Sheik Abdul Rahman Bux and Othres v. The Queen

CACC000756/1981

BETWEEN

Coram: Roberts, C.J., Leonard, V.P. & Barker, J.A.

Date: 31 August1982, 1, 2 and 14 September 1982

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JUDGMENT

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[Judge's duty under section 80 of the District Court Ordinance.
Distinction between one main conspiracy and several sub-conspiracies.]

Roberts, C.J.:

Preliminary

1. The six defendants, all of whom were Customs $ Excise officers stationed at various times during the relevant period at Fanling, were convicted by a district judge, after a trial lasting 42 days, on one charge of conspiracy to obstruct the course of public justice.

2. At the end of the hearing of the applications for leave to appeal, we indicated that we would allow them, that we would quash the convictions and that we would give our reasons later.

3. The particulars of offence averred that, between March 1979 and August 1980, the six defendants conspired together, and with various named persons and other persons unknown, to obstruct the course of public justice in that these officers "should act contrary to their public duty as Customs and Excise officers in relation to the proper enforcement of the Dangerous Drug laws of Hong Kong.".

4. Put in simpler language, the allegation of the Crown was that these officers had agreed between themselves that they should turn a blind eye to the drug trafficking in the Sheung Shui area, in return for bribes which were to be paid to them.

Outline of Crown's Case

5. With minor exceptions, the judge believed the evidence given by the various Crown witnesses. This evidence, at the least, if accepted, clearly established that various payments were received by some of the six defendants between May 1979 and June 1980 as follows -

Approach of trial judge

6. The trial judge was faced with a huge volume of evidence and documents. The transcript amounts to 550 pages and the documents to a further 350 pages.

7. A case of this length and complexity places a heavy burden on a trial judge. In dealing with this abundance of material, he adopted the following approach -

Grounds of Appeal (1)

8. The first main ground of appeal was that there were substantial inconsistencies and contradictions in the prosecution evidence; and that the judge should have considered them it detail, or given a MAN W indication of the manner in which he disposed of them.

9. At p.598 the judge, in the passage quoted above, shows that he way pare that there were "inconsistencies; Contradictions and implausibilities" in the evidence of some of the prosecution witnesses. He deals in some detail with several of these later in his judgment at pages 608 to 611.

10. It is thus clear that, when reaching his conclusion that,when reaching his conclusion that he believed the prosecution withesses, he was well aware of the inconsistencies which are to be found in their evidence.

11. It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence an which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

12. This would place a wholly unreasonable burden on a trial judge. In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account he is prepared to believe the various witnesses involved, save to such an extent as he may specify.

13. Counsel relied, for the purposes of this submission, on the following passage from the judgment of McMullin, J., sitting in the High Court in Yeung Chiu v. The Queen^(l) -

"…… where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them."

14. This decision, however, has been overtaken by R. v. CHAN King-man⁽²⁾ , a decision of this court, of which McMullin, J.A. was himself a member.

15. This sets out the law regarding the obligation of a District Judge in preparing the short statement of his reasons required by section 80 of the District Court Ordinance.

16. CHAN King-man⁽²⁾ should be followed by District Judges and indeed by magistrates as well. In so far as it is in conflict with YEUNG Chiu⁽¹⁾ , the latter should not be followed.

17. In CHAN King-man⁽²⁾, this court stated that a District Judge's duty had been correctly set out by Blair-Kerr, J. in the following passage from R. v. R.E. Low ⁽³⁾ which is repeated again, for easy reference -

"It was contended by Mr.How that a District Judge's statement of his reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it, would be open to an appellant to attack his conclusions on the facts before this Court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how "the mind of the jury" was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury Verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

18. We are satisfied that the judge, in this case, did what he is required by CHAN King-man⁽²⁾ and by R. v. R.E.Low⁽³⁾ to do. Consequently, we were not disposed to interfere with the conviction on the first ground.

Ground of Appeal (2)

19. It was argued that there was a material irregularity, in that two of the defendants were cross-examined by Crown Counsel as to why a co-accused, D.5, should have named them in his cautioned statement to which had been admitted in evidence after a voir dire. It is unnecessary to cite any law for the proposition that a statement by one defendant, which is tendered-in evidence by the Crown, cannot be evidence for any purpose against any of his co-defendants.

20. Counsel for the Crown argued, in his final submission at the trial, that the statement of D.5 could be taken into account as confirming that there was a corruption syndicate, though he conceded that the statement could not implicate the other defendants.

21. The statement pas properly admissible as against D.5 only, in so far as it showed that he was aware of the existence of a corruption syndicate. The judge's only reference to it in his judgment is when he remarked that It did not amount to corroboration. There is nothing to suggest that he was influenced by it at all.

22. The judge should have stopped the use of this statement in cross-examination by Crown Counsel, although it must be noted that counsel for the defendants raised no objection during the trial. Nevertheless, since he node no mention of these questions, nor of the answers, in his judgment, and it was never suggested to the judge that the contents of the statement could amount to evidence against anyone but D.5, we saw no substance in this ground.

Ground. of Appeal (3)

23. It was submitted that the judge failed to consider the evidence against or the defence advanced by, each of the defendants separately and that there was a danger that the sheer weight of evidence may have influenced the Judge into findings of guilt by association.

24. There is undoubtedly a risk, where a large volume of evidence is adduced in a conspiracy trial, that it will have a cumulative effect in the mind of the judge; and that he will be inclined, if he is not alive to the danger, to think that there is so much evidence against one or other of the co-defendants that all must be guilty.

25. In this instance, the judge carefully summarized firstly the evidence of each prosecution witness and the degree to which it implicated each defendant and secondly the evidence of each defendant and defence witness.

