R. v. Leung Tat

CACC000161/1990

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Coram: Silke, V.-P., Power, J.A. & Hooper, J.

Dates of Hearing: 29, 30 & 31 October 1991

Date of Judgment: 12 May 1992

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J U D G M E N T

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Silke, V.-P.:

1. Leung Tat appeared for trial before His Honour Judge Evans, sitting as a Deputy Judge of the High Court, upon an indictment which contained two counts. The first was conspiracy to manufacture dangerous drugs and the particulars were that he, together with Poon Shu Yung (D2), Cheng Shek Chuen (D3) and Hui Cheung Shing (D4) between 1st June 1986 and 7th May 1988 in Hong Kong, conspired together with Tsang Kam Chiu, Sezto Yuk Hing, Ho Kam Wah, Ng Chi Ming, Chan Lai Kwong - [PW1] -, Woo Kwai Fong - [PW2] -, Wong Ching Hoi - [PW3] -, Cheung Chun - [PW4] - and other persons unknown to manufacture dangerous drugs, namely, salts of esters of morphine. The second count was one of conspiracy to traffic in dangerous drugs and its particulars included, as well as the names of the defendants set out in the first count, the additional name of Yuen Wing Man (D5). It referred to dates between 1st June 1986 and 7th May 1988 to conspire with the same named co-conspirators, with the exception of Ng Chi Ming and with the addition of the names of Leung Wong and Shum Kwun Lam - [PW5]. The trafficking was alleged to have been in salts of esters of morphine.

2. Directed verdicts were given in respect of a number of the co-defendants on the counts and others, Poo Shu Yung (D2), Cheng Shek Chuen (D3) and Yuen Wing Man (D5) were found not guilty after trial. The result was that the only person convicted was Leung Tat. He now seeks leave to appeal against his convictions on both counts.

3. As the lengthy grounds of Mr. Sedgwick, who appeared in this court for the applicant together with Mr. Paul T.Y. Tse, contained matters of law as well as mixed fact and law - Mr. Saw together with Mr. Joseph Wong appearing for the Crown - we shall give leave and treat the hearing of the application as the hearing of the appeal proper. Leung Tat will be referred to from hereon as "the appellant".

4. Five of the named co-conspirators were called in evidence. Chan Lai Kwong (PW1), Woo Kwai Fong (PW2), Wong Ching Hoi (PW3), Cheung Chun (PW4) and Shum Kwun Lam (PW5). That last named, it will be remembered, appeared only in the second count. As the trial judge indicated in the course of his summing up, the Crown's case stood or fell on what the jury thought of one or all of these five accomplice witnesses. Each of them were either serving long prison sentences for drug offences or were waiting to be sentenced for such offence. Some of them had long criminal records. Each of them, as the trial judge said:

"... has blatantly and without any apparent conscience or remorse come before you and bold-facedly admitted further active and serious participation in what I say is the criminal filth that is the drug trade."

5. He left the jury in no doubt that the majority of those accomplice witnesses had told lies in the past and that each had a personal motive to serve in coming to give evidence. As he put it:

"Some, you may well think, look to the prosecution for future favours, and some may perhaps sit before you in the witness-box the victim of pressure or inducements to do so. And to cap all that off, each one of them has a blanket immunity for any offence committed by them regarding which they have given evidence and which they may have disclosed to officers of the Royal Hong Kong Police Force, whatever that may be."

6. He warned them to treat the evidence of these accomplices with the utmost caution. He gave them a full, complete and comprehensive warning as to the dangers, inherent in evidence from such persons. He emphatically drew to the attention of the jury the fact that there was no corroboration of any of them and that one accomplice could not corroborate another.

7. The issue as to whether the jury could place reliance upon them or not was entirely one within the province of a properly directed jury.

8. One of the accomplices, Chan Lai Kwong (PW1), was himself a police informer and at the time he was informing to the police was double-crossing them by committing other crimes. Before being sentenced to a period of 8 years imprisonment on 14th July 1988 on his plea of guilty for that which came to be known as the "Ferry Street matter", he had given a lying statement to the police. This undoubtedly led to a lighter sentence than he would otherwise have received because of his supposed co-operation. As the judge said of him "His scruples are few if any at all".

9. I do not intend to deal individually with all the matters brought to the attention of the jury concerning the nature of each of the accomplice witness. The same kind of strong comment made by the trial judge in respect of Chan Lai Kwong (PW1) appeared throughout the course of his summing up when dealing with those witnesses. But certain items require mention.

10. Chan Lai Kwong (PW1) was also known as "Sai Dee". Woo Kwai Fong (PW2) was the mistress of Chan Lai Kwong (PW1). She admitted that she had committed perjury in the course of her own earlier trial.

11. Wong Ching Hoi (PW3) admitted that his motive for giving the evidence he did was one of revenge. He felt that, since his own arrest the appellant had deserted him. He had not been paid some wages he alleged were due to him for his participation in dangerous drugs matters. A person close to him in China had died and he asked the appellant to send money to take care of the funeral. This the appellant refused and in evidence Wong Ching Hoi said:

"So since he treated him like this, I decided to be a prosecution witness."

