HKSAR v. Leung Kai Chung

CACC 96/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96 OF 2000

(ON APPEAL FROM HCCC NO. 113 OF 1999)

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Coram: Hon Woo JA, Stock JA and Tong J in Court

Date of Hearing: 25 September 2001

Date of Judgment: 20 November 2001

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J U D G M E N T

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

1.The key issue in this case is whether the terms of immunities granted to accomplice witnesses called by the prosecution, and the fact that, despite those immunities, they were told by the court that they had no obligation to give answers which might incriminate them, constituted material irregularities and, if so, whether the conviction of the applicant for conspiracy to traffic in dangerous drugs can nonetheless stand.

The indictment

2.The applicant was charged upon an indictment containing one count which alleged that between August 1993 and February 1995 he conspired with three named persons and others to traffic in heroin. He pleaded not guilty, but after a trial before Pang J and a jury, he was, on 2 March 2000, convicted by a unanimous verdict. He was sentenced to a term of 36 years' imprisonment. He now seeks leave to appeal against conviction and sentence.

The accomplices

3.The co-conspirators named in the indictment, each of whom gave evidence at the applicant's trial, were:

(1) Wong Yut-wah. He was the first prosecution witness (PW1). His evidence was that he first met the applicant at the end of 1993, and that there was an agreement that he would transport drugs for from Thailand, through Burma, and then Guangdong for collection by the applicant and for the applicant's distribution, for his own profit, in Hong Kong.

(2) Law Chong-wing (PW3) and Ko Lai-cheung (PW4) who assisted Wong in the manufacture and distribution of the drugs thus supplied.

(3) Tang Siu-mei (PW2), not named as a co-conspirator, who was the girlfriend of Wong. Her role was to launder the proceeds of Wong's drug trafficking.

4.Each of these accomplice witnesses had been arrested and tried and sentenced prior to the trial of this applicant.

5.Law and Ko were arrested in November 1994. An apartment which they had been seen to leave was searched, and in that apartment in Sheung Shui was found 4.6 kilos of a mixture containing 1.182 kilos of heroin. They were charged with trafficking in dangerous drugs and pleaded guilty, but their sentences were postponed until after the trial of Wong. It was not in the event necessary for them to give evidence at Wong's trial because he pleaded guilty although there was a Newton hearing to determine the factual basis for sentencing. On 5 July 1997 each was sentenced to a term of 10 years' imprisonment which sentence was reduced upon appeal; in the case of Law to eight years' imprisonment, and in the case of Ko to seven years and nine months' imprisonment.

6.Wong and Ms Tang were arrested in February 1995. There were two trials in which Wong was a defendant. One was for offences committed in 1991, in respect of which trial he had breached bail. In that case he pleaded not guilty, but changed his plea after a failed challenge to the admissibility of a statement or statements. The second case related to the conspiracy to which this applicant is said to have been a party. In this second case, Wong pleaded guilty at his trial to a number of offences, namely, conspiracy to traffic in dangerous drugs, conspiracy to manufacture dangerous drugs, and trafficking in the dangerous drugs which had been found at the apartment where Law and Ko were arrested. Although he pleaded guilty, there was a Newton hearing at which the extent of his involvement, in terms of the period of the conspiracy and the quantity of drugs, were in issue. In relation to the second case, he was sentenced to terms totalling 20 years' imprisonment, 13 years of which was ordered to run consecutively to a term of 15 years for the earlier case. This totality of 28 years was reduced on appeal in December 1997 to a totality of 24 years.

7.Ms Tang was charged in the District Court with assisting Wong to retain the proceeds of drug trafficking and with harbouring a fugitive. She pleaded not guilty. On the evidence of Law and Ko, she was convicted and sentenced to a term of two years' imprisonment.

8.In due course, all these accomplices implicated the applicant as the one who had arranged to send from Thailand the heroin with which they all subsequently became involved. We say "in due course" because, as we shall see, it was some considerable time before any of these named the applicant at all.

9.On 15 December 1998 the applicant was stopped at Hong Kong International Airport and arrested, and on 9 January 1999 all four prosecution witnesses whom we have mentioned identified him at a parade. Consequently, the applicant was charged and tried on indictment, and at his trial the four former defendants were prosecution witnesses.

The grounds of application

10.The first ground of this application is that "there was a material irregularity in the conduct of the trial when prosecuting counsel purported to offer a verbal immunity from the Bar table to the four principal prosecution witnesses in almost identical terms, namely:

"that provided the witness gives evidence in accordance with his witness statement, he will not be prosecuted for any further offences disclosed in those statements with the obvious exception of perjury."

It is said that those immunities, the terms of which were repeated by the judge in his summing-up, "were inappropriately advanced as well as improper and unfair in their terms".

11.There is an alternative to this ground which attacks the fact that even though an immunity was given, the judge nonetheless permitted each witness, in particular Wong, not to answer questions on the ground that the answers might incriminate; a permission which was inconsistent with the fact of the immunity, and which precluded the defence from asking material questions, or which otherwise inhibited the conduct of the defence.

12.The second ground is to an extent tied to the first, and it runs as follows:

"The learned judge gave no directions whatsoever as to the need to look for supporting evidence of what the four accomplices, in particular PW1, had said in evidence, in circumstances which plainly called for such directions. Accordingly, the directions on how the jury should view the evidence of the four accomplices were inadequate, particularly, when they had been told they must give evidence in accordance with their police statements."

