The Queen v. Hui Wai-bun

IN THE COURT OF APPEAL

1986, No. 403
(Criminal)

BETWEEN

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

Date of hearing: 2nd April, 1987.

Date of delivery of judgment: 2nd April, 1987.

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JUDGMENT

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Yang, V.-P. :

1. This is an application for leave to appeal against conviction.

2. The Crown's case largely depended upon the uncorroborated evidence of an accomplice Tang Wai-hong (PW3). The charge of conspiracy to traffic in dangerous drugs covered a period of six weeks, and the amount of dangerous drugs involved was between 4 to 5 lbs of heroin. The dangerous drugs were, according to the evidence, collected in various consignments from a person called "Ah Man" and then taken firstly to a hotel room and at some later stage to the Yu Yuen Apartment where the drugs were repacked and stored. The drugs were then sold off in bags at about ten bags per day, at about $350 per bag.

3. The case for the Crown was that the Applicant was the financier of the drug venture. There was evidence that he obtained the supply of drugs from Ah Man or perhaps some other persons working behind Ah Man. It was alleged that the Applicant kept his team supplied with dangerous drugs and that it was his team who repackaged the drugs and distributed them at street level. There was evidence that the Applicant recruited the accomplice Tang Wai-hong, and that Tang Wai-hong in turn recruited a man called "Ah Lam", who was one of the co-conspirators. Profits were shared equally between the Applicant and Tang, after deducting costs and the capital in respect for the purchase of the dangerous drugs.

4. The main ground of appeal is that the judge erred in admitting the evidence of some notebooks kept by the accomplice Tang Wai-hong. The notebooks contained records of transactions relating to dangerous drugs. It was said on behalf of the Applicant that there was no evidence to show the keeping of the notebooks was an act in furtherance of a conspiracy and as such they did not fall within an exception to the hearsay rule.

5. Having considered the purpose for which the notebooks were kept and also what was written therein, it is clear in our view that keeping of the records in the notebooks was clearly an act in furtherance of the conspiracy charged. There was evidence that the Applicant had access to the notebooks and that he checked the contents, for example, for the purpose of making calculations and receiving payments.

6. The question of admissibility was never raised in the trial below. To found the admission of the notebooks there must be reasonable evidence to show that there was a common purpose between Tang Wai-hong and the Applicant. In this connection, I quote a passage in the case of Donat (1986) 82 Cr.App.R. 173, at p.179, where Lane, L.C.J. said:

“The problem of to what extent documents made out in furtherance of a conspiracy and actions one in furtherance of a conspiracy by people other than a particular defendant are admissible is never an easy one to solve. The matter is dealt with in Cross on Evidence, 6th ed., 1985, in a manner which seems to us to be helpful at p.527, and it reads as follows: 'In determining whether there is such a common purpose as to render the acts and extra-judicial statements done or made by one party in furtherance of the common purpose evidence against the others, the judge may have regard to these matters, although their admissibility is in issue, as well as to other evidence."

And a little later, Lane L.C.J. went on to say:

“But the learned editor of Cross goes on as follows: 'The answer is that the agency may be proved partly by what A said in the absence of B, and partly by the other evidence of ommon purpose. It makes no difference which is adduced first, but A's statement will have to be excluded if it transpires that there is no other evidence of common purpose; it is another instance of conditional admissibility."

7. In our view the judge could have come to no other conclusion had the issue of admissibility been raised. The notebooks were admissible on all the tests in Donat. This ground of appeal, in our view, must fail.

8. Counsel for the Applicant having decided not to pursue his second ground of appeal, we now go on to the third ground which is that the verdict was unsafe and unsatisfactory. We do not propose to deal with this ground in detail save to say that we have considered carefully everything that has been said before us. Only one matter need be mentioned briefly, and this relates to the presentation of the records of the police interview with the Applicant. A number of questions and answers in those records were blanked out. It has been submitted that the proper course would have been for the record to be retyped thereby preventing the jury from realising that certain portions of the interview had been blanked out.

9. We are of the view that each case must be decided on the particular circumstances and that there cannot be an inflexible rule that in every case, where portions of a statement are blanked out, the whole document should be retyped.

10. In the particular circumstances of this case we see nothing wrong at all in the way the statements were presented, namely by having some of the questions and answers blanked out. We do not think there is anything in this ground of appeal.

11. For all these reasons the application for leave to appeal against conviction is dismissed.

Desmond Keane, Q.C. & Jo Matthews (C.W. Leung & Co.) for Applicant

C.D.F. Coghlan for Crown/Respondent