers the position of the mini bus stop. When she is D
cross-examined on the discrepancy in her notebook and another sketch she
E E
27
draws in court and whether her initial position was before or behind the
F mini bus stop, she changes her evidence to say she was both in front and F
behind the mini bus stop. She says she was 20 meters away from the
G G
junction when she saw the faces of D1 and D3. The defence submits that
H from this distance it is impossible to see clearly. It is also difficult to H
understand why she would run away towards the mini bus stop where the
I I
lighting was not as good as her original position when she saw the number
J plate of JT265. At first she says there were only two cars that drove past J
when JT265 came to the junction and she cannot remember whether there
K K
were other cars on the road. Later she says there were many other cars
L L
passing on both sides of the road, so she could see the faces by the lighting
M
from the headlights. I do not find these matters so significant as to affect M
her case. In such circumstances of observation, the Turnbull guidelines
N N
shall be applicable. I am satisfied that her identification aided by her
O
recognition of D1 and D3 was each accurate and reliable. O
P P
37. The defence also challenges her alleged previous observations
Q of D1 and D3. Her notebook was the only record of the events but there Q
was a lack of detailed description of the circumstances of her
R R
observations28. The defence queries how she can give more details in court
S S
27
P64
T T
28
D1’s closing submissions paras 23 – 28; D3’s closing submissions para 11
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A A
B from pure memory. I have the opportunity of assessing how she responds B
to the questions for details. Her answers are given forthwith and coherent.
C C
I am satisfied that she is an honest witness and her memory of the events
D is good and sufficient. D
E E
38. On the issue of whether D1 and/or D3 had alighted from the
F car in the course of the audio recording. I have listened to the audio record. F
There is no sound of the opening or closing of the car doors throughout. I
G G
am satisfied that there was no one boarding or alighting from the car.
H H
Observation in CS4 on 6/3/2015
I I
J 39. PW11 (Stephen KWOK Kwok-kei) had observed D1 and D3 J
together on 30/7/2014. He was able to recognize them in CS4 on 6/3/2015.
K K
L L
40. At 1902 h on 6/3/2015, his observation post was at Tin Yiu
M
estate near Tin Yiu Plaza. He saw D3 driving JT265 arrive near him and M
parked near where he stood. At 1904 h, when D1 boarded the car, he
N N
immediately called PW6 to switch on the audio recording device. He saw
O
D1 for about 10 seconds before D1 boarded the car. CS4 spanned between O
1904 h and 1920 h29.
P P
Q 41. The defence submits 30 that he had only made a very brief Q
entry in his notebook31 regarding the observation. There was no mention
R R
29
S P26 the DVD, P26(a) the transcript as redacted, P26(b) the English translation of P26(a) S
30
D1’s closing submissions para 31; D3’s closing submissions paras 19 – 20
T T
31
MFI-12
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A A
B of any briefing or anything about the ROP photos in his notebook. B
However, after more than 2 years, he is able to remember in court enough
C C
to mark on a sketch the details the distances and the position of himself and
D the car at various junctures 32 . I have the opportunity of assessing his D
responses to the questions for details. His answers are given forthwith and
E E
coherent. I am satisfied that he is an honest witness and his memory of the
F events is good and sufficient. F
G G
42. The defence submits that his previous observation of D1 and
H D3 at Chief Lounge on 30/7/2014, which was approaching 8 months ago, H
cannot aid his identification in CS4 on 6/3/2015. I am of the view that it
I I
can aid the actual sighting in CS4.
J J
43. In such circumstances of observation in CS4, the Turnbull
K K
guidelines shall be applicable. I am satisfied that his identification aided by
L L
his recognition of D1 and D3 was each accurate and reliable.
M M
44. On the issue of whether D1 and/or D3 had alighted from the
N N
car in the course of the audio recording, I have listened to the audio record.
O
There is no sound of the opening or closing of the car doors throughout. I O
am satisfied that there was no one boarding or alighting from the car.
P P
Q Observation in CS5 on 2/6/2015 Q
R R
45. PW13 (Michael CHOW Kai-tung) had observed D1 on
S 10/10/2014. In CS 5 at 2124 h on 2/6/2015, he saw D3 driving JT265 turn S
T T
32
P73
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A A
B into Chuk Yau Road from San Tin Road. The car slowed down and B
stopped for 1 – 2 seconds at the junction. At 2135 h, it reappeared and
C C
stopped at the junction for 2 – 3 seconds. He saw D1’s and D3’s faces for
D 3 – 5 seconds through the windscreen and front window of the passenger D
seat. Apart from the street lamps at and near the junction, there were head
E E
lamps from cars on San Tam Highway to provide lighting for his
F observation. He immediately called PW6 to switch on the audio recording F
device. CS5 spanned between 2135 h and 2232 h33.
G G
H H
46. At 2150 h, PW5 (Kenix POON Hong-ying) at 8 m away saw
I I
D3 driving and D1 sitting beside him in JT265 arrive and park near Po Lok
J Square. She walked up Ping Shun Street and had another look at them for J
about 3 seconds. There was no one else in the car. No one boarded or
K K
alighted from the car until 2232 h when D1 alighted from the car to walk
L along Ping Shun Street to On Ning Road. There were street lamps to L
provide lighting for her observation throughout.
M M
N N
47. The defence submits 34 that they had only made very brief
O entries in their notebooks 35 regarding the observation. There was no O
mention of any briefing or anything about the ROP photos in their
P P
notebooks. However, after more than 2 years, they are able to remember
Q in court enough to give the details of their observation. I have the Q
opportunity of assessing how they respond to the questions for details.
R R
33
S P27 the DVD, P27(a) the transcript as redacted, P27(b) the English translation of P27(a) S
34
D1’s closing submissions para 34 – 36; D3’s closing submissions paras 23 – 27
T T
35
MFI-13 is PW13’s notebook
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A A
B Their answers are given forthwith and coherent. I am satisfied that they B
are honest witnesses and their memory of the events is good and sufficient.
C C
D 48. The defence submits that PW13’s previous observation of D1 D
on 10/10/2014 had been 8 months before CS5 on 2/6/2015 cannot aid his
E E
identification in CS5 on 2/6/2015. I am of the view that it can aid the actual
F sighting in CS5. F
G G
49. In such circumstances of observation in CS5, the Turnbull
H guidelines shall be applicable. I am satisfied that PW13’s and PW5’s H
identification of D1 and D3 was each accurate and reliable.
I I
J 50. On the issue of whether D1 and/or D3 had alighted from the J
car in the course of the audio recording, I have listened to the audio record.
K K
There is no sound of the opening or closing of the car doors throughout. I
L L
am satisfied that there was no one boarding or alighting from the car.
M M
Observation in CS6 on 6/6/2015
N N
O
51. PW14 (Winson WONG Wing-shun) had observed D1 on O
6/1/2014, D1 and D3 together on 30/5/2014, 30/7/2014, 14/12/2014, and
P P
D1 on 12/5/2015, 14/5/2015, 16/5/2015, and 2/6/2015. In CS 6 at 2203 h
Q on 6/6/2015, he saw D3 driving JT265 into Ping Shun Street and park it at Q
Po Lok Square. He saw D3 at the driver’s seat. One minute later, D1
R R
walked from On Ning Road towards the front of the car and got into the
S front passenger seat. There were street lamps to provide the lighting for S
his observation.
T T
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B 52. PW16 (Lawrence WONG Pui-wai) had observed D1 on B
26/9/2014, D1 and D3 together on 28/2/2015, and D1 on 18/3/2015. In
C C
CS6, he saw JT265 parked at Po Lok Square for 5 – 10 minutes when D1
D walked along On Ning Road and turned left to get into the front passenger D
seat at 2200 h. There were street lamps to provide the lighting for his
E E
36
observation. CS6 spanned between 2205 h and 2222 h .
F F
53. The defence argues that PW14 could not be lurking nearby
G G
JT265 without concealing his presence. I think that as it was a public place,
H as long as he did not do anything too conspicuous or odd, he did not have H
to conceal his presence.
I I
J 54. The defence argues that PW14 has drawn a right angle at the J
entrance of Po Lok Square but the photo37 shows it was a wide circular
K K
38
corner. In the two sketches in his notebook he marked the front of JT265
L L
to be parallel to the edge of the pavement without jutting out, but in his
M
sketch drawn in court39 JT265 was partly jutting out of the pavement thus M
partly blocking the entrance of Po Lok Square. He explains that he was not
N N
a professional so he did not draw professionally in his notebook. I find this
O
explanation credible. O
P P
Q Q
R R
36
P28 the DVD, P28(a) the transcript as redacted, P28(b) the English translation of P28(a)
37
S D3 S
38
MFI-14
T T
39
P79A
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A A
B 55. The defence argues40 that he had only made a very brief entry B
in his notebook regarding the observation. There was no mention of any
C C
briefing or anything about the ROP photos in his notebook. However, after
D more than 2 years, he is able to remember in court enough to mark on a D
sketch in detail the distances and the position of himself and the car at
E E
various junctures. I have the opportunity of assessing his responses to the
F questions for details. His answers are given forthwith and coherent. I am F
satisfied that he is an honest witness and his memory of the events is good
G G
and sufficient.
H H
56. In such circumstances of observation in CS6, the Turnbull
I I
guidelines shall be applicable. I am satisfied that PW14’s and PW16’s
J identification aided by their recognition of D1 and D3 was each accurate J
and reliable.
K K
L L
57. On the issue of whether D1 and/or D3 had alighted from the
M
car in the course of the audio recording, I have listened to the audio record. M
There is no sound of the opening or closing of the car doors throughout. I
N N
am satisfied that there was no one boarding or alighting from the car.
O O
Value of Voice Identification Evidence
P P
Q 58. PW24 (Dr. LO Tsz-fung) is unchallenged as an expert in voice Q
identification. He wrote 2 reports41 and elaborates on them in court. His
R R
methodology is not challenged either. It was based on well-recognised
S S
40
D1’s closing submissions paras 41 – 49
T T
41
P91 and P47
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A A
B methodology and literature. His evidence on voice identification has been B
accepted by court before (although it is not specified as a civil or criminal
C C
court or in what jurisdiction). After comparing D1 – D3’s voices in their
D respective video-recorded interviews with the voices recorded in CS1 – D
CS6, his conclusion was that it was more likely than not that in CS1, D2
E E
was one of the 2 speakers, and that in CS1 – CS6, there were 2 speakers in
F conversation. The defence argues that this is below the criminal standard F
of proof. I think this argument is correct.
G G
H 59. PW19 (Inspector LAU Wing-fai) had been D1’s supervisor H
for some time. After listening to the audio records of CS1 – CS6, he could
I I
recognize a voice similar to D1’s in CS2, CS4, CS5, and CS6 but he was
J not certain of it. J
K K
60. I am of the view that the evidence of Dr. LO and Inspector
L
LAU alone cannot prove beyond reasonable doubt that CS1 contained D1’s L
M
and D2’s voices whereas CS2 – CS6 contained D1’s and D3’s voices. M
N N
Whether D1 – D3 were the Sender/Recipient of Whatsapp Messages
O
Who were the Actual Users of the Relevant Mobile Phone Numbers O
P P
61. There were 432 whatsapp messages between 9348 4901
Q (which the prosecution suggests was the number used by D1) and 6111 Q
1355 (which the prosecution suggests was the number used by D3). There
R R
were 430 whatsapp messages between 9348 4901 (which the prosecution
S suggests was the number used by D1) and 9809 1857 (which the S
prosecution suggests was the number used by D2). There were 91
T T
whatsapp messages between 9809 1857 (which the prosecution suggests
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A A
B was the number used by D2) and Sgt CHENG’s mobile phone 42. The B
defence disputes the alleged users of such mobile phone numbers.
C C
D D
62. As regards 9348 4901, its subscriber was D1’s wife LAI Yuk-
E heung, Fanny. Was she or someone else the user of this phone number? I E
note that the user sent a Hong Kong Jockey Club betting account number,
F F
05381401, out by this number on 21/9/2014 43 ; this was D1’s betting
G account number. The user sent a photo out on 1/2/201544 (D1 was standing G
in the middle of a group people all smiling into the camera. The user
H H
received and acknowledged a birthday greeting on 4/2/201545 (this was one
I day after D1’s birthday of 3/2/201546). Someone sent 7 photos out on I
12/2/201547 (D1 was standing in the middle of different groups of people
J J
all smiling into the camera; D1 is the only person to appear on every photo).
K Someone texted to meet up with the message recipient (which the K
prosecution says is D3) at “Ngok Wan” (transliteration of Music Lounge)
L L
on 6/6/2015 (soon D1 arrived at Music Lounge and met up with D3 there).
M M
N 63. Mr. Khosa submits48 that the personal record form from TBT N
Police Station had D1’s phone registered rather as 6736 0499 and that had
O O
P P
42
P40 is a consolidated chronological table of all the whatsapp messages
43
Q P40 # 52 Q
44
P40 # 226; TB: p. 258
R 45
P 40 # 236 receives a message “Happy Birthday”, P 40 # 237 someone replies “Thank you, mate” R
46
TB: p. 12 is D2’ personnel record
S S
P40 # 281 – 287 are 7 photos showing D1 in a group of people in the office smiling into the camera;
47
D1 is in the centre of every photo as well as the only person appearing in every photo
T T
48
D1’s closing submissions para 76
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A A
B to be his phone number at certain junctures. I think that he could have B
another phone number for the personal record but it did not alter the fact
C C
that he was also regularly using 9348 4901.
D D
E 64. I am satisfied that the user of this mobile phone number was E
D1 at all material times.
F F
G G
65. As regards 9809 1857, its subscriber was D2’s wife CHAN
H Pui-fong. Was she or someone else the user of this phone number? The H
user set the user name as “ericyip”. PW22 (S/Sgt CHEUNG Ho-yin) knew
I I
D2 for over 25 years (this was D2’s phone number he knew of). Between
J 17/3/2015 and 16/4/2015, the user was asked by police officer CHENG if J
the user’s team had any vacancy for him (Sgt CHENG). On 16/4/2015, the
K K
user replied to Sgt CHENG that he (Sgt CHENG) would probably go to
L the user’s team on 3/5/2015 (it turned out that Sgt CHENG was actually L
transferred to D2’s team DIS KCDIST on 3/5/2015). D2 was arrested with
M M
the SIM card for this phone number. ROP records, vehicle registration
N records, and police personnel records each showed that it was his reported N
phone number.