The verdict is said, accordingly, to be unsafe and unsatisfactory.

The trial itself

13.This was a case in which, in our judgment, matters went wrong in the manner and terms of immunities granted, and in the fact that despite the grant of the immunities the recipients of the immunities were offered protection from self-incriminating answers. The manner in which the problem unfolded was unusual, a problem whose genesis lay in a strange decision, taken well before the trial, not to grant immunities and we see an attempt then by prosecuting counsel to patch emerging difficulties with spontaneous remedies. Once that path was struck, the pattern was set and ad hoc formulae, to which the judge was led, were repeated with every key witness. To appreciate the nature and extent of the flaws, a fairly detailed rehearsal of events at the trial is required.

(1) How the immunity question arose

14.The manner in which the suggested problem emerged was unusual. At the outset of Wong's testimony, he accepted that by giving evidence he was hoping to "get a discount" from his sentence. He was then taken in examination in-chief to a stage in 1992 when he had met the applicant's brother, and through him, the applicant, and he said that in late 1993 he discussed with the applicant the prospect of trafficking dangerous drugs to the USA. At that point Mr Cheng Huan, leading counsel for the applicant, interrupted and asked the judge whether it was the appropriate time "... about what we discussed. ... What I already submitted to your Lordship." (tr. p.28). The transcript does not reveal what had been discussed but, clearly, counsel was asking the judge to raise a matter which had been the subject of some prior discussion. What must have been discussed is to be implied, we think, from that which immediately followed.

15.What the judge did was to tell the witness, Wong, that he had a fundamental right, namely, that he was not required to answer any question or to produce any document which would tend to expose him to criminal prosecution, penalty or forfeiture. When asked whether he understood his rights, the witness requested the judge to repeat them. The judge did so, and the witness stated that he understood.

16.Mr Cheng was not entirely happy, for he asked to address the judge further, and he did so in the absence of the jury. He invited the court to tell the witness that "whatever incriminating evidence he's going to give in this case may lead to his prosecution. ... because ... he has not been granted immunity throughout this period at all and I think it's very important ... that [he] ought to be told the possible consequences of what he may say in this case which has not been the subject of any immunity." (tr. p.29) The judge responded that the witness knew that he was under no immunity whatsoever. Leading counsel suggested that perhaps the witness did not appreciate the fact, for there had been some hint in a number of witness statements that he was asking for an immunity. But, said counsel, without any immunity being granted "he's asking to testify, presumably according to the sequence, to the material that he's provided to the Department of Justice. Presumably it's the prosecution case that he will not deviate from this particular statement. There's the hope presumably and if that is so. ... in the circumstances he ought to be warned that whatever he says could be used against him in fresh proceedings, in criminal proceedings because your Lordship will appreciate this, very importantly, originally he was charged with trafficking in 485 kg of dangerous drugs."

17.In other words, counsel was drawing to the judge's attention that Wong's witness statement revealed an escapade, or a conspiracy, which went well beyond the time frame of the conspiracy for which the witness had been sentenced in 1997; and that the witness had been sentenced for trafficking in a quantity of drugs well below the quantity with which he had been charged. There had been a Newton inquiry, and the judge in Wong's case had accepted his evidence as to the amount of drugs, a very significant difference in quantity.

18.The precise reason behind Mr Cheng's concern is not entirely clear, but that matters not. It is clear enough that he was drawing to the attention of the judge this suggestion that the witness might be under a misapprehension about his position, a position which seemed ill-defined.

(2) The prosecutor's stance

19.What then happened was that Mr Lloyd, for the prosecution, commented that the judge had said to the witness all that was necessary. He confirmed that no immunity had been given, and he said that that was because none was needed, explaining that, given the length of sentence to which Wong was already subject: "This man will never be prosecuted again for any offence." If that was so, the judge said, was counsel for the prosecution prepared to tell the witness that in court? Mr Lloyd said that he was happy "to express that to the witness." (tr. p.31)

20.Mr Cheng remained unhappy. Was there already some understanding with the witness that he was not to be prosecuted? Mr Lloyd answered that the Department of Justice files, which he had seen, had stated that there would be no purpose in any further prosecution of the witness. Mr Cheng retorted that that was the first time his side knew anything of that. Did the witness know about it? Why had the witness not been informed? He added: "It's rather undesirable to put it the mildest, that this should come from - on such a serious matter, this should come from the Bar table." (tr. p.32). The judge said that it was as good as anything else since Mr Lloyd represented the Secretary for Justice, and Mr Cheng replied:

"Yes, but I think it's important that this witness should be fully appraised of the situation."

Mr Lloyd then said that his position would be that "for the evidence he gives today in his evidence-in-chief he will not be prosecuted for the subject of anything he says. ... except, of course, for perjury." (tr. p.33)

(3) The self-incrimination point revived

21.Mr Cheng complained further that "effectively this is an immunity and if it is an immunity, why is there not a formal immunity?" Mr Lloyd said that there was no need for one. The court intimated that Mr Lloyd's statement sufficed, and then returned, of its own motion, to Mr Cheng's earlier invitation that the warning against self incrimination should be wider than the normal warning; and the court said that "the general warning is sufficient under the present circumstances." Why there was, in the circumstances, any longer a need for a warning, if the immunity to be given was sufficiently broad, it is, with respect, difficult to see. It is noticeable in this regard that neither at this stage, nor at the subsequent stages when this incongruity arose, did either counsel assist the trial judge and suggest that a reminder about self-incrimination was otiose. The same may be said for the lack of any objection by the defence to the form of immunity which was then offered, and upon which so much of this appeal turns.

