HKSAR v. YEUNG KIN WAI

CACC 285/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 285 OF 2000

(ON APPEAL FROM HCCC NO. 407 OF 1999)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1 This applicant, who seeks leave to appeal against conviction, faced three counts upon an indictment. The first charged that between 10 August 1997 and 19 August 1997 he conspired with a man named Cheng Fuk-wah to traffick in dangerous drugs. The second count alleged an offence of dealing with property known by him to be the proceeds of drug trafficking, an offence contrary to section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405; and the allegation was that between 11 and 15 August 1997 he dealt with a sum of $222,000 cash, which he knew, or had reasonable grounds to believe, represented the proceeds of drug trafficking. The third count charged another section 25 offence, this time asserting an offence on or about 19 August 1997, and the sum in which the applicant which is said to have dealt, knowing it to be the proceeds of drug trafficking, was $182,000 in the form of a chose in action, namely, an amount that had been deposited into the applicant's bank account.

2 The trial took place before Gall J and a jury in July 2000, and the applicant was convicted by a majority of six to one of the offences charged in Counts 1 and 3 but, by a unanimous verdict, was acquitted on the second count. He was sentenced to a term of 17 years' imprisonment in respect of the first count; seven years in respect of the third; and the terms were ordered to run concurrently, making a total of 17 years. He does not seek leave to appeal against sentence.

3 On 9 May 2002 we dismissed an application to adduce fresh evidence for the purpose of the leave application, as well as the leave application itself. We said we would provide reasons, which we now do.

The evidence

4 The prosecution case depended upon the evidence of the alleged co-conspirator, Cheng Fuk-wah. At the time he gave evidence in this trial, Cheng was serving a term of 15 years' imprisonment for drug trafficking. His evidence was that before August 1997 he had started dealing in drugs with a man called Ah Wai. Their source of supply was a person in Shenzhen known to them as 'Vietnam Boy'. However, that source of supply became expensive, so they looked for an alternative supplier and, on 10 August 1997, he was introduced to a man called Mei Chai in a restaurant. A deal was there struck by which Mei Chai, whom Cheng says is this applicant, was to supply drugs. It is this agreement which is the subject of Count 1. Then there came two payments for drugs supplied pursuant to the agreement. The first payment was $222,000 paid in cash in a motor vehicle on 11 August 1997; and the next payment went into a Hang Seng Bank account on 19 August in the sum of $182,000. There is no question but that this was an account in the name of the applicant, and that a sum of $182,000 was paid into that account on 19 August 1997. During the trial, a surveillance video film of Cheng's and Ah Wai's presence on 19 August at the Bank was produced.

5 In September and October 1997, Cheng provided statements to the police, and on 12 November 1997 he was shown approximately twenty photographs, and from these he picked out the applicant as the man Mei Chai. The applicant was arrested on 13 September 1999, and Cheng picked him out at an identification parade on 23 September 1999.

6 The applicant testified at his trial. He was, he said, not the person known as Mei Chai, and had never entered upon a drugs conspiracy with Cheng or with Ah Wai. He denied receipt of the sum of $222,000, the subject of Count 2, and, as for the receipt of $182,000 into his bank account, this represented a sum received from a chit fund. The money was paid into his account by the head of the chit fund, a Mr Wu. After his arrest, the applicant was shown a film from a CCTV recording made at the Bank and he recognized Mr Wu, who paid in the sum of $182,000. It transpires that this was Ah Wai, the alleged co-conspirator mentioned by Cheng. The applicant recalled that he had seen Cheng in the company of Ah Wai at the restaurant, in August 1997 at a chit fund meeting. The restaurant was owned by the applicant's uncle. The defence suggestion was that Cheng was fabricating a story against the applicant in order to earn a reduction in the sentence which he was currently serving.

The application to adduce fresh evidence

7 There was an application in this case for this Court to receive fresh evidence pursuant to the provisions of section 83V of the Criminal Procedure Ordinance, Cap 221. The proposed evidence is that of a man called Chan Siu-kin. To understand his evidence in proper context, it is necessary to provide a chronology of key events, an aid which it would have been helpful to have received from counsel.

(1) History

8 Pursuant to a police operation into cross-border drug trafficking, Cheng was arrested on 19 August 1997, and drugs were found in his premises that day. He had been observed placing funds in an account at the Hang Seng Bank, and this was later ascertained by the investigating authorities to be the applicant's account. On 5 September, and then again in October, he made statements to the authorities in which he implicated the applicant and one other, Poon, as his suppliers. On 12 November 1997, the authorities showed Cheng an album of photographs from which Cheng picked out the photograph of the applicant as one of his suppliers.

