Chu Kwan-kong and Others v. The Queen

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 10th March, 1978.

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JUDGMENT

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Pickering, J.A.:

1. All ten appellants were convicted of conspiracy to traffic in dangerous drugs whilst the first appellant was additionally convicted of conspiracy to deal with dangerous drugs and the second and the ninth appellants of conspiracy to manufacture a dangerous drug. All the appellants appeal against their convictions and sentences.

2. Perhaps the ground of the appeal of the widest import was one which we allowed Mr. Sedgwick, for the fourth, fifth and sixth appellants, to argue although the point had not been taken in the court below and had not been included in his Notice of Intention to Seek Leave to Argue Additional Grounds of Appeal. Since this ground of appeal concerned the count alleging conspiracy to traffic in dangerous drugs, a count faced by all the appellants, Mr. Sedgwick's arguments were adopted by Mr. Ming Huang for the first, seventh, eighth, ninth and tenth appellants and by Mr. Sanguinetti for the second and third appellants. The argument was to the effect that the count alleging conspiracy to traffic in dangerous drugs was bad for duplicity in that it alleged "a conspiracy to traffic in dangerous drugs, namely, salts of esters of morphine, a salt of morphine and barbitone, contrary to section 4 of the Dangerous Drugs Ordinance". Salts of esters of morphine being what is commonly known as heroin, the suggestion was that three conspiracies were charged, namely, conspiracy to traffic in heroin, another to traffic in morphine and the third to traffic in barbitone.

3. Forceful as Mr. Sedgwick's argument was, we are not persuaded that any more than a single conspiracy to traffic was charged. Essentially what is alleged here is a conspiracy to traffic in dangerous drugs and those drugs are particularized as heroin, morphine and barbitone, - morphine being the raw material from which heroin is manufactured and barbitone the substance with which the heroin is subsequently "cut". In the case of Dawson⁽¹⁾ where it was held that a number of conspiracies were alleged, the count charged conspiracy to cheat and defraud such persons as might be induced to part with monies and goods in connection with transactions relating to the purchase, sale and processing of orange juice concentrate, and the purchase, sale and conversion of buses, bogies and landing vehicles, and such persons as might be induced to discount bills of exchange accepted by Dawson or companies with which he was associated, by false pretences and by fraudulent conversion, and by other false or fraudulent devices. It is at once apparent that the allegations in Dawson covered a very much wider spectrum than do those in the present case. Thus what was alleged in Dawson was an amorphous agglomeration of entirely separate transactions: the discounting of bills of exchange, for example, was far removed from the sale of orange juice or landing vehicles. Whilst the interpretation of a count as alleging a single or a plurality of conspiracies will frequently depend upon the phraseology adopted and whilst there is an obvious need for great care in the framing of a count of conspiracy so as to avoid the trap of alleging more than one conspiracy we hold that in the present case the only conspiracy alleged was that to traffic in dangerous drugs, the naming of those drugs being in the nature of particulars of that one conspiracy.

4. The evidence in this case has revealed trafficking in heroin on the part of all the appellants and trafficking in morphine on the part of the first, second and ninth appellants but that is no impediment to the case being left to the jury for the conspiracy alleged is essentially one to traffic in dangerous drugs and both are dangerous drugs within the meaning of the Dangerous Drugs Ordinance. All the appellants performed overt acts in relation to heroin and some in relation to morphine. If it were necessary, which we think it is not, to consider the case of heroin and morphine separately the words of Lawton, L.J. in Reg. v. Greenfield⁽²⁾ are in point. There the learned Lord Justice said:

"At the end of the prosecution's case the evidence may be as consistent with the defendants, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the defendants, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury."

5. Support for the view that what is alleged is one conspiracy only is to be found in the case of Meyrick v. Ribuffi⁽³⁾ where the first count of the indictment alleged that the former police sergeant Goddard and the

"two appellants on divers days between the 1st October 1924 and the 24th November 1928 in the County of London, conspired together, and with one Anna Gadda, and other persons unknown, to contravene the provisions of the Licensing Acts by the unlawful sale of intoxicating liquors, and to effect a public mischief by obstructing the Metropolitan Police in the execution of their public duty, and by corrupting officers of that force and contriving to secure that they should make to their superior officers false and misleading reports upon matters referred to them in the course of their official duty for investigation, and thereby to prevent the due administration of the law, and to defeat and pervert the course of justice."

