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Chau Sau Tai and Others v. The Queen

Case No.CACC 677/1968
Court
Court of Appeal
Date23 Apr 1969
Judge—
Case Document
100%

CACC000677/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 677 OF 1968

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BETWEEN
(1) CHAU SAU TAI Appellants
(2) VICHIAN UEKERDAREE
(3) VIVAT SEA NAH
(4) KEO KEOSURAPHOL
AND
TEH QUEEN Respondent

Coram: Rigby, Ag. C.J., Briggs, J. & Huggins, J.

Date of Judgment: 23 April 1969

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JUDGMENT

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Huggins, J:

1. The first appellant is Chinese and lives in Hong Kong. The second, third and fourth appellants are Thais and reside in Thailand.

2. Very early in the morning of 25th August 1968 a police patrol stopped a lorry on a lonely road near Sai Kung. The lorry was driven by one Cheung Yuk-san and inside was discovered a large quantity of dangerous drugs. Immediately before the lorry was stopped the first appellant was seen by the police in a private car in circumstances suggesting that he was leading the lorry. Some two and a half hours after the lorry was stopped the first appellant drove back to the scene, where he was arrested. He admitted he knew Cheung Yuk-san and there was other evidence to connect the two. The true position would seem to be that the first appellant was aiding and abetting the unlawful possession of the drugs by the lorry driver.

3. The second, third and fourth appellants had arrived in Hong Kong on 13th August 1968, that is twelve days before the police seized the drugs on the lorry. When they arrived at Kai Tak Airport they gave to the authorities as their address in Hong Kong the Sun Ya Hotel. In fact they did not stay there, though rooms were available. They stayed at the Shamrock Hotel and shared one room. For some reason the police kept these three appellants under surveillance from the 14th August until the 25th, when they were arrested. The police also kept a watch on two other men, who were Malaysians and who stayed in another hotel. These two men were charged jointly with the appellants but were acquitted.

4. A detailed description of the movements of the appellant was given in evidence at the trial. It is unnecessary to go into details here. Suffice it to say that though the appellants were not seen all together in one place at any one time each was seen in close association from time to time with one or two of the others. In particular there was evidence of the association of the first appellant with the other appellants. The appellants were observed to visit various places in the Colony - in Kowloon, Shatin, Cheung Chau and Hong Kong Island. One also visited Macao with the two Malaysians. Several of the places the appellants chose to visit were on the edge of the sea and on two occasions the second and fourth appellants rowed out to sea from Cheung Chau late at night. The first appellant accompanied them on the second occasion and boarded a motorized vessel with them. When the police searched the room in the Shamrock Hotel which was occupied by the second, third and fourth appellants a piece of paper with ten 3-figure and 4-figure numbers on it was found in a drawer, next to the passport of the fourth appellant. The case for the prosecution was that these numbers corresponded to numbers which appeared on the parcels of drugs seized by the police from the lorry.

5. Not one of the appellants gave evidence but each made a brief unsworn statement from the dock and in addition the first appellant called his wife. The defence of each of the appellants was innocent association, the first appellant contending that his presence in the vicinity of the lorry was coincidental.

6. All the appellants have appealed against their conviction and the first appellant has appealed also against sentence.

7. The only grounds of appeal against the convictions which have caused us any difficulty were founded upon a passage which appeared at the end of the learned judge's charge to the jury. He said:

"It is sometimes said, members of the jury, to be a rule of law that each accused is entitled at the outset to have the evidence properly admissible against him considered alone, and it is only when, after such evidence is so considered, you find him to be a party to the conspiracy, if there is a conspiracy, that the acts of the other conspirators can be used against him. I confess, members of the jury, that this is a rule which I have always had difficulty in appreciating, and I was pleased, in connection with this case, when I came to look at one of the textbooks, Glanville Williams, to see that the author there comes to the same conclusion which has been in my mind. This is a self-defeating sort of rule; it is a circular rule, it goes around in a circle, because it seems to pre-suppose that you examine the evidence against each independently, and then having come to the conclusion that one of them is a conspirator, first of all you find that there is a conspiracy, then you find that a particular man is a conspirator: at that stage the actions of the others become evidence against him according to this rule as stated. It is odd, members of the jury, that you should have found that he is a conspirator. In other words, you should have found him guilty before you are allowed to look at the acts of the other people to bolster up that finding. Glanville Williams says:

'This obviously involves a circular argument, for it is only when the jury has decided that the defendant is guilty that the evidence may be used to confirm that conclusion. There must be something more to the rule than this, if it is a rule at all.'