O O
P P
66. I am satisfied that the user of this mobile phone number was
Q D2 at all material times. Q
R R
67. As regards 6111 1355, it was subscribed in D3’s own name.
S S
On 7/6/2015, he admitted under caution in VRI voluntarily that he had been
T T
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A A
B using this number for 3 – 4 years49. He was arrested with the SIM card for B
this phone number. ROP records, vehicle registration records, and the
C C
Jockey Club betting account each showed that it was his reported phone
D number. D
E E
68. I am satisfied that the user of this mobile phone number was
F D3 at all material times. F
G G
Whether to Exclude Whatsapp Messages in D3’s SIM Card as Unlawfully
H Obtained Evidence H
I I
69. D3 was arrested on 7/6/2015 in possession of an iPhone with
J SIM card50 for phone number 6111 1355. Relying on Sham Wing Kan v J
Commissioner of Police [2017] 6 HKC 265, Mr. CHAN for D3 submits
K K
that as the whatsapp messages were retrieved from the SIM card without a
L L
warrant, they were unlawfully obtained evidence. So the court should not
M
admit such whatsapp messages into evidence51. M
N N
70. I understand that Sham Wing Kan’s case is about the balance
O
to be had between a citizen’s constitutional rights for privacy of personal O
data in his mobile phone and the police powers for search and examination
P P
of it without a warrant. There the interpretation of s. 50(6) of the Police
Q Force Ordinance, Cap. 232 is in issue. Our present case shall depend on Q
the interpretation of s. 10C (1) (c) of ICAC Ordinance, Cap. 204. Mr. LAI
R R
S 49
MFI-4; P16 # 109 – 147 S
50
P10
T T
51
D3’s closing submissions para. 63
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A A
B for the prosecution submits that the latter allows the ICAC to “seize and B
detain anything which such officer has reason to believe to be or to contain
C C
evidence of the offences …” and that shall include the personal data in the
D mobile phone. I do not think the wording in the former is that limited. It D
reads, “it shall be lawful for such [police] officer to search for and take
E E
possession of any newspaper, book or other document or extract therefrom
F and any other article or chattel which may be found on his person …” The F
part underlined can arguably also include personal data in the mobile phone.
G G
H 71. Assuming that the personal data were unlawfully obtained by H
ICAC and thus in breach of D3’s privacy rights afforded by the Basic Law,
I I
I consider its implications. CJHC MA J in the Court of Appeal in HKSAR
J v Chan Kau Tai [2006] 1 HKLRD 400 has this observation: J
K K
115. But the following question now requires to be answered in
L Hong Kong: what effect do the provisions of the Basic Law and L
ICCPR52 [International Covenant on Civil and Political Rights]
have on the exercise of discretion to exclude evidence in criminal
M matters? Do they eliminate the existence of the discretion M
altogether or if not, how prominent are they in the exercise of the
N discretion? … N
116. In our view, the questions posed in the previous paragraph
O O
fall to be answered in the following way. First, account must of
course be taken by the court of any breaches of rights contained
P in the Basic Law or the ICCPR. Secondly, any breach as P
aforesaid will not, however, automatically result in the exclusion
of the evidence obtained in consequence of the breach: the court
Q still retains a discretion to admit or exclude the evidence. Thirdly, Q
the discretion in the court to admit or exclude evidence involves
R a balancing exercise in which the breach of constitutional rights R
is an important factor whose weight will depend on mainly two
S S
52 Article 17.1: No one shall be subjected to arbitrary or unlawful interference with his privacy,
T family, home or correspondence, nor to unlawful attacks on his honour and reputation. Article T
17.2: Everyone has the right to the protection of the law against such interference or attacks
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A A
B matters: the nature of the right involved and the extent of the B
breach.
…
C C
(4) Mr Blanchflower [for the Applicant] made it clear in his
submissions that he was not advocating an automatic
D exclusion of evidence should a breach of or derogation from D
the right to privacy occur. In our view, he was right not to do
so. While it may be tempting to adhere so closely to the
E E
fundamental rights contained in Part III of the Basic Law that
any breach of or derogation from them should result in the
F direst of consequences, this is in our view too simplistic a F
stance. One of the fundamental themes of a constitutional
document such as the Basic Law (and the ICCPR) is the
G recognition that society has many different interests to be G
taken into account and very often, a balance must be struck.
H Derogations from constitutional rights are sometimes H
permitted where they can be justified as being necessary,
rational and proportionate. This is in no way to undermine the
I importance of constitutional rights but a court must at times I
perform what can be a delicate balancing exercise.
J J
(5) In the present context, there are two main competing
K interests, both facets of what can broadly be called the public K
interest: on the one hand the interest in protecting and
enforcing constitutionally guaranteed rights; on the other, the
L interest in the detection of crime and bringing criminals to L
justice...
M M
(6) The balancing exercise that faces the court in the exercise
N of its discretion in each case where there has been a breach of N
or derogation from constitutional rights, involves a
consideration of the two facets mentioned in the last
O paragraph. The objective of the exercise of judicial discretion O
is to ensure that a fair trial of the accused takes place. We have
already referred to relevant passages in the decision of the
P P
House of Lords in R v Sang and that of the Court of Final
Appeal in Lam Tat Ming (see paragraphs 112 and 114 above).
Q In R v Khan (Sultan), a case involving covert surveillance, Q
Lord Nicholls of Birkenhead referred to the discretion to
admit or exclude evidence and the right to a fair trial
R contained in Article 6.1 of the European Convention as being R
concerned to ensure that those facing criminal charges would
S receive a fair trial: at 583B-C. He added at 583C-D: - S
“In the present case the decision of the European Court of
T Human Rights in Schenk v Switzerland, 13 E.H.R.R. 242 T
confirms that the use at a criminal trial of material obtained
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A A
B in breach of the rights of privacy enshrined in article 8 does B
not of itself mean that the trial is unfair.”
C C
(7) More recently, in R v Looseley (Attorney-General’s
Reference No.3 of 2000) [2001] UKHL 53; [2001] 1 WLR
D D
2060, the House of Lords considered the question of
entrapment in the context of the right to a fair trial under
E Article 6 of the European Convention. We believe this E
decision provides valuable guidance as to both the nature and
the exercise of the discretion under discussion. It qualifies
F what might appear to have been the effect of R v Sang by F
emphasizing the principle that the court could exclude
G
evidence obtained by unfair means in circumstances where G
the court considered the admission of the evidence to have
such an adverse effect on the fairness of the proceedings that
H the evidence ought to be excluded: at 2066D-F (paragraph 11), H
2067F (paragraph 16), 2098A (paragraph 122)…
I I
(8) In considering the fairness of a trial, the court must take a
J
broad view of the overall circumstances. The court must look J
at the fairness of the actual trial itself: for example, whether
the evidence obtained in breach of constitutional rights is
K reliable in the first place. Thus, for example, evidence which K
has been “tricked” out of a person (say, by inducements
improperly made) may be so inherently unreliable that it
L L
ought to be excluded.
M M
(9) However, the court does not just look at procedural
fairness in the actual trial. It is also entitled to look at the
N overall behaviour of the investigating authority or the N
treatment of the accused. Thus, circumstances may be such
that it would simply be unfair to an accused person to allow
O O
certain evidence to be used at trial, for example, where an
innocent person has been enticed to commit a crime. There
P can be situations in which it would be such an affront to the P
public conscience or the integrity of the criminal justice
system is so compromised that the court must step in to put a
Q stop to it. It is clear from the passage from Lord Scarman’s Q
speech in Sang (see paragraph 112 above) that there must be
R justice done to the accused himself… R
S (10) On the other hand, the breach of or derogation from S
constitutional guaranteed rights may be outweighed by the
public interest in ensuring that crimes are detected and
T punished. Here, one needs to look closely at two inter-related T
aspects: the right that has been breached and the extent of the
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A A
B breach. Though all rights guaranteed by a constitution are to B
be accorded great respect and any breach or derogation must
always be considered a cogent factor in excluding evidence,
C one must bear in mind that some rights are more fundamental C
and important than others and that where a right is breached,
D this can occur in a multitude of different situations… D
E (11) Where the gravity of a breach or derogation is small but E
the crime involved is a serious one, the public interest will
lean more favourably towards the latter factor with the
F consequence that any evidence obtained as a result of the F
breach or derogation will be admitted…
G G
(Underlined are my emphases)
H H
72. In our present case, there is no suggestion by D3 that the
I I
whatsapp messages were obtained by oppression, trickery or unfair means,
J or that such evidence would be reliable in any way. The search was done J
2 years before the decision in Sham Wing Kan of 2017. I cannot say that
K K
ICAC had acted in bad faith for not applying for a warrant in 2015. Had
L an application for a warrant been made to the court at that time, I think it L
would have been granted. I am satisfied in the investigation of a case of
M M
such serious nature as our present one, my discretion shall be to admit the
N whatsapp messages into evidence. N
O O
Matters Discussed in the Whatsapp Messages
P P
73. Based on my finding that D1 – D3 were the users of the phone
Q Q
numbers at the material times I also find them to be the senders or
R recipients, as the case may be, of the whatsapp messages. I come to R
consider the matters discussed by them.
S S
T T
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A A
B 74. On 8/10/2014, D1 texted D2 that someone wanted to know B
the Murder Case and the case appeared to be handled by DATS YTDIST.
C C
D 75. On 9/10/2014, D1 texted D2 that someone called “Fanling” D
had fixed up. D2 reminded D1 to delete the messages. D1 replied that he
E E
did not keep them.
F F
76. On 16/10/2014, D1 texted D2 to ask if there was anything and
G G
told D2 to call his ghost phone at will. D2 replied that he would ask about
H it tomorrow. H
I I
77. On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any
J time if the latest information was available. D1 also informed D2 of his J
ghost phone number.
K K
L L
78. On 20/10/2014, D1 texted to ask D2 if there was any latest
M
news and when “that lad” could come out. M
N N
79. On 12/12/2014, D1 texted D2 to ask if there were any updates.
O
D2 replied that it had to be next week, not so soon. O
P P
80. On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG)
Q would ask for information. Q
R R
81. On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing
S from his close friend of “Fanling”. D2 replied in the negative. S
T T
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A A
B 82. On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about B
the matter of the 30th day. D1 said someone was very nervous and, if that
C C
one’s close friend could not walk out, someone would not know how to
D explain. D
E E
83. On 30/1/2015, D2 texted D1 that it seemed he (D2) was being
F followed. F
G G
84. On 28/2/2015, Sgt CHENG in two messages (“Two
H Messages”) texted to D2 the nicknames and corresponding full Chinese H
names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt
I I
CHENG told D2 that suspects TANG and CHAN among them were
J arrested and the others were being wanted. J
K K
85. On 1/3/2015, D1 sent the 2 same messages to D3.
L L
M
86. On 7/3/2015, D2 texted D1 to ask when and how many would M
come back. D1 answered that one had been told to come back individually.
N N
O
87. On 24/3/2015, D1 texted D2 that those wretched friends O
would not be back until early 5/2015.
P P
Q 88. On 9/4/2015, D3 texted D1 to ask if a reply could be given to Q
the other side. Later on the same day, D1 texted D2 to ask for news about
R R
the case.
S S
89. On 14/4/2015, D1 texted to ask if there was any news as it
T T
was being asked by someone every day.
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B B
90. On 15/4/2015, D2 texted D1 that he (D2) had already asked
C C
someone to ask again. D2 suggested to have them talk face to face as
D mobile calls would leave records, inconvenient. D
E E
91. On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and
F to D1 respectively. D1 sent the Two Messages to D3. D1 texted D3 that F
CCTV captured “Tak Hau” and “Sai Chun” holding knives and walking on
G G
the street. D1 told D3 that no one upon their return should admit anything
H even if beaten to death and that was because guilty plea and cooperation H
would not mitigate murder or a sentence of life imprisonment.
I I
J 92. On 4 – 20/5/2015, D1 texted D2 that KAN would probably go J
back within a short period of time. D1 texted D3 to go to find RCU 1KW.
K K
D2 texted to ask D1 if the kid had gone yet. D1 texted to reply D2 that it
L
was around 11 o’ clock. D1 then texted the same message to D3. D3 texted L
M
D1 about risking life for landing. M
N N
93. On 21/5/2015, D3 texted D1 that the “buddy” had come back.
O
D3 texted D1 that suspect AH LAU would appear in court at 8 am O
tomorrow. D1 texted the same message to D2. D1 texted D2 to discuss
P P
about the potential court hearing tomorrow. D1 texted D2 to ask if Ah
Q LAU, who surrendered to the police would be “sing-ma-thai”. D2’s Q
opinion was that it should be a good thing for Ah LAU to go to court so
R R
soon. No identification parade was arranged as there was no witness, no
S evidence. D1 texted D2’s opinion to D3. D1 texted D2 to ask if Ah LAU S
would have a good chance for bail in the court hearing tomorrow. D2
T T
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A A
B replied that they had been reminded of what should be done about the bail B
hearing.
C C
D 94. On 22/5/2015, D1 texted D2 that “the close friend’s close D
friend” had probably come out.
E E
F 95. On 26 – 27/5/2015, D1 texted D2 to discuss about the return F
of the last “kid”. D2 texted D1 that all samples at the scene had been
G G
probably proved to belong to the victim, hence Ah LAU was not detained
H for checking the samples. D1 texted D2 to ask around about Ah LAU and H
whether there was any yellow sheet concerning the case. D2 replied that
I I
there was no evidence in the case, only images. Even if there was to be a
J holding charge, it was highly likely that the court would grant bail. J
K K
96. On 28/5/2015, D1 texted D2 that the last “kid” would arrive
L
at 11 o’clock. L
M M
97. On 31/5/2015, D1 texted D2 that suspect KAN had come out
N N
and whether KAN and Ah LAU got the “yellow sheet”.
O O
98. On 2/6/2015, D1 texted D2 and discussed about the quantum
P P
of their reward to be received and how to share it.
Q Q
Matters discussed by the Speakers in CS1 – CS653
R R
S S
T
53
MFI-23 is a summary of each of CS1 – CS6 provided by the prosecution; the defence does not T
challenge the summary
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B 99. In CS1 on 5/11/2014, 1st male asked 2nd male how the progress B
was. They discussed about blood test. 2nd male expected nil results as all
C C
blood belonged to the victim. The PIC of “Hot Hard Hot” was the only
D witness and this witness only saw a fight but not anyone being chopped. D
So chopping could not be proved. 1st male said “Ah Lau54”, “Tak Hau”,
E E
and someone nicknamed “Ah Wai” had not returned. 2 male said “Tak nd
F Hau” had already been arrested. They discussed about the available F
witnesses, whether it was necessary to conduct identification parade in this
G G
nd
murder case. 2 male said there was no witness who had seen the part of
H murder. Only an identification parade for the previous fighting scene but H
not for the murder.
I I
J 100. In CS2 on 14/1/2015, 1st male mentioned to 2nd male the J
matter of 30th. 1st male said he (1st male) earned “6 Dou”.
K K
L L
101. In CS3 on 25/2/2015, 1st male said 2 persons were not yet back.
M
2nd male asked if the file had been closed. 1st male said that it should be M
st
alright theoretically and secretly. 1 male said it seemed a warrant was
N N
issued for the two who were not yet back.
