THE QUEEN v. CHO CAMPO JUAN EN KUI AND OTHERS

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JUDGMENT

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Macdougall, J. gave the judgment of the Court:

1. The three applicants together with a co-accused named De Los Santos were convicted after a contested trial of conspiring on divers dates between 1st day of Fovember 1984 and the 2nd day of February 1985 with one LAW Yiu-fai and other persons unknown to traffic in dangerous drugs.

2. The case for the Crown rested principally on the testimony of two American Drug Enforcement Administration undercover agents named Prezioso and Fernandez and on tape recordings of conversations between the agents and some of the alleged conspirators in a hotel room in Hong Kong.

3. The genesis of the conspiracy was a telephone call in November 1984 in Hawaii from De Los Santos to Prezioso in which the former told Prezioso that he had many sources of supply of No. 4 heroin in Hong Kong, that the drug was available in large quantities and that it was possible that arrangements might be made with the suppliers in Hong Kong for transportation of the drugs to the United States.

4. In pursuance of these discussions Prezioso and Fernandez came to Hong Kong on 12th December and on that evening held a meeting with De Los Santos at a hotel bar at which they discussed various details of a proposed transaction and agreed that De Los Santos would introduce them to the source of supply of the heroin.

5. On 14th December they again met. On this occasion De Los Santos was accompanied by the 1st applicant Cho whom he introduced as the supplier. Cho stated that he could supply 50 kilograms of No. 4 heroin at US$22,000 per kilogram, that he had access to four vessels that transported heroin from Thailand to Hong Kong, Singapore, Manila and even to Nigeria from where it could be sent to New York. He offered the agents 4 kilograms in Manila and 22 kilograms in New York. After some discussion the agents accepted the New York offer and it was agreed that although the delivery of the drugs would take place in New York payment would be made in Hong Kong. The agents further agreed to meet Cho in New York in early January to complete the transaction on 15th January.

6. However, on 10th January De Los Santos informed Prezioso that the heroin in New York had been sold to another buyer but that 6 kilograms of the drug were available in Singapore and that Cho's boss had asked him to find out from Prezioso how much he wanted to buy and when he could take delivery. Prezioso replied that he would contact De Los Santos after he had discussed the matter with Fernandez.

7. The following day Prezioso contacted De Los Santos and complained that he had lost credibility with his own buyers because of the failure of the New York transaction. He asked him to find out where more drugs could be obtained De Los Santos replied that they were available in Singapore in lots ranging from 4 to 12 units (one unit being 700 grams) and that if Prezioso wanted to make a purchase he should send Fernandez to Singapore to pay a deposit of US$3,000 per unit and that after Fernandez had seen the drugs he would confirm their existence to Prezioso who would pay the balance of the purchase price in Hong Kong.

8. After some further negotiation Prezioso informed De Los Santos that he was reluctant to proceed with the Singapore transaction because of the death penalty for drug trafficking there. They then discussed the possibility of supplying 20 kilograms of No. 4 heroin in Thailand but eventually it was agreed that both delivery and payment would take place in Hong Kong.

9. The agents then arranged with the Hong Kong police to instal a microphone in their hotel room to record their conversation with the conspirators at a meeting to be held on the evening of 23rd January. At the meeting De Los Santos introduced the 2nd applicant Luk as his boss and informed the agents that although 150 kilograms of heroin had arrived in Hong Kong from Manila, 100 of these had been seized by customs officers and the remaining 50 were unavailable until the person who had been responsible for them and who had fled to Manila returned to Hong Kong.

10. De Los Santos then said that 20 units of heroin were available in Bangkok and that payment would be effected in Hong Kong. Cho told the agents, however, that they would have to pay US$40,000 of the total price of US$400,000 in Bangkok and the balance in Hong Kong. Following this De Los Santos told the agents that a man called David, the co conspirator named in the indictment as LAW Yiu-fai, and a Mr. Wong, the 3rd applicant, were waiting downstairs in the lobby of the hotel and would travel with Fernandez to Bangkok. Finally it was agreed that Prezioso would fly to Bangkok with the initial payment of US$40,000 and, after having examined a large sample of the drug, would hand over the initial payment of US$40,000 to David and Wong and then return to Hong Kong to await a telephone call from Fernandez to assure him that all the arrangements had been satisfactorily made. Prezioso would then pay the balance of the purchase price to either Cho or Luk in Hong Kong.

