THE QUEEN v. CHU CHUN WAH AND OTHERS

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The five applicants were tried with two other accused on an indictment containing three counts before His Honour Judge Corcoran sitting as a High Court Judge and a jury. The 1st, 2nd and 3rd applicants were convicted on the first count, being one of manufacturing a dangerous drug, namely, salts of esters of morphine. The 2nd and 3rd applicants were also convicted on the second count, which was one of having in their possession for the purpose of unlawful trafficking dangerous drugs, namely: 13,326.58 gms of a damp mixture containing 9,782.66 gms of a mixture containing 599.33 gms of salts of esters of morphine, 3461.26 gms of a mixture containing 2,036.04 gms of salts of esters of morphine, and 3,338 milliliters of a liquid containing 1,103.71 gms of salts of esters of morphine.

2. All five applicants were convicted on the third count, which was one of conspiracy to defeat the course of public justice. It was on this count alone that their two co-accused, who in the event were acquitted, stood trial. The particulars of offence alleged that all seven conspired with three other named persons to defeat the course of public justice by agreeing to conceal and destroy evidence relevant to the criminal involvement of the 2nd and 3rd applicants in offences against the Dangerous Drugs Ordinance and to render false accounts in relation to the true circumstances surrounding the discovery of those offences and the involvement of the 2nd and 3rd applicants in them. The 4th and 5th applicants were police officers, the 4th applicant being a sergeant and the 5th applicant a constable. The two other accused were constables.

3. The 1st applicant, who pleaded guilty to the manufacturing count and who received a sentence of 18 years on that count and a concurrent sentence of 4 years on the conspiracy count, now seeks leave to appeal against those sentences.

4. The 2nd applicant, who received sentences of 18 years on the manufacturing and possession counts and of 5 years on the conspiracy count, all of which were ordered to be served concurrently, seeks leave to appeal against his convictions and to have the time extended within which to make application for leave to appeal against sentence.

5. The 3rd applicant, who was sentenced to 18 years on both the manufacturing and possession counts and to 6 years on the conspiracy count, all of which were ordered to be served concurrently, applies for leave to appeal against his convictions only. He abandoned an application for an extension of time within which to apply for leave to appeal against his sentences out of time.

6. The 4th and 5th applicants, the police officers who were sentenced to 6 years and 4 1/2 years respectively on the conspiracy count, seek leave to appeal against both conviction and sentence.

7. Evidence was given on behalf of the prosecution that at about 11.45 a.m. on 29 March 1988 members of the Police Intelligence Section Yuen Long led by the 4th applicant and including the 5th applicant, the 6th and 7th accused and DPC Tsang Wai-ming arrived at a house at 73 Second Street Fairview Park to investigate a complaint that something suspicious was going on there.

8. Seeing two dogs in the front garden, the police announced their presence by shouting from the gate. At about 11.50 a.m., one Law Hon-Kwong, who had been watching television in the sitting room on the ground floor of the house, came out in response to their calls. On being asked to produce his identity card, he told the police that it was inside the house. He then opened the gate and the entire party went through to the house where he produced his card. The 4th applicant then questioned Law who told him that he had been renting the premises for the past month or so and was living there alone.

9. A man named Chan Koon-wing then came down a  staircase leading from the upper floor. Law explained that he was a friend who had spent the previous night on the premises. On being asked to produce his identity card, Chan told the police that it was upstairs, whereupon the 5th applicant and DPC Tsang accompanied him there to check it.

10. Having ascended the staircase, DPC Tsang heard a noise coming from one of the four rooms on that floor. On investigation he found the 2nd and 3rd applicants in the middle of the room and the 1st applicant standing behind the door. Each of the three was in his underclothes. DPC Tsang saw a number of basins containing yellow powder in the middle of the room together with various paraphernalia including three microwave ovens and sets of scales. It was obvious that heroin was being manufactured. The total quantity of drugs found was as specified in the second count in the indictment.

11. The 5th applicant then shouted out to the 4th applicant to come upstairs. On arrival the 4th applicant took a look both in that room and another room in which paraphernalia associated with the manufacture of dangerous drugs was also found. According to Chan, the 4th applicant then told one of the other two officers to telephone a report to the police station.

12. At about 12.15 p.m. a Superintendent Lam of the Narcotics Bureau and Senior Inspector Cheng, who was the officer in charge of the Intelligence Section Yuen Long District, arrived at the scene. In the meantime an agreement had been reached between the 3rd and 4th applicants that the 1st applicant and Chan would assume full responsibility for the drugs and plead guilty at their trial and that the 4th applicant would say that when the police arrived inside the premises the 2nd and 3rd applicants were found fully clothed at the top of the stairs. It was also agreed that all arrested persons would make false written statements in support of the agreement to attribute blame to the 1st applicant and Chan and to exculpate the others. We shall in due course refer to the evidence as to how the agreement came to be made.