O O
102. In CS4 on 6/3/2015, 1st male advised 2nd male that those who
P P
were not back yet should come back one at a time to be accompanied a
Q lawyer to prevent them from revealing anything upon being questioned. 1st Q
male asked 2nd male to inform him (1st male) in advance so that he (1st male)
R R
could pass the information on to others. If those people returning were to
S S
T
54
“Now” is the transcriber’s choice; when I listen to the audio records I consider it closer to “Ah Lau” T
than “Now’ as the speakers actually do not give a nasal sound to the word
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A A
B be handled by his (1st male’s) people, those people would be alright. 1st B
male told 2nd male that three people coming back together would probably
C C
be held for one or two months. They (1st and 2nd males) would collect
D things quickly, if the people came back one by one. 1st male asked 2nd male D
to send a message to the other side that the police, that is his (1 st male’s)
E E
side, would try to suppress everything, eg CCTV was blurred, could not
F find witnesses, etc. If the persons who returned were to be handled by his F
people, they would be alright. But if they were to be handled by other
G G
teams, they would be booed. They discussed that the previous one was
H remanded for a couple of months until 30th January. H
I I
st nd
103. In CS5 on 2/6/2015, 1 male told 2 male of a concern that
J the other side would evade payment by reporting to ICAC. 2nd male J
mentioned “Ah Lau”. 2nd male asked 1st male to tell someone that after
K K
giving the 50%, the rest had to be paid to others at the end of the month as
L
it was believed that “Ah Lau” would probably be released after the first L
M
appearance in court or after 2 – 3 months at most. 2nd male asked 1st male M
to call someone to urge for $150,000, being half portion of the outstanding
N N
payment. They believed that as they had quoted $600,000, someone might
O
have made up the price of $1,000,000. They had received $300,000 from O
someone and so $300,000 was still outstanding. 1st and 2nd males recapped
P P
how much they had already received from the other party. The first
Q payment was $200,000. The second payment was $100,000 when Q
someone was released after the second court appearance, ie before new
R R
year. The first payment of $200,000 was shared by 4 persons while the
S second payment was shared by five persons. 1st and 2nd males agreed to S
have the final payment divided into 5 shares. 1st male was willing to share
T T
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B $20,000 - $30,000 with “Fei Sam” as “Fei Sam” had rendered assistance B
to him in a number of cases. 2nd male agreed to it.
C C
D 104. In CS6 on 6/6/2015, 1st male and 2nd male discussed about D
how to split the $150,000 cash they had with them. 1st male reiterated that
E E
it was to be divided among 5 persons and “Fei Sam” was entitled to
F $20,000. 2nd male agreed to it. 1st male said “Fei Sam” had good F
connections and could be of use. 1st male told 2nd male that he (1st male)
G G
would ask “Fei Sam” to come down later to take the $20,000.
H H
Prosecution’s Interpretations of CS1 – CS6 and Whatsapp Messages
I I
Put Together
J J
105. I consider the prosecution’s suggested interpretations [in
K K
square brackets] of CS1 – CS6 and whatsapp messages put together in
L L
chronological order. The whatspp messages are in italics.
M M
106. On 8/10/2014, D1 texted D2 that someone wanted to know the
N N
Murder Case and the case appeared to be handled by DATS YTDIST.
O O
107. On 9/10/2014, D1 texted D2 that someone called
P P
“Fanling”[D3] had fixed up. D2 reminded D1 to delete the messages. D1
Q replied that he did not keep them. Q
R R
108. On 16/10/2014, D1 texted D2 to ask if there was anything and
S told D2 to call his ghost phone at will. D2 replied that he would ask about S
it tomorrow.
T T
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A A
B 109. On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any B
time if the latest information was available. D1 also informed D2 of his
C C
ghost phone number.
D D
110. On 20/10/2014, D1 texted to ask D2 if there was any latest
E E
news and when “that lad” [one of the suspects] could come out.
F F
111. In CS1 on 5/11/2014, D1 asked D2 how the progress was.
G G
They discussed about blood test. D2 expected nil results as all blood
H belonged to the victim. The PIC of “Hot Hard Hot” [Hot Shot Bar] was H
the only witness and this witness only saw a fight but not anyone being
I I
chopped. So chopping could not be proved. D1 said “Ah Lau” [LAU
J King-hei]55, “Tak Hau” [TANG Wai-yeung], and someone nicknamed “Ah J
Wai” had not returned. D2 corrected D1 that “Tak Hau” [TANG Wai-
K K
yeung] had already been arrested. They discussed about the available
L L
witnesses, whether it was necessary to conduct identification parade in this
M
murder case. D2 said there was no witness who had seen the part of murder. M
Only an identification parade for the previous fighting scene but not for the
N N
murder.
O O
112. On 12/12/2014, D1 texted D2 to ask if there were any updates.
P P
D2 replied that it had to be next week, not so soon.
Q Q
113. On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG)
R R
would ask for information.
S S
T
55
“Now” is the transcriber’s choice; when I listen to the audio records I consider it closer to “Ah Lau” T
than “Now’ as the speakers actually do not give a nasal sound to the word
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A A
B B
114. On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing
C C
from his close friend “Fanling” [D3]. D2 replied in the negative.
D D
115. In CS2 on 14/1/2015, D1 mentioned the matter of 30th
E E
[30/1/2015, the date of court hearing of suspect TANG in Kowloon City
F Magistracy]. D1 earned “6 Dou”56 [$600,000]. F
G G
116. On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about
H the 30th [30/1/2015, the court hearing]. D1 said someone was very nervous H
and, if that one’s close friend [suspect] could not walk out [get bail],
I I
someone would not know how to explain.
J J
117. On 30/1/2015, D2 texted D1 that it seemed he (D2) was being
K K
followed.
L L
M
118. In CS3 on 25/2/2015, D1 said 2 persons [suspects] were not M
yet back. D3 asked if the file [police file] had been closed. D1 said that it
N N
should be alright theoretically and secretly. D1 said it seemed a warrant
O
[warrant of arrest] was issued for the two who were not yet back. O
P P
119. On 28/2/2015, Sgt CHENG in two messages (“Two
Q Messages”) texted to D2 the nicknames and corresponding full Chinese Q
names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt
R R
CHENG told D2 that suspects TANG and CHAN among them were
S arrested and the others were being wanted. S
T T
56
“Dou” is a common term for $100,000
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A A
B B
120. On 1/3/2015, D1 sent the Two Messages to D3.
C C
D 121. In CS4 on 6/3/2015, D1 advised D3 that those who were not D
back yet should come back one at a time to be accompanied by a lawyer to
E E
prevent them from revealing anything upon being questioned. D1 asked
F D3 to inform him (D1) in advance so that he (D1) could pass the F
information on to others. If those people returning were to be handled by
G G
his (D1’s) people, those people would be alright. D1 told D3 that three
H people coming back together would probably be held for one or two H
months. D1 asked D3 to send a message to tell the other side that the police,
I I
that is his (D1’s) side, would try to suppress everything, eg CCTV was
J blurred, could not find witnesses, etc. They discussed that the previous one J
was remanded for a couple of months until 30th [30/1/2015, the court
K K
hearing].
L L
M
122. On 7/3/2015, D2 texted D1 to ask when and how many would M
come back. D1 answered that one had been told to come back individually.
N N
O
123. On 24/3/2015, D1 texted D2 that those wretched friends O
would not be back until early 5/2015.
P P
Q 124. On 9/4/2015, D3 texted D1 to ask if a reply could be given to Q
the other side. Later on the same day, D1 texted D2 to ask for news about
R R
the case.
S S
125. On 14/4/2015, D1 texted D2 to ask if there was any news as it
T T
was being asked by someone every day.
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A A
B B
126. On 15/4/2015, D2 texted D1 that he (D2) had already asked
C C
someone to ask again. D2 suggested to have them talk face to face as
D mobile calls would leave records, inconvenient. D
E E
127. On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and
F D1 respectively. D1 sent the Two Messages to D3. D1 texted D3 that F
CCTV captured “Tak Hau” and “Sai Chun” [suspects TANG and KAN]
G G
holding knives and walking on the street. D1 told D3 that no one upon
H their return should admit anything even if beaten to death and that was H
because guilty plea and cooperation would not mitigate murder or a
I I
sentence of life imprisonment.
J J
128. On 4 – 20/5/2015, D1 texted D2 that “Sai Chun” [suspect
K K
KAN] would probably go back within a short period of time. D1 texted D3
L L
to go to find RCU 1KW. D2 texted to ask D1 if the kid had gone yet. D1
M
texted to reply D2 that it was around 11 o’ clock. D1 then texted the same M
message to D3. D3 texted D1 that risking life for landing.
N N
O
129. On 21/5/2015, D3 texted D1 that the “buddy” [suspect] had O
come back. D3 texted D1 that “Ah Lau” [suspect LAU] would appear in
P P
court at 8 am tomorrow. D1 texted the same message to D2. D1 texted D2
Q to discuss about the potential court hearing tomorrow. D1 texted D2 to Q
ask if “Ah Lau”, who surrendered to the police would be “sing-ma-thai”.
R R
D2’s opinion was that it should be a good thing for “Ah Lau” to go to court
S so soon. No identification parade was arranged as there was no witness, S
no evidence. D1 texted D2’s opinion to D3. D1 texted D2 to ask if “Ah
T T
Lau” would have a good chance for bail in the court hearing tomorrow.
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A A
B D2 replied that they had been reminded of what should be done about the B
bail hearing.
C C
D 130. On 22/5/2015, D1 texted D2 that the close friend’s close D
friend had probably come out.
E E
F 131. On 26 – 27/5/2015, D1 texted D2 to discuss about the return F
of the last “kid” [suspect]. D2 texted D1 that all samples at the scene had
G G
been probably proved to belong to the victim, hence “Ah Lau” was not
H detained for checking the samples. D1 texted D2 to ask around about “Ah H
Lau” and whether there was any yellow sheet [bail paper] concerning the
I I
case. D2 replied that there was no evidence in the case, only images. Even
J if there was to be a holding charge, it was highly likely that the court would J
grant bail.
K K
L
132. On 28/5/2015, D1 texted D2 that the last “kid” [suspect] L
M
would arrive at 11 o’clock. M
N N
133. On 31/5/2015, D1 texted D2 that the “kid” [suspect] had
O
come out. D1 asked D2 if “Ah Lau” and the last kid had any yellow sheet O
[bail paper].
P P
Q 134. On 2/6/2015, D1 texted D2 and discussed about the payment Q
of their reward to be received and how to share it.
R R
S 135. In CS5 on 2/6/2015, D1 and D3 discussed about the concern S
that the other side would evade payment by reporting to ICAC. D3
T T
mentioned “Ah Lau”. D3 asked D1 to tell someone that after giving the
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A A
B 50%, the rest had to be paid to others at the end of the month as it was B
believed that “Ah Lau” would probably be released after the first
C C
appearance in court or after 2 – 3 months at most. D3 asked D1 to call
D someone to urge for $150,000, being half portion of the outstanding D
payment. They believed that as they had quoted $600,000, someone might
E E
have made up the price of $1,000,000. They had received $300,000 from
F someone and so $300,000 was still outstanding. D1 and D3 recapped how F
much they had already received from the other party. The first payment
G G
was $200,000. The second payment was $100,000 when someone was
H released after the second court appearance, ie before new year. The first H
payment of $200,000 was shared by 4 persons while the second payment
I I
was shared by five persons. D1 and D3 agreed to have the final payment
J divided into 5 shares. D1 was willing to share $20,000 - $30,000 with “Fei J
Sam” [D2] as “Fei Sam” [D2] had rendered assistance to him in a number
K K
of cases. D3 agreed to it.
L L
M
136. In CS6 on 6/6/2015, D1 and D3 discussed about how to split M
the $150,000 cash they had with them. D1 reiterated that it was to be
N N
divided among 5 persons and “Fei Sam” [D2] was entitled to $20,000. D3
O
agreed to it. D1 said “Fei Sam” [D2] had good connections and could be O
of use. D1 told D3 that he (D1) would ask “Fei Sam” [D2] to come down
P P
later to take the $20,000.
Q Q
Could D1/D2/D3 Be Merely Present While Some Others On Board
R R
Talked or Used Speaker Phone
S S
137. I come to consider the possible contention that D1 – D3 might
T T
have kept quiet all the time while others on board were speaking or
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A A
B someone called in by speaker phone, resulting in the CS1 – CS6 audio B
records picking up voices attributable to other people, not D1 – D3. I do
C C
not find merit in such contention in light of the perfectly coherent flow of
D matters discussed through the continuum of whatsapp messages and CS1 D
– CS6 put in chronological order as above. It would have been impossible
E E
for anyone else, except D1 – D3, to weave into the continuum of whatsapp
F messages sent or replied among themselves so seamlessly if they had not F
been the very speakers in CS1 – CS6, as the case may be.
G G
H Defence Challenge to Prosecution’s Interpretations of CS1 – CS6 and H
Whatsapp Messages
I I
J 138. Mr. Khosa for D1 submits that, if D1 and D2 are found to be J
the speakers in CS1, there was no mention by D1 and D2 as to where D2’s
K K
information was from. PW23 (WCIP YU Yuen-yan) had already sent a
L L
letter to the prosecutor in Kowloon City Magistracy regarding what
M
outstanding investigation had to be done. Besides, numerous crime M
messages were circulated to other police formations about the case.
N N
Nothing D1 and D2 discussed was confidential. I will deal with this issue
O
of confidentiality later. O
P P
139. Mr. Khosa submits that in CS2, it is difficult to make sense of
Q what D1 and D3 talked about, such as the immigration matters about Q
someone being stopped, and loose references about land, Porsche, Uncle,
R R
some numbers, iPhone 6 functions, someone called Ah Ling, or soccer. I
S do not think these matters talked between D1 and D3 had any significance S
at all.
T T
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A A
B 140. Mr. Khosa submits that in CS3, the discussion was about B
Suspect TANG, who was already released by the court on 30/1/2015, and
C C
his negative DNA result publicized. Both matters were reported in the
D news57 and in public domain. I think the news only mentioned that DNA D
test was going to be conducted on TANG’s clothing. It was never
E E
announced to the general public that it was already done or that the result
F was negative. F
G G
141. Mr. Davies for D2 argues that in CS1 on 5/11/2014, the
H speaker, if it was D2, said DNA results were not yet available whereas the H
undisputed evidence is that the results were available already on
I I
58
3/11/2014 . I understand that D2 had to rely on others to provide such
J information to him. I do not think that he would be necessarily provided J
information within 2 days after it was completed. Mr. Davies argues that
K K
the speaker in CS1 mentioned the evidence of the eye-witness despite such
L L
evidence being reported already in the newspaper59. I do not regard this
M
part as confidential information. Mr. Davies argues that the names of M
suspects would have been circulated to police officers. The suspects
N N
themselves would know because police officers would have gone to their
O
homes to look for them60. I think information circulated to a police officer O
remained to be confidential and, unless warranted by his official duty, he
P P
should not disseminate it to a third party. The fact that the suspects knew
Q Q
R R
57
D5A is Tsing Tao Daily News clip on Yahoo News web dated 10/10/2014
S S
58
D2’s final submissions para. 15(i)
59
D2’s final submissions para. 15(ii)
T T
60
D2’s final submissions para. 15 (iii)
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A A
B or might believe themselves to be on the wanted list does not alter the B
confidential nature of the information.
C C
D Nicknames D
E E
142. The prosecution suggests that certain nicknames were
F referable to the suspects in the Murder Case or the defendants, as the case F
may be. The defence challenges the parity as not definite proof, such as
G G
whether “Tak Hau” must be TANG Wai-yeung, or “Ah Lau” must be LAU
H King-hei. I agree that there is no concrete proof of such parity. However, H
if there is a clear context in which the nickname appears, the nickname can
I I
suggest an actual person who, although being unidentified by a proper
J name, is occupying a particular role in the course of events. As an example, J
it suffices for the prosecution if “Tak Hau” and “Ah Lau” are to be regarded
K K
as 2 unidentified persons on the police wanted persons' list in the Murder
L L
Case.
