Suen Man-ko and Others v. The Queen
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CACC001259/1977
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----------------- Coram: Pickering, Ag. C.J., McMullin and Leonard, JJ. Date of Judgment: 21st August, 1978. ----------------- JUDGMENT ----------------- Pickering, Ag. C.J.: 1. Early in 1977 a Mr. Eddie Turangan, an Indonesian, arrived in Hong Kong from Canada. He did so with the knowledge of the Royal Canadian Mountain Police and he was armed with a telephone number and the name of a Mr. Chan Wan with whom he was to try to make contact on that number. His initial attempts were abortive and Mr. Turangan departed for Indonesia. Following his return to Hong Kong he was successful, in late May or early June 1977, in making telephonic contact with Mr. Chan Wan who is in fact the third appellant Chan Wan being a name which he used when he was at school. 2. The two met and Turangan told the third appellant that he was interested in buying five pounds of No. 3 heroin for sale in Canada a statement which elicited the reply that the third appellant was not involved in that type of business. According to Turangan there were many other meetings between the two and at one of these Turangan told the third appellant that if the deal was successful the third appellant would receive a share of the profits. Eventually, on the 15th July, Turangan introduced the third appellant to Inspector Mutch of the Royal Hong Kong Police Force. Inspector Mutch had rented a room at the Sheraton Hotel and was posing as the Canadian buyer. In that room there was a conversation between the three concerning the proposed deal and this conversation, unknown to Turangan and the third appellant, was recorded on tape. On the following day, the same persons again met in the same room and on this occasion the third appellant produced, by way of sample, a small packet which was subsequently certified by a Government Chemist to contain a mixture containing less than 0.1 of a gramme of esters of morphine. The conversation which took place on that occasion was again tape recorded. Between the 17th and the 22nd July (inclusive) Turangan and the third appellant had telephone conversations and met several times; on the 22nd July there was a meeting at the third appellant's home. Present were Turangan, the second and third appellants and the fourth accused in the court below. The gist of the conversation at that meeting was how the five pounds of heroin was to be physically delivered and the purchase price of $120,000 to be paid over. The conversation between Turangan and the third accused was in Indonesian and there was no evidence in the court below that any accused other than the third spoke or understood Indonesian. At that meeting there was also a conversation between the second and third appellants and the fourth accused in Cantonese. What was said was not before the court. On the 23rd July Turangan and the third appellant met at the Astor Hotel where the third appellant told Turangan in Indonesian that they were ready to proceed with the transaction and urged that it should take place as soon as possible. The second appellant and the fourth accused were also present at that meeting but there was nothing before the court as to what was said, if anything, by those two persons. The four went from the Astor Hotel to Mutch's room in the Sheraton Hotel where the conversation was again tape recorded. All the tapes were in evidence in the court below but the Cantonese conversation on that tape was disregarded in the court below since the Cantonese speakers on it were not identified. Turangan and the second and third appellants left Mutch's room and went to the Ambassador Coffee Shop where they agreed to meet about an hour later at the Sheraton Hotel. Subsequently, in the lobby of the Sheraton, Turangan met all three appellants. It was the evidence of the third appellant that in the lobby of the Sheraton the first appellant told the second, who in turn told the third, that only a few packets of "goods" were then available and that if the whole amount was required they had to wait for half an hour. On this information being passed to Turangan by the third appellant in Indonesian, Turangan said that the full amount of the goods was required. The four then took a taxi to the Yan Lee Restaurant where the first appellant had some conversation with the second and third appellants in Cantonese which Turangan did not understand; the first appellant thereafter left the restaurant. 3. When later Turangan, together with the second and third appellants, left the Yan Lee Restaurant they met outside it the first appellant who was holding a carrier or shopping bag on top of which lay some fruit and which bag he handed to the third appellant. All four then took a taxi to the Sheraton Hotel but the first and second appellants alighted from the vehicle before its arrival there. Turangan and the third appellant went up to Mutch's room at about 9 p.m. and shortly afterwards police entered when Turangan, the third appellant and the fourth accused (who had remained with Mutch when Turangan and the second and third appellants had left the room previously) were arrested. An inspector of the Anti-Narcotic Bureau testified that when he entered Mutch's room there was a carrier bag on the table as well as some fruit whilst a few packets, each secured by coloured rubber bands, were lying on the table. He opened one of the heat-sealed polythene bags and found it to contain a granulous substance which to his experienced eye and nose had the appearance and smell of heroin. Mr. Edgley, the Government Chemist, testified that when he first saw the packages, each weighing approximately one pound, he found that they contained a granulous substance which had the appearance and characteristics of No. 3 heroin: Mr. Edgley said that he thought that the contents were heroin until he tested them and found that they contained no dangerous drugs. A further test showed the contents to be caffeine (a non-prohibited substance readily available) which had been treated with, inter alia, acetic acid or acetic anhydride to give it the characteristic smell of heroin. 4. The first and second appellants were arrested in the Sheraton lobby about fifteen minutes after the initial arrests. 