THE QUEEN v. TSUI LAI YING AND OTHERS

IN THE COURT OF APPEAL

1985, No. 406
(Criminal)

______

Dates of Hearing: 20^th – 24^th, 26^th & 27^th January 1987

The granting of immunities: Powers of A.G.

_______________

J U D G M E N T

_______________

Silke, J. A . :

1. This is the judgment of the Court.

2. Fourteen Defendants - and I shall refer to the Applicants in this Court by reference to their numbering as Defendants at trial - appeared before Wong J. and a jury upon a nine-count Indictment.

3. Tsui Lai Ying (F) – “D1” - was charged on the first and third counts, both of them conspiracy to traffic in dangerous drugs. On the first count, the period of the conspiracy was said to have been between 1978 and 1981 and the co-conspirator was named as Ko Yee Shui.

4. On the third count and there were charged with Dl, amongst others, Chan Ho Kuen - "D3" -; Kwok Kam Tong - “D4" -; Siu Nin – “D6” -; Yeung Chi Wai – “D8” -; Mak Hung – “D10” - and Chan Wai Shing – “D 11” -, the conspiracy was between January 1983 and July 1984. The co-conspirators named in the Particulars of Offence were Ko Yee Shui - "Ko” -, Allen Kam Chi Kuen – “Kam” - and Lau Kwok Wing - "Lau". In both those counts, others unnamed were referred to.

5. The fourth, seventh and eighth counts also alleged conspiracies at different times in 1983 and 1984 and were alternate to that in count three. We are not now concerned with those counts.

6. The fifth count was a substantive charge. It embraced D3 and D4 and a1leged that on the 17th day of July 1984 they were in possession, at Tai Po Road near Shatin, of 210.753 Kilogrammes of a mixture containing 157.973 kilogrammes of esters of morphine for the purpose of unlawful trafficking.

7. The sixth count was also substantive. It concerned D4 only. It alleged possession on the 17th day of July 1984, at Chap Ngai Kon New Village, Shatin of 46.668 kilogrammes of a mixture containing 43.459 kilogrammes of salts of esters of morphine for the purpose of unlawful trafficking.

8. The ninth count was again substantive.  It concerned D11 and another only.  It alleged that on the 19^th day of July 1984 at a flat at No.55 Ngau Tau Kok Road, Kowloon, he and the other had in their possession 233.896 kilogrammes of a mixture containing 195.470 kilogrammes of esters of morphine for the purpose of unlawful trafficking.

9. Dl was convicted on count three; D3 was convicted on counts 3 and D4 was convicted on counts 3, 5 and 6; D6 was convicted on count 3; D8 on count 3; D10 on count 3 and D11 on counts 3 and 9.  Sentences passed upon them were respectively D1 20 years; D3 20 years and 15 years concurrent; D4 17 years, 15 years and 13 years concurrent; D6 17 years; D8 17 years; D10 13 years and D11 16 years and 15 years concurrent.

10. The Applicants Dl, D3, D4, D6, D8, D10 and D11 now seek leave to appeal against both their convictions and their sentences.

11. For the sake of completion, Lee Ting Yeung - "D7" - was convicted upon count three and sentenced to a term of 6 years' imprisonment. He originally sought leave to appeal against both his conviction and his sentence. He has abandoned both applications.

12. At trial, the Crown relied heavily ort three accomplice witnesses named as co-conspirators and who gave evidence under immunity.

Background: D1 and Ko

13. The evidence against D1 on count 1 was solely that of Ko, the evidence on count 3 came from Ko and Kam. There was agreed evidence that she had remitted very large sums of money to Thailand through a finance firm called Chee Fap Hong and over a period of time. She had also made a statement to the police in which it is said she lied; such lies being advanced as corroboration of the accomplice evidence.

14. Ko, in the mid-seventies, had started his career as a seaman sailing between Hong Kong and Thailand. He met a man named, Choi Kin Wah, in Thailand who introduced him to others through whom he became involved in the trafficking of dangerous drugs. He had brought 24 pounds of heroin to Hong Kong, at a payment to him of $2,000 per pound, and was contacted by Choi Kin Wah whom he went to meet at the Luk Kwok Hotel in Wanchai. There were others there including D1 who was introduced to him as Mrs. Cheng. She was referred to by the nickname “Ah Shum". A Miss Chan arrived and arranged to take over the drugs from Ko. Later he handed them over to her near his home in Chai Wan Estate. He collected $40,000 to $50,000 from D1 at Whitty Street.

15. He next brought back 50 pounds of heroin which he again handed to Miss Chan. He received $100,000 from D1.

16. On two or three occasions he, acting on Dl’s instructions, handed over drugs to another woman - the quantity being between 40 and 50 pounds. On, some of these occasions he was paid by Dl but on others he received money from Boss Yip in Thailand.

17. He left his job as a seaman in 1981 to take up full time drug trafficking.  

18. In 1982 having agreed to go to sea to collect drugs, he went to Thailand to collect a ticket and cloth for identification purposes.

19. After his return from Thailand he went to Shaukeiwan where a man took him to a fishing boat on which he met the 2^nd Defendant at trial and two other men. They sailed to Pratas and returned with 100 pounds of heroin. A man called Jimmy paid him $50,000.

20. There was another trip about one month later which brought back 100 pounds of heroin and 100pounds of opium.

21. In order to make more money Ko asked a man to rent a place in To Kwa Wan for the storage of drugs. He went to sea on various other occasions with the 2nd Defendant.

22. The drugs, other than the opium, kept in the To Kwa Wan flat were sold. There was a quite coincidental robbery next door to that flat. In the course of their investigation the police discovered the store.

23. At the end of 1982, Dl telephoned Ko and arranged a meeting at the Plaza Hotel. There he met Dl and two women who were introduced as the wife and sister of Yip Sam Pak, who was the boss in Thailand. Ko was asked if he could sell 100 pounds of heroin base a month. He said that he had to discuss the matter with his friends.

24. Ko's evidence went on to involve D2 and D3 and it described a massive drug conspiracy which also involved D5, D6, D8, D9, D10 and D11 at various stages and in various degrees. Mr. Matthew with him Mr. Plowman, who appeared for D1 in this Court, has divided Ko's evidence into three phases. This was the first phase.  Ko said that the sale proceeds of drugs were given to D1.

25. In Mr. Matthew's second phase Kam, an ex-policeman, entered the picture. This spanned the period from August 1983 to January 1984. Ko was responsible for Kam's joining the conspiracy. It was their decision to buy a boat called the “Teresa” to sail out of Hong Kong to collect drug shipments. This boat was not subsequently used. There were shipments of drugs in September and November 1983 and January 1984. Ko said the information as to collection of the September shipment came from Dl. Kam was involved and he was taken, according to his evidence, by Ko to meet D1 to be complimented on his work. Ko denied that this took place. Again, says Ko, the sale money was delivered to D1 and he, upon her instructions, kept a record.

26. Between the November and the January shipments, one shipment was lost. Kam was suspected of having caused the loss. There was a row. Kam swore in the presence of Dl that he was not responsible and from thereon he dropped out of picture.

27. The third phase started in March of 1984 when Ko said he was contacted by D1 to get him to resume supply. Between March and July there were four consignments - March, April, May and July. The third co-conspirator, Lau, was involved in this phase but none of his evidence related to Dl. Again in relation to those shipments, Ko said that he received his instructions from Dl and that he took the sale money to her. She was driven by either Ko himself or his brother - Ko Ming Sai - in June and July 1984 to the Chee Fap Hong Finance Company to arrange the movement of the money to Thailand.

