HKSAR v. YIU KA CHUN AND OTHERS

CACC 47/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 47 OF 2001

(ON APPEAL FROM HCCC NOS. 164 AND 351 of 1998)

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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 The prosecution of the applicants who appear before us was part of a wider prosecution of quite a number of men alleged to be part of an extensive drug trafficking business that was conducted at Sau Mau Ping Estate in 1997. A syndicate was being operated at Block 23 there, and the applicants are said to have been part of that syndicate. It was said that the syndicate was engaged upon organized retail drug trafficking, a sophisticated operation in which numbers of men were assigned different roles: the taking of drugs to specific locations; the sale of drugs; look-out functions; taking the proceeds of sale to banks and depositing them in specific accounts. There was a day shift and a night shift. Videotapes taken during a police operation showed numerous drugs selling transactions effected at the staircase entrance of the Block, and addicts lining up in queues to buy the drugs. Payments monitored - only those monitored - into two accounts of co-conspirators totaled $1.4 million between 4 and 26 November 1997 alone.

2 There were two phases of the police operation. The first was a phase in October 1997 when the police took photographs of what was going on. Armed with these photographs, they moved to the second phase in November in which they used undercover officers to pose as buyers; and the photographs were used as aids when the officers returned from a day's activities and had to record what transactions were completed, with whom, and what roles were seen to have been played by whom.

Procedural history

3 Originally, thirteen defendants were included in one indictment but in February 1999 Jackson J ordered that the indictment be severed into two groups, and the applicants with whom we are concerned in this appeal fell in the second group of defendants.

4 The trial of the first group ran into difficulties because, for reasons that do not matter for present purposes, the jury had to be discharged. The trial seemed plagued, for that happened on no fewer than four occasions and, eventually, in November 1999, that judge ordered that the proceedings against the first group be stayed.

5 The prosecution then proceeded against the second group, and an application by them to Jackson J for a stay was rejected in January 2000. The indictment against the second group was an indictment against eight defendants, including the five with whom we are now concerned. All pleaded not guilty to the charges ranged against them, and the trial commenced before Deputy High Court Judge McMahon in September 2000. After a hearing concerning preliminary issues, a jury of nine was empanelled in October 2000.

6 There were two counts:

Count 1 alleged a conspiracy between the defendants (other than D7 and D8) and some of the conspirators who had been indicted as the first group, a conspiracy between 6 October 1997 and 10 December 1997 unlawfully to traffick in heroin.

The second count alleged a conspiracy to deal with property known or believed upon reasonable grounds to represent the proceeds of drugs trafficking.

7 In relation to the second count, the judge ruled that there was no case to answer for D5 to D8 inclusive, and a jury returned verdicts as directed accordingly at that stage. Since D7 and D8 faced only Count 2 they were discharged. So a new indictment was prepared, and that it is the one with which we now deal. Count 1 affected D1 to D6 inclusive. Count 2 affected D1 to D3 inclusive. D2 was ultimately acquitted on both counts, and D3 on Count 2. D4 had only faced Count 1. The jury convicted the defendants on the remaining counts and it is against those convictions that they now seek leave to appeal and they seek leave also to appeal against sentence. So the position now is as follows:

D1 was convicted on Counts 1 and 2. He was sentenced to fifteen years' imprisonment on Count 1, seven years' imprisonment on Count 2; six years thereof to run concurrently with the sentences on Count 1, one year consecutively: a total of 16 years' imprisonment.

D3 was convicted on Count 1 only, and sentenced to 13 years' imprisonment.

D4 was convicted on Count 1, and sentenced to 15 years' imprisonment.

D5 was convicted on Count 1 with a 15 year sentence.

D6 was also convicted on Count 1 only, and sentenced to a term of 15 years' imprisonment.

So these are the five applicants we have before us.

The prosecution evidence

8 The evidence against them came from a number of sources. The first, PW1, a person named Fok Charn-fai, was an accomplice and he had been a defendant in the first group. He was a member of the syndicate and his evidence was that he joined the syndicate in early October 1997. He testified about the syndicate's operations, and that usually ten to twenty persons worked within the syndicate each day. He identified D5 and D6 as members of the syndicate. D5 was a lookout and as a person who also sold drugs; and D6 as someone who often sold drugs at the staircase.