13. The 4th applicant then permitted the 2nd and 3rd applicants to take a shower in the bathroom on the upper floor in order to wash all traces of dangerous drugs or other incriminating substances from their bodies before dressing and squatting in the corridor to await the arrival of more police officers. Moreover, at the request of the 3rd applicant the 1st applicant and Chan were permitted to wipe the incriminating exhibits to remove any fingerprints left by the 2nd and 3rd applicants.

14. When Senior Inspector Cheng and Superintendent Lam arrived they met the 6th accused at the main entrance to the premises and, on entering the sitting room downstairs, saw the 7th accused guarding Law. The 4th applicant then came downstairs and briefed them. Following this Senior Inspector Cheng, the 4th applicant and Superintendent Lam went upstairs where Senior Inspector Cheng instructed the 4th applicant to handcuff the arrested persons and cover their hands with plastic bags he had brought for that purpose. At this time both the 2nd and the 3rd applicants were squatting fully clothed in the corridor upstairs, and the 1st applicant and Chan were under guard in the room in which the police had discovered that the heroin manufacturing was been carried out. It was subsequently discovered, however, that the 3rd applicant, who was clad in a track suit, was not wearing any underclothing.

15. Superintendent Ku, the Divisional Commander, and Superintendent Tse, the District Commander, arrived at 12.40 p.m. and, on going upstairs, saw the 2nd and 3rd applicants in the corridor and the 1st applicant and Chan in the room in which it was alleged that. the manufacturing process had been carried out. They both left at 1.15 p.m. Senior Inspector Cheng left the scene at around 1.45 p.m.

16. At 1.30 p.m. Narcotics Bureau officers arrived and took over the case, but it was not until 1.45 p.m. that the four arrested persons and Law were handed over to them in the sitting room downstairs. The 5th applicant, the 6th and 7th accused and DPC Tsang then returned to the Yuen Long Police Station. The 4th applicant, however, remained at the scene until 3.50 p.m.

17. The 1st, 2nd and 3rd applicants together with Chan and Law were subsequently charged with offences against the Dangerous Drugs Ordinance. The 2nd and 3rd applicants eventually succeeded in being granted bail pending trial, but the 1st applicant, Chan and Law were remanded into gaol custody where they remained until trial.

18. On the day after their arrest the 3rd applicant spoke to Chan in the cells at Yuen Long police station where they were being detained prior to being brought before a magistrate. He told Chan that he was not satisfied with the statement he had made to the police and rebuked him for not having admitted responsibility for the drugs and paraphernalia found in the house. Chan explained that he had not made any such admission because he was hoping that he might be granted bail, but that, if that failed, he would eventually oblige the 3rd applicant by assuming responsibility for the drug offences and exculpating the 2nd and 3rd applicants.

19. As time passed, Chan became disillusioned. The monthly payments of $10,000 that the 2nd and 3rd applicants had promised were not being made to his family. Moreover, they had not engaged a lawyer for his bail application. Eventually he concluded that they had no intention of honouring their side of the bargain. He therefore decided to report the matter to ICAC, and on 22 July he made a statement to an officer from the Commission.

20. As a consequence of further investigation by ICAC both DPC Tsang and Law decided to turn Queen's evidence. They were granted immunity from prosecution in return for giving evidence at the trial of the applicants and the 6th and 7th accused. Chan was required to plead guilty to the the manufacturing and possession of drugs counts, but was granted immunity from prosecution in respect of any other offences arising either from the drug offences or from the circumstances of his arrest for any of the drug offences. In each instance the immunity was made conditional on the witness giving full and true evidence at the trial.

21. Apart from the testimony of Chan, Law and DPC Tsang as to the events of 29 March and that of Chan as to the conversation he had with the 3rd applicant while both were in custody, there was other evidence on which the prosecution sought to rely in proving the conspiracy count. First, there was the evidence that the 3rd applicant was subsequently found not to be wearing any underpants under the track suit he was wearing when Superintendent Lam and Senior Inspector Cheng arrived at the scene; secondly, a pair of underpants subsequently discovered in the bathtub in the bathroom on the upper floor of the premises bore fibres which matched those taken from that track suit, thirdly, both the underpants and socks worn by the 2nd applicant when he was taken into custody by Narcotics Bureau officers were found to be contaminated with salts of esters of morphine; and fifthly, neither the outer garments of either the 2nd or 3rd applicants nor their hair and finger nail clippings bore any traces of heroin. These pieces of evidence lent considerable force not only to the testimony of Chan, Law and DPC Tsang that the 2nd and 3rd applicants had been engaged in the process of manufacturing heroin, but to that of Chan and DPC Tsang that the 4th applicant had permitted those two applicants to take a shower in order to wash all traces of heroin and the chemicals used in the process of its manufacture from their bodies before dressing and posing as innocent visitors to the premises.

22. There was also evidence from Law of a conversation. he had with the 2nd and 3rd applicants while in custody in which the 2nd applicant lamented that he had not discarded his underpants and socks after he had taken his shower. The 3rd applicant then congratulated himself by remarking how clever he had been to have deposited his underpants in a bucket of water in the bathroom. Photographs taken at the scene on the 29 March disclose that there was a red bucket in the bathtub and that it contained what appears to be an item of white clothing floating in water. A police inspector testified that he had emptied the bucket in order to use it to carry one of the exhibits. He noticed that there appeared to be an item of clothing in the bucket at that time. It was not until 16 May when the significance of the pair of underpants became apparent to the Narcotics Bureau officers that it was retrieved from the bathtub and subjected to forensic examination, the results of which we have already mentioned.

