Manit Phromanonta and Others v. The Queen

CACC000152/1977

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 10th May, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The three Appellants were convicted of possession of dangerous drugs for the purpose of unlawful trafficking therein and also of conspiracy to traffic in dangerous drugs and were each sentenced to eight years' imprisonment on the first count and to ten years on the second count, those sentences to run concurrently. All Appellants appeal against both convictions and sentences.

2. All three are Thai nationals from Bangkok and the 1st and 2nd Appellants were members of Parliament in Thailand. The principal evidence against the three came from one, Stewart, a special agent of the United States Drug Enforcement Administration who, during the course of several meetings with the third Appellant in Bangkok during September and October, 1976 intimated that he wished to purchase heroin. By the 9th October a price of US$20,000 had been agreed for one kilogramme of the drug and it was arranged that a courier would bring it to Hong Kong.

3. On that date the 3rd Appellant and Stewart flew together to Hong Kong where they went to the Lee Gardens Hotel where certain conversations took place as to when the courier would arrive from Bangkok. On the 10th October the two were together in Room 1952 of the Lee Gardens Hotel and at the same time police were keeping surveillance both in the lobby of and also outside the hotel. By a flight which arrived from Bangkok at 2.59 p.m. on that same date, the 1st and 2nd Appellants, together with two men called respectively Nisit and Dumrongdej, arrived in Hong Kong and all came to the Lee Gardens Hotel. It was the evidence of the 1st Appellant that Nisit had organised the trip to Hong Kong as a pleasure trip and that he himself had no idea that the 2nd Appellant, whom he knew merely as a fellow M.P., though of a different party, would be on the aircraft.

4. As to the events of that afternoon it was the evidence of Stewart that at almost 2 p.m. he and the 3rd Appellant returned to Room 1952 at the hotel; that at about 2.15 p.m. the 3rd Appellant left the room returning in approximately 10 minutes; that they remained together in the room until the telephone rang at approximately 4 p.m. when Stewart was given to understand that the courier had arrived; that the 3rd Appellant then left the room returning at about 4.20 p.m. and that shortly after that the 1st and 2nd Appellants arrived at the room, the 1st Appellant bearing a suitcase in the side frames of which the heroin was concealed; that after an interval of about 10 minutes all four men went down to the lobby of the hotel after which Stewart left the lobby and went out of the hotel to see certain police officers who thereupon entered the hotel and arrested the three Appellants and Mr. Nisit. Mr. Nisit was subsequently acquitted of charges brought against him and figures no further in the case against the Appellants.

5. The police evidence as to the events of the afternoon came from Detective Constable Yau who was keeping surveillance within the hotel lobby and from Detective Constable Liu who was stationed outside the hotel and it was the case for the defence that their evidence bore some dissimilarity from that of Stewart. It was Yau's evidence that at 3.50 p.m. he saw the 3rd Appellant emerge from a lift at the lobby floor and leave the hotel. The latter event was also observed by Liu who then saw the 3rd and the 2nd Appellants talking outside the hotel. When the two moved off Liu followed them and on two occasions observed them to stop and talk together for about 4-5 minutes in addition to talking as they walked. Liu's evidence went on that the two separated shortly before returning to the hotel and entered the hotel separately at a distance of about 10 paces, the time then being, by Liu's watch, 4.10 p.m. Inside the hotel Yau saw the 2nd and 3rd Appellants exchange a short conversation of about one sentence after which the 2nd Appellant sat at a table in the lobby whilst the 3rd went upstairs; 4 or 5 minutes later Yau observed the 2nd Appellant making a telephone call after which he sat at a table together with the 1st Appellant and Nisit, Yau's view of that table being somewhat obscured by a pillar though he did subsequently observe the 2nd Appellant walking away towards the shopping arcade of the hotel. Subsequently at a time as to which this witness was vague, he saw the 3rd Appellant emerge from a lift carrying a briefcase and sit at a table in the lobby. Later other police officers came in and made the arrests.