11. Having decided upon these arrangements Cho, De Los Santos, Luk and Fernandez left the room and met David and Wong in the lobby. All five men then went to a restaurant in the hotel where they held a discussion during which Cho told Fernandez that David and Wong would accompany Fernandez to Bangkok where they would deliver to him for his inspection a small sample of the heroin first and later a large sample. David announced that he would arrange for the delivery of the samples and Wong would assist him.

12. In pursuance of their plan Fernandez accompanied David end Wong to Bangkok and Cho travelled separately on the same flight. After their arrival Fernandez and Prezioso met Cho, Wong and David in a hotel lobby where they were told that the first sample of the heroin would be delivered to Fernandez in his hotel room the following morning. As arranged David and Wong came to Fernandez's room where David handed the sample to him. Fernandez noticed however that it had a yellowish colour and David agreed that it was of a lesser quality than that which had been agreed.

13. Later the same evening Cho, Wong and David returned to Fernandez's room. On this occasion David produced two samples of heroin on one of which Prezioso conducted a test. It was agreed that the large sample would arrive two or three days later.

14. On 28th January David, his brother Ricky and Wong came to Fernandez's room and said that they wanted to see the money first. Fernandez then contacted another agent who arrived with cash in $100 notes and showed it to them. Wong then agreed that the arrangement would be that on the following day Fernandez would accompany David in a taxi to the place where the heroin was being kept. In the mean-time Wong and Ricky were to remain with the other agent and the money in the hotel room until Fernandez had satisfied himself as to the heroin and had telephoned the other agent to confirm that he could release the money to Wong.

15. Later, however, David telephoned Fernandez and explained that the heroin was not of the same kind that the agents wanted and that he would try to make further arrangements.

16. On the following day David and Wong arrived at Fernandez's room where Wong announced that the heroin that was available was of a lesser quality and that if they had not considered Fernandez to be a friend they would have delivered that heroin to him Wong then said that he was leaving for Hong Kong that afternoon and that he would arrange for Cho to call David.

17. Eventually, as it became increasingly apparent that it was unlikely that the transaction would be concluded, the agents arranged with the Thai police to arrest David while he was present in Fernandez's hotel room with another sample discussing the availability of heroin. Very soon afterwards De Los Santos and Cho were arrested by Hong Kong police in Prezioso's hotel room. Wong was arrested some time later. Both Luk and Wong made damaging admissions in cautioned statements to the police.

18. In his statement, Luk admitted that Cho had told him that De Los Santos wanted to buy heroin for some friends and had asked Luk to :see if he could obtain, some for him. He admitted that Cho later introduced him to De Los Santos and that during the course of a discussion had asked Cho to make enquiries as to where there might be a heroin supply. Luk agreed to do so and told Cho that he would contact him later. A few days later he met Wong who agreed to see if he could assist. A week later Wong telephoned him and said that he had met David who perhaps could help them. As a result Cho, Wong, David an and De Los Santos met in a coffee shop the following day where David said that he could arrange to have heroin delivered in Singapore. Because of disagreement on the amount of the down payment for the drug the meeting broke up. Three days later Cho asked Luk to meet him again. On this occasion De Los Santos and Cho were present and Cho told Luk that the buyer had now agreed to the terms of down payment and asked Luk to contact David and see if he would agree. Luk related this to Wong who later reported to Luk that David had agreed and that there should be a further discussion.

19. Present at this discussion which took place on 23rd or 24th January were Cho, De Los Santos, Wong, David, Luk and a man who Luk understood to be the buyers representative. The representative complained that a Singapore delivery was too dangerous and suggested that the heroin be delivered in Thailand.

20. Eventually it was agreed that David and the representative would go to Thailand where David would show him a sample of the heroin. If the sample was satisfactory David would telephone the buyer in Hong Kong whereupon payment would be made there to De Los Santos, who would in turn hand the money to Wong in the presence of Luk and Cho. Wong would then take the money to Thailand. Finally, Luk agreed in his statement that he had been arrested in the buyer's hotel room in Hong Kong. "The buyer" in fact was Prezioso.

21. In his statement to the police Wong admitted that Luk had introduced him to Cho and De Los Santos and that Cho had told him that he had an American friend who was coming to Hong Kong to purchase heroin and had asked him whether he could obtain the drug for him here. Wong replied that he was unable to obtain heroin in Hong Kong but would telephone his friend David in Thailand to see if he could help. That night Wong telephoned David, told him what he wanted and asked him to come to Hong Kong to discuss the matter. David replied that he would be able to assist and would travel to Hong Kong within the following few days.

