THE QUEEN v. YEUNG SUN WAH AND ANOTHER

IN THE COURT OF APPEAL

1987, No. 37
(Criminal)

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Reasons for Judgment delivered : 20th May 1987

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J U D G M E N T

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Fuad, J.A. (delivering the judgment of the Court):

1. On 7 May we dismissed the applications of Yeung Sun Wah (D.2) and Ko King On (D.3) for leave to appeal against their convictions in the High Court on 7 January this year (Hopkinson J. and a jury) and we now give our reasons for our decision.

2. The Applicants were arraigned, with, two other men, Lau Shek Man (D.I) and Ma Ming Cho (D.4) on an indictment containing five counts:

(a) Count 1: D. 1, D. 2 and D. 3  were charged with conspiracy to accept advantages contrary to common law and S.4(2)(a) of the Prevention of Bribery Ordinance. D.l pleaded guilty D.2 was convicted on the unanimous verdict of the jury. D.3 was acquitted. D.I and D.2 were each sentenced to 2 years' imprisonment;

(b) Count 2:  D.4 was charged with conspiracy to offer advantages contrary to common law and s.4(1)(a) of the Prevention of bribery Ordinance. He pleaded guilty and was sentenced to 2^1/2 years' imprisonment;

(c) Count 3: D.l, D.2 and D.3 were charged with conspiracy to pervert the course of public justice contrary to common law. D.l pleaded guilty. D.2 and D.3 were convicted on unanimous verdicts. D.1 was sentenced to 2 years' imprisonment. D.2 also received a sentence of 2 years' imprisonment and D.3 a sentence of 21 months' imprisonment;

(d) Court 4: D.2 and D.4 were charged with conspiracy to procure girls under 21 to have unlawful sexual intercourse contrary to common law. D.2 was acquitted. D.4 pleaded guilty and was sentenced to 2 ^1/2 years' imprisonment;

(e) Count 5: D.3 and D.4 were charged with conspiracy to operate a gambling establishment contrary to common law and s.5 of the gambling Ordinance. D.3 was convicted on a majority verdict of 6:1 and was sentenced to 21 months' imprisonment. D.4 pleaded guilty and received a sentence of 2^1/2 years' imprisonment.

The sentences were all ordered to run concurrently.

3. D.2 sought leave to appeal against his convictions on Counts 1 and 3, and D.3 against his convictions on Counts 3 and 5.

4. The principal witnesses for the prosecution can be said to have been Lau Shek Man (D. I) and two undercover I.C.A.C. agents. According to the evidence led against the applicants, the I.C.A.C. became aware, sometime in May 1985, of a close and apparently unlawful relationship between the four men charged. D.1, D.2 and D.3 were police sergeants stationed at various times at Yaumatei Police Station. When the suspicions of the I.C.A.C. were aroused an elaborate, operation was mounted to find out what was going on. The Defendants were placed under surveillance, meetings between them were tape-recorded and filmed on video recorders, telephone conversations were taped and recorded.

5. Moreover, to obtain further evidence, I.C.A.C. officer were ordered to take part in illegal gambling while the two undercover agents were instructed to try to infiltrate the activities of Ma Ming Cho (D.4). They succeeded to the extent that one agent actually became the partner of D.4 in one of his clubs (the Hoi Wong Recreation Club) while the other agent contrived to be appointed the day-time manager of that Club. The evidence showed that this Club was in reality a vice establishment.

6. It came to light that D.4 had been operating illegal gambling establishments in a number of places from sometime in 1983 onwards. D.l told the jury that when, during 1983 and 1984, he was a member of the Anti Gambling Special Duty Squad, and D.3 was a member of the Anti-vice Special Duty Squad, he would tip off D.4 when and where police raids were planned so that he could take appropriate action in relation to his gambling activities, and so that he could see to it that no under age girls were found working at his clubs.

7. D. I would obtain the necessary information from his police colleagues and pass it on. There was evidence that in late 1983 D.4 had been introduced to D.l by D.3.  D.3 offered his assistance in these arrangements and used to receive a monthly sum for his part in the affair. D.I would be given a lesser amount per month, plus tips from the operation of D.4's clubs. Other police officers, who were not before the Court received payments for their assistance o D.4 at a fixed rate for each operational night.

8. When D.4 re-started his illegal gambling activities in March 1985, after a break, the evidence was that D.3 and, officers working with, him, acted as "security guards” outside D.4’s premises and the arrangements for warnings continued; those involved received payment from D.4 through D.l at fixed rates. On one occasion, D.3 handed over a large sum of money to a member of D.4's staff, which, the prosecution said, indicated that D.3 was actively engaged with D.4 in operating an illegal gambling establishment during May and June of 1985.

9. There was evidence from one of the I.C.A.C undercover agents that on an occasion in June when he, D.3 and D.4 (with his wife) were in a, flat, D.3 said that flat was conveniently placed for use as a gambling establishment provided suitable "protection” could be arranged, and D.3 spoke of the necessity for bribing an expatriate police officer.