M M
Items of Information Involved in Present Charge
N N
O
143. The prosecution has identified 8 items of information which O
were passed by Sgt CHENG to D2, by D2 to D1, or by D1 to D3, as the
P P
case may be61. They include:
Q Q
(1) the results of forensic examination;
R R
(2) the evidence of eye-witness;
S S
T T
61
MFI-15
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A A
B (3) information concerning the suspects; B
C (4) status of the investigation; C
D (5) information about the issue of warrants of arrest; D
E (6) information about CCTV footages; E
F
(7) information about the bail or custody of the arrested persons; F
(8) information about the identification parade.
G G
H H
144. From the contents of whatsapp messages and CS1 – CS6, I
I am satisfied that these were passed between the parties as aforesaid. I
J J
Whether the Information was Confidential
K K
145. The main thrust of the defence argument 62 is that when
L L
suspect TANG was brought to Kowloon City Magistracy on 9/10/2014, the
M
police had written a memo to the prosecutor in court entitled “Request for M
N
remand in custody” setting out the investigation/prosecution work 63. Its N
contents had become public knowledge. There were media reporting of it.
O O
Police investigation work done, such as the visit to the residences of wanted
P persons or their families, or the results notified to suspects after an P
identification parade might be freely spread around by the suspects and
Q Q
associates. Or maybe the eye-witness told other people what he had seen.
R The information from these civilians would become non-confidential. D1 R
– D3 might only intend to deal with such non-confidential information.
S S
62
D1’s closing submissions paras 80 – 82
T T
63
P87
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A A
B B
146. To answer this argument, I think one has to differentiate
C C
between the information of police investigation work kept by the police
D (“Information Kept by the Police”) and the information of police D
investigation work in the public domain (“Information in the Public
E E
Domain”). On the one hand, Information Kept by the Police was for the
F detection of crime. A police officer is only in possession of such F
information because he has official duties in respect of it. Such information
G G
must not be told to or shared with the general public. The general police
H officers who have no official duties in respect of it are, as much as the H
general public, denied access to it. In my view, it is in this sense
I I
“confidential”. It remains confidential until the time has come for its
J official release to the general public. On the other hand, Information in the J
Public Domain is such information already officially released to the
K K
general public, say, by way of the prosecution’s submissions to the judge
L L
in court. Our present case does not concern with Information in the Public
M
Domain. It is only Information Kept by the Police that can qualify as M
“confidential” in our present case.
N N
O
147. I note that in CS1 on 5/11/2014, D2 told D1 that nil results O
would be expected of the blood test as all the blood belonged to the victim.
P P
I think such information necessarily had to come from Information Kept
Q by the Police as the suspects and associates would not know it. Besides, Q
D2 told D1 that the person-in-charge of the restaurant was the only eye-
R R
witness to the fight. Mr. Davies argues that such information was not
S confidential. I think this eye-witness would not know if there were other S
eye-witnesses apart from himself. Such information necessarily had to
T T
come from Information Kept by the Police. In CS3 on 25/2/2015, D3 asked
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A A
B D1 if the file had been closed. D1 replied that it should be alright B
theoretically and secretly. I think only Information Kept by the Police can
C C
tell whether the file was closed. These matters were denied to the general
D public. I find it fanciful to argue that D1 and D2 were to be paid a hefty D
reward for simply being members of the public who gather news reports
E E
for D3 as Information in the Public Domain. D3 would have sought out a
F news reporter if D3 was looking for Information in the Public Domain. It F
is obvious that the official capacity of D1 and D2 as police officers give
G G
them access, whether direct or indirect (such as through Sgt CHENG for
H the list of wanted persons), to the Information Kept by the Police. It must H
be the underlying reason for D3 to pay them such a hefty reward.
I I
J 148. I reject the defence argument that the agreement was for D1 J
and D2 to procure and obtain Information in the Public Domain.
K K
L L
Conclusion
M M
149. I am satisfied on the evidence that between 8/10/2014 and
N N
7/6/2015 there was a conspiracy for D1 and D2 and others to procure and
O
obtain confidential information of police investigation into the murder of O
WONG Man-kin and divulge it to D3 in return for monetary reward. The
P P
aforesaid act of procuring, obtaining, and divulging was to be a continuum
Q of wilful misconduct in their course of or in relation to their public office Q
as police officers. There was no reasonable excuse or justification for
R R
them to do so. Such misconduct was serious in that it was contrary to the
S public interest in the investigation of crimes and the apprehension of S
suspects.
T T
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A A
B 150. I find all ingredients of the charge proved beyond reasonable B
doubt. D1 – D3 are convicted as charged.
C C
D D
(E. Yip)
E E
District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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B DCCC 67/2017 B
[2018] HKDC 357
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO. 67 OF 2017
F ----------------------------------- F
HKSAR
G G
v.
H LEE Yuen Fook (D1) H
YIP Kwok Leung (D2)
I I
HUNG Wai Ming (D3)
J ----------------------------------- J
Before: HH Judge E. Yip
K K
Date: 31st January 2018 at 9:36 am
L Present: Mr Derek LAI, SADPP (Ag.) and Mr William SIU, Senior L
Public Prosecutor, of the Department of Justice, for HKSAR
M M
Mr David KHOSA and Ms Polly CHUANG, instructed by
N M/s Wong & Co for D1 N
Mr Oliver DAVIES and Ms Annie BU and Ms Stephanie KO,
O O
instructed by M/s Wong & Co for D2
P Mr CHAN Ka Sing and Mr Jason LEE, instructed by M/s P
KCL & Partners for D3
Q Q
Offence: [1] Conspiracy to commit misconduct in public office (串謀公職
R R
人員行為失當罪)
S ---------------------------- S
Reasons for Verdict
T T
----------------------------
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A A
B Charge B
C C
1. D1 – D3 deny a charge of conspiracy to commit misconduct
D in public office as follows: D
E E
Statement of Offence
F Conspiracy to commit misconduct in public office, contrary F
to Common Law and sections 159A and 159C of the Crimes
G G
Ordinance, Cap. 200 and section 101I(1) of the Criminal
H Procedure Ordinance, Cap. 221. H
I I
Particulars of Offence
J LEE Yuen-fook, YIP Kwok-leung and HUNG Wai-ming, J
between the 8th day of October 2014 and the 7th day of June
K K
2015, both dates inclusive, in Hong Kong, conspired together
L L
with other unknown persons that LEE Yuen-fook and YIP
M
Kwok-leung, being public officials, namely Police Constable M
UI 49901 and Station Sergeant UI 46093 respectively of the
N N
Hong Kong Police Force (“the Police”) of the Government of
O
the Hong Kong Special Administrative Region, without O
reasonable excuse or justification, would wilfully and
P P
intentionally misconduct themselves in the course of or in
Q relation to their public offices, in return for monetary reward, Q
by:-
R R
S (i) Procuring and obtaining confidential information of the S
Police investigation into the murder of WONG Man-kin (‘the
T T
Investigation”); and
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A A
B (ii) Divulging confidential information of the Investigation B
to other persons.
C C
D D
Crux of the Prosecution Case
E E
2. D3 was a civilian. D1 and D2 were serving police officers.
F F
D3 requested D1 to procure and obtain confidential information of the
G Investigation at various junctures during the period in question. D1 told G
D2 that someone was interested in such information. D2 procured and
H H
obtained such information and divulged it to D1. D1 in turn divulged it to
I D3. It was agreed that D3 would pay D1 and others, including D2, I
monetary rewards for their acts.
J J
K 3. During the period in question, ICAC mounted 6 covert K
surveillances (“CS1 – CS6”) of meetings between D1 and D2 in D2’s car,
L L
or D1 and D3 in D3’s car, as the case may be, resulted in audio records.
M There were about 1,000 whatsapp messages in total between D1 and D2, M
D1 and D3, D2 and other persons, retrieved from SIM cards from mobile
N N
phones relating to them. The audio records and the whatsapp messages
O construed together reflect a conspiracy in the terms as particularized in the O
P
charge. P
Q Q
Stance of the Defence
R R
4. The defence disputes the following:
S S
T (1) D1 – D3’s voices were in the audio records of CS1 – CS6; T
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A A
B (2) D1 – D3 sent or received the whatsapp messages retrieved B
from the SIM cards relating to them;
C C
(3) In any event, the information being procured or obtained or
D D
divulged was confidential.
E E
F 5. D1 and D2 have a clear record. D3 has a criminal record1 for F
drink-driving. When considering the credibility of their evidence and their
G G
propensity to commit the present offence, I have to adopt a view more
H favourable to them. D1 – D3 do not give evidence or call any witnesses. H
I I
Law of Misconduct in Public Office
J J
6. As stated by Sir Anthony Mason NPJ in Sin Kam Wah &
K K
Another v HKSAR (2005) 8 HKCFAR 192:
L L
The offence is committed where:
M (1) a public official; M
(2) in the course of or in relation to his public office;
N N
(3) wilfully misconducts himself; by act or omission, for
example, by wilfully neglecting or failing to perform his
O O
duty;
(4) without reasonable excuse or justification;
P P
(5) and where such misconduct is serious, not trivial, having
Q regard to the responsibilities of the office and the Q
officeholder, the importance of the public objects which
they serve and the nature and the extent of the departure
R from those responsibilities.” R
S S
1
T D6 is the criminal record for Driving a motor vehicle with alcohol concentration above the prescribed T
limit, sentenced on 25/6/2015
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A A
B Prosecution Case B
The Murder Case and the Investigation
C C
D 7. In the early hours on 5/10/2014, WONG Man-kin nicknamed D
“Ah Tsz” (“the Deceased”) and a Chinese male assaulted two customers at
E E
Hot Shot Bar in Chatham Road, Tsim Sha Tsui. They fled the scene
F afterwards. The Deceased was caught nearby by a gang of knife-wielding F
Chinese males in Cameron Road. The Deceased was stabbed and severely
G G
injured in his head. He was certified dead two days later on 7/10/2014
H (“the Murder Case”). The Murder Case was initially investigated by DATS H
1 YTDIST. It was taken over by Team 1B of Regional Crime Unit,
I I
Kowloon West Regional headquarters (RCU 1B KW) on 6/10/2014.
J J
8. D1 is a Police Constable (PC 49901). At all material times,
K K
he was attached to Tsim Bei Tsui 1, Tin Shui Wai Division (TBT 1
L L
TSWDIV). D2 is a Police Station Sergeant. At all material times, he was
M
attached to the District Intelligence Section of Kowloon City District (DIS M
KCDIST) . CHENG Pak-to (“Sgt CHENG”) is a Police Sergeant (Sgt
2
N N
33447) attached to the District Anti-Triad Section Team 1 of Yau Tsim
O
District (DATS 1 YTDIST) between 10/6/2012 and 2/5/2015. He was O
attached to DIS KCDIST, the same team as D2, between 3/5/2015 and
P P
2/6/20163.
Q Q
R R
S S
2
P53 Admitted Facts Part 1, paras. 1 and 2
T T
3
P53 para. 7
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A A
B 9. At all material times, the two Police units to which D1 and D2 B
were attached, ie TBT 1 TSWDIV and DIS KCDIST, were not involved in
C C
the investigation of the Murder Case.
D D
The Suspects
E E
F 10. Shortly after the attack on the Deceased, the Police had F
already identified and suspected TANG Wai-yeung (“TANG”), LAU
G G
King-hei (“LAU”), KAN Chun-hoi (“KAN”), CHAN Wai-yip (“CHAN”),
H and LUK wing-sum (“LUK”) as being involved in the attack on the H
Deceased.
I I
J 11. As regards suspect TANG, he was arrested on 7/10/2014 4 . J
He was charged with murder on 9/10/2014. He was brought to Kowloon
K K
City Magistracy on 10/10/2014, resulting in a return date of 30/1/2015.
L L
Meanwhile he was remanded in jail custody. Negative DNA results were
M
found of him by the Government Laboratory on 3/11/2014. The witness M
could not identify him in an identification parade held by the police on
N N
9/12/2014. He was brought to Kowloon City Magistracy for mention to
O
have the charge against him withdrawn on 30/1/2015; he was released O
unconditionally for insufficient evidence.
P P
Q 12. As regards suspect KAN, he left Hong Kong via Macau Ferry Q
Terminal on 6/10/2014. The police obtained a warrant of arrest against
R R
him on 11/11/2014. Accompanied by his lawyers, he surrendered to
S Kowloon City Police Station on 28/5/2015; he was arrested for the murder; S
T T
4
P6 Chronology of events
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A A
B he remained silent under caution. He was released on police bail on B
29/5/2015. He was released unconditionally by the police for insufficient
C C
evidence on 21/8/2015.
D D
13. As regards suspect LAU, he left Hong Kong via Macau Ferry
E E
Terminal on 6/10/2014. The police obtained a warrant of arrest against
F him on 11/11/2014. Accompanied by his lawyers, he surrendered to F
Kowloon City Police Station on 21/5/2015; he was arrested for the murder;
G G
he remained silent under caution. He was released on police bail on
H 22/5/2015. He was released unconditionally by the police for insufficient H
evidence on 21/8/2015.
I I
J 14. As regards suspect CHAN, he was arrested on 8/10/2014. He J
was released on police bail on 10/10/2014. Negative DNA results were
K K
found of him by the Government Laboratory on 3/11/2014. He was
L L
released unconditionally by the police on 19/1/2015.
M M
15. As regards suspect LUK, he was arrested on 7/11/2014; he
N N
was released on police bail. Negative DNA results were found of him by
O
the Government Laboratory on 15/12/2014. O
P P
VRIs of D1 – D3
Q Q
16. D1 and D2 were arrested at an earlier hour on 7/6/2015. D3
R R
was also arrested on 7/6/2015.
S S
T T
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A A
B 17. D1 refused to answer questions in VRIs except for those B
concerning his general background5.
C C
D 18. D2 admitted to have met D3 on some occasions6, D3 had a D
nickname “Fanling”7, and before arrest he was in the lounge in Yuen Long
E E
8
to meet D1, D3 and others for a drink . D2 also admitted to know Police
F Sgt CHENG, who was attached to OCTB YTDIST, for 2 – 3 years. He F
had official dealings with Sgt CHENG at work, such as exchange of
G G
9
different types of intelligence to facilitate future police investigation . He
H was not limited to the exchange of intelligence with police colleagues of H
the same district10. He learned from his colleagues that the culprits in the
I I
11
Murder Case had fled to the Mainland . He could not recall if he had
J shared any intelligence with others in the Murder Case12. He had money J
dealings with D3 as he would help D3 to buy something13.
K K
L L
19. When arrested, D3 was in possession of an iPhone. There was
M
a SIM card for mobile phone number 6111 1355. He admitted to be the M
user of the mobile phone number relating to the SIM card installed in the
N N
O 5
P41 – P43 O
6
MFI-5; P30 # 58, # 123 – 154
P P
7
MFI-5; P30 # 156 – 166
Q 8
MFI-5; P30 #247 – 270 Q
9
MFI-6; P31 # 17 – 68, 117 – 118
R R
10
MFI-6: P31 # 141 – 144
S 11
MFI-6; P31 # 238 – 253 S
12
MFI-6; P31 # 340 – 353
T T
13
MFI-6; P31 # 474 – 489
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A A
B iPhone14. The prosecution says the SIM card contained whatsapp messages B
probative of the proof of the conspiracy.
