HKSAR v. WONG TAK WAI AND OTHERS

CACC 220/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 220 OF 2011

(ON APPEAL FROM HCCC 302 OF 2010)

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J U D G M E N T

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Hon Lunn JA:

1. The three applicants seek leave to appeal their convictions on 23 May 2011 after a trial before Barnes J and a jury of various counts of conspiracy to traffic unlawfully in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

THE INDICTMENT

2. The indictment contained six counts alleging six separate conspiracies to traffic in a dangerous drug, namely methamphetamine or “ice”.  The six counts encompassed the overall period from about 1 October 2009 to 29 April 2010.  In Counts 1‑5 various combinations of the applicants, persons unknown and other stipulated co‑conspirators (Count 5) were alleged to have conspired together and with Pang Chun Kit.  He was 15 years of age at the material time and was alleged to have performed the role of courier of the ice.  The 1st and 2nd applicants were alleged to have been co‑conspirators in all the counts, save Count 2 in which the 1st applicant was the only defendant at trial named as a co‑conspirator.  All the applicants were alleged to have been co‑conspirators in Counts 5 and 6.

3. By the verdicts of the jury:

(1) the 1st applicant was convicted of Counts 2‑6 and was acquitted of Count 1;

(2) the 2nd applicant was convicted of Counts 3-6 and acquitted of Count 1 (by a majority of 5:2); and

(3) the 3rd applicant was convicted of Count 5 and acquitted of Count 6.

4. The 1st applicant was sentenced to 30 years’ imprisonment on each of the counts, which sentences were ordered to be served concurrently; the 2nd applicant was sentenced to 26 ½ years’ imprisonment on each of the counts, which sentences were also ordered to be served concurrently; and the 3rd applicant was sentenced to 19 years’ imprisonment on Count 5.

THE TRIAL

5. At the outset of the summing up the judge summarised the cases of the prosecution and the defence comprehensively and, with gratitude, we adopt it.  The judge referred to the applicants by reference to their nicknames and their numerical designation as accused persons in the indictment.

THE PROSECUTION CASE

6. Of the prosecution case, the judge said:[1]

“The prosecution case, in a nutshell, was that the 2nd accused Sang Gor who was a tenant of Ah Kit’s father, recruited Ah Kit to smuggle drugs, ‘Ice’, from Shenzhen to Hong Kong. The 1st accused, Fat Gor, was the boss, and Ah Kit first had a training session to see how ‘Ice’ was taped to one’s back. Then on three occasions, Ah Kit smuggled ‘Ice’ from Shenzhen into Hong Kong. Ah Kit was promised $10,000.00 per transaction, although he only was paid once, that is after the second pull, and the money was handed to him by Sang Gor. For the first two lots of ‘Ice’ he smuggled back to Hong Kong, he also delivered them to strangers in a hotel in Tsim Sha Tsui in accordance with Fat Gor’s instructions.

After Ah Kit had smuggled ‘Ice’ into Hong Kong from Shenzhen on three occasions, he was then asked by Fat Gor to deliver drugs to Australia. Fat Gor promised to pay him HK$30,000.00 for this pull. Ah Kit agreed.

After an aborted trip due to the bursting of the seam of one of the shoes containing ‘Ice’, Ah Kit successfully entered Australian territory on his second attempt, thus arriving on 2 January 2010.

There, in Sydney in early January, Ah Kit was engaged in delivering drugs to someone with the codename ‘Ah Leung’ and receiving a pair of shoes with 650 gms of ‘Ice’ inside from a middle‑aged man, (said to be Au Yeung Hin Cheong from a photographic identification by PW1) at the Four Seasons Hotel. He also received a total of AUD$90,000 from Ah Leung and finally delivered AUD$89,000 to the middle‑aged man in Brisbane.

While he was in Sydney on 22 January, after the Brisbane trip, the ‘Ice’ which he had stored in a safe inside the hotel room went missing. This ice was made up of the unsold portion of the 650 gms which Ah Kit had taken to Australia from Hong Kong plus the 650 gms collected from the Four Seasons hotel. Fat Gor accused him of hiding the ‘Ice’ and eventually he was taken by someone called ‘Uncle Yeung’ to a house at Dora Street at the end of February 2010 where he was beaten up and tortured by Uncle Yeung and the 3rd accused Ah Keung, or Keung Gor.

Ah Kit was finally taken back to Hong Kong on the 6 March 2010 and he was further beaten up in a flat in Sha Tau Kok closed area. Eventually, Ah Kit agreed to continue pulling drugs for Fat Gor and his group to pay off the price of the lost ice which Fat Gor said was worth HK$1.8 million.

Ah Kit did not want to smuggle drugs to Australia any more and he took an overdose of Cortal tablets. While in hospital, he befriended a nurse, Nurse Ng. Through this nurse, Ah Kit finally plucked up his courage to report to the police.

The 1st and the 2nd accused were arrested on 29 April. At the time, the 2nd accused was taking Ah Kit back to his own home, that is the 2nd accused’s home, after discovering that Ah Kit had not applied for a home visit permit from the Mainland, and the 3rd accused was arrested later, on 24 May at his own home, at the 3rd accused’s home.

So the prosecution case against the three accused was that they were involved in a number of conspiracies to traffic, smuggle drugs into Hong Kong and out of Hong Kong.  The prosecution points to six conspiracies and they can be summarised as follow the six charges.  [Bullet point outlay added.]

· The recruitment and the training session is the 1st charge.

· The first pull from Shenzhen is the 2nd charge.

· The second pull from Shenzhen is the 3rd charge.

· The third pull from Shenzhen is the 4th charge.

· The successful pull to Australia is the 5th charge and, finally,

· The plan to smuggle ‘Ice’ to Australia in May, on 1 May 2010, that is the final 6th charge.

The 1st accused, Fat Gor, the boss, he was involved in all six conspiracies.  The 2nd accused, Sang Gor, was involved in all but the first pull, that is only not the 2nd charge, all other charges.  And the 3rd accused was involved in the last two conspiracies concerning Australia.  That is the prosecution case.”

THE DEFENCE CASE

7. In the defence case, only the 1st applicant testified. Of the defence case, the judge said:[2]

“What is the defence case? The defence case, in a nutshell, was that there was no agreement at all to traffic dangerous drugs. The 2nd accused came to know Ah Kit as he was indeed a tenant of Ah Kit’s father and the 1st accused met Ah Kit at the 2nd accused’s home around 21 December 2009. At that time, Ah Kit had told both the 2nd and the 1st accused of his own plan to go to Australia, go to Sydney, to work in a movie. As far as the 1st and the 2nd accused were concerned, Ah Kit’s trip to Australia in early 2010 had nothing to do with them whatsoever. The 3rd accused met Ah Kit when the 1st accused brought Ah Kit back to their ancestral home in Sha Tau Kok, that is for the removal of the second‑hand washing machine; he only met him that once.

What happened was, when Ah Kit was unable to fly out to Australia on 1 January 2010, his own trip, he could not fly out because he was a minor, he did not have an adult to accompany him, so the 2nd accused forged his father’s signature, forged Ah Kit’s father’s signature purely to assist Ah Kit, to help him out so that he could go to Australia. After Ah Kit had arrived in Australia, he had contacted the 1st accused to ask the 1st accused to help him to come back to Hong Kong because he had no more money. Finally, the 3rd accused and this Uncle Yeung, Yeung King Wan, they just happened to be in Sydney for business and they then agreed to go and assist Ah Kit to buy the ticket and bring him back and the expenses were paid by the 1^st accused towards the airline ticket.

After Ah Kit had come back, he did not pay the 1st accused what he was owing to the 1st accused, so on one occasion when Ah Kit went to the 2nd accused’s home and the 1st accused was present, after talking for a while, Ah Kit then confessed he actually had committed a string of burglaries in Australia and he also had remitted HK$100,000.00 to his own mother and his aunt. On that occasion, the 3rd accused was not present at that meeting.

Afterwards, when the 1st accused then told the 3rd accused what had happened, that is the confession, the 3rd accused was very angry, so the 3rd accused then drove a vehicle, together with someone called Chu Pei and the 1st accused, that is at the end of March, to confront Ah Kit, to tell him off, and on that occasion, Chu Pei threatened to beat up Ah Kit if he did not pay the next day.

