THE QUEEN v. YU WAI SHAN (D1) AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The applicant YU Wai-shan (Dl) was tried in the High Court upon an indictment containing a number of charges. The third defendant FONG Pui-ping was charged alone in the second to the fifth counts with offences against the Provisions of Sections 6 and 37 of the Dangerous Drugs Ordinance Cap. 134. He was acquitted upon a direction of the judge at the conclusion of the prosecution case.

2. We are now concerned only with the first count in which D1 and his common law wife WONG Wai-ling (D2) were charged with conspiring between the 1st of January 1979 and the 9th of November 1983, together with several named co-conspirators and other persons not in custody, to traffick in dangerous drugs, namely salts of ester of morphine.

3. WONG Wai-ling was also acquitted upon a direction by the judge. Her appeal against his refusal to award costs against the prosecution has been abandoned.

4. The precise description of the drugs appears to have been added in the charge by way of amendment at a comparatively late stage in the trial. An amended charge sheet was put in the hands of the jury although it would appear that no formal plea was taken again upon the altered charge. No point however has been taken upon this by counsel for the applicant. D2 was also acquitted upon a direction by the judge at the conclusion of the prosecution case.

5. The case for the Crown was that the applicant was effectively the mastermind in this prolonged conspiracy and it depended wholly upon the testimony of three accomplices who gave evidence for the prosecution under Crown immunity.

6. All of these men are presently serving long terms of imprisonment following conviction in relation to drugs offences. WU Chit (PW3) and LAM Kwok-pui (PW5) pleaded guilty in the High Court on the 4th of July 1984 to manufacturing dangerous drugs. Wu's sentence of 15 years was subsequently reduced upon appeal to 12 years. That of Lam from 15 years to 12 years.

7. LO Kwong-hing (PW4) was convicted in the High Court on the 9th of November 1983 of trafficking; possession for the purpose of trafficking; and manufacturing dangerous drugs and he received sentences totalling 29 years subsequently reduced upon appeal to 7 years.

8. The evidence of these three witnesses was generally to the same effect. Wu (PW3) described how he had been introduced to the applicant late in 1981. By that time he had already been engaged in selling heroin on behalf of somebody called YAU for several months having lost his job in a transportation company in March or April of that year.

9. He described in great detail how thereafter he had assisted the applicant to manufacture number 3 heroin at various locations, and had also taken part in the sale of and distribution of quantities of the finished product.

10. Several other people took part in these operations from time to time, including LO (PW4) and LAU Lun-fu, one of the conspirators named in the charge. Eight different premises were involved and some 14 distinct operations took place between April 1981 and September 1981, in the course of which he had assisted the applicant in this way. On Wu's testimony the applicant was himself an experienced manufacturer who in the course of time taught the witness how to prepare the finished product from the various ingredients which would be collected by them on any occasion when it was proposed to manufacture heroin.

11. Apart from assisting in the actual manufacture of the drugs, and in their disposal, he also assisted the applicant by procuring for him the services of a waitress, referred to in the evidence as Bonny, - then working in a restaurant in Tsim Sha Tsui - who acted as a courier for the carrying of dangerous drugs from Thailand. He also helped the applicant to find premises and he introduced other helpers to him including LAU Lun-fu. LO (PW4) took part in a number of these manufacturing and distributing operations.

12. WU recounted also how in September 1983 he had been beaten up by several men, including LAM (PW5) at the instance of the applicant over a question of money debt and how subsequently, again upon the direction of the applicant, he and LAM were directed to take part in the manufacture of drugs at premises in Mei Fu Sun Tsuen belonging to the girl friend of WU. They drove to those premises in two cars from which the equipment and the necessary materials for the manufacture were taken up to the flat where the operation was to take place. There he and LAM manufactured a quantity of heroin on the night of the 25th of September 1983, desisting on the morning of the following day when LAM became a little ill as a result of inhaling some of the acidic fumes arising from the chemical ingredients.

13. On the morning of the 26th of September they received a phone call from the applicant enquiring about progress and about ten minutes after that a police party arrived at the premises and, being refused admission, broke down the door. PW3 and PW5 were found within, together with another man called NG who, it appears, had been persuaded under false pretences by WU to join them shortly before the telephone call from the applicant. This person would seem to have been cleared of any criminal complicity fairly quickly and he has not figured in any subsequent proceedings.