10. And on 4 September, what the judge called a "damming" telephone conversation was recorded when D.3 spoke to D.4 about acting as an overseer and receiving payment and promising to "page" D.4 whenever a police operation was planned.

11. When giving evidence in his defence before the jury, D.3 denied all the allegations against him. He said that he had suspected that D.4 was running illegal gambling and vice establishments, and so his activities were designed to uncover further evidence against D.4 before he could report the matter to his superior officer. He had promised to give D.4 advance information about police raids as part of his plan, but he had never in fact passed on such information.

12. He denied taking the $500 which one of the I.C.A.C. undercover agents said he gave him on 4 August 1985.

13. In respect of the offences charged against him in Count 5, he said that while he was, indeed, sitting in a car belonging to his brother during the night of 5 June, outside one of D.4's gambling establishments, he was merely waiting for D.4 as previously arranged, so that they could go out for "night snacks" together. He denied that he had been in the same car which was seen outside another of D.4's gambling establishments during the nights of 31 May and 1 June.

14. It was the case for the prosecution that D.2 had made arrangements with D.l. soon after he had been transferred to the Anti-vice Special Duty Squad in May 1985, that his team would not raid D.4's, Hoi Wong Club and would provide advance information of planned police activity to D.I which he would then pass on to D.4. A few months later, D.2 was passing on this information direct to D.4. Transcriptions of the telephone conversations show that D.2. at the end of. July 1985, was speaking direct to D.4 and demanding money for his services, threatening that he would be "shopped" if he did not pay up. During one telephone conversation, D.2 asked for $4.000 for himself from D.4. There was evidence that he received $500 from D.4 on one occasion.

15. In his defence, D.2 said that D.4 was simply a friend of his, whom he thought was in the “cleaning business”. He denied receiving any money for corrupt activities.  He had twice loaned D.4 $500.  As to the occasion when he was said to have received $500 from D.4, what had really happened was that D.4 was repaying one of these loans.

16. As regards the mention of "girls" in the transcripts of the telephone conversations, he said that he was referring to D.4's wife who was a hostess at the Hoi Wong Club. He had received information about under age girls from D.4 and his wife, so he could raid the club. As has been, earlier mentioned, in one of the taped telephone conversations, D'2 had demanded $4,000 from D.4. An I.C.A.C. observer gave evidence that she had seen him being given three $1,000 notes and some $500 notes. This D.2 denied.

17. It was submitted on behalf of the Applicants by Mr. Howard, (who did not represent them at the trial) that the verdicts were unsafe and unsatisfactory on three grounds. We take the first and second grounds together:

1. that, looked at as a whole; the summing up was confused and confusing and the jury were there by misled;

2. that the judge failed to explain the evidence adequately to the jury - in particular he had failed to adumbrate the prosecution case against the Applicants in a logical and comprehensible manner.

18. Mr. Howard read the whole 99 page summing up to us and then referred to a number of passages to illustrate his submissions.  We do not find it necessary to refer to them all.

19. Mr. Howard submitted that the judge's direction about the law of conspiracy was unnecessarily elaborate and that the example given by the judge (of the Gunpowder Plot) to illustrate the proposition that the crime of conspiracy is complete once there has been an agreement by two or more means, without the need to prove that anything beyond the agreement was done, was unhelpful and confusing.  The judge had sat with the jury from 28 November 1986 to 6 January 1987 (with a break for Christmas) when he began his summing up.  It was for him to decide, after observing the jury for so many days, what might and what might not be helpful to them by way of illustration. We are unable to agree that the judge’s direction on conspiracy, coupled with the further direction to which we later refer, can in any way be faulted.

20. Mr. Howard then complains about the passage in which the judge referred at some length to the law relating to indictments and duplicity.  This passage was prompted, it seems, by remarks made by Counsel then appearing for the Applicants in his address to the jury, suggesting that Count 1 was bad for duplicity. It appears that the judge had already ruled that Count 1 was not defective on this score and it is surprising that Counsel felt it appropriate to raise the matter again, and in his final address. The judge had, in the circumstances, to say something about it. It would have been better, perhaps, if the judge had stopped Counsel when he began to speak about duplicity, or since he did not, to have simply told the jury that the matter, which was not for them; had already been decided, but we do not think that this part of the summing up could possibly have confused the jury.

21. While we agree with Mr. Howard that there was no need for the judge to have directed 'the jury, that unlike the position in the U. S. A., the defence of entrapment was not available to the Defendants - such a defence had not been raised or mentioned - we cannot say that this superfluous direction was likely to have caused the jury any difficulty.