What happened was, the next day, Ah Kit was hospitalised and, according to the 1st accused, Ah Kit then confessed to the 1st accused that before he was hospitalised, he had stolen some $8,000.00 from the 2nd accused and that the 2nd accused had gone to the hospital to take some of the money back. That is what the 1st accused said to you, according to his version.

Then, according to the 1st accused, Ah Kit was also very angry that the 1st accused had been what he called snitching on him, that is telling the 2nd accused on him. In fact, according to the 1st accused, Ah Kit had stolen the money from the 2nd accused in order to pay him back. So the 1st accused should have just kept the money and do not say anything, and yet, he went and told the 2nd accused, that is why the 2nd accused went to the hospital, to get the money back. So Ah Kit was not happy and told the 1st accused off and that really made the 1st accused very angry.

What did he do? He then took a revenge. His revenge was to send Ah Kit back to Australia to face prison. Ah Kit also agreed that he would do that even though there was absolutely no evidence against him, but he agreed to do that, and that was the reason why tickets were paid by the 1st accused for Ah Kit to go to Australia on 1 May and that is also why there was the ticket for the 2nd accused to leave on the same day, to go with Ah Kit because the 2nd accused was to escort Ah Kit back to Australia to face prison.

The defence case was there was never any agreement about drugs.  None of them, no one had anything to do with drugs. There was no assault; the 3rd accused said he never assaulted, according to the case being argued, they said there was no assault, no threat and there was no incident of any assault in Australia or any assault in Hong Kong in Sha Tau Kok.”

8. Of the many points taken in the appeal, in this judgment I propose to address the issues raised in respect of Count 5, namely (i) jurisdiction; (ii) inadmissible evidence; and (iii) evidence of uncharged acts.  With respect, I agree with the judgment of Line J, in which he has dealt with all the other grounds of appeal.

COUNT 5:  (I) JURISDICTION (II) INADMISSIBLE EVIDENCE AND (III) EVIDENCE OF UNCHARGED ACTS

9. Count 5 alleged a conspiracy to traffic unlawfully in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.  The Particulars of Offence averred that on and between 1 December 2009 and 6 March 2010 the applicants conspired together and with Pang Chun Kit, Yeung King Wan, Ferrous and Au Yeung Hin Cheong to traffic unlawfully in 650 grammes of methamphetamine.

10. At the conclusion of submissions, counsel for all three applicants conceded that the Courts of Hong Kong had jurisdiction to try the offence alleged against the three applicants in Count 5.  At issue, was the ambit of the evidence of acts done outside Hong Kong that were admissible in proof of the alleged offence.  Further, it was submitted that the evidence adduced at trial by the prosecution of misconduct in Australia constituted “uncharged acts” outside the conspiracy alleged in Count 5.  It is to be noted that no objection at trial was taken to the admission of any of that evidence.  However, none of the counsel appearing for the applicants in this court appeared for them at trial.

11. Ultimately, the position taken by Mr Wong for the 1st applicant was that no evidence of conduct outside Hong Kong was admissible in proof of the offence.  It was contended that the evidence of Pang Chun Kit of the role of the 1st applicant in respect of the collection of 650 grammes of ice from the Four Seasons Hotel was inadmissible and grossly prejudicial.  It was not probative of the prosecution case as particularised, but tended to suggest a propensity to traffic unlawfully in dangerous drugs.  Complaint was made that no direction was given by the judge to the jury as to how to deal with the evidence let alone a direction not to use the evidence as establishing that propensity.

12. For his part, Mr Phillip Ross, for the 2nd applicant, took objection to the admissibility of evidence relating to trafficking in the second tranche of 650 grammes of ice, namely the sports shoes collected by Pang Chun Kit from Au Yeung Hin Cheong at the Four Seasons Hotel in Sydney.  That evidence was not probative of the prosecution case in Count 5.  Further, it was contended that, although there was no evidence of any role played by the 2nd applicant in that conduct, prejudice enured to the disadvantage of the 2nd applicant from the failure of the judge to give the jury directions: first, that there was no evidence of any involvement of the 2nd applicant and, secondly to disregard the evidence as establishing a propensity of those involved in that conduct, including the 1st applicant, to traffic unlawfully in dangerous drugs.

13. For her part, Ms Margaret Ng submitted, on behalf of the 3rd applicant, that the only conduct justiciable in Hong Kong was the conspiracy to export dangerous drugs from Hong Kong, which was complete at the time of Pang Chun Kit’s departure from Hong Kong on 1 January 2010.  In oral argument, she conceded that evidence of the sale in Australia of two tranches of the 650 grammes of ice exported by Pang Chun Kit was admissible in proof of Count 5.  By contrast, she contended that evidence in respect of the collection of the 650 grammes of ice from the Four Seasons Hotel, the handing over of $89,000 Australian to Au Yeung Hin Cheong at Brisbane Airport and the assault on Pang Chun Kit at Dora Street was conduct outside the triable conspiracy and inadmissible.

14. I am satisfied that the concession of counsel that the offence particularised in Count 5 was triable in Hong Kong was made correctly.  Clearly, the conspiracy contemplated trafficking unlawfully in 650 grammes of ice in two different jurisdictions, namely Hong Kong and Australia.  Many significant steps in furtherance of the conspiracy took place in Hong Kong: the ice was obtained packaged in sports shoes; then, an unsuccessful attempt was made by Pang Chun Kit to take the ice to Australia in December 2009; the failure was the result of the fastening on the shoes coming loose, exposing the concealed packets of ice and occurred before he reached the airport in Hong Kong; then, the ice was retrieved only to be returned to Pang Chun Kit concealed in a pair of sports shoes shortly before his re‑booked flight from Hong Kong on 1 January 2010; thereafter, the 1st applicant gave Pang Chun Kit regular instructions by telephone from Hong Kong in respect of the storage and disposal of the ice and the remittance of the proceeds.

15. In giving the opinion of the Privy Council in Liangsiriprasert v Government of the United States of America[3], a case concerned with a conspiracy to traffic unlawfully in dangerous drugs, Lord Griffiths quoted a passage from the judgment of La Forest J in the Supreme Court of Canada in Libman v R[4], in respect of the approach of the English courts to the justiciability of crime:

“The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred and where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.”

16. That passage, applied by Lord Woolf CJ in the judgment of the Court of Appeal of England and Wales in R v Smith (Wallace Duncan)[5], was cited with approval in the judgment of this court delivered by Stock VP in HKSAR v Krieger & Another[6], emphasis being placed on the phrase “a substantial measure of the activities constituting a crime”.

17. Clearly, the activities described above as having occurred in Hong Kong in furtherance of the conspiracy fall within the phrase “a substantial measure of the activities”, so that there was jurisdiction to try the offence in Hong Kong.

18. The sale in Australia by Pang Chun Kit, at the direction of the 1st applicant, of two tranches of the ice which Pang Chun Kit had taken from Hong Kong to Australia on 1 January 2010 clearly fell within the contemplated objective of the conspiracy to traffic unlawfully in the 650 grammes of ice, as did dealing in the proceeds of the sale of the ice, including the delivery of $89,000 Australian by Pang Chun Kit to Au Yeung at Brisbane Airport, on the ongoing directions of the 1st applicant. I am satisfied that those acts were acts in furtherance of the conspiracy alleged in Count 5 and, albeit that they were acts committed outside the jurisdiction of Hong Kong.  Evidence of those acts was admissible in proof of the conspiracy formed in and carried out in substantial measure in Hong Kong and thereafter directed from Hong Kong by the 1st applicant.  The fact that the conduct undoubtedly constituted separate criminal offences in Australia does not render the evidence inadmissible per se in proof of a conspiracy to traffic unlawfully in dangerous drugs formed in Hong Kong.

19. The collection of the second tranche of 650 grammes of ice from the Four Seasons Hotel in Sydney stood in stark contrast.  The “Particulars of Offence” of Count 5 stipulate that the quantity of the ice the subject of the conspiracy to be 650 grammes only.  Clearly, that is a reference to the 650 grammes of ice exported from Hong Kong by Pang Chun Kit.  So, it appears that the second tranche of 650 grammes of ice was in fact the subject of a second and separate conspiracy to traffic unlawfully in dangerous drugs in Australia, which concerned at least Pang Chun Kit, Au Yeung and the 1st applicant.

