HKSAR v. Lau Kwok Ching and Others

CACC411/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 1997

(ON APPEAL FROM HCCC 345 OF 1996)

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Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 5 & 26 March 1999

Date of Delivery of Judgment: 30 April 1999

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. At the trial in this matter four defendants faced one count of conspiracy to manufacture a dangerous drug between March and November 1986. The hearing in the High Court before Deputy Judge Beeson (as she then was) commenced with an application to stay the proceedings on the ground of delay. The four defendants were Lau Kwok-ching (D1), Liu Kwok-keung (D2), Lau Kwok-hung (D3) and Mak Kam-chuen (D4). We will refer to them as D1, D2, D3 and D4. D1, D2 and D4 were represented by Mr. Cheng Huan, S.C., with him Mr. Ackber Omar; D3 was represented by Mr. Lawrence Lok, S.C. with him Mr. K. Chan and the prosecution was represented by Mr. Chapman. The application to stay was refused and the trial proceeded. The trial proper commenced on 5th June 1997 and on 10th June the court was informed that D2 had committed suicide earlier that day. The trial proceeded and on 14th July 1997, the three remaining defendants were convicted. D1 and D3 were sentenced to imprisonment for 30 years and D4 was sentenced to imprisonment for 20 years. Before this court D1 and D3 are represented by Mr. Plowman, S.C., with Mr. Jerome Matthews, and D4 is represented by Mr. McCoy, S.C., with him Mr. Richard Donald and Mr. Raymond Pierce.

2. The prosecution case rested upon the evidence of two accomplices Ng Kam-hing (PW1) ("Ng") and Chan Soong-kwong (who is variously referred to in the appeal bundle both as PW2 and as PW3) ("Chan").

3. It was the prosecution evidence that manufacturing of heroin began in premises at Wu Kai Sha in about March 1986 and subsequently moved to premises at Fairview Park where it continued until about November 1986. The prosecution contended that D3 was in overall charge of the operation although the manufacturing was usually carried out by a Lee Yan-cheung ("Y.C. Lee"), a chemist who had died by the time of the trial, by the accomplices Ng and Chan and by the deceased D2.

4. The evidence against D1 was that he was involved because he had been called to Fairview Park to try to put right the manufacturing process of one of the batches of heroin which had gone wrong. Further it was the evidence of Ng that he had met him on one occasion at a chemist shop when he went there to collect materials for manufacturing.

5. All three applicants seek leave to appeal against both conviction and sentence.

D1 and D3 - Ground 1

6. In the first ground of appeal argued by Mr. Plowman, it is submitted that the judge erred by failing to give an adequate direction to the jury on the issue of delay and its consequent potential for prejudice to the applicants. This ground relies in part on the submission that the judge failed to heed her own direction when ruling against the application for a stay in which she said:

"The disadvantages accruing from the lapse of time between offence and charge e.g. dimming of memory, absence of potential witnesses etc. are all matters that can be ameliorated, or cured, by careful and fulsome directions to a jury at the appropriate time."

7. Mr. Plowman points first to the period of about 11 years which had elapsed between the commission of the alleged offences, March to November 1986, and the time of the trial, June and July 1997. It is submitted that prejudice inevitably occurs when there is such a long delay as it must affect the memories of the defendants and of witnesses and as potential witnesses will have died or have become untraceable. A further consequence is that the defendants are both prevented from calling potential alibi witnesses and are deprived of the opportunity of cross-examining their accusers whilst the matters about which they have given evidence are still fresh in their minds. Mr. Plowman submits that these matters alone would be enough to warrant a court presuming prejudice and holding that no fair trial could be held. Implicit in these submissions is a contention that the judge was wrong when she refused to stay the proceedings.

8. Our first observation is that the application to stay was not based upon evidence of prejudice but upon a suggestion of a possibility of prejudice made by counsel. There was, for instance, no evidence of potential witnesses who were unable to be located or whose memory had clouded. Further there was no evidence that any defendant was unable adequately to give details of what had occurred in 1986 because, given the lapse of time, he simply could not recall what had happened so long ago. Nor was there evidence that there were missing witnesses who would have given evidence favourable to the defendants. What were raised for the judge's consideration at the time of the application were, as we have said, no more than suggestions of possibilities emanating from defence counsel.

9. Insofar as Mr. Plowman's arguments now call into question the propriety of the judge's refusal to grant a stay, we think it proper to say that, in our view, there was nothing of sufficient merit to warrant an order staying proceedings on the ground of delay.

10. We turn to the real thrust of this ground which contends that, even if the judge was right to have refused to order that the proceedings be stayed, she failed when directing the jury to heed her own stricture to give "careful and fulsome direction to the jury at the appropriate time". It is submitted that there were five matters with which the judge should have dealt:

(i) The jury should have been told that the failure of the applicants to testify may have been influenced by the fact that 11 years had elapsed since the alleged offence.

11. We have already adverted to the arguments of counsel during the application for stay. There was no submission of failing memories and there was certainly no evidence to the effect that the memories of the defendants were so clouded as to events in the year 1986 that they were not in a position properly to defend themselves. There was likewise no such evidence at trial. At most the judge might have given a direction, which would have been of little assistance to the defendants, that their memories might have been clouded but on the other hand they might not and that there was no evidence either way.

(ii) That the delay made it impossible to call alibi evidence.

12. This proposition was confidently asserted by Mr. Plowman but it is necessary when examining it to look at the material upon which it was based. Counsel asserted in the stay application without placing material of any kind to support that assertion, that possible alibi witnesses could not be located. This assertion came from Mr. Cheng Huan for D1, D2 and D4.

13. Mr. Lok, for D3, again without any supporting evidence, made an even bolder assertion stating:

"Mr. Cheng has, in a very detailed manner set out the number of persons who had died in the interim, the number of persons who would have been in a position to assist the defence but, because of the passage of time can no longer be located."

14. There certainly had been two deaths. There was, however, no evidence before the judge that witnesses who could have given positive evidence of alibi existed or that they could not be located. Again this was no more than a suggestion of a possibility by counsel.

15. Mr. Chapman, who appeared for the prosecution, was quick to point this out saying, as soon as he rose to address the court:

"I am mindful of the fact my learned friend has not seen fit to put evidence before your Ladyship in respect of the allegation that they made, relying as it appears to be on the concept. The trouble is that it is presumptive prejudice ....."

He went on to say:

"... albeit these submissions are made unsupported by the evidence ..."

16. Later when addressing the court, he said:

"However in the prosecution's submission there is not one thread of evidence before you of actual prejudice as opposed to inferred delay."

And later again:

"The defence has not discharged the onus it has to establish on the balance of probabilities that there was actual prejudice."

17. When dealing with the submissions of Mr. Cheng Huan, he submitted:

"He (Mr. Cheng Huan) says that the long passage of time has made life difficult for the defence, that potential witnesses had passed away. All of this of course is from the Bar table."

18. Clearly there was no evidence that persons who might have been able to give evidence favourable to the defendants were no longer available because of the delay.

(iii) That the jury should have been told of difficulties the defendants would face in instructing counsel because of the delay.

19. This submission is a two-edged sword. While we, of course, appreciate fully the right of a defendant to remain silent, we cannot help but observe that it is open to a defendant, who alleges that he has not been involved in the offence but is unable, because his memory has faded, to give an account of his actions at the relevant time to give evidence to that effect. The present circumstances are a far cry from those in R. v. Percival, The Times 19th June 1998, the transcript of which was referred to by Mr. Plowman. In that matter there was a delay of up to 32 years and, more significantly, the defendant gave evidence indicating that after so many years he "could only respond passively: the delay, the closure of the school, the loss of any records and his change of employment all conspired to put him at a loss". Here there was no positive evidence of delay as a prejudicial factor.

20. Silence cannot raise a positive case of prejudicial delay of the kind raised by evidence in R. v. Percival.

(iv) That the jury should have been told that it was no longer possible to call scientific evidence as to whether manufacturing had taken place on the premises.

21. This was an observation that the judge could have made but we do not consider that she was called upon to do so.

(v) That the judge should have given greater emphasis in her direction given the lapse of time to the burden and standard of proof.

22. We look first at the directions which were given as to the burden and standard of proof. The judge said:

"The Crown or the prosecution must prove the defendants' guilt. They do not have to prove their innocence. They do not have to do anything at all in this case. Before you can convict any of the defendants you must be sure of their guilt. That is the same thing as being satisfied beyond a reasonable doubt of their guilt. You have heard counsel use that phrase. All that means is that you must be sure."

23. Shortly thereafter when dealing with common design the judge said:

"If you cannot be sure of those matters, then it is your duty as jurors to acquit the defendants."

24. Later again, when dealing with the evidence that the prosecution was relying upon to prove conspiracy, the judge said:

"Look at all of the evidence including the behaviour of each of the defendants as it has been described to you. If, after that you are sure that they must have agreed to commit the crime, you can convict. But before you can convict any particular defendant you must be sure that he was a party to the agreement and that he intended to play some part in carrying it out."

