Hksar V Yeung Ka Ho And Another - Case Law - VLEX 862500522

FACC No. 11 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEALNO. 11 OF 2012 (CRIMINAL)

(ON APPEAL FROM CACC NO. 207 OF 2011)

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Between :

HKSAR	Respondent
and
YEUNG KA HO (楊家豪)	1st Appellant
CHOW CHI PANG (周熾朋)	2nd Appellant

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Before:

Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Jutice Tang PJ, Mr Justice Mortimer NPJ Sir Thomas Gault NPJ

Date of Hearing: 30 August 2013

Date of Judgment: 26 September 2013

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J U D G M E N T

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Mr Justice Chan PJ :

1. I agree with the judgment of Sir Thomas Gault NPJ. For the reasons given by him, I too would dismiss the appeal.

Mr Justice Ribeiro PJ :

2. I agree with the judgment of Sir Thomas Gault NPJ.

Mr Justice Tang PJ :

3. I have had the advantage of reading in draft the judgment of Sir Thomas Gault NPJ. For the reasons given by him I agree that the appeals should be dismissed. In deference to counsel’s submissions, I will add a few words.

4. We are concerned with voice identification of an audio recording, by Mr Lau (PW1), who claimed to be familiar with the voice of the appellants. In connection with such evidence, the learned judge reminded himself that he shouldapply:

“13. … Turnbull warning with relevant and necessary modifications.”

It is clear from the reasons for verdict that throughout the learned judge was mindful of those warnings.

5. Mr Chan submitted that PW1’s voice identification evidence was the result of or influenced by the content of the recorded conversation. If so, I agree, that might undermine the reliability of the voice identification. However, that was not the evidence of PW1. Nor did the reasons for verdict give any hint that the learned judge took that view.

6. Quite the contrary, the learned judge said:

“102. Mr. Lau heard the voices of the two Defendants for many times within a long period of time. Evidence of Mr. Lau on the identification of their voices is absolutely credible and reliable.”

7. Nor did it appear that this finding was influenced by the circumstantial evidence in the case[1]. It was after this clear statement (and, an earlier statement to similar effect in para 100), that the learned trial judge went on to say:

“103. Besides, there was also other peripheral circumstantial evidence to support the evidence of voice identification of Mr. Lau.”

8. The learned judge then took note of the circumstantial evidence which strongly supported Mr Lau’s evidence that the appellants were the speakers.

9. I believe in deciding what weight to put on the voice recognition evidence of Mr Lau, the learned judge was entitled, indeed, bound to have regard to all relevant and probative evidence in the case. This is not a case where the judge was uncertain about the reliability of the voice identification evidence. There was no undermining of the importance of maintaining the integrity of the modified Turnbullwarnings.

Mr Justice Mortimer NPJ :

10. Having had the advantage of reading Sir Thomas Gault NPJ’s judgment in draft, I agree for the reasons he gives, that the appeals must be dismissed.

Sir Thomas Gault NPJ :

11. This is an appeal pursuant to leave granted by this Court on 12 November 2012.

12. The issues for consideration are the same in respect of both appellants, and involve evidence of identification said to reside, in part, in a sound tape recording.

13. The appellants were tried in the District Court before HH Judge D Yau on 21 April 2011. Both were convicted on two charges; the first of doing acts tending and intended to pervert the course of public justice, and the second of misconduct in public office.

14. The appellants were police officers. In a criminal trial in 2007 in the District Court (“the earlier proceeding”), the 1st appellant was a prosecution witness having been deployed as an undercover officer investigating allegations of conspiracy to manage a vice establishment and money laundering. The 2nd appellant was an exhibits officer in the same trial. It is claimed that while the 1st appellant was giving evidence, but during the lunch break, the appellants had a discussion in a witness room that was recorded and disclosed the offending for which they were subsequently charged and convicted.

15. When the appellants were tried in the District Court, the judge’s reasons for verdict stated at the outset:

“3. The Prosecution and Defence did not dispute on the admissibility of the relevant voice recording pen and the contents therein. In paragraph 4 of the Agreed Facts, it was agreed between all parties that the relevant voice recording pens had been produced by counsel for the 4th and 6th Defendants as exhibits in DCCC 1280/2005. It was also agreed between all parties that those voice recording pens were not handled improperly after they had been produced to the court.”