20. Regrettably, at the trial the prosecution did not articulate specifically the basis on which it led the evidence, although the fact that it proposed leading the evidence was made clear in the written opening provided to the parties in advance of the opening to the jury and made good in the opening to the jury itself.  As noted earlier, no objection whatsoever was raised by any of the counsel representing the three applicants at trial to the prosecution leading that evidence.  For her part, the judge did not raise the matter either.

21. The probative value of the evidence in relation to the 650 grammes of ice collected by Pang Chun Kit from Au Yeung at the Four Seasons Hotel lay, first in the fact that its subsequent total loss, together with the 271 unsold grammes from the ice taken by Pang Chun Kit to Australia, constituted a very significant loss of a valuable commodity, namely ice worth $1.8 million and, secondly with the support that it lent to the evidence of Pang Chun Kit in respect of Au Yeung having regard to other independent evidence of his movements to, within and from Australia.

22. The first matter was highly relevant to the issue of why it was that the 3rd applicant had come to Australia, in particular to the evidence of Pang Chun Kit of the assault meted out to him by the 3rd applicant and Uncle Yeung at the Dora Street bungalow.  The effect of that evidence was to paint a picture of a sustained effort directed by the 1st applicant and implemented by the 3rd applicant and Uncle Yeung to force Pang Chun Kit to disclose the whereabouts of the missing ice.  The fact that all of the second tranche of 650 grammes of ice was missing, it representing  more than two thirds of the whole of the amount of missing ice, was relevant to the considerable lengths to which the 1st and 3rd applicants had gone to in order to recover the missing ice.

23. The second matter was relevant to the evidence of Pang Chun Kit, namely that the man from whom he had collected the ice in the Four Seasons Hotel in Sydney was the same man to whom he had passed $89,000 Australian at Brisbane Airport some days later.  Pang Chun Kit had identified that man from photographs shown to him by the police as being Au Yeung Hin Cheong.  Ms Chak confirmed that Au Yeung Hin Cheong was a member of a tour party, which she escorted from Hong Kong to Australia from 11 to 17 January 2010.  The tour party had stayed at the Four Seasons Hotel in Sydney on the night of 11 January 2010.  Au Yeung occupied a room by himself.  The tour party had left Australia from Brisbane Airport on the 17 January 2010.  As the judge directed the jury in her summing up, if accepted by the jury, that evidence supported the evidence of Pang Chun Kit.[7]

24. Pang Chun Kit’s evidence was that he had collected the 650 grammes of ice from Au Yeung at the Four Seasons Hotel on the night of 11 or 12 January 2010 or about then and that, having arrived in Brisbane at 06:30 on the morning of 17 January 2010 he had gone to the airport by taxi where he passed over $89,000 Australian to Au Yeung.  Ms Chak’s testimony was that on 17 January 2010 at Brisbane Airport, after she informed the tour group of the need to fill out a declaration form in respect of the export of over $10,000 Australian, at his request she had assisted Au Yeung to make such a declaration.  Again, in her summing up the judge invited the jury to have regard to that evidence as relevant to the evidence of Pang Chun Kit.[8]

25. The prejudicial effect on the three applicants of the evidence of Pang Chun Kit’s collection of the 650 grammes of ice from the Four Seasons Hotel and his subsequent dealings with it, was of most potential impact to the 1st applicant.  It placed him as the person directing his courier, Pang Chun Kit, to collect and store the consignment of ice and of having done so on an ongoing basis.

26. The context in which the prejudicial effect is to be measured is by having regard to the evidence implicating the 1st applicant in the multiple counts on the indictment.  Pang Chun Kit’s evidence was to the effect that in October 2009, on the introduction of the 2nd applicant, he had been recruited as a drug courier by the 1st applicant.  Thereafter, in the following several months at the detailed direction of the 1st applicant he had travelled from Hong Kong to Shenzhen in the Mainland, collected ice and smuggled it back into Hong Kong on three occasions.  On those three occasions, he had smuggled a total of 3.3 kg of ice into Hong Kong.  Then, he had been recruited by the 1st applicant to smuggle ice to Australia.  Although the first attempt to do so in December 2009 failed, because the fastening on the shoes loosened and the concealed packets of ice became visible, the 1st applicant persisted with the plan, arranging for Pang Chun Kit to fly to Australia on 1 January 2010.

27. In that context, it is clear that the evidence of the 1st applicant’s role in respect of the 650 grammes of ice collected from the Four Seasons Hotel by Pang Chun Kit, albeit a separate transaction, was simply consistent with the evidence of his role in the other transactions, namely of directing Pang Chun Kit in trafficking unlawfully in ice on multiple occasions over a period of months.  In all the unlawful trafficking in ice the 1st applicant was the puppet master and Pang Chun Kit the puppet.  The real issue was whether or not the jury accepted Pang Chun Kit’s evidence of the role occupied by the 1st applicant.

28. Having regard to all the circumstances, I am satisfied that the probative value of the evidence in respect of the 1st applicant of the collection of the 650 grammes of ice by Pang Chun Kit from the Four Seasons Hotel outweighed its prejudicial value.

29. There was no evidence that the 2nd or 3rd applicants were in any way at all involved in the collection by Pang Chun Kit of the 650 grammes of ice from the Four Seasons Hotel and its subsequent storage.  That much was reflected in the judge’s summing up. There was no evidence that the 2nd applicant was in any way involved in the attempts by the 1st and 3rd applicant’s together with Uncle Yeung (Yeung King Wan) to recover the missing ice.  No prejudice enured to the detriment of the 2nd applicant from the evidence in respect of the second tranche of 650 grammes of ice.  No direction was required of the judge in respect of propensity.

THE ROLE OF THE 3RD APPLICANT

30. Of the role of the 3rd applicant in Count 5, the judge reminded the jury of the evidence of Pang Chun Kit in respect of the 3rd applicant, in particular:[9]

“There was indeed no mention of the 3rd accused by ‘Ah Kit’ until he was taken to the bungalow at Dora Street, which was towards the end of February, almost 2 months after ‘Ah Kit’ had exported the 650 grammes of ‘Ice’ from Hong Kong into Australia.”

31. It was Pang Chun Kit’s evidence that, having been taken to Dora Street by Uncle Yeung, to his surprise he had been attacked by the 3rd applicant, in which attack Uncle Yeung joined subsequently.  As the judge reminded the jury, Pang Chun Kit testified that the 3rd applicant said to him, “You have taken Fat Gor’s (the 1st applicant) goods, don’t pretend.”[10]  Then, as the judge went on to remind the jury, in a telephone call played on the speakerphone the 1st applicant told Pang Chun Kit, “(to) own up, confess where he had hidden the goods and to surrender the goods as soon as possible.”[11]

32. The nub of the prosecution case against the 3rd applicant was identified by the judge in her summing up as being:[12]

“If you accept ‘Ah Kit’s’ evidence, the 3rd accused and ‘Uncle Yeung’ were sent by the 1st accused to put pressure on ‘Ah Kit’ to return the lost ‘Ice’. In all the circumstances, can you draw the only reasonable inference that the third accused was a party to the conspiracy to traffic the 650 grammes?”

33. It was suggested in argument that was not the prosecution case.  It is correct that the prosecution had opened its case on the basis that the 1st applicant had staged the apparent theft of the ice from the safe in Pang Chun Kit’s hotel room, namely that he “arranged somebody to steal it”.[13]  Counsel informed the jury that the 1st applicant was the only person other than Pang Chun Kit who knew the combination number to the safe.  It was suggested that the motive was to cajole Pang Chun Kit into continuing to operate as a courier of dangerous drugs until “he’d paid off the value of the drugs”.[14]  Furthermore, in cross‑examination of the 1st applicant by counsel for the prosecution, it had been suggested that he “faked the theft of the drugs from the safe.”  The 1st applicant denied the suggestion “. . . it’s false, it’s not true.  And that is an invention by Pang Chun Kit.”[15]  The motive suggested in the opening speech was not put to the 1st applicant.  So, in the result there simply was no evidence that the 1^st applicant had staged the theft of the ice.

