R. v. Cheung Ka Fai & Others
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CACC000198/1992 IN THE COURT OF APPEAL 1992, No. 198 (Criminal) - Headnote - Criminal law - Conspiracy with wife - spouses can be convicted of conspiracy jointly with others, despite the old common law rule that they are but "one juridic person". Evidence - Intercepted telephone calls - The test of admissibility is relevance - R v. Sang [1980] AC 402 applied. Article 14(2) Bill of Rights - The Bill of Rights is part of the fabric of the laws of Hong Kong - It is not a self-contained code. Section 6(1) of the Bill of Rights Ordinance cannot make inadmissible, as in breach of the "right of privacy", a piece of evidence which, by applying the normal rules of evidence, is admissible. IN THE COURT OF APPEAL 1992, No. 198 (Criminal) ___________
___________ Coram: Hon Litton, V-P, Mortimer and Ching, JJ.A. Date of hearing: 1 August 1995 Date of delivery of judgment: 22 August 1995 _________________ J U D G M E N T _________________ Litton, V-P : Introduction 1. The applicants, Cheung Ka-fai (A1) and Yeung Hing-yu (A2) were convicted after trial before Deputy Judge Sharwood and a jury in April 1992 on one charge of conspiracy to traffick in dangerous drugs. 2. The fact that a conspiracy existed to export heroin from Hong Kong to Canada was not in dispute. The question before the jury was quite simply whether A1 and A2 took part in the conspiracy. 3. In the course of the trial the indictment was amended to add A1's wife Kwan Kam-hong and another person called Hui Chi-keung as co-conspirators. A1 testified in his own defence and said, in effect, that his wife was dealing in canned food and other foodstuff, including "baby corn", and he was merely helping her. He denied any complicity in the conspiracy to export heroin to Canada. A2 did not give evidence nor did he call any witnesses. His case, established through the testimony of A1, was to the effect that he was associated with A1 in business : A1 was the sales manager of a garment factory and as A1 was planning to emigrate A2 was being "groomed" to take over his job. The conspiracy 4. The quantity of drugs involved in the conspiracy was considerable : over 5 kg of No.4 heroin. The heroin was concealed in the hollowed-out legs of rose-wood furniture, and the frame of a marble-top table. Unbeknown to the conspirators, the police had their operations under surveillance since 3 August 1989. The consignment was intercepted at the freight-forwarders' warehouse, before shipment to Vancouver. The heroin was extracted and identical furniture was then shipped. The rose-wood furniture and the marble-top table (a coffee table) were eventually delivered by undercover officers of the Royal Canadian Mounted Police to the consignee's address in Vancouver : 3136, East 4th Avenue, Vancouver, on 10 October 1989 at 15:15 hours (Vancouver time). 5. On the same night that the furniture was delivered to that address, two of the conspirators named in the indictment, Wong Lai-wong and Hui Chi-keung, took the coffee table away in a vehicle; they drove some distance and transferred the table to another vehicle, driven by another person. Hui then went with the second vehicle and that vehicle was later intercepted by the police. Hui was arrested. Other arrests followed. 6. On 11 October 1989 (Hong Kong time) A1 and A2 were arrested. The case against A1 : The surveillance evidence 7. As against A1, the evidence was very strong. Surveillance photographs taken on 3 August 1989 show A1, together with A2, Wong, a person called Tam Chit-yin (nickname "Ah Fei") and the driver of a vehicle removing the rose-wood furniture and the coffee table from a flat in Shek Kip Mei : Flat F, 2nd Floor, Pak Yuk House, 1 Wai Chi Lane, Shek Kip Mei. The flat had been rented about a week before through the Yick Man Property Company by some-one in the assumed name of "Mr Cheng". The letting was from 30 July 1989. On 3 August, the party and the furniture went from the Pak Yuk House flat in two vehicles : A2 was the passenger in the goods vehicle whilst A1 Wong and Tam went in A1's car EF3070. The two vehicles were driven to Tuen Mun. The furniture was unloaded and placed near the entrance of Block A, Grandeur Gardens, King Fung Path, Tuen Mun. The driver then left with the goods vehicle. A1, Wong and Tam then moved the furniture to a flat on the 24th Floor : Flat C, 24th Floor, Block A, Grandeur Gardens. A2 remained downstairs to guard the rest of the furniture. Then A2 helped to move the rose-wood table into the lift and up to the 24th Floor of Block A. The Grandeur Gardens flat had been rented the day before by some-one falsely identifying himself as "Mr Yu King-Kwok", producing a stolen identity card in that name. 8. It is clear from the evidence that the Grandeur Gardens flat was rented only for one purpose : As the premises from which the freight-forwarders would pick-up the furniture. 