6. These were particulars of the statement of offence which alleged simply "conspiracy to commit unlawful acts." It will be observed that these particulars alleged three distinct matters:- (a) to contravene the provisions of the Licensing Acts; (b) to effect a public mischief; and (c) to defeat and pervert the course of justice. Yet despite these very wide particulars alleging a variety of misdeeds the Court of Appeal upheld the view of the judge at first instance that what was alleged was one "conspiracy to do an unlawful thing, that is to say, in substance to effect public mischief by corrupting the Police Force".

7. Distinguishing the case of Dawson⁽¹⁾ and adopting that of Meyrick v. Ribuffi⁽³⁾ we would hold that what was alleged here was a single conspiracy to traffic in dangerous drugs.

8. The question then arises whether the evidence established that all the appellants were party to the one conspiracy. The jury drew the inference that they performed the overt acts pursuant to a common design, and it is irrelevant that some did not know of all the overt acts of all the others provided that that inference was justified. In this connection it is necessary to identify the roles allegedly played by each of the appellants and to indicate in broad outline what the evidence for the Crown amounted to. It must be stated at once that the Crown's four principal witnesses were all accomplices having been couriers of heroin and two of them having also stored both that commodity and morphine. It was the contention of the Crown that the first and second appellants headed a large drug syndicate; they are husband and wife and the wife was said to have played the greater role. The third appellant was said to be a smaller fry who accepted deliveries of heroin whilst the fourth and fifth appellants, who are husband and wife, were said to have been supplied with heroin by the second appellant and on occasion to have supplied heroin to her. The sixth appellant was said to have been a retailer of heroin who obtained his supplies from the first and second appellants whilst the seventh appellant was employed by the first at a heroin retail stall. The eighth appellant was a courier of heroin from Hong Kong to Paris, not carrying the drug himself but accomparying a girl upon whose person the heroin was concealed. The ninth appellant was said to have worked in various heroin refineries belonging to the second appellant whilst the tenth appellant was a courier employed by the first and second appellants.

9. No difficulty arises in relation to the first and second appellants, who were the organisers of the syndicate, or to the ninth appellant, who worked in the refineries. It is in relation to those appellants who carried or purchased only heroin or only morphine that one has to ask "Did they know of and agree to be party to, the first and second appellants' trafficking in the other drug?" There could be no heroin in the sense in which we have used that word unless someone had produced it from morphine and it is notorious that morphine is rarely used by those who are the ultimate purchasers in the illicit trade in dangerous drugs until it has been further refined into heroin. It must have been obvious to all those who had dealings with the first and second appellants that the first and second appellants were in a substantial way of business, that they were running at least one refinery and that they were dealing with both morphine and heroin. If, having that knowledge, the other appellants had dealings with them in either drug they thereby consented to the dealings in the other drug. Accordingly the jury were entitled to draw the inference they did.

10. The first of the accomplice witnesses was a man, Chiu Chat-yam a cousin of the first appellant who, in mid 1968, started to deliver small quantities of heroin from his home, which was also the home of the first appellant, to a gambling stall in Fu Fan Square which was operated by the first appellant. This activity continued until 1969. In 1970 Chiu Chat-yam began to work for the first appellant at another gambling stall controlled by the first appellant and at this stage he came to know the second appellant with whom the first appellant was cohabiting. It was Chiu Chat-yam's evidence that early in 1971 he began making deliveries of heroin for the first appellant to a man who has not been apprehended and who was known as Choi Shuk; such deliveries were effected in Tsz Wan Shan Estate. The witness further stated that from April 1971 he stored heroin in large quantities at his home for the second appellant and also made deliveries of heroin from there having previously collected it for storage from refineries controlled by the second appellant. Chiu Chat-yam claimed to have delivered heroin to the sixth appellant and to have obtained payment from him and also to have made deliveries to the seventh appellant at a heroin retail stall in Yuen Long operated by the first and second appellants. His evidence continued that in May or June of 1971 he started to store morphine blocks for the second appellant first collecting them from her and later delivering them to the eighth accused who was acquitted in the Court below and to the ninth appellant, they being husband and wife, at Flat H Block A, Mandarin Building, 10th floor, Yuet Wah Street, Kwun Tong from which address he would later pick up the finished product - heroin - and deliver it to various customers on the instructions of the second appellant. Some of this heroin, Chiu Chat-yam says, was delivered to the third appellant as well as to the fourth and fifth appellants.