34. I do not accept the submission made on behalf of the 3rd applicant that in its closing speech the prosecution maintained the theory advanced in opening and put in part in bare terms to the 1st applicant in cross‑examination.[16]  Certainly, it was not asserted in terms nor, in our judgment, is it to be inferred from what was said.  Further, it is to be noted that the issue of the 1st applicant having staged the loss of the ice from the hotel safe was not addressed at all in the closing speech made on behalf of the 1st applicant.  Similarly, the single question to that effect posed in cross‑examination of the 1st applicant was not adverted to in the judge’s lengthy recitation of the 1st applicant’s evidence in the summing up.[17]

35. I am satisfied that the issue had become a dead issue.  Having been raised with the 1st applicant in cross‑examination, and having been met with a simple denial, the prosecution did not pursue the matter or seek to rely on it in anyway. Perhaps, the judge might have reminded the jury of that fact in those short terms. On the other hand, to do so perhaps was to remind the jury of a non‑issue and burden them unnecessarily.  Clearly, that is to be avoided. The judge’s failure to remind the jury that evidence was not an irregularity.

36. As the judge reminded the jury, the 3rd applicant did not leave Hong Kong to travel to Australia until the end of February 2010, returning a few days later:[18]

“From the movement record of the 3rd accused and Yeung King Wan together with the evidence of the relevant travel agent and the staff from Cathay Pacific, the 3rd accused and Yeung King Wan left Hong Kong on 26 February for Sydney. The 3rd accused returned to Hong Kong on the 4th March, while Yeung King Wan returned on the 6th March, and in the evidence I think you can see that it is with ‘Ah Kit’. So the 3rd accused could only have been in Australia from 27 February to 4 March, which amounts to six days, five nights.”

37. In that context, the issue taken before this court was whether or not at that time, namely late February and early March 2010 there was an extant conspiracy to traffic unlawfully to which the 3rd applicant could become a party.  Or, was the conspiracy complete, it having come to an end when the dangerous drugs were exported from Hong Kong, so that evidence of the misconduct of the 3rd applicant in Australia was irrelevant to the offence particularised in Count 5.

38. As noted earlier, the period of time over which it was contended that the conspiracy the subject of Count 5 had existed was stipulated to be on and between about 1 December 2009 and 6 March 2010.  In that context, the judge had given the jury the standard direction as to the circumstances in which a person might join a conspiracy and/or drop out of the conspiracy:[19]

“When criminal conspiracies are formed, it may well happen that one or more of the conspirators is more deeply involved in and has greater knowledge of the overall plan than the others. Also, a person may agree to join in the conspiracy after it has been formed, or he may drop out of it before the crime had been fully carried out.

Providing you are sure, in the case of any accused, that he did, at some stage, agree with one or more of the named co‑conspirator in the count that the crime in question, that is traffic in a dangerous drug, should be committed and, at that time, intended that it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness or precisely when he became involved, he is guilty as charged.”

39. I am satisfied that it was open for the jury to find that, as evidenced by the two sales made by Pang Chun Kit of part of the ice which he smuggled out of Hong Kong and into Australia, the object of the conspiracy was to smuggle the ice out of Hong Kong and into Australia, distribute it in Australia, storing it safely until that was done, and to deal with the proceeds of sale.  The issue for the jury was, as the judge directed them, whether or not they accepted the evidence of Pang Chun Kit that“the 3rd accused and ‘Uncle Yeung’ were sent by the 1st accused to put pressure on ‘Ah Kit’ to return the lost ‘Ice’”.  It was in that context, that the judge posed a series of rhetorical questions to the jury as to the role of the 3rd applicant:[20]

“In all the circumstances, can you draw the only reasonable inference that the 3rd accused was a party to the conspiracy to traffic the 650 grammes? Is it a reasonable inference that the 3rd accused and ‘Uncle Yeung’ just went to beat ‘Ah Kit’ up on instruction of the 1st accused, and they had absolutely nothing to do with the conspiracy, nothing to do with the importing of the 650 grammes? Or is it the only reasonable inference is that the 3rd accused and Yeung King Wan were parties to this conspiracy to traffic the 650 grammes of ‘Ice’ out of Hong Kong into Australia? It is a matter for you.”

40. I am satisfied that the judge was correct in leaving the matter to the jury on that basis, namely that, if they were satisfied that the 3rd applicant’s role was to seek to recover the lost ice, they were entitled to conclude that he had become a party to the conspiracy to traffic unlawfully in the 650 grammes of ice as particularised in Count 5.

UNCHARGED ACTS

41. The authorities to which counsel drew our attention in respect of concerns expressed by courts of the impermissible prejudice arising from evidence in respect of “uncharged acts” all arose from the trial of substantive offences, not that of a conspiracy.[21]  Many of the cases are concerned with sexual offences.  One concern, in that context, is that the offences that are alleged against a defendant are clearly differentiated, so that the defence knows the allegations it has to meet and is not embarrassed by being confronted at trial with additional alleged misconduct.  With respect to counsel, those authorities are not helpful to our consideration of the admissibility of evidence said to be ouvert acts in furtherance of a conspiracy to traffic unlawfully in dangerous drugs.  As noted earlier, the fact that selling dangerous drugs, dealing with the proceeds of their sale or committing assaults in an attempt to recover missing dangerous drugs are separate substantive criminal offences, for which no charges have or could be laid in Hong Kong, is not determinative of whether or not that evidence is admissible in proof of the alleged conspiracy formed in Hong Kong and the subject of Count 5.  It is to be noted that the prosecution made it clear from the outset that it would lead evidence of all that misconduct in the trial.

CONCLUSION

42. In the result, I am satisfied that all of the impugned evidence was admissible and that the judge’s directions in her summing up in respect of that evidence were entirely appropriate.

Hon Line J:

43. I deal now with the remaining grounds of appeal by applicants.

THE FIRST APPLICANT

44. On 4 December 2013 perfected grounds of appeal were lodged on behalf of the 1st applicant, replacing his own homemade grounds. This left the respondent with little time to respond.  The appeal had already been vacated in September 2013 due to the late filing of the 2nd applicant’s grounds.

45. Whilst it is understood that these new grounds were prepared under pressure of time due to no fault of the lawyers, one cannot avoid saying that they are in parts difficult to follow and comprehend.  They do not follow the Practice Direction.  If they had been filed in time we would have demanded that they be redrafted.  Given the prejudice to the other applicants we decided to carry on as best we could with them.

46. The first ground of appeal advanced on behalf of the 1st applicant in essence complains that the judge did not “adopt a global approach when directing the jury on assessing the credibility and reliability of Pang Chun Kit”.  It seems to be based on the judge giving the jury the standard direction that they must consider the evidence for and against each applicant on each count separately because the evidence against each one of them was not the same[22] and her failure to tell the jury that they had to consider whether Pang Chun Kit told the truth about his recruitment as well as the drug trafficking.

47. The judge had spelt out that the only evidence to show involvement in the conspiracies came from Pang Chun Kit.[23]  At AB 176P she said this:

“So ask yourself had ‘Ah Kit’ fabricated stories against each of the three accused, making up false accusations and weaving false accusations with true actual incidents; in other words, telling you lies mixed with truths? Do you accept his explanations why he had given so many inconsistent versions to the police prior to his giving evidence in court? Do these inconsistencies make you doubt ‘Ah Kit’s’ credibility and reliability? Can you safely rely on his evidence to convict any of the accused in respect of charges they each face?”

48. It was quite clear that the jury were directed to consider the credibility of Pang Chun Kit in the round.  The direction to consider each defendant and count separately as the evidence was not the same for all was, of course, not inconsistent with them doing so and was a necessary direction.  There was no obligation on the judge to tell the jury that they had to be sure of how Pang Chun Kit said he was recruited.  Indeed, she was right to tell them, as she did, that what they accepted and what they rejected was a matter for them.

Inconsistent verdict

49. Ground 2 asserts that the verdict of not guilty on Count 1 was inconsistent with the verdicts on the remaining five counts, and those verdicts were unjustified as the evidence on all six counts came from Pang Chun Kit.  Particulars are then given which are difficult, if not impossible, to relate to the assertion.

