HKSAR v. Arias Guardia Roberto Emilio

CACC 95/2018

[2022] HKCA 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 95 OF 2018

(ON APPEAL FROM HCCC NO 52 OF 2017)

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Before:  Hon Macrae VP, McWalters and Zervos JJA in Court

Date of Hearing:  28 August 2020

Date of Judgment:  28 August 2020

Date of Reasons for Judgement:  25 March 2022

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant was granted leave by a Single Judge, on 17 March 2020, to appeal his conviction for the offence of conspiracy to traffic in a dangerous drug, namely 44,970 grammes of a solid containing 32,047 grammes of cocaine, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200.[1] The appellant was unanimously convicted of the offence after trial before Andrew Chan J (the judge) and a jury on 22 March 2018. He was sentenced the next day to 34 years’ imprisonment.

2.On 4 April 2018, the appellant applied for leave to appeal against conviction on various grounds, but leave was only granted on the question as to whether the evidence of a co-conspirator was properly adduced into evidence, and whether there was a material irregularity in not applying the co-conspirator’s rule to that evidence.

3.At the conclusion of the hearing, we dismissed the appeal and said we would hand down our reasons in due course. These are our reasons.

The prosecution case

4.The prosecution case was that the appellant, a Panama national, had conspired with Law Kam Yuen (Law), “Mr Lai” and “Chan Keung” to unlawfully traffic in 44,970 grammes of a solid containing 32,047 grammes of cocaine (Count 1). It was also alleged, in the alternative, that he attempted to traffic in the dangerous drugs (Count 2). [2] Law was originally the 2^nd defendant in the case but he pleaded guilty to the alternative count of attempting to traffic in the dangerous drugs (Count 2) and after the appellant’s trial on 14 May 2018, he was sentenced to 26 years’ imprisonment.

5.The appellant arrived in Hong Kong on a flight from Panama via Amsterdam on 22 January 2016. He had a return journey booked for a flight from Guangzhou to Panama via Amsterdam on 10 February 2016. This was his first visit to Hong Kong.

6.On 24 January 2016, a 20-foot container carrying 200 sacks of cocoa beans (the Container) arrived at the Hong Kong Container Terminal from Panama. On 27 January 2016, Customs officers carried out a routine check on the Container and found it contained two extra sacks. Inside the two sacks were 48 blocks, containing a total of 32,047 grammes of cocaine narcotic. The street value of the dangerous drugs was estimated to be over $47.8 million. The Container was transported to Fei Hip Container Yard, Tsing Yi Road, Tsing Yi (the container yard).[3]

7.Inquiries revealed that the Container was loaded in Panama on 12 December 2015, and shipped to Hong Kong on 18 December 2015. According to the shipping documents, the consignee was a logistics company in Hong Kong by the name of Union Loyalty International Limited (Union Loyalty) and the contact person was listed as “John Amelines”.

8.Sometime after 20 January 2016, Wang Zhao (PW15) of Union Loyalty was asked by “Mr Lai” to deal with the Container in Hong Kong for onward transfer to mainland China. Arrangements for delivery of the Container were made by “Chan Keung”.[4]

9.On 29 January 2016, Customs officers mounted a controlled delivery operation. At the same time, they carried out surveillance at Harbour Plaza 8 Degrees Hotel, where the appellant was staying. They observed a meeting between the appellant, Law and another male at around 8 am that day. Thereafter, they observed the appellant and Law board a van driven by Tam Chi Yat (PW18), who took them to the container yard in Tsing Yi, where the Container was located. At about 9:05 am, the appellant was observed entering the Container and crawling on top of the goods inside, as if he was looking for something. After a while he came out and talked to Law. He then went back inside the Container, again appearing to look for something and kept on making telephone calls in the process.[5]

10.Law stood outside the doorway of the container and watched the appellant as he was looking for something. At about 9:20 am, when the appellant was in the innermost section of the Container, he lifted up two bags. These bags originally contained the cocaine in question but the contents had been replaced with “dummy drugs” by Customs officers. The appellant took the two bags and placed them on the ground outside the Container one by one. The appellant did not deal with or remove any other bags. Customs officers then arrested the appellant and Law.[6]