22.The jury then returned and, in their presence, Mr Lloyd said in the hearing of the witness:

"The position is this, my Lord, that provided the witness gives evidence in accordance with his witness statement, he will not be prosecuted for any further offences disclosed in those statements with the obvious exception of perjury." (Tr. p.34)

That was translated for the benefit of the witness, and he was asked if he understood, and he said that he did. The evidence-in-chief was then advanced.

(4) Wong's evidence

23.The applicant's role was said by Wong to be that of a major supplier of drugs, a person with contacts in other jurisdictions, in particular in Thailand, and that he knew people who could deliver drugs from there through Burma to Guangzhou, and it would then be for Wong to arrange shipment of the drugs to Hong Kong, and to manufacture those drugs and distributed them here. The evidence-in-chief was detailed in its description of the meetings with the applicant, the first of which was said to be at the end of 1993, as to the matters discussed, about an agreement to import the drugs, about the price and quantity agreed, the other persons involved, about the first shipment in early 1994, a further delivery in May 1994, and still further deliveries in August and October 1994, and of payments made to the applicant. He testified about collection of the deliveries, how he, Wong, brought Law and Ko into the business, and how Tang helped with fetching money in relation to payments to the applicant. In November 1994, Law and Ko were arrested. The next delivery from the applicant took place early in 1995, but that was the last transaction, for in February Wong was arrested.

24.It was very early in the course of cross-examination that the next problem, with which this court is concerned, arose. Mr Cheng asked the witness about the quantity of drugs with which he was involved between August 1993 and February 1995. The witness said that he could not recall. Then Mr Cheng asked him whether he, Wong, had told the court of all the occasions upon which he "during this period" trafficked in dangerous drugs. The witness said: "Concerning all the drug transactions between myself and Simon, yes." "Simon" was a reference to the applicant.

(5) The claim against self-incrimination

25.What then followed is an important exchange between Mr Cheng, the witness, and the court. Given its importance, we set it out in full.

"Q. Well, apart from Simon, were there other quantities of dangerous drugs with other people?

A. Yes, involving some, yes.

Q. Tell us the details as you've told us in examination-in-chief? Take your time. When, where, with whom, the quantum involved? Please tell us, Mr Wong.

A. My Lord, may I have your permission not to mention those things because I was required to become a witness in respect of another case because ...

COURT: So you are informing - - just a minute.

A. ... some are still at large.

COURT: You wish to exercise your right?

A. Right.

COURT: Now, Mr Cheng.

Q. Why are you exercising your right on this occasion, Mr Wong?

COURT: Mr Cheng, the reason being he was told of his right this morning.

MR CHENG: But I say why such a right this morning but why exercise his right now but not this morning?

COURT: All right, yes.

....

Q. Yes, Mr Wong, why are you exercising your right now but not exercising your right this morning?

A. In respect of this case I have genuine transactions with him and I volunteer to tell this.

Q. Did you have genuine transactions in the other cases or case?

A. Yes, and in respect of those cases, people were still at large. If I mention that, then those people might not be arrested.

Q. Well, I'll give you a choice, Mr Wong: tell us the details but not the names of those people involved? I'm not interested in the names.

COURT: Mr Cheng, he wishes to exercise his right.

Q. Would you like a special right even if you're given the choice not to reveal the names?

COURT: Mr Cheng, the question should be from me, not from you.

MR CHENG: Sorry, I do apologise. Yes.

COURT: I was informed that he wishes to exercise his rights, full stop.

A. I want to exercise my right.

Q. I see.

COURT: Perhaps, Mr Cheng, you would like to reflect upon your line of cross-examination, shall we adjourn now and let you continue tomorrow morning?

MR CHENG: To be honest, my Lord, I don't need to reflect it upon. There's not in fact one if he wishes to exercise his right.

COURT: Yes, of course.

MR CHENG: To be absolutely blunt. I mean, I'm quite happy to proceed, my Lord.

COURT: Yes.

MR CHENG: I am obliged to your Lordship suggesting that altogether. But can I ask him the next question. Perhaps through your Lordship? Can I ask him in the other cases the quantity of dangerous drugs involved?

COURT: Do you have any observation, Mr Lloyd?

MR LLOYD: It's the same point, my Lord.

MR CHENG: I don't think it's the same point. My Lord, we'll find it difficult and handicapped if he exercises his rights selectively.

MR LLOYD: Well, my Lord, he's exercised his right; he's doing it.

MR CHENG: I'm asking now his Lordship whether I could ask him that particular question.

COURT: Well, can we discuss that in the absence of the jury?

MR CHENG: No, I don't need to discuss it with my learned friend about this line of cross-examination, my Lord.

COURT: All right.

MR CHENG: Perhaps I can ask through your Lordship whether I could pursue that question of whether he wishes to exercise his right regarding the amount of dangerous drugs involved in the other case or cases?

COURT: Right. Ask him whether he wishes to exercise his right on that question as well.

A. Not that I do not remember, I just want to exercise my right not to answer this question.

MR CHENG: My next question and I think probably my last question, my Lord, through your Lordship, if I may?

Q. Whether you wish to exercise your right, your involvement in dangerous drugs involved how many other persons during this period of time. That's my next question.

MR CHENG: Maybe he wishes to exercise his right, my Lord.

