HKSAR v. Tse Kwan Wai, Barros and Others

CACC43/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 43 OF 2006

(ON APPEAL FROM HCCC 174 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore Ag CJHC, McMahon and Wright JJ in Court

Date of Hearing : 22 May 2008

Date of Judgment : 16 June 2008

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J U D G M E N T

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McMahon J (giving the reasons for judgment of the Court) :

1.The applicants (to whom we shall refer as “D1”, “D2” and “D3” respectively) were convicted after trial before Beeson J and a jury of an offence of conspiracy to manufacture a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 and section 159A and 159C of the Crimes Ordinance, Cap. 200.  All seek leave to appeal their conviction and D3 additionally seeks leave to appeal his sentence of 20 years’ imprisonment.

2.The prosecution case at trial was that a Peruvian “chemist” (“PW11”) experienced in manufacturing cocaine powder had been brought on 25 September 2004 to Hong Kong by persons unknown for the purpose of recovering and purifying about 3 kilogrammes of cocaine from fishmeal with which it had been mixed to facilitate its unlawful importation into Hong Kong.

3.Once in Hong Kong he had been contacted by D1 and subsequently was taken to a pair of fish rafts moored offshore near Tolo Harbour.  The fish rafts, consisting of two fish farms, were moored adjacent to one another.  The smaller of the two had a single room hut on it.  The larger had more substantial accommodation.  They were separated by about 150 feet of water.  

4.PW11 was taken to the rafts by D1 and D2 on a sampan helmed by D3 and on the smaller raft PW11 was provided with the equipment and chemicals he needed for the extraction process.  He was provided also with a first batch of bags containing fishmeal mixed with cocaine, and over several days during the course of which D1, D2 and D3 were present on one or other of the rafts, he was able to separate 1 kilogramme of cocaine powder from the fishmeal.  He gave that to D1 and then he, D1 and D2 were taken ashore by D3 in a sampan. 

5.PW11 was taken to a hostel where he stayed for several more days.  On about 23 October, he was taken back to the fish rafts by D1 again in a sampan helmed by D3 and after several days had passed was provided with more bags of fishmeal containing another 1 kilogramme of cocaine which he separated from the fishmeal and again gave to D1 who took it away with him.  

6.PW11 remained on the fish rafts, living in the accommodation in the larger fish raft together with D3.  He spent two weeks there before on 5 December he was once again taken ashore by D3.  There they met D1 and D2 who had more chemicals and fishmeal for use in the manufacturing process and these were taken back to the fish rafts by all three of them.  PW11, over the next several days, commenced again to separate and purify cocaine mixed in with the fishmeal, the operation this time being conducted at night in D3’s accommodation on the larger raft, and had nearly completed this third process by 9 December.  D1 and D2 had come to the raft at about 8:30 p.m. that evening but had left at about 11:30 p.m. and been taken ashore by D3.  D3 then returned to the fish raft.  Shortly after D3 had left, police, who by this time had the raft under observation, arrested D1 and D2 as they attempted to drive off in a BMW motor vehicle.  When their car was stopped, both D1 and D2 fled, but each after a short chase was intercepted and subdued.

7.Following that, police went to the rafts and arrested both D3 and PW11. 

8.The role attributed to D1 by the prosecution case was that he was the organizer of the manufacturing and in charge of the operation; D2 was said to be an assistant to D1 and a “lookout” during the manufacturing process, disguising his role in that regard by fishing from the rafts; D3 was a general dogsbody who allowed the rafts, which he had the use of, to be used for the manufacturing of the drug, ferried PW11, D1 and D2 to and fro and provided food and drink to those on the rafts. 

9.Each of D1, D2 and D3 participated in video-recorded interviews following their arrests although none gave evidence at trial.

CONVICTION

D1

10.Mr McGowan’s grounds of appeal on behalf of D1 can be summarised as follows :

(1)     The jury were misdirected that they could “presume” there was a conspiracy from circumstantial facts.

(2)     The jury were not directed that they could not draw an inference adverse to D1 if another inference not adverse to D1 was open to them.

(3)     The jury were not directed that D1’s flight prior to his arrest was not necessarily “a possible indication of guilty knowledge”.

(4)     In summarising the evidence, the judge was in error when she said D1 in his interview with police had told them he had visited the raft some months ago and in suggesting he had lied about that.

(5)     The judge erred in directing the jury that traces of cocaine on D1’s person showed he was present at a place where cocaine was made and that it was probably the fish rafts.

(6)     D1’s counsel at trial incompetently failed to cross-examine PW11 as to D1’s travel records which demonstrated that D1 was not in Hong Kong at times PW11 said he had been.

(7)     The failure to cross-examine PW11 on these travel records rendered the trial unfair.

(8)     The judge failed to deal adequately with the evidence of PW11 being contradicted by these travel records.

(9)     The judge failed to sufficiently emphasise the importance of the travel records.

(10)    D1’s conviction was unsafe and unsatisfactory.

D2

11.Mr Mumford SC with Ms V. Lim for D2 advanced grounds to the following effect :

(1)     The judge misdirected the jury that if they accepted the evidence of PW11 then all of D1, D2 and D3 had conspired to manufacture cocaine, when the jury had to decide, even if they accepted PW11’s evidence, whether that evidence established that D2 was a member of any such conspiracy.