12. Shum Kwun Lam (PW5) was a drug dealer and a customer, he says, of those who conspired to traffic. He was serving a sentence of imprisonment, has a criminal record, was a drug addict and was for a short period of time a police officer. He said he gave a statement to the police because he was pressured into doing so and he felt that, if he refused, he would be made a defendant at another trial.

13. It was the Crown's case that Chan Lai Kwong (PW1) knew the appellant for 13 or 14 years. He had started the Lai Sing Motor Company which rented out motor vehicles and the appellant was a customer. There was some friction between them as to the use of the vehicles by the appellant and the appellant made Chan Lai Kwong (PW1) an offer to become involved with drugs either as a courier or as a manufacturer. Chan Lai Kwong (PW1) became both. He bought equipment with the appellant, collected blocks of No.4 heroin in the street and manufactured No.3 heroin in the Nullah Road flat which was his own home at the time. This was in 1986 and 1987. When Woo Kwai Fong (PW2) came to give her evidence she differed - and the trial judge pointed out that this was one of the many conflicts between herself and Chan Lai Kwong (PW1) - as to how they became involved in the Nullah Road manufacturing. She said, for example, that the No.4 heroin was not got from a lorry in the street but from the appellant's own home where he took her to get it. She and he took it back from there to Nullah Road. She said that it was Chan Lai Kwong (PW1) not the appellant who went to the medicine shop to buy the additives. It was firmly pointed out to the jury that those two accounts were quite impossible to reconcile.

14. After that first manufacturing had been completed Chan Lai Kwong (PW1) said that 38 pounds resulted. He drove with the appellant to Minden Row near the Oriental Palace Nightclub where the drugs were transferred to another car. Woo Kwai Fong's (PW2) evidence of the details of the delivery differed quite markedly.

15. Two days after there was another manufacturing of drugs carried out at Nullah Road. Again, the detailed account of whose present, the quantity of the drugs and the delivery of them differed as between the version of Chan Lai Kwong (PW1) and that of Woo Kwai Fong (PW2) but the appellant was placed as a full participant in both the manufacturing and the delivery of the end product.

16. Some 7 to 8 days later a third manufacturing took place, also at Nullah road. There was a delivery after the manufacture had been completed, and again both Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) in their evidence fully implicated the appellant in this venture. Again, there were a number of marked variations in the details.

17. In January 1987 it was decided that there be a move from Nullah Road to a premises in Fu Wong House, Tai Kok Tsui, the lease of which ran from 14th January 1987. The fourth manufacturing took place there on about 28th January and subsequent to it the delivery of the result. Again, while the evidence fully implicated the appellant in the manufacturing and the subsequent delivery, the evidence of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) differed as to the details.

18. There was a fifth manufacturing at Fu Wong House some days later, how much later differed as between two to three days according to Chan Lai Kwong (PW1) and some ten days according to Woo Kwai Fong (PW2). Again the appellant was fully involved according to their evidence in that manufacture and in the subsequent delivery. There was evidence that prior meetings had taken place at the Ying Bun Restaurant between conspirators. The trial judge drew the attention of the jury to the evidence of an independent witness Mr. Ma Lit Hing, the manager, and then the captain, in that restaurant who said that he had only ever seen the appellant, whom he knew as a frequent customer, at it with his wife.

19. The sixth manufacturing also took place at the Fu Wong House about the Lunar New Year of 1987. And again, the evidence of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) fully involved the appellant in that venture. There was subsequent delivery of the proceeds which directly involved, as did all the deliveries in these cases, Woo Kwai Fong (PW2), and on occasions Chan Lai Kwong (PW1), both acting on the appellant's instructions.

20. Once again there was a move of premises, this time to Tin Sum Village in Shatin, the lease of that premises being dated 16th February 1987. The seventh, and the first manufacturing at Tin Sum, took place in March 1987. D2 at trial was involved in the leasing arrangements as was the appellant. There was a prior meeting at the Lam Cheuk Restaurant in Lam Cheung Street at which some of the conspirators, including the appellant, were present. Later having procured the ingredients which included the collection of No.4 heroin in the restaurant itself that seventh manufacturing took place. Again there was a delivery involving directly Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2).

21. The eighth manufacturing took place a few days later, the second at Tin Sum Village. The accounts of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) as to where the No.4 heroin was collected differed. The former saying that he waited at a street corner until a car arrived and Woo Kwai Fong (PW2) was given 3 batches of No.4.Woo Kwai Fong (PW2) said that she and Chan Lai Kwong (PW1) went to the Lam Cheuk Restaurant and she thinks that when they got there the appellant was also present. She and Chan Lai Kwong (PW1) were taken to a car park by another man where Chan Lai Kwong (PW1) was given the key of a blue car which he then drove to Tin Sum Village. In the boot of that car was a blue travel bag containing the No.4 heroin. Both witnesses placed the appellant at the manufacturing but differed as to some of the other participants. Deliveries were then made by Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2).

22. Chan Lai Kwong (PW1) said he was not paid for this second manufacture at Tin Sum Village. He was owed over $30,000. A day or two later the appellant contacted him and they had tea. There was a promise to try to get the wages which were said to have been due to be paid by D2 at trial.

23. Chan Lai Kwong (PW1) then had a dispute with his mistress, Woo Kwai Fong (PW2). He had earlier left Tin Sum Village and gone to live elsewhere. He ceased to live with Woo Kwai Fong (PW2).

