R. v. CHU CHI YAT AND OTHERS

Headnote

Conspiracy to traffic in dangerous drugs. Validity of a transcript of the audio part of a video tape pursuant to s. 7 of the Evidence Ordinance considered. Duty of trial judge to exclude prejudicial evidence even if no objection is taken by counsel. Use of non-incriminatory statements not called by the Crown as part of its case to cross-examine an accused as to credit (R. v. Rice, R. v. Treacy). Use of antecedent statements for that purpose.

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J U D G M E N T

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Penlington, J.A.:

1. These are applications for leave to appeal against convictions before. Ryan, J., and a jury on the 30th July 1990 on charges of conspiracy to traffic in dangerous drugs. There were two counts, the first one in respect of the 1st, 2nd and 3rd applicants (A1, A2 and A3) and the second against the 1st, 4th, 5th and 6th applicants (A4, A5 and A6)

Background

2. In November 1989 there had been a previous trial before Hooper, J., involving A1 and one Chu Hang Chow (PW7). Both A1 and PW7 were convicted of conspiracy to traffic in dangerous drugs and sentenced to 25 years' imprisonment. A1's application for leave to appeal against his conviction has been refused. PW7 gave evidence for the Crown at the trial which is the subject of these applications. The conspiracy count alleged at the trial before Hooper, J., took place in November 1987, i.e. some four months prior to the two conspiracies with which we are now concerned.

3. An American FBI undercover agent, Fred Yau (Yau), came to Hong Kong in 1987 together with one Simon Kwong (Kwong), a known narcotics trafficker in the United States of America. The intention was that Yau and Kwong would make contact with persons in Hong Kong who could arrange for the supply of very substantial quantities of No. 4 heroin for shipment to the USA. Kwong's name came up on many occasions in the trial and he was present at meetings which were held in the Mandarin Hotel in November 1987. A1 and PW7 were also present but, unknown to them and to Kwong, what transpired was recorded on both audio and visual tapes. Kwong was not tried in Hong Kong but was later extradited to the USA where he was convicted and is serving a long sentence of imprisonment.

4. Yau returned to Hong Kong in March 1988, staying at the Holiday Inn. There he saw PW7 and all the applicants. Again these meetings were recorded on tapes.

5. The tape recordings of the meetings between the applicants, Yau and Kwong, were transcribed only with difficulty as to the audio record. As was to be expected with a large number of people present in a hotel room it was not easy to obtain a clear transcript of what was being said by whom on any particular occasion. The basis on which these tapes were produced in court is the subject of one of the grounds of appeal.

6. The trial commenced on the 2nd May 1990 and concluded on the 21st July. That it took so long and that there have been so many grounds of appeal argued before us is, I consider, in no small part due to the course which was taken by the Crown at the trial. Attempts were made to introduce evidence which at the most was of peripheral value but, it is argued for the applicants here, invited speculation and was prejudicial to all the applicants. The Crown's case was essentially simple and depended on the tape recordings in the hotel rooms, very substantially supported by the evidence given by Yau, whose integrity as a witness does not seem to have been challenged; by the accomplice, PW7 and two undercover ICAC officers whose evidence was also not challenged. Nevertheless a great deal of other evidence was either introduced or an attempt was made to do so which, it was argued strenuously at the trial, and here, was prejudicial to the various accused. It has been submitted that the course taken by the prosecution was such as to make the whole trial, in respect of all the applicants, unsafe and unsatisfactory. Application was made at the trial by Mr. Anthony Sedgwick, Q.C., leading counsel for A3, that the jury be discharged for that reason. It is a matter of regret that the scope of the trial was so widened so as to take up so much time and to give rise to so many of the grounds of appeal which have been argued before us. I would only instance the cross-examination of A6 in what proved to

    be a futile attempt to demonstrate a connection between him and A3, this notwithstanding the fact that they were charged in separate counts. In saying that I mean no criticism of the trial judge who clearly had a most difficult task in the light of the way the case was conducted.

The Crown's case

7. It was Yau's evidence that he endeavoured to make contact with drug dealers in Hong Kong through Kwong and that eventually he travelled here from the USA in November 1987. Prior to that there had also been telephone discussions with A1 and PW7. Upon his arrival he liaised with the Independent Commission Against Corruption and also with the Narcotics Bureau of the Royal Hong Kong Police Force. He moved into a room in the Mandarin Hotel and between the 19th and 22nd November 1987 events were recorded there through a hidden video camera and also audio equipment. Due to a technical problem the video tape had no sound and had to be matched with the audio tape. These recordings were not of good quality. The Crown opened this case on the basis that the jury should be aware of what had happened in November 1987 because, although not the subject of any of the charges before the jury, these events were relevant as putting into context the events of March and April 1988. The Crown did not, however, seek to introduce the November 1987 tapes.

8. While in Hong Kong in 1987 Yau paid US$225,000 to a man called Ah Wai to secure future heroin deliveries. This was "bait" money. HK$220,000 was also paid to PW7.