9 Then there was the evidence of the undercover officers; two who posed as addicts, and one who kept a close watch on the deposit of funds into the accounts of two men who had been part of the group concerned in the first trial. The first two officers, PW2 and PW3, made thirty-eight purchases in the course of November and early December. Surveillance officers were also deployed to make observation on the undercover operatives, and hidden cameras were used to record transactions and contact between the officers and members of the syndicate. The undercover officers used banknotes the details of which had first been registered, and PW4, with the cooperation of bank staff, observed persons depositing monies into the account of a man called Chan Chuek-hing and a man called Chiu Kwai-sang who had been defendants in the first trial. Once the money had been deposited, the notes deposited were checked against the notes used in the transactions, and they almost invariably tallied. Between 4 and 26 November there were twenty-nine cash deposits into the accounts of Chan and Chiu, and D1, D3 and D4 amongst others were identified as making deposits.

10 We shall now turn to the case as against each defendant, as well as a summary of the defences advanced.

D1

11 D1 was identified by PW2 as a person with whom he had had dealings on three occasions: twice in November and once in December. On 6 and 7 November, he paid banknotes into an account which had been used to buy drugs. He was present on 7 November when PW2 bought drugs, and he paid the banknotes used that day into an account on 10 November. On 8 November, he paid banknotes into an account which had thus been used. On 9 November, he was at the estate warning PW2 about the approach of police. On 14 November, he was present when banknotes from drugs sales were deposited into the bank. On 9 December, he approached PW2 and arranged for him to buy drugs, and actually sold the drugs to him. His contact with PW2 that day was videotaped.

12 He gave evidence in his own defence, saying that some identifications were mistaken; that when, on 9 December, he was videotaped speaking to PW2 it was not about drugs; and that he paid money into the bank account on several occasions merely because Chan was a family friend whom he trusted and who had asked him to deposit monies, and he thought that the monies were the proceeds of decoration work or gambling.

13 In his home made grounds of appeal, D1 asserts that there was no evidence to show his involvement with the syndicate. From the evidence we have just recited, this is clearly not so. He says that Charge 2 was wrongly used to implicate him in the offence alleged by Charge 1; to which the answer is that the two were, of course, connected, although it did not necessarily follow that the activity in the one meant guilt in the other. The jury was well aware of this, as is evidenced by their different verdicts in D3's case; and the judge directed the jury specifically on this point. This applicant argues that the transactions of the undercover officers were unfair. We do not see why. They were proper undercover operations instituted after information and photographs showed the widespread operation of a syndicate. This was a perfectly acceptable and professional method of gleaning evidence. There are other complaints of no substance, although we have considered each. D1 adopts a number of grounds originally drafted by counsel to which we shall individually later turn. We have yet another set of grounds dated 23 November 2002 which are home made and which we have read. There he complains that the judge wrongly refused evidence of the first group's discharge or stay of proceedings. The answer is that that stay of proceedings was irrelevant to the issues before the jury trying these applicants. He made a complaint about his counsel with which we will later deal. He says also, in addressing us today, that the judge refused to allow him to call a witness Chan Cheuk-hung. There is no substance in this allegation and indeed we note another ground which was a complaint that the prosecuting counsel had criticized the failure to call Chan Cheuk-hung.

D3

14 D3 was someone with whom PW2 had dealings on six occasions, on three of which he told PW2 where to go to buy drugs. On one occasion, he led PW2, as well as addicts, to a staircase where drugs were sold to them. PW3 also gave evidence implicating D3 and on one occasions D3 came with two persons who were carrying a box of drugs to the staircase from which box, in D3's presence, drugs were distributed. On a further occasion, D3 encouraged individuals to purchase drugs. PW4 saw D3 go to the bank to make a deposit with cash which had been obtained from drug dealing.

15 D3 did not give evidence, and he called no witnesses.

16 He complains that the trial was conducted unfairly and that the judge was biased. We have notes of the summing-up, and our analysis is that there is no warrant for that complaint. He says that PW1 was dishonest. PW1's role and the care to be taken with his evidence was well emphasised at trial and in the summing-up. The judge gave the jury an express and extensive warning about the approach they should take to the evidence of PW1. D3 makes a complaint about the conduct of prosecuting counsel, to which we shall later return. He says that there is no evidence that he was a member of a syndicate. In the light of the evidence we have rehearsed that complaint cannot hold good.

