THE QUEEN v. WU HUNG MOON (D1) AND OTHERS

                Cautioned statement admitted after voir dire on allegations of assault. Court of Appeal would not take up itself to add the objection of oppressive conduct.

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JUDGMENT

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1. The applicants were convicted of three drug offences on indictment. The 1st applicant was the 1st accused (D1), the 2nd Applicant the 4th accused (D4), the 3rd applicant the 2nd accused (D2) and the 4th applicant the 3rd accused (D3)  in the court below. D1, D2 and D3 were convicted of one count of conspiracy to traffick in dangerous drugs. D1 and D4 were convicted of a count of manufacturing dangerous drugs. D2 was, in addition, convicted of one count of possession of dangerous drug for the purpose of unlawful trafficking therein. D1, D3 and D4 applied for leave to appeal against conviction as well as sentence. D2 applied for leave to appeal against conviction only.

2. At the end of the hearing we refused leave to appeal against conviction and sentence by all the applicants. We indicated that we would give our reasons later which we now do.

3. The prosecution evidence against D1 and D4 relied mainly on the evidence of an accomplice LO Chun-hung who met D1 sometime in 1982. One day in January 1983 D1 offered him a job as a carrier or general assistant in the trafficking of dangerous drugs. They went together to look for premises and eventually rented a flat at the 4th floor Shing Tak Building at 12 Peace Avenue, Kowloon. The renting was effected a couple of days after they inspected the flat. According to LO Chun-hung D4, was present when they went to the estate agent to negotiate the renting and inspection of the premises. Money was provided by D1 for rents, deposits and purchase of furnitures. More locks were installed to the premises. Lo gave D1 keys to the premises.

4. A few days later D1 caused Lo to assist in moving microwave ovens, mincers, sealing machines and scales into the premises. There were trays and scissors purchased. Since then Lo stayed in the premises from time to time.

5. Nothing happened until the 2nd day of the Lunar New Year in 1983 when Lo again met D4 in the home of D1. However up to then Lo was not introduced to D4 at all. On that occasion D1 told LO Chun-hung, after D4 left, that D4 was in fact the boss nicknamed "Tai Kau" and that in the dangerous drugs business D4 would take 60% of the profit and the 40% was going to be divided between D1 and Lo. Two days later, D1 contacted Lo. They drove to the Hung Hom Station where they met a stranger who supplied some caffeine and other supplementary ingredients to D1 in two boxes. The next day Lo described how D1 and D4 arrived with some blocks of substance. That was the 28th of February, 1983. These were taken into the premises and D1 and D4 actually manufactured heroin. On the following day, the 1st of March 1983, D1 instructed Lo to take 9 1bs. of heroin which were manufactured the day before to a bus-stop of route No. 2 in Yim Po Fong Street near the Queen Elizabeth Stadium. D1 was there. Lo was then instructed to give the parcel of heroin to the person who talked to D1. A person then appeared and Lo handed the drugs to him.

6. The same night D1 went to a nightclub to pay the supplier of the caffeine which he obtained a couple of days before. After that D1 and Lo went back to Peave Avenue where D1 was seen to have gone to a building where D4 lived. On the 5th of March D1 and Lo arranged to meet again at the Yim Po Fong Street on the same location. D1 gave Lo the same instructions and to take with him (Lo) the balance of the heroin that were stored in Shing Tak Building premises. Lo went with his wife and child soon after 8 a.m. On arrival at Yim Po Fong Street D1 told Lo to wait at the No. 2 route bus-stop. Lo did so with his wife and child. A couple of minutes later, Lo saw two strangers arrived in a taxi. D1 approached and greeted these two persons. He indicated Lo should follow these two strangers. Lo followed them for a short distance. Then they were arrested by the police.

7. Apart from the evidence of LO Chun-hung there was evidence given by teams of police officers who kept surveillance on various accused. The team who observed D1 on the 5th of March 1983 saw him leaving his home premises at No. 48 Homantin Street after 8 a.m. He made his way to Yim Po Fong Street near the Queen Elizabeth Stadium and stood under a tree for a couple of minutes before the arrival of LO Chun-hung. He was seen speaking to LO Chun-hung. On arrival of the two strangers who were D2  and D3, he greeted them. He gave indication to LO Chun-hung to follow them. There was also evidence that D1 knew D4. A cheque for $30,000 drawn on D3's bank account had the name and identity card number of D1 on the back of it. That cheque was paid into D4's bank account.