9 In April 1998, Cheng pleaded guilty to trafficking in the drugs found at his premises, the drugs for which, says Cheng, the payment into the Hang Seng Bank was made. He was then sentenced to 15 years' imprisonment. In March 1999, he was transferred to a protective detention unit at Siu Lam. It is common ground that one of the prisoners there at that time was Chan Siu-kin. Chan, who has a criminal record going back to 1983, was then serving a sentence of 15 years' imprisonment for manufacturing dangerous drugs, a sentence which had been imposed in 1996. In May 1999, Cheng gave evidence at the trial of Poon, and Cheng then received a remission of sentence to the extent that his term was reduced to one of seven years.

10 In September 1999, the applicant was arrested.

(2) Chan's evidence

11 Chan says, in an affirmation filed for the purposes of this application, that in September 1999 he was having a chat with Cheng at Siu Lam in a secure unit, a unit for a limited number of witness protection prisoners, and that Cheng said to him that the Customs authorities required him to identify "a new target named Yeung Kin-wai with the nickname Mei Chai but his [Cheng's] problem was that he did not know Yeung at all" but, since he wanted a reduction of sentence, he would implicate Yeung. The Customs authorities had shown Yeung's photograph to Cheng to enable him to identify Yeung, and had supplied him with a bank account number, but the transactions in the account were in fact not drug related.

12 Chan's evidence in this Court was considerably more detailed than his affirmation, and he told us that Cheng was treating as a matter of course the idea of framing an innocent man. Indeed, Cheng had told him that he was an ex-Customs and Excise staff member, and that some of the officers involved were his ex-colleagues. Cheng was worried, however, because there were parts of the story which were his, and parts made up or provided by Customs and Excise, and he did not know how to marry the two. He needed Chan's advice. Chan told us that he provided quite a lot of advice, a suggestion which sits in contrast to his affirmation, which asserted that he gave none. According to this witness, he even pointed out, when he was told the story, that Cheng should bear in mind that, as to the events in the bank where the payment in was made, there must have been a CCTV recording; a fine detail which, coincidentally or not - and we do not think it coincidental - is the subject of an issue as to reliability in this appeal. There was also, according to this evidence, discussion between the two of them about a telephone call, as to who had made a telephone call in the bank to ascertain the name of the account holder; another detail that was the subject of much cross-examination at trial, and said now to be a pointer to Cheng's unreliability.

13 At the end of 1999, Chan was transferred back to Shek Pik Prison, and sometime thereafter he had treatment in a hospital and had to stay at Stanley Prison where, he says, he met the applicant. He decided to disclose what he knew of Cheng's act in framing the applicant. So, on 5 March 2001, 18 months or so after the plan was revealed by Cheng, Chan wrote to the Director of Legal Aid. This was after the applicant had been convicted, and had lodged his notice of appeal. We have a copy of the letter, and its effect is much the same as the affirmation, emphasizing that Cheng said that he did not know Yeung Kin-wai at all.

(3) The law

14 Section 83V of the Criminal Procedure Ordinance, in so far as is relevant to this particular application for leave, provides as follows:

"(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

...."

15 Under both subsections, the evidence which it is sought to adduce must first be demonstrated to be admissible (see R v Ch'ng Poh [1996] 1 HKCLR 18, 27); and in the application of the section to notices of motion for the admission of new evidence, it is as well to recall the note of caution sounded by Edmund Davies LJ in R v Stafford and Luvaglio [1968] 53 Cr App R 1 at p 3, that "... public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by this court when verdicts are being reviewed. There must be some curbs, the section specifies them ..."; and this Court must consider applications with proper regard to those limitations and the policy behind them. Where subsection (2) refers to evidence likely to be credible, that is to be interpreted as meaning "evidence well capable of belief" (see Stafford and Luvaglio, above, at page 3). It will sometimes be quite unnecessary to hear evidence in order to determine whether the evidence is likely to be credible (see as an example, Ch'ng Poh above); but it is acceptable, and may be necessary, to hear evidence in order to do so. See, for example, R v Beresford [1972] 56 Cr App R 143 at 148 where:

"... it was thought that justice would be better served if an opportunity was given for [the witness] to give his evidence in the box so as to see whether there was any real substance in what he said, upon the Court applying the proper tests as to whether his evidence was likely to be credible."

