THE QUEEN v. CHEUNG TSE PAN

Headnote

S.83V Criminal Procedure Ordinance: Fresh

Evidence: Principles applicable

------------------

JUDGMENT

------------------

Silke, V.-P.:

1. This is the judgment of the court.

2. In Criminal Appeal 175/88 Cheung Tse Pan was, on 18th March 1988, after trial before His Honour Judge Ryan (as he then was) sitting as a Deputy Judge of the High Court, and a jury, convicted of 4 counts of manufacturing dangerous drugs and sentenced to 20 years' imprisonment. The counts were numbered counts 3, 4, 5 and 6 in the indictment.

3. On the 11/4/88 he filed an application for leave to appeal against both conviction and sentence.

4. Legal Aid was refused him on 1st August 1988 and on 13th September 1988 Cheung Tse Pan abandoned his application for leave to appeal against conviction.

5. His sentence application first came before this Court on 18th January 1989 and, as we were told that an enquiry was being carried out into the conduct of the police officer in charge of case which could be relevant, we adjourned that hearing.

6. On various occasions since then there have been further adjournments pending the outcome of those enquiries.

7. In C.A. 353/88, Liu Wai Kwong was convicted on 13th July 1988, after trail before O'Dea, J. and a jury, of a single count of trafficking in dangerous drugs and sentenced to 12 years' imprisonment. He filed his application for leave to appeal against conviction only on 1/7/88. As the same enquiry concerned him that application has also been adjourned on a number of occasions.

8. On 27th April 1990 an order was made that both be adjourned to a date to be fixed in consultation with counsel's diary with an estimate of a half day hearing.

9. In August 1990, His Excellency the Governor, under the provision of s.83P, Criminal Procedure Ordinance, Cap.221 referred the whole of the case of Cheung Tse Pan in respect of his conviction to the Court of Appeal.

10. We are therefore now seized with an appeal against conviction by Cheung Tse Pan and, if necessary, an application for leave to appeal against his sentence, and an application for leave to appeal against his conviction by Liu Wai Kwong. In the light of the issues raised we heard both together with the agreement of Mr. Plowman who appeared in this court for both.

11. Mr. Abbott appeared in this court for the Crown.

12. Both involve applications, under the provisions of s.83V Criminal Procedure Ordinance that this Court accept fresh evidence. For Cheung Tse Pan the request is:

                        and their certified translations.

13. In respect of Liu Wai Kwong orders are sought for the production of the same statements as requested in Cheung's case and, in addition, the Court is asked to receive the evidence of Reece Y.B. Lau as set out in his affirmations of 1st September and 9th November 1990 to the first of which is attached seven exhibits and to the second a further seven exhibit: all marked EX1 to EX14.

14. The basis for these applications is that Li Ying Ho and Ng Chi Wai gave evidence for the Crown at both trials and as accomplice witnesses. The case for the prosecution concerning Cheung Tse Pan and Liu Wai Kwong relied solely on them. It is now submitted that matters have come to light, unknown to their representatives at trial, which could materially affect the view the jury might take of the reliance to be placed on the evidence of those two witnesses.

15. Cheung's sole ground of appeal is that his conviction is unsafe and unsatisfactory and of this ground there are three main sets of particulars. The first relates to the statements sought to be produced concerning Li and Ng and their dealings with the O.C. case. There then follows 10 sub-particulars.

16. The second main particular alleges that, had the material matters in the identified statements been known in the course of Cheung Tse Pan's trial they could have been used in the course of cross-examination of the two accomplices. This would have affected their credibility. There then follows 5 sub-particulars.

17. The third main particular alleges that which is described as a "thoroughly unsatisfactory state of affairs" relating to the handling of the accomplice witnesses by the prosecution which so affects the administration of justice that the convictions should be quashed.

18. Liu Wai Kwong's grounds are in similar terms to those of Cheung Tse Pan and seeks to rely on the same matters raised in the particulars referred to. In addition there is a fourth main particular which alleges that there were significant inconsistencies in the statements of the accomplice witnesses as to an event on 17th September 1983 involving Chu Cho Sang and which took place in the Jade Garden Restaurant. Particulars of the suggested inconsistences are given.