28. In the final shipment in July, the 2nd Defendant took no part he having decided to quit because he thought he was being followed. D10 came in as his replacement. After landing it was being carried in a van, driven by D3 with D4 and Ko as passengers, when it was intercepted at Tai Po Road – “the Tai Po Road seizure” count 5. The drugs were seized. D3, D4 and Ko were arrested. Ko turned informant and the manner of his turning and the inducements offered to him to give evidence will play a major part at a later stage of this appeal.

29. Dl gave evidence and called witnesses.  Basically, it was her defence that while she remitted money to Thailand, she had no idea at all that it was drug money.  To help people called Yip, she allowed herself to be used as a post-office by both Ko and Kam and she, other than the odd present of $2,000 or so from the Yips, made nothing out of it. She accepted that she had been introduced to Ko in 1978 by her brother-in-law and then met him again in 1981 when Ko_brought presents to Hong Kong from that brother-in-law who lived in Thailand. She arranged hotel accommodation in 1981 for the Yips as she herself was a travel agent and received a discount from the hotel. Later, and this within the period of count 3, she was again asked to arrange hotel accommodation and she met Yip. She looked after and provided services for Mrs. Yip and their daughter. She liked rich people and liked associating with them and was therefore prepared to help. She was told by Ko that the Yips were looking for someone who could be trusted to remit money to Thailand on their behalf. Whilst she was reluctant, she did in 1983 agree to arrange that sums of money, some of them being no more than $10,000, be transferred to Thailand. Over a six-month period a total of approximately $2m. was transmitted. In September 1983, she met Kam having been introduced to him by Ko as his legal consultant. Kam had, after leaving the police, been employed in a solicitors firm - at trial it was suggested that he was a mere tout. She again was asked to move money out and did so. Between September 1983 and July 1984 the total came to some $40m.

D3:

30. It was the case for the Crown that he was involved in the first and third phases as I have described them. He had been a fellow seaman of Ko's. They left the ship together in 1981. It was Ko's evidence that they formed a company with the idea of importing drugs into Hong Kong by means of containers. This never went into business.  Ko said that D3 re-entered the conspiracy in 1983 and his job was to find places where drugs could be stored. He found a place at Shatin. Drugs were brought in and D3 assisted in the movement of drugs. After a consignment had been seized in Shaukeiwan, D3 withdrew. D3 became again involved in the 1984 consignments and had hired and driven the van which carried the drugs seized at the Tai Po Road on the 17th July.

31. It was D3’s evidence that there was no truth in any of that which Ko had said. He did know him and they had been to sea together but D3 was a legitimate trader. His business ceased in 1983 when he went to work in an estate company. His only meetings with Ko were social ones. He had gone to Canada in early 1984 and he had lent Ko a car which he had hired. This was returned to him but Ko kept the keys. Shortly before the 17th of July, he was approached by Ko and asked to assist in the carrying of "goods”.  He was offered $2,000 in payment and he guessed that these goods were “water goods” or smuggled goods. He did hire the van and go with Ko to collect them.  He was arrested at Tai Po Road on his way to Shatin.

D4 :

32. The Crown's case was that he was recruited as a driver by Ko for the purpose of moving drugs around the Territory after their arrival here. He entered at the third phase. He had owed money to Ko and having been recruited, rented a flat at the Chap Ngai Kon NewVillage in Shatin for drugs storage. He moved into the premises on the 1st May 1984. There was evidence by Ko that he had moved in earlier.  In the start of July, a lorry was bought by the syndicate for the use of D4.  On the 16th July, D4 together with D3 and D10 went to look at a prospective landing place for a drug shipment which was to arrive on the 17th of July. On the 17th, Ko, D4 and D3 went to that landing place, collected the drugs and loaded them into a van hired by D3. D3 was the driver, Ko sat in the front passenger seat and D4 was in the rear. This van was intercepted at Tai Po and they were arrested.

33. Later, D4 and D3 were taken to the flat at Chap Ngai Kon New Village. Keys which had been found on D4 were used to open the main door. Inside the premises, there was a locked room.  None of D4's keys fitted. The door was broken down and the drugs referred to in count 6 were found and seized.  A1so found on that premises were rent receipts but these were not seized and were not available at trial.

34. On the 20th July, the police returned to the premises and found, secreted in a refrigerator, keys which did open the door of the locked room. It appeared that they had been overlooked during the course of the first visit and search.

35. D4 accepted that he knew Ko having met him first in 1979 when they were fellow seamen. He renewed his acquaintance with Ko in 1983 and in October of that year borrowed the sum of $20,000 from him to give to his friend who was going to the United Kingdom. Of this sum, he repaid $5,000 in December 1983 but the rest was outstanding.

36. Because of his financial circumstances, he needed assistance to pay the rent of his flat which was $2,500 per month. In April of 1984, Ko introduced a person named Chan Choi to him who would rent one of the rooms in that flat at $1,000 per month. Upon agreement being reached all the keys were given to the man Chan. Chan only remained there for a few days and D4 did not see him again after the 13th of July.

37. The lorry which he bought was for use in his decoration business. He had bought it by borrowing $20,000 from his brother. When he was in the process of buying this vehicle, Ko paged him and they met at the garage which was selling it. There Ko asked D4 to help him to deliver some goods, which he thought to be smuggled, from China. On the 16th of July, he went to a landing site with D3 and D10. He was asked to return with his lorry. He did so on the 11th of July but the goods were instead loaded into a van and the lorry was left at the scene. He was a passenger in the van and was arrested at Tai Po Road. He denied all connection with drugs.

D6:

38. D6 was a serving police constable. He knew Kam as the result of that man's police service. It was the prosecution case that D6 had been introduced to Ko by Kam. D6 owned a car, registered number BR8675. This car was seen by surveillance officers at the car Dark of the Marina Cove where Kam lived and at the Fuk Kwan Building in Aberdeen. Further observations recorded D6 as being seen on at least two occasions with Ko and on each occasion for some appreciable time.

39. Kam gave evidence that, after a shipment of dangerous drugs had been picked up in early September of 1983, and had first been taken to Marina Cove, he had left two suit cases full of drugs at D6's police quarters in Kwai Chung. The day after that deposit D6 had taken the dangerous drugs to a flat in Fuk Kwan Building which had been rented by one Chan Ka Chai for the purpose of storing drugs.

40. There was, however, a clear discrepancy in the Crown's evidence. The landlady of the Fuk Kwan Building flat said that it was not let to Chan, and he did not move in, until after the 30th of September. This was some weeks after the shipment had arrived and Kam had said the goods had been taken there.

41. D6 neither gave evidence nor called witnesses. He did, however, make a statement to the police which was introduced into evidence and in which he denied knowing Ko while admitting to knowing Kam.

D8:

42. D8 was implicated in the conspiracy by the evidence of Ko, Kam and by a statement he made to the police upon his arrest.  Kam named him as one of the crew members of the fishing junk which had sailed out of Hong Kong with the purpose of collecting dangerous drugs, in particular the consignment in September of 1983. Kam also implicated him in the November Shipment when the boat returned to Hong Kong carrying 10 gunny sack of esters of morphine.

43. In January 1984, Kam said he promised D8 $3,000 to sail out and collect further drugs which he did. This particular collection attracted the attention of the police and there was a chase by police launches and helicopters. The goods were dumped - the lost shipment - after which Kam moved out.