24. There were later meetings in which further manufacturing were discussed, but the dispute between Chan Lai Kwong (PW1) and the others as to the unpaid wages was still simmering.

25. Eventually Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) got back together again. A flat was found in Rivera Gardens. There they were visited by the appellant and another accused. Chan Lai Kwong (PW1) resumed his manufacturing activities having retrieved the equipment which had been stored away and took them to a new address in Sheung Shui.

26. During this period there had been another manufacturing in which Woo Kwai Fong (PW2) had taken part. The trial judge made it clear that there was no evidence to suggest that this ninth manufacturing had anything to do with the conspiracy which lay for the consideration of the jury and they were to ignore it. It was simply part of the background facts.

27. The tenth manufacturing, and the first at Sheung Shui involved Wong Ching Hoi (PW3). He had met Chan Lai Kwong (PW1) in 1979 and, in January 1987, was introduced to the appellant by him. In March 1987 the appellant made Wong Ching Hoi (PW3) a proposition that he become involved in the drug trade and to this he agreed. He was to be paid wages.

28. A meeting took place at the Lung Dao Restaurant at which Wong Ching Hoi (PW3) was given $500 to hire a car. He hired the car and the next morning met the appellant and others, including Woo Kwai Fong (PW2). It was after this that manufacturing took place at what is described as Fei Wah's place at Sheung Shui in March 1987. The appellant was, on the evidence of the accomplices, fully involved in that manufacture. This was the manufacture which concerned the ingredient of "mui" and was, it would appear, the only manufacture which involved it. The manufacture was about 100 pounds. Deliveries were made.

29. Woo Kwai Fong (PW2) gave evidence that she was paid $1,000 as part payment of her $3,000 wage by the appellant at a banquet for the appellant's mother. She was paid the remainder of the $2,000 on another occasion. At that banquet, at the Ying Bun Restaurant, Wong Ching Hoi (PW3) said that he was paid $1,000 and the following night he received a further $5,000 from the appellant at the Meridien Hotel. This evidence will be referred to later as it was heavily in dispute and is a matter on which Mr. Sedgwick relies.

30. The second manufacture at Sheung Shui, and the eleventh manufacture overall, was in March or April 1987. This also involved the evidence of Wong Ching Hoi (PW3) and, if accepted, fully implicated the appellant in that event. Wong Ching Hoi (PW3) said that he was paid that evening, having assisted in the manufacture of some 20 odd pounds, at the China Palace Nightclub and by the appellant. He also said that he saw the appellant being paid by customers for drugs delivered.

31. The twelfth, and the third manufacture at Sheung Shui, was in April 1987. Wong Ching Hoi (PW3) said he had picked up the necessary items from the boot of a car that the appellant had. Wong Ching Hoi (PW3) had no responsibility for the delivery of the result but he was paid $3,000 by the appellant for his participation in that manufacture.

32. There had been at an earlier time, according to Chan Lai Kwong (PW1) and Wong Ching Hoi (PW3), manufacturing at Riviera Gardens where Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) had resumed living together. The appellant was not involved and again the evidence was led as part of the general sequence.

33. The series of manufactures involving the appellant and the accomplices Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) came to an end when both were arrested for drug offences and, as a result, eventually went to jail - the Ferry Street incident.

34. Wong Ching Hoi (PW3) in May 1987 took up residence in a flat at Kam Shek Sun Chuen, Tai Po which he shared with others. In October 1987 the appellant moved a sauna cubicle into that address and a few days afterwards the appellant and others moved the utensils from the old Fei Wah's place at Sheung Shui to those new premises at Kam Shek Sun Chuen. The thirteenth manufacture then took place. The evidence, if believed, fully implicated the appellant in that manufacture. The drugs were delivered to the Ho Ho Restaurant in Berwick Street. The appellant was there and he handed over drugs to customers in the restaurant. Wong Ching Hoi (PW3) was paid $10,000 by the appellant for his participation.

35. The fourteenth manufacture, and the second at Kam Shek Sun Chuen, took place in about January 1988 and this involved the fourth accomplice Cheung Chun (PW4) as well as others. It is worthy of note that there was a direct conflict between the evidence of Wong Ching Hoi (PW3) and Cheung Chun (PW4) as to the presence of the appellant at the address in Tai Po. Wong (PW3) said that the appellant was present and taking part and had brought the ingredients. Cheung Chun (PW4) said that he had never seen the appellant at those premises.

36. The fifteenth manufacture took place in March 1988, the third manufacture in Kam Shek Sun Chuen. This involved the appellant, Wong Ching Hoi (PW3) and Cheung Chun (PW4). It was the evidence that the appellant had brought the No.4 base but that he did not stay leaving the manufacturing to be done by Wong Ching Hoi (PW3) and Cheung Chun (PW4). The trial judge again reminded the jury that Cheung Chun (PW4) had stated that he had never seen the appellant at the Tai Po flat.

37. Wong Ching Hoi (PW3) said that he had received instructions from the appellant as to the making of the deliveries of the product of that manufacturing. One delivery was to take place outside the North Kowloon Magistracy and the other at the Ho Ho Restaurant. Outside the North Kowloon Magistracy Wong Ching Hoi (PW3) said that he met the appellant and another man and delivered 10 pounds. The rest was distributed by himself and the appellant at the Ho Ho Restaurant.