16. In this Court, Mr Charles J Chan represented both appellants. Mr Gerard McCoy SC and with him, Mr Jonathan Man Tak Ho (“Mr Man”), represented the respondent.

17. Mr Chan contended that the admissions of fact did not preclude an argument that the tape recording is inadmissible as a matter of law. Further, he said the admission, in any event, went no further than accepting the provenance of the taped evidence after the tape was produced to the court in the earlier proceeding. However, the tape, having been received in evidence, the case proceeded essentially as requiring determination of whether the evidence before the court proved that the participants in the recorded discussion were identified as the appellants and that they engaged in the charged criminal conduct.

The evidence

18. There is no direct evidence in the present case establishing who made the recording, when it was made or the circumstances in which it was made and kept prior to its production to the court in the earlier proceeding. The prosecution contends that sufficient facts can be inferred from the content of the recordings when taken with other available evidence.

19. The tape records a conversation between two persons from which, the prosecution says, relevant evidence can be inferred. There was no challenge to the finding that whoever it was talking on the recording, there was a discussion concerning the giving of false evidence.

20. In his reasons for verdict, after referring to the admissions and recording the charges, the District Court Judge said that the only real issue in the case was the voice identification evidence of the prosecution witnesses in relation to the interlocutors in the audio recordings. At the outset of his consideration of the evidence, the judge said:

“13. When considering the evidence on the voice identification, the court applied Turnbull[2] warning with relevant and necessary modifications, and reminded itself that even an honest witness might make a mistake in voice identification.”

21. Referring to the prosecution evidence, the judge described the witness PW1 (“Mr Lau”) as the most important prosecution witness and the only person who could positively identify the voices of the two appellants in the recorded conversations. He said that Mr Lau is a prosecuting counsel and had been counsel representing two of the defendants in DCCC 1280/2005. It was in the course of the trial in that case that the present appellants are said to have offended.

22. Mr Lau’s evidence in the present case was that towards the end of the prosecution case in DCCC 1280/2005, counsel for other parties produced to the court 45 voice recording pens. One contained the recording with which we are concerned. Mr Lau testified that he could identify the voices on the tape as those of the present appellants. The reliability of that evidence is in contention.

23. Mr Lau’s evidence was that, in the course of the earlier proceeding, in the morning of 1 June 2007, he had complained to the judge in the court that one of the police officers in the prosecution team whom he subsequently identified during an identity parade as the 2nd appellant, had peeped at a document that Mr Lau was reading. He knew that police officer from a previous case in the Kowloon City Magistracy. Mr Lau said that when he listened to the tape, he recognized the voice of the same police officer he knew as “Billy”.

24. The District Court Judge in his reasons for verdict said:

“28. The court must handle this part of the evidence of Mr. Lau very carefully. The only useful part of such evidence and the only purpose that it can be admitted as evidence is the identification of voices of the people who spoke in (the audio recordings contained in) the voice recording pen.”

25. The judge summarized the voice identification evidence as follows:

“31. First of all, Mr. Lau testified that the 1st Defendant had testified in court in the capacity as prosecution witness in a trial case before Magistrate Mr. Peter Law at Kowloon City Magistracy. Such a case at Kowloon City Magistracy was one of the cases of keeping vice establishments deriving from DCCC 1280/2005. In such a case at Kowloon City Magistracy, the 1st Defendant as an undercover police officer pretended to be a customer and visited the vice establishment concerned.

32. Moreover, in the case (DCCC) 1280/2005, the 1st Defendant testified at the witness box for a long period of time. Mr. Lau was responsible for cross-examining the 1st Defendant so he had sufficient time and chances to familiarize himself with the voice of the 1st Defendant. Although the 1st Defendant had not yet started testifying in court during the first suspended trial, the 1st Defendant had assisted in handling documents. According to Mr. Lau, the 1st Defendant was relatively familiar with...