25. She was moreover careful to warn the jury to approach the accomplice evidence with caution. When she came to deal with the defence case she said:

"I will turn to the defence case. As you know none of these defendants has given evidence. They do not have to give evidence. They are entitled to sit in the dock and require the prosecution to prove the case against them if the prosecution is able to. You must not assume that they are guilty because they have not given evidence. The fact that they have not given evidence proves nothing at all one way or the other. It does not establish their guilt. On the other hand, it does mean that there is no evidence from them to undermine or contradict or to explain the evidence put before you by the prosecution. However, that aside, you still have to be sure on the prosecution evidence that they are guilty of the offence charged."

26. Finally she said to the jury:

"You should realize that mathematical certainty is not required in reaching your decision, and you can ignore fanciful or unreasonable doubts you may have. But only if you are sure that each of D1, D3 and D4 had entered into the agreement to carry out their unlawful act of manufacture of dangerous drugs can you find one or more of them guilty. If, however, having considered carefully all the evidence, you find that the witnesses are not believable, or that the matters put forward on behalf of the defendants have succeeded in casting doubt on the prosecution case, that means that you can't be sure of the defendants' guilt and you must acquit them. Keep in mind throughout your deliberations that the defendants have no need to prove anything at all in this case. The burden remains on the prosecution all the time to make you sure that the defendants are guilty of this conspiracy."

27. When dealing with the status of the accomplice Ng, she gave the jury explicit and repeated warnings to exercise great care when assessing his evidence.

28. Similarly, when dealing with accomplice Chan, she said:

"He has triad background too and you must examine his evidence with great care and look at his credibility very critically."

29. We turn to the specific references made to delay.

30. Early in her summing-up the judge reminded the jury that the offence was committed in 1986. She reminded them that the photographs of Fairview Park and Wu Kai Sha had been taken in 1996. When making a general observation about the witnesses who had given oral evidence, she said:

"You will note there have been contradictions between the evidence of the witnesses perhaps in chief, as compared to what they said in cross-examination, or indeed compared to what they said in re-examination. Where you find that obviously inaccuracies and inconsistencies exist, try and see what might explain it. Is the witness forgetful? Bear in mind that the events that are being described in this case are quite elderly; it is 1986, the alleged time. Is the witness genuinely mistaken or muddled? Is the witness telling lies, and if so is the lie told to strengthen the case against the defendants?"

31. It is submitted by Mr. Plowman that, while this was a reference to delay, it was one which favoured the prosecution as it contains the suggestion that inconsistencies might be explained a way by the fact that 11 years had passed. The answer to this submission must be that the judge cannot be faulted for telling the jury that they had to assess whether the witness was genuinely muddled because of the time that had passed, or was lying and attempting to cloak his lies with a veneer of credibility by tacitly appealing to the excuse of forgetfulness. She could hardly make such a comment about persons who did not give evidence. There then follows a further passage dealing with the evidence of the accomplices in which the judge said:

"Is it true, as prosecution counsel suggested, that perfectly matched stories after such a long time might arouse your suspicion that they have put their heads together in respect of this matter, but what are you to make of the inconsistencies? Is it lapse of time? Is it their faulty memories? Are these invented accounts? Are the differences so great that the manufacture is unlikely to have occurred at all? How you reconcile those matters depends on what view you form of the credibility of PW1 and PW2."

32. Our observations above apply equally to this passage.

33. It is conceded by Mr. Plowman that "the standard direction" as to burden and onus of proof was given but it is submitted that in circumstances such as this, a much more emphatic direction which made reference to the lapse of time between offence and trial should have been given. It is further submitted that the judge did not follow her own stricture to give "careful and fulsome direction to the jury at the appropriate time". This criticism completely loses sight of the fact that these words were said before the judge had heard the evidence in the trial. To do justice to what the judge said when she made her ruling, the whole passage must be examined. It reads:

"2) The disadvantages accruing from the lapse of time between offence and charge e.g. the dimming of memory, absence of potential witnesses etc. are all matters that can be ameliorated, or cured, by careful and fulsome direction to a jury at the appropriate time".

She was clearly indicating what it would be necessary for her to do should the evidence at the trial indicate disadvantages to the defendants because of lapse of time. We refer in this regard to the judgment of the Court of Appeal in Henry H, [1998] 2 CAR 161, where Potter L.J. said at p.168:

"We consider it is plain upon the state of the authorities to which we have referred that it is desirable in cases of substantial delay that some direction should be given to the jury on possible difficulties with which the defence may have been faced as a result of such delay. Nonetheless, such a direction is not to be regarded as invariably required except in cases where some significant difficulty or aspect of prejudice is aired or otherwise becomes apparent to the judge in the course of the trial. Equally, such a direction should be given in any case where it is necessary for the purposes of being even-handed as between complainant and defendant." (Emphasis supplied.)

34. In that case, where the improper conduct alleged against the defendant had occurred between 5 and 12 years prior to complaint, there was no direction as to the possible difficulties the defence might face by reason of stale allegations. Potter L.J. observed at p.169:

"It was a case where the jury must have been well aware of the age of the allegations and the task they had to perform."

35. Potter L.J. finally observed at p.170:

"In those circumstances, as already observed, we have no doubt that the jury were well aware of the age of the case and the problems it raised in the context of the burden of proof of which they were regularly and properly reminded.

We have already stated that we do not think that any of the suggestions of possible prejudice was something which the judge, unprompted, was obliged to bring to the jury's attention. We certainly consider that a general indication of the type of difficulties which may be faced by a defendant facing allegations of substantial age and of a general nature is desirable in cases of this kind. Nonetheless, in the circumstances of this particular case we consider that the verdict was safe and satisfactory and, accordingly, the appeal is dismissed." (Emphasis supplied.)

36. In the present case there were "suggestions of possible prejudice" because of delay but they were, as we have already said, no more than suggestions. Further after the summing up neither of the two leading counsel appearing made any submission that the directions which the judge had given to the jury were inadequate. We have no doubt, echoing the words of Potter L.J., "that the jury were well aware of the age of the case" and are satisfied that the judge, "unprompted" by a request for a further directions, was not called upon to do more than she did.

37. There is a further complaint that the failure to give any direction to the jury on potential prejudice caused by the delay was compounded by references to "confusion" when dealing with the discrepancies that existed between the evidence of the two accomplices. We do not consider that there is any merit in this contention. It is true that the judge on three occasions used the word "confusion" but the position, as she was putting it, is exemplified by what she said at page 55 of the summing-up when she said:

"In respect of the time frame, I've already pointed out several times the serious confusion in respect of the time. This is in relation, particularly, to the 1st and 4th defendants. This is what defence counsel alleges. He says that there's evidence that after PW2 moved to Fairview Park, or that after PW1 moved PW2 to Fairview Park, he handed an identity card to the 3rd defendant's man, the garage man, to register the car. Now, it's unlikely, or possible, given the date on the tenancy agreement, that this occurred in detail as PW1 said.

Is this his memory being faulty after a lapse of time? Is he deliberately implicating the 3rd defendant in this matter? Or is it an example of somebody trying to recall events that he didn't actually pay very much attention to at the time because it wasn't an important event at the time? The defence says that this is a deliberate attempt to falsify matters."

38. The judge is clearly, and correctly, telling the jury that it is for them to make their minds up whether this was confusion, i.e. an innocent mistake or deliberate mendacity.

39. There is no merit in Ground 1.

Grounds 2, 3 and 4

"2. PW2's record of interview and video tape transcript

(i) The learned deputy Judge erred in allowing the prosecution to introduce exhibits P.27 (a video tape of a visit to premises at Wu Kai Sha) and P.27A (a transcript of a series of questions and answers between SIP Fung Hing-nam and PW3 during that visit) during the course of re-examination of PW3.

(ii) Having invited the jury to consider the contents of the records of interview of PW3 (Exhibits P.24 and P25) and the contents of Exhibit P.27A the learned deputy Judge:

(a) failed to direct the jury that they should ignore those parts of Exhibits P.24 and P.25 and P.27 which contained irrelevant and prejudicial material and, further,

(b) failed to direct the jury as to the purpose for which Exhibits P.24, P.25 and P.27 had been introduced into evidence and the limited issue to which their contents were relevant and, further

(c) failed to direct the jury that the contents of exhibits P.24, P.25 and P.27 could not be evidence of their truth unless PW3 had agreed that was so in his evidence.

3. Summary of Facts

The learned deputy Judge erred in allowing prosecuting counsel to re-examine PW2 by reference to parts of the summary of facts which PW2 admitted upon pleading guilty to the charge of conspiracy to manufacture a dangerous drug when those parts were consistent with the testimony before the court.

4. PW3's plea of guilty

PW3's plea of guilty to conspiring with the applicants and others to manufacture dangerous drugs was admitted into evidence. Prosecuting counsel wrongly addressed the jury upon the basis that they could rely on that plea to conclude that that PW2 was telling the truth about the applicant's involvement. Whilst the learned deputy Judge correctly directed the jury that PW2's plea of guilty was not evidence of the guilt of the applicants, she failed to direct them as to the use they could properly make of the evidence and failed to direct them that they could not use the evidence in the way suggested by prosecuting counsel."