The case against Cheung Tse Pan

19. First the case, as the evidence at trial disclosed it, against Cheung Tse Pan. The manufacturing in which he was involved was said to have taken place at Flat C1, 1/F Dennon Terrace, Clear Water Bay Road, Sai Kung on a date unknown in May 1983 - count 3; - on a date unknown between 30th April and 1st August 1983 - count 4; - in the same period in count 5; and again in the same period in count 6 - it was the case for the Crown that there had been breaks between the dates of the manufacturing. In all the counts named as co-participants were Chu Cho Sang, Li Ying Ho and Ng Chi Wai. The substance said to have been manufactured was, in each case, salts of esters of morphine. The evidence relevant to these counts came from Li Wai Kong and Ng Chi Wai.

20. Cheung Tse Pan had been acquitted on two further counts of manufacturing, stated to have taken place at Green Field Terrace, Homantin, on dates between 31st December 1982 and 1st March 1983. The evidence relevant to those counts came solely from Li Ying Ho.

21. Li Ying Ho gave evidence that he had been a manufacturer of drugs from 1978 when he helped Chu Cho Sang, known as "Fei Chai Sang", and his wife Lam Tsui Lan - known as "Tsui Lan" - in that criminal act. After a break he started up again in 1982. On 20th January 1983 Chu bought the premises at Green Field Terrace and Li again helped Chu to manufacture. He named another helper as "Ah Mau" who is Cheung Tse Pan.

22. In 1983 Chu had arranged a meeting at a restaurant which was attended by Li Wai Kong, Ng Chi Wai, Chu himself and Cheung Tse Pan. There was a discussion about making dangerous drugs. Then heroin base was picked up in Tsimshatsui. They went to the Dennon Terrace address where they manufacture salts of esters of morphine.

23. In the course of the manufacturing Chu was the main stirrer of the pot and Li was a learner. Li was unsure of what part Cheung Tse Pan played.

24. They manufactured on four or five occasions. Chu and Cheung Tse Pan ceased going to Deenon Terrace in July of 1983 but Ng continued to make drugs there. They then moved to other premises. These were raided by the police and he and Ng were caught in the act, arrested and eventually convicted of, amongst others, a manufacturing count, for which he received a sentence of 18 years imprisonment.

25. The evidence of Ng Chi Wai related to the Dennon Terrace premises only, which premises Chu, Cheung Tse Pan and himself had, since 1983, leased together.

26. Ng also spoke of the same Jade Garden restaurant meeting as did Li and of the events which came after it. He placed Cheung Tse Pan in the scheme as a helper who had continued to manufacture in Dennon Terrace even after Chu had left the premises in July 1983, this on two occasions. As is apparent, his evidence differs from that of Li on this aspect.

27. A full accomplice warning was, and properly, given. The jury were directed that there was no corroboration of either of these accomplices as to Cheung Tse Pan's involvement.

28. That both were convicted criminals and serving long sentences at the time of trial, and that were gving evidence under immunity, was drawn to the attention of the jury.

29. Ng agreed that one of the encouragements to his giving of evidence was that he expected the police would support a petition to the Governor to effect a reduction in his 18 year sentence.

30. In evidence Cheung Tse Pan had alleged that he was being framed by Li and by Ng because of a confrontation they had had over a gambling debt and he gave details. He had, at one time, run an illegal gambling den.

31. In the course of his summing up, upon which no attack is or could be made, the trial judge referred to Li as an apparently reluctant witness.

The case against Liu Wai Kwong

32. The single count upon which Liu Wai Kwong was convicted alleged that he, on 17th September 1983, at Diamond Hill together with the now familiar Chu Cho Sang, with Li Ying Ho and Ng Chi Wai, trafficked in 9.1 kilos of esters of morphine - heroin base.

33. Again Li and Ng were the crucial witnesses, a full accomplice warning was given: there was no corroboration of the accomplice evidence and the jury were so directed. Again the summing up of the trail judge meets with no criticism.

