Woo Sum v. The Queen

CACC000395/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.395 OF 1968

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Coram: Hogan, C.J. and Mills-Owens J.

Date of Judgment: 23 September 1968

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JUDGMENT

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1. This is an appeal against the conviction of the appellant on charges of possession of dangerous drugs contrary to section 10 of the Dangerous Drugs Ordinance and of offering to supply dangerous drugs contrary to the same section.

2. In the court below the story disclosed by the prosecution opened with a meeting at the Lung Tuen Teahouse of Detective Inspector Chan Ping Cheung and Detective Corporal Chan Fei with the appellant. The inspector was posing as a potential buyer of dangerous drugs and the corporal was supposed to be his chemist. At this meeting, according to the prosecution evidence, the appellant offered 10 lbs. of "goods" to the inspector at $3,300 per pound. It was apparent that someone had arranged this meeting probably a police informer who was present at the meeting at the teahouse, although his identity was not disclosed and he did not give evidence. The inspector and the appellant did not recognise each other and questions were put for the purpose of identification. It appears that the price of $3,300 per pound was reached after some bargaining, the initial offer having been for a sale at $3,600 per pound.

3. The agreement reached was, at the instance of the inspector, subject to inspection and approval of the goods and apparently up to that point no direct reference had been made to dangerous drugs, the commodity merely being referred to as "goods". For the purposes of inspection the inspector and the corporal went with the appellant to a room in the Pak Kung Apartment House. They said that he went out of the room and returned in a few minutes with a carrier bag, inside which were polythene bags with blocks which were subsequently identified by the Government Chemist's certificate as containing morphine hydrochloride.

4. No evidence was given by the appellant in the court below.

5. In his findings the trial judge said that he was satisfied that the appellant had offered to supply dangerous drugs to the inspector and that the appellant knew it was dangerous drugs that were being offered. He also found that the appellant was in possession of these dangerous drugs, being fully aware of their nature, and that the quantity involved was 10 pounds.

6. The application for leave to appeal was filed by the appellant in person and he set out his grounds as follows:-

7. The instructing solicitors added a further ground:-

"That there is no or insufficient evidence for the learned trial judge to find that the appellant was the owner of the 10 pounds of drugs."

8. Counsel who now appears on behalf of the appellant has directed the main weight of his argument to the contention that the police, by acting as agents provocateur in this case, overstepped the permitted boundaries and were themselves so much responsible for the commission of the two offences of which the appellant was found guilty that he should be relieved of any guilt in the matter and the convictions in the lower court should be set aside.

9. In support of these arguments he has referred us to a number of cases, beginning with R. v. Sze Shing Chuen⁽¹⁾, where in the District Court Mills-Owens D.J., as he then was, reviewed a number of the English decisions, and having done so said that in the case before him it was impossible to say that the accused would have pursued a course of corruption if the police officer involved had not paved the way for him and, in effect, invited a corrupt approach. He went on to say (at page 32):-

"It is one thing to entrap an intending or habitual offender, but quite another thing, even in the supposed public interest, to induce someone who otherwise might never have been minded to do so to commit an offence - to induce a person to believe that he may discount whatever moral scruples he may have in the assurance that he may do so with impunity."

10. That passage follows one in which the judge had said:-

"To give an example, I would see nothing reprehensible in a police officer, who suspects a person of operating an 'illegal taxi', presenting himself as an intending passenger in order to secure evidence to lead to a conviction, provided no pressure was exerted on his part."

11. Counsel went on then to refer to the comparatively recent case of Sneddon v. Stevenson⁽²⁾, where the earlier well-known case of Brannan v. Peek⁽³⁾ and the Northern Ireland case of R. v. Murphy⁽⁴⁾ were considered.

12. The headnote to Sneddon v. Stevenson⁽²⁾ says:-

"Though a police officer acting as a spy may be said in a general sense to be an accomplice in the offence, yet, if he is merely partaking in the offence for the purpose of getting evidence, he is not an accomplice who requires to be corroborated."