11.The appellant was cautioned and in response he claimed he had purchased cocoa beans in Panama, which he had shipped to Hong Kong. He denied knowledge of the drugs in the two sacks. He said that Law was with him to help with translation. When asked about Wang Jing Dong, he said that this person’s name was “Tom” and that he had accompanied him from Panama to Hong Kong, for the purpose of also providing translation. In a post-record, the appellant stated that Law was there to show him the cocoa beans.[7]

12.The Customs officers searched Law and found inside a bag he was carrying, two bunches of keys, an itinerary, two deposit slips, eight bags of baking soda and a receipt for baking soda.[8] They then conducted a search of Law’s residence in Tsim Sha Tsui, where they found a tenancy agreement for a flat at the Latitude in San Po Kong (“the Latitude flat”). The agreement recorded that the Latitude flat had been leased to Ms Lam Chi-kwan, on 25 November 2015, for 2 years. With keys seized from the appellant, Customs officers gained entry to the Latitude flat where they found inside a variety of paraphernalia that was capable of being used in processing drugs, such as a hydraulic jack and moulds.[9]

13.The Customs officers also examined Law’s mobile telephone. They found two video clips which depicted an unknown person using a hydraulic jack and moulds to shape white powder into a block.[10]

14.In a subsequent video record of interview, the appellant denied he was involved in trafficking dangerous drugs. He stated that he was a businessman, earning US$10,000 per month, and that he was in a comfortable financial position. He explained that a friend of his called “Jerry” had introduced him to a business opportunity in respect of cocoa beans, and he helped him arrange the transaction. He was to be paid around US$100,000 for this shipment of cocoa beans. He claimed he had purchased the cocoa beans for US$4,500 per packet and was to sell them for US$8,000 per packet. This was the first and only time he had engaged in dealing in cocoa beans. He said he had purchased the cocoa beans in Panama, but had not checked them. It was his intention to check them in Hong Kong to make sure they had not been spoiled. He did not know who “John Amelines” was. He travelled to Hong Kong for a number of reasons, namely for the cocoa beans, tourism and procuring drones. He was accompanied to Hong Kong by “Tom”.

15.The appellant said he was taken to the container yard by a male person. He had entered the Container to check the cocoa beans and found two bags not belonging to the Container. Otherwise, the cocoa beans were in perfect condition, although they had a bad smell.

The defence case

16.The appellant gave evidence in his defence and called his mother as a witness. His case was that he was unaware that there were dangerous drugs in the Container. He was in Hong Kong primarily to procure drones with thermal imaging capability in Shenzhen, and to oversee his first shipment of cocoa beans, as well as explore business opportunities here. On the day in question, he went to the container yard to check the 200 sacks of cocoa beans. He did not go there to collect drugs. He never had any agreement with Law, “Mr Lai” or “Chan Keung” to traffic in dangerous drugs.

17.The appellant’s mother testified as to the appellant’s education, background and good character. However, she admitted knowing little about his business.

The ground of appeal

18.After leave was granted, Mr Edward McGuinniety, for the appellant, filed a perfected ground of appeal against conviction on 13 August 2020. It was complained that the judge erred in law by improperly admitting into evidence highly prejudicial matters that only related to the appellant’s co-conspirator, Law, which lacked neither a foundation to be admitted nor a link or connection to the appellant; and that there was a material irregularity in not applying the co-conspirator’s rule to the Law evidence.

19.It was contended that the judge wrongly allowed the prosecution to adduce into evidence the items relating to the appellant’s co-conspirator, Law, which were found in his flat (the Latitude flat) or on his person.

20.The subject of the appellant’s complaint was the Law evidence, which concerned the following items:

“(a) 2 bundles of key (one key from the smaller bundle was used to open the locked room in Flat G, 7/F, Block 6, The Latitude, 638 Prince Edward Road East, San Po Kong (the ‘Latitude flat’) (P148);

(b) 8 packets of baking soda (P149);

(c) receipts for 8 packets of baking soda dated 29 January 2016 at 7:27 am (P152);

(d) 2 Bank of China deposit advices dated 23 December 2015 and 24 January 2016 recording two HK$16,900 payments (P150);

(e) temporary receipt dated 15 November 2015 issued by Centaline Property Agency to Lam Chi-kwan showing payment of $4,225 in relation to the Latitude flat (P151);

(f) itinerary (P153);

(g) phone (P138) containing 2 videos showing drug moulding activity in a room similar to that of the locked room in the Latitude flat (P129);

