The Queen v. Lam Kwok Hung

CACC000477/1988

Headnote

Informer protection of - prohibition of disclosure of informer's name and address - defence wished to call informer - whether Crown obliged to disclose informer's identity in order to enable the informer to be called when the general rule may be departed from.

Alternative charges - incorrect for verdicts of guilty to be entered for both charges.

-----------------------------

Coram: Hon. Yang, C.J., Hon. Silke, V.-P., & Hon. Power, J.A.

Dates of Hearing: 21 & 22 February 1989

Date of Judgment: 23 March 1989

---------------------

J U D G M E N T

---------------------

Yang, C.J.:

1. The appellant (D1) was convicted after trial before Judge Downey on two charges: one of Possession of a dangerous drug for the purpose of trafficking (charge 1) and another charge (charge 2, described on, the amended charge sheet as an alternative, to the first charge) of trafficking in a dangerous drug. The drug in question was 5,935.1 grammes of cannabis.

2. At the outset of his submissions, Mr. McCoy counsel for D1, drew our attention to an additional set of Reasons for Decision prepared by Judge Downey eight days after the notice of appeal had been filed. The Reasons concerned (1) the judge's power to reserve a question of law for the consideration of the Court of Appeal under Section 81(1) of the Criminal Procedure Ordinance, and (2) Section 57 of the Dangerous Drugs Ordinance relating to the protection of informers. These Reasons were given when the trial judge was already functus. With great respect to the judge, and recognizing his intention to assist all concerned by further clarification and explanation of his thoughts, this was nevertheless an irregular procedure. We therefore did not take the additional Reasons into account in the proceedings before us.

The Evidence

3. The evidence for the prosecution which came mainly from DPC 10836 Yau Kwok-chung (PW1), acting as an undercover agent in this case, is as follows. On the 24th March 1988 PW1 met with Dl and two other persons and reached a provisional agreement that he (PW1) would buy 20 pounds of cannabis from D1 at $ $6,500 per pound. PW1 together with DPC 9289 (PW2). D1 and others met by appointment in the evening of the 25th in the Bauhinia Restaurant, Hong Kong Hotel. PW2, who had $130,000 in cash on him, showed D1 the money, whereupon Dl indicated that he did not have 20 pounds but only 12 pounds and asked PW1 if he still required "the goods". PW1 replied in the affirmative. D1 said he would send someone to bring them. Later Dl told PW1 that the goods would soon arrive and invited PW1 to go outside the hotel to inspect them. PW1 then left the hotel with Dl and Chung Wai-kwok (- the second accused named in the charges and subsequently acquitted). Dl eventually led PW1 to a van bearing registration number DG 3284 parked on the roof-top car park adjacent to the hotel, opened the rear door and pointed to some plastic bags inside. PW1 opened one of the bags and confirmed that it contained cannabis. He then signalled to police officers already planted in the vicinity to arrest Dl and D2.   

4. Dl did not give evidence, but suggested, through counsel's cross-examination of PW1, that the negotiations of the 24th March related to Chinese herbal medicine, which suggestion was denied by PW1. PW1 however agreed that during that meeting the subject matter of the negotiation was always referred to as "the goods" and that at this meeting D1 was accompanied by two persons, one of whom he knew as "Ah D", otherwise known as "Sai D". Dl had wanted Ah D to give evidence on his behalf but was unable to discover this person's real name or address. A witness summons was issued but of course could not be served. As a consequence Ah D did not give evidence for D1.

Grounds of Appeal paragraphs 1-3:

Ah D otherwise known as Sai D

5. In the course of the case for the prosecution, Mr. McCoy informed the trial judge that he wished to call "Ah Dee" whom he described as a police informer. Counsel for the Crown conceded a few moments later in the course of the debate that "Ah Dee" was "in this category". The judge stating he would wish to hear further evidence, made reference to section 57 of the Dangerous Drugs Ordinance, Cap. 134.