38. The sixteenth manufacture, and the fourth at Kam Shek Sun Chuen, took place in April 1988. Wong Ching Hoi (PW3) said that he had met the appellant at a 7-Eleven shop, was given a key to a car parked in the Pak Tin Carpark and was told that, in the boot of that car, he would find everything that was required. Wong Ching Hoi (PW3) collected Cheung Chun (PW4) and those two did the manufacturing. Wong Ching Hoi (PW3) took the result of the manufacturing to the Ho Ho Restaurant where he met the appellant and the drugs were distributed to customers in that restaurant.

39. The final but abortive manufacturing attempt, the fifth at the Kam Shek Sun Chuen, took place on 6th May 1988. Wong Ching Hoi said that the appellant had given him a car key as a result of which Wong Ching Hoi (PW3) picked up a car and went off to collect Cheung Chun (PW4). The drugs were in the boot of that car. Maunfacturing started at Kam Shek Sun Chuen but the appelant telephoned Wong Ching Hoi (PW3) and told him to take some samples of what they were making to a restaurant in Tai Po. As he was leaving the premises Wong Ching Hoi (PW3) was arrested by the police and later Cheung Chun (PW4) was also arrested.

40. The evidence of the fifth accomplice witness, Shum Kwun Lam, dealt only with deliveries which he had received. He implicated the appellant who was introduced to him as "Lo Fu" in 1986 at the China Palace Nightclub. He also he said met on that occasion D2 at trial, Chan Lai Kwong (PW1) and others. He paid for his drugs and the money that he paid was handed over by a Lo Kwai Kit to the appellant.

41. In January 1987 Lo Kwai Kit, who was the supplier of drugs to Shum Kwun Lam (PW5), organised another delivery. He said this delivery came to him through the persons of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2). Having received it he went to the China Palace Nightclub where he met Lo Kwai Kit to whom he paid $3,500. That money he said was paid over by Lo Kwai Kit to D2.

42. On a further occasion, also in January, he received delivery, through Lo Kwai Kit, made by Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) as was a subsequent delivery in mid-March. The second January delivery was light by two ounces. After the delivery in mid March he changed his supplier.

43. Shum Kwun Lam (PW5) identified on identification parades, some two years after his last meeting with them, the appellant and D2. That identification was challenged by the appellant in evidence. He alleged that Shum Kwun Lam (PW5), and indeed D2 made the same allegation, had been tipped off as to whom he should identify when he went to the identification parades.

44. The trial judge gave a full Turnbull [[1976] 3 WLR 445] warning emphasizing that it was easy for a witness to be mistaken. He recited the deficiencies in Shum Kwun Lam's (PW5) evidence as to identification and the time span of over two years between his sight of the appellant and D2 and his identification of them. He also drew to their attention in full the appellant's evidence in relation to the tipping off allegation and the generality of the evidence given in respect of that matter.

45. The appellant, as I have indicated, gave evidence. No complaint is made of the trial judge's recitation of that evidence.

46. Complaint is, however, made in relation to certain matters in it which, it is suggested, were matters to which the jury did not give sufficient attention: in particular the evidence of the manager of the Ying Bun Restaurant that he had only ever seen the appellant there together with his wife; and the evidence concerning the banquet the appellant gave for his mother - the banquet at which it was said the appellant made drug payment. Both the manager and the mother were called as witnesses for the defence. I shall come back to that when dealing generally with the grounds of appeal.

47. Essentially, it was the evidence of the appellant that, while he knew Chan Lai Kwong (PW1), Woo Kwai Fong (PW2) and Wong Ching Hoi (PW3) he did not know either Cheung Chun (PW4) or Shum Kwun Lam (PW5). He knew, with the exception of D4, all the other defendants who were indicted with him. He denied he had ever been involved in drug matters and he stated that he had never been convicted of any drug offence. He totally denied being involved with any of the drug activities of which evidence had been given at trial. He denied ever hiring cars from Chan Lai Kwong (PW1) although he knew that he ran the Lai Sing Car Rental Company. His involvement with Chan Lai Kwong (PW1) was because Chan had an uncle who was the recipient of tips for the races, and for horses which were bound to win. The uncle was looking for customers. The appellant told D2 this, and about the deal which was 60% to the financier and 40% to Chan Lai Kwong (PW1) should the horse win. If it did not Chan Lai Kwong (PW1) and his friends would cover losses. At one meeting D2 won and there was a share-out. There were then 8 straight losses with D2 being $30,000 down. The appellant said that Chan Lai Kwong (PW1) promised repayment on the next day but did not turn up and refused to answer pager calls. He was tracked down to the Tsui Yuk Restaurant just before the New Year in January 1987 - the New Year of that year was 29th January. The party went to the roof and there was fight but Chan Lai Kwong (PW1) escaped. Subsequently the appellant and D2 returned to the restaurant and it was there that D2 slapped Woo Kwai Fong (PW2) on the face a matter which was denied by Woo Kwai Fong (PW2). D2 then accused the appellant of conspiring with Chan Lai Kwong (PW1) thinking, as far as the appellant was concerned, that he had been cheated. The appellant then stopped associating with D2.

