R. v. Mo Lee Kuen

CACC000338/1990

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Coram: Sir T.L. Yang, C.J., Fuad, V-P. & Power, J.A.

Date of. Hearing: 21 October 1992

Date of Judgment: 13 November 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Mo Lee Kuen, was jointly indicted with another man of conspiracy, between lst December 1987 to lst November 1988, to traffic in dangerous drugs. After a trial in the High Court before Deputy Judge Leonard (as he then was) and a jury, he was convicted upon the unanimous verdict of the jury on 7th June 1990 and sentenced to24 years' imprisonment. From that conviction he seeks leave to appeal. His co-accused was acquitted after a successful submission of no case to answer.

2. The case for the Crown was that the two accused, together with others named in the indictment and others not so named, conspired to obtain a large quantity of almost pure heroin in Hong Kong which would be taken to Australia for sale, in a yacht to be purchased in the Philippines.

3. The principal evidence for the prosecution against the applicant was given by three men named as co-conspirators in the indictment, all of whom had pleaded guilty and were awaiting sentence. Two of the men, Roberto Baptista and Wong Hon Man, were found in a yacht which was intercepted by the police, still in Hong Kong waters, on the evening of 4th September 1988. There were a number of other persons on board, including four police officers, undercover, pretending to be crew. After a search by officers from the Narcotics Bureau, inside the boat's water tanks, were found approximately 44 kilos of heroin. The two conspirators mentioned were arrested on that occasion. The third conspirator who gave evidence wasLau Yau Yuen and he was arrested later in the same month. There was no corroboration of the evidence of any of these alleged accomplices.

4. Lau Yau Yuen (PW1) told the court that he had known the applicant for the past four or five years and that it was the applicant who had first mentioned the possibility of getting drugs to sell in Australia. They had previously had an ordinary business relationship. In April or May 1988 the applicant had contacted him and they met in an hotel in Tsimshatsui. The applicant told him that he had just come back from the Philippines where he had met a Filipino named Robert who could buy a yacht which would be shipped to Hong Kong to transport drugs to Australia. The yacht could carry, the applicant told him, about 60 blocks or units.

5. After the first meeting, the witness said, he had gone to look for a man named Lau Kwok Hung to see whether he might be interested in joining the enterprise. Theapplicant had himself mentioned a man called Chan Wah at the first meeting. Not long after, at a second meeting with the applicant, it was arranged that the witness and the applicant would be responsible for providing 30 units and Chan Wah the other 30 units. A price of $85,000 per unit was mentioned. It was left that the applicant would contact the Filipino in the Philippines if any problem arose over the allocation or the financing. At that meeting it was suggested that 63 units, costing about $5.353 million, would be procured. Three of those units would be put up by an Australian.

6. The witness said that before these meetings took place the applicant had told him that if drugs could be shipped to Australia, they would be worth Australian $80,000 a unit. The applicant had also told him that he could arrange to sell the drugs in Australia.

7. At a later meeting between the applicant, Chan Wah and himself, which according to the witness took place in about June 1988, he handed just over $260,000 to Chan in cash. This money would be taken by him to the Filipino according to previous arrangements, together with another $140,000 - $400,000 in all.

8. The witness said that when Chan went to the Philippines, the applicant left for Australia at about the same time. The applicant told the witness that he had to go there to make arrangements for the collection of the goods, and that although the drugs might be sold within a week, it would take some time for the proceeds to be remitted, in instalments, to Hong Kong. The yacht would take about40 days to do the journey from Hong Kong to Australia. Eventually, the witness said, he was hoping to receive a total of $4 million. The Filipino was to receive $600,000 first and later the balance of $1.4 million.

9. The witness went on to say what happened when the yacht arrived and it was loaded, in the event, wit 65 units. He had been responsible for getting the cargo of drugs together but was not involved in loading them on to the boat.

10. On 25th August 1988, according to the witness, the sum of $200,000 was deposited into his bank account. He had asked the applicant, who was in Australia at the time, to deposit $300,000 into his account but only $200,000 was forthcoming.

11. Roberto Baptista (PW2) told the jury that he first met the applicant in the Philippines some time inJune 1988. Three other men were present at the sea-food restaurant where they met. They first started talking about marijuana but when one of the men asked the applicant what his views were, the applicant said: "I have decided on No. 4 I will leave the consignment to you." The applicant said that he would handle the Australian side when the arrangements for the drugs to be taken to Australia were discussed. The applicant had been introduced to the witness as "Tommy" and when he asked the applicant whereabouts in Australia the drugs would arrive, he was told that that would be no problem provided the drugs reached Australia.