A. I do not want to answer this question. I have mentioned quite a number of persons, so I do not want to answer, lest they might make good their escape.

MR CHENG: Again, my Lord, my question is not about names but merely the number of persons.

COURT: Yes.

MR CHENG: He appreciates that.

COURT: That's clear now.

MR CHENG: I see." (Tr. pp.52-55)

To the effect of this episode, we shall later return.

(6) Wong's cross-examination

26.Cross-examination continued. It was very detailed. Wong was asked about the true quantities of drugs with which he in fact trafficked with the applicant and he said that it was 285 units, significantly in excess of the amount to which he had pleaded guilty or suggested at his trial in 1997. Previous convictions were put to him. He accepted that at his trial he had never said that the applicant was involved in the conspiracy to which that trial (and this) related; he had said in terms that the only persons involved were himself, Law, Ko and another. Indeed, the first he ever mentioned of this applicant was in August 1997 when he gave a statement to the police in the hope that his offer of assistance would have an impact on sentence. He said that he had never before mentioned the applicant because he thought that, if he did so, the applicant might be tipped off and might escape arrest. One notes that that could not explain why he never mentioned the applicant, even confidentially, to the police. He was asked about visits to him in prison by his girlfriend; about lies he had told in a voir dire in the trial for the 1991 offences; about lies told in the Newton inquiry in his 1997 proceedings; and about lies offered in mitigation at his trial. He accepted that, upon all these occasions, he had told significant lies.

27.It was suggested to him that his motive for giving false evidence against the applicant was that he had a grudge against the applicant because of some bookmaking venture, and also because he thought that the applicant had betrayed him to the police. The fact that he hoped that giving evidence at the applicant's trial would result in a reduction in sentence by the executive was canvassed on more than one occasion. At one point, counsel for the applicant returned to the question of immunities and said:

"Q. I suggest to you, you know that having entered into a bargain with the police, you've got to stick to your witness statements?

A. Now I'm telling the truth in respect of this case." (Tr. p.112)

(7) Ms Tang's immunity, and the court's reminder

28.The evidence of PW2, Tang, was preceded by a discussion between counsel and, yet again, there was this rather unusual suggestion that there would be given an oral immunity, and that the judge would nonetheless tell the witness that she was not obliged to answer questions if the answer might incriminate her. Counsel for the prosecution, Mr Lloyd, said:

"My Lord, before the jury comes back, the next witness will be Madam Tang. She's in the same position as her ex-boyfriend, the previous witness in that she's made a witness statement where she mentions various things so perhaps she should be warned, if I can make the same declaration that she won't be prosecuted for what she says." (Tr. pp.122-123)

29.So, here was counsel for the prosecution actually inviting a process by which a prosecution witness was to be told, in virtually the same breath, that she was in fact at no risk at all of a prosecution if she incriminated herself, but that she need not risk prosecution by incriminating herself. Having invited that course of action, he then conferred an immunity, orally, in terms different from those which he had used in the case of Wong. He did not by those terms suggest that the witness would be immune from prosecution if she stuck to her witness statement, but in so far as that might be said to be a redeeming feature, the immunity was prefaced by reference to the witness statement, so that the effect may well have been the same. This is what transpired:

"Q. Now, Madam Tang, you've given a witness statement in relation to your involvement with your boyfriend, Wong Yut-wah, in some drug transactions in 1994 and early 1995.

A. Yes.

Q. His Lordship is going to give you shortly a certain warning about the evidence I anticipate you will give.

A. Yes.

Q. And after he gives that warning, I'll be - - and I'll do it now. Assure you that you will not be prosecuted for anything you say in this court today other than any evidence you give that might be perjured. Do you understand?

A. I understand.

COURT: Now, Madam, I would like to explain your rights to you. You are appearing as a witness for the prosecution in this case. Yes, you are aware of that?

A. Yes.

COURT: Right, now in our law a witness is not required to answer any question or produce any document which would tend to expose the witness to a criminal prosecution, penalty or forfeiture. Now in the course of your giving evidence when questions are put to you if the answer of which you think may incriminate you then you have a right to refuse to answer these questions. Are you aware of your rights?

A. Yes." (Tr. pp.123-124)

(8) Ms Tang's evidence

30.It is unnecessary to recount her evidence in any detail. She said that the applicant frequently met her boyfriend; she saw payments made by him to the applicant; she herself delivered money to the applicant and paid money into the bank for Wong. She was cross-examined about false suggestions put on her behalf at her own trial. The first time this witness had mentioned the applicant as an accomplice in the relevant conspiracy was July 1998. She had made previous witness statements, but none mentioned the applicant. Part of the cross-examination was designed to establish that in statements she had previously made to the police, when originally interviewed about the conspiracy and her role in it, she had told lies and, from a perusal of that cross-examination, it appears somewhat clear that lies may well have been told.

31.It is also noteworthy that she was cross-examined about the accuracy and completeness of statements she had given. It was pointed out, for example, that in her statement of July 1998, the first time she implicated the applicant, she had not mentioned the delivery of RMB 2 million to the applicant on a trip for that purpose to the Mainland. This was mentioned in a supplementary statement by her the very same day of a visit by her to Wong in prison. The relevance of this to the point in issue in this application is this: that it demonstrates that her latest statements (the ones upon which her evidence was supposedly based at the applicant's trial) were not in themselves full, even if they were true so far as they went.