C C
D 6 Covert Surveillances D
E E
20. The ICAC conducted 6 covert surveillances (CS1 – CS6)
F which resulted in audio records pertaining to the present charge. CS1 F
related to D1 and D2 on board D2’s car. CS2 – CS6 related to D1 and D3
G G
on board D3’s car.
H H
21. ICAC officers taking part in the CSs were given ROP photos15
I I
of the targets such as D1, D2, and D3 in briefings on the same day before
J the CS in question. The number of targets grew to about 10 over a period J
of over 2 years. Therefore, near the end of the whole case, they had about
K K
10 faces to identify.
L L
M
Observation in CS1 on 5/11/2014 M
N N
22. At about 1500 h PW5 (Rainie KOO Mei-wan) attended a
O
briefing in which she received more than a set of copies of 5 ROP black O
and white photos, including one for D1 and one for D2. The respective
P P
ROP photos of D1 and D2 were a bit more blurry than the ones produced
Q in court16. After 1600 h, she began to study D1’s and D2’s photos for about Q
R R
S 14
MFI-4; P16 # 109 – 147 S
15
Copies of Registration of Persons Record (“ROP”) photos from Immigration Department record
T T
16
P2 @ 35; P3 @ 38
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A A
B 20 minutes each. She could memorise their faces. She left office without B
the ROP photos.
C C
D 23. At about 1848 h on 5/11/2014, she was at her observation post D
on Po Ping Road near North District Hospital. Four males come out of the
E E
entrance of the hospital to walk to Po Ping Road. She was pacing slowing
F about the spot and observed them for about 10 seconds when they passed F
her. She focused on each of D1’s and D2’s faces for 3 – 4 seconds.
G G
Lighting was sufficient from the street lamps and the entrance of the
H hospital. She followed D1 and D2 at 3 – 4m away into the open air carpark. H
D1 boarded D2’s car SA7862. She walked past the car when D1 was at the
I I
front passenger seat and D2 on the driver’s seat. She immediately informed
J PW5 (Kenix POON Hong-ying) at 1848 h. PW5 immediately switched on J
the audio recording device secretly pre-installed in D2’s car. PW5 saw
K K
D2’s car at 1850 h at the exit of the car park. CS1 spanned between 1850
L L
h and 1904 h17.
M M
18
24. The defence challenges first, the poor quality of her
N N
observation; secondly, the possibility of someone boarding and/or
O
alighting from D2’s car in the 2-minute gap; thirdly, the absence of details O
in her written record of what ROP photos she had received in the briefing
P P
and of the circumstances of the observation.
Q Q
25. I first consider the quality of her observation. She had studied
R R
each of D1’s and D2’s ROP photos, which were taken about 10 years
S S
17
P23 the DVD, P23(a) the transcript as redacted, P23(b) the English translation of P23(a)
T T
18
D1’s closing submissions paras 11 – 14; D2’s closing submissions para 5 – 7
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A A
B before, for 20 minutes before her departure for the observation post. She B
was tasked to observe them if they appeared. It was not a surprise
C C
encounter. D1 and D2 were walking towards her direction and then past
D her. She had a close look of them. Out of her observation of the four for D
10 seconds, she spent 3 – 4 seconds on the identification of D1 and D2
E E
each. She relied on the lighting from street lamps and the entrance of the
F hospital. She then followed D1 and D2 to D2’s car in the open air carpark. F
In such circumstances of observation, the Turnbull guidelines shall be
G G
applicable. I have viewed the photo of the location and D1’s and D2’s
19
H ROP photos. I note from the position of the street lamps and lights from H
the entrance of the hospital that such lighting if lit on, could illuminate the
I I
spot where she identified D1 and D2. I believe her evidence that such
J lighting was lit on and sufficient at that time. I also note that D1’s and J
D2’s faces in court still bear a clear and close semblance to their ROP
K K
photos. I am satisfied that her identification of D1 and D2 in CS1 was
L L
accurate and reliable.
M M
26. I come to consider the implications of the 2-minute gap
N N
between 1848 h and 1850 h. I think the real issue should not be just for the
O
2 minutes but whether D1 and/or D2 had alighted from the car in the whole O
course of the audio recording between 1848 h and 1904 h. I have listened
P P
to the audio record. There is no sound of the opening or closing of D2’s
Q car doors throughout. I am satisfied that there was no one boarding or Q
alighting from D2’s car until PW5 switched off the audio recording device.
R R
S S
T T
19
D1
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A A
B 27. I consider the absence of details in her written record of what B
ROP photos she had received in the briefing and of the circumstances of
C C
the observation. Poor record keeping it surely was on the part of her OC
D case PW10 (Henry LUNG Ho-yan) to destroy such copies of ROP photos D
distributed to ICAC officers and later retrieved from them. However, there
E E
is overwhelming oral evidence that the unrecovered copies of ROP photos
F were copies of the ROP photos adduced in court. It is true that as regards F
the circumstances of observation in CS1, PW3’s notebook, as a nearly
G G
contemporaneous record of the event, did not give a detailed description of
H the circumstances of observation or of D1’s and D2’s features. I have the H
opportunity of assessing how she responds to the questions for details. Her
I I
answers are given forthwith and coherent. I am satisfied that she is an
J honest witness and her memory of the events is good and sufficient. J
K K
Observation in CS2 on 14/1/2015
L L
M
28. PW7 (Henry CHEUNG Ka-kit) had observed D1 on M
3/11/2014, 15/3/2014, 9/10/2014, and D1 and D2 together on 25/12/2014.
N N
He was able to recognize them in CS2 on 14/1/2015.
O O
29. He was making observation at Tin Yiu Estate near Tin Yiu
P P
Plaza from about 2040 h in CS2 on 14/1/2015. Through the windscreen,
Q D3 was seen at the driver seat of JT265 as the car drove towards and past Q
him. He could not see if there were other people on board. It came to a
R R
stop at the roundabout opposite to him. P60 is a set of photos showing the
S location. He marked on Photo 2 where the car stopped very close to the S
kerb and the continuous line of railing. There was sufficient lighting from
T T
the street lamps and the lights of the staircase where the car stopped. From
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A A
B his position, he could only see the right hand side of the car. He saw D1 B
for 5 – 6 seconds as D1 was walking towards the car. He could not see
C C
through the car windows the inside of the car. At first there was a bit of
D D1’s head over the car roof near the left side door and then that bit D
disappeared. When a data sheet of the same model20 as D3’s car suggests
E E
that the car roof ought to be higher than D1’s head, he amends his evidence
F to that of seeing D1 walk to the left hand side of the car and disappear there. F
He infers therefore that D1 had boarded the car. He immediately called his
G G
PW6 (Edison LIEH Kiu-kwan) to switch on the audio recording device
H pre-installed in D3’s car. Between 2043 h and 2055 h no one came to or H
left the car. At 2055 h, D1 walked away from the car. PW7 immediately
I I
called PW6 to switch off the audio recording device. CS2 spanned between
J 2043 h and 2055 h21. J
K K
22
30. The defence challenges first the quality of his observation
L L
and secondly the lack of detailed description in his written record of his
M
previous observations of D1 and D3 and the circumstances of his M
identification of D1 and D3 in CS2.
N N
O
31. I first consider the quality of his observation. I note from the O
position of the street lamps and lights from the staircase that such lighting,
P P
if lit on, could illuminate the spot where he identified D1. I believe his
Q evidence that such lighting was lit on and was sufficient at that time. I note Q
the position where the car stopped. There was not much room for an adult
R R
20
S D2 S
21
P24 the DVD, P24(a) the transcript as redacted, P24(b) the English translation of P24(a)
T T
22
D1’s closing submissions paras 15 – 20
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A A
B to squeeze into the gap between the car and the railing without boarding B
the car. It is implausible that D3 had just squatted on the kerb side in the
C C
tight space between the car body and the railing for 12 minutes without
D boarding the car. PW7’s observation of D1 and D3 was each for a short D
duration, and, in the case of D1, at some distance whereas, in the case of
E E
D3, D3’s was behind the windscreen. In such circumstances of
F observation, the Turnbull guidelines shall be applicable. I am satisfied that F
his identification aided by his recognition of D1 and D3 was each accurate
G G
and reliable.
H H
32. I also consider the lack of detailed description in his written
I I
record of his previous observations of D1 and D3 and the circumstances of
J his identification of D1 and D3 in CS2. Mr. Chan for D3 23 submits that J
PW7 did not record whether he went to the closest position of the edge of
K K
the bush area. He did not record the car making a U-turn in his notebook
L L
either. I have the opportunity of assessing his responses to the questions
M
for details. His answers are given forthwith and coherent. Mr. Chan also M
submits that his evidence of seeing D1’s head partly over the car roof has
24
N N
turned out to be incorrect as the car was proved by its specifications
O
handout that its roof was higher than D1’s head. I am aware of his evidence O
originally that D1’s head could be partly seen over the car roof and, upon
P P
knowing that the car roof was higher than D1’s head altogether, amended
Q to be an inference that he had boarded the car. It is not so significant as to Q
affect his credibility and reliability. I am satisfied that he is an honest
R R
S S
23
D3’s closing submissions para 3
T T
24
D3’s closing submissions para 5
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A A
B witness and subject to the aforesaid aspect, his memory of the events is B
good and sufficient.
C C
D 33. On the issue of whether D1 and/or D3 had alighted from the D
car in the course of the audio recording. I have listened to the audio record.
E E
There is no sound of the opening or closing of the car doors throughout. I
F am satisfied that there was no one boarding or alighting from the car. F
G G
Observation in CS3 on 25/2/2015
H H
34. PW8 (May CHEUNG Hoi-lam) had observed D1 on
I I
10/10/2014, D1 and D3 together on 15/10/2014, D1 on 27/11/2014, D1 and
J D3 together on 29/1/2015, D1 and D3 together on 31/1/2015. She was able J
to recognize them in CS3 on 25/2/2015.
K K
L L
35. At about 2005 h on 25/2/2015, her observation post was at the
M junction of Chuk Yau Road and San Tin Highway. She saw D3 driving M
JT265 towards the road junction. In court, she marks on a map to indicate
N N
the car at various positions25. Its first position was where she could see its
O front car plate JT265 and the second position was where she could see the O
faces of D1 and D3. She immediately called PW9 (Karen LAW Wing-chi)
P P
to switch on the audio recording device. CS3 spanned between 2005 h
Q and 2018 h26. Q
R R
S S
25
P62
T T
26
P25 the DVD, P25(a) the transcript as redacted, P25(b) the English translation of P25(a)
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A A
B 36. The defence challenges the quality of her observation in CS3. B
She wrongly remembers that the junction of Chuk Yau Road was a right
C C
angle, she cannot remember a big bus stop a little ahead of the junction,
D she wrongly remembers the position of the mini bus stop. When she is D
cross-examined on the discrepancy in her notebook and another sketch she
E E
27
draws in court and whether her initial position was before or behind the
F mini bus stop, she changes her evidence to say she was both in front and F
behind the mini bus stop. She says she was 20 meters away from the
G G
junction when she saw the faces of D1 and D3. The defence submits that
H from this distance it is impossible to see clearly. It is also difficult to H
understand why she would run away towards the mini bus stop where the
I I
lighting was not as good as her original position when she saw the number
J plate of JT265. At first she says there were only two cars that drove past J
when JT265 came to the junction and she cannot remember whether there
K K
were other cars on the road. Later she says there were many other cars
L L
passing on both sides of the road, so she could see the faces by the lighting
M
from the headlights. I do not find these matters so significant as to affect M
her case. In such circumstances of observation, the Turnbull guidelines
N N
shall be applicable. I am satisfied that her identification aided by her
O
recognition of D1 and D3 was each accurate and reliable. O
P P
37. The defence also challenges her alleged previous observations
Q of D1 and D3. Her notebook was the only record of the events but there Q
was a lack of detailed description of the circumstances of her
R R
observations28. The defence queries how she can give more details in court
S S
27
P64
T T
28
D1’s closing submissions paras 23 – 28; D3’s closing submissions para 11
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A A
B from pure memory. I have the opportunity of assessing how she responds B
to the questions for details. Her answers are given forthwith and coherent.
C C
I am satisfied that she is an honest witness and her memory of the events
D is good and sufficient. D
E E
38. On the issue of whether D1 and/or D3 had alighted from the
F car in the course of the audio recording. I have listened to the audio record. F
There is no sound of the opening or closing of the car doors throughout. I
G G
am satisfied that there was no one boarding or alighting from the car.
H H
Observation in CS4 on 6/3/2015
I I
J 39. PW11 (Stephen KWOK Kwok-kei) had observed D1 and D3 J
together on 30/7/2014. He was able to recognize them in CS4 on 6/3/2015.
K K
L L
40. At 1902 h on 6/3/2015, his observation post was at Tin Yiu
M
estate near Tin Yiu Plaza. He saw D3 driving JT265 arrive near him and M
parked near where he stood. At 1904 h, when D1 boarded the car, he
N N
immediately called PW6 to switch on the audio recording device. He saw
O
D1 for about 10 seconds before D1 boarded the car. CS4 spanned between O
1904 h and 1920 h29.
P P
Q 41. The defence submits 30 that he had only made a very brief Q
entry in his notebook31 regarding the observation. There was no mention
R R
29
S P26 the DVD, P26(a) the transcript as redacted, P26(b) the English translation of P26(a) S
30
D1’s closing submissions para 31; D3’s closing submissions paras 19 – 20
T T
31
MFI-12
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A A
B of any briefing or anything about the ROP photos in his notebook. B
However, after more than 2 years, he is able to remember in court enough
C C
to mark on a sketch the details the distances and the position of himself and
D the car at various junctures 32 . I have the opportunity of assessing his D
responses to the questions for details. His answers are given forthwith and
E E
coherent. I am satisfied that he is an honest witness and his memory of the
F events is good and sufficient. F
G G
42. The defence submits that his previous observation of D1 and
H D3 at Chief Lounge on 30/7/2014, which was approaching 8 months ago, H
cannot aid his identification in CS4 on 6/3/2015. I am of the view that it
I I
can aid the actual sighting in CS4.
J J
43. In such circumstances of observation in CS4, the Turnbull
K K
guidelines shall be applicable. I am satisfied that his identification aided by
L L
his recognition of D1 and D3 was each accurate and reliable.
M M
44. On the issue of whether D1 and/or D3 had alighted from the
N N
car in the course of the audio recording, I have listened to the audio record.
O
There is no sound of the opening or closing of the car doors throughout. I O
am satisfied that there was no one boarding or alighting from the car.
P P
Q Observation in CS5 on 2/6/2015 Q
R R
45. PW13 (Michael CHOW Kai-tung) had observed D1 on
S 10/10/2014. In CS 5 at 2124 h on 2/6/2015, he saw D3 driving JT265 turn S
T T
32
P73
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A A
B into Chuk Yau Road from San Tin Road. The car slowed down and B
stopped for 1 – 2 seconds at the junction. At 2135 h, it reappeared and
C C
stopped at the junction for 2 – 3 seconds. He saw D1’s and D3’s faces for
D 3 – 5 seconds through the windscreen and front window of the passenger D
seat. Apart from the street lamps at and near the junction, there were head
E E
lamps from cars on San Tam Highway to provide lighting for his
F observation. He immediately called PW6 to switch on the audio recording F
device. CS5 spanned between 2135 h and 2232 h33.
