The Queen v. Lam Chi Keung and Others
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CACC000118/1985
Date of Hearing: February 21st, 24th & 25th, 1986 Date of Judgment: March 18th, 1986. ------------------ JUDGMENT ----------------- Roberts, C.J. - 1. LAM Chi-keung (D.1), CHOW Mo-kit (D.2), HUI Hon-Lam (D.3) and YUEN Wing-chum (D.4) sought leave to appeal against their convictions on a count of conspiracy to traffic in dangerous drugs. D.1 and D.2 were sentenced to fifteen years' imprisonment and D.3 and D.4 to eight years' imprisonment. The first three defendants sought leave to appeal against these sentences. D.2 also sought leave to appeal against concurrent sentences of six years' imprisonment imposed on two counts of possession of dangerous drugs for the purposes of unlawful trafficking, to which he pleaded guilty. Background 2. About January 1984 a police informant, LAU Pakying ("Lau") approached an I.C.A.C. officer and informed him that he had connections with a drug trafficking syndicate in which corrupt police officers were involved. He was prepared to provide, for reward, sufficient information to enable the I. C. A.C. to break up the syndicate. 3. As a result of this, I.C.A.C. rented premises at Flat G, 8th Floor, Block B, No. 42 Yuet Wah Street. During the period from 3rd March to 10th April, 1984, I.C.A.C. officers occupied one of the bedrooms of this flat. Through a tiny hole in the wall, the activities of a drug-packing syndicate in an adjoining bedroom were recorded on video and audio tapes. 4. These tapes, the playing of which lasted about 18 hours, were produced in evidence before the jury. In addition, from time to time, when the adjoining bedroom was empty, the I.C.A.C. officers entered it and took photographs of the equipment which was lying in that bedroom, consisting of items which are commonly used in the packaging of heroin. Also seized by them were a number of bags which, on examination, were shown to carry traces of heroin. 5. On 10th April, D.2 was arrested in the street in possession of 34 grammes of heroin mixture, the subject of the second count. He was taken back to Flat G, which was then searched, 496 grammes of heroin mixture being found there; this was the subject of the third count. D.2 pleaded guilty to these two counts. 6. The video and audio tapes established, beyond any question of doubt, that a heroin distribution centre of a substantial nature was operating on those premises for the period during which they were kept under observation. 7. It was estimated that, during this time, approximately five to six kilogrammes of heroin were repacked in small packets for sale on the streets and were in fact so distributed. 8. All four defendants appeared both in the video and in the audio tapes. Each was identified as appearing on the video tapes by one of the I.C.A.C. officers. Furthermore, the jury, who themselves viewed the tapes, were in a position to reach their own conclusions as to the identification of the defendants on those tapes. 9. So far as the audio tapes are concerned, the jury had the opportunity to listen to the first three defendants give evidence and to compare their voices with those which appeared on the audio tapes. 10. The.defence of the first three defendants was that they were drug addicts and victims of Lau. On the occasions on which they appeared in Flat G, or telephoned to it, they were merely enquiring about the availability of drug supplies for their own consumption. D.4 gave no evidence himself, though he called one witness, the effect of whose evidence can be summarized by saying that he employed D.4 and that therefore D.4 could only have been a part-time seller. Accomplices 11. Apart from the evidence of the video and audio tapes, the Crown case rested largely upon the evidence of Lau, a doubtful character with a criminal record, LAM Yuk-fong ("Lam"), a member of the drug distribution group who was given immunity in return for giving evidence for the Crown and PUN Chak-leung ("Pun"), one of the sellers used by the group, who was given a similar immunity. 12. Lau and Lam implicated all four defendants as taking part in the distriburtion of drugs and Pun implicated D.1 and D.2 in this traffic. 13. In addition to these witnesses, the Crown produced empty heroin bags and packaging equipment seized from the bedroom in Flat G occupied by the conspirators. Grounds of Appeal 14. All the grounds of appeal of substance related to the directions given by the judge with regard to the evidence of accomplices, the judge having correctly, early in his summing-up, instructed the jury that Lau, Lam and Pun should be regarded as accomplices. Ground 1 - Mutual corroboration 15. The first ground of appeal with which we find it necessary to deal was that the judge had failed to direct the jury that the evidence given by one accomplice could not be corroborated by the evidence of another accomplice. 16. We do not accept this submission, since there are two passages in the summing-up which warned the jury in sufficiently clear terms that it is improper for the evidence of one accomplice to be used to corroborate that of another -
17. Nor is there any passage in the summing-up, to which our attention was drawn, which could be said to suggest otherwise. Ground 2 18. It was said that the judge failed to direct the jury that confirmatory evidence must implicate the defendant in a material particular. 19. The judge deals with the kind of evidence which is required to support that of an accomplice in a number of passages, of which the following are typical -
