R. v. FONG YUK WA

THE COURT OF APPEAL

1991, No. 473
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. The applicant, Fong Yuk Wa, appeared for trial before Mr. K.H. Woo, Q.C. (as he then was) sitting as a Deputy Judge of the High Court and a jury, for trial upon an indictment alleging conspiracy to traffic in dangerous drugs. His fellow co-accused Fong Hung Tak - who was no relation - was the 1st defendant - "D1" - and the applicant was the 2nd defendant - "D2". The particulars alleged that they, between 2nd February 1991 and 9th February 1991, in Hong Kong conspired together and with Tam Tak Man, Cheung Sau Fong and person or persons unknown to traffic in a dangerous drug, namely salts of esters of morphine.

2. The jury convicted the applicant and he was sentenced to a period of 17 years' imprisonment. His co-defendant was also found guilty and sentenced to 12 years imprisonment. His co-defendant abandoned his application for leave to appeal against conviction on 27th January 1993: the applicant now seeks leave to appeal both against his conviction and, if necessary, his sentence.

3. In the course of the trial both Tam Tak Man and Cheung Sau Fong gave evidence. They were, and properly, treated as accomplices and full directions were given in respect of them. No complaint was made of those directions.

4. Cheung was an 18-year old female described as a "call-girl". She came to know Tam Tak Man, owing him eventually a large sum of money in the region of $100,000. The two became sworn father and daughter. Tam introduced Cheung to D1 and they became close friends.

5. We would interpolate here that both Tam and Cheung pleaded guilty to the original indictment which contained their names as co-defendants and received sentences respectively of 5 years and 3½ years imprisonment. These sentences were passed subsequent to the trial of D1 and D2.

6. On 2nd February 1991 D1 asked Tam if he knew of anybody who was willing to go for "cheuk tau" that is to make money for his friend. Tam said he did not. The applicant then joined them and D1 introduced him to Tam. The applicant asked Tam if there was anybody who was willing to bring in contraband for a reward of about $30,000. At the suggestion of D1 Tam got Cheung and asked her if she were willing to bring in contraband to which she then replied "No". The applicant was not present at this point but D1 took Cheung to see him. They met at a cafe near the Washington Theatre. At this point D1 left.

7. After this meeting the applicant, and a person named as "Ah Wei", went to the San Diego Cafe with Cheung. There the applicant told Cheung that she should bring in some powder from Thailand to Hong Kong. They spent altogether about two hours in that cafe. Then the applicant suggested to Cheung that she go with Ah Wei "for fun". Cheung did go off to a karaoke bar with Ah Wei.

8. On the next morning Ah Wei went to Kai Tak with Cheung and bought her an air ticket to Thailand. He gave her the name of a contact in Bangkok. It seems that initially the plan was for Cheung to go to Bangkok then to Europe and then back to Hong Kong but this altered after she arrived in Bangkok.

9. Cheung arrived there and met her contact, named Yeung Hung, who on 7th or 8th February brought a bag to her room and told her that there were drugs inside. On 8th February Yeung Hung took her to the airport and while they were on their way a telephone call was made through Yeung's mobile telephone call. This call was for Cheung. She was told by the caller that on arrival at Hong Kong she was to go to the Hung Hom Railway Station and meet the applicant.

10. On arrival at Kai Tak she was arrested and the bag seized. The drugs in it consisted of 4,217.56 grammes of a mixture containing 3,851.41 grammes of salts of esters of morphine. Then, under the control of customs officers, she went to Hung Hom. At Hung Hom Cheung met D1 who was talking to another person. D1 was arrested by the customs officers. Cheung was taken to an unmarked private car used by the customs officers and asked to watch people emerging from the subway leading to the railway station. She was asked if she knew any of them and she picked out three. One of those was Tam, another was the applicant, whom she called "Wei Wei", and the third was a person "Ah Nam" of whom we hear no more. The car then made two laps around the area of the station and pulled up again near it. The three persons whom she had named to the customs officers were under arrest and each was brought up to the car individually for her to see. She identified all three. It is quite possible that none of those three were aware that they were being identified and they were certainly not told that that was the purpose of their being brought to the car.