11. Chiu Chat-yam during the period under consideration lived with his common law wife "Nancy" at various addresses and his evidence was that he stored heroin and morphine at each of these addresses. In April 1973, he claims, he ceased to act as a courier of heroin but thereafter used to drive Nancy on deliveries which she effected. He gave evidence of paying money received for the sale of heroin into the second accused's bank account and that account revealed that in 1971 Chiu Chat-yam had paid into it more than a quarter of a million dollars.

12. The second accomplice witness, like the first, is related to the first appellant and is also related to Chiu Chat-yam, the first accomplice witness. He is Chiu Chong-yip and he testified to having been employed as a courier and storekeeper by both the first and second appellants from about the middle of 1973 until the middle of 1974. His functions were essentially the same as those of Chiu Chat-yam, that is to say the storage of heroin in his home and the delivery of heroin to various customers of the first and second appellants one of whom he claimed was the sixth appellant Lam Pui-ching.

13. The third main witness, and also an accomplice, was Mok Kan-por who was a chauffeur for the first appellant and who testified to driving couriers of heroin for the first appellant including the seventh and tenth appellants; it was also Mok Kan-por's evidence that these couriers made deliveries to the fifth appellant.

14. The fourth of the accomplice witnesses was a woman of about twenty-six years old called Chui Tung-lan who gave evidence of having acted as a courier for the first and second appellants in transporting heroin from Hong Kong to France; it was her evidence that the eighth appellant bought the air tickets and delivered six pounds of heroin to her which was concealed upon her person. The eighth appellant, although carrying no heroin himself, accompanied her on the flight which in fact ended disastrously for the smugglers at Rome.

15. The first reason advanced by Mr. Ming Huang for contending that the convictions of the first, seventh, eighth, ninth and tenth appellants are unsafe is that the learned judge referred to the allegation of blackmail by Chiu Chat-yam as being one "without evidential support at all". The matter arose in this way. Chiu Chong-yip gave evidence of hearing the first appellant complain that Chiu Chat-yam had demanded $200,000 from him. That was hearsay. The first appellant did not give evidence. In a statement made by Chiu Chong-yip to the police on 8th December 1976 he said that he had been told by the elder sister of Chiu Chat-yam that Chiu Chat-yam "wished to get back [his] daughter, otherwise he would disclose all illegal activities of [the first and second appellants]". In a second statement, made on 10th December 1976, Chiu Chong-yip corrected that and asserted that what the sister had told him was that "If [he] cannot get back, [he] would go to sue him". Later in the second statement Chiu Chong-yip expressed his opinion that "it was quite impossible" for Chiu Chat-yam to have made the alleged blackmail demand. The only other evidence of blackmail - and it is the evidence most strongly relied upon by the appellants - is that Chiu Chong-yip mentioned in the presence of Chiu Chat-yam the first appellant's complaint about blackmail and that Chiu Chat-yam did not contradict the complaint. There may, of course, be circumstances in which failure to contradict an allegation may be interpreted as an admission, but in the light of Chiu Chong-yip's previous statement, showing as it does that he did not take the allegation seriously, the circumstances here were not such as to justify an inference that Chiu Chat-yam was admitting to blackmail. That being so, the judge's comment was correct.

16. Next, complaint was made that the learned judge referred to the evidence that traces of dangerous drugs had been found in May 1976 in a flat which consisted of what were formerly Flats G and H on the 10th floor of Block A, Wah Yuen (or the Mandarin) Building. At one stage, indeed, the argument as presented was that this evidence was inadmissible, but subsequently counsel submitted that it was rightly admitted but that it did not advance the Crown's case. The Crown's case was in three parts: (1) that dangerous drugs had been manufactured in Flat H between the middle and the end of 1971, (2) that during the second half of 1971 the ninth appellant and her husband (another defendant) were occupying Flat H on the 12th floor of the same building and (3) that Chiu Chat-yam had on behalf of the first and second appellants delivered heroin from that flat to the sixth appellant and others. As to (2) the suggestion was that the ninth appellant and her husband were shown to be located in 1971 conveniently in relation to a known dangerous drugs refinery. The purpose of the evidence of the finding of traces of dangerous drugs was to support the allegation that a manufactory had been conducted in the flat. There are, thus, two aspects of the matter which were argued:

(a)	did the evidence have any probative value as against the appellants and, if so, was there a prejudicial effect which outweighed that probative value?
(b)	was the judge justified in any event in commenting as he did upon the possible association between the ninth appellant and her husband with the flat?

These two aspects were not kept distinct in the course of the argument. It seems to us that the finding of the traces of drugs was relevant and admissible, that its probative value was minimal and that its prejudice was nil. The evidence was relevant because it was consistent (although not consistent only) with Chiu Chat-yam's evidence that the first and second appellants had been running a refinery there in 1971. However, its value was minimal for three reasons: (i) in the latter half of 1971 Flats G and H were separate and Flat G was occupied by a third party. There was no evidence that the traces of drugs were found in the part of the combined flat which had formerly been Flat H; (ii) it was the occupant of Flat G who subsequently knocked the two flats into one and occupied the combined flat; and (iii) there was no evidence that this person did not carry on a dangerous drugs refinery in Flat G in or before 1971 or in the combined flat at some time between 1971 and 1976. For all that the probative value was minimal its weakness must have been obvious to the jury and there was no element of unfairness in admitting the evidence. What is open to criticism is the judge's reference to the proximity of the ninth appellant and her husband to this flat without any warning that the jury should not infer guilt simply from this "association": at most it indicated opportunity, but it was an opportunity which must have been shared with a large number of innocent persons in the building. In the light of the totality of the evidence we do not think that the judge's omission of a warning upon a matter which must in any event have been self-evident to the jury, to be fatal.

17. This brings us to the argument that the evidence of the four accomplices was so inaccurate that it was not safe to act upon it in the absence of corroboration. We will consider the evidence of each in the same order as did Mr. Ming Huang.

18. Chui Tung-lan was a girl courier. An attempt has been made to persuade us that in her evidence she tried to hide the fact that she had made a statement to the police on 14th March 1976. We are not so persuaded. Much time was spent in the court below in argument about this statement. The original was not in court when the issue was first raised and could not be shown to the witness to refresh her memory. She did not recollect having made that statement but she was pressed and induced to say that she was positive she had not made such a statement. When the subject was raised again later the document was still not shown to her at first, but when it was finally shown to her she immediately admitted that she had made that statement. The whole matter has been blown up out of all proportion to its importance. It is true that there was an apparent discrepancy between her two statements as to who it was who gave her instructions to take the drugs to France. That was not, however, a point which was likely to carry much weight with the jury, because the statements when read together, were open to the interpretation that it was the first appellant who first suggested that she become a courier and the eighth appellant who actually briefed her in respect of the operation. We were referred to nothing in the evidence which was inconsistent with that explanation.

19. Then it was argued that there was an inconsistency between Chui's evidence that she was never searched on board the aircraft and Dr. Lombardo's evidence that he had searched her baggage on board the aircraft. Despite the eloquence of counsel the suggested inconsistency still eludes us. We fully appreciate that the witness was a self-confessed drug trafficker and that her evidence was given under the protection of an immunity from prosecution for her own offences, but this was made amply clear to the jury and it was for them to decide whether her evidence was to be believed.

20. As regards Chiu Chat-yam it was said that his evidence contained an inherent inconsistency and that it was inconsistent both with that of Chiu Chong-yip and with that of Mok Kan-por. The allegation of inherent inconsistency was based upon the words he used by way of preamble to the statement which he gave to the police on 19th April 1976: "Let me write down the material from the very beginning". He then went on to say that the first time he delivered goods for the second appellant was in 1971 and that the first appellant asked him "early in 1971" to deliver drugs "to the big stall for him occasionally". In his evidence he said that he carried drugs for the first appellant to the gambling stall in 1968. The witness not unreasonably insisted in cross-examination that the statement was concerned with events from the time he came to know the second appellant. Whether that explanation was true or not and what weight they could attach to the witnesses' evidence if the explanation was untrue were matters for the jury.