44. Ko’s evidence also placed D8 as one of the boat people engaged in the transport and collection of drugs. The statement made by D8, admitted after a voir dire, amounted to a full confession of his attachment to the conspiracy with which he was charged.

45. D8 gave evidence and the truth of the statement was strongly contested in front of the jury. He said that in late 1983, he had been introduced to Ko by the 2nd Defendant at trial and that Ko wanted to hire a boat to carry water goods. He was to be paid $20,000. He was told that there was a deposit of $100,000 with another fisherman in Shaukeiwan to cover any damage which might come to the boat. He agreed. He hired out the boat on three occasions to Ko but he himse1f never was a crew member on any of its journeys. He had no knowledge that the goods to be carried were dangerous drugs. The inducements alleged in the course of the voir dire and the trial judge's dealing with them forms the sole individual ground of appeal argued before us by Mr. Alderdice who appeared in this Court for him. It is submitted that the judge should not have admitted the statement into evidence.

D10:

46. The evidence against him came from Ko and from a statement which D10 had made to the police upon his arrest. Ko said that he approached D10 whom he had known for years and offered to pay him $800,000 to collect drugs from Pratas Island to which D10 agreed. The drugs were the Tai Po consignment seized on the 17th of July. Ko had gone with D3, D4 and D10 to have a look at the landing site on the 16th of July, D10 having paged Ko to tell him that the goods had arrived. The following day D3 and D4 went to collect the drugs in the early hours.

47. The statement made by D10 is a full confession to his part in the conspiracy and, as the trial judge pointed out, would be sufficient of itself to found a conviction.

48. D10 gave evidence and referred to his meetings with D3 and D4 with Ko. He said he simply got a lift to Tai Po from them. He was the possessor of a fishing boat for which he had paid $100,000 borrowing the balance of the $150,000 purchase price from his friends.  He had asked Ko to help him to decorate his new home, for he contemplated marriage. They discussed the fishing boat.

49. He had been arrested on the 27th November 1984 when he had gone to the Marine Department at Cheung Chau to cancel the registration of his fishing boat. He contested the truth of his statement by telling the jury that he and his family had been threatened and that he had been promised an immunity if he gave evidence.  Further he was told that if he gave a statement and an immunity were not given to him, he would only get two or three years whereas if he did not give a statement he would get twenty to twenty-five years. For the sake of his wife, he agreed to talk. He called a witness to say that he knew D10's fishing boat and that in July the boat was always in Sam Mun Chai where the witness had a fish farm. Again, it is the sole individual ground of appeal in relation to D10 that the judge should not have admitted his cautioned statement and had dealt with the inducement issue wrongly.

D11:

50. It was the Crown's case that D11 was the tenant of a flat in Lee Kee Building in Ngau Tau Kok. This had been visited by the police, acting upon information given to them by Ko, and the drugs, the subject of count 9, were found there. D11 had arrived there at the same time as the police were searching and on him be had the keys to the flat. Inside it was a locked door. D11 did not have the keys to this on him but they were found in an unlocked chest of drawers in the area of the main room. He was implicated by the evidence of the accomplice Lau.

51. D11 gave evidence and called his mother as a witness. His mother was the owner of the flat in Lee Kee Building. D11 said that he had been living there for about two years. He met a man named Wun Chi Kong in March or 1984. He let him a room at a price of $950 per month. This was the locked room in which the drugs were found. He said he gave Wun rent receipts and keys. Wun had brought his own bed and furniture to the flat when he moved in and at a later point had bought a chest of drawers. In June or July that chest or drawers had been moved into the living room. Wun had brought various people to the flat at various times. D11 denied any knowledge of the storage of drugs and was unaware of Wun’s whereabouts. The value of the drugs found was over $12.5 million.

Submissions

52. I would preface the consideration of this aspect by adopting the opening words of Mr. Thomas and make it clear that any criticism is of a general nature arid is not personal.

53. The submissions in this appeal have gone from the narrow to the very broad. Shortly, they are these: that conditional immunities, such as were granted here, are wrong in principle; that Article XV of the Letters Patent prohibits the giving of an immunity to principal offenders like Ko and Kam, and, to a lesser extent, Lau; that all matters surrounding a person given immunity should be before the Court and that they were not so here; that the involvement of the persons given immunity with drugs and circumstances of those men, from the time of their arrest until trial and at trial itself, were such that they were not persons who should have been offered as witnesses by the Crown whi1e the Attorney-General's power to give an immunity is not questioned, such power is circumscribed by the construction of Article xv and by sections 115 and 15(1) of the Criminal Procedure Ordinance; that a combination of these matters should have brought the judge in the exercise of his discretion and in the public interest - and this is Mr. Matthew's narrow point - to exclude, the accomplice evidence in the sense of directing the jury to ignore what they had heard and by refusing to permit those unheard to be called. The granting of the immunities is only questioned in the sense that, on the facts as they were known to the Court, there was an excess of power by the Attorney General and that the sanction which lies in a Court against such excess is the exclusion of the evidence. We should exercise a discretion which the trial judge wrongfully failed to exercise.

54. Mr. Thomas while adopting Mr. Matthew’s narrow point has raised the wider issues and I shall deal with those first.

55. Mr. Carlisle adopted the submissions of Mr. Matthew and to a lesser extent, those of Mr. Thomas in developing his arguments on behalf of D3 for whom he appeared. As did Mr. Alderdice who represented D8 and D10.

The wider issue

56. It concerns the duties and powers of the Attorney General in relation to prosecutions and the conduct of criminal trials. I do not intend to enter into any more general discussion of the Office of the Attorney General of Hong Kong than is necessary but it is Mr. Thomas' contention that the Office of the Attorney General of Hong Kong is different from the Office of Attorney General in the United Kingdom. The latter Office has developed over the centuries and is bound by conventions which have grown with it. These have now become effectively rules of law. In Hong Kong the Attorney General, whose form of appointment also differs from that of his English counterpart, can have no greater powers than those of the Governor of Territory who is the person who has the authority to make the appointment. A consideration of the powers of the Governor can come only from construction of the Letters Patent, the constitutional documents of Hong Kong.

57. Article XV of the Letters Patent (appendix I in volume 23 of the Laws) reads:

“When any crime or offence has been committed within the Colony, or for which the offender may be tried therein, the Governor may, as he shall see occasion, in Our name and on Our behalf, grant a pardon to any accomplice in such crime or offence who shall give such information as shall lead to the conviction of the principal offender, or of any one of such offenders, if more than one: ...... “.

On Mr. Thomas' construction, it is only the Governor, and in the Queen's name, who can grant an immunity. Further, immunity cannot be granted to anyone who is a "principal"' offender. He then takes us to section 115 of the Criminal Procedure Ordinance. This is a statutory provision peculiar to Hong Kong. It reads :

"115. A magistrate or the court may, with the consent in writing of the Attorney General, order that a pardon be granted to any person accused or suspected of, or committed for trial for any indictable offence, on condition of his giving full and true evidence on any preliminary inquiry or any trial; and such order shall have effect as a pardon by the Governor, but may be withdrawn by the magistrate or the court on proof that such person has withheld evidence or given false evidence.”

58. Mr. Thomas contends that it is the provisions of section 115 which provide the machinery by which an immunity may be given. It is necessary for the Attorney General in each case, where an immunity is contemplated, to come to Court and ask that such be given.

59. He then takes us to section 15 of the Criminal Procedure Ordinance which in its sub-section (1) reads:

“The Attorney General shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.”