12. At an identification parade held in July 1989 at the Mid-Levels Police Station, he picked out the applicant as "Tommy". He told the court that he was surprised to see the applicant there because he thought he was in Australia. That was why he could not identify the applicant straightaway. He had walked up and down' the line for a few moments before making his identification but he said that there was no doubt in his mind that the applicant was the men he had referred to as "Tommy".

13. That was what he told the jury. One of the agreed facts was that the record of the identification parade showed that the witness had said, when picking out the applicant: "I think No. 5 looks likely yes, it is Tommy. It is Tommy. I don't know his Chinese name. I am sure, but it has been over a year." He told the jury that there was no doubt in his mind that the man he had identified as "Tommy" was the man he had met in the Philippines in 1988 - they had been together, according to his evidence, for between 2 and 2 1/2 hours.

14. Wong Hon Man (PW3), the third alleged accomplice gave evidence about an incident in the airport cafe on 21st July 1988 when he was about to fly to the Philippines with a man name Chu Tsz Hei another-co-conspirator. Soon after he began to give evidence, he was asked by Crown Counsel to look around the court to see if he recognised anyone he knew. He said he could recognise Wong Tim Keung (the co-accused who was later acquitted) and added, "and another person looks very familiar to me. I can't remember where I saw him". Then he said: "I have a faint recollection I met him at the airport prior to this case". He said there had been four men sitting at a table in the cafe, the acquitted co-accused Chu Tsz Hei, himself "andanother person whom I said I have a faint recollection ... at the time the person I saw was of fatter built" and after the applicant had stood up in the dock "the person I saw was not that thin". When asked what made him think that he might have seen the applicant at the airport, he said: "His features resembled that person, or slightly resembled that person, slightly. The hair style is different." He had been with that person for about 20 - 30 minutes. He said he was on his way to the Philippines with Chu Tsz Hei to do a job - he had been told only that it was something to do with getting on board a boat.

15. The witness attended an identification parade on 4th July 1989 at the Upper Levels Police Station. He picked out two men. He said: "It seems to me I have seen both of them at the airport". Then he said: "It seems to me I got an impression of his face but I could not be certain." The applicant was the second person he picked out. The two men looked like each other. In cross-examination he agreed that it might very well be that it was the other man he picked out who he had seen at the airport. The next question and answer was:

"Q.    The best you can do is really to say there is some resemblance between the man sitting in the dock and the; man you saw at the airport?"

A.    Yes."

16. We mention here that it was an agreed fact that the applicant was at the airport on 21st July 1988 but there is no admission as to where he was in the airport or at what time. It was also an agreed fact that on 15th June 1988, the applicant and Chu Tsz Hei booked into the Silahis Hotel in Manila and that the applicant checked out of the hotel on 17th June 1988 and returned to Hong Kong on the same day.

17. The applicant gave evidence that after his arrest in Sydney, Australia, on 20th October 1988 he had returned voluntarily to Hong Kong on 14th June 1989. He told the jury his background. He had had business dealings with Lau Yau Yuen. He said that when one day he had told him that his girl friend's student visa had been approved and that he would be going with her to Australia, Lau had said that he had a large sum of money in Australia which he had placed there as part of his arrangements for emigrating there, but since his application had not been approved, he wanted to bring the money back to Hong Kong. In view of restrictive financial regulations Lau asked him if he could help. He explained how he had remitted money to Hong Kong for Lau. But he had made up his mind to cheat Lau out of half the money he had been given in Australia to remit to him. He had to come back to Hong Kong over matrimonial problems and so he was obliged to see Lau and explain to him about the money. He had then handed over $800,000 to Lau. The total sum he had given to Lau was $1.1 million.

18. The applicant said he had flown to Australia on 21st July. He agreed he had gone to the Philippines in June and stayed at a hotel (he could not remember the name of it) for about two nights. He had gone there to help his girl friend obtain a residence certificate to reside there. He had had nothing to do with Baptista or the drugs - he was there to see if he could arrange some illegal way of getting his girl friend the right to live in the Philippines - but nothing had come of it.

