THE QUEEN v. KAI HUI WAI AND ANOTHER

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J U D G M E N T

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Penlington, J.A.:

1. These were applications for leave to appeal against the convictions of the applicants (Al & A2) before Ryan, J., and jury on the 3rd November 1989 on charges of conspiracy to traffic in dangerous drugs and to manufacture a dangerous drug. At the conclusion of the hearing we granted the applications for leave, treated them as the appeals which we allowed, quashed the convictions and set aside the sentences. We said we would hand down our reasons which we now do.

2. The background facts of this matter, which were not in dispute, were that in the early hours of the 13th March 1988 a party of police officers from the Narcotics Bureau went to a flat at No. 3 Mosque Junction, Third Floor, Mid Levels. There was a light on at the address and conversation was heard as was the sound of metal utensils being used. The police party kept the premises under surveillance until 7 a.m. at which time they decided to enter. A police officer knocked at the door and announced who he was. The light was immediately turned off and the door was not open. Force was then used and some 60 seconds later the police party entered the premises. In a room two Chinese men were found wearing only underpants and the room was, to use the description of the police officers, filled' with a cloud of white smoke. There was a strong acidic smell.

3. Clearly the flat was being used as a factory to manufacture No. 3 heroin. The police seized 185 kilos of a mixture containing 11 kilos of salts of esters of morphine. The two men in the premises, who later became vital witnesses for the Crown against the applicants, were Che Wai Ip (Che) and Cheng On Pang (Cheng).

4. A full examination of the flat was made. No fingerprints of the applicants were found nor were any documents or other exhibits which connected either of them to the flat.

5. Subsequently both Che and Cheng were charged with manufacturing dangerous drugs and possession of dangerous drugs for the purpose of trafficking. Each pleaded guilty to those charges and on the facts these were pleas entered in the face of overwhelming evidence.

6. At the time when Che and Cheng gave evidence against the applicants neither had been sentenced. It would also seem that before they entered their pleas they had been visited on four occasions by a solicitor's clerk called Tony Chan. Cheng gave evidence at the trial that they were initially promised substantial sums of money by Tony Chan if they would plead guilty to the offences and not implicate "the bosses". They would also be afforded the best possible legal counsel in mitigation. They agreed to that arrangement but subsequently were told that the money would not be available. Cheng said that he and Che then decided that they would give information to the police and wrote a letter to the Narcotics Bureau to that effect. Subsequently they were interviewed, about which there were also some controversy at the trial, and agreed to give evidence against the applicants and also one Li Kam Hung who had also played a very prominent role in this affair but was never apprehended.

7. The original indictment filed against the applicants also contained a count of conspiracy to defeat the ends of justice in respect of the approach that had been made to Che and Cheng by Tony Chan. It was the Crown's case that this approach had been made at the request of the applicants. Application was however made for severance of that count from the charges of conspiracy to manufacture and traffic in dangerous drugs, which was 'successful. This was because it was considered that evidence relating to the Tony Chan approach could be highly prejudicial to the applicants in relation to the other counts. Nevertheless evidence did emerge at the trial relating to the approach made by Tony Chan. This was because it was the defence case, as put to both Che and Cheng, that they had given evidence against the applicants so as to secure a reduction in their sentences. Che said in reply that was not so and he realised that the question of sentence was for the judge but agreed that he also realised that if he cooperated with the police he might get a reduction in sentence. He denied that that was the purpose of writing the letter but did not go on to say what the reason was. However when it was put to Cheng that he knew he was facing a very long sentence instead of answering the question he replied that he did not know how long he would have to serve but that his bosses had sent a solicitor's clerk to tell them that if they pleaded guilty the best lawyer would be instructed to mitigate for them. Despite efforts by both counsel and the trial judge the evidence about the approach by Tony Chan was repeated and finally Cheng gave a full explanation as to why he and Che wrote the letter and he said that they had been offered $500,000 each plus the services of the best lawyer in mitigation of sentence if they would not "disclose the matters concerning the bosses". This clearly meant that evidence was before the jury which defeated the object of severing the count of conspiracy to pervert the course of justice. This emerged during cross-examination of Cheng but evidence in chief was also given by Chief Inspector Tang Siu M ng, who was in charge of the case. Without objection she was asked what was the result of her investigation into the interview by Tony Chan with the two - witnesses and she said that Tony Chan was arrested and was charged with conspiracy to pervert the course of public justice. Moreover in his closing speech to the jury prosecuting counsel said that the conspiracy (to manufacture and traffic in drugs) came to light "after the intervention of the solicitors' clerk, Tony Chan, who you have heard about has been charged and is awaiting trial on a charge of perverting the course of justice. Cheng realised that what had been said to him on behalf of the bosses were in fact empty words ... they realised that they were being pawned, they were being used by the defendants, and so they wrote the letter, their own letters to the Narcotics Bureau ...". The reference to "the defendants" in that context was unfortunate as clearly it was synonymous with "the bosses" used immediately before.