G G
H H
46. At 2150 h, PW5 (Kenix POON Hong-ying) at 8 m away saw
I I
D3 driving and D1 sitting beside him in JT265 arrive and park near Po Lok
J Square. She walked up Ping Shun Street and had another look at them for J
about 3 seconds. There was no one else in the car. No one boarded or
K K
alighted from the car until 2232 h when D1 alighted from the car to walk
L along Ping Shun Street to On Ning Road. There were street lamps to L
provide lighting for her observation throughout.
M M
N N
47. The defence submits 34 that they had only made very brief
O entries in their notebooks 35 regarding the observation. There was no O
mention of any briefing or anything about the ROP photos in their
P P
notebooks. However, after more than 2 years, they are able to remember
Q in court enough to give the details of their observation. I have the Q
opportunity of assessing how they respond to the questions for details.
R R
33
S P27 the DVD, P27(a) the transcript as redacted, P27(b) the English translation of P27(a) S
34
D1’s closing submissions para 34 – 36; D3’s closing submissions paras 23 – 27
T T
35
MFI-13 is PW13’s notebook
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A A
B Their answers are given forthwith and coherent. I am satisfied that they B
are honest witnesses and their memory of the events is good and sufficient.
C C
D 48. The defence submits that PW13’s previous observation of D1 D
on 10/10/2014 had been 8 months before CS5 on 2/6/2015 cannot aid his
E E
identification in CS5 on 2/6/2015. I am of the view that it can aid the actual
F sighting in CS5. F
G G
49. In such circumstances of observation in CS5, the Turnbull
H guidelines shall be applicable. I am satisfied that PW13’s and PW5’s H
identification of D1 and D3 was each accurate and reliable.
I I
J 50. On the issue of whether D1 and/or D3 had alighted from the J
car in the course of the audio recording, I have listened to the audio record.
K K
There is no sound of the opening or closing of the car doors throughout. I
L L
am satisfied that there was no one boarding or alighting from the car.
M M
Observation in CS6 on 6/6/2015
N N
O
51. PW14 (Winson WONG Wing-shun) had observed D1 on O
6/1/2014, D1 and D3 together on 30/5/2014, 30/7/2014, 14/12/2014, and
P P
D1 on 12/5/2015, 14/5/2015, 16/5/2015, and 2/6/2015. In CS 6 at 2203 h
Q on 6/6/2015, he saw D3 driving JT265 into Ping Shun Street and park it at Q
Po Lok Square. He saw D3 at the driver’s seat. One minute later, D1
R R
walked from On Ning Road towards the front of the car and got into the
S front passenger seat. There were street lamps to provide the lighting for S
his observation.
T T
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A A
B 52. PW16 (Lawrence WONG Pui-wai) had observed D1 on B
26/9/2014, D1 and D3 together on 28/2/2015, and D1 on 18/3/2015. In
C C
CS6, he saw JT265 parked at Po Lok Square for 5 – 10 minutes when D1
D walked along On Ning Road and turned left to get into the front passenger D
seat at 2200 h. There were street lamps to provide the lighting for his
E E
36
observation. CS6 spanned between 2205 h and 2222 h .
F F
53. The defence argues that PW14 could not be lurking nearby
G G
JT265 without concealing his presence. I think that as it was a public place,
H as long as he did not do anything too conspicuous or odd, he did not have H
to conceal his presence.
I I
J 54. The defence argues that PW14 has drawn a right angle at the J
entrance of Po Lok Square but the photo37 shows it was a wide circular
K K
38
corner. In the two sketches in his notebook he marked the front of JT265
L L
to be parallel to the edge of the pavement without jutting out, but in his
M
sketch drawn in court39 JT265 was partly jutting out of the pavement thus M
partly blocking the entrance of Po Lok Square. He explains that he was not
N N
a professional so he did not draw professionally in his notebook. I find this
O
explanation credible. O
P P
Q Q
R R
36
P28 the DVD, P28(a) the transcript as redacted, P28(b) the English translation of P28(a)
37
S D3 S
38
MFI-14
T T
39
P79A
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A A
B 55. The defence argues40 that he had only made a very brief entry B
in his notebook regarding the observation. There was no mention of any
C C
briefing or anything about the ROP photos in his notebook. However, after
D more than 2 years, he is able to remember in court enough to mark on a D
sketch in detail the distances and the position of himself and the car at
E E
various junctures. I have the opportunity of assessing his responses to the
F questions for details. His answers are given forthwith and coherent. I am F
satisfied that he is an honest witness and his memory of the events is good
G G
and sufficient.
H H
56. In such circumstances of observation in CS6, the Turnbull
I I
guidelines shall be applicable. I am satisfied that PW14’s and PW16’s
J identification aided by their recognition of D1 and D3 was each accurate J
and reliable.
K K
L L
57. On the issue of whether D1 and/or D3 had alighted from the
M
car in the course of the audio recording, I have listened to the audio record. M
There is no sound of the opening or closing of the car doors throughout. I
N N
am satisfied that there was no one boarding or alighting from the car.
O O
Value of Voice Identification Evidence
P P
Q 58. PW24 (Dr. LO Tsz-fung) is unchallenged as an expert in voice Q
identification. He wrote 2 reports41 and elaborates on them in court. His
R R
methodology is not challenged either. It was based on well-recognised
S S
40
D1’s closing submissions paras 41 – 49
T T
41
P91 and P47
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A A
B methodology and literature. His evidence on voice identification has been B
accepted by court before (although it is not specified as a civil or criminal
C C
court or in what jurisdiction). After comparing D1 – D3’s voices in their
D respective video-recorded interviews with the voices recorded in CS1 – D
CS6, his conclusion was that it was more likely than not that in CS1, D2
E E
was one of the 2 speakers, and that in CS1 – CS6, there were 2 speakers in
F conversation. The defence argues that this is below the criminal standard F
of proof. I think this argument is correct.
G G
H 59. PW19 (Inspector LAU Wing-fai) had been D1’s supervisor H
for some time. After listening to the audio records of CS1 – CS6, he could
I I
recognize a voice similar to D1’s in CS2, CS4, CS5, and CS6 but he was
J not certain of it. J
K K
60. I am of the view that the evidence of Dr. LO and Inspector
L
LAU alone cannot prove beyond reasonable doubt that CS1 contained D1’s L
M
and D2’s voices whereas CS2 – CS6 contained D1’s and D3’s voices. M
N N
Whether D1 – D3 were the Sender/Recipient of Whatsapp Messages
O
Who were the Actual Users of the Relevant Mobile Phone Numbers O
P P
61. There were 432 whatsapp messages between 9348 4901
Q (which the prosecution suggests was the number used by D1) and 6111 Q
1355 (which the prosecution suggests was the number used by D3). There
R R
were 430 whatsapp messages between 9348 4901 (which the prosecution
S suggests was the number used by D1) and 9809 1857 (which the S
prosecution suggests was the number used by D2). There were 91
T T
whatsapp messages between 9809 1857 (which the prosecution suggests
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A A
B was the number used by D2) and Sgt CHENG’s mobile phone 42. The B
defence disputes the alleged users of such mobile phone numbers.
C C
D D
62. As regards 9348 4901, its subscriber was D1’s wife LAI Yuk-
E heung, Fanny. Was she or someone else the user of this phone number? I E
note that the user sent a Hong Kong Jockey Club betting account number,
F F
05381401, out by this number on 21/9/2014 43 ; this was D1’s betting
G account number. The user sent a photo out on 1/2/201544 (D1 was standing G
in the middle of a group people all smiling into the camera. The user
H H
received and acknowledged a birthday greeting on 4/2/201545 (this was one
I day after D1’s birthday of 3/2/201546). Someone sent 7 photos out on I
12/2/201547 (D1 was standing in the middle of different groups of people
J J
all smiling into the camera; D1 is the only person to appear on every photo).
K Someone texted to meet up with the message recipient (which the K
prosecution says is D3) at “Ngok Wan” (transliteration of Music Lounge)
L L
on 6/6/2015 (soon D1 arrived at Music Lounge and met up with D3 there).
M M
N 63. Mr. Khosa submits48 that the personal record form from TBT N
Police Station had D1’s phone registered rather as 6736 0499 and that had
O O
P P
42
P40 is a consolidated chronological table of all the whatsapp messages
43
Q P40 # 52 Q
44
P40 # 226; TB: p. 258
R 45
P 40 # 236 receives a message “Happy Birthday”, P 40 # 237 someone replies “Thank you, mate” R
46
TB: p. 12 is D2’ personnel record
S S
P40 # 281 – 287 are 7 photos showing D1 in a group of people in the office smiling into the camera;
47
D1 is in the centre of every photo as well as the only person appearing in every photo
T T
48
D1’s closing submissions para 76
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A A
B to be his phone number at certain junctures. I think that he could have B
another phone number for the personal record but it did not alter the fact
C C
that he was also regularly using 9348 4901.
D D
E 64. I am satisfied that the user of this mobile phone number was E
D1 at all material times.
F F
G G
65. As regards 9809 1857, its subscriber was D2’s wife CHAN
H Pui-fong. Was she or someone else the user of this phone number? The H
user set the user name as “ericyip”. PW22 (S/Sgt CHEUNG Ho-yin) knew
I I
D2 for over 25 years (this was D2’s phone number he knew of). Between
J 17/3/2015 and 16/4/2015, the user was asked by police officer CHENG if J
the user’s team had any vacancy for him (Sgt CHENG). On 16/4/2015, the
K K
user replied to Sgt CHENG that he (Sgt CHENG) would probably go to
L the user’s team on 3/5/2015 (it turned out that Sgt CHENG was actually L
transferred to D2’s team DIS KCDIST on 3/5/2015). D2 was arrested with
M M
the SIM card for this phone number. ROP records, vehicle registration
N records, and police personnel records each showed that it was his reported N
phone number.
O O
P P
66. I am satisfied that the user of this mobile phone number was
Q D2 at all material times. Q
R R
67. As regards 6111 1355, it was subscribed in D3’s own name.
S S
On 7/6/2015, he admitted under caution in VRI voluntarily that he had been
T T
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A A
B using this number for 3 – 4 years49. He was arrested with the SIM card for B
this phone number. ROP records, vehicle registration records, and the
C C
Jockey Club betting account each showed that it was his reported phone
D number. D
E E
68. I am satisfied that the user of this mobile phone number was
F D3 at all material times. F
G G
Whether to Exclude Whatsapp Messages in D3’s SIM Card as Unlawfully
H Obtained Evidence H
I I
69. D3 was arrested on 7/6/2015 in possession of an iPhone with
J SIM card50 for phone number 6111 1355. Relying on Sham Wing Kan v J
Commissioner of Police [2017] 6 HKC 265, Mr. CHAN for D3 submits
K K
that as the whatsapp messages were retrieved from the SIM card without a
L L
warrant, they were unlawfully obtained evidence. So the court should not
M
admit such whatsapp messages into evidence51. M
N N
70. I understand that Sham Wing Kan’s case is about the balance
O
to be had between a citizen’s constitutional rights for privacy of personal O
data in his mobile phone and the police powers for search and examination
P P
of it without a warrant. There the interpretation of s. 50(6) of the Police
Q Force Ordinance, Cap. 232 is in issue. Our present case shall depend on Q
the interpretation of s. 10C (1) (c) of ICAC Ordinance, Cap. 204. Mr. LAI
R R
S 49
MFI-4; P16 # 109 – 147 S
50
P10
T T
51
D3’s closing submissions para. 63
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A A
B for the prosecution submits that the latter allows the ICAC to “seize and B
detain anything which such officer has reason to believe to be or to contain
C C
evidence of the offences …” and that shall include the personal data in the
D mobile phone. I do not think the wording in the former is that limited. It D
reads, “it shall be lawful for such [police] officer to search for and take
E E
possession of any newspaper, book or other document or extract therefrom
F and any other article or chattel which may be found on his person …” The F
part underlined can arguably also include personal data in the mobile phone.
G G
H 71. Assuming that the personal data were unlawfully obtained by H
ICAC and thus in breach of D3’s privacy rights afforded by the Basic Law,
I I
I consider its implications. CJHC MA J in the Court of Appeal in HKSAR
J v Chan Kau Tai [2006] 1 HKLRD 400 has this observation: J
K K
115. But the following question now requires to be answered in
L Hong Kong: what effect do the provisions of the Basic Law and L
ICCPR52 [International Covenant on Civil and Political Rights]
have on the exercise of discretion to exclude evidence in criminal
M matters? Do they eliminate the existence of the discretion M
altogether or if not, how prominent are they in the exercise of the
N discretion? … N
116. In our view, the questions posed in the previous paragraph
O O
fall to be answered in the following way. First, account must of
course be taken by the court of any breaches of rights contained
P in the Basic Law or the ICCPR. Secondly, any breach as P
aforesaid will not, however, automatically result in the exclusion
of the evidence obtained in consequence of the breach: the court
Q still retains a discretion to admit or exclude the evidence. Thirdly, Q
the discretion in the court to admit or exclude evidence involves
R a balancing exercise in which the breach of constitutional rights R
is an important factor whose weight will depend on mainly two
S S
52 Article 17.1: No one shall be subjected to arbitrary or unlawful interference with his privacy,
T family, home or correspondence, nor to unlawful attacks on his honour and reputation. Article T
17.2: Everyone has the right to the protection of the law against such interference or attacks
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A A
B matters: the nature of the right involved and the extent of the B
breach.
…
C C
(4) Mr Blanchflower [for the Applicant] made it clear in his
submissions that he was not advocating an automatic
D exclusion of evidence should a breach of or derogation from D
the right to privacy occur. In our view, he was right not to do
so. While it may be tempting to adhere so closely to the
E E
fundamental rights contained in Part III of the Basic Law that
any breach of or derogation from them should result in the
F direst of consequences, this is in our view too simplistic a F
stance. One of the fundamental themes of a constitutional
document such as the Basic Law (and the ICCPR) is the
G recognition that society has many different interests to be G
taken into account and very often, a balance must be struck.
H Derogations from constitutional rights are sometimes H
permitted where they can be justified as being necessary,
rational and proportionate. This is in no way to undermine the
I importance of constitutional rights but a court must at times I
perform what can be a delicate balancing exercise.
J J
(5) In the present context, there are two main competing
K interests, both facets of what can broadly be called the public K
interest: on the one hand the interest in protecting and
enforcing constitutionally guaranteed rights; on the other, the
L interest in the detection of crime and bringing criminals to L
justice...
M M
(6) The balancing exercise that faces the court in the exercise
N of its discretion in each case where there has been a breach of N
or derogation from constitutional rights, involves a
consideration of the two facets mentioned in the last
O paragraph. The objective of the exercise of judicial discretion O
is to ensure that a fair trial of the accused takes place. We have
already referred to relevant passages in the decision of the
P P
House of Lords in R v Sang and that of the Court of Final
Appeal in Lam Tat Ming (see paragraphs 112 and 114 above).
Q In R v Khan (Sultan), a case involving covert surveillance, Q
Lord Nicholls of Birkenhead referred to the discretion to
admit or exclude evidence and the right to a fair trial
R contained in Article 6.1 of the European Convention as being R
concerned to ensure that those facing criminal charges would
S receive a fair trial: at 583B-C. He added at 583C-D: - S
“In the present case the decision of the European Court of
T Human Rights in Schenk v Switzerland, 13 E.H.R.R. 242 T
confirms that the use at a criminal trial of material obtained
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A A
B in breach of the rights of privacy enshrined in article 8 does B
not of itself mean that the trial is unfair.”