34. Ng's evidence was to the effect that there had been an exchange of a packet in a restaurant, a packet of money, between Chu and Liu Wai Kwong. Ng was later contacted by an "Ah Mong" - identified as Liu Wai Kong - met him, together with Li, at Choi Hung and drove with Liu Wai Kwong to Diamond Hill where another packet, said to be a bag of drugs, was exchanged after which Li and Ng drove off. He identified Liu Wai Kwong.

35. Four years had elapsed before Li attended an identification parade at which he identified Liu Wai Kwong, quickly and without hesitation, as "Ah Mong", and as the person who was concerned with the bag of drugs. Li said he had checked the package while they were still in the car and found that it contained "20 lumps of heroin base". In cross-examination he said it was possible, he having been involved in many similar drug transactions, that he had not looked at the bag on this particular occasion but that he may have done so later when actually using the base in manufacturing.

36. The judge directed the jury that the cross-examination of Li by counsel then appearing for Liu Wai Kwong might cause them to entertain "certain doubts" about his evidence.

37. The cross-examination of Ng threw up oddities and inconsistencies in his evidence all of which were carefully drawn to the attention of the jury by the trial judge as were also the inconsistencies which arose as between the evidence given by Li and that given by Ng.

38. Lui Wai Kwong did not give evidence.

39. As we have indicated, both Ng and Li were, at the time of their giving evidence, serving substantial sentences on a series of` drug charges the most important of which, and the most relevant for these proceedings, was that of manufacturing dangerous drugs. Both had applied for leave to appeal against their overall sentences of a totality of 18 years [C.A.348/1984 (unreported)]. Ng's application was refused: Li's was allowed, the totality being reduced to 16 years imprisonment. Ng was no doubt aware of that portion of the judgment of the Court of Appeal which made reference to his offer to give evidence against the "higher people" involved should they be arrested and tried. What the court said was this:

"If this happens and if he does give credible evidence then it will be a matter for the executive as to whether or not they reduce his sentence."

40. Li Ying Ho must equally have been aware of that which was said concerning his fellow applicant and further that his own sentence had been reduced because he had given, before the appellate hearing and after the original sentence had been imposed, "reliable and important information to the police".

41. Both were apparently before the court of trial "warts and all".

42. Mr. Plowman seeks to persuade us that a then unknown wart, but which has now become evident, should also have been within the knowledge of the jury. It is his case that, had it been, it would have materially affected their collective view of the credibility of Ng and Li Ying Ho. This might well, and he submits that this court cannot know, have altered the weight the jury placed upon their evidence. If that were the case then the jury might have - and again he submits that this is sufficient for the success of these instant applications - had sufficient doubt in their minds so as to acquit the two.

43. Li Ying Ho in the statement of 28th March 1989 retails the facts basing his previous conviction and his involvement in drugs and further says that he had given evidence in another drugs trial as a result of which the Executive had remitted 5 years and 4 months of his sentence. He was a triad member.

44. He describes his participation in the manufacture of dangerous drugs in Shatin City One, Mok Che Che Village, Hamburg Villa in Becon Hill, Greenfield Terrace in Homantin Hill Road and at Tang Lung (or Dennon) Terrace, Tseng Lau Shu in Sai Kung. He describes an incident on 17th September 1983 relating to Liu Wai Kwong the details of which, Mr. Plowman suggests in his ground 4, differed significantly from the evidence he gave in court relating to the same incident. Mr. Plowman also complains that both Li and Ng differ between themselves on this. In the statement Li fully implicated, and in greater detail that he did at the trials, both Cheung Tse Pan and Liu Wai Kwong.

45. Then comes the significant part for our purposes. After his arrest in 1983 he decided to co-operate with the police because he thought someone had, as he put it, "been leaking intelligence to the police".

46. He recites the fact that, between early and late 1987, Inspector Tsang Chun Wai - who was the officer in charge of the case in both trials - accompanied by a constable named Chau visited Li at Shek Pik Prison on a number of occasions and took statements from him concerning "Fei Chai Sang" - (Chu Chor Sang) - whom both Ng and Li had named as being the prime mover in the manufacturing syndicate.

