Yu Yuk Kwong and Others v. The Queen
Read the full judgment text of CACC 1099/1978 on BabelCite. This Court of Appeal judgment was delivered on 14 November 1979.
1. YU Yuk-kwong, LI Fai, and CHAN Kai-yin were convicted of conspiracy to traffic unlawfully in dangerous drugs.
Cited by 4 cases
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CACC001099/1978 [Verdict unsafe and unsatisfactory. Proper approach by appellate court].
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----------------- Coram: Roberts, C. J. , Leonard & Li, JJ. Date of Judgment: 14 November 1979 ----------------- JUDGMENT ----------------- Introduction 1. YU Yuk-kwong, LI Fai, and CHAN Kai-yin were convicted of conspiracy to traffic unlawfully in dangerous drugs. 2. YU Yuk-kwong, the 1st appellant, was sentenced to fifteen years' imprisonment and appealed against both conviction and sentence. 3. LI Fai, the 2nd appellant, appealed against conviction only. He was sentenced to eight years' imprisonment. 4. CHAN Kai-yin, the 3rd appellant, was sentenced to fifteen years' imprisonment and appealed against both conviction and sentence. 5. On 22nd October we allowed the appeals of the three appellants against conviction and said that we would give our reasons later, which we now do. Background 6. Originally there were nine persons jointly charged with nine counts of conspiracy to deal in dangerous drugs, namely salts of morphine. 7. After a contested preliminary inquiry, all nine were committed for trial before the High Court in November 1977 and were granted bail pending their trial. When the trial began in the High Court, in October 1978, only three of the accused surrendered to their bail and their trial continued in the absence of the other six. General Conspiracy 8. The second count in the indictment, on which the three appellants were convicted, alleged that they (in conjunction with the 1st, 5th, 8th and 9th defendants, who did not attend their trial) had on various days, between the 17th January 1969 and the 30th June 1972, conspired together with various named persons and unknown persons to traffic in dangerous drugs namely salts of morphine otherwise than and in accordance with the Dangerous Drugs Ordinance and without a licence granted thereunder. Among the persons named as co-conspirators in the particulars of that count were six persons who were called to give evidence for the Crown. 9. The prosecution case was that between November 1968 and June 1972 a drug syndicate was operating in Hong Kong. (The period between November 1968 and January 1969 was the subject of a separate count, on which only the first appellant, YU Yuk-kwong was tried. He was acquitted of this count.) The syndicate was under the control of MA Sik-yu and members of his family, including his son MA Woon-yin (8th defendant) and his brother MA Sik-chun (9th defendant) who were among those committed for trial with the three appellants. 10. The object of this syndicate was to import morphine from Thailand. A Mrs. Ng (also known as Ratana Thumthrong Kitful) organised the supply in Thailand. The drugs were carried, during the period in question, on a number of Polish merchant vessels, members of the crews of which were paid to conceal drugs on their ships. When a vessel carrying morphine arrived in Hong Kong, a member of the Ma syndicate would collect it. 11. It was estimated that during a two year period, about 60 to 120 packets of morphine were brought in every month and that each of these shipments was worth between HK$6,000,000 and HK$12,000,000. It is thought therefore, that in a two year period, at least $100,000,000 and $200,000,000 worth of morphine was imported into the Colony by the Ma syndicate. Importance of the three appellants 12. It was never the Crown's case that the three appellants were men of any substantial importance or influence in the syndicate; merely that in various ways they took part in its operations, knowing that what they were doing was connected with, and assisting in, the importation of morphine. 13. The 1st appellant was alleged to have acted as a porter, though the evidence relates only to one occasion, when he is said to have carried a block of morphine from a ship arriving from Thailand into a walla-walla, operated by one of the conspirators, and to have taken it from the walla-walla to the shore, where another member of the syndicate took control of it. 14. The 2nd appellant was said to have taken part in the beating up of persons who were believed by Ma to have stolen some of the morphine, before its final delivery into the possession of the syndicate. 15. The third appellant was alleged to have been a cashier who, on the instructions of Ma, paid out money for the seamen who had brought the drugs to Hong Kong and for those who had brought them from ship to shore. Also it was said to have been his task to disburse "safety money", that is to say money kept ready by members of the syndicate to pay off any ship's officers or public officers who might attempt to interfere with the importation. Accomplice evidence 16. It is an unfortunate fact that successful prosecutions of members of large scale conspiracies can seldom be brought 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. 