23. Mr. Grounds and Mr. Westbrook, who appeared for the 2nd and 3rd applicants respectively in this Court but not in the court below, advanced two grounds of appeal.

24. Their first ground, which was argued by Mr. Grounds, was based on the provisions of section 12 of the Evidence Ordinance (Cap. 8):

"12.     A party producing a witness in any proceedings shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness, in the opinion of the court, proves adverse, contradict him by other evidence or, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony, but, before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

25. This, he contended, constitutes an absolute prohibition against a party impeaching his own witness by asking him about his previous convictions, and that therefore the judge erred in permitting prosecuting counsel to ask the accomplice and immune witnesses Chan and Law questions concerning their previous convictions and their membership of a triad society.

26. Mr. Grounds sought to gain support for this startling submission both from Cross on Evidence 5th edition at pages 249-252 (6th edition pages 269-272) under the subheading "D. Unfavourable and Hostile Witnesses" in the section dealing with examination in chief, and from Andrews and Hirst on Criminal Evidence at pages 150 and 151.

27. We are unable to find anything in these references that lends any support to this proposition. In our view the prohibition in the section is plainly intended to apply only to a party who seeks to discredit a witness called by him and who proves to be unfavourable. It has application where the purpose of introducing evidence of bad character is to persuade the tribunal of fact that an unfavourable witness called by that party should not be believed because of his bad character; it is not applicable where, on the contrary, a party seeks to persuade the tribunal of fact that he should be believed notwithstanding his bad character.

28. We do not think there is any force in Mr. Ground's contention that it should be left to counsel for the defence to elicit this material from the witness. We note that the position in England is as stated by Cusack J. in delivering the judgment of the Court of Appeal (Criminal Division) in Carey and Williams (1968) 52 Cr. App. R.305 at 312:

"Nor has the prosecution, in the view of this Court, any duty to disclose to the jury the character of the witness. There are some cases in which it is done, but it is a matter of discretion on the part of prosecuting counsel."

29. In the experience of each member of this Court it has always been the unchallenged practice in this jurisdiction in cases where the prosecution seeks to rely on the testimony of a witness who has previous convictions or is otherwise of bad character, for prosecuting counsel to ask questions of the witness with a view to disclosing those matters to the tribunal of fact. It is a practice which in our view should continue.

30. We would add that defence counsel at the trial quite properly made no objection to the prosecution leading this evidence from the two witnesses.

31. The second ground of the 2nd and 3rd applicants was argued by Mr. Westbrook. The basis on which it rests is the following observation which prosecuting counsel made to the jury during the course of his closing address:

"If a person has no previous convictions, he's entitled to lead evidence of his good  character, and this is being done in this trial in respect of the 4th, 5th, 6th and 7th defendants."

32. Mr. Westbrook's submission was that counsel had thereby implied that the 2nd and 3rd applicants had previous convictions. He contended that it was then incumbent on the judge to discharge the jury from giving verdicts in respect of these two applicants, and that his failure to do so was a material irregularity which rendered their convictions unsafe and unsatisfactory.

33. There was, however, no application to the judge by counsel who represented the 2nd and 3rd applicants at the trial that he discharge the jury. He merely addressed the judge in the absence of the jury as to what prosecuting counsel had said. Indeed, eventually, after a discussion which took 25 minutes, the judge advised counsel to seek instructions from the applicants as to the course they wished to take. After an adjournment of more than 40 minutes counsel returned and informed the judge that he had explained the matter to them. He stated that it was his position that it was for the judge to take such course as ha thought was right. Quite properly, in our view, the judge then demanded to know whether counsel was asking for a retrial. On receiving the oblique reply "My Lord, no defence counsel wants a retrial", the judge pressed counsel to give a direct answer to his question. With that, counsel finally committed himself and said that he was not making any application. The applicant's position having thus being clarified, the judge then expressed the view that prosecuting counsel's remark would not have caused any prejudice to the two applicants and that accordingly their trials should proceed.

34. We think the judge was entirely correct in requiring counsel to commit himself by declaring whether or not he was making an application for the jury to be discharged from giving verdicts in respect of these applicants. In all the circumstances and having bean told that there was no application, it was not incumbent on the judge ex sui motu to pursue a course not requested by counsel.

35. We pause here to express the view that in circumstances such as occurred in the present case counsel should first decide whether he intends to make an application to the judge for the jury to be discharged. If he has no firm intention to proceed with the application he should not interrupt the progress of the trial simply to ventilate his complaint to the judge in the speculative hope that some advantage might accrue to his client. If, of course, he considers it desirable that the judge should give a curative direction to the jury he should address him for that purpose.

