R. v. Lai Shek Wan

CACC000127/1991

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Coram: Hon. Yang, CJ, Power, JA & Ryan, J

Date of Hearing: 27 October 1992

Date of Judgment: 27 October 1992

Date of Handing Down Reasons: 6 November 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. The applicant was convicted after trial of conspiracy to traffic in dangerous drugs and of conspiracy to corruptly accept advantages. He was sentenced to imprisonment for 14 years and 7 years respectively; the sentences were ordered to run concurrently. He was also ordered to pay HK$750,000 to the Hong Kong Government under s. 12(1) of the Prevention of Bribery Ordinance, Cap. 201.

3. He now seeks leave to appeal against conviction and sentence.

4. The case for the prosecution was chiefly dependent upon the uncorroborated evidence of three accomplices, viz., Cheung Yee-yan (PW1), alias Sai Kor; Cheung Wai-kam (PW2), PW1's sister; Yuen Ho-yin (PW4), the common law husband of PW2.

5. PW1 had been convicted of an unrelated drug offence in Japan and served six years in prison there.

6. PW2 had pleaded guilty to drug offences involving 165 pounds of heroin in the United States of America and was awaiting sentence at the time of the applicant's trial here in Hong Kong.

7. PW4 was in a position similar to that of PW2 his common law wife.

8. All three had been given immunity.

9. The case for the prosecution was briefly this. Between January 1979 and March 1981, PW4's brother wished to import heroin from Thailand for distribution in Hong Kong, an enterprise in which PW1, PW2 and PW4 participated. For this purpose, they enlisted the help of the applicant who was at all material times the Senior Inspector of Customs and Excise at Kai Tak Airport. The applicant and PW4 had been school mates and colleagues in the past.

10. The modus operandi was that a courier would check in properly at the Bangkok Airport with his suitcase which did not contain any dangerous drugs. On arrival at Hong Kong, there would be the courier's suitcase and another identical suitcase on the carousel. The second suitcase could be identified by a golden string tied to it, and that was the suitcase that contained drugs. If the applicant was on duty, the courier would collect the suitcase with drugs and walk past Customs without it being examined. If the applicant was not on duty, the courier would pick up the suitcase without any drugs and go through Customs. If the suitcase with the drugs was successfully taken out of Kai Tak Airport, PW2 would later return with the appropriate baggage tag and retrieve the suitcase which the courier had brought in from Bangkok and which did not contain any drugs.

11. The applicant was paid HK$2,000 for each pound of heroin brought in, though there was no guarantee that he would always be paid for the appropriate quantity of drugs.

12. At a later stage, a method called "the flight convergence" was used to reduce the chance of detection. A suitcase would arrive from Bangkok with the drugs and the courier would fly in from another country and collect the suitcase with the drugs from the carousel bearing the baggage from Bangkok.

13. At about the same time, PW2 made certain cash payments to a money lender in Hong Kong by the name of Michael Mak (PW3). PW3 would then remit the money through his Berlin Company to Macau. From Macau the money would return to a shelf company in Hong Kong called the Binarloy Ltd. controlled by the applicant. That company was involved in the purchase of a property in Hong Kong for HK$1,090,000.

14. The applicant gave evidence and his case was that it was not him who was involved, and if the importation of drugs had taken place, he was not the officer. He did however say in evidence that he and PW4 had been involved in a property transaction and he had cheated PW4 of a substantial sum of money. He was obliged to set up Binarloy Ltd. because he was a civil servant.

15. Mr. McCoy in his submissions before this Court stressed five points:

(i)     No drugs were ever found.

(ii)    The accomplices PWsl, 2 and 4 were all related.

(iii)    Their evidence was not corroborated.

(iv)    The events took place 10 to 12 years ago.

(v)     The applicant's evidence was the only evidence consistent with theknown financial  arrangements.

Four Grounds of Appeal were advanced, namely -

(1)    The trial judge undid the warnings he had earlier given about uncorroborated accomplices' evidence by repeatedly directing the jury that it was unlikely the accomplices would falsely implicate the applicant as their respective immunities against prosecution were dependent on their telling the truth.

(2)    The judge failed to direct the jury as to the good character of the applicant.

(3)    The judge misdirected the jury by dwelling on the "morality" of the applicant's conduct, the effect of which was to invite the jury to approach the evidence not in terms of legal obligation but in terms of moral reaction.

(4)    The judge displayed an impatience towards the applicant by his regular interruptions of the applicant's evidence and the manner, timing and nature of them.

16. On Ground 1, we have perused the summing up with care and found nothing in the judge's references to the accomplice witnesses that causes us unease. He fairly made his observations on each accomplice's credibility but left it to the jury to accept or not to accept their evidence.

17. On Ground 2, the judge clearly directed the jury that the applicant was a man of blameless character who had put in some 30 years of government service. He was not lightly to be disbelived, said the judge. This direction is adequate and in line with R v Berrada (1990) 91 Cr. App. Rs 131, at 134 (first full paragraph).

18. As to Ground 3, the passages in the summing up complained of follow immediately after the passage on the applicant's blameless character and government service. They read: -

"On the other hand, you may wonder how and why a man in his position would be prepared to do business with YUEN in a property transaction, a man whom he apparently knew was involved in a lot of 'seedy activities', to use the accused's own words. You may also wonder, on the accused's own evidence, about the way in which he treated YUEN's investment. He lied to YUEN about it. He led YUEN to believe that he was himself putting up $750,000 whereas he had to find a mortgage.

I leave you to assess the morality of that conduct. Do you think that the accused displayed an awareness of owing YUEN $750,000?"

19. We do not read the two paragraphs as telling the jury that they should consider the evidence in terms of morality and not of law. It is perhaps unfortunate that the word "morality" crept in in an otherwise impeccable summing up, but reading the paragraphs in their proper context, we are of the view that the judge was doing no more than attempting to give a complete picture of the applicant, giving the jury the good as well as the bad, so that they could arrive at a fair conclusion as to his credibility. There is nothing of substance in this ground of appeal.

20. Ground 4 is not borne out by the transcript of evidence. We have read the so-called interruptions referred to in this Ground but can find nothing there that causes us concern.

21. The application for leave to appeal against conviction is refused.

22. Mr. McCoy, in the application for leave to appeal against sentence, argues that that the sentence of 14 years' imprisonment imposed for the first count, namely, conspiracy to traffic in dangerous drugs, was manifestly excessive and wrong in principle. He made the following points, that -

(1)    the offences took place a long time ago;

(2)    his health had deteriorated;

(3)    he had lost his pension after 30 years in government service;

(4)    he is married with two children;

(5)    his service had been meritorious;

(6)    his "reward" for the offences was HK$700-800,000;

(7)    it is not known how much drugs were imported; and

(8)    he is 51 years of age.

23. We took into consideration all the mitigating factors advanced in the Court below and argued here. But there is no escaping the fact that these were serious offences committed over a long period of time, with international connections. The applicant was a Senior Customs Officer. By co-operating with drug traffickers he had betrayed the trust the public had imposed in him. In all the circumstances, we do not think the sentence either excessive or wrong in principle.

24. The application for leave to appeal against sentence is also dismissed.

Representation:

Mr. M.A. McMahon for Crown/respondent

Mr. G.J.X. McCoy and Miss Longmore (Chung & Kwan) for applicant