LEUNG KWOK HUNG v. R.

IN THE COURT OF APPEAL

1993, No.49
(Criminal)

HEADNOTE

Criminal Law - conspiracy charge - "co-conspirators' rule" - Trial judge's responsibility to rule on admissibility of evidence - Unwarranted for judge to tell jury about the "co-conspirators' rule" - This was an irregularity at the trial but not material to the outcome.

IN THE COURT OF APPEAL

1993, No.49
(Criminal)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the Court):

1. The applicant Leung Kwok-hung was convicted in the High Court after trial before Deputy Judge R. Wong, Q.C. and a jury on one count of conspiracy to traffick in dangerous drugs. There were two accused persons named in the indictment: Yu Koon-man (D1) as the 1st defendant and the applicant (D2) as the 2nd defendant. The indictment stated that the two defendants between 9th January and 26th February 1992 conspired together and with another person or other persons unknown to traffick in a dangerous drug, namely salts of esters of morphine.

2. D1 absconded before trial with the result that the applicant stood trial alone. He was convicted and sentenced to 12 years' imprisonment and now seeks leave, through counsel Mr. Marash, to appeal against that conviction.

Prosecution Case

3. There were two principal prosecution witnesses: Senior Inspector Chan Kin-hung (PW1) of the Narcotics Bureau who was an undercover agent posing as a purchaser of heroin, and DPC 23344 Tsang Nung-keung (PW2) who posed as PW1's assistant.

4. The evidence led by the prosecution was to the following effect: There was a first meeting on 9th January 1992 when PW1 was first introduced to D1, known by the name of Sheung Lung. At this meeting PW1 and Sheung Lung discussed the possibility of the latter supplying 10 units of No.4 heroin. PW1 was posing as an American-born Chinese with business in Taiwan. The heroin was to be smuggled back to the United States for sale. It is worth emphasizing at the outset that neither at this first meeting nor at any subsequent meetings, nor during any conversations by phone, was the word "heroin" ever used: the product under discussion was always referred to as "units" or "the stuff". Sometimes the word "things" was used. At this first meeting in January D1 offered the 10 units (meaning about 7 kilogrammes) at $105,000 per unit of 700 grammes. After agreeing the price there was discussion about the method of delivery and payment. At this meeting Sheung Lung left his portable phone number and also a paging number.

5. There was delay in finalizing the deal when, about 5 days later, Sheung Lung told PW1 that the transaction had to be suspended as two of his associates had been recently arrested. Sheung Lung suggested to PW1 that he (PW1) should contact him when he next visited Hong Kong.

6. The second meeting occurred at the Sky Lounge, Sheraton Hotel, over a month later, on 18th February 1992, this having been arranged on the telephone between PW1 and Sheung Lung. Three persons attended this meeting: PW1, Sheung Lung and the applicant who was introduced by Sheung Lung as his friend known by the name Ah Dee. Sheung Lung said that his old portable phone was held by the applicant and he was using another portable phone with a different number. He was also using a different pager number. The applicant wrote down Sheung Lung's new portable phone and pager numbers on a Sheraton match box which was given to PW1. At this meeting the purity of the heroin to be supplied was discussed. PW1 insisted that it should be 190 to 210 degrees. The number of degrees indicated the melting point of the heroin. 230 degrees equated to 99% purity. There was discussion concerning the price for high quality heroin: Sheung Lung said the unit cost would not exceed $120,000 per unit. As regards the method for finalizing the transaction, it was arranged that Sheung Lung's assistant Ah Dee (the applicant) should bring along a sample and show it to PW1's assistant; after the inspection PW1's assistant would phone him and money would be handed over to Sheung Lung by PW1 at a separate location. The three of them were then sitting at a table together. Sheung Lung indicated that the applicant was his assistant and suggested that, at the next meeting, PW1 should bring his assistant along.

