The Queen v. Chan King Chi and Others
Read the full judgment text of DCCC 320/1974 on BabelCite. This District Court judgment was delivered on 29 September 1975.
1. I have to rule upon applications that certain substantive counts, i.e., counts 3, 5, 6, 9, 10, 13 and 14, be tried separately from the remaining counts. Miss Chua, who appears for the 26th, 27th and 30th accused, and who has applied for severance of the 5th and 6th counts, which concern the 26th and 27th accused, has referred me to Archbold: Pleading, Evidence and Practice in Criminal Cases, 38th (1973) edition, paragraphs 4072 and 4073, the case of R. v. Griffiths and others (1) (a decision
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON (sitting at Central Magistracy) CRIMINAL JURISDICTION CRIMINAL CASE NOS. 320 & 335 OF 1974 -----------------
----------------- Coram: A.L. Leathlean, District Judge Date of Judgment: 29 September 1975 ----------------- RULING ----------------- 1. I have to rule upon applications that certain substantive counts, i.e., counts 3, 5, 6, 9, 10, 13 and 14, be tried separately from the remaining counts. Miss Chua, who appears for the 26th, 27th and 30th accused, and who has applied for severance of the 5th and 6th counts, which concern the 26th and 27th accused, has referred me to Archbold: Pleading, Evidence and Practice in Criminal Cases, 38th (1973) edition, paragraphs 4072 and 4073, the case of R. v. Griffiths and others(1) (a decision of the Court of Criminal Appeal in England) and the case of HUI Shu-tam and others and the Queen(2) (a decision of the Full Court). In Griffiths' case it was said that, except in simple cases, a conspiracy count should be tried separately from substantive counts. In HUI's case the Full Court approved the words of the Court of Criminal Appeal in England in an earlier case - R. v. Dawson and Wenlock(3) - and spoke of what it described as "the danger - and indeed, the undesirability - of combining a conspiracy charge with a perfectly valid substantive charge". One of the dangers of trying a conspiracy charge together with substantive charges is, of course, that evidence which would be admissible on a conspiracy charge might be inadmissible on a substantive charge. In HUI's case the Full Court was not unmindful of the fact that Dawson and Wenlock were tried by jury, but said that the same principle must surely apply to a case tried by a judge without a jury, as was HUI's case, but conceded the possibility that the application of the principle to a case tried by a judge without a jury might be more limited. 2. In the case of R. v. Luberg and others(4) the Court of Criminal Appeal in England said (at page 137) that where a conspiracy charge was combined with substantive charges great care and great caution is necessary during the hearing of the evidence to be quite sure that no evidence is given which is inadmissible, and great care is required in the summing up and to keep all the several issues perfectly clear. 3. Since Dawson and Wenlock, Griffiths and HUI were decided there have been cases in which conspiracy charges and substantive charges have been tried together without attracting criticism on appeal - R. v. Greenfield and others(5), which went to the Court of Criminal Appeal in England, D.P.P. v. Doot(6), which went to the House of Lords, and R. v. Jones and others(7), which also went to the Court of Criminal Appeal, to name but three. 4. In opposing these applications for severance Mr. Duffy for the Crown describes the evidence which will be adduced in support of the conspiracy charges and the substantive charges as "identical". He submits that inasmuch as I combine the functions of judge and jury there can be no question of prejudice. He and Mr. D'Almada, who appears for the 3rd, 9th, 14th, 21st and 38th accused, and who seeks severance of counts 3, 13 and 14, which concern the 3rd and 38th accused, are not in agreement whether the effect of severance would be to protract or shorten the proceedings, to increase or decrease the taxpayers' burden. For my part, with respect to both of them, I would have thought that the proof of that particular pudding could only be in the eating. Mr. Duffy also submits, quite correctly, that HUI's case does not forbid the joint trial of conspiracy charges and substantive charges. Finally, he has drawn my attention to section 39 of the Dangerous Drugs Ordinance, which provides (inter alia) that any special rules of evidence which apply with respect to the proof of an offence under that Ordinance shall apply in like manner to the proof of conspiracy to commit such an offence. 5. I agree with Mr. Duffy that inasmuch as I combine the functions of judge and jury there can be no question of the accused being prejudiced by the conspiracy charge and the substantive charges being tried together, at all events provided that he, Mr. Alderdice and I exercise the great care enjoined by the English Court of Criminal Appeal in Luberg. As I have already said, I agree with him that HUI's case does not forbid the joint trial of conspiracy charges and substantive charges. While I agree with him that the taxpayers' burden is a factor to be considered in ruling upon these applications for severance, I would not, of course, subordinate the interests of the accused to considerations of public expense, or, indeed, to any other considerations, if I thought for one moment that the accused were really liable to be prejudiced by the conspiracy charges and the substantive charges being tried together. In any event, as I have already indicated, I doubt whether it is really possible to say with certainty at this stage whether separate trials of the conspiracy charges and the substantive charges would increase or decrease the taxpayers' burden. Finally, I agree with Mr. Duffy that the provisions of section 39 of the Dangerous Drugs Ordinance should be considered in deciding whether to accede to or refuse these applications for severance. 6. I rule that the application fail, and that the case will proceed to trial upon all counts jointly. 7. Dated this thirteenth day of January, 1975.