(9) The double protection of Law (PW3)

32.PW3, Law Ching-wing, had also never mentioned the applicant in any statements or in any evidence until February 1998 when he gave a witness statement to the police; this despite the fact that he had given evidence at the trial of Wong's nephew, as well as at the trial of Ms Tang, both in connection with the same conspiracy.

33.He was the subject of the same treatment as in the case of the earlier two witnesses, except in his case the importance of sticking to the witness statement was highlighted by two reminders, before the immunity was granted, that the immunity was tied to the witness statement:

"Q. Your full name is Law Chong-wing?

A. Yes.

Q. You live in Hong Kong?

A. Yes.

Q. Mr Law, you've given a statement to the prosecuting authorities in relation to this matter?

A. Yes.

Q. In that statement you detail your involvement in some drug transactions.

A. Yes.

Q. In relation to what you say in that statement, and we anticipate your saying in court today, his Lordship is about to give you a warning but before he does so on behalf of the prosecuting authorities I can tell you that you won't be prosecuted for what you say in this courtroom today in accordance with your statement, except of course for the purposes of perjury.

COURT: Yes, you have heard and understand counsel for the prosecution?

A. I understand.

COURT: Right, now you appear as a witness for the prosecution in this trial.

A. Yes.

COURT: Now in our system a witness, that is your good self, is not required to answer any question or produce any document if the answer or the document would result in you being charged with any criminal offence, penalty or forfeiture. You have a right to refuse to answer the question or produce documents. So in the course of answering questions put to you at this trial if you feel that the answer you give may hold you liable for such problems then you can refuse to answer the questions. You understand?

A. I understand." (Tr. p.147)

34.It would, one supposes, be possible to argue that the two pieces of information extended to the witnesses, that they were immune from prosecution and yet had the right not to give self-incriminating answers, were not necessarily inconsistent, in that if an immunity is given which is expressed to be connected only with the facts disclosed in a written statement, a witness may nonetheless be exposed to liability for prosecution in relation to conduct by him not disclosed in that statement. It was not suggested to us that that was the answer in this case. If it were the answer in a particular case, it would have to be spelt out in the clearest of terms. In a case of the kind with which we are dealing, it was likely to be somewhat artificial to draw a line at what the witness said in his statement and what was not in it, for if one is talking of a large and ongoing conspiracy to traffic in and manufacture dangerous drugs, it is almost inevitable that a written statement will leave out matters of relevance to the trial, to the guilt or innocence of the defendant, and to the role of the witness. The formula used can only run the risk, as we think it did in this case, that the witness is told in effect, or might understand, that he is to stick to the witness statement and not step outside its boundaries, a difficult exercise for him and one which might well work injustice to an applicant.

35.PW3's evidence for the prosecution was brief, but important. He said that he had met the applicant in 1994, and that he was present when Wong gave the applicant money on several occasions, and when Wong discussed a drugs delivery with the applicant.

36.Nonetheless he was asked to say when he had first been engaged in dangerous drugs, and he said that it was in 1988 when he brought drugs from Canada. The next time was in 1994. He was asked if there were other occasions, and he was reminded of his rights by the judge, but he said that there were no other occasions. A little later, although in the context of a different detail, defence counsel said to him:

"You've just been informed by my learned friend that you'll not be charged for any offence. You can say anything you like, except perjury."

"Yes." (Tr. p.155)

He was cross-examined at some length about statements he had made to the police after his arrest in 1994, and there were suggestions that he too had then lied to the police.

(10) The formulae repeated: PW4

37.The same formulae in the case of Ko, PW4, were used as had been used with PW3.

"Q. And Mr Ko, you have made a statement to the prosecuting authorities in relation to this matter?

A. Yes.

Q. And I can assure you provided you give evidence in accordance with that statement, whatever you say in this courtroom will not be used against you, subject to perjury.

A. I understand.

Q. You understand that?

A. Yes.

Q. His Lordship is now going to give you a caution.

COURT: Yes, Mr Ko, you appear in this case as a witness for the prosecution. Now, in the course of answering questions put to you by the respective parties, you have a right to refuse to answer questions or produce any document, the answers of which or its production of which would make you liable for a criminal charge, penalty or a forfeiture. Do you understand?

A. I understand.

COURT: If the situation arises and you wish to exercise that right, you need to ask me.

A. Yes, I know." (Tr. pp.189-190)

38.The witness gave evidence of meeting the applicant frequently, of Wong handing over of money to the applicant, and of a discussion about a delivery effected by the applicant, that the purity of a delivery was not acceptable. He too had never mentioned the applicant until he made a witness statement on 4 February 1998, the day before Law had made his statement. He too was cross-examined about statements he had made to the police upon his arrest, and he admitted that he had lied in those statements.

(11) The summing-up

39.The question of immunities was, not surprisingly, mentioned again in the course of the trial, this time in the summing-up. One imagines that it will also have been mentioned in counsel's speeches, but these we do not have. What the judge said was this:

"We have heard that each of them before givng evidence for the prosecution was informed by Mr Lloyd, for the prosecution, that they would not be prosecuted for their criminal activities provided that they gave evidence in accordance with their witness statements given to the police.