20. The phrase "a material particular" appears nowhere in the summing-up. We see little to criticize in this, since it is hardly a phrase in ordinary daily use and is likely to puzzle rather than inform a jury. 21. In our view, a jury faced with a series of directions of the kind quoted above can have been left in no doubt that what is required is independent evidence, from a different source, of such a nature as to make the evidence of the accomplice concerned more credible. 22. The jury was not in terms, warned by the judge that the supporting evidence must be of such a nature as implicates the defendant. 23. While it is certainly desirable that .a judge should make it clear to the jury that only evidence of such a nature will be sufficient to amount to supporting evidence, we cannot think that this jury would have been under any illusions as to this requirement. 24. The evidence of Lau, if accepted, directly involved the four defendants in the conspiracy. We see no reason to doubt that the jury must have understood, when told to look for evidence to support that of Lau, that what was required was evidence which implicated the defendants in the conspiracy. 25. Furthermore, having instructed the jury that independent support for Lau's evidence was desirable., the judge set out, separately in relation to each defendant, the evidence which was capable of amounting to corroboration of the evidence of the accomplice. 26. Insofar as there may have been any omission, in his general direction, to inform the jury that supporting evidence must implicate the defendant, this would have been more than cured, in the minds of the jury, by the manner in which he particularized that evidence which they could properly regard as being supporting. Ground 3 - Lies 27. It was argued on behalf of D.2, that the judge had wrongly directed the jury with regard to. the extent to which lies could amount, in law, to corroboration. 28. The judge deals with the effect of lies in two passages of the summing-up -
29. No objection was taken to this passage which, though perhaps not in as clear terms as is desirable, directed the jury to give such effect as they thought proper to lies told by D.1 if they were satisfied that he had told untruths in evidence.
30. Objection was taken to the second paragraph since it follows a list of other evidence which the judge had said was capable of corroborating the evidence of Lau against D.2. 31. Although the judge does not, in terms, state that lies are capable of forming corroborative evidence, in the context in which the judge made this latter reference to lies, the jury must have inferred that the judge was directing them to that effect. 32. There has been some confusion in the authorities in the past as to the extent to which lies may provide corroboration of the evidence of an accomplice. The principles have, however, been set out recently by Lord Lane, L.C.J. in the following passage from his judgment in R. v. Lucas (l)-
33. The difficulty about the passage from the summing-up in paragraph (b) above is that the judge did not identify the lies to which he is referring, as he did with regard to D.1, in paragraph (a) above, where he commented that the lies concerned were D1's denial that he had appeared on the video tapes and in the recordings, though the visual evidence before the jury suggested otherwise. 34. It may well be that there were similar statements by D.2 which it would have been open to the jury to find were deliberate lies of the nature which satisfied the test in Lucas (l). 35. Unfortunately, however, the judge did not identify the lies, as a judge must do if he is inviting a jury to consider whether they may amount to corroboration of the evidence of an accomplice. Ground 4 - the notebook 36. When Flat 'G' was aearched by police officers after the arrest of D.2, a notebook, in which appeared a number of names and a series of calculations was discovered there. 37. Lau identified this notebook as maintained in the handwriting of D.1 and gave evidence that it showed various drug transactions, and financial calculations relating to them, during the period of operation of the drug distribution centre. The Judge referred to the notebook in the following passages-
38. The difficulty about these passages is that the judge is directing the jury that the evidence of the notebook was capable of amounting to independent confirmation of Lau's own evidence as to the conspiracy. 39. There could have been no objection to the notebook being produced in evidence as a record of the transactions of the drug distribution centre, nor for the relevant entries implicating the defendants to be identified by Lau as part of his evidence. 40. What is objectionable, however, is that the notebook was characterized by the judge as supporting Lau's evidence. The jury was entitled to take the contents of the notebook into account as part of the evidence against the defendants, if they accepted the evidence of Lau as to the meaning of its contents. What they were not entitled to do is to regard it as being capable of supporting Lau's evidence by way of corroboration. Ground 5 - Misdirection as to conspiracy 41. This ground is based on the following passage from the summing-up, where the judge is dealing with.the evidence against D.4. (There was a direction in very similar terms in relation to D.3).