50. The verdict on Count 1 was not inconsistent with the other verdicts of guilty.  Even if it was the case that a juror thought Pang Chun Kit lied about his recruitment, he would still have been entitled to find he told the truth about other matters.  Common sense tells one that it would have been highly unlikely that the jury did doubt Pang Chun Kit’s good faith in respect of Count 1 as they must have accepted it in relation to the other counts.  We cannot successfully speculate as to why the jury returned the verdict of not guilty on Count 1, although accuracy rather than credibility suggests itself.  That does not matter.  All that matters is that it was not a verdict inconsistent with guilt on the remaining counts.  The argument advanced wrongly equated the lack of a readily perceivable explanation for the verdict with it being logically inconsistent with the other verdicts.

51. The particulars beneath this ground complain that the judge wrongly directed the jury that the fact that both Pang Chun Kit and the 3rd applicant and Yeung King Wan were all in Australia at the same time supported Pang Chun Kit’s claim that they were with him and that she wrongly directed the jury that various hotel receipts and train tickets supported Pang Chun Kit’s claim that he had stayed there or taken the journey, as their contents were hearsay.

52. The judge set out the evidence putting the relevant parties in Australia at the same time and said this:[24]

“But what ‘Ah Kit’ said as to the 3rd accused had done at Dora Street, how he was beaten up, how he was tortured and so on, you only have ‘Ah Kit’s’ word for it. There is no supporting evidence apart from ‘Ah Kit’s’ own words to you.

Now, the various receipts from the hotels, train tickets and so on, again, they support ‘Ah Kit’s’ evidence that he did stay in those hotels and he had gone to Brisbane.  Why he was there in Australia in the first place and why he went to Brisbane you have only his words, no other evidence to support what he says.”

53. There is nothing in the two complaints.  The judge made clear that no other evidence supported Pang Chun Kit concerning anything incriminating in Australia.  The receipts and tickets were items of real evidence.  It was clear that it was his possession of such documents and not their testimonial use that was significant, but again the judge was at pains to point out that as regards anything incriminating it all depended on the unsupported word of Pang Chun Kit.

Inconsistent statements

54. The third ground complains that the judge wrongly directed the jury concerning how they could use Pang Chun Kit’s previous inconsistent statements as she did not tell them that inconsistency can arise by omission.  The passage is to be found at AB 41F‑L.  It ends with the judge saying that the only purpose of looking at the inconsistent material was to show inconsistency and not consistency. There was nothing said to exclude inconsistency by Pang Chun Kit omitting something important in the material which the jury would have expected him to have then related.  There is nothing in this point.  The exercise of combing through the transcript to find examples of omission which the judge did not specifically sum up was thus without value.  I deal with the balance of the summing up later in these reasons.  It was the case that when summing up the evidence of Pang Chun Kit the judge made numerous references to his cross‑examination where it was shown that he had failed to mention matters before giving his evidence.

Insufficient warning concerning Pang Chun Kit

55. The fourth ground complains that the judge gave insufficient warning to the jury concerning Pang Chun Kit’s evidence.  The judge firstly warned the jury in these terms:[25]

“‘Ah Kit’ admitted he had lied to his father. When he went to Australia he lied to his father. He did not tell his mother the whole truth about his trip to Australia in January 2010, letting his mother think that he was in Hong Kong, told his father he was going to China to stay with the mother. ‘Ah Kit’ is therefore capable of lying, and although he denied he had stolen from his father or uncle relating to the rental to be collected, he did admit he had not told them beforehand that he would take the money and then use it for the separation fee. So you may think that he was dishonest or at least not telling the whole truth to those concerned beforehand. He had also given inconsistent versions of what had happened, and I have already detailed all the inconsistencies to you last Friday. Although he had given explanations why there were inconsistencies, but nevertheless he had given inconsistent versions before he came to court.

So in view of what I have just told you, he gave evidence under immunity, he was an accomplice and he was capable of lying, being dishonest, and all those inconsistent versions he had given you previously, you should exercise caution before you act on the evidence of ‘Ah Kit’ to convict any of the accused when his evidence of their involvement in the drug trade was not supported by any other evidence.”

And then:[26]

“When you consider the evidence of ‘Ah Kit’, do bear in mind to exercise the caution I have already directed you earlier, because he is an accomplice, he is giving evidence under immunity, all the inconsistencies you have been shown, to be capable of lying.”

56. Warning juries about the evidence of accomplices is a matter of discretion for the trial judge and the terms of any direction will depend on the circumstances of each case.  The scheme adopted by the judge of reminding the jury of the cross‑examination as she related Pang Chun Kit’s story was eminently fair and it highlighted the attacks made upon him.  In this context the repeated directions that the case of each defendant depended on the unsupported word of Pang Chun Kit and that they should therefore proceed with caution was again eminently fair.  Nothing suggested to us approaches a demonstration that the judge exercised her discretion wrongly.

57. In support of this ground counsel drafted four and a half pages of closely typed particulars.  They are not always easy to follow.  The general idea seems to be to criticise the judge for failing to highlight various factual matters, characterise them as lies, and warn specifically in relation to each.  These matters are more properly to be considered when, at the behest of other counsel, consideration is given to claims that the summing up lacked balance.

Misdirections

58. The 1st applicant’s fifth ground claimed various misdirections.  The first deals with a suggestion that it was wrong for the judge to tell the jury that they could take into account the demeanour of Pang Chun Kit.  It was suggested that they should have been told that they could only do so as a last resort.  This is plainly wrong.  The point taken was allied to the judge referring to Pang Chun Kit’s emotional reaction in the witness box.

59. The judge warned the jury at the commencement of the summing up not to base their findings on any emotional reaction to the evidence and to put aside sympathy and prejudice.[27]  Toward the end of the summing up she said this:[28]

“When I reminded you of ‘Ah Kit’s’ evidence last week, I reminded you how he had cried in court when he described ‘Uncle Yeung’ pouring down a 1.5 litre bottle of Coke down his nose with the 3rd accused pressing him down.

Now, I must warn you again that you are not to base your findings of fact or your verdict upon any emotional reaction to the evidence in this case. You are to base your finding of fact and your verdict on an objective appraisal of the evidence.

I reminded you of that part of the evidence because you might find the demeanour of ‘Ah Kit’ assists you to decide whether he was telling you the truth.  Was he exhibiting a spontaneous reaction when he was recalling an actual event?  Or was he such a good liar, such a good actor, that he conjured up the tears to deceive you?  It is a matter for you.”

60. I reject the criticism of this passage.  I judge it to have sensibly warned the jury against basing a verdict on emotional reaction whilst sensibly directing them to a central issue: was Pang Chun Kit’s testimony in this regard an act or a true reaction to an actual event?

61. The second point taken in ground 5 was that the judge had not set out for the jury some six matters which were said to be inherent improbabilities in the evidence of Pang Chun Kit such as it being unreasonable for drug traffickers to use a 15‑year‑old and that he was willing to work for some time without pay or that he failed to make a report to the police earlier and like matters.

62. It is not the job of a judge to list out one side’s jury points under the guise of dealing with inherent probabilities, especially when those points, along with a host of others, were all matters there for the consideration of the jury following upon a proper summary of the evidence, the identification of the issues and the relevant directions of law.  This jury had the benefit of a comprehensive review of the evidence.  The issue was whether they believed Pang Chun Kit.  There is nothing in the suggestion that the judge failed to give directions about inherent improbabilities.

THE SECOND APPLICANT

Co‑conspirators rule

63. The first ground of appeal in relation to the 2nd applicant was that the judge gave no direction to the jury concerning the co‑conspirators rule, in particular failing to tell the jury that they should not convict on the basis of the acts and declarations of other conspirators.

64. This ground appeared for the first time in amended perfected grounds of appeal dated 30 September 2013, accompanied by written submissions of the same date, nine days before the appeal was first listed.  There had been a direction that counsel file his written argument 28 days before the hearing.  The hearing before a differently constituted court was vacated.  As far as we can tell from the papers this was the first mention of the co‑conspirator’s rule in the entire history of case.

65. Essentially, the resolution of the issues in the trial depended on whether or not the requisite number of jurors were sure Pang Chun Kit spoke the truth about dealing with the consignments of ice, the subject of Counts 2‑5 and the involvement of the three defendants in it.  The jury was left in no doubt about this as the summing up repeatedly posed it as the determinative question.  By their verdicts they demonstrated that they were sure.  If they had doubted Pang Chun Kit’s good faith on the thrust of the prosecution’s case verdicts of not guilty on all counts became inevitable.