The fact that each witness was given an immunity from the prosecution must be clear to you that there is evidence upon which they can be prosecuted as a party to the crime for which the defendant is charged, otherwise there will not be any need for such immunity. There may be all sorts of reasons therefore for them to lie in order to implicate the defendant. One of such reasons may be that the witness wants to implicate the defendant in order to escape criminal liability or simply, in the case of Mr Wong, the first prosecution witness, to have his term of sentence reduced. It is therefore dangerous to rely on the evidence of any of the prosecution witnesses unless you are sure that the witness is telling the truth." (Tr. p.9)

Immunities: the policy of the law

40.The practice by which law officers undertake to an accomplice that, on given conditions, he or she will not be prosecuted for an offence committed by the accomplice, in return for evidence in the trial of a confederate for the same or an associated offence, is a practice of long standing although attended by conflicting sentiments. On the one hand:

"The law confesses its weakness by calling in the assistance of those by whom it has been broken. It offers a premium to treachery, and destroys the last virtue which clings to the degraded transgressor." (See: "A Practical Treatise on the Criminal Law" Joseph Chitty, (1826) Vol. I, p.769.)

That principled approach is accompanied by a practical concern, namely, the risk of false evidence induced by the hope or the real prospect of advantage which is nurtured by the accomplice who is turned prosecution witness.

41.That said, commentators and those who have moulded the policy of granting pardons or immunities have also recognised the clear advantages in their use. Chitty went on from his reference to "the last virtue which clings to the degraded transgressor" to say that: "Still on the other hand, it tends to prevent any extensive agreement among atrocious criminals, makes them perpetually suspicious of each other, and prevents the hopelessness of mercy from rendering them desperate." There is, of course, another and signal advantage: since it is in the public interest that criminals be brought to justice, the use of accomplice evidence, if necessary or helpful to that end, is admissible. So nothing we say should be taken to discourage the proper use of accomplice evidence. But the point we make is that the grant of an immunity is a serious matter, not to be treated lightly or, as we find happened in this case, loosely. A decision to grant an immunity is a decision which should be made only by those duly authorised to make it, and the terms of the immunity to be granted must receive careful attention. The person to whom it is offered is entitled to know precisely what is properly expected of him if the immunity is to hold good, and in respect of precisely what conduct the immunity extends, subject to the overriding consideration that what is expected is the full truth.

The policy of the Department of Justice

42.None of this is new to the Department of Justice. It accords with its long standing stated, as well as actual, policy and practice. What happened in this case was that that practice was not followed. When we say that the policy or practice has been stated, we have in mind a document produced by the Department of Justice, dated 1998 (re-produced as Appendix IV "Criminal Procedure" Andrew Bruce, para 32):

" IMMUNITY FROM PROSECUTION

32. The Director of Public Prosecutions will in appropriate cases authorize the offering and granting of an immunity to a person who is to assist a Law Enforcement Agency in the detection or control of criminal activity, and who may thereby in the course of so acting himself be a party to criminal offences. In general an immunity will only be offered:

(i) where the criminal activity under investigation is of a serious kind or of a kind that poses a serious threat to law and order or public safety within Hong Kong; and

(ii) where conventional means of detection or control are unlikely to prove effective.

The Director of Public Prosecutions and his Deputies are authorized to grant full or partial immunity to persons suspected or accused of offences in return for their undertaking to give truthful evidence on behalf of the Prosecution. The immunity will be in writing and where necessary translated. A copy of the immunity should be provided to the Court and the Defence at trial." (Emphasis added).

43.We have also been shown the forms of written immunity normally issued. We shall set one of them out here:

" IMMUNITY FROM PROSECUTION

To: ABC

(HKID Card No. XXXXXXX(X))

I hereby inform you that on condition that you give full and true evidence at the trial of DEF in connection with the alleged offence of Conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134 and section 159A of the Crimes Ordinance, Cap. 200; such offence being alleged to have occurred in November of 1998, in Hong Kong, no prosecution will be instituted against you in respect of the offence of Conspiracy to traffic in a dangerous drug or any other offences connected with the said offence which have been disclosed by you or which may be disclosed by you in the course of your testimony during the said proceedings.

Should you fail to give full and true evidence at the aforesaid trial, the Secretary for Justice shall not be bound by any undertaking given in this document and you may be prosecuted for the said offence or any other offence connected with the said offence.

This Immunity does not apply to any offence of perjury or any other offence or offences involving the making of false or contradictory statements under the provisions of Part V of the Crimes Ordinance, Cap. 200, committed by you in the course of your testimony during any of the said proceedings.

Dated this_________day of ________, 2001.

	(XYZ)
	Deputy Director of Public Prosecutions
	for and on behalf of the Secretary for Justice"
	(Emphasis added).

One notes there the reference, twice, to the condition that the evidence to be given is "full and true".

"Full and true"

44.There is nothing new, and nothing surprising, about the use of the phrase "full and true". In Rudd (1775) 1 Cowp 331, Lord Mansfield CJ at p.334 referred to:

"... a practice which indeed does not give a legal right; and that is where accomplices having made a full and fair confession of the whole truth are in consequence thereof admitted evidence for the Crown and that evidence is afterwards made use of to convict the other offenders. If in that case they act fairly and openly, and discover the whole truth, though they are not entitled as of right to a pardon, yet the usage, lenity and the practice of the Courts is to stop the prosecution against them and they have an equitable title to a recommendation for the King's mercy." (Emphasis added).