48. It was some two years later before the appellant again saw Chan Lai Kwong (PW1) and that was in Lai Chi Kok Reception Centre. They did not speak. He admitted that he had been present in Nullah Road on a number of occasions in July and August of 1986 but saw nothing there to in any way arouse his suspicions. He said that Woo Kwai Fong's (PW2) sister was living there. He had been on occasion in touch with Wong Ching Hoi (PW3) who told him that he was a loan shark and asked the appellant to introduce customers. In the event, the appellant himself became a customer borrowing $5,000 from Wong Ching Hoi (PW3) which he repaid in October 1987. Then he borrowed another $10,000. Both of these borrowing were to cover gambling losses.

49. When these matters were put to Wong Ching Hoi (PW3) he denied any such activities on his part and stated that the appellant owed him $30,000 but this was for accumulated drug wages. The appellant explained that the 242 telephone calls which came from the mobile telephone of Wong Ching Hoi (PW3) to the appellant's own home telephone number were the result of demands by Wong Ching Hoi (PW3) for the repayment of the interest on the loans that Wong Ching Hoi (PW3) had made to him which interest was payable daily. He kept paying interest until January 1988 when he made another borrowing of $20,000. He continued to pay interest until May 1988, although he was being asked to repay the principal, but stopped when Wong Ching Hoi was arrested in that month. He had received indirect pressure since then to make payments but has not done so despite having received threatening phone calls including a threat that if he did not pay something bigger was to follow. He accepted that he had been at the China Palace Nightclub on three or four occasions being taken there by winners at a gambling stall, which he said D2 and D3 at trial were running in 1986, and to which he introduced customers. He denied any suggestion that he received money payments in the nightclub or had discussed manufacturing of drugs.

50. On the loan shark pressure issue, the mother of the appellant, Madam Kwun gave evidence on his behalf. She said that she was locked into his flat at one time and had received many abusive telephone calls saying her son owed money.

51. The appellant said that, in Lai Chi Kok Remand Centre, he had spoken to Wong Ching Hoi (PW3) but not to Chan Lai Kwong (PW1). He said Wong Ching Hoi (PW3) had told him that Chan Lai Kwong (PW1) had taught him, Wong Ching Hoi (PW3), what to do regarding the appellant. Wong Ching Hoi (PW3) also said he would do anything to get bail and that this was why he made the allegations against the appellant. When he did get bail he would run away.

52. This last matter was never put to Wong Ching Hoi (PW3) possibly through some conflict in instructions but it was put that Wong Ching Hoi (PW3) had told the appellant that if he got $200,000 from each of the defendants involved in this matter he would tell the truth and not get them into trouble. To this the appellant made no reference in his evidence.

53. It was suggested that Wong Ching Hoi (PW3) had said that if he got $2 million he would say that the police inspector had seen him and that Chan Lai Kwong (PW1) had fixed up all the evidence. Again this was not supported in evidence by the appellant.

54. He knew Cheung Chun (PW4) having met him several times in Lai Chi Kok. There Cheung Chun (PW4) told the appellant that Wong Ching Hoi (PW3) had told him, Cheung Chun (PW4), what to say.

55. The appellant complained at the time of the identification parade, and it is not contested that such complaint was made, that he had met the identifier on the way to the identification parade at which Cheung Chun (PW4) had identified him. Wong Ching Hoi (PW3) had been with the appellant at this time. There there was some dispute as to whether they had met face to face with Cheung Chun (PW4) while they were in the van going to the police station or whether when they had been coming out of the cells in Lai Chi Kok on their way to that parade. The appellant said that he had made a further complaint as to an indication given to witnesses of the position at which he stood so that they could identify him on that parade. He accepted that he had been identified by all five of the accomplice witnesses but insisted that Cheung Chun (PW4) and Shum Kwun Lam (PW5) were assisted in that identification. He could give no reason why Chan Lai Kwong (PW1) had given evidence against him. He had not seen him since January 1987. He did not know why Woo Kwai Fong (PW2) had given evidence against him.

56. The judge very carefully dealt with the issue of the banquet for the accused's mother. Of it he said this to the jury:

"Now that is important if that which the defence has to say - it is important because if that which the defence has to say causes you to have any reasonable doubt about the prosecution account about that incident, then, of course, the benefit of any doubt that you have must be given to the accused."

57. He then went through the evidence relating to the manufacture at Nullah Road and the date when that was supposed to have taken place, March of 1987. The banquet at which payment was said to have been made to Woo Kwai Fong (PW2) and to Wong Ching Hoi (PW3) was said not to have taken place until May. A photostat of a bill (Exhibit D10) from the Ying Bun Restaurant was produced which referred to "LEUNG's family birthday feast" and was for about $16,000 for ten tables. There were two bills, D10, and a clearer copy (Exhibit D11). Both of these were dated 3rd May 1987. This date was not the precise date of his mother's birthday but had been chosen because that was the only available date.

58. The prosecution, however, produced another receipt (Exhibit P33) in the sum of $4,700 for three tables and which was dated 22nd March 1987. It too was in the name of "LEUNG's family birthday feast". Of this exhibit the accused said it was police fabrication. There was further the evidence of Mr. Ma Lit Hing, the manager. He said that he had been visited by the police on 3rd April 1987 and had given to them Exhibit P33. Further, at a later stage when visited by the appellant's wife and when his attention was directed to the month of May, he found Exhibit D10. In terms of his own memory Mr. Ma said that the banquet was. held on 3rd May. The appellant was a regular customer of the restaurant. He did not know his full name but he knew his first name to be Leung. He said he did not know any of the other defendants at trial.