6. It was the evidence of Yau that, whilst he could not see the 1st Appellant seated at the table from which the 2nd Appellant had risen to go towards the shopping arcade because a pillar obstructed his view, he would have seen the 1st Appellant had he risen from the table. It is this piece of evidence upon which the defence relies for an alibi in regard to the 1st Appellant who, it is claimed, could not have been in Room 1952 if Yau's evidence was correct.

7. Dealing first with the suggestion of alibi in regard to the 1st Appellant Mr. Duncan, for the Crown, argued that there was a real probability that the 1st Appellant could have got up and left his table without necessarily being observed by Yau whose brief was to keep surveillance over the 3rd Appellant, but who also began to observe the movements of the 2nd Appellant once he had observed him in conversation with the 3rd Appellant. Yau however had no particular interest in the 1st Appellant. The evidence of Yau, it was submitted, could not be taken to mean that the 1st Appellant had never left the table and in any event the observation of Yau that he must have seen the 1st Appellant had he left the table related only to the time before the 2nd Appellant had risen from that table to go in the direction of the shopping arcade.

8. There is substance in this last contention. Yau's evidence had been that although he could see the 2nd Appellant at the table he could not see to whom he was talking at that table and the witness had to walk in the direction of the table before he was able to establish that the other two men were in fact persons who proved to be the 1st Appellant and Nisit. The witness had then returned to his own chair. The actual question and answer which the defence relied upon for alibi went as follows:

9. Mr. Duncan points out with some force that the question related only to the period before the 2nd Appellant had risen from the table to go in the direction of the shopping centre and that the answer was directed to that period only it being entirely possible that the 1st Appellant had subsequently risen from the table and gone up to Room 1952. In our view the suggested alibi is anything but watertight.

10. There remains however the issue of identification in regard of both the 1st and 2nd Appellants and upon this matter Mr. Scrivener, who appeared for all the Appellants, relied heavily upon the case of Turnbull⁽¹⁾ for the proposition that a very specific type of warning was needed. The jury, he said, should have been reminded of the special need for caution and should have been informed of the reason for that warning namely, that evidence not in fact convincing could sound very convincing; they should have been told to examine very closely the circumstances in which the identification came to be made and the judge should have reminded them of any specific weaknesses in the identification evidence. Similarly the judge himself should have made an assessment of the quality of the identification evidence and asked himself whether there was enough supporting, though not necessarily corroboratory, evidence. Had this been done, counsel stated, the case against the 1st Appellant should not have gone to the jury at all whilst in the case of the 2nd Appellant it was incumbent upon the judge to have given the directions indicated above. It was conceded by the defence that no direction had been given in the strict terms of Turnbull.

11. We consider that, and indeed Mr. Scrivener did not suggest the contrary, no complaint can be made as to any of this in regard to the 3rd Appellant who was well known to Stewart, the two having had at least half a dozen meetings in Bangkok before flying together to Hong Kong. The complaint is of more substance in regard to the 1st and 2nd Appellants who were previously unknown to either Stewart or any of the other prosecution witnesses and this case raises the issue of how far, in Hong Kong, judges, in directing juries, or in directing themselves upon the law where there is no jury, should follow the somewhat rigid guidelines of Turnbull.

12. We think that in general these guidelines should be followed but that there can be no hard and fast rule. It is, we consider, important not to lose sight of the fact that the counsels of perfection contained in the Turnbull case are, and were so described by Lord Widgery, C.J. as "guidelines" and that they were intended, in the United Kingdom, to involve only changes of practice and not of law. Moreover whilst warning that a failure to follow the guidelines was likely to result in a conviction being quashed, the learned Chief Justice was careful to restrict himself to saying only that failure would necessarily so result if, in the judgment of the Court of Appeal in England, the verdict, on all the evidence, was either unsatisfactory or unsafe. Much will depend upon the facts of each case and clearly where the identification evidence comes from a close relative or acquaintance or from somebody who has had a very adequate opportunity for observing the accused, there is less need for rubbing into the jury the possible dangers of identification evidence than where identification rests on a fleeting or momentary impression of a face or a figure. The matter is, we consider one for the common sense of the judge who need not overlook the fact that juries are also endowed with common sense and, where identification is a real issue, very likely themselves to be well aware of danger. Having said that, the tendency should, we consider, be to overwarn rather than to understate or worse, ignore the dangers of identification evidence in summing-up.