17. The Crown's case depended in all material particulars upon the uncorroborated evidence of eight admitted accomplices. All gave evidence which, in varying degrees, pointed to the existence of a major conspiracy to traffic in drugs. Although their evidence differs in some respects, it can be said to link together in such a manner as to form a strong network of evidence which establishes beyond doubt the existence of the drug syndicate and the general outline of its aims, methods and achievements during the period of the second count. Indeed counsel for the appellants did not dispute that a conspiracy of the nature alleged by the Crown had been proved. What they did dispute was that the evidence had implicated the appellants to that degree of certainty which is required to found a conviction. 18. All those accomplices who gave evidence, did so after having been given by the Crown immunity from prosecution on any dangerous drug offence connected with the activities of the syndicate, if they gave full and true evidence at the trial of the accused on the counts charged against them. 19. In assessing the credibility of such witnesses, it must never be overlooked that the motives which impelled them to testify were those of self-preservation and self-interest. This must oblige a jury to look with great care, and indeed with sustained suspicion, at any evidence given by such persons. It was the duty of the trial judge so to instruct the jury and that of the jury to give full weight to these factors when considering the evidence of all the accomplices, and particularly that of LI Ting-sze, the main Crown witness. Directions on accomplice evidence 20. The judge deals with these considerations in great detail at pages 438 to 442 of the Record. He warns the jury of the selfish motives of these witnesses; of their disreputable nature; of the danger of relying on the evidence of such persons; of the need for corroboration; of the risk of spite or revenge inducing one of them to incriminate innocent men in the conspiracy. 21. He pointed out that there was independent evidence that the drug conspiracy existed but none that any of the appellants was involved in it. He told the jury that they could act on the uncorroborated evidence of accomplices, but warned them, several times, that it was dangerous to do so. 22. By its verdict, the jury must have accepted the uncorroborated evidence of accomplices against all appellants. 23. Objections were taken as to the warnings given. Broadly speaking, these objections may be regarded as two fold. Firstly, it was suggested that the evidence of LI Ting-sze was so untrustworthy as to have been incapable of being corroborated and secondly that the judge's warnings were emasculated by his subsequent comments. 24. In the event, as will be seen, we quashed the convictions on the ground that they were unsafe and unsatisfactory. 25. It was therefore not necessary for us to reach a conclusion as to the validity of the complaint that the judge had failed to direct the jury adequately on the question of the evidence of accomplices. Had it been necessary for us to do so, we would have had little difficulty in deciding that the direction had been fair and more than adequate and not weakened in the way suggested. 26. We think it desirable, however, to refer to criticisms which were made of several references by counsel for the Crown to corroboration, which were said to be misleading. 27. If they were, we do not believe that a Court of Appeal can allow itself to regard statements by counsel during a trial to be dissected as if they were a subsidiary summing-up. A misstatement of law by counsel, unless repeated by the judge, cannot be a ground for upsetting a conviction. Admission of further evidence 28. At an early stage in the hearing of the appeal, Mr. Hazan, counsel for the third appellant, asked us to admit in evidence for the purposes of the appeal the depositions of LI Ting-sze, which had been taken during the contested committal proceedings. 29. During the course of the trial, counsel who represented all three defendants (and who did not appear on the appeal), asked LI Ting-sze many questions which were directed at obtaining from him admissions that the evidence which he had given in the proceedings before the magistrate differed significantly from the evidence which he had given at the trial. However, the depositions themselves were never put in evidence at the trial. Counsel for the defendants, having quoted various passages from the depositions and obtained Li's agreement or disagreement that he had said what was recorded in them, accepted the answers. He did not seek to put the depositions in evidence, though he would have been entitled to do so. 30. Counsel for the third appellant submitted to us that an examination of the depositions would reveal that LI Ting-sze's character was such that he was utterly unworthy of belief. Also that this examination would also reveal such additional inconsistencies between the evidence given by Li before the magistrate and that given by him at the trial as would necessarily convince us that it would be unsafe to rely upon Li's testimony and that consequently the verdict must be quashed as unsafe and unsatisfactory. For it was said, and counsel for the Crown did not dispute this, that if LI Ting-sze were so discredited that his evidence could not be safely accepted there would remain insufficient evidence to sustain the convictions of any of the appellants. 