THE QUEEN v. HUNG HON YEE AND OTHERS

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JUDGMENT

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Li, V.-P.:

1. On the 20th June 1985, on the verdict of a jury in the High Court the four applicants were convicted by Baber J. of conspiracy to traffic in dangerous drugs. Originally there were thirteen accused indicted for this offence. Of these thirteen one (D8) turned prosecution witness, three (D6, D7 & D12) pleaded, two (D3 & D13) were acquitted and in respect of two (D9 & D11) the jury disagreed. There was one other person (D2) who was convicted and sentenced. She has served her sentence and abandons her application to appeal against conviction.

2. The 1st applicant was the first accused (Dl) in the Court below, the 2nd applicant the fourth accused (D4), the 3rd applicant the fifth accused (D5) and the 4th applicant the tenth accused (D10). I shall refer to them as D1, D4, D5 & D10 respectively.

3. The indictment contains three counts. The 1st count alleges that D1 and D2 together with the other 11 accused, between the 1st January 1975 and the 31st December 1982, together with Yeung Kin Tong, Lau Wai Hung, Ng Tsang Yuen, Tong Cho Yan, Li Kit Nam, Wong Chi Keung, Leung Hon Chu, Hui Shu To, Chan Ka Cheung, Leung Yuk Tong, Wong Wai Lai and others conspired to traffic in dangerous drugs.

4. The 2nd count alleges that Dl and D2 together with D4, D5, D9, D10 and D13 between the 1st January 1981 and the 31st December 1982, and with Yeung Kin Tong, Lau Wai Hung, Ng Tsang Yuen, Leung Hon Chu, Chan Ka Cheung, Leung Yuk Tong and others conspired to traffic in dangerous drugs.

5. The 3rd count alleges that D1 and D2 together with D4, D5, D11 and D13 between the 1st January 1977 ant the 31st December 1980 and with Yeung Kin Tong, Ng Tsang Yuen, Tong Cho Yan, Li Kit Nam, Wong Chi Keung, Leung Han Chu and others conspired to traffic in dangerous drugs.

6. At the commencement of the proceedings prosecuting counsel made clear to the trial judge and all concerned that counts 2 and 3 were alternative to count l.  Having regard to the overlapping of the periods in which the conspiracies were alleged to have taken place and the difference in the combination of the co-conspirators in counts 2 and 3 it was abundantly clear that the case was riddled with complexities of fact. It would be vital for the judge to sum up the facts in relation to each. count and to summarise the facts as argued by counsel.

7. It was a long trial. .It started. on the 13th February 1985. Evidence was led until the 5th June 1985. Prosecuting counsel commenced his closing address to the jury, followed by defence counsel who concluded on the 12th June 1985. The summing up began on the 19th June 1985. The applicants were convicted on the 21st June 1985.

8. The main body of evidence in support of the charges came from accomplices named in each count. The first count covered a period of 8 years. Counts 2 and 3 covered shorter periods. Co-conspirators came and went, with D1 as a constant member, described by the judge as the hub in the web of the conspiracy. Right from the start counsel for D1 objected to certain evidence given by the accomplice Hui Shu To on the ground that his evidence indicated other conspiracies than the one charged.  The trial judge overruled this objection and indicated he would overrule similar objection to similar evidence by other witnesses.

The Evidence

9. The evidence against the applicants was that as from 1975 Dl started a drug manufacturing and trafficking operation in Hong Kong. His activities with his co-conspirators included importing morphine blocks from Thailand, converting them into No. 3 heroin and selling the heroin to various people, probably wholesale agents. His areas of operation, mainly in Kowloon spread over to the New Territories and Hong Kong Island.

10. Hui Shu To (whom D1 knew in 1969) joined him in 1975 when D1 hired him as a scapegoat when small quantities of drugs were found. Hui lent assistance in the manufacture of heroin by moving equipment and cleaning up in Dl's home at Broadcast Drive. During that period D4 would come to collect the finished products. Hui's association with D1 ceased in early 1976.

