HKSAR v. GEOFFREY NIGEL BOOTH

Case No. 364 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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R U L I N G

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1. On 3rd March 1998 at the pre-trial review of this matter counsel for the prosecution and defence sought a ruling on the admissibility of certain evidence which the prosecution seeks to lead at trial. Both counsel considered the matter to be of sufficient importance that it was agreed the accused should be arraigned so that the matter could be argued.

2. It was an unusual procedure but I too considered it necessary for the expeditious conduct of the matter. I agreed to deliver a ruling. It was on the accepted condition however that, should I be unable to sit as trial judge, my ruling would not be binding on the judge who took over conduct of the trial.

3. Expressed broadly, it is the prosecution case that the accused, Geoffrey Booth, was party to a common design with a man named Charles Warwick Reid for the purpose of perverting the course of public justice. Accordingly, certain statements made by Reid in the absence of Booth to a third party are admissible into evidence because they are statements made in the course or furtherance of that common design. It is the defence contention that those statements were not made in the course or furtherance of the common designs detailed in the indictment but relate to a separate common design unrelated to Booth. As such, those statements are not admissable into evidence.

The indictment

4. Two counts are detailed on the indictment, the second being an alternative to the first. Both the principal count and its alternative, while not conspiracy counts, are however founded on common purpose.

5. The principal count alleges that between July 1994 and January 1996, in Hong Kong and elsewhere, Booth did a series of acts together with Reid which had a tendency to pervert the course of public justice. Those acts related to an affidavit which the accused knew was false; more particularly it is alleged that the accused -

(i) drafted an affidavit to be sworn by Reid for use in a criminal appeal entitled Ch'ng Poh v. R;

(ii) caused the affidavit to be sworn on the 2nd day of December 1994 and thereafter filed in the Registry of the Supreme Court of Hong Kong, and

(iii) caused the affidavit to be used in the appeal in an attempt to induce the Court to believe that its contents were true;

6. The alternative count is more restricted, alleging not that Booth knew that the affidavit was false in 'material particulars' but only that it was false in its assertion by Reid that he agreed to give evidence because he was sympathetic to Ch'ng Poh when the accused knew that Ch'ng Poh had paid a reward to Reid for the swearing of the affidavit, a fact that was concealed from the Court.

Prosecution evidence which is not contested for the purposes of this ruling.

7. The matter in issue cannot be understood without an understanding, in broad terms, of what it is that the prosecution hopes to prove through its various witnesses -

1. On 5th July 1994, here in Hong Kong, a business entrepreneur named Ch'ng Poh ('Poh') was convicted by a jury of crimes of commercial fraud. Poh was sentenced to five years imprisonment.

2. At Poh's trial, an important witness for the prosecution was Low Chian Hian ('C. H. Low') who had himself served a term of imprisonment for similar crimes of commercial fraud but had completed his sentence in September 1993. C. H. Low gave evidence as an accomplice under immunity.

3. After Poh's conviction, Poh's wife, Kong Yuk Chu ('Mrs. Poh') consulted Booth to obtain assistance in appealing her husband's conviction and obtaining bail for him pending appeal.

4. After he had received his mandate, Booth discussed matters with counsel chosen for the appeal and a letter was sent to Reid to seek his assistance. Reid had been employed as a prosecutor by the Hong Kong Government and had been the officer in charge of a legal team known as the Commercial Crime Unit. As such, he had knowledge of the Poh prosecution and in addition had played an active role in the original prosecution of C. H. Low, the man who testified against Poh. Booth knew Reid well; he had acted as Reid's solicitor for various matters. There is evidence to suggest an element of personal friendship in their relationship.

5. Reid, however, was not a man of unblemished character. On his own admission, from about 1986 to 1989, while acting as the officer in charge of the Commercial Crime Unit, he had formed a corrupt association with a barrister and a solicitor in private practice and had received approximately HK$12,000,000.00 which had been paid by people under investigation in the hope that he would be able prevent their prosecution or lessen its seriousness. After his arrest, Reid fled Hong Kong and only returned after his arrest in a foreign state. In July 1990, Reid pleaded guilty to an offence under the Prevention of Bribery Ordinance and was sentenced to eight years imprisonment, later reduced to seven years.