See also the cases referred to by Bruce and McCoy "Criminal Evidence in Hong Kong" Part XIV para 353. To this end, we heard the oral testimony of Chan and that of Cheng, and also from the Inspector who conducted the investigation which led to Cheng's arrest; as well as from a prisoner named Leung Sze-wah.

(4) Other evidence

16 Cheng denied ever having discussed with Chan the case of this applicant, and in particular denied that he had confessed to being party to a plan to frame the applicant. He added that he had never been a member of the Customs and Excise service.

17 The Inspector told us that there was no question of telling Cheng what to say against the applicant; and he informed us that Cheng had never been a member of the Customs and Excise service. Leung Sze-wah said that he was approached when he was in Siu Lam, in April 2001, by a man who wanted him to act as a witness to discredit the evidence of one Cheng Fuk-wah, in a case in which a man had been sentenced to prison for 17 years for a drug trafficking offence; to discredit it by suggesting that Cheng had confessed to him that he was fabricating a story in order to convict the man. This witness said that on the day upon which the plan was put to him he wrote to the ICAC to draw the matter to their attention.

(5) Conclusion

18 We have no doubt but that Chan's evidence is not capable of belief. His evidence, in material parts, was self-evidently contrived to fit the issues which the defence said at trial, and maintained in this application, raised doubts about the reliability of Cheng's evidence. There are also a number of features of his evidence which do not sit with his story:

(1) We do not accept that Cheng would confide in another prisoner that he intended to frame an innocent man, especially a prisoner in a unit full of people who were there because of their history of cooperation with the authorities to attain a reduction of sentence.

(2) We fail to see what advice it was that Cheng needed in the circumstances described by Chan. We note that Cheng had, very long before the suggested conversation, committed himself to implicating the applicant. He had done so as early as 5 September 1997, within a very short time after his arrest. Well before the suggested conversation with Chan, Cheng had also given evidence for the prosecution against his other suggested supplier. It is clear from the evidence which emerged in cross-examination of Cheng, at the trial with which we are concerned, that he had given many statements to Customs Officers in 1997, committing himself to details of his dealings with the applicant and others; one was so long that it was taken over a period of three days. These were non-prejudicial statements, in other words, statements that would not be used against the maker at his trial; and the reason for cooperating to this extent at that stage can only have been that the witness had been caught red handed, knew the penalty he faced, and hoped to do himself some good by implicating others. Indeed, it was put to him in terms, at the trial, by counsel acting for this applicant, that the only reason that he was making statements as early as 5 September 1997 was because he wanted to become a prosecution witness. The misgivings, and the suggested angst in September 1999 about details, makes, against this history, little sense.

(3) We note that, though the plot was revealed, according to Chan, by Cheng in September 1999, and that Chan says that he was much disturbed by the injustice of the scheme which Cheng had unfolded, it was not until March 2001 that Chan raised the matter by drawing it to the attention of anyone who might be able to examine the allegation. On Chan's evidence, he had it in mind that he would reveal the matter to the prison authorities. But he did not do that. He says he asked to see someone but if in fact he went only that far, he did not even do it, on his own account until the end of 2000. No remotely satisfactory explanation for this delay has been put forward. Chan was in the Siu Lam protection unit because of cooperation with a certain authority, and officers of that authority were visiting him. On his own admission, he mentioned nothing to any of them. He wrote nothing to the Legal Aid Department, or to the prosecuting authorities, or to the prison authorities.

(4) Chan asserts that Cheng said that he did not know Yeung at all. On any view, this is not the case, for we know that Cheng had met the applicant, and had paid money into his account.

(5) The story we have been given is one in which Cheng allegedly told Chan, in the course of asking his advice, the full name, as well as the alias, of the applicant; the name of the person he was supposed to frame. In the scenario with which we have been presented, it is most unlikely that Cheng would disclose in the course of such a suggested conversation the full name and alias of the man he was about to frame, a name and alias that Chan, if the story is true, has somehow accurately remembered for eighteen months before he committed it to paper.

(6) We note as well that we are not dealing with a witness of good character, which is not to say that he cannot be telling the truth; but he does not come to this Court as one whose standing or credit-worthiness starts from a high point. He has convictions for assault, blackmail, and for trafficking and manufacturing dangerous drugs.