13. What then were the relevant directions given by the learned judge in the present case? He certainly told the jury that they had to ask themselves how memorable were these Appellants since various witnesses had claimed to identify them, and warned also that the jury would have to ask themselves whether the witnesses had any particular motive for lying; specifically the judge put to the jury defence counsel's suggestion that Stewart had allowed his professional pride or self-esteem to defeat his sense of justice and fair play in that, having got so far successfully in his endeavour to catch the 3rd Appellant, he had fallen from grace and told deliberate lies against the first two Appellants; moreover the jury were reminded that nobody actually saw either the 1st or 2nd Appellant going up to Room 1952 or coming down therefrom and they were further warned that if they could not believe Stewart the whole case against the 1st and the 2nd Appellants must collapse. Having delivered these warnings the learned judge reminded the jury of the evidence that the 2nd Appellant was seen in conversation outside the hotel with the 3rd, that the two walked along various roads together in conversation and had a very short verbal exchange inside the hotel; the jury were further reminded that the detective who saw the 2nd Appellant outside the hotel agreed that he had never seen the man before that afternoon but had said that he had deliberately gone past the 2nd Appellant in order to get a good look at him.

14. The judge also referred the jury to the independent evidence of the detective keeping surveillance inside the hotel to the effect that the 2nd and 3rd Appellants had come into the hotel close together and had spoken briefly; this witness had also observed the 2nd Appellant thereafter sitting at a table in the lobby and eventually moving away in the direction of the shopping arcade. The judge further reminded the jury that there was some confusion as to time between Yau, keeping surveillance within the hotel, and Stewart.

15. It was the complaint of Mr. Scrivener upon the appeal that the judge had referred to Stewart as a trained observer as to which there was no evidence. There was however evidence that Stewart had served for 7 years with the United States Drug Enforcement Administration and there was evidence of the nature of the work upon which he was engaged in the present case. In the light of that we consider that the comment was justified and the complaint is not: it is to be observed also that Yau and Liu, the police officers keeping surveillance outside and within the hotel respectively, were there specifically upon surveillance duty and that, so far at any rate as the 2nd Appellant was concerned, they had had their attention specifically drawn to him as a result of his association with the 3rd Appellant - the original subject of their interest.

16. There is no doubt that the directions given to the jury, whilst containing a considerable element of warning in regard to the identification evidence, did fall short of the stringent guidelines contained in the Turnbull case. In all the circumstances of the present case however we consider that the directions were adequate. The jury were warned that if they could not believe Stewart they could not convict the 1st and 2nd Appellants. Stewart's evidence had been of a conversation lasting at any rate 10 minutes in a well illuminated hotel bedroom with all three Appellants in circumstances in which they were gathered around a particular suitcase discussing its contents and the manner of subsequently dealing with it. There followed a descent from the 19th floor to the lobby on the 1st floor in an escalator in which the four travelled alone. Finally, after the arrests had been made, Stewart re-entered the hotel for the express purpose of confirming that the correct people had been arrested. Such was the basis of Stewart's identification of the 1st and 2nd Appellants and the jury had the possibility that Stewart was lying put squarely to them. An alternative, namely honest mistake, was not put to the jury in so many words but the judge's comment that "if you cannot believe Stewart the whole case against the 1st and 2nd accused must collapse", was redolent with the possibility of mistake. Other evidence supporting the correctness of the identification lay in the association, independently of the visit to Room 1952, of the 2nd Appellant with the 3rd and of the 1st with the 2nd. This coupled with the fact that the 3rd and 2nd Appellants had arrived in Hong Kong at 3 p.m. upon that date having, according to their evidence started out in Bangkok independently of each other but each with the intention of catching a plane back to Bangkok at 11 p.m. that same night and having travelled to Hong Kong for the purpose of a pleasure trip. The learned judge equated the excursion, in European terms, to the approximate equivalent to a day trip from London to Belgrade and back again at a cost of some 5,000 baht, the rate of exchange being, on the evidence, HK$1: 4.27 baht. There was a further circumstance in regard to the 2nd Appellant that his correspondence card was found in the possession of the 3rd and there was evidence, denied by the 3rd Appellant, of a telephone call on the morning of the day of the arrest from Room 1952 to the 2nd Appellant's Party headquarters in Bangkok.