17 He then says that his barrister failed to reveal the fact that he, the third defendant, was a person of no previous convictions. He tells us today, and we are not surprised, that his counsel was aware at the outset of the trial of that fact. It is a fact that counsel reveals to the judge in mitigation. We are satisfied, because it is obvious in a trial of this length and complexity, that the decision taken by counsel was not an oversight, but must have been a deliberate tactical one, and we can see a number of very good reasons for that. Mr Tam, for the respondent, has canvassed one with us this morning, namely, that it would have sat ill with the defence, as it was run, that this applicant must have been a drug trafficking suspect to enable the police unfairly to target and implicate him. We note further that the applicant did not give evidence so his previous good character would have gone only to the question of propensity. He was aged only 22 years at the date of the offence and the evidence against him was overwhelming, so that we cannot think that the failure to disclose the absence of a criminal past would have made any difference whatsoever in his case. Indeed, it seems to us that the disclosure of that absence in his case, against the silence in the case of the others, would have spoken volumes about the character or bad character of the other applicants; and that since the case of all the applicants, including that of this applicant, depended upon an attack on the creditworthiness of the undercover officers, the disclosure to the jury that all but one applicant had a record was bound to have a seriously damaging effect on that attack; an attack which was difficult enough as it was. Had counsel for D3 taken the course which the applicant now suggests she should have taken, she would, in our judgment, have been impacting adversely, by the contrast to which we refer, not only on the defence of the other applicants but, by extension, on the chances of an acquittal of this applicant too. We rather suspect that the decision not to reveal this young applicant's lack of previous convictions was a deliberate and sensible tactical device. If so, it was understandable. If not, then for the reason we have given we cannot see that the decision harmed the applicant at all.

18 This applicant today also complains about the widening of the conspiracy dates from those originally charged to those to be found in the indictment. It was perfectly open to the prosecution to do so. Given the evidence of PW1, it was indeed necessary for them to do so. That one or more applicants may not have been involved for the entire period is not to the point and the judge, when he came to sentence, would have been well aware of the extent of the involvement of any particular applicant.

D4

19 D4 was said by PW2 to have had dealings with him on several occasions; on one of which D3 told him where he was to go to buy drugs; on another he told him that the police had left; and on a third he sold drugs to PW2. On one further occasion, he was seen by PW4 to make a bank deposit of a registered note.

20 D4 gave evidence. He denied that on 17 November he had asked PW2 what he was looking for. He did not dispute the fact of a conversation (indeed it would have been difficult for him to do so because he was shown by a video to hold one) but he disputed its contents. He said that he was merely looking for someone who sold 'no duty' cigarettes; and he called a witness, Chan Chau, who said that he, Chan, was D4's employer, and that he had asked D4 to buy 'non-duty' cigarettes for him. As for the cash deposit on 4 November witnessed by PW4, he said that he was a neighbour of the account holder whose wife had asked him, D4, to make a cash deposit as a favour.

21 In his grounds of appeal, D4 says that the trial was not fair; that the judge misled the jury; and that the prosecutor had 'problems'. Today he adds that the judge ignored defects of tainted witness; that there were contradictions between the two trials and that the summing-up spent only a short time on his case.

D5

22 It will be remembered that in D5's case, PW1 had identified him as a member of the syndicate and said that he, D5, had acted both as a lookout and as a seller of drugs. This was confirmed by the evidence of PW2 to whom D5 sold drugs twice, and there was also a videotape showing D5 selling drugs to another on 6 November. He also sold drugs to PW3; and banknotes from all these transactions were deposited into the account of Chan Cheuk-hung. His defence was that he did indeed sell drugs, but that he was not part of the syndicate, or party to any conspiracy. The drugs had been intended, he said, for his own consumption, but he sold them individually as the opportunity arose.

23 In his appeal, he asserts that the judge was biased and he puts forward some examples of that suggested bias, which we have examined but in which we see no substance. He also complains that the judge should have discharged the jury for they were reluctant jurors, he says.

24 In grounds very recently filed and drawn by counsel in February 2001, he adds further complaints. These are that there had been sleeping jurors during the trial; that the judge should have discharged the jury because of comments made by prosecuting counsel; that the judge wrongly refused cross-examination about what happened to two persons involved in the syndicate but who were in the event not named as co-conspirators; that photographs of the applicants ought never to have been admitted as evidence; that the judge made an error in the voir dire; and, we also have some grounds from him dated recently as November 2002.