5. Clearly the discovery that the substance handed over to Mutch was not a dangerous drug threw the prosecution's intentions out of gear for the charge of trafficking in dangerous drugs was suddenly no longer viable; accordingly the first and second appellants were charged with conspiracy to defraud contrary to Common Law and with attempting to obtain property by deception contrary to section 17(1) of the Theft Ordinance, Cap. 210 whilst the third appellant was charged with two charges of offering to traffic in a dangerous drug the first relating to the sample which he had produced on the 16th July and the second to the much discussed five pounds of heroin. Each of the three appellants was found guilty of each of the two charges which he faced and the first two appellants now appeal against their convictions whilst the third appeals against both conviction and his concurrent sentences of three and a half years' imprisonment. 6. The charges eventually brought rested of necessity upon the same evidence as that which would have been invoked to support presumably different charges had the substance delivered to Mutch proved in fact to have been a dangerous drug. Thus the charges of conspiracy to defraud and of attempting to obtain property by deception, brought against the first and second appellants, are quite different in character from the charges of trafficking or conspiring to traffic in dangerous drugs which must have appeared to the police, until the substance was discovered to be caffeine, to have been the natural sequel to the events which took place. The question is whether or not the evidence, complete and unvarying, at the time of the surprise result of the analysis was sufficient to support the charges which were substituted for quite different intended original charges. The new charges against the first two appellants were conspiracy to defraud and attempting to obtain property by deception but there was no evidence that either the first or the second appellant knew what sum of money was involved in the transaction nor whether, if they had in mind any sum at all, that sum was appropriate to a sale of five pounds of heroin, of caffeine, of tea, coffee, chocolate or what have you. The only one of the appellants privy to the figure of $120,000 was the third. Again there was no evidence that the first or second appellant knew that the substance delivered to Mutch was in fact caffeine and thus no evidence of any agreement to defraud. Indeed the first appellant's initial appearance in the picture occurred only an hour or two before the arrests were made. He is not involved in any of the tape recorded conversations. So far as he is concerned the Crown could not rely on anything heard but only on what was seen. The extent of that visual evidence is that outside a restaurant he was seen to hand the bag, containing fruit on its surface and caffeine beneath, to the third appellant. The evidence against the second appellant was equally scant. He was not seen to handle the caffeine and it was not possible to say that he was privy to any of the tape recorded conversations. It is true that there was one piece of evidence which involved the second appellant and did not involve the first and that was his presence at the meeting at the third appellant's house on the 22nd July but there Turangan and the third appellant spoke Indonesian which was a language which the second appellant did not understand. It would seem that the most that can be said as to the first and second appellants is that they knew that someone was seeking drugs and that the second appellant was present at some of the conversations whilst the first appellant actually handled the bag containing what proved to be caffeine but it is difficult to point to any evidence which would put them in the category of persons conspiring to defraud or attempting to obtain property by deception as opposed to a category of would-be drug traffickers who were themselves deceived by the substitution of caffeine for heroin. 7. In dealing with the cases of the first and second appellants the learned judge, having found the third appellant guilty, said "I come now to the evidence against the first and second accused". He then cited extracts from five cases concerned with the requirements for proof of conspiracy but he never dealt, as he had said he was going to deal, with the evidence against the first and second appellants. Rather, having finished the citations from the five cases he went on to say "Taking the facts each relating to the first and second accused on their own may not appear to be incriminating but considered as a whole the facts in the present case cannot admit ....... of any other inference being fairly accepted than that there was a conspiracy between the first and second accused, and possibly with one or more persons not now before the court, to defraud Mutch. There is no doubt in my mind that the first and second accused knew that the bag which the first accused handed to the third accused (which, in turn, was brought up to Mutch) contained simulated heroin and that they acted in concert to deceive Mutch that he was going to purchase five pounds of heroin". This was a massive inference to draw and immediately after it the learned judge pronounced the first and second appellants guilty on the two charges which each faced. It is to be observed that just as, having said that he was coming now to the evidence against the first and second appellants, the learned judge failed to deal with that evidence so also, having referred to the cumulative effect of the facts in regard to the first and second appellants as capable of leading only to the inference of guilt, the learned judge failed to state what those facts were. In truth, when the facts are analysed as I have attempted to analyse them above, there was no evidence that either knew the sum of money involved, knew the product to be caffeine, were concerned in any agreement to defraud or attempt to obtain property by deception. Mr. Alderdice, for the Crown, with that commendable candour which always characterizes his advocacy, plainly felt that he could not struggle too hard in support of the convictions of the first and second appellants and it was his objective summary of the evidence against them, or said to be against them, that finally neatly encapsuled the matter. The verdicts against the first and second appellants were simply not supported by the evidence and it was for that reason that we allowed their appeals and quashed their convictions. 