47. On 17th September 1987 Li was taken to Cheung Sha Wan Police Station to attend an identification parade and on that parade he identified "Ah Mong", that is Liu Wai Kwong.

48. On 3rd November 1987 he identified "Ah Mau", that is Cheung Tse Pan.

49. Before these identifications he had told Inspector Tsang that he did not "want to do that" wishing to give evidence only against Chu. The Inspector told him that the police could not just arrest Chu alone they also had to deal with the others. Li therefore went on with it.

50. Li gave evidence in Chu's trial in 1988. While Li says that he gave true and untutored evidence Chu was acquitted. A couple of days after this acquittal became known to Li the Inspector and the same constable visited him again in Prison. He and Ng, or as he called him "Ah Yan", were interviewed together. The constable was told to stay outside. Having discussed the acquittal of Chu, matters concerning Cheung Tse Pan were discussed. Cheung Tse Pan had already been on trial and in the course of that both Li and Ng had given evidence. That trial had been aborted, the jury discharged and a re-trial had been ordered.

51. The Inspector said that the role of Cheung Tse Pan was less than that of either Li or Ng and suggested that they would not want to "do him". Even if Cheung Tse Pan were convicted, the Inspector said, it would not do Li much good by way of commutation of sentence. The Inspector went on that Cheung Tse Pan "might be negotiable" by which Li understood him to mean Cheung Tse Pan might pay to avoid their testifying further against him. Li also felt that, if they fell in with the suggestion, the Inspector might obtain some form of advantage for himself.

52. The Inspector then left and Li repeats that all along the Inspector knew that neither he nor Ng wished to testify against anybody other than Chu.

53. Li and Ng were brought to court to give evidence at the retrial of Cheung Tse Pan and before they did so they were visited by the Inspector in the basement of the Supreme Court. The Inspector was alone and seemed to be in a hurry. He told them that Cheung Tse Pan had given no reply to the "negotiable" point and that they should not bother about him and should give their evidence ''as it is". Li then said that he would not give evidence at all. The Inspector told him that if he did not want to give evidence he should tell that to the judge and that he should inform the judge that it was unfair to Cheung Tse Pan as he had played a less significant role.

54. When Li went into the witness box he did indicate this to the judge but, having been warned, he gave straight forward evidence. Hence the judge's comment that Li appeared a reluctant witness.

55. Li continues his statement by saying that, in early 1988 and after Cheung Tse Pan's conviction, the Inspector and the same constable came again to Shek Pik and interviewed both himself and  Ng. Again the constable was left outside and the Inspector saw them both alone. There was a discussion concerning Cheung Tse Pan's conviction and the Inspector intimated that, as Cheung Tse Pan was only "an extra" neither Li nor Ng should hold out much hope and that there was not much hope for them - this Li understood to mean that they should not expect much by way of reduction of sentence.

56. The Inspector then mentioned Liu Wai Kwong's case telling Li and Ng that he would let them know when the trial date had been fixed.

57. The next visit by the Inspector and the constable was in May 1988. The same routine was followed. He informed Li and Ng of the date of Liu Wai Kwong's trial and that both of them would be called to give evidence in the course of it. He suggested that he try to contact Liu Wai Kwong to see if he were "negotiable". He expressed the view that the chances of a conviction were slim and that their evidence would not be enough to achieve it. The Inspector also told Li and Ng that even if a conviction did result it would not get them much reduction in sentence. Li says that the Inspector then went on:

"Why not be realistic? Let me chat with Ah Mong (Liu Wai Kwong) for you to get some advantage. If you people agree, and with the money received, solve the difficulties for him. You people should know what to do."

 

58. Li still wished to testify only against Chu but, as he did not wish to "infuriate" the Inspector, he agreed to the course suggested by him. Ng also agreed. Li says Ng qualified his agreement by telling the Inspector he did not wish to change all his statements because if he did he would simply get into trouble. To this the Inspector replied that there was no need to change the statements, they should just tell it according to their statements. He would add something, which he did not specify, to those statements.