19. This is a review of only the main features of the evidence for the prosecution and the defence.

20. The first ground of appeal relates to the evidence of Lau Yau Yuen (PW1). He had said during his evidence that a man named Lau Kwok Hung had been in a position to supply a substantial amount of heroin. He had known him for a few years. They had had an extremely good relationship. He agreed that he had given two statements to the police about the conspiracy and that in both statements he had deeply implicated Lau Kwok Hung. He agreed that when he had been shown a photograph by a police officer who had said it depicted Lau Kwok Hung, he had responded by saying that the photograph was not that of the Lau Kwok Hung to whom he had been referring in his statements. This was, he said, because he had not wanted falsely to accuse anyone. He denied that he was lying to the police to protect Lau Kwok Hung.

21. It was common ground that on 23rd October 1988 he had positively identified a man in a photograph he had been shown by an officer of the Narcotics Bureau as being the Lau Kwok Hung he had implicated in the conspiracy in his statements and that on 27th April 1989 when he was shown the same photograph he had said that it was not that of the Lau Kwok Hung he had previously identified. These facts appeared in the statement of Det. Chief Inspector Boucher and complaint is made that they were not disclosed to the defence. Moreover, it is suggested that when Mr. Boucher, was being cross-examined, his evidence had been misleading because he had failed to mention the earlier positive photographic identification on 23rd October 1988 and thus had led the jury to believe that Lau Kwok Hung had always been consistent in this respect. The relevant part of the transcript of Mr. Boucher's evidence is at page 260:

"Q.    And is it correct that Mr. Lau Yau Yuen was asked to identify Mr. Lau Kwok Hung who was arrested?

A.    By way of photograph. Yes.

Q.     And Mr. Lau Yau Yuen said that - having seen the photograph, he said that that was not the Mr. Lau Kwok Hung who was dealing with him in drugs?

A.     Yes."

Mr. Boucher then agreed that the police had heard allegations about Lau Kwok Hung being a drug trafficker from sources other than the witness.

22. The judge referred to this matter in his summing up at pages 11-12 of the transcript:

"Now, Mr. LAU Yau-yuen was asked where he got the money for these transactions, and he said that he had half-a-million left over from his trading business. He told you that he had complete trust in the accused, but he did not mention the accused's name to LAU Kwok-hung, nor did he mention LAU Kwok-hung's name to the accused. The only way he contacted LAU Kwok-hung, whom he had known for 4 years by that time, was by telephoning the number ending 2913. It was LAU Kwok-hung who supplied both the cars which, as you know, were used at a later stage. I mention LAU Kwok-hung because of a point which the defence particularly wants you to take into consideration, and that is the alleged failure by the witness LAU Yau-yuen in March 1989 to identify LAU Kwok-hung.

You will remember that the evidence was that he was shown a photograph of an arrested person called LAU Kwok-hung, and he said it wasn't the LAU Kwok-hung about whom he had been speaking, and it was suggested to you by the defence that that was a deliberate lie in order to protect LAU Kwok-hung because other evidence indicates that it must have been the same man, and I shall say more about that to you a little later."

23. Later in the summing up, at pages 24-25, the judge said this:

"But [Mr. Boucher] was able to give the evidence that Mr. Lim wanted - that Mr. LAU Yau-yuen was arrested on the 22nd October and the car was seized at the same time. He gave a statement, as a result of which the police tried to trace LAU Kwok-hung, and LAU Kwok-hung was arrested by the I.C.A.C. in March 1989 and handed over to Inspector Boucher. ...

When he was asked whether LAU Kwok-hung was a notorious drug trafficker in the sense that allegations have been made to that effect, he said 'Yes' - he was. The arrested person LAU Kwok-hung, whose sister was the registered owner of the red 'Honda' which figured in this case, was a notorious drug trafficker.

Of course, as I have mentioned, the significance of that evidence, according to the defence, is that when he refused to identify a photograph of that arrested person, he can't have been telling the truth, and that is a factor to take into account when you are deciding whether or not to accept him as a witness."

24. The judge returned to the matter at pages 50-51 of the transcript of the summing up:

"I have already spoken to you about the question of Mr. LAU Yau-yuen declining to identify an arrested person who, according to Mr. Lim, must inevitably be regarded as his co-conspirator LAU Kwok-hung. Mr. Lim says if you find he was deliberately lying about that, that has to have an effect on your assessment of his credibility. All I will say about that is to remind you of what I said at the very beginning that you are entitled to accept part of a person's     evidence and reject another part of his evidence if you so choose. As the judges of the facts, you are entitled, and expected, to make use of your knowledge and experience of life generally, and of life in Hong Kong, and to apply your common sense to the matters of fact that you have to decide."

