THE QUEEN v. TSAO WING TAK

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J U D G M E N T

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Fuad, V.P. (giving judgment of the Court):

1. Three men, Hui Mong Lei (D1), Chan Hok Man (D2) and Tsao Wing Tak (D3) appeared before the High Court (de Basto J. and a jury) on an indictment which charged them with conspiracy to traffic in dangerous drugs on divers dates between 1st February 1986 and 10th April 1987 with each other and with Mah Chiu Man, Kwong Chi Man and others unknown.

2. They were each convicted on unanimous verdicts of the jury and the only application which is before re us today is one made by Tsao Wing Tak (D3) ("the Applicant") for leave to appeal against his conviction.

3. The only evidence led by the prosecution against the Applicant was his recorded answers to questions to him by a police officer after a caution, during the morning of 23rd July 1987. When in the afternoon of the same day he was formally charged and cautioned he said that the had nothing to say. Nor did he Rive evidence or call witnesses at his trial.

4. A submission of no case to answer was made to the judge in relation to the Applicant and overruled. The ruling, is not a matter raised on this application, nor does any point arise on the admissibility of the Applicant's statement of 23rd July which was the subject of a voir dire.

5. The officer who questioned the Applicant began by telling, him the nature of the enquiry that he was suspected of being connected with a case of conspiracy to traffic in dangerous drugs, between 11th and 13th July 1987 (to traffic 5 1b. of No. 4 heroin to the U.S.A.) with 6 named men and others not in-custody. Included in those 6 were the names of the men who became D1 and D2 at the trial and two other men mentioned in the indictment.

6. The record shows that the Applicant said that he had come to know D2 about 10 years ago as a work-mate but had not associated with him. He had met him again between August and, September 1986. On that occasion they had met at one of the Mass Transit Railway stations. D2 Knew that he smoked "white powder." He told him that a friend of his would be coming from the U.S.A. and asked if he had any ways of finding some white powder for him. He needed about $300,000 worth of white powder.

7. The Applicant said that he had responded by saying "You need so much I will try to ask somebody for you." He had then given his home telephone number to D2. " About two weeks later, P2 had telephoned him and said that his friend returned to Hong Kong from the U.S.A. and had asked "what the progress was about the white powder." He had replied that he was still looking, for it. In mid-September 1986, D2 had telephoned him again to say that someone else had obtained the white powder and so the did not need to look for any for him. So he had stopped looking.

8. The next contact he had with D2 was towards the end of September 1986 when he was invited by him to a meal at a restaurant. There D2 had introduced him to D1 and Mah Chiu Man (one of the men named in the indictment). There were two other men and four women to whom he had not been introduced. During the meal, no menton was made of white powder.

9. The Applicant, continued his statement by saying that he had been contacted yet again by D2, this time at the end of December 1986. He was told by D2 that Mah Chiu Man had returned from Hong Kong and told me to have a meal together". When he explained to D2 that he had an appointment with two of is friends D2 told him to bring his friends along. They went to the Hung Kee Restaurant. There he found the following already there D2 in company with Mah Chiu Man Hui Mong Lei (D1) and two women.

10. The Applicant's statement goes on to say that during the meal D2 told him "that the goods were out of stock from where they obtained the white powder or the previous time" and then asked him if he had any ways "of getting some No. 4 white powder. He had replied that it was very difficult to obtain such powder. One of the friends he had brought with, him to the meal, a man called Ah Keung "had asked them if they really meant it". They had said they did. Ah Keung then said that the would try to find some white powder White powder was not mentioned again and they went their separate ways after the meal

11. According to the Applicant's statement, one week D2 telephoned him to say he need not find white powder because Mah Chiu Man's elder brother, who had returned to the U. S. A. would find it himself, he had not contacted since. He said he, did not know the name Mah Chiu Man's elder brother and had not met him. He concluded his statement by saying that when D2 had asked him to find No. 4 white powder he (D2) had given him $1,000 as "travelling. Expenses." He had never obtained any No. 3 or No. 4 white powder for D2.

12. Mr. Waley who also represented the Applicant at his trial emphasis before us that the Applicant had not been asked about, nor had he admitted knowing of, any long term conspiracy between those named in the indictment by themselves or with himself.  Mr. Waley suggested that at what the Applincan was in effect admitting was involvement two quite separate incidents of potential trafficking in drugs separated by the passage of three to four months. Mr. Waley also pointed out that in relation to the first incident the only name known to the Applicant was that of D2 and only after incident had concluded had he met anyone else named in the indictment.

13. Mr. Waley does not suggest that there were any positive misdirections in the summing up. What he does submit is that there were omissions in the directions in view of the only evidence which was led against the Applicant, so that the jury did not receive the assistance they needed in their approach to that evidence.

14. He contended that the judge had failed to direct the jury as to the evidence from they could properly draw inferences and explain to the jury that the Applicant's statement was open to more than one construction as regards said matters which the Crown had to prove; what the Applicant said might amount no more than to an admission of involvement in isolated transactions of trafficking, for his words did not necessary amount to an admission to knowledge of and participation in the ongoing conspiracy sought to be established.

15. Further, Mr. Waley argued, the judge had failed to explain to the jury in relation to what matters they needed carefully to scrutinize the Applicant s statement.

16. In particular the proposition is urged upon us that the judge having said this about inferences:

"You must not speculate but you are entitled to draw reasonable inferences from the evidence. There is a distinct difference between an inference and speculation. Inference is drawing a proper conclusion from facts which you find established. Speculation on the other hand, is simply guessing. You are not allowed to guess."

he should somewhere have gone on explain that the Crown on inferences that were compelling or irresistible - it is suggested that the jury received no assistance as to the position where more than one reasonable inference could be drawn from the facts admitted.

