廟佳桑拿案兩警妨礙司法

verdict

法庭：兩警妨礙司法勢判囚

「廟佳桑拿案」○七年在區院審訊期間，辯方呈上偷錄對話的音帶，揭發案中作供的警員涉在庭外討論案情。事後兩名有組織罪案及三合會調查科（俗稱O記）男警員被控以妨礙司法公正和公職人員行為失當兩罪，案件經審訊後，法官昨日裁定二人罪成，收押至五月十二日，待取背景報告始判刑。法官指二人雖然警隊中獲多次嘉許，對社會貢獻良多，但因本案嚴重，明言將會判囚。首被告是警長楊家豪（卅四歲）、次被告是警員周熾朋（卅五歲），前者在九五年入職，四十次獲上司書面嘉許；後者在九二年入職，五十七次獲上司書面嘉許，並曾在「火百合」的掃黃行動中任臥底蒐證。

聞罪成神情木然 親友沉重

兩名被告得知罪成後神情木然，而到庭旁聽的四十多名親友則心情沉重，有數人更不禁飲泣要離開法庭。而散庭後，眾親友一擁而上，圍着犯人欄與兩被告道別。

辯方求情時認同兩名被告的行為確對「廟案」的被告不公平，但同時指被告亦毫無得益，可能他們是出於好勝，或是為了警隊而一時愚蠢才犯案；定罪後二人失去穩定職業、大好前途和長俸，故希望法庭能先索閱被告的社會服務令作量刑。惟法官表明罪行嚴重，將會判監禁，難以判社會服務令。

法官裁決時指本案證人即「廟案」的辯方大律師劉耀勤，在案發前有不少機會接觸兩名被告，因此接納劉認出錄音中的聲音是屬於被告。此外，對話中述及不少花名，正是「廟案」中的被告及律師。加上音帶中的被告正在談論案情，表示不要混淆口供的真假部分，因此裁定二人罪成。法官強調，雖然其他任證人的警員作供時，表示認不出錄音的聲音是屬兩名被告，但認為他們並非為保護同袍而這樣說。

控罪指兩名被告在○七年六月一日於區院八樓證人室內，討論首被告已作的口供及如何作進一步證供。案情指，O記○四年派臥底到尖沙咀和佐敦四間按摩院，其後九人因涉串謀經營賣淫場所等罪而在法庭受審，○七年底該案辯方出示多段偷錄的對話，指警方證人與他人討論案情，該案被告判脫罪。而有關的偷錄對話中粗口橫飛，其中一段是在同年六月一日錄取，當天是首被告正作供，而控方指有關對話是兩名被告在庭外談論案情。

案件編號：DCCC 884/2010

sentencing

【本報訊】07年廟佳桑拿淫窟案，前女警吳惠冰為替夫脫罪，在區域法院證人室裝設錄音機，偷錄到兩名卧底警員粗口連篇「夾口供」。兩警早前在區域法院被裁定罪成，法官昨判刑時認為被告只是一時行差踏錯，但不論出發點是否為正義，警員作假口供會令制度崩潰，須判阻嚇性刑罰，兩被告各判監兩年三個月。

記者：蔡曉楓

法官游德康昨指，兩名被告是傑出警員，孝順且關心家庭，有善心，今次明顯是一時行差踏錯，但妨礙司法公正屬嚴重罪行，令市民失去信心，尤其警員需到各級法院作供，操守非常重要，對司法制度有舉足輕重的影響，不論其出發點是否正確或為了正義，使用非法手段須承擔後果。

聽判神情鎮定

游德康續稱，考慮到兩人紀錄良好、對警隊有貢獻、失去長俸及福利、生活將出現翻天覆地的改變，以及身為警員面對被囚禁的難過，將三年量刑起點扣減九個月，判監兩年三個月。

兩名被告順序為警長楊家豪（33歲）及警員周熾朋（35歲），隸屬有組織罪案及三合會調查科，昨日聽判時神情鎮定。兩人在廟佳桑拿老闆等九人涉串謀管理淫窟案中擔任卧底警員，該案07年4月在區院開審。至同年12月審訊近尾聲，辯方向法庭呈上45支 MP3錄音筆，內有多段錄音，其中一段為兩被告在證人室的對話，內容與正作供的楊家豪的證供有關。

錄下多次爆粗

在廟佳桑拿案中代表第一及第五被告的大律師劉耀勤，曾於07年6月1日向主審法官投訴，指坐在主控身後的次被告周熾朋偷看他的文件，次被告否認，事件不了了之。而錄音內容顯示兩人首先取笑「 Nick Lau」向法官投訴偷看文件一事，次被告表示：「話我『』×佢」、「我寫『留力，×你老母』……打開本簿等佢睇吓」，「今次贏得幾漂亮，自己申請俾人瘀」。

其後，該段對話內容轉為討論正在作供的首被告楊家豪的證供。次被告在錄音中說：「如果我有機會再揀多次，我會考慮吓你呢個講法。」首被告亦說：「好×大嘅大話。」兩人並繼續討論如何避免混淆證供真與假的部份，「下次用番個 final version（最後版本）」、「你諗吓頭先個新 version（版本）」等。而在同一段對話中，兩人亦有討論證供，提及「抄口供」、「複製及貼上」等字眼。

本案審訊時，劉耀勤在庭上聽過控方播放的錄音內容，認出該兩名男子的聲音是本案兩被告。

案件編號： DCCC884/10

Appeal

CACC207/2011

香港特別行政區

高等法院上訴法庭

刑事司法管轄權

定罪上訴許可申請

案件編號：刑事上訴案件2011年第207號

(原區域法院刑事案件2010年第884號)

_____________

答辯人    香港特別行政區   

       訴   

第一申請人(D1)     楊家豪 (YEUNG KA HO)       

第二申請人(D2)     周熾朋(CHOW CHI PANG)    

_____________

主審法官：    高等法院上訴法庭法官袁家寧

       高等法院上訴法庭法官關淑馨

       高等法院上訴法庭法官朱芬齡

聆訊日期：    2012年2月1日

判案書日期：        2012年5月25日

判案書

由上訴法庭法官袁家寧頒發上訴法庭判案書：

1. 兩名申請人， 楊家豪（以下簡稱“A1”），與及周熾朋，英文名字“Billy”（以下簡稱“A2”），均是警務人員。他們在DCCC884/2010案（以下簡稱“本案”），均被控一項“作出傾向並意圖妨礙司法公正的行為”罪，與及一項“藉公職作出不當行為”罪。