That is this comment.
          I think, members of the jury, your purposes in this case - the best way I can put it to you is this: you look at the evidence surrounding each, the evidence for and against each, and you look at them individually. They stand there, as it were, as poles of evidence standing separately, and when your eye comes to the top of those poles, if you find that all or some of them support, as it were, a canopy of conspiracy and you find that this particular man was in the conspiracy, then you can look at his actions to help you to decide whether or not the others were in the conspiracy."

We sympathize with the learned judge because the authorities are by no means clear upon the point. For this reason we think it is necessary to consider from the beginning what is involved in a case where the charge is criminal conspiracy.

8. The essence of the crime is an agreement (to which, of course, the accused must be a party) and the subject matter of the agreement must be the effecting of something unlawful. In the present case the purpose of the alleged agreement was the commission of a crime and no difficulty arises as to that. The question is, how is the prosecution to prove that an accused has been party to an agreement of this kind? Rarely will there be direct evidence of the agreement and the prosecution must therefore invite the jury to infer from the circumstances that such an agreement has been reached. In this respect no distinction is to be drawn between a prosecution for the crime of conspiracy and the action for the tort of conspiracy: in Sweeney v. Coote(1) Lord Loreburn, L.C. said at p.222:

"In such a proceeding it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established. It may, like other conclusions, be established as a matter of inference from proved facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them."

Smith and Hogan in their Criminal Law at p.136 say:

"A very frequent way of proving (the actual agreement) is by showing that the parties concerted in the pursuit of a common object in such a manner as to show that their actions must have been co-ordinated by arrangement beforehand."

If the conduct of the two or more accused persons is explicable only on the basis that they have previously agreed to work together for the achievement of the unlawful purpose alleged in the indictment the jury may properly convict them of conspiracy.

9. Obviously the parties to a conspiracy may not remain in each other's company from the inception of the conspiracy to the moment of its execution (indeed they may never meet) and it is this fact which produces the difficulty which looms so large in cases of this kind. If A conducts himself in a manner which is indicative of a conspiracy between him and B that is bound to cast suspicion upon B: A cannot conspire with B unless B has also conspired with A. Unfortunately A's conduct of which evidence is led may be of such a kind that under our rules of evidence it is not admissible against B. The simplest example is a confession by A in the absence of B that he did conspire with B: such a confession would be admissible against A and might be strong evidence against him, but as against B it would be hearsay and not admissible at all. It would be hearsay as being merely a report made to a third party and therefore distinguishable from a communication to a fellow conspirator for the furtherance of the unlawful agreement between them. The distinction is, we think, well indicated in R. v. Hardy(2). Two documents were tendered in evidence, one being admitted and the other rejected by the court. That which was admitted was a letter said to have been written by one alleged conspirator to another alleged conspirator and to contain matters of incitement and encouragement to him to proceed in the course in which he was engaged: that which was rejected was a letter said to have been written by one conspirator to a third person and to have reported to him the events which took place at a meeting. The judgment of Lord Chief Baron Macdonald at p.475 puts the matter concisely:

"On the last question before the Court I confined what I said to the exact circumstances of the case, namely, that the bare relation of acts by one of several persons to whom the conspiracy is imputed to a perfect stranger to that conspiracy, is no more than an admission which may possibly affect himself, but cannot possibly affect any of his co-conspirators, it not being an act done in the prosecution of that conspiracy. But, I confess, there appears to me a material distinction in this case. This is a paper which is addressed by one of several conspirators to another of those conspirators; it is introduced as subservient to the proof of the general nature and tendency of that conspiracy, which is alleged and endeavoured to be proved as the foundation of affecting the prisoner with a share in that conspiracy.
          Now it seems to me that one conspirator addressing a paper to another conspirator, having relation to that conspiracy (not merely a bare description to a stranger), that one of them addressing that paper to the other is an act complete in that single conspirator, although that paper should be intercepted, or although it never should reach that person for whose perusal it was intended; that distinguishes this from the other case; it is a different act in one, though it does not reach the other in that sense; it is an act by one of the conspirators, which in order to show the nature and tendency of that conspiracy may be read as against any other."

