Ng Tat-shing and Another v. The Queen

CACC000056/1979

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Coram: Roberts, C.J., Leonard and Li, JJ.

Date of Judgment: 6 December 1979

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JUDGMENT

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Roberts, C.J.:

Introduction

1. Ng Tat-shing and Cheung Kuen-yuen appeal against their conviction on one charge of conspiracy, contrary to common law. The first appellant also appeals against the sentence of five years' imprisonment imposed on him.

2. The first appellant was, at all material times, a Senior Revenue Inspector and the second appellant was a Revenue Inspector. Both were employed in the Preventive Service of the Hong Kong Government. The charge alleges that they conspired together with four named persons, who appeared at the trial as prosecution witnesses, and other persons unknown to obstruct the course of public justice.

3. The particulars of the charge alleged that the object of the conspiracy was that the two appellants and other unknown officers of the Preventive Service should act contrary to their duty as officers of the Preventive Service in relation to the Dangerous Drugs Ordinance.

4. It is the duty of officers of the Preventive Service to enforce the provisions of that Ordinance, which are designed to suppress the circulation of illegal drugs within the territory.

Summary of Facts

5. From about May 1975, Ma Ting-kit (P.W.1) and Chan Man-chiu (P.W.2) were associated with others in a large scale heroin retailing business, which was carried on from a stall in the Yaumati Fruit Market in Kowloon. P.W.1 could be described as the accountant of the business and P.W.2 as the general manager. The business was so successful that it was grossing approximately $2 million a month by 1976.

6. Of course, it was only possible for a business of this nature to flourish for as long as it could obstruct, or buy off, those law enforcement officers whose duty it was to suppress illegal drug activity, particularly police officers and preventive service officers.

7. It was therefore the prime objective of P.W.1 and P.W.2 to reach with the Preventive Service a form of accommodation, whereby officers of that service would not carry out their duties in relation to the Yaumati Fruit Market heroin selling enterprise. The depressing fact, as disclosed by account books kept by the drug selling syndicate, that over 300 public officers were directly on its payroll in 1975 and 1976 illustrates the large scale of the illegal trade in narcotics.

8. The first appellant, who was a Senior Revenue Inspector with the Preventive Service, worked from 1974 at the Airport, until February 1976, when he was put in charge of the plainclothes raiding unit stationed at Canton Road, Kowloon. He held that post until his interdiction in March 1977. Under him were two raiding teams, whose activities he was required to supervise and coordinate. It was the duty of these teams to carry out anti-narcotic raids.

9. On Hong Kong Island was a similar plain-clothes raiding unit known as the Investigation Bureau Raiding Unit, based on Rumsey Street. This comprised two raiding teams; the second appellant was the Revenue Inspector in charge of team No. 1 at all material times.

10. It is to be noted that, in order to encourage some degree of competition among the raiding teams and to minimize the scope for corruption, all the raiding teams operated throughout the territory, irrespective of where they were stationed.

The Conspiracy

11. During the 1976 Chinese New Year holiday, Chan Ting-yick, P.W.3, and Kong Leung, P.W.4, visited the Shatin area where they met the first appellant, who has a house there.

12. Some days later, the first appellant sought out P.W.4, asking him whether he would be interested in collecting money on the first appellant's behalf. As P.W.4 was not interested in the job himself, he introduced P.W.3 to the first appellant. As a result of discussions between the first appellant and P.W.3 and P.W.4, the first appellant, who was about to take over his new post at Canton Road, asked P.W.3 to approach P.W.2 with a view to negotiating the opening of an "account" as it was called, that is to say the regular payment of bribes in favour of the first appellant.

13. P.W.2 and P.W.3 were friends of long standing and in accordance with the first appellant's suggestion P.W.3 visited P.W.2 to communicate the first appellant's proposal that the drug stall should open an account for the benefit of the unit led by the first appellant.

The Hong Kong Hotel Meeting

14. For the purpose of discussing the arrangements, P.W.3 arranged a meeting at the Hong Kong Hotel, attended by the first appellant and P.W.1, 2, 3 and 4.

15. At that meeting, the first appellant agreed that for $25 a day to be paid to him by the drug stall, he (the first appellant) would see to it that the drug stall would not be troubled by raids from the plain-clothes section of the Preventive Service.

16. It was part of the agreement that any raids conducted by the first appellant would be "shows", that is to say sham raids, in which only customers would be arrested and the real sellers would remain unmolested, whilst some of the customers would be framed as if they were the sellers.