59. The appellant's mother said that her birthday was the 14th day of the fourth month and that her identity card, which showed her birthday as being 14th April 1923, was wrong. The error arose out of confusion when she registered at the Registration of Person Office. The 14th day of the fourth month would, in 1987, have been the 11th of May. Because that date was not available her birthday celebrations took place on the 3rd.

60. Having recited that evidence the judge made it plain that what the jury thought about it was entirely a matter for them. He reminded them that if they had any reasonable doubt then that doubt should be resolved in favour of the appellant.

61. I have set out the evidence in some detail in the light of the grounds of appeal which have been advanced to us by Mr. Sedgwick. The main thrust lies in the first three grounds to which I shall come back in a moment. There are in all six grounds and I shall first deal with the fourth, fifth and sixth grounds which can, despite Mr. Sedgwick's eloquence in presenting them, be dealt with briefly.

Ground 4 reads:

"The learned Judge wrongly inhibited counsel for D2 from asking PW2 questions sought by him to be asked of her with a view to eliciting from her answers tending to show that the evidence that the overt acts alleged by the prosecution to be in furtherance of a single conspiracy to manufacture dangerous drugs and a single conspiracy to traffic in dangerous drugs were in fact overt acts relating to more than one conspiracy to manufacture dangerous drugs and more than one conspiracy to traffic in dangerous drugs."

62. The sequence started at p.404 of transcript where Mr. Sedgwick, who at trial had appeared for D2, intimated that he intended to ask questions which might be found objectionable by counsel then appearing for the Crown. After some preliminaries the question emerged as:

"Q. I am putting to you that there is not a shred of truth in any of the stories you have told about Ah Yung [D2] being engaged in any transactions with you or anybody else relating to dangerous drugs in any place, at any time.

A. Of course, I don't agree.

Q. Of course, you don't agree. And you don't care, as you said before, what happens to these men.

A. Yes."

Then, at p.405 came this passage:

"Q. You, Madam, although you are just one person - Madam WOO Kwai-fong - you can belong to one partnership with one group of people; you can belong to another partnership with some people the same and some different; and you can belong ...

Court: What is the relevancy of this question?

Mr. Sedgwick: I am getting to it, my Lord.

Q. You can belong to quite a number of partnerships. Having finished your question, I repeat mine.

Court: What is the relevance of it?

Mr. Sedgwick: I am going to see if she will agree that with regard to various of the premises, they were the result of a different partnership - a different conspiracy.

Court: Isn't that for the jury to decide? You are asking her to decide what the jury has been sitting there for two weeks ...

Mr. Sedgwick: With respect, if she claims she is a member of this partnership, she can say how many partnerships she is a member of.

Court: If you want to ask her a specific question, please do. Let us not have any of these hypothetical cases, please."

63. The reference to "hypothetical cases" stems from an answer given by Mr. Sedgwick a few moments earlier when he referred to a question he was asking on this line as being a "hypothetical question".

64. Counsel's cross-examination then continued with reference to the Ferry Street incident with the suggestion that this was a new and isolated incident. The questions then proceeded to matters relating to Riviera Gardens. The court again intervened:

"Court: Now, Mr. Sedgwick, your questions are pre-supposing that there are separate and distinct agreements.

Mr. Sedgwick: I am trying to establish that.

Court: But you say 'When was the agreement?' That presupposes that there was an agreement specifically related to specific premises. That is not the Crown case anyway."

65. Questioning then continued in relation to Riviera Gardens and it was put that there was a specific new agreement, a concept which the witness did not understand. Mr. Sedgwick then said that he withdrew the question "under his Lordship's direction." Cross-examination then closed.

66. While Mr. Sedgwick represented D2 at trial he suggested to us that the element of "separate conspiracies" could redound to the benefit of the appellant whom he represents in this court. The issue had been foreshadowed at p.329 of the transcript when Mr. Sedgwick sought to make a submission on the issue with particular reference to the evidence given by Woo Kwai Fong (PW2) relating to the acts of manufacturing at Tin Sum Village. He required the Crown to justify the relevance of that evidence. The jury having departed - and the witness - and submissions continued the judge indicating to Mr. Sedgwick that the point has not escaped him and that he thought that the court had been hearing evidence which was, to his mind, perhaps not relevant or else related to another conspiracy. Of course, one of the difficulties which faced Mr. Sedgwick was that the evidence, particularly of the quarrel and the slapping of the face to which I have earlier referred, was in direct conflict with other evidence. This was a discrepancy which Mr. Sedgwick prayed in aid below, and before us, in relation to his first three grounds. He relies on the admitted differences in the evidence given by various witnesses to impugn their credibility and as something which should bring this court to the Cooper lurking doubt. Mr. Sedgwick accepted that he was directing his objections specifically to the evidence given by Woo Kwai Fong (PW2) relating to his then client, what: effect it had on other defendants was not something which then directly concerned him. Counsel then appearing for the appellant had no wish to make any application nor did the other counsel involved. There certainly were matters of evidence which fell within the matrix of fact underlying the case for the Crown which did not specifically implicate the appellant. These were not in the context different conspiracies. I do not accept that this evidence was inadmissible evidence. It was clearly drawn to the attention of the jury as not involving the conspiracy counts before them. Further, the Crown's evidence concerning the overt acts was to implicate the appellant in a series of drug manufacturings, and delivering of the drugs, which involved a differing participation as between those who assisted him. But the theme which ran through the evidence that was called was the general activity of the appellant as combined with that of those who moved in and out of the generality of one conspiracy - to manufacture dangerous drugs or - as in count 2 - to traffick in dangerous drugs. That there were a series of separate incidents it is true, and this applies to both count, but what the judge, and the jury, were concerned with was the attachment to the generality of the activities of the appellant who was, if the evidence were to be believed, the common denominator in all of this. I do not think this ground to have been made out.