9. There was, in fact, some evidence to the effect that at least one of the legs of the rose-wood table had been hollowed-out before it was removed from the Pak Yuk House flat, as one of the photographs shows the driver of the goods vehicle carrying a rose-wood table leg with a hollow end. It appears from the evidence that the Grandeur Gardens flat was totally bare and anyone who entered the flat would have observed that fact. The driver of the goods vehicle did not go up to the flat but, on the evidence, A1, A2, Wong and Tam did : or, at any rate, to the 24th Floor where the flat was located. 10. Arrangements were made with the Pan Pacific International Transportation Company to ship the furniture to Vancouver. The shipper was "Mr Yu King-Kwok" and, according to the employees of Pan Pacific, "Mrs Yu" gave the consignee's name as Chang Yan-mei, at 3136, East 4th Avenue, Vancouver. 11. The next day, 4 August, one of the police officers on surveillance saw A2 driving A1's car EF3070, with another Chinese male in front, into the carpark at Grandeur Gardens. However, no photograph of this was taken and two other officers present on surveillance duty failed to recognise A2 as the driver. 12. Shortly after A1's car was seen to enter the Grandeur Gardens carpark, Wong arrived, holding a mobile-phone, and entered Block A. Later, Wong was seen to come out of Block A and went to Block B : What was the purpose of Wong's visit to Block B was not disclosed on the evidence but, by coincidence or design, A1 rented a flat in Block B, in the name of his wife, later that month. Wong went back to Block A shortly thereafter and then he (Wong) boarded his car which was then seen to drive away together with EF3070, A1's car. 13. The next piece of evidence was also from the surveillance team at Grandeur Gardens. On 7 August A1 and a woman were photographed sitting in his car outside Block A, Grandeur Gardens. A Pan Pacific lorry was there. The rose-wood furniture and coffee table were put into a large wooden box in the lorry and then driven away to the Pan Pacific warehouse. 14. The furniture left Hong Kong by sea at the end of August. On 26 September Kwan (A1's wife) and Wong left Hong Kong on the same flight for Vancouver. The taped conversations 15. Between 9 October, 21:57 hours (Vancouver time), and a few hours after the furniture arrived at 3136, East 4th Avenue, Vancouver, there were five telephone conversations, tape recorded by the Royal Canadian Mounted Police, between various parties, which heavily implicated A1. The jury had, of course, the recordings themselves and also the transcript (in Chinese) and would have been able to appreciate the full flavour of those conversations. 16. Exhibit P134 is the English translation of the Chinese transcript of a conversation in Vancouver between Kwan and Hui on 9 October, the evening before the day when the furniture was delivered at 3136, East 4th Avenue. The subject-matter of the conversation was elliptical : deliberately so, as the prosecution suggests. They were talking about "the stuff", meaning both the "stuff" to be bought and the means of payment. For example, there is this passage :
There was more to the same effect. When this conversation ended, Kwan immediately phoned A1 in Hong Kong and the English transcript of this conversation is Exhibit P136. Kwan told A1 that she had just talked with "Ah Fat" (meaning Hui) over the telephone. When Kwan told A1 that Hui was not proposing to pay for everything but "just one by one" A1 became vulgar and abusive. This conversation was again in veiled terms but Kwan seemed to have been suggesting to A1 that Tam Chit-yin ("Ah fei") might be approached : or had been approached, for she reported Tam ("Ah Fei") as saying :
But A1 appeared to countermand this suggestion. He said (among other things) :
The conversation ended by A1 saying :
17. The next recorded telephone conversation (Ex p.140) between Kwan and A1 occurred about an hour after the delivery of the furniture in Vancouver. Kwan called from a public telephone in North Vancouver and spoke to A1 in Hong Kong. She reported to A1 a telephone conversation she had with Tam ("Ah Fei") when Tam asked for "two pieces" and A1 said :