If Mr. Thomas contends that this provision does not confer a general power on the Attorney General in respect of all matters relevant to his conduct of prosecutions but is there for the express purpose of permitting the Attorney General not “to interfere” if he considers that the prosecution of an accused is not in the interests of "public justice". It is limited to cases such as those in England where the Attorney General, having considered all aspects of an offence and of an offender, declines to prosecute for reasons of public interest. It does not cover the granting of an immunity.

60. I accept that the accountability of the Attorney General in Hong Kong is on a different plane from that of his United Kingdom counter-part. This stems from the very nature of the two different systems of Government: Ours being a non-ministerial system: the United Kingdom a full parliamentary, ministerial system with accountability to Parliament being the core of its existence. But, in Hong Kong, the Attorney General is still susceptible to having his conduct questioned by members of Legislative Council.

61. With respect to Mr. Thomas, I do not accept his narrow construction of Article XV of the Letters Patent on who can be given an immunity. The distinction he seeks to draw between “accomp1ice” on the one hand and “principal” on the other does not commend itself to me. In my judgment the true construction the Article is concerned with a person who was a participant in a crime and who is giving evidence against a co-participant who is on trial: the co-participant is, in that sense, the “principal”. To give the Article any other construction would be to impose an unreasonable fetter upon the Attorney General in his consideration of who should be a witness.

62. That having been said, criticisms may certainly be levelled at the grant of an immunity to a main participant in order to catch a minnow: but that does not, in my view, alter the Attorney General's right to act in that way. While section 115 of the Criminal Procedure Ordinance is an unusual provision - no one is aware of its use for many years past - I cannot think that it was intended to be the only method by which an immunity can be granted to a criminal participant who was prepared to inform upon and give evidence against his co-partners in crime. The office of the Attorney General in Hong Kong must be invested with the ordinary Common Law powers that clothe its United Kingdom counterpart. The prerogative of mercy is that of the Sovereign and She has here, by virtue of Article XV of the Letters Patent invested that prerogative in the Governor who stands in Her place. The Attorney General is the senior Law Officer of the Crown and it falls upon his shoulders to develop and to control the administration of the criminal law in the public interest generally and in the interests of “public justice”. It would be unrealistic to expect the Governor to deal with such matters personally. I do not accept Mr. Thomas' construction of Article XV. Further section 115 of the Criminal Procedure Ordinance is not the only machinery by which an immunity is granted. That is intended to deal with something which occurs during the course of an actual trial.  Section 15, combined with the ordinary Common Law powers inherent in the office of Attorney General, does give the Attorney the power to control prosecutions – and this includes the giving of an immunity.

63. But all this is not so much directed to his actual power to grant an immunity but to suggest that that power is a limited one, limited that is by the Royal Prerogative as it has devolved in Hong Kong. Here, says Mr. Thomas, the granting of the immunities was unlawful and in excess of power. It was scandalous.  There being no parliamentary system in Hong Kong whereby such an abuse of power could be questioned in the equivalent of a House of Commons it falls to the Court of Appeal to protect public interest and to see that pub1ic justice is not undermined: he seeks to argue that the Court may inquire into the exercise of the Attorney General's executive discretion.

Conditional immunities

64. The immunities granted to all three of the accomplices were conditional. Only Ko had been prosecuted to conviction prior to his giving evidence. There seems no suggestion that Kam would ever be charged and, while Lau was himself charged, a nolle had been entered.

65. It is one of the Appellant's main contentions that conditional immunities are wrong in principle. While Ko was convicted on one count, he nevertheless could well have been re-arraigned on other offences had his evidence not been to the satisfaction of the Attorney General. The same applied with greater force to both Kam and to Lau.

66. Reliance is placed upon Turner(1) which has indicated the dangers of conditional immunities and the reasons why they are not used in the United Kingdom. We have also been referred to Pipe(2), Ex-parte Schneider(3) and Macdonald(4).

67. I accept that, certainly in England and probably in Australia, conditional immunities are not given. The principle is that before a person gives evidence all charges against him should be disposed of.  In Turner(1), the Crown went to extraordinary lengths to ensure that this was so, erecting what can only be termed a fictitious conspiracy charge of such wide application that, once it was disposed of, Smalls could not be charged with any offence of any kind whatever emerging from the evidence he was to give in Court.  The granting of immunities has always been considered distasteful. The Courts, however, appreciate that there are times when the Attorney General is forced, in order to bring home a prosecution, to use persons who have been participants in the offences charged as witnesses against their co-participants. In 1650, Chief Justice Hale condemned in strong language the "plea of approvement”, which was the precursor of the modern practice of granting immunity He said:

"The truth is that more mischief hath come to good men, by these kinds of approvements, by false accusations, of desperate villains than benefit to the public by the discovery and convicting, of real offenders.”

This passage was quoted in the judgment of the Court of Appeal in Turner(1) and Lawton L. felt that nothing which could be said by that Court would add either to the weight of ethical condemnation or dissipate it.  It was however a matter which should be constantly in the mind of the Director of Public Prosecutions in the mind of the Director of Public Prosecutions – in Hong Kong, the Attorney General.

68. Lawton L.J. also said that:

"nothing of a similar kind must ever happen again"

69. It is interesting to note that Lord Dilhorne commenting on this said in D.P.P. v. Brown and Others:

“I am wondering to what extent it is right for any Court to give directions to the Director as to how he should conduct his business.  The Director of Public Prosecutions works under the Attorney General; he does not work under any judges at all and any directions he receives as to the way in which he does his work surely must come from the Attorney General. I would have thought it quite wrong for it to come from any judicial authority at all.  He may be condemned for what he has done but he must not be told what he has got to do in the future."

Brown is an unreported decision and the passage I have quoted comes from “The Attorney General, Politics and the Public Interest" by Edwards: 1984 Edition which I accept was not cited to us.

70. In Hong Kong, the practice is, and has been over the years, to give immunities in the form that they were given here. This dangles an added incentive before the accomplice to live up to proof.  It adds a significant factor to the evaluation of the evidence he gives. The person in receipt of such an immunity may, in the words of Leonard J.A. in The Queen v. Li Wai Ki(5), “tend to give information which they think their interrogator wants."

71. Mr. Duckett has prayed in aid section 115 of the Criminal Procedure Ordinance as to the propriety of conditional immunities for there that form is clearly given legislative sanction.

72. One would have expected here long and hard thinking before persons such as Ko and Kam were given immunities.  And before the giving of the inducements, to which I shall make reference later, which were offered to them to inform. It is difficult not to feel distaste at what took place, but the Attorney's hands were, to an extent, tied by the actions of the police upon the arrest of Ko and by their initial dealings with Kam. In this regard, we would repeat and emphasize the words of Kempster J. A. in delivering the judgment of the Court in The Queen v. Hui Sing Keung(6) where he said:

"Before parting with this case we think it proper to put on record our concern at the way immunities were initially offered by the police, with no apparent reference to the Director of Public Prosecution or to the Attorney General at the time, though subsequently granted by or on behalf of the Attorney General."

73. It should be remembered that if immunities are not conditional there is always the possibility that an accomplice, having been let off lightly, might resile in the box with the result that no prosecution could be brought home for serious offences. This is something which must be guarded against.

74. But that leaves the issue as to whether the granting was scandalous and contrary to public policy which in turn leads to the consideration of the powers of the Court to enquire into the exercise of the Attorney General's powers and that devolves into a discussion of what has been termed the "Hodge Application". The issue is genera1ly what, if any, sanctions lie with the Court so as to fetter that exercise.