36. We find ourselves unable to fault the judge in his conclusion that prosecuting counsel's remark would not have occasioned any prejudice and that it was inappropriate to discharge the jury from giving verdicts on the conspiracy count in respect of those applicants. We accept, however, as did the judge, that prosecuting counsel should not have expressed himself in the way he did. It would have been sufficient if he had simply said that the 4th, 5th, 6th and 7th defendants had called evidence as to their good character and to have then gone on to deal with that evidence. In our experience, however, comments such as that made by prosecuting counsel are likely to have little, if any, impact on a jury. Indeed there have been cases in which remarks of far greater potential for prejudice have been made where the judge's refusal to discharge the jury has been upheld. The following passage in the judgment of the Court delivered by Lawton L.J. in Coughlan and Young (1976) 63 Cr. App. R. 33 at 37 is an example of how appellate courts have approached such matters.:

"The second time reference was made to the appellant Coughlan's conviction at Manchester was some days later when a co-accused, Guilfoyle, was being cross-examined by Mr. Russell. He had asked whether Guilfoyle knew that both Coughlan and Young were 'in the I.R.A.' Guilfoyle answered as follows: 'I was sentenced in Manchester with Coughlan, we got 16 years.' Mr. Russell sensibly went on with his cross-examination as if nothing untoward had happened; and Mr. Owen just as sensibly did not intervene at once. He waited until Guilfoyle had completed his evidence. He then asked the judge to allow the jury to retire. They did. In their absence he asked the judge to discharge the jury so far as the appellant Coughlan was concerned. The judge declined to do so. He said: 'I am not going to order a fresh trial of Coughlan on this matter. It was a wholly accidental happening; the reference to a conviction. In fact, it was made at such a speed, I could not get it down accurately, because Mr. Russell [leading counsel for the Crown] stepped in so quickly after it was made, that I doubt if anybody could have got it down, apart from the shorthand writer, and the matter then passed on with such speed, that I doubt it really impinged with any great force on the mind of the jury, and it seems to me to be wholly wrong at this stage of the trial, when such an accidental disclosure was made, to order a fresh trial before another jury.

 

        Before this Court Mr. Owen submitted once again that the judge had exercised his discretion wrongly. We do not agree. The judge made his own assessment of the impact which Guilfoyle's outburst may have made on the jury. It is our experience that if this kind of casual remark is made and no notice taken of it at the time, it tends to be forgotten particularly when the trial is a long one and there are a number of defendants. The judge was in a far better position to assess the likelihood of prejudice to Coughlan than this Court is. There is nothing in this point."

37. We have come to the conclusion that there is no merit in this ground of appeal. The applications of the 2nd and 3rd applicants for leave to appeal against conviction are therefore refused.

38. The grounds advanced by counsel on behalf of the 4th and 5th applicants are substantially the same. By arrangement between counsel, Mr. Laskey, who appeared on behalf of the 4th applicant in this Court but not in the court below, argued the ground that the convictions of both applicants are unsafe and unsatisfactory. Mr. Hemmings, who represented the 5th applicant both in this Court and below, argued that the findings of guilt against the applicants were inconsistent with the acquittal of the 6th and 7th accused, and that therefore they could not stand.

39. We shall deal with Mr. Laskey's submissions first. Before doing so, however, we wish to remind counsel of the requirement under the Practice Direction in Criminal Appeals that perfected grounds of appeal should contain in respect of each ground the reference by page number and letter, if applicable, to all relevant passages in the transcript. The transcript, of course, includes both the summing up, or in the case of a trial other than in the High Court, the District Judge's or Magistrate's Reasons for Verdict, and the transcript of the evidence.

40. It is not sufficient to allege in grounds of appeal that a conviction is unsafe or unsatisfactory without setting out both the reason or reasons for that contention and the references to the passage or passages in the transcript on which reliance is placed. The purpose of the requirement in the Practice Direction is to provide the Court and the Crown with notice of the basis and particulars of the grounds. This applies to all grounds of appeal. In the present case the requirement was not complied with. This, together with a concentration by counsel on passages in the summing up which related to those aspects of the evidence relied on instead of directing us to the evidence itself, has involved this court in the unenviable task of tracking down the relevant passages in the 1700 pages of transcript.

41. We have been informed that counsel for the Crown indicated to counsel for the applicants that he did not require them to provide him with references to the passages in the transcript on which they proposed to rely in seeking to make good the ground that the convictions of the 4th and 5th applicants are unsafe and unsatisfactory. We accept that this was the reason for the omission in this case. The fact remains, however, that irrespective of counsel for the Crown's indications, we were not provided, as we should have been, with the relevant references properly set out in the perfected grounds of appeal. In the event of any future failure to observe the requirements of the Practice Direction this court may refuse to entertain any argument until those requirements have been complied with and adequate notice of the relevant particulars given.

42. Having given that warning we now turn to a consideration of the ground itself. At the outset  Mr. Laskey frankly conceded, as he was bound to do, that counsel for the applicants made no submission to the judge that there was no case to answer. He contended, however, that this did not debar the applicants from arguing that the evidence for the prosecution was such that this court should be left with a lurking doubt that the convictions were wrong. Having made that point he readily accepted that, as this court observed in Reg. v. Tang wai-tong [1979] HKLR 479 at 486, the lurking doubt formula must be applied with great caution, and that he faced a formidable task in seeking to persuade us that the convictions were unsafe or unsatisfactory.