40. In order to deal with Grounds 2, 3 and 4, it is necessary to look carefully at the evidence of PW3 Chan Soong-kwong, at certain of the arguments which are set out in the transcript and at the exhibits. Chan admitted signing a tenancy agreement for 18, Third Street, Fairview Park, which was to run for two years from 1st August 1986. He said that in March 1986, D3 had introduced him to rent premises at Wu Kei Sha; that D3 had paid the rent; that he had assisted at those premises in the manufacture of No.3 heroin and that Y.C. Lee and D2 were also involved. This is clear evidence as to the parties involved in the manufacture of heroin in those premises. He said that the equipment had been supplied by D2 and described the process of manufacture saying that Y.C. Lee was master; that the first occasion on which this had taken place was a week after he had rented the house; that 60-70 lbs. were then manufactured; that this had happened four or five times; that Y.C. Lee and D2 were present on each occasion; that the manufacture took from morning until 6-7 p.m.; that those involved then cleaned up and went to Kowloon for a meal at which D3 would sometimes join them; that D3 would instruct him where he was to deliver "those stuff" and that D3 paid him $50 for each pound.

41. The overall period during which this manufacture took place was, he said, "roughly between March 1986 to July 1986". He told of a dispute which arose because D2 and Y.C. Lee were putting aside some of the heroin for themselves and said that he had reported this to D3. He said that eventually operations at Wu Kei Sha were suspended because of police activity in the area and that D3 told him to go to Fairview Park to find a new place. In consequence of this he said that he rented premises at 18 Third Street for $3,500 per month, which rental was paid by D3; that D3 had told D2 and Ng to make the move and that they followed him in a van to Fairview Park. It was his evidence that he had signed the rental agreement on or about 27th July 1986; that the move had taken place several days later; that after 10 to 20 days the first manufacturing had taken place. This would place that occasion of manufacture between 10th and 20th August. He said that on that occasion he, Y.C. Lee, D2 and Ng were involved; that when the drugs were ready he telephoned D3 and, at his instruction, delivered them to him; that on that occasion the weight manufactured was about 70 lbs; that overall manufacture of drugs took place at Fairview Park on four or five occasions and that the second occasion was 10 to 20 days after the first. This would place the second occasion of manufacture somewhere about the end of August. He said that again on this occasion 70 lbs. was manufactured; that the third occasion was some 20 odd days later, which would place that occasion about 15th September; that on that occasion D4 made his first appearance and that, on that occasion, the process went wrong and D1 was sent to rescue it. It appears that the rescue operation was not successful. He said that the fourth occasion was around 10 days later, which would place it somewhere between 20th and 30th September; that present on that occasion were Y.C. Lee, D2, Ng, D4, D1 and himself; that a larger than usual quantity was manufactured and that it was, as usual, delivered to D3. He went on to say that there was probably a fifth occasion but that he had no clear recollection of it. He identified the three defendants in the dock: D1, D3 and D4.

42. Under cross-examination he said that D1 was certainly at Fairview Park twice. He said that he first came to Fairview Park on the third occasion of manufacture, when he came to rescue the batch, and that he came back on the fourth occasion. As to D4, he said that he was there on both the third and the fourth occasion. He said that on each occasion the total period taken to manufacture the dangerous drugs was from 13 to 15 hours.

43. When pressed by the cross-examiner, he said that the first occasion of manufacture was more than 10 but less than 20 days after he had moved into Fairview Park and finally said: "It was 10 odd days." He then said that, "The process went on at the intervals of 10 odd days or 10 odd to 20 days and it was a pattern all along." He said that the second occasion was around mid-August and the third occasion was around mid-September and that there was slightly over 10 days until the fourth occasion. This would place the fourth occasion in the middle of the last third of September. Indeed the witness went on to say that that occasion was "sometime between the middle and the end of the month after the 15th". He later said that it was in "the latter half of the month". He said finally in this regard that "the four occasions spent (sic) over two months were slightly over that" and that the fourth occasion "probably did not go into October, it should be sometime in September or end of September". He was cross-examined at some length by Mr. Cheng Huan about a motor cycle accident in which D4 had been involved towards the end of September 1986. The only ground that was argued by Mr. McCoy rests upon this accident. This requires us to set out in full the cross-examination of Chan in this regard (pages 719 to 723 of the transcript):

"Q. So, the fourth occasion would be in October, early part of October, correct?

A. Well, it probably did not go into October. It should be some time in September or the end of September

Q. I see, so it could be towards the end of September and the beginning of October?

A. Yes, the end of September.

Q. And the beginning of October.

A. Well, I don't think. it went into that month.

Q. But you told us the four occasions were up to two months about, slightly over two months, correct?

A. Around two months. It is difficult for me to confirm what length it was.

Q. I appreciate that but it is very important, and I will come to it in a moment, it is very important that you can help us about the dates. Now, you told us earlier that the four occasions may be up to more than two months, is that right?

A. That was what I said but I was not too precise in working out the time so I blurted that out. Now I have a clearer memory.

Q. I want to ask you one thing only. Please answer yes or no. After the fourth occasion in 1986 did you see Mak Kam-chuen again in Fairview Park, yes or no, 1986, the fourth occasion?

A. Yes.

Q. In Fairview Park?

A. No.

Q. I am asking about Fairview Park, did you or did you not?

A. Well, he was present on the fourth occasion and took part in the manufacturing of the drugs.

Court: You are being asked, Mr. Chan, whether after that fourth occasion you ever saw him in Fairview Park again. We know you have told us you saw him after that period, you are being asked about Fairview Park?

A. Well, the question is after the conclusion of the fourth occasion when drugs were manufactured, whether I had met Mak Kam-chuen again in the house? Yes, I had.

Q. If you want to be very precise, Mr. Chan, I will be very precise with you. That was not my question not on that occasion, after the fourth occasion.

Court: That is what he said.

Mr. Cheng: He said after the conclusion of the dangerous drugs.

Court: "After the fourth occasion whether I met him in the house again? I did."

Mr. Cheng: I am not talking about that day.

Court: I don't think he is talking about that.

Mr. Cheng: I may be wrong, my Lady.

Q. Correct me, I am asking you after he left the house on that occasion, after the fourth occasion?

A. No.

Q. But you saw him again outside Fairview Park?

A. Yes.

A. I want to know in 1986 how many times, that's all, how many times I don't know why. How many times, I want to know how many times, that's all, you saw him outside Fairview Park in 1986?

Court: The reason you haven't got an answer is because you haven't asked the question yet: After you have been to Fairview Park tell us the number of times you saw Mak Kam-chuen in 1986?

Mr. Cheng: That's right after the fourth occasion I am trying to ask?

A. I can't recall for how many times I saw him but I did see him occasionally.

Q. Did you notice any difference about his appearance on those occasions?

A. Well, there was a little difference.

Q. Were you aware he was involved in a motor cycle accident in 1986?

A. Yes.

Q. Do you know when?

A. I don't recall when but I was aware that he crashed his car in Lunch Cheung Road.

Q. Who did you hear it from?

A. From the other driving friends.

Q. You were not aware, were you, that that accident happened on 27 September 1986?

A. I don't know and I can't recall the date.

Q. And he was admitted to the Queen Elizabeth Hospital?

A. Yes.

Q. You knew that?

A. Yes, I do.

Q. You heard that too?

A. Yes.

Q. You also heard he was later admitted to St. Theresa Hospital?

A. That I don't know.

Q. Were you aware that he'd got to have medical rest and so he did for about over two months?

A. I have no idea.

Q. So, did you really see him in September at all, Mak Kam-chuen, 1986?

A. Well, I have seen him in 1986 but I can't recall in which month.

Q. No idea at all which month?

A. After the work was finished I saw him outside.

Q. Did you see him in October of 1986 at all, the whole of October?

A. I don't recall.

Q. Whether in Fairview Park or not, October?

A. I can't recall.

Q. November?

A. I can't recall

Q. August?

A. August.

Q. Yes?

A. Well, we were in Fairview Park in August.

Q. So, it was only August you saw him that you remember?

A. I was in Fairview Park in August.

Q. Look, you told us you don't remember seeing him in September or October but you remember in August.

Mr. Chapman: Perhaps we could just check the notes. Whereabouts does the witness say he didn't recall seeing him in September?

Court: The question was, 'Did you really see him in September at all?' He said, 'I have seen him in 1986, I can't recall which month.' 'You have no idea?' 'After the work finished I saw him outside.' "Did you see him in October?' 'I don't recall.' 'Whether in Fairview Park or not, did you see him in October?' 'I can't recall.' 'November '86?' 'Can't recall.' 'August '86?' 'We were in Fairview Park in August.' 'Was it only August?' 'I can't recall?'

Mr. Cheng: Yes, thank you.