9. Yau returned to the USA but came back to Hong Kong in March 1988 and on the 22nd he moved into room 1629 of the Holiday Inn, Golden Mile, Nathan Road. Again that room had been equipped with video and audio recording apparatus which monitored the events which took place therein. Yau met with Kwong, A1 and PW7. Later A2 arrived and was introduced to Yau. It was the Crown's case that there was then a discussion between Yau and A2 relating to the supply of heroin. However at no stage of that meeting, or the subsequent ones, was the word heroin (or its equivalent) actually used. There was reference to "pieces" and "units". Large sums of money were mentioned and A2 agreed to supply 100 "units" a month and to produce a sample the following day. On that day, the 23rd March, Yau, Kwong and A1 met in the room and a sample was handed over to one Tony Pang (an ICAC officer) which proved to be no. 4 heroin.

10. On the 24th March Yau, Kwong, PW7, A1 and A2 met in room 1110 and A2 said he could obtain 60 - 100 "units" for HK$100,000 a "unit".

11. Having, he said, made arrangements for the supply of heroin, Yau returned to the USA but came back to Hong Kong on the 13th April 1988, again going into the Holiday Inn, this time to room 1110 in which video and audio recorders had again been installed. There is no dispute that the tapes that were subsequently recorded were of a high quality except for the same problem with several people talking at once.

12. The two ICAC undercover officers who were infiltrated, Tony Pang and George Wong, eventually received two consignments of heroin. This was, on each occasion, concealed in motor cars to which Pang and Wong were given the keys. One was 6 kilogrammes which, it was the Crown's case, was part of the conspiracy between the 1st, 4th, 5th and 6th accused, i.e. count 2 in the indictment, and the other, 9 kilogrammes, from the group relating to the 1st count, the lst, 2nd and 3rd accused.

13. On the 13th and 14th April Yau was visited in the room by Kwong, PW7 and A1, and, at various times, A2, A4, A5 and A6 also came into the room. It was Yau's evidence that there were three deals being discussed. One was the supply of heroin from A2 and A3, some of which was contained in the sample already given; another supply was to come from A4, A5 and A6. A1 was involved with each of these as he was with the third deal involving Ah Wai, which was not the subject of any charge.

14. It was the Crown's case that the tape recordings of the discussions which took place in room 1110 were such as to show beyond any doubt that all those present were involved in the supply of goods to Yau. It was also its case that the evidence of Yau, PW7, Pang and Wong, in particular, was such that there was no real possibility that any of the persons present could have had any misapprehension as to the nature of these goods.

15. On the 14th April Kwong and A1 were arrested together in a Kowloon restaurant and at about the same time PW7, A4, A5 and A6 were arrested in the Holiday Inn as were A2 and A3 shortly afterwards.

16. PW7 gave evidence for the Crown under an immunity from further charges and on the basis that his evidence would be relevant to his appeal against sentence to be heard after the trial. The jury were fully aware of that and were directed on the question of how they should consider his evidence, he being an accomplice and a person who stood to gain by implicating others in these offences.

17. PW7 said he was a trader doing business with China but was also an illegal bookmaker. He had known A1 for many years and was introduced by him to Kwong. Initially, he thought that the purpose of the introduction was to arrange supplies of seafood, but at in the meeting at PW7's home Kwong in turn referred to Yau and his requirements for heroin A1, who was present, had told PW7 that he was helping Kwong because of fears for the safety of his family.

18. Following this PW7 had several telephone conversations with Kwong, who had returned to the USA, and he discussed these with A1. As a result they agreed that each would introduce different persons to Yau as suppliers of heroin when Kwong brought Yau back to Hong Kong.

19. He said that when Kwong returned to Hong Kong he met and discussed heroin with A4 who said he was not certain he could supply it but could introduce him to someone who probably could do so. On the 22nd March PW7 met A1 and Yau in the hotel and Yau told him that there was HK$150,000 for him as a result of the earlier deal. PW7 was very pleased about that and was anxious to help Yau. He received a telephone call from A2, then went out and brought him back to the room. There followed a conversation in which A2 agreed to supply 100 "units" a month and to produce a sample the following day. A sample of heroin was given by A1 and Kwong to Yau on that day, which Yau handed over to Tony Pang.

20. On the 24th March there was another meeting between Yau, Kwong, A1 and A2, who were then joined by PW7. PW7 said that A2 was at this stage posing as a supplier and was only saying what A1 had taught him. He went on however at the meeting to refer to getting goods from Lam Wing Keung, A4, with whom he had discussed the deal and whom he thought could supply heroin. A4 was not present at the time. Following this PW7, A1 and Kwong, as a result of a telephone call, went to the Shing Kwong Restaurant where PW7 said they met A3 and a man who was called "Chan D". Chan D asked about the sample given the previous day and wanted payment for it. A3 then said that the price for the sample was several tens of thousands of dollars and that if goods were required he had to be given adequate notice. PW7 said he paid Chan D HK$31,000 from his own pocket.

21. On the 13th April PW7, Al, Yau, Kwong and George Wong, another undercover ICAC officer, again met in the hotel. A2 was not present but was referred to as being able to supply 30 "units". Later PW7 and Kwong went to the Ruby Restaurant where, PW7 said, they met A4. There was a discussion about delivery the following day and a price of HK$105,000 per "unit" was mentioned.

22. Following this they went to A1's home where A1 made several telephone calls regarding delivery of the goods which were to be put in a car the keys of which were to be given to A2. When the car was loaded somebody would come to the hotel to collect payment.