8. In regard to the third appellant it was contended by Mr. Stevenson that Turangan was acting as an agent provocateur and that accordingly the learned judge should have exercised his discretion to exclude Turangan's evidence in so far as it related to the third appellant. Assuming such a discretion to exist - and evidence was excluded upon this ground in England in the case of R. v. Ameer & Lucas(1) and in New Zealand in that of R. v. Pethig(2) - we are not of the opinion that this was a proper case for exclusion. Evidence could not be disqualified if all that can be said is that the offence would not have occurred but for the availability and stimulation of the Crown witness as a lead to a buyer. The provision of opportunity, even if it is an opportunity which would not otherwise have arisen, does not of itself disqualify the evidence. If an accused appears to be a person who was in any event ready and available to commit the offence then the provision of opportunity matters not. 9. As to the readiness and availability of the third appellant, Turangan came from Canada already armed with his telephone number and nickname - and that in the context of dangerous drugs. Certainly the Canadian authorities had reason to believe that the third appellant was no stranger to the trade. That fact, in itself, is of course not evidence against the appellant but it is significant that, using this information, Turangan was able to contact a man who from the outset showed himself interested in what was being proposed to him. Again after the first meeting between the two it was the third appellant who next made contact with Turangan and not the other way round; that several further meetings ensued does not suggest that the third appellant was being over-persuaded into a course of conduct which he would not otherwise have essayed; at these meetings, on the evidence, there was frequent reference to "white stuff" and "brown stuff" - fairly obvious euphemisms for heroin for which, we are told, there is no single word in the Indonesian language. Further the third appellant arranged a meeting between Turangan, himself, a certain Mr. Chang and an unnamed man at which Chang and the unnamed agreed to supply drugs although at a further meeting between the four the arrangement proved abortive owing to the question of price. Again on the subject of the third appellant's readiness to involve himself in meeting Turangan's requirements, it was Turangan's evidence that the third appellant indicated an unwillingness to supply drugs from Hong Kong preferring to obtain them from Bangkok where the situation in regard to drugs was more lax than in Hong Kong - a preference which suggests a readiness and ability to obtain dangerous drugs from either place. Another person to whom Turangan was introduced by the third appellant was a Mr. Ang but he was prepared to supply drugs only from Bangkok or Kuala Lumpur. These activities were far from those of a man being lured into the drug trade and there was no reason for the learned judge to have excluded Turangan's account of them on that basis. 10. Similar considerations apply to defence counsel's contention that the evidence of Mutch should have been excluded on the grounds that he too was acting as an agent provocateur. 11. Quite apart from the damning evidence of Turangan and Mutch in regard to the third appellant there was his written confession. At the trial objection was taken to the admissibility of this statement on the grounds that it was the product of inducement in the sense that what started out as a background statement ended up as both a background statement and a confessional statement. The suggestion of inducement is at best a weak one since it is apparent from the contents of the statement that at the very moment that the third appellant first mentioned the phrase "dangerous drugs" he was cautioned. At the trial this appellant's counsel submitted that the appellant had been induced to include the phrase "dangerous drugs" in paragraphs 9 and 15 of his statement as a result of the assurance from the sergeant who took the statement that "drugs, dangerous drugs mean many things and it is purely a matter of procedure that this has to be put down". However the offer of any such assurance was denied by the sergeant both in the examination-in-chief and in cross-examination and he was clearly believed by the learned judge in the court below who admitted the statement. In this court the same grounds have been put forward to attack the admission of the statement and it is said that the sergeant was not asked "the regulation question" with regard to inducement, this presumably being a reference to the case of Wat Kwok-leung v. Reg.(3) in which I emphasized the obligation upon the Crown of proving affirmatively that a statement was freely and voluntarily made, if necessary by putting, and receiving appropriate credible answers, as to whether any threats inducements or violence were offered to the accused. In the present case the appellant specifically said in evidence that no violence was proffered and he did not allege any threats; the only objection to the admissibility of the statement was based upon the somewhat tenuous inducement and that inducement had been denied by the sergeant both in the examination-in-chief and cross-examination. I find no warrant for saying that the learned judge should not have admitted the statement and on the basis of either that statement or of the verbal prosecution evidence there was ample justification for the conviction. The application of the third appellant for leave to appeal against conviction must be dismissed. 12. As to the concurrent sentences of three and a half years' imprisonment these were entirely appropriate and the application for leave to appeal against sentence must also be dismissed. Representation: J.G. Stevenson (Director of Legal Aid) for 1st-3rd appellants. G.W. Alderdice for Crown/respondent. (1) 1977 Crim. L.R. 104. (2) 1977 NZLR 448. (3) Cr. App. No. 880 of 1972. |