C C
(7) More recently, in R v Looseley (Attorney-General’s
Reference No.3 of 2000) [2001] UKHL 53; [2001] 1 WLR
D D
2060, the House of Lords considered the question of
entrapment in the context of the right to a fair trial under
E Article 6 of the European Convention. We believe this E
decision provides valuable guidance as to both the nature and
the exercise of the discretion under discussion. It qualifies
F what might appear to have been the effect of R v Sang by F
emphasizing the principle that the court could exclude
G
evidence obtained by unfair means in circumstances where G
the court considered the admission of the evidence to have
such an adverse effect on the fairness of the proceedings that
H the evidence ought to be excluded: at 2066D-F (paragraph 11), H
2067F (paragraph 16), 2098A (paragraph 122)…
I I
(8) In considering the fairness of a trial, the court must take a
J
broad view of the overall circumstances. The court must look J
at the fairness of the actual trial itself: for example, whether
the evidence obtained in breach of constitutional rights is
K reliable in the first place. Thus, for example, evidence which K
has been “tricked” out of a person (say, by inducements
improperly made) may be so inherently unreliable that it
L L
ought to be excluded.
M M
(9) However, the court does not just look at procedural
fairness in the actual trial. It is also entitled to look at the
N overall behaviour of the investigating authority or the N
treatment of the accused. Thus, circumstances may be such
that it would simply be unfair to an accused person to allow
O O
certain evidence to be used at trial, for example, where an
innocent person has been enticed to commit a crime. There
P can be situations in which it would be such an affront to the P
public conscience or the integrity of the criminal justice
system is so compromised that the court must step in to put a
Q stop to it. It is clear from the passage from Lord Scarman’s Q
speech in Sang (see paragraph 112 above) that there must be
R justice done to the accused himself… R
S (10) On the other hand, the breach of or derogation from S
constitutional guaranteed rights may be outweighed by the
public interest in ensuring that crimes are detected and
T punished. Here, one needs to look closely at two inter-related T
aspects: the right that has been breached and the extent of the
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A A
B breach. Though all rights guaranteed by a constitution are to B
be accorded great respect and any breach or derogation must
always be considered a cogent factor in excluding evidence,
C one must bear in mind that some rights are more fundamental C
and important than others and that where a right is breached,
D this can occur in a multitude of different situations… D
E (11) Where the gravity of a breach or derogation is small but E
the crime involved is a serious one, the public interest will
lean more favourably towards the latter factor with the
F consequence that any evidence obtained as a result of the F
breach or derogation will be admitted…
G G
(Underlined are my emphases)
H H
72. In our present case, there is no suggestion by D3 that the
I I
whatsapp messages were obtained by oppression, trickery or unfair means,
J or that such evidence would be reliable in any way. The search was done J
2 years before the decision in Sham Wing Kan of 2017. I cannot say that
K K
ICAC had acted in bad faith for not applying for a warrant in 2015. Had
L an application for a warrant been made to the court at that time, I think it L
would have been granted. I am satisfied in the investigation of a case of
M M
such serious nature as our present one, my discretion shall be to admit the
N whatsapp messages into evidence. N
O O
Matters Discussed in the Whatsapp Messages
P P
73. Based on my finding that D1 – D3 were the users of the phone
Q Q
numbers at the material times I also find them to be the senders or
R recipients, as the case may be, of the whatsapp messages. I come to R
consider the matters discussed by them.
S S
T T
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A A
B 74. On 8/10/2014, D1 texted D2 that someone wanted to know B
the Murder Case and the case appeared to be handled by DATS YTDIST.
C C
D 75. On 9/10/2014, D1 texted D2 that someone called “Fanling” D
had fixed up. D2 reminded D1 to delete the messages. D1 replied that he
E E
did not keep them.
F F
76. On 16/10/2014, D1 texted D2 to ask if there was anything and
G G
told D2 to call his ghost phone at will. D2 replied that he would ask about
H it tomorrow. H
I I
77. On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any
J time if the latest information was available. D1 also informed D2 of his J
ghost phone number.
K K
L L
78. On 20/10/2014, D1 texted to ask D2 if there was any latest
M
news and when “that lad” could come out. M
N N
79. On 12/12/2014, D1 texted D2 to ask if there were any updates.
O
D2 replied that it had to be next week, not so soon. O
P P
80. On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG)
Q would ask for information. Q
R R
81. On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing
S from his close friend of “Fanling”. D2 replied in the negative. S
T T
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A A
B 82. On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about B
the matter of the 30th day. D1 said someone was very nervous and, if that
C C
one’s close friend could not walk out, someone would not know how to
D explain. D
E E
83. On 30/1/2015, D2 texted D1 that it seemed he (D2) was being
F followed. F
G G
84. On 28/2/2015, Sgt CHENG in two messages (“Two
H Messages”) texted to D2 the nicknames and corresponding full Chinese H
names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt
I I
CHENG told D2 that suspects TANG and CHAN among them were
J arrested and the others were being wanted. J
K K
85. On 1/3/2015, D1 sent the 2 same messages to D3.
L L
M
86. On 7/3/2015, D2 texted D1 to ask when and how many would M
come back. D1 answered that one had been told to come back individually.
N N
O
87. On 24/3/2015, D1 texted D2 that those wretched friends O
would not be back until early 5/2015.
P P
Q 88. On 9/4/2015, D3 texted D1 to ask if a reply could be given to Q
the other side. Later on the same day, D1 texted D2 to ask for news about
R R
the case.
S S
89. On 14/4/2015, D1 texted to ask if there was any news as it
T T
was being asked by someone every day.
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A A
B B
90. On 15/4/2015, D2 texted D1 that he (D2) had already asked
C C
someone to ask again. D2 suggested to have them talk face to face as
D mobile calls would leave records, inconvenient. D
E E
91. On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and
F to D1 respectively. D1 sent the Two Messages to D3. D1 texted D3 that F
CCTV captured “Tak Hau” and “Sai Chun” holding knives and walking on
G G
the street. D1 told D3 that no one upon their return should admit anything
H even if beaten to death and that was because guilty plea and cooperation H
would not mitigate murder or a sentence of life imprisonment.
I I
J 92. On 4 – 20/5/2015, D1 texted D2 that KAN would probably go J
back within a short period of time. D1 texted D3 to go to find RCU 1KW.
K K
D2 texted to ask D1 if the kid had gone yet. D1 texted to reply D2 that it
L
was around 11 o’ clock. D1 then texted the same message to D3. D3 texted L
M
D1 about risking life for landing. M
N N
93. On 21/5/2015, D3 texted D1 that the “buddy” had come back.
O
D3 texted D1 that suspect AH LAU would appear in court at 8 am O
tomorrow. D1 texted the same message to D2. D1 texted D2 to discuss
P P
about the potential court hearing tomorrow. D1 texted D2 to ask if Ah
Q LAU, who surrendered to the police would be “sing-ma-thai”. D2’s Q
opinion was that it should be a good thing for Ah LAU to go to court so
R R
soon. No identification parade was arranged as there was no witness, no
S evidence. D1 texted D2’s opinion to D3. D1 texted D2 to ask if Ah LAU S
would have a good chance for bail in the court hearing tomorrow. D2
T T
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A A
B replied that they had been reminded of what should be done about the bail B
hearing.
C C
D 94. On 22/5/2015, D1 texted D2 that “the close friend’s close D
friend” had probably come out.
E E
F 95. On 26 – 27/5/2015, D1 texted D2 to discuss about the return F
of the last “kid”. D2 texted D1 that all samples at the scene had been
G G
probably proved to belong to the victim, hence Ah LAU was not detained
H for checking the samples. D1 texted D2 to ask around about Ah LAU and H
whether there was any yellow sheet concerning the case. D2 replied that
I I
there was no evidence in the case, only images. Even if there was to be a
J holding charge, it was highly likely that the court would grant bail. J
K K
96. On 28/5/2015, D1 texted D2 that the last “kid” would arrive
L
at 11 o’clock. L
M M
97. On 31/5/2015, D1 texted D2 that suspect KAN had come out
N N
and whether KAN and Ah LAU got the “yellow sheet”.
O O
98. On 2/6/2015, D1 texted D2 and discussed about the quantum
P P
of their reward to be received and how to share it.
Q Q
Matters discussed by the Speakers in CS1 – CS653
R R
S S
T
53
MFI-23 is a summary of each of CS1 – CS6 provided by the prosecution; the defence does not T
challenge the summary
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A A
B 99. In CS1 on 5/11/2014, 1st male asked 2nd male how the progress B
was. They discussed about blood test. 2nd male expected nil results as all
C C
blood belonged to the victim. The PIC of “Hot Hard Hot” was the only
D witness and this witness only saw a fight but not anyone being chopped. D
So chopping could not be proved. 1st male said “Ah Lau54”, “Tak Hau”,
E E
and someone nicknamed “Ah Wai” had not returned. 2 male said “Tak nd
F Hau” had already been arrested. They discussed about the available F
witnesses, whether it was necessary to conduct identification parade in this
G G
nd
murder case. 2 male said there was no witness who had seen the part of
H murder. Only an identification parade for the previous fighting scene but H
not for the murder.
I I
J 100. In CS2 on 14/1/2015, 1st male mentioned to 2nd male the J
matter of 30th. 1st male said he (1st male) earned “6 Dou”.
K K
L L
101. In CS3 on 25/2/2015, 1st male said 2 persons were not yet back.
M
2nd male asked if the file had been closed. 1st male said that it should be M
st
alright theoretically and secretly. 1 male said it seemed a warrant was
N N
issued for the two who were not yet back.
O O
102. In CS4 on 6/3/2015, 1st male advised 2nd male that those who
P P
were not back yet should come back one at a time to be accompanied a
Q lawyer to prevent them from revealing anything upon being questioned. 1st Q
male asked 2nd male to inform him (1st male) in advance so that he (1st male)
R R
could pass the information on to others. If those people returning were to
S S
T
54
“Now” is the transcriber’s choice; when I listen to the audio records I consider it closer to “Ah Lau” T
than “Now’ as the speakers actually do not give a nasal sound to the word
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A A
B be handled by his (1st male’s) people, those people would be alright. 1st B
male told 2nd male that three people coming back together would probably
C C
be held for one or two months. They (1st and 2nd males) would collect
D things quickly, if the people came back one by one. 1st male asked 2nd male D
to send a message to the other side that the police, that is his (1 st male’s)
E E
side, would try to suppress everything, eg CCTV was blurred, could not
F find witnesses, etc. If the persons who returned were to be handled by his F
people, they would be alright. But if they were to be handled by other
G G
teams, they would be booed. They discussed that the previous one was
H remanded for a couple of months until 30th January. H
I I
st nd
103. In CS5 on 2/6/2015, 1 male told 2 male of a concern that
J the other side would evade payment by reporting to ICAC. 2nd male J
mentioned “Ah Lau”. 2nd male asked 1st male to tell someone that after
K K
giving the 50%, the rest had to be paid to others at the end of the month as
L
it was believed that “Ah Lau” would probably be released after the first L
M
appearance in court or after 2 – 3 months at most. 2nd male asked 1st male M
to call someone to urge for $150,000, being half portion of the outstanding
N N
payment. They believed that as they had quoted $600,000, someone might
O
have made up the price of $1,000,000. They had received $300,000 from O
someone and so $300,000 was still outstanding. 1st and 2nd males recapped
P P
how much they had already received from the other party. The first
Q payment was $200,000. The second payment was $100,000 when Q
someone was released after the second court appearance, ie before new
R R
year. The first payment of $200,000 was shared by 4 persons while the
S second payment was shared by five persons. 1st and 2nd males agreed to S
have the final payment divided into 5 shares. 1st male was willing to share
T T
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A A
B $20,000 - $30,000 with “Fei Sam” as “Fei Sam” had rendered assistance B
to him in a number of cases. 2nd male agreed to it.
C C
D 104. In CS6 on 6/6/2015, 1st male and 2nd male discussed about D
how to split the $150,000 cash they had with them. 1st male reiterated that
E E
it was to be divided among 5 persons and “Fei Sam” was entitled to
F $20,000. 2nd male agreed to it. 1st male said “Fei Sam” had good F
connections and could be of use. 1st male told 2nd male that he (1st male)
G G
would ask “Fei Sam” to come down later to take the $20,000.
H H
Prosecution’s Interpretations of CS1 – CS6 and Whatsapp Messages
I I
Put Together
J J
105. I consider the prosecution’s suggested interpretations [in
K K
square brackets] of CS1 – CS6 and whatsapp messages put together in
L L
chronological order. The whatspp messages are in italics.
M M
106. On 8/10/2014, D1 texted D2 that someone wanted to know the
N N
Murder Case and the case appeared to be handled by DATS YTDIST.
O O
107. On 9/10/2014, D1 texted D2 that someone called
P P
“Fanling”[D3] had fixed up. D2 reminded D1 to delete the messages. D1
Q replied that he did not keep them. Q
R R
108. On 16/10/2014, D1 texted D2 to ask if there was anything and
S told D2 to call his ghost phone at will. D2 replied that he would ask about S
it tomorrow.
T T
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A A
B 109. On 17/10/2014, D1 texted D2 to ask D2 to call him (D1) any B
time if the latest information was available. D1 also informed D2 of his
C C
ghost phone number.
D D
110. On 20/10/2014, D1 texted to ask D2 if there was any latest
E E
news and when “that lad” [one of the suspects] could come out.
F F
111. In CS1 on 5/11/2014, D1 asked D2 how the progress was.
G G
They discussed about blood test. D2 expected nil results as all blood
H belonged to the victim. The PIC of “Hot Hard Hot” [Hot Shot Bar] was H
the only witness and this witness only saw a fight but not anyone being
I I
chopped. So chopping could not be proved. D1 said “Ah Lau” [LAU
J King-hei]55, “Tak Hau” [TANG Wai-yeung], and someone nicknamed “Ah J
Wai” had not returned. D2 corrected D1 that “Tak Hau” [TANG Wai-
K K
yeung] had already been arrested. They discussed about the available
L L
witnesses, whether it was necessary to conduct identification parade in this
M
murder case. D2 said there was no witness who had seen the part of murder. M
Only an identification parade for the previous fighting scene but not for the
N N
murder.
O O
112. On 12/12/2014, D1 texted D2 to ask if there were any updates.
P P
D2 replied that it had to be next week, not so soon.
Q Q
113. On 24/12/2014, Sgt CHENG texted D2 that he (Sgt CHENG)
R R
would ask for information.
S S
T
55
“Now” is the transcriber’s choice; when I listen to the audio records I consider it closer to “Ah Lau” T
than “Now’ as the speakers actually do not give a nasal sound to the word
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A A
B B
114. On 1/1/2015, D1 texted D2 to ask if D2 still heard nothing
C C
from his close friend “Fanling” [D3]. D2 replied in the negative.
D D
115. In CS2 on 14/1/2015, D1 mentioned the matter of 30th
E E
[30/1/2015, the date of court hearing of suspect TANG in Kowloon City
F Magistracy]. D1 earned “6 Dou”56 [$600,000]. F
G G
116. On 22/1/2015, D1 texted D2 to urge D2 to ask earlier about
H the 30th [30/1/2015, the court hearing]. D1 said someone was very nervous H
and, if that one’s close friend [suspect] could not walk out [get bail],
I I
someone would not know how to explain.
