HKSAR v. Wilson Alberto Corredor Medina and Another

CACC 296/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 296 OF 2007

(ON APPEAL FROM HCCC NO. 239 OF 2006)

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Before: Hon Stock VP, Lunn J and Wright J in Court

Date of Hearing: 7 January 2010

Date of Judgment: 7 January 2010

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 19 July 2007 these two applicants were convicted after trial before Nguyen J and a jury of the offence of conspiracy to traffic in a dangerous drug and each was sentenced for that offence to a term of 21 years’ imprisonment.  They now seek leave to appeal against conviction.  The second applicant (D2) pleaded guilty to one count of possession of a dangerous drug for which he was sentenced to six months’ imprisonment, but we are not concerned with that offence or with that sentence.

2.On the count with which we are concerned, it was alleged that between 18 January 2006 and 16 March 2006 the applicants conspired together with a man called “Jorge”, another called “Negro” and other unknown persons not in custody, unlawfully to traffic in a dangerous drug, in this case, cocaine.

3.The main prosecution witness was an undercover agent (PW1) employed by the Drug Enforcement Administration of the United States of America.  He came to Hong in January 2006 to assist the Customs and Excise Department in the investigation of a drug syndicate with Mainland connections which was looking for potential buyers in Hong Kong of large amounts of cocaine.  PW1 presented himself to be a local drug dealer.

4.The evidence in the case was complex in the sense that there was evidence of a large number of telephone conversations and meetings to which, to one degree or another, these applicants were said to have been party, meetings over a period of two months.  The telephone conversations between the main prosecution witness and the persons who are said to have been these two applicants were recorded and transcripts produced.  Many of the meetings were recorded on video and the videos of those meetings were produced at trial.  Each member of this Court has had to spend some hours studying the papers to ascertain who met whom, when and where and which meetings were recorded.  It would have helped, in order better to identify the specific evidence relating to each applicant, had a simple table to that end been produced.  In the event, given the grounds advanced in support of these applications, we do not propose to do more than summarise the evidence very broadly.

5.There was lengthy evidence from PW1 of a large number of telephone conversations between him and members of the syndicate under investigation and of meetings with them, including telephone conversations and meetings in the two months in question allegedly held with these two applicants who went respectively, he said, under the names “Enano” (in the case of D1) and “Bruce” (in the case of D2).  His testimony was that he met the person called Bruce on a number of occasions, starting on 27 January 2006 and had frequent telephone conversations with the person whose voice he recognised as that of Bruce, and whose telephone number corresponded with the number on the SIM card found at D2’s address after D2’s arrest in March 2006.  Two of the meetings had been lengthy.  It suffices for present purposes to say that all of the meetings and all of the telephone conversations were about the supply of cocaine from a supplier on the Mainland, negotiations about price, quantity and the provision of a sample.  Bruce was closely involved in the negotiations.

6.PW1 said that he met Enano, who was said to be D1, only once, namely on 3 March 2006, and during that meeting Enano did not converse with him, although the conversation at which D1 was then present, with the person called Negro, was about payment for the sample which (the evidence established) had been delivered the previous day by D1 to an undercover officer, PW2.  PW1 engaged in 15 telephone conversations with Enano, each about the intended supply of cocaine from the Mainland.  Ten of those telephone conversations took place on 2 March 2006 shortly before – according to the evidence of an undercover officer (PW2), from the Customs and Excise Department – D1 handed a knapsack containing a substantial quantity of cocaine (the sample) to that officer.  The telephone number contacted by PW1 (or used to contact PW1) on those occasions coincided with the number to which the SIM card found on D1 at his arrest related.

7.There was also evidence from officers of the Customs and Excise Department, PW2 and PW3.

8.PW2, a male customs officer, gave evidence of five occasions upon which he had seen D1 in the company of PW1 and/or D2.  This included one occasion when he saw D1 and D2 together in a park for over an hour and a half and then followed D1 to an address and another occasion upon which D1 gave him the knapsack with cocaine.  The last time he saw D1 in person, before trial, was on 17 March 2006 after D1 had been arrested when he, PW2, was sealing exhibits.

9.PW2’s evidence was that he had seen D2 on nine occasions, including the occasion (recorded on video) when he had seen D1 at the park on 27 January 2006 for over an hour and a half.  Also video-filmed was the meeting which preceded the congregation in the park, a meeting which PW1 had held with D2 and others about drugs.

10.PW3 had seen the man known to her as “Almond” (whom she identified at trial as D1) on four occasions and D2 on six occasions.  On one occasion, 3 February 2006, she travelled in close proximity to them for about half an hour, on the same ferry from Tsim Sha Tsui to Wanchai.  On 10 February 2006, she saw the two of them together in Kowloon Park and on 13 February 2006 she video-filmed an incident to which the person called Bruce was party, during which PW1 showed D2 and others money which he said he had available for the purchase of drugs.