14. LO and LAM (PW4 and PW5) gave evidence to much the same effect insofar as their activities had coincided with that of PW3. In general each described how he had been recruited by the applicant and taught by him how to prepare this type of heroin. Each of them professed to have taken part, also at the instance of the applicant, not only in the preparation but also in the dissemination of dangerous drugs, being paid for their services.

15. LAM (PW5) told the court that he had originally worked as a bookmaker for the applicant in 1980 and had subsequently been enlisted by him in the procurement of the ingredients and the preparation of heroin and its subsequent sale. While engaged in this trade he had made trips on behalf of the applicant to Bangkok on several occasions where he had made contact with the courier called Bonny. He supplied her with a quantity of "white powder" obtained by him from a man in Bangkok, and with a ticket for the Philippines which was apparently to be her immediate destination when carrying these drugs. Eventually he was arrested under the circumstances described by WU.

16. LO Kwong-hing (PW4) seems to have had the longest acquaintance with the applicant. He told the court that he had met the applicant for the first time in 1978 when the latter would, from time to time, visit him in a hut in which he was then living at Wang Tau Hom for the purely social purposes of having a chat together and smoking dangerous drugs.

17. Early in 1979 he moved to Heung King House where he began to sell heroin on behalf of the applicant who would deliver him quantities between eight and ten pounds at a time.

18. While engaged in this trade he was caught by the police and was tried upon a charge of possession for trafficking and received a sentence of 3½ years upon conviction. That was in June 1979.

19. When he got out of prison he managed to maintain himself in honest employment in a transportation company for about one year. However business became slack and he contacted the applicant who introduced him once more to the "white powder" trade.

20. Under the tutelage of the applicant he learned how to prepare number 3 heroin from heroin base and also engaged, at the instance of the applicant, in the disposal of the finished product. Among the several people whom he met from time to time, and who were similarly engaged together with him, was the named conspirator LAU Lun-fu. This man was introduced to him by the applicant as the applicant's partner. He was also introduced to WU (PW3).

21. He told the court how he had co-operated with these two persons and with the applicant in a number of operations at Shui Wo Court in Shatin and premises at Man Kee Building in Waterloo Road at the end of 1984. He never seems, however, to have met LAM (PW5).

22. In December of 1982 he rented a flat in the Tak Bo Building in Sai Yee Street at a rent of $3,300 a month. He moved in in December and was visited there on several occasions by the applicant and LAU Lun-fu. At the end of December the applicant introduced him to a man called SO Kau who gave him a briefcase containing a quantity of number 3 heroin which he took back and kept in that flat. The next day he helped LAU Lun-fu and the applicant to move a quantity of materials and equipment into the flat from which 30 or 40 pounds of number 3 heroin were prepared by them. A fair proportion of this was disposed of by the witness at the instance of the applicant over the next couple of days but some still remained within the premises.

23. On the 3rd of January when the applicant and LO and LAU Lun-fu were together within the premises the applicant received a phone call as a result of which he instructed the witnes to take 2 pounds of heroin to a person whom he subsequently met in Sai Yee Street. The witness then returned to the premises and later left it again when the Customs and Excise Officers who were waiting outside the flat arrested him. He was taken back into the flat where he and the applicant and LAU were all arrested.

24. We were informed by Mr. Hodge, for the Crown, that the Customs Officers discovered all the necessary equipment and the ingredients for the making of heroin within the premises but only traces of the completed drug itself.

25. Subsequently LO and LAU and the applicant were charged with a number of offences including the offence of manufacturing. The applicant and LAW were acquitted at this trial in November and the witness LO was convicted. He was sentenced in the manner already described.

26. It is the acquittal of the applicant upon the manufacturing charge which is the substance of the first of the two grounds of appeal taken by Mr. Corrigan on behalf of his client. The memorandum of appeal originally filed shows some five grounds but two of those were formally abandoned and the third so lightly pressed by counsel that we do not think it necessary to deal with it.

27. Firstly, counsel maintains that the acquittal of the applicant on the manufacturing charge in November 1983 rendered inadmissible LO's evidence that the applicant had engaged in manufacturing at the Tak Bo premises, that being the very charge of which he had been acquitted at the November trial.