Q. Did you see Mak Kam-chuen in or outside Fairview Park in September 1986, September?

A. I can't be sure which month but I did see him after the work was finished and I even checked it with him.

Q. When he was, according to you, in Fairview Park, was he there before or after the motor cycle accident, to your knowledge? Do you remember that?

A. It was probably before the car accident when he took part in the work.

Q. But you are not sure?

A. That's the case, according to my recollection.

Q. After the fourth occasion that you said he was there what was the gap of time between that occasion and the next time you saw him outside Fairview Park, approximately?

A. I can't recall that.

Q. Try to assist us, weeks, months or what, days?

A. I can't recall.

Q. Absolutely no idea at all, not a clue?

A. Well I did see him but I can't recall the dates.

Q. I am not asking you the date, I know that wouldn't be fair. The approximate time, days, weeks or months?

A. I can't recall that.

Q. I ask you again: not a clue, absolutely no idea?

A. Right, so I can't recall. I did see him but I can't recall the date.

Q. And on that occasion you saw him do you have any idea whether he looked as if he had just suffered a serious accident?

A. Well, I have also seen him after the car accident

Q. Will you please answer my question now. I said on that occasion you saw him whether he looked as if he had just suffered a serious accident, motor cycle, car or vehicle accident?

A. Well, I have seen him both before he was involved in the car accident.

Q. After the fourth occasion and you saw him, subsequent to that did you notice any scars or marks on his face?

A. Well, I had not seen him before he crashed his car and, well, there was none when I saw him.

O. The answer's no?

A. Right."

44. Towards the end of his cross-examination Mr. Cheng asked Chan about a videotape interview in which he took part on 21st June 1996. Mr. Cheng requested that the tape be played. This was done. He then questioned him using the transcript which was marked Exh.P24. The witness agreed that he had said in that tape that he did not remember if D1 had ever visited him in Fairview Park and that he had made no mention in it of D4. The following passage then occurs (p.741 of the transcript):

"Mr. Cheng:

Q. I suggest to you, Mr. Chan, that you've probably told the truth in this taped interview.

Court: In respect of what?

Mr. Cheng: The contents.

Court: The whole contents.

Mr. Cheng: Yes, probably yes.

Q. Do you agree or disagree?

A. Well, some are facts."

The cross-examination by Mr. Cheng was then concluded.

45. Mr. Lok before commencing his cross-examination, indicated that he wished to question the witness with regard to an interview on 23rd June 1996. He said that he did not wish the tape to be played but sought to cross-examine on an edited version of the tape with "the irrelevant and prejudicial parts deleted". In the end, however, both the edited tape and the edited transcript (Exh.P25) were put in evidence. The witness agreed with Mr. Lok that in the interview on the 23rd, he had made scant mention as to the manufacture of drugs at Wu Kei Sha. He said that he had only been told that he would be charged with the manufacture of the drugs in Fairview Park so he only mentioned events relating to Fairview Park and kept Wu Kei Sha to himself. He agreed that he had said that there were only two occasions of manufacture at Fairview Park. He agreed that he had said that he had rented the premises on the instructions of D3 and that D3 had provided the "Lui Yan" (basic ingredients) and that on the first occasion he, D2, Y.C. Lee and Ng had taken part in the manufacturing operation. He said that on the second occasion Y.C. Lee was not there and that D1 was brought in as his replacement. He agreed also with the cross-examiner that he had made mention of a rescue operation which had been necessary because the process went wrong when he was doing the mixture while Y.C. Lee was sleeping downstairs.

46. After the tape had been played, the witness said that he had tried to tell the truth in the course of that interview. Mr. Lok then said that he would cross-examine only as to "the salient features of the interview". It was put to the witness that, in the interview, he had said that D3 had given him the raw materials whereas in evidence he had said that it was brought by one of the four participants in the manufacture. The witness said that his evidence was correct. He said that his statement in the interview that Y.C. Lee was not present on the second occasion was not correct, but it was correct when he said that D1 came and acted as the chemist. He said that his statement in the interview that D3 had provided the raw materials was wrong, but that it was correct that D3 had instructed him to rent the premises. He agreed that he had made no mention of D4 in the interview until he was asked a question by the interviewing police officer, whereupon he had agreed that D4 had joined half-way through. He said that the reason he had said in his interview that Y.C. Lee was not there on the second occasion was because he was "very confused at that time".

47. In re-examination, the following exchange occurred:

"Mr. Chapman:

Q. It was suggested to you a number of times in your evidence in cross-examination, that you sought in your evidence to minimise your role?

A. Right.

Q. But we know that on 11th September you pleaded guilty to the charge that we see repeated in paragraph 6 of the Admitted Facts and Agreed Summary of Facts which had been prepared by the prosecuting authorities?

A. Right."

48. Mr. Chapman then sought to show the witness the summary of facts to which he had agreed when pleading guilty in order to demonstrate that he had never sought to minimise his role. The following passage then occurs in the transcript (801G to 804P):

"Mr. Chapman: My Lady, perhaps I should make it clear. I didn't want to say too much while the jury were here. If my learned friends have a problem with pages 9 and 10 and 11 that is fine. Page 9 simply records events on 21 August and indicates that committal was being sought on that day, suggestive of the fact of service of the papers, and an indication by his legal representative, Chan Soong-kwong's legal representative, that he intends to plead guilty. The prosecutor indicates the facts are not available. Adjourn to prepare facts. Then the 11th just relates to proceedings on that day and the fact that the facts are read. Then there are the summary of facts. It is the summary of facts I am principally concerned with.

Mr. Cheng: What we are principally concerned with, the summary of facts is what we are concerned with. It is to that we really object. Perhaps I would wait for my learned friend Mr. Lok and he will address your Ladyship about that. I associate myself with his comments.

Court: Maybe you should wait till you hear the comments.

Mr. Lok: I will make one concession first. I have cross-examined the witness on the summary of facts, I think, to a very limited extent. I certainly did not take the witness through the individual paragraphs. For example, my Lady, there is a discrepancy there at paragraph 5, where the defendant was paid - the defendant in that case of course is the witness here - was paid $100 for each pound of heroin. That of course is a discrepancy but I chose not to cross-examine for fear of bringing in the other paragraphs.

What worries me, my Lady, is the first sentence: 'A syndicate headed by LAU Kwok-hung'. I am aware of the Crown's allegation that LAU Kwok-hung asked this witness to rent the premises, provided for the rent, and so on and so forth. But "headed by LAU Kwok-hung" really is a conclusion that was drawn by the prosecution. This of course is purely a matter for the jury to decide.

Now, if the summary of facts in its present form was to be presented to the jury they may attach undue weight to this assertion that a syndicate was headed by LAU Kwok-hung. We say this is the very question the jury themselves would have to make a decision on. Other than that, I think it fairly sets out the various aspects of the Crown's case against this witness when he was pleading guilty.

Mr..Cheng: My Lady, I should say a few words. I don't understand how this can be probative, other than to create a lot of prejudice for those defendants I represent. Your Ladyship will remember exhibit 21, the notice of admitted facts. At paragraph 6 it is already stated there that:

'On 21 June, CHAN Soong-kwong, the person named in the indictment, was arrested by the Hong Kong Police Force. He was later charged that together with LAU Kwok-hung, LAU Kwok-ching, NG Kam-hing, MAK Kam-chuen, LEE Yin-cheung and LIU Kwok-keung, he conspired to manufacture dangerous drugs.'

The essential ingredients are all there in the admitted facts. Beyond that, it is really not evidence against any of the defendants, my Lady. The summary of facts is merely evidence against Mr.. Chan and, as my learned friend Mr.. Lok rightly said, there is the danger of the jury giving undue weight to the contents of the summary of facts. So I am opposed, I am sorry to say, not only to paragraph 1, but to all the paragraphs really.

Your Ladyship will remember that I don't think Mr. Chan when examined in chief -- he did refer to the summary of facts, but not extensively. I did not cross-examine him on that and my learned friend Mr. Lok, as he has rightly said, cross-examined on it but very sparingly. Thank you.

Mr. Chapman: My Lady, I think my learned friend Mr. Lok has accurately summarised his reference, but the principal reference comes in the context of a suggestion made on at least two occasions, I think, by my learned friend Mr. Cheng Huan that he sought to minimise his role . Of course one has to look at what he admits against his own interest in effect in the context of that matter. I didn't allude to the summary of facts in the evidence-in-chief as I didn't consider myself able to lead it in evidence until after cross-examination made the matter relevant. Of course that is what has happened.

Mr. Cheng: I agree, my Lady. I am so sorry.

Mr. Chapman: There are a number of references to the fact that CHAN Soong-kwong in evidence said, in relation to what was happening in the room in particular at Fairview Park this was:

'I spent perhaps a minimum of two hours, a maximum of four in the room. As the occasions went on I, CHAN Soong-kwong, appeared to become less and less involved. I was principally a look-out. I was principally the cook.'