(2)     The judge failed to direct the jury that if there was a reasonable inference open to them on the facts which was not adverse to D2, then they could not draw an adverse inference.

(3)     The judge failed to adequately direct the jury on the conflict between PW11’s evidence and D2’s travel records.  Nor did she sufficiently deal with PW11’s evidence that on occasion he was not sure whether D2 had left the raft.

(4)     The judge reversed the onus of proof by telling the jury that there was no evidence D2 had not been paid for his alleged role as lookout.

(5)     The judge erred in directing the jury that the fact D2 was employed was no indication he was not involved in dangerous drugs.

(6)     D2’s conviction was unsafe and unsatisfactory.

D3

12.D3 was not represented before us and relied on the following self-made grounds :

(1)     The judge “split” her summing-up so as to allow a weekend to intervene between its commencement and its conclusion.

(2)     The judge did not deal adequately with discrepancies in the evidence of PW11.

(3)     The seized exhibits were re-packaged by police before delivery to the Government Laboratory for analysis; hence there was a break in the chain of exhibits.

(4)     There was insufficient evidence against D3 so as to allow a safe conviction.

D1—Ground 1

13.At an early stage in her summing-up in referring to the alleged conspiracy, the judge said :

“      … Proving the existence of that agreement can be done by using direct evidence, eyewitnesses, or by admissions of the parties involved, or what is more commonly the case, the prosecution could prove circumstances from which you can presume that the agreement existed …”

and shortly afterwards :

“      … More usually, the prosecution has to prove the agreement by showing that circumstances existed from which you can presume that the agreement existed.”

14.Mr McGowan argues that the use of the word “presume” was misleading, and that was so because the judge neither explained what she meant by that word nor how the jury were to approach or apply any such “presumption”.

15.The judge’s comments in this regard should be placed in context.  The above directions were given as part of a preamble to far more precise and detailed directions given by her as to the drawing of inferences and the approach the jury should take to circumstantial evidence. 

16.It is true the use of the word “presume” was somewhat unusual but in her remarks set out above the judge was not at that time attempting to provide the jury with any formal or specific direction.  She was simply categorising the types of evidence which the prosecution could rely upon generally to establish its case in a trial such as the present.  These introductory remarks would in no way have rendered nugatory, or undermined the effect of, the full directions the judge later gave regarding the drawing of inferences and circumstantial evidence.

17.While it was perhaps not wholly desirable that the judge used the word “presume” rather than some other term, the simple point the judge was making was that it was possible for the prosecution to prove other facts from which the jury could find an agreement to manufacture drugs had been proven.  At that point of her summing-up she was obviously concerned to introduce the jury to what followed simply and concisely, and to do so in layman’s terms.  In any event, the word “presume” stated the prosecution’s case no more strongly than other terminology would have done.  No prejudice was suffered by D1 (or indeed D2 and D3) by the judge’s remarks and this ground fails.

D1—Ground 2

18.Mr McGowan complains that the judge did not specifically, or at least sufficiently, direct the jury that in the event they found a reasonable inference could be drawn from proven facts which was not adverse to D1, then they could not draw a competing adverse inference.

19.The judge gave this direction concerning the drawing of inferences against D1, D2 and D3 :

“      In respect of the evidence generally, you are entitled to draw inferences from it.  That means that if you find that certain facts have been proved, whether from the oral evidence, or from the documents, or from the Admitted Facts, or from the physical exhibits, you can infer from those facts that you find proved the existence of other facts.  You can draw inferences only if that inference is the only reasonable inference to draw from the facts you find proved.  So if, from a set of facts which you find proved, there is a reasonable inference to draw against the accused as well as one in his favour, you must not draw the unfavourable inference.  …” [Emphasis added]

20.It is quite clear the jury were directed that an adverse inference could not be drawn against any defendant if there was a reasonable inference which was not adverse to him.

21.Mr McGowan however further argues that as the judge then went on to cite examples in respect of each of D1, D2 and D3, which were based on the facts of the case, setting out what inference the prosecution said should be drawn and the opposing inference suggested by the defence, the jury should have been specifically directed again that, as Mr McGowan puts it, “if you consider the suggested defence inference is one that can indeed be reasonably drawn then you cannot draw that urged upon you by the prosecution”.

22.With respect we think a further direction in those terms would have done little more than repeat the already unambiguous direction the judge had given.

23.In any event, in the context of the examples given it was quite clear that if the jury thought the inference favouring the defence could be reasonably drawn then they were not to draw the adverse inference put forward by the prosecution.

24.The judge’s directions in this regard were wholly sufficient and this ground must fail.

D1—Ground 3

25.The argument advanced under this ground was somewhat broader than the stated ground and was that the judge’s directions concerning the evidence of D1 and D2 fleeing when their BMW was intercepted by police were inadequate and contrary to law.

26.The directions on “flight” which the jury were given were as follows :

Firstly, as one of the examples she gave in dealing with the question of inferences, the judge said :

“      The other matter is that if you accept the evidence of the police officers that the 1^st and 2^nd defendants escaped from the car and decided to run away, that is a possible indication of guilty knowledge.  The defence would say, ‘No, that’s not the case.  Given the situation in which the defendants found themselves, in other words, being stopped by an unmarked vehicle in the middle of the night with seven men rushing out of the car that they may have thought there was a robbery taking place and that they quite rightly and sensibly ran out of the car to escape.’”