23. On the following day, the 14th April, PW7 said he called A4 to come to the hotel with his friend, Chan D. A4 duly came, together with A5.

24. PW7 said he had never met A5 before. A6 also arrived as did George Wong who had a bag containing HK$3,500,000, which was inspected. A6 then handed over to Tony Pang, the other ICAC officer who was also present, a car key and a sketch showing where the car was parked.Tony Pang drove the car away and in it was found the heroin which is the subject of the second count. Tony Pang gave evidence that he was posing as Yau's assistant and had hired a car on the 14th April. When he went to the Holiday Inn, room 1110, he was told to give the keys and carpark ticket to A2, which he did. A2 then left. Sometime later A6 entered the room and gave a car key to Tony Pang together with a sketch showing where it was parked. Tony Pang went to the spot, found the car and drove it to the BMH Hospital where it was found to contain 20 blocks of heroin, the subject of the second count.

25. The evidence relating to the heroin, which is the subject of the first count, is that PW7 said he received a telephone call at 1220 hrs. on the 14th from the man known as Chan D. As a result he spoke to A1 who went with George Wong to a restaurant where Chan D gave them the key and a carpark ticket. They went to the car and George Wong drove it also to the BMH Hospital where it was found to contain the heroin which is the subject of the first count.

The tapes

26. I shall first deal with the question of the status of the transcript of the tapes - those emanating from both the Mandarin Hotel and Holiday Inn.

27. They were prepared by a team of police officers, who, it would seem, did not have the best possible equipment and clearly had the greatest difficulty in compiling an intelligible record of the various conversations which took place. This was understandable in view of the numbers of persons present. Reliance was placed by the Crown on s. 29A of the Evidence Ordinance, Cap. 8, which provides as follows:

"29A. (1) A document purporting -

(a) to be a transcript of the whole or any part of a record in a language other than the English language which has been admitted in evidence in any criminal or civil proceedings; and

(b) to be certified, by a person appointed under subsection (2) to certify transcripts of records in such other language, as an accurate transcript,

shall be admitted in evidence in those proceedings on its production without further proof and, until the contrary is proved, the court before such document is produced shall presume that -

(i) the signature on the document of the person certifying it is genuine;

(ii) such person was at the time of certifying the document appointed under subsection (2) to certify transcripts of records in such other language; and

(iii) the document is an accurate transcript of the whole or part of the record to which it purports to refer.

(2) The Chief Justice may appoint in writing any person to make and or certify, for the purposes of this section, transcripts of records in any language specified in the terms of the appointment.

(3) not relevant

(4) not relevant

(5) not relevant

(6) not relevant

(7) In this section "record" means any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom."

28. The Crown seeks to interpret subs. (7) as meaning that a certified transcript of a description of a visual image - "at this stage A enters the room and sits down" - is inadmissible. The image must be allowed to speak for itself. Apart from that the recording of any "sounds", whether or not the tape also recorded images, as a video tape does, could be produced and certified under the section. The presumption of accuracy then arises. In the present case no evidence was called to rebut that presumption apart from that of A1 who denied that some passages were spoken by him.

29. For A5 Mr. Hayes argues, as he did at trial, that the meaning of subs. (7) is that if the tape contains a recording of visual images it is not a "record" and cannot come within the section. The transcripts were wrongly admitted pursuant to the section which meant that their accuracy was presumed unless it was proved to the contrary. They should have been proved in the normal way, difficult though that it may have been in some instances. That would have meant that there was no presumption as to accuracy. All the other applicants also rely on that ground of appeal.

30. I have no doubt that the correct interpretation of the section is that placed on it by the Crown, as found by the trial judge. The video tapes did contain both sound and visual images but subs. (7) does not mean that it is not possible for the Crown to produce a certified transcript of a tape which also contains visual images. The bracketed words in subs. (7) "(not being visual images)" clearly refer to "other data". The transcript can only contain a record of sounds, not an attempt to describe the visual images, but, provided it does so, the transcript comes within the definition of "record". The judge's ruling was in accordance with both the logical meaning of the subsection and the clear intention of the legislation. It was undoubtedly correct.

31. I now turn to the defences raised and grounds of appeal relied on by each applicant.

The first applicant

32. It had been agreed before the trial that the November tapes would not be put before the jury. However when PW7 was being cross-examined by Mr. Alan Hoo, Q.C., then appearing for A3, he sought leave to put those tapes to PW7 so as to show that he was lying when he said he only had a limited knowledge of dangerous drugs; the tapes showed that on the contrary he had a very wide knowledge of dealing in such drugs.

33. Reliance for that course was placed on Lui Mei Lin v. R. [1989] 1 AC 288 which is authority that counsel for a co-accused has an unlimited right to cross-examine an accused person on a statement he has made even if it has not been produced by the Crown. That application was accordingly granted although Crown counsel pointed out the problems that could - and did - arise. Miss Toh, for Al, argues that as the November tapes were not in the bundle of evidence before the trial she had no opportunity to challenge their accuracy. There were indeed some passages alleged to contain words spoken by A1 which, when they were put to him in cross examination, he denied were his. That challenge was met by Crown counsel submitting that the jury, being all Cantonese speakers, could decide for themselves.

