Chiu Kwok-wing v. The Queen

CACC000418/1982

BETWEEN

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Coram: Roberts, C.J., Silke, J.A. & Penlington, J.

Date: 28 October 1982

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JUDGMENT

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Silke, J.A.:

1. We dismissed this appeal and stated  we would give our reasons later. This we now do.

2. The appellant CHIU Kwok-wing- "Rocky" - was convicted after trial of the offence of conspiracy to traffic in dangerous drugs. The particulars were that he and MA Yui Man - "David Ma" - between the 1st February 1981 and the 27th September 1981 in Vancouver, Canada and in this Colony conspired together and with Joseph Jack Ma "Hobo Ma" - to traffic in dangerous drugs. His appeal was against that conviction.

3. Shortly after the trial started David Ma pleaded guilty was sentenced and, later; was called as a witness for the defence.

4. Briefly it was the Crown's case that in February of 1981 Hobo Ma approached an ex convict named Robert Thibodeau - "Bob". Bob, since his release from prison in 1978, had been working with the Royal Canadian Mounted Police as an under cover agent on a salary basis. He had been receiving Canadian $1,900, and no other benefits, since February 1981. He had known Hobo Ma for about three years at the time the approach was made in Vancouver. He met Hobo on a number of occasions in that month and Hobo suggested that he and Bob go into partnership and that Bob should go to Hong Kong to acquire heroin. There was to be a steady supply to Canada and the supplier was to be one Rocky.

5. In subsequent meetings between the two, Bob keeping informed his then police contact of that which transpired, there were discussions concerning the proposition.

6. On the 27th February Bob introduced Hobo Ma to a person ostensibly his brother but in reality Corporal Pineault of the Mounties - "Pierre".

7. On the 28th February the trio, and Bob's girl friend, had dinner together in Vancouver. At one point the girl left the party and Bob told Hobo Ma that Pierre would be going, to Hong Kong with him and that Pierre had "a substantial amount of money to throw into the arrangement". They would all be in partnership. The availability of money was discussed, the girl friend then returned and conversation moved to other topics, it having first been agreed that on the 1st March a telephone call was to be made to David Ma in Hong Kong. David Ma was known to Bob .for about four years, they having met in Canada.

8. Hobo Ma did make that call from a public call box and contacted David Ma. Bob spoke to David Ma telling him he would arrive in Hong Kong on the following Thursday. Hobo Ma then spoke with David Ma and later said to Bob that he had told "them" when Bob and Pierre would be coming to Hong Kong.

9. Come to Hong Kong they did, arriving on the 5th March. They were accompanied, unknown to Rocky and David Ma, by one Sergeant Paterson of the Royal Canadian Mounted Police. On the 6th March Rocky drove Bob, Pierre and David Ma into the New Territories where discussions took place concerning the heroin. Later, in the Sheraton Hotel, a sample of the drug was pulled out of his sock by David Ma and was tested by Pierre - this in the presence of Rocky. Further discussions by way of the exchange of notes took place, the deliberately raised sound of the television set precluding ordinary conversation. All this for reasons of security.

10. There were further meetings, at all but one of which Rocky was present. Two more drug deliveries were made.

11. The Canadian party returned to Canada where, in July, they purported to set up a cover business Dragon Kung Fu Store. A letter was written to Rocky and David informing them of this and containing disguised references to heroin. The letter was posted to Rocky's address which had been given to them by Rocky and David Ma.

12. On the 12th August a telegraphic transfer for $4,000 was sent to Rocky of which David Ma acknowledged receipt on the 21st August.

13. Some time around this period Hobo Ma dropped out of the partnership.

14. On the 15th September the Canadians returned to Hong Kong, contacted Rocky and David Ma and further negotiations took place. These included the division of profits. On the 16th September they all had a meal together at Lei Yue Mun where the sale of 7.5 lbs. of heroin at a price of HK$500,000 was discussed. Negotiations however broke down.

15. On the 17th September Pierre took Rocky to a bank deposit box where the sum of HK$500,000 was shown to him. This money had been provided by the Royal Hong Kong Police Force who were working in full cooperation with the Canadian authorities.