2. 2011年4月21日，區域法院游德康法官裁定兩名申請人，就兩項控罪，均罪名成立。游法官判處兩名申請人，每項控罪監禁兩年三個月，同期執行。

3. 兩名申請人均申請許可，就定罪提出上訴。兩人均曾獲保釋，本庭在本聆訊完結後，亦准許他們繼續保釋，直至頒發本判詞為止。

DCCC1280/2005（“第一宗案”）

4. 雙方不爭議的事實是，在DCCC1280/2005（以下簡稱“第一宗案”）中，有9名被告人被控串謀經營賣淫塲所罪與及洗黑錢罪。該案於2007年4月中開審，在區域法院由Jenkins暫委法官審理，伍健民大律師作為主控，劉耀勤大律師（Nick Lau）作為第五被告人的代表律師之一。A1是控方第二證人，他在警方行動中是卧底探員。A2則負責證物。

5. 到2007年6月1日，“第一宗案”已審了25天，A1正在庭上作供。本案控方指，午飯休庭時，A2與他（A1）在法院內的證人等候室內，討論了在他將繼續作供時，怎樣可以避免將證供的真假部份混淆，以便維持其已作出的假證供。本案控方指，當天A1與A2的對話被一支MP3錄音筆（“P37”）錄低了。

6. 當天A1繼續作供，並沒有將其已作出的證供收回，這一點雙方是沒有爭議的。

7. “第一宗案”到2007年12月接近控方結案時，該案第四及第六被告人的律師將一些錄音呈堂，要求就其內容，再次盤問A1。Jenkins法官進行“案中案”的審訊，包括聽取把一些錄音筆藏在警方證人等候室的人士的證供。最後Jenkins法官認為該案控方證人的行為削弱了控方的證據，所以法官頒令“第一宗案”全部被告人均無需答辯，撤銷所有控罪。

8. 必須留意的是，“第一宗案”中的證供，包括“案中案”的證供，不構成本案的證供。

DCCC884/2010（“本案”）

9. 其後A1及A2被控本案上述兩項控罪。控方傳召了多名證人，其中包括劉大律師。他說他能認出P37所錄說話的人是A1及A2，在P37的謄本（“P23”）中標記為“男1”的人是A2，而“男2”是A1，而他們所說的部份話題，是與“第一宗案”有關。

10. 其他控方證人，包括伍大律師及A1，A2同隊的警員，均說他們不能認出P37所錄說話的人，但警員的證供證明P37所錄的對話顯示說話的人對他們小隊的人物與及行動，例如車輛調動等事，十分清楚。

11. 控方亦傳召了警務處Crime Wing技術服務部高級督察盧永楷，作為專家證人。盧督察是電子工程師，對語音檢驗有相當經驗，及在多宗案件中被法庭接納為這一門檢驗的專家。雙方不爭議的，是“第一宗案”中有一共45支MP3錄音筆交給警方檢驗，其中一支是P37。盧督察把他的檢驗報告（P36）呈堂，在報告中他列出了他進行檢驗所用的方式（methodology）及工具（tools）。他檢驗樣本Q4（即P37）後，結論是這樣本沒有異樣。Q4是原裝錄音筆，而他發現不到語音段落有被干擾的顯示（“… no anomaly was found.  … the specimen was the original recorder … and no indication of tampering was found in the recording sessions”）。本庭下文會詳情討論盧督察的證供。

12. 必須留意的是，在本案中（與“第一宗案”的“案中案”不同），控方並沒有傳召任何證人陳述錄音筆P37是由誰人，在什麼時候，放在什麼地方錄音，亦沒有傳召任何證人陳述錄音的時候有那些人在有關地方曾說話。另外控方亦沒有傳召任何證人陳述在錄音之後，及2007年12月呈上給Jenkins法官之前，P37是由誰人，在什麼情況下，保管。本庭下文會詳細討論這一點。

13. 兩名申請人均沒有在庭上作供，A2傳召了一名品格證人，但兩名申請人均沒有傳召有關錄音檢驗的專家證人。

14. 如上文所述，游法官裁定兩名申請人，就兩項控罪，均罪名成立，理由載於裁決理由書。

上訴理由

15. 兩名申請人提出的上訴理由是相同的。

理由（一）指，游法官沒有指出，在有關錄音中，那些內容如何構成兩項控罪。

理由（二）指，劉大律師的證供不可被呈堂為證據（not admissible），因為他並不是辨認聲音專家，而且他存有利益衝突。

理由（三）指，游法官不應該倚賴P37所錄的說話去定罪，因為沒有證據顯示其保管情況，並沒有正面證據證明P37沒有被修改過。

理由（四）指，游法官沒有質問劉大律師是否存有利益衝突，但當PW7警員說他認不出P37所錄的聲音時，法官卻質問他是否保護A1及A2，會令人感覺法官已認定了錄音中的人是A1及A2。

理由（一）

16. 本庭首先考慮理由（一）。簡單而言，申請人認為原審法官沒有解釋到P37/P23的那些對話怎樣構成控罪（一）及控罪（二）。申請人認為P37/P23沒有顯示A1曾作出假證供。他們亦認為，即使在討論之前，A1曾作出假證供，判詞沒有顯示申請人同意在A1進一步的證供中，要繼續作出假證供。

17. 本庭認為原審法官並無需要臚列出P37/P23中那一些字句構成控罪（一）及控罪（二）。法官需要做的，是全盤考慮對話，來斷定當事人說話的意思。

18. P23謄本明顯地顯示，男1和男2是討論“第一宗案”中，證人有關口供雙重之處，在證人台上所作出的解釋。男1說解釋不合邏輯（第153段），一聽便知道是“大話”（第155段）。男2不但沒有否認是大話，還反問男1：“咁重有啲咩大話冚啫？”（第156段）。男1繼而評論大話之質素，他說是普通人一聽入耳便會覺得質素很差的大話（第159段）。男2亦沒有否認。本庭認為，這些說話清晰地證明到男2曾作出假證供。

19. 另外，P23謄本顯示，當男2說他沒有得“轉”後（第194段），男1則提到他有抄錄男2部份證供的情形，他計劃下午恢復抄錄男2的證供（第195段），這樣做是為了男2温習“假畫面”，以防真假混淆，從以下說話這是明顯不過的：“你真實嘅，係一個畫面啦，假嘅又一個畫面嚟，我驚你下次直情會撈埋”（第202段），“咁除非你咁，温熟個假嘅畫面喇，我又寫低，咁又唔同”（第204段）。男1提議男2有問題才改口時（第210段），男2則問怎樣才能把“危險減低”，“係咪揾到個新嘅version，然之後講個新version去 …”（第211段）。明顯地他們在計劃怎樣做來維持原本的“假畫面”證供，令到被揭發的危險性減低。