27.She has there set out quite clearly the opposing interpretations as to the flight of D1 and D2 advanced by the prosecution and the defence.  Subsequently she said in respect of D1 :

“      In respect of the interception and the arrest, there is no evidence that contradicts that account of the police officers but you have to be sure that the police officers were telling the truth about what happened, in other words, that they were telling the truth when they say that they were stopped and had the blue light already affixed by the time the car came.”

and in respect of D2 :

“      Again, the running away at the time of the arrest meant that he could have mistaken the police for a robbery and had been running away for some innocent reason like that.  …”

28.Mr McGowan says this was not a sufficient direction even taken in aggregate and relies on the comments of this court in HKSAR v. Mo Shiu Shing [1999] 2 HKLRD 155 at 174 which, it must be said, were more specifically directed to disapproval of the use of the phrase “consciousness of guilt” which, we should say, imports a different and more problematic concept than the judge’s phrase “indication of guilt”. 

29.The court said regarding the evidence of the defendants’ flight :

“      We emphasise, as we have also done in relation to lies, that the expression that a person may be motivated by a ‘consciousness of guilt’ is more likely to confuse than to assist.  In the light of this, we strongly recommend, that, where it is necessary and appropriate to direct upon ‘flight’ because the prosecution has attached proper significance to it, that, the jury is told this may be supportive of the prosecution’s case if it has been proved that no innocent reason existed to run away.  In some respects, stated in this way, the direction is doing no more than stating the obvious.”

30.Evidence of flight has often been described as a matter of commonsense : R. v. Cheng Wai King (unreported), CACC449/1994; HKSAR v. Fung Pak Cheung (unreported), CACC105/2006.  However the dangers of allowing evidence of a defendant’s flight to go before a jury without directions as to how such evidence should be approached are similar to those pertaining to evidence of lies and the jury should be directed in much the same terms as are required for lies.  They should be told to consider whether there may be an “innocent” reason for the defendants’ flight, and that it is only if they are satisfied there is no such reason that the evidence of flight is capable of supporting the prosecution’s case.  As a matter of principle and logic following on from Mo Shiu Shing they should now also be directed that evidence of a defendant’s flight is incapable by itself of establishing guilt.

31.In the present case, it is true the directions the judge gave as to D1 (and D2’s) flight from the police once their car had been intercepted fell short of an express direction to the jury that evidence of their flight may only support the prosecution’s case if it had been proven there was no innocent reason for their flight.

32.It was clearly left to the jury that the “innocent reason” they should consider was that D1 and D2 may have thought the plainclothes police who intercepted them were robbers, or at least a group of people up to no good.  That was the only realistic innocent reason suggested by the evidence.  In our view that aspect of the direction was sufficient.  Similarly, though not put in express terms, the jury could have been left in no doubt that it was only if that potentially innocent reason was disproven by the prosecution that the evidence of D1’s (and D2’s) flight could be used to support the prosecution case. 

33.What was not said was that the evidence of flight could not by itself prove guilt.  The judge’s directions on flight, even in the aggregate, were insufficient in that regard and amounted to a misdirection.  But the importance of the evidence of flight in the context of the case against D1 as a whole was minor.  The case depended essentially on the acceptance of the evidence of PW11.  If PW11 was regarded by the jury as a credible witness, as he obviously was, D1’s reaction to his interception by the police was really neither here nor there.  In the context of the evidence of PW11; of the circumstantial evidence relating to D1’s face and fingernails being found to have cocaine traces upon them following his arrest; his fingerprints being found on an invoice seized from the BMW which related to the purchase of chemicals used in the manufacture of the cocaine and his DNA in a cigarette butt found on the raft, we are satisfied that had the jury been fully and properly directed regarding his flight from the police, their considerations would nevertheless have been the same.  It was never suggested by the prosecution that the evidence of flight was anything other than part of the circumstantial evidence which, if accepted, went merely to supporting PW11’s credibility.  There was no danger of the jury having embarked upon any course of impermissible reasoning in the present case.

34.In respect of this ground, the misdirection was immaterial and the ground fails.

D1—Grounds 4 and 5

35.These grounds can be dealt with together.  Essentially, they allege errors of fact by the judge in the course of her summing-up.

36.The first complaint is that the judge misdirected the jury concerning the traces of cocaine found on his face and fingernails by saying :

“In respect of the personal trace elements — the items found on his face and nails — they show that he was present in the vicinity of a place where cocaine was being made.  It was probably the fish raft.  It does not establish when he was there or for how long he was there and I would remind you that it could have been an innocent exposure to the cocaine manufacturing.  It does not establish guilt by itself.”

37.Mr McGowan argues that this wrongly suggests that D1 was present on the raft when cocaine was being made and so prejudiced the case of D1. 

38.All the judge was saying however was that the contact evidence (which was not disputed) showed that D1 had been in the vicinity of a place where, at some stage, cocaine was being made.  Even if it was not strictly correct to say that the contact evidence showed that D1 was in the vicinity of a place where cocaine was “being made” we do not think that matters.  The only possible place on the evidence where D1 could have come into contact with cocaine was on the raft.  In the context of the present case where D1 did not give evidence, where the prosecution surveillance evidence established D1 (and D2) had been on the raft on the night of their arrest, and where D1 in his interview with the police had eventually admitted going out to a raft to fish with D2 that same night, the judge’s remarks in our view could not realistically have prejudiced D1’s case. 