The background to the immunities

75. Ko, upon his arrest on the 17th of July was prepared to treat with the po1ice. He was prepared to make a statement detailing his knowledge of and his dealings with persons involved in the important wholesale distribution of drugs and to give evidence against them in Court, if required. He was prepared to supply information which would lead directly to the seizure of a large quantity of heroin base and some firearms.  But he required certain advantages. First, protection for his wife and children who were living in Hong Kong. This was agreed. Second, a cell separate from other persons when he was imprisoned.  It was agreed that the Commissioner of Correctional Services be asked to provide this. Third, information money in respect of drugs and firearms seized as a result of his information. Initially this was agreed with the proviso that it would be paid only if it were established that the drugs and the firearms did not belong to Ko himself. He was told that in order to get the money, it would be necessary for any information he gave to lead directly to seizure otherwise he would only receive information money at a reduced rate.

76. Being satisfied with these arrangements, the police to the Ngau Tau Kok Road premises where drugs in count 9 were found. There were also found two automatic pistols and 100 rounds of ammunition.  D11 and the 12th Defendant were arrested.

77. These were Ko's own drugs. But despite this, he was paid the information money and I shall come back to that in a moment.

78. He made a large number of statements during the period 19th July 1984 to 25th March 1985. These statements were in the hands of the defence. It is noteworthy that the preamble to the statement made on the 7th September 1984, after advantages were offered to him, starts :

“I am not under any threat, inducement or offer of promise on giving this statement. I am told that this statement will not be used against one (sic) in future trial. I am willing to give evidence in court in future.”

It would be immediately seen that, from the very start, any statement that were given by Ko were inadmissible in evidence at any subsequent trial which concerned him. A partial immunity though not in writing, was given to Ko at some stage prior to his own appearance in Court and this was to cover drugs and firearms offences other than his possession of drugs on the 17th of July at Tai Po R6ad. This was apparently agreed in principle by the Attorney General's Chambers on the 8th August 1984, subject to Ko's giving full and true evidence at any trial in which he was called as a witness.

79. Ko appeared for trial before Macd6ugall J. on the 8th November 1984 on 8 charge of possession of drugs for the purpose of unlawful trafficking - the Tai Po Road seizure. He pleaded guilty. He received a sentence of 7 years’ imprisonment, a sentence very much 1ower than that which he might have expected, given the very substantial quantity of the drugs found.

80. He had, before going to Court, been paid some $800,000 as part of the information money and the balance was paid to him after his plea. He received in all some $1.28m. This was not brought to the attention of the sentencing judge.  It should have been.

81. In the course of that hearing he made application for the return of some $640,000 which had been seized from the flat of his girl-friend. The matter was not then dealt with. The application came on for hearing before Barnes J. later.

82. Prior to his appearance in Court there had been an exchange of correspondence between Mr. A1derdice and Mr. A. S. Hodge, the Deputy Crown Prosecutor. Mr. A1derdice, led by Mr. Corrigan, was to appear for Ko on his trial. Mr. Hodge agreed in a letter dated the 25th October 1984 that the Crown was prepared to accept Ko’s offer to give evidence on the basis that it would not proceed against him for any offence he disclosed in the course of that evidence provided that his evidence was a full and true account of his and the others involvement in drugs offences for which they would stand indicted.

83. In an earlier letter from Mr. A1derdice there had been reference to the $640,000 cash found at the girlfriend’s flat. Later it was confirmed to Ko in the presence of his legal advisers that the Crown would not seek to interfere with his app1ication. This agreement is one which could in no way be binding on the Court.  Its effect was that the Crown agreed to mislead the Court. It could have no other effect. We consider arrangements such as these to be quite improper and they should never occur again.

84. When the matter came on before Barnes J., the Crown did not attempt to establish that this was drug money. Ko gave perjured evidence to the effect that it was not. The judge took it upon himself, and quite rightly, to test the matter more fully. As a result, Ko. did not succeed in retrieving the sum.

85. The formal immunity was granted to Ko on the 30th April 1985, and I set it out in full for the immunities to each of the accomplices were in common form:

"I hereby inform you that on condition that you give full and true evidence at the trial of TSUI Lai-ying and sixteen others in connection with the offences of conspiracy to traffic in dangerous drugs, possession of a dangerous drug for the purpose of unlawful trafficking and possession of Arms and Ammunition without a licence which said offences are alleged to have occurred between 1978 and the 17th day of July 1984, and at any subsequent trial or trials arising out of the abovementioned offences, no prosecution will be instituted against you in respect of any criminal offences connected with the above-mentioned offences which may be disclosed by you in the course of your testimony during the said proceedings."

The immunity to Kam

86. Kam had been a member of the Royal Hong Kong Police Force and, after resignation, a “clerk” in a solicitors firm. He was a registered police informer from 1981. On the 14th February 1984, he met a senior police officer and gave information concerning drug offences on the understanding that such information would not be used against him. This information concerned Ko and his drug trafficking. Kam told the police that he agreed to assist in this; that he had gone to Thailand; that he had sailed from Hong Kong to Pratas to liaise with a Thai trawler in order to collect drugs and arms and ammunition; that he went to Sai Kung and told Ko of the arrival of the items; that he received $606,000 from Ko as a reward for his work. He described the second shipment for which he received $800,000 from Ko as a reward.  He described two unsuccessful attempts to collect drugs and a further attempt which succeeded in so far as collecting the drugs - this on the 15th January 1984 but the delivery of which was Impeded by a chase by speedboats and helicopters. The drugs were thrown overboard but remained afloat. He described further involvement with Ko and his explanation as to why this particular consignment was lost. He claimed to be in possession of full detail about Ko, including Ko's bank account number, but he would not give those details “at that time”.  On the. 22nd February, there was yet another meeting when he told the police he had resolved his difficulties with Ko as to the loss of the 15th January shipment.

87. No action was taken by the police against Ko as a result of this information. Kam was permitted to leave Hong Kong with his family and to travel to Taiwan. Subsequently, Kam agreed to come back to Hong Kong but only if he were given an immunity. He was never prosecuted for any offences but was paid the sum of $640,000 as reward money. He also was given formal immunity on the 30th April 1985.

Immunity to Lau

88. Lau was arrested on the 24th August 19B4 in relation to the Ngau Tau Kok seizure - count 9. He was charged on the 27th August. He gave a statement after charge on condition it would not be used as evidence against him. He disclosed the names of other persons. They were arrested as a result. He offered himself as a Crown witness. On the 1st September 1984, it was agreed in principle that Lau be given an immunity. On the 1st October 1984, the Attorney General entered a nolle prosequi in respect of the charges which Lau faced. He was placed under police protection. He also received his formal immunity on the 30th April 1985. He was not paid any reward money nor, of course, was he ever convicted by a Court. Lau played only a peripheral part both in argument before us and at the trial.

The “Hodge Application”

89. There had been, in the course of the prosecution's case, an application to exclude the evidence which Ko had given and to exclude the evidence which Kam and Lau were about to give. This application was refused by the trial judge who intimated that he would give strong directions to the jury.

90. Towards the close of the defence case, a subpoena was issued to Mr. A.S. Hodge, whose signature appeared on the formal immunities. There had been in the course of the trial a prior summons issued to the Attorney General for the production of documents. The Hodge subpoena was at the application first of one counsel and then renewed with all other counsel, save one, joining in. The Crown sought to have it set aside. There was argument as to whether that application should be treated as a separate miscellaneous proceedings of a civil nature or as to whether it should be an application within the criminal trial. It proceeded as an application within the criminal trial and that decision is not in contest here.

