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Kao Hang v. The Queen

Case No.CACC 234/1977
Court
Court of Appeal
Date30 Aug 1978
Judge—
Case Document
100%

CACC000234/1977

IN THE COURT OF APPEAL  
   
  1977 No. 234
  (Criminal)

BETWEEN    
  KAO Hang Appellant
  and  
  The Queen Respondent

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Coram: Pickering, Ag. C.J., McMullin & Leonard, JJ.

Date of Judgment: 30th August, 1978.

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JUDGMENT

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McMullin, J.:

1. The appellant was charged with two other men upon two counts: one of possession of dangerous drugs for the purpose of unlawful trafficking contrary to section 7(1) of the Dangerous Drugs Ordinance and a second count of conspiracy to traffic in the same drugs.

2. The offences were said to have occurred upon the 12th of August 1976. The trial concluded on the 28th of February 1977, having commenced on the 3rd of that month. By majority verdicts the first and second defendants were convicted upon both counts. The second defendant is the present appellant before this court. The third defendant was acquitted on both counts by unanimous verdicts. The first and second defendants received sentences of twelve years concurrent upon each count. They appealed to the Court of Appeal and appeared before this court on the 4th of August 1977. On that date Mr. Donnelly, of counsel, informed the court that the first defendant HSU Chao-ching was withdrawing his application for leave to appeal on the ground that the third defendant, who had been acquitted in the court in Hong Kong, had been dealt with for the same offence by a court in Taiwan and had been sentenced to death. It should be added that we were informed after the conclusion of the present appeal that that sentence was eventually commuted and that, indeed, that defendant was later set at liberty. However, at the date upon which the defendants appeared before the appellate court counsel informed us that the first defendant was not prepared to take the risk of being similarly dealt with upon repatriation to Taiwan should he succeed in his appeal in this territory. He therefore withdrew his application. We were informed that the second defendant, the present appellant, had been tried in his absence in Taiwan. He however had some prospect of being admitted to America should he succeed in his appeal in this territory and he stood therefore in no immediate danger of repatriation to Taiwan. He asked for an adjournment in order to further his application to go to America. That adjournment was granted upon terms that the hearing of the appeal should be adjourned to a date to be fixed not less than four months from the 4th of August 1977. In December 1977 the clerk of the court wrote to the solicitors for the second defendant making inquiry as to the then situation. A reply was received on the 15th of December 1977, the general purport of which was that his application to go to America was ineffective because of his conviction but there was a possibility of his being received as a permanent resident in Macao. The solicitors asked for a further three months' adjournment of the appeal. No objection was made to this and some three months later the clerk of the court further inquired from the solicitors as to the results of their endeavours on behalf of the second defendant. As a result of this exchange a hearing date was fixed on the 10th of April 1978 the appointed date for hearing being the 17th-18th of August 1978. On those dates the appeal was dealt with by this court.

3. The "Solar Continental Maru" is a Japanese registered vessel trading out of Taiwan. The first defendant was the captain of this vessel the second defendant was the first officer and the third defendant the second officer. Originally another member of the crew, an able seaman called HSIA Ming-lee, was named as a defendant but in his regard a nolle prosequi was entered on behalf of the Crown and he was eventually called as prosecution witness No. 6. The offences against the three defendants rested principally upon the evidence given by HSIA and the radio operator, WU Hay-ping, who described various activities which occurred on board the vessel en route to Bangkok and on its way from Bangkok to Hong Kong. On its arrival at Hong Kong the dangerous drugs described in the first charge were found wrapped in polythene bags in a secret metal container inside a fresh water tank sited in the fore-peak of the vessel. This secret chamber had recently been sealed with some form of cement and the evidence of HSIA dealt largely with the way in which the drugs had come to be contained therein. It should be said at the outset that this was by no means as innocent freighter. All the witnesses who spoke about the voyage, including the accused persons, frankly admitted that she had been engaged in smuggling cigarettes and other goods from Hong Kong into Bangkok. Mr. Corrigan, for the appellant, made the point that since the principal witness against his client, i.e. the witness HSIA, had also given evidence of a comparably damaging nature against the third defendant the verdict of the jury in acquitting the third defendant and convicting his client lay under some suspicion of inconsistency. Mr. Hindle for the Crown sought to show that the evidence against the third defendant was in fact less ample than that against the second and that this would account for the distinction.