22. Two days later David met Wong in Hong Kong and informed him that he could only obtain a small sample for the buyer to examine. Wong then suggested to David that they would entice the buyer to Thailand and cheat him.

23. Later, along and David had a meeting with Cho and De Los Santos at which Cho asked David if he could arrange to obtain heroin in Hong Kong and David replied that he was unable to do so but suggested that the buyer go to Thailand to make arrangements

24. Later, around 20th January, David and Wong met Luk, Cho, De Los Santos and an American buyer in a coffee shop in Hong Kong where it was arranged that Cho and the American would go to Thailand with a view to finalising the matter. Wong and David left for Bangkok on the same flight as that taken by Cho and the buyer. Wong then went on to describe how he and David had hoped to cheat the buyer and gave an account of what had happened in Thailand that did not depart materially from that given by Fernandez in his testimony.

25. None of the applicants gave evidence, and the exculpatory material contained in Wong's statement to the police was not evidence as to the truth of his alleged intention not to supply heroin but to cheat the buyer (R. v. Leung Kam-kwok⁽¹⁾). There were however clear admissions in his statement that he had agreed with Cho to contact David in Thailand with the object of obtaining drugs and that he had done so before ultimately forming the intention to cheat the buyer.

26. The case for the applicants was that, although the evidence given by Prezioso and Fernandez was essentially true, it was reasonably possible on the evidence that they had in fact intended to cheat the Americans. Not surprisingly, the jury, as they were entitled to do, accepted the uncontradicted testimony of Prezioso and Fernandez and found all three applicants guilty of the alleged conspiracy.

27. Mr. Keane who now represents the applicants - they were separately represented by other counsel at the trial - advanced three grounds of appeal.

28. The first ground was that the trial judge failed to direct the jury that the applicants were not liable to conviction before a Hong Kong court if they found that the conspiracy had as its object the trafficking of dangerous drugs outside Hong Kong In support of this ground he placed reliance on Board of Trade v. Owen⁽²⁾ and R. v. Liu Po-shing⁽³⁾.

29. The substantive offence of trafficking in dangerous drugs is created by section 4 of the Dangerous Drugs Ordinance, the relevant part of which reads as follows:

"(1)     Save under and in accordance with this Ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong -

 

(2)      Subsection (1) shall apply whether or not the dangerous drug is in Hong Kong or is to be imported into Hong Kong or is ascertained, appropriated or in existence.

 

(4)     This section does not apply to -

 

30. Trafficking is defined in section 2 of the Ordinance as follows:

"'trafficking', in relation to a dangerous drug, includes importing into Hong Kong, exporting , from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and "traffic in a dangerous drug" shall be construed accordingly."

31. Because of subsection (2) and the definition of trafficking, it is immediately apparent that in the context of whether an offence is justifiable by the courts of Hong Kong, a conspiracy to traffic in a dangerous drug is very much different from a conspiracy to commit other offences.

32. Mr. Keane frankly conceded that as a consequence of sub- section (2), a complete agreement entered into in Hong Kong to deliver heroin out of Hong Kong but with payment to be made in Hong Kong is justiciable by the courts of Hong Kong. He contended, however, that there would not be an agreement if although the parties might have agreed in Hong Kong on the quantity, quality and price of the drugs and the manner in which payment is to be made, there still remained some details to be considered overseas before delivery could be effected and payment made.

33. We do not think that there is any merit in this submission. An agreement is no less an agreement simply because it is hedged with conditions such as the buyer insisting that he will not pay until he has satisfied himself of the existence of the drug or that the other party will be able to honour its undertaking to secure the drug for him or that it is of the required quality or that the mechanics for the delivery are such that he feels reasonably secure that there will not be, to use the colloquial expansion, "a rip off".

34. The agreement that the jury found on the unchallenged evidence of Prezioso and Fernandez to be one which the applicants intended to carry out, was undoubtedly an agreement to traffic that fell within the meaning of at least one, if not all, of three of the possible ways of trafficking, namely, "procuring", "supplying" and "dealing in".

35. Mr. Keane submitted that the existence of paragraphs (b) and (c) in section 4(1) supported his argument that the agreement must be a complete and unconditional agreement entered into in Hong Kong before the courts here have jurisdiction.

36. We are not attracted to this argument. Paragraph (b) clearly refers to a situation where one party simply approaches another and offers to traffic in a drug. The offence is complete once the offer is made. There is no requirement that the other party accepts the offer.

