HKSAR v. Poon Lai Lin and Another

CACC000720/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 720
(Criminal)

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Coram: Hon Power, V.-P., Mortimer, V.-P. and Stuart Moore, J.A. in Court

Dates of Hearing: 21 and 22 May 1998

Date of Judgment: 26 May 1998

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

Each applicant applies for leave to appeal against both conviction and sentence.

1. After a joint trial before Bokhary J and a jury, each applicant was convicted on 5 December 1996 of trafficking in heroin. Poon Lai-lin (the 1st applicant) was convicted of four counts committed between July 1994 and March 1995 involving over 100 kilogrammes of heroin. Leung Wai-yat (the 2nd applicant) was convicted of one count jointly with the 1st applicant. This offence took place on 30 August 1994 and involved 31 kilogrammes of the drug. The 1st applicant was sentenced to a total of 30 years imprisonment. The 2nd applicant was sentenced to 25 years imprisonment.

The facts

2. The 1st applicant was convicted on counts 3, 4, 5 and 6 of the indictment. The 2nd applicant was convicted jointly on count 4.

3. The facts of count 3 were that in July 1994 the witness Siu agreed with the 1st applicant to buy 21 kilogrammes of heroin at a total price of $2.1m. Siu handed over his car-keys and delivery was effected by the car being parked with the drugs so that Siu could collect it. Afterwards Siu and the 1st applicant met and the price was paid in cash in four instalments.

4. Both applicants were convicted on count 4. At about the end of August 1994 the 1st applicant agreed to sell over 31 kilogrammes of the drug to Siu for a price of $3.5m. On Siu's instructions, his wife Madam Cheng, handed over $1.5m in a bag to the 1st applicant as an initial payment. The balance was paid in a number of instalments. Again, Siu gave his car-keys to the 1st applicant who told him that the 2nd applicant would contact him. This happened after which the 2nd applicant arranged to meet Siu to return to him the car-keys. The 2nd applicant told Siu that the heroin was in the car and that the car was parked in Portland Street. Siu collected the car and the drugs. On 31 August, Wong, also a witness, was dealing with the drugs on behalf of Siu when he was arrested and all the drugs were recovered.

5. In count 5, it was alleged that on or about 4 September 1994 the 1st applicant agreed at a meeting with Siu at the Nga Kok Restaurant to buy 21 kilogrammes of the drug for a price of $2.1m. The 1st applicant's husband told Siu to get a car and park it at a nearby car park. He did so and provided the husband with the keys for the car. In fact, the drugs were put into a Honda car and the husband returned the keys for the original car and handed over also the keys to the Honda to Siu so that he could take delivery. The price was paid in cash in six or seven instalments.

6. Count 6 involved 28 kilogrammes of heroin which the 1st applicant sold to Siu at a price of $4.2m. She told Siu that it was not necessary for him to provide a car. She effected delivery by meeting Siu at the Sheung Shui Railway Station at about 1.50 pm on 8 March and handing him the keys of a red Honda car. Siu took delivery of the drugs by collecting the car.

7. By this time, Siu and the 1st applicant were under surveillance by the police and Siu was arrested later the same day. Siu had made two advances by way of deposit for those drugs. The first by paying $500,000 into the 1st applicant's bank account and secondly, by handing her a bag containing another $500,000 in cash.

8. The total amount of drugs involved in the counts was 101.4 kilogrammes for which the 1st applicant was to receive $11.9m. The 2nd applicant was involved in one offence concerning 31.4 kilogrammes of heroin for which the price was $3.5m.

9. We turn to the applications for leave to appeal against conviction.

The evidence of Siu - an accomplice

10. The first question raised is whether the judge should have left the case to the jury having regard to the nature of the evidence of Siu Chun-chung, an accomplice. The case against both applicants depended upon the evidence of that accomplice. On each occasion he was the purchaser of the drugs.

11. Siu's evidence is vital to the prosecution's case. Without his evidence, neither accused can be convicted on any count. Both applicants contend, through counsel, that Siu was so flawed and discredited that it was not open to any jury, properly directed, to convict on his evidence.