29.1.75. 10.35 a.m. Court resumes. Court: 8. Mr. Alderdice has expressed concern over the time taken in cross-examination of P.W.1, and the time which it seems likely cross-examination of other contentious prosecution witnesses will take if the pattern which cross-examination of P.W.I has followed continues. The authorities to which I have referred counsel, viz.
make it clear that in a long and complex case such as this counsel have a duty - so far, of course, as it is not inconsistent with their duty to their clients - to endeavour to shorten the hearing, by, e.g., avoiding too much detail in the examination of witnesses (Fisher, supra.) P.W.1 has deposed to a number of specific acts involving a number of different accused who are represented by different counsel. Each of those different counsel has cross-examined the witness separately regarding those incidents, and it is here, in my view, that so much time has been taken: by repetitive cross-examination of P.W.1 as to these incidents by separate counsel on behalf of different accused. It might be said that this is hardly fair to either the witness or the Court. I can see nothing inconsistent with the duty of counsel to their clients, if, in connexion with such incidents, they were to come to an arrangement among themselves that detailed, but not too detailed, cross-examination as to such incidents should be undertaken by one of them only, or at least as few of them as is practicable in respect of each such incident, and I wish to make it clear that I am most strongly of opinion that this practice should be adopted hereafter upon this trial.
Certified true copy:-
Representation: (1) (1965) Cr.App.R. 279 (2) (1965) H.K.L.R. 341 (3) (1960) 3 A.E.R. 558 (4) (1927) Cr.App.R. 133 (5) (1973) Cr.App.R. 849 (6) (1973) A.E.R. 940 (7) (1974) Criminal Law Review 663 (1) 1967 2 A.E.R. 399 (2) 1935 A.C. 346, 359 (3) The Times 26.11.74. (4) The Times 17.12.74. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON (SITTING AT CENTRAL MAGISTRACY) CRIMINAL JURISDICTION CRIMINAL CASE NOS. 320 & 335 OF 1974 -----------------
----------------- Coram: A.L. Leathlean, District Judge Date of Judgment: 29th January 1975. --------------------------------------------------- REASONS FOR VERDICTS --------------------------------------------------- All the accused were charged with conspiring to unlawfully traffic in a dangerous drugs, namely, heroin, on divers dates between January 1st, 1970 and September 30th, 1974, contrary to Common Law and section 4 of the Dangerous Drugs Ordinance (first charge), and with conspiring to convey into or out of H.M. Prison, Stanley, various articles, viz., letters, cash and dangerous drugs, also on divers dates between January 1st, 1970 and September 30th, 1974, without being authorized to do so by the rules made under the Prisons Ordinance or by the Commissioner of Prisons, contrary to Common Law and section 18 of the Prisons Ordinance (second charge). The 3rd accused was additionally charged with attempting to convey into H.M. Prison, Stanley, prohibited articles, namely, cash $1,320.00, on June 1st, 1974, without being authorised by the rules made under the Prisons Ordinance or by the Commissioner of Prisons, contrary to section 18 of the Prisons Ordinance by virtue of section 81 of the Interpretation and General Clauses Ordinance (third charge). The 4th accused was additionally charged with possession of 376.2 grammes of salts of esters of morphine, 33 grammes of prepared opium and 4 grammes of opium dross, dangerous drugs, for the purpose of unlawful trafficking therein, on June 2nd, 1974, contrary to section 7 of the Dangerous Drugs Ordinance (fourth charge). The 26th accused was additionally charged with possession of 102.4 grammes of salts of esters of morphine and 12.3 grammes of salts of esters of morphine, a dangerous drug, for the purpose of unlawful trafficking therein, on July 4th, 1974, contrary to section 7 of the Dangerous Drugs Ordinance (fifth and sixth charges). The 29th accused was additionally charged with possession of prohibited articles, namely, six letters, while proceeding out of H.M. Prison, Stanley, on August 15th, 1974, contrary to paragraph (a) of sub-section (1) of section 18A of the Prisons Ordinance (seventh charge). The 31st accused was additionally charged with possession of 48.2 grammes of salts of esters of morphine and 3 grammes of salts of esters of morphine, a dangerous drug, for the purpose of unlawful trafficking therein, on August 17th, 1974, contrary to section 7 of the Dangerous Drugs Ordinance, and with resisting a police officer in the execution of his duty on the same date, contrary to section 63 of the Police Force Ordinance (ninth, tenth and eleventh charges). The 32nd