43. Mr. Laskey submitted that it was the cumulative effect of a number of features in the testimony of Chan, Law and DPC Tsang, and of inconsistencies and discrepancies in their evidence when viewed both individually and collectively that should cause us to come to that conclusion.

44. His first contention was that, owing to time constraints, the account given by Chan and DPC Tsang as to what happened after the police squad arrived at the premises is inherently improbable. In outlining the evidence on which this ground is based it will be convenient to refer to matters of detail which have relevance to other of Mr. Laskey's contentions.

45. It seems that the members of the squad arrived at the gate at 11.45 a.m., that Law came to the gate at 11.50 a.m. in response to their calls and that then they all went into the house to check Law's identity card. Chan then came downstairs and was immediately accompanied upstairs by DPC Tsang and the 5th applicant. Having discovered the 1st, 2nd and 3rd applicants stripped to their underclothes in a room in which heroin was being manufactured, the two officers called out to 4th applicant, who immediately went upstairs to join them.

46. DPC Tsang's evidence was that the 4th applicant asked each of the three men their names and occupations. After these particulars had been recorded, the 3rd applicant introduced himself as the senior officer of the Lo Luen triad society, and the 2nd applicant as the treasurer of the Wo Hop To triad society. He asked whether the 4th applicant would be willing to release two or three of the persons found in the house, adding that he, the 3rd applicant, would arrange for someone to assume responsibility for the drugs. The 4th applicant replied that they would have to decide who would take the blame. He then went downstairs. This was but one of several occasions on which he did so, but apart from this occasion it is not clear from DPC Tsang's evidence when these other occasions occurred. They could have been before or after this occasion or both before and after it.

47. However, while the 4th applicant was absent downstairs on this occasion the 1st, 2nd and 3rd applicants and Chan in the presence of DPC Tsang and the 5th applicant held a discussion. Initially the 1st applicant and Chan were unwilling to take the blame, but after the 2nd applicant promised that Chan's family would be paid $10,000 a month if he would assume responsibility, Chan agreed to do so.

48. The 4th applicant then returned, whereupon the 3rd applicant informed him of their decision and requested him to report that he and the 2nd applicant had been found in the upstairs corridor. To this the 4th applicant agreed. The 3rd applicant then requested that he and the 2nd applicant be permitted to take a shower. The 4th applicant also agreed to this proposal, but told him to hurry.

49. After 2 or 3 minutes the 3rd applicant emerged from the bathroom wearing a track suit and sports shoes. The 2nd applicant then spent about the same length of time in the bathroom before reappearing clothed in a leather jacket and a pair of denim trousers. Both men squatted in the corridor outside the room in which the drug manufacturing had been carried on. Then in the presence of the 5th applicant and DPC Tsang the 3rd applicant began recapitulating with the 1st and 2nd applicants, who were still inside the room, the story they had agreed to give. He emphasised that he and the 2nd applicant would say that they had come to visit Chan, who was the tenant of the premises, and that they were found outside the room.

50. Then, at the instruction of the 4th applicant the 6th accused went upstairs to draw a sketch of the layout. DPC Tsang made no reference to there having been any incriminating discussion between the conspirators while the 6th accused was performing this task. After the 6th accused had returned downstairs the 3rd applicant requested the 4th applicant to allow the 1st applicant and Chan to use a cloth to remove fingerprints in the room.

51. Both the 4th applicant and his immediate superior, Senior Inspector Cheng, testified that the 4th applicant had telephoned Cheng at 12 noon and that, as a result of instructions given by Cheng, the 4th applicant telephoned him again shortly afterwards and gave him the particulars on the identity cards belonging to the 1st, 2nd and 3rd applicants and Chan. It was suggested that Cheng's testimony was in conflict with that of DPC Tsang on this matter. However, we do not think that this point is valid. DPC Tsang, who gave evidence before Senior Inspector Cheng was called to testify, said that although he was aware that at least on one of his trips downstairs the 4th applicant had telephoned the police station, he was unable to say on what occasion he had done so or whether it was before or after the 4th applicant had examined the identity cards, belonging to the four men.

52. There was unchallenged evidence that senior police officers arrived at the scene at about 12.15 p.m.

53. Chan testified that prior to 30 March he and the 2nd applicant had agreed to manufacture No. 3 heroin by a process of conversion from No. 4 heroin. The 2nd applicant was to supply both the capital and the No. 4 heroin and Chan was to arrange for a place at which the process could be carried out. As neither of them knew how to manufacture dangerous drugs they agreed to engage the services of the 3rd applicant. After calculating the amount of drug to be processed, the 3rd applicant told the 2nd applicant and Chan that he required the assistance of his brother in law, the 1st applicant. They agreed to this proposal.