39.The second complaint is that the judge in summarising D1’s video-recorded interview, and in the context of having previously given a proper lies direction, misstated the interviews contents by saying :

“… ‘It possibly shows that he was lying on the video interview record when he says that he did not ever go onto that raft, but you will recall what I said about lies.  They are not necessarily indicative of any guilt.’”

40.Mr McGowan argues that D1 did not say in his interview that he had ever gone onto the raft but had said the following :

“134       ‘How many times have you been to the fish raft near Yung Shue O?’

135         Just this occasion.

136         Only … once … this occasion?

137                 Yes.

138         You said you did not go onto the fish raft?

139         Went up … once … this is once tonight.

140         … Tonight.

141         Uh-huh.

142                 Did you go up, didn’t you?

144         Which raft?

145         Only a fish raft

146         Did you ever get onto … 4247 …?

147         No.

148         Do you know what number [it] was?

149         No idea.”

41.D1 had given a different version earlier in his interview to the effect that he had only been to a fish raft several months earlier to fish and that on the night of his arrest he and D2 had fished only from the shore and, after catching a fish, had left.  This portion of his interview was plainly contradictory to the later portion set out above and we think, in the context of the whole of the interview and the about-turn in D1’s subsequent version of events, that the judge was entitled to suggest that it was “possible” that D1 had been lying when he suggested, as he did initially, that he had not been to the fish raft.

42.It should be borne in mind that even when D1 changed his version of events and admitted he had been out to a fish raft that night he still essentially asserted it was not D3’s raft and that there was no one else (apart from himself and D2) on it.  It was never in issue during the trial that PW11 and D3 had been on the raft that night until their arrest.

43.Taking the matter as a whole we think the judge’s remark to have been justified.

D1—Grounds 6 and 7

44.These grounds fall to be considered together.  The fundamental complaint is that D1’s counsel at trial (not Mr McGowan) had acted incompetently in failing to cross-examine PW11 on D1’s travel records which showed that D1 was not in Hong Kong at the various times PW11 had said in evidence D1 had been on the raft with him.  No evidence was sought from trial counsel in that regard and we wish to say that if we had thought there was substance to the allegation of incompetence, we would have required such evidence.  We were however satisfied we could deal with this ground solely on the depositions provided in the appeal bundle.

45.PW11 had given evidence on a day-by-day basis as to what he had done, where he had been and who was with him.  He said that his method of calculating dates for the purposes of his evidence was, as the judge summed it up to the jury :

“      … He said that when he was giving his statement to the police — what might be termed his witness statement, the non-prejudicial statement — he was working back from the date of his arrest with a calendar.  You will know from the travel records that some of his dates must be inaccurate.  …”

46.As a matter of commonsense it seems to us inevitable that the jury would have regarded any error as to a particular date or dates as being within the parameters of an honest witness giving evidence of matters which occurred over more than two months.  When counsel for D1 came to cross-examine PW11, he was in possession of D1’s travel records but although he cross-examined PW11 in considerable detail about dates, events and persons (particularly D1) who were present with PW11 at various times, the travel records, which as will be seen partly contradicted PW11’s evidence concerning D1’s presence, were never put to PW11.  Those records were however produced in evidence by way of admitted facts immediately before the close of the prosecution case.

47.In his closing address, counsel told the jury in respect of PW11’s evidence :

“Then when it came to my turn to cross-examine him, you will notice, save for a certain part, that I have touched on the dates, I deliberately not ask him too much questions on the dates because he was very firm already in his examination-in-chief, his evidence, describing what happened on what days, ‘It was me, D1, D2,’ whatever. 

And after he had testified and he’s gone back to Lai Chi Kok now, the truth of the matter is in the second Admitted Facts which my learned friend had handed to you yesterday, including the Immigration movement record of D1.  I can tell you I have this document before I cross-examined this Peruvian witness already.  I did not disclose it to the prosecution, he did not know about this document.  Nor did this Peruvian witness.  I deliberately not show this Immigration movement record to this witness when I cross-examined him because this is how we operate in Hong Kong, the rules of evidence and the rules of procedure.”

48.We are able to say, without inviting comment from trial counsel, that if, indeed, he perceived his deliberate withholding of the immigration records as being ‘how we operate in Hong Kong’ he laboured under a misapprehension.  There is a crucial obligation on an accused, just as there is on the prosecution, to advance his case before a jury.  If counsel is in possession of material, such as in the instant matter, and he intends to rely upon it in his client’s favour, he is under an obligation to put that material to the witness whose testimony he intends to impugn.

49.It was quite plainly a deliberate choice by counsel not to present D1’s travel record to PW11 in cross-examination.  That choice was apparently based on the perceived advantage that was obtained by simply placing the travel records, by way of admitted facts, before the jury as incontravertible proof that PW11’s evidence about the times he had dealings with D1 in Hong Kong was partly incorrect.  Whether that perceived advantage was real or not we do not see any substantial prejudice suffered by D1.  The effect of D1’s travel records being before the jury in the form of an admitted fact directly and conclusively rebutted PW11’s evidence so far as it was inconsistent.  D1 had the advantage of that, without the possible disadvantage of PW11 being able to explain why his calculation of the relevant dates given by him in his evidence when he was with D1 may have been wrong on occasion.