Again, the conversation was in veiled terms. At one point the following exchanges took place :
18. The next recorded conversation occurred about three hours later when A1 phoned from Hong Kong and spoke first to his sister-in-law and then to Wong and then to Hui. The English translation of the Chinese transcript is Exhibit P142. 19. From the tenor of the conversation with the sister-in-law it is apparent that A1 knew that Wong and Hui would shortly arrive at 3136, East 4th Avenue. In the course of that conversation there was a knock at the door and A1 asked his sister-in-law not to hang up. Wong then came on the phone. After a brief conversation Hui then came on the phone and there was then a reference to "Ah Fei", with Hui telling A1 that Ah Fei was worrying about his son who had been admitted to hospital. A1 then said :
20. A1 seemed anxious that all the furniture should be moved from the house. A1 asked Hui to hand the receiver back to his sister-in-law. There was then the following exchange :
Arrest of A1 in Hong Kong 21. When, eventually, A1 was arrested on 11 October, he put up a violent struggle. And when he was taken to the Narcotics Bureau for questioning, after having been cautioned as to his right of silence, he told a number of significant lies : that he had never been to the flat on the 24th Floor of Block A of Grandeur Gardens nor to the flat on the 2nd Floor of Pak Yuk Building, that he had sent no rose-wood furniture and table with a "stone top" to Vancouver by sea and was not present when a "batch of rose-wood furniture" was transported from Wai Chi Lane, Shek Kip Mei to Grandeur Gardens in Tuen Mun. He denied having had any telephone contact with Wong in the past month. Cumulatively these lies must have significantly strengthened the Crown's case against A1 and diminished his credibility in the eyes of the jury. A1's case 22. When A1 came to testify in court, his stance was quite different from that taken at his interview with the police. He said that he did cause the furniture to be sent to Canada. It was to help Wong - a decorator whom he came to know because Wong had decorated a factory where he worked as sales manager; it was also to help a man claiming to be Yu King-kwok : that explained why the furniture was sent in the name of "Yu King-kwok". The furniture was consigned to Chang Yan-mei, his niece, a recent migrant who could receive the furniture tax-free. If the authorities allowed the furniture to enter Canada tax-free, he was to receive Canadian $3,000 as tea-money from Wong; he was also hoping that Wong might buy a flat from Kwan, his wife, who was dealing in real estate. He helped to move the furniture on 3 August, he said, because he happened to be free and went back to Tuen Mun on 7 August partly because he was interested in moving to that area himself : and did in fact do so, taking a flat in Block B, but that was not until the end of August. 23. As regards the intercepted telephone conversations with his wife, he explained that many of the references were to a plan to export large quantities of canned baby corn and perhaps other food-stuff. But since they were referring to quantities as large as "two tons" and even "eight tons", the lack of any documentation whatever relating to the business must have struck the jury as surprising. At one stage, in A1's examination-in-chief, there was this exchange with his counsel :
24. And later when asked by his counsel what was the reference to "six numbers" in his conversation with his wife, he said that referred to six tons :
25. The whole conversation about "the stuff" in Ex P140 was about "the baby corn transaction." And he added :
26. A1 claimed to have "some contracts and pamphlets" about the baby corn business at his home, but "the prosecution hides many things". None were produced. The case against A2 27. As mentioned earlier the surveillance photographs, taken on 3 August 1989 show A2 moving the furniture with A1, Wong and Tam at Pak Yuk House, Shek Kip Mei. He was then seen to go with the goods vehicle to Grandeur Gardens, Tuen Mun where the furniture was unloaded. A2 at first remained downstairs with part of the furniture and was then seen, through the closed-circuit TV screen in the management office, in the lift with A1 and a table. The lift reached the 24th Floor and A1 and A2 moved the table out of the lift. The inference is inevitable that A2 then went into the flat on the 24th Floor : a flat which was completely empty. 28. The next day, 4 August, A2 was seen by DPC21000 Lee King-Shing (PW6) to be the driver of A1's car EF3070, driving into the carpark at Grandeur Gardens, though he was not so identified by two other surveillance officers. There was evidence (coming from A1) to the effect that during August A1, A2, Kwan and Wong, all four of them, were regularly communicating with each other by telephone. And when A2 was arrested on 11 October at his home the police found various things implicating him, to an extent, with the other conspirators :