6. This section provides:

"57 (1) Save as provided in subsection (2) -

(a) no information for an offence under this Ordinance shall be admitted in evidence in any civil or criminal proceedings; and

(b) no witness in any civil or criminal proceeding shall be obliged -

(i) to disclose the name or address of any informer who has given information to the police with respect to an offence under this Ordinance or of any person who has assisted the police in any way with respect to such an offence; or

(ii) to answer any question if the answer thereto would lead, or would tend to lead, to discovery of the name or address of such informer or person,

if, in either case, such informer or person is not himself a witness in such proceeding and, if any books, documents or paper which are in evidence or liable to inspection in any civil or criminal proceeding contain an entry in which any such informer or person is named or described or which might lead to his discovery, the court shall cause all such passages to as concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.

(2) If in any proceeding before a court for an offence under this Ordinance the court, after full inquiry into the court after full inquiry into the case, is satisfied that an informer wilfully made a material statement which he knew or believed to be false or did not believe to be true or if, in any other proceeding a court is of opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted, the police the court may permit inquiry and require full disclosure concerning the informer or such person."

7. The purpose of section 57 is beyond peradventure to protect the identity of informers for they can and do play a large part in the detection of offences committed in the course of the drug trade. It does this by prohibiting any evidence of the information which leads to the charges being laid and, unless the informer or indeed any person who has assisted the police is a witness in a drugs trial, the disclosure of the name and address of such person or the giving of an answer by any witness which would lead, or even tend to lead, to the discovery of such name and address and thereby the identity.

This also applies to civil proceedings.

8. Subsection (2) provides for two exceptions to that which, on its face, is an absolute prohibition. The first is where, after full enquiry, the Court is satisfied that the informer had wilfully made a material statement which he knew or believed to be false or did not believe to be true. This applies to trials concerning drug charges. We would interpolate that it is not here suggested that there was any such statement.

9. The second exception, which in subsection (2) is preceeded by the phrase "or if in any other proceeding", is a matter upon which Mr. McCoy relies.

10. Mr. McCoy forcefully argues that "Ah Dee" could have given material evidence going to the innocence of the Applicant. He was deprived of the opportunity to call "Ah Dee" as a witness because, at a later stage in the trial when the judge issued a witness summons in Ah Dee's name, the Crown was not prepared to assist in the serving of that summons. That failure to assist, says Mr. McCoy, was an abuse of the process or, in the alternative, a contempt of Court. Further the trial judge erred in law in failing to either compel the Crown to serve the summons, or in some other fashion to secure the attendance of "Ah Dee" at the trial. Further, he erred in failing himself to call "Ah Dee" as a witness.

11. One of Mr. McCoy's difficulties is that he did not, and could not, know what it was that " Ah Dee" would say if he were in the witness box. It was his hope that "Ah Dee" being present at the preliminary conversations in which the undercover police, and D1 were also participants would support Dl's contention that he had no knowledge that dangerous drugs were involved.

12. Counsel has sought to persuade us that section 57 does not, and was not intended to, oust the general principles of the common law.

13. To set the scene for these submissions he has directed our attention to certain portions of the transcript and referred us to a number of authorities.

14. What happened was this. After the trial judge had ordered that the cross examination of the first witness, DPC 10836 should be continued before he considered whether section 57 had any part to play in the trial said, a few moments later when the applicability of section 57 was raised by counsel then appearing for the Crown, that he did not see that it either arose or was relevant.

15. There was then an adjournment to permit the Crown to consider its position. When the trial resumed the following day the Court was informed that there was no witness statement made by "Ah Dee" and the trial judge then ruled that:

Witness can be asked anything relevant except name and address of the informer."

16. Further argument ensued in the course of which Mr. McCoy stated that he accepted that Ah Dee's name and address were "not relevant to the present trial". He, however, desired the Court itself to call "Ah Dee".

17. This could not have been done without the disclosure of the identity of the informer the very thing which section 57 was designed to protect.

18. But that was not an end to the matter. At the conclusion of a form of submission of no case Mr. McCoy intimated that D1 would not give evidence but that he wished to call a witness - the now familiar "Ah Dee".