21. Chiu Chat-yam and Chiu Chong-yip both testified concerning a quantity of barbitone which the latter had stored and delivered for the first and second appellants. According to Chiu Chat-yam he was told by Chiu Chong-yip that he had subsequently been asked by the second appellant to throw the barbitone away but that he had in fact kept it. Chiu Chat-yam said in cross-examination that he had been told the drug had been buried in a hole under a small quantity of earth. He went on to say that some time after December 1975 he went with Chiu Chong-yip to fetch the barbitone from a hillside "in Rennie's Mill" where it had been "hidden" and that when they retrieved the drug he asked one Ah Sai in Tsz Wan Shan Estate to keep it for him. It was eventually recovered from Ah Sai's house by the police. Chiu Chong-yip's evidence was that after he had kept the drug for about a year the first appellant asked him to throw it away as it was useless and that he "threw it on a hillside behind Sau Mau Ping Estate": he did not bury it and at that time had no intention of recovering it. He agreed that he took Chiu Chat-yam to retrieve it and said that he gave it to Chiu Chat-yam who, he understood, was going to sell it. A determined effort was made to make us believe that there was some inconsistency between the witnesses as to the locality where the drugs had lain prior to their recovery, but it is manifest that both witnesses were talking of the same area behind Kwun Tong. The other inconsistencies alleged were never set before us with any degree of clarity but they appear to have been:

(i)	As to the manner in which Chiu Chong-yip disposed of the drug behind Kwun Tong:
(ii)	as to Chiu Chong-yip's knowledge at the time he disposed of the drug that it was in fact barbitone: and
(iii)	as to Chiu Chong-yip's knowledge of Chiu Chat-yam's intentions with regards to the drug after it had been retrieved.

We do not, of course, know what weight the jury attached to the evidence of each witness and how much of the evidence of each witness was believed. Chiu Chong-yip was certainly not a good witness but he was in the witness-box for eight whole days and Chiu Chat-yam for twenty-two days, so that the jury had ample opportunity of judging them. Large sections of the transcript of evidence were read to us and it is enough to say that we are not persuaded it was impossible for the jury to arrive at the truth with the required degree of certainty or that the conclusion which they reached was unreasonable. The same applies in relation to the alleged discrepancies between the evidence of Chiu Chat-yam and Mok Kan-por. Once again the discrepancies were never set before us with any degree of clarity, but we understand the main points relied upon related to the previous acquaintance-ship of the two men and to the circumstances in which they happened to meet in 1975 and 1976. That there were discrepancies must have been very obvious to the jury. They had the advantage of hearing the evidence unfold before them and were best able to judge its weight. They must also have been fully aware of the motives which the witnesses had for giving false evidence and we are not left with such doubt as to the correctness of their verdicts that we would be justified in interfering.

22. Mr. Sanguinetti, for the third appellant, relying upon the English case of Turner⁽⁴⁾, advanced the bold proposition that it was always unsafe and unsatisfactory to convict upon the uncorroborated evidence of an accomplice. The 19th century rule of practice that judges should warn juries of the dangers of convicting on the uncorroborated evidence of accomplices has, in this century, become a rule of law but that is as far as the rule goes and to hold that a conviction based on the uncorroborated evidence of an accomplice is ipso facto unsafe and unsatisfactory would come very close to holding that accomplices are not competent except where there is corroboration, which is precisely how the court in the Turner case refused to interpret the case of Pipe⁽⁵⁾. The comment of Lawton, L.J. in the Turner case, relied upon by Mr. Sanguinetti, to the effect that -

"Further, if the jury found Smalls to be a credible witness, as they did, and there was independent evidence supporting him we can find no reason for adjudging that verdicts based on his evidence were unsafe or unsatisfactory."

was saying no more than that in that case there was corroboration of Smalls but was certainly not saying that the appeal would have been allowed otherwise. It is true that in the series of cases of which Turner was the first, and which were dealt with simultaneously by the Court of Appeal that court set aside the conviction of the man Jones but this was not merely on the ground that Smalls' evidence in regard to Jones was uncorroborated but because that evidence was both uncorroborated and unsupported.