26. It would have been more satisfactory if the judge had brought together, however shortly, the evidence as it related to each defendant separately. Instead, having considered the evidence, both for the Crow and for the defence, witness by witness though not in relation to each defendant in turn, he finds, as a fact, that the prosecution evidence was true and that he did not believe the defence evidence to the contrary.

27. The Crown evidence establishes, if it is accepted, that each of the defendants separately was party to one or more corrupt transactions or sub-conspiracies - with the exception of D.6, in relation to whom we think that the evidence was too flimsy to justify a conviction.

28. It is correct that the judge did not indicate that he realized that it was his duty to consider the case for and against each defendant separately. But we do not think that it should be incumbent upon a district judge to set out such an elementary rule in his judgment. Unless it is Clear that he did not follow this rule, it should be assumed that he did.

29. We have indicated that we did not think that the conviction against D.6 can stand. We do not reach this conclusion because of any failure by the judge to consider the evidence against D.6 separately, but because he-failed to identify, in the evidence of P.W.6.P.W.7 and P.W.8, a substantial uncertainty as to the part played by D.6. in the corrupt transaction which occurred when he was either present or nearby.

30. It was argued that a passage in p.610, in which the judge refers to "the defendants or some of them" and "particularly the 4th Defendant" being aware that drug trafficking was being carried out at Sheung Shui, J showed that he was not considering the case against each defendant separately. This is putting more weight on one passage than it can fairly bear. It may show that the judge inferred that al l defendants knew that trafficking was going on-surely not an unreasonable inference as they were all members of the same unit and if any one of them knew it would be likely that all would, whether or not corrupt use was made of such knowledge. But it does not mean that he concluded that, because each defendant knew of the trafficking, that he must necessarily have been guilty of the conspiracy charged.

31. We would not therefore have quashed the conviction on this ground.

Ground of Appeal (4)

32. This was the ground on which most emphasis was placed by the defendants and which has caused much concern.

33. Did the prosecution establish the general conspiracy alleged, or does the evidence prove no more than a number of separate conspiracies, or acts of bribery, during the period of eighteen months specified in the Particulars of Offence.

34. The judge, so far as this can be derived from his judgment, appears to have adopted the following reasoning-

35. Counsel for the Crown argued that the judge's conclusion was justified by the evidence and by the established circumstances in which the payments were made. All the incidents concerned had occurred in the same area; all the payments were made to Customs and Excise Officers who came from the same station at Fanling; the only reasonable inference was that the various corrupt payments were made in pursuance of an agreement by the defendant to take bribes from drug traffickers in the area, in return for which the defendants would turn a blind eye to drug trafficking carried out by the payers.

36. The evidence of the prosecution witnesses certainly establishes that, during a period of rather more than a year, there were at least seven different transactions, each involving the payment of corrupt money to one or more of the defendants.

37. Had the defendants (with the exception of the 6th defendant in regard to whom we think that, in any event, the evidence was too weak to justify a conviction) faced seven different individual charges of bribery, there was clear evidence on which, if it was accepted by the judge, as indeed was the case, they could properly have been convicted of these charges.

38. Alternatively, the evidence clearly supported a number of individual conspiracies by different groupings of the defendants during the period alleged. Had they been charged in this manner, there would have been sufficient evidence to sustain their convictions.

39. The main question which has to be decided, however, is whether the evidence has established what was alleged in the particulars, namely, one central conspiracy, operating during a period of 18 months.

40. We do not go so far as to say that it was not open to the judge, on the basis of the evidence which he accepted, to conclude that there was a central conspiracy, rather than a series of sub-conspiracies, though some aspects of the evidence favour the latter view of the evidence, in particular -

41. The matters which the Crown must establish in a case of this kind were summarized as follows in R. v. Griffiths⁽4) -

42. There is, unfortunately, nothing in the judgment to show that the judge approached the evidence in this manner. He finds that a series of corrupt payments were made; he jumps from this finding to another of guilt. He does not consider at all whether the acts of corruption, and the circumstances in which they occurred, justify the inference that there was a central conspiracy to which all the defendants were parties, rather than a number of sub-conspiracies.

43. We have come to the conclusion with regret, that his failure to consider this vital point must be fatal to the conviction.

General

44. There are advantages for the Crown in charging several defendants with one embracing conspiracy, rather than with a number of criminal acts or sub-conspiracies. In particular, such a charge makes evidence against one conspirator admissible against the others, once it has established that a conspiracy may have existed.

45. Nevertheless, it is a course which can bear unfairly upon an individual defendant, since there is a risk that he will be convicted by reason of the sheer weight of evidence against various members of the conspiracy (this is probably what happened to D.6).

46. It also places, since such trials are often very long, as this one was, much strain upon the judge, obliged to disentangle a mass of evidence and to decide which pieces affect which defendant.

47. And there is the danger that the Crown and the court will lose sight of the essential difference between a single conspiracy and a series of illegal acts or sub-conspiracies which are unconnected by any general agreement.

(1)    Crim. App. 1043/75.

(2)    [1980] H.K.L.R. 105

(3)    [1961] H.K.L.R. 13 at p.82.

(4)    49 C.A.R. 279.

Representation:

B. van Buuren (Chung & Kwan) for 1st Appellant

A. Huggins (Tang & So) for 2nd Appellant

Peter Clayton (Chung & Kwan) for 3rd Appellant

Raymond Leung (Spencer Hung & Co.) for 4th Appellant.

Paul Fok (Chung & Kwan) for 5th Appellant

Peter Nguyen (Ip, Ku & Stoppa) for 6th Appellant.

M. McMahon, Crown Counsel, for Respondent.