29. When A1's flat was searched, A2's Home Visit Permit was found there (A1 explained that he had travelled with A2 together to China). 30. Obviously, none of these matters was in any way conclusive of guilt, but they had the effect accumulatively of raising a case which called for some explanation from A2. 31. When A2 was arrested he tried to flee and put up a violent struggle and when interviewed by the police on 12 October he told a number of significant lies :
32. A palm-print of A2 was found on the back of one of the rose-wood chairs. What is the effect of the evidence against A2? 33. Where a case is based on circumstantial evidence, it is the cumulative effect of the evidence, all consistent with guilt, which counts. 34. A2's case, as put by his counsel, was that his sole involvement was to help A1 move the furniture. But no explanation was forthcoming concerning A2's apparently close relationship with Wong. On A1's case, Wong was a friend of his whom he, A1, came to know when Wong decorated his factory at Kwun Tong (or, more accurately, the garment factory where his wife had a share). A1 never suggested that there was any close relationship between Wong and A2 : and yet, the documentary exhibits found in A2's home linked him closely to Wong who, on any view of the case, played a dominant role in the conspiracy. And why were the four persons A1, A2, Wong and Kwan, during August 1989, regularly communicating with each other by phone? Was it a mere coincidence that A2's note-book contained the telephone number of the person through whom the tenancy of the Pak Yuk House flat was arranged? 35. The case against A2 cried out for an explanation from him - an explanation which could so easily have been given if his involvement was innocent. And yet he remained silent. The summing-up 36. Counsel, on this appeal, complained of the way the issues were presented by the judge to the jury. But, as this court has repeatedly stressed , how a summing-up should be structured is a matter for the trial judge. Unless an essential ingredient of the summing-up - such as adequately putting the defence case - has been left out, it would take an extreme case before this court can properly interfere. 37. Here, a complaint by counsel is that the trial judge did not sufficiently explain to the jury what inferences might specifically be drawn from various pieces of evidence. We would reject that criticism. That would have overloaded the summing-up - already amounting to over 60 pages - to an intolerable degree. 38. The judge, at the outset, told the jury that before they could convict anyone they had to be sure first that there was the conspiracy to export heroin and second that he was a party to such an agreement. He elaborated upon this and then added :
39. The judge, of course, told the jury that the case had to be proved beyond a reasonable doubt. There was no need for the judge to tell the jury "the circumstances in which adverse inferences could be drawn", as counsel suggested in argument. There was, in our judgment, no irregularity in this regard, as counsel suggested. Was A2's case adequately put to the jury? 40. As regards A2, counsel says this : although the judge correctly told the jury that they had to consider the evidence in relation to each defendant separately, he failed to identify the evidence upon which the jury could act when considering the case against A2. 41. In our judgment, this criticism is unfounded. Where much of the evidence implicates A1 and A2 together, it would have been otiose to pull the strands out one by one and make each referable to a separate defendant. 42. When the judge turned to the case for the defendants, it was inevitable that he focused attention on A1's testimony, since A2 gave no evidence. He told the jury the gist of A1's story : that he was planning to emigrant and was grooming A2 to take over his job as sales manager. The judge reminded the jury of the evidence to the effect that when, on 3 August, Wong phoned A1 and asked him to help convey the furniture to Tuen Mun, A1 had asked A2 "to come and help because he had a car". That was, in effect, A2's case : that his sole involvement was innocently to help A1 move the furniture. We cannot see what elaboration was called for concerning the case for A2. Is A2's conviction unsafe and unsatisfactory? 43. Counsel's argument on behalf of A2, in effect, is this : when the various strands of evidence against A2 are individually as weak as they were, it was incumbent upon the judge to highlight aspects of the case favourable to A2. For instance, counsel complains of this passage in the summing-up (page 42N-430) :
