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CACV 247/2010 & CACV 11/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NOS. 247 OF 2010 AND 11 OF 2011
(ON APPEAL FROM HCMP NO. 840 OF 2010)
______________________________________
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IN THE MATTER of an application by the Secretary for Justice for leave to apply for an Order of Committal
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and
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IN THE MATTER of District Court Criminal Case No. 1280 of 2005
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______________________________________
BETWEEN
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SECRETARY FOR JUSTICE |
Applicant |
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and
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NG Wai-bing |
1st Respondent |
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WONG Man-chun |
2nd Respondent |
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YIU Muk-tak |
3rd Respondent |
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Before: Hon Tang VP, Stock VP and Fok JA in Court
Dates of Hearing: 8 and 9 September 2011
Date of Judgment: 11 October 2011
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JUDGMENT
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Hon Tang VP:
Introduction
1. On 6 May 2010, Wright J granted leave to apply for committal for contempt of court against the three Respondents.
2. On 21 October 2010, Wright J found the 1st and 2nd Respondents guilty of contempt as charged, but acquitted the 3rd Respondent.
3. On 23 December 2010, the learned judge delivered his decision on penalty in relation to the 1st and 2nd Respondents. He ordered the 1st Respondents to be imprisoned for 9 months, and the 2nd Respondent for 6 months. He also ordered that they pay the costs of the SJ on an indemnity basis. However he ordered that the terms of imprisonment be suspended for 18 months. In relation to the 3rd Respondent, Wright J made no order as to costs.
4. This is the Secretary for Justice's appeals against the sentences of the 1st and 2nd Respondents (CACV 11/2011), and the acquittal of the 3rd Respondent (CACV 247/2010). The appeals were heard together. At the conclusion of the hearing, we dismissed the appeal against sentence with costs. We reserved our decision in relation to the appeal against the acquittal of the 3rd Respondent.
5. I am now of the view that the appeal against the acquittal of the 3rd Respondent should also be dismissed. These are my reasons for both decisions.
Background
6. Following an undercover investigation of criminal activities alleged to have taken place in various massage/sauna parlours in Kowloon between 2004 and 2005, nine defendants were charged in DCCC 1280/2005 with one count of conspiracy to manage a vice establishment, amongst whom the 4th Defendant, CHEUNG Sai-kit ("Cheung"), a retired police officer[1]. Cheung is the husband of the 1st Respondent, who is also a retired police officer.
7. Cheung was represented by Mr Raymond Yu, who was instructed by Messrs. Anthony Kwan & Co. The 3rd Respondent is a law clerk in that firm. He is also a retired police officer. The 3rd Respondent performed the function of the instructing solicitor at the trial.
8. The trial in DCCC 1280/2005 (the vice trial) began on 17 April 2007 before Deputy District Judge M.C. Jenkins. PC 53687 who had participated in the undercover operation was the first prosecution witness. On 5 December 2007, when counsel for the prosecution indicated that he intended to close the prosecution case, Mr Raymond Yu applied for the recall by the prosecution of PC 53687, because of certain recorded conversations. As a result a number of police officers were recalled to testify so that they might be cross-examined regarding the recorded conversations.
9. Because of the quality of the recording, Deputy District Judge M.C. Jenkins held a voir dire to resolve the question of authenticity and admissibility of the recording. The following agreed facts before Wright J are relevant:
"(6) The 1st Respondent testified that towards the end of April 2007 she overheard PW1 talking to another police officer known to her as 'Spare Rib' as they left Court Room No. 24 at the end of that day's hearing. The 1st Respondent stated that she heard 'Spare Rib' say to PW1, 'That's right, just fucking nail them'. She at this juncture became worried that police witnesses might falsely collude together or might not tell the truth against the defendants including the 4th Defendant, her husband. The 1st Respondent decided to see if she could obtain evidence to support the concern she felt.
(7) The 1st Respondent said that she approached the 2nd Respondent, a friend of hers, who agreed to place audio recorders inside the witness room with a view to recording all the conversations which might take place therein. According to the testimony of the 1st Respondent, the 2nd Respondent placed a Samsung MP3 digital recorder inside the witness room on every court day in the early morning from 7 May 2007 onwards. On each following morning after the court hearing, 2nd Respondent would hand the MP3 recording device to the 1st Respondent who then labelled it with the date of recording and kept it in a safe at her home.
(8) The 1st Respondent said that the prosecution witnesses, including PW1 always stayed inside the same witness room just outside Court Room No. 24 which the 1st Respondent recorded in her notes as 'Rm 2' (for Room 2).
(9) The 1st Respondent testified that there are a total of 47 audio recordings each contained in a Samsung MP3 digital recorder, taken inside [Rm 2]... between 7 May 2007 and 7 September 2007.
(10) The 1st Respondent said that on certain days, including 7 May 2007, she stayed outside the court room to observe who the police officers were that came out and went into [Rm 2]. She said that she made contemporaneous notes of the police officers’ movement and would later tidy up those contemporaneous notes and transfer the information onto some other better-written notes.
(11) On 14 January 2008, during the voir dire the 2nd Respondent testified that the 1st Respondent had told him that there was a prosecution witness who mentioned his intention to 'nail' her husband. The 1st Respondent therefore asked the 2nd Respondent to place an MP3 recording device under a chair in [Rm 2]... to record all the conversations which occurred in that room on a daily basis on every court day. The 2nd Respondent mounted and dismounted the MP3 recording device in [Rm 2] on each of the 47 days. The 2nd Respondent said that he did not see any unlawfulness in placing the MP3 recording devices into the relevant witness room, in order to do justice."
10. The recording having been admitted into evidence, on 4 February 2008, on a submission of no case to answer, Deputy District Judge M.C. Jenkins acquitted all the defendants[2]. The vice trial had taken approximately 150 court days.
11. In his ruling, the learned Deputy Judge said:
"5) It was plain that the prosecution case depended very largely on the evidence of the undercover police officers.... Very broadly the defence suggested that the officers had fabricated evidence to a large degree both as to what had happened at the massage parlours and (in the case of PW1) the roles played by the various defendants.
10) ... I am wary about attaching much weight to [the 1st respondent's] purported identification of the voices on the recordings.... However in many cases it is apparent...
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