66. As is apparent from the summary of the case there was direct evidence in relation to the 2nd applicant of his involvement in the trafficking particularized in Counts 3‑6 from the mouth of Pang Chun Kit, for Pang Chun Kit had testified, not least, that the 2nd applicant had paid him $10,000.00 for the second run; that the 2nd applicant handed him the shoes containing the ice in respect of both Counts 4 and 5; and that the 2nd applicant was present at the planning at the Garden Restaurant of the proposed drug run the subject of Count 6 and there passed on to Pang Chun Kit the balance of the connected air fare in relation to it.

67. We are not surprised that there was no mention of the co‑conspirator’s rule below for there was never any realistic prospect of the jury convicting on the basis of the acts and declarations of others and not the direct evidence of Pang Chun Kit.  There was no need for any direction or warning in this regard and the giving of such was unlikely to have aided the jury and may, indeed, have diverted them form the task in hand of deciding whether or not Pang Chun Kit had invented the involvement of the 2nd applicant in the trafficking of ice.  Once they were sure he told the truth in relation to the ice, as they must have been, the acts and declarations became admissible.  If they were not sure then not guilty verdicts were inevitable.  The idea of convictions on the basis of Pang Chun Kit not establishing a prima facie case against the 2nd applicant on Counts 3‑6 but based on the evidence of the acts and declarations of others is, in our judgment, wholly unrealistic.  The parts of the evidence relied upon as being such acts and declarations in furtherance of any conspiracy were truly peripheral.

68. Further, the judge told the jury that the only evidence that the three defendants conspired to traffic in dangerous drugs came from Pang Chun Kit and that there was no other evidence to show it.[29]  Mr Ross conceded that warning the jury not to convict on the basis of the say so of others would only arise if that could be an indispensible step towards their conviction on any count.  The idea that it could have been so is one I have no hesitation in rejecting.

69. The acquittal, by a majority of 5 to 2, of the 2nd applicant on Count 1, which embraced the recruiting of Pang Chun Kit, was harnessed as part of an argument that proceeded on the basis that two of the jurors had found the 2nd applicant guilty and they may have used what the 1st applicant said on the telephone to recruit Pang Chun Kit, against the 2nd applicant in consideration of the other counts which he faced.  It was said that it could have been indispensible to convictions on those counts. The evidence is at transcript AB 226H‑227H. The point was that the telephone call was between the 1st applicant and Pang Chun Kit, and not the 2nd applicant, and that the conversation spelt out in the clearest terms that Pang Chun Kit was being recruited to traffic in ice.

70. Firstly, the majority verdict did not mean that two jurors had found the 2nd applicant guilty: they may have remained undecided.  Secondly, the jury would have been entitled to take into account all of the evidence concerning recruitment, whatever their verdict on Count 1, as there were obvious prima facie cases of conspiracy established on the other counts, letting in the declarations of others.  It appears, and we are not surprised, that no counsel concerned in the trial ever thought to argue otherwise.  Thirdly, the argument had lost touch with reality when it is remembered that the evidence of Pang Chun Kit was that, the day prior to the phone call with the 1st applicant, the 2nd applicant had told Pang Chun Kit that the job proposed for him was to “pull” drugs from the Mainland to Hong Kong, and that immediately after the call, and on hearing of acceptance, he told Pang Chun Kit that he was in luck.

71. It is pertinent to mention that the reason for the 2nd applicant’s acquittal on Count 1 will necessarily remain unknown but that we can infer that it was highly unlikely that they entertained a doubt as to whether Pang Chun Kit was inventing a false case concerning the trafficking of ice, given the convictions on the other counts.  However, even if it were the case that they thought he had lied concerning the subject matter of Count 1, the jury were entitled to accept or reject the different parts of his evidence.

72. In a word, the issues in the trial and the way in which it was run simply did not make the giving of the suggested direction appropriate.

Unfair and unbalanced summing up

73. The 2nd applicant’s second ground of appeal complained that the summing up was unfair and unbalanced.  Four particulars were relied upon.

74. The first rightly asserted that the judge directed the jury that they “should have no difficulties” in finding the 2nd applicant guilty of Count 1 if they found certain facts proved.  The second particular complained that the judge directed that facts adduced in relation to the subject matter of Count 1 could be used in their consideration of, specifically, Count 3 and so on the other counts.

75. The relevant part of the summing up read thus:

“Now, people may act together to bring about a particular result in such as way to leave no doubt that they are carrying out an earlier agreement. This is where the inference comes in. You can tell from the way they act, the way they talk and so on, as to leaving no doubt that they are carrying out an earlier agreement. So accordingly, in deciding whether there was a criminal conspiracy and, if so, whether the accused whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period – which is usually but not necessarily the period covered by the count – including the behaviour of each of the accused and the alleged conspirators. If having done that you are sure that there was a conspiracy and that he was a party to it, you must convict. If you are not sure, you must acquit.

To give an illustration, you have heard that it was the 2nd accused who had recruited ‘Ah Kit’ to traffic ‘Ice’ from the Mainland to Hong Kong. The boss was the 1st accused. And you heard that the 2nd accused even congratulated ‘Ah Kit’ after ‘Ah Kit’ told him that ‘Fat Gor’ had accepted him, and it was the 2nd accused who asked ‘Ah Kit’ for his shoe size before he later went up to Shenzhen and found a pair of shoes that fit his size to wear to come back to Hong Kong.

Now, if you accept all this and find these facts proved, you should have no difficulties in finding the 2nd accused guilty of the 1st count. Now, if you do find the 2nd accused guilty of the 1st count, you cannot automatically find him guilty of the other counts that he faces, because you must consider the evidence for and against him in respect of each count.

Now, if you find it is a proved fact that the 2nd accused did bring $10,000.00 to ‘Ah Kit’ in the circumstances he described, then you can use the proved fact of the circumstances he described, then you can use the proved fact of the circumstances of the recruitment earlier on and getting the shoe size of ‘Ah Kit’, which I have outlined, together with all the circumstances of the payment of $10,000.00, to see if you can draw the only reasonable inference that the 2nd accused must be a party to the conspiracy to traffic in a dangerous drug in the 3rd count; that is, the second pull.”

76. The judge was quite entitled to tell the jury that they should have no difficulty in returning a verdict of guilty on the basis of certain facts, provided that she was right and left the finding of those facts to them.  She was right.  If the facts which she mentioned were proved then her comment was both correct and justified.  She also made it clear that the finding of those facts was a matter for the jury.  Indeed, very shortly thereafter[30] she repeated her direction of proceeding with caution in relation to the evidence of Pang Chun Kit, reminding them of his immunity, all his inconsistencies and his capability of lying.

77. The written submission repeated the mistaken view that two jurors had found the 2nd applicant guilty of Count 1 and contained the astonishing assertion that a judge was not entitled to help a jury with the reasoning process between evidence which they might accept and their verdicts.  Of course, it goes without saying that if Count 1 had not appeared on the indictment the evidence of Pang Chun Kit as to how he became involved in trafficking ice on the other counts would have been led without any possible objection.  It was suggested in this regard that the judge had given the jury “a route map to conviction” and that she had entered the arena.  She had done no such thing.

78. Mr Ross drew our attention to the judgment of the Court of Criminal Appeal of New South Wales in Tomislav Markuleski [2001] NSWCCA 290.  Counsel for the 1st applicant also sought to rely on it.  The case argues that “it will often be appropriate” to direct a jury  in “word against word” cases on the lines that if the jury had doubts about the witness for the prosecution on one count that they should bear this in mind when considering any other counts (Spigelman CJ page 223, paragraph 188).  It is to be noted that the concerns in that jurisdiction arose from, but were not confined to, sexual assault cases. We have already adverted to how the judge addressed Pang Chun Kit’s credibility in the round.  In the circumstances of Hong Kong and, in this case in particular, we see nothing to be gained by requiring the giving of a direction to such obvious effect.  We note that the concerns which gave rise to the suggested direction in New South Wales do not appear to have occurred in England and Wales, since no such similar direction is to be found in the Crown Court Bench Book.

Insufficient warning concerning Pang Chun Kit

79. The third and fourth particulars complained that the judge failed to direct the jury that it may be dangerous to convict on the uncorroborated evidence of Pang Chun Kit and failed to direct them by reference to the evidence as to why they should exercise care before accepting Pang Chun Kit as a credible witness.