13. From the facts it appears that a police officer drove his car past the appellant, a known prostitute, who was loitering in the street talking to a man; then turned the car round and stopped near the appellant in a manner which he knew from his experience would attract her attention. When she came up to the car and asked the police officer if he wanted "business", he replied "How much?", he assented to the reply and she got into the car. He then drove towards a colleague of his and she was arrested.

14. In the Divisional Court, Lord Parker, C.J. said, at p.1280:-

"No doubt this court does frown on the practice of police officers being employed to commit offences themselves, or indeed to encourage others to commit offences. Here, of course, it cannot be said, as I have already indicated, that the police officers were employed themselves to commit offences. In my judgment, the respondent did not commit an offence; in so far as it can be said that he did act so as to enable others to commit offences by making himself available if an offence was to be committed, it does seem to me that, provided a police officer is acting under the orders of his superior and the superior officer genuinely thinks that the circumstances in the locality necessitates action of this sort, then, in my judgment, there is nothing wrong in that practice being employed."

15. Waller J., concurring in the dismissal of the appeal, thought that there might be circumstances "where this sort of device is justified" but appeared to indicate that it should be restricted to serious crimes.

16. Counsel also referred us to the Hong Kong case R. v. Ngai Kam Chung⁽⁵⁾, where the headnote says:-

"A police officer is properly engaged in the detection of crime when he reasonably suspects a certain class of crime is being habitually committed, and sets a trap without his having any ground for suspecting a particular individual until the occasion of setting the trap (but) a police officer must not, if the suspect refuses to participate in a criminal act, try to persuade him to do so."

17. Counsel also directed our attention to the Hong Kong case of Assandas Chimandas Danani v. The Queen⁽⁶⁾. He relied on the statement by the judge in the lower court, in that case, that if a witness in the court below had induced the accused to obtain possession of the dangerous drugs he would be an agent provocateur and " it would be most dangerous" to rely on his evidence.

18. Counsel for the Crown has, in addition, directed us to a number of cases including Brannan v. Peek⁽³⁾ contending that the statement of Lord Goddard in that case, sometimes relied upon for the purpose of criticising the action of police in employing an agent provocateur, was qualified in the later case of Sneddon v. Stevenson⁽²⁾ as merely obiter dictum. He went on to refer us to the East African case of R. v. Wanjiko⁽⁷⁾, where the appellant had on several occasions asked one of the police witnesses if she was a Mau Mau adherent and whether she could obtain ammunition for the appellant to pass on to the terrorists. The witness passed this information to the authorities and was instructed to lay a trap pursuant to which she gave ammunition to the appellant, who thereupon was convicted for being in unlawful possession of it. The appeal against conviction was dismissed but the Court of Appeal for Eastern Africa added certain comments, in the following terms, on observations made by the trial judge (at page 387):-

"It is clear that to act as agent provocateur is never justifiable: but this situation arises in its true form only if the accused would never have committed, or attempted to commit, the crime in question but for the encouragement of the agent. Apart from mere detection of a crime already committed, there may be two other types of case, first where the police have information that a crime is likely to be committed and conceal themselves with a view to obtaining evidence of its commission, and secondly, where it appears that the offence would in any event be committed when opportunity arose and the police provide an arranged opportunity. These are both, as it seems to us, cases in which the use of a trap may be legitimate. The test is not, we think, the provision of the means to commit the offence; otherwise it would be wrong to furnish marked notes in order to prove corruption. The real questions are first, the nature of the offence: obviously it could never be right to allow a murder to be committed and then arrest the murderer: but if an offence is of such a type that it can be repeatedly committed, is difficult to prevent or detect, and may be completed on one arranged occasion without actual harm to the community being done, a trap may be not only legitimate, but the correct, method of preventing future offences. The seriousness of the offence does not seem to affect the matter. The next question is, we think, the frame of mind of the accused. If his presumed intention is to commit that single crime and then desist, it may be better, in most cases, merely to prevent the commission of the offence. If that is done it may or may not be possible to charge an attempt. But if it may be presumed that the intention is to commit, whenever opportunity offers, a series of offences of the same kind which it would be difficult to detect or prove, the case is especially suitable for a trap, and we see no objection to it."