If I can use that expression. etc. In response to that, it was suggested on a number of occasions that this was a deliberate plan on his part to minimise his role in the context of his potential later sentencing.

When one looks at the summary of facts, there is reference to a number of aspects of his role. As far as the point that my learned friend Mr. Lok takes, 'A syndicate headed by Lau Kwok-hung', I think that is the evidence of this witness anyway, in the context of my understanding of it.

The rest of paragraph 1 is pretty straightforward and certainly consistent with my understanding of his evidence, so it is not going to invite speculation from the jury. It is not as though it is adding to what the witness has been saying in evidence. Neither does paragraph 2. Then we have the implication for this witness that he acted in a second sense as a store-keeper for LAU Kwok-hung, storing, even on his own account, significant quantities of dangerous drugs.

So that's not exactly either a watered-down summary of facts or an attempt by this witness to minimise his role, which is the allegation. It is also his evidence that in relation to Fairview Park, I think, that he delivered drugs. He certainly acted as a store-keeper.

Court: Was it meant for the summary of facts to be read out in this form? Can't they just be referred to the parts that are not contentious. If the paragraphs are broken down, he can just be pointed to those paragraphs.

Mr. Cheng: My Lady, to the extent Mr. Chapman said that we cross-examined about his role, minimising his role, we accept that. My Lady, the role really there is irrelevant, paragraph 4. My learned friend is entitled to examine and say "Did you not when pleading guilty say this? In the process of manufacturing LEE Yin-cheung was the chemist who controlled the amount of chemicals to be mixed with heroin and then the three products were packed into one pound packets by the defendant". That is his role. Then he said "On one occasion it went wrong" . That does not mention about his role, my Lady. The fact that he assisted in packing one pound packets, that goes to his role.

Court: It is really only paragraph 2 and the sentence in paragraph 4 that sets out his role and also the payment.

Mr. Cheng: Precisely. If that is so, we have no objection, my Lady, only if it goes to his role.

Court: I think those parts can be put to him to show that he didn't minimise his role in terms of what he said in evidence.

Mr. Chapman: Perhaps we can resolve that quickly on Thursday morning before we start.

Court: Resolve what?

Mr. Chapman: Just the passages to be put.

Court: I would have thought that he worked with the group, that he was the person who acted as the rental agent, he acted as store-keeper, and paragraph 4 coincides with his evidence because he did say on certain occasions he had to help. What about the committal bundle?

Mr. Cheng: My Lady, I personally have no objection about the committal bundle and I don't know whether my learned friend insists on putting that.

Mr. Chapman: I don't insist on putting that. There are a number of matters that came out of cross-examination today that we are checking on at the moment, the date of service of the committal papers, etc. By Thursday we should have that information.

Court: You should be able to just put the date to him?

Mr. Chapman: Exactly. We will see you in the Court of First Instance on Thursday, my Lady.

Mr. Cheng: Can I say I am happy to say we are ending this day on a harmonious note".

49. When the matter resumed the next day, Mr. Chapman put to the witness in summary form what he had agreed in the Summary of Facts. The matters put to the witness were in accord with the evidence which he had given. Mr. Chapman also re-examined the witness on the contents of Exh.P24 and Exh.P25. Further, Mr. Chapman referred the witness to a video-tape of an inspection of Fairview Park made on 3rd July 1996 and to a further tape made on 4th July at Wu Kei Sha. He then sought to play the second tape. Mr. Lok said:

"I think on Friday, after a very extensive cross-examination with regard to Wu Kei Sha premises .... all those questions about the elevated level of the stone hut. Perhaps, if my friend wants to show a video, with respect to the Wu Kei Sha premises alone, that might be justified on this basis: I raise no objection."

50. Mr. Cheng said it did not affect his clients (D1 and D4) but he thought that "we ought to oppose the showing of this tape ... (because) it may amount to a self-serving prior statement". He said finally: "Perhaps I just raise my concern and I do not have particular strong views". The court allowed the tape to be played and the transcript was marked Exh.P27.

51. It is necessary now to look at the contents of Exh.P24, P25 and P27.

52. Exhibit P24 is the transcript of an interview which took place on 21st June 1996 at the Narcotics Bureau Police Headquarters. It was conducted by Senior Inspector Yam Wai-kwok. The subject of the interview was the accomplice Chan. It was initially put to him that he was suspected of being involved in drug manufacturing at Fairview Park with D1 and D3. He admitted that he had come to know those men through illegal car-racing. When asked if he had cooperated with them at Fairview Park in 1996, he said: "presumably not". He admitted that he had lived at Fairview Park in the mid-80s. He said that he did not remember Y.C. Lee, D3 or Ng visiting him at Fairview Park but later said it seemed that D3 had visited him. He denied that Y.C. Lee, D3 and Ng had visited his house together and denied any connection between himself, those three men and dangerous drugs. He said that Y.C. Lee and Ng knew D3 through their interest in cars and that he had been unable to remember any delivery of zinc basins. When asked what he knew about D3, he said that it "was rumour that he deals with racketeering. However, as to what field of racketeering, I am not i.e. not sure about it". He went on to say, "I don't know clearly, that is, I merely hear about this. That means, it's heard from gossips".

53. We turn to Exh.P25. This was an interview which took place on 23rd June between Senior Inspector Yam Wai-kwok and Chan.

54. At the outset, Chan said that he wanted "to switch to become a prosecution witness". He went on to say that D3 had asked him to rent the premises at Fairview Park and added that he did not want to talk about his previous premises at Wu Kei Sha. He said that he later lived at Fairview Park, that Y.C. Lee had manufactured dangerous drugs at those premises and that D1 was also involved. He said that manufacturing happened on two occasions. He later said that D2 was also involved.

55. The answers given in this interview are somewhat disjointed but as the interview progressed Chan's recollection seems to have become clearer. Initially he said that manufacturing had happened only on two occasions and that Y.C. Lee had managed the operations, each of which had produced 70 one pound bags of heroin. He said that the raw materials were provided by D3 and that he went in his car to pick them up from D3; that on the second occasion, D1 and Ng were brought in. He appeared to be saying that Y.C. Lee and perhaps one other had dropped out because of some old disagreement. It is, however, not clear what exactly he is saying in this regard. He went on to say that D1 and Ng took part in the manufacture and 70 lbs. was produced. He then said that he had forgotten who had given him the raw materials which contradicted his earlier statement that he had been given them by D3. He said, however, that the accomplice Ng had delivered the manufacturing equipment and had been assisted by D2. He then went on to say that there was probably another occasion during which things went wrong when "Ah Cheung had to come and save everything". It is not clear to whom he was referring when he spoke of "Ah Cheung". It is, however, to be noted that Y.C. Lee's full name is Lee Yin-cheung. He was then asked if one manufacturing had gone wrong altogether and he said "it seems to be so", and that it seems "that batch was returned to D3".

56. In answer to a question from the interviewing officer, he said that it seemed that D4 had assisted at Fairview Park but that he did not remember when he was present. When asked if he had participated all along or joined midway, he said "joined midway". He said that D1 and Y.C. Lee knew how to manufacture dangerous drugs and that the others had simply assisted. He finally said, and this was completely at variance with what he had said at the outset, that manufacturing took place "less than ten times" and that the quantity was 70 lbs. on each occasion. He said that the drugs were all delivered to D3 who came to collect them; that he was paid $100 for every pound by D3 and that D3 also paid the others. He said finally that D3 had told him that Fairview Park was too inconvenient and that he could not make money and that manufacturing had then ceased and D3 had sold the manufacturing equipment.

57. Exhibit P27 is a transcript of a video recording made at House 21, Lane One, Wu Kei Sha Sun Tsuen at 3.22 p.m. on 4th July 1996. Senior Inspector Fung Hing-nam was in charge and the subject of the interview was Chan. He admitted that he had manufactured dangerous drugs in the house in 1986. He described the rooms and indicated where the manufacturing equipment had been placed and described the manufacturing process. He said that Ah Cheung, who, it seems clear, is Lee Ying-cheung, and D2 were involved and that no others had taken part.

58. Ground 2 involves the three exhibits which we have set out above.

59. We will deal firstly with the objections raised to the way in which the judge dealt with Exh.P24 and Exh.P25.

60. Mr. Plowman, when arguing this ground, referred us to the 1999 Edition of Archbold at 15-368 where it deals with the "Use of the defendant's confession by and against a co-defendant". The general rule is stated as follows:

"It is a fundamental rule of evidence that statements made by one defendant either to the police or to others (other than statements whether in the presence or absence of a co-defendant, made in the course and pursuance of a joint criminal enterprise to which the co-defendant was a party) are not evidence against the co-defendant unless the co-defendant either expressly or by implication adopts the statement and thereby makes them his own."

61. The only case to which Mr. Plowman made reference was R. v. O'Neill, (1969) Crim.L.R. 261, the headnote of which states:

"O was indicted on two counts. Tried with him was M who pleaded guilty to the first count and not guilty to the second count. M gave evidence on his own behalf and in cross-examination by the prosecution was asked if O had committed with him the offence charged in the first count. He said O had not and there was then put to him a statement he had made to the police in which he had said the opposite. The judge directed the jury that M's statement was not evidence against O but went to M's credit."