accused was additionally charged with wilfully obstructing a police officer in the due execution of his duty on August 17th, 1974, contrary to paragraph (b) of section 36 of the Offences against the Persons Ordinance (twelfth charge). Applications for severance of counts three, five, six, nine, ten, thirteen and fourteen were ruled upon on January 13th, 1975. My ruling dismissing those applications is incorporated into the court record at pages 55 - 59. At the conclusion of the case for prosecution Miss Ida CHEUNG, who appeared for the 35th and 43rd accused, submitted that inasmuch as the conspiracy charges referred to "other persons not before the court" they were in breach of rule 4 of the Indictment Rules, and referred the Court to the case of CHAN Kan and Others v. R.(1), in which the Full Court held that although an indictment so worded was defective, no substantial miscarriage of justice had been caused thereby. She did not go on to submit that any miscarriage of justice had been caused by the breach of rule 4 of the Indictment Rules in this case, and I overruled her submission. The case for the prosecution is set out at the beginning of its summary of evidence. For the purposes of this case I directed myself as to the law of conspiracy as follows: a conspiracy consists not merely in the intention but in the agreement of two or more persons to do an unlawful act. It is committed once they have agreed to do certain things, whether at once or at some future time. There must be at least on the part of each of the alleged conspirators a conscious understanding of a common design. There must be at least two persons in a conspiracy. Even though it is proved that there was a conspiracy it must still be proved that each accused was a member. Parties may join at different times, each attaching himself to the conspiracy, and become equally liable. It is unnecessary to prove that they met and put their heads together, or met, or even knew each other. Nevertheless, evidence of acquaintance and association and communication are probative, and this may be found in, e.g., letters found in the possession of accused persons. The Crown need not prove that each of the accused day by day did some act to further the conspiracy. Once an unlawful agreement has been established a single voluntary act in aid of the execution of the agreement on the part of an accused identifies him with the conspiracy and renders him liable. Where the proof of the conspiracy is dependent upon overt acts it is axiomatic that there must be proof that a particular accused did some act. There must be more than mere association or presence with members of the conspiracy: there must be participation. A person does not become a conspirator simply by aiding and abetting. It is not enough that two or more do various acts in furtherance of the same object, since they may be acting quite accidentally and independently and without prior agreement. It must be shown that they were acting in concert and with a common design. It is rarely possible to prove directly that the parties met and put their heads together and then and there actually agreed to carry out a common purpose. If, however, it is found that two or more persons pursued the same object by their acts, often by the same means, one performing one part and the other another part, it may be inferred that they have formed a conspiracy, i.e., a conspiracy is ordinarily proved by overt acts which appear to be performed in concert and with a common design. The overt acts may have no value taken by themselves, but their cumulative effect must raise a presumption of concert and design from which a conspiracy may be inferred. Acts and declarations of one conspirator in furtherance of the common design may be given in evidence against all the conspirators. There was adduced before the Court an abundance of evidence that for some time past heroin had been introduced into H.M. Prison, Stanley, on a scale which I think it is fair to describe as substantial to say the least, and certainly so substantial that in my view it could not possibly have been accomplished by any one individual. Quite apart from the evidence as to this which might be described as tainted, there was the evidence of P.W.7 Mr. G.C. Morgan and the prison record books Exhibit P.9. It is true that objections were made to the admissibility of Mr. Morgan's evidence and the evidence of those witnesses who were to have been called on the subject of the incidence of heroin and other prohibited articles in the prison on the ground that it was irrelevant, but in my view the incidence of heroin and other prohibited articles in the prison was very relevant to the conspiracies charged, and I accordingly overruled those objections. Thereupon, under section 65C of the Criminal Procedure Ordinance, all counsel formally admitted the contents of the prison record books Exhibit P.9 as facts. In so doing it appears that they may have precluded themselves from challenging the Court's ruling on the admissibility of this evidence: Piening v. Wanless(2) and R. v. Schaube Kuffler(3). In the case of R. v. Hunt and Others(4), Bayley J., summing up, said:
It was my view that heroin could not have been introduced into H.M. Prison, Stanley, on so substantial a scale as the evidence of Mr. Morgan and the prison record books Exhibit P.9 and the other evidence disclosed otherwise than in pursuance of previous conspiracy and plan. That is not to say, however, that the accused were necessarily members of the same conspiracy. The first suggestion in this case that the evidence adduced by the prosecution was as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged was made after the close of the case for the Crown. In R. v. Greenfield and Others(5) the accused sought to establish by cross-examination that the facts relied on by the prosecution were equally consistent with the existence of more than one conspiracy. Lawton, L.J., observed (at page 1054) that at the end of prosecution's case the evidence may be as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged, and said that in such a situation the trial judge should rule that there is no case to answer. But (he went on to say) if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury should convict the accused, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury. In that case the learned trial judge allowed the case to go to the jury and directed them in the clearest terms that before convicting anyone they had to be sure that the prosecution had proved the existence of the conspiracy charged. At the outset of his summing up he said:
The direction was repeated over and over again during the summing up, and the Court of Appeal held that it was correct. In an earlier Canadian case, R. v. Abitibi Power & Paper Co.(6), Batshaw J., on the same subject, said (at page 237).
This was followed by Jessup, J., in the later Canadian case of R. v. J.J. Beamish Construction Co.,Ltd.(7). In this case, at the close of the case for the prosecution, I was of opinion that the evidence adduced was not as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged, and accordingly overruled submissions of no case to answer which proceeded upon the basis that it was. I constantly bore in mind the direction of the learned trial judge in Greenfield, and the whole of the evidence in this case convinced me that the proof pointed much more consistently, logically and reasonably to the inference of a single agreement rather than to a series of arrangements which might reasonably be regarded as separate, distinct and multiple ones. In my judgment the prosecution had proved beyond reasonable doubt that there was in existence between January 1st, 1970 and September 30th, 1974, a single continuing conspiracy, the object of which was to traffic in (i.e., buy and sell) heroin, and that the destination thereof was H.M. Prison, Stanley. However, even if I was wrong in this, there seems to me to be no good reason why the decision in the case of D.P.P. v. Merriman(8) can have no application to a charge of conspiracy, even though counsel for the defence argued that it could not, and even though counsel for the Crown agreed. The view is advanced at page 341 of the 1974 Criminal Law Review that the rule that there cannot be convictions for a number of separate conspiracies when the indictment only charges one conspiracy has probably survived the decision in Merriman as a separate rule relating to conspiracy. However, the learned author does not argue the proposition. Nor does he cite any authority in support of it. For myself I am of opinion that the principles enunciated in Merriman would apply equally to a charge of conspiracy as to any other charge, with, of course, the reservation that in a charge of conspiracy there would have to be at least two conspirators. I think that I should now make the following general observations upon the evidence against each accused. The credibility of a witness is judged not on his evidence alone but on all the evidence in the case (vide James L.J., in R. v. Turner and Others (1975) at page 39 of the transcript). I think that it may be convenient at this stage to list what I will call the principal lay witnesses of fact who testified for the prosecution upon this trial, together with my findings as to whether they were accomplices and/or of bad character, and specifying those among them who were, by leave of the Court, treated as hostile. I now proceed to do so.