16. There were further negotiations on the terms of the agreement on the 22nd September but the deal eventually fell through.

17. The Canadians returned to Canada and the police in Hong Kong arrested Rocky and David Ma a day or so later.

18. It had been the evidence of the Canadians that, while Rocky's English appeared rudimentary, in all meetings at which he and David were present the latter acted as an interpreter and had passed on to Rocky all that was said. Further, Rocky appeared to them, although they had to rely to a large extent on what David Ma said to them, to be the leader.

19. It was the appellant's defence that at all times until the bank visit in September he had thought the arrangements being discussed concerned the sale of jade to the Canadians; that he did not understand English and that he was duped by David Ma and used by him simply as a cover.

20. As I have said David Ma was called by the appellant in his defence.

21. He supported, so far as his evidence went, the story told by the appellant. He was evasive in cross-examination and the jury, as they were entitled to, disbelieved him and in turn the story told by the appellant. There was also called a jade dealer Chiang Yiu Sang who clearly was also disbelieved.

22. Grounds 2 to 6 of the additional grounds of appeal can be briefly summarised as being the failure of the trial judge to direct the jury that, the false and the true Thibodeau being neither co-conspirators nor accomplices, their words an actions were not admissible as against true conspirators to prove their guilt; they would be admissible as part of the general background evidence in the trial but not as being probative of the guilt of those on trial.

23. Further it was submitted that the mere presence of the appellant at the scene while admissible evidence cannot be treated as proof of guilt.

24. We accept that where a charge of conspiracy is tried there are special rules of evidence which do not apply to other forms of criminal trial that is apart front those involving common design. Evidence of the words and actions of a co-conspirator in the furtherance of the conspiracy is evidence against the other conspirators just as much as their own words and actions would be

25. We accept that the Canadians were neither, accomplices nor co-consipirators and we further accept that their words and actions, of themselves, are not evidence probative of the guilt of those accused.  It is the reaction of an accused which may be treated as the probative evidence of guilt.

26. However Counsel was unable, though invited to do so, to point out to us any particular piece of evidence which came before the jury which required the direction he says the trial judge failed to give. He relied on the general principle that such a direction was a requirement the absence of which vitiated the conviction.

27. This we do not think to be so. Much of the evidence of the Canadians related to conversations they had with one or other of the named conspirators, a good deal of which took place in the presence of the appellant.

28. That which did take place in the absence of any named conspirator was so clearly a matter of perfecting the trap laid by the Canadian and Hong Kong authorities that this must have been manifestly clear to the jury. Those matters were in no way probative of the guilt of the appellant for it could hardly be gainsayed that a conspiracy did exist and the issue was whether he was or was not attached to it.

29. The conversations which took place between the true and the pseudo conspirators were part of the general evidence in the case. That which the pseudo conspirators said and did provoked reactions in the true conspirators. Any attempt by the judge to isolate that which the pseudo conspirators said as being admissible evidence but not evidence probative of guilt when there was either the to and fro of a normal conversation or the exchanging of notes which were subsequently produced would have merely served to confuse the jury.

30. The only other ground argued was Ground 11 which alleges a failure on the part of the trial judge to put the appellant's defence to the jury adequately. Of the subgrounds of this ground only (6) we thought to be of any substance. It is correct that Bob Thibodeau had a long criminal record. It is equally true that there was no attempt made at concealing this from the jury. On the contrary, his record and the prison sentences he served were set out in detail in his evidence. There was no suggestion that he was a form of bounty hunter. He was a salaried employee of the Royal Canadian Mounted Police, even if he had a dubious background. The jury could not in the circumstances have been unmindful of the nature of this witness. We do not think the directions given by the trial judge as to Bob Thibodeau's credibility were deficient.

31. We therefore dismissed the appeal.

Representation:

D. O'Reilly Mayne, Esq., Q.C. & Miss Sze Kin, instructed by Messrs. Chan & Chan, for the appellant.

J.P. Chandler, Esq. for the Crown/Respondent.