59. The Inspector then asked, if agreement were reached, to whom should the money be paid and Li replied that it should go to his mother but, after the Inspector had questioned this agreed that it should go to his younger brother. Ng asked that it go to his elder brother. A sum of $20,000 to $30,000 was mentioned.

60. The Inspector asked both Li and Ng to write out notes saying that someone owed them money. Li did this entering in the sum of $30,000. Ng also wrote as asked. The Inspector took both of the notes and left the room.

61. On 15th May Li's relatives visited him. His younger brother told him that on the previous evening someone had come to their home and said that $30,000 was being repaid to Li. As the younger brother knew nothing of this he refused to accept the money. It was arranged that the man was to come back again and the younger brother asked Li what it was all about. Li told him it was a repayment and that the money should be accepted.

62. In June 1988 Li's younger brother told him that the money had been paid.

63. In late June the Inspector and the constable paid yet another prison visit to Li and Ng. Again the same routine was followed. The Inspector asked if the money had been received to which both Li and Ng replied in the affirmative. The Inspector told them that Liu Wai Kwong's trial was set for the 11th of July and that, in examination in chief, they should follow their statements but that in cross-examination they should "help the defence a bit". He gave as an example evidence as to the size of the bag of drugs which was said to have been handed over to Li and whether it was or was not locked.

64. There was then a discussion concerning "Y.P. Hung" (Wong Chi Hung), "Ah Cheung" (Yau Cheung Sui) and "Tsui Lan" (Lam Tsui Lan, the cohabitant of Chu). Li had implicated all of these persons in the manufacturing syndicate. Li and Ng were asked if they were prepared to identify them. If they were not prepared to do this then those persons, who were then outside Hong Kong, could return and Chu would consider that the slate had been wiped clean as between himself and Li and Ng. If Li and Ng continued to stir things up then Chu would send someone to "buy them up". The Inspector offered to help Li and Ng fix it up. Li was afraid, because Chu was at liberty, that Chu would "buy him up". In any event Li still did not wish to testify against any of the others. He agreed that he would not identify. He says Ng also agreed.

65. In early July, before the trial of Liu Wai Kwong, both Li and Ng were brought to Cheung Sha Wan Police Station to attend identification parades. Li saw and recognised both "Y.P. Hung" and "Tsui Lan" on separate parades. He did not identify either. Ng had been brought to a parade containing only "Y.P. Hung". He also did not identify.

66. On 12th July, both Li and Ng were taken to the Supreme Court for the purpose of giving evidence at the trial of Liu Wai Kwong. There the Inspector spoke to both of them about the evidence they would give. He told them to give evidence according to their statements and not to mention that the travelling bag was locked.

67. Li says that, in the evidence he did give, he told the truth and told no lies though he did make a genuine mistake as to the actual occasion when he had taken a bag of drugs from Liu Wai Kwong.

68. At the end of July the Inspector saw both Li and Ng yet again. He asked them if they knew the result of Liu Wai Kwong's trial to which they replied they did not but that they thought he had probably got off. The Inspector then said to them "Do not know why the two of you have been damn lucky. He's convicted." When Li and Ng asked what the sentence was, and were told it was 12 years, they both expressed their sorrow that the sentence should have been so great. The Inspector told them that they should not worry as they had helped Liu Wai Kwong and that Chu was aware that neither of them had identified either "Y.P. Hung" or "Tsui Lan". Chu was pleased that they had been obedient. If they then went on and failed to identify "An Cheung" (Yau Cheung Sui) when asked he told them that "a few ten thousand dollars" would be given to them. Ng then told the Inspector that he wanted to repay the earlier $30,000 as he had not helped Liu Wai Kwong and went on that he would identify no one else for which he required no payment. Li was of the same mind and he told the Inspector that he also would not identify "An Cheung".

69. The Inspector told them not to talk to any other Narcotics Bureau officer who might come to see them and, in particular, that they should tell nothing of that which transpired between themselves and the Inspector.

70. In August 1988 Li - and Ng - having been brought to an identification parade which included "Ah Cheung" kept their promise and failed to identify him. No further payment was in fact made to Li.