(Evidence of witness No. 91 in summary of evidence formally admitted)
It will be seen, therefore, that no fewer than twenty-three of the principal lay witnesses of fact called by the prosecution were, in my view, fellow accomplices. I use the term "fellow accomplice" in the sense in which it was used by the House of Lords in the case of D.P.P. v. Kilbourne,(9) in which it was held that while there is no general rule that no persons who come within the definition of "accomplice" may be mutually corroborative, it is still the law that one fellow accomplice cannot corroborate another fellow accomplice, and I directed myself accordingly as to the twenty-three lay prosecution witnesses in this case who in my view were fellow accomplices. I also warned myself that it was dangerous to convict upon their evidence unless it was corroborated. As to those witnesses listed above who are of bad character I directed myself that their evidence must be scrutinised with the utmost circumspection. Many of the lay witnesses put before the Court by the prosecution as witnesses of truth to prove the conspiracies charged deposed more or less readily to various improprieties on the part of the police, particularly on the part of ex-Superintendent Temple, who was at the material time the head of the Triad Society Bureau, and who was subsequently convicted upon his own confession of an offence contrary to the Prevention of Bribery Ordinance. One of those improprieties was that the police had "coached" some of the witnesses in the course of taking statements from them, statements which, in some instances, concerned events which had occurred long before. In LAU Pak-ngam v. R.(10) the Full Court held that while there was no objection to the police giving a witness a copy of his statement made shortly after the incidents to which it related occurred, or in reading over such a statement to him, anything in the nature of coaching or rehearsing a witness in the evidence which he was expected to give, or anything of that kind, would be most reprehensible and would call for condemnation. Some of the witnesses who deposed to improprieties on the part of the police were prison warders. Some others were prisoners. Some of the accused were prison warders. Some others were prisoners. In these circumstances it might have been that the lay prosecution witnesses who complained of improprieties on the part of the police had their own reasons for doing so, but, having considered the matter, I had no doubt that pressures (for want of a better word) of one kind or another were applied to these witnesses by the police in order to obtain statements from them. Having said that, the danger is, of course, that those pressures might have induced those to whom they were applied, or some of them, to implicate persons who were not in truth and in fact implicated. I considered this aspect of matters most carefully and most anxiously, and having so considered it came to the conclusion that the truth of the matter was, as P.W.44 TSE Fuk-man volunteered in evidence, that while they were under pressure they were not under pressure to such an extent that they implicated anybody who was not in truth and in fact implicated, and, with the apparent exception of P.W.46, I did not believe that any of these witnesses did so. The danger of pressures inducing those to whom they were applied to implicate persons who were not in truth and in fact implicated was apparent, as Mr. Mumford pointed out, in the case of P.W.46 LAI Ping-leung, who testified that the 42nd accused gave him the 28th accused's bank book, which bank book bore the name of the 28th accused LAM Chung-yau. It is apparent from the letter Exhibit D.35 that this - at least insofar as the bank book was said to have borne the name LAM Chung-yau - was untrue. It is true that some of the accused were by no means immediately or readily implicated by these witnesses, and that in some cases they were only implicated when they were asked specifically about the activities of particular accused, but, as I have said, among both the lay prosecution witnesses and the accused in this case were prison warders and prisoners, and having regard to that and to human nature being what it is I did not find it in the least surprising that some of the lay prosecution witnesses did not immediately or readily implicate every person known to them to be implicated. The demeanour of many of the principal lay witnesses of fact called by the Crown (particularly, perhaps, P.W.21 KWOK Yung-hon) was the subject of much adverse criticism by defence counsel in their final submissions. As I said just now, among both the lay prosecution witnesses and the accused in this case were prison warders and prisoners, and twenty-three of the witnesses were fellow accomplices. I have already said that I believed that there was truth in their complaints of improprieties on the part of the police. In these circumstances I had no doubt that many of the witnesses were unwilling ones to whom testifying for the Crown upon this trial was a source of both embarrassment and unease. Mr. D'Almada's comment that P.W.21 spent several days in the witness box