THE QUEEN v. YIP CHIU CHEUNG

HEADNOTE

An agreement between a defendant and an undercover police officer would be a conspiracy in law if the undercover officer intends that the object of the conspiracy be carried out. His belief that he will not be prosecuted for his part in the conspiracy does not prevent a conspiracy from coming into being. Such circumstances must be distinguished from a sham conspiracy into which the undercover officer enters with the intention of reporting it so that it can be frustrated. An undercover police officer who becomes a party to a conspiracy in the course of his duties is not an accomplice for the purpose of the doctrine of corroboration.

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. This appeal involves questions of both law and questions of mixed law and fact. The leave required for the latter is given and the applicant will be treated as an appellant.

3. The appellant was charged with conspiracy to traffic in a dangerous drug, contrary to Common Law and s.4 of the Dangerous Drugs Ordinance Cap. 134. It was particularized that between 19th day of August and 15th day of November 1989, in Thailand and Hong Kong, the appellant had conspired with Philip Needham and another person unknown to traffic in a dangerous drug, namely salts of esters of morphine commonly known as heroin. It was the evidence at trial, which was not contested, that Philip Needham was an undercover agent of the United States Drug Enforcement Administration. The "person unknown" in the charge was in fact identified at trial as a man surnamed Hom. The Crown made it plain from the outset that they were not relying for the purposes of this appeal upon there having been any conspiracy other than that said to have been established between the appellant and Needham.

4. Needham gave evidence that the first meeting between himself, the appellant and another person was on 19th August 1989. At that meeting, dealing in counterfeit cheques was discussed. Needham said that he told the appellant that he was interested in acting as a drug courier and that the appellant told him that he would speak to him about that later in private.

5. Needham said that there was a second meeting on 28th November 1989 at a coffee shop in Bangkok and that the appellant had then asked him if he was interested in taking heroin from Asia to the United States. He said that he was offered US$16,000 for transporting 2 kilos of heroin from Hong Kong to San Francisco or Honolulu. The appellant told him that he would return to Hong Kong on 29th September to make the final arrangements and would contact him about 10th October. Needham said that he considered that a deal had been struck at this meeting for him to take drugs to the United States. He said that he then took steps to secure a passport in the name Philip Larsen.

6. Needham told of a third meeting on 11th October 1989 when he met the appellant at a Pizza Hut Restaurant in Bangkok. It was at this meeting that the man Hom was present but Needham said that he did not know his role and that Hom did not take any real part in the conversation. Needham said that the appellant stated that on the first trip he wanted to use a female courier and he asked him if he could supply one but that, in the outcome, it was agreed that Needham would make the first trip. He said that the appellant then asked him to take 5 kilos of heroin to Australia for which he would be paid US$16, 000. The agreement was that he was to be given $8,000 in Hong Kong and the balance upon delivery in Australia. Needham gave evidence as to the following further details:

"Mr. Yip stated that I was to travel to Hong Kong some time after October 28th 1989. This date was agreed on after I asked Mr. Yip for a little bit of time to finish up some other businesses I had in Thailand. In reality that business was to give me more time to try to receive this passport I needed in another name to travel. Mr. Yip and Mr. Hom stated that they wanted me to travel to Hong Kong and I would have to stay there for 2 to 3 days. I asked Mr. Yip why I could not just get the visas in Bangkok for Australia. Mr. Yip stated that the black list in Australia is more restricted on people entering from Thailand and also Hong Kong. A black list, my understanding of what Mr. Yip was saying a black list, is a list by customs in almost in every country in the world as to source countries for heroin and they take a course (sic) to look at those flights coming from those countries than they do to other countries. Now Mr. Yip stated that he would be on the same flight with me from Hong Kong but he did not wish me to contact him at all on the plane. He stated that when I arrived in Hong Kong, a person would contact me and tell me which hotel to go to after arriving in Hong Kong. I was told that after my arrival at the hotel, I would be given further instructions."

At this meeting, Needham said that he gave his surname as Larsen and that he wrote the name upon a piece of paper and gave it to the appellant. This piece of paper was subsequently found in the appellant's possession. Needham went on that the appellant told him that he would meet him again on 16th October to give him a ticket to travel to Hong Kong on 22nd or 23rd and that they agreed to meet at the same place.

7. As to the fourth meeting, on 16th October, Needham said that the appellant asked for his passport so that he could get him a plane ticket. Needham said that he told him that he could not obtain it until 19th October because it was with a friend. The appellant said he would try to get a ticket without the passport but that, if he could not, he would give Needham the cash to buy the ticket himself. He said that at this meeting the appellant repeated that the heroin was to be transported to Australia. They finally agreed to meet again on 19th October.

8. The fifth meeting took place on 19th October at the same place. Needham said that he told the appellant that his passport could not be available until 28th October and the appellant said that he could obtain a ticket for him without his passport. He said that the appellant told him that he would fly to Hong Kong ahead of Needham and would meet him in Hong Kong on 26th October. Needham said he was told by the appellant that the appellant would arrange for him to stay at the Nathan Hotel in Kowloon, that Needham would have to go to the Australian Embassy to secure a visa and that subsequently Needham would be given a suitcase with the heroin hidden inside and would be informed to which city in Australia he was to fly. Needham said that the appellant told him that he, Needham, would be flying to Hong Kong on 22nd October at 2 p.m. arriving at 6 p.m. and that he would meet him at the airport arrival hall. He said that the appellant gave him 1,500 Thai Baht and asked him to bring some duty free cigarettes and brandy to Hong Kong. It appears that there was an abortive attempt to obtain a plane ticket and that thereafter they arranged to meet again at 9 p.m. that night.

9. The sixth meeting took place on that evening and Needham said that he was given a ticket for the 22nd of October 1989 on Alitalia Airlines flight 1796 in the name Philip Larsen. He said that the appellant again told him that he would meet him at the airport.

10. Needham continued that it was his intention to come to Hong Kong as planned but that, due to a mix-up, he missed the flight upon which he was booked and that, in the event, he did not come to Hong Kong at all.