80. These two particulars deserve short shrift.  Firstly, there was no obligation to warn of danger.  As we have already said, counselling caution, as the judge did, was quite adequate.  Secondly, the summing up, read as a whole, assiduously set out all the weaknesses of Pang Chun Kit’s evidence and  related them to the warning she gave of proceeding with caution when the witness was shown to have been inconsistent, and to have told lies.

Ambiguity in count 5

81. The 2nd applicant also claimed that the evidence concerning the collection of 650 gms of ice by Pang Chun Kit at the Four Seasons Hotel gave rise to a latent ambiguity and so it cannot be known if a proper majority of jurors found a conspiracy to traffic in the 650 gms exported from Hong Kong as opposed to the 650 gms collected from the hotel.  I deal with this argument in relation to the 3rd applicant’s grounds.  In short the judge made it perfectly clear that the jury had to be satisfied of the former.

THE THIRD APPLICANT

Insufficient warning concerning Pang Chun Kit

82. The 3rd applicant’s first ground of appeal, that the judge failed to give an adequate direction warning them of the danger of convicting on uncorroborated evidence, falls to the same considerations as discussed in the cases of the 1st applicant and the 2nd applicant.  It is not inadequate to direct the jury that, in cases such as this, that they should exercise caution.

Unfair and unbalanced summing up

83. The 3rd applicant’s second ground of appeal was that the summing up was neither fair nor balanced.  It was said that it gave the impression of a second submission for the prosecution.

84. It was pointed out that over two thirds of the 153 pages summing up was devoted to setting out the evidence of Pang Chun Kit, to which there was the obvious counter that this reflected the balance of the case.  Most time was taken up with Pang Chun Kit.  How can a summing up not reflect that?  Not only that, the scheme followed was to remind the jury of any damage done by cross‑examination as the story the witness told unfolded.  That was eminently fair to the defendants and resulted in a constant reminder to the jury, in context, of the many matters capable of damaging his credibility.  The summing up rightly related such explanations as Pang Chun Kit gave.  I do not discern that such explanations were given any sympathetic treatment.

85. It was argued that the judge expressed doubts or disbelief of the defence case.  A passage at AB 164‑165 was prayed in aid:

“I just want to make this comment. It is of course a matter for you to decide whether you accept the evidence of the 1st accused – you find his evidence credible, reliable; you think what he said is true or may be true – it is all a matter for you. But you may think why did the 1st accused pay for the ticket for ‘Ah Kit’ to go to Australia with the departure date on 1 May? It is an important part of the evidence.

Now, ‘Ah Kit’s’ evidence was that he went to buy the ticket. He paid for the ticket. The money came from the 1st accused, of course, according to ‘Ah Kit’, but he was the one who got the money, and he paid to have the ticket. That part of the evidence was never challenged by the defence – the defence say ‘No, you didn’t pay.’ The 1st accused said, ‘I paid,’ or the 2nd accused said, ‘I paid.’ No, it was never put to ‘Ah Kit’ like that at all.

The travel agent in question – that is PW5, Mr Wong, of NET Travel – also confirmed it was ‘Ah Kit’ who had gone to purchase the ticket and made payment on two occasions and obtained the electronic ticket.

Now, you may ask yourself if the 1st accused’s purpose was indeed sending ‘Ah Kit’ to Australia to go to goal for burglaries, and ‘Ah Kit’ had admitted he had committed, why did he give ‘Ah Kit’ cash to get the ticket? You will recall his evidence was that when ‘Ah Kit’ was in Australia, when ‘Ah Kit’ asked for his help, he in turn asked his brother and the brother’s business partner, Yeung King Wan, to help. He gave specific instructions to the 3rd accused and Yeung King Wan not to give this young boy any money, not even to give him the ticket, because he worried that the boy would just use the money or the boy would use the ticket, take it back to the travel agent, refund for money.

He had not even helped ‘Ah Kit’. In other words, ‘Ah Kit’ did not even owe him any money. So why was it that on this occasion, on his account, ‘Ah Kit’ already owed him $18,000.00, and yet he gave ‘Ah Kit’ money, cash, to go and buy the ticket, and he did not make sure that he had the ticket and give it to the 2nd accused on the day when they left for the airport so that the ticket is in the hands of the 2nd accused; no way that this boy would be able to change into money. There is never any explanation why that was the case, and up to you to decide whether it is important or not.

There is another area that you may think it is rather strange. Since it is the 1st accused’s evidence that it was decided the 2nd accused would escort ‘Ah Kit’ to Australia, even though ‘Ah Kit had promised that he would go, even though ‘Ah kit’ had promised that he would own up to the Australian Police to go to goal, they thought it was necessary to have the 2nd accused escort him. Why? Not clear. To make sure that he did not change his mind? To make sure that he would really confess. Not sure.

But the interesting part is then why did the 2nd accused get the ticket from someone else, from another travel agent, making sure it is on the same flight, because I have already reminded you of the evidence – on the same flight as ‘Ah Kit’, but not purchased at the same time? What is the reason for that.

It is for you to decide whether you believe the evidence of the 1st accused or whether it may be true. Now, if you think that the account given by the 1st accused or put forward by the defence is or may be true, then the 1st accused, 2nd accused and 3rd accused must be acquitted. If they are true or may be true, then they must be acquitted.

But even – this is very important – even if you entirely reject the account given by the 1st accused; you do not find him credible; you do not find him believable; you do not accept the account he gave at all – totally reject it – or you totally reject the defence put forward by all the defendants, that would not relieve the prosecution of its burden of making you sure by evidence of the guilt of each of the three accused in respect of each charge which you have to consider.”

86. I do not consider that the comment made by the judge went beyond what was permissible.  The shortcomings of the evidence of Pang Chun Kit had been the subject of repeated recital by the judge.  I do not consider that the pertinent issues raised in the judge’s comment produced imbalance, whether by themselves or in conjunction with other points taken.  The summing up was comprehensive in its design: why should these matters have been omitted? As to whether the terms of their delivery were unduly hostile to the defence, I think not.  Judged in the context of the summing up as a whole, I reject the claim that it was so and consider it timely to repeat the words of  Simon Brown LJ in R v Nelson [1997] Crim LR 234:

“Every defendant has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing‑up. No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case. Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities. . . there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis. Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that the judge gives full and fair weight to the evidence and arguments of each side. The judge is not required to top up the case for one side so as to correct any substantial imbalance. He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more and no less than the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence.”

87. The next complaint under this ground was to assert that the judge’s directions on inferences that the jury may draw was strongly adverse to the defence.

88. The first particular was to the effect that by summing up at length how Pang Chun Kit was tortured the judge could have given the impression that she was sympathetic to Pang Chun Kit.

89. This part of the summing up received the same detailed treatment as the rest of the evidence.  There was no difference in approach.  Indeed, it appears that the defence sought to make points concerning exaggeration and a failure by Pang Chun Kit to mention the torture at all or sufficiently to the police.  There was nothing improper in summing the matter up as occurred and the judge, as we have already set out, specifically warned the jury in this regard at page 27C above.

90. The judge posed a question for the jury concerning discrepancy over the period in which Pang Chun Kit said he was detained and beaten: was it because he made it all up or exaggerated something small or because when a person suffers time appears to be longer?[31]  We see nothing partial in doing so and do not agree that the judge was thereby suggesting that the discrepancy could be dismissed.  Indeed, the summing up, if anything, emphasised it.

91. The remaining submissions under this head merely involved the repetition of matters established to the detriment of Pang Chun Kit.  In our view, they were all more than adequately summed up to the jury.

92. Before leaving ground two it is right to record that there was conclusive evidence that the 3rd applicant left Australia on the 4 March 2010.  Pang Chun Kit had said that he was in Australia on 5 March when Pang Chun Kit’s ticket was purchased.  The judge mistakenly told the jury that the purchase of the ticket took place on 3 March.

93. No one apparently noticed the error and drew it to the judge’s attention.  We doubt very much whether such a mistake had any impact on the jury.  It is not clear whether the tension between the dates of 4 and 5 March had been the subject of cross‑examination, but given the absence of comment upon it in the summing up I doubt it.  I consider that such a discrepancy would have had no material impact on the jury’s deliberations, being one that would have been added to a very long list of other discrepancies, many of which had been explained on the basis of shortcomings of memory and confusion, and many of which bore much greater significance.  I reject the assertion that the judge’s mistake misled the jury into believing Pang Chun Kit’s evidence.