6. Whatever his personal relationship with Reid, therefore, it is argued by the prosecution that Booth must have been aware of the need to deal with Reid with special caution, especially in light of Reid's history of corrupt association with other lawyers to 'fix' criminal prosecutions.

7. Booth made a number of visits to Reid in prison to discuss the Poh appeal. Reid agreed to assist. Put in simple terms, Reid agreed to do so by stating in an affidavit that he and C. H. Low had spoken to each other in prison and during those conversations C. H. Low had told him that he intended deliberately to perjure himself when he testified at Poh's trial.

8. It is the prosecution case that, although Reid was only to recount to the best of his memory what he and C. H. Low had spoken about in prison, Booth nevertheless delivered to Reid numerous documents related to Poh's trial, such documents, inter alia, setting out the substance of C. H. Low's testimony. At the time these documents were given to Reid, Booth did not inform his counsel.

9. On 1st November 1994, a legal secretary from an independent agency was hired by Booth to accompany him to prison to interview Reid for the purpose of taking down the draft of an affidavit to be used in the Poh appeal. Booth told the secretary that the matter was confidential, requesting that, together with the typed draft of the affidavit, she return to him all materials used in recording it. The secretary, however, retained a copy of the draft on the hard-disk of her computer. A print-out of that hard-disk copy included a preamble in which Reid set out a number of conditions related to maintaining the highest level of confidentiality concerning the affidavit. Seemingly, so he said, he was afraid that, if the authorities learnt of the contents, they would hinder or prevent his departure from Hong Kong after his release.

10. The print-out of the 'draft' affidavit included a final paragraph which read -

"I related the account I have set out in this Affidavit to Mr. BOOTH on 9th September 1994 but I obtained his assurance that he would not take any action in respect of my disclosures until I was released from prison. I wanted to have the opportunity of speaking to C. H. Low before my evidence became public as I hopped to soften the blow of what C. H. Low would regard as a betrayal of confidence on my part."

11. Mrs. Poh was aware that an affidavit was being taken from a witness in jail but at that time she was not given Reid's name. According to Mrs. Poh, she asked Booth the reason why the name could not be made known. Booth replied that if the authorities came to know about it, they would 'bring trouble to that person or even prosecute him'. Mrs. Poh says nothing in her statement concerning Booth's belief that a bona fide witness in judicial proceedings could be prosecuted.

12. A little later, when Reid's identity had been made known to her, Mrs. Poh visited Booth at his office to obtain a progress report. On this occasion Booth suggested that she should give a 'present' to Reid of about HK$1,500,000.00. This sum was stated only after Booth had made a number of calculations; Booth having knowledge of Reid's private finances.

13. Li Zhong Heng ('Li'), a family friend of Poh and his wife, had begun to act as Mrs. Poh's representative from a relatively early stage of the proceedings. He too has spoken of Booth suggesting that Reid be paid for his services, suggesting that it was legal to do so. Poh himself has spoken of similar approaches by Booth.

14. At this time Reid was telephoning Booth from prison. Such calls, however, were monitored by prison staff. On 2nd November 1994, records show that Reid telephoned Booth to discuss payment for the assistance he was to give Booth's client; payment to be made into a family trust. The record shows that Booth agreed to discuss the matter with him further when he visited the prison.

15. Although it appears that Booth did raise the question with his counsel of Reid being paid, there is evidence that they were not in favour of the idea. However, at no time is there any suggestion by Poh, his wife or Li that Booth advised them of the dangers of making payment to Reid in that it would undermine Reid's credibility or that he had spoken to counsel about the matter and that they had advised against it.