19 We are satisfied that the evidence of Chan is not worthy of any belief, and we refuse to receive the evidence under section 83V(2) of the Criminal Procedure Ordinance, and we see no basis for its admission under section 83V(1). The application under section 83V is therefore refused.

The Substantive Application

20 We turn to the substantive grounds of this application. Mr Wong, who appears on this application, did not appear below, and did not draw the grounds of appeal or the skeleton arguments with which we have been presented. Nonetheless, he expressly adopts the grounds and the written arguments.

21 The first ground states that the convictions on Counts 1 and 3 were unsafe and unsatisfactory since:

(a) the jury disbelieved the evidence of Cheng in relation to Count 2 and that evidence was closely related to Counts 1 and 3.

(b) Cheng's evidence was flawed in view of many contradictions and inconsistencies; and

(c) the new evidence of Chan shows Cheng to have been lying on matters wholly fundamental to the prosecution case.

22 Given our decision in relation to the section 83V application, the third aspect requires no further consideration.

(1) Inconsistent Verdicts

23 As for the suggested inconsistency in verdicts, the burden is on the applicant to show that the verdicts were inconsistent, and were such as to call for the interference of this Court. The applicant comes nowhere near meeting that burden. The basis of the different verdicts is sufficiently apparent to us from a reading of the summing up, of the evidence of the main prosecution witness, and of the facts surrounding the third count. The facts surrounding the third count were very powerful in support of the prosecution case. There was produced, by the defence, a video showing the witness Cheng making the payment in of the sum of $182,000, and it was not disputed but that he was there with Ah Wai. The account into which that sum was paid, by a man at whose premises were found large quantities of drugs that very day, was, it is also common ground, this applicant's account. It was also shown that, at the same time, Cheng paid money into another account, this one in the name of Yeung Mei-yan; and at Cheng's premises, another fact drawn out in cross-examination of Cheng, were found deposit slips showing payments into an account in that name; payments, the witness said, for the supplier known as a Vietnam Boy.

24 As against that, Cheng's evidence of the payment of $222,000 was not supported by other evidence, and a reading of the oral testimony about that payment shows some confusion on Cheng's part as to the events but, more particularly, it is clear that at the material times payments were being made by Ah Wai and by Cheng to a number of persons for drugs. The judge specifically pointed out to the jury, having warned them of the dangers of relying on Cheng's evidence, that his evidence was not wholly unsupported since there was evidence about the payment in of the $182,000 to the applicant's account; in other words, that the one payment for which there was support was the Count 3 payment. In these circumstances, the point about inconsistency of verdicts is not made out.

(2) Contradictions

25 The next point takes us, in minute detail, we have to say, to suggested contradictions and inconsistencies. It is said in the skeleton submission that at trial it "was demonstrated that Cheng's evidence was not believable." (Our emphasis). Put in those terms, that is a bold assertion to make. It is also patently not supportable. We will not rehearse the many points which we have had to examine, an exercise which has taken considerable time. Had there been anything in the points taken, had they even been arguable, we would of course not make a complaint about that task. But there is nothing in the points at all. They were all canvassed at trial, dealt with sensibly by the judge, and none causes us any concern.

26 Wrapped within the folds of the skeleton submission, is a contention that "in respect of the first count ... the evidence of Cheng was not supported by any other evidence at the trial." That is an astonishing proposition, given the uncontested evidence of the payment of a substantial sum into the account of the applicant on the day that the payer was arrested for trafficking in large quantities of drugs.

(3) Identification

27 Ground 2 asserts that the judge misdirected the jury when he told them that the defence challenge to Cheng's evidence of identification was contradictory to other evidence in the case.

28 Ground 3 which is allied, we think, reads as follows:

"The learned judge failed to direct the jury sufficiently or at all that the real defence challenge in the issue of identification was that PW1 falsely accused the Appellant as 'Mei Tsai' (an alleged conspirator of PW1) after PW1 had an opportunity to meet the Appellant on 15.8.97.

...."

29 This is what the judge said:

"Now, what about the identification of the accused as Mei Chai? It was done twice, once by photograph and once by an identification parade. That really is not the best way to do things because when you are shown a photograph it may stay in your mind when you later go before an identification parade and there could be a danger that when you make the identification on the identification parade you are not identifying the original person but the photograph which you think is the original person.