11. Needham admitted that prior to 22nd, he had not obtained the passport in the name of Philip Larsen but gave no explanation as to how he intended to travel to Hong Kong on a ticket in that name without a passport. When being cross-examined by counsel for the appellant, Needham was asked why he had approached the appellant in the first place and he said that he "had received information from the Thai police that Mr. Yip was involved in smuggling heroin from Asia to the United States." He later stated in cross-examination that he went to the first meeting, having been "led to the belief by the Thai police that I would be engaged in a conversation in regard to transporting heroin".

12. There was evidence from a Detective Senior Inspector Rogers of the Royal Hong Kong Police that he had arrested the appellant at Kai Tak Airport on 15th November 1989 and that on 27th November 1989 he went to Bangkok to interview Needham. He said that he there obtained from Needham the one thousand five hundred Baht, the Bangkok/Hong Kong airline ticket, and the business card for the Nathan Hotel, all of which Needham said had been given to him by the appellant. He produced a receipt for an airline ticket which had been seized from the appellant's home after his arrest and a piece of paper with the name Larsen on it which was found in the appellant's notebook.

13. The appellant, in evidence, said that he was an importer of "parallel goods" from Thailand. He said that he met Needham through a Chinese person and that he saw him on 3 or 4 occasions and that he spoke little English and only understood 10% of what Needham said. He said that Needham wanted to buy travelers cheques and he told him that he could introduce him to a third person in Hong Kong for that purpose and offered to obtain a cheap ticket to Hong Kong for him. He said that he had asked to see Needham's passport on several occasions but that Needham failed to produce it. He said that at the first two of their four meetings they talked about travellers cheques and that the last two meetings were held to allow Needham to produce his passport. He said that at one of these meetings, Needham had written down his name and that he was eventually able to obtain a ticket for Needham even though he did not have his passport. He said that he had gone to Kai Tak on 23rd October 1989 in order to meet Needham to obtain payment for the ticket and to collect the cigarettes and brandy which he had asked Needham to buy for him. He said that during their meetings, Needham had told him that he would carry whatever articles.the appellant wanted him to but that he had told him that he had never engaged in drug business. Why the appellant was at the airport on the 15th November when he was arrested, is unclear.

14. Mr. Gilbert Rodway, together with Mr. Daniel Marash, appeared for the appellant and argued the following grounds:

"(1). The learned trial judge erred in law in directing the jury that the appellant could conspire with the drug enforcement administration agent, Philip Needham (Needham) because Needham lacked the necessary mens rea to be guilty of the crime of conspiracy to traffic in a dangerous drug."

The specific direction to which exception was taken was as follows:

    "In this case, Mr. Needham is in fact a police officer, an officer of the Drug Enforcement Agency of the United States. He told you his intent was to find out if Mr. Yip, the defendant, was a drug dealer. He, Mr. Needham, did not want to break the law. He wanted to trap Yip.

    Nevertheless, if you are satisfied that he did intend to carry through the agreement, that is, he actually intended to take the drugs from Hong Kong to Australia, even though the police authorities in Hong Kong, as he said, and those in Australia knew all about it, and sanctioned it, he would be a conspirator in the proper sense of the word.

    If you are satisfied so that you are sure that he actually did intend to take the drugs to Australia, then you would regard him as a conspirator.

    I told you that a conspiracy needs at least two persons. A person cannot conspire with himself. You.must be satisfied that two people at least agreed to do the same thing.

    If, dealing with Mr. Needham, you came to the conclusion that he never actually intended to go to Hong Kong and take drugs to Australia, or if you had a doubt about that, then he would not in your, view be a conspirator.

    In the absence of any other conspirators, you would have to acquit the defendant. The defendant cannot be found guilty of conspiracy if there is nobody else who is to conspire with him.

    If you find that Mr. Needham was not a conspirator or you are in doubt about that, then in the absence of any other conspirator, you should acquit the defendant."

15. It was, in short the argument of the appellant that a person could not conspire with an undercover agent, in circumstances such as this, as the agent could not have the mens rea required for the offence of conspiracy. It was submitted, correctly in our view, that the offence of conspiracy not only involved an agreement but also an intention by the parties to carry that agreement through.

16. It was common ground that there was no reported case deciding whether^, undercover agents could in law be co-conspirators. In Somchai Liangsiriprasert v. Government of the U.S.A. [1990] 2 HKLR 612 (P.C.) Lord Griffiths said at p.617:

"The appellant submits that the DEA agents were not in law co-conspirators with the appellant and SC. The respondent did not argue to the contrary and the High Court Judge and the Court of Appeal dealt with the case upon this assumption. Whether or not the DEA agent should be regarded as co-conspirators is not an easy question. They were obviously not co-conspirators to a plan to sell heroin in the streets of the United States as were the appellant and S.C. On the other hand, it can be argued that the DEA agents had taken it upon themselves to break the law by importing heroin into the U.S.A. (Hong Kong) and however laudable their motives and however unlikely it is that they would be prosecuted or punished, they are in law to be regarded as co-conspirators in the agreement to break the law by importing the drugs and thus to traffic in drugs; support for this view is to be found in the Australian cases of A v. Hayden (No.2) [1984] 156 CLR 532 and David Yung Tee Chow 30 ACR 103. For the purpose of deciding this appeal their Lordships do not find it necessary to decide this question and would not wish to do so without hearing full argument. Their Lordships will, therefore, assume as did the Court of Appeal that the DEA agents were not co-conspirators with the appellant and S.C." (Emphasis supplied)

17. Mr. Rodway referred to Gillies, Criminal Law 2nd Edn. 1990, at 655 which states:

"The need for a genuine consensus. To become a conspirator D must have entered into a genuine agreement with at least one other person, for a prescribed act. Thus, preliminary negotiations conducted with a view to concluding an agreement will not in themselves amount to a conspiracy. Often there will be a fine line between the conclusion of negotiations, and the crystallizing of an agreement. On the other hand, the fact that an agreement is not fully detailed at the time of being formed, does not mean that it is not a criminal conspiracy.

    It follows from this requirement that a sham agreement entered into by one sincere party and one pretence conspirator (such as an agent provocateur, seeking to entrap D) does not amount to a conspiracy: 'a common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement (O'Brian (1955) 110 C.C.C. at 1, 5).