16. Booth told Mrs. Poh and Li that Reid was not prepared to sign the affidavit in prison or in Hong Kong. While in prison Reid would be still a 'tainted witness' and it would be better for Reid to sign the affidavit in New Zealand. Why the Hong Kong Court of Appeal should consider Reid a more credible witness because he signed his affidavit after his release and after his departure does not appear to have been explained. The prosecution will argue that there can only be two reasons for Reid's stated terms which must have been known by Booth: first, for Reid to be out of harm's way before he put his signature to a false document and, second, so that he could ensure that the payment he had discussed with Booth was made and made in a form that suited him.

17. Reid was released from custody on 29th November 1994 and flew to New Zealand. The day before Reid's release, upon the advice of Booth, Li flew to New Zealand so that he would be waiting for Reid's arrival. Li and Reid met. Reid demanded payment of NZ$1,000,000.00 to sign the affidavit and this sum was paid into a family trust of the kind that Reid had suggested to Booth when he had telephoned him from prison on 2nd November.

18. The affidavit was signed by Reid on 2nd December 1994 and was brought back to Hong Kong by Li who handed it to Mrs. Poh. The affidavit was then passed to Booth. Li says that at a later meeting with Poh's counsel, Booth told them that the affidavit had been received in the mail, concealing from counsel the true manner of its return.

19. In May 1996, after his arrest and caution, when Booth was asked if he was aware of any payments made to Reid, he replied: "Absolutely not."

20. As concerns the affidavit signed by Reid, the final paragraph of that document was different from the draft (supra). The new paragraph read -

"I did not regard the trial of CH'NG Poh as any of my concern until such time as I was contacted by my former Solicitor, Mr. Geoffrey BOOTH. His letter is now produced and shown to me marked "CWR-1". He was inquiring about Mr. SOH's approaches to me, to see if anything arose in relation thereto. Subsequently I told Mr. BOOTH about the conversations I had had with CH LOW as referred to. This was the first time I had disclosed those conversations to anyone. I agreed to give evidence because I was sympathetic to the position of Mr. CH'NG Poh."

8. In the earlier draft, Reid had said that he wanted to have the opportunity of speaking to C. H. Low before his affidavit became public as he hoped to 'soften the blow' of what C. H. Low would regard as a betrayal of confidence. That was omitted from the final affidavit. In the absence of oral disclosure at the appeal hearing, the court, therefore, would have no knowledge of the fact that Reid intended to see and talk with the man he was accusing of perjury. It is the prosecution case that this final paragraph could not have been made without Booth's knowledge as he was at the time making arrangements for Reid to fly Singapore to talk face-to-face with C. H. Low; arrangements made in conjunction with another solicitor, a man named Laurence Wee.

21. On 12th December 1994, Reid flew to Singapore in order to meet C. H. Low. Although there is evidence that Booth had advised his counsel that Reid wished to speak with C. H. Low to inform him of the affidavit, counsel were not advised that Reid was to fly to Singapore to be with C. H. Low nor that Booth had arranged that trip. It will be the prosecution case that such a course of action was, in all the circumstances, so clearly undesirable in terms of undermining Reid's credibility that Booth must have known his counsel would not have agreed to a lengthy face-to-face meeting. Yet he went ahead with the arrangements without advising them.

22. In addition, it is the prosecution case that Booth knew that Reid would be paid for swearing the affidavit and that Booth and Reid avoided mention of that subject in the affidavit so that the Court would be told only that Reid had acted out of sympathy and had not been influenced by monetary gain.

23. As to the use to which Reid's affidavit was put, it is not disputed that it was filed and used in support of Poh's appeal. The judgment of the Court dated 15th January 1996 records that the first ground of appeal was as follows -

"That in the light of the evidence of Charles Warwick Reid (Additional evidence on appeal under Section 83V(1)(c) or Section 83V(2) Cap. 221), the convictions of the Applicant [Poh] are unsafe and unsatisfactory."

24. As to the falsity of the affidavit, on 9th August 1996, in New Zealand, Reid pleaded guilty to an offence of willfully attempting to pervert the course of public justice by swearing the document. He was sentenced to imprisonment for two and a half years. There is also the evidence of C. H. Low that what was alleged against him in the affidavit was untrue.