34. I fully appreciate the difficulty faced by Miss Toh for A1 on this point. Without doubt the introduction of the November tapes by Mr. Hoo for purposes of his cross-examination caused substantial problems. The original indictment which alleged a conspiracy covering November 1987 and March/April 1988 but this had been severed into the two counts as laid so as to avoid prejudicial evidence, not relevant to some of the accused, being admitted. That intention was undoubtedly frustrated by the production of the November tapes in this way. However, in the light of the authority of Lui Mei Lin I do not consider that the trial judge had any alternative but to allow Mr. Hoo to put the tapes to Al. The direction of the trial judge on the evidence of the November tapes was, in any event, very clear. He said that the video was of poor quality and "you may perhaps feel that the tape does not help you a great deal in assessing his credibility (Al), but that it is a matter for you". They were also told that any evidence concerning the November 1987 conspiracy was led only to show the background leading to the events of March and April 1988.

35. The defence of A1 was that although he was fully aware of the object of the conspiracies he was very frightened of Kwong, whom he understood had very powerful friends and triad associates in the USA, where A1's family lived. He had his family moved from Los Angeles to Houston but Kwong had nevertheless found and threatened them. He could not just go back to China or become a police informer because his family would still be at risk. That evidence was examined by the judge who pointed out to the jury that there was support for the defence from PW7's evidence that A1 had told him that Kwong had threatened him and his family. The judge's direction on this was very full and is not challenged.

36. The November tapes were before the jury, unfortunate though that was, and they were properly certified. There was nothing improper in that and A1 had the opportunity, which was on at least one instance taken, to challenge their accuracy. I also do not consider that they were so prejudicial to A1 as to affect the safety of his conviction. The jury were always aware that there had been a preliminary visit to Hong Kong by Yau to arrange for supplies of heroin and A1 was involved. I do not consider that the details of that visit, as revealed in the tapes, weakened his position to any real extent. The jury was told in very clear terms that matters and discussions which arose before the charge period were relevant only as to background and I must assume they obeyed that direction unless there was matter wrongly produced which was so highly prejudicial that no direction could have overcome it. I do not consider that was the case here.

37. A further ground of appeal, which is based on the visit of a solicitors clerk to A1 at Stanley Prison, gives rise to more concern. This was a Mr. Choi who was employed by the firm of solicitors who were acting for A3. I consider this was evidence which should never have been called in that it invited the jury to speculate as to the purpose of the visit i.e. that A3 was seeking A1's assistance when giving his evidence. Indeed, Crown counsel in seeking to justify its introduction came out with the quite astonishing statement that it was however "intelligent speculation". That line of cross-examination was wrong, prejudicial, took the matter no further and added to the length of the trial. The question however is whether the effect of this evidence was so prejudicial that it could not be cured by a direction from the trial judge. This direction was as follows:

''In relation to this you will recall the 1st accused was asked by Mr Cagney about a visit to him while he was in Stanley Prison by a Mr Choi. It had been suggested that Choi was the clerk of a firm of solicitors acting for the 3rd accused and that he was there to get the 1st accused's co-operation in the 3rd accused's defence. There was no evidence to support this suggestion and you may recall that the 1st accused's response was that it related to an entirely different matter and that a European barrister was present. Now, you should not draw any adverse inference against the lst accused or the 3rd accused in respect of that visit."

38. That direction was, in my view, sufficient to remove the prejudicial effect of the evidence. It was a short direction but to have gone on at length would only have emphasised the point in the minds of the jury in respect of A1 and A3.

39. Reliance was placed by Miss Toh on the recent decision of this Court in R. v. Kai Hui Wai and Another, Crim.App. 577/89 where there was also evidence of a visit to the accused persons by a solicitor's clerk, who, it was alleged by the Crown, was acting on the instructions of the organisers of a drug trafficking conspiracy. There however the evidence was not only admitted but was then emphasised by the police officer in charge of the case in her evidence and stressed to the jury by Crown counsel in his final address. Moreover, there was no direction given by the trial judge, as there was here, to ignore such speculative evidence.

40. The final ground of appeal for A1 (and is also argued for A3) is that he was cross-examined about a verbal statement which he made to a police inspector and allegedly concerned A3. There was a long argument about this and eventually Crown counsel was allowed to put it to A1 who denied it. In his summing-up, however, the trial judge directed the jury in a manner which cannot be faulted. He said:

"First, even if he had said anything of that nature, it would not be evidence against the 3rd accused. But in any event he denied that anything of that kind had taken place and there was no evidence that it did, and so again you should not have regard to that piece of evidence in considering the guilt or innocence of the 1st accused, or for that matter, the 3rd accused."

That ground of appeal must also fail.

The second applicant

41. A2 gave evidence and said that he was simply acting on orders from PW7 to pose as a person who could help to supply pearls to Yau and to then defraud him in relation to such pearls. He never realised that the commodity to be supplied was in fact heroin until he was arrested.