44. Mr McNamara, counsel for A2, submits that this evidence, as far as A2 is concerned, is neutral because these were merely "metered calls" : that is, no one could say who were the persons speaking on the phones; it did not mean that A2 was speaking at all. As to this, we would observe as follows :
45. How the evidence should be presented to the jury is a matter for the judge. We would wholly reject the suggestion that the summing-up was lacking in impartiality with regards to A2. For instance, in relation to the evidence pointing to the fact that he was seen at Grandeur Gardens on 4 August, the judge was at pains to emphasise the dangers of that identification. 46. The evidence implicating A2 as a member of the conspiracy was not nearly as strong as that implicating A1. However, at the end of the day, the responsibility for evaluating the evidence was that of the jury's. The summing-up was, in our view, unimpeachable and there are no grounds for this court to interfere with the jury's verdict. Conspiracy with spouse 47. Mr Westbrook, counsel for A1, relies upon the old common law rule to the effect that a husband and wife are legally incapable of conspiring together, for, upon the doctrine of conjugal unity, they are considered as constituting but one juridic person : and being one person in law, they are presumed to have but one will : see Mawji v. R. [1957] AC 126 (Privy Council). 48. However anachronistic this rule of law may seem to be, it is the law; it follows that a charge of conspiracy implicating a husband and wife alone must be bad, and no conviction can follow. 49. So far, Mr Blanchflower, counsel for the respondent, does not dispute these propositions. The question is simply this : what are the implications of this rule, as far as this appeal is concerned? 50. Mr Westbrook accepts the proposition that a husband and wife can be convicted either separately or jointly with conspiring with other persons : R. v. Whitehouse [1852] 6 Cox 38. His complaint essentially is this : the judge failed to direct the jury concerning this common law rule, leading them to believe that A1 could be found guilty even if the only other conspirator had been Kwan, his wife, the unindicted conspirator. 51. This submission in our judgment is unsound. By the very nature of the conspiracy with which this case is concerned, if A1 was involved, he must have been involved with at least Wong and Hui apart from his wife : the persons who, on 10 October 1989 (Vancouver time) went to 3136, East 4th Avenue, to collect the coffee table. Moreover, by their conviction of A2, the jury found as a fact that A1 and A2 had conspired together. Whether A1 and Kwan are, in law, one legal person and having only one will is totally beside the point. 52. In coming to this view, we do not overlook what the British Columbia Court of Appeal has said concerning this issue, when Kwan's appeal against her conviction for conspiracy to import narcotics was considered by that court. The decision is reported in R. v. Kam Hong Kwan [1992] 10 BCAC 274 where, at 288-9, the old common law rule was considered. At page 288 the court said :
53. We make no comment on whether such a direction was, on the facts before the British Columbia court, necessary or desirable. But, on the evidence adduced at the trial in this jurisdiction, a finding that A1 had conspired with Kwan and no one else, to export heroin to Canada, would have been perverse. The failure to give such a direction could not, in our view, have affected the outcome in the least. Such failure therefore cannot amount to a material irregularity at the trial. Admissibility of intercepted telephone calls 54. Much of the time taken at trial focused on the telephone calls intercepted by the Royal Canadian Mounted Police. They amounted to strong evidence against A1. 