Prosecution evidence which is disputed in this matter.

9. It is common cause that Reid's discussions in Singapore with C. H. Low were in Booth's absence. Consequent upon those discussions, over the ensuing months, Reid had a number of telephone conversations with C. H. Low. Booth was not a party to those conversations. Mr. Caplan, who appears for the defence, does not object to evidence being led of the fact that Reid did go to Singapore to meet C. H. Low and that Booth helped to arranged that trip at Poh's expense. He argues, however, that what was said in Singapore and in the consequent telephone conversations was not in furtherance of the common designs alleged in the indictment. What then in broad terms, is the evidence in contention?

Singapore

10. C. H. Low says that when Reid met him in Singapore, Reid explained that he had sworn an affidavit discrediting him (that is, C. H. Low) as a witness and had done so to assist Poh in his appeal. Reid said that for the appeal to succeed, C. H. Low must co-operate by not helping the investigating authorities or returning to Hong Kong to challenge the affidavit. Reid said that he had been paid by Poh for his services and that Poh would pay C. H. Low too if he co-operated.

11. There is evidence that the following day, Li flew into Singapore and the three men met. C. H. Low says that, when alone with Reid, Reid told him that he should ask HK$30,000,000.00 for his co-operation and that Reid then mentioned this figure to Li who said he would have to revert to Poh and his wife for instructions.

The subsequent telephone conversations

12. These conversations relate to C. H. Low enquiring as to developments and more especially as to when payment would be made to him for his co-operation. Reid assured him that Poh will get no more assistance from him until C. H. Low has been compensated and, as the time for the appeal drew near, Reid told C. H. Low that the time to press for settlement was getting very close. Reid told C. H. Low that matters were looking good for him and that he should just be patient.

13. In the end result, C. H. Low received no monetary compensation nor did he challenge the truthfulness of Reid's affidavit.

The Law

14. Our law states the principle that the acts and declarations of one party to a conspiracy or a joint enterprise are admissable not only against that party but also against the other party to that conspiracy or joint enterprise. This, however, is subject to two conditions; first, that the acts or declarations must be in furtherance of the common design and, second, that independent evidence be adduced of both the common design and the other party's involvement in it.

15. This principle applies equally whether the crime charged is one of conspiracy or a substantive offence committed in pursuance of a common design. In this regard see Blackstone (1997 Ed.) at Chapter F. para. 16.52 under the heading "Statements in furtherance of Common purpose" -

"The rule that the acts and statements of one party to a common purpose may be evidence against another is particularly associated with charges of conspiracy. However, it is not confined to such cases, and applies to other offences where complicity is alleged."

16. During the course of argument I have been referred by Mr. Caplan to the authority of Gray, Liggins and Others [1995] 2 Cr. App. R. 100 which may appear to limit the principle in respect of substantive offences. However, the true intent of Gray, Liggins and Others was considered in the later English Court of Appeal judgment of Murray, Morgan and Sheridan [1997] 2 Cr. App. R. 136 where Otton L.J. (at page 148) said in regard to that earlier authority -

"Seen against that background, we are of the view that, having studied the judgment in Gray, Liggins and Others with the greatest of care, it is authority primarily for the proposition that the common law exception cannot be extended to cases where individual defendants are charged with a number of separate substantive offences and the terms of a common enterprise are not proved or are ill-defined. We do not accept Mr. Macdonald's argument that dicta in the judgment of Glidewell L. J. does in fact narrow the common law exception. In reaching that conclusion, we have very much in mind the commentary of Professor Smith in that regard, to which reference has been made."

17. As is apparent from a reading of Gray, Liggins and Others, the prosecution elected not to proceed on counts of conspiracy but rather on substantive counts, each accused being charged individually with a separate substantive offence. In the matter now before me, Booth is, in each count, alleged to have carried out a series of acts together with Reid; in short, each count alleges complicity between the two.