11. Tong Cho Yan was another one who joined Dl and D4 in the import of morphine and the manufacture and sale of heroin. However his association lasted longer up to 1980. In 1980 he served a 10 year sentence. In 1976 he assisted in the moving of equipment required for the manufacture of dangerous drugs from D1's Broadcast Drive flat. He took the lease of a room in Luisa Court, Kwun Tong, on behalf of Dl between September and December 1976 where he took part in the manufacture of heroin with D1 and D4. He also joined D1 and D4 in the same activities in D4's flat in Kwai Chung during 1976 and 1977. Such activities continued from time to time in various places such as the room in Fung Yi Street, Kwun Tong, a clothing factory in Yue Chow St., a bungalow in Hamtin Village, some places in Sing Lee Road, Mongkok, and other address in Hillwood Road. He named Li Kit Nam and D5 as two of those who took part. He knew of an address in Rhine Court, Bonham Road, which Dl used and to which he delivered dangerous drugs in 1977.  He was arrested in early 1978 for possession of dangerous drugs and was sent to Hei Ling Chau on the 10th March 1978. After his release in late 1979 or early 1980 he resumed the same activities with D1 in his (Tong's) own flat, and later in Hung Hom Wan Centre with D1 and D5 in 1980. He went on a trip with D1, D4 and D5 to Thailand in order to pay off a Thai national in the same year. He was arrested on the 8th August 1980, and later convicted and sent to prison for 10 years. There his association with D1 ended.

12. Li Kit Nam joined in Dl's activities in 1975/76. He gave evidence of his part in manufacturing heroin in the Ham Tin Village bungalow, the clothing factory in Fuk Wah Street and the Bonham Road address. His main role was. to deliver heroin to various places on Dl's instructions. He had dropped out by the end of 1977.

13. There was the accomplice Ng Tsang Yuen who began his association also with D1 and Lau Wai Hung in 1978/79. In 1979, D1 was sent to prison. According to Ng, early in 1979 he with D2 visited D1 in Ma Po Ping Prison and Dl gave instructions to D5 and D11 through him to continue manufacturing heroin which was later sold. Part of the proceeds of sale was given to D2. There was a dinner party in Ocean City Restaurant after Dl's release in late 1979. There were present Yeung Kin Tong, D2, D5, D11 and Lau Wai Hung and Dl praised D5 for his work. In 1980 at the Dunhill Nigh Club which was run by D1 he lent Dl $100,000 for the purchase of heroin base. D1 later repaid him with 3 pounds of heroin. He was the person who was arrested in 1978 and jumped bail. The law finally caught up with him in 1982 and he was sentenced to 8 years imprisonment in September 1983.

14. Then there was the accomplice Wong Chi Keung who was in partnership with Lau Wai Hung in the Boston Escort Service in 1977. Lau had been selling heroin for D1 through the latter's agent. He was eventually employed by D1 through Lau's introduction. His job was to deliver dangerous drugs to various people for Dl. In 1979 he was the one who stored and later disposed of some spoiled heroin for D1 when the latter was in prison. He named D1, D2 and Ng Tsang Yuen and gave evidence of their involvement.

15. Lau Wai Hung had known D1 as early as 1969. He joined Dl in drug trafficking in 1978. At that time Li Kit Nam delivered some heroin to D1 in the presence of Wong Wai Lin and D1's mother. Lau was the person who took Ng Tsang Yuen to see D1 in 1978 after Ng had jumped bail. In 1978 he found Wong Wai Lin, D5, Ng Tsang Yuen, one Tai Tau Chow and D11 living in a flat leased by D1 in Broadcast Drive. He saw dangerous drugs being "cooked" by D5. He knew of the Ma Po Ping Prison visit by Ng Tsang Yuen, he witnessed D1 praise Ng in the restaurant in presence of others. In 1981 he frequented the Dunhill Night Club managed by Ng Tsang Yuen and D5 but financed by D1. There he met Yueng Kin Tong and others. That was the time he bought strychnine for D1. Later he sold heroin for D1 on a commission basis. He told of D4's part in the manufacturing activities. He discussed heroin prices with D1 and D2 at the Plaza Hotel. He told of Dl organising an expedition to Pratas Island: Ah So took part in the expedition to take delivery of morphine blocks which were in turn to be taken to Shek-O beach. He knew that D1 organised a party to camp at Shek-O beach to meet Ah So there on his return from Pratas Island. Prior to that D1 gave Ah So half a 100 Baht note for identification purposes. He saw D1, D2, Leung Yuk Tong and wife, D9, Yeung Kin Tong and wife, one Tai Tau Chow and one Cheung: they all camped there on or about the 14th January 1982. From then on he obtained regular supplies of heroin for sale from Dl through Yeung Kin Tong, Ng Tsang Yuen, D3, D4 and Dl's other agents until late 1982.