    For the same reason, where two persons enter into an agreement, but only one of them intends that the act be committed in incriminating circumstances, there is no conspiracy. This is because there is not an agreement between at least two persons possessing the comprehensive guilty mind for conspiracy, consisting of the primary and secondary elements of conspiratorial mens rea described above."

He then referred to Gillies, The Law of Criminal Conspiracy, 2nd Edn. 1990, at p.20 where the author states, when discussing the primary and secondary elements in conspiratorial mens rea, that:

"Conspiracy, being an offence at Common Law, requires that D must act with criminal mens rea. This involves that not only must D have agreed upon the effectuation of the criminal or other unlawful purpose, but also that D and at least one confederate must appreciate that this purpose is a criminal or unlawful one, i.e. that it is of the factual character required by the definition of the substantive crime, or by the definition of the other unlawful purpose. This means in effect that the parties must contemplate.that the act will be done in the circumstances disclosing its criminal or otherwise unlawful nature."

He referred us to two further citations. The first dealt with a need to establish a genuine consensus:

"As noted, there must be a genuine unity of minds in agreement upon the commission of a criminal or other unlawful objective."

The second dealt with the vexed question of a "pretence" conspirator:

"Another result of this basic principle is that a pretence conspirator is not an actual conspirator, i.e. a purported agreement for a prohibited object between two persons, one of whom pretends adherence to an agreement of this objective character, but who does not intend to carry it out or to see that it is carried out, while the other does possess this intention, is not a conspiracy. In such a situation the pretence conspirator and the confederate commit the actus reus of this conspiracy, but there is no actual consensus for the commission of the prohibited purpose: 'A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement' (O'Brian (1955) 110 C.C.C. 1)."

18. Mr. Rodway also relied upon R. v. Thomson (1966) 50 Cr.App.R. 1 to establish that a conspiracy involves an element of mens rea such that the prosecution is required to prove not only an agreement to carry out an unlawful purpose but also an intention in the mind of any alleged conspirator to carry out such purpose. He submitted that this was clearly affirmed in R. v. Kamara [1974] A.C. 104 at 119 where Lord Hailsham said:

"Mens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal."

19. It was Mr. Rodway's submission that there was never any genuine unity of minds as Needham was only entering into the conspiracy for the purpose of trapping the appellant and  that, given that this was a sham agreement, there could be no guilty mind on the part of Needham.

20. He contended that while it might be true that Needham had held himself out to have entered into an agreement to traffic in dangerous drugs, he had never any intention so to do as his intention was to entrap the appellant.

21. It is essential when examining these submissions to look at the conspiracy the subject of the charge. It was stated to be a conspiracy contrary to Common Law and to s.4 of the Dangerous Drugs Ordinance Cap.134. The relevant part of s.4 reads as follows:

"(1)     Save under and in accordance with this ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or hot such other person is in Hong Kong -

(a) traffic in a dangerous drug;"

22. The particulars of the offence alleged that the appellant "conspired with Philip Needham and another person unknown to traffic in a dangerous drug, namely salts of esters of morphine commonly known as heroin". The offence charged was, therefore, a common law offence of conspiracy to commit a criminal offence namely to traffic in a dangerous drug contrary to s.4. The agreement, as evidenced by Needham, was that he would come to Hong Kong and would then take drugs from Hong Kong with the intention of transporting them to Australia. "Trafficking" is defined in the Dangerous Drugs Ordinance in the following terms:

" 'trafficking', in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly;"

The gravamen of the conspiracy, insofar as Hong Kong law was concerned, was the agreement to traffic in the dangerous drugs in Hong Kong by there accepting delivery of them and by departing with them en route to Australia. It was Needham's evidence that he agreed to come to Hong Kong, to collect the drugs and to take them from Hong Kong and that he intended so to do. If this were his intention, then he was, we are satisfied, conspiring to traffic in a dangerous drug contrary to s.4. That his motive was to trap the appellant and that he was only handling the drugs in Hong Kong pursuant to that motive does not, in our view, assist the argument being advanced by the appellant. Motive must not be confused with intention. There was, in our view, clear evidence of an agreement to traffic in a dangerous drug contrary to the laws of Hong Kong and of an intention to carry out that agreement. Mr. Rodway sought to rely upon the passage in Glanville Williams' Textbook of Criminal Law 2nd Edn. at para.15-13 which states that a police informer who pretends to help but really intends to frustrate a crime cannot be said to be an accessory and submits that he could not, a fortiori, be said to be a co-conspirator. This may well be so. However, Needham was not in the position of a person who intended to frustrate the enterprise. Far from it. He intended to perform his part of the conspiracy by collecting the drugs and taking them to Australia.

23. Mr. Rodway referred us to R. v. Segal (1926) 45 CCC 32, which held that:

"Where two persons are charged with conspiracy, the offence consists of an agreement between them to do something illegal, or to effect something legal by illegal means, and guilty knowledge on the part of each of them that the object or the means, as the case may be, was illegal, is an essential of the offence."

We find no parallel with the facts in the present case. It was clear in Segal's case that Miss Laflamme could not be a party to the conspiracy as not only did she have no intention to carry out any unlawful act but, indeed, had no knowledge that any such act was contemplated. The Court of Appeal in that case held that the evidence had failed "to prove that she (Miss Laflamme) had any guilty knowledge of what was involved in the errand she undertook for Segal". This clearly was not so in the present case. Needham had full knowledge that trafficking in dangerous drugs was contemplated and that it was unlawful.

24. We were also referred to the case of Rex v. Kotyszyn (1949) 95 CCC 261 where the alleged co-conspirator, a police woman, had said she was seeking abortion but had no intention of undergoing the operation. This also is clearly distinguishable from the present case as Needham did intend to traffic in the dangerous drugs in Hong Kong.

25. The second limb of Mr. Rodway's argument under Ground 1 was that Needham could not have had a guilty mind and have been a co^-conspirator as, at the time of the agreement, he had an honest and genuine belief that whatever he did in Hong Kong would not be an offence. This submission arises out of an answer given to questions asked by the judge after re-examination. The passage reads:

"Q. You say that had that flight not departed unbeknown to you, having the reschedule, you would have gone on that flight to Hong Kong?