18. In respect of the disputed evidence, therefore, how should I approach the matter? In this regard, I do not believe that I can do better than cite the words of Professor J. C. Smith in his article "More on Proving Conspiracy" [1997] Criminal Law Review, page 333 -

"How, in the light of this case, should the judge proceed when trying a case of conspiracy or joint enterprise and a question arises as to the admissibility of a statement ("the statement") made in the course or furtherance of the offence which implicates an absent party? It seems that:

(i) he must consider whether the other evidence amounts to reasonable or prima facie evidence that there was a conspiracy or joint enterprise and that C was a party to it.

(ii) If there is no such prima facie evidence, the statement is inadmissible and, obviously, the case must be withdrawn from the jury.

(iii) If he is satisfied that there is such prima facie evidence, the statement is admissible and should be left to the jury with a direction that they should convict if, in the light of all the evidence, they are sure that C was a party to a conspiracy or joint enterprise.

(iv) But, if the statement could be regarded by the jury as the primary evidence implicating C, he should point out to the jury that it was made in C's absence, that he had no opportunity to cross-examine the maker and that they should not convict C on the basis of that evidence alone."

A. Independent evidence of a common design.

19. It has not (at this pre-trial stage) been disputed by the defence that there exists 'other evidence' independent of the evidence disputed in this matter which amounts to reasonable or prima facie evidence that there was a joint enterprise between Booth and Reid to arrange for the use of the affidavit knowing that it was false.

B. Declarations in furtherance of the common design.

20. It is, however, the defence submission that Reid's words spoken to C. H. Low in Singapore and thereafter in various telephone conversations were not in furtherance of the common designs alleged in the indictment.

21. The defence submits that the common designs alleged in both counts concern 'exclusively' the falsity of Reid's affidavit. With respect, I consider that too narrow a reading. In respect of the principal count, paragraph (iv) of the particulars are stated as follows -

"Causing the said affidavit to be used in Criminal Appeal No. 333 of 1994 as aforesaid in an attempt to induce the Court of Appeal to believe that the contents were true."

22. In my judgment, in plain language, what is alleged in those particulars is that the affidavit would be 'used' at the appeal hearing (which only took place in late 1995) in order to 'induce' the court to accept the truth of its contents. Only at the hearing could there be submissions concerning that document and its legal and factual importance. The particulars of the indictment make it clear that the alleged common design remained operative until the Court of Appeal had heard all argument and delivered its judgment.

23. The acceptance by the Court of Appeal of the truth of the affidavit had to be intended to achieve a practical result; that had to be the setting side of Poh's conviction on the grounds that it was, 'unsafe and unsatisfactory'.

24. Mr. Marshall-Andrew, for the prosecution, has argued that it was essential to the success of this common design that C. H. Low be 'enticed to acquiescence' in the use of the affidavit. If C. H. Low denied the truth of its contents then the use of the affidavit to induce the Court of Appeal to accept its truthfulness would be seriously undermined, perhaps fatally so. Obtaining C. H. Low's acquiescence (and retaining it until the appeal was heard) was, therefore, manifestly in furtherance of the common design. Reid was chosen to negotiate with C. H. Low; Booth set up the trip. Both therefore acted together. I consider there is merit in Mr. Marshall-Andrew's submission. In my judgment, a common design to use that affidavit had to include the taking of steps to prevent its use being undermined by the person who was the subject of that affidavit. Criminal enterprises invariably contain, as part of their integral make up, measures to protect the enterprise from failure and/or detection and the revelation of such measures has long been accepted as one of the ways of proving such enterprises.

25. In the circumstances, I am satisfied that it is at least relevant to the principal count on the indictment for the prosecution to attempt to prove that Reid and Booth together attempted to seek the acquiescence of C. H. Low.

26. But is there 'other evidence'; that is, prima facie or reasonable evidence, that at least the principal common design detailed in the indictment included within its ambit a direct meeting with C. H. Low for the purpose of seeking his acquiescence? Or does the 'other evidence', as Mr. Caplan has argued, infer with equal probability that Reid was on a frolic of his own to better secure his own, singular position? In my judgment, there is sufficient independent evidence to support the prosecution contention -

(a) Booth not only had knowledge of Reid's visit to Singapore to see C. H. Low, he helped to make the necessary travel arrangements at Poh's expense.