42. It was the main ground of appeal for A2 that the tapes, as put before the jury, contained a vast amount of material as to conversations between Kwong, Yau, Chu and A1 when A2 was not present which showed them to be villains of the worst possible sort - dealers in drugs not only in Hong Kong but elsewhere; gang members and persons who would not hesitate to maim or kill those who incurred their displeasure. It was therefore highly prejudicial to A2 that when the jury saw the videos and read the transcripts they must have seen a group of utter scoundrels of the worst sort gathered together and then joined by A2. He must have been tarnished by that image. It was also submitted that a very great deal of the tapes was totally irrelevant to the guilt or innocence of A2 and should never have been put before the jury and that the judge's direction on this - that statements made in the absence of any particular defendant which was not in furtherance of the conspiracy as charged - was not enough to remove the prejudice. The effect on the minds of the jury of the character of the alleged co-conspirators could not be cured by any such direction. Considerable reliance is placed on R. v. Lemsatef (1977) 64 Cr.App.R. 242 where the defendant was arrested and a large quantity of cannabis was found in drums in a van he was driving. The question of whether or not the defendant knew what was in the drums was crucial. A co-defendant, who clearly was, to say the least, not an impressive witness, nevertheless came out with the highly damaging statement that the defendant was well known in Liverpool as a major drug dealer and because of that was a very wealthy man. The Court of Appeal, per Lawton, L.J., said that the evidence went to the very heart of the defence and was so prejudicial and damaging that the judge's direction that the jury should not let it affect their minds could not save the conviction.

43. I do not consider the prejudicial material before the jury here fell in any way into the same category as that in Lemsatef. Here the conversations complained of were not about the conspiracy charged and in no way were directly relevant to the background of A2. Without doubt the tapes did show that A2 (and A4) were associating with serious criminals in that clearly some of the persons present were large scale drug traffickers - the discovery of large quantities of heroin showed that. It would not, in my view, have had any further effect on the minds of the jury that these persons were said to be guilty of other serious offences elsewhere involving other drug related offences and violent crime. Here the position was that full transcripts were in the hands of the defence well before the commencement of the trial. It was the Crown's position that it would be difficult and wrong for it to edit them because what one accused may want deleted on account of its prejudicial effect another may want included. It was up to the defence in each case to make its position clear as to what parts of the tapes, if any, it wanted excluded. There were no such applications and no objections were made at the trial. Indeed, not only were there no objections but, once the legal point concerning certification was resolved, the tapes went in by agreement.

44. Mr. John Griffiths, Q.C., who has argued this point forcefully for A2 (and A4), says that even if there is no objection by counsel, the trial judge should himself be alert to prevent inadmissible and prejudicial matters going before the jury. He relies on the dicta of Lord Simon, L.C., in Stirland [1944] AC 40 (at pp. 55/56) that it was not fatal to a ground of appeal relating to wrongly admitted evidence that counsel did not object. It is a judge's duty to raise the matter himself.

45. I do not consider that the material in the tapes which did not refer to A2 or A4 themselves but only to their associates, was such that, even without objection by counsel, the trial judge should have himself intervened to exclude it. He did tell the jury in clear terms that they had to be satisfied that a statement by any accused about past events not in furtherance of the conspiracy was not evidence against any other accused. He went on to say that evidence of the pre-conspiracy period was only relevant to explain how Yau was in Hong Kong in March/April 1988. He later again said that evidence of events which occurred at a time before the alleged March/April conspiracies did not establish that they did exist but explained how Yau came to be connected with Kwong PW7 and Al. I do not consider he was required to go further than that to remove the prejudicial effect of the evidence of what had happened before A2 appeared. The situation here was very different from Stirland where questions were put to the accused charged with forgery so as to suggest that on another occasion he had also forged documents. He had never been charged with such an offence and the other alleged forgery had no relation to the charges he was facing. There was a direct allegation that on another occasion he had committed the same offence as that with which he was charged.

46. It is also a ground of appeal for A2 that the questioning of A1 concerning the solicitors clerk's visit to him was prejudicial to him as well as to A1 and A3. I do not consider that it was, but in any event was adequately dealt with by the trial judge's direction.

47. It was a further ground of appeal for A2 that he was cross-examined upon the basis of an antecedent statement he had made to the police in which he admitted having been previously employed by A3. In evidence he denied knowing A3. The statement was not produced as part of the Crown's case.

48. There are conflicting authorities regarding the question of a previous statement which was not produced in evidence being put to an accused person, not on the basis that it contains any admission of wrong conduct but simply to discredit his evidence. The statutory basis is s. 12 of the Evidence Ordinance, Cap. 8. This reads as follows:

"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."

49. I do not consider that the authorities of Rice [1963] 1 QB 857 or Treacy (1945) 30 Cr.App.R. 93 support the proposition that if the Crown has not seen fit to produce a statement as part of its case, such a statement cannot be used for the purpose of a challenging credit. The decisions in Rice and also in R. v. Kane (1977) 65 Cr.App.R. 270 were discussed by Ralph Gibson, L.J., in R. v. Phillipson (1990) 91 Cr.App.R. 226. There, certain letters between the accused and the person who had given her heroin to smuggle were not produced as part of the Crown's evidence but were put to the accused as rebutting her defence of duress, even though that defence seemed to be the only one available to her and could have been anticipated by the Crown. At 232 he said:

"We start by setting out the principle which was stated by this Court in Rice (1963) 47 Cr.App.R. 79, 85, [1963] 1 QB 857, at p. 867:

'There is a general principle of practice, ... though no rule of law, requiring that all evidentiary matter that the prosecution intend to rely upon as probative of the guilt of an accused person, or of the guilt of any one of a number of co-accused persons, should be adduced before the close of the prosecution case if it be then available.'