11. It was Tam's evidence, and generally he supported that which Cheung had said, that D1 had told him that Cheung would be returning on the evening of 8th February. They had then looked for her on that evening but could not find her but eventually ended up at the Hung Hom Railway Station. Present there were the applicant, a man Lam Nam and Ah Nam.

12. There were admitted facts that at about 9.30 p.m. on 8th February customs officer no.8833 Wong Wai Kei had gone to Cheung's residence. There, between 11.55 p.m. on the 8th and 12.10 a.m. on the 9th February he, posing as the younger brother of Cheung received four telephone calls enquiring of her whereabouts. Wong told two of the callers - one was a female, one was a male - that Cheung had gone to "Hung Hom".

13. At page 7 of the summing up the judge directed the jury on the three main issues which lay for their consideration. The first: was there a conspiracy; the second: if there was who were members of or parties to the conspiracy; the third: what was the object of the conspiracy and was it the same conspiracy as shown in the indictment. He then went on to set out the main evidence given by Tam and Cheung. Having done so, he referred the jury to additional evidence which was capable of showing the nature, character, scope and object of the conspiracy. Neither D1 nor the applicant gave evidence at trial.

14. Generally, and we will come to the grounds in a moment, no issue is taken with the directions in law or on fact provided for the jury by the trial judge. It is not suggested that a properly directed jury would have been wrong to convict on the evidence which was placed before them. It is however the submission of Mr. McCoy, who did not appear below, that this was not a properly directed jury in respect of three matters which are succinctly set out in his grounds. In the course of the hearing, the third ground was no longer pursued. The first ground reads:

"1. The evidence of identification of the Applicant was unsafe and unreliable, as the learned Judge failed, in a case turning an (sic) identification, to direct the jury as to the inherent weaknesses and damages (sic) of an identification made in circumstances other than in a properly conducted identification parade i.e. by confrontation.

15. The second ground reads:

"2. The learned Judge misdirected the jury as to the admissibility of the cautioned statements of the 1st accused against the Applicant, made after the arrest of the 1st accused. The whole of his direction was confusing and contradictory in this regard."

16. Mr. McCoy apologised to the court for the imperfections in his grounds which were due to his being away from Hong Kong until the eve of the hearing.

17. Dealing if we may with the second ground first. Subsequent to his arrest D1 had made a cautioned statement. This statement was not contested in respect of its voluntary nature. It was, a somewhat unusual course, read into evidence in the course of the trial. That statement appears at page 380 of the bundle. It was mainly exculpatory. In it he accepted (page 382) that he had rung Cheung's home on 8th February and was told that she had gone to Hung Hom Railway Station. He then went there to look for her. At its conclusion he was shown three identity cards and of the three persons - one was that of the applicant - he identified only Tam Tak Man.

18. The direction complained of appears at page 5, line 15 and continues to page 6 line 10 of the summing up:

" The acts and declarations, by that I mean statements, also of any of the conspirators in furtherance of the common design or common enterprise, that means the matter agreed to be done, may be evidence against any other conspirator. However, before the evidence given of the acts and declarations of one alleged conspirator can be treated as evidence against the other alleged conspirators, the existence of the conspiracy must be proved and also the fact that the parties were members to the same conspiracy and that the act in question was done or the declaration made in furtherance of the common design.

Let me explain further. The confession or admission of one defendant out of court and not in the presence of another defendant, though implicating the other defendant, is not evidence against that other defendant. Giving you an example, the admissions of the 1st defendant are not evidence against the 2nd defendant or vice versa. Further, the admissions of a witness who has given evidence of his own participation in a crime is not evidence against either of the defendants except where the evidence implicates a defendant for that defendant's own participation in the crime.