37. Paragraph (c) covers a situation where no agreement, however limited, is reached, but where a person does some other act preparatory to trafficking. An example that readily springs to mind is where a person builds or has someone build for him a vessel with concealed compartments and there is evidence that he has done this with the object of trafficking in a dangerous drug.

38. Paragraphs (b) and (c) were inserted in section 4 to render criminal certain activity which falls short of actual trafficking. Their existence does not support a contention that an arrangement between parties is not an agreement if it is contingent on drugs being available or is conditional on matters such as we have already mentioned. If two men agree to commit a bank robbery on a certain day provided the weather conditions are suitable for their getaway or there are no policemen in the vicinity of the bank, that agreement is a conspiracy to rob notwithstanding that the execution of the robbery is contingent on those matters.

39. Moreover it is plain from subsection (2) that in order to make out the offence of trafficking it is not only unnecessary that the drug be in Hong Kong or is to be imported into Hong Kong but even that it be ascertained, appropriated or in existence.

40. Neither the case of Owen nor that of Liu Po-shing, relate to a conspiracy to commit an offence in respect of which there is a statutory provision similar to subsection (2). Indeed, both of those cases were concerned with a conspiracy to defraud.

41. A simple example of trafficking in a drug is where one party hands money to another in return for a large quantity of heroin. Because of subsection (2) the offence is committed even if the heroin is outside the jurisdiction and will never be imported into Hong Kong.Since, however, payment for the heroin has been made in Hong Kong the offence of trafficking has been committed. Likewise in a charge of conspiracy to traffic in a dangerous drug, the offence is made out if it is proved that the agreement made in Hong Kong was to effect payment here for heroin to be delivered overseas.

42. The second ground of appeal was that the judge failed to direct the jury that any agreement entered into by the applicants with the undercover agents would not constitute evidence of the offence charged, since, even if the applicants genuinely intended to agree, the undercover agents lacked the necessary mens rea to form a conspiraterial agreement.

43. Mr. Keane accepts that it is irrelevant that undercover agents are parties to the agreement provided there are at least two other parties to the agreement who intend to carry it out.

44. He complains, however, that the judge did not direct the jury that the early agreement between Prezioso and De Los Santos prior to Cho's participation in it could not amount in law to a conspiracy.

45. Neither Mr. Keane nor Mr. Harris for the Crown has been able to cite any English or Hong Kong authority that bears directly on this point. We considered the case of R. v. O'Brien ⁽⁴⁾ where the Lord Chief Justice said at page 227:

"Mr. Blom-Cooper has urged without authority to support him that there can be no conspiracy between an informer and another. By an informer in that context he means, of course, an informer who was pretending to take part in the proposed offence but he intended to play no part because his interest was to assist the prosecuting authority by informing. Mr. Blom-Cooper submits that there can be no conspiracy between an informer in that sense and another because he says there can be no conspiracy unless all the parties to the agreement intend to carry it out, and if one, namely, the informer, has the mental reservation that he does not intend to carry the agreement out, that, so it is said, would be sufficient to prevent the apparent contract from being a conspiracy at all. We do not accept that submission. As I have said, no authority is quoted in support of it and we do not accept the submission that the fact that one party to an apparent conspiracy has no intention of playing his part in itself prevents the other guilty minded conspirators from being guilty of the offence charged against them. But having said that we do not accept Mr. Blom-Cooper's submission, we leave open for further consideration another day, should the point arise, how far the unwillingness or disinclination of one conspirator to carry out his apparent crime can affect the culpability of the others."

46. Although it appears that the Lord Chief Justice was initially referring to a situation where there were only two parties to the agreement, one of whom was an informer, the following part of that passage is concerned with an agreement to which at least two of the parties were not informers. Bearing in mind that the conspiracy there alleged involved more than two persons who were not informers we are not disposed to place any reliance on it. Indeed Mr. Harris concedes for the purpose of this appeal that an undercover agent cannot be a conspirator.

47. We think that it is arguable that an undercover agent who enters into an agreement with the object of securing the arrest of the conspirators after the substantive offence has been committed, as was the case here, may be in a different position from that of an agent who enters into an agreement with the object of frustrating the commission of the substantive offence. In the first instance the agent intends that the substantive offence actually be committed whereas in the latter instance he has no intention of permitting its commission. That he may not be guilty of any offence in the first instance need not necessarily preclude a conviction for conspiracy of the only other party to the agreement.