31. In R. v. Monk(1) the note of the submissions of counsel for the appellant, shows that the Court of Criminal Appeal agreed to look at the depositions in that case, though they were not put in at the trial. The judgment does not state what effect, if any, this had on the result. 32. In R. v. Hall(2) Coroner's depositions were admitted in evidence on appeal, in a case where a woman who had testified before the Coroner had been unfit to give evidence at the trial. 33. In R. v. Metcalfe(3) the deposition of a Crown witness was looked at in the Court of Criminal Appeal, which wished to satisfy itself whether or not a miscarriage of justice had occurred, although this deposition had not been put in evidence at the trial. Not without some hesitation, we decided to admit the depositions. 34. The depositions were known and available to counsel who represented the third appellant at the trial. If he had wished to do so, he could have introduced them into evidence thereat. Indeed, it may well be said that, if these depositions were essential to the defence in its testing of the credibility of LI Ting-sze, counsel should have taken steps to introduce them. As to whether his conduct of the case could be said to be open to criticism on this ground, we express no view, since he did not appear at the appeal and thus had no chance to explain, had he so wished, the reasons for not putting the depositions in evidence; there may have been sound ones. 35. However, even if it could be said that some degree of fault could be attributed to counsel, nevertheless an appellant should not be allowed to be prejudiced by the course which his counsel elected to take. 36. We therefore admitted these depositions, though we would like to make it clear that we regard this as a wholly exceptional case and not as a licence to counsel to try to repair, during the course of an appeal, gaps in the defence which should have been closed by counsel during the course of the trial, whether by questions or by the introduction of evidence. Correct approach of appellate court 37. Although the depositions were available at the trial, and known to prosecution and defence (and the judge) they were not before the jury. They must therefore be regarded as in the nature of additional evidence. 38. Stafford v. Director of Public Prosecutions(4) provides that, where additional evidence is received by an appellate court, that court should ask itself whether the additional evidence might have induced a reasonable doubt in the minds of members of the appellate court "if they had constituted the jury". It is not immediately clear whether by this is meant that the appeal court must put itself into the shoes of that jury which actually tried the case, or whether it should regard itself as a fresh jury. 39. The practical result may well be different. Indeed, in this case - the following alternatives could have arisen- (a) The trial jury believed LI Ting-sze knowing that he was a liar, a criminal and a self seeker. The additional evidence merely underlined what they already knew. They would not have altered their verdict because of it and nor should we, being in the shoes of that jury. (b) The trial jury believed Li. We, as a new jury might decide that the original testimony, plus the fresh evidence in the depositions, cast such doubts on Li that we would regard the conviction as unsafe. 40. The first alternative is one which seems to us to be preferable. An appeal court has not seen the witnesses. It has to rely on the dead word, not upon the living trial. It is unfair both to the appeal court and to the jury for the former to substitute its own view for that of the latter unless justice demands that it should do so. 41. Nevertheless, the effect of Stafford, as we read it, is that we are not permitted to take this approach, but are obliged to consider the totality of the evidence afresh, as if we were a new jury, reaching a fresh conclusion upon the basis of all the evidence, original and additional, on the assumption that we were properly directed. We adopt the second alternative with misgivings, but Stafford, in particular the following observations of Lord Dilhorne, seems to give us no choice:
We therefore must not ask ourselves whether, had this additional evidence been in front of the jury, is it probable that that jury would have reached the same conclusion; we think it is likely that they would have. We must reach our own independent conclusion as to whether, had we been a fresh jury, we would have been satisfied beyond a reasonable doubt of the guilt of the appellants. Assessment of LI Ting-sze 42. Counsel for the third appellant took us, at some length, through the evidence of LI Ting-sze as contained in the depositions. He drew our attention to the character of LI Ting-sze as revealed by them and to a number of instances in which the evidence which was given by Li before the magistrate was varied, contradicted or embellished by the evidence which he gave at the trial. 43. The depositions show him to have played a significant role in drug trafficking for five years up to 1973 and to have preserved a close connection with others actively so engaged up to 1977. On his own admission, he had earned between one hundred thousand and a million dollars from drugs. He himself was a drug addict and remained one until after he had approached the Narcotics Branch in 1977. We do not discount the possibility that his addiction may have affected his memory and his sense of proportion. And we bear in mind the fact that he was describing events which took place between five and eight years before the committal proceedings. 44. Li admitted that he was prepared to indulge in bribery and that he did engage in blackmail, forgery of Thai bank notes and in assisting in bringing illegal immigrants into Hong Kong. After his arrest for the latter activity, he sought immunity by going to the Narcotics Branch, fearing that his associates might inform on him. 45. In order to persuade the officers of that branch that he was in possession of valuable and authentic information, he arranged for Madam Ng, who had organised the supply of drugs for the syndicate in Thailand and who was a woman whom he apparently trusted and who trusted him, to deliver, in 1977, a large consignment of morphine to Hong Kong. 46. He was indifferent to the possibility of her arrest and prepared to give evidence against her if she was arrested as a result of the trap he had set. When the consignment was seized, he pocketed the large reward payable in respect of its seizure. Further, he admitted that he was prepared to "do anything to save his own skin". In short, he was not an admirable man. Nevertheless, his appalling behaviour would not, by itself, have persuaded us that a conviction based on his evidence was necessarily unsafe or unsatisfactory though it made us approach it with the utmost reserve. 47. At the committal stage, moreover, material conflicts emerged, between the evidence he then gave and the lengthy statements he had previously given to the police and between those statements themselves. In the depositions he admits that there were some matters which he had 'forgotten' to tell the police; and others which he had told them but which they had "failed to record". Similar discrepancies occurred in the evidence which he gave at the trial. Even his professed reason for becoming an informer changed; to the magistrate he said he did so to save his own skin; to the jury, that he did so because he had repented and wished to help society. 48. It will readily be appreciated that, for the effective conduct of such a conspiracy as was shown to have existed, someone would have to have acted as a porter - carrying the morphine blocks ashore - as he said the first appellant did; someone would have been required to bully and assault anyone falling foul of the syndicate, as he suggested of the second appellant, and someone must have served as a cashier - the part assigned by him to the third appellant. 49. But we reminded ourselves that, before we could be satisfied of the guilt of the appellants, we must be sure that LI Ting-sze was truthful in the role he assigned to each of them in the conspiracy. 50. In the course of his evidence, LI Ting-sze gave to LAM Hing-ho, a named co-conspirator not before the court, whom he described as "a friend of mine", the part of "contact man". He described one incident in which Lam, on his instructions, went on board a vessel on which were drugs consigned to the syndicate. 51. At the trial, when it was suggested to him that Lam was absent from the Colony at the relevant time, Li admitted that, on that occasion at least, Lam had not played the role assigned to him by Li and that he had substituted Lam for LI Chun-tin, who had played that role. Only after further lengthy cross-examination did Li disclose that LI Chun-tin was his adopted brother. We regard it as of great significance, in assessing his credibility, that he was prepared to make such a substitution. 