The principle was restated in Kane (1977) 65 Cr.App.R. 270, where Scarman L.J. said at p. 274:

'In general, evidence which is capable of forming part of the affirmative case for the prosecution should be tendered and led in the course of that case. If it did not form part of the evidence upon which an accused was committed for trial the practice is to give notice of the additional evidence to the defence before it is tendered. Apart from informing an accused of the nature of the further material it provides him or his representative with an opportunity to take any proper objection and the trial judge with time to consider whether in strict law or in the interests of justice it should be admitted or excluded. The question of admissibility is all the more acute where the subject matter is not an acknowledged statement by an accused but is a record of a verbal exchange the very accuracy of which is or may be an issue ... This is not of course to be taken as precluding the examination of a defendant in regard to all matters not adverted to in the course of the prosecution case. It is only where those matters could and should have been adduced as part of that case that the considerations mentioned necessarily arise.'"

He went on at 234 to say:

"We do not decide that the prosecution must, in all circumstances, make part of the prosecution case any material which the prosecution might intend in certain circumstances to use in cross-examination of an accused. But in our view, on the facts of this case, the evidence of the letters and photograph should have been included as part of the prosecution case and thus made known to the defence in advance of the trial." (My emphasis)

50. This was because the defence of duress was obviously the only one which could be raised and it was up to the Crown to rebut it and show positively that there was no duress sufficient to constitute a defence.

51. I do not think the same principle applies in relation to the statement made by A2 that he was, at one time, employed by A3. The employment was, in itself, perfectly legitimate and was prior to the events which formed the basis of the charge. It had no relevance to the guilt or innocence of A2 until he gave evidence denying that he knew A3. It then became relevant, not as direct evidence of his guilt but simply to show he was lying, and, but for the authorities relating to the use of antecedent statements, could have been put to the accused as allowed by s. 12 of the Evidence Ordinance.

52. There is, however, authority in Hong Kong in connection with statements, known as antecedent statements, which are recorded after the investigative process has finished from persons who have been charged with an offence. The purpose of these statements is to obtain information as to an accused's age, background, education, employment, etc. and, being relevant to sentence, are of course very useful in the event of the accused pleading guilty to the offence. R. v. Cheng Chung Yat [1970] HKLR 269 (Full Court) is clear authority that such statements should never be used in the course of a contested trial. In Cheng the accused was asked questions after he had been charged about a Mr. and Mrs. Wong who may have been linked to the offence alleged against the accused or to other offences. Such questions were properly asked if their purpose was to clear up ambiguities or related to another investigation. Even though the answers given were non-incriminatory it was held that such a statement should not be used at the trial "for any purpose whatsoever". Mr. Cagney clearly considered that the reasoning behind that decision - that the statement had been obtained after the accused had been charged and was therefore in breach of the rule against self-incrimination - did not justify the sweeping conclusion that antecedent statements could never be used. Nevertheless it was a decision which was binding on the trial judge here and rightly he followed it. Fortunately for the Crown he refused to allow A2 to be cross-examined on his antecedent statement as to his knowledge of A3. The trial judge furthermore directed the jury in relation to the antecedent statement that it was not admissible evidence and did not form part of the evidence on which they would reach a verdict on A2. He went on:

"I also told, and I remind you again, that you must not speculate about the contents of that document, that you must put any reference to it out of your mind and do not consider it in your deliberations in respect of the guilt or innocence of the 2nd accused, or the 3rd accused for that matter."

That was a strong direction indeed and in my view removed any prejudice caused by the attempt by the Crown to use the statement. It is however argued that despite that ruling a the jury must have been aware that A2 had made a statement inconsistent with his evidence and that that must have prejudiced them against him. This, it is argued, should be looked at in the context of all the other prejudicial matters - the tapes, the allegation of involvement in the November conspiracy, the visit of the solicitors clerk to A1 and that the cumulative effect was such that it could not be cured by a direction from the judge. Mr. Griffiths argued that because of this, despite very cogent evidence against him, A2 did not have a fair trial. I shall deal with that argument later.

The third applicant

53. It was A3's evidence that he was in the transport business taking goods to and from China. He admitted he was also involved in smuggling electronic goods into China. He knew A1 and PW7, who were partners in an illegal gambling business. He also met A2, who was employed in the gambling. He did not know A4, A5 or A6. He did not take part in any conspiracy to sell heroin to Yau. He denied being at the meeting in the Shing Kwong Restaurant, a version supported by Al. It was A3's case that he also thought that he was being involved in a conspiracy to sell fake pearls, not heroin, to Yau.

54. It is argued for A3 that he was wrongly cross-examined in relation, not only to the March/April 1988 conspiracy, but also as to the November 1987 events - it being wrongly suggested to him that in his capacity of a transport operator he was involved in those events. This, it is contended, was inadmissible, prejudicial and so damaging that it could not be cured by a direction. Again, this line of cross-examination should not have been allowed. But the jury was directed that the evidence relating to the November conspiracy was only background relevant to the March/April counts as showing the reason for Yau and Kwong being in Hong Kong in 1988. This was made clear to the jury by the trial judge. His direction would have removed any prejudice. In any event the question and the answer given by PW7 to which objection is taken is only that PW7 knew A3 was in the trucking business - not that he was smuggling drugs.