50.We do not see how this could possibly fall outside the general rule that a defendant is bound by the way his counsel conducted the case.  The course adopted by counsel fell far short of the very high degree of incompetence usually required to undermine the fairness of a trial.  We are wholly satisfied that D1 suffered no unfairness as a result of the course counsel elected to take.

51.These grounds fail.

D1—Grounds 8 and 9

52.These grounds also can be dealt with together.  The complaint of Mr McGowan is that the judge failed to adequately direct the jury as to the specific dates and times contained in PW11’s testimony as to when he was with D1 and which were contradicted by the travel records.

53.Those contradictions must be put into perspective.  PW11 gave evidence of having met D1 upon his arrival in Hong Kong and of being taken to the raft by him a few days later.  PW11 then gave evidence of three time periods when he manufactured heroin : from 27 September to 2 October (the first manufacturing period); from 11 November to 16 November (the second manufacturing period) and from 5 December to 9 December (the third manufacturing period).

54.During the first period, when PW11 said D1 was always present, there was no conflict between PW11’s evidence and D1’s travel records.  During the second period, when we are satisfied that, after an initial misunderstanding, PW11’s evidence was that D1 was always present, though in cross-examination, he admitted D1 (and D2) may have left the raft on occasion without him noticing as he was concentrating on his work, the travel records showed D1 to have been absent from Hong Kong between 10 p.m. on 14 November and 3 p.m. on 15 November.  During the third period, when PW11 said in evidence D1 and D2 came and went on each day, the travel records showed D1 to have been absent from Hong Kong between 9 p.m. on 4 December and 2 p.m. on 7 December. 

55.In the context of PW11’s evidence as a whole these inconsistencies could no doubt be regarded by a jury as unremarkable.

56.The judge did not deal with each instance of contradiction but said generally after pointing out that some of the dates given by PW11 were wrong :

“      … The possible reason for that is that he had a faulty memory about certain events and days; that he inaccurately worked back on the calendar dates; that the periods of inactivity made it difficult for him to be accurate about certain things.  He may have been overly confident about his powers of memory.  He may have given the wrong dates because the first two jobs were never carried out, which has been suggested by the defence. In other words, he is lying about the first two dates and so all the dates are wrong.  The other reason is that he has wrongly identified the 1^st defendant as Michael.  It is suggested that that is done deliberately.”

and later :

“… Certainly, the production of the records does not prove conclusively that PW11 was lying about the dates, or that he is inventing evidence to ensure that the defendants are convicted wrongly.  But the records would make you be cautious about relying on some of PW11’s assertions about what happened and when it happened. 

It is possible that events did happen in the sequence and in the blocks of time that the chemist referred to and that he is wrong about some or all of the dates.  However, if you accept him as a credible witness about what happened and are sure that he had correctly identified the defendants and their different roles, and if you are sure from what he said that the events actually took place during the conspiracy period, you could ignore the incorrect dates if you find that is what they are.  In other words, the dates in themselves are not important except as a measure, perhaps, of credibility in what he told you about procedures and who was involved and when they were taking place.  So those are matters that you should look at when you are considering the evidence of the chemist.”

57.That was an entirely proper and fair direction as to the errors in PW11’s evidence concerning the various dates and times, which errors were common ground between the prosecution and defence.

58.The judge in dealing with the travel records in the way she did placed them in their proper perspective and sufficiently emphasised their significance to the evidence of PW11.  There was no need for her to go through each inconsistency point by point.  The jury had the travel records exhibited before them.  Their contents were simply understood and self-explanatory.  They were familiar with the dates provided by PW11.  Those dates were set out by the judge in her summing-up.

59.D1’s counsel in his address to the jury had gone through D1’s travel records and their contradictions with PW11’s evidence piecemeal and thoroughly.  There was in the circumstances of the case no great need for the judge to repeat that exercise and her directions were sufficient. 

60.These grounds fail.

D1—Ground 10

61.This ground relies generally on the same complaints encapsulated in the preceding grounds and, with their failure, also fails.

D2—Ground 1

62.Towards the commencement of her summing-up, the judge said :

“If you accept the evidence of (PW11) is true you would be sure that all three defendants are joined in the agreement to manufacture cocaine.”

63.Mr Mumford complains that this is a misdirection on the basis that the case of D2 was that even if PW11 were telling the truth, his evidence at its highest simply placed D2 on the raft as a fisherman, and the jury still had to decide whether PW11’s evidence established D2’s participation in the conspiracy.  Mr Mumford also argues that, as an initial question, there were inconsistencies in the evidence of PW11 regarding D2’s presence on the raft which, even if he were attempting to tell the truth, had to be resolved by the jury before they could make a sensible determination of D2’s role. 

64.We accept that whilst the judge’s comment was proper so far as D1’s case (and that of D3) was concerned it was, so far as D2 was concerned, too broadly stated and did not fully reflect D2’s defence.  But again this was said by the judge in the early stages of her summing-up in the course of her directing the jury as to what comprised the elements of the charged offence of conspiracy.