But if a conspiracy is established beyond reasonable doubt, then the acts and declarations made by a conspirator in furtherance of the conspiracy are admissible as evidence against all conspirators. So the acts and declarations of CHEUNG and TAM, the 1st defendant, the 2nd defendant and other persons in Hong Kong or in Thailand in furtherance of the conspiracy can only be admissible against the 1st and 2nd defendants if you are satisfied beyond a reasonable doubt (a) that there was a conspiracy to bring dangerous drugs from Thailand into Hong Kong and (b) that CHEUNG, TAM, the 1st defendant, the 2nd defendant and other persons in Hong Kong and Thailand were members of the same conspiracy. Further, if you are satisfied with these two aspects, that even the admission of the 1st defendant in his statement, that is Exhibit P24, that he made a telephone call to CHEUNG's home in the evening of 8th February, if you are satisfied that was in furtherance of the conspiracy, will be admissible against all conspirators, including the 2nd defendant."

19. It is Mr. McCoy's submission that that direction, read as a whole, is confusing and contradictory in that the judge correctly informed the jury that the confession or admission of one defendant out of court and not in the presence of another defendant, though implicating hat other defendant, was not evidence against that other defendant. But, subsequently, he told the jury that, if they were satisfied there was a conspiracy to bring in dangerous drugs from Thailand and that Cheung, Tam, D1, the applicant and others in Hong Kong and Thailand were members of it, then even the admission by D1 in his statement that he had made telephone call to Cheung's home at the evening of 8th February, if they were further satisfied that this was in furtherance of the conspiracy, would be admissible against all the conspirators including the applicant.

20. We know that telephone calls were made to Cheung's home seeking her whereabouts. We know that two of the callers at least were informed that she had gone to Hung Hom. That was clearly evidence within the confines of the conspiracy. We know that D1 went to Hung Hom Railway Station. We know that the applicant went to the same place. We know that Cheung received instructions while on her way to the airport in Bangkok to go there.

21. If there be error in that direction, then it is one which would have had little, if any, effect upon the applicant. We do not consider that this is in any way sufficient to vitiate this conviction.

22. Dealing now with ground 1 - identification.

23. The identification by Cheung of the applicant at Hung Hom Railway Station was not in the nature of a fleeting glimpse identification. It was much more a recognition. In the course of cross-examination it was put to Cheung that she had had very little sleep before meeting the applicant at the cafe near the Washington Cinema and at the San Diego Cafe. She agreed. Therefore it was suggested she was in no fit state fully to appreciate what was going on - or indeed to recognise any of those who were present at those meetings. This she denied - and there was no evidence to the contrary.

24. The circumstances of the arrest of the applicant at Hung Hom were such that any subsequent identification parade could well have been the subject of criticism - the prosecution gilding the lily. There was first recognition, despite the submissions of Mr. McCoy to the contrary; then the later positive identification after the two laps round the station area. This was said to be necessary by the customs officers in evidence to avoid arresting innocent people. Mr. McCoy stigmatised this as not being a proper confrontation and as being arranged simply to bolster the Crown's case.

25. Had Cheung not been in the applicant's company for an appreciable period of time prior to this exercise at Hung Hom we might well have thought there to be some force in Mr. McCoy's submissions. The trial judge gave a very full and very detailed Turnbull direction including the advice to the jury that mistaken identification can occur. We accept that the applicant's case, as put in the course of the cross-examination of the prosecution witnesses, was that he had not met Tam until 8th February itself; that he had merely gone to Hung Hom Railway Station when Tam asked him to go there to pick up a girl; that he was not the "Ah Wah" - later to become "Wei Wei" at the Hung Hom Railway Station. Essentially it was mistaken identification and innocent involvement coupled with an attack upon Cheung's credibility.

26. Bearing all this in mind we had no doubt that the jury were entitled, on the whole of the evidence properly before them, to find the identification of the applicant a convincing one. We do not find this conviction to be either unsafe or unsatisfactory.

27. At the conclusion of the hearing on 5th February 1993 we dismissed the application in respect of conviction stating that we would give our reasons later and proceeded to consider sentence.