D6

25 D6 is one of those identified by PW2 as a member of the syndicate and as a seller of drugs for that syndicate. His evidence was that D6 sold drugs to him on three occasions, one of which was video recorded. Banknotes from those sales found their way into the bank accounts of Chan. In addition, there were produced a large number of video recordings which showed D6 on 24 November and 6 December selling drugs to many addicts inside the staircase entrance to Block 23.

26 D6 did not give evidence.

27 In his grounds of appeal he simply says that the trial was not fair. In addressing his case we shall address all the grounds raised by the other applicants as well. He has addressed us today emphasising his role as a sole trafficker.

The photographs issue

28 Objection at trial was taken to the evidence of identification of these applicants. The undercover officers were shown an album of about forty photographs before going to the operation itself, before going to the Estate. They then conducted their surveillance and their undercover work. After each transaction was complete, the officer would return to a safe house and there say, by reference to the photographs, who he had seen doing what, and with whom he had had any dealing. Weeks after the conclusion of the operation, there were identity parades at which officers attended and, without again being shown the photographs or the album, they made their identification of the applicants. At trial, objection was taken on a number of grounds, but primarily on the basis that it would be wrong to permit evidence of the identity parade(s) without the jury knowing that the officers had previously identified the applicants in photographs, but that at the same time it would be wrong to tell them that fact and to show the jury the photographs because of what was called the 'rogues gallery effect', in other words, the risk that the jury would assume the persons in the photographs to have had criminal associations.

29 The judge ruled against this submission. The judge pointed out in his ruling that the photographs were far removed from anything that might be thought to be a rogues gallery in that they were not, as he called them, "mug shots", but merely photographs of persons taken in the course of surveillance operations, and included the photographs of many persons, most of whom were not charged. The manner in which the police had proceeded was the only practical manner in an investigation of this sort. What the judge said was this:

"But in the circumstances of a police investigation in the present case, it was wholly unrealistic to hold identification parades after each drug transaction and in my view, given that the detection process was ongoing and in most cases the identification of the person in the photo was unknown, formal photographic identification parades were also unrealistic.

....

In short, accepting that the photos must be referred to in evidence to provide a proper basis for the jury to consider the formal identification parade evidence, in order for the jury to consider the formal identification parade evidence the prosecution propose for, I do not think any prejudicial effect of reference to those photos in evidence could outweigh their probative value. They are not inadmissible for that reason.

Mr Delaney further argued that the photographic identification performed by the undercover officer was a complete identification itself and rendered the subsequent identification parades inadmissible as evidence because, firstly, there was now no need for such evidence, and secondly, because of the tainting of that identification parade evidence by the displacement effect of the officer having already been tainted by exposure to the defendant's photograph.

All counsel in various ways adopted this latter fundamental argument. I will deal with the first point made by Mr Delaney that the undercover officer's act of identification was complete when he identified the defendant's photograph in the album. I do not think that is correct. The officer's identification of a defendant from the photographic album was made at an operational stage of the police investigation, not the evidence gathering stage.

... the photographic identification was made at the time when the police were, in the main, simply trying to find out who the person they had just seen was, or even, if on occasion they may have had a name for the individual, to link him to a particular transaction.

In most cases, no name could be attached to that individual, the officer could only point to his photo in the album and identify him as the person he had just had dealings with. In any event, the act of identification was not complete until the officer was able to identify that person on the identification parade. The photographic identification in this case was part of the investigative process only. It was necessary for that process so far as this case is concerned, but fell short of being a formal and complete act of identification.

Mr Moorfoot, for the prosecution, submitted that the identification parade evidence is actual evidence of identification of the defendant in a formal and controlled setting and that the prosecution is entitled to call that evidence unless it is, for some other reason, inadmissible. I agree." (Tr pp 481-482)

30 It seems to us clear, as the judge found, that the showing of the photographs to the witnesses was in the first instance a necessary part of the investigative process in the unusual factual position which here prevailed. On their return to the safe houses, they were shown photographs for the purposes of ascertaining the identity of offenders. The police needed to know, in the course of an ongoing operation, who it was, amongst the many photographs they had of persons at the scene, who was involved in drugs related activity. To require suspects at that stage to attend identification parades would have ruined the entire operation. It was necessary for the police to know who to arrest and who to charge and this could then only be done by the method which they adopted. "Until the police have such knowledge, the detection process is not complete" (See R v Carusi (1997) 92 A Crim R 52, 64, per Hunt CJ). The evidence, both of the photographic identification and also of identity parades some weeks later, was admissible evidence; the question being whether the judge should have excluded that evidence in the exercise of his discretion.