62. The appeal was dismissed.

63. Mr. Plowman submitted that the direction given by the judge in O'Neill's case was a proper one applicable to the present case and that the jury should have been told that the statements Exh.P24 and Exh.P25 were not evidence to prove the facts stated therein but went only to the credit of the maker. It is of interest to note the commentary on R. v. O'Neill by the editor of the Criminal Law Review who states:

"The rule regarding criminal cases continues to be as stated by the judge in the present case: the previous inconsistent statement is not evidence of the fact stated therein but only goes to negative the statement made in the witness box. It is a highly artificial distinction which it must be very difficult for any jury to apply."

64. However that may be, what we must ask is what, if any, application the rule has in the present circumstances. In O'Neill, the statement was tendered by the prosecution when cross-examining the defendant who had pleaded not guilty to the second count and denied the truth of the statement. The judge had to rule upon the use which the prosecution could make of the statement.

65. Before coming to any conclusion on Mr. Plowman's submission it is important to examine the three cases cited by Archbold in support of the general rule: R. v. Rudd, 32 Crim.App.R. 138; R. v. Gunewardene, (1951) 2 K.B. 600; and R. v. Rhodes, 44 Crim.App.R. 23. In Rhodes, the prosecution cross-examined a defendant who had pleaded not guilty upon a statement which he had made implicating his co-defendant. In issue was the admissibility of this statement to prove the guilt of the co-defendant. The judge warned the jury that the statement could not be evidence against a co-defendant but then invited the jury to consider the evidence against him in a way which, to a large extent, negatived that warning. The Court of Appeal held that there had been a misdirection and quashed the conviction. Again, as in O'Neill's case, the statement had been put into evidence by the prosecution and the defendant had denied that it was true. In Gunewardene, the defendant had made a statement which incriminated both herself and the co-defendant "in a high degree". The defendant pleaded not guilty. The statement was used by the prosecution for the purpose of proving the guilt of the defendant who was denying its truth. The judge rightly warned the jury that the statement was not evidence against the co-defendant and the appeal was dismissed.

66. We turn finally to the decision in Rudd's case. The Court of Appeal was composed of Goddard LCJ, Humphreys J. and Birkett J. The headnote reads as follows:

"The recognized and universal principle of law that, whereas a statement made in the absence of the accused person by a co-defendant cannot be evidence against the accused person, yet if the co-defendant goes into the witness box and gives evidence in the course of a trial, then his sworn evidence becomes evidence for all purposes in the case including that of being evidence against the accused person ...."

67. Humphreys J., who delivered the judgment of the court, said at p.139:

"The first, which was the ground suggested by the applicant himself in his original notice of appeal, was that the learned Judge in summing up did not refer to the fact that a statement made by the applicant's co-defendant Powell in the absence of the applicant was not admissible against the applicant. To that objection there are two conclusive answers. The first is that the Deputy Recorder did refer to the matter, for he told the jury that a statement made by one prisoner in the absence of the other was not admissible against the other. The real gravamen of that attack on the summing-up is that the Deputy Recorder said this once only and did not repeat it. The second answer is that, inasmuch as Powell gave evidence on oath and repeated all that he said in his statement, it would not have made much difference if the learned Deputy Recorder had referred to the matter many times."

68. Again this matter involved the use to which the prosecution could put the statement of a defendant against a co-defendant. It differs from the earlier cases as the defendant gave evidence admitting the truth of his statement. We note particularly the common sense of the second answer provided by Humphreys J. in which he said:

"..... inasmuch as Powell gave evidence on oath and repeated all that he said in his statement, it would not have made much difference if the learned Deputy Recorder had referred to the matter many times."

69. What principles can be drawn from the above authorities? It seems clear that a defendant's statement, the truth of which he denies, when used by the prosecution cannot, as against a co-defendant, be admissible to prove the truth of its contents. It may, however, where it contradicts the evidence of the defendant, be used to demonstrate that credit should not be given to evidence that is otherwise favourable to the co-defendant. As regards the defendant who made the statement it, being an admission against interest, can be used for all purposes.

70. If a defendant, as was the case in O'Neill, Gunewardene and Rhodes, makes a statement in which he admits that he and the co-defendant were involved in an offence and then gives evidence denying the statement and saying that neither were involved then, as against him, the statement can be put in by the prosecution to prove the truth of its contents. As against the co-defendant, it can only be used to destroy the credit of the defendant. It provides no evidence that the co-defendant was involved but can be used to destroy the defendant's credit when he says that the co-defendant was not involved. The basis for the rule is clear. The statement having been made outside the hearing of the co-defendant and never having been adopted by him cannot be evidence against him as to its truth.

71. The above has application where the statement is put into evidence by the prosecution. Mr. Plowman argues that it has equal application when it is put in by the defence as was the case with Exhs.P24 and P25.

72. It is contended that the judge was wrong to invite the jury to consider the contents of those two records of interview and that she should have directed the jury that they should ignore those parts of Exhs.P24 and P25 which contained the irrelevant and prejudicial material. It is submitted further that there was a failure to direct the jury as to the purpose for which those exhibits had been introduced and as to the limited issues to which their contents were relevant.

73. It is finally urged that there was a failure to direct the jury that the contents of Exhs.P24 and P25 could not be evidence of the truth unless the accomplice Chan agreed that was so in his evidence.

74. As to Exh.P24 Mr. Cheng Huan, as the transcript indicates, was tendering the interview in order to prove the truth of its contents. He was, in terms, putting its truth in issue. In such circumstances no criticism can be made of the judge for failing to give the direction suggested. Such a direction would have been wholly inappropriate. Further, as the defence was seeking to rely upon the truth of the contents of the interview, it could not possibly be suggested that the lack of that direction worked to the detriment of the defence.

75. There is one other matter as regards Exh.P24. Chan said in the interview that D3 was rumoured to deal in racketeering. It is suggested that this was clearly prejudicial. It must, however, be remembered that the interview was put in unedited by the defence. It is not difficult to see why the defence might have wished that that observation be not edited out of the statement. It showed Chan in a poor light as a person who was prepared to repeat disparaging "rumours" about his friend. Although it is not necessary to do so, we finally observe that we are not persuaded that the jury would, in the outcome, have placed any weight upon that observation.

76. We turn to Exh.P25. This contained telling evidence against the defendants but was put into evidence by Mr. Lok after it had been edited as he required. After it was proposed that both the edited tape and the edited transcript should go before the jury, Mr. Lok said, "This is perfectly agreeable. Except thinking ahead, comes the time when they retire to consider their verdict they may wish to see the tape or the tapes in which case there would not be a technician here to assist them". Mr. Lok was, it seems clear to us, not making any suggestion that the use to which the jury could put the tape should be in any way limited. Further when Chan's evidence is examined carefully and is compared to what he had said in this interview, it can be seen that his evidence to a considerable extent but in a clearer and much more explicit way, repeats what was said in the interview. Differences, of course, exist between the evidence and what he said in the interview which was, at times rather confused. Where his evidence varied from the interview, Chan readily agreed that the interview was wrong and confirmed the truth of what he had said in his evidence. Mr. Lok cross-examined the witness upon what he termed the "salient features" in the interview.

77. Exhibit P25 was, we are satisfied, placed before the jury by the defence in order to challenge the truth of its contents. The suggestion was that it was concocted, and that Chan's evidence was concocted and that the jury would, having compared the evidence and the interview, have grave doubts as to the truth of both. Putting in the interview to prove it untrue is, of course, the other side of the coin relied upon by Mr. Cheng Huan who put in Exh.P24 to prove that it was true. Nonetheless what was put in issue as regards both Exh.P24 and Exh.P25 was the truth of what was said and no direction was required limiting the use to which the exhibits could be put.

78. We turn to Exh.P27, the video tape of the visit to the premises at Wu Kei Sha. As regards this exhibit the complaint is that the judge should have directed the jury that they should ignore those parts of it which were irrelevant and prejudicial and that she failed to direct the jury that the contents of it could not be evidence of its truth unless Chan agreed that that was so in his evidence.

79. We find the argument in this regard a little difficult to follow. Counsel, the record shows, did not pursue any objection to the use of this material in re-examination. It is for the most part no more than a description of the premises about which Chan had given evidence. It is true that in the course of this description he says that "Ah Cheung", presumably Y.C. Lee, and D2 were involved in the manufacture of drugs in those premises but this was the evidence which he had already given. Again we are satisfied that no direction was required as regards that video tape.

80. Ground 3 raised an objection to the ruling of the judge that allowed prosecuting counsel to re-examine accomplice Chan (PW3) by referring to the contents of a summary of facts which he had admitted when he pleaded guilty to a charge of conspiracy to manufacture a dangerous drug. Counsel submitted that he was entitled to do so as Mr. Cheng Huan "sought to minimise his role".