23. The evidence against the third appellant came primarily from the witness Chiu Chat-yam who testified as to having been told by the second appellant that the third appellant was a pak Pai driver who had driven for the third accused and for the husband of the third accused. The third accused, who was acquitted in the court below, was the mother of the second appellant. It was the evidence of Chiu Chat-yam that over a period of three to four months some time between the middle and the end of 1971 he delivered heroin to the third appellant who used to collect the packets at the front entrance of the premises in which Chiu Chat-yam lived, arriving invariably by car. It was further the evidence of Chiu Chat-yam that these deliveries were made on each occasion pursuant to a telephonic instruction from either the second appellant or a woman who was known as Ah Yee and whom he purported to identify as the third accused in the Court below; the instruction on each occasion was to take tea with the third appellant which was a euphemism for deliver heroin to him. It was further the evidence of Chiu Chat-yam that he had been introduced to the third appellant by the second appellant in a restaurant prior to the commencement of these deliveries.

24. There was further evidence of financial transactions between the third appellant and the third accused in the Court below and the husband of the third accused but, although these transactions were in substantial amounts, it is to be observed that they took place in 1973 and 1974 whereas the receipt of heroin by the third appellant took place in the latter half of 1971 and the only one of these financial transactions the nature of which was identified in evidence was identified as a transaction relating to shares. We think it doubtful whether this evidence as to the financial transactions was admissible for the purpose of proving a conspiracy on the part of the third appellant to traffic in dangerous drugs and in any event the learned judge, who had a most difficult task involving some fifteen defendants in a trial which lasted over three months, might well in his discretion have excluded that evidence. In his summing up the learned judge placed no emphasis at all upon the financial transactions and certainly did not suggest that they could amount to corroboration of Chiu Chat-yam's evidence. It becomes necessary therefore to consider whether or not the uncorroborated evidence of Chiu Chat-yam was such that the jury would undoubtedly have convicted the third appellant even had the evidence of the financial transactions been excluded. Chiu Chat-yam was an accomplice from his head to his toes and, just as in regard to Smalls in the Turner⁽⁴⁾ case, stringent warnings were given by the learned judge to the jury as to that and as to the dangers of convicting upon his uncorroborated evidence. It was urged by Mr. Sanguinetti that there was no evidence that the third appellant knew what was contained in the parcels which were delivered to him upon approximately twenty occasions over a period of three to four months by Chiu Chat-yam. These deliveries, it is to be remembered, were made upon the instructions of the second appellant whose appeal against conviction is not being pressed except in so far as Mr. Sanguinetti adopted Mr. Sedgwick's arguments regarding the duplicity of the trafficking count, so that it may fairly be said on the evidence that the second appellant was conspiring to traffic in drugs and indeed trafficking in drugs upon a considerable scale. The jury no doubt found fanciful any suggestion that such a woman would entrust parcels of heroin upon repeated occasions to a person who was unaware of the nature of the substance being delivered to him; the appalling risk to the second appellant of accidental discovery of the nature of the goods by a repeated innocent receiver of heroin are self-evident. In our view there was an overwhelming inference, upon which the jury was entitled to act, that the third appellant was aware of the nature of the substance so repeatedly delivered to him. We are unable to agree with Mr. Sanguinetti that this appellant was, as in R. v. Reed⁽⁶⁾, "sucked down" by the weight of evidence against his co-accused or that the evidence against him was no more credible than that against the third defendant, who was acquitted. His appeal against conviction must be dismissed.

25. Mr. Sedgwick represented the fourth, fifth and sixth appellants and, of his clients, it will be convenient to deal first with the case of the sixth appellant. The only ground of appeal in respect of this appellant upon which we asked the Crown to address us was to the effect that counsel for the Crown, in his closing address to the jury, after referring to certain cheques which had found their way from the bank account of this appellant to that of the second appellant, had gone on to say: "Now some of these payments referred to a period when Chiu Chat-yam had retired but remember the evidence that his wife Nancy delivered to this man that is to say to the sixth appellant." The complaint was that there was no evidence of deliveries by Nancy to the sixth appellant. We can only regard the error as insignificant in the light of clear evidence from Chiu Chat-yam that he was delivering heroin from the second appellant to the sixth appellant at regular intervals until he ceased to work for the second appellant in April or possibly March 1973 and of further evidence from Chiu Chong-yip that after that date he, Chiu Chong-yip, continued to make such deliveries. The dates of the five cheques shown to have found their way from the bank account of the sixth appellant to that of the second were all within the period charged and three of those dates were within the period during which Chiu Chat-yam testified that he had been making deliveries of heroin to the sixth appellant. Those cheques were dated the 1st October 1972, the 29th October 1972 and the 7th January 1973 and were in the respective amounts of five hundred dollars, one thousand dollars and one thousand dollars. We are unable to agree that the conviction of the sixth appellant was unsafe and unsatisfactory and his appeal against conviction must be dismissed.