65.Subsequently the judge turned to deal with the specific cases of each applicant.  In respect of D2, she said this :

“In respect of the cross-examination of the chemist relating to the 2^nd defendant, it was pointed out by his counsel that there were limited references by the chemist to the 2^nd defendant.  He appeared to be present, but he was never spoken to by the chemist and he never spoke to the chemist himself.  It was put to him that he was not always with the 1^st defendant, that there were various days — and I listed 25 September, 23 October, 1 November and 1 December — when he was not with the 1^st defendant. 

The travel records have been produced for him in respect of this period and the same comments are made for him as for the 1^st defendant.  You have to decide whether they are discrepancies in the evidence, or whether they are deliberate lies told by the chemist in relation to the presence or absence of the 2^nd defendant.  …”

and :

“You have to look at his role during the proceedings that were described by the chemist.  He described him as a lookout, but he could also have been just an innocent fisherman.  It is possible that he could have been both a lookout and a fisherman.  (PW11) said he never spoke to him; that he was always fishing.  It may have been a genuine interest; it may have been camouflage to make the journeys to and from the fish raft look more ordinary.  And according to (PW11), he always brought fishing gear with him.  There is no evidence that he received money for anything; there is no evidence that he was not receiving money.  In other words, there is no evidence that he was not being paid.”

and later :

“You have to be able to infer from the evidence that the 2nd accused by his conduct has shown that he is party to the agreement …”

66.The judge continued her analysis of the issues relating to each applicant in this way :

“… Unless the prosecution has made you sure of the guilt of each of the accused in respect of the charge that they face, you must acquit him or them.  The burden of proving the charge so that you are sure about their guilt remains on the prosecution.  Any doubts that you might have as to whether one or more of the accused entered the agreement which is the basis of the conspiracy would mean that you acquit him … You will consider the question of participation and knowledge.  If you are not sure that that had been established by the prosecution, it would mean that the prosecution had not made you sure of the guilt of that particular accused.  It would be your duty as jurors to acquit.”

and concluded

“In particular, be careful about the matters that I warned you of in relation to the evidence given by the chemist because it is really his evidence which is the lynchpin of this case.  If you are satisfied that he was telling the truth, even though there might have been some discrepancies in his evidence, you are entitled to convict in respect of the charge.”

67.In our view, though the use of the word “would” in the complained of direction by the judge was unfortunate, it was sufficiently cured by the directions which followed.  The jury could have been under no misapprehension that they had to examine closely the evidence of PW11 in determining the role of D2, and had to consider that role even if they accepted PW11’s evidence to be true.  This ground fails.

D2—Ground 2

68.This ground in large part echoes D1’s Ground 2.  Mr Mumford’s complaint is that the judge’s otherwise proper direction on inferences should have specifically pointed out, as Mr Mumford put it, that “if the defence inference is one that could reasonably be drawn then you cannot draw the inference put forward by the prosecution”.

69.The judge’s concluding remarks in her direction on inferences in our view had the same effect as the direction suggested by Mr Mumford.  She told the jury in terms that :

“If from a set of facts you find proved there is a reasonable inference to draw against the accused as well as one in his favour, you must not draw the unfavourable inference.”

70.In our judgment that direction was perfectly adequate and it was followed by this direction concerning D2 as an exemplar :

“… And examples of those are, the prosecution says, for instance, that the only reasonable inference to draw from the fact that the 2^nd defendant was sitting fishing, looking around, is that he was there keeping guard or watch or acting as a lookout in respect of the drug operation that was being carried on on the small raft and then later on the big raft. 

The defence say that that might be one inference that could be drawn but that the more natural inference would be, or the more reasonable inference would be that the defendant was sitting there just looking at the sky because that’s what fishermen do when they’re waiting for fish to bite and that there’s nothing unusual or suspicious in his innocent looking around in the way that it was described.”

71.That fairly put before the jury, in conjunction with the earlier direction, the defence case as to the inferences to be drawn from the prosecution evidence.

72.This ground fails.

D2—Ground 3

73.By this ground Mr Mumford essentially complains that the judge did not sufficiently direct the jury as to those aspects of the evidence of PW11 and D2’s travel records which assisted D2’s case that, while he had on occasion been on the raft, all that he had done was fish and that he was ignorant of any drug manufacturing.

74.As to PW11’s evidence, Mr Mumford argues that the judge’s summary of its failings and her conclusion that “the (travel) records would make you cautious about relying on some of (PW11’s) assertions” does not go far enough.  This argument is broadly the same as that mounted by D1 in respect of his Grounds 8 and 9.  Mr Mumford adopts Mr McGowan’s arguments concerning D1 in this regard also on the basis that the inconsistencies between PW11’s evidence and D1’s travel records should have been specifically referred to by the judge in her summing-up and that the failure to do so rebounded also on D2 in the sense that all matters going to PW11’s credibility as a witness related to the cases of both applicants generally.  So far as D2 is concerned however the contradictions between PW11’s evidence and D2’s travel records were comparatively minor.  PW11 had said he had been in the company of D2 on approximately 16 occasions since his arrival in Hong Kong on 25 September and his arrest on 9 December 2004.  Those contacts were spread over the three manufacturing periods we have dealt with in D1’s Grounds 8 and 9.

75.It is sufficient to say that in the first manufacturing period, there was no conflict between PW11’s evidence and D2’s exhibited travel records.  During the second manufacturing period, D2 was absent from Hong Kong for about two hours on 12 November, for six hours on 13 November and for four hours on 15 November.  All these absences were during the day and he had returned to Hong Kong in the afternoon.  PW11 had said in his evidence-in-chief after some initial confusion, that when he had been working during that period, D1 and D2 had been with him “day and night”. 