Mr. Cheng Huan in the passage we have set out indicated that he had no objection to the summary being put to the witness as long as it went only to his role.

81. When the court resumed on the following day, it appears that the agreed portion of the summary of facts was put to the witness without any further objection from counsel. It is now suggested that whatever counsel may have agreed, the only exception to the rule that a witness is not permitted during the course of evidence to testify as to previous statements which are consistent with his present testimony is to rebut an allegation of recent invention or fabrication. It is submitted that there was no suggestion of recent invention in the present case and that the judge should not have allowed matters from the summary of facts to be put to the witness.

82. It certainly seems to us arguable that a suggestion to an accomplice that he has, since he pleaded, changed his position and is minimising his role is closely parallel to an accusation of recent invention. Indeed this seems to have been the view taken by defence counsel. The witness had been cross-examined upon the basis that when giving his evidence he was minimizing his role, i.e. was at the time of the trial trimming his evidence for the purpose of shifting blame from himself. The prosecution sought to show that this was not so as he had earlier when he pleaded guilty admitted facts which were consistent with his present testimony. The parties agreed with the judge as to what could be put to the witness. In such circumstances we do not see how the judge can be criticized for allowing counsel to re-examine as he did.

83. Ground 4 complains that prosecuting counsel wrongly told the jury that they could rely upon accomplice Chan's plea, which was an admitted fact, to conclude that he was telling the truth about the applicant's involvement.

84. The admitted facts were as follows:

"6. On 21st June 1996, Chan Soong-kwong, the person named in the indictment, was arrested by the Hong Kong Police Force. He was later charged that together with Lau Kwok-hung, Lau Kwok-ching, Ng Kam-hing and Mak Kam-chuen, Lee Yin-cheung and Liu Kwok-keung, he conspired to manufacture a dangerous drug (salts of esters of morphine) contrary to Common law and section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

7. The said Lee Yin-cheung, holder of Hong Kong Identity Card No.XXXXXX(X), died at Nam Wai Village, Sai Kung, Hong Kong from injuries sustained in a fall on 23rd October 1992, aged 35 years.

8. The said Chan Soong-kwong pleaded guilty to this count before a Magistrate, P.J. Line Esquire, on 11th September 1996 and he was committed to the High Court for sentence."

85. When addressing the jury prosecuting counsel said:

"A significant guide to his credibility, you may think - this is Chan - is continued (contained) in paragraph 6 and 8 of the admitted facts. The 6th paragraph simply records that Chan was arrested on 21 June and later charged together with Lau Kwok-hung, Lau Kwok-ching, Ng Kam-hing and Mak Kam-chuen, Lee Yin-cheung and Liu Kwok-keung, he conspired to manufacture a dangerous drug - salts of esters of morphine. It's what we see in our indictment in effect. At paragraph 8, Chan Soong-kwong pleaded guilty to that charge on 11 September 1996 and was committed to the High Court for sentence, and he's still awaiting sentence.

So if events didn't happen at Fairview Park in the way he says they did, didn't involve persons he says they involve, you may well want to ask yourselves: why his plea to this charge, his plea of guilty? In fact in the context of the evidence of Ng and Chan, bearing in mind their criminal backgrounds, their accomplice status, in fact if you are able to deal with those in terms of their credibility, who better than an accomplice or in this case two accomplices who actually participated in the criminal act alleged to tell you the jury what actually happened during the criminal act itself? What better person to tell you about it?"

86. The trial judge directed the jury in the following terms:

"He has pleaded guilty. The fact that he has pleaded guilty is not evidence against any one of these defendants, that is a completely separate matter. It does not have any bearing on whether these defendants are guilty or not guilty of this conspiracy. It does not mean that the 1st, 3rd and 4th defendants are involved in any way. He has pleaded guilty, and he must be dealt with and sentenced. He has a criminal background. Admittedly it is of a lesser nature than the criminal background of Mr. Ng, but he does not appear before you as a man of good character either. He has triad background too, and you must examine his evidence with great care and look at his credibility very critically."

87. It is submitted that the judge failed to direct the jury as to the use to which they could properly put the plea and failed to direct them that they could not use that evidence in the way suggested by prosecuting counsel. It is suggested, in short, that the direction was correct but that it did not go far enough. We do not agree. The judge in the clearest terms told the jury that they could not use the plea to prove the guilt of the applicants.

88. Ground 5 is a general submission that the convictions were unsafe and unsatisfactory.

89. Ground 6 submits that the judge "wrongly directed the jury that the date of commencement of the Tenancy Agreement in respect of Fairview Park premises was evidence of the truth". We find some difficulty understanding this ground. The judge said: "The tenancy agreement indicates that it could take place from about 1st August onwards, no one is very clear exactly about the time that the manufacturing at Fairview Park covered." It was an agreed fact that on 1st August 1986 a person in the name of Chan Soong-kwong rented the premises. Chan the accomplice, who bore that name, said that he was a party to the agreement and that he rented the premises at about that time. If there was an any error by the judge, and we are not sure exactly what it was, it was not one of any significance.

90. In Ground 7, it is submitted that, having regard to the fresh evidence introduced by D4 upon the hearing of this application and the impact of that evidence upon the credibility of PW3 the convictions of D1 and D3 are unsafe and unsatisfactory.

91. There is no merit in Grounds 1 to 6 and we now turn to deal with the application of D4 upon which reliance is sought to be placed in Ground 7.

92. Originally D4 filed Grounds of Appeal in which he sought to rely upon fresh evidence and an application was made for leave to introduce that evidence before this court. The matter arose in the following way. D4 said that at some point while the alleged conspiracy was afoot he was involved in a traffic accident and was hospitalized. It was submitted that, despite diligent efforts by his solicitors, they had not been able to uncover crucial documentation that would have proved this to have been so and that this was, in part, occasioned by the failure of the hospital to produce their records and, in part, by the failure of the police to produce their records. It is submitted that this evidence, if available, would have cast real doubt on the reliability of the evidence of the accomplice Chan, the sole identifying witness against D4. Further, it is submitted that the judge in her summing-up had undermined the evidence of Dr. Lee, who was called by the defence, and had suggested that the evidence adduced on behalf of D4 was suspicious solely because of his status as a defendant. Initially this was the only ground which the applicant sought to argue. However, at the conclusion of the address of Mr. Plowman, Mr. McCoy sought to rely also upon the grounds advanced by Mr. Plowman and upon the argument which he had advanced in relation thereto. Leave was given to amend D4's grounds of appeal accordingly.

93. It was the prosecution case that D4 was involved only in the manufacturing at Fairview Park after the second occasion. Only the accomplice Chan identified D4. We have already outlined the evidence of Chan as to the times when manufacturing took place at Fairview Park. As far as he could recall the fourth manufacturing took place during the last 10 days of September. He was not sure if there was any manufacturing thereafter. We have earlier set out the transcript of the lengthy cross-examination of Chan about the accident. He maintained that D4 was present during the fourth manufacturing and said that he knew of his accident and had seen him both before and after it.

94. D4 did not give evidence at trial. Dr. Lee Cho-hung gave evidence of the admission of a Mak Kam-chuen to St. Theresa's Hospital on 2nd October 1986 with a fractured nose. He said that Mak gave a history of a traffic accident on 27th September and of admission to Queen Elizabeth Hospital from which he had discharged himself on 1st October. He said that Mak was hospitalized and discharged on 10th October. Dr. Lee's report was submitted. Of this the judge said:

"The second documentary exhibit you have is Dr. Lee's report. I point out that this report is not a contemporaneous report. In other words, Dr. Lee didn't write his report at the time the events took place, or shortly thereafter. It was compiled in May of this year by him, using information that he recorded on his clinical file about the patient Mak Kam-chuen. So you can accept his report as accurate about the visits made by the 4th defendant and the treatment that Dr. Lee gave him, but bear in mind that all the information about the accident and, in particular, the accident date, is given to Dr. Lee by the 4th defendant himself.

Therefore, in the absence of any supporting evidence, there's no real evidence that traffic accident, for instance, ever occurred, or if it did occur, it occurred on the particular date Dr. Lee has recorded. You may feel that it is unlikely that they would have made up a date about an accident or, indeed, about the cause of his injuries, but both matters are possible."

95. It is submitted by Mr. McCoy that independent evidence establishing the date of the accident and consequent hospitalization was of vital importance to the defence. It is suggested that the judge lessened the impact of Dr. Lee's evidence as to the accident and the applicant's hospitalization by saying that there was no real evidence that the traffic accident ever occurred or as to the date on which it was said to have occurred.

96. Just before the trial in on 27th May 1997, D4's solicitors had written to Queen Elizabeth Hospital requesting release of records relating to his admission to the hospital and his treatment therein. The hospital replied on 3rd June that the relevant records had already been destroyed. His solicitors also wrote to the Hong Kong Police (no date is given of this letter) requesting them to provide the police records of the traffic accident. The police replied that they had no such record.