7. The third meeting occurred two days later on 20th February 1992 also at the Sky Lounge, Sheraton Hotel. Sheung Lung was accompanied by his assistant the applicant. PW1 brought his "assistant" along: PW2. PW2 was introduced to Sheung Lung and to the applicant as Ah Keung. At this meeting Sheung Lung said he would be able to supply a sample that evening, but the purity level would only be around 90 degrees (approximately 40% pure). Sheung Lung said that if PW1 was satisfied with that type of heroin sample he could supply three units at $110,000 per unit and would be able to get better quality samples the next day. There was discussion about the price and quality. PW1 said he preferred to have both types of samples tested before deciding to purchase. There was also some discussion as to the method of payment. Sheung Lung wanted to resile from the previous arrangement and suggested that PW1's assistant (PW2) should carry cash with him on his inspection and after inspecting the sample to pay the applicant there and then. PW1 objected and said this would only be acceptable after the first transaction, if that went smoothly. The applicant agreed with that and said it would be best to stick with the original plan, in terms of safety. Sheung Lung eventually agreed to stick to the original proposal whereby the two assistants handled the samples and the money would change hands between PW1 and Sheung Lung at a different location. It was arranged that the applicant would deliver a sample to PW2 that evening. PW2 gave a paging number to Sheung Lung to enable contact to be made. Shortly after that the applicant left, followed by the others a little later.

8. Later that evening contact was made with Sheung Lung and, just before midnight, a sample of heroin packed in a Spearmint chewing gum wrapper was handed to PW2 in the vicinity of Golden Harvest Theatre in Jordan Road: not by the applicant as previously arranged, but by Sheung Lung.

9. The fourth meeting between the parties took place on 21st February 1992 at about 7.40 p.m. at the Toh Lee Restaurant in the Nikko Hotel. Again, all four persons were present: PW1, PW2, Sheung Lung and the applicant. They sat round a table and had dinner together. PW1 complained of the poor quality of the sample and told Sheung Lung that it was acceptable for local sale but not for the United States. Sheung Lung then said that he would supply two further samples: the one marked with "2" would have a better purity level compared with the sample previously supplied; the one marked "3" would have a purity level ranging from 190 to 200 degrees. The former would cost $110,000 per unit, the latter would cost $119,000 per unit. If the samples were alright five units could be supplied. The proposal was to deliver the five units on 22nd February, but PW1 said that was too short a time as he needed time to test the samples. It was suggested that delivery should be made on 24th or 25th February. It was arranged that the applicant would show PW2 the samples. If the examination was alright PW1 would be informed and payment would then be made at a different location.

10. Later that evening, after dinner, at about 9.20 p.m., Sheung Lung told the applicant to bring PW2 outside to fetch the sample. The applicant then took PW2 to a lane near the Nikko Hotel and, at a corner of the lane, from the ground, he picked up a packet and gave it to PW2. They then parted. Inside the packet were two bags, one marked "2", the other marked "3", containing samples of the heroin.

11. The next day, 22nd February, PW1 phoned Sheung Lung and complained about the poor quality of the samples supplied: in particular, in relation to the bag marked "3" which was supposed to have a purity level ranging from 190 to 200 degrees; in fact he said that it was lower in purity than the one marked "2". This conversation was tape-recorded and a transcript of the conversation was put before the jury. We will revert to this matter at a later stage as it constitutes the main ground of appeal argued by Mr. Marash for the applicant.

12. PW1 proposed that the heroin in the bag marked "2" should cost $110,000 per unit and said that he would take five units. Sheung Lung agreed and said he would supply the heroin on the following Monday, 24th February, and would arrange the time and location for the transaction later.

13. Later, Sheung Lung contacted PW1 by phone and said that the heroin corresponding to the sample marked "2" was sold-out but would be able to get it in the next two to three days.

14. Following this telephone conversation, another sample was supplied by Sheung Lung. This took place just after midnight on 24th February at the Golden Horse Restaurant at Argyle Street. Sheung Lung handed the packet to PW2 and said that the purity of this sample would be higher than that of the number "2" previously given by the applicant to PW2. PW2 was asked to let PW1 know that the price would be a bit higher.