20. 綜觀一切（包括下述有關辨認的議題），P37/P23（尤其上述這些“露骨”的對話），都清楚顯示兩名申請人，在其中一名正在法庭作供的期間，不但討論其證供，還計劃怎樣可以持續其假證供。不論事後A2是否成功地抄錄下A1的證供以供他參考，他們的對話明顯鼓勵A1繼續維持假證供。這些行為有傾向及意圖妨礙司法公正，是明顯不過的（看 HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046）。

21. 兩名申請人是有經驗的警員。他們上述的行為，是故意作出，亦是嚴重的不當行為，案中沒有任何辯解理由的證據（看Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745）。

22. P37/P23所披露的行為及意圖，完全支持到原審法官在判詞第123-126段裁定申請人“曾經討論第一被告人在續審期間應如何作供，第一被告人不應混淆他證供中虛假及真實的部份，及第一被告人應謹記虛假部份以避免將來混淆。本席裁定他們如此的討論是妨礙司法公正的作為。本席也裁定他們是意圖妨礙司法公正而作出這些討論，…。[他們] 當時身為警務人員在執行公職過程中或與他們公職有關的事上，故意及蓄意作出以上提到的討論，而該些討論是可構成罪行的不當行為 …”。本庭駁回上訴理由（一）。

理由（二）及理由（三）

23. 理由（二）有關劉大律師的證供可否被呈堂為證據。申請人認為他不是辨認聲音專家，而且他存有利益衝突，所以原審法官不應該接納他的證供為可呈堂證據（not admissible），更不應給予任何比重（no weight）。理由（三）則有關P37的保管情況，與及專家證人的證供對P37有沒有被修改。

24. 這兩項理由可以一併處理。本庭認為本案這部份議題可以分四個階段考慮：P37錄音的產生及保管情況；它被干擾的可能性；原審法官可否接納劉大律師辨認聲音的證供為呈堂證供；原審法官應給予他證供的比重。

25. 雙方律師援引了多宗與處理錄音有關的不同議題的案例，本庭已加以考慮（R v Robson [1972] 2 All ER 699, Choi Kit Kau v The Queen [1980] HKLR 433, R v Murphy [1990] NI 306, R v O’Doherty[2003] 1 Cr App R 5, HKSAR v Lee Chi Fai [2003] 3 HKLRD 751, R v Flynn and St John [2008] 2 Cr App R 266）。

26. 申請人首先強調在本案中，控方並沒有傳召任何證人陳述錄音筆P37是由誰人，在什麼時候，放在什麼地方錄音，亦沒有傳召任何證人陳述錄音的時候有那些人在有關地方曾說話。另外控方亦沒有傳召任何證人陳述在錄音之後，及2007年12月呈上給Jenkins法官之前，P37是由誰人，在什麼情況下，保管。原審法官清楚這一點（看裁決理由書第121段）。

27. 在HKSAR v Lee Chi Fai 案例中，上訴法庭確立，法庭考慮應否容許錄音呈堂時，首先要審視其有關性（relevance）。在本案中，從以上有關理由（一）的討論，明顯地P37與控罪有關。等二步，是看其表面真實性（prima facie authenticity）。一般來說，控方會有錄音的產生（provenance）與其保管（history）的證據。但這並不是“無其不可”的。正如Roberts CJ在Choi Kit Kau v The Queen所說，這是“最佳”的證明方式。但案例顯示這並不是唯一證明的方式。

28. 在Lee Chi Fai 案例所援引的 R v Murphy案，北愛爾蘭上訴法庭考慮一段錄影可否被呈堂。該段錄影並不是正本錄影帶，而且是被剪輯過的。控方沒有傳召拍錄者，亦沒有證人陳述怎樣把正本錄影帶複印成為呈堂的錄影帶。但北愛上訴法庭裁定：

“Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources. … In the case of a tape recording the evidence of its authenticity will, in almost all cases, be that it is the original recording made at the time. In the context of tape recordings, the word ‘original’ will invariably be a synonym for ‘authentic’ … If the original tape is not available, then the ‘provenance and history’ of the copy will be a necessary requirement to prove authenticity.”

29. 在本案中，P37是原裝MP3錄音筆。誠然，本案沒有證據顯示是由誰人在那時候在那地方開始錄音，亦沒有證據有關其保管，但本庭認為這並不等如P37便不可被呈堂。在Lee Chi Fai案，傷者Tai沒有披露是誰人取得正本的錄影帶，在事發至少一天後才交給他（第18段）。該案被告人投訴這構成“證據鏈的空缺/斷口（gap/breach in the chain of evidence）”（第24，25段）。但原審法官不接受被告人所稱，這令到錄影帶不可被呈堂的說法，而上訴法庭亦確認原審法官的裁定。法庭決定證據可否被呈堂時，要考慮周邊證據（第37段），特別是控方專家證人沒有找到錄影被揑做跡象這項證據（第34段）。

30. 在本案中，專家證人檢驗P37後，認為沒有任何物理上的改動，他亦有進行分析頻譜以斷定聲音訊號的特徵（“waveform and frequency spectrum analyses to determine the signal characteristics of the evidence recording”）。他解釋雖然是連續錄音，但這類型錄音筆的特性是，每5小時左右，便自動開一個新檔案。他檢驗了P37內一共5個語音段落檔案（“recording session”），即“VOICE_0001”至“VOICE_0005”，“VOICE_0005”只有1秒。他認為5個語音段落均沒有不正常或特別需要注意的地方（“event”），例如曾經被删剪或修改過（謄本第48頁）。

31. 他發現P37曾有3個删除了的語音段落（“deleted recording session”），但都由他復原，即“Q4_recovered05”至“Q4_recovered07”。可是最先的“Q4_recovered05”的前部份由“VOICE_0005”（即1秒的語音段落）所蓋過。

32. 換言之，“VOICE_0001”至“VOICE_0004”過程中間沒有段落被删除，而專家亦復原了删除的語音段落，除了由“VOICE_0005”（即1秒的語音段落）蓋過“Q4_recovered05”的前部份之外。

33. 專家的結論是，就Q4（即P37）來說，該樣本是原裝錄音機，而他沒有發現有顯示檔案曾被修改（“… the specimen was the original recorder … and no indication of tampering was found in the recording sessions”）。他解釋評估錄音的真實性，一共分7級（Scale of Judgment），由真實性最確切（most positive）至最否定（most negative）。他認為Q4（即P37）屬第二最確切一級（最確切一級為：發現檔案沒有被修改過“I have found no tampering in the audio recording”）。