A. Yes, Sir. In fact, I was working with the Hong Kong authorities, the Australian police and another police department, and you know, if I found out that I had missed the flight, I had to call our Hong Kong office and had them notified (sic) the authorities here that I did not take the flight.

Q. When you arrived in Hong Kong, did you intend to keep your relationship with Mr. Yip?

A. Definitely, yes, Sir.

Q. Did you intend to get an Australian visa?

A. Yes, Sir, I did intend to get an Australian visa under whatever passport or whatever means we could make had the case gone that far.

Q. And that you intended to travel to Australia

A. Yes, Sir, I did. I have already had authority from' the Australian Government to bring that heroin into the country."

Mr. Rodway submitted that Needham could not have been convicted either of the offence of trafficking or of the offence of conspiracy to traffic if the evidence established that he had no intention to commit either offence because of his honestly held belief that his handling of the drugs in Hong Kong had the sanction of the Hong Kong authorities. It was submitted that Needham's evidence that he was working with the Hong Kong police was sufficient to establish not simply a belief that he would not be prosecuted for anything which he did in Hong Kong but also a belief that whatever he did would have been sanctioned in such a way by the Hong Kong authorities that the effect would be that he would not be committing an offence. Mr. Rodway prayed in aid s.4 which gives the Director of Health, as defined, power to grant a licence allowing the holder to handle dangerous drugs. In this regard, we bear in mind the observations of the Court of Appeal of New South Wales in David Yung Te Chow [1987] 30 Australian Criminal Reports 103 at 108:

"It follows in the present case,that the mere fact that the Federal Police might bona fide believe that it is in their interest in the suppression of the drug trade that arrangements be made for a narcotic such as heroin to be imported into Australia, so that persons here might be arrested and dealt with by the criminal law for offences committed under the Customs Act 1901, will afford no defence at all to a prosecution for breach of the provisions of the Customs Act 1901 in relation to importation of heroin. The police involved and the person who actually brought the goods in would all have transgressed against the provisions of the Customs Act 1901 and would be liable therefor. Accordingly it follows that His Honour's directions to the jury were correct, and that in the absence of evidence showing that the importation of the heroin was not in contravention of the Act, no further direction from His Honour was required."

All that Needham said was that he was "working with the Hong Kong authorities". This may well have been so. That evidence, however, falls considerably short of being evidence capable of establishing an honest and reasonable belief on Needham's part that the "authorities" would take such action as would ensure not only that he would not be prosecuted for what he did but also that he would not be committing an offence when he handled dangerous drugs in Hong Kong. The witness stated that he agreed to traffic in dangerous drugs in Hong Kong and that he had an intention so to do. The evidence set out above at its highest would, we are satisfied, be capable of establishing no more than an expectation on his part that he would not have been prosecuted for whatever he did in Hong Kong. We are satisfied for the above reasons that the trial judge was not in error when he directed the jury that the appellant could conspire with Needham.

26. To turn now to ground 2. It, as will be seen, impinges on ground 1. It reads:

"The learned trial judge erred in law in that having directed the jury that Needham could on the evidence be found by them to be a co-conspirator (i.e. an accomplice), he failed to warn the jury that it would be dangerous for them to convict the appellant on the uncorroborated evidence of an accomplice and did not identify any evidence capable of amounting to corroboration of Needham's evidence."

27. We were referred to the unreported appeal in R. v. Cho Campo Juan En Kui & others, Criminal Appeal No.503 of 1985, in which the Crown conceded for the purpose of the appeal that an undercover agent could not be a conspirator. The comment, however, of Macdougall J. (as he then was) in delivering the judgment of the Court of Appeal at p.16 is pertinent to the matter which we must resolve. He said:

"We think that it is arguable that an undercover agent who enters into an agreement with the object of securing the arrest of the conspirators after the substantive offence has been committed, as was the case here may be in a different position from that of an agent who enters into an agreement with the object of frustrating the commission of the substantive offence. In the first instance, the agent intends that the substantive offence actually be committed whereas in the latter instance he has no intention of permitting its commission. That he may not be guilty of any offence in the first instance need not necessarily preclude a conviction for conspiracy of the only other party to the agreement.

    However, in view of what we are now about to say, we do not think it necessary to resolve this matter and we leave it open for further consideration another day."

This passage highlights the very important distinction to which we have already referred. The most straight forward type of sham conspirator is one who gives his.agreement to the conspiracy with no intention of doing anything to further the conspiracy but with the intention of reporting it so that it can be frustrated. If such a sham conspirator and one other person are the only two involved in the "agreement", no conspiracy would in law result therefrom.

28. The matter is, however, not so simple in the case where an informer or undercover police officer enters into an agreement with one other with the intention of putting the agreement into effect in order to frustrate it at its point of culmination, e.g. at the point of sale of the drugs which the conspirators have agreed to sell. Although acts were done in furtherance of the agreement it would be arguable that in such circumstances no conspiracy arose as there was no real adherence by one of the two conspirators to the aim of the conspiracy, i.e. the sale of the drugs.

29. A further possibility, but by no means the only one, is where the informer or undercover agent enters into the agreement with the intention of carrying the conspiracy through to its conclusion with, to use the words of Macdougall J., the "object of securing the arrest of the conspirators after the substantive offence has been committed". Such was the position in the present case. The conspiracy alleged was one which involved collecting dangerous drugs in Hong Kong and exporting them from Hong Kong. Needham said that he agreed to such a conspiracy and intended to carry it out. As we have already held, when determining mens rea, it is irrelevant that his motive was the eventual apprehension of drug traffickers and that he believed that the Hong Kong authorities would not prosecute him if he dealt with the drugs in Hong Kong. Mens rea is established if it be shown that he intended to carry out the criminal acts agreed by the conspirators whatever the motive. Mr. Rodway relied upon the classic statement as to mens rea of Cave J. in R. v. Tolson (1889) 23 Q.B.D. 168 at 181 "at common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a good defence". This statement, however, in our view, gives no support to his argument as there was no evidence capable of establishing that Needham had any honest and reasonable belief that what he did in joining the conspiracy was an innocent act. On the contrary his evidence, at its highest, does no more than indicate the probability of a belief not that his act was an innocent one but that he would never be prosecuted for actions he took in good faith while working as an undercover agent.

