Au Yuk-keung v. The Queen
Read the full judgment text of CACC 1089/1979 on BabelCite. This Court of Appeal judgment was delivered on 24 April 1980.
1. The appellant was charged together with two other persons with two offence under section 38(1)(b) of the Immigration Ordinance and with a third offence of conspiracy to aid and abet illegal immigrants to remain in Hong Kong.
Cited by 1 case
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CACC001089/1979
----------------- Coram: McMullin & Li, JJ.A. and Zimmern,J. Date of Judgment: 24 April 1980 ----------------- JUDGMENT ----------------- McMullin, J.A.: 1. The appellant was charged together with two other persons with two offence under section 38(1)(b) of the Immigration Ordinance and with a third offence of conspiracy to aid and abet illegal immigrants to remain in Hong Kong. 2. At the commencement of the hearing the learned trial judge put the prosecution to their election as to which charge they would proceed upon. The trial continued in respect of the conspiracy charge only. At the conclusion of the Crown's case the judge ruled that the third defendant had no case to answer. Neither of the remaining defendants gave evidence and in a reserved judgment the judge found the present appellant (the first defendant) guilty and the second defendant not guilty of the charge. 3. Originally the particulars of the offence was stated as follows:
However, at the time when the prosecution elected to proceed upon the conspiracy charge these particulars were amended by the deletion of the words "other persons or" in the third line and of the words "illegal immigrants" in the fourth line and in place of the latter words amending words were introduced which have the effect of charging the accused persons with aiding and abetting some twelve named illegal immigrants together with others unknown. 4. Seven of the persons named in the new particulars gave evidence for the prosecution. Each of them testified to having come either alone or with other persons across the border into Hong Kong illegally. They had entered in various ways on different dates. In every case they had been helped by one or more unknown persons to make contact with relatives in Hong Kong and in each case these relatives had been required upon taking custody of the immigrants to pay money to these unknown persons. There was no evidence to show that any of these unidentified middlemen were involved with more than one such episode. Each witness, that is to say, testified that one person or group of persons rendered this assistance and there was nothing in the evidence to show that that person or group of persons was involved in the assistance rendered to any of the other witnesses. None of the witnesses identified the appellant as one of the persons who had assisted them to reach their relatives. Two of them were young women who professed to be cousins of the appellant and one of these young women was found together with her sister (who did not give evidence) after the appellant's arrest in the appellant's premises at No. 36, Kwai Chau Street. 5. In a cautioned statement which was admitted in evidence the appellant admitted personally collecting these two cousins at Lau Fau Shan and taking them and their friends to his house. The only one of the two who gave evidence denied that that was so. 6. The principal ground of appeal, although it is not very clearly adumbrated in the formal grounds, is that there was insufficient evidence to show the existence of the conspiracy laid in the charge to which the appellant is said to have adhered. It is this ground which has caused us the greatest concern and before considering the legal implications of it it will be helpful to outline the evidence upon which the appellant was found guilty. 7. Firstly, there was the evidence, referred to above, of the several illegal immigrants themselves. It is important to note however that each of those witnesses described a different incident involving only that witness with perhaps one of two other persons who were not witnesses in the case. The first prosecution witness, AU YEUNG Lai-sim entered the Colony on the 16th of June and was sheltered by a farmer whom she met and to whom she gave the telephone number of the premises at which her husband is living in Hong Kong Island. She was then taken, she does not say by whom, two days later to a restaurant where she met her husband. Her husband gave evidence to the effect that he collected his wife from that restaurant and paid $3,000 out of the demanded $10,000 to a man whom he found in her company. A week later another man came and demanded the balance of $7,000 from him and at that point the witness threatened to go to the police. Neither of these men was identified by the immigrant or her uncle. 8. This set the pattern for the evidence given by all the immigrant witnesses. The third prosecution witness, YUEN Choi-lin, told how she entered Hong Kong on the 12th of June with her younger brother. They stopped a passing vehicle which they met by chance upon the road and asked the driver to take them to their aunt in Hong Kong. They gave their aunt's telephone number to the driver who demanded $10,000 for the service. Later he telephoned their aunt who came and collected them and paid this man $4,000. 