(h) tenancy agreement for the Latitude flat signed 15 November 2015 (P154)

(i) Latitude flat search and drug paraphernalia seized in a locked room, bedroom, and kitchen (P155 – 171 and P173 – 201).”[11]

21.The admission of the exhibits found on Law, was the subject of objection before the empanelling of the jury on 7 March 2018. The defence argued that the Law evidence was inadmissible because it did not meet the criteria of admission on either the basis of the co-conspirator’s rule or under normal rules of evidence, and was irrelevant and more prejudicial than probative. The prosecution argued that the evidential route through which the Law evidence was to be admitted was under the rule enunciated in Ahern v The Queen[12]and approved by the Court of Final Appeal in Oei Hengky Wiryo v HKSAR (No 2).[13]

22.Prosecuting counsel in his oral submission to the judge said that the co-conspirator’s rule was not engaged because the prosecution was not relying on this evidence as to the truth of its contents. He said he was relying on it as circumstantial evidence to prove that there was a conspiracy.[14]

23.He articulated his argument in his written submission as follows:

“4. In outline, the Prosecution’s case is that these items of evidence taken with other evidence (such as the timing of the shipment of cocoa and the Accused’s travel arrangements) are circumstantial evidence from which a jury properly directed could infer (a) the existence of a conspiracy to traffic in a dangerous drug; and (b) the Accused’s participation in the conspiracy.

…

11. The Accused’s submission that the co-conspirator’s rule is relevant is misconceived. The Prosecution does not rely on any of the impugned evidence for the truth of their contents; there is therefore no issue of whether any documents fall under the co-conspirator’s rule ‘exception’ to the hearsay rule. In Oei Hengy Wiryo v HKSAR (2007) 10 HKCFAR 98, [2007] HKCFA 8 at 113D-F, McHugh NPJ cited the following passage in R v Ahern (1988) 165 CLR 87, 34 A Crim R 175:

‘… evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.’ (Emphasis added).”[15]

24.After receiving submissions from the parties, the judge considered that the exhibits, together with other circumstances, were relevant to the issue of the existence of a conspiracy, and it was entirely a matter for the jury whether or not to draw the necessary inference. He set out his reasons for his ruling as follows:

“Based on the existing material on file, it appears that there is no direct evidence in this case to prove the existence of a conspiracy. The existence of such can only be inferred from a number of facts and circumstances. The exhibits identified by the prosecution, together with other circumstances, again named by the prosecution in paragraph 4 of their submission, in my view are relevant to the issue of the existence of a conspiracy in trafficking in a dangerous drug.

Whether the jury would, at the end of the day, draw the necessary inference, that’s a matter entirely for them. Suffice to say that at this stage, it is not for this court to usurp the jury’s function. The exhibits found on D2 and the acts and movements performed by him on the day of his arrest, and indeed on other material days such as the day of, say, taking out of a list, paying for deposits and rental and the purchase of baking soda, etc, may also be considered to be part and parcel of acts in furtherance of one joint enterprise.

As such, I do not see how the reception of these exhibits may adversely affect the fairness of the trial, even though the defendant was facing an attempting count on the indictment as an alternative. As such, I do not see the legal proposition as put forward by the defence that the prejudicial effects outweigh the probative value of the production of these exhibits. …”[16]

25.Prosecuting counsel opened and closed his case on the basis that the evidence went to establish a conspiratorial agreement between the applicant and Law to traffic in the drugs.[17]

The summing-up

26.The judge dealt with the Law evidence in his directions in some detail, explaining how they should approach the evidence in deciding Count 1. He pointed out that the prosecution had invited the jury to draw the necessary inference from the evidence related to Law that the appellant was part of the agreement with at least Law to deal with the cocaine, but he stressed there was no evidence to suggest that the appellant was aware of the video clips or the baking soda found on Law, nor was there evidence to suggest that the appellant was aware of the facts related to the Latitude flat. He added that the Law evidence was adduced to show that Law was a party to the conspiracy, and that it should not be used to infer that he would be taking part in any further dealing or activities inside the Latitude flat.