19. Counsel also drew attention to another East African case, R. v. Santok Singh⁽⁸⁾, where the Court of Appeal, relying on Lord Goddard's observations in Brannan v. Peek⁽³⁾, criticised the methods adopted by the diamond mine industry to test the honesty of their employees although, it should be noted, they referred to the matter as one of mitigation rather than as going to the validity of a conviction. The judgment, however, does not reveal the methods employed.

20. The last of the East African cases brought to our attention was that of Rex v. Hasham Jiwa⁽⁹⁾, where the judges of appeal considered Lord Goddard's dictum in Brannan v. Peek⁽³⁾ and said that it was entitled to the greatest respect but could only be considered with reference to the particular facts of the case in which it occurred, and these were very different from the position in the case before them where the witness, a police spy, had not attempted to persuade the appellant but had simply pretended to concur in the latter's proposal. They went on (at page 93):-

"Where a police spy himself persuades someone to commit an offence he may lay himself open to adverse comments from the Bench as did the police constable in Brannan v. Peek⁽³⁾, but there was nothing of that kind in this case."

21. Finally our attention was drawn to the case of R. v. Clever⁽¹⁰⁾, decided in the Appellate Division of the Rhodesian Court.

22. In that case the appellants had stolen property from motor cars which the police had parked in avenues in Salisbury and in which jackets had been placed in a tempting position on the seats near open windows. The headnote reads:-

23. Professor Glanville Williams in the second edition of his book on Criminal Law (paras. 256 and 263) has devoted some space to this problem and the doctrine of 'entrapment' which has been developed in America: but he says, writing as at 1961, the question has not arisen in England whether it is a ground of excuse on a criminal charge to prove that the defendant was instigated to commit the act by a constable or other enforcement officer acting in his official capacity.

24. In 1965 the case of R. v. Murphy⁽⁴⁾ came before the Courts-Martial Appeal Court of Northern Ireland. The headnote reads:-

25. In delivering the judgment of the court, Lord MacDermott L.C.J. said, at p.140:-

"It would seem that the appellant had come under suspicion as a security risk before the police witnesses appeared on the scene, and that they were acting on the instructions of their superiors when they proceeded to interview the appellant and put this suspicion to the test. In what followed it may be said that they were agents provocateurs in the sense that by the deception they practised they deliberately caused the appellant to disclose information which he would not otherwise have disclosed to them. But the term is not precise. In the Report of the Royal Commission on Police Powers, Cmd. 3297/1928, p.40, an agent provocateur is taken to mean 'a person who entices another to commit an express breach of law which he would not otherwise have committed, and then proceeds or informs against him in respect of such offence'. The words 'which he would not otherwise have committed' make this a wide definition for they are apt to include not only the enticement which presents an opportunity to those who are predisposed to commit the offence in question, but also the enticement which by its nature subjects to some particular temptation or pressure those who may have no such predisposition."

At p.147 of the judgment, it was said:-

"We are, therefore, of opinion that what Lord Goddard said in Brannan v. Peek⁽³⁾ does not mean, and was not intended to mean, that evidence produced by police participation in an offence must, because of its nature, be ruled out of account. Accordingly, even if the police witnesses in this case could be considered as participating in the offence charged, so as to be guilty of it, we would not regard Lord Goddard's observations as determining how the court-martial should have acted in the exercise of its discretion."

This latter passage was cited by Lord Parker L.C.J. in Sneddon v. Stevenson⁽²⁾, and Lord Parker went on to say, at p.1281:-

"No doubt action of this sort should not be employed unless it is genuinely thought by those in authority that it is necessary having regard to the nature of the suspected offence or the circumstances in the locality. If, however, it is done for one or other of these reasons, then I myself can see no ground for setting aside a conviction obtained on such evidence or, as in R. v. Murphy⁽⁴⁾, excluding the evidence itself."

26. As the ??aw stands at present, it seems to us that the presence of a police officer who acts as an agent provocateur, in the sense of participating in the incident giving rise to the charge, would not make lawful that which was otherwise criminally unlawful and consequently an accused cannot advance it as an excuse or justification for the crime. Apart from the discretion to exclude evidence unfairly obtained, the circumstances may however afford a ground, possibly in certain circumstances a very cogent ground, for mitigating the punishment which might otherwise have been imposed.