26. A ground of appeal peculiar to the fifth appellant was that the learned trial judge wrongly permitted the Crown to adduce in evidence a note-book. The note-book was a child's exercise book bearing the printed name "Baldwin College" and it was found in a safe deposit box held in the name of the fifth appellant. The note-book contained writing in both English and Chinese characters and the English characters constituted a formula which Dr. Dailly described as referable to the manufacture of heroin. There was no evidence that the fifth appellant either speaks, reads or writes English. It is to be observed that of various other items found in the safe deposit box none was shown to be the property of the fifth appellant. Mr. Sedgwick's point was that the note-book was referable to the manufacture of heroin, that the fifth appellant was not charged with conspiracy to manufacture and that therefore the note-book should have been held inadmissible or at least excluded in the exercise of the learned judge's discretion. Mr. Hindle, for the Crown, submitted that the note-book was put in not to prove conspiracy on the part of the fifth appellant but because its existence made it more likely that Chiu Chat-yam was telling the truth when he said that he personally, on the instructions of the second appellant, made frequent deliveries of white powder to the fourth and fifth appellants who are husband and wife and who paid him mostly in cash but sometimes by cheques signed by the fifth appellant. Chiu Chat-yam's evidence was further to the effect that he was taken by the second defendant to a flat on the second floor of Block 4 of Tsz Wan Shan and there introduced to a woman, Ah Sum, to whom he subsequently delivered, on a number of occasions, lots of twenty, thirty or fifty ounces of powder from the fifth appellant. In regard to the note-book the learned judge said:

"It would be a matter for you of course what to accept as regards whether it was really hers - but you could reason that it lends some support not by corroborating in the sense of doing away with the warning, but you could reason that it lends support to the evidence that the fifth appellant was trafficking in dangerous drugs because persons trafficking in dangerous drugs in many circumstances are likely to have an interest in manufacture and vice versa, and that a person not involved in the drug trade was perhaps unlikely to have a book like this locked up in a safe deposit box."

27. Here the learned judge was leaving it to the jury as to whether the finding of the note-book in this appellant's safe deposit box was or was not support for the evidence that she had been trafficking in dangerous drugs. We think that he was entirely right to do so and that it would have been wrong to exclude from the consideration of the jury material which they may properly have deemed significant. Moreover we are unable to agree that the learned judge's reference to people in Kowloon City was an invitation to the jury to take the view that Lee Kee and Chow Mui-kam (who had in an earlier case been convicted of manufacturing drugs in the Walled City) and Li Kin-wa (a person whose belongings were found in the safe deposit box of the fifth appellant) were members of the conspiracy charged in count two. At this point in his summing up the learned judge was merely emphasizing that the Crown did not claim to have identified to the jury everybody whom the first and second appellants might have employed in the ring and he was merely taking up a point which had indeed been made by defence counsel to the jury to the effect that their clients did not know the people in Kowloon City.

28. It was next complained that the evidence of Mok Kan-por as to what he had been told by Nancy, the common law wife of Chiu Chat-yam, was hearsay evidence and inadmissible. Mok Kan-por had been a driver for the first and second appellants and testified that on about six occasions he drove either Nancy or the daughter of the first and second appellants or the second appellant herself to Yick Fung Building and on one occasion drove the fifth appellant to that building. He was always told to stop his car in the street outside the complex of buildings and did not see which block his passenger entered; the evidence was that there are more than one thousand residential units in the complex. On one occasion, according to Mok, Nancy told him that the plastic bag which she had with her contained "white powder, heroin". And Nancy told him "so often" that she delivered to a woman known as "three hundred pounder" who was the fifth appellant. We think that this evidence was inadmissible although it is to be observed that the reference to the "three hundred pounder" came out spontaneously in cross-examination of Mok and there was nothing that the Crown could have done to prevent the remark; having regard to the volume of direct evidence involving the fifth appellant and her husband, the fourth appellant, we consider that any effect of this hearsay evidence upon the minds of the jury must have been minimal.