17. In the light of the directions which were given and of the supplementary evidence we cannot regard the convictions as unsafe or unsatisfactory upon the ground of identification nor can we consider the lack of what we term the Turnbull directions as fatal.

18. A further ground of appeal related to the method employed to attract the jurisdiction of the Hong Kong courts. It was the evidence of Stewart that even if he could effect the arrest of the 3rd Appellant in Bangkok, he could have no confidence that prosecution would follow and that on previous occasions what had been regarded as strong cases involving crimes relating to dangerous drugs had been built up in Bangkok but had resulted either in the release of the suspects or in no action at all being taken; Stewart was quite frank that it was for this reason that he wished to get the 3rd Appellant to Hong Kong. Accordingly, in Bangkok, he had informed the 3rd Appellant that he was interested in purchasing large quantities of heroin and answered in the negative an enquiry as to whether he wanted delivery in Thailand; upon this the 3rd Appellant indicated that heroin could be shipped to the United States at a cost of US$30,000 per kilo. Stewart's reaction to this was that the price was very high and he enquired whether or not delivery could be made in Hong Kong. Such a delivery was then arranged in respect of a preliminary consignment of one kilo at a price of US$20,000 and it was pursuant to this arrangement that Stewart and the 3rd Appellant had come to Hong Kong.

19. These tactics were described by Mr. Scrivener, borrowing a phrase from the Civil Law, as "forum shopping". He argued that an offence had clearly been committed in Thailand and urged that no court should encourage an adventure of this sort designed to avoid another country's jurisdiction. Counsel quoted the case of the Atlantic Star⁽²⁾ for the proposition that the Hong Kong courts had inherent power to avoid abuse of their own jurisdiction and cited some remarks of Lord Pearson, critical of "forum shopping", in Boys v. Chaplin⁽³⁾.

20. Unexceptionable as those authorities are in their own sphere, different circumstances must apply in the field of Criminal Law. A plaintiff in a civil action may have a genuine opportunity for "forum shopping" but where a crime is alleged to have been committed within the jurisdiction those responsible for prosecutions have not. An Attorney General can only present a charge within his own territory and where he brings an appropriate charge before a court within that territory, it is not as we see it, within the competence of the court to say either that it will not hear the case or to dismiss the charge on the sole ground that the court does not like the fact that its jurisdiction has been invoked by a device to bring the alleged offender within that jurisdiction.

21. Over and above that circumstance however the court will examine whether or not the evidence in the case has been obtained in a manner unfair in the sense that the commission of a crime has been induced where otherwise none would have been contemplated or, at any rate, entered upon. In the case of Regina v. Woo Sum⁽⁴⁾ it was said by the Full Court that where the law enforcement officer merely provides the opportunity for another to commit a crime to which the latter is already disposed, it is unlikely that there will be any just grounds for exclusion of the evidence or for criticism. It was further observed that the presence of a police officer, acting as an agent provocateur in the sense of participating in the incident giving rise to the charge, would not make lawful that which is otherwise criminally unlawful. So that whilst the accused could not advance it as an excuse or justification for the crime, yet the circumstances may afford a ground, possibly a very cogent ground, for mitigation.