11.Not only were telephone conversations between PW1 and persons at the telephone numbers the related SIM card numbers of which were later shown to be in possession of D1 and D2 audio-taped, and the transcripts placed before the jury, but, more significantly, many of the crucial meetings about which PW1 gave evidence were videotaped and the videotapes played before the jury so that they could see for themselves whether the persons shown on the videotapes were these defendants.  These, as we have noted, included a videotape of a lengthy meeting at which D2 was said to be present on 27 January 2006; the prolonged walk shortly thereafter in the Kowloon Park in which D1 and D2 were said to have participated; and there was also a film of an important meeting on 13 February 2006 at which PW1 discussed with Bruce and a female from the Mainland the intended purchase of 50 kg of cocaine.  Also filmed was the money-showing incident to which we have earlier referred; the delivery on 2 March 2006 of the knapsack containing drugs by D1 to PW2; and a meeting on 3 March 2006 attended by D1 and PW1.

12.The key witnesses, PW1, PW2 and PW3, gave evidence that they had viewed these various videotapes prior to coming to court to give evidence.  When they came to testify they stated that the persons on the tapes referred to as Enano and Bruce were D1 and D2 respectively.  It had apparently not been possible to hold identification parades because the applicants are of South American origin and the law enforcement authorities were not able to secure South American actors for the purpose of such parades.

13.It is said that this was a case of an identification of defendants for the first time in court and the main plank of these applications is the contention that the judge ought not to have allowed those dock identifications because there was no reasonable or credible explanation why identification parades were not held before trial.  It is a remarkable fact that it took this Court of its own efforts to ascertain whether objection had been taken at trial and whether a ruling had been given and it ascertained that the matter was indeed extensively canvassed and a ruling given, and it is a regrettable and even more remarkable fact that no counsel has drawn that to our attention, or asked for the ruling to be in the bundle.  We can nonetheless address the issue because on the facts and evidence of the case the answer to the point is obvious.

14.We do not propose here to rehearse the numerous authorities on the subject because the principles are well known and it is largely a case-sensitive issue based upon common sense.  Dock identifications of defendants are not always impermissible and it is a matter within the court’s discretion to permit or disallow them depending upon whether the prejudicial effect in a particular instance outweighs probative value. 

15.In the case of neither applicant was this a case of a first-time identification by a witness who was a stranger to the defendant or an identification after some fleeting or otherwise classically unreliable view or views of the suspect.  Not only had the applicants been seen – the second applicant more frequently than the first – on a number of occasions by a number of witnesses, sometimes at close quarters and over an extended period, but they had been filmed, the witnesses had seen the films prior to coming to court and the jury was in possession of the films and able itself to determine the accuracy of the identification.  The applicants did not give evidence at trial, nor call any testimony on their own behalf in order to cast doubt upon the identification evidence and so what happened was that the prosecution was merely put to proof.  The judge informed the jury that they had to be very careful to make sure that the identifications were reliable and he pointed out to them that no identification parades had been held.  Most particularly, he reminded the jury of the numerous meetings with and/or viewings of the defendants by the various witnesses and correctly suggested for their consideration whether this was indeed a case of identification of persons entirely unfamiliar to the witnesses or whether, on the other hand, they were persons with whom the witnesses were familiar; and he added:

“Members of the jury you are entitled to look at the videos and to look at the defendants in the dock and ask yourselves, is a particular person shown in a particular video the same person as D1 or D2 or both of them?  You will be entitled to do that.  If you were to make any identification of your own, then you must exercise particular care, members of the jury, for the obvious reason that the tape may not be of such good quality to show the facial features of a person; a tape may distort the appearance of a person and it is quite different from looking at a person in person; and of course, the fact that, with the passing of time, appearances may change.  So you must exercise particular care if you are going to make any identifications of your own.

So in this case, members of the jury, if you are satisfied with the evidence of PW1, PW2 and PW3, you can either accept their evidence, or you can make the identification yourself based on what you see on the videos, or you can have a combination of the two, the evidence of those three witnesses and the identification that you may make yourself.  However, members of the jury, you must be sure that a man you see in the video is a defendant before you can convict him.  As I said, you are entitled to look at the videos, look at the defendants in the dock, and then to conclude, if it is safe to do so, that a particular defendant in the dock is a man that you see in the videos. … To convict a particular defendant, you must be sure that he, sitting in the dock, was one of the persons shown in the videos.”

16.There is, in the circumstances, no sound basis upon which we could possibly conclude that the judge erred in exercising his discretion to permit the three witnesses to say, when they were in court, that the two men in the dock were the men whom they had met or seen, as the case may be, in person on previous occasions and on the videotapes which they had studied and, in some cases, which they themselves had taken.

