HKSAR v. Heung Yu Nam

CACC000034/1997

1997, No.34
(Criminal)

IN THE COURT OF APPEAL OF THE HIGH COURT

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Coram: Hon Nazareth, V-P, Mayo, JA and Cheung, J, in Court

Date of hearing: 18 September 1997

Date of delivery of judgment: 17 October 1997

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J U D G M E N T

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Cheung, J. (delivering the judgment of the court)

The charges

1. The Applicant who was the 3^rd Defendant in the criminal trial in the District Court was convicted by H.H. Judge Chua of one charge of conspiracy and two charges of handling stolen goods.

2. The conspiracy charge was that the Applicant and Heung Hing Lung (the 1^st Defendant in the criminal trial) between 1^st January 1996 and 29^th April 1996 in Hong Kong, conspired together with other persons unknown, to have in their possession forged, false or unlawfully obtained or altered travel documents, namely British National (Overseas) passports ("BN(O)") and B.D.T.C. passports.

3. The first handling charge (3rd charge) was that the Applicant and the 1^st Defendant on 8^th February 1996 handled a stolen BN(O) passport in the name of Li Yun-shing, Jeremy.

4. The second handling charge (4^th charge) was that the Applicant and the 1^st Defendant on 12^th February 1996 handled a stolen BDTC passport in the name of Tsang Wai-kit, Risky.

Admitted facts

5. The prosecution's case against the Applicant was based on agreed facts. There were taped conversations between the 1^st Defendant and an ICAC informant called David. These were produced in evidence by agreement. An admission under s.65(c) of Criminal Procedures Ordinance by the Applicant was also made. The admitted facts were :

(1) The Applicant is commonly called "Dou Si" or "Tau-Sze". The Applicant knows the 1^st Defendant who is his blood relative.

(2) On or about the 5^th February 1996, Jeremy Li Yun-shing's British National (Overseas) BN(O) passport, was stolen. This stolen BN(O) passport (Exhibit P2) was delivered to an ICAC informer called David on 9th February 1996, in exchange for HK$2,500.

(3) In about September 1995, a British Dependent Territories (BDTC) passport holder (TSANG Wai-kit, Risky) discovered that his passport had been stolen from his home. On 12^th February 1996, this stolen BDTC passport (Exhibit P3) was given to David for $2,500.

(4) On 9^th April 1996, two passports held in the name of POON Sau-ming were stolen. They were respectively, a BDTC passport and a BN(O) passport. The two passports (Exhibit P4 and P5) were handed to an ICAC officer.

(5) On 8^th February 1996, David telephoned the 1^st Defendant to arrange to meet and to collect two stolen BN(O) passports to be purchased by him.

(6) On 9^th February 1996, David made another telephone call to the 1^st Defendant to meet at Sun Keung Kee Resturant, Tai Wai, Shatin that day. The 1^st Defendant said that the two BN(O) passports belonged to two men.

(7) After David was given $5,000 by the ICAC for the purchase of the two BN(O) passports, he met the 1^st Defendant that evening. While they were having dinner at the Wah Kee food stall next door to the Sun Keung Kee Restaurant, the Applicant joined them.

(8) At that time the Applicant handed a brown envelope to the 1^st Defendant, who passed it on to David. David opened the brown envelope (Exhibit P2a) and saw in it, a red coloured passport (P2). He asked why there was only one book. The 1^st Defendant told him to take this book and the other book would be delivered later. David gave the 1^st Defendant $5,000 as the agreed payment for the two passports. Then David left the 1^st Defendant and the Applicant.

(9) That night David met an ICAC officer and gave him the envelope and the passport.

(10) On 12^th February 1996, David and the 1^st Defendant went to the Piggy Pub at Energy Plaza, Tsimshatsui East. Sometime after 9.00 p.m. the 1^st Defendant told David to follow him. When they got outside, the 1^st Defendant went up to a white private car EU 6356 driven by the Applicant which was parked on the road just outside Energy Plaza.

(11) The Applicant left his car and went into Energy Plaza with the 1^st Defendant. On the steps leading to the basement of the building, the Applicant handed the 1^st Defendant something. Then the Applicant and the 1^st Defendant returned to the street and the Applicant got back into his car and drove away. The 1st Defendant then handed a passport (P3) to David.

(12) That evening David passed P3 to an ICAC undercover officer.

(13) On 2^nd April 1996, David telephone the 1^st Defendant to arrange a meeting that evening.

(14) In the evening of 2^nd April 1996, the 1st Defendant was with David.

(15) On 9^th April 1996 on the telephone to David the 1^st Defendant offered to sell him a BDTC and a BN(O) passports.

(16) On 10^th April 1996, there was another telephone call between the 1^st Defendant and David.

(17) On 10^th April 1996, at the Fung Tak Restaurant the 1^st Defendant handed two passports, P4 and P5 to David.