55. Questions were also asked of A1 about A3 being involved in the November events but his answer was a categorical "no". That could have done him no harm. That also applies to questions put to A2 concerning A3's involvement in November.

56. As I have already said in relation to A1 the jury were directed that evidence relating to the November conspiracy was only relevant as background material explaining why Yau came to Hong Kong in March.

57. It was also submitted that the cross-examination of A2 on the basis of his antecedent statement to show that he worked for A3, even though disallowed, was prejudicial to A3, as being contrary to his evidence in chief as was the line of cross-examination of A1 in relation to the visit paid to him in prison by the solicitors clerk, acting, it was suggested, for A3.

58. As I have already said, that such cross-examination was even embarked on was quite wrong but each was the subject of a clear ruling and direction by the judge. I do not consider the harm done was not repaired.

59. Evidence was given by a police officer that after A3's arrest, his home was searched and a piece of apparatus was found about which that was a great deal of evidence as to its purpose. It was the Crown's case that, although no trace of heroin was found on it, it was of use in testing heroin to see if it was of high purity. A3 said it was in fact a "junction capacitor" for which he had received a request from a Mr. Lau Kwan of the Guangzhou Foreign Export Trade Corporation. It was not intended to be used to test heroin. A3 produced a document, alleged to be signed by Mr. Lau, making that request. He was, however, cross-examined on the basis that he had been visited in prison by his brother and that the document was a forgery. While Mr. Lau was not called to give evidence, Crown counsel was apparently in possession of a statement from Mr. Lau denying that he had ever ordered a junction capacitor. That statement was shown to A3 and it was suggested to him that the document he had produced was a forgery. He was asked if he could suggest any motive for Mr. Lau "to lie about this if he is called to give evidence".

60. In fact Lau was not called as a witness. In his summing-up the judge put forward A3's case in relation to the apparatus very fully and said there was "no evidence that the letter from Guangzhou was anything other than genuine". That was, in my view, sufficient to remove any prejudice.

61. It was also argued that there was a failure of the trial judge to give an adequate direction that acts and declarations of co-conspirators could only be evidence against an accused if he was a member of the conspiracy at the time.

62. I have already set out the direction given by the judge in relation to a similar ground raised by A2 and I am satisfied the jury could have been in no doubt as to the way they should deal with this sort of evidence.

The fourth applicant

63. Unlike A2 and A3, A4 gave evidence that he thought the conspiracy was to sell stolen diamond encrusted Rolex watches to Yau. However the same grounds of appeal and arguments were put forward on his behalf as for A2.

64. An additional ground was that A4 was asked in cross-examination if he had at any time before trial told the police that he was only there to deal in watches, not drugs.

65. Again this was quite wrong but the trial judge clearly and firmly told the jury that the accused had a right of silence after arrest and that no inference against any of them could be drawn from the fact that they elected to exercise that right. That direction was sufficient, even though it should not have been necessary.

The fifth applicant

66. It was A5's evidence that, like A4, he thought that he was involved in dealing with stolen watches. He was the manager of a "villa" which was patronised by one Ko Lo Wah who asked A5 if he knew PW7. He said he was going to sell him some stolen watches but did not trust him and wanted to get A4 to act as guarantor. He discussed this with A4 who agreed. They were to split a fee of HK$50,000 between them. As far as he was concerned the goods to be put in the car were watches, not drugs. After he and A4 went to the hotel he spoke to Ko Lo Wah who agreed to sell 10 pieces for HK$1,000,000 - a large sum of money for stolen watches, but he thought they were very valuable pieces.

67. In addition to the submission as to the status of the transcript of the tapes with which I have dealt, A5 submits as a ground of appeal that the judge should have "urged" the jury to rely on the tapes themselves, not on the transcripts which were admittedly subject to error. I do not consider there was need for such a direction. I have not viewed or listened to the tapes, but accept that they were dramatic. No doubt the jury gave them full attention.

68. Complaint is also made that the judge told the jury that even if they thought A5 was just Ko Lo Wah's foki he would still be guilty if he knew that what in fact was being sold was heroin. It is suggested that they should have been told to consider if he "knew enough" to be aware of the nature of the transaction. Again I do not consider such a direction was required.

69. Mr. Haynes, for A5, said that A5 was in the hotel room for only 2 hours and 15 minutes and that there was nothing in the conversation which would have alerted him to the real nature of the transaction. "Bricks" were mentioned, not heroin, and HK$1,000,000 was not such an unreasonable sum for 10 very valuable watches, even if they were stolen. I am satisfied that the case against A5 and his defence were fully and adequately put to the jury and it was a matter for them to decide if they were satisfied beyond doubt of A5's knowledge.

The sixth applicant

70. A6 gave evidence and said that he had known Ko Lo Wah since 1985 and had helped him in smuggling electronic goods into China. Ko Lo Wah introduced him to A5 in mid-1987 and often went to A5's villa. On the 13th April he stayed at the villa where Ko Lo Wah woke him next morning, handed him a car key and a sketch and asked him to give them to A5. Later A5 phoned him. A6 told him that he had the car key. A6 then met A5 on the corner of Mody and Nathan Roads and gave him the key and the sketch. A5 then asked him to go to a room in the Holiday Inn to collect money in payment of Ko Lo Wah's stolen goods. He said it was a large amount, about HK$1,000,000. A5 said there were men in the hotel room who were being very aggressive and he wanted A6's support.