4. It was common ground that the ship had left Hong Kong on the 29th of June and had proceeded from there to Bangkok with its cargo of Hong Kong goods. Thence it had gone on to Kota Kinabalu in Sarawak and thence to Miri in North Borneo and had returned from that port once more to Hong Kong. On the outward journey, just short of Thailand waters, the ship hove to in the Gulf of Siam and three or four days were spent thereafter in offloading the Hong Kong goods on to smaller ships for smuggling into Thailand to avoid customs duty. It is common ground also that the ship's log had been falsified in order to conceal the visit to the port of Bangkok. There was evidence that various hands appeared in this log which was kept upon the bridge and which was available to various people. The appellant, however, admitted that certain entries had been made by him and, indeed, that he was primarily in charge of the log. He admitted that, on the instructions of the owner of the vessel, he had altered entries after the ship reached Kota Kinabalu in Borneo in order to show that the ship had spent a lengthy period in the Taiwanese port of Kaohsiung and had not called at Bangkok.

5. The evidence of HSIA touched the activities of the captain (D.1) the appellant (D. 2) and the third defendant. He said that some days before the ship left Bangkok he assisted the first and second officers (the appellant and the third defendant), to carry four baskets of fruit, which were taken from two small boats that drew alongside, to a store at the front of the vessel. The appellant opened the cover of the fore-peak fresh water tank and the witness and the appellant went down into the tank. The appellant then broke open the entrance to the secret cavity in the wall of the water tank and gave the witness a number of plastic bags filled with some substance to place within that cavity. The witness said that the third defendant, stationed outside the water tank, was handing the parcels to the appellant who in turn handed them to the witness for the purpose described. These were the parcels which were seized when the ship arrived in Hong Kong and were later found to contain dangerous drugs. Thereafter the ship set sail and some hours out to sea he accompanied the appellant and the third defendant once more down into the water tank where he and the appellant covered the opening of the secret cache with a sort of cement while the third defendant held a lamp in order to assist them in doing so. In cross-examination he added that when he had first assisted with the placing of these materials in the secret cache he had immediately thereafter asked the appellant what the goods were and had been told by the appellant that they consisted of "white powder".

6. The other important prosecution witness was WU Hay-ping, P.W. 4 who served in a dual capacity as radio officer and third officer on the ship. He described seeing the witness HSIA carrying some cement into the store room at the bow inside which lay the fore-peak water tank and he said that the appellant and the third defendant were in the vicinity at the time. This witness kept a record or log of telegrams sent out and received by the ship. He told the court that he was present when the appellant tore up the record of all telegrams received and sent out between the 29th of June and the 27th of July. This occurred when the ship was in Bangkok and he said that the appellant told him that the reason was to disguise the fact that the ship had reached Bangkok and he warned him that, if anybody asked him, he was to say that it had never been to that port. He then described how the ship had gone from Kota Kinabalu to the port of Miri where it took on a cargo of timber and then sailed for Hong Kong. Some two days out from Hong Kong he happened to be at the bridge with the captain and the chief officer and second officer (i.e. the first, second and third defendants) and the engineer. He heard some conversation between the persons on the bridge which he did not understand since it was in the Taiwan dialect and he is a Cantonese speaker, but immediately thereafter he saw the second officer (third defendant) leave the bridge and go to the bow of the ship where he inserted a rubber hose into the same fresh water tank in the fore-peak. The sea water pump was opened up and sea water was pumped into the tank through that hose. At the time this occurred the appellant and the captain (first defendant) were present on the bridge and watching the operation. A day or so later he had a conversation with the captain who asked him to send a telegram which indicated that the captain was asking for a replacement for himself as master of the ship. He asked the captain why this was being done and received a reply to the general effect the captain was going to retire because he had a lot of money. The witness said that he asked the captain about the money and asked him if he had been carrying dangerous drugs. At this the captain became very angry and threatened to throw him into the sea. After arrival in Hong Kong when the ship was searched by the Preventive Service Officers these officials ordered the pumping out of the water from the fore-peak tank. While this was going on the witness stated that he was at the stern of the ship when the captain returned from a visit ashore and joined the witness and the appellant at the stern of the vessel. The witness said that he heard the captain say to the appellant in Mandarin "there must be an informer". That, in outline, was the substance of the evidence against the several defendants. It will be seen therefore that there was in this body of evidence, if it was believed by the jury, coupled with the discovery of the drugs in a recently sealed cache in a secret compartment on the ship, abundant evidence upon which the jury might have convicted all three defendants upon both charges. Although, as Mr. Hindle suggests, the actual quantum of evidence in respect of the appellant may be more considerable than that involving the third defendant (who was acquitted), it remains, nevertheless, difficult to understand why the jury should have been satisfied as to the guilt of the appellant and not as to that of the third defendant. A merciful or even an inexplicable verdict in respect of the accused who was acquitted would not, of course, on its own, be a good ground for upsetting the conviction of the appellant. Mr. Corrigan however enlists this fact as an assistance to his argument that the summing-up to the jury was in some respects so wanting that we cannot be sure that the jury did not misconceive their duty in resolving the issues actually at stake. It is with one of these issues that we are principally concerned and it was the main point upon which we felt it necessary to call upon the Crown to reply to the address of counsel for the appellant. The point is set out in the second ground of appeal which is in the following terms:

"2. That the learned trial judge misdirected the jury on the question of accomplice evidence in the Crown case in that:-

  (a) in the case of the witnesses P.W. 4, WU Hay-ping, and P.W. 6, HSIA Ming-lee, he failed to rule adequately whether there was evidence on which the jury should or might find them or either of them to have been accomplices;  
  (b) he failed to give any due or adequate warning to the jury of the dangers inherent in relying or convicting upon the evidence of an accomplice unless corroborated;  
  (c) he failed to explain to the jury the meaning of the word 'corroboration' he used to them;  
  (d) he failed to rule whether or not there was any evidence capable of corroborating the evidence of either of the said witnesses;  
  (e) he failed to direct the jury that one accomplice particeps criminis cannot corroborate another;  
  (f) in the circumstances of this case he failed to warn the jury that, even if they should not find either one or both of the said witnesses to have been accomplices strictu sensu, they should nevertheless exercise special care before convicting on their evidence if uncorroborated because they were witnesses who might have had a purpose of their own to serve in evidence."  

The recital of the evidence which has been given above makes it evident that the two principal witnesses were obviously witnesses whose testimony required a careful direction to the jury on the possibility of their criminal complicity with the others. There is no doubt that the learned judge was very well aware of the need to give such a warning. Having explained to the jury that the witness HSIA had originally been one of the accused persons in respect of whom a nolle prosequi had been entered the learned judge went on to address the jury as follows:

" You will have to consider whether WU or HSIA Ming-lee are accomplices to this criminal activity. If either of them is, his evidence has to be looked at very carefully and scrutinised for possible prejudice and untruthfulness and couldn't be relied on on its own without some corroboration.  
            All HSIA Ming-lee was prepared to admit was that he came to know after storing away the drugs what they were. WU Hay-ping, if you believe him, was unaware that there were any drugs and unaware of the existence of the secret compartment. He was a young man, it was his first and only voyage on this fatal vessel. He was odd man out, of course, being the only Hong Kong man there though he had the advantage of speaking Mandarin, his parents being northerners. You may think it is much less likely that he was involved in this drug running, but it is a matter for you to consider.  
            There was some evidence that he at a later stage told the first accused that he was going to be forced unhappily and unwillingly and tearfully into giving false evidence to save himself. He said he had only visited the first accused in the remand prison on one occasion; he was then shown a document that suggested that he had been there on a second occasion in December and he then admitted that that was so, but he told you that he had not succeeded in getting to the first accused on that occasion. The first accused of course told you that he had seen WU Hay-ping twice. It's of course quite possible that a young and inexperienced person might be led into thinking that he was in grave peril of a criminal charge when in objective fact he wasn't and, as I have said already, you may think that the evidence of WU Hay-ping is nothing like as damning as that of HSIA Ming-lee against these three accused."  