31 It is relevant to note also, in relation to most of the applicants, the extent to which identification was truly in issue. Neither D5 nor D6 really disputed it. Their defence (although D6 did not give evidence, this was the thrust of addresses on his behalf) was that they were independent traffickers (or in D6's case may have been) and were not part of the syndicate. Their presence at the street or at the Estate was not disputed. D3 did not dispute that he had been at the bank. D1 admitted having been to the bank and deposited monies and that he met and spoken to PW2 on 9 December. As for the rogues gallery effect, that is never an easy matter with which to deal. It must be a question of feel in a particular case. In this case, the judge was forced to address the issue by the manner in which the defence case was run. We see what the judge said about this in his summing-up:

"You will bear this in mind. You have heard that the photos were taken of the individuals in them by Chief Inspector Law's surveillance team on the basis that they were people who frequented the area. The use you are to make of the photos, so far as the prosecution case in respect of each defendant is concerned, is in assessing the reliability of the identification parade or confrontation evidence presented against the defendant. You are not to make any prejudicial assumption against a defendant because in cross-examination of some prosecution witness, it was elicited that officers may have suspected or regarded a photograph or those photographs generally as being of a suspect.

That evidence was obtained in cross-examination by some defendants because it is relevant to the issue as to whether the police witnesses may have had a motive to frame up a defendant or defendants generally. That is the only relevance of that evidence, those two matters that I have bought to your attention, and that is the only use you should make of those photographs." (Tr p 109)

32 The judge gave the jury extensive warnings of the care to be taken of identification evidence, warning the jury of every possible danger or error of which they should be aware; and specifically as to the danger of a person being 'locked in' to an identification at a subsequent parade by the fact that he had earlier made a photographic identification, and the dangers flowing from having seen photographs on several occasions of defendants. The judge's directions on identification were very thorough, and very fair, and careful. We note, too, that when the judge came to summarise the evidence as it affected each defendant, he dealt with identification issues as they affected that defendant. In the circumstances we, do not see that the judge has erred in his approach to admitting the photographs or the evidence of the identification parades; nor do we see that his directions to the jury in this regard can properly be the subject of an objection.

Bias

33 In so far as there are suggestions that the judge was biased, or that the summing-up was not fair, we need say no more than that there is no basis for this complaint. The summing-up was extensive, and covered properly and in detail those factors which needed to be covered, and the judge was at pains to draw to the attention of the jury those matters in their favour that could conceivably be said to have emerged.

Jury issues

34 Reference has been made by more than one applicant to the jury being 'reluctant', the suggestion being that the judge should have discharged the jury after the jury wrote to the judge in early December 2000. The jury was empanelled on 27 October, but between then and early December there were a number of interruptions occasioned by illness or absences. On 28 November one juror was discharged for reasons which were perfectly sound, and on 5 December another, a Mr Ho, was discharged because he had lost his job and the judge told the jury not to speculate why he was no longer serving. There was no reason why the judge needed to provide them with an explanation, but the letter to which we now refer suggests that, in the event, the jury was well aware of his employment difficulties. On 7 December, the jury wrote to the judge a letter, a copy of which we have, and which was given to counsel at trial, expressing concern about the length of the trial; saying that they had to return to work after each hearing (the hearing hours were restricted to the mornings); and that they were concerned they might suffer the same fate as Mr Ho. The stress they were undergoing; and their concern that the trial should finish by February when one of the jurors was to be married, or that at least he should be released if the trial was then still progressing.

35 The matter was discussed with counsel, and the judge then addressed the jury and canvassed with them the question of sitting different hours - whether that would assist. Counsel then suggested that the judge should ascertain from the jury whether they were able to discharge their function properly. The judge assessed the effect of the letter and he commented on the interest they hitherto shown in the case. After extensive discussion with counsel, and we note there was no application for the discharge of the jury, the judge spoke to the jury. It emerged from the foreman's comments that there were two concerns: first, the hours they were sitting and having to work the rest of the day; and second the complexity and detail of the evidence. They were concerned that the trial would be delayed, and they did not know how long it was going to take. That was their major concern. The judge then gave an estimate of likely progress, that the case would comfortably finish by the first part of January. He spoke to them about Mr Ho's position and said that their concern about being placed in the same position as Mr Ho was misplaced, and of the obligation of employers; and he told them too that at the end of the trial, speeches would bring the evidence together, as would the summing-up. He asked them whether they wanted to change the sitting times; whether they wanted letters sent to their employers; and to confirm whether or not they had been able to perform their functions as jurors.