17. At that meeting, $1,400 was paid by P.W.2 to the first appellant. This consisted of five days bribe money at $250 a day plus $30 per day for the collector, that is to say P.W.3. A similar sum was to be collected by P.W.3 from P.W.1 every five days. This collection continued on a regular basis.

18. Before long, however, it became apparent that the agreement with the first appellant had not ensured that all plain-clothes Preventive Service officers would avoid the Yaumati Fruit Market enterprise, since plain-clothes officers from the raiding unit on the Hong Kong side were still making forays into the fruit market.

19. P.W.2 therefore let it be known to P.W.3 that his drug stall wanted to come to terms with the Hong Kong raiding unit.

Kuala Lumpur Restaurant Meeting

20. In June 1976, therefore, P.W.3 arranged a meeting at the Kuala Lumpur Restaurant in Observatory Road, Kowloon. He took to that meeting P.W.1 and P.W.2.

21. The first appellant attended the meeting, which was joined by the second appellant, whom the first appellant introduced as a Revenue Inspector from the Hong Kong side. The second appellant explained to P.W.2 that he merely represented himself, rather than any group on the Hong Kong side, and that all he could do was to limit the number of raids which he conducted to one per month, when he would ensure that none of the drug stall staff was arrested. He could also give advance warning of raids by his superiors. For this he was promised $2,000 per month and received such a sum immediately. He then left. This was the only payment which he ever collected.

Accomplice Evidence

22. The trial judge's findings of fact stem almost entirely from his acceptance of the evidence of P.W.1, 2, 3 and 4 as being substantially true. The first appellant gave no evidence; the second appellant gave evidence only on the voir dire.

23. The judge found that each of those four witnesses was an accomplice in the corrupt scheme and correctly included in the particulars of the charge as a co-conspirator. He reminded himself of the dangers which are inherent in convicting on the uncorroborated evidence of accomplices and that one accomplice cannot corroborate another.

24. The judge was under no illusion as to the quality of the men who had been giving evidence before him. He describes them as scoundrels and as decidedly tainted. He observes that P.W.1 was a man without scruple about telling lies and had committed perjury at his own trial at which he was convicted of conspiracy to traffic in dangerous drugs and sentenced to a long term of imprisonment. He noted that P.W.2 had a long string of convictions for offences of dishonesty. He finds that both P.W.3 and 4 had lied about various matters. He takes into account the partial immunity which had been granted to P.W.1 and P.W.2 by the Attorney General.

25. As we have recently observed, in the appeal of Yu Yuk-kwong and Others v. R. ⁽¹⁾, it is an unfortunate fact that members of large scale conspiracies can seldom be prosecuted unless one or more of the co-conspirators is prepared to save his own skin by betraying his fellows. However, a natural feeling of revulsion against a conspirator who will give evidence in such circumstances should not lead a court to reject his evidence if it is satisfied, the fullest allowance having been made for the background to the testimony, that it can be relied upon.

26. In assessing the credibility of such witnesses, it must never be overlooked that the motives which impel them to testify are usually those of self-preservation and self-interest. This must oblige a court to look with great care, and indeed with sustained suspicion, at any evidence given by such persons.

27. There is no doubt, from a reading of the judgment, that the trial judge did approach the evidence of these accomplices in exactly the way which we suggested, in the appeal quoted, should be the proper one.

28. He makes the fullest allowance for the background to the testimony. He approaches their evidence with sustained suspicion. Nevertheless, having done so, he was satisfied that they were witnesses who, on the substantial issues, were worthy of belief.

29. The attention of the judge at the trial, and our attention during the appeal, was drawn to a number of inconsistencies between the evidence of the first four prosecution witnesses as to what happened at the meetings at the Hong Kong Hotel and at the Kuala Lumpur Restaurant.

30. It would indeed be surprising if, after an interval of three years, there were not conflicts of detail among the various witnesses.

31. The judge considers a number of these inconsistencies or contradictions in his judgment and comes to the conclusion that they are no more than would be expected of witnesses attempting to tell the truth after such a lapse of time.

32. We see no reason to dissent from the view of the judge that, in spite of the background of these witnesses and of the motives which were probably at work when they gave their evidence, this can nevertheless be accepted. Agreeing as we do with this conclusion of the judge, we are unwilling to say that the conviction of either appellant should be set aside on the grounds that it was unsafe or unsatisfactory.