30. We being satisfied that the trial judge was right to direct the jury that Needham was a co-conspirator in the full sense Mr. Rodway submits that a full accomplice warning should have been given pursuant to the ruling in Davis v. D.P.P. [1954] AC 378. Mr. Rodway takes issue with the broadly stated proposition in Archhold "Pleading Evidence and Practice in Criminal Cases, 1992" Vol.1 at 16-37 that the rule in Davis' case does not "apply to persons who have joined in, or even provoked crimes, as police spies or the police who have assented thereto". He submits that it is too broadly stated and does not apply to an accomplice who joins a conspiracy and that the three cases cited do not support the breadth of the proposition. It is certainly true that, in R. v. Bickley (1902) 2 Crim.App.R. 53, the woman was sent by the police to trap the abortionist and was not even pregnant. She was clearly not a conspirator but an agent provocateur. It was there held that an agent provocateur was in such circumstances not an accomplice and that her evidence did not, therefore, require corroboration.

31. In R. v. Heuser (1911) 6 Crim.App.R. 76 the police officers arranged for and allowed an offence of indecency to be committed. Avery J.'was satisfied that there was no ground for the contention that they were accomplices requiring corroboration. In Sneddon v. Stevenson [1967] Crim. L. Rev. 476 a constable positioned his car in a way that was likely to attract the attention of a prostitute. It did so and she solicited him. It was held there that:

"The constable had done nothing like aiding and abetting or inciting; he had merely placed his car so that the woman could solicit if she desired."

The Court was there clearly satisfied, as it was in the other two cases, that the persons involved were not accomplices. However in the last case the court went on to say:

"Even if it could be said that he was a party to the offence, he was not an accomplice for the purpose of the doctrine of corroboration."

32. The cases support Mr. Rodway's contention that they do not in terms establish the broad proposition that no warning is necessary in the situation where the witness is a co-conspirator. We must look, when determining whether an accomplice warning must be given as to the evidence of a police officer who joins conspiracy while acting as an undercover agent, at the reasons why the courts have held upon that it is unsafe to act upon uncorroborated accomplice evidence.

33. A reading of the authorities makes it clear that corroboration is required because an accomplice comes before the court as a person who, (i) on his own admission, has been unlawfully involved in criminal activity, (ii) may well be seeking to minimize the extent of his involvement; (iii) is in a position, because of the knowledge gained from his involvement, to make convincing false charges against other persons.

34. When dealing with a police undercover agent who is a conspirator it must first be said that he does not come before the court in the character of a person who has been, for his own unlawful purposes, involved in criminal activity but in the character of a police officer involved in such activity in the course of his duty.

35. Secondly as he is not to be prosecuted, he has no motive to prevaricate as to the extent of his involvement.

36. As to the third matter: certainly, knowing the circumstances of a crime, he would be in a position convincingly to fabricate false charges. That position is, however, very little different from the position of a great many police officers involved in investigations.

37. We are statisfied that, although such a person may correctly be regarded as a party to the offence, he comes before the court in his character as an undercover police officer who became a party to the offence in the performance of his duty and that, in such circumstances, to use the words in Sneddon's case, although "he was a party to the offence, he was not an accomplice for the purpose of the doctrine of corroboration".

Ground 3:

"The Learned trial judge erred in law in directing the jury that if the appellant and Needham jointly resolved or intended that their plan to courier drugs to Australia would be carried into effect, the appellant was guilty of conspiracy."

It was submitted that the trial judge twice misdirected the jury in his summing up by telling them that it was sufficient for them to convict the appellant of conspiracy if they found that he had "jointly resolved or intended" that Needham should courier the drugs to Australia. The passage complained of is as follows:

"If you are satisfied from all of the evidence so that you are sure that the defendant agreed with Mr. Needham that drugs would be provided to Mr. Needham in Hong Kong and that he would transport them to Australia, if you are satisfied so that you are sure that the defendant and Needham

jointly resolved or intended that their plan to courier drugs to Australia would be carried into effect, then you would convict the defendant as charged.

Let me repeat that, if you are satisfied from all of the evidence so that you are sure that the defendant agreed with Mr. Needham and/or Mr. Hom as well that drugs would be provided to Mr. Needham in Hong Kong and that he would transport them to Australia, if you are satisfied so that you are sure that the defendant and Needham jointly resolved or intended that their plan to courier drugs to Australia would be carried into effect, then you would convict the defendant as charged."

38. It is Mr. Rodway's submission that the prosecution had to prove both art agreement and an intention to carry it out, and that by reason of this direction, the jury might well have been led to believe that it was enough if an agreement only was proved without proof of any intention to carry it out.

39. In the passage immediately preceding that complained of, the trial judge had told the jury:

"What is alleged in this case is that the defendant reached an agreement with Mr. Needham and that the man called Hom was also a party to the agreement. It is alleged that the purpose of the agreement was to traffic in heroin, that simply means to buy or sell it or to import or export it or in some way to deal in or with it on a commercial basis.

    In this case, it is alleged that the intention was to take a consignment of heroin to Australia. If you find that to be proved, then you will find it proved that trafficking in heroin was intended. So to take drugs down to Australia in the way it was suggested in the evidence would be trafficking in dangerous drugs.

    In this case, there is no evidence of drugs actually being taken to Australia. Indeed, no drugs have been seized at all. The prosecution do not need to lead evidence of drugs going to Australia or of drugs being seized. The charge here is conspiracy."

40. Given this passage, we do not consider it possible that the jury might have been led by the use of the alternative into thinking that it would be enough merely to prove an agreement without the intention of carrying it into effect. When the complained of passage is placed in context, we are quite satisfied that the jury must have understood that the Crown had to prove an agreement which the parties intended to carry into effect:

Ground 4:

"There was a material irregularity at the trial of the appellant in that the learned trial judge allowed Needham to refresh his memory in the witness box and outside the court from typed notes that were neither contemporaneous, nor made by him nor verified by him contemporaneously and without which Needham was unable to give his evidence; further, Needham's original notes were not available for inspection by the defence."

There were two limbs to this ground - the first that the witness had been wrongly allowed to refer to his notes and the second that the original notes of the witness were not made.available to the defence.