91. What is contested is the judge's discharge of the subpoena. In support of  the application for discharge, Mr. Hodge had filed an affidavit which stated, inter alia, that he could give no “material evidence”. I accept that, in different circumstances and had Mr. Hodge been coming before the Court simply as a public official, such affidavit would not be sufficient to excuse his attendance. It would be for the Court to decide whether his evidence was material or not. It would be for the Court to rule, should privilege be claimed or should there be a refusal to answer on the ground of public interest immunity - which is really another way of describing privilege - as and when the issue arose in the course of the evidence. Normally, it is only if it is clear that a public officer can give no relevant evidence and that the issue of such summons amounts to an abuse of the process of the Court that it should be discharged.

92. But the situation here was different. The purpose of the application was said to be to bring Mr. Hodge before the Court to find our if there was anything else known to him relating to the inducements offered to the accomplices and the granting of the immunities which was not then known to the Court and the defence.

93. Unfortunately, the argument became bedevilled by the issues of the prerogative and of public interest immunity. Up and until the issue of the subpoena, the Crown had been very co-operative with the defence.

94. I would wish to emphasize that no one has criticised the conduct of the prosecution by Mr. Jennings who appeared for the Crown in the Court below. Indeed, everyone has gone out of their way to underline how fair and helpful he was.

95. However from then on Mr. Jennings, whom it would appear was acting under instructions, would concede no more than that immunities were given on the 30th April 1985. It is noteworthy that the one counsel who, did not join in the application to call Mr. Hodge did so, as we were told by Mr. Alderdice in the course of argument, for the express purpose of being able to cross-examine Mr. Hodge. The argument in relation to this matter, presented by counsel other than those directly involved at trial, was heard, at the request of the defence, in front of the jury.

96. It is clear beyond peradventure that in cases like this the accomplice should be presented to the Court warts and all. The defence, is entitled to know everything about him, the terms of the immunity and any matters surrounding it which could affect the credibility of his evidence. It is the complaint here that Ko, at least, was not so presented to the Court and that Mr. Hodge could have supplemented the information which the defence already had were he permitted to give evidence, Mr. Matthews submits that even now not all the circumstances are known to the Court. For example: Who agreed to a provisional immunity at an early stage?  Why did the Alderdice's correspondence not come to light until the “Hodge Application"? And he asks: Could there be other matters which have not yet come to light?

97. There were available, as witnesses, to the defence the police officers concerned both with Ko and with Kam. Superintendent Carlysle returned from France and was present outside the Court for the purpose of giving evidence if required. The police officer who dealt with Kam did not give evidence. It is Mr. Duckett's contention that everything was given to the defence, that there was nothing new in the Alderdice's correspondence and that had they wished to cross-examine further on the matter, the witnesses were all available.

98. Mr. Hodge was acting in his official capacity and for and on behalf of the Attorney General when he gave the immunities. He had been involved in the actual prosecution of Ko when he pleaded guilty. The trial judge's ruling started by referring to the issue which was raised as being of considerable “constitutional importance.” He considered the submissions made to him on Gouriet v. The Union of Post Office Workers(7) and The Queen v. Cheung Sou Yat(8) and with The Queen v. Godber(9).  He reached the conclusion that the powers of the Attorney General, whether he is exercising a discretion or acting by virtue of the prerogative, are not absolute and that they can, under certain circumstances and on rare occasions, be inquired into by the Courts. He was satisfied that this instant case was not one which called for the intervention of the Court.  Having so concluded, he went on to consider the question of public interest.  He had no proof of evidence from Mr. Hodge but he stated himself to be satisfied that Mr. Hodge could not give material evidence in the trial and that the question of public policy did not arise. 

99. I take the view that the "Hodge Application” was not simply one to gain further information about the background to the grant of immunity but was a barely disguised attempt to question the granting of the immunity itself. Mr. Duckett advances the proposition that in Cheung Sou Yat(8) ,where it was held by both Cons J. and Yang J. (as they both then were), following Padfield v The Minister of Agriculture, Fisheries and Food(10), that the exercise of executive discretion can be inquired into was wrongly decided. Cons J. said that he found nothing in Gouriet(7) to contradict the basic principles of Padfield(10) that the Courts may look to see if the discretion has been properly exercise according to law.  And Yang J., while accepting as a general proposition of law that the Courts cannot review the Attorney General's exercise of his discretion, went on to say that it seemed to him at least arguable on general principles that, when the only conclusion which may reasonably be drawn from the Attorney General's conduct is that he has failed to represent public interest or that he has applied his mind solely to irrelevant matters, the Courts would be entitled to intervene.

100. In The Council of Civil Service Unions v. The Minister for the Civil Service(11) it was held, inter alia, that executive action was not immune from judicial review merely because it was carried out in pursuant of a power derived from common law, or prerogative, rather than from a statutory source. The Court was there considering the duty of a Minister to act fairly.

101. Mr. Duckett contends that the Court in Cheung Sou Yat(8) misread, and therefore misapplied, Padfield(10).  He contends for something not unlike the divine right of Kings to apply to the exercise of his powers by the Attorney General. I do not agree. I think, as the judge here said, that there may, in exceptional circumstances, be a right to review the exercise of those powers. I think the judge to have been right when he said that the circumstances here did not call for intervention by the Courts and, on this ground in any event, in discharging the summons to Mr. Hodge. Given that all the police witnesses were available, I do not see how Mr. Hodge could have assisted at the trial - even if the only question to be asked of him were "Is there anything, more to tell us?"

102. That is, of course, not the end of the matter for the issue still remains of the judge's discretion to exclude the evidence of the immune witnesses, which discretion he declined to exercise. Ko was clearly a perjurer, a criminal and a liar. He lied in the course of his evidence at trial, being quite prepared to say that D3 was present at some of the shipments at a time when D3 was in Canada. He attempted to glide over this by saying “Oh! It must have been a friend of D3, not D3.”  But that is not good enough. He was given vast inducements to give evidence. He was given a very light sentence in the context of the offence with which he was charged.

103. Kam was a police informer.  He did tell the police at an early stage of Ko’s activities.  Yet no action was taken on Ko and the disclosed activities and Kam was allowed to leave Hong Kong.  He returned only upon the promise of an immunity and he was never charged with any offence.  He also was given considerable inducement to give evidence.

104. Lau is somewhat more straightforward but he had the inducement of no prosecution to make him live up to proof.  It must be remembered that full and true evidence meant adhereing to their police statements for it is upon the basis of them that the accomplices were given their immunities.  This was certainly a case when very serious consideration needed to be given by the judge as to whether or not he would exclude the evidence of those witnesses from the jury.

105. Having heard the evidence of Ko, being fully aware of the nature of the accomplices, being in receipt of the prior submissions on exclusion, and of those made on the "Hodge Application", the judge was in a strong position to evaluate the exercise of his discretion. Had he been asked explicitly at the time of the “Hodge Application" to exclude the evidence from the jury, it might be that he would have exercised it differently. But he was not. This is, however, to speculate.

106. Credibility is clearly a jury question. The issue here is: Were the witnesses so inherently incredible and was the background of the granting of the immunities to them so much against the public interest that the trial judge, in permitting their evidence to go before the jury, was wrong in the exercise of his discretion.

107. It is not for us to substitute our discretion for that of the trial judge unless we think that he took into consideration matters which he should not, failed to consider matters which he should or was plainly wrong.