54. In pursuance of this agreement the four men arrived at the house on 30 March with the ingredients and equipment and, after the 3rd applicant had stripped to his underpants and the 1st applicant to his singlet and underpants, the conversion process began. Soon afterwards the 2nd applicant and Chan removed their outer clothing and joined them in order to learn how the process was carried out. The 2nd applicant at this stage was wearing underpants and socks. Law, who was known both to the 1st and 3rd applicants and was a triad brother of the 3rd applicant, was staying in the house at the time because the police were looking for him in connection with an alleged offence. He played no part in the scheme to process drugs.

55. When the conversion process was almost completed the four men heard the sound of voices coming from the sitting room downstairs. On being instructed by the 3rd applicant to go and investigate, Chan donned a dressing gown and went downstairs where he saw a group of men asking Law for his identity card. When asked who he was Chan replied that he was the owner of the house. The 4th applicant then identified himself as a police officer and told Chan to accompany DPC Tsang and the 5th applicant upstairs. There the two officers discovered the other 3 men in the room in which the drugs were being processed.

56. One of the officers shouted to the 4th applicant who immediately rushed upstairs. On observing the scene, the 4th applicant told one of the two DPCs to telephone the police station. Then, after a brief exchange between the 3rd and 4th applicants, the 3rd applicant announced that he was the leader of the Lo Luen triad society. The 4th applicant asked him to produce his identity card and, on being told by the 3rd applicant that it was in his handbag in the next room, the 4th applicant asked him to accompany him there so he could examine it. At this moment the DPC who had been instructed to telephone the police station returned and told the 3rd applicant that reinforcements would be arriving. The 3rd and 4th applicants then left the room but reappeared in the doorway shortly afterwards. The 3rd applicant then proposed to the 4th applicant that two of his companions would plead guilty if the other two were released. On being asked by the 4th applicant which two would take responsibility, the 3rd applicant spoke to the 1st applicant who then agreed to plead guilty. The 3rd applicant then turned to the 2nd applicant and Chan and told them that as he had arranged for someone from his side to assume blame it was their turn to choose someone from their side to accept responsibility.

57. When it became apparent that the 2nd applicant and Chan could not agree which of the two of them it should be, the 3rd applicant told Chan that as he was the owner of the premises it would be far better if he admitted guilt and that, if he agreed to do so, the 2nd and 3rd applicants would pay $10,000 a month to his family. The 4th applicant told them to hurry up and decide the matter. Eventually, Chan, concluding that he had no real choice, agreed to the proposal.

58. When the 3rd applicant notified the 4th applicant of their decision and requested him to release both himself and the 2nd applicant, the 4th applicant replied that this was out of the question as he had already made a report to the police station. He consented, however, to both men taking a shower in order to remove the traces of heroin from their bodies. The 3rd applicant then went to the bathroom, had a shower, reappeared naked a few minutes later and dressed himself. Chan could not recall whether the 3rd applicant was wearing any underpants at that time.

59. The 2nd applicant then took a shower for 3 to 4 minutes, left the bathroom and began dressing himself. As he was doing so, the 3rd applicant requested the 4th applicant not to report that he and the 2nd applicant had been found in the room in which the drugs had been processed, and, since he had touched a number of articles in that room, to allow the 1st applicant and Chan to. wipe them clean. The 4th applicant agreed, but told them to hurry. While Chan and the 1st applicant were engaged in this task the 6th accused came upstairs to make a sketch of the scene. According to Chan he was in a position to see what he, Chan, and the 1st applicant were doing. The wiping operation lasted for some 8 to 10 minutes. He admitted in cross-examination, however, that in his statements to ICAC not only had he not mentioned that the 6th applicant had come upstairs or had been present during the wiping operation but that he saw only 3 policemen upstairs and did not see the other two until he came downstairs. The 4th applicant then ordered Chan and the 1st applicant to stop wiping, explaining that senior officers had arrived.

60. Soon afterwards a senior officer came upstairs in the company of the 4th applicant, looked around for a few minutes and then left. Taking advantage of his departure, the An applicant told Chan to continue wiping objects in the room. While he was following this instruction he heard the 4th applicant tell the 3rd applicant that he would say that he and the 2nd applicant were arrestedupstairs near the staircase and that the 1st applicant and Chan were found in the room. The 3rd applicant requested the 4th applicant to report that he and the 2nd applicant were found at the garden gate, but the 4th applicant replied that the best he could do was to say that they were not found in the room. He reminded the 3rd applicant that the 1st applicant and Chan had to plead guilty otherwise he would say that all four of them were found in the room. When they heard this the 1st, 2nd and 3rd applicants and Chan assured the 4th applicant that they all knew what to do and told him not to worry. The 4th applicant also gave Chan further instructions as to what he should and should not say.

61. The 1st, 2nd and 3rd applicants and Chan were then taken downstairs to the sitting room where, with Law, they were made to sit in a corner. There the 3rd applicant gave them further instructions as to what they should say. Eventually all five men were taken to the Narcotics Bureau.