45.Chitty refers to the "equitable claims to the mercy of the Crown" when an accomplice "appears ... to have acted a fair and ingenuous part, and to have made a full and true disclosure." (Vol. I, p.768)

46.The significance of rendering an immunity conditional upon the giving of true and full evidence should, we think, be obvious. So, too, should the danger of a naked condition that the accomplice give evidence in accordance with a witness statement. That danger was highlighted in a judgment of Penlington JA, sitting as an additional judge of the High Court in a magistracy appeal, R v Lai Wai-kin [1989] 2 HKC 559 where, at p.560 he said:

"As was said by Mr Gunston, who appeared for the appellant in the court below and here, the wording of that immunity is somewhat surprising, in that while it refers to the witness not being prosecuted for any criminal offence which might be disclosed by him in the course of his testimony, it then goes on to say 'provided also such offence was disclosed by you in your statement to Mr Leung To Keung, an officer of Independent Commission Against Corruption'. It then goes on to say that should he deviate from the truth in any material particular, 'either in his statement or in his evidence, this immunity from prosecution will cease'. This wording, it seems to me, could cause difficulty to a witness who realizes in the course of giving his evidence that part of his statement is wrong. If he does, there should be nothing to hinder him saying so if that is the truth. The wording of the immunity here may well make him think that if he does so, he may be prosecuted for his part in the offence.

This possible impression was, however, made much more likely here because when the witness came to give evidence, at a very early stage, he was asked by prosecuting counsel this question:

You are aware that you are not to deviate from the statement you gave to the ICAC officer on 21 March as one of the conditions of the immunity.

This question was objected to by Mr Gunston, on the basis that it was leading. Mr Gunston says here while that was indeed the basis of his objection, it was not leading in the normal sense but it was leading the witness to give evidence in accordance with the statement and not necessarily as to the truth. The question was, however, allowed and the witness answered the question in the affirmative.

In my view, this was a totally improper question. The witness should have been told that he must tell the truth and if he did not tell the truth, he may lose the benefit of his immunity. It was quite wrong to tell him that he had to stick to his statement, otherwise he might lose his immunity. This statement may have been wrong in some very important detail and as a matter of fundamental principle, a witness must not be told that having made a statement and then received an immunity, he must give evidence in accordance with that statement, otherwise he would lose his immunity. The Crown would naturally expect that his evidence will follow what was in his statement, but if it does not and he is prosecuted for his part in the offence as a result, his immunity would be a bar to such proceedings if he could show that his evidence was nevertheless true. On that ground alone, I am satisfied that this conviction is unsafe." (Emphasis added).

The immunities in this case

47.We do not say that there can never be an acceptable form of immunity which makes reference to a witness statement made by the immunity's recipient. It is unnecessary for us to consider the circumstances that might permit that. What is objectionable, in our view, is the form of immunities offered in this case in their several permutations, the effect of which - an effect aggravated by reminders at the outset of the evidence of the witnesses that they had made these very statements - was to direct them to stick to their statements. The assumption when an immunity in that stark form is given is that the statement to the police is true; an assumption which in this case was a particularly dangerous one to make given the taint which appears to attend the accuracy of earlier statements to the police provided by each of these four witnesses. The additional assumption is that the statement contains the whole truth. Furthermore, even if the statement contains the full story which the accomplice intended to offer, what of material which went beyond the boundaries of fact covered by the statement, drawn out, say, in cross-examination? Is this extra testimony thus elicited covered by the immunity or not, even though relevant and associated with the conspiracy? It is no answer in the circumstances which we have described to contend that the accomplice took an oath or affirmation to tell the whole truth, or that the oral immunities offered concluded with phrases such as: "You won't be prosecuted for what you say in this courtroom today in accordance with your statement, except of course for the purposes of perjury." (see, for this example, the transcript at p.147) What did that mean? And what was the witness being asked by these particular immunities to do if, in the course of testimony, he truly appreciated error in the witness statement? What if it transpired that a witness statement was untrue in a material particular, but that the witness had nonetheless adhered religiously to it? Would he then be immune from prosecution? Conversely, what if it transpired that although a witness statement was untrue in a material particular, the witness in his oral testimony told the truth, a clear diversion from his statement, a truth which nonetheless assisted the prosecution case?

48.We do not understand why it was thought unnecessary to offer any of these witnesses immunity well before trial. There was apparently written advice emanating from the Department of Justice to the effect that immunities were unnecessary because, given the sentences already imposed upon them, none of the witnesses would be prosecuted for other offences. Were the witnesses so informed? If not, what were they to think about the risk of further prosecution? Wong, for example, had pleaded guilty on a narrow factual footing; much narrower than the evidence against him had suggested. Did he think that he was at risk of prosecution if his evidence disclosed culpability on a wider footing? If he did, then that was likely to affect his openness in testimony, for which very reason an immunity should have been given. If, on the other hand, he thought that he was immune from any prosecution, why did he think so, unless that is what he had been told? And if that is what he had been told, then the question arises: by whom, and in what terms? It would, normally, be difficult to credit, given the nature of the case and the degree of trafficking in drugs to which Wong was obvious a party, that he had not been given assurance additional to that implicit in his witness statements, in which he said that he had been given to understand that anything he said in the witness statement would not be used in evidence against him, when that is a form of immunity which does not cover oral sworn testimony. So, too, the advice given that the grant of immunities was unnecessary did not foresee the difficulty that in fact arose in the trial, whereby the judge was obliged at the outset of Wong's evidence to tell Wong (quite correctly at that stage) that he had no duty to answer questions where the answers might incriminate him.