76.Obviously D2 (as with D1) could not have been with him continuously during that period.  PW11 was cross-examined by D2’s counsel as to this anomaly and the thrust of his evidence was that he was concentrating on his work during that period and did not pay close attention as to whether D2 (and D1) were always present on the raft.  This is an example of his evidence in that regard :

“Q.  Well, is this your evidence, that you don’t know whether the 2nd accused was present on that raft at any time during that four or five-day period because you weren’t paying attention, is that your evidence?

A.    As I have testified, I said that during this time they had …

Q.   Just let the interpreter interpret. 

A.    … during this time they had been there all the time, but I am not saying — but I don’t say that I know they were there for the 24 hours everyday.  It’s all relative, because I just said that during those days, Accused No. 2 was present.”

77.In respect of the third manufacturing period, PW11’s evidence was effectively that D1 and D2 came and went on various days.  D2’s travel records show him to have been absent from Hong Kong for most of the day on 6 December; from 10 a.m. on 7 December to 9 a.m. on 8 December and from 3 p.m. to 6 p.m. also on 8 December.  Accordingly, D2 was present in Hong Kong for the whole of 5 December; from the evening of 6 December to the morning of 7 December and during the middle of the day and the night of 8 December.

78.PW11’s evidence in this regard was as follows :

“Q.  During those four days, who was with you on the big raft?

A.    During those days, it seems that the situation was getting a little hotter as the police was around the area.  So on the first day I started working at 7.30 pm and Accused No. 1 and 2 were with me for a little while observing me, and then they left.  So on the 6^th, they came back at night at about 7 to 7.30, Accused No. 1 stayed and left at about 10 pm; Accused No. 2 had brought with him all his fishing gear and was fishing.  

Q.   What day was that did you say?

A.    On the 6^th. 

Q.   Yes, and the other days between the 7^th, 8^th and 9^th, what happened?

A.    So on the 7^th, Accused No. 2 left at about 10 am.  And I was working during the night and resting during the day, so when he left, I was resting.  

Q.   Yes, and the next day?

A.    So on the end, Accused No. 1 and 2 came back.  …”

It can be seen that the contradictions are minor and in large part may be explained by PW11’s recollection being in error by a few hours only.

79.There was considerable merit in the prosecutor’s comment during his closing speech that the travel records (at least so far as D2 was concerned) could be regarded as consistent with PW11’s evidence.

80.The judge very fairly left matters to the jury on the basis that at least to some extent the travel records contradicted PW11’s evidence both so far as D1 and D2 were concerned, and that they went to PW11’s credibility.  In our view, in the circumstances of the case, that was sufficient as a direction.

81.Nor was there any need for the judge to take the jury through each of the possible inconsistencies between the travel records and PW11’s evidence in her summing-up.  As we have pointed out in dealing with the same complaint concerning D1, the records were simply understood and were easily contrasted with PW11’s evidence.  Counsel referred to that which he said were inconsistencies in his summing-up.  There was no need for the judge to do so. 

82.Mr Mumford complains also, somewhat contrarily, that the judge did not direct the jury’s attention sufficiently to PW11’s evidence that he was not sure whether D2 had left the raft on occasion during, particularly, the second manufacturing period.  Mr Mumford’s point was that this evidence tended to lessen the time that D2 had been proven to be on the raft.  

83.But the judge had directed the jury :

“On behalf of the 2^nd defendant, it was put that the chemist, (PW11), was very well rehearsed and that he had plenty of access to his statements; that he was wrong about the dates and you were directed to the travel records in that regard.  But (PW11) did say that at one point that he was working and the defendants could have been away for some time without his noticing their absence.  He said he was not concentrating on their presence at the time.  He was busy working.”

84.That concisely summarised PW11’s evidence in that regard and in our view was a sufficient reference to this aspect of the evidence.

85.This ground was without merit.

D2—Grounds 4 and 5

86.These grounds may be dealt with together.  They complain respectively of the judge telling the jury that :

“There is no evidence that (D2) received money for anything, there is no evidence he was not receiving money.  In other words, there is no evidence he was not being paid.”

and :

“It was suggested that the fact that (D2) is employed in a good job shows he would not be involved in dangerous drugs, but that is not a very good submission in the sense that it is no indication at all that he is not involved in dangerous drugs.”

87.As to the first remark it was made in the context of the prosecution evidence of D1 having, apparently, spent large sums of money or at least having a lot of money at his disposal at around the time of the offence.  The judge’s comments were simply designed to emphasise that the lack of evidence of payments to D2 or of him having expended significant sums of money at the time of the offence was neutral.  The judge was entitled to do this, and her comment was no more than commonsense.  In no way was it a reversal of the burden of proof. 

88.As to the second remark, the judge was perfectly entitled to point out that D2’s employment as a truck driver was no indication he was not involved in dangerous drugs.  Again, this is commonsense and the judge’s comment was directed once more at pointing out this was neutral evidence.

89.No complaint can be made regarding the judge’s approach to these two matters and these grounds of appeal also fail, as does D2’s final ground of appeal which was dependent on substance being found in the preceding grounds.