34. 原審時，被告人的代表律師起初誤解了專家的7級評估制度的證供（謄本第51頁），經法官指出，他自認誤解後，便再沒有盤問。

35. 申請人現在批評原審法官不應該接納P37，因為它的真實性是第二最確切一級，而非是最確切一級。但本庭認為，刑法的舉證準則需要無合理疑點，並不需要絶對確切的證據。本案沒有任何證據顯示，即使專家的證供說“沒有發現有顯示檔案曾被修改過”，只因評估制度存有較高一級，該證供就會怎樣變質。本庭不可對證據（例如，這兩級别有什麼實際的分別，或者達至評估最確切一級所要求的標準）作出揣測。綜觀案中唯一專家的上述證據，本庭認為原審法官有權接納專家的意見，裁定P37是表面真實的。

36. 至於原審法官可否接納劉大律師辨認聲音的證供為呈堂證供這一點，誠然劉大律師並非辨認聲音的專家，但案例確立，法律並無要求必須由專家提出這類的證據。在R v Flynn and St John案例，英國上訴法庭述明，專家進行辨認聲音比非專家人士更為可靠，因為專家可利用先進的技術，但當辨認聲音是由非專家人士進行時，關鍵在於該名人士對聲音的熟悉程度。

Voice recognition: in R v Flynn and St John [2008] Crim LR 799, the court held:1. Identification of a suspect by voice recognition was more difficult than visual identification; 2. Identification by voice recognition was likely to be more reliable when carried out by experts using acoustic and spectrographic techniques, as well as sophisticated auditory techniques, than by lay listener identification; and3. The ability of a lay listener to identify voices correctly was subject to a number of variables. The following factors were relevant:

    The quality of the recording of the disputed voice or voices;

    The gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice;

    The ability of the individual lay listener to identify voices in general – the ability of an individual to identify voices varied;

    The nature and duration of the speech sought to be identified – some voices were more distinctive than others and the longer the sample of speech the better the prospect of identification; and

    The greater the familiarity of the listener with the known voice the better his or her chance of accurately identifying a disputed voice – research showed that a confident recognition by a lay listener of a familiar voice might nevertheless be wrong.

4. The crucial difference between a lay listener and expert speech analysis was that the expert was able to draw up an overall profile of the individual’s speech patterns. The lay listener’s response was fundamentally opaque. The lay listener could not know or explain which aspects of the speaker’s speech patterns he was responding to. He also had no way of assessing the significance of individual observed features relative to the overall speech profile (in contrast to a case of visual identification). The opaque nature of the lay listener’s voice recognitions would also make it more difficult to challenge the accuracy of the evidence. In this context police officers were lay listeners.

On the facts of the particular case, the poor quality of the covert recording of the voices was such that the expert could not analyse the voices by reference to individual speakers, which was a prerequisite for making a speaker-identification. Recording by means of a telephone device further distorted the voice.

37. 在本案中，劉大律師陳述了他與兩名申請人的熟悉程度。至於A1，其實他已在九龍城裁判法庭，在劉大律師面前作過證供有一至兩天。跟著有“第一宗案”，其實曾經因有被告人突然患病而要腰斬，A1在腰斬了的審訊時已與劉大律師有對話。後來又再次在“第一宗案”時，A1在劉大律師面前作證供一共120小時。至於A2，劉大律師陳述A2亦有在九龍城裁判法庭，腰斬了的審訊，與及本案的審訊，參與控方的工作。劉大律師本人與A2交談都已有50至60次，每次1至2分鐘。申請人強調案中有其他證人說未能辨認P37的聲音，但法官有耳聞目睹各名證人作證的優勢，他可觀察各名證人的反應，智慧，警覺性，態度等特徵後，有權接受其中一名證人的證供。

38. 申請人亦說劉大律師的證供不可獲呈堂，因為他存有利益衝突。本庭不接納這說法。劉大律師是執業大律師，並非是“第一宗案”的被告人或其代表律師事務所的僱員。而且“第一宗案”沒有重審，亦沒有任何證據顯示在本案進行時，劉大律師指證申請人會對任何人有什麼益處。本庭看不到有任何理由令劉大律師的證供不獲呈堂。

39. 當然，證據獲呈堂後，法庭亦會考慮其他證據來斷定其真實性，但本案沒有其他這方面的證據，削弱控方證據。至於申請人說可能有人“扮聲”這一說法，則純屬揣測，沒有任何證據支持。何況P37部份內容提到警隊的行動細節，若果有人揑做錄音的話，加插假的細節會露出破綻，加插真的細節則需向警隊查詢，引起懷疑。因此本庭認為“扮聲”這一說法，純屬揣測，駁回理由（二）及理由（三）。

理由（四）

40. 最後，理由（四）稱原審法官沒有質問劉大律師是否存有利益衝突，但當PW7警員說他認不出P37所錄的聲音時，法官卻質問他是否保護A1及A2，會令人感覺法官已認定了錄音中的人是A1及A2。

41. 本庭不接納這說法。首先，正如上述，本庭不認為劉大律師存有利益衝突，而無論如何，當一名證人作供時，原審法官是有權在恰當的情況下，為斷定證人的可信性及可靠性，測試（test）該證人的證供。在本案中，申請人投訴原審法官對PW7所問的兩條問題（即“會唔會你係特登為咗保護佢哋，明明認得都唔認得，係咪？”及“識咗咁耐，冇理由唔認得把聲個喎，如果係佢嘅話”）（謄本第98頁）。本庭認為，這些問題沒有超越法官測試證人證供的界限。本庭駁回理由（四）。

42. 基於以上理由，本庭駁回兩名申請人的上訴許可申請。

（袁家寧）    （關淑馨）    （朱芬齡）

高等法院上訴法庭法官        高等法院上訴法庭法官        高等法院上訴法庭法官

第一及第二申請人： 由文禮律師行轉聘黄敏杰資深大律師及陳永豪大律師代表

答辯人：由律政司署理高級助理刑事檢控專員李俊文代表

有關向終審法院提出的相關上訴，請參閲FACC11/2012。

Court of Final Appeal

香港特別行政區 訴 楊家豪及另一人         

終院刑事上訴2012年第11號(原高院上訴法庭刑事上訴2011年第207號)

上訴人: 楊家豪及周熾朋

答辯人: 香港特別行政區

主審法官: 終審法院常任法官陳兆愷、終審法院常任法官李義、終審法院常任法官鄧楨、終審法院非常任法官馬天敏及終審法院非常任法官高禮哲爵士

判決﹕本院一致裁定駁回上訴

判案書﹕由非常任法官高禮哲爵士頒發判詞

聆訊日期: 2013年8月30日

判案書日期: 2013年9月26 日

法律代表:

大律師陳永豪先生（由文禮律師行延聘）代表各名上訴人；

資深大律師麥高義先生（由律政司延聘）及萬德豪先生（由律政司委派）代表答辯人。

摘要:

 兩名上訴人皆警務人員。第一上訴人在2007年一宗刑事審訊（ “前案”）中是一名控方證人；第二上訴人在同一審訊中是一名證物警員。在該審訊中，辯方律師呈上一盒記錄兩名人士談論作假證供的錄音帶。在本案中，兩名上訴人被指是上述談話被錄音的該兩人而被起訴，其後被區域法院定罪，罪名是“作出傾向並意圖妨礙司法公正的行為”及 “藉公職作出不當行為”。上訴法庭維持對他們的定罪裁決。

至於上述錄音是於何處、何時及由何人錄取，這方面並無證據指證兩名上訴人，而他們辯稱在識別身分方面沒有足夠證據證明被錄音的兩人是他們。

 區域法院法官在斷定被錄音者是該兩名上訴人時已考慮下述直接證據和旁證：(1) 一名劉先生的證供是他曾有很多機會聽兩名上訴人説話而他能認出他們的聲音；(2) 錄音内容提及某些事件；及(3) 有證據顯示被提及的事件確曾發生並牽涉該兩名上訴人。

終審法院認為聲音辨認錯誤的危險已獲充分考慮，劉先生的識別身分證據結合上述旁證構成充分理據支持下級法院維持對上訴人的定罪。

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)

_______________________

Between :

       HKSAR     Respondent

       and 

       YEUNG KA HO (楊家豪) 1st Appellant

       CHOW CHI PANG (周熾朋)    2nd Appellant

_______________________

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

_______________________

J U D G M E N T

_______________________

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 documents, and sometimes after Mr. Lau had asked the 2nd Defendant i.e. the exhibits officer something about documents, the 2nd Defendant would seek assistance from the 1st Defendant.

33. Mr. Lau testified that even before commencement of the re-trial of (DCCC) 1280/2005, since Mr. Lau had had contacts with the 1st Defendant in the trial case at Kowloon City Magistracy, he was already able to identify the voice of the 1st Defendant. The trial case at Kowloon City Magistracy lasted for about 12 to 15 days. The 1st Defendant testified for about 1 to 2 days.

34. All in all, in the presence of Mr. Lau, the 1st Defendant testified for about 30 days or 120 hours. The last time Mr. Lau heard the voice of the 1st Defendant was when the 1st Defendant testified in the voir dire of DCCC 1280/2005 i.e. in about late 2007 or early 2008.

Regarding the 2nd Defendant

35. Regarding voice identification of the 2nd Defendant, first of all, Mr. Lau testified that the 2nd Defendant never acted as a witness in DCCC 1280/2005 or in other cases handled by Mr. Lau.

36. Mr. Lau said that he talked with the 2nd Defendant for many times because the 2nd Defendant had also assisted in the trial of the case at Kowloon City Magistracy. Besides, the 2nd Defendant also assisted in the process of the trial on many occasions during the suspended trial of DCCC 1280/2005 and the subsequent 130-day retrial.

37.   Mr. Lau said that the 2nd Defendant was responsible for passing documents to the defence.  Through these contacts and occasional chit-chats with the 2nd Defendant, Mr. Lau became familiar with the voice of the 2nd Defendant.  Mr. Lau said that the 2nd Defendant was rather talkative so during court adjournments Mr. Lau talked with the 2nd Defendant for many times.  Although contents of those conversations were not something important and also not personal, such kind of chit-chats occurred for about 50 to 60 times, each lasting for about 1 to 2 minutes.”

26.  In cross-examination, Mr Lau said that when asked by the police about the matter in April 2010, some 3 years and 2 months later, his initial recall was vague though he remembered having complained to the judge about the person he remembered having peeped at documents he was reading.  His evidence was that, after having located and reviewed notes of the earlier proceeding he had retained, he recalled that the person who peeped at his papers was “Billy”.

27.  Mr Lau did concede that he had not seen the two appellants alone together in the witness room during court adjournments.

28.  The judge heard some expert testimony to the effect that there was no indication that the tape recording had been edited or interfered with and that there was no technical indication of when it had been recorded.

29.  PW4 (“Mr Ng”) was the prosecuting counsel in the initial suspended trial and re-trial in DCCC 1280/2005.  He confirmed that the 1st appellant was the second prosecution witness.  He said that one of the police officers who assisted him was called “Billy”.  PW4 had also prosecuted in the trial at Kowloon City Magistracy where the same undercover police witnesses gave evidence.

30.  In the reasons for verdict, the District Court Judge noted PW4’s evidence was that he had listened to the relevant audio recordings and was unable to identify the voices recorded.  The judge then stated:

“57. … After hearing the evidence of Mr. Ng on this aspect, I deliberately remind myself that I must exercise extra care when dealing with the evidence of PW1 Mr. Lau in relation to voice identification. The reason is that Mr. Ng was the prosecutor in that case. He should have more chances and in closer proximity than any other people to have contacts with the Defendants. Theoretically he should be in a better position to identify the voices of the Defendants.”

31.  The judge went on to note that PW4 could not recall who was the subject of the complaint on 1 June.

32.  In his summary of the evidence of PW4, the judge set out the following findings:

“59. …. Mr. Ng testified that as exhibits officer, the 2nd Defendant had been assisting Mr. Ng to pass exhibits to the judge for most of the time. Mr. Ng said that he was sure he had more opportunity than PW1 Mr. Lau to talk to the 2nd Defendant.

60. Another important point in the evidence of Mr. Ng is that when the Defence produced a series of voice recording pens to the court in that case, Mr. Ng and PW1 Mr. Lau were assigned to take part in the preparation of the transcript. According to the evidence of Mr. Ng, during the course of preparing the transcript, Mr. Lau made mistakes for many times and mixed up which voice in the audio recordings belonged to whom. Mr. Ng further said that Mr. Lau had to guess the identity of the persons in the recordings and that Mr. Lau himself had made mistakes for many times and even had to be corrected by his own defence team.

61. However, the Defence did not cross-examine Mr. Ng in relation to the voice identification of the relevant sessions of audio recording in the present case to clarify whether Mr. Lau had made any mistakes concerning such sessions. On the contrary, Mr. Lau gave specific evidence in relation to the relevant session(s) of audio recording in the present case and confirmed accuracy of his evidence on voice identification.

62. Upon invitation by the court and being agreed by the Prosecution and Defence, Mr. Ng listened to the relevant parts of the audio recordings in court again.  What Mr. Ng could do was only to speculate that the voice which the Prosecution alleged to belong to the 2nd Defendant could be the voice of the 2nd Defendant.  Mr. Ng was completely unable to give evidence in relation to whether the voice of the 1st Defendant was that of the 1st Defendant.”