97. On 19th August 1997, D4 wrote to Hong Kong Police Headquarters requesting police records of the accident, and on 27th September 1997 he received a reply saying that that his request had been passed to the Accident Investigation Division, East Kowloon for their handling. On 25th September 1997, his solicitors wrote to the Hong Kong Police again requesting their records of the traffic accident, and on 30th September a reply was received saying that the records had been destroyed. On 13th October 1997, he wrote to the Queen Elizabeth Hospital requesting their record of his treatment and on 7th November 1997, he received a reply saying that there was no such record in existence.

98. The matter stood thus until the police, at some later time, sent D4 a copy of the Police Accident Investigation Report Book which showed that an accident in which he had been involved had occurred at 0430 on 27th September 1986. He then wrote again to the Queen Elizabeth Hospital on 24th December 1997 enclosing a copy of the police accident investigation report book and, as a result, was told that the hospital authorities had conducted a search in which they found a 1986 record book which showed that at 0420 on 27th September 1986 a male had been registered in the name of Mak Kam-chuen for treatment at the hospital and had been admitted at 0433 hours. The applicant also received from St. Theresa's Hospital information that he had been hospitalized there during the period from 2nd October 1986 to 10th October 1986 under the care of Dr. Lee Cho-hung. He received further information from Queen Elizabeth Hospital that he had been discharged from that hospital on 1st October. D4 seeks to place the above evidence before this court saying that it was unavailable to him at the time and would have been material to this defence.

99. He raises two matters. He says, firstly, that there was a misdirection as to the presumption of innocence and, secondly, that he has new evidence, which we should admit which is of sufficient weight to warrant the quashing of the conviction and an order for a new trial.

100. The first submission is that the trial judge misdirected the jury when commenting upon the evidence of Dr. Lee in a way which undermined the presumption of innocence and deprived D4 of a fair trial.

101. We were referred to R. v. Leung Kit-chun, (1994) 1 HKC 168, in which the judge directed the jury, when dealing with the evidence of a defendant who had been charged with trafficking in dangerous drugs, that

"There is every motive for her to lie to you and it's also to her advantage to lie to you."

102. The Appeal Court was satisfied that:

"The passage cited clearly indicated to the jury that because the applicant was the accused, she had every motive to lie and that it was to her advantage to lie. The only reasonable inference that the jury could have drawn from this was that she was a suspect witness whose evidence had to be scrutinized with particular care for no reason other than that she was the accused. Although we do not think that the judge intended it, this had the effect of depriving the applicant of the benefit of the presumption of innocence."

103. Reliance was placed also on the decision in R. v. Robinson, (1991) 55A Crim.R. 318 at 321, where the High Court of Australia said:

"If the presumption (of innocence) is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which the presumption gives to an accused person. Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the test which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct the jury that they should evaluate evidence on the basis of the interest of the witness in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown."

104. We accept the authority of both of these cases but have very considerable doubt that they have any application to the present circumstances. All the judge did when directing the jury in the present case was to point out that D4, who had not given evidence, had been the one who had supplied Dr. Lee with the particulars of the alleged accident. This was so. There was no suggestion that the defendant was a suspect witness but simply an indication that there was no direct evidence as to the date of the accident. The judge did not, as she might have, tell the jury that Dr. Lee's evidence was hearsay to which no weight should be attached but simply pointed out that the evidence of the accident given by Dr. Lee came from D4 who had, of course, not given evidence. She finally said that it was unlikely that the doctor and the applicant would have made up such a date. This direction was favourable to the accused. We do not consider that there was any undermining of the presumption of innocence. The judge was not, as was so in R. v. Robinson, directing the jury to apply particular scrutiny to D4's evidence - he had not given any.

105. We turn to the second submission. Does justice require that we allow this evidence to be placed before us and order a new trial? We are satisfied that it does not. The evidence is far from cogent. Accepting it to be true, it can sit comfortably with the evidence of Chan who admitted that an accident had occurred but said that it had not occurred at the time of the fourth manufacturing. Whether or not the jury considered that D4 was hospitalized from the 27th of September we have no doubt, given that they accepted the evidence of Chan, as they clearly did, that their verdict in either case must have been the same. We do not consider that the interests of justice require its admission and we refuse the application to place it before us.

106. The applications of D1, D3 and D4 are without merit and are dismissed.

Sentence

107. All three applicants in this matter also appeal against sentence. D1 and D3 were each sentenced to imprisonment for 30 years and D4 sentenced to imprisonment for 20 years.

108. When sentencing the judge said:

"Each of these defendants has been convicted by a six to one majority of conspiracy to manufacture dangerous drug, the dangerous drug being heroin. The period of the conspiracy ran from about 19 March 1986 to about November of 1986. Manufacturing took place at two locations, first of all at Wu Kai Sha, and then later at an address at Fairview Park. The witnesses at this distance, from the date of the offences, were unclear as to the number of occasions the manufacturing took place at each place, but it was at least three at Fairview Park and four at Wu Kai Sha. On each occasion approximately 70 pounds of heroin was made. At a conservative estimate, the amount made was between 400 and 500 pounds.

It was clear from the evidence that D1 and D3 were major organisers of this manufacture, and D1 and D3 shared the proceeds. It was clear from the evidence of the two witnesses that the other assistants were paid wages for their part in this risky, but very lucrative venture. It was clear from the evidence that the 4th defendant came into the venture at a fairly late stage, and that he too was a paid assistant.

The 1st defendant has one previous offence of robbery, which was an elderly offence committed in 1973. The 3rd defendant has an offence in 1982 involving forged documents and driving a vehicle without a valid licence. He was sentenced to a total of five and a half years' imprisonment for a conspiracy to obtain payment of moneys and other property by virtue of a forged instrument, and also a conspiracy to offer an advantage.

The 4th defendant has a comparatively minor record, mainly involving offences that relate to vehicles. The most serious offence was a four year sentence for taking a conveyance without authority in 1982. He does have one minor drug offence in 1989, but that does not appear to have been repeated.

I accept that the age of this offence is now 11 years, nevertheless, that does not lessen in any way the seriousness of the offence, and even in the 1980's offences of this type were attracting sentences in excess of 20 years.

In respect of the 1st defendant and the 3rd defendant, I sentence them to 30 years' imprisonment.

Interpreter: 30?

Court: Three zero. In respect of the 4th defendant, I sentence him to 20 years' imprisonment."

109. It was argued in each case that the sentences were manifestly excessive having regard to the sentencing practice prevailing in 1986 for the commission of large scale drug offences.

110. As regards D1, it is also argued that the judge failed to take into account the lesser role which he played and in particular the absence of any evidence connecting him to the manufacturing at Wu Kai Sha and the limited nature of his involvement in the manufacturing at Fairview Park.

111. As regards D4, it is similarly urged that the judge failed to take into account the lesser role which he played and in particular the limited nature of his involvement in the manufacturing at Fairview Park.

112. We accept that sentences should be in accord with the sentencing practice prevailing at the time of the commission of the offence. The trial judge had said:

"I accept that the age of this offence is now 11 years, nevertheless, that does not lessen in any way the seriousness of the offence, and even in the 1980's offences of this type were attracting sentences in excess of 20 years."

113. We do not intend to canvass the cases cited to us. It suffices to say that they indicate quite clearly that dangerous drug offences in the most serious band, as was the present case, attracted sentences which were not in excess of 20 years. The sentence imposed on D3 was, given the sentencing practice prevailing at the time, excessive and we order that it be varied to a sentence of 20 years. Should the sentence to be imposed on D1 be further reduced to take into account the fact that he was only involved in the manufacturing at Fairview Park? We are satisfied that it was right for the judge to take the view that D1, who was a chemist and the brother of D3 was intimately involved in the organization of the venture and are satisfied further that she was right to impose upon him the same sentence as that given to D3. His sentence will, therefore, likewise be varied from one of 30 years to one of 20 years.

114. We turn to D4. He clearly played a very much lesser role than D1 and D3. He was only recruited halfway through the operation at Fairview Park. We have, however, said repeatedly in the past that those who involve themselves in dangerous drug operations can expect little sympathy from this court upon the basis that they were minor players. We think, however, that the judge was right to have imposed a sentence on D4 which was substantially less than that imposed on D1 and D3. We order that his sentence be reduced from 20 years to one of 14 years.

115. The applications for leave to appeal against sentence are allowed and the sentences are varied as indicated above.

Representation:

Mr. A.A. Bruce, S.C. leading Mr. Chapman (D.P.P.) for Respondent

Mr. Plowman, S.C. leading Mr. Jerome Matthews instructed by Messrs. Wong, Packwood & Co. for D1 and D3/Applicants.

Mr. G.J.X. McCoy, S.C. leading Mr. Richard Donald and Mr. Raymond Pierce instructed by Messrs. Mike So, Joseph Lau & Co. for D4/Applicant.

Remarks:
Application for leave to appeal by D4 to the Court of Final Appeal. Application for leave dismissed. Please refer to the Appeal Judgment FAMC000035/2001.