16. In 1981 Yeung Kin Tong was employed by D1 to look after the Dunhill Night Club. The Club closed in September 1981. When he was manager of the Night Club he met D4, Leung Hon Chu, Ah So, Chow Kin Yuen (Tai Tau Chow) and D11 who went to the Club to meet D1. Chan Ka Cheung, Leung Yuk Tong and Lau Wai Hung were also frequent visitors. D3 worked there as the accountant. Ng Tsang Yuen occasionally went there. In November 1981 he vacated his home to enable D1 and his associates to manufacture heroin. Later he, Lau Wai Hung, Leung Hon Chu and Leung Yuk Tong helped to dispose of the used equipment. For this D1 agreed to pay him off with 1 pound of heroin. There was an occasion when, on DI's instructions, he obtained $30,000 from D2's sister. He took this sum to Wah Fu Estate and gave it to D10 in preparation for the trip to Pratas Island. Later he was present when D4 went to DI's home at 333 Prince Edward Road with $30,000 to $40,000 to buy equipment for the camping expedition in Shek-O. He told of the purchase at the Tokyo Sports Shop. Later he went to Shek-O with his wife, Leung Yuk Tong and wife, Tai Tau Chow and Chan Ka Cheung. Eventually Ah So and D10 arrived with six gunny sacks of morphine which they took back to town. For his part he was paid 5 pounds of heroin. He saw D1 give money to Ah So to remunerate the boatman, D10. Through Lau Wai Hung and Leung Yuk Tong he also obtained heroin from D1 for sale. He also co-operated with Ng Tsang Yuen independently for other manufactures of heroin.

17. Leung Hon Chu joined Dl in September 1980 when he was asked by D1 to help him destroy evidence of a drug manufacturing factory after Tong Cho Yan's arrest, He did so with D1 and D13. Since then he worked for D1. Later he rented a flat at Viking Towers in Tin Hau Temple Road at Dl's request. A few days later he, D5, D11 and D13 started to manufacture heroin in that flat with morphine blocks brought in by D11. He was one of those who went to camp at Shek-O to receive the morphine blocks brought in by D10. He also helped in heroin manufacture in the Amoy Garden premises as well as in Nam Hong Building in Kwun Tong, for D1.

D4's Evidence

18. Only two of the accused gave evidence. They were D4 and D13. In addition D4 called his wife as a witness. Their defence was one of general denial. D4 maintained he never manufactured heroin nor delivered any dangerous drug as alleged. by the accomplices. He admitted having met D1 in Ma Po Ping Prison in 1979 and Tong Cho Yan in Lai Chi Kok Prison in 1981. He never met Hui Shu To. Between 9th September 1976 and 28th December 1976 he was in Thailand.

The Defence

19. All the accused founded their defence on the bad character, the motives and unreliability of the accomplices. They also relied heavily on the proved discrepancies and conflict between their evidence and their earlier statements to the police as well as the conflict of evidence as between themselves.

One or More Than One Conspiracy

20. Once the issue whether or not there was one continuing conspiracy prosecuting counsel had this to say, in his closing address to the jury:

"......this was a conspiracy centred around the 1st accused HUNG Hon-yee, throughout the whole period charged, that is the beginning of 1975 to the end of 1982, while other people came and went during that period. It was one syndicate, one conspiracy organised by him, controlled by him, with the assistance of a lot of other people, only some of whom are standing in the dock and some of whom, of course, were in the witness box. It would only be, if you are unable to agree on a verdict on the 1st count, that you would go on to consider the other two counts. They are alternative counts, they are put as such. And perhaps, if you were to take the view that somewhere during the whole period - 75 to 82 - that there was such a substantial change in this syndicate that the matter should be divided up, and in fact it was two agreements, two conspiracies, not merely one that you would need to consider those charges. But my submission to you is that the clearest indication of the evidence is that this was one conspiracy though people came and went in, perhaps, very large numbers, not completely represented by the people who have taken part in one capacity or another in this trial, but that it was one conspiracy, it went for the whole period. That is a matter for you to consider, but I suggest to you that that is where you concentrate your effort, that is on Count 1 of the indictment."