19. After the luncheon adjournment the trial judge intimated that it was his inclination to grant a witness summons though he realised that it might not be possible to have it served. He then made the order that:

"Witness summons to issue for the attendance of Ah Dee @ Sai Dee of unknown address to give evidence on behalf of Dl. "

20. When Mr. McCoy said he relied on the inherent jurisdiction of the Court to get "Ah Dee" into the trial the judge wondered how he could "balance competing interests" without knowing what the witness would say and he went on that there was no evidence that "Ah Dee" was an informer and therefore section 57 did not apply.

21. With the greatest respect in this last he was clearly wrong. There had been evidence from DPC 10836 that the man was a police informant and the Crown had conceded him to be an informer. In his earlier ruling as to the limitation of questions the judge would appear to have accepted the status of "Ah Dee".

22. Mr. McCoy then applied for what he termed a "voir dire" to test Ah Dee's materiality. At the same time he asked the judge to direct the Crown to call "Ah Dee" to Court.

23. He went on to ask the judge to reserve for the opinion of this Court certain questions of law which he suggested arose, citing in support section 81 of the Criminal Procedure Ordinance and section 79 of the District Court Ordinance

24. The trial judge refused to order the voir dire requested by Mr. McCoy, to direct the Crown to call "Ah Dee" and to reserve questions of law for the Court of Appeal. The refusal to reserve was the subject of separate grounds of appeal but they have now been abandoned and the matter need concern us no further.

25. We view Mr. McCoy's submissions made to us in the light of the evidence, and the concession, that "Ah Dee" was an informer who was not a witness in the trial.

The issue is: does section 57 oust the common law?

26. The common law position is succinctly set out in a passage from the Judgment of Lord Esher M.R. in Marks v. Beyfus [1890] 25 Q.B.D.494 at 498. There the Master of the Rolls discussed the line of authorities which created the position he accepted as being correct in law that public policy required that the informer, should not be disclosed where the prosecution was a public one - in present day terms a criminal one.

Lord Esher then went on

"Now this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches. I think it was a public prosecution and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then, one public policy is in conflict with another public policy and, that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion it is a rule of law, and as such should be applied by judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not."

27. Subsection (1) of section 57 encodes in statute the non-disclosure aspects of the common law as set out generally in Marks v. Beyfus. The further passage which we have quoted has stood the test of time: (see Reg. V. Lewis JJ. Ex. P. Home Secretary [1973] A.C. 388 at 407 and D. V. National Society for the Prevention of Cruelty to Children [1978] A..C. 171).

28. But in our judgment subsection (2) of section 57 provides and is intended to provide, where the public Prosecution concerns drug offences, a much narrower position than that in Marks v Beyfus. In such a prosecution disclosure can only occur if the circumstances, as set out in the first half of the subsection, apply. The second half of subsection (2)was clearly envisaged to codify the general common law position but only in respect of proceedings other than those brought under the Dangerous Drugs Ordinance.

29. The trial judge was correct when he prevented disclosure of the name and address of the informer. He fell into error when he directed the issue of a witness summons. Apart from anything else the circumstances of the first half of the subsection did not arise. However his error did not in any way affect the conviction of D1 for Dl was being given something to which he was not entitled. He knew that it would be impossible to trace "Ah Dee" without the assistance of the Crown assistance which the Crown, having obtained the earlier ruling that "Ah Dee "was an informer, rightly refused to give. It further follows that there could have been no proper direction to the Crown to produce "Ah Dee" nor could the judge himself have properly attempted to secure his attendance. But be that as it may it was still open to D1 had he so wished to give evidence himself and the absence of "Ah Dee" did not affect that position.