28. Counsel is not seeking to rely upon any doctrine of issue estoppel, which he concedes has been laid to rest, so far as criminal trials are concerned, by the decision of the House of Lords in D.P.P. v. Humphrys⁽¹⁾. In his lengthy and ingenious argument he has sought, however, to show that the principles of res judicata and autrefois acquit operate to protect his client from a verdict whereby, in counsel's contention, he was subjected to double jeopardy.

29. The substance of this argument is that both the intention and the effect of introducing the evidence of LO relating to the Tak Bo incident was to challenge the validity of the verdict at the earlier trial. He maintains that jeopardy arises even though this was but one small incident out of the account given by LO, covering the whole range of his activities in co-operation, as he alleged, with the applicant over this long period of time.

30. The stronger form of counsel's argument is that the offences of manufacturing and trafficking being so closely allied, the endeavour by the Crown to overturn the previous verdict of acquittal by the introduction of inadmissible evidence - which is what he claims it is - necessarily infects with the same disorder all of the evidence of LO, and indeed of the other accomplices, which included a description of many individual acts of manufacturing ascribed to the applicant. Since the Crown relied upon a series of overt acts both of manufacturing and trafficking in proof of its conspiracy charge, the result, counsel maintained, was to vitiate the conviction.

31. Alternatively, in its weaker form, the argument is that the "Tak Bo evidence" as the final incident described, and supported as it was by the independent evidence of the Customs Officers of the discovery of the applicant in what was clearly a manufacturing centre, would have had a powerful clinching effect on the minds of the jury in considering the accomplice evidence as a whole, when such might not have been the case if that evidence had been excluded.

32. Notwithstanding the careful and elaborate argument of counsel we are satisfied there is nothing in this point. Sambasivam v. Public Prosecutor, Malaya Federation⁽²⁾ and G. (an infant) v. Coltart⁽³⁾ do not assist the applicant. The Crown here was not endeavouring to get behind the verdict of acquittal as a necessary part of its endeavour to procure a conviction in the current case. The nature and the existence of the acquittal were forcibly brought to the attention of the jury by counsel for the defence; and counsel for the prosecution expressly disavowed any intention on the part of the Crown of challenging that verdict.

33. Nor can it be said that the jury were being asked, as a necessary part of their task in the second case, to overturn the earlier verdict should they arrive at a conclusion of guilt on the conspiracy charge. Not only had they the evidence of the other two accomplices on which they could rely if they saw fit, but also it was open to them to disregard that part of LO's evidence which related to the final incident.

34. In the case of Coltart the prosecution, dealing with a single charge of theft of certain property, could only prove the necessary element of intent permanently to deprive the owner of that property by adducing once more evidence which was capable of showing such an intent in relation to other property, the subject of the charge in the earlier trial, when that evidence had been discounted and the same defendant acquitted of that. And, as the case was presented to the court, similar considerations arose in the case of Sambasivam.

35. We are satisfied that the proper rule is that stated by Lord Hailsham in Reg. v. Humphrys. This appears as his seventh proposition at page 41 of the report:

Here the conspiracy charge is different in substance and in fore from the earlier charge. Its scope is altogether wider, both in time and incident, and it rested upon testimony, including that of LO himself, which was either not available or else not relevant at the earlier trial.

36. In Humphrys Lord Salmon at page 43 having noted that the prosecution cannot challenge, in the subsequent trial, a previous acquittal by showing that the accused was guilty of the crime of which he had been acquitted, cites the Sambasivam and Coltart cases and goes on to say:

"This, however, does not mean that evidence may not be called against an accused which is relevant to the prosecutions case against him merely because it may tend to show that the accused was guilty of an offence of which he has been acquitted: Reg. v. Ollis⁽⁴⁾. "

37. The only point upon the appeal which has given us concern - it is the second ground argued by Mr. Corrigan -arises from the trial judge's directions to the jury in relation to the topic of corroboration.