22. Mr. Scrivener did not further pursue the case law upon this topic but, upon my expressing some interest, volunteered to supply, after consultation with counsel for the Crown, a list of the cases which they had considered. This matter was apparently overlooked and I must accept blame for having forgotten to remind counsel of it at or before the conclusion of the hearing. It is, I think, nonetheless legitimate, to refer to a recent case which contains a useful summary of relevant factors in regard to the admissibility of the evidence of an informer acting as an agent provocateur. It is the case of R. v. Ameer and Lucas which appears to be so far unreported but to which reference is made in the Criminal Law Review for February, 1977 at page 104. The factors there considered were:

23. Applying those factors to the present case, if there was no evidence that a crime of the same kind was actually afoot when Stewart contacted the 3rd Appellant, there was certainly evidence of a propensity to indulge in that type of crime and to suggest that the 3rd Appellant was not committing an offence of a type which he would not have committed but for Stewart's encouragement; indeed the evidence suggested that the 3rd Appellant was willing to export heroin anywhere it was practicable in that he suggested delivery in the United States. That Stewart's participation was approved by his superiors is apparent from the very autonomy which he enjoyed in the pursuit of his duties and the offence was certainly a very grave one whilst Stewart's reliability was clearly not doubted by the jury. The approval of the Police Force in Hong Kong is apparent from the co-operation accorded to him here. True it is that Stewart himself played a major part in the criminal activity but balancing the various factors and having regard to the dicta in Regina v. Woo Sum⁽⁴⁾ we are of the opinion that the learned judge was entirely justified in declining to exercise his discretion to exclude Stewart's evidence.

24. A further ground of appeal was that the learned judge had failed to give a specific direction with regard to the first count (possession of dangerous drugs) distinguishing it from the conspiracy count and explaining that evidence against one defendant which might be admissible on the count of conspiracy would not be so with respect to the offence of possession. It had been the evidence of Stewart that in conversation with the 3rd Appellant in Bangkok the latter had told Stewart that heroin could be moved to Hong Kong very easily since the 3rd Appellant knew a "big cheese" who could transport the heroin as a courier. During a subsequent conversation in Bangkok the 3rd Appellant had told Stewart that the courier would have no difficulty in bringing the heroin to Hong Kong since he had a special type of Thai passport. In a still further conversation in the Lee Gardens Hotel in Hong Kong, when Stewart had expressed some impatience because the heroin had not arrived in Hong Kong, the 3rd Appellant had suggested to him that the courier might have been delayed as a result of having been called in to see the Prime Minister in Bangkok. The apparent rationale of this remark was that, three days previously, there had been a parliamentary coup in Thailand. For this ground of appeal defence counsel relied upon these three pieces of evidence namely the reference to a "big cheese", to a special type of passport and to the possibility of the courier having been called in to see the Prime Minister. The 1st and 2nd Appellants were known to the jury to be members of Parliament in Thailand and, the argument went, these various references, all uttered by the 3rd Appellant, were highly prejudicial to the 1st and 2nd Appellants.

25. Mr. Duncan, for the Crown, argued that the act of possession of the dangerous drugs was in itself an act pursuant to the conspiracy so that evidence admissible on the conspiracy count would in fact also be admissible on the substantive count. Moreover the three statements made by the 1st Appellant, counsel's argument continued, were made in furtherance of the design to deal with drugs. The statements made in Bangkok as to a "big cheese" and a special type of passport were designed to encourage Stewart to believe that there would be no difficulty in transporting the heroin to Hong Kong and the suggestion, made in Hong Kong, to the effect that the courier could have been delayed as the result of having been called to see the Prime Minister, was designed to retain Stewart's interest in the deal and to ensure, at a time when he was showing signs of impatience, that he did not withdraw from it.