33.  The 5th prosecution witness was the officer-in-charge of case DCCC 1280/2005 over the relevant period.  She gave evidence directed to aspects of the proceedings and the roles of participants.  In relation to our present task, her evidence does not take matters much further.  One point from her evidence noted by the judge in his reasons is:

“72. Another important part of the evidence of WDIP Lee is that according to Madam Lee, in the case DCCC 1280/2005 exhibits were all kept in a large box and such large box was in the custody of her subordinates. During lunch breaks or court adjournments, they would normally take the box with them when they left the courtroom. Generally, they would put it in a witness room near the courtroom. Madam Lee said in general the 2nd Defendant was responsible for watching over the said exhibits box.”

34.  PW5 was unable to identify the voices on the tapes.

35.  Four further police officers gave evidence of having listened to the relevant tape in September 2009 and had been unable to identify the voices recorded.  The judge did not find their evidence added significantly.

The District Court Judge’s Findings

36.  Having set out the evidence, including that of a character witness for the defence (the appellants elected not to give evidence), the judge found all of the witnesses honest and reliable.  He found the contents of the transcript of the audio recordings prepared by PW3 are accurate.  His findings on the voice identification evidence of PW1 were:

“100. I find that evidence of PW1 Mr. Lau on voice identification of the audio recordings is true and accurate. I give full weight to his evidence. I find that regarding the 1st Defendant, Mr. Lau had ample opportunities to fully familiarize himself with the voice of the 1st Defendant at the trial at Kowloon City Magistracy and at the trial of DCCC 1280/2005.

101. Regarding the 2nd Defendant, although Mr. Lau heard the voice of the 2nd Defendant on relatively fewer occasions, he still had sufficient opportunities to hear the voice of the 2nd Defendant in the process of handling documents throughout the whole trial of DCCC 1280/2005. As the officer in charge of exhibits in the case, the 2nd Defendant definitely had many opportunities to talk with Mr. Lau. Furthermore, although the trial period was relatively shorter, the 2nd Defendant was also the exhibits officer in the trial at Kowloon City Magistracy and Mr. Lau was also the defence counsel in that case. This also increased the opportunity of him hearing the voice of the 2nd Defendant.

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.”

37.  The judge then added his findings on the peripheral circumstantial evidence.  He accepted that references to names and nicknames on the tape were to police officers and police activities connected with case DCCC 1280/2005 and another case with which the appellants and those referred to on the tape were closely familiar. The District Court Judge found also that the taped conversation revealed that the two males were recorded as talking about the incident in the courtroom on 1 June 2007 when complaint was made about “Billy” peeping at PW1’s documents.

38.  The judge also mentioned reference on the tape to another previous case:

“110.  In counters 205 and 211 of the audio recordings, Male 2 asked Male 1 if he could remember another previous case involving “city”.  According to the evidence in our present case, both the 1st and 2nd Defendants had been involved in the trial of a case concerning vice establishments which was heard at Kowloon City Magistracy, and the trial of such case concerning vice establishments also involved the undercover operation that was involved in the trial of DCCC 1280/2005.  In both cases, the 1st Defendant was one of the members in the undercover operation, while the 2nd Defendant was an exhibits officer.  Notebook of the 1st Defendant confirmed that he had testified in a case called city sauna (literal translation).”

39.  With reference to the time when and the place where the recorded conversation occurred, the District Court Judge’s reasons for verdict state:

“116. Evidence which is able to assist us in trying to find out on what date and at what time the audio recordings were made are from the contents of the conversations. In the recorded conversations, Male 1 and Male 2 mentioned a floppy disc. Transcript of the trial of DCCC 1280/2005 shows that the 1st Defendant testified before lunch on 1st June that he would bring along with him a floppy disc when he performed the undercover operation. Obviously the two males were discussing the evidence which had been given by one of them. I find that the only irresistible inference is that the two males were the 1st and 2nd Defendants, and that they were discussing the evidence which had been given by the 1st Defendant at the trial of DCCC 1280/2005 at an earlier time on 1 July 2007.

Place of making audio recordings

117. Without direct evidence of the person who placed the voice recording pen, the Prosecution could only rely on circumstantial evidence to try to convince the court to make an inference of the place of occurrence of the conversations recorded in the audio recordings. The evidence referred to by the Prosecution included the following.

118. The trial of DCCC 1280/2005 was heard by Mr. Jenkins. Mr. Jenkins’ court was at court no. 24 on 8/F of Wanchai Law Courts, Wanchai Tower at that time. According to the evidence of PW2 the expert witness, such conversation took place in a room. It was heard from the audio recording that the 1st Defendant told someone else over the phone that he needed what kind of food. The 2nd Defendant brought back some food and lemon tea later. They talked with each other while eating the food. According to the evidence of PW5 WDIP Lee, the 2nd Defendant was the officer responsible for watching over the exhibits box in the case during court adjournments. She also testified that in general the exhibits box would be put in the witness room during court adjournments. In counter 232 of the transcript of the audio recordings, someone mentioned quarter past. This seems to indicate that the then time was 2:15pm which was also the finishing time for the lunch, the time for them to prepare to return to the courtroom and continue with the trial. Since they had only a very short time left at that time, they were definitely at a place very near the courtroom.

119. I find that based on the above evidence, I am able to make an irresistible inference that the conversation in the audio recordings took place in the witness room on 8/F of Wanchai Law Courts, Wanchai Tower during lunch time on 1 June 2007.”

40.  The judge took into consideration that others were not able to identify the voices on the tape and set out why he nevertheless accepted the evidence of PW1.  When doing so, he mentioned again the “Turnbull” warning.  He stated his conclusion as:

“123. I find that the 1st and 2nd Defendants had conversations in the witness room at 8/F of Wanchai Law Courts, Wanchai Tower, while the 1st Defendant was still giving evidence for the Prosecution in court in the case DCCC 1280/2005 on 1 June 2007. I find that the contents of their conversations are as stated in Exhibit P23 the transcript. I find that their conversations relate to the evidence which had been given by the 1st Defendant at the trial of DCCC 1280/2005. I find that they also discussed how the 1st Defendant should further testify when the trial was resumed, that the 1st Defendant should not mix up the true and false parts of his evidence, and that the 1st Defendant should memorise the false parts so as to avoid confusion in future.”

The Case in the Court of Appeal

41.  In their appeal to the Court of Appeal, the appellants advanced four grounds all of which were rejected.  Of those the first; that the contents of the audio recording did not disclose the charged offending, and the fourth, that the District Court Judge had a conflict of interest, were rejected.  They were not pursued in this Court and need not be mentioned further.