27.The judge succinctly explained to the jury the prosecution’s case on Count 1 as follows:

“ In this case, the prosecution say there was the agreement when, at least when Mr Law and the defendant met at the hotel lobby and went together on board of a van to the container yard for the inspection of the cargo inside the container, the agreement was formed. So you see on the particulars of the offence the agreement was alleged to be formed on the 29^th day of January.”[18]

28.As the evidence was limited in relation to “Mr Lai” and “Chan Keung”, the judge told the jury that the charge would be proven if they were sure there was an agreement as alleged between the appellant and Law.[19] The defence relied on Law’s guilty plea to the alternative count of trafficking in the drugs and the evidence that pointed to him being involved in the trading of drugs,[20] to argue that the drugs belonged to Law and the appellant had nothing to do with them. This evidence had been adduced into evidence by way of admitted facts.[21]

29.The judge took the jury in turn to the cases presented by the prosecution[22] and the defence.[23] He noted that the prosecution invited the jury to draw the irresistible inference that the appellant knew of the presence of the cocaine in the Container having described the evidence that the prosecution had emphasised to the jury concerning the involvement of the appellant in bringing the Container to Hong Kong, checking the Container and taking out the two bags of drugs.[24] He then set out the basis on which the prosecution were inviting the jury to draw the irresistible inference of any agreement between the appellant and Law to deal with the cocaine. He said:

“ The prosecution also ask you to draw the necessary inference that the defendant was part of an agreement with at least Mr Law to deal with the cocaine from the following facts: (a) Mr Law went to the hotel and met the defendant in the café and the agreement was consummated, reached, at that juncture; (b) the two then chatted, talked to each other on their journey to the container yard; (c) the two alighted from the vehicle and proceeded to the container; (d) the defendant checked the container whilst Mr Law was nearby standing there; (e) Mr Law was found to possess video clips on his mobile telephone as to the making of blocks of substances resembling cocaine blocks; (f) Mr Law was found to possess baking soda powder on him when being arrested; (g) Mr Law was found to possess equipments for making blocks of substances resembling cocaine inside the Latitude flat. So the prosecution say from these facts you can draw the irresistible inference that the defendant was party to an agreement.”[25]

30.After the judge had discussed with the jury the basis of the prosecution’s reliance on the Law evidence, he then directed them as to the purpose and use of this evidence:

“ Now, I wish to emphasis to you, members of the jury, that there is no evidence to suggest the defendant was aware of the fact that Mr Law had the video clips on his mobile phone or baking soda on him. Nor is there any evidence to suggest that the defendant was aware of the taking out of a lease at Latitude and/or the equipments found in The Latitude premises. There is no evidence to suggest the defendant was aware of that, all right? Now, the purpose of adducing these aspects of the evidence by the prosecution was an attempt to show you, members of the jury, that Mr Law himself was a party to the conspiracy to deal with the cocaine because Mr Law has been named as a co-conspirator in Count 1.

So what you must not do is to use the video clips, the items found on Mr Law, the leasing of The Latitude as well as the equipments found at The Latitude, as evidence against the defendant, in the sense that he would be taking part in any further dealings or activities inside The Latitude, all right, so you must not do that.

Count 1 is very precise. The conspiracy was formed on 29 January 2016 and the trafficking was dealing with the cocaine at the container yard. Because of the limited use of the evidence I have just mentioned, when you come to consider Count 2, likewise, you must not use those evidence against the defendant. In other words, the evidence against the defendant in respect of Count 2 is confined to the defendant’s act at the container yard and stopped at the defendant’s arrest ”[26] (Emphasis added)

The appellant’s submissions

31.Relying on the co-conspirator’s rule in Vivien Fan v HKSAR,^[27] Mr McGuinniety submitted that the Law evidence had nothing to do with the appellant and was irrelevant to the trial, as there was no evidence to show that the appellant had any knowledge of or connection to such items and no proper foundation had been laid for the evidence to be admitted. He contended that it related to, at best, a separate conspiracy, or more likely a case of either manufacturing or trafficking in which Law was intimately involved. It was argued that the judge specifically confined the ambit of the relevant evidence to the container yard and thus the Law evidence could not have been relevant. The relevant comments of the judge were where he discussed the two counts and told them that the Law evidence had limited use and that, in consideration of Count 2, they should confine the evidence to the appellant’s act at the container yard and stopping at his arrest.^[28]

32.It was submitted that the prosecution originally asserted that they would provide oral evidence through PW18 (the van driver) that the appellant was “Hak Chai” as written on the detailed itinerary (exhibit P153), but PW18’s evidence was to the contrary. Accordingly, the link to the Law evidence never materialised, and there was no justification for producing the evidence in the first place.