So it makes the identification parade a little less reliable and you must bear that in mind. But you also must look at it in this way. It was the accused's bank account and we are quite sure of that. The accused accepts that and for, on the one hand to say, well, the identificaton is not a very good one and it might not - he might have identified the wrong person but on the other hand it was the accused whose bank account the money was put into is a bit contradictory." (Tr. pp. 18-19)

30 It seems clear enough to us what the judge was saying, and that there is nothing amiss with his comment. The suggestion seems to have been made that the method by which Cheng was asked to identify the applicant, namely, by the photographs, was not a satisfactory one. That may or may not, in some cases, be so, but in this case it was said by the applicant himself that the money was paid in by a man, Cheng, whom he had met, but that the payment was for an innocent purpose. Identification was hardly an issue in this case, a point which was specifically canvassed with counsel before the judge summed up. Counsel and the judge discussed the question whether there was any question of a Turnbull direction in this case, and the judge said that to give such a direction would be rather contrary to the defence argument that he, the applicant, was known to Cheng, it being accepted that Cheng put money into the applicant's account, even though for a different and innocent purpose. Counsel for the applicant then made it clear, in terms, that he did not require any such direction. In any event, as another exchange between counsel and the judge implies, it is probable that the judge did not wish to start suggesting to the jury that the defence case might be that Cheng had somehow confused the trafficker with a chit fund contributor, the applicant, lest that undermine the applicant's real case, that Cheng paid money in for an innocent purpose, but was using that event to support a deliberately false story in order to achieve a reduction of sentence.

(4) Corroboration

31 Complaint is made, in two grounds (4 and 9) that the judge failed to tell the jury that the evidence of Cheng was not corroborated, and that the judge was unfair in saying that the evidence of Cheng was supported. When the judge said that there was support for the evidence of Cheng, he told them what that support was, namely, the fact that monies had been paid into the applicant's account, as Cheng said it had. But the judge made that comment in the context of saying that the evidence of Cheng was not wholly unsupported; and in the context of a summing up in which, time and again, the judge warned the jury about the dangers of relying on Cheng's evidence and pointed out the motive he might have for not telling the truth; and he told the jury at the very beginning of the summing up that there was, in essence, one witness for the prosecution, and they either believed him or not. Put, then, in its true context, the complaint is hopeless.

(5) The other bank payments

32 There was evidence from Cheng that he had, other than on 19 August 1997, made payments into bank accounts in payment of supplies of drugs by the applicant. This allegedly happened on four or five occasions, between early July 1997 and 10 August 1997, in sums between $30,000 and $50,000 on each occasion. This was hotly disputed by the applicant. It is accepted that, during that period, there were no payments into accounts in the applicant's name in those sums. So the question was whether Cheng was lying.

33 One complaint is that: "The learned judge erred in directing the jury to ignore the evidence of bank statements when such showed that PW1 [Cheng] had lied about making payments ... ." This is yet another example of a point which, upon examination, reveals itself to be a wholly unmeritorious point. First, the judge did not tell the jury to ignore the bank statements. It was something he simply did not say. Secondly, in so far as the judge told the jury that the bank statements were not going to help them much, and, having mentioned the issue of the $30,000 and $50,000 non-entries, to concentrate on the $182,000 entry, he was saying it in a particular context which should, we think, be obvious to any reader. Indeed, he was making a discrete point wholly in the applicant's favour. He was talking about large sums of money going into and out of the accounts, such as two million, one million, $54,000, and was telling the jury not to suppose, from the fact that there were such large figures, that the applicant was a drug dealer. This is the context in which the comments now attacked were made. The ground of appeal suggests a direction which was never given, and is a ground of appeal which entirely ignores context. This should not happen.

34 There are other grounds advanced, all to do with these payments or non-payments of $30,000 to $50,000. We have studied them, but we are satisfied that none has any substance.

Result

35 The application for leave to appeal against these conviction is dismissed.

36 This is precisely the type of case for which, in our judgment, the power in section 83W(1) of the Criminal Procedure Ordinance, to order loss of time, as it is commonly called, is intended. This Court has spent much time before this hearing reading papers, skeleton submissions, grounds, statements, affirmations, and has listened to argument, only to find that there is not one point worthy of argument.

37 We order, under section 83W(1), that six months of the time which the applicant has spent in custody pending this appeal shall not be reckoned as part of the sentence imposed for the offences to which this application relates.

38 In relation to the evidence of Chan, we shall be forwarding the papers in this case to the Director of Public Prosecutions, for him to consider whether criminal charges should be laid.