Sentence

28. In the course of his submissions on sentence, Mr. McCoy referred us to what might be called the "cigarette packet" mitigation. This was the suggestion that all that the applicant knew as to the arrangements for Cheung was that she was to bring back to Hong Kong one cigarette packet full of drugs. Further, that the applicant was not the prime mover as the judge thought him to be. Mr. McCoy sought an adjournment, which was granted to him, to make application under section 83V of the Criminal Procedure Ordinance, Cap. 221 to call further evidence: the evidence of the applicant himself - which he did not seek to give at trial - as to his knowledge of the quantity of drugs that might be brought to Hong Kong. This because it is clear that the trial judge had in mind, in imposing the sentence of 17 years, the general guidelines in R. v. Lau Tak Ming [1990] 2 HKLR 370 as to the sentence attracted by the quantities of dangerous drugs involved here.

29. On the resumption of the hearing on 11th February the matter was again adjourned as no papers had been placed before the court relating to the S.83V application.

30. That adjourned hearing took place on 12th May. We had before us a Notice of Motion brought under the provisions of s.83V(1) and (2) for leave to be granted to the applicant to himself give evidence.

31. At the conclusion of the hearing we refused to entertain the prayers in the Notice of Motion and refused leave to appeal.

32. The Notice of Motion is grounded by an affirmation by the applicant and it is suggested that, its contents being likely to be credible and would have been admissible at trial, the interests of justice require that we hear the applicant's evidence. Further that the explanation it contains for his failing to give evidence at trial is a reasonable explanation.

33. The Crown - Mr. Saw - opposed.

34. The affirmation, which we have considered de bene esse, starts by making reference to the personal circumstances of the applicant and in its paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 recites matters relevant to the commission of the offence - all of which could have been, but were not, advanced in evidence at trial.

35. In essence the applicant seeks to suggest that the arrangement as far as he was aware between the conspirators was that the courier would bring to Hong Kong a quantity of dangerous drugs which would be contained in a container the size of a cigarette packet. He did not expect the courier - Cheung Sau Fong - to bring approximately 4 kilos of drug. When he found she had this shocked him as he would not have become involved - being aware of lengthy prison sentences imposed on those involved in such a quantity. This was his first involvement in drug offences, His involvement in this enterprise was that of a go between helping to recruit a courier - Miss Cheung - to bring in a small amount of drugs for a quick profit of about $70,000 of which he himself would receive about $15,000.

36. He accepts he never brought any of this to the notice of his legal advisers at trial. He did not seek to give evidence of this - either at the trial proper or in the course of the sentencing process.

37. The final paragraphs of his affirmation reads:

"In conclusion, I respectfully seek this Honourable Court's leave to give evidence on the matter disclosed in this my affirmation knowing that I may be subject to cross-examination. I respectfully submit that my evidence is likely to be credible and would have been relevant and admissible on the matter of the length of sentence that the learned Judge considered appropriate. I invite this Honourable Court to accept that the reasons I give about for not adducing the evidence in the earlier proceedings are reasonable in all the circumstances."

38. Mr. McCoy, in his submissions, accepts that the applicant gave no evidence at the trial proper. The basic evidence which concerned him was that he recruited the courier Miss Cheung to bring in dangerous drugs from Thailand; that he arranged for her to be taken out for a meal by another conspirator; that he assisted in the arrangements of her passage to Bangkok; that he eventually met her on her return with the drugs. In mitigation (page 69) counsel then appearing for the applicant urged the trial judge to treat the applicant merely as a member of the conspiracy. He said he was not a kingpin and was not the leader of the conspiracy. The judge then queried counsel by asking "But isn't he the prime mover?" to which counsel replied "No, my Lord, he is not and it would be very dangerous, very dangerous indeed to suggest that he was." Counsel went on to suggest that it was unknown what particular piece of evidence the jury had accepted and what they had not. Mr. McCoy emphasised that the quantity of the drugs involved was not mentioned in the particulars of the count.

