The Queen v. Cheng Wai Yam and Another

CACC000293/1985

BETWEEN

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Coram: Sir Alan Huggins, V. -P., Fuad, J. A. & Clough, J.

Date of Hearing: 2 April 1986

Date of Judgment: 2 April 1986

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JUDGMENT

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Sir Alan Huggins, V -P.:

1. These two Applicants were indicted in the High Court for conspiracy to traffic in dangerous drugs.  The conspiracy alleged was one between 23rd November 1981 and 17th February 1982.  We are informed that after the latter date it was not possible to find the 1st Defendant and the trial did not take place until June of 1985.  Both Applicants were convicted and sentenced to ten years imprisonment.  Originally they applied for leave to appeal against convictions and sentences but the applications relating to sentence have been abandoned.

2. The evidence is that on 23rd November 1981 there was a meeting at the Furama Hotel at which it is said these two Applicants were present, together with a man called WONG Yik-kwong and two other men. At that meeting it is said that there was a discussion about the importation of drugs from Singapore and their delivery to Hong Kong. The evidence for the Crown was to a very large extent that of the man Wong, who was clearly an accomplice. In his evidence he said that there was a conversation during this meeting in which he heard the 2nd Defendant say "that goods would be arriving from Singapore from the boss".

3. I should interpose here that it is now accepted that it was the 2nd Defendant who made that statement. At the trial it would seem that the main issues were whether or not the person who made that statement (who was described as "Ah So") was in fact this Defendant, because Wong at an identification parade was unable to identify her. He did identify the 1st Defendant. The second main issue at the trial appears to have been whether the goods which were being referred to were in fact dangerous drugs.

4. At this meeting there was the discussion about the importation. After the meeting the 1st Defendant and Wong went off to catch transport home. They went though Statue Square and at Statue Square there was a further discussion: it was there that the 1st Defendant tried to persuade Wong to act as courier and commented that a large sum of money was involved and yet Wong appeared reluctant to act as courier. The ship on which Wong was employed went to Singapore, there drugs were loaded on board and the vessel returned to Hong Kong on the second of the two dates mentioned in the indictment. On arrival in Hong Kong the ship was boarded by the Customs Officers and some drugs were found. They were found in the possession of Wong.

5. The case against the 1st Defendant was obviously much stronger than that against the 2nd, because there was no doubt that the discussion in Statute Square was conducted with the 1st Defendant and related to drugs. Therefore the only points which have been taken on appeal on the 1st Defendant's behalf relate to misdirection. The learned judge told the jury that a statement which had been made by the 1st Defendant should be carefully considered by the jury and it is said that this was wrong because the statement was exculpatory. The statement was not entirely exculpatory although it did not admit involvement in the offence itself. It contained, however, admissions of facts which were relevant to the guilt of the 1st Defendant. In our view the judge was right when he said that the jury would have to consider the contents of this statement: they had to decide whether or not the statement did contain admissions which they were prepared to accept. They then had to consider what was the effect of any admissions.

6. Secondly it is complained that the judge did not direct the jury as to the effect of that statement, if the jury were satisfied that the contents of it were not true: it is said that there should have been a full direction as to the effect where an accused person is found to have told lies and that the jury should have been warned that the mere fact that a defendant has told lies is not of itself evidence of guilt. In our view there is no rule that in all similar cases a direction as to the effect of lies is necessary. It must be emphasized that the learned judge told the jury (rightly or wrongly) that there was no evidence which was capable of being corroboration of Wong's evidence. Mr. Whitehead has said that that may have been inaccurate in that lies can in certain circumstances constitute corroboration; but the direction here was, if anything, too favourable to the 1st Defendant. This was not a case where the jury can have been misled into thinking that the lies told could amount to corroboration: they were told that there was no corroboration at all, and therefore, we think that there is no substance in that ground of appeal either. The application of the 1st Defendant must be dismissed.

7. The main ground taken by Mr. Corrigan on behalf of the 2nd Defendant is that there was no sufficient evidence before the court to justify a conviction for conspiracy. He accepts that the learned judge very fully and properly directed the jury on most of the matters upon which directions were required, and there can be no doubt that the judge strongly emphasized at the beginning of his Summing-up that conspiracy was an agreement and that, unless there were an agreement to which the 2nd Defendant was a party, there could be no conviction.