12. In summary, they point out that Siu was an accomplice giving evidence under immunity in the expectation that he would have his sentence much reduced for the assistance he provided to the authorities. That these facts made him incapable of belief and unworthy of belief because of the temptation to lie to serve his own ends. Indeed, at trial he admitted being a liar and the danger of his evidence, it is submitted, was demonstrated by his acceptance that he had previously fabricated an account against another co-accused called Tam in statements to the police. These were designed to lessen Siu's own culpability.

13. Finally, counsel point out that he was guilty in their words "of outrageous conduct" in seeking while in prison, to persuade another witness Wong to vary his evidence to make it accord with Siu's own evidence. It is said firmly that this was an attempt to pervert the course of justice. But whether Siu's conduct amounted to that offence is nothing to the point. It is the effect of his conduct upon his reliability and credibility which is the issue.

14. Now these are powerful criticisms but they were made before the jury. The judge reminded the jury of them careful and properly in her summing-up. These matters go to credit.

15. Neither counsel has been able to submit that Siu did not give any evidence which if accepted by the jury was not sufficient to establish guilt. There clearly was such evidence for the jury's consideration. Counsel said that the judge ought to have exercised her discretion to withdraw the case from the jury because of its dangers and direct a verdict of not guilty. In this respect there are two questions posed to us:

(1) Does the judge have a discretion to withdraw a case from the jury in these circumstances? and

(2) If so, are circumstances demonstrated which require this Court to interfere with that discretion?

The law on this matter is not in doubt. We are indebted to Mr Saw SC who appears for the prosecution in this respect. He reminds the Court of R. v. Galbraith (1981) 73 CrAppR 124. The then Lord Chief Justice set out what is accepted by this Court to be the correct test:

"How then should the judge approach a submission of 'no case'?

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

Also cited in Galbraith is a useful passage from R. v. Barker (1977) 65 CrApp 287:

"Even if the judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should, nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury."

Finally, Mr Saw cites an Australian decision R v Doney (1990) 171 CLR 207, 214 where the same principle is enunciated:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty."

16. It is of considerable importance to recognise that we have the protection in our society of trial by jury. Judges must not usurp their function. Therefore, even if the judge considers that he would not convict on a witness's evidence where the witness has given evidence upon which it is open to a jury to convict when properly directed, he has no discretion to withdraw the case from them. In this case, it is clear that the judge had no discretion on the evidence which was before her to exercise the discretion which is contended for.

17. In those circumstances the first question posed must be answered in the negative and the second question does not arise.

The judge's accomplice directions

18. It is also suggested in this context that the judge failed to give the jury adequate directions about the danger of Siu's evidence as an accomplice witness and as a witness giving evidence under immunity. But with respect this submission is not born out by consideration of the transcript. There is nothing in the point and on this application for leave it is unnecessary to consider it further by citations from the summing-up.

The evidence of WPC Chung

19. WPC Chung gave evidence that she saw the 1st applicant being driven as a passenger in a car of the same make as that provided to Siu for the delivery of the drugs in count 6 and with the same last four figures of the registration number. She saw the car, she said, at Luen Wo Market about 1.30 pm on 8 March. Later she saw the car with the 1st applicant in it on an estate. Shortly after that she saw the same car parked in a car park and being driven off by a man whom she had seen earlier.

Did the prejudicial effect outweigh the probative value?

20. Mr Hoosen, for the 1st applicant, submits that this evidence ought to have been excluded by the judge. Not as we first thought, because it was a fleeting glance identification but on the basis that the prejudicial effect of this evidence outweighed its probative value. The judge, he says, ought to have exercised her discretion to exclude it.

21. This Court will rarely interfere with the exercise of a judge's discretion exercised in these circumstances, but here there can be no question of doing so. This evidence connected the applicant with the car in which the drugs were delivered on the day of the delivery. The evidence if accepted was highly probative. It was only prejudicial to the applicant in the sense that it was highly probative of her involvement. The submissions advanced are rejected.

Identification

22. We add that we have also considered whether the evidence of identification should have been left to the jury. But again, there is no doubt that it was fit for their consideration. The appropriate warnings were given by the judge. This was not the first time that the officer had seen the applicant. She had kept observation upon her on a previous occasion for about 9 minutes and she had been observing her earlier on the same day. The identification, therefore, was a recognition in which she was able to see the face of the applicant clearly in good light even if only for about a second. There were here sufficient supporting circumstances for the judge to leave the identification for the jury with the necessary directions and warnings, well within the principles set out in R. v. Turnbull (1976) 63 CrAppR 132.