It will be seen that the learned Chief Baron uses the word "conspirator" and it may be objected that that was to beg the question since the accused was denying that he was a conspirator. That is why the learned judge in the present case refers to a "circular" argument, but the judgment of the learned Lord Chief Baron would lose none of its force if one were to insert the word "alleged" before "conspirator" throughout. In our opinion it can do nothing but confuse a jury to tell them that the evidence of conspirator A is to be considered by them as evidence against B only if they are satisfied that B is a conspirator. What they have to do is to ask themselves in respect of each alleged conspirator whether the evidence as a whole satisfies them that he must have conspired with one or more of the others. Rather than try to explain to them the rules which made evidence admissible or inadmissible the judge should tell them what evidence is admissible and what is inadmissible against a particular accused and, except in relation to the simplest cases, there is much merit in the suggestion of Professor Glanville Williams that judges should both sum up and take a verdict in respect of each accused in turn: Criminal Law (2nd.Ed.) - The General Part 693(218). In referring to the acts and declarations of A done and made in furtherance of the alleged common design the judge should emphasize to the jury that these may not of themselves establish B's complicity in the alleged conspiracy. The question is whether they must so clearly have been done or made while engaged in the common enterprise alleged that, either alone or in combination with other evidence, they establish with the necessary degree of certainty an unlawful association of the kind sought to be proved. For example, the jury must bear in mind that a letter may be written without the consent of an addressee and may, intentionally or unintentionally, implicate the addressee falsely, so that they should normally look also for incriminating evidence of acts and declarations of the addressee himself before concluding that he was party to the alleged conspiracy.

10. From what I have said it will be seen that there is no rule of evidence peculiar to cases in which conspiracy is alleged and this is the view expressed by Mr. Justice Wright in his famous book on Conspiracy at p.71. It is not only unnecessary but it is in fact confusing to say, as counsel for the first appellant asks us to say, that the acts of a conspirator can only be used against persons who are themselves shown prima facie to be conspirators. Although I was at first attracted by the "canopy" metaphor used by the learned trial judge we are doubtful, as I have said, whether it helps a jury to endeavour to explain in general terms rules as to the admissibility of evidence. What the jury had to do in the present case was to ask themselves whether on the evidence as a whole they were driven inevitably to the conclusion that each of the accused had combined with one or more of the others to deal with dangerous drugs. They had, as the learned trial judge correctly stated, to consider the evidence against each individual and it would have been more helpful to them if the judge had summed up the evidence against each of them individually. As against the first appellant it has not been suggested that there was not sufficient evidence to justify their coming to the conclusion that he did conspire in the manner alleged and we are satisfied that there was ample evidence to support his conviction.

11. Counsel for the second and fourth appellants, who based his argument upon the basis that the "canopy" metaphor was a misdirection, did not point to any evidence which the jury may have considered in relation to his clients which was not properly admissible against them. The strongest piece of evidence against them, and it was evidence which was also relied upon against the third appellant, was the piece of paper found in their hotel bedroom, which had written upon it ten of the three-figure and four-figure numbers which were found on the parcels of drugs. The paper was in a drawer with the passport of the fourth appellant and in the absence of any explanation we think it was a reasonable inference that the fourth appellant was in possession of the paper. There was nothing to connect the second appellant and the third appellant with the paper beyond the fact that it was in their bedroom and that was no evidence of possession by them. The learned judge expressly left it to the jury to consider how far they thought the paper implicated any one of these three men. Unless it can be said that the paper could be evidence against the second and third appellants only if they were actually in possession of it that was, in our view, a proper direction. The question remains whether possession by the fourth appellant of the paper was evidence which could implicate the other two men. Putting it in another way, to which of the two documents tendered in evidence in R. v. Hardy(2) did this paper more nearly approximate - was it a mere report to a third person or was it something prepared in pursuance and in furtherance of the alleged conspiracy? We think it would be a reasonable conclusion that it was a document prepared by one conspirator for the purpose of furthering the conspiracy in some way and as such it was evidence which could properly be considered against the second and third appellants. The judge left it to the jury to decide what weight they could attach to it and we think that was enough. The case was by no means a strong one but we cannot say that there was no evidence upon which a reasonable jury might not be satisfied beyond reasonable doubt as to the guilt of the second appellant and the fourth appellant.

12. But was the weakness of the case against the third appellant made sufficiently clear? It is true that the learned judge said there must be no finding of guilt by mere association, but it seems to us that there was really no evidence that the third appellant was involved in a criminal association with any of the other accused. In particular he was not involved in the nocturnal outings from Cheung Chau. The only conduct on his part which could possibly be said to be questionable was his giving as his intended address within the Colony that of a hotel other than the one to which he went. There are so many possible explanations of that that it barely justifies the epithet "suspicious". Add to this evidence the evidence that the paper was found in his room but in the apparent possession of the fourth appellant and it seems to us one has too little to justify the conclusion that the third appellant must have been a conspirator. We do not for a moment accept the submission of counsel for the Crown that in the circumstances the existence of the paper in the room was evidence that all three men knew of its existence.

13. For these reasons we dismiss the applications of the first, second and fourth appellants for leave to appeal against conviction but allow that of the third appellant and, treating this as the hearing of the appeal, we quash his conviction.

23rd April, 1969.

(1) 1907 A.C. 221

(2) (1894) 24 St. Tr. 199.