Evidence of the Applicant

6. The Applicant gave evidence. On 9th February 1996, he met the 1^st Defendant. The Applicant was driving and 1^st Defendant, who was holding something in his hands, put the thing on the back seat of the car. Later that day, the 1^st Defendant called the Applicant that he had left something behind in his car and asked him to bring the things to him. The Applicant agreed to do so and met the 1^st Defendant at the Wah Kee Food Stall. He handed the 1^st Defendant a brown envelope and a bottle of lubricant which he found at the back seat.

7. On the evening of 12^th February 1996, the Applicant was telephoned by the 1st Defendant. The 1^st Defendant told him that he was in Kowloon with a friend. He had left something very important at home. The 1^st Defendant asked him to assist by going to his home and collect that thing and deliver to him. The Applicant agreed to do so. He was given a dark brown envelope by the 1^st Defendant's Filipina amah in the 1^st Defendant's home. He then went to the Energy Plaza to meet the 1^st Defendant and gave him the envelope. He denied that he knew that the envelopes contained the passports.

The decision

8. H.H. Judge Chua after reviewing the evidence and referring to cases on the co-conspirator's rule such as R. v. Donat 82 Cr. App. R.173, Tripodi v. R. [1961] 104 CLR 6 and Ahern v. The Queen [1988] 62 ALJR 440, came to the conclusion that the prosecution had proved beyond reasonable doubt that a conspiracy as charged was in existence in February 1996. The common design of that conspiracy was to supply the passports. She held that, "I infer from this evidence that the Applicant had an agreement with the 1^st Defendant to supply those passports." She further considered the taped conversation between the 1^st Defendant and David on 2^nd April 1996 (Exhibit P8). She held that "P8 is admissible evidence to confirm the Applicant's role in the conspiracy and that he was still in the conspiracy in April 1996."

Co-conspirator's rule

9. The first ground of appeal was that the learned judge had erred in law in stating that the evidence which was found to prove the existence of the conspiracy as charged was also evidence from which it could be inferred that the Applicant had an agreement with the 1^st Defendant to supply the passports. Mr Delaney, Counsel for the Applicant, argued that although there was little doubt that all the evidence so referred to would be admissible against the 1^st Defendant, such evidence was not admissible as against the Applicant to establish his agreement to supply the passports.

10. In Ahern, Mason C.J. delivering the judgment of the High Court of Australia stated the traditional use of the evidence of a co-conspirator :

" 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."

Used in this way the acts and declarations of the co-conspirator will prove an agreement but not the participation by the defendant. The learned Chief Justice then moved one step further and considered how such evidence can be used not merely to prove an agreement but also participation by the defendant in the agreement. At page 441, he stated that :

" However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination , although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation."

Then at page 444, he concluded that :

" In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant."

Hong Kong position

11. In Hong Kong Ahern was considered by the Court of Appeal in R. v. Au Shui Yuen Alick [1993] 2 HKC 219. In respect of the "reasonable evidence" test in Ahern, our Court of Appeal preferred the "prima facie case" test. Yang C.J. delivering judgment of the Court held that :

" In applying the prima facie case test, we would state the co-conspirator's rule thus - before the evidence of the words and acts of the accused's co-conspirators, done in furtherance of the conspiracy, is admissible against the accused, a foundation for its reception must be laid. This takes the form of independent evidence which links the accused to the conspiracy charged. This evidence must be independent in the sense that it is evidence other than that admissible only pursuant to the co-conspirator's rule (ie evidence of the co-conspirator's doings relied on for its hearsay value). This evidence must of course be admissible against the accused: see Gillies, The Law of Criminal Conspiracy (2^nd Ed) p 186. The requirement that the evidence must be independent is logical and needs no judicial authority to support it. As the words and acts of a co-conspirator may be hearsay evidence, some other evidence must be adduced to 'shore up' the hearsay evidence, otherwise the hearsay evidence 'would lift itself up by its own bootstraps to the level of competent evidence': see Glasser v US (1942) 315 US 60,75, cited in Ahern (1988) 62 ALJR 440, 442.

...

The next issue which has to be considered in respect of the rule is co-conspirator's doing and saying may be against the accused in advance of independent evidence establishing the conspiracy and his implication in it: vide R v Murphy (1837) 8 Car & P 297; 173 ER 502."

Independent evidence

12. The conversation between David and the 1^st Defendant in February 1996 clearly established a conspiracy. Applying the formulation to the present case, was there independent evidence linking the Applicant to the conspiracy? We are of the view that there was. The Applicant delivered two passports to the 1^st Defendant on 9^th and 12^th February 1996. The 1^st Defendant handed the passports to David. The learned judge having heard the Applicant rejected his explanation why he was present on the two occasions when the two passports were handed to David by the 1^st Defendant pursuant to earlier arrangements between them. It was argued that the judge's reasoning for rejecting the Applicant's evidence was not supported by the evidence. We disagree. The learned judge having seen the witnesses and considered the evidence, was entitled to reject the explanation of the Applicant and find that he was a party to the conspiracy. Put simply, she decided that it was too much of a co-incidence for the 1^st Defendant to leave behind the passports twice within a four day period and ask the Applicant to collect and deliver them to him. These were the very passports that were ordered by the informant. The learned judge further accepted the evidence of PW1 (an ICAC officer) that on 12^th February 1996, the Applicant handed a dark red book to the 1^st Defendant instead of an envelope. These were conclusions that she was entitled to draw from the evidence.