33.It was complained that in both the prosecution’s opening and closing speeches, the totality of the Law evidence was recited to the jury, and thus it was clear that, contrary to their claim, the prosecution conducted their case as if they were relying on the Law evidence for its truthfulness. Therefore, this highly prejudicial evidence had been considered by the jury without any clear direction about it from the judge, which resulted in unfairness to the appellant.

The respondent’s submissions

34.Mr Ira Lui, for the respondent, submitted that the prosecution never relied upon the Law evidence pursuant to the co-conspirator’s rule to implicate the appellant, but adduced it as circumstantial evidence to prove there was a conspiracy between Law and the appellant. It was submitted that the legal basis for the admission of the evidence was enunciated in the cases of Ahern^[29] and Oei Hengky Wiryo,^[30] not the co-conspirator’s rule as stated in Vivien Fan.

35.Mr Lui argued the appellant’s submission that the Law evidence had nothing to do with, and had no connection to the appellant, and was irrelevant to the trial, was misconceived.

36.In order to establish the conspiracy charge alleged against the appellant, the prosecution had to prove that (1) there existed an agreement between two or more persons to traffic in the dangerous drugs, (2) each of the co-conspirators, including the appellant and Law, was a party to the agreement, and (3) each of them intended to carry out the agreement.[31] Mr Lui submitted that in the present case the evidence of the conspiratorial agreement between the appellant and Law could be proven by (1) their contact on the morning of 29 January 2016, (2) their travelling together to the container yard, (3) their conversation during the journey, and (4) Law staying with the appellant when the appellant searched the Container for the drugs and produced the two bags.

37.Mr Lui further argued that the prosecution had to prove Law’s knowledge of the drugs in the Container or his participation in the conspiracy by the items found in his bag and the Latitude flat. Whilst the exhibits found on Law (particularly the keys, the itinerary and the baking soda) and in his flat (particularly the hydraulic jack and the moulds) coupled with the video recordings in his mobile telephone, did not implicate the appellant, they did support the inference that Law intended to deal with the cocaine retrieved from the Container in the Latitude flat. The prosecution adduced the evidence to prove the existence of a conspiracy and therefore the Law evidence was not irrelevant.

38.As for the complaint that the Law evidence was highly prejudicial, it was submitted that the judge addressed this issue in his ruling, and removed the risk of the jury using such evidence against the appellant for an impermissible purpose by clear and emphatic directions. The direction explained in the clearest terms that the purpose of adducing the Law evidence was to invite the jury to draw the necessary inference that the appellant was a party to an agreement with at least Law to deal with the cocaine, not that the appellant would be taking part in any further dealings or activities inside the Latitude flat.[32]

39.As for the admissibility of the Law evidence, Mr Lui pointed out that the prosecution in their opening speech mainly set out the evidence to be adduced and did not elaborate on the specific evidence relied upon to prove a conspiracy. In its closing speech, no invitation was made to draw any inference of the appellant’s complicity based on the Law evidence, but by drawing the primary facts together, the jury were invited to infer that the appellant and Law had an agreement to traffic in the drugs as alleged in Count 1. It was submitted that the closing speeches of both sides, and the summing-up were consistent with the evidence being relied on as explained in Ahern and Oei Hengky Wiryo.

40.Mr Lui illustrated how the Law evidence was relevant with reference to the itinerary found on Law.[33] It was submitted that the prosecution had not relied on its truth but the coincidence between its contents and what actually happened on 29 January 2016. Such a comparison of coincidence was expressly approved in Oei Hengky Wiryo, where it was held that in some cases, the coincidence between the out-of-court words, figures or utterances and the other evidence in the case may be so exact that an inference could reasonably be drawn that the words, figures or utterance were true. In such cases, the contents of the statement, but not its truth, could permissibly be compared and combined with facts established by other evidence in the case to reach the conclusion that the only reasonable explanation of the statement and the other facts was that the contents of the statement were indeed true.[34]