gazing steadfastly at a spot above my head was a perfectly valid one. Indeed, at one stage Mr. D'Almada made a point of asking him to face counsel's table, which the witness declined to do. His reasons for declining counsel's invitation (which appear at pages 1373 and 1374 of the depositions) were that he was more comfortable facing the wall, that he was ashamed to face the people in the dock, and that it was embarrassing to face his friends in the dock. The defence naturally sought to make much of inconsistencies and evasions in the evidence of the lay prosecution witnesses. Undoubtedly there were numerous inconsistencies in their evidence, some of them of greater significance than others. Some of the lay prosecution witnesses were sometimes confused. Some of their memories were less than perfect. It is true that they contradicted themselves and each other in some regards. It has to be remembered, however, that a good deal of the evidence concerned events which were said to have occurred several years ago. Indeed, two of the lay prosecution witnesses observed somewhat tartly that had they realised at the time that the day was destined to dawn when they would be required to give evidence about those events they would have made notes of them at the time. A number of the lay prosecution witnesses were subjected to lengthy cross-examination on matters of some detail. Occasionally the Court had to intervene when cross-examination became unduly repetitive. A decision to intervene during cross-examination is always a delicate and difficult one to make, but a Court must ensure that no witness is reduced to such a state of exhaustion and resignation that he might give the answer sought by cross-examining counsel rather than the truthful one. Some of the lay prosecution witnesses were obviously tired at the end of a day in the witness box. Many of them were in the witness box for days on end. It is true that some of them became confused, and it was clear to me that some of them had great difficulty in concentrating. In all these circumstances I did not find it in the least surprising that some of them became suspicious and evasive and reluctant to answer certain questions put to them in cross-examination. Judging the credibility of each lay prosecution witness in the light of all the evidence, having warned myself that it was dangerous to convict upon the evidence of a fellow accomplice unless it was corroborated, having warned myself that one fellow accomplice cannot corroborate another fellow accomplice and having warned myself that the evidence of witnesses of bad character must be regarded with the utmost circumspection, I was nevertheless wholly satisfied that, with the exception of the hostile witnesses and P.W.46. all the lay prosecution witnesses including those who were accomplices and/or of bad character were witnesses of truth on all matters directly appertaining to the issues joined between the Crown and the accused, the inconsistencies and evasions in their evidence notwithstanding, and that it was safe to convict upon their evidence in the absence of corroboration. In arriving at that conclusion I bore in mind what was said by the Full Court in R. v. TSUI Ting and Others(11):-
In that case the Court said that although the prosecution witnesses were tainted with the suspicion that attaches to accomplices, their detailed unfolding of the interlocking circumstances of a complicated series of transactions carried with it a convincing indication of the essential truth of their testimony. Like the learned trial judge in that case it was my view in this case that the whole matter really resolved itself into the question whether the witnesses were to be believed or not, and having seen and heard the witnesses in this case I reached the conclusion that they were to be believed, in that, despite the discrepancies in their testimony, they were all (except the hostile witnesses and P.W. 46) speaking the truth to the best of their recollections. I would add that I also warned myself that the fact that some of the accused pleaded guilty was not evidence against any of those who did not. The other witnesses for the prosecution were police officers, prison officers, officers of the Independent Commission Against Corruption and civilians. With the possible exception of ex-Superintendent Temple they all impressed me as witnesses of truth, and I accepted their evidence. None of the accused who gave evidence in their own defence impressed me as witnesses of truth. Some of the accused suggested that the prosecution witnesses and the police had conspired together to "frame" them. I had no hesitation whatever in rejecting such suggestions, for in my view not even Machiavelli himself could have devised a conspiracy of such dimensions, so complicated and so ramified, as that of which the accused were alleged to be guilty. I now wish to deal with one or two other matters. The first of these concerns P.W.1 LI Kam-tsuen. Mr. Mumford sought to make much of the letter Exhibit D.34 dated November 18th, 1974, in which P.W.1 indicated that he was minded to retract the statements which he had made to the police prior to August 