41. To understand the first limb, it is necessary to set out the relevant parts of the record. Shortly after Needham commenced to give evidence, the following passage occurred:

"Q. Can you tell us about the first time that you met Mr. Yip in Thailand.

Ct.  What is that you are referring to, Mr. Needham?

A.   Yes, these are my statements that I have made after the meetings with Mr. Yip.

Ct.  We would prefer it if you would give your evidence without reference to these statements.

A.   Okay, sir, just for your information, I was only informed of this trial two days ago. I haven't been allowed time to review it all.

Ct.  You say these notes were made when? When were they made?

A.   They were made - they are basically the statements from our investigation report which I made at a later date after - as quickly as possible after these undercover meetings.

Ct.   I see. If you feel that in the course of the giving on your evidence, Mr. Needham, you have to refer to it, then let me know. At the moment, I'll prefer it if you could give your evidence without those notes."

Needham went on to give detailed evidence of what occurred at that meeting. He did not, however, give the exact date or place of the meeting. The following passage then occurred:

"Q.  And when you were told that he would discuss heroin on a later date, was a date actually fixed?

Mr.Wong:  My Lord, according to the statement, the date when the statement was made was on 28th November 1989, and the event he now talks about is in August. I don't know how that can be related.

Ct.    You hear what Mr. Wong is saying, Mr. Needham?

A.     I understand basically but I made the notes pretty soon.

Ct.    You are saying that the statements you made were made immediately after the events took place?

A.     Yes, sir.

Ct.    The statement we have - the statement I have, that I am looking at now, says it is a statement made on 28th November?

A.    Yes, sir, I can explain that. My explanation of exactly what happened is that within the Drug Enforcement Administration, we have a standard policy recording which is basically our DDA6 of our investigation reports. Those reports were written the day after or shortly after, I could not say exactly, after these meetings, Inspector Rogers came to Hong Kong on a November day and took a statement from me which basically was just a verbatim from the reports that I had written, written on the day shortly after I joined the undercover meetings.

Ct.    Yes, thank you.

Q.     Nothing further was said?

Ct.    I am satisfied that these were sufficiently contemporaneous so that you may refresh your memory from it, Mr. Needham. So you may refresh your memory from these notes."

The judge appears to have.been satisfied that the notes being used were a verbatim copy of notes made shortly after the events and were therefore sufficiently contemporaneous to comply with the rules governing notes from which memory may be refreshed. The following passage then occurred:

"Q. And when did you meet Mr. Yip again?

A. Excuse me, I apologise to the court. If I were given may be 10 mins. just to organize myself I've basically read through them, if I could put in order various things.

Court:

I think it might help. Members of the jury, I have said to you earlier that we normally take our mid-morning break around 11.30, but circumstances suggests that I should take that break earlier this morning which I now intend to do. We'll adjourn until 11.25."

The court then adjourned from 11.05a.m. until 11.29a.m. From thereon Mr. Needham, we are told by Mr. Rodway, constantly used his notes to the point where he could properly be described as "reading therefrom". Objection was made during Needham's continuing evidence in.chief by counsel. The passage reads:

"Mr. Wong:

    I am sorry to interrupt, my Lord, but Mr. Needham seems to be speaking from his statement rather than .....

Court:

I've given Mr. Needham permission to refer to his notes in order to refresh his memory.

Mr. Wong:

Yes, that's from time to time.

Court:

As he feels it necessary.

Mr. Wong:

Thank you."

42. Needham was cross-examined as to his making of notes in the following passage:

"Q.   Did you make notes on every occasion immediately after you had met Mr. Yip?

A.     No, I did not, sir. I wrote what we call investigative reports within DEA shortly after speaking with Mr. Yip.

Q.    Shortly after, how shortly?

A.    I don't have the dates of those reports with me, but as soon as I could, usually in the following day or in the actual day that the meeting was taken. It's my policy. I've been involved up until recently when I was promoted, a large percentage of my working time was spent in an undercover capacity, I have disciplined myself to try to write the reports as soon as possible so that I would get everything into them that was needed.

Q.    As far as the meetings with Mr. Yip is concerned, did you compile the report in one goal (sic) or you did it on separate occasions?

A.    No, each report was a separate report.

Q.    Where are the reports now?

A.    I don't have them. I gave the statements to the police officers here which were taken from those reports.

Q.    I suppose the reports are in U.S.A.?

A.    No, sir, I believe they would probably be in Bangkok.

Q.    Is it correct that Inspector Rogers came to Bangkok on 27th November?

A.    Came to Bangkok on the ......

Q.    27th, is that correct?

A.    I gave the statement on the 29th sir, and turned over the exhibits on 29th, that is my recollection, 29th November 1989.

Q.    When you made the witness statements which today you have referred to, was Inspector Rogers present?

A.    Yes, he was.

Q.    He was?

A.    That's right. The witness statement as presented today?

Q.    Yes.

A.    Yes, right.

Q.    Did you discuss with him about this case when you were making out the witness statements?

A.    Did I discuss the case in what regard, sir?

Q.    Any regard.

A.    Yes, sir, I discussed with him what would I give him here in my statement. I had been advised that Mr. Yip had been arrested here in Hong Kong, and I was asked at that time to give my statements to the Hong Kong authorities.

Q.    How long did you take to finish the second witness statements?

A.    On November 29th?

Q.    Yes.

A.    Basically I read my reports we had. My secretary typed those reports into statement form from those reports verbatim, and then I read them again and signed them."

Later in the cross--examination, the following further passage appeared:

"Q.  Mr.Needham, that may be obvious, but may I ask you this, is it correct that you do not have a clear memory of what was said on those occasions today without reference to the statements?

Mr. Rodway referred to Phipson on Evidence 14th Edn., at paras 12-41, which deals with the right of a witness to refresh his memory. It reads:

"A witness may refresh his memory in the witness box by reference to any writing made or verified by himself concerning the facts to which he testifies provided that it was made or verified by him while the facts were fresh in his memory."

43. It was the thrust of Mr. Rodway's argument that the document was not contemporaneous and therefore had to be approached upon the basis that it was a copy. Phipson, at 12-44, deals with copies. This reads:

"As to the use of copies of the original writing, the result of the cases seems to be as follows:

(a)    Where the copy was made or verified by the witness while the facts were fresh in his recollection, it may be used, on the footing of a duplicate or a quasi-original.