42.  The remaining grounds were dealt with together in the Court of Appeal judgment.  The court considered four matters; they were: the making and custody of the tape recording, the possibility that it had been tampered with, whether the voice identification evidence of Mr Lau should have been admitted by the judge, and the weight that should be accorded in Mr Lau’s evidence.

43.  The judgment of the Court of Appeal cited the leading authorities on evidence by audio recordings.  By reference to HKSAR v Lee Chi Fai, the court accepted that the content of the tape was obviously relevant to the charges.  The court then said:

“27. … Secondly, its prima facie authenticity must be considered. In general, the prosecution would have evidence concerning the provenance and history of the audio recording. However, this is not ‘indispensible’. As Roberts CJ said in Choi Kit Kau v The Queen, this is the ‘best’ method of proving. However, the authority case shows that this is not the only way to prove.”

44.  The court accepted that the authorities establish that authenticity can be proved circumstantially.  The judgment reviewed the expert evidence and accepted the finding of the District Court Judge that the expert evidence established the tape as prima facie authentic.  The court then addressed the identification evidence of Mr Lau and concluded that, although he was not an expert, the judge was right to accept his evidence because of the opportunities he had to become familiar with the voices of the appellants he said were recorded on the tape.  The court said:

“37. … The Applicants emphasized that there were other witnesses in the case who were unable to identify the voices depicted in (Exhibit) P37. However, the judge had the advantage of seeing and hearing testimony of every witness. He could observe the response, wisdom, alertness and manner etc. characteristics of every witness, and then he had the right to accept the evidence of one of the witnesses.”

The Case in this Court

45.  In this Court, Mr Chan, for the appellants, presented extensive written argument on the difficulties inherent in dealing with evidence in the form of tape recordings. He argued that only with clear evidence of the making and preservation of any recording and expert evidence of its accuracy and reliability with available voice recorded material for comparison, should such evidence be admitted.  He contended that warnings adapted from the guidance in Turnbull are not sufficient to avoid the risks of relying on evidence of tape recordings.

46.  When he dealt more specifically with the circumstances of the present case, Mr Chan was critical of the inadequacies in the identification evidence.  In that regard, he went considerably beyond the evidence and cross-examination of PW1 before the trial judge.  That cross-examination focused almost entirely on opportunities PW1 had to become familiar with the voices of the appellants. Counsel’s criticisms of the inadequacy of the evidence explaining how PW1 was able to recognize the voices when others could not, seems to have rested on the one answer that Mr Lau acknowledged having never received any special training on voice identification.

47.  The real issue, however, is whether it was open to the judge to conclude that the evidence that was given proved that the voices recorded on the tape were those of the two appellants.

Decision

48.  The issues surrounding evidence in the form of recordings are broadly similar though the means of recording may be different.  Audio tapes, video tapes, films, photographs, even DNA analysis, whatever the technology used, raise issues of authenticity and accuracy that must be addressed with reference to the particular circumstances.  When a recording is relied on for identification, not only the accuracy of the record, but also the reliability of the witness identifying what is recorded may arise.  These matters are facts which must be proved.

49.  Visual identifications are well recognized as requiring care and the courts recognize this as the decision in Turnbull clearly shows.  The same care and equivalent warnings are applicable to other forms of identification evidence, including voice identifications.

50.  In HKSAR v Lai Wai Cheong[3], the Court of Appeal accepted that the Turnbull guidelines are applicable to evidence of identification, whether of appearance or voice.  A tape recording can be admitted and relied upon as evidence of the contents where a proper basis for its reliability is established.  In the early case of R v Maqsud Ali[4], Marshall J, for the Court of Criminal Appeal, said:

“… We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.”

51.  In Choi Kit Kau v The Queen[5], Roberts CJ said:

“[T]he best method of proving that a tape recording produced in court is authentic is to show that it has been, since the time it was recorded, continuously in the custody of persons who assert that it was not tampered with. This is a course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not.”

52.  Where the “best” method is unavailable, the authenticity of a tape may still be capable of proof.  In HKSAR v Lee Chi Fai and Others[6], the Court of Appeal adopted the analysis in R v Murphy and Another[7]:

“ Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources.”

53.  In R v Chen[8], the Victoria Court of Criminal Appeal received evidence of tape recordings where the makers were dead or unavailable.  The court said:

“The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduce those originally made by the persons identified by the evidence. In other words, there must be evidence, which the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.”

54.  There is much of assistance in the lengthy judgment of the Court of Appeal (Criminal Division) of Northern Ireland in R v Murphy and Another.  The case involved video-taped evidence forming part of the prosecution case though the makers of the films did not give evidence.

55.  The Court of Appeal in England in R v Flynn and St John[9] ruled that evidence of recognition of a voice by a lay person was admissible, but on the facts of that case evidence of police officers of voice recognition should have been ruled inadmissible.  The opportunities for familiarization with the voices of the accused were very much less than in this case and there was expert evidence casting doubt on the reliability of the tape recordings.  The court’s conclusions were summarized at p 279 as:

“ There are other considerations which apply to both appellants. We have already noted the two most important factors, namely the limited opportunity for the officers to acquire familiarity with the appellants’ voices and secondly, the poor quality of the covert recording. To these we add the following. First, the police officers’ purported recognition of the appellants’ voices is in marked contrast to the evidence of the two experts who are unable to recognise their voices; in Dr Holmes’ case she was unable to identify individual voices. Secondly, nothing is known of the ability of any of the police officers to recognise voices. There is no evidence that any of them had any training in auditory analysis. Thirdly, the identification of the voices was carried out by listening to the covert tape on a standard laptop computer, as opposed to the sophisticated equipment used by the experts. Fourthly, in our judgment, it is significant that DC Gittings’ transcript contains words attributed to Flynn which Dr Holmes could not distinguish as words, let alone recognise as attributable to Flynn. Fifthly, the expert evidence shows that lay listeners with considerable familiarity of a voice and listening to a clear recording, can still make mistakes.”

56.  To the judgment in that case the court added this postscript:

“ As appears from the above we have been dealing in these appeals with issues arising out of voice recognition evidence. Nothing in this judgment should be taken as casting doubt on the admissibility of evidence given by properly qualified experts in this field. On the material before use we think it neither possible nor desirable to go as far as the Northern Ireland Court of Criminal Appeal in O’Doherty which ruled that auditory analysis evidence given by experts in this field was inadmissible unless supported by expert evidence of acoustic analysis. So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of familiarity of the witness with the suspect’s voice. Even then the dangers of a mis-identification remain; the more so where the recording of the voice to be identified is poor.”