62. While we accept that there would only have been something like 20 minutes for the relevant events to have occurred upstairs, we do not agree that the events described by the witnesses could not reasonably have occurred in that period of time. It was also suggested that the 4th applicant, having telephoned Senior Inspector Cheng at 12 noon, would have known that other police officers, perhaps a mobile squad, might arrive at any time after that call, and that it is therefore absurd to think that he would have embarked on such a hazardous course of action as that related by the prosecution witnesses. In our view the only real hazard was that run by the 2nd and 3rd applicants in taking a shower. But they had no real choice. Unless they washed the heroin traces from their bodies and particularly from their hair and fingernails, they were bound to be convicted. On the other hand, the police ran no risk in permitting them to do so, for, if by chance, other police officers arrived at the scene earlier than expected and at a time when either the 2nd or 3rd applicant was taking a shower, it would have been a simple matter to say that when the squad raided the premises they found him taking a shower and that for forensic reasons he had not been permitted to dress until the arrival of Narcotics Bureau officers.

63. The differences in the versions given by Chan and DPC Tsang do not strike us as being such as to cast grave doubts on their credibility. Much was sought to be made out of the difference in their testimony as to whether it was the 4th or 5th applicant who had telephoned the police station. There is no compelling reason why both of them should not have done so. We do not accept that it follows that the testimony of Chan and DPC Tsang was seriously undermined by the evidence that the 4th applicant telephoned Senior Inspector Cheng at 12 noon and told him that he had discovered a drug manufacturing plant in a house in which five men were found. In our view this does not render it unlikely that there had been earlier negotiations between the 2nd and 3rd applicants on the one hand and the 4th applicant on the other as to the release of two of the culprits in exchange for others agreeing to assume responsibility for the drugs. We do not think it strange that although the 4th applicant may well have been willing to cooperate with the 2nd and 3rd applicants to the extent that the witnesses alleged, he would have been reluctant to run the risk of allowing them to escape. In such a situation it is by no means unlikely that, whether or not the particulars of the arrested persons had been relayed to the police station, he would have told them, if for no other reason than to convince them that his hands were tied, that that information had been passed on. Alternatively, if immediately after the 4th applicant had first gone upstairs, the 5th applicant had telephoned the police station to report the circumstances of the raid to, perhaps, the Duty Officer, then whether or not the 4th applicant would otherwise have been willing to accede to the 2nd and 3rd applicants' request that he allow them to escape, that option would no longer have been open to him.

64. Mr. Laskey submitted that added to the differences between their respective accounts of the events that occurred prior to the arrested persons being taken downstairs and placed under guard in the sitting room, testimony given by DPC Tsang as to there having been a discussion over lunch later in the day between the 4th applicant and the other members of the squad as to what they should say about the incident, was totally discredited or at least rendered unreliable by the evidence of Senior Inspector Cheng that the 4th applicant was not present at that lunch and that no such discussion had taken place on that occasion. This aspect of the case is also relevant to the ground argued by Mr. Hemmings and to which we shall come later.

65. Mr. Laskey referred to the testimony of Chan and Law that after they and the 1st, 2nd and 3rd applicants had been taken down to the sitting room there had been a discussion among them as to what they should say had happened. He submitted that this was discredited by evidence from officers of the Narcotics Bureau into whose custody the arrested persons were eventually placed that they had prevented any conversation. However, the testimony of these officers was that some conversation did take place. PC Chung, into whose custody Chan was placed, testified that Chan had conversed with the others for "a little while" before he stopped him. DPC Mak, who was guarding the 3rd applicant, said that he recalled that there was some conversation in low voices between the arrested persons but that he too ordered them to stop. A third officer, DPC Cheng, who had the 1st applicant in his charge, testified that on three or four occasions he heard the arrested persons speaking to each other in low voices and that he forbade them to continue.

66. Apart from this evidence that there was some, albeit limited, conversation between the arrested persons, it is plain from the testimony of these witnesses that, although they arrived at the scene at 1.30 p.m., they did not assume custody of the arrested persons from the Yuen Long officers until 1.45 p.m. Indeed, DPC Cheng clearly stated that he received the 1st applicant into his custody from the 5th applicant on the ground floor. DPC Mak also said that when he assumed control over the 3rd applicant, all the arrested persons were seated in the sitting room on the ground floor. We do not think therefore that there is any force in this submission.

67. Mr. Laskey also contended that there was evidence which indicated that Chan decided to give the testimony he did, not because the 2nd and 3rd applicants had failed to honour their promise to pay his family $10,000 a month, but because he had unsuccessfully attempted to blackmail the 3rd applicant to pay him half a million dollars. The fact that Chan did not honour the alleged agreement by failing to make a confession to the police is said to lend some support to this.

68. It is plain to us, however, that Chan frankly admitted that during the course of a visit from one Ng Loy-hing while he was in prison he told Ng to ask the 3rd applicant to pay him half a million dollars, and that he subsequently channelled the same demand to the 3rd applicant through a solicitors clerk. He explained that he feared that if he made an early confession to the police he would lose any chance he might otherwise nave had of being granted bail. As to the demand for the half a million dollars, he insisted that during the three and a half months he had been in prison awaiting trial the 2nd and 3rd applicants had not fulfiled their promise to pay his family $10,000 a month and that when Ng Loy-hing told him that the 3rd applicant had said that money was not available at that particular time and was anxious to know what he, Chan, wanted, he simply demanded what he thought was his due.