38. The judge correctly advised the jury to regard the three prosecution witnesses as accomplices; he told them what that meant and he warned them that one accomplice cannot corroborate another. He also described, in terms to which exception has not been taken, what was meant by corroboration in law. He did not go on to say that they must first find that the witnesses were credible before they looked for corroboration. Although no point was taken on this by counsel at the hearing of the appeal, it might be said that such a direction was particularly desirable in the present case in which one of the witnesses, WU Chit, frankly admitted to considerable animus against the applicant and another, LO Kwong-hing, frankly admitted to having lied fairly freely at the previous trial.

39. The principal objection taken is that the judge has identified as corroborative several items of evidence which, counsel maintains, could not constitute corroboration in law. This occurs in the following passage from the summing-up: -

"They are (1) evidence of the landlord of the flat at Tak Bo Building in Sai Yee Street regarding the tenancy to LO Kwong-hing of those premises at which dangerous drugs were made; (2) evidence that Al was found at those premises when the police arrested LO Kwong-hing and seized drug manufacturing articles; (3) evidence of the landlord of the flat of Man Kee Building of Waterloo Road concerning the tenancy of those premises to Al, where dangerous drugs are alleged to have been made; (4) evidence of ownership of Shui Wo Court in Shatin by A2, which is alleged to be a drug factory. "

Mr. Hodge for the Crown concedes, correctly in the view of this court, that items (3) and (4) could not in any sense be regarded as independent support amounting to corroboration of the accomplices' testimony. Mr. Corrigan contends that even item (2) could not afford corroboration. At most he says that this is some evidence of association between the applicant and the self-confessed drug traffickers. That however is altogether too limited a view to take of this evidence. The presence of the applicant - unexplained in the event - immediately after the arrest of LO who had emerged from premises which had clearly been used for activities of the kind which he had described throughout his association with the applicant must afford strong independent support to that testimony.

40. Mr. Hodge, while conceding that the first item in the judge's list - the landlord's evidence relating to the tenancy of the Tak Bo premises by LO Kwong-hing - could not on its own constitute corroboration, argued that it must, nevertheless, be taken together with the second item as a kind of explanatory foreword, or inessential prologue, thereto. We agree. Taken together the compromising and therefore corroborative effect of this evidence is that the applicant is found in the very premises which LO described as being the scene of both manufacturing and trafficking operations, those being premises rented to LO.

41. We were invited by counsel however to consider the misidentification of the other matters a corroborative material, together with certain other directions given by' the judge on the approach that jury should adopt in relation to the accomplice evidence generally. The passages complained of are as follows:

"        As both counsel have stated, the evidence of WU Chit, LO Kwong-hing and LAM Kwok-pui is vital so that the present case might stand or fall with it. From your assessment of that evidence, the following situations might arise, and I suggest that you again take these matters down.

Mr. Corrigan complains with some reason that these directions are insufficiently affirmative. The general suggestion that without that evidence "there would be no important evidence left against Al”... "so that the present case might stand or fall with it", especially when followed immediately by the direction: "In those circumstances, you might consider returning a verdict of not guilty" is a very inadequate way of describing the true situation. The fact is that, without the evidence of the accomplices there was no evidence whatsoever upon which the jury could convict; in those circumstances they would have had no alterantive but to return a verdict of not guilty. And the same criticism, of course, must apply to the direction in the second paragraph from the excerpt quoted above.

42. We have given this objection the most anxious consideration and we must affirm that, in a case where the prosecution relies solely upon accomplice evidence, it is highly desirable that the judge's directions in that behalf should be clear and unequivocal.

43. We have considered the possibility that the jury, thus misdirected in relation to corroboration itself, and inadequately directed on their duty should they reject the accomplice evidence, might conceivably resort to the alleged corroborative matter taken by itself or perhaps with other elements in the case in concluding that the applicant was guilty. In the end however we are not persuaded that this is a realistic possibility. The jury must have found the accomplices sufficiently credible in themselves to warrant treating their evidence as substantially the truth. If they had entertained any reasonable doubt as to its substantial truth it seems very improbable that they would have felt themselves able to resolve that doubt by seizing upon the matters misidentified by the judge as corroboration.

44. For these reasons we think there is no substance in the points put forward in support of the application and it is therefore refused.

(1) (1977) A.C. 1

(2) (1950) A.C. 458

(3) (1967) 1 Q.B. 432

(4) (1900) 2 Q.B. 758