27. Whether the evidence obtained through the use of agents provocateur, in the foregoing sense, should or should not be admitted, and whether the police should or should not incur criticism for participating in incidents giving rise to offences must depend on the circumstances of each case. In many cases the court is invited to criticise without having the benefit of the accused's own version of the facts. We would find difficulty in subscribing to the views expressed by the Rhodesian court and would not endeavour to enumerate or limit the circumstances in which it is legitimate for the police to participate in incidents giving rise to offences. There is on the one hand the danger that courts may, in this field, involve themselves in criticism made without full knowledge of the circumstances and on the other hand the danger that any attempt to get at the full facts would involve a departure from the principles of evidence which criminal courts are required to observe.

28. We would however say this, that if a police officer persuades or attempts to persuade someone to commit a crime which the latter is reluctant or not minded to commit, not only may the evidence be excluded in the court's discretion but the officer may be open to serious criticise, whether or not he is acting under the orders of his superior. But where the officer merely provides the opportunity for another to commit a crime to which the latter is already disposed it is unlikely that there would be any just grounds for exclusion of the evidence or for criticism. In this regard we agree with the views expressed in the Wanjiko case⁽⁷⁾ where the court saw no objection to an 'arranged opportunity' for a crime known to be intended to be committed. The suggestion sometimes made that a trap is permissible when the police have reason to suspect that the accused will commit the offence in question is open to the criticism that this is to invite the court to lift the screen properly protecting the accused from prejudice, in an endeavour to ascertain the full background, with the result that the court will find itself dealing with matters which should be withheld under the rules of evidence applicable in criminal cases. For example, it should be left to the accused, if he wishes, to enlarge upon the phrase 'acting upon information received'; here, of course, we are referring to those cases where the circumstances in which the trap is set do not and cannot properly form part of the evidence for the prosecution.

29. It seems questionable whether, in an attempt to lay down the circumstances in which an agent provocateur may be used, the courts are wise to do anything more than express the view that the police should, in all circumstances, act fairly and we are of the view also that where there is no indication that the accused was persuaded or induced to commit a crime which he would not otherwise have committed there is no ground for criticism. The essential requirement is that there should not, as some of the judges in the United States of America have put it, be any 'artificial propagation' of crime; that there should be no persuasion or inducement to commit a crime, of persons otherwise not minded to do so. Where, as in the present case, it is apparent that an informer has been used to place the police in contact with the accused, it is not, solely by reason of that fact, a necessary inference that there has been such persuasion or solicitation.

30. When it comes to questions of sentencing, however, the court has a very much wider discretion and it may be possible to explore more thoroughly the background with a view to determining whether there are features which would find recognition in the extent of the penalty, if any, imposed.

31. In the present case no element of unfairness was disclosed by the evidence, in our view, and accordingly the application for leave to appeal against the convictions is dismissed.

32. The application for leave to appeal against the sentences of 3 1/2 years' imprisonment passed concurrently on each charge is entirely without merit. As the trial judge observed:-

"the 1st accused was not a mere carrier of dangerous drugs for some other person. He was obtaining purchasers of bulk quantity; he was fixing prices and acting as a salesman."

The application is accordingly dismissed.

23rd September, 1968.

Representation:

Martin Lee (instructed by Wat & Fu) for appellant.

Penlington, D.D.P.P., for respondent.

(1) (1960) D.C.L.R. 18.

(2) (1967) 2 All E.R. 1277.

(3) (1947) 2 All E.R. 572.

(4) (1965) N.I.L.R. 138.

(5) (1965) H.K.L.R. 941.

(6) (1963) H.K.L.R. 50.

(7) (1954) 21 E.A.C.A. 386.

(8) (1948) 15 E.A.C.A. 97.

(9) (1949) 16 E.A.C.A. 90.

(10) (1967) 4 S.A.L.R. 256.

(11) (1955) A.C. 197.