52. At the committal Li, when asked whether the third appellant (Chan) knew the purpose of payments he (Chan) was alleged to have made to him, replied "I don't know if he knew". In a statement to the police "He might know." At the trial "He must have known". We regard it as of considerable significance that the first indication which Li gave to the police that the third appellant knew the purpose of the payments was after the third appellant's arrest. So Li, a man without scruple on his own admission, was also shown to have been a witness who lied about what was perhaps the most important part of his evidence, so far as the appellants were concerned - the roles which he alleged two different persons, Lam and Chan, had played in the conspiracy. If he lied about them, could he be believed on other essential matters? 53. The judge refers, in his summing-up to one important instance of self-contradiction by Li during the trial. There are others, which appear in the record to which the judge does not refer but some of which we have mentioned. A reading of the depositions shows that there were still further inconsistencies between the evidence given in November 1977 at the preliminary inquiry and in October 1978 during the trial. 54. LI Ting-sze was the cornerstone of the Crown's case. If his evidence could be said to be substantially discredited, although the evidence of a large scale conspiracy would remain, that part of the evidence which points to the three appellants having been implicated in it would be so tenuous that it would be unsafe to uphold the conviction. We must also beware lest we allow ourselves to be misled, and this is all too easy, into being so convinced of the weight of evidence that a conspiracy existed that we fail to address ourselves adequately to the crucial question of how much of that evidence relates to each appellant. There is a real risk that the sheer weight of the conspiracy will drown the defendants. 55. For the reasons given above, we regard Li as a man whose only discernible principles are those of self-preservation and self-interest, who chose to be a witness rather than an accused. He is, in our eyes, a proven liar, upon whom we are not able to rely. What is the effect of this finding? 56. The following much quoted passage from D.P.P. v. Kilbourne (5) is in point-
Here the witness is not credible; nor is his evidence. 57. As far as the third appellant was concerned the only evidence against him was that of LI Ting-sze. As to the first and second appellants, the only other evidence against them was of uncorroborated accomplices which would have been quite insufficient of itself to justify conviction. We therefore allowed these appeals and quashed the convictions. Comments by counsel for the Crown 58. It is not necessary, in the result, for us to decide what effect, if any, comments by counsel for the Crown on the absence of evidence for the defence would have had if we had not quashed the convictions on other grounds. 59. Nevertheless, we believe it advisable to remind prosecutors of the mandatory provisions of section 54(1) of the Criminal Procedure which provides that
60. A breach of this provision will result in a quashing of the conviction or, at the least in appropriate cases, in an order for a re-trial. 61. There was some argument as to whether "comment'' means "refer to" or "mention", or whether it implies some measure of criticism. 62. We are inclined to the view that the section forbids even a mere reference by the prosecution to the fact that the defendant (or his wife) has not given evidence. Thus a comment that "the defence has given no evidence on this matter" must be taken to infer that the defendant has failed to give evidence and so to amount to an infringement of the section. 63. Provided that his comment is carefully worded, however, in such a way that the jury would not read into it a reference to the defendant himself, there is no objection to counsel for the Crown referring, in critical terms if he thinks fit, to the absence of any other identified witness who may have been expected to testify on behalf of the accused. 64. The object of the section is to prevent counsel from inviting the jury to draw references adverse to the accused from his failure to give evidence. No doubt the section is out of touch with reality. Any reasonable juror is likely, in practice, to give weight to the fact that the accused has not given evidence. Whatever lawyers may say about the "right of silence", the juror will, we believe, be influenced by the absence of testimony from the defendant. The more so if the judge, as he is entitled to do, himself comments on the failure of the accused to testify. 65. However, the law is clear and we have no choice but to apply it, as we might have had to do if we had been obliged to decide whether there had been an infringement of the section during this trial. As to this, we go no further than to say that there were passages in counsel's speeches which might have caused us some anxiety and well illustrate the difficulties which the section can create. Representation: Sparrow (Lau, Chan & Ko) for 1st appellant C.H. Koh (Ho & Wong) for 2nd appellant Hazan, Q.C. & Sedgwiek (Liu, Chan & Lam) for 3rd appellant Hodge & F. Cheung for the Crown/Respondent (1) (1912) 7 Crim. App. R. 119 (2) 26 Cox's Criminal Cases p. 528 (3) 9 Crim. App. R. p.7 (4) 1974 A.C. 878 (HL) (5) (1973) A.C. 729 p.746 |