Nature of the Conspiracy

33. It was argued before us that the charge of conspiracy was defective in various respects -

34. As to (a), we see nothing wrong with the particulars. Where these allege that Revenue Officers should "act contrary to their duty as officers of the Preventive Service", this surely means no more than that they should conduct themselves in a manner contrary to their duty. A public officer is acting in a manner contrary to his duty if he fails to perform it, just as much as by doing things which he should not do. In R. v. Hammersley ⁽²⁾ several police officers and a bookmaker were convicted of conspiracy to obstruct the course of public justice. The particulars alleged that the officers should act contrary to their public duty as police officers. They were shown to have interviewed suspects and to have offered, for reward, not to bring charges against them. Their convictions were upheld. The officers concerned did positive things in pursuance of the conspiracy, but the essence of the offence was a failure of duty, as in this case.

35. As to (b), a conspiracy to commit an illegal act is complete as soon as the intention to commit is agreed upon by the parties to the conspiracy. Although proof of the conspiracy is normally afforded by a subsequent overt act, the offence is itself complete at the moment of agreement. Usually, in fact, a conspiracy consists of an agreement to commit an offence against the law in the future.

36. As to (c), it is immaterial that the first appellant was the only Preventive Service Officer who was party to the agreement at the Hong Kong Hotel. What was agreed there was that the course of justice should be obstructed. The manner in which it was to be obstructed was that Preventive Service Officers should act contrary to their duty in the future.

37. As to (d), it must clearly have been within the contemplation of all parties to the conspiracy, when it was entered at the meeting in the Hong Kong Hotel, that the first appellant would not be the only Preventive Service Officer who would be assisting the drug pedlars. All at that meeting must have known that the first appellant would need to enlist the assistance of some of his Preventive Service colleagues if the scheme was to be carried out successfully and expected that he would do so.

38. When the second appellant was brought to the meeting at the Kuala Lumpur Restaurant by the first appellant, the irresistible inference is that the second appellant must have known that he was joining a conspiracy which already existed and in which the first appellant, a senior officer of his service, who was present at the meeting where money was given to him, was a participant.

39. A person who joins a conspiracy after its formation, knowing what its objectives are and agreeing to take part in securing them, becomes a full member of the conspiracy. The judge finds, as a matter of fact, that there was one conspiracy and not two. It would have been surprising if he had come to any other conclusion, in view of the presence at the Kuala Lumpur Restaurant meeting, at which the second appellant received his money, of all those who had entered the conspiracy at the Hong Kong Hotel meeting.

Admissibility of verbal confession of second appellant

40. In addition to submitting that the verdict was unsafe and unsatisfactory, counsel for the second appellant argued that the verbal statement made by the second appellant to Mr. Lee (an I.C.A.C. officer) should not have been admitted in evidence by the Judge because the Crown failed to establish that it was voluntary.

41. In the absence of this statement, which contained an admission by the second appellant that he was present at the Kuala Lumpur Restaurant meeting, counsel contended that there was insufficient evidence on which the judge could have convicted the second appellant.

42. The second appellant was arrested by an I.C.A.C. party early on the morning of the 15th March, 1977. This party and the second appellant went to the latter's flat, which was searched. Thereafter, his service quarters and his bank deposit box were searched, before he was taken back to the I.C.A.C. headquarters.

43. On the afternoon of that day, there were several interviews between Mr. Jones and Mr. Lee (both I.C.A.C. officers) and the second appellant. The first of these took place at about 2 p.m.; the last of them finished at about 7 p.m. that evening. At each of these interviews, the second appellant denied having been present at the meeting in the Kuala Lumpur Restaurant.

44. On the following day, the 16th March, a further interview took place between 10.20 and 11.05 between Jones, Lee and the second appellant, during the course of which he was said to have admitted that he was present at the meeting in the Kuala Lumpur Restaurant, that he had been offered money not to do his duty but had refused to accept any. He refused to sign any statement to this effect.

45. When the Crown sought, during the course of the trial, to tender evidence of this verbal confession, objection was taken by counsel for the second appellant to its admission on the ground that it had been obtained from the second appellant as a result of a threat which had been made to him by Jones, to the effect that if the second appellant was not co-operative with the I.C.A.C., it was likely that his wife would be taken into custody, and interrogated for a substantial period.

46. If a threat of this kind had been made to the second appellant by an I.C.A.C. officer, it would have been such a form of pressure as would, in our view, have made it necessary for the judge to rule out the statement as involuntary.