9. The fifth prosecution witness, TAI Yuk-mui, was picked out of the water with several others at an unspecified time and at an unspecified location as they were swimming towards colony waters. They were deposited on a nearby island and told to wait and the following evening the same boat came back with two men and took them to Hong Kong where relatives were once more contacted through phone numbers given by her to the strangers. 10. The seventh and eighth witnesses, WONG Cheuk-ping and CHAN Yuk-mei, told how they had swum from the Mainland together with their brother-in-law on the 25th of June and were similarly picked up by a speed boat and likewise deposited on an island whence they were fetched sometime later and taken to Hong Kong. Money was demanded and in part paid on these occasions by the swimmers' relatives. 11. The ninth witness, KWOK Kwan-tai, came across the border by land on the 4th of August at an unspecified point and approached a farmer who gave her shelter and who contacted her brother and her aunt. Her brother collected her at a restaurant where he paid $2,000 out of the demanded $8,000 to a man who was in her company. Neither the farmer who sheltered her nor this latter person was identified. This witness was a cousin of the appellant but according to her evidence she did not see her cousin at any time until she was called to an identification parade. 12. The remaining immigrant witness, KWOK Chi-ling, is one of the two cousins of the appellant to whom reference has been made already. She entered the Colony across the land border on the 6th of August with her sister, KWOK Chi-kin. They too met a farmer at some unspecified locality and asked him for shelter which he refused. But several hours later he brought a young man into his house who took them in a car to Hong Kong. This person made contact with her aunt and then drove the two sisters to a flat where she saw the appellant who, as she put it, happened to be at home. 13. It would be difficult to find in this tale of separate incidents and apparently fortuitous encounters anything which could reasonably be said to support the idea of such a conspiracy as is laid in the charge. Nor, as it stands, does it disclose more than an apparently casual contact between the appellant and two of the illegal immigrants, his cousins. 14. There was however other evidence standing against him. He was arrested together with the other two defendants on the 15th of August in an apartment house in Nullah Road. He was searched and in his shirt pocket were discovered a notebook and a piece of paper. On the paper and in the notebook were recorded a list of names and notes indicating sums of money received and sums still owing with telephone numbers noted opposite several of the names. It is conceded that this list of names includes the names of the seven illegal immigrant witnesses who gave evidence at the trial. It is also conceded that the list of telephone numbers includes the numbers through which the relatives of the first and third prosecution witnesses were summoned. 15. After his arrest the appellant and his two companions were taken to the District Anti-Triad Office in Kowloon and after caution was questioned concerning the contents of these documents. He said:
The two persons named in the statement are the defendants who were acquitted. 16. On the 16th of August the appellant was taken to his house at Kwai Chau Street and in some clothing in a briefcase in that house a sum of $15,600 was discovered. He was questioned once more under caution concerning this and he said:
17. On the occasion of his arrest at the Lok Fung Apartment House on the 15th of August, the arresting officer D.C. 12968 told him that he was going to arrest him for bringing in persons illegally into the New Territories. He cautioned him and according to that officer, the appellant said:
And the officer said that he had made a note of this although it does not appear that it had been put in evidence; but it was not contested that this verbal confession was made by the appellant. On the 17th of August at the C.I.D. in Mongkok Police Station he was questioned concerning this initial statement. Once more under caution he said:
18. Various criticisms have been made both of these confessional statements and of the contents of the documents Exhs. P. 11 and 12 containing the lists of names and telephone numbers etc. But leaving aside these criticisms for the moment and taking this confessional and documentary evidence as it stands, we must ask whether this evidence taken together with that given by the immigrant witnesses amounts to satisfactory proof of the conspiracy charged. That evidence, if it is accepted, is clear proof that the appellant was associated in some way with each of the separate events described by the several prosecution witnesses. Mr. Daw for the Crown asks us to say that it is sufficient to show an illegal combination between the defendant and the several unknown persons involved in each of these incidents. Granted that that is so in respect of each incident separately, we cannot say that that evidence is sufficient to show the existence of an all-embracing conspiracy to aid and abet these immigrants and others unknown to which each of these groups of unknown persons knowingly adhered in carrying out the acts described by the witnesses. The