30. In our judgment, this ground of appeal fails.

Grounds of Appeal paragraphs 4-6:

Whether charge 2 was alternative

or additional to charge 1

31. The amended charge sheet was presented to the court on the first day of trial and no objections were raised to it. It would have been wiser if the Court had taken it upon itself to enquire why such an unusual course was being taken by the Prosecution. In spite of the fact that it clearly stated that the two charges were in the alternative, Counsel for the prosecution at the close of his case intimated to the court that charge 2 was additional to charge 1. Mr. McCoy submitted that he felt embarrassed on being told at this late stage of the trial that one charge was additional to the other and not alternative as he had been led to believe. Counsel for the prosecution then sought to resolve the matter by first I electing to proceed on charge 2 only, and then applying to delete the words "alternative to the 1st charge" which appeared on the charge sheet. Mr. McCoy opposed the application and argued that Dl was entitled to an acquittal on charge 1.

32. The judge considered Harris (1969) 53 Cr. App. Rep. 376, 379, where the Court of Appeal in England quashed a conviction, for indecent assault in a case where the appellant had also been convicted of buggery on the same facts for one and the same incident should not be made the subject matter of distinct charges, at least where the less serious offence merges with the other more serious one.

The trial judge here went on to say:

"Although it is open to the court to amend at any time before verdict, I considered that it was too late to do so in the present case without causing prejudice or embarrassment to the defence. Initially, it seemed to me that I should achieve the same result as was arrived at in Harris, supra, by recording a verdict of not guilty on the 1st charge. But the power to quash a conviction is one reserved to the Court of Appeal. Furthermore a verdict of acquittal on the 1st charge might prevent the Court of Appeal from substituting an alternative verdict of possession for unlawful trafficking, if it should be persuaded to allow an appeal against conviction on the 2nd charge. I have also considered the propriety of not recording a verdict at all on the 1st charge similar to discharging a jury from returning a verdict, but I feel that this is not entirely satisfactory, when a defendant has pleaded not guilty to the charge and conducted a defence thereon. What I propose to do is to also record a verdict of guilty in respect of D1 on the 1st charge, but postpone sentence thereon so as to give D1 an opportunity to take this and any other objection by way of a motion to arrest judgment. (Cf. District Court Ordinance, Second Schedule, Part II Archbold Criminal Pleading Evidence and Practice (42nd ed) para. 4-471.) For the reasons given earlier I also find Dl guilty of the 2nd charge of trafficking."

33. Mr. Duckett leading counsel for the Crown conceded that it was not correct for verdicts of guilty to be entered for both charges. He submitted that as the two charges are alternative to each other, and as the less serious offence (charge 1) was merged with the more serious offence (charge 2, whether stated to be alternative to charge 1 or not), it would be proper for this Court to set aside the verdict on charge 1. It would be straining the language to say the more serious offence of trafficking was merged with the less serious one of possession Harris (supra)was cited in support: vide Cole (1965) 2QB 388, 394 G - 395 B. Further by statute - section 42 and the Third Schedule of the Dangerous Drugs Ordinance a section 7 offence is an expressed alternative to a section 4 offence.

34. In our view the language used in the charge sheet clearly points to charge 2 being alternative to charge 1, in spite of the fact that charge 2 alleges a more serious offence than that alleged in charge 1. We do not read the words "alternative to 1st charge" as capable of meaning that each charge is alternative to the other. Having found Dl guilty on the first charge, the judge erred in returning a verdict of guilty on the second charge. We would therefore quash the conviction and set aside the sentence on charge 2.

Grounds of Appeal paragraphs 9 and 10:

Presumptions under Section 47 of the

Dangerous Drugs Ordinance

Ground of Appeal paragraph 11:

Section 4(1)(a) of the Dangerous Drugs Ordinance

These grounds were not pursued.

Ground of Appeal paragraph 12:

The verdicts are unsafe and unsatisfactory

This ground was considered together with Grounds 1 - 6.

35. For all the reasons stated above the appeal is allowed only to the extent that the conviction on charge 2 is quashed and the sentence set aside. The conviction and sentence on charge 1 stand.

Representation:

G.J.X. McCoy (David Ravenscroft & Co.) for Applicant

A.P. Duckett, Q.C. & D. Pang for Crown/Respondent