Ground 5

This reads:

"The learned Judge in his summing up failed to direct the jury that in order to convict the Appellant of the conspiracy charged in the First Count they must be satisfied by a majority of not less than 5 that the Appellant committed one of the overt acts against him (sic) and the learned Judge failed likewise to give such a direction in relation to the conspiracy charged in the Second Count."

67. For this proposition, Mr. Sedgwick relied on R. v. Brown (Kevin) [1984] 79 Cr App R 113.

68. This court in R. v. Tam Chung Shing & Others [1991] 1 HKLR p.458 has dealt with this issue and rejected the proposition. Nothing that Mr. Sedgwick has said persuaded me to alter the view there taken. This ground also fails.

Ground 6:

This reads:

"The learned Judge wrongly failed to exercise his discretion to exclude evidence that [the appellant] was identified by PW5 [Shum Kwun Lam] at an identity parade, held on the 19th May, 1989, at which the officer-in-charge of the case, PW6 - S.I.P. LAU Tat-keung was present."

69. Mr. Sedgwick sought to rely on R. v. Grannell [1990] 90 Cr App R 149 which dealt with legislation in England - PACE - which does not yet exist in Hong Kong. Further, the court pointed out that there was no transcript to show precisely what had taken place available at the hearing. It was suggested that this court should complete the hearing of the appeal, call for the transcript and consider it without resuming the hearing. This suggestion was rejected. The matter was not further pressed and in any event the issue of identification and the criticisms of the holding of the identification parade were, as I have earlier indicated, brought to the attention of the jury. Grannell in any event did not fully support Mr. Sedgwick's contention. There was no suggestion of "unfairness" resulting from the presence, if he were present, of Senior Inspector Lau.

70. Now, to turn to the main grounds of this appeal: Grounds 1, 2 and 3 and the multitude of particulars contained in those grounds. Ground 1, which sets the picture and relates to Count 1 on the indictment reads as follow:

"The conviction of the Appellant on the First Count was unsafe and/or unsatisfactory by reason of the fact that it depended on the acceptance by the jury of the evidence of one or more of the following prosecution witnesses: CHAN Lai-kwong (hereinafter referred to as PW1), WOO Kwai-fong (hereinafter referred to as PW2) and WONG Ching-hoi (hereinafter referred to as PW3). These witnesses were accomplices whose evidence was uncorroborated and persons of criminal and bad character, who, prior to the trial of the appellant had made statements irreconcilably at variance with the evidence that they gave at the trial, who were proved at the trial to have told many lies about their activities and whose evidence at the trial against both the appellant and other defendants charged with him in the same indictment and the same counts thereof differed in many significant aspects. Further, all of the said witnesses gave evidence under immunity from prosecution and were, in giving evidence, actuated by a desire to avoid further prosecution for crimes they had committed and, in the case of PW3, a desire to seek revenge against the appellant."

71. Attached to this ground there then follows six, what I term, main particulars with each of those containing separate and individual particulars': the first contains seven; the second one; the third one; the fourth eleven; the fifth one and the sixth nine.

72. Ground 2 relates to the second count on the indictment and, in addition to the particulars set out in the first ground directed to showing the "unsafeness and/or unsatisfactoryness" of the conviction, contained a further five main particulars with four containing a large number of sub-particulars: the second main particular contained seven; the third eight; the fourth one - lengthy one; and the fifth a further, but less lengthy, single particular.

73. Ground 3 which relates to the convictions on both the first and the second counts prayed in aid the matters set out in Grounds 1 and 2 and then goes on to five separate items:

"(1) that the jury's acquittal of D2, D3 and D5 on all the charges against them depended upon its rejection of PW1's evidence against those Defendants;

(2) that the jury's acquittal of D2 depended also upon its rejection of PW2's evidence against him and that PW2's evidence against D2 related to occasions when she said the Appellant was present with D2;

(3) that the evidence of PW3 against the Appellant, for the reasons set out in paragraphs (3), (5) and (6) of the First Ground ... and paragraph (4) of the Second Ground, was unreliable;

(4) that the evidence of PW4 did not inculpate the Appellant;

(5) that the evidence of PW5 did not inculpate the Appellant."

74. At the very least, Mr. Sedgwick contends, the many and material discrepancies in the evidence of the accomplice witnesses should engender in the mind of this court a lurking doubt of sufficient strength to make us feel that the convictions come to were unsafe and unsatisfactory.