47. The evidence does not make it clear as to when this threat was supposed to have been delivered, nor as to whether it was delivered by Jones when he and the second appellant were alone, or when Lee also was present.

48. However, the inference from the second appellant's evidence on the voir dire is that it was alleged to have been made between 9 o'clock in the morning of 16th, when a telephone call to the I.C.A.C. office was made by the second appellant's wife, and the interview which started at 10.20.

49. Mr. Lee gave evidence that nobody had delivered any threats of the kind alleged in his presence at any time after arrest and up to the time of the making of the statement. He was not asked whether he was with the second appellant at all times during this period. Lee also asserted that he was present whenever Jones questioned the second appellant, between the time of his arrest and the statement, but was not asked whether Jones could have been alone at any time with the second appellant.

50. Jones himself, however, was not called as a witness. This was an unfortunate omission by the Crown. And in our opinion this made it impossible for the Crown to discharge in the proper manner the burden which lay upon it to establish that this statement was voluntary.

51. In Lo Wing-cheung v. Reg. ⁽³⁾, this court considered how the obligation which lies on the Crown, where the voluntary nature of a statement is attacked, to show that it was made without threats or pressure of any kind should be discharged. We made it clear that, in general, there is no obligation on the Crown to cover the whole period between arrest and the taking of a statement, if the defence does not allege any impropriety during that period. We commented that there is no burden on the Crown to disprove something which nobody suggested had occurred.

52. But we expressed the opinion that, where particulars are given of the form of threat or inducement which is supposed to have been made to the accused person, the Crown could only discharge its obligation to prove the voluntary nature of the confession if it calls evidence from such police officers as were alleged to have been responsible, to testify that no such threat or inducement was delivered.

53. The reason given by the Crown for not calling Jones was that he had left I.C.A.C. and returned to England. We regret that, whatever the inconvenience and expense involved may have been, we cannot regard this as a sufficient justification for not calling him to rebut the specific allegations made against him by the second appellant.

54. We have therefore come to the conclusion that this verbal statement by the second appellant to Lee was wrongly admitted since the Crown has failed to call Jones to establish that he did not make the threat alleged.

Sufficiency of Evidence against second appellant.

55. During his judgment, the judge does not express his opinion as to whether or not, without the verbal admission made by the second appellant, he would have convicted him. He comments that, with the admission, the evidence against the second appellant was "nothing short of overwhelming".

56. We have to say whether, in the absence of this statement, we consider that the judge would necessarily have come to the same conclusion. In our view he would.

57. The judge, having warned himself clearly against the dangers of accepting the evidence of accomplices, has nevertheless accepted the evidence of P.W.1. That witness clearly identified the second defendant from photographs which were shown to him at an earlier stage by the I.C.A.C. He also identified him in court, though this is of little probative weight.

58. P.W.2 picked out the wrong person when shown by I.C.A.C. a sheet of photographs on which was included a photograph of the second appellant. It would, we think, have been unsafe for the judge to have relied upon the identification of the second appellant by P.W.2.

59. However, he made it clear that he was prepared to accept the evidence of P.W.1 on the matter of identification. Even if he had accepted also the evidence of P.W.2 as to identification, this would have added nothing, since the evidence of one accomplice cannot corroborate that of another. Therefore, the judge was entitled to find that there was a proper identification of the second appellant as being present at the meeting in the Kuala Lumpur Restaurant on the evidence of P.W.1 alone. This he did, and we see no reason to disagree with his finding.

60. We therefore conclude the judge must necessarily have reached the same conclusion even if the admission by the second appellant had not been before him. Consequently, the conviction of the second appellant should stand and leave to appeal against conviction is refused to both appellants.

Sentence of first appellant.

61. This court has made it clear on other occasions that, although the general rule may be that an accused person with a clear record should not normally be given a deterrent sentence, there are exceptions to this general rule. Among these exceptions are cases of unlawful trafficking in drugs, kidnapping, and cases where there is an element of corruption.

62. We regard the sentence as a proper one for this very serious offence by a senior officer of the preventive service. Leave to appeal against sentence by the first appellant is refused.

Representation:

Hoolahan, Q.C. & Ching Y. Wong (K.C. Yung & Co.) for 1st Appellant

A. Huggins (Hampton, Winter & Glynn) for 2nd Appellant

Noble for the Crown/Respondent

(1) Crim. App. 1978 No. 1099

(2) 42 C.A.R. 207

(3) Crim. App. 1979 No. 378