71. On 21st September 1988 Li started to make statements concerning all the foregoing to officers of the Independent Commission Against Corruption. In the final paragraph of his statement of 28th March 1989 he corrected some of the matters which he had mentioned to the Independent Commission Officers. There are also before us the statements which Li made to the Independent Commission and our attention has been drawn to the acknowledged differences between them and the statement of 28th March 1989.

72. Ng Chi Wai's statement, also dated 28th March 1989, speaks as to his involvement in the drug manufacturing syndicate, his participation in the manufacturing of drugs and his dealings with Cheung Tse Pan and Liu Wai Kwong. His account, with minor variations, of the visits by the Inspector and the dealings with him follows that recounted by Li. Ng also said that at the trials of Cheung Tse Pan and Liu Wai Kwong he had told the truth except on one aspect which concerned Liu Wai Kwong. When he had been asked if he had seen with his own eyes Liu Wai Kwong handing over the drug bag to Li - whom he called "Ho Chai" - he said he only saw this in the rear view mirror of the car.

73. We have also before us statements dated 20th September 1988 given by Lee Yung Man - the younger brother at Li Ying Ho - to the ICAC which speaks to the eventual acceptance of the $30,000; and from Chan Yum Sun, the mother of Li Ying Ho on the same subjet.  There is one in similar terms from Ng Chi Fai, the elder brother of Ng Chi Wai. In addition we have had the benefit of seeing the committal statements of both Li and Ng and note the explanations for the late bringing of the fresh evidence before this court contained the solicitor's affirmations.

74. We agreed at the outset of this hearing to look at all the fresh evidence de bene esse. We are prepared to admit it. It was unknown to either the defence team or the Crown's representatives in the trials of Cheung Tse Pan and Liu Wai Kwong and could not, from its very nature, have been discovered prior to the dates of their convictions. Without seeking to impinge on any trial which may concern Inspector Tsang, we would accept those statements as being, for the purpose of these proceedings, credible. The evidence would have been admissible in the trials themselves. We acknowledge that neither of the applicants has seen fit to place before us any affirmation relating to the state of their personal knowledge of any, or all, of these events either before, during or after their trials. We equally bear in mind that Cheung Tse Pan was tried twice, the first trial having commenced on 11th January 1988 but we have no doubt at all that neither the Crown nor the applicant's legal advisors had the slightest knowledge of what had been going on.

75. There was undoubtedly an abundance of material known at trial to provide the defence with ammunition for use in cross-examination of the two accomplices. The additional material of which we are now aware would have added further bullets - or indeed shells - for firing from the guns of counsel. It discloses on its face an appalling situation. That of one whose duty it was to investigate, and who was at the heart of the investigations concerning the criminal actions of Li and Ng, committing acts which were most reprehensible and which go to attack the very roots of the administration of justice and in which Li and Ng were both fully involved.

76. But all that having been said, what is the duty of this court where the fresh evidence is, as it is here, peripheral for it goes solely to the credibility of accomplice witnesses and not directly to the basic evidence which led to the convictions of Cheung Tse Pan and Liu Wai Kwong. While the two accomplices now speak to a background involving themselves with the Inspector in charge of the investigation, they equally say, over and above all that which took place, that they spoke the truth in the course of the evidence the gave against both Cheung Tse Pan and Liu Wai Kwong.

77. This court, of its nature, cannot act as a disciplinary body as regards the Royal Hong Kong Police Force. It is not for us to pass judgment on the conduct of members of that force save in so far as their conduct could be considered as vitiating the requirements of a fair trial something to which every man who appears in these courts is entitled. If this court is satisfied that a trial has been rendered unfair in a material manner then it most likely  will go on to find that that trial was unsatisfactory. There is, in our judgment, no difference as between the two words appearing in the phrase used in s. 83(1)(a) of the Criminal Procedure Ordinance "that under all the circumstances of the case it [the conviction] is unsafe or unsatisfactory". If it is one then it is the other.