25. In arguing the first ground of appeal before us, Mr. Hemmings (who did not represent the applicant at the trial) was at pains to emphasise that he was not suggesting that either Crown counsel or Mr. Boucher had deliberately kept back from the defence the fact that Lau Yau Yuen had positively identified Lau Kwok Hung in the photograph shown to him on 23rd October 1988. This informaton may not have been in the hands of counsel when he was conducting the prosecution of the applicant. As to Mr. Boucher's response to the questions he was asked by Mr. Lim, then appearing for the applicant, Mr. Hemmings acknowledged that his answers must to some extent have been dictated by the form of the questions put to him. It was simply the fact that the prosecuting authorities had had the information about the earlier identification in their possession and the defence had known nothing about it.

26. Mr. Hemmings suggested that defence counsel would have had powerful ammunition with which to cross-examine the witness had he been aware of the full facts. He would have been able to demonstrate to the jury that this accomplice, whose evidence was not corroborated, was prepared to lie about one co-conspirator for reasons of his own and could thus not be trusted when he implicated another co-conspirator. Counsel contended that it was impossible to say, and wrong to speculate, what view of this accomplice the jury would have formed had they known what had happened on 23rd October 1988.

27. The judge, as will have been seen, dealt with the matter fully in his summing up. The defence suggestion was that the witness had told a deliberate lie. It seems to us that in the light of the evidence as a whole, the jury must have realised that the witness was indeed lying when he said that the Lau Kwok Hung he had implicated was not the man in the photograph he was shown on 27th April 1989. After all, he had known Lau Kwok Hung very well. The man who had been arrested on information he had given was named Lau Kwok Hung, an apparently well-known drug trafficker. One of the cars used to transport the heroin at one stage was registered in the name of Lau Kwok Hung's sister. We cannot believe that it would have taken the matter any further had defence counsel been able to cross-examine the witness about the 23rd October 1988 identification.

28. There was certainly a failure by the prosecution to disclose to the defence material evidence which should have been disclosed but we are entirely satisfied when all the evidence is taken into account that no prejudice whatever was occasioned to the applicant by what was clearly an oversight.

29. The next and final ground of appeal complains about one matter in the summing up. It is said that the judge had failed properly to direct the jury with regard to one aspect of the testimony of Wong Hon Man (PW3). His evidence has been summarised above. It is said that the quality of his identification of the applicant was so poor that the jury should have been directed wholly to disregard it; instead the judge had directed the jury that they "were entitled to give it such weight as you think fit."

30. This is what the judge said on this matter, at pages 21-22 of the transcript of the summing up:

"Members of the jury, you may recall that Mr.Wong said that the persom whom he thought resembled the accused looded as if he was going to board an aeroplane because he was elegantly dressed. He knew nothing more than that.

Members of the jury, it is fair that I should tell you that if there were a case where that was all the identification that was before the jury, I would not even let them take the matter any further because the witness is saying no more than that he thinks that the accused resembles somebody he saw for such a short time so long ago. But, of course, that is not the only evidence in the case, and whilst you may not think it has much weight, you are entitled to give it such weight as you think fit, bearing in mind all the other evidence in the case."

31. We do not feel it necessary to say anything more than that in our judgment no legitimate criticism can be made about the way the judge dealt with this evidence, such as it was, in view of the admitted fact that the applicant was at the airport on the day in question.

32. We feel we cannot take leave of this case without commenting upon grounds 2-6 of the Perfected Grounds of Appeal which Mr. Hemmings, in the event, did not proceed with. These had complained about the conduct of the defence by the applicant's counsel at the trial. The complaint had been based upon the fact that it was common ground that Roberto Baptista (PW2) and Wong Hon Man (PW3), before attending the identification parades at which they had severally identified the applicant, had each been shown photographs of a number of Chinese men and that they had identified one of them as the applicant. The grounds said that had the jury known this, it would have seriously undermined the evidence of both these identifying witnesses. The failure of counsel to cross-examine the two witnesses upon these matters had been, it was said, "a serious error of judgment."