108. Exclusion should be viewed in the light of all the known facts. The Court does not act as a disciplinary tribunal in respect of either the Attorney General or, for that matter, the police. Exclusion should not be treated as a sanction unless the evidence called or to be called is of so unconsionable a nature that it should not be admitted.  One views with distaste the benefits which accrued to both Ko and Kam and the circumstances surrounding the grant of immunity to them. One may well wonder what is the purpose           of having informers such as Kam if their information is, as is apparently the case here, totally ignored. But, as I have said, credibility is for a properly directed jury and there is no quarrel that here the jury were properly directed. They were given very strong directions indeed in relation to the nature of the witnesses and of the dangers of relying upon their uncorroborated evidence. Though with some hesitation, I am not prepared to say that the trial judge exercised his discretion wrongly.

Individual Defendants

109. To turn to the grounds relating to the individual Defendants. Leaving aside for a moment Dl, D6, D8 and D10, one ground common to D3, D4 and D11 gives us cause for concern and we shall deal with them first.

D3-D4-D11

110. It is clear that the jury took to heart the judge’s directions on the dangers of convicting on uncorroborated accomplice evidence. Where the judge directed them that there was no corroboration they acquitted. His directions on what was corroborative assumed major importance. The directions which he gave were, with respect, wrong.  A measure of blame for this must be born by the draftsman of the Indictment.  To combine conspiracy charges with substantive charges relating to possession of dangerous drugs for unlawful trafficking, which involve presumptions, is a recipe for disaster.  The trial judge was not asked to put the prosecution to their election nor did he himself take that course.  This was, perhaps, unfortunate.

111. “Of D3 (page 59), the judge said:

“The presumption here would act as corroboration and also additional evidence to Ko Yee-shui’s evidence. In any event the fact that the 3^rd accused is found inside the van and the boxes and bags turned out to contain the dangerous drugs together with the statutory presumptions is not only additional and independent evidence to prove the offence against the 3rd accused and as I have mentioned it is also evidence which is capable of corroborating the evidence of Ko Yee-shui.”

112. Of D4, he said:

“With regard to Count 3” (the conspiracy) “you have the evidence of KO Yee-shui and also the evidence of the two counts of possession together with their statutory presumptions. The evidence of the possession counts is also evidence capable of corroborating KO Yee-shui's evidence against the 4th accused in respect of all the counts."

Of D11, he said:

"Because of the fact that the 11th accused was the tenant or occupier of the flat and he was found with keys of that flat, the statutory presumptions come into operation and he is required to rebut those presumptions on a balance of probability. I have dealt with the law when I dealt with the cases of the 3rd and 4th accused and I will not labour these points again."

He went on:

"The evidence in support of the possession count is of course part of the evidence of the conspiracy count, and not only that, it is capable of corroborating the evidence of the accomplices."

113. In Ng Hoi Bun(12), the Court of Appeal had for consideration the following direction given by the judge:

"The only evidence which is capable of corroborating the accomplice that the accused manufactured dangerous drugs would be the presumption that he did so because he was found in the premises where dangerous drugs were being manufactured, such presumption not having been rebutted. As I have said, if the presumption is rebutted, there is no corroboration, then you would be left with the evidence of the accomplice which you would consider in the manner I have described.”

It was there held that this was a misdirection and Bewley J. in delivering the judgment of the Court said at page 4:

“If the jury came to the conclusion that the presumption had not been rebutted, they were bound to convict on the first count. If they did so because they rejected the applicant's evidence, without considering Hung's evidence, the misdirection was immaterial.”

And then he went on:

“But if they took Hung's evidence into account in deciding that the presumption had not been rebutted, did they appreciate that they were dealing with evidence on which it was dangerous to rely?"

The Court felt that they could not tell which way the jury approached the matter and that, therefore, the misdirection was fatal to the conviction.

114. I take the same view here. Presumptions of themselves are not evidence.  The directions given by the trial judge would necessitate a finding of guilt on the substantive charge before the jury could then go on to consider whether Ko was corroborated.  This cannot be right.

115. Other grounds have also been advanced in respect of these three. Defendants. I do not think it necessary to consider them. Their convictions cannot stand. I would wish to hear counsel as to a re-trial but only upon the substantive counts.

D8-D10

116. The only individual ground advanced in respect of D8 and D10 by Mr. Alderdice was that the judge erred in admitting their cautioned statements.  In the course of his lengthy ruling upon the voir dire, the trial judge said of the allegations at trial, they being that both were induced to make their incriminatory statements by the offer of immun1ties.

"Be that as it may, I am satisfied this issue can be, and must be, separated from the question of voluntariness of the statements made by the accused. Because of what the police did to Ko, Kam and Lau, it would be so easy for any accused to pick up the allegation that they were told when they were interviewed that they would become prosecution witnesses if they agreed to give or sign statements. A line has to be drawn. The Police could not have all the suspects as witnesses, otherwise there would be no one in the dock. It would be absolutely pointless to have witnesses and the suspects must have realised this when they were interviewed."

117. It is Mr. Alderdice's submission that, given the circumstances of this case, the trial judge should not have separated his consideration of the background to the immunities given to the accomplice witnesses from his consideration of the defence evidence on the voir dire that D8 and D10 thought themselves to be making witness statements without the danger of those statements being used against them later.

118. He submits that the judge’s approach was wrong. D8 was an illiterate boatman and D10 not a man of high education. Both entered into the transactions at a later stage. They would, he suggests, have been ideal witnesses, low in culpability but nigh in knowledge. Ideal persons to be given immunity. This gives colour to their allegations and that which the judge said was speculation and something upon which he should not have relied.

119. I do not consider these comments to have been speculation. They were reasons as to why the judge rejected the allegations.  It is a view, on the evidence, which he was entitled to take. It reflected his disbelief of the allegations. In my judgment he was not wrong to admit the statements.

D6:

120. The only corroboration in his case was that which was said to be a lie contained in his statement to the police. He admitted knowing Allen Kam but, upon being shown a photograph of Ko, stated he had never seen the man.

It is Mr. Thomas' submission that this lie is not capable of being corroboration. It is not specific to the count and does not corroborate in a material particular offence charged nor the participation of D6 in it. It relates to only one of the accomplices. There could be any number of reasons for a serving police constable to deny knowledge of Ko without any of them being an avoidance of the truth or an indicator of guilt. In his summing up, the trial judge said, having recited the evidence of those who had kept watch and had seen Ko and D6 together on the 6th of Ju1y in a restaurant at "Choi Wan Estate and again with Ko on the 13^th of July having tea in a restaurant in Mongkok:

"If you are satisfied so that you are sure what he told the police in his statement that he did not know KO Yee-shui is a lie and it fulfills the same conditions as I explained to you in the case of the 1st accused, then this statement is capable of corroboration.”

121. Mr. Thomas complains that this passage did not reiterate in full the earlier Lucas(13) direction on lies. There judge had reminded the Jury that sometimes people tell lies in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behaviour from their family.  That they must first find it was a lie and then consider whether or not it amounted to corroboration.  The failure to repeat this direction when he came to D6 is, says Mr. Thomas, a short cut which is not permissible.  Further, he says that the trial judge failed to remind the jury that evidence relating to D6’s car being in a car park, and which related to Kam’s dealings with drugs, had been agreed as not corroborative.

122. There was evidence, which the jury were entitled to accept, that the denial of knowledge of Ko by D6 was a lie. It was not, as Mr. Thomas would have it, equivocal.