36 They retired to consider these matters. They said they did not want the judge to change the hours. They asked for a letter for their employers; and, in particular, they said they felt comfortable with what the judge had told them; and confirmed their ability to concentrate on the case and to perform their obligation as jurors, both in the future and in relation to the trial up to that point.

37 The judge dealt with a difficult situation skilfully and properly, and we nurse no concerns about the propriety of the course taken or about its impact on the fairness of the trial.

38 We have a complaint about sleeping jurors. The question of jurors apparently nodding off was drawn to the judge's attention and the judge dealt with it. He told the jurors that they should take breaks when they required. Importantly, we note that there was no application at any stage by counsel to discharge any juror on this ground. We are surprised, in the circumstances, that counsel lent themselves to this ground.

Prosecuting counsel

39 Then there is a complaint that prosecuting counsel made factual errors in his closing speech. So he did. But the judge dealt with them immediately after that speech, and again in his summing-up, and there is nothing of consequence in this complaint.

40 There is a similar complaint about comments made by prosecuting counsel in relation to the failure on the part of D1 and D4 to call certain evidence. Both D1 and D4 said that they were depositing money in innocent circumstances at the behest of a Mr Chan (in the case of D1), and Mrs Chan (in the case of D4). Mr Moorfoot, for the prosecution, suggested that it was significant that neither of these witnesses had been called by either defendant. An application to discharge the jury on the basis of these comments, and the errors of facts to which we referred, was rejected by the judge, who said they could properly be dealt with by appropriate directions. Counsel for D1 in his speech told the jurors why Mr Chan had not been called, and in his remarks to the jury the judge said:

"Mr Moorfoot made certain comments as to the 1st defendant effectively not calling Chan as a witness in the 1st defendant's case. He also made similar comments about Chan's wife not being called as a witness by the 4th defendant in his case.

You must ignore his comments in this regard. You must ignore his comments as to the failure of the 1st defendant and the 4th defendant to call Chan and Chan's wife respectively as witnesses. I can tell you that there are legal reasons why Chan and his wife should not be regarded as ordinary witnesses in this regard. I will not go into those reasons in detail. It relates to Chan being an alleged co-conspirator. His status in that regard creates barriers to him and his wife to be called to give evidence. Accordingly, you are to ignore Mr Moorfoot's comments entirely in that regard." (Tr. pp 214-215)

41 Assuming that the comments of prosecuting counsel ought not to have been made, as to which it is not necessary to decide, the judge's remarks cured any harm or injustice that might otherwise have been occasioned.

42 It is then said that the prosecutor was further at fault for not mentioning in his closing speech the burden of proof. The burden of proof had been well drummed in, and there could have been no doubt about it. It was mentioned by prosecuting counsel in his opening address, by each defence counsel in his closing address, and frequently by the judge in his summing-up.

Other grounds

43 It is said that the judge erred in not permitting certain cross-examination. We have considered this ground and we have heard Mr Tam in response. The fact of the matter is that we agree with the judge that the objective of this cross-examination was in the event irrelevant.

44 There is an attack on a finding of the judge in the conduct of the voir dires. It was a factual matter and the judge was entitled to come to the conclusion of the fact he did.

45 It is also suggested that the judge's address of the case of D4 was not adequate because it took only fifteen minutes at the end of a long day. No one asked the judge to adjourn; and the transcript showed the judge to have dealt fully with the case as it affected D4 and his defence.