8. At the time of arrest LO Chun-hung was found to have carried a bag of heroin weighing 2.6 kg. He was taken to the drug manufactory at Shing Tak Building, 4th floor, 12 Peave Avenue where the microwave oven was found together with various paraphernalia consistent with making of dangerous drugs No. 3 heroin. The equipments and things  that were found in the premises were tainted with traces of dangerous drugs. Lo was questioned and subsequently turned. Crown's witness.

9. The police officers who kept surveillance on D2 and D3 observed that at about 8.50 a.m. on the 5th of March they came out from 259 Temple Street. At that time D2 was carrying a plastic bag. The two of  them took a taxi to Yim Po Fong Street. They were greeted by D1 and then walked ,towards Waterloo Road. As they were walking in that direction they were intercepted and arrested by the police. D3, by that time, was himself carrying the plastic bag in which was found $10,000 in cash.

10. They were taken back to. the flat in 259 Temple Street where the police had to kick open the door to gain entry. As they entered the flat D2 said to one of the police officers that there might be dangerous drugs in the room. None was found. However, a packet of dangerous drugs was found hidden underneath the. mattress of a sofa in the sitting room. D2 admitted that he slept on that sofa some time before the day of arrest, but denied that the drug was his. On top of a television set was found a bunch of keys to which D2 admitted belonged to him. On this bunch, two of the keys fitted the door that led to the flat in No. 259 Temple Street. Some others fitted room 311 in Tzewanshan Estate   Block 59 where D2 stayed with his brothers and father. Some documents belonging to D3 were found as well as an account card belonging to D2.

11. They were taken. back to the Narcotics Bureau in police  headquarters where D2 was interviewed by Sr. Inspector Howcroft. He was questioned for nearly two hours as to his role in the drug offences. When D2 indicated that he was prepared to make a statement the inspector turned him over to a detective police constable. The DPC administered a proper caution to D2 in the form of questions and answers. There is no need to go into details. Suffice. it to say that in this statement, D2 practically admitted the conspiracy to traffick in dangerous drugs. The statement was strongly challenged and was made subject matter of a trial within the trial. Eventually the judge admitted the statement as part of the evidence at the trial.

12. While D2 was in custody pending trial a police  party went and searched his home at Room 311, Block 59 at Tzewanshan Estate. They found a scale and some plastic bags. On the scale were traces of heroin.

13. The home of D3 in Sum Tin Estate was also searched. There they found statements of his bank account showing that D3 had closed financial relationship with D4. From these accounts they traced one cheque that was drawn on the account of D3 in favour of D4. This cheque had the name of D1 and his identity card endorsed on the tack of it.

14. D4 was not arrested until the 13th of June. From the evidence it was evident that he had association with the 3rd accused. He also used the home address of D1 to operate his bank account.

15. D1's defence was that he was a taxi driver. He met LO Chun-hung through his wife sometime in 1982. Since then he met Lo a few times in January and February 1983. On the second day of the Lunar New Year LO Chun-hung went to his home as did D4. He did not introduce to one another. Nor did he give any particulars of D4 to D1. LO Chun-hung wanted to buy his car for $3,000. It was agreed that the transaction should take place after LO Chun-hung had test-driven his car.

16. On the 5th of March in the morning D1 went to China Travel to buy a ticket to go to Canton. That office was in Yim Po Fong Street. On arrival he observed that there was along queue. He left with the intention of returning later. As he walked away he met LO Chun-hung and his wife by chance. He told Lo that he could take the car any time. Then he continued walking for a few more steps and was arrested by the police. He was taken to his home at 48 Homantin Street and later to 122 Soya Street offices. These places were searched. Nothing was found. Eventually he was taken to the Shing Tak Building at No. 12 Peach Avenue.

17. As to his address being used by D4 for operating a bank account his evidence was that: he first knew D4 in March or April 1982. Subsequently D4 wanted to open an account. D4 did not want his wife to know about it. Hence he asked D1's permission to use his telephone number and address for the purpose.