(b) Mention of this visit was withheld from Poh's counsel and, approximately a year after the event had taken place, also withheld from the Court of Appeal.

(c) Mention of Reid's desire to speak to C. H. Low to 'soften the blow' was purposefully not included in the final affidavit (the document sworn by Reid) despite the fact that Reid left for Singapore a few days after it was signed.

(d) As I have been told, there is no evidence on the papers at this time that Booth enquired of Reid either immediately after the Singapore trip or thereafter as to whether C. H. Low was going to challenge the affidavit, co-operate with the authorities or come to Hong Kong to testify against Reid, evidence which, so the prosecution alleges, would be present if Booth had been acting in good faith and was anxious to pass on to his clients and to his counsel the 'state of play' concerning the major threat to the use of Reid's affidavit posed by C. H. Low.

27. Even if my information is wrong in respect of paragraph (d) above, I am satisfied that the requisite independent evidence remains. Accordingly, Reid's proposal to C. H. Low in Singapore; namely, his attempt to bribe C. H. Low for the stated purpose of obtaining C. H. Low's co-operation, is admissable as a series of acts and declarations made in furtherance of the principal common design alleged in the indictment.

28. It does not matter that there is no evidence that Booth knew exactly how Reid intended to obtain C. H. Low's acquiescence provided Reid's declarations were in furtherance of the common enterprise; in short, that there is a rational nexus between the alleged common enterprise and the alleged declarations; a shown commonality of purpose. It is the prosecution case that, if Reid's assistance had been purchased, it must have been a foreseeable consequence that an attempt at least would be made to obtain C. H. Low's assistance in the same or a similar manner.

The separate conspiracy.

29. As I have indicted, I am satisfied that at least Reid's proposal to C. H. Low made in Singapore to bribe him and thus buy his co-operation is admissable. But what of matters thereafter, more especially the series of subsequent telephone conversations between Reid and C. H. Low?

30. Mr. Caplan has argued that, upon C. H. Low's ostensible agreement to be paid in return for his co-operation, there came into existence a new and distinct conspiracy involving Reid, Low and Li. The purpose of this new conspiracy was to obtain a payment of approximately HK$30,000,000.00 from Poh which was to be paid as a bribe to C. H. Low. The negotiations for this payment were conducted between Reid, C. H. Low and Li. There is no evidence that Booth played any part in these negotiations or knew anything of them. Accordingly, as I understand the argument, what was said and done by Reid was not in furtherance of the counts detailed in the indictment but was in furtherance of a new and distinct conspiracy or common design.

31. In response, Mr. Marshall-Andrew, in his skeleton argument, stated that obtaining the acquiescence of C. H. Low was manifestly in furtherance of the conspiracy to use the affidavit; how that acquiescence was obtained does not affect the issue of admissibility. As I understand his argument, it is that the nature of the acts done or the declarations made to obtain the desired result cannot affect their admissibility into evidence, provided they are acts or declarations in furtherance of the common design. The principle may be expressed simply in the following illustration. A, B and C enter into a conspiracy to commit commercial fraud. To ensure the success of that enterprise D must be convinced to turn a blind eye to certain events. C is given that task. If, acting alone, C attempts to buy D's co-operation, his acts and declarations in so doing would be admissable against him as well as A and B in order to prove the conspiracy. Equally, if C employs the assistance of somebody close to D, shall we say E, and the two of them approach D, that evidence would also be admissable against C as well as A and B in order to prove the conspiracy. In short, the fact that C attempts to achieve his given purpose by entering into an arrangement with one or more third parties and thereby in law into a new and distinct conspiracy does not render the evidence inadmissable. An act in furtherance of one conspiracy may and after does consist of entering into another conspiracy.