Later he said:

You will, at some stage, have to decide was this one conspiracy or a whole lot of little conspiracies. In one sense, of course, a vast number of crimes which could have been charged separately.

Then he said:

 

"To make out a conspiracy of this type, the Crown does not, subject to what his lordship tells you about the law, need to prove any more than that each of the conspirators agreed to assist in the criminal design in some capacity or another, and that he must have known that there were others involved in that criminal purpose. That is, the importers have to know that somebody else is going to have to manufacture the heroin base into a marketable state - No. 3 heroin, the manufacturers have to know that the heroin has to be sold ..... that somebody else, more even then, has to market it."

Grounds of Appeal

21. Counsel for the four applicants rely upon two substantial grounds in support of their applications. The first was that the trial judge failed to direct the jury adequately how to determine

(a)	whether there was just one conspiracy (count 1) or one or two shorter conspiracies (counts 2 and 3) and
(b)	to which (if any) of the alternative conspiracies had any particular applicant attached himself.

The second was that the judge failed to give a fair and balanced summing up of the case to the jury in that few references were made either to the cross-examination of the prosecution witnesses or to the matters relied upon by defence-counsel on behalf of the defendants.

22. We turn to the first substantial ground.

23. A person agreeing with someone (other than a spouse) to do an unlawful act or to do a lawful act by unlawful means may be found guilty of conspiracy at common law. So long as 2 or more persons, whether or not one or both were parties to the original agreement, continue in 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. Thus, in the context of the applications before us where the Crown has alleged. one continuing agreement generally to traffic in dangerous drugs, implemented over a period of 8 years in a variety of overt acts and transactions between 1st January 1975 and 31st December 1982, such continuity had to be proved. Properly to convict any of the accused the jury would have had to be satisfied that the accused had become a party to the continuing and identical agreement rather than to a subsidiary albeit related conspiracy; an agreement to import or to manufacture dangerous drugs for example. It would not matter that an accused was a party to a subsidiary agreement so long as he was also a party to the agreement charged in the first count of the indictment i.e. to traffic in dangerous drugs generally - R v Coughlan and Another ⁽¹⁾.

24. Although the Crown relied upon one overall conspiracy the indictment contained two further counts of similar conspiracy covering shorter periods. It was therefore incumbent upon the jury to determine in relation to each accused, if a conspirator generally to traffic in dangerous drugs at all, whether he was a party to one overall conspiracy rather than to one or both of the other conspiracies alleged in counts 2 and/or 3 or to one or more conspiracies even more restricted in scope. It follows that Baber J. had a corresponding duty appropriately to direct the jury. It was essential for the trial judge to direct the jury that an accused could not be found guilty of the overall conspiracy unless they were satisfied that he knew that there was a wider and long-term agreement which involved others, the identities of whom he might or might not know, which went be beyond his limited involvement and to the furtherance of which the part he played contributed.

"

We venture to say that far too often this principle is forgotten and accused persons are joined in a charge of conspiracy without any real evidence from which a jury may infer that their minds went beyond committing with one or more other persons the one or more specific acts alleged against them in the substantive counts, or went beyond a conspiracy to do a particular act."

"

The trouble is that it never seems to have been considered, nor was there any direction as to, whether or not in this case each farmer merely put his head together with Mr. Griffiths' head without any thought of a general conspiracy. As is indicated in Wright on Conspiracy (1873 p.69) it must be shown that the alleged conspirators were acting in pursuance of a criminal purpose held in common between them."

Per Paull J. in R v Griffiths and others ⁽²⁾. There was no clear direction on this point.