Mr. Hindle for the Crown concedes that HSIA was indeed a witness who should have been regarded as an accomplice and he concedes that this direction was deficient in the several respects listed at paragraphs (a), (b), (c), (d), and (e) of the grounds of appeal set out above. He argues however that the witness WU was not an accomplice and that although a warning of the kind referred to in paragraph (f) of the grounds of appeal might have been given in his regard it was not strictly necessary to do so, and that failure to do so cannot prove fatal since the matter was one for the exercise of the judge's discretion. As to HSIA he says that the failure to give an adequate warning would be fatal to the conviction only if the court were of the opinion that in the circumstances generally it would be impossible to apply the proviso to section 83(1) of the Criminal Procedure Ordinance. It must be said at once that Mr. Hindle put forward a most vigorous and able defence of this conviction. In one respect, he said, the passage in the summing-up which has been quoted went further in favour of the accused than need be since the judge told the jury that, in the absence of corroboration, those witnesses could not be relied upon at all. He did not go on to say that even if they found that the witness were accomplices they could, nevertheless, convict provided they were satisfied that the witnesses had told the truth. Next, counsel says, there was in any event, an abundance of corroborative material. In this regard he points first of all to the fact that the appellant was directly under the captain and was said to be in charge of the day-to-day running of the ship. Counsel admitted however that the evidence was somewhat equivocal in this regard since in one place the appellant had said that he was in charge of the daily administration of the ship and later he said that he was not in charge. But in any event it is suggested that a person of his status sharing the control of the vessel with the captain - a small vessel with a crew of only 13 - must be presumed, prima facie, to be in control of the drugs in the secret compartment either as a matter of common sense or else by virtue of the provisions of section 47 of the Dangerous Drugs Ordinance and the presumptions created therein. The second factor which counsel relied upon as supplying corroboration of the witnesses' evidence was the alteration by the appellant of the entries in the ship's log. The third piece of evidence capable of affording corroboration was, in his contention, the fact that sea water had been pumped into the fresh water tank by the third defendant and that the appellant had been in a position to observe that being done. Mr. Hindle also argued that the very fact that the third defendant had been acquitted was some indication that the jury had understood and seriously applied the judge's warning as to accomplices since their finding could be interpreted as meaning that they had looked for corroborative material to support the evidence of HSIA and had found it in his regard but not in respect of the third defendant. Finally, counsel said that even if one left the evidence of HSIA and of WU out of the picture altogether it would still have been open to the jury to convict the appellant because his high position in the chain of command having, in counsel's submission, raised the presumption against him that he was in possession of the dangerous drugs, a prima facie case was thereby established which needed to be rebutted and, counsel said, the jury may simply not have believed the appellant's evidence which was to the effect that he did not know of the existence of the drugs. As to this latter point Mr. Corrigan suggests that it would be too dangerous to rely solely upon the question of status for the purpose of deciding whether the presumption was raised against the appellant because of the extremely secret nature of the place in which the drugs were stored. He suggested that even the captain might not be fixed with the knowledge of the drugs by virtue of the presumption. As to that, it may be said that there are analogies between the position of senior officers aboard a ship, especially a small ship, and the position of tenants of a multi-storey block of flats each of whom has a key to the main entrance, a situation considered in Reg. v. CHENG Chung-kan(1). In the course of his judgment in that case Pickering J.A. referred to the possibility of the presumption arising in their regard on the discovery of drugs in some part of the building but the resolution of the question was not necessary to the decision of that case and he preferred to leave the point meet. In any event it must be borne in mind that, as Mr. Corrigan points out, the presumption notwithstanding, it is the Crown's duty in the end to prove possession and knowledge beyond reasonable doubt. The present case is not a case in which the prosecution relied solely on the discovery of drugs coupled with the notion of the chain of command, and the Crown was expressly relying upon two very important witnesses whose testimony must be presumed to have bulked very large in the consideration given to the facts by the jury. It cannot simply be assumed that the jury dismissed the evidence of HSIA and WU altogether and convicted upon the basis of the status of the second defendant. We have given very careful consideration to the argument of Mr. Hindle. It would certainly be wrong to dismiss the points that he has made as being merely ingenious. They were cogently argued and they were of substance but in the end, and with the fairness which exemplified the argument throughout, he conceded that, in view of the nature of the direction, it was not possible to say, at this stage, whether or not the jury had resorted to matters in the evidence as corroborative of the evidence of HSIA and possibly of WU which simply could not amount to corroboration in law. We think that that is the root of the matter. Also it must be said that one of the principal items relied upon by Mr. Hindle as corroborative, viz: the alteration of the ship's log, is only doubtfully so since that act might well have been understood in the context of the admitted illegal importation of goods into Thailand and need not necessarily have been explicable only by reference to a guilty knowledge of the taking on of dangerous drugs at Bangkok. It might have been that the jury would not have considered WU to be an accomplice and in that case his evidence would have been capable of affording corroboration to that of HSIA but this question was never broached with the jury. It does seem evident that the jury cannot have been satisfied with the evidence of HSIA as it bore upon the case of the third defendant. We do not know if they regarded WU as an accomplice, which they could have done, and nevertheless used his testimony to support that of HSIA as against the appellant. There were other matters in the evidence which might well have been regarded by the jury as affording corroboration and which nevertheless would not have been justifiably so used by them. In fine although it cannot be said that there is any positive misdirection in the passage which has been cited concerning this vital matter we have come to the conclusion that just too much has been left unsaid, so that the jury went to its task without clear instructions as to why it was necessary to seek for corroboration; as to what constitutes corroboration in law (R. v. Baskerville(2)); and as to what, in the case at trial, corroboration might consist of and, more importantly perhaps, what it might not consist of (R. v. Goddard(3)). Nor were they directed as to the meaning and limits of the notion of accomplice in law (Davies v. Director of Public Prosecutions(4)) nor as to the incompetence of one accomplice to corroborate another (Director of Public Prosecutions v. Kilbourne(5)). For these reasons we are satisfied that the proviso cannot be applied and that the conviction was unsafe and unsatisfactory. The application is allowed and treating the application as the appeal we order that the conviction be quashed and the sentence set aside. 

Representation:

Corrigan & Jimmy Chan (D.L.A.) assigned for the appellant.

Hindle, Crown counsel for respondent.

(1) (1977) H.K.L.R. 451.

(2) (1916) 2 K.B. 658.

(3) (1962) 46 Crim. App. R. 461.

(4) (1954) A.C. 378.

(5) (1973) A.C. 748.