Inconsistent verdicts

23. Both applicants seek leave to argue that the verdicts of guilty on counts 3, 4, 5 and 6 - so far as the 1st applicant is concerned - and count 4 - so far as the 2nd applicant is concerned - are inconsistent with the verdicts of not guilty on counts 1 and 2. In short the submission is that the prosecution case against the applicants on the first two counts upon which the jury acquitted, depended entirely upon the evidence of Siu and the jury were unable to accept his evidence on those counts. So far as the other counts were concerned, those also depended entirely upon Siu's evidence. Therefore, it is said, if Siu could not be accepted by the jury on counts 1 and 2, it was quite inconsistent to accept his evidence on the remaining counts.

24. An inconsistent verdict is a recognised way in which an appellant may demonstrate that the verdict of a jury is unsafe or unsatisfactory. It is not a branch of the criminal law in which the circumstances to be advanced or which may be advanced are closed.

25. The first principle is that the burden is on the appellant to demonstrate that the verdicts cannot stand together. If the facts are such that the verdicts must stand or fall together, that burden may be discharged. But this is not such a case. The classic statement of the law approved by this Court in R v Cheng Man-to [1987] 2 HKC 261 appears in an unreported judgment of Devlin J (as he then was) cited in R v Durante [1972]1 WLR 1612 at 1617:

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the conviction cannot stand. But the burden is upon the defence to establish that."

Later, Silke JA (as he then was) giving the judgment of the court in Cheng Man-to said:

"It all depended on the facts of the case. The test we pose ourselves is to paraphrase Edmond-Davies LJ in Durante.... Are we satisfied that no reasonable jury, who had applied their minds properly to the facts of the case, could have arrived at the two differing conclusions that this particular jury did?"

He went on:

"These verdicts are, on the face of them, inconsistent but we do not think this jury had been an unreasonable one. The two sets of verdict can stand together. They are not so irrational that the reasonable jury, which we think this to have been, could be said to have failed to apply their minds to the evidence before them."

We would repeat that these matters depend upon the facts of the particular case, but when submissions are advanced such as in the instant case, it is important to note the approach set out in R v Aldred and Butcher [1995] Crim LR 160. The English Court of Appeal in dismissing an appeal on similar grounds, held:

"The burden on the appellant was that he must show that the verdicts are so inconsistent that they cannot stand together, being illogically inconsistent in the sense that a reasonable jury, applying their minds to the fact, could not have reached the verdict. In particular, it is fallacious to argue that because the jury must have disbelieved a witness to acquit on one count, it was inconsistent to rely on him to convict on another. There may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not another."

That in our view is a correct statement of approach.

26. In this case, we have not been presented with any tenable argument that the verdicts were unsafe because of the acquittals on counts 1 and 2. Proceedings in a jury room remain confidential. We do not know. No one knows why the jury were unsure on the earlier counts but were able to be sure of guilt on the later counts. But it is not difficult to point to matters which may have influenced them. Siu gave evidence on the two earlier counts about facts more remote in time. His evidence was less precise on those facts and not so circumstantially supported as his evidence on the latter counts.

27. So far as the 2nd applicant is concerned, the jury received a proper direction that if they could not be sure in relation to the 1st applicant they should not consider convicting the 2nd applicant of any joint offence. So there is an obvious reason for acquitting the two applicants if the jury decided to acquit the 1st applicant on counts 1 and 2.

28. Further, in the 1st applicant's case, the last offence was the subject of police surveillance and identification evidence which put her in the same car in which the drugs were delivered.

29. It was perfectly proper for the jury to consider these counts separately and to bring in different verdicts. There is no basis upon which we could say that these verdicts are inconsistent in the sense that the verdicts upon which convictions were recorded were unsafe.

Two final points

30. That leaves two discreet matters which were argued in relation to counts 3 and 5 for the 1st applicant.

31. An alibi defence was raised in relation to each of these counts. In count 3, the allegation was that it took place on or about 20 July 1994. But the agreed facts were that the 1st applicant left Hong Kong at about 2 o'clock in the afternoon of 12 July and did not return until 9.37 pm on 21 July. The evidence given by Siu was, however, vague. He said the offence took place about 20 July and that he was not able to remember precisely. He was asked:

"Q. You use the term about 20 July. Is it difficult for you to be sure of exact dates?