(b)    Where the original is in existence, and the witness has no recollection of the facts otherwise than from it, a copy may not be used, and the original must be used.

(c)    Where the original has been lost or destroyed, a copy proved to be correct either by the witness or some third person may be used.

(d)    Where the copy is either not proved to be correct, or consists of an imperfect extract made by the witness, or has been revised and transcribed with the help of the Solicitor to the case, it cannot be used to refresh memory, whether the original is in existence or not."

44. In R. v. Da Silva [1990] 1 WLR 31 at p.36E-H Stuart-Smith L.J., in delivering the judgment of the Court of Appeal, said:

    "In our judgment, therefore, it should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided he is satisfied: (1) that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; (2) that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it; (3) that he had not read the statement before coming into the witness box; (4) that he wished to have an opportunity to read the statement before he continued to give evidence.

    We do not think that it matters whether the witness withdraws from the witness box and reads his statement, as he would do if he had had the opportunity before entering the witness box, or whether he reads it in the witness box. What is important is that if the former course is adopted, no communication must be had with the witness, other than to see that he can read the statement in peace. Moreover, if either course is adopted, the statement must he removed from him when he comes to give his evidence and he should not be permitted to refer to it again, unlike a contemporaneous statement which maybe used to refresh memory while giving evidence."

As we understand the law, a copy of contemporaneous notes which has been checked by the witness as to its correctness at the time when the copy was made may be used as a duplicate or quasi original. However, if the witness has no recollection of the facts and the original is in existence, the original must be used. Mr. Rodway submitted that the statement being used by Needham was not a document which could be used at all by him as it was not one which had been verified by him after being copied from the original and further that, even if it were a document verified by him after being copied from the original, he could, as he had no recollection of the facts, refer only to the original, it being in existence, to refresh his memory.

45. We are satisfied that what the judge meant when he said "these were sufficiently contemporaneous so that you may refresh your memory from it" was that the original reports "written the day after or shortly after" the meetings were sufficiently contemporaneous to allow the witness to refresh his memory from a compilation of them.

The judge does, however, appear to have overlooked that this could only properly be done if the witness had verified that compilation. There was, as the matter stood when the judge ruled, no such evidence.

46. This gap was, however, filled when the witness, having been asked how long it took to finish his second witness statement given on November 29th, said:

"Basically I read my reports we had. My secretary typed those reports into statement form from those reports verbatim, and then I read them again and signed them."

This evidence we are satisfied establishes that he did verify that the statement of 29th November was a verbatim account of his original statements. That being so, it was quite proper for him to refresh his memory therefrom.

47. Mr. Rodway argues that, even if this be so, he should not have been allowed to refresh his memory from the copy as the original was in existence and he otherwise had no recollection of the facts. This is clearly not so. The witness plainly had memory of the facts otherwise than from his statement. He said, when being cross-examined, that without reference to the statements he recalled "the general conversations. When it comes to exact dates and addresses and that sort of thing I refresh my memory".

48. We are satisfied that it was proper for the witness to refresh his memory from a copy.verified by him of contemporaneous notes.

49. The second complaint in this regard is that the original notes were not available for inspection by the defence.

50. Counsel for the appellant never called for the production of the original notes.Had he done so he would have been entitled to see them and the Crown would, if necessary, have had to adjourn the matter to obtain them from Bangkok. It is true that counsel for the appellant sought to make capital out of the fact that the original notes were not in Hong Kong when addressing the jury saying:

"Of course, Mr. Needham said he based on some reports he wrote earlier on in compiling those seven witness statements. But unfortunately, ladies and gentlemen, neither you nor me have seen those reports. He said they were in Bangkok. First of all, you don't know whether they exist at all. Even if they exist, what sort of contents were contained in them? Neither you nor I know exactly what they were contained. So there is this possibility that it is only after the defendant was arrested then that some contact between Hong Kong and Thailand, that is between the Hong Kong Police and Mr. Needham in Thailand. I put no higher than that. I only suggest there is this possibility. Then later these seven statements were made up. I put no higher than that."

51. Counsel having seen fit not to call for the statements, and this may well have been a wise tactical decision, no complaint can now be made of the failure of the Crown to produce them.

Ground 5:

"The learned trial judge erred in law in that he misdirected the jury:

(i)   that the importation of the dangerous drug by the appellant was sanctioned by the police authorities in Australia;

the evidence was that the Australian Government authorized the appellant to bring the heroin into the country; and

(ii)   that there was no evidence that the appellant intended to travel to Australia with Needham."

The passage complained of in Ground 5(i) is as follows:

"Nevertheless, if you are satisfied that he did intend to carry through the agreement, that is, he actually intended to take the drugs from Hong Kong to Australia, even though the police authorities in Hong Kong, as he said, and those in Australia knew all about it, and sanctioned it, he would be a conspirator in the proper sense of the word."

It is correct that what the witness had said in evidence was that he was working with, inter alia, the Australian police and that he "already had authority from the Australian government to bring that heroin into the country". This was a slip by the trial judge but we are quite unpersuaded that it was of any consequence in the context of the trial.

52. We turn to Ground 5(ii). When addressing the jury, Mr. Wong for the appellant said:

"You would remember, ladies and gentlemen, that according to Mr. Needham, Mr. Yip would accompany him on the trip, I can't remember exactly either to U.S.A or to Australia, but you can see from his evidence which is not challenged at all that he first of all had never been to U.S.A. Secondly, he had not been to Australia for about 25 years and he had no visa to either U.S.A. or Australia. So the circumstantial evidence proves that what Mr. Needham said must be false because if Mr. Yip is going to accompany him to either of these places, certainly Mr. Yip must be very familiar with those places. That is the first point. Second point, Mr. Yip has got to have a visa before he can go there. The circumstances would tend to suggest that what Mr. Needham said is false."