41.Mr Lui also rejected the suggestion that the prosecution had deviated from its position and conducted its case as if the Law evidence had been admitted under the co-conspirator’s rule. He pointed out that after the judge’s ruling on the admissibility of the Law evidence, there was no application to seek a variation of the ruling, nor was there any objection by defence counsel that the prosecution had altered its position. In his closing speech, prosecuting counsel did not invite the jury to draw an inference of the appellant’s complicity in the offence based on the Law evidence.[35] He relied on the circumstantial evidence to prove there was a conspiracy between Law and the appellant. Furthermore, the judge directed the jury not to use the Law evidence to implicate the appellant on the issue of whether he was a co-conspirator.[36] In these circumstances, the judge did not have to give the standard direction on the co-conspirator’s rule, nor was he asked to by the parties.[37]

Discussion

42.The prosecution alleged that the appellant conspired with Law, “Mr Lai” and “Chan Keung” to unlawfully traffic in the dangerous drugs in question. There were admitted facts that: (1) the appellant and Law went to the container yard on 29 January 2016, where the Container was located and where they were both arrested; (2) Law’s black bag was searched and certain items were found inside it, including an itinerary; (3) Law had pleaded guilty to the offence of attempting to traffic in the dangerous drugs retrieved from the Container; and (4) an array of drug related items were found on Law and in the Latitude flat.[38]

43.The defence relied on these admitted facts to show that Law was responsible for the importation of the drugs, not the appellant.

44.It was incontrovertible that Law was a party to the trafficking of the drugs retrieved from the Container. He clearly went to the container yard to collect them.[39]

45.It was not in dispute that the appellant, a Panama national, had been a party to bringing the contents of the Container from Panama to Hong Kong purportedly to transport cocoa beans. After being loaded with the cargo and sealed, the Container was sent to the terminal in Panama and shipped to Hong Kong on 12 December 2015. It arrived in Hong Kong on 24 January 2016 and after inspection by Customs officers it was transported to the container yard on 27 January 2016.[40] The appellant arrived in Hong Kong on 21 January 2016 from Panama via Amsterdam.[41] It was on 29 January 2016, that the appellant met with Law, whereupon they were driven to the container yard. The appellant initially claimed that Law accompanied him to act as an interpreter but later said he was there to inspect the beans.[42] At the container yard, the appellant and Law located the Container. The appellant searched the Container and found the two bags of drugs which he brought outside and placed on the ground one by one. Law was at the doorway of the Container watching the appellant searching for the bags and bringing them out from the Container.

46.The case against the appellant was fairly straightforward and succinctly explained by the judge to the jury as follows:

“So again, let us come to what this case is really about. The prosecution have to prove that when the defendant went into the container for inspection, he knew cocaine had been placed inside the container and that he was looking for the cocaine; he knew that inside the container there were the dangerous drugs. He then further dealt with the drugs by taking them out with the intention of passing them on to Mr Law. That was the prosecution’s allegation. They have to prove that. This is what this case is all about.”[43]

47.There was a very strong case against the appellant that he knew of the presence of the cocaine in the Container and he went there to retrieve the two bags of drugs.[44] The fact that the appellant went with Law to the container yard, having arranged the container loaded with bags of cocoa beans to be sent to Hong Kong from Panama, and rummaged through the bags in the Container to retrieve the two bags of drugs, and bring them out of the Container, while Law was there watching him, was cogent evidence of him acting in concert with Law in trafficking the drugs.

48.The jury by its verdict rejected the appellant’s defence that he was not expecting two extra bags to be in the Container and that he was “duped into the delivery by some international drug syndicate in Panama.”[45]

49.The co-conspirator’s rule permits evidence of the acts and declarations of one or more conspirators in furtherance of the conspiracy to be adduced to prove the extent and degree of participation of another or others in the conspiracy and the nature and extent of the conspiracy. It was held by the Court of Final Appeal in Vivien Fan that, in order to lay the foundation for the reception of such evidence, there must be independent evidence linking the defendant concerned to the conspiracy. To this end, the foundation evidence must be admissible against the defendant concerned and it must amount to at least reasonable evidence. Fairness dictates that the rule be appropriately applied so that the defendant concerned knows the case he has to meet, particularly in respect to evidence that is subject to the rule against hearsay.