123. It was a matter for the jury whether they thought the passage in the statement to be a deliberate lie and, if it were, did it, relate to a material issue.

124. The Judge's duty to direct the jury on the way in which they should deal with evidence such as this was clearly fulfilled by the earlier direction. I do not see the necessity for constant repetition of directions of this kind particularly when here the earlier direction came close in time to the judge's dealing with D6.

125. D6 gave no evidence. The jury did not have before them any explanation by him of that which was capable of being considered by them to be a lie. One of the last directions given in the course of the summing up by the judge was that accomplice witnesses must be considered credible before the jury looks for corroboration which is further than the present state of the authorities requires.  The jury accepted that D6 did lie.  In the context of the whole, of the evidence, it was material to the charge that Ko was unknown to him. It was open to the jury to consider that the denial of knowing Ko was an attempt by D6 to lie his way out of that charge.

D1:

126. Mr. Matthews submits that the trial judge failed adequately to direct the jury as to the nature and substance of the defence, and particularly in regard to the evidence of the accountant Lee Ho Ying called by D1 as a witness.

127. The Crown had opened their case on the basis that D1 was the leading light in the conspiracy. This was clearly based upon the evidence which Ko had provided in his statements.  As the trial progressed, it became clear that this was not so. Ko gave all the appearance of attempting to minimize his role. The Crown conceded at the end of the trial that, while they persisted in their allegation that she was a participant, they did not then advance their case on the basis that D1 was the “queen pin”. 

128. The more the evidence of Ko progressed the clearer it became that he was the "king pin".

129. 'There was no evidence that D1 herself acquired wealth from the part she p1ayed. She denied all knowledge that the money she transferred was drug money. It was her main contention that she simply assisted the Yips in the transfer of money out of the then hazardous economic climate of Hong Kong.  She called the accountant as a witness to indicate that, from his examination of Ko’s notebook, Ko had been withholding from her massive sums of money.  D1 started by remitting small sums which bore little relation to the massive amounts which must have been realized from the sale of drugs.  While the sums transmitted grew in quantity in and after 1983, those remittances were consistent with her story of at first minor assistance on transfer and then greater assistance at a time when people were taking the money out of Hong Kong for safety. D1 pictured herself as a person willing to assist the very rich Yips because she liked associating with rich people and also as part of her travel agency business.

130. She had in her statement denied knowledge of Ko. There was clear evidence she knew Ko. She gave an explanation that, when she denied knowledge of him, she had been shocked and confused after her arrest by the police. She said that she had got advice at second hand from a solicitor's clerk that when she was speaking to the police she should either say nothing or she should say she did not know anything if she were not sure.

131. The jury received proper directions. It was for them to evaluate explanation and to consider the evidence generally. 

132. She had been acquitted on the first count where the only evidence was that of Ko. On the third count, in addition to Ko's evidence there was the agreed evidence of these large remittances by her through the firm Chee Fap Hong to Thai1and. That firm did not require those who transmitted money through it to identify themselves with their true identity.

133. The accountant had said that on his calculations, based solely on Ko's notebook.  Ko would have made a loss of about $2m.  It was in this context that the judge said at page 12 of the summing up:

“     There is no doubt that he (Ko) was lying about how much he made out of his dealings in dangerous drugs and certainly for good reasons. He would not want the police or the authorities to know about his money for fear of losing it. And would he let his boss and fellow traffickers know that he had cheated them?

We do not really need an accountant to tell us all this, do we? Figures do not really mean a thing, do they? After all, we are not dealing with a case of fraud or false accounting. It is a matter for you, members of the jury.”

134. Mr. Matthews complains that this passage discredited the accountant’s evidence, that it is a wrong appreciation of it and as to why the accountant was called.

135. Of the accountant, the judge further said:

"For reasons which I have told you before, you may think that the evidence of the accountant is important and you may think it is not important or perhaps unnecessary. It is a matter for you."

The "reasons" to which he referred are contained in the passage quoted above. The jury were asked to consider in relation to Ko's notebook:

"Do you think that KO Yee-shui was really so stupid to take the risk of revealing his dangerous drugs activities to some outsiders  quite unnecessarily?"

136. The judge concluded his treatment of D1 by saying:

"  My own view and of course you must disregard it if you do not agree is that the case of the 1st accused is very simple. If at the end of the day you are satisfied so that you are sure that at the time she remitted the money she knew it was money from dangerous drugs you will find her guilty of Count 3.

So far as Count 1 is concerned you only have the evidence of KO Yee-shui and, of course, if you accept that her statement to the police contained the lies I have mentioned and it also satisfied the four conditions then it is evidence of corroboration.”

137. I accept Mr. Duckett's. basic contention that we should look at the summing up overall in considering whether there was a material omission in the putting of the case for the defence. For practical purposes, it was necessary for D1 to explain the fact of the transmission of these very large sums and their origin. She accepted that they came from Ko and stated that she was simply being used as a conduit pipe.

138. The judge had underlined the lies that Ko told in the course of his evidence to the jury. He had underlined that Ko and Kam had interests to serve which might have motivated them to give the evidence they did. He reminded the jury that the evidence of one accomplice cannot corroborate another. It would have been preferable had he developed further the theme of the accountant's evidence in direct relation to D1 but I do not view his failure to do so as a material non-direction. I harbour no lurking doubt. It was for the jury to assess the evidence and to assess the explanation. Upon both they had been properly directed.

139. The applications of D1, D6, D8 and D10: Count 3: are dismissed.

140. The Applications of D3: Counts 3 and 5:  D4: Counts 3, 5 and 6; D11: Counts 3 and 9: are granted, the hearing treated as the appeal and the appeal allowed. The convictions are quashed and sentences set aside.

141. We wish to hear counsel on the matter of a re-trial of D3 on Count 5, D4 on Counts 5 and 6 and D11 on Count 9.

142. There remains also the matter of sentence in respect of D1, D6, D8 and D10.

(Having heard submissions)

143. This is the application by the Crown in respect of D3, D4 and D11 for a re-trial on count 5 as regards D3, counts 5 and 6 as regards D4 and count 9 as regards D11.

144. We have borne in mind the nature and the seriousness of the offences, the very large quantity of drugs involved and generally, the state of the evidence at the original trial. We have given anxious consideration to the submissions of Mr. Hemmings in relation to the publicity aspect, if I may term it that, and also to the time factor, that is the period which the three Defendants have already spent in custody. We take the view that, overall, the public interest and the interest of justice require that there should be a re-trial on these substantive counts. No doubt, the Crown will consider what witnesses they call which is a matter for them and, no doubt, that which has been said as to Ko will be borne in mind in that consideration. But we will  order that there be a re-trial.

145. The matter of sentence on D1, D6, D8 and D10 will be adjourned to a date to be fixed in consultation with counsel.

(1)  (1975) 61 Cr. App. R. 67
(2)  (1967) 51 Cr. App. R. 17
(3)  (1981) 73 Cr. App. R. 200
(4)  (1983) 77 Cr. App. R. 196
(5)  Cr. App. 136 of 1983 (unreported)
(6)  Criminal Appeal 468/86 (unreported)
(7)  [1978] A.C. 435
(8)  [1979] H.K.L.R. 630
(9)  [1975] H.K.L.R. 326
(10)  [1968] 1 All E.R. 694
(11)  [1985] A.C. 374
(12)  Criminal Appeal 301 of 1986 (unreported)
(13)  (1981) 73 Cr. App. R. 304