Ho Chun-po and Others v. The Queen
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CACC000715/1977
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 13th February, 1978. ----------------- JUDGMENT ----------------- 1. The first appellant was a sergeant and the other four appellants were constables in the Royal Hong Kong Police Force. All the appellants were found guilty of the first charge, a charge of conspiracy. In addition, the first and the third appellants were found guilty of the third charge, possession of dangerous drugs, and of the fifth charge, accepting an advantage. Further, the first appellant was also found guilty of the second charge, a second offence of possession of dangerous drugs. The appellants were sentenced to various terms of imprisonment. They have all appealed against their conviction and sentences. 2. The particulars of the first charge, the conspiracy charge, are that the appellants "between the 23rd day of December and the 24th day of December, 1976 ..... conspired together to pervert the course of justice, namely, to accuse falsely one SZETO Cheuk with the commission of offences contrary to the Dangerous Drugs Ordinance .....". 3. The amount of dangerous drugs which was the subject matter of the third charge (against the first and third appellants) was 1.4 grammes of heroin, and the amount of the advantage referred to in the fifth charge (also against the first and third appellants) was $2,000. Finally, the amount of dangerous drugs particularized in the second charge (against the first appellant only) was 0.1 gramme of heroin. 4. The five appellants were members of a squad under Inspector Curry. The Inspector told this squad to investigate the premises of one Szeto Cheuk, who was referred to in the case as "Szeto". The squad went to Szeto's flat. The case for the prosecution is that while there the squad searched the flat and pretended to find some dangerous drugs in one or perhaps two phials which were said to come from the toilet in the flat. In fact the phials were planted there by the squad. A bottle of pills which belonged to Szeto was then emptied and one of the appellants filled or partially filled it with drugs. The first appellant then said that Szeto would be "booked" for being in possession of the three phials of drugs. 5. According to Szeto, the first appellant then said to him "Unless you get hold of a boss who is in possession of over twenty bags of things. Then I will let you off." I quote this answer because it is typical of the equivocal language used by this witness (Szeto) throughout his evidence. 6. A considerable discussion ensued and Szeto arranged by phone to meet one Lam Pui who was to bring an amount of drugs which ostensibly were to be sold to a purchaser through Szeto. All this was done in the presence of the appellants who intended to arrest Lam Pui when he arrived with the drugs. The first appellant then made a demand for money. Szeto replied he had none. A phone call was made to his mother and he asked her for some money. Again, this was in the presence of the appellants. 7. In due time, Lam Pui arrived, was joined in his car by Szeto and then was arrested by the appellants. as previously arranged. Szeto returned to his flat. Later, the appellants returned. It appeared that Lam Pui was of no help to the appellants so they suggested that Szeto would be arrested unless he supplied them with further useful information. The drugs which had been planted in his flat by the appellants were then in the possession of the first appellant. 8. Szeto said that he could take them to a place where drugs were manufactured. The party went there. Szeto returned to his flat later having been told to have some money ready for the appellants on the following day. He was also told to contact the wife of Lam Pui and tell her that she must produce some money also if she wanted to keep her husband out of trouble with the police. 9. Later that evening Szeto reported this matter to the I.C.A.C. He was fitted out with a tape recorder which was fixed to his body under his clothes and provided with $2,000 in marked notes. He then made contact with the second appellant and a meeting was arranged at a restaurant between Szeto and the third appellant. The two of them joined the first appellant in a car. The first appellant was the driver, the third appellant sat in the front passenger seat and Szeto sat in the rear. A conversation took place which was recorded on the tape recorder. Szeto handed over the marked money, and was told that he would not be prosecuted but that he must not return to his flat. Szeto alighted from the car and the first and third appellants were arrested. This had been previously arranged between Szeto and the I.C.A.C. When searches were made, two phials of drugs were found in the pocket of the first appellant and a packet of drugs in a Kent cigarette packet was found in the car. Underneath the front seat was found the marked money. 10. The only appellant to give evidence was the first. However, each of the other appellants made long statements to the I.C.A.C. and those were put in evidence. 11. The appellants' case is that they were told to search Szeto's flat for drugs. They did and found some in two phials which were discovered in a plastic tooth brush holder in the toilet. Szeto was then arrested. He thereupon told the first appellant that he could assist the police by acting as an informer against an important dealer in dangerous drugs if the police would let him go. This was all reported to Inspector Curry. It was agreed between the Inspector and the first appellant that they would see what Szeto had to say. 12. Szeto gave certain information regarding Lam Pui and mentioned the whereabouts of a hut which had been used for the manufacture of dangerous drugs. These two matters did not reveal anything. 13. Szeto met the first and third appellants the following day - December 24th - in order that more information should be given by him to the police. Shortly after Szeto alighted from the car the first and third appellants were arrested. The two phials of drugs which were found in the pocket of the first appellant came from Szeto's flat. They were the phials which the police squad had found there the previous day. It was Christmas time and the first appellant had merely pocketed them instead of handing them over according to police regulations. 14. The first and third appellants claimed to have no knowledge of the packet of drugs and the $2,000 found in the car and they were not present when those things were discovered. 