17. On this point, Mr. Waley relies on R. v. Kwan Ping Bong [1979] H. K. L. R. 1, and cites the following passage from the opinion of the Privy Council, delivered by Lord Diplock at page 5:

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accuse charged and the proof must be beyond all reasonable doubt which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof, beyond reasonable doubt does not prevent a jury from inferring, from the facts that have been the sub subject of direct evidence before them, the existence of some further fact, such as the knowledge of intent of the accused, which constitutes an essential element of the offence but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

18. With respect, we say at once that in our view Mr. Waley is drawing support for this part of his argument from Lord Diplock's words without applying them to the circumstances before us. As the cases listed in pare. 28-29 of the 42nd edition of Archbold show and as stated by the authors, "proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accuser done in pursuance of an apparent criminal purpose in common between them'." This is in effect what the judge said at the bottom of page and at the top of page 11 of his summing up. But, of course just as in any other criminal case, there must be proof beyond reasonable doubt. There was a very careful general direction about the onus and standard of proof at page 6 of the learned judge's directions. Later on page 10, the judge gave the forllowing direction

"    An accused could not be found guilty in this case unless you are satisfied that he joined the single ongoing, conspiracy charged which he knew involved others, the identities of whom he might or might not know which went beyond his limited involvement and to the furtherance of which the part he played contributed. So long as two or more persons whether or not one or both of them were parties to the original agreement continue the same purpose, the conspiracy remains in existence. And the parties thereto, including fresh adherents are equally liable But the agreement as opposed to the various ways in which it is to be implemented, must not vary.

    Before convicting any of the accused of the conspiracy charged, you must be satisfied that that accused had become party to the single ongoing conspiracy charged and not to isolate and separate conspiracies during the relevant period.

    If you are not sure that the acts of trafficking in which an accused is alleged to have taken part were done in pursuance of the single ongoing conspiracy charged, then you would have to acquit that accused."

19. The judge then dealt, with the extra-judicial statement, made by D1 and then he told the jury:

"    If you are satisfied beyond a reasonable doubt that he [he was referring the D1] was involved in the conspiracy to traffic in dangerous drugs in the one single ongoing conspiracy involving dangerous drug between the relevant, dates, you might then ask yourselves whether you are also sure as regards the 2nd and 3rd accused whether well in respect of each of the 2nd and 3rd accused whether he -

(1) expressly or impliedly agreed to join with the 1st accused at least In some such aspect of trafficking and

(2)thereby to his Knowledge joined and assisted others engaged in a wider and ongoing conspiracy, and

(3) accordingly did not conclude merely a separate and isolated agreement with the 1st accused for his own Purposes."

20. These, to our mind, were impeccable directions, as Mr. Haley has fairly conceded, on the burden and standard of proof and fully met the point being emphasised by Lord Diplock in the passage from Kwan Ping Bong that has just been read. When direction of the kind we have here are so clear, we do not think it is necessary for the judge to speak in terms of irresistible or compelling inferences. Indeed, a Jury might be confused if such expressions were used in the context of directions of the kind which the judge gave. On his directions the jury could not have been left in any doubt as to the duty being imposed upon them.

21. This point was dealt with in R. v. Hung Hon Yee and Others, Criminal Appeal No. 148 of 1987 (unreported), and was emphasis again in very explicit terms in the later judgment of the Court delivered by my ford, Kempster. J. A. in R. v. Yu Wai Chun and Another, Criminal Appeal No. 179 of 1987 (unreported). Kempster, J. A. in that case referred to the House of. Lords authority of McGreevy v. Director of Public Prosecutions, [1973] 1 W. L. P. 276, and drew attention to the emphasis, placed by Lord Morris on the need for simplicity and comprehensibility in directions juries, as well as on the undesirability of tying judges down to particular formulae in order properly to give their directions.

22. We are not persuaded that there is any justificiation for the complaint that the fudge failed to stress in terms that inferences could only be drawn if they were compelling or irresistible.

23. In support of the other grounds of appeal, Mr. Waley cites Hung Hon Yee and Others and Suggests that the position of the Applicant here was very similar to that of D4 in that case, the only difference being that the accused person there had only admitted to involvement in one overt act while in our case the Applicant admitted that he was potentially involved in two acts, albeit separated by three to four months. In Hung Hong Yee, D4's conviction was quashed because the Court considered that the prosecution evidence needed a somewhat more detailed examination than was given by the judge in his summing up, and since the jury had not been given sufficient assistance in coming to their conclusions, the conviction was unsafe and unsatisfactory.

24. In the light of Mr. Waley's submissions, we have carefully considered the reasoning of the Court in Hung Hon Yee which led to the quashing of the conviction of D4 but we are satisfied that the facts in our case are significantly different and we do not think that anything that was said in Hung Hon Yee about D4 can be prayed in aid in support of the present application.

25. As has been conceded, the judge's directions were unassailable as to what he did say. We do not think that it was incumbent upon him, having given those directions, to go on and take the jury through the statement upon which the prosecution relied in the manner suggested by Mr. Waley and to tell them that the statement, if it were accepted by the jury as being true, was open to more than one construction. We do not think that the judge needed to assist the jury any more than he did.

26. We find no fault in the summing up which was clear, concise, fair and helpful, and for these reasons we dismiss the application.