78. In R. v. Li Shuet Fong C.A. 249/1986 (unreported) this court considered generally the principles to be applied in an application under s.83V. It considered Parkes (1962) 46 Cr.App.R. 29: [1961] 1 WLR 1484; Beresford (1972) 56 Cr.App.R. 143, from which it gained particular assistance and it relied on Stafford and Luvaglio (1969) 53 Cr.App.R. 1 (No.1). The court stated in its judgment, of which I was the author, at p.14:

"Were we to be satisfied that the evidence which we have heard comes within the amblt of that definition ['evidence likely to be credible' as meaning evidence well capable of belief: per Stafford and Luvaglio] we are then left with three options: (1) to hold the evidence as true, admit it and consider it conclusive of the appeal; or (2) to consider the evidence capable of being accepted by a jury though we ourselves are not satisfied as to its truth and order a retrial; or (3) to positively disbelieve it thereby finding it not only incredible but not capable of belief, reject the application and go on to the second ground of appeal (Flower [1966] 1 QB 146); and, overall, to consider whether the conviction is safe and satisfactory."

79. In so saying we did not refer, nor were we apparently referred to, Stafford and Luvaglio v. DPP [1974] AC 878 (HL) (No.2). That resulted from a Home Secretary's reference in 1972 to the Court of Appeal which dismissed this second appeal holding that despite the additional evidence the inference of guilt was irresistible and that the verdict of the jury could not possibly be described as unsafe or unsatisfactory.

80. The matter then went to the House of Lords which also dismissed the appeals and held, inter alia:

"(2) That where fresh evidence was called on an appeal against conviction there was no rule of law that in every case the appellate court must decide what in their view the jury might or would have done if it had heard the fresh evidence; for although such an approach was correct it meant only that the court thought that the fresh evidence might have led to a different result and that consequently that the verdict was unsafe or unsatisfactory."

81. The decision of their Lordships House established that the sole question to be decided was whether the verdict was unsafe or unsatisfactory and no different question had to be decided when the court allows fresh evidence to be called.

82. It is now clear that when Li Shuet Fong held as in (2) as indicated above, it was in error for Stafford (No.2) made it clear, as was accepted in R. v Chow Wai Kong, C.A. 64/1990 (unreported) at page 12 that:

"The position clearly is that the court does not have to determine whether evidence is to be believed when deciding whether to admit fresh evidence under s.83V(1) or (2)".

83. Lord Dilhorne in Stafford (No.2) at p.893 E-G, rejected the proposition that, although the court comes to the conclusion that the fresh evidence raised no reasonable doubt as to the guilt of the accused, it should nevertheless quash the convictions if it thought that a reasonable jury might reasonably take a different view and said:

"I do not agree. It would, in my opinion, be wrong for the court to say: "In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction" for Parliament has, in terms, said that the court should only quash conviction if, there being no error of law or material irregularity at the trial,  'they think' the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them the power to quash a verdict if they think a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt."

84. In recent times there has, in England, been some public discussion of the concept underlying that final sentence, of Lord Dilhorne.

85. Lord Diplock at p.906 F-G agreed that the statute - Criminal Appeal Act 1968 - under which appeals are brought similar in terms of our s.83N Criminal Procedure Ordinance - requires each member of the court to ask himself the question:

"Under all the circumstances of the case as it now stands in the light of the additional evidence, am I satisfied that the verdict of the jury was safe and satisfactory?"

 

86. Or, as Lord Lane put it in Callaghan (1989) 88 Cr.App.R. 40 at p.47 - also adopted in Chow Wai Kong :

"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before the court that we have heard, the convictions were safe and satisfactory.   If so the convictions must stand. If not the convictions must be quashed."

 

87. In Callaghan the court dismissed the appeal but certified a point of law for the consideration of the House of Lords. The question was in these terms:

"Whether on a proper construction of section 2(1) of the Criminal Appeal Act 1968, in cases where fresh evidence has been admitted under section 23 of the Act [our s.83V] a conviction can be unsafe or unsatisfactory only if the Court of Appeal concludes that it has a reasonable doubt about guilt in the light of the evidence?"

but, as is usual, refused leave to appeal.