53. In the absence of the jury, the court told Mr. Wong that there was no evidence that the appellant intended to go to Australia or to U.S.A. or to some other country and told him that he should be careful about addressing jury on pure memory. In his summing-up he said:

"Mr. Wong in his address to you seemed to suggest that the arrangement was that he, Yip, was to go to either Australia or the United States with Needham if he transported drugs there. That was not the evidence in this case, members of the jury. There was no evidence at all that Yip intended to go either to Australia or to the United States. And you may think in any event, members of the jury, it makes little sense that if you are going to hire a courier to take drugs for you, that you will take the risk of going along with that courier. There was no evidence that Yip intended to go to Australia with Needham when he took the drugs there."

54. The trial judge was, as the record shows, wrong in so directing the jury. Mr. Needham had in his evidence said "Now Mr. Yip stated he would be on the same flight with me from Hong Kong but he did not wish me to contact him at all on the plane." It was submitted by Mr. Rodway that this direction undermined the cogent submission of defence counsel that as the appellant had no visa for Australia and, as there would have been little sense in his exposing himself to risk by being on the same flight as Needham, the evidence from Needham that the appellant had told him that he would be on the flight was gravely suspect. It was a misdirection of fact but we are satisfied that in the overall context it was not one which would have had any material effect upon the mind of the jury.

Ground 6.

"There was a material irregularity at the trial of the appellant in that evidence was given by Needham that he had received information from the Royal Thai Police that the appellant was involved in smuggling heroin from Asia to the United States but the learned trial judge failed immediately to give any direction to the jury to disregard such hearsay evidence and by the time such direction was given it was too late to repair the prejudice to the applicant."

The trial judge when summing-up said,

    "You heard in this case that Needham was introduced to the defendant by a Thai police contact. Needham has told you he was trying to find out if the defendant.will traffic in drugs.

    Now simply because a police force acts on a possibility that a person might be involved in criminal activities does not mean that he is. Police forces all over the world get information about people and they investigate it. Very often, it proves to have been misleading information. So simply because it appears in this case that the police thought the defendant might be involved is not evidence that he was. You must not take that into account when deciding whether the charge is proved.

    You must look at and examine the evidence, i.e., the evidence of the prosecution witnesses, and take it with the defence evidence and decide from that evidence if this charge is proved.

    What police did or did not think is not evidence in the case. We were merely told that to explain to you why Needham was in contact with Yip in the first place. You were not told that so that you would use it against Yip, merely told to explain why Needham was contacting Yip at all. Please be careful then to ensure that you do not use that fact against the defendant."

It is true that the trial judge did not give a direction to the jury immediately after the evidence was given. It is always a difficult decision as to when, if at all, such a direction should be given. Here we are quite satisfied that the explicit direction set out above was more than adequate to ensure that the jury did remove from their mind any thought that they might have had of relying upon such evidence.

Ground 7:

"That in all of the above circumstances, and in the absence of any explanation by Needham as to how he intended to come to Hong Kong to take the drugs from Hong Kong to Australia as Philip Larsen shortly after 22nd October 1989 when he knew he would not have a passport in that name until 28th October 1989, the conviction of the appellant is unsafe and unsatisfactory."

We are asked under this ground to bear in mind any features which we might consider unsatisfactory by reason of the submissions made to us on the grounds already dealt with and, in particular, to have regard to Needham's evidence as to his attempt to obtain a ^passport in the name of Philip Larsen and as to his missing the flight from Bangkok and then failing to come to Hong Kong. These matters went to the credibility of Needham It is quite clear that despite these suggested unsatisfactory features of his evidence, the jury were prepared to believe that evidence and 'act upon it. That they must have done so is clear as there was no other evidence against the appellant. Credibility is preeminently a matter for the jury. There was evidence which would justify the conclusions to which the jury came - if believed. We are satisfied that we should not interfere on this ground.

55. For the above reasons, the appeal against conviction is dismissed.

Re Sentence:

56. The facts are set out in the reasons which were delivered this morning when dismissing the application for leave to appeal against conviction. Mr. Marash submits that the 15 years imposed upon the applicant after trial was excessive as insufficient weight was given to a number of factors. He first points to the quantity, 5 kg. of No.3 heroin. In fact there was no type of drug specified by the conspirator but Duffy J., taking a view which was very favourable to the applicant, was prepared to treat the matter upon the basis that No.3 heroin would have been involved.

57. The second matter which he urged is that the conspiracy was nipped in the bud. There were no acts carried out and no resulting distribution of drugs in Australia or anywhere else.

58. Mr. Marash also suggests that insufficient weight was given was the fact that there was an element of entrapment in the way in which the conspiracy commenced. It is to be noted that the entrapment was not of the kind where a person who has no contemplation of any criminal activity was entrapped into committing an offence, and also that the trial judge indicated that he had this matter in mind when he was imposing his sentence.

59. Mr. Marash also asked us to bear in mind the level of involvement. He submits that the applicant was not at the executive level. This court can do no more than act upon the facts that were revealed at the trial. These indicated that the applicant was a person who had become involved in international drug trafficking.

60. We feel that we can't put the matter of the seriousness of the offence better than did the trial judge when he said:

    "While the world cries out for a concerted international effort to compact arguably the single most serious problem confronting the society today, men like you lurking in the safety of dark corners are still plotting and scheming and devising ways of making huge fortunes by proliferating these narcotics and spreading their deadly effects.

    I know that you are a first offender, and I take that into account. I take all that has been said on your behalf into account. I allow that there might be some mitigation from the fact of Needham's so-called encouragement of this affair. But your age cannot assist you. Maturity should bring wisdom and understanding, not a cynical disregard for the welfare of others."

61. Mr. Marash has referred us to a number of authorities and to the sentences which were imposed in those case and their relationship to the amounts involved. We bear in mind the cases that have been cited to us when coming to our decision. The amount, however, is only one of a number of factors that must be considered.

62. The applicant was, as we have said, a person prepared to involve himself in a direct way in international drug trafficking. Those who move dangerous drugs across international boundaries to countries which, but for such activities would have no heroin problems, are the arteries of the international drug trade. Without such persons the flow would cease, the producers would not find it worth their while to manufacture, and those who purvey on the streets would have nothing to sell. There were matters of which the judge, when he imposed the sentence, was acutely and properly conscious, and are matters of which this court is also conscious. The sentence imposed was in the upper bracket of proper sentences, but we say no more than that. It is not one which is so out of the proper range as to call for our interference.

63. The application for leave to appeal against sentence is therefore dismissed.