22. Mr. Howard submitted that the judge should not merely have repeated his direction on the law of conspiracy at the end of his summing up without more. What prompted the judge to do this was that just before the jury retired at about 1:00 p.m. the foreman said: "My Lord, we would like you to, go over once again the definition of conspiracy and, the steps required to prove it."  This was not entirely surprising, since conspiracy is not an easy crime for laymen and women to comprehend, and the original direction had been, given on the day before. There was nothing wrong in either direction and the judge cannot validly be criticised for doing precisely what was asked of him.

23. There were other passages drawn to our attention, in relation to which, it can rightly be said that the judge's exposition lacked lucidity or precision.

24. It will be a rare summing up, after a lengthy trial, which is not open to some objection about the way, parts of it are phrased. Certainly this one could have been shorter and some of the passages in it could have been better expressed, but, taking the summing up as a whole we are unable to say that any of the imperfections pointed out to us, taken singly or together, could have confused the jury as has been suggested on behalf of the Applicants. The general structure of the summing up which the judge chose to adopt was logical and helpful.

25. We consider that there is no substance to the contention that the judge failed to explain the evidence adequately to the jury. The jury had seen and heard the witnesses and had been addressed by Counsel. There is no suggestion that the Applicants' defences were not properly and fairly put to the jury. As regards the prosecution evidence, we think that the judge summarised it sufficiently and there was no need, each time, to mention, the name of the witness who had testified to a particular fact.

26. The third ground set out in the Applicants' application for leave to appeal is as follows:

3. the judge erred in admitting as evidence the conversations between Ah Pau (one of the I.C.A.C. undercover agents) and D.4. Such conversations were relied upon by the prosecution in proving the existence of a general conspiracy.

27. Mr. Howard submitted that these conversations were not admissible; even if they were, the jury should have been told that they were not admissible against D.2 or D.3.

28. The passages about which complaint is made are three in number. In the first passage the judge told the jury that what the undercover agent said to D.4 and what he heard D.4 saying was admissible when they came to consider whether there was a general conspiracy. In the second, the judge refers to the agent’s evidence that D.4 had told him he was "very safe" because money was handed over each evening for "protection". In the third passage, the judge mentions the evidence that when the agent was offered his share in the Hoi Wong Club, into whose management he had infiltrated, D.4 had said that $3,000 was to be paid to the Anti-vice Squad.

29. Mr. Howard relied on R. v. Steward^(l). The report is short, and is as follows:

" S. was convicted of conspiring to cheat and defraud by doping racehorses. There was evidence from a fellow conspirator, X., that S. was a party to the conspiracy and actually took part in doping one horse.  X. also said (after an unsuccessful objection by the defence) that another conspirator, Y., had told him that S. had doped a number of  horses in the course of the conspiracy. The trial judge admitted this evidence on the basis that it was only admissible if the conversation was in furtherance of the conspiracy. In the event no evidence was given to show that this was so, S. appealed on the ground, inter alia, that the evidence was inadmissible. The prosecution submitted that, once the fact of a conspiracy had been established, conversations between conspirators during the course of the conspiracy are admissible against other conspirators whether they are in furtherance of the conspiracy or not.

Held, [by the Court of Criminal Appeal] there being no evidence that the conversation was in furtherance of the conspiracy, evidence of it was not admissible. It was not a case in which the proviso to section 4 of the Criminal Appeal Act, 1907, could be applied. The appeal would be allowed."

30. The principle to be applied can be stated quite shortly: an admission of one conspirator is receivable against a co-conspirator if it relates to an act done in furtherance of the same conspiracy, but not otherwise.

31. Mr. Lugar-Mawson, for the Crown, did not doubt the validity of that decision but sought to distinguish what had happened here. He submitted that the agent's evidence was properly admitted to set the scene and to prove the nature and boundaries of the conspiracy, and drew our attention to the summing up which was approved in R. v. William Tovey and Other⁽²⁾ which we will not recite.

32. Mr. Lugar-Mawson conceded that if D.4 had identified D.2 or D.3 in the challenged evidence, arid the undercover agent had revealed this to the jury, D.4's statement as to that would not have been admissible.

33. We are of the opinion that the evidence to which we have referred was properly admitted for the purpose explained to the jury by the judge in the first of the passages mentioned.

34. We formed the view that there was nothing in the points raised that rendered the convictions unsafe or unsatisfactory. The summing up, although diffuse in places, was full and extremely fair to the Applicants. The evidence led by the prosecution, supported as it was by the undercover agents, the video tapes and the recorded telephone conversations, presented a formidable case for the Applicants to meet, and once the jury disbelieved their explanations for what seemed to be highly incriminating conduct and conversations (as they clearly did) convictions were inevitable. We have no doubt that the jury fully understood the case - they convicted on counts where the evidence was strong and aquitted on counts where the evidence was weaker.

35. It was for these reasons that we dismissed these applications for leave to appeal against the Applicants' convictions, respectively on Counts 1 and 3, and Counts 3 and 5.

(1)   [1963] Crim. L.R. 697

(2)   (1979) 69 Cr. App. R. 115, at p.121