46 There is one other complaint with which we need to deal. D1 asserts that after the conclusion of his evidence at trial, he discovered that the police were in possession of a tape which showed that the undercover officers had lied in their evidence. He raised the matter with his counsel who, however, told him that the tape could not be played and threatened to withdraw if D1 insisted on its production. He was, he says, compelled to sign an acceptance of that advice. We have an affidavit from counsel who as a matter of courtesy attended this morning, and we have heard the applicant further. Counsel saw the tape - it was in the unused material - and he formed the view, with which all defence counsel agreed, that not only did it not advance this applicant's contention as to its impact, but that it showed other activity which was extremely prejudicial. He gave, as he was entitled, very strong advice to the applicant, which the applicant was told he could accept or reject; and counsel felt, in the circumstances, compelled to say that if his advice, on this the important matter was rejected, the question of continued representation by him would have to be considered. In the event, the applicant accepted the advice and signed a note to that effect. The applicant has not demonstrated to us that the advice he received was other than tactically sensible; and this ground fails.

Conviction: Conclusion

47 This deals extensively, we think, with the grounds advanced by the applicants, in which we are satisfied there is no merit and, accordingly, the application of each applicant for leave to appeal against his conviction is dismissed.

Sentence

48 Each defendant, save D3, was sentenced to a term of fifteen years' imprisonment on the first count; D3 to thirteen years; the distinction in his case being that he was the person who had previous good character. On Count 2, D1 was sentenced to seven years' imprisonment; one of which was ordered to run concurrently, a total in his case was sixteen years' imprisonment.

49 D1 says that he was shown only to be involved in the second phase of the operation, and that he was not a mastermind. All applicants say that the sentences were manifestly excessive. Grounds drawn by counsel, which the applicants have adopted, argue that the sentences imposed did not reflect the quantity of drugs proved at the trial, namely a quantity of 27 grammes of heroin; that the judge wrongly sentenced on the footing that there were 460 sales of drugs proved at trial; and that the sentences imposed on these applicants would have dictated grossly excessive sentences for the ringleaders thus demonstrating the excessiveness in the case of these applicants; and, finally, that the judge failed to take account of the delay since December 1997 in bringing the matter to trial.

50 This judge presided over a trial lasting many weeks, and he was in a position as good as any to assess the nature and extent of the operation; which he described as a well organised sophisticated syndicate, employing a considerable number individuals, carefully deployed with a network designed to ensure smooth running and the avoidance of detection. Addicts were marshalled into queues; orders were taken; cash collected; substantial sums paid into bank accounts - a brazen operation, he called it, "operating as a business in direct view of the residents of the ... Estate". He said that the quantity or volume of drugs must have been high; that on two occasions quantities larger than an ounce were sold; and he concluded that the quantity actually sold must have reached the upper levels of the guidelines bands in the case of Lau Tak-ming [1990] 2 HKLR 371. It was an open-ended conspiracy, which would have continued but for the police operation.

51 The evidence revealed hundreds of taped transactions. In our judgment the judge's findings are the only sensible ones in the circumstances, and the ground that the judge was restricted somehow to the quantity of drugs tallied by the sales logged by the undercover agents is an entirely unrealistic way of approaching this case. This was a conspiracy, an ongoing one, with regular daily sales; two shifts a day; and these applicants were active members of the syndicate. One really does wonder, with respect, how counsel can bring themselves to draft a ground such as this.

52 The judge took into account the fact that the applicants were not the ringleaders but were, as he called them, 'foot soldiers'. He did not distinguish as between them, save for D3 who alone had a clear record. We are entirely satisfied that the starting points adopted were not in the least excessive.

53 As for Count 2, we note that again that this was an open-ended conspiracy and that on one of the two occasions that D1 deposited sums, the amount was over $174,000. Again, the starting point was wholly appropriate.

54 As for delay, this trial started in September 2000. It is true that the arrests were effected at the end of 1997. This was a complex case with many defendants, which the applicants chose to contest in the face of overwhelming evidence against each of them. There was no undue delay in bringing the prosecution, and the decision to sever the indictment was sensible. We agree with the judge that the delay was not in the circumstances one which called for a discount from the otherwise appropriate sentence.

55 In so far as there is a complaint about the judge's conclusion about the number of drug sales, we are informed today by Mr Tam, that recordings from two days alone showed over 400 sales. There is nothing in that complaint.

56 In the circumstances we are satisfied there is no merit whatsoever in the suggestion that the sentences were either manifestly excessive, any one of them, or wrong in principle. Accordingly, the applications for leave to appeal against sentence, in the case of each applicant, is dismissed.

57 We conclude only by saying that we are considerably indebted to Mr Tam for his written submissions in a complex case, which are highly informative and are a model of its kind.