88. In Byrne (1989) 88 Crim.App.R. 33 the judgment in which was delivered on 18th May 1988 - Callaghan was delivered on 28th January 1988 - the English Court of Appeal at p.37 noted that, while the House of Lords had refused leave, the certified point of law was nevertheless of importance for, as Neill, L.J. in delivering the judgment of the court in Byrne said at p.37:

"...it underlines that as the law stands at present the test is whether the Court of Appeal has a reasonable doubt about the guilt of the appellant and not whether the jury might have reached a different conclusion had they heard the new evidence."

89. While Chow Wai Kong was primarily concerned with the receipt of and the weight to be placed on fresh evidence - and not, as nere, the course to be taken once admitted and thought capable of belief - it, with respect, provides useful guidance in the consideration of the provisions of s.83V and of the consequences which arise from its implementation.

90. For myself hasten to add that nothing that we have said is to be taken as suggesting that Li Shuet Fong was wrongly decided. There we expressed a "positive disbelief" in the fresh evidence and refused the application to have it admitted holding it not to be receivable under the provisions of s.83V.

91. Here, unlike most of the other authorities, the fresh evidence, as we have indicated, goes solely to the credibility of witnesses. And there lies our dilemma.

92. It discloses a thoroughly unsatisfactory state of affairs. While all the obvious warts on the persons of Li  and Ng were known to the jury nevertheless the manipulations and machinations of the Inspector concerning the two men and their evidence, and the view they themselves took of that which was going on and the payments of money to them, were not.

93. Mr. Plowman, in effect, has posed the question: would that fresh evidence have affected the jury's view as to their credibility - and their view on that aspect was vital? To that we do not feel that we can, or should, give an answer. The question which has to be answered is: Are we satisfied in the light of all the circumstances of which this court is now aware, and bearing in mind the necessity for a fair trial, that the verdicts in these two trials were safe and satisfactory?

94. We cannot believe that the English courts, when the fresh evidence is such as it is here, would confine themselves to the sole question of a reasonable doubt about the guilt of an appellant and exclude from their consideration of the safe and satisfactory nature of a conviction the aspects of unfairness and the proper administration of justice. Guilt in the context must, in our judgment, mean guilt properly established.

95. In the light of that which we now know of the circumstances of this case, illuminated by the fresh evidence with its effect upon the administration of justice and the overall concept of fairness, we are constrained to hold that the trials were unsafe and unsatisfactory.

96. In so holding we have particularly in mind that Cheung Tse Pan was acquitted by the jury on two counts where the only evidence was that of Li; that there was no corroboration in either trial; that there was a deliberate failure by both Li and Ng to identify others involved in drug manufacturing; that one of the trial judges had suggested to his jury that the cross-examination of Li might lead them to entertain "certain doubt" about his evidence; that there were oddities and inconsistencies in the evidence given by Ng; and that there were material inconsistencies as between Li and Ng in the evidence they gave.

97. Being of that view we would grant leave to Liu Wai Kwong, treat the hearing of his application as the hearing of the appeal, allow his appeal, quash the conviction and set aside the sentence.  We would allow the appeal of Cheung Tse Pan, quash his conviction and set aside his sentence.

98. At the conclusion of the hearing now regrettably - and the delay is entirely mine - some little time ago Mr. Abbott had indicated that if we were minded to quash the convictions he would seek a re-trial. Mr. Plowman then addressed us upon this issue. We fully appreciate that Cheung Tse Pan has twice appeared for trial before - once when it was aborted and once when it led to the conviction now quashed. We fully appreciate that the evidence, and the sole evidence, comes from uncorroborated accomplice witnesses. It is nevertheless of some strength. These are grave and serious offences even if somewhat stale. It is necessary to consider not only the interests of the accused but also the public interest. Having given anxious consideration to Mr. Abbott's application we would grant it. We would therefore order that both Cheung Tse Pan and Liu Wai Kwong be re-tried upon fresh indictments relating, in the case of Cheung Tse Pan, to the counts in the indictment upon which the jury found him guilty; similarly with Liu Wai Kwong.