39. These submissions by counsel in the course of the sentencing process were attempts to interpret the jury's verdict and to comment upon the evidence the jury had heard. This line of submission continued in relation to the matter of the cigarette package. He suggested that the evidence showed that there was a change of direction by those who were involved in Bangkok in that the courier had, first, thought she would be going on to Europe and then that she was presented with the quantity of drugs which she eventually brought back to Hong Kong. There was also evidence that it was said, at least to her, - Mr. Saw submits that this is not at all surprising - that she would only be bringing back a cigarette package. All these matters were dealt with by the trial judge when he gave his reasons for coming to the conclusion that a sentence of 17 years was appropriate. He referred to the arguments presented for both Fong Yuk Wa - the applicant - and Fong Hung Tat that the conspiracy in the indictment did not specify the amount of drugs; that the evidence was to the effect that the conspiracy related to drugs of a cigarette packet size and went on at page 90:

" Although, according to the evidence, FONG Yuk-wa only mentioned to the three other accused a cigarette packet size, and TAM Tak-man only mentioned the same quantity to CHEUNG Sau-fong, I am of the view that all this would only affect the knowledge and the extent of involvement of the three other accused.

Regarding FONG Yuk-wa, this knowledge of only a much smaller quantity is not open because it is most unlikely that the exporter of the drugs from Bangkok would supply FONG Yuk-wa with a larger quantity than that agreed.

From the evidence in this case, FONG Yuk-wa was the instigator because it was he who got FONG Hung-tak and TAM Tak-man to get CHEUNG Sau-fong to bring in the drugs for him. There is no evidence to show that FONG Yuk-wa was not the prime mover amongst the four accused.

The evidence adduced by the Crown has not shown that there was somebody behind him more responsible or culpable for the crime. He has not given any evidence himself to the effect of lessening the part played by him in the crime."

40. Mr. McCoy suggests that there should have been a Newton hearing and that the trial judge should have made it clear to counsel mitigating on behalf of the applicant that he was not accepting the mitigation put before him and should have given counsel the opportunity to consider whether he would or would not call evidence.

41. But the position was that the applicant maintained throughout these proceedings - until it came to the point of this court considering the quantum of sentence - that he was not guilty of the offence. It was never suggested by counsel in the court below that the applicant was accepting the verdict of the jury and wished, having accepted it, to put forward the cigarette package mitigation. His homemade grounds proclaimed his innocence and he contested the conviction before this court.

42. We must take it that counsel in the court below was acting according to his instructions.

43. A conspirator who conspires to bring in dangerous drugs to this territory must, unless there be positive evidence to the contrary, accept the consequences of that conspiracy, that is the consequences of his agreement. The consequences here amounted to the importation of close to 4 kilos. of dangerous drugs.

44. We do not consider it to have been incumbent upon the trial judge to hold a Newton inquiry. Counsel was not introducing new facts. We are satisfied that this was not a case where it was necessary to inform counsel that he did not accept counsel's interpretation of the evidence already given. It was a matter for the trial judge to make up his own mind, having heard the whole of that evidence himself, what view he took of it and the evidence fully justified the view he took. We appreciate that in a conspiracy charge the jury is not asked to specify in its verdict what portions of the evidence it did or it did not accept. But that does not alter the situation in this case which concerned a gloss on the evidence and not the introduction of further facts - bearing in mind that if there are two possible interpretations open then the one most favourable to the accused should be drawn.

45. In all the circumstances here, we did not consider that the interests of justice necessitated this court's hearing the applicant give evidence which he deliberately saw fit not to give at trial and evidence which ran contra to his proclamation of innocence. We therefore refused to entertain the Notice of Motion.

46. Mr. McCoy, and quite properly, once that view had been taken by the court, did not seek to suggest that the sentence of 17 years imprisonment was of itself an excessive sentence. We therefore, having refused to entertain the Notice of Motion, dismissed the appeal.