8. Counsel for both applicants argue here that this evidence might well have been taken by the jury as showing that if the applicants were responsible for sending Tony Chan to interview Che and Cheng it was because they wished them to be silenced and was an indication of their guilt. For the Crown it is argued that at no point in their evidence did either Che or Cheng specifically say that it was the applicants who had sent Tony Chan to see them. However they have referred throughout the evidence to the applicants as "the bosses". Cheng's evidence relating to Tony Chan was that "the bosses had sent him". I think, therefore, that it was almost inevitable that, in the absence of a clear direction, the jury would have concluded that it was indeed the applicants who had sent Tony Chan to interview them in order to-prevent them giving evidence against the applicants and this was a powerful indication that the applicants were guilty o?the offences for which they stood trial.

9. It is conceded by Mr. Hemmings, for A2, that if there had been a direction to the jury that they were not to consider the evidence relating to the Tony Chan episode in that way but only as relevant to the motive of Che and Cheng in giving evidence he could not have argued this ground. There was no such direction but the trial judge did say in respect of the Tony Chan evidence "CHE did agree that this was in part one of the reasons for him giving evidence, that he did also mention that he felt the bosses had let them down. CHENG, I would say, was much more expansive on this point giving evidence of a visit to them in Lai Chi Kok of a solicitor's clerk with promises of compensation and wages on a plea of guilty, and being subsequently told that because of cash flow problems, the bosses could not come up to what they had promised."

10. There are other grounds of appeal which have been argued at length. I consider however that as the Crown's case at this trial depended entirely on the credibility of Che and Cheng, accomplices who had not then been sentenced and whose evidence was entirely uncorroborated, a direction that jury should consider the evidence relating to Tony Chan and his approach to the witnesses as only relevant as to their motives for giving evidence was essential.

11. Having considered argument from counsel we ordered that the applicants each be re-tried on a fresh indictment.

Macdougall, J.A.:

12. I agree that these applications should be allowed and the convictions quashed.

13. In my view the evidence of Chief Inspector Tang that there had been an investigation as a result of which Tony Chan was arrested and charged with conspiracy to pervert the course of public justice with regard to his visits to the remand prison to see Che and Cheng was inadmissible and highly prejudicial to both applicants.

14. There was no evidence that either applicant had been responsible for Tony Chan's alleged approaches to Che and Cheng.' Had there been such evidence the matter would have been different. It would then have been open to the jury on a :proper direction to conclude that the Tony Chan visits were, at the very least, evidence of consciousness of guilt on the part of the applicants.

15. Cheng's testimony that Tony Chan had visited him while he was awaiting trial and had made the various approaches that Tony Chan told him had emanated from the bosses, emerged as the result of incautious questioning by defence counsel. It seems that prosecuting counsel then called Chief Inspector Tang to give the evidence which she did in order to bolster Cheng's credibility.

16. In his closing speech to 'the jury prosecuting counsel said this:

    "It was put that while he (Cheng) was at Lai Chi Kok that he and Che got together to cook up a story together which was denied. It was put also that he, Cheng, had supplied to Che part of this invented story, the information which Che allegedly did not have about D1 and D2. You will recall his answer Che knew them before he. This conspiracy, ladies and gentlemen, came to light after the intervention of this solicitors'. clerk, Tony Chan, who you have heard about has been charged and is awaiting trial on a charge of perverting the course of justice. Cheng realised that what had been said to him on behalf of the bosses were in fact empty words. It was in that light that this conspiracy, which as I say, was difficult to unearth, this was how it came about because they realised that they were being pawned, they were being used by the defendants, and so they wrote the letter, their own letters to the Narcotics Bureau and that broke this circle of silence which, as I have mentioned to you a little while ago is one of the characteristics of conspiracies: that they are not hatched in the cold, hard light of day, and it needed somebody, for whatever reason, in this case for the very good reason that they no longer wanted to be used, that they came forward and the conspiracy came to light."

17. Since in the course of their testimony Cheng and Che had constantly referred to the applicants as "the bosses", it is difficult to avoid the conclusion that the jury would have thought that the applicants had instigated Tony Chan's approaches to the witnesses and that they had done so because they were guilty of the offences on which they were about to stand trial.

18. It was therefore incumbent on the judge to direct the jury in strong terms that there was no evidence that the applicant's had been responsible for any approaches that Tony Chan had allegedly made to the applicants and that the jury should completely ignore Chief Inspector Tang's testimony and prosecuting counsel's comments.

19. In view of his failure to do so this application must succeed. This is not a case for the application for the proviso.

Kaplan, J.:

20. I agree that the evidence of Chief Inspector Tang was inadmissible and that the failure of the judge to direct. the jury on this point, particularly in the light of prosecuting counsel's reference to it in his closing speech, is fatal to the upholding of these convictions. I agree that both appeals must be allowed and that both appellants should be re-tried.