D3—Ground 1

90.By this ground D3 complains of the judge breaking her summing-up into two portions.  The judge had commenced her summing-up on Friday 20 January 2006 and concluded it after the intervening weekend on Monday 23 January.  D3 argues that by doing so there may have been a risk of the jury being subjected to external influences.  There was nothing to suggest anything of the kind had occurred in the present case and we wish to emphasise that, as a general principle, there can be no objection to a judge breaking a summing-up so that it concludes on a day following its commencement.  The intervention of a weekend does not breach this principle and is not of such a duration as to run the risk of the jury’s recollection of the earlier directions fading before they commenced to consider their verdict.

91.There was nothing in this ground.

D3—Ground 2

92.The complaint at the core of this ground really revolves around the same matters pertaining to PW11’s credibility dealt with in D1’s Grounds 8 and 9 and D2’s Ground 3.  For the reasons we have given, there can be no criticism of the judge’s summing-up of PW11’s evidence or of her directions as to the issue of that witness’s credibility.

93.This ground also fails.

D3—Ground 3

94.D3’s concern is essentially that the evidence given at trial was that the police, for the purpose of transporting various liquids seized by them in plastic containers on the fish rafts on 9 December, apparently placed those liquids in other containers.  Accordingly, when those liquids were subsequently sent to the Government Laboratory for analysis their appearance differed from the photographs earlier taken of them contained in open buckets or plastic bottles on the fish raft.

95.D3 complains that this might indicate a break in the chain of evidence relating to the production of these exhibits. 

96.The matter however was raised at trial and a police witness explained the need to use different and safer containers to transport the liquids.  There was no objection to the production of these exhibits by any counsel at trial and indeed all three counsel for D1, D2 and D3 signed admitted facts which agreed that the liquids had been seized from the fish raft in the presence of the Government Chemist.

97.There is nothing in this ground.

D3—Ground 4

98.By this ground D3 asserts that the evidence against him was insufficient to safely ground a conviction.  He effectively argues that his conviction was unsafe and unsatisfactory.

99.Far from being one of the exceptional category of cases where a jury verdict could be regarded as unsafe due to an insufficiency of evidence, the prosecution case amply proved D3 to have been involved in the conspiracy.  Once PW11’s evidence was accepted, D3 was established to have been the “driver” of D1, D2 and D3 on their trips to and from the shore.  He helped them bring chemicals and fishmeal onto the raft.  He was present on the raft during the manufacturing process and in that regard the judge cogently said in her summing-up :

“… Even if he had limited education, it is difficult to see how he could have believed this was a fishing party, if you look at the quantity of equipment and chemicals that were taken out, first to the small raft and then later transported back to the big raft.  Fishermen do not spend time stirring buckets for days, nor do they dry out fishmeal with complicated arrangements of hairdryer and lamp and fan.  Even if he had never boarded the small raft during the first and second jobs that the chemist described, he could not have missed the third job because he brought the chemicals from the small raft to the large raft and (PW11) had been processing the material for four days before the police actually arrived to arrest him.”

and :

“He may or may not have been used by other people for the purposes of this incident but if you are sure he acted as he did knowing what was taking place, you can probably be sure that he was party to the agreement as well.  You will have to consider the probability or the likelihood of people going into a dangerous venture like this, manufacturing cocaine with somebody who did not know what was going on and who was likely to give them away innocently or deliberately to somebody else. 

Given the nature of the operation, it would be unlikely for the 1st and 2nd accused to run the risk of him inadvertently putting them and the manufacturing at risk by using someone who did not know what was going on.  I would remind you that the chemist said that no fishermen stayed on the big raft after 6 pm during the third job which meant that he was free to work at night.”

100.Bearing in mind that D3 had allowed his personal accommodation to be used during the third manufacturing period and was found on the raft with PW11 when police arrived during the night of 9 December when the manufacturing process was underway, there was more than sufficient evidence against D3.  There was no merit in this final ground.

SENTENCE

D3

101.D3 was sentenced to 20 years’ imprisonment.  He received a lesser sentence than D1 who was sentenced to 24 years’ imprisonment and D2 who was sentenced to 22 years’ imprisonment, as the judge regarded D3 as having played a subsidiary role in the conspiracy.  He provided transport, a place for the illegal activities and kept the raft supplied with food and water.

102.We adopt that said by this court in R. v. Cheung Wai Kwong & Anor [1997] 3 HKC 496 :

“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs.  A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker.  He deserves a heavier sentence. …”

103.In the present case, PW11 manufactured a total of approximately 2½ kilogrammes of cocaine before the police interrupted matters on 9 December.  In no way was D3’s sentence either wrong in principle or in any way excessive.  Indeed during the hearing, though he did not abandon his appeal in this regard, D3 accepted that his sentence was appropriate.  His appeal against sentence could not succeed.

104.For the reasons we have given the applications of D1 and D2 for leave to appeal against conviction and of D3 for leave to appeal against conviction and sentence are dismissed. 

Mr Robert K. Lee SC, SADPP and  Ms Kathie Cheung, SGC of the Department of Justice,  for the Respondent

Mr James H.M. McGowan, instructed by Messrs Cheung Fung & Hui, for the 1^st Applicant (D1)

Mr E.C. Mumford SC and Ms Valerie Lim, instructed by Messrs Jal N. Karbhari & Co., for the 2^nd Applicant (D2)

The 3^rd Applicant (D3) in person