17.Then there is some complaint by each applicant that “there was no proper voice identification of the applicant either before or during the trial”.  The suggestion is that PW1 should not have been permitted to say that the voices he had heard and to which the transcripts referred belonged to Enano and Bruce respectively; most particularly in the case of Enano whom he had not heard speak at the one meeting attended by Enano face to face with PW1.

18.This, again, with respect, is not a meritorious point.  In the case of the person called Bruce, PW1 had met Bruce on several occasions and was perfectly entitled to assert that the person to whom he spoke on the telephone, on many occasions, carried the same voice as the person called Bruce and in, relation to Enano, that he spoke to a person calling himself by that name on 15 occasions.  Importantly for present purposes, the judge reminded the jury that:

“Voice identification in this case is only something that the prosecution can rely upon to say that when PW1 heard a particular voice, he was able to say that that voice was that of, for instance, ‘Bruce’ or ‘Enano’ because he had heard that same voice before over the telephone, or he had heard that person speak when he saw him in person, which of course would not apply to ‘Enano’ because, when PW1 saw ‘Enano’ on that one occasion at that meeting, ‘Enano’ never said anything.  It was ‘Negro’ who did all the talking.

The prosecution, members of the jury, are not able to say that the voice that PW1 identified to be that of ‘Enano’ is in fact the voice of the 1^st defendant.  They are not able to say that the voice that PW1 identified as that of ‘Bruce’ is, in fact the voice of the second defendant.  The reason for that is, quite simple, members of the jury.  Ever since these two defendants were arrested, PW1 has never heard them speak, so he does not know what their voices are like.  He is only able to say: ‘That is “Enano”, that is “Bruce”’; but he cannot say ‘Enano’ is D1, ‘Bruce’ is D2.  He attempts to say that by his visual identification, when he identified them.”

19.Mr Tam, for the respondent, correctly points out that the issue at trial was whether D1 was indeed the person called Enano and whether D2 was the person called Bruce and that that was proved by a combination of circumstances, particularly the visual identification, combined with the telephone calls.  In the case of D1 the prosecution was able to tie the calls with Enano to the SIM card found on D1 and point to the close coincidence of the 10 telephone calls with PW1 on 2 March 2006 – and their content – with the evidence of PW2 that D1 handed him the knapsack with drugs.  Similarly, the prosecution was able to tie the fact and content of the many telephone calls between PW1 and the person calling himself Bruce with the videoed meetings between D2 and PW1 as well as with the SIM card found at D2’s premises.

20.One of the grounds of appeal advanced by both applicants is that there was “a failure to join PW1 as a conspirator” meaning, it is suggested, that Count 1 was, as it has been put, “legally incorrect”.  Mr Mughal for D1 submits that PW1 “ought to have been named as a conspirator in the count to reflect his role and the reality of the circumstances” and Mr McGowan that the failure to name PW1 as a co-conspirator was inconsistent with the prosecution’s case.

21.It is difficult to know what to make of these submissions.  How one has to ask, arose the obligation to name PW1 as a conspirator?  It is not suggested that there was an obligation in law to do so.  So the question is whether there was any prejudice occasioned to either applicant by the failure to do so.  It is said that the prosecution case was that PW1 was not a co-conspirator when in reality he clearly was.  There was therefore created, so the argument goes, a fiction.  That may be so, but none of the facts was hidden from the jury, and we fail to see any resulting prejudice.  The task for the jury was to determine the conspiracy as charged on the indictment, namely, a conspiracy between these two applicants and others not in custody to traffic in dangerous drugs.  That was the conspiracy charged and if the prosecution proved that conspiracy, that is all that was needed. 

22.There is one error made by the judge which has been drawn to our attention.  At a late stage in the summing-up, the judge said:

“PW1 said he had ample opportunity to observe ‘Negro’ and ‘Enano’.  It was during the daytime.  ‘Enano’ was only two feet away.  Nothing obstructed PW1’s view.  He had no difficulty in recognising ‘Enano’s’ face.” 

So far so good, but he then went on to say:

“He also recognised his voice.”

23.That was an error of fact but given the earlier correct direction and the summing-up as a whole and the fact that the jury could have been under no misapprehension about the facts, we are satisfied that the error could have no bearing on the result.

24.There are a number of other grounds which we have studied but none has merit and we do not propose to repeat them here. 

25.Accordingly, the application of each applicant for leave to appeal against conviction is dismissed.

Mr Simon Tam, SPP and Ms Kathie Cheung, SPP of the Department of Justice for the Respondent

Mr Hanif Mohamed Mughal, instructed by Messrs Krishnan & Tsang assigned by Director of Legal Aid for D1

Mr James H.M. McGowan instructed by Messrs Eric Yu & Co. assigned by Director of Legal Aid for D2