15. The fifth meeting between all the parties took place on 25th February at the Tsui Hang Village Restaurant, Kimberly Road. PW1 and PW2 arrived first, followed by Sheung Lung who came alone. Then the applicant arrived and there was a discussion concerning delivery and the method of payment. It was eventually agreed that PW2 would carry with him half the money for payment when he went to inspect the heroin with the applicant; the other half would be kept by PW1 in a separate location, to be paid to Sheung Lung only after PW2 had checked the heroin. Sheung Lung agreed to the proposal but said that he needed confirmation from his boss and asked PW1 to contact him later.

16. Later that day Sheung Lung paged PW1 and arranged to meet at the Hotel Nikko, insisting that PW1 did not bring his assistant along.

17. PW1 met Sheung Lung and the applicant at the lobby lounge of the Nikko Hotel. Sheung Lung told PW1 that he did not like the way his assistant PW2 dressed as he looked like an illegal immigrant: that increased the chance of his being stopped and searched by patrolling police. PW1 assured him that PW2 would be better dressed on the day of the transaction. There was a further discussion concerning the method of payment but no finality was reached as Sheung Lung said he needed to contact his boss.

18. On the next morning, 26th February, PW1 tried to contact Sheung Lung on his portable phone but failed; eventually, he ended up phoning the applicant in the afternoon. He told the applicant that he was unable to get hold of Sheung Lung and the applicant said he could contact Sheung Lung and arrange a meeting later-on that day. This was to be at the Hotel Nikko at 5.30 p.m.

19. PW1 and PW2 waited at the Hotel Nikko lobby lounge. Sheung Lung arrived and said that his boss had agreed to accept PW1's method of payment, but he must check the cash first before allowing the applicant to escort PW2 to inspect the heroin. Sheung Lung also said that the applicant would join them soon at the Hotel Nikko bringing along two more samples of heroin for the remaining five units. These, he said, came from a different source of supply. The applicant arrived a little later and said that the samples were not ready. Sheung Lung then, with the use of his portable phone, made a phone call, after which he told PW1 to wait. There were then further discussions about the transaction and the applicant said words to the effect that they were not to worry: he would look after PW2.

20. At about 7 p.m. Sheung Lung again made a phone call after which he said the samples would not be ready until later that evening or the following morning. At this point, PW1 decided to have Sheung Lung and the applicant arrested.

The Taped Conversations

21. Between 20th February and 25th February the phone conversations between PW1 and Sheung Lung were tape-recorded by the police and those were subsequently transcribed. The transcript was put in as an exhibit at the trial. In essence, these taped conversations formed the back-drop to the various meetings between the parties and were introduced merely by way of background evidence, to give flavour to the conversations between the parties at those meetings. Defence counsel told the trial judge that no issue arose as to the admissibility of the tapes or of the transcript. As regards the transcript the judge told the jury (at p.7):

"Looking at those transcripts, there is little in the transcripts that implicates the accused. You may take the view that this case really turns on the meetings and the role of the accused at those meetings, and it is the evidence of those meetings which I now turn to."

22. This was repeated a little later by the judge who expressed the view that apart from giving a "chronology of the events" there was nothing of evidential value in the contents of the taped conversations.

Defence Case

23. The defendant's case, in essence, was this: he was an insurance salesman and went along to the meeting at the Sky Lounge on 20th February in the hope of getting more customers for his business. He never denied that he attended the subsequent meeting said he had never got the chance of discussing insurance business. Asto the business under discussion by the others, he thought that it was in relation to electronic spare parts:"parllel goods" (in effect, goods to be smuggled into Chaina). As regards the delivery of the sample on 21 st February by him to PW2, after the dinner at the Toh Lee Restaurant, his case was that, in effect, he was duped by Sheung Lung; he thought he was merely handing over to PW2 a film sample of electronic spare parts. He accepted that during the various discussions at which he was present expressions such as "units" and "190 degrees to 200 degrees" were mentioned. But he did not know what they were talking about.