33. In R. v. Tam Kwok Wai, Criminal Appeal No. 414 of 1990, 2nd September 1992 (unreported), this court addressed the proper approach of an appellate court to complaints about the competence of defence counsel at the trial. This is an extract from pages 5-8 of the transcript of the judgment of the court:

"    The principles upon which an appellate court will intervene where an appellant seeks to have his conviction set aside on the ground that counsel representing him at the trial conducted his defence incompetently or contrary to instructions are well settled. Several Hong Kong cases have discussed and applied these principles. We will not refer to them all. In R. v. Siu Hon Sum [1989] 1 HKLR 327, Silke, V.P. giving the judgment of the court cited, with approval, at p.335, this passage from the judgment of Cooke, J. in the New Zealand case of Pointon v. R. [1984] 1 CRNZ 348:

'A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel's advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account.'

And at page 337, Silke, V.-P. had this to say:

So, an applicant who relies upon dereliction of duty on the part of his advocate and legal advisor as a ground of appeal must have a genuine sense of grievance engendered by a clearly shown very high degree of negligence on their part so radical' as to give rise to a miscarriage of justice or, at the very least, to arouse in the mind of an appellant court a well founded feeling that the convictions should be quashed.'

Another case in which the authorities are reviewed is R. v. Ho Shu Chung, Criminal Appeal 210 of 1988, 26th September 1989 (unreported). In that case, at p.14, Power, J.A, on behalf of the court, said:

'We are respectfully satisfied that the law is correctly stated in Ensor (1989) 89 Cr App R 139, and that except in the case of flagrantly incompetent advocacy the court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of the trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes.'

In R. v. Yu Fung Hei [1990] 1 HKLR 355 this court (Kempster, J.A. gave the judgment) found the errors made by counsel so radical that the conviction was held to be unsafe and unsatisfactory. What had taken place, in the court's view, had amounted to a material irregularity in the course of the trial. See also the judgment of Power, J.A. in R. v. Zee Tan, Criminal Appeal No. 48 of 1990, 23rd may 1991.

Other jurisdictions adopt the same approach. We find a useful summary of. the applicable law in the decision of the Court of Criminal Appeal of New South Wales in Birks (1990) 48 A Crim R 385, where at p.392, Gleeson, C.J. said this:

'The relevant principles may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.'

The principles upon which these authorities are founded concern the proper role of counsel in our system of trial, the scope of his authority and his rights and duties while his mandate remains unrecalled. These are conveniently reviewed in Halsbury's Laws of England (4th edn., reissue, 1989) vol. 3(1) paras.518-519. When a defendant engages the services of counsel he must be taken to have accepted the ordinary relationship of counsel and client and the consequences which flow from that relationship. With very great respect to him, it seems that counsel who put his name to the notice of appeal shares the applicant's misconception (see paragraph 2) that a defendant can dictate to his counsel what questions he must ask a witness and, if he does not obey, this will be a ground of appeal. Of course this is not so. Counsel's advocacy must be shown to have been 'flagrantly incompetent' to avail a disappointed defendant."

34. Ho Shu Chung was referred to by Macdougall, J.A. in R. v. Chan Kung Ling, Criminal Appeal No. 107 of 1990, 3rd September 1991 (unreported) where he said this, at the end of his judgment:

"We do not accept that defence counsel was derelict in his duty as suggested ... Lest it be thought that by having embarked on a detailed analysis of this ground of appeal we encourage submissions of this nature we think we should issue a timely reminder that except in the case of flagrantly incompetent advocacy

this court will not set aside a conviction on the ground that counsel has made a decision or pursued a course in the conduct of a trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes."

See also the judgment of this court delivered by Kempster J.A. in R. v. Cheung Chi Ming (1988) 1 HKLR 431.

35. While we mean no disrespect to Mr. Hemmings who was himself responsible for drafting the grounds of appeal which he abandoned before us, we feel bound to say that, it was most unfortunate that he allowed himself to formulate those grounds in the state of the authorities in Hong Kong, England and a number of other Commonwealth jurisdictions. Defence counsel was unnecessarily obliged to go on affidavit to defend his conduct which many would think was perfectly sensible (see the commentary on photographic identifications by Bruce and McCoy in Criminal Evidence in Hong Kong, 2nd edition, pages 335-336). Averments of this kind should never be made by practitioners before reading and understanding the relevant authorities.

36. We dismiss the application for leave to appeal against conviction.

Representation:

Mr. John Hemmings (Chan & Kong) for the Appellant

Mr. T.H. Casewell (Crown Prosecutor) for the Crown