69. We do not think that these circumstances point irresistibly to the conclusion that Chan was threatening to throw the blame on innocent persons unless he was paid the sum demanded. In our opinion the jury would have been justified in concluding that Chan, not unreasonably, wanted a concrete assurance that his family would be provided for before he committed himself to taking the blame, for even if monthly payments were to begin after this unpromising start, there would be no certainty that they would continue. A demand for a lump sum in such circumstances might strike a jury as being a reasonable attempt on Chan's part to ensure that the 2nd and 3rd applicants honoured their undertaking.

70. Undoubtedly there were other contradictions and discrepancies in the evidence and there were some matters in respect of which it was shown that a particular witness's evidence was inconsistent with known facts, but these matters, even when considered collectively and added to those already mentioned, do not persuade us that the verdicts were unsafe or unsatisfactory. For the greater part the features highlighted by counsel were those which a jury could reasonably attribute to errors in recollection as to the events or the sequence in which they occurred. We accept that the jury were not satisfied beyond reasonable doubt as to the truth or reliability of some of the evidence, otherwise they would not have acquitted the 6th and 7th accused. But a conclusion that part of the evidence of a particular witness is untruthful or unreliable does not render the whole of the evidence of that witness unworthy of belief. The judge catalogued every discrepancy, omission and contradiction in the evidence and drew attention to any aspect of it that was capable of detracting from the credibility of the principal prosecution witnesses. As counsel frankly and readily conceded, the summing up could not reasonably have been fairer to the applicants or more comprehensive.

71. We have no hesitation in saying that this was a case where the factual situation and the assessment of the credibility of the witnesses was pre-eminently one for a jury. It is not one of those rare instances in which we would be justified in disturbing the verdict.

72. We turn now to the ground that the findings of guilt against the 4th and 5th applicants are inconsistent with the acquittal of the 6th and 7th accused. Mr. Hemmings submitted that Senior Inspector Cheng's testimony had completely undermined DPC Tsang's evidence that there had been a conversation between himself, the 4th and 5th applicants and the 6th and 7th accused at lunch in which they discusses the false versions they proposed to give of what had occurred at the scene. Consequently the jury could only have convicted the 6th accused on the basis of Chan's testimony.

73. It is plain to us, however, that once the evidence of what allegedly occurred at the lunch was discounted, there was no evidence against the 7th accused other than that he was a member of the police team. Neither Chan nor any other witness alleged that he was involved in any of the events that occurred upstairs. Therefore the fact that the jury found the 7th accused not guilty had no bearing on their view of Chan's testimony. Secondly, on the same hypothesis, the only remaining evidence implicating the 6th accused was Chan's testimony that when that accused was upstairs making a sketch of the room and its contents he was in a position to see the 1st applicant and Chan removing fingerprints and to overhear the discussion between the arrested persons concerning their proposed false version of what had happened. But DPC Tsang testified that nothing of an incriminating nature occurred while the 6th accused was performing this duty. And since, as we have already observed, Chan's testimony was contradicted by his assertion in his statements to ICAC that he had seen only three policemen - presumably the 4th and 5th applicants and DPC Tsang - upstairs at the relevant time and that he did not see the other two until he came downstairs, we are not in the least surprised that the jury acquitted the 6th accused. Nor do we think that because they were not prepared to find him guilty on that tenuous evidence they should have rejected the balance of Chan's testimony and that of DPC Tsang as to the other events that had occurred upstairs.

74. Mr. Hemmings also submitted that if the jury believed Chan's testimony that he came downstairs shortly after the arrival of the Yuen Long police squad, they must have found that by not entering that fact in their notebooks, but recording instead that they heard noises upstairs following which the 4th and 5th applicants accompanied by DPC Tsang went to investigate, they were deliberately concealing vital evidence and were thus participants in the conspiracy. He contended that it followed that since the jury acquitted the 6th arid 7th accused they must have rejected Chan's testimony that he came downstairs and have relied on the evidence which Mr. Laskey sought to discredit as their basis for finding the 4th and 5th applicants guilty on the conspiracy count.

75. We are unable to accept this line of argument which seems to us to relate more to the submission we have already rejected that the verdicts are unsafe and unsatisfactory than to the submission that they are inconsistent with the acquittal of the 6th and 7th accused. We think Mr. Hemmings puts the matter far too high. It by no means follows that if the jury accepted Chan's evidence that he had come downstairs on that occasion they should have found the 6th and 7th accused guilty on the basis of their failure to record that fact in their notebooks. The jury may well have thought that although these two accused had seen Chan come downstairs they had also heard noises upstairs and had formed the view that the noises rather than Chan's appearance were the reason that the other officers went upstairs to investigate.

76. Notwithstanding the ingenuity of the submissions and the attractive way in which they have been presented to us we are of the opinion, for the reasons we have given, that there is no substance in these grounds of appeal. The applications for leave to appeal against conviction are therefore refused.