Grounds of Appeal

24. The grounds of appeal put forward by Mr. Marash focused upon the telephone conversations between PW1 and Sheung Lung conducted in the absence of the applicant. Much time was taken in argument before us on the "co-conspirators' rule": that is to say, the rule of evidence which makes acts done and declarations made by one conspirator in furtherance of a conspiracy admissible against another conspirator even in the absence of the other conspirator. This approach is understandable because the judge, in summing up to the jury, dealt extensively with the co-conspirators' rule. However, this is of relevance only where a question of the correctness in allowing extra-judicial statements to go before the jury arose. It became obvious in the course of argument that counsel's real complaint was not concerning the admissibility of the taped conversations as such, and the argument changed focus.

25. Plainly, on the Crown case, Sheung Lung was in conspiracy with the applicant was from 20th February when the applicant was brought in as his assistant. Evidence of acts and statements by Sheung Lung in advancing the scheme to traffick in heroin was clearly admissible at the applicant's trial. No one ever suggested otherwise. At the trial, it was never the applicant's case that Sheung Lung was not involved in some scheme to traffick in heroin: the only issue for the jury was whether the applicant was knowingly part of that scheme. In these circumstances, counsel argued, to have discussed the co-conspirators rule with the jury had the tendency of attributing to the taped conversations a higher evidential status than they deserved; there was no reason why the judge should have discussed with the jury that rule of evidence at all.

26. In our judgment, there is force in this submission. It was the judge's responsibility to apply the rules of evidence and, having applied them, to decide what evidence should or should not go before the jury. There was no reason why the judge needed to discuss with the jury the basis upon which he allowed the evidence to go before them. Did this amount to a material irregularity at the trial?

It is worth emphasizing that the judge expressly said to the jury, twice, that there was little in the transcripts which was of evidential value, as far as the applicant was concerned. Whilst there was an irregularity in the course of the trial when the judge discussed with the jury the "co- conspirators rule" it was not, in our judgment, a material irregularity. This ground of appeal therefore fails.

27. The next ground of appeal is more substantial. It is this. After the applicant had, on 21st February, delivered the two samples marked "2" and "3" to PW2 at the lane near the Nikko Hotel, PW1 had a phone conversation with Sheung Lung the next day concerning those samples. This was, of course, taped and the transcript was before the jury.

28. After telling sheung Lung that the "stuff" was not alright and that the No. "3" was even worse, PW1 asked Sheung Lung whether Ah Dee (the applicant) had mixed them up. He then went on:

"I even went to ask him (the applicant). I said. 'what's going on with you? Which one is better?' He told me while looking at the bag: that one with the word '2' is better ............On the other hand no good. I said: No. It is just the opposite. Well, he also said that even that with the word '2' was not that much good."

29. As can be seen, this relates to a purported conversation between PW1 and the applicant, in the course of which the applicant was discussing with PW1 the quality of the samples whilst "looking at the bag": that is to say, the contents of the bag which the applicant said, in his testimony in court, he thought contained films of electronic parts.

30. In fact, no such event ever took place, and PW1 of course never testified to that effect. It was simply a case of PW1 trying, in Mr. Bruce's words, to "stir things up".

31. Obviously, if such an event had in fact taken place and the applicant had said the things attributed to him by PW1 in the course of that phone conversation with Sheung Lung, it would have made his story in court look even more improbable.

32. It would appear that everyone at the trial - the judge, the prosecutor and defence counsel - totally overlooked the significance of this passage in the taped conversations. Understandably so. It simply got submerged in the mass of verbiage and irrelevant utterances tape-recorded in the course of many conversations between PW1 and Sheung Lung. It is highly unlikely that the jury was in any way misled in their evaluation of the evidence by this passage in the transcript.

33. However, what occurred was a material irregularity at the trial. The passage should have been edited out of the tape and excluded from the transcript before these were placed before the jury or PW1 should have been asked to explain it.

The Proviso

In our judgment the case presented by the prosecution against the applicant was overwhelming. No actual miscarriage of justice has in the circumstances occurred as a result of the irregularity. We would allow the application for leave to appeal but, treating the hearing as the hearing of the appeal and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, dismiss the appeal.