32. As I understand it, therefore, the prosecution seeks simply to lead evidence of what Reid did and said in furtherance of what it alleges to be his common design with Booth. If what Reid said and did in that respect involved a degree of complicity with third parties, I do not see that those acts and declarations must thereby be rendered inadmissable.

33. The rule is clear: acts and declarations of a co-conspirator in furtherance of the common design may be given in evidence against another conspirator subject only to the provisions to which I have referred above. There is no limitation to the principle to the effect that the acts and declarations in furtherance must not include entering into new arrangements with third parties.

34. I am satisfied that, although not directly on point, there is support for my conclusions in Archbold, the 1997 edition at page 2711 (33-52) which reads as follows -

"Plots and sub-plots

If A and B agree to embark on a bombing campaign throughout England, they will be guilty of conspiracy to cause explosions as soon as the agreement is concluded, despite the fact that nothing may have been done to execute the agreement, with no targets identified and no times determined. If thereafter, as a result of detailed planning, they identify a target and determine a time for the placing of their first bomb, it is submitted that this would not constitute a separate offence, the test being whether what was done was done in pursuit of the original agreement (a course of conduct involving the commission of one or more offences by either or both of them - see s.1); but, if they were to recruit C for the specific purpose of placing the first bomb, C having no knowledge of their wider plans, it is submitted that there would now be a second (sub-)conspiracy, with A, B and C as the parties thereto. If A and B were being tried on the wider conspiracy, the sub-conspiracy and any overt acts done in pursuance of it would be admissible." [my italics]

35. What then of the evidence that the telephone conversations between Reid and C. H. Low continued for an extended period of time? Can it be said that they remained in furtherance of the common design? In this regard, I accept the submissions of Mr. Marshall-Andrew that it was not only a matter of obtaining C.H. Low's consent, it was a matter of retaining it during the course of the judicial process; that is, until the matter could be argued before the Court of Appeal and judgment received, because it was only at the appeal hearing that the affidavit would be used.

The probative value of the taped telephone conversations

36. At this moment in time it appears to be common cause that the prosecution do not intend to call Reid as a witness. Although the matter was not canvassed, I assume that it is unlikely that Reid would return to Hong Kong to testify for either side.

37. In view of Reid's criminal record, his history of plausible deceit and of the fact that he appears to have said contrary things about this case to different people, Mr. Caplan has argued that any probative value of the contents of the taped telephone conversations (namely; Reid's direct speech) must be outweighed by its prejudicial effect. Accordingly, I should exercise my discretion and exclude those taped conversations from evidence.

38. That I do have such a discretion is not doubted. How I should exercise it is, I think, clearly defined in Noor Mohammed v. R. [1949] AC 182 -

"[T]he judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must be left to the discretion and the sense of fairness of the judge."

39. It is apparent that the evidence of Reid's alleged declarations made in furtherance of the common design in the course of those taped telephone conversations is, in the view of the prosecution, material evidence. As I understand it, it serves a dual purpose: first, it reveals the manner in which C. H. Low's acquiescence was both obtained and retained by Reid and, second, it is evidence against which to test what Booth did or did not do over that same period. To that extent, the evidence has more than 'only trifling' weight.

40. In the absence of the ability to cross-examine Reid, is that evidence, however, so gravely prejudicial to Booth that, in ensuring a fair trial, I should nevertheless exclude it?

41. I have considered the matter at length. To exclude otherwise material and probative evidence is a step which must be approached with caution and I am satisfied that I should not exclude it.

42. I appreciate the difficulties faced by the defence in not being able to either cross-examine Reid or perhaps call him as a defence witness. But Mr. Caplan himself accepts that some of what appears in those tapes actually assists the accused. In addition, the jury can be directed in clear terms that in assessing the evidence, they must bear in mind that Reid was not available to be questioned; his proven proclivity to deceit can also be stated.

43. In all the circumstances, I am satisfied that the evidence of Reid's acts and declarations both in Singapore and in subsequent telephone conversations with C. H. Low may be admitted into evidence where such acts and declarations are, in each instance, in furtherance of the common design or designs alleged in the indictment.