25. Baber J. might for example have said to the jury:

"If you are sure that the first accused was trafficking in dangerous drugs between the relevant dates you must ask yourselves whether you are also sure, as regards any other accused, that he -

(1)	impliedly agreed to join with the first accused at least in some aspect of such trafficking and
(2)	thereby, to his knowledge, joined and assisted others engaged in a wider and continuing enterprise and
(3)	accordingly did not conclude merely a separate and isolated agreement with the first accused for his own purposes."

R v Greenfield and Others ⁽³⁾.

26. All the applicants contend that the judge failed to give such directions although they do not seriously dispute that there was evidence which would have entitled a properly directed jury to find them guilty on count 1. The applicants also complain of lack of direction in relation to counts 2 and 3 but since no verdicts were recorded on either of those counts the matter is academic.

27. However, the judge told the jury (at p.1 and 2):

"And Mr. Cagney, at the end of the evidence, addressed you on the evidence at considerable length as did the other five counsel involved. And I hope you will have some recollection and you will take account of the arguments on each side put before you."

 

And later (at p.9):

"The essence of the charge here is that there was an agreement that there should be dealings in dangerous drugs. And once there was a concluded agreement about that, the crime is complete. Of course the agreement can really only be proved by subsequent events. It is an inference from the conduct of the parties. So it is obvious that in the crime of conspiracy there must be more than one person, there must be at least two, you can't make an agreement with yourself or conspire with yourself."

Finally (at p.56):

"Before you convict any of these accused persons, you must be thoroughly sure of their involvement."

At no time did he direct the jury as to the possibility of there being 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. The nearest he came to this was when he said (at p.10):

"But you have been told that counts 2 and 3 are alternatives to count 1 and need only be considered if you are not satisfied that there was a single conspiracy covering the whole period. If you are satisfied that there was a single conspiracy covering the whole period, you don't need to return a verdict on either count 2 or count 3.

Following a question by the jury he said (at 61R - 62C):

"	Ladies and gentlemen, you asked me a question, and it is this: would Fei Por as Teddy's wife, that is the 2nd accused, be guilty of conspiring to traffic in dangerous drugs if she only conveyed instructions from Teddy to the other conspirators?
	My answer to that is yes, if those instructions related to drug trafficking of which she was aware that there was a conspiracy.''

28. It appears to us that throughout his summing up the trial judge was directing his attention to Dl as the ''hub" of one conspiracy. He paid little attention to the other conspirators' knowledge of other conspirators or accomplices having the same common purpose and thereby forming what he called the "rim" of the conspiracy.

29. In the passages just quoted the judge. told the jury, in terms which brooked no misunderstanding, that to convict they had to find an accused guilty of taking part in a single conspiracy and of sharing in a design common to all. He did not explain the criteria which they should apply in discharging their task although it had been made clear to him from the outset that the issue of whether there was one or a number of conspiracies was a critical feature in the defences advanced. He did not invite them to consider the significance, if any, of the lulls and periods of inactivity during the period of 8 years. He did not reduce the evidence into chronological form.

30. The Crown contend that the one conspiracy was dormant from time to time while for their part the applicants contend that particular conspiracies died and were followed by others, or at least that the evidence was susceptible of such inferences. The judge did not explain how, in relation to one or more conspiracies, the jury should approach the mass of evidence which had been deployed before them over a protracted period.

Conclusion

31. We have been reminded of some general and picturesque guidance on summing-up given by Roborts C. J. in Cheng Pak-chang v R ⁽⁴⁾. The critical words as far as we are concerned are: "If they (the jury) have been correctly directed. as to the law." With considerable reluctance we conclude that by reason of the omissions already outlined the jury had not been correctly and sufficiently directed. In the circumstances it would be wholly inappropriate to invoke the proviso. We do not think it necessary in the circumstances to deal with the other grounds of appeal.

32. In the premises we allow the applications, treat this hearing as a hearing of the appeals, quash the convictions and set aside the sentences. Other than Mr. Mathew whom we have already heard, we will now hear counsel on the question whether there should be a new trial.

(1)    [1976] 63 Cr. App. R.33 at p.35

(2)    [1965] 49 CAR 279 at 292

(3)    [1973] 57 Cr. App. R.849 at p.857

(4)    Cr. App. No. 61 of 1979 (unreported)

33. Having heard counsel for the appellants we order a new trial on 9th October 1986 on fresh indictment.