49.Mr Reading SC, for the respondent, invited us to say that no harm was done, and he took us to passages in the cross-examination of Wong where Wong insisted that he was "telling the truth". Mr Reading further prayed in aid passages in the summing-up where the judge emphasized that it was for the jury to be sure that the witness was telling the truth before they were to rely on that witness's evidence. We do not think that this overcomes the irregularity which we have described. These are witnesses who were told to stick to their statements; they were told in loose and varied forms; and the dangers to which those exhortations gave rise were dangers not explained to the jury and, in any event, were objectionable most particularly in the impact they might have had on the minds, not of the jury, but of the accomplice witnesses.

50.There is yet another criticism which we level at the text of the oral immunities granted, which is that they were vague, and that their breadth could not have been intended. In the case of Wong (PW1) he was not to be prosecuted "for any further offences disclosed in those statements". "Further offences" was not defined but, that aside, this meant that if in giving full and truthful evidence in accordance with his oath or affirmation, an offence was disclosed connected with the conspiracy but not mentioned in the witness statement, he was not protected. Much the same applies in the case of Law, PW3. Ms Tang, PW2, was not going to be prosecuted "for anything you say in this court today". By "anything you say today", we assume counsel meant "any conduct you reveal in this proceeding". Putting that solecism aside, one notes an immunity for any crime of absolutely any kind. The same width of immunity was given to Ko, PW4, so long, of course, as he gave "evidence in accordance with that statement".

Self-incrimination

51.The immunity problems which we have highlighted were compounded by the approach to self incrimination, once the immunities had been granted. We have seen how, in the case of each of the four prosecution witnesses, the grant of the loose immunities by Mr Lloyd was followed by a reminder by the judge that the witness had the right to refuse to answer questions the answers to which might incriminate the witness.

52.With respect, the two did not sit together. The privilege against self incrimination is "many things in many settings". See: Wigmore on Evidence (1961) ed. Vol. VIII para 2251. In the current setting, it is the privilege which a witness has not to disclose information which will or may result in his prosecution for a criminal offence. It must follow that once the witness's exposure to the risk of criminality, in the sense of liability to prosecution, is removed, the privilege does not exist. The matter is explained thus by Wigmore:

"It seems always to have been conceded that a pardon for a past offence, prohibiting and preventing punishment for the offence, nullifies the privilege [against self incrimination]. Criminality, in the sense of the law, is liability to legal punishment; if the punishment is abrogated, the criminality ceases. In the reason of the thing, from every point of view, there can be no doubt of the correctness of this conclusion." (para 2280)

In other words, the privilege against self incrimination goes once an immunity is granted, because there is then no risk of exposure to criminality in the sense intended by the privilege.

53.In this case, however, the prosecution availed itself of the best of both worlds: witnesses not in fact exposed to criminal liability who were nonetheless told that they could pray in aid - and indeed one witness did - a suggested right not to expose themselves to criminal liability. Once the decision was made in this case to grant immunities, reminders about self incrimination ought not to have been given.

The consequences

54.The question is: did it matter? We wondered at one stage whether any prejudice to the applicant was in fact shown. We would have to be very sure that there was none, given the fundamental nature of the errors, and given that the main prosecution witness actually availed himself of his supposed right not to answer questions. Mr Macrae did not appear in the court below, and was unable to assist in this particular aspect, although he did suggest one or two areas that counsel might have wished to explore had he not been prevented: for example, to demonstrate the full width of Wong's immersion in the drugs trade at the material time to show that he needed no supplier in the form of the applicant; or to try to tie him down to specific incidents, the veracity of which could then be checked.

55.But it is unnecessary for us to delve much. We see how things went when Mr Cheng SC, for the applicant was first stopped by Wong's refusal to answer a question; a refusal not, as it happened, based on a fear of incriminating himself, but upon a fear of alerting remaining fugitives, but nonetheless endorsed by the judge as a right. The flavour of the matter is one of defence counsel frustrated by this impediment to cross-examination, and saying in terms that he found himself handicapped and frustrated. The fact is that he ought not to have been placed in that position. Quite apart from the early episode which we have described when Wong asserted his suggested right, one cannot know how often counsel for the applicant wanted, or might have wanted, to explore some avenue or other but felt constrained from even raising it because of that early experience. We have to say that he contributed to his misfortune, such as it may have been, by not appreciating the incongruity of the immunities and the reminders; but that is a mishap to which, unfortunately, all key personalities in the proceedings fell prey. It is, however, a mishap which constituted a material irregularity, as was the form and content of the immunities offered. Mr Reading, in due course, and in answer to a question from this court, conceded that these matters constituted a material irregularity or irregularities, but invited us nonetheless to apply the proviso to section 83 of the Criminal Procedure Ordinance, Cap 221. We fail to see how we could properly invoke that proviso. In a case where the key witnesses were told to stick to witness statements and where, in addition, the defence was inappropriately constrained in the questions to be asked of these key witnesses, the conviction must be quashed. It is, in the event, unnecessary to address the second ground of this application.

Result

56.Accordingly, we grant the applicant leave to appeal against his conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal. We set aside the conviction, and the sentence imposed on 2 March 2000.

57.Mr Macrae, on instructions, opposed a re-trial, but did not seek to advance any grounds in opposition. There are in fact no valid grounds upon which to contend that there should not be a re-trial. We order a re-trial upon a fresh indictment. The applicant is remanded in custody pending the determination of that re-trial.

Representation:

Mr Andrew Macrae, SC instructed by Leung Kin & Co. for Applicant

Mr John Reading, SC, DDPP leading Mr Benny Wong Chi Wai, GC of Department of Justice for Respondent