8. As I have said, the two main points appeared at the trial to be whether the 2nd Defendant was party to the conversations in the Furama and whether they were talking about drugs. It is however now urged upon us that, the judge insufficiently directed the jury at critical points in the Summing-up as to the need for agreement. In particular, at p.15 of the Summing-up, he said:

"Now if you believe' what Wong says, that evidence by itself would not, unlike the position in relation to the 1st accused, establish the guilt of the 2nd accused. You will then have to go on, if you accepted Wong's evidence in relation to the 2nd accused to, before you could convict the 2nd accused, draw two inferences, and the first, which is the more important one, is whether from that evidence you consider that the only reasonable inference. is that the Ah So that Wong referred to was one and the same person as the 2nd accused, and the second inference, which might perhaps cause you less difficulty, was that the goods and the big bosses mentioned in that discussion and the goods that were to be brought to Hong Kong from Singapore were dangerous drugs."

Nothing is there said about the necessity for inferring an agreement. In our view had the matters stood there there could have been no real argument at all because nothing that was there said detracted from what the judge had said previously about the necessity for proving an agreement.

9. The difficulty arises by reason of an interjection at the close of the Summing-up when counsel then appearing for the 2nd Defendant said:

"My Lord, you told members of the jury that the guilt of both accused, including the 2nd accused, depends upon whether or not they believe Wong's evidence. That of course is correct to a certain extent for the 2nd accused, but just to be crystal-clear, the 2nd accused's case is that even if the jury accepted everything that Wong said, that the only inference that could be drawn is not that she was part of a conspiracy to traffic in dangerous drugs. I am just a little anxious, my Lord, that the jury may go away thinking, Well, if we believe everything Mr. Wong has told us, she must be guilty. My case is not that."

The learned judge obviously thinking that the case turned upon the two points which I have already mentioned on two occasions, said this:

"As Mr. Whitehead properly points out - and as apparently I didn't sufficiently emphasized, but I will attempt to now - in relation to the 2nd accused, even if you believe Wong, it doesn't necessarily follow that the 2nd accused is guilty. You would then have to decide whether on the whole of the evidence the only reasonable inference was that she was Ah So and that that discussion took place and that discussion related to dangerous drugs. And what the 2nd accused's counsel puts forward very vigorously by way of defence is that ever if you believe Wong, that is not the inference to be drawn as to the 2nd accused's presence if you consider she was in the hotel and that her presence was wholly innocent."

Now I do not think that the learned judge there was directing his mind to this aspect of the case that there had to be an agreement. That point he had made very clearly at the beginning and, although it would have been better had the judge appreciated the full force of what was being submitted to him and had said something to the effect that all this was subject to the jury's being satisfied that the 2nd Defendant was party to the agreement if she was "Ah So", we think that the direction which had been given originally was sufficiently strong to carry through and to have left the jury in no doubt that the essence of the charge of conspiracy was an agreement. That being so we are satisfied that there is no substance in the first ground of appeal.

10. Then it is suggested that, if the case was properly left to the jury, there was not a sufficient direction. This point really is bound up with the first point in that it relates to the absence, at the critical points, of any reference to the need for an agreement. The view we take is that, if they thought Wong's evidence was true, it was open to the jury to conclude that she was at the Furama Hotel looking for somebody to act as courier for these drugs, which were already in the pipe-line: the drugs were ready for shipment, or going to be ready for shipment, from Singapore and they were seeking a courier to bring them to her in Hong Kong. There seems to us to be sufficient evidence that she was a party to an agreement to import these drugs and the failure to give an express direction at the two points that I have mentioned in the Summing-up was not fatal to the verdict.

11. In our view the application of the 2nd Defendant also must be dismissed.

2nd April 1986

Representation:

A Corrigan, Q.C. & R. Whitehead for 1st Defendant

R. Whitehead for 2nd Defendant re conviction only.

2nd Defendant appearing in person re sentence.

D. S. Kilgour for Crown.