15. Several grounds of appeal were advanced. It is only necessary to deal with the general ground, namely, that the conviction was unsafe and unsatisfactory. 16. The principal witness for the prosecution was Szeto Cheuk and it was urged on behalf of the appellants that his evidence should not have been believed by the Judge. I will say at once that if his evidence had not been believed the appellants would not have been convicted. 17. At the time that he gave evidence, Szeto was serving a sentence of one year's imprisonment for being in possession of dangerous drugs. Nor is that his only conviction. His record was put before the court. It discloses several minor offences but no other for which he was sentenced to a term of imprisonment. There are, however, two offences of obstructing a police officer and one of wounding. In cross-examination, Szeto alleged that the case against him for which he is now serving a term of imprisonment was framed up against him by the police. He also asserted that he had been framed by the police on two previous occasions at least. 18. At the time of the incident itself, Szeto was on bail awaiting trial for the offence for which he is now serving a sentence. His bail was $60,000 and he had to report to the police daily. It is for comment that if he was framed he was being framed for a very trivial offence. The amount of drugs involved was very small according to his own evidence. 19. His evidence was not supported by other evidence and was full of discrepancies. I do not propose to deal with all of them. 20. Perhaps the most important concerned the phone call which he said he made to his mother in the presence of the appellants to ask her for money. In examination-in-chief he said that she said she would send $1,000 to him by a sister, it is not clear whether this was his mother's sister, namely his aunt, or his own sister. In cross-examination, he volunteered the fact that his own sister did come with $1,000 but that the appellants said that $1,000 was not enough. Neither the mother nor the sister was called to give evidence. The fact that Szeto called up his mother to ask for money and told her that he had the police with him who were searching his flat, and he needed money, is in itself highly suspicious evidence. For there would be nothing to prevent his mother from informing the police or the I.C.A.C. of what was going on. Her evidence of such a phone call would have been of great support to the evidence of Szeto. And if the sister had called to testify that she had actually taken $1,000 to him which was not accepted there would have been further corroboration of his story. But, as I have said, neither was called and no explanation as to why they were not called was forthcoming. The first accused does not seem to have been questioned on this point but the whole tenor of his evidence was that this incident never occurred. 21. As I have said above, Szeto was fitted up with a tape recorder and a conversation between the first and third appellants and himself was recorded. The recording was admitted into evidence. The Crown relied on this as support to Szeto's evidence. However, the recorded conversation is incoherent and equivocal. In the tape recording the third appellant refers to the second appellant as "the one who seized the stuff". While Szeto refers to him as "the one who framed me up". Many of the answers to questions asked do not reflect the question and there are obvious gaps in the conversation. In my view, very little reliance, if any, can be placed on this tape recording. And there were certain remarks made, according to the witnesses, which do not appear in the transcript. 22. There were other discrepancies in Szeto's evidence. It is enough to mention but two. A statement he made to an officer of the I.C.A.C. was put in evidence. In this he said he saw a Kent cigarette packet in his flat and it was from this that the first appellant took the drugs which were poured into his phial. However, he told the court that he did not see the Kent cigarette packet there. This is of importance since a Kent cigarette packet containing drugs was found in the car in which the first and second appellants and Szeto had been travelling. 23. There is also the matter of the phials or bottles and who produced them. He told the I.C.A.C. that the first appellant produced a phial and the drugs from his person. In court he gave a different story. There he said that it was the second appellant, who having produced two phials which he said he had found in the toilet in the flat, emptied a third phial and then he, the second appellant, poured the drugs produced by the first appellant into it. According to Szeto there were three phials. According to the defence there were only two. 24. The judge deals with the discrepancies in the evidence of Szeto in his judgment. However, I do not think he gave sufficient weight to the totally unsatisfactory nature of the whole of his evidence. 25. Of course, he had the advantage of seeing the witness and hearing the evidence. But, in my view, it would be unsafe to allow the conviction on the conspiracy charge to stand depending as it does on the evidence of this witness which is not supported. The discrepancies are so many and so glaring. 26. The first and third appellants were also convicted of two other charges, i.e. of being in possession of the drugs found in the car and accepting an advantage. The drugs were found in a car in which the first appellant had been driving and in which the third appellant was a passenger. Neither of the appellants were present when the car was searched. And there was evidence that it was not the car of the first or third appellants. It was the prosecution's case that the drugs found were closely connected with what had taken place in Szeto's flat. But there was no evidence, apart from that given by Szeto, as to this. As to the second of these two charges, accepting an advantage, this refers to the $2,000 found in the car. The evidence against the two appellants on this charge comes wholly from Szeto. Without his evidence, there could be no conviction. The same applies to the final charge against the first appellant, namely, the possession of the drugs in the two phials. If the evidence of Szeto as to this is not believed the explanation given by the first appellant remains and it is not an unreasonable explanation. 27. In the event, all the charges hang together and are inseparable. The convictions are unsafe and the appeals must be allowed. The convictions are quashed and the sentences set aside.
Representation: Eddis (H.H. Lau & Co.) for 1st Appellant & 3rd Appellant R. Mayne (Y.T. Chan & Co.) for 2nd, 4th & 5th Appellants G. Edwards for Crown |