57.  In Jones & Harris[10], the Court of Criminal Appeal of Victoria rejected submissions for two appellants that evidence of voice identifications should not be received.  In the case of the appellant Jones tape-recorded telephone conversations together with circumstantial evidence consistent with factual statements made during the telephone calls was received as probative of identity.  Similarly, in the case of Harris, voice identification evidence from witnesses familiar with his voice and supported by circumstantial evidence was held to have been rightly admitted.

58.  I see no reason why, in certain circumstances, the identity of participants and, the timing and circumstances of a recorded conversation, cannot be proved by reference to the content of the recording.  It must be possible as where the maker is unknown or unavailable and the content when placed in a context of known facts establishes time and place.  Similarly, the identity of a speaker may emerge from what is said.  Statements revealing the facts or knowledge that only an offender could know frequently can lead to identification.  For example, statements made by disguised offenders in the course of a robbery can be relied upon to identify them.  Statements made anonymously in writing or in the course of a telephone call demanding ransom after a kipnapping may support identification.

59.  Of course other possible contingencies must be excluded – such as voice imitation.  Those matters go to the weight to be accorded the evidence of the conversation.

60.  The authorities make clear the care with which tape recordings must be considered.  But with appropriate safeguards, and careful directions, there is no reason to construct rigid exclusionary rules.  As with all evidence, reliability is to be assessed in all the circumstances.

61.  In many cases, it would be question-begging to seek to prove the authenticity of a tape recording from the contents of the recording itself.  Mr Chan, for the appellants, submitted that the voice identification in this case is flawed because PW1 was not shown to have recognized the speakers solely by their voices and without reliance on the context with which the speakers exhibited familiarity.  He argued that:

“In substance, the whole exercise would not stand to test the ability of PW1’s ability in the voice identification. It is apparent that both PW1 and essentially the learned trial Judge had been affected by this potential contextual bias, using the content to reinforce their ‘belief’ that the voices belonged to the Appellants.

…

The Appellants respectfully submit that to assess the evidence of voice identification of PW1, it has to be done in separation of the content of Exh. P37.  Otherwise, one would fall into the same flaw or weakness in suggesting that PW1 was capable of identifying something apparently representing the details of a content that he was familiar with and borrow force from this to his ability of voice recognition because it is a ‘content recognition’ which might subconsciously affect the listener and also it is a logical fallacy amplified infinitely because one cannot examine how much the recognition is attributable to voice and content respectively.”

62.  I do not accept that the “context”, indeed all the surrounding circumstances, may not be taken into consideration in evaluating evidence of identification.  The argument to the contrary is unreal and inconsistent with the authorities already mentioned.

63.  Of greater significance is whether PW1’s evidence of his recognition of the identity of the voices on the tape may have been not solely his own, but was contributed to by others who did not give evidence of recognition or identification of the voices.  PW1’s evidence was that when the existence of the tapes was exposed at the end of 2007, he was one of the people involved in preparing transcripts.  There were 45 tapes produced at the trial of DCCC 1280/2005 though only one contained the conversation with which we are directly concerned.

64.  At the trial of this case, when PW1 gave evidence that he could identify the voices on the tape, he was asked when he first disclosed this.  His evidence was:

“A: Actually, I disclosed (this) at the trial of DCCC 1280 because actually in the process of preparing these transcripts, (the identities of) Male 1 and Male 2 had been mutually agreed by the prosecution and defence in that trial.

Q: The prosecution and defence did not agree on who was Male 1 and who was Male 2; otherwise it would have been written at an early stage --- it would have been specified at the beginning that Male 1 was whose voice and Male 2 was whose voice. Do you agree? This was not agreed by both sides. Is it?

A: I dare not say (whether it is the case or not) for individual transcript. For example, if you are talking about whether the transcript for 1 June had been mutually agreed at that time, we --- I have to go back and ‘check’ my notes, but regarding the transcripts being produced to the court at that time, most of the Male 1, Male 2 or Female 1, or Male 1, Male 2, Male 3, all were mutually agreed by the prosecution and defence before the transcripts were produced to the court; otherwise the cross-examination could not be continued.

Q: I put it to you that, by saying that the prosecution and defence mutually agreed, you mean agreeing the contents of the transcripts but not the identities of the voices appeared in the transcripts. This has never been agreed. Do you agree? Since …

A:  I have to think about this first.  I do not have much recollection about this.”

65.  Later in his evidence, PW1 explained why in October 2010 he was prompted to consider the details of the “peeking” incident of 1 June 2007.  He said that in connection with other litigation it had become necessary for him to review the relevant documents and his contemporaneous notes.  There was also a professionally prepared transcript then available.  He said this brought back memory of the incident.  It was not put to him that this recollection and identification in 2010 and subsequently were aided by having been involved, with others, in 2007 in preparation of the first transcripts (which in any event did not include the identities of the recorded speakers).  Of course this would not exclude the possibility of there having been discussion or speculation at the time, but there is no evidence of that.  At the trial of the present proceeding, the tape was played and PW1 identified the voices as those of the appellants.  Doubtless by then he would have listened to the tapes a number of times.  Standing alone his evidence that he could identify the voices after the lengthy lapse of time would warrant concern.  But the circumstantial evidence gives real credibility to his recollections, as they clearly did for the District Court Judge and the Court of Appeal.  And the peeking incident gave him a particular reason to remember.

66.  I have not been persuaded that the reasons for verdict contain material errors of law.  Nor has the judgment of the Court of Appeal been shown to address incorrectly the arguments presented to that court.  The case has involved an assessment of the reliability of oral evidence of identification bolstered by circumstantial evidence directed to the authenticity of the tape recording.  The courts below were convinced by the evidence tying the recorded conversations to the appellants and to the occasion on which they occurred.  Both lower courts reviewed the absence of evidence from others whose exposure to the voices of the appellants was no less than PW1 but nevertheless accepted his evidence.

67.  The dangers of misidentification of voices especially by lay listeners were acknowledged.  PW1’s familiarity with the voices of the appellants was fully investigated and his evidence was firm.

68.  Accordingly, I am satisfied that the verdicts were open on the evidence and there has been demonstrated no “substantial and grave injustice” (So Yiu Fung v HKSAR[11]) as would be required under s 32(2) of the Court of Final Appeal Ordinance to warrant disturbing the convictions.

69.  I would dismiss the appeals.

Mr Justice Chan PJ :

70.  The Court unanimously dismisses the appeal.

 (Patrick Chan)

Permanent Judge   (R A V Ribeiro)

Permanent Judge   (Robert Tang)

Permanent Judge

 

(Barry Mortimer)

Non-Permanent Judge   (Sir Thomas Gault)

Non-Permanent Judge

Mr Charles J Chan, instructed by Munros, for the appellants

Mr Gerard McCoy SC, instructed by the Department of Justice, and Mr Jonathan Man, of that Department, for the respondent