14th, 1974, and to the fact that a mere matter of days afterwards he testified at the committal proceedings. There is nothing in the letter itself to indicate why P.W.1 was minded to retract his statements, and unfortunately he was not asked about this while he was in the witness box. However, for one reason or another he had apparently changed his mind by the time the committal proceedings began. The fact remains that he did give evidence for the prosecution upon the trial. Indeed, in the closing stages of the trial he even asked to be allowed to give further evidence for the prosecution, although he agreed that he had intimated that he wished to retract the evidence which he had already given, adding that he had not done so voluntarily (vide pages 3687-3692, 3698-3701 and 3702-3706 of the depositions). The next matter with which I wish to deal concerns P.W.8 NG Yuk-shan. In the course of their final submissions counsel for the defence rightly criticised what Mr. Mumford described as the "extraordinary vagueness" of this witness' evidence. The conspiracies were charged as having been on foot between January 1st, 1970 and September 30th, 1974. I say at once that this witness was for the most part both vague and muddled as to when the various incidents to which he deposed took place. There was undoubtedly substance in his statement that he did not know, at the time at which those events occurred, that the day was destined to dawn when he would find himself deposing to them in court, but cross-examination wrung from him what in my view were two most damaging admissions: that he had done "so many things" in the past that he could not remember which thing happened in which year (page 670 of the depositions), and secondly that the only time at which the 2nd accused was connected with him was prior to 1970 (page 630 of the depositions). I would emphasize, however, that in my view he spoke the truth to the best of his recollection. At the conclusion of the case for prosecution several submissions of no case to answer were made upon the basis that in the case of some of the accused there was no evidence that they knew that the money which was collected on "Dors" was to be applied in the purchase of drugs, and that there was other evidence that "Dors" were sent out of the prison for the purpose of raising money to be applied not only in the purchase of heroin but other commodities. Mr. Duffy's answer to those submissions was that upon the evidence it was common knowledge within the prison that the heroin which was brought into the prison was paid for with money which the prisoners' relatives or friends were paying on the "Dors" which were taken out of the prison. In those circumstances, he argued, anyone who took a "Dor" out of the prison, even though he did not actually know that it was being sent out of the prison with a view to raising money to be applied in the purchase of heroin as opposed to any other commodity must have been at least reckless as to whether it was being sent out for the purpose of raising money to be applied in the purchase of heroin or any other commodity, and upon that basis had a case to answer. Upon reflection I came to the conclusion that Mr. Duffy's submission was unsound. The essence of conspiracy, as I have said, is agreement, and I cannot see how there can be said to be agreement in the absence of actual knowledge of what is being agreed to. Finally, in the case of some of the accused certain prison location cards and duty rosters were put in evidence as part of their defence. According to the entries thereon the accused were not located in the parts of the prison at particular times on particular dates which the prosecution witnesses deposed that they were. I have two observations to make upon this aspect of matters. First, as I have already said, many of the incidents related by the prosecution witnesses occurred long ago at a time when those witnesses were not contemplating testifying as to them, and in the circumstances it would not, in my view, be in the least surprising if they were mistaken as to dates, times and places. Secondly, to say that the evidence disclosed that the administration of H.M. Prison, Stanley, left much to be desired would be to put it mildly. To mention but one example P.W. 53 Chief Inspector Hill testified that the police were not allowed to check the prison records for two or three months after their investigations began, and that when he did check them he found that they were not always accurately maintained, and even found gaps in the duty rosters for periods as long as three months (page 2660 of the depositions). In all the circumstances, therefore, I was of opinion that scant, if any, faith could be reposed in the accuracy of the entries on the location cards and duty rosters which were put in evidence.
Certified true copy:-
Representation: (1) (1965) H.K.L.R. 662 (2) (1968) Australian Argus Law Reports 342 (3) (1969) 1 St. Tr. n.s. 171 at 437 (5) (1973) 3 A.E.R. 1050 (6) (1960) 131 C.C.C. 201 (7) (1967) 59 Dominion Law Reports (2d) 6 (8) (1972) 3 A.E.R. 42 (9) (1973) 1 A.E.R.440 (10) (1966) H.K.L.R.246 (11) (1957) H.K.L.R. 190 at 198 |