J J
117. On 30/1/2015, D2 texted D1 that it seemed he (D2) was being
K K
followed.
L L
M
118. In CS3 on 25/2/2015, D1 said 2 persons [suspects] were not M
yet back. D3 asked if the file [police file] had been closed. D1 said that it
N N
should be alright theoretically and secretly. D1 said it seemed a warrant
O
[warrant of arrest] was issued for the two who were not yet back. O
P P
119. On 28/2/2015, Sgt CHENG in two messages (“Two
Q Messages”) texted to D2 the nicknames and corresponding full Chinese Q
names of 5 people, ie suspects TANG, CHAN, KAN, LAU, and LUK; Sgt
R R
CHENG told D2 that suspects TANG and CHAN among them were
S arrested and the others were being wanted. S
T T
56
“Dou” is a common term for $100,000
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A A
B B
120. On 1/3/2015, D1 sent the Two Messages to D3.
C C
D 121. In CS4 on 6/3/2015, D1 advised D3 that those who were not D
back yet should come back one at a time to be accompanied by a lawyer to
E E
prevent them from revealing anything upon being questioned. D1 asked
F D3 to inform him (D1) in advance so that he (D1) could pass the F
information on to others. If those people returning were to be handled by
G G
his (D1’s) people, those people would be alright. D1 told D3 that three
H people coming back together would probably be held for one or two H
months. D1 asked D3 to send a message to tell the other side that the police,
I I
that is his (D1’s) side, would try to suppress everything, eg CCTV was
J blurred, could not find witnesses, etc. They discussed that the previous one J
was remanded for a couple of months until 30th [30/1/2015, the court
K K
hearing].
L L
M
122. On 7/3/2015, D2 texted D1 to ask when and how many would M
come back. D1 answered that one had been told to come back individually.
N N
O
123. On 24/3/2015, D1 texted D2 that those wretched friends O
would not be back until early 5/2015.
P P
Q 124. On 9/4/2015, D3 texted D1 to ask if a reply could be given to Q
the other side. Later on the same day, D1 texted D2 to ask for news about
R R
the case.
S S
125. On 14/4/2015, D1 texted D2 to ask if there was any news as it
T T
was being asked by someone every day.
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A A
B B
126. On 15/4/2015, D2 texted D1 that he (D2) had already asked
C C
someone to ask again. D2 suggested to have them talk face to face as
D mobile calls would leave records, inconvenient. D
E E
127. On 27/4/2015, D2 sent the Two Messages to Sgt CHENG and
F D1 respectively. D1 sent the Two Messages to D3. D1 texted D3 that F
CCTV captured “Tak Hau” and “Sai Chun” [suspects TANG and KAN]
G G
holding knives and walking on the street. D1 told D3 that no one upon
H their return should admit anything even if beaten to death and that was H
because guilty plea and cooperation would not mitigate murder or a
I I
sentence of life imprisonment.
J J
128. On 4 – 20/5/2015, D1 texted D2 that “Sai Chun” [suspect
K K
KAN] would probably go back within a short period of time. D1 texted D3
L L
to go to find RCU 1KW. D2 texted to ask D1 if the kid had gone yet. D1
M
texted to reply D2 that it was around 11 o’ clock. D1 then texted the same M
message to D3. D3 texted D1 that risking life for landing.
N N
O
129. On 21/5/2015, D3 texted D1 that the “buddy” [suspect] had O
come back. D3 texted D1 that “Ah Lau” [suspect LAU] would appear in
P P
court at 8 am tomorrow. D1 texted the same message to D2. D1 texted D2
Q to discuss about the potential court hearing tomorrow. D1 texted D2 to Q
ask if “Ah Lau”, who surrendered to the police would be “sing-ma-thai”.
R R
D2’s opinion was that it should be a good thing for “Ah Lau” to go to court
S so soon. No identification parade was arranged as there was no witness, S
no evidence. D1 texted D2’s opinion to D3. D1 texted D2 to ask if “Ah
T T
Lau” would have a good chance for bail in the court hearing tomorrow.
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A A
B D2 replied that they had been reminded of what should be done about the B
bail hearing.
C C
D 130. On 22/5/2015, D1 texted D2 that the close friend’s close D
friend had probably come out.
E E
F 131. On 26 – 27/5/2015, D1 texted D2 to discuss about the return F
of the last “kid” [suspect]. D2 texted D1 that all samples at the scene had
G G
been probably proved to belong to the victim, hence “Ah Lau” was not
H detained for checking the samples. D1 texted D2 to ask around about “Ah H
Lau” and whether there was any yellow sheet [bail paper] concerning the
I I
case. D2 replied that there was no evidence in the case, only images. Even
J if there was to be a holding charge, it was highly likely that the court would J
grant bail.
K K
L
132. On 28/5/2015, D1 texted D2 that the last “kid” [suspect] L
M
would arrive at 11 o’clock. M
N N
133. On 31/5/2015, D1 texted D2 that the “kid” [suspect] had
O
come out. D1 asked D2 if “Ah Lau” and the last kid had any yellow sheet O
[bail paper].
P P
Q 134. On 2/6/2015, D1 texted D2 and discussed about the payment Q
of their reward to be received and how to share it.
R R
S 135. In CS5 on 2/6/2015, D1 and D3 discussed about the concern S
that the other side would evade payment by reporting to ICAC. D3
T T
mentioned “Ah Lau”. D3 asked D1 to tell someone that after giving the
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A A
B 50%, the rest had to be paid to others at the end of the month as it was B
believed that “Ah Lau” would probably be released after the first
C C
appearance in court or after 2 – 3 months at most. D3 asked D1 to call
D someone to urge for $150,000, being half portion of the outstanding D
payment. They believed that as they had quoted $600,000, someone might
E E
have made up the price of $1,000,000. They had received $300,000 from
F someone and so $300,000 was still outstanding. D1 and D3 recapped how F
much they had already received from the other party. The first payment
G G
was $200,000. The second payment was $100,000 when someone was
H released after the second court appearance, ie before new year. The first H
payment of $200,000 was shared by 4 persons while the second payment
I I
was shared by five persons. D1 and D3 agreed to have the final payment
J divided into 5 shares. D1 was willing to share $20,000 - $30,000 with “Fei J
Sam” [D2] as “Fei Sam” [D2] had rendered assistance to him in a number
K K
of cases. D3 agreed to it.
L L
M
136. In CS6 on 6/6/2015, D1 and D3 discussed about how to split M
the $150,000 cash they had with them. D1 reiterated that it was to be
N N
divided among 5 persons and “Fei Sam” [D2] was entitled to $20,000. D3
O
agreed to it. D1 said “Fei Sam” [D2] had good connections and could be O
of use. D1 told D3 that he (D1) would ask “Fei Sam” [D2] to come down
P P
later to take the $20,000.
Q Q
Could D1/D2/D3 Be Merely Present While Some Others On Board
R R
Talked or Used Speaker Phone
S S
137. I come to consider the possible contention that D1 – D3 might
T T
have kept quiet all the time while others on board were speaking or
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A A
B someone called in by speaker phone, resulting in the CS1 – CS6 audio B
records picking up voices attributable to other people, not D1 – D3. I do
C C
not find merit in such contention in light of the perfectly coherent flow of
D matters discussed through the continuum of whatsapp messages and CS1 D
– CS6 put in chronological order as above. It would have been impossible
E E
for anyone else, except D1 – D3, to weave into the continuum of whatsapp
F messages sent or replied among themselves so seamlessly if they had not F
been the very speakers in CS1 – CS6, as the case may be.
G G
H Defence Challenge to Prosecution’s Interpretations of CS1 – CS6 and H
Whatsapp Messages
I I
J 138. Mr. Khosa for D1 submits that, if D1 and D2 are found to be J
the speakers in CS1, there was no mention by D1 and D2 as to where D2’s
K K
information was from. PW23 (WCIP YU Yuen-yan) had already sent a
L L
letter to the prosecutor in Kowloon City Magistracy regarding what
M
outstanding investigation had to be done. Besides, numerous crime M
messages were circulated to other police formations about the case.
N N
Nothing D1 and D2 discussed was confidential. I will deal with this issue
O
of confidentiality later. O
P P
139. Mr. Khosa submits that in CS2, it is difficult to make sense of
Q what D1 and D3 talked about, such as the immigration matters about Q
someone being stopped, and loose references about land, Porsche, Uncle,
R R
some numbers, iPhone 6 functions, someone called Ah Ling, or soccer. I
S do not think these matters talked between D1 and D3 had any significance S
at all.
T T
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A A
B 140. Mr. Khosa submits that in CS3, the discussion was about B
Suspect TANG, who was already released by the court on 30/1/2015, and
C C
his negative DNA result publicized. Both matters were reported in the
D news57 and in public domain. I think the news only mentioned that DNA D
test was going to be conducted on TANG’s clothing. It was never
E E
announced to the general public that it was already done or that the result
F was negative. F
G G
141. Mr. Davies for D2 argues that in CS1 on 5/11/2014, the
H speaker, if it was D2, said DNA results were not yet available whereas the H
undisputed evidence is that the results were available already on
I I
58
3/11/2014 . I understand that D2 had to rely on others to provide such
J information to him. I do not think that he would be necessarily provided J
information within 2 days after it was completed. Mr. Davies argues that
K K
the speaker in CS1 mentioned the evidence of the eye-witness despite such
L L
evidence being reported already in the newspaper59. I do not regard this
M
part as confidential information. Mr. Davies argues that the names of M
suspects would have been circulated to police officers. The suspects
N N
themselves would know because police officers would have gone to their
O
homes to look for them60. I think information circulated to a police officer O
remained to be confidential and, unless warranted by his official duty, he
P P
should not disseminate it to a third party. The fact that the suspects knew
Q Q
R R
57
D5A is Tsing Tao Daily News clip on Yahoo News web dated 10/10/2014
S S
58
D2’s final submissions para. 15(i)
59
D2’s final submissions para. 15(ii)
T T
60
D2’s final submissions para. 15 (iii)
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A A
B or might believe themselves to be on the wanted list does not alter the B
confidential nature of the information.
C C
D Nicknames D
E E
142. The prosecution suggests that certain nicknames were
F referable to the suspects in the Murder Case or the defendants, as the case F
may be. The defence challenges the parity as not definite proof, such as
G G
whether “Tak Hau” must be TANG Wai-yeung, or “Ah Lau” must be LAU
H King-hei. I agree that there is no concrete proof of such parity. However, H
if there is a clear context in which the nickname appears, the nickname can
I I
suggest an actual person who, although being unidentified by a proper
J name, is occupying a particular role in the course of events. As an example, J
it suffices for the prosecution if “Tak Hau” and “Ah Lau” are to be regarded
K K
as 2 unidentified persons on the police wanted persons' list in the Murder
L L
Case.
M M
Items of Information Involved in Present Charge
N N
O
143. The prosecution has identified 8 items of information which O
were passed by Sgt CHENG to D2, by D2 to D1, or by D1 to D3, as the
P P
case may be61. They include:
Q Q
(1) the results of forensic examination;
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(2) the evidence of eye-witness;
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A A
B (3) information concerning the suspects; B
C (4) status of the investigation; C
D (5) information about the issue of warrants of arrest; D
E (6) information about CCTV footages; E
F
(7) information about the bail or custody of the arrested persons; F
(8) information about the identification parade.
G G
H H
144. From the contents of whatsapp messages and CS1 – CS6, I
I am satisfied that these were passed between the parties as aforesaid. I
J J
Whether the Information was Confidential
K K
145. The main thrust of the defence argument 62 is that when
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suspect TANG was brought to Kowloon City Magistracy on 9/10/2014, the
M
police had written a memo to the prosecutor in court entitled “Request for M
N
remand in custody” setting out the investigation/prosecution work 63. Its N
contents had become public knowledge. There were media reporting of it.
O O
Police investigation work done, such as the visit to the residences of wanted
P persons or their families, or the results notified to suspects after an P
identification parade might be freely spread around by the suspects and
Q Q
associates. Or maybe the eye-witness told other people what he had seen.
R The information from these civilians would become non-confidential. D1 R
– D3 might only intend to deal with such non-confidential information.
S S
62
D1’s closing submissions paras 80 – 82
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A A
B B
146. To answer this argument, I think one has to differentiate
C C
between the information of police investigation work kept by the police
D (“Information Kept by the Police”) and the information of police D
investigation work in the public domain (“Information in the Public
E E
Domain”). On the one hand, Information Kept by the Police was for the
F detection of crime. A police officer is only in possession of such F
information because he has official duties in respect of it. Such information
G G
must not be told to or shared with the general public. The general police
H officers who have no official duties in respect of it are, as much as the H
general public, denied access to it. In my view, it is in this sense
I I
“confidential”. It remains confidential until the time has come for its
J official release to the general public. On the other hand, Information in the J
Public Domain is such information already officially released to the
K K
general public, say, by way of the prosecution’s submissions to the judge
L L
in court. Our present case does not concern with Information in the Public
M
Domain. It is only Information Kept by the Police that can qualify as M
“confidential” in our present case.
N N
O
147. I note that in CS1 on 5/11/2014, D2 told D1 that nil results O
would be expected of the blood test as all the blood belonged to the victim.
P P
I think such information necessarily had to come from Information Kept
Q by the Police as the suspects and associates would not know it. Besides, Q
D2 told D1 that the person-in-charge of the restaurant was the only eye-
R R
witness to the fight. Mr. Davies argues that such information was not
S confidential. I think this eye-witness would not know if there were other S
eye-witnesses apart from himself. Such information necessarily had to
T T
come from Information Kept by the Police. In CS3 on 25/2/2015, D3 asked
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A A
B D1 if the file had been closed. D1 replied that it should be alright B
theoretically and secretly. I think only Information Kept by the Police can
C C
tell whether the file was closed. These matters were denied to the general
D public. I find it fanciful to argue that D1 and D2 were to be paid a hefty D
reward for simply being members of the public who gather news reports
E E
for D3 as Information in the Public Domain. D3 would have sought out a
F news reporter if D3 was looking for Information in the Public Domain. It F
is obvious that the official capacity of D1 and D2 as police officers give
G G
them access, whether direct or indirect (such as through Sgt CHENG for
H the list of wanted persons), to the Information Kept by the Police. It must H
be the underlying reason for D3 to pay them such a hefty reward.
I I
J 148. I reject the defence argument that the agreement was for D1 J
and D2 to procure and obtain Information in the Public Domain.
K K
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Conclusion
M M
149. I am satisfied on the evidence that between 8/10/2014 and
N N
7/6/2015 there was a conspiracy for D1 and D2 and others to procure and
O
obtain confidential information of police investigation into the murder of O
WONG Man-kin and divulge it to D3 in return for monetary reward. The
P P
aforesaid act of procuring, obtaining, and divulging was to be a continuum
Q of wilful misconduct in their course of or in relation to their public office Q
as police officers. There was no reasonable excuse or justification for
R R
them to do so. Such misconduct was serious in that it was contrary to the
S public interest in the investigation of crimes and the apprehension of S
suspects.
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A A
B 150. I find all ingredients of the charge proved beyond reasonable B
doubt. D1 – D3 are convicted as charged.
C C
D D
(E. Yip)
E E
District Judge
F F
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