50.In the present case the prosecution did not rely on the co-conspirator’s rule.[46] The Law evidence was adduced in accordance with the rule enunciated in Ahern, which was followed by the Court of Final Appeal in Oei Hengky Wiryo.[47] This was reflected in the respective closing speeches of counsel for the prosecution and defence.[48]

51.In Oei Hengky Wiryo, McHugh NPJ, with whom the other judges agreed, explained the rule in the context of a bookmaking case which, as suggested by the respondent, has some factual similarities with the present case. In that case, Oei was charged with conspiring with “Kam” to commit bookmaking. At the trial of Oei, of which Kam was not a co-accused, the prosecution adduced certain documents seized from Kam’s home and office that appeared to record bets on soccer games. There was no evidence that those documents were either written by Kam or Oei or on Oei’s instructions. The question of law before the Court of Final Appeal was whether such documents, which were apparently unconnected to Oei, were admissible against Oei for any purpose other than to prove Kam’s participation in the unlawful enterprise alleged. McHugh NPJ explained:

“30. The prosecution contended that, in tendering evidence of the documents seized from Kam’s home and office, it did not breach the hearsay rule. Nor did it need to rely on the co-conspirators’ rule. Under the co-conspirators’ rule, the acts and utterances of an alleged co-conspirator done or made in furtherance of the common purpose of the conspiracy are evidence against another accused charged with that conspiracy if there is reasonable evidence apart from those acts and utterances that the accused was a participant in the conspiracy: Ahern v The Queen (1988) 165 CLR 87 at p.100. The prosecution argued that, it did not have to rely on the co-conspirators' rule because tender of the documents, as evidence against Oei, was supported by another principle expressed by the High Court of Australia in Ahern v The Queen at p.93 where the Court said:

In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

31. The accuracy of this statement of principle is not open to doubt. Hence, it follows that the documents found in the office and home of Kam – Oei’s alleged conspirator - could be admissible against Oei to prove the conspiracy alleged and his part in it as long as they were not tendered to prove against Oei ‘the truth of any assertion or implied assertion made by’ the author of the documents. Whether they were admissible on this limited basis depends on whether the documents - although not themselves proving the truth of the entries they contained - in conjunction with other evidence tended to prove an issue in respect of the charge of conspiracy.”

52.The speeches of both counsel were consistent with the evidential route enunciated in Ahern and Oei Hengky Wiryo, which permits the admission of “acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement”. The judge’s directions were also entirely consistent with that approach.[49]

53.The issue of prejudice raised by the appellant was largely premised upon the assertion that the Law evidence “was irrelevant to the trial of the appellant”. In our view, it was directly and highly relevant to the appellant’s trial, in proving the existence of a conspiracy and the identity of one of the appellant’s alleged co-conspirators.

54.The judge was acutely aware of the defence’s objections at trial to the Law evidence. Defence counsel’s attention was specifically drawn to the distinction between evidence that implicates an accused and evidence that has an unfair prejudicial effect.[50] There can be no suggestion that the judge was unaware of or had failed to appreciate the defence’s submissions.[51]

55.Any risk of the jury using such evidence against the appellant for an impermissible purpose as suggested by the defence was removed by the judge’s directions to them. We have already quoted the judge’s directions to the jury in respect of the Law evidence. The judge instructed the jury in the clearest terms that the purpose of adducing the Law evidence was to invite the jury to “draw the necessary inference that the [appellant] was part of an agreement with at least Mr Law to deal with cocaine” and not that the appellant “would be taking part in any further dealings or activities inside the Latitude”. These directions reflected what defence counsel urged upon the jury in his closing speech to them.[52] The judge also emphasized, in terms favourable to the appellant, that the Law evidence was of limited use against the appellant in respect of Count 1 (relating to the issue of whether there was a conspiratorial agreement with the Law) and that the jury were to confine the evidence against the appellant in respect of Count 2 to what took place in the container yard (relating to whether the appellant attempted to traffic in the drugs). [53]

56.In our judgment the Law evidence was relevant and properly before the jury to consider. The judge’s direction in respect of it was eminently fair to the appellant and removed any risk of unfair prejudice alleged by him. We were therefore not persuaded that the appellant’s conviction warranted our interference.

Conclusion

57.For the reasons we have given, the appellant’s appeal against conviction was dismissed.

Mr Ira Lui, ADPP of the Department of Justice, for the respondent

Mr Edward Luke McGuinniety, instructed by Leung, Tam & Wong, Solicitors, assigned by the Director of Legal Aid, for the appellant