29. A complaint that the learned judge's comment to the jury that the evidence showed a fabric of financial transactions into which were woven some of the defendants, put the matter too high in respect of the fifth appellant against whom evidence had been adduced only in relation to two cheques, was not seriously pressed by Mr. Sedgwick and we do not think that it advances the fifth appellant's case upon this appeal.

30. The remaining grounds of appeal related to various aspects of the summing up in regard to the evidence of Chiu Chat-yam. Whilst a painstaking combing of a summing up, the transcript of which runs to more than one hundred and fifty pages, will almost inevitably reveal some imperfections we are satisfied that, reading the summing up as a whole, the nature and quality of Chiu Chat-yam's evidence and the nature and quality of that gentleman himself were left adequately in the forefront of the jury's mind. The applications for leave to appeal by the fourth and fifth appellants must be dismissed.

31. In the result all the applications for leave to appeal against conviction are dismissed. We will hear counsel as to sentence.

Representation:

M. Huang & S. Ma (Director of Legal Aid) for 1st, 7th, 8th, 9th & 10th Appellants.

A.J.J. Sanguinetti, K. Bokhary & Cheng Huan (L.S. Shum & Co.) for 3rd Appellant and for 2nd Appellant against sentence only.

A.W. Sedgwick (Samuel Soo & Co.) for 4th, 5th & 6th Appellants.

2nd Appellant in person against conviction.

C.M. Hindle for Crown/Respondent.

(1) 1960 1 W.L.R. 163

(2) 1973 1 W.L.R. 1151 at 1156/7

(3) 21 Cr. App. R. 94

(4) 1975 61 Cr. App. R. 67

(5) 1967 51 Cr. App. R. 17

(6) The Times 31/3/77 p.3

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Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 10th March, 1978.

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JUDGMENT

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Pickering, J.A.:

32. Having dismissed the appeals of these ten appellants against conviction upon counts relating to dangerous drugs, we heard counsel as to sentence.

33. The Crown readily conceded that grave as this conspiracy was, its ramifications were not so far-reaching as those in the case of Ng Sik-ho and others and the Queen⁽¹⁾.

34. The ringleaders were the first and second appellants but heinous as their activities were it did not appear to this Court that those activities merited sentences equivalent to the heaviest which have ever been passed by the courts of Hong Kong in respect of dangerous drug offences and accordingly we allowed their appeals against sentence in respect of conspiracy to traffic in dangerous drugs, set aside the sentences of thirty years' imprisonment in each case and substituted sentences of twenty-four years' imprisonment.

35. Additionally the first appellant had been sentenced to seven years' concurrent imprisonment for conspiracy to deal with dangerous drugs. What was proved were a few more or less isolated transactions in 1968 and these did not appear to merit what was, at the time of the offence, the maximum sentence; so it was that we allowed his appeal upon that count, set aside the concurrent sentence of seven years' imprisonment and substituted a concurrent sentence of five years' imprisonment.

36. The ninth appellant had been convicted of both conspiracy to traffic in dangerous drugs and of conspiracy to manufacture a dangerous drug and he was high in the hierarchy of conspirators having been shown to be a manufacturer of heroin. Having regard however to the reduction from thirty years to twenty-four years in the total sentences of the first and second appellants, the undoubted ringleaders, the resultant disparity between their new sentences and the ninth appellant's original concurrent sentences of eighteen years' imprisonment was insufficient and we allowed his appeal, set aside the two sentences of eighteen years' imprisonment concurrent and substituted concurrent sentences of fifteen years' imprisonment.

37. Of the remaining appellants four had been sentenced to eight years' imprisonment and three to twelve years and we saw no reason to interfere so that the appeals against sentence of the third to eighth appellants and of the tenth appellant, were dismissed.

(1) Cr. App. 410/75.