Lucas direction

13. Attack was mounted on the part of the judgment which stated that "I believe the Applicant has told deliberate and material lies from realisation of guilt. See R. v. Lucas [1981] Q.B.720." It is not necessary for the learned judge sitting without a jury to direct herself on law or refer to the Lucas direction. The purpose of the Lucas direction is merely to assist jurors who are lay persons on how they should assess lies told by a defendant. In the present case, the learned judge cannot be criticised for referring to Lucas. She was only emphasising that the lies were deliberate and related to a material issue : in other words, the lies were not unconnected with guilt.

Telephone conversation of 2^nd April 1996

14. Criticism was made on the learned judge's acceptance and assessment of the evidence of the 1^st Defendant and David in the telephone conversation of 2^nd April 1996. Two points were made. First, the words of the 1^st Defendant were not in furtherance of the conspiracy and hence not admissible under the co-conspirator's rule. Second, the conversation was not admissible to show the participation by the Applicant.

15. On the first point, the law is clear, it has been re-stated in Au Shui Yuen, Alick :

" That the co-conspirator's acts and statements must be in furtherance of the conspiracy is not in dispute. Nor is it a matter for argument that the co-conspirator's words and acts should be done during the currency of the conspiracy."

16. Mr Delaney argued that P8 was a narrative record of a previous conversation which was not recorded. It is necessary to examine that conversation. On 2^nd April 1996, David asked the 1^st Defendant to organise a meeting with Tau-Sze. Tau-Sze was, according to the Admitted Facts, the Applicant. The conversation went on :

"164B : Last time, wasn't it mentioned that he, er, would be bringing 2 books to me?

165C : Yeah.

166B : Those 2 passports! (C: Yeah.) Are (they) still here?

167C : No idea. Not yet, not having asked him about it!

168B : You'll take the opportunity to ask him about this as well.

169C : That's fine!"

(B is David, C is the 1^st Defendant).

17. Clearly the learned judge was entitled to draw the inference from the conversation that it was the Applicant who had mentioned that he would be bringing the passports to David. In this conversation the 1^st Defendant, in response to the suggestion by David, agreed to ask the Applicant about this matter. This must be a statement in furtherance of the conspiracy.

18. The earlier evidence of the Applicant delivering the passports was the independent evidence linking the Applicant to the conspiracy which continued until April 1996.

19. It was further argued that the only evidence showing participation by the Applicant was this telephone conversation and if this was rejected, then there was no evidence of participation by the Applicant. We disagree. The evidence of participation was the delivery of passports by the Applicant pursuant to an agreement to supply illegally obtained passports.

Others matters

20. It was also submitted that what David suggested to the 1^st Defendant amounted to an entrapment and we must assess the quality of the evidence carefully. We do not see any substance in this argument, we only need to refer to the Queen v. Liu Chun-fai [1987] HKLR 1032 where a distinction is drawn between police incitement which resulted in the commission of the offence (or perhaps a more serious offence) and undercover police investigation which might be absolutely essential in certain types of crime if the police were to do their work properly.

21. It was further submitted that the learned judge was confused as to the nature of the evidence since the 1^st Defendant also faced another charge of conspiracy (1^st charge) which he had pleaded guilty. This charge related to the British passports. It is clear from the Admitted Facts that the facts were related to the charges that the Applicant was facing and we see no ground that the learned judge might have been confused in the assessment of evidence. Other evidence relating to passports belonging to Poon Sau Ming which was not connected to the charges faced by the Applicant was specifically excluded by the learned judge in her consideration; she was fully aware that the prosecution had offered no evidence against the Applicant on the 5^th charge which related to these passports.

Evidence admissible

22. In our view the conversations between David and the 1^st Defendant in February and April 1996 were admissible evidence showing the existing of a conspiracy and the Applicant's participation in the conspiracy. The learned judge was correct to conclude that the Applicant was guilty as charged.

Handling charges

23. As to the two handling charges, the learned judge held that "I also infer from the evidence, the Applicant knew or believed passports P2 and P3, were stolen goods when he came into possession of them".

24. Mr Delaney argued that the learned judge had failed to make any separate consideration of the evidence which related to the conspiracy charge and which related to the handling charge. The truth of the matter is that it was common ground that these two passports were stolen from their owners. These passports were handed by the 1^st Defendant to David on the two evenings. The learned judge found that the Applicant delivered them to the 1^st Defendant. She rejected his evidence that he did not know there were passports in the envelopes. In fact she found that on the second occasion, the Applicant delivered a passport and not merely an envelope to the 1^st Defendant. She also rejected the Applicant's denial the that he knew they were stolen passports. She was clearly entitled to find that the handling charges were proved. We see no reason to interfere.

Conclusion

25. The application for leave to appeal against conviction is dismissed.

Representation:

Mr Robert S.K. Lee, Senior Government Counsel, for Director of Public Prosecution

Mr A. Michael Delaney, inst'd by M/s Paul Kwong & Co., for Applicant