71. On the way to the hotel room they met A4 in the lobby. A6 had not met him before. They went to the 11th floor where A5 returned the car key and the sketch to A6. A5 then went into room 1110 but shortly afterwards returned and asked A6 to come in. He told A6 to give the car key and sketch to somebody and to pretend to be "the boss". A6 entered the room and joined in the discussion about 10 "pieces". He was there when George Wong came in with the suitcase of money and he helped count it. He handed over the car key to Tony Pang. He said that his talk about driving the car the previous evening was just bluff - he could not drive, even though he had a learner's permit - and he did not hire the car and could not understand why the person who hired it had given his address to the hirer.

72. A6 denied knowing A3 but was cross-examined about a telephone account found in the common area of the flat related to a mobile phone, the number of which, it seems, A3 had frequently dialled.

73. Miss Sze Kin submitted that the only evidence against A6 was the tapes. Neither PW7 nor A1 knew him before the meeting in room 1110. Only A5 had said that he had met him before It was wrong of the Crown to then try to link A6 to A3 which was done by producing a telephone account found at premises which he jointly occupied with three other men, who have not been traced, and which show calls made to A3's portable telephone. This document was produced, P.183, but it was pointed out at the time that A3 and A6 were not charged as participants in the same conspiracy and that any further evidence could result in an inference of guilt by association. That submission was accepted by the judge. However, when A3 gave evidence, he was cross-examined, inter alia, about telephone calls made to the account P.180 and was asked if he had called A6 in December 1987. He denied doing so.

74. There were then lengthy submissions by the Crown and Miss Sze regarding the use to which P.180 could be put. They are difficult to follow involving a man called Ho Fai and another called Shum who lived in Guangzhou. As Mr. Cagney frankly said at the time, he was himself not sure what it all meant, but eventually it was agreed that the document was not in itself evidence against A6 but might be used if he gave evidence. When A6 gave evidence, it was put to him that he knew A3, as evidenced by the telephone account. Mr. Sedgwick, for A3, then further objected to any attempt to try to link A3 to A6 on the basis that they were separately charged. The judge however ruled that the question could be put as being relevant to credibility. It is argued that this removed the effect of having two counts alleging different conspiracies and linked A6 to the conspiracy involving Al, A2 and A3 (the first count).

75. It was again unfortunate that this cross-examination took place. It achieved nothing and caused much time in lengthy submissions as well as the actual giving of the evidence. It was, however, a matter for the judge to deal with in his summing-up. This he did fully and fairly. He told the jury that A3 and A6 were not charged with the same conspiracy and that there was no evidence that they were jointly involved in drug dealing. The only relevance of the evidence led to establish that they knew each other was as to their credibility as witnesses. It was pointed out that the account P.180 was not found in A6's cubicle but in a common area of the flat. There was also a name card found on A6's person which had a telephone number on it which at one stage was A3's. Again there was a clear direction that such evidence, for what it was worth, went only to credit.

76. Undoubtedly the effect of calling this evidence and the repeated attempts in cross-examination to link A3 and A6 were prejudicial, and Miss Sze submitted strongly that the prejudice far outweighed the relevance as to credit. I do not think the questions should have been put but there was a clear direction as to how the jury should consider the evidence. A trial judge has a very wide discretion as to whether to allow evidence to be called or a line of cross-examination taken which, while relevant as to credit, is also prejudicial. I do not consider the judge here exercised his discretion in such a way as was so clearly wrong as to cause us to interfere on that ground.

Was there a fair trial?

77. Finally it has been argued by all applicants that even if no separate ground of appeal has sufficient merit to justify allowing the application, the overall way in which the trial was conducted by the Crown was such that there was so much inadmissible prejudicial material put forward that must have had a grave effect on the minds of the jury and that, notwithstanding the trial judge's rulings and his firm and clear directions, the verdicts are unsafe and unsatisfactory. It was further contended that the application made during the trial to discharge the jury should have been granted. That course was required in the interests of justice notwithstanding the appalling waste of time and costs which it would have caused.

78. I have given this ground of appeal most anxious consideration. An inordinate amount of time was spent in endless arguments in the absence of the jury regarding the admissibility of evidence which was alleged to be prejudicial. This was no doubt the major reason why the trial took such a long time. The jury must have been justifiably bewildered by being asked to retire so often and for such long periods.

79. While some of the prejudicial material came forward in the form of cross-examination of the accused and was therefore before the jury, the trial judge gave very clear and firm directions that they should ignore it and I do not consider that, unlike the situation in Lemsatef, what was heard by the jury was cumulatively so prejudicial that it could not be cured by such directions. As this Court said in R. v. Kai Hui Wai such a direction by the judge was required but if it had been given would have been sufficient. Here there are several grounds of appeal which were certainly arguable as to the effect of prejudicial evidence which was before the jury but the overall effect of them is not in my view, in the light of the judge's directions, such as to cause me to consider that all applicants were not afforded a fair trial.

80. I would accordingly dismiss all the applications for leave to appeal.

Fuad, V.-P.

81. I agree that the applications should be refused.

Macdougall, J.A.:

82. I also agree that these applications should be refused.