75. Mr. Saw has helpfully accepted, having been taken through each of the particulars of the grounds by the court, that the discrepancies therein set out did exist. But, as he has rightly pointed out, each and everyone of them was brought to the attention of the jury. As well as the individual directions relating to each of the accomplice witnesses, the trial judge said this at p.89 of the summing up:

"     The other matter that need be clearly understood is that on all matters of credit, and that is what you think about witnesses going to their credit, all matters of credit relating to any of the prosecution witnesses, any of that which you find suspect or, indeed, even false regarding any matter at all, even though that matter may relate only to one or a few of the accused specifically, it is nonetheless a factor which you should take into account and which you should bear in mind when you are considering that particular witness's evidence against some other accused, even though the lie or the mistake might not specifically relate to that particular accused.

    What I am saying to you is that you don't have to look at prosecution witnesses' evidence in isolation so far as credit is concerned. Put bluntly, and I hope not crudely, if you think that a witness's evidence stinks about some matter, then you don't have to capsulize the smell and that which you do find that smells can be allowed, you will agree, to flavour what you think about that witness on some other matter or generally.

    At the risk of repetition, you must only act on a. witness's evidence or any part of a witness's evidence if you are sure about it."

76. Mr. Sedgwick has taken us through the matters of evidence tending to impugn the general credibility of Chan Lai Kwong (PW1); Woo Kwai Fong (PW2) and Wong Ching Hoi (PW3); the conflicts between the evidence of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2); the conflicts between the evidence of Woo Kwai Fong (PW2) and Wong Ching Hoi (PW3); the conflicts between the evidence of Wong Ching Hoi (PW3) and Cheung Chun (PW4); the evidence tending to impugn the credibility of Shum Kwun Lam (PW5). I have carefully considered all these many matters, and there is no doubt that there were major conflicts, to some of which I have already referred in the course of the earlier recital of the evidence.

77. It was submitted, and I accept this, difficult to understand the reasoning behind the acquittal of D2, D3 and D5 - in particular that of D2 for the evidence relating to that defendant was basically that of Chan Lai Kwong (PW1) and Woo Kwai Fong (PW2) - while the jury at the same time accepted the evidence of those two witnesses in relation to the appellant. I have taken full account of the submissions addressed to us by Mr. Sedgwick on this issue but it is not for this court to speculate what went on within the minds of the jury - unless it can be shown that the verdicts were perverse. We cannot enter into the jury room. While this is an issue properly placed before us and one which has caused me some concern it is not such as to make me think that, in the light of all the evidence in this case - and, of course, I include in that the evidence given by the appellant himself - that I should entertain the lurking doubt which Mr. Sedgwick wishes me to have. In this connection I accept that the evidence of Cheung Chun (PW4) and Shum Kwun Lam (PW5) might well be thought insufficient, standing alone, to permit convictions to be based upon it.

78. The only blemish on that which was of necessity a lengthy and detailed summing up is at page 70 where the judge drew to the attention of the jury what may well have been, an unfortunate, but equally an unhappy, oversight by counsel at trial he not having put certain matters to Wong Ching Hoi (PW3) and also not having elicited from the appellant when he gave evidence matters which had been put in cross-examination to Wong Ching Hoi (PW3). Given the nature of this case that perhaps might have been left unsaid by the judge but one cannot really fault him for the references he made to it.

79. If I have not made specific reference to each and everyone of the matters drawn to our attention by Mr. Sedgwick it is not from any lack of respect for the submissions made to us. This court should, in my judgment, take a global view. The decisions come to as to the credibility of evidence were preeminently a matter for a properly directed jury. This jury was so directed. The accomplices were before them "warts at all" and those warts included not only the nature of the witnesses - a most unsavory crew - but also the differences in their evidence as they emerged.

80. As Sir Denys Roberts, C.J., said in delivering the judgment of the court in R. v. Yu Yuk Kwong and Others [1979] HKLR 585 at page 588:

"It is an unfortunate fact that successful prosecutions of members of large scale conspiracies can seldom be brought unless one or more of the co-conspirators is prepared to save his own skin by betraying his fellows. However, a natural feeling of revulsion against a conspirator who will give evidence in such circumstances should not lead a court to reject his evidence if it is satisfied, the fullest allowance having been made for the background to the testimony, that it can be relied upon."

81. Yu Yuk Kwong also concerned a drug conspiracy and, as here, the Crown's case depended in all material particulars upon the uncorroborated evidence of accomplices. There, all gave evidence which in varying degrees pointed to the existence of a conspiracy to traffic in drugs.

82. The trial judge here did properly direct the jury and I must accept that the jury followed his directions given with very great care and in the strongest of terms. There is no serious complaint that the judge failed in his duty in this respect. The jury on the evidence, having given the very careful consideration that they were told was required, were entitled to come to the conclusions they did. In the event, I would dismiss this appeal.

Power, J.A.:

83. I agree

Hooper, J.:

84. I agree and I also would dismiss this appeal.

Representation:

A.W. Sedgwick, Esq. & Paul T.Y. Tse, Esq. (Chan & Kong) for Applicant

D.G. Saw, Esq. & Joseph Wong, Esq. for Crown/Respondent