A: That is correct."

Later cross-examination and re-examination did not improve his accuracy. He remained uncertain about the precise date.

32. There was another witness Wong who was arrested on 31 August. He was also involved in this offence. He said that the delivery of the drug had taken place about one month before his own arrest. So there was an issue whether the evidence of Siu could stand in face of the alibi established on the agreed facts. This was not a case in which the date of the offence could be certainly established. So how did the judge leave this matter to the jury? In other words did the judge leave the issue for the consideration of the jury properly? This is what she said:

"In regard to Count 3, the 1st accused relies on the fact - which is an agreed fact - that she left Hong Kong at 2.02 pm on 12 July 1994 and did not return until 9.39 pm on the 21st of that month. Take that fact carefully into account as you see fit. SIU's evidence as to dates is approximate. Even so, it is difficult to fit into such evidence an agreement with the 1st accused, a handing over to her of her car keys, the taking of delivery of drugs in the car and handing over to her of cash all taking place in July before she left Hong Kong on the 12th.

On the other hand, you may think that SIU's evidence as to dates does not rule out an agreement followed by those other things all taking place in July after the 1st accused had returned to Hong Kong on the 21st. WONG's evidence is consistent with that. He said that it was about one month before he was arrested that he was told by SIU to get the 30 units of heroin in the car. He was arrested on 31 August 1994. About one month before that would be the end of July of that year."

Contrary to what has been submitted, there was evidence upon which the jury could convict. This was an issue for the jury's consideration and it was left plainly for their consideration by the judge. There is nothing in the points made.

33. Similar points are made on count 5. It was said by Siu that both the husband of the 1st applicant and the 1st applicant were present at the time of the offence. The agreed facts were that the husband left Hong Kong on 29 August and returned on 4 September, whereas the 1st applicant entered hospital at 2.22 pm on 5 September and remained there until 10 September. The count alleged an offence "on or about 5 September 1994". So there was as it were a window of opportunity on that morning, the 5 September, until about 2 o'clock in the afternoon. How did the judge leave that to the jury? She said:

"In regard to Count 5, the 1st accused relies on the following facts, which are agreed ..."

The judge set out the agreed facts. Then:

"Take those facts carefully into account as you see fit. SIU's evidence relevant to the date of his meeting with the 1st accused and her husband in Nga Kok Restaurant in Waterloo Road does not rule out that meeting having been on 5 September 1994. SIU talked about some subsequent event as having occurred about - note the qualification 'about' - 5 September 1994. As to the time of the meeting, he said that it was in the afternoon 1 to 2 pm.

You may think that the agreed facts to which I have just referred do not rule out a meeting between the 1st accused, her husband and SIU in that restaurant at about that time on 5 September 1994 if the 1st accused went straight from the restaurant to the hospital."

She then set out the evidence of another witness.

34. She also left this issue to the jury for their consideration. There was evidence upon which it was open to them to convict. There is nothing in the points made.

35. For those reasons, the applications for leave to appeal against conviction are refused.

Sentence

36. The applicants also seek leave to appeal against their sentences. Each of them simply submits that the sentences passed were in all the circumstances manifestly excessive.

37. So far as the facts of the 1st applicant's case are concerned, as we have already said, her offences involved 101 kilogrammes of the drug and, if she had been fully paid, she would have received $11.9m. This must be one of the most serious and evil cases that has come before the Hong Kong courts recently. It suffices to say that very serious punishment was called for. The ruined lives involved in a case of this kind do not bear thinking about. The sentence passed was one which was entirely justified by the criminality.

38. As to the 2nd applicant, he was involved in only one offence but it was an offence concerning 31 kilogrammes worth $4.5m. He took huge risks no doubt for huge rewards. His sentence also was entirely justified and was neither wrong in principle nor manifestly excessive.

39. The applications are refused.

Representation:

Mr A.A. Hoosen (DLA) for 1st Applicant (re: conviction)

Mr John McLanachan (DLA) for 2nd Applicant (re: conviction)

1st and 2nd Applicants in person (re: sentence)

Mr D.G. Saw SC and Miss Anna Lai (DPP) for Respondent