48. However, in view of what we are now about to say, we do not think it necessary to resolve this matter and we leave it open for further consideration another day.

49. There was ample uncontested evidence of the participation of all three applicants and De Los Santos in an agreement with each other to traffic in heroin. The fact that there may have been an earlier agreement between De Los Santos and the agent Prezioso, which for the purpose of the present agreement we will assume could not amount to a conspiracy, does not destroy the existence of an agreement which came into being later on but which emanated from the agreement between De Los Santos and Prezioso.

50. We are satisfied that there was nothing in what the judge said to the jury in his summing up that could have distracted their attention from the issue of whether the applicants had conspired with each other and with David and other persons unknown. Moreover, the particulars of the conspiracy count did not name the agents as conspirators. It did mention that other persons unknown were also conspirators but since the identity of each of the undercover agents was known, no jury could reasonably have thought that they were the unknown persons. At no time was it even suggested that they were conspirators. We are therefore of the view that this ground of appeal cannot succeed.

51. The final ground of appeal is that the judge failed to direct the jury how to determine whether the evidence disclosed one or more conspiracies and whether the applicant Luk, in particular, had attached himself only to a sub conspiracy within the general conspiracy alleged.

52. In this connexion Mr. Keane referred us to the cases of R. v. Griffiths⁽⁵⁾, R. v. Greenfield⁽⁶⁾ and R. v. Hang Hon-yee and ors⁽⁷⁾.

53. The principles enunciated in the first two cases are well known and do not need repetition. As to the case of Hung Hon-yee we observe that there it had been made clear to the judge from the outset that the issue of whether there was one or a number of conspiracies was a critical feature of the defences advanced on behalf of the alleged conspirators. It was a case in which the alleged conspiracy existed over a fperiod of 11 years and where there had been numerous activities involving different people who had associated themselves for limited periods of time with the 1st defendant in connexion with drug transactions.

54. There the judge had failed to direct the jury as to the possibility that there might have been more than one conspiracy or that a party to a minor conspiracy might not have known of other conspirators involved in an all embracing conspiracy. It is not surprising therefore that the conspiracy convictions were quashed on appeal.

55. In the present case no suggestion was made at any time that any of the applicants might have been members of a conspiracy other than that charged nor, in our view, did such an inference fairly arise on the evidence.

56. The defence of the applicants was that, notwithstanding their acceptance of the evidence of the agents Prezioso and Fernandez, the manner in which the various activities were carried out coupled with the fact that the agreed drugs were not supplied to the agents, indicated that the applicants had never had any intention of carrying out their apparent agreement.

57. Moreover, in a very full and fair summing up, the judge repeatedly directed the jury that they could not convict any individual defendant of the conspiracy unless they were sure that he had agreed with the others to traffic in heroin and had intended to carry the conspiracy into effect.

58. In one such passage the judge said:

"Well, if the conduct of the parties is explicable only on the basis that they had agreed to work together in the manner alleged - if that is the only inference you can draw, well then, you can infer that they did so agree and that there was a conspiracy between them as alleged; and then, if so, then you can also go on and infer that they were willing parties to it.

 

But, of course, if that is not the only inference open to you and if there are other inferences, possible inferences that can be drawn, well then, of course, the prosecution would not have proved its case, either having failed to prove the conspiracy or else they would have failed to prove that the individual defendants were enraged in it."

59. Had the conspiracy count alleged that the agreement was one to traffic in a dangerous drug by supplying it in Indonesia, for example, and the evidence had disclosed that a particular defendant had only agreed with his defendants to traffic in a co dangerous drug by supplying it in Thailand, the matter would have been entirely different.

60. Here the conspiracy alleged was one to traffic in a dangerous drug simpliciter. In that context, the mere fact that various conspirators had initially agreed to supply heroin in places other than Thailand does not indicate that a person who, in response to a request from those others to locate a source of supply of the drug, suggested to and agreed with the others that they supply heroin in Thailand, is not a member of the general conspiracy but is somehow a member of a different conspiracy.

61. We likewise do not think that there is any merit in this ground of appeal. For these reasons therefore the applications for leave to appeal against conviction are dismissed.

(1)    (1985 ) 81 Cr App R 83

(2)    [1957]   AC 602

(3)    [1986]   HKLR 198

(4)    (1974) 59 Cr App R 222

(5)    (1965) 49 Cr App R 279

(6)    (1973) 57 Cr App R 849

(7)    Criminal Appeal 271 of 1985