fundamental question as in all such cases is whether there was a common criminal purpose of the kind described (See R. v. Meyrick and Ribuffi(1)). This charge ascribes a common criminal purpose to all those unknown persons with whom the appellant is said to have combined for the stated purpose. The fact that names and details of the seven persons who were dealt with by these various groups of unknown persons appear in a record kept by the appellant is not sufficient, even taken together with his confessional statements, to show such a common purpose. It may be sufficient to show a combination between the appellant and each of these groups in respect of the particular person or persons with whom that group was dealing in circumventing the immigration legislation. The situation is thus very similar to that which obtained in R. v. Griffiths and Others(2). In that case a supplier of lime for agricultural purposes and his bookkeeper were charged together with a number of farmers on an indictment containing 25 counts including a general count of conspiracy against them all the stated general purpose of which was to perpetrate a fraud in relation to certain subsidies payable under the Agricultural Act of 1947. The lime merchant was in contact with each of the farmers but none of those was in contact with any of the others nor did they know of each other's existence. Each farmer's contact with the alleged conspiracy was through separate contracts that he had made with the lime merchant, Griffiths. The Court of Appeal found that the evidence did not disclose any general conspiracy as opposed to a number of different conspiracies. All the convictions including the conspiracy convictions were quashed upon appeal and in giving the judgment of the Court of Appeal Paull, J. said (page 453)
19. In the present case, as in that case, there is wanting in the evidence anything to show that any of the persons who dealt with particular immigrants were aware of the existence or operations of the other persons dealing with any of the other immigrants. There is nothing to show anything more than that each of these groups of unknowns was in communication with the appellant concerning a particular immigrant or group of immigrants upon a single occasion. Nevertheless the trial judge was prepared to find from the immigrant evidence alone, and leaving aside the evidence of the lists in the accused's possession and of the accused's confessional statement, that that evidence on its own:
He went on to say:
20. He then went on to consider the evidence which touched the appellant directly and found that that attached him to the conspiracy. We think it is clear that this finding as to the proof of the general conspiracy cannot be supported. Commenting on the effect of the decision in Griffiths Archbold (40th edition p. 1874 paragraph 4074) puts the matter succinctly as follows:
With the two named co-conspirators out of the picture, the evidence available to the prosecution in this case discloses if anything a series of conspiracies between the appellant and certain unknown persons. Is that fatal to the conviction? This is not duplicity in the ordinary sense for duplicity is a matter of form and can generally be detected from the text of the charge itself. It is rather duplicity in the somewhat extended sense attached to that term by the Court of Appeal in R. v. Ballysingh(3) a case in which the charge alleged larceny of several different articles when the evidence disclosed that the articles were stolen in different departments of the same store. But duplicity in either sense is not necessarily fatal and in Ballysingh itself the court applied the proviso following R. v. Thompson(4). In R. v. Griffiths the court does not seem to have even considered the proviso but the facts of that case are very special. Although the general conspiracy which was alleged concerned an attempt to defraud, as the trial went on the evidence disclosed that the kind of fraud ascribed to the transactions between the lime merchants and the several farmers was not the same in each case. Having recited these circumstances Paull J. said: (page 453)
21. Although the present charge contains what has been called "a rolled-up" plea [R. v. Dawson(5)] we do not think that it has caused any injustice to the defendant or that he has been thereby embarrassed in making his defence. He was professionally represented at the trial and no objection was taken on this ground. Had there been any objection the charge could have been amended so as to disclose several separate charges of conspiracy. The evidence led at the trial would have been no different. That evidence showed clearly that the appellant conspired with different groups of persons unknown to aid and abet different illegal immigrants to remain in Hong Kong. We think it is a proper case for the use of the proviso. 22. The next objection, with which the first three grounds of appeal are concerned, concerns an analysis of the handwriting in the documents found in the appellant's possession. This analysis is contained in a document signed by a person styling himself "Document Examiner" and purports to emanate from the Forensic Division of the Government Laboratory. It appears to have been put in by agreement between counsel. On its production Mr. Lee who appeared for the appellant is recorded as having said:
Mr. Daw concedes that insofar as this procedure was intended to comply with the provisions of section 65B of the Criminal Procedure Ordinance it is inadequate. That is clearly so. Nor do we think that, as counsel suggests, the provisions of section 65C are applicable to cure the defect. Even apart from this formal deficiency we do not think that the mere use of the term "expert" in the concessionary statement of Mr. Lee is sufficient to make it clear that the defence were agreeing not merely to the authenticity of the document but also to the truth of its contents. Moreover the trial judge appears to have been under the mistaken impression that the report of the "Document Examiner" showed that the entire contents of Exhs. P. 11 and 12 were, in the handwriting of the appellant. A perusal of that document itself makes it clear that the examiner was of the opinion that only the first three entries in Exh. P. 12, those relating to CHOW Shui-kam, TAI Yuk-mui and AU Lai-sim were in the handwriting of the appellant. In other circumstances such a misreception of evidence and such a misunderstanding of the evidence thus received might well constitute a grave misdirection on its own requiring the interference of this court. But the damaging nature of these entries does not depend upon it being shown that they were made by the appellant. The significance of this evidence consists in the fact that these documents, found in the appellant's personal possession, contain notes of names, sums of money received and owing and telephone numbers which correspond with and are supported by the testimony of several of the prosecution witnesses. That was evidence which on its own indicated at least the possibility of some connection between the accused and the persons so named and with their illegal entry into Hong Kong. On its own, however, and even in the absence of any explanation by the appellant at the trial it might not have been sufficient to establish with sufficient certainty a connection between him and the several groups of unknown persons who had engineered the introduction of the immigrants to their relatives. But there was in addition the accused's confessional statements. 23. As to these a complaint is made - it is the fourth ground of appeal - that the trial judge was wrong to put any weight upon them. Firstly, Mr. Eddis points out that although the appellant appears to admit in the first of these statements to bringing the people listed into the urban area from the New Territories this is contradicted by the testimony of the witnesses themselves. Again, he points out that the statement seems to imply that the appellant had written down all these names at the behest of his companions, the second and third defendants, whereas the very evidence adduced by the Crown in relation to the handwriting (the so-called expert evidence) indicated that that was not so. Mr. Daw replies that the phrase "illegal immigrants of China whom I brought from New Territories" in the circumstances means no more than "whom I arranged to have brought from the New Territories". That does not appear to this court to be an unreasonable interpretation. He adds that irrespective of these contradictions the very fact that the entries in these documents are written partly in the accused's hand and partly in some other hand or hands strengthens rather than weakens the case of conspiracy between the appellant and others. 24. Then it is said that the trial judge did not give sufficient consideration to the fact that an uncle of the appellant, called AU Shek gave evidence that he and the appellant had been sent some 20,000 Dutch Guilders by the appellant's father who was living in Holland, (a sum of about HK$40,000 odd) which he shared with the appellant. This evidence was not controverted and it is said that it constituted a satisfactory explanation of the money disclosed by the appellant to the police when they searched his premises at Kwai Chau Street. However the constable who gave evidence about this said that upon producing it the accused had said:
25. As to the confessional statements, they were made the subject of an enquiry as to their voluntary character. It is not entirely surprising that the accused's admission to bringing immigrants into Hong Kong is not supported by any of the witnesses. It may well be that he had no physical part in the introduction of most of those witnesses. And even as to the two cousins it is understandable that they would not wish to get him into trouble. 26. As to the money, it was for District Judge to say whether or not he accepted the evidence of the detective constable who was present when it was discovered. If it had indeed been supplied by his father in Holland it is strange that the appellant would not then immediately have said so. 27. We have given anxious consideration to this case but in the end we are satisfied that there has been no miscarriage of justice. The application for leave to appeal against conviction must be dismissed. Representation: F. Eddis (H.M. So & Co.) for appellant. J. Daw for Crown/respondent. (1) (1930) 21 Crim. App. R. 94 at p. 102. (2) (1966) 1 Q.B. 589. (3) (1953) 37 Crim. App. R. 28. (4) 9 Crim. App. R. 252. (5) (1960) 1 W.L.R. 163. |
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