Which drugs were involved in count 5?

94. The 3rd applicant’s fifth ground of appeal claimed that “the inclusion of Au Yeung in the fifth count made the reference to 650 mgs of drugs uncertain”.  This argument was made in writing but not spoken to.

95. The apparent basis for this assertion is that there was evidence from Pang Chun Kit that he received 650 gms of ice from a man later identified by photograph to be Au Yeung at the Four Seasons Hotel in Sydney.  This ice had been placed with the remainder of the unsold ice in the possession of Pang Chun Kit.[32]

96. Au Yeung appeared again in the story as he received some AUD 89,000 from Pang Chun Kit in Brisbane.  This $89,000 was part of the proceeds of $90,000 which arose from Pang Chun Kit making two sales of the ice which he himself had taken to Australia.[33]

97. It was thus that Au Yeung was rightly named in Count 5 as there was evidence that he was involved in the conspiracy by reason of the fact that the proceeds of the sale of some of the drugs involved in the conspiracy were passed to him.

98. Other than the fact that the amount of ice that Au Yeung gave to Pang Chun Kit was the same as Pang Chun Kit had carried there was no reason ever to confuse the two consignments.  The co‑incidence of amount was explained by the fact that both were hidden in the soles of training shoes.

99. No one conducting this appeal was present at the trial.  That fact allows for submissions such as this, based on speculative theory that has nothing to do with what was argued below.  There is nothing to suggest confusion between the two transactions.  If there had been, I have no doubt that the judge would have dealt with it.

100. Not only that the direction the judge gave, to the effect that “is it the only reasonable inference that the 3rd accused and Yeung King Wan were parties to this conspiracy to traffic the 650 gms of ice out of Hong Kong into Australia?”[34] referred back to the 650 gms of ice that Pang Chun Kit had exported from Hong Kong to Australia.[35]

101. It was said that the judge failed to tell the jury that a conspiracy to traffic dangerous drugs made outside of Hong Kong was not indictable here.  No such direction was required because at no stage was such a conspiracy alleged and the jury could never have thought that it was.  The particulars of Count 5 alleged the conspiracy to be in Hong Kong.  We repeat there was nothing, save the identical amount, that could indicate the jury may have thought they were dealing with a different transaction other than the one indicted and the subject of the judge’s direction concerning Count 5.

Confusing directions on inferences

102. The final and fifth ground argued on behalf of the 3rd applicant was that the judge’s direction on inferences was so complicated as to be confusing to the jury.  This argument was made in writing and not spoken to.

“I will continue with my summing‑up now. You are entitled to draw inference. In other words, if you find certain acts proved, you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So if from a set of facts which you find proved there is a reasonable inference to draw against the accused as well as one in his favour, then you must not draw the adverse inference.

You may ask what are proved facts? Proved facts are facts already admitted in the Admitted Facts, and such facts you found proved after considering all the evidence.

This may sound difficult, but in fact we are drawing inferences all the time, because we are not able to see everything and hear everything, so we have to infer what had happened upon proved facts.

I will give you a few examples to illustrate this, and you may find it easier.

Now this courtroom is on the 10th floor. This is a proved fact. And there are staircases and also lifts serving this floor. It is a proved fact. And the lifts are working; nothing wrong with the lifts – proved fact. I did not see how you came up. You did not see how I came up from the ground or from lower ground. Since this is a rather high floor and the lifts are working, a reasonable inference is that you have used the lift, I have used the lift, even though you did not see me using the lift, I did not see you using the lift. That is drawing an inference from proved facts.

Now, assuming that there is a handicapped person sitting in the public gallery, sitting in a wheelchair – assuming – that is a proved fact. Now, this court is on the 10th floor; proved fact. There are staircases, lifts, serving this floor, and the lifts are working. They are all proved facts. Now, since this handicapped person would need to use a wheelchair, the only reasonable inference to be drawn from these proven facts is that this handicapped person must have used the lift. It is not a reasonable inference that this person has somehow used the staircase, or even, say, someone else carried him or her up in the staircase to climb 10 floors. It is not a reasonable inference.

So that is how you understand how to use inferences. Now, assuming a different scenario, assuming this courtroom is on the 1st floor, not on the 10th floor – that is the proved fact – and staircases, lifts, working lifts; again, all proved facts. Then an able‑bodied person, right – someone not using a wheelchair – that person appearing in court, there are two reasonable inferences. That person would have used the lift or that person could not bother to wait for the lift and walked up one floor. So you cannot say the only reasonable inference is that he must have used the lift, because he could have used the staircase as well. Both are reasonable inferences because the proved fact of the court is only one floor up.

But then again, even assuming the courtroom is on the 1st floor, same scenario – lifts working and there are staircases – again, a handicapped person inside this courtroom on the 1st floor, and you may then think, well, the only reasonable inference again is this person must have used the lift, because why would anybody go to the trouble of carrying a person in a wheelchair to climb up one floor of steps? It is still not a reasonable inference. The reasonable inference is that person must have used the lift to come up to the court, even though the court is on the 1st floor.

So that is how you use proven fact to infer certain facts. Now I must remind you again you are entitled to draw inferences. You are entitled to fid certain facts proved to infer the existence of other facts like the examples I have just given. But you may only do so if the inference is the only reasonable inference to draw from the proven fact, the handicapped person. If from a set of proven facts you find that there is a reasonable inference to be drawn for a particular accused and one against him, then it is not the only reasonable inference. Then you cannot use that inference to be against the accused, all right? So when you are drawing inferences, it has to be the only reasonable inference to be drawn on the facts.”[36]

103. I detect nothing confusing in what was said.  The long example concerning the floors of this building was a homely one, which may have assisted some jurors.  Other judges may have stuck to the bare bones of the basic direction.  It is a matter of style and, as such, not a matter for us to criticize.  I find no risk of confusion and reject the ground.

Hon D Pang J:

104. I agree with the judgments of Lunn JA and Line J.

Hon Lunn JA:

105. Accordingly, the applications for leave to appeal against conviction of all the applicants are dismissed.

[1] Appeal Bundle, pages 31J-33I.

[2] Appeal Bundle, page 33I-35I.

[3] Liangsiriprasert v Government of the United States of America [1991] 1 AC 225 at 250.

[4] Libman v R (1985) 21 DLR (4^th) 174 at 189.

[5] R v Smith (Wallace Duncan) [2004] QB 1418 at 1433H-1434B.

[6] HKSAR v Krieger & Another (CACC 99/2012; unreported, 18 December 2012) at paragraph 122.

[7] Appeal Bundle, page 79C-G.

[8] Appeal Bundle, page 83J-M.

[9] Appeal Bundle, page 179M-O.

[10] Appeal Bundle, page 94S.

[11] Appeal Bundle, page 95I-J.

[12] Appeal Bundle, page 179Q-T.

[13] Appeal Bundle, page 218S-T.

[14] Appeal Bundle, page 220K-M.

[15] Appeal Bundle, page 1226S-1227J.

[16] Appeal Bundle, page 1276-8.

[17] Appeal Bundle, page 136-156.

[18] Appeal Bundle, page 177N-S.

[19] Appeal Bundle, page 40F-N.

[20] Appeal Bundle, page 179Q-180D.

[21]    Chin Hon Man v HKSAR (1999) 2 HKCFAR 145; HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769; HKSAR v Chu Chi Wah (No 1) [2010] 4 HKLRD 691; R v Beserick (1993) 66 A Crim R 419 (NSW‑CA).

[22] Appeal Bundle, page 38M.

[23] Appeal Bundle, page 173N.

[24] Appeal Bundle, page 140M.

[25] Appeal Bundle, page 139P.

[26] Appeal Bundle, page 146L.

[27] Appeal Bundle, page 39B.

[28] Appeal Bundle, page 177C.

[29] Appeal Bundle, page 173M.

[30] Appeal Bundle, page 176L.

[31] Appeal Bundle, page 179C.

[32] Appeal Bundle, page 309, 311 and 312.

[33] Appeal Bundle, page 317 and 321.

[34] Appeal Bundle, page 180C.

[35] Appeal Bundle, page 179N.

[36] Appeal Bundle, page 166F to 168F.