26. As we see it the three statements were in fact part and parcel of the conspiracy and were uttered in furtherance of the common design to traffic in dangerous drugs. They advanced the conspiracy in that the first two remarks were designed to tie Stewart to it by the assurance of trouble-free delivery whilst the last was designed to re-assure him and forestall any withdrawal by him as a result of late delivery. We do not consider that the learned judge could be criticised for failing to have fastened upon these statements as constituting evidence in relation to the 3rd Appellant only.

27. A further ground of appeal was that the Defence of the three Appellants had not been adequately put to the jury. In support of this contention Mr. Scrivener particularised ten matters in relation to the 1st Appellant, eight in relation to the 2nd Appellant and three in relation to the 3rd and painstakingly took us through the summing-up and the evidence to demonstrate his thesis. It is an exercise which I have since repeated.

28. It is frequently arguable as to what amount of detail a judge should enter into in his summing-up. Where a trial has been inordinately lengthy the judge will be aware of the possibility of fading memories and will enter into a more detailed exposition of the evidence than in the normal case. Conversely where the trial has occupied only two or three days, the necessity for such a course will not be found to exist. In the present case the evidence and speeches lasted six days and we think it reasonable to assume that the evidence was fresh enough in the jury's minds to have precluded the necessity for any assumption by the judge to the contrary. Reading the summing-up as a whole and having regard to what it contained as well as to what, it is complained, it did not contain, we do not find substance in the suggestion that the various Defences were not sufficiently put to the jury.

29. Again, it is said that in respect of the 3rd Appellant the learned judge misdirected the jury by reminding them of Stewart's inadmissible hearsay evidence to the effect that the 3rd Appellant had been corrected previously in Thailand in connection with suspected drug offences and then released without prosecution. This, as it seems to us, was a misdirection but of such small consequence if Stewart's admissible evidence in regard to his dealing with the 3rd Appellant was believed, as clearly it was, that if necessary, we would apply the presumption under section 83(1) of the Criminal Procedure Ordinance.

30. Finally it is said that the judge should not have referred to the written statement made by the 3rd Appellant in answer to the charge as a "modified confession". As we see it that is precisely what it was, containing as it did an admission that the goods belonged to him coupled with a denial that he knew any of the other three persons who had been invited to the police station.

31. The applications against conviction are dismissed.

32. As to sentence it would appear that in determining the punishment of the 1st and 2nd Appellants, the learned judge took into account a matter which, on the evidence, pertained only to the 3rd Appellant. It had been Stewart's evidence that when he originally approached the 3rd Appellant in Bangkok he had intimated that he and his associates were interested in dealing in heroin in a big way and a consignment of 20 kilos at a cost of US$400,000 had been discussed. The consignment which had been brought to Hong Kong was expressed to be a trial consignment.

33. In sentencing all the Appellants the judge said:

"The jury is clearly satisfied that there was a plan to send heroin in substantial quantities and of high quality out of Thailand."

34. The judge went on to refer to Stewart having let it be believed that he was part of an organisation prepared to deal in a very large way in heroin. From those remarks it would appear that at the time of sentencing the judge had in mind the inchoate arrangement between Stewart and the 3rd Appellant for the supply of further and substantial quantities of heroin. There was no evidence that that inchoate arrangement was known to or had anything to do with the 1st and 2nd Appellants. That being so we consider that their applications for leave to appeal against sentence on the conspiracy count should be allowed and the sentences of ten years' imprisonment set aside and substituted by terms of seven years. That consideration does not apply to the 3rd Appellant nor to any of the Appellants in regard to the count of possession of dangerous drugs and the applications for leave to appeal against sentences of eight years' imprisonment upon that count are dismissed. The new sentences of seven years' imprisonment will, like the old sentences, run concurrently with the sentences of eight years' imprisonment.

Representation:

A. Scrivener, Q.C. & E.C. Mumford (Haldane & Co.) for appellants

P.N. Duncan for Crown/respondent.

(1) [1976] 3 All E.R. 549

(2) [1974] A.C. 436

(3) [1971] A.C. 356 @ 406

(4) [1968] H.K.L.R. 475 @ 485