55. In British Columbia, the Court of Appeal in R. v. Kam Hong Kwan (supra) had ruled that the "wire-tape authorisation" was invalid, because the police affidavits had failed to disclose reasonable and probable grounds that the target was involved in any drug transaction. What are the implications of this finding regarding the admissibility of the taped conversations at the trial in Hong Kong? 56. It is common ground that the test of the admissibility of evidence is relevance. As Lord Diplock in R. v. Sang [1980] AC 402 at 432-3 explained, to exclude evidence obtained "unfairly or by trickery" involves a claim to a judicial discretion to acquit an accused of any offences in connection with which the conduct of the police incurs the disapproval of the judge. A court has no such power. 57. Here, no trick or deception of any kind was practised upon A1. The question as to what might otherwise have been the position - dealt with in Lord Scarman's speech in Sang at 456 F-G - simply does not arise. 58. Mr Westbrook has, in the course of argument, referred to the Interception of Communications Act 1985 and, in particular, to s.9 of the Act which prevents evidence being adduced in court proceedings tending to suggest that a warrant has been issued by the Secretary of State for the interception of public telephone communications. This was dealt with in the case of R. v. Preston [1994] 2 AC 130. We are unaware of the policy considerations which led the United Kingdom Parliament to legislate in this way. The 1985 Act is irrelevant to what we in this court have to decide. In Hong Kong, the question of admissibility is governed by the common law, as expressed in R. v. Sang. Procedural rules for dealing with "wire-tapping" created by statute in the United Kingdom and in Canada are wholly beside the point . In our judgment, the fact that the British Columbia Court of Appeal has ruled the taped conversations inadmissible in evidence at Kwan's trial is likewise irrelevant. 59. They constituted relevant and cogent evidence against A1 at his trial and the judge was plainly right to rule them admissible in evidence. Article 14(2) Bill of Rights 60. Article 14 of the Hong Kong Bill of Rights states :
61. Counsel argues that the interception of the telephone conversations in October 1989 amounted to "unlawful interference" with A1's privacy. 62. Counsel argues thus : Although, at the time when the "interference" took place, no such fundamental right existed in Hong Kong law, since the Hong Kong Bill of Rights Ordinance had not yet been enacted, it is the use of the material at the trial which is complained of; by that time, the Bill of Rights had become law. Mr Westbrook argues that a court, by s.6(1) of the Hong Kong Bill of Rights Ordinance, has a discretion to "grant such remedy or relief or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make ... and as it considers appropriate and just in the circumstances". This therefore conferred an independent jurisdiction on the judge to exclude the taped conversations, recorded in breach of A1's right of privacy. 63. As can be seen, the argument in effect boils down to this : Assuming that the interceptions amounted to some violation of A1's "privacy" in terms of Article 14(1), should the trial judge have made an order, pursuant to s.6(1), excluding the evidence? 64. This is, in effect, the same argument which is conclusively dealt with by applying the common law rule in R. v. Sang. The Bill of Rights is part of the fabric of the law of Hong Kong. It is not a self-contained code. It would be an extraordinary thing if, by applying the normal rules of evidence and procedure, a piece of evidence is admissible and yet, by the operation of s.6(1) of the Bill of Rights Ordinance, it should be inadmissible. This would, in effect, be to operate a dual system of justice. In our judgment, s.6(1) has no such effect. 65. This removes the necessity of having to consider whether "wire tapes" constitute "arbitrary or unlawful interference with privacy" and the consideration of cases in the international sphere such asMalone v. United Kingdom [1984] 7 EHRR14 which deal with Article 8(1) of the European Convention become unnecessary. Conclusion 66. These two applications have been fully argued. In our judgment, leave should be given but the appeal of each of the appellants is dismissed.
Representation: Mr M.C. Blanchflower (Crown Prosecutor) for Crown/Respondent Mr Simon Westbrook (M/s Paul Kwong & Co.) for 1st Defendant/1st Applicant Mr John McNamara (M/s Paul Kwong & Co.) for 2nd Defendant/2nd Applicant |
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