42. The argument was that the jury had been directed in this passage that it was sufficient to convict D.4 of conspiracy to traffic if they were satisfied that he had both consumed dangerous drugs and had sold them. 43. Thus, it is said, the jury was being, directed that it might convict on a charge of conspiracy to traffic even if satisfied only that D.4 had sold dangerous drugs. 44. This passage in the summing-up must not be read in isolation but must be linked to other passages in which the judge explained what is necessary to establish the offence of conspiracy to traffic. Two such passages appear in the early part of the summing-up -
45. Furthermore, the passage to which exception was taken followed a reference to the possibility that D.4 was only a customer and not a seller, though D.4 himself gave no evidence to this effect. 46. We do not think that, taking account of the summing-up as a whole, and of what precedes the short passage which is criticized, the jury can have thought that they were no longer dealing with a conspiracy and that they could convict merely by deciding that D.4 was a seller. 47. They must have realized that it was being suggested that it was open to them to find, if they were satisfied that D.4 was a seller, not merely a buyer, that he was part of the conspiracy charged. Application of the proviso 48. There was considerable argument before us as to whether or not the proviso to section 83(l) of .the Criminal Procedure Ordinance should be applied. 49. The necessity to consider its application arose from our conclusion that the judge had misdirected the jury in two respects - (a) as to the extent to which lies could amount to supporting evidence; (b) as to the use of the notebook to corroborate the evidence of Lau. 50. The proviso to section 83(1) empowers this court to dismiss an appeal, notwithstanding that a point raised in the appeal might be decided in favour of an appellant, if it considers that no miscarriage of justice has actually occurred. 51. The approach to be adopted has been considered in many English decisions, the effect of which can be summarized by the following quotation from the judgment of Robert Goff, L.J. in R. v. Edwards (2) -
52. The evidence against the four defendants was, in our judgment, overwhelming. At the outset we have, in outline, described the case which was put forward by the Crown, involving extensive video and audio tapes which linked all four defendants in various ways with the drug distribution centre. 53. It was argued that if the jury had been properly directed they would not necessarily have reached the same conclusion. In support of this counsel referred to the acquittal of D.5, D.6 and D.7, as showing that the jury was not prepared to accept the evidence of Lau unless it was satisfactorily corroborated. 54. In relation to D.5 and D.7 neither the video or the audio tapes mentioned or identified them. D.6 appears in none of the video tapes but was identified in some of the telephone calls. 55. This shows, if anything, the careful approach of the jury to the evidence of Lau, which they do not seem to have been ready to accept without some confirming evidence. The inference which we draw from this is that the judge's directions as to corroboration made the right impression on the jury, who were not prepared to convict unless there was supporting evidence. 56. The pieces of supporting evidence in relation to which we have found that the judge was in error were compared with the visual and audio tapes, of a comparatively minor nature, and we are satisfied that the case against all four defendants was so strong that the jury must have convicted if they had been properly directed on these two issues. 57. We directed that the applications for leave to appeal against conveiction should be granted and that all four appeals should be dismissed. Appeals against sentence 58. When announcing that the appeals were dismissed and that we should give our reasons later, we dealt with the applications of D.1, D.2 arid D.3 for leave to appeal against sentence. 59. We refused all three applications. Although the sentences were of a substantial nature, we could not say that they were excessive, in view of the quantity of heroin mixture which was distributed in furtherance of the conspiracy to traffic. (1) [1981] 73 C.A.R. 159 at p.162. (2) [1983] 77 Cr. App. R. 5 at p.8 Representation: Mr. G.W. Alderdice (David Ravenscroft & Co.) for D.1 Mr. J. Hemmings (David Ravenscroft & Co.) for D.2 Mr. R. Spicer (D.L.A.) for D.4 D.3 HUI Hon-lam - in person Mr. J.L. Abbott, S.C.C., for Respondent. |