18. On the 4th day of the Lunar New Year 1983 D1 made a return courtesy visit to D4. At   that time D4 asked him to cash a cheque for him. It was a Hongkong and Shanghai Bank cheque in the Shun On Estate Branch. That was the cheque drawn on the account of D3. D1 went to the Hongkong Bank Branch hoping that he might obtain cash for D4. There was insufficient cash in the account. By that time D1 had already endorsed his name and identity card number on the back of the cheque. He subsequently returned that cheque to D4 who presented it for payment in the usual channel.

19. D2's defence was that he was a shoe-worker. The small packet of drugs found underneath the mattress of the sofa did not belong to him. He did not live in the address of 259 Temple Street. He admitted the bunch of keys found on top of the television therein inclusive of the two keys fitting the door of 259 Temple Street as belonging to him. One HUNG Kwan-chiu was the person who lived in the Temple Street address. He was asked by Hung to dinner on the evening of the 4th of March. Hung requested him to redecorate his flat. For this purpose Hung gave him two keys to the premises which he put in his own bunch of keys. As the bunch of keys was too heavy to be carried he put his bunch of keys together with his Chartered Bank notice on top of the television set. He had dinner with Hung. After that they went to a movie. He returned home forgetting to retrieve his key and the notice.

20. The next morning, the 5th of March, he telephoned D3 enquiring whether D3 was prepared to assist him to decorate the flat at 259 Temple Street. The two of them went together hoping to inspect the premises. They arrived at Hung's flat sometime about 8.30 a.m. They rang the bell for about 10 to 15 minutes without getting any answer. They left. It so happened that D3 had $10,000 in a plastic bag. D3 intended to bank it. They took a taxi to the Hang Seng Bank Branch near Yim Po Fong Street. When they arrived in Yim Po Fong Street they realized that it was too early and the bank was not opened. In the meanwhile D3 had arranged to meet someone in the Ruby Restaurant in Waterloo Road. In order not to waste time they alighted from the taxi intending to walk there in Waterloo Road. After walking some distance they were arrested. .D2 was brought back eventually to the Narcotics Bureau in police headquarters. There he was repeatedly questioned  by Howcroft who persistently described  all his answers as lies. At a certain stage Howcroft punched him in the stomach and used his knee to kneel his thigh which caused him some pain. He was so frightened that he was prepared to say anything to suit Howcroft. It was in such circumstances that Howcroft instructed the detective police constable to take a statement from him. D2 alleged that the statement was virtually dictated to him and not his own.

21. D3's defence was that he worked in a fur store which was run by his mother-in-law and brother-in-law. On the 4th of March he had dinner with his brother-in-law, Mr. Yau, in the latter's home. Yau gave him $10,000 which should be put into the company account with the Hang Seng Bank. On the 5th of March he received a telephone call from D2 in the morning asking him whether he was prepared to help decorating a flat in Temple Street. He agreed. He went there with D2. The rest of his evidence tallied with that of D2.

22. Regarding his banking relationship with D4 he explained he and that his brother-in-law Yau also ran a second-hand car business. Yau took care of the buying and selling side of the business and he took care of the financial side. However most of the capital was provided by Mr. Yau. Whenever Mr. Yau was short of cash he would ask D3 to borrow money from others. Hence the bank account was opened only in the name of D3. On one occasion the business was short of cash and D3 borrowed $30,000 from D4. That was repaid but by cheque. That explained why the cheque for $30,000 drawn on D3 was paid to D4.

23. D4 elected to give no evidence and call no witness.

24. In the event all four of them were convicted as aforesaid.

25. There was only one main ground. of appeal advanced on behalf of D1 and D4. It was that the conviction was unsafe and unsatisfactory. It was contended that the main evidence against them came from the accomplice Lo. The trial judge erred in failing to put the defence case adequately to the jury by drawing their attention to the various lies and inconsistencies of the said LO Chun-hung contained in the series of statements which he, Lo, made to the police during the course of police investigation.  It was further contended that the trial judge failed to direct the jury adequately as to the manner in which circumstantial evidence should be treated.

26. In his direction to the jury the trial judge properly drew the jury's attention that LO Chun-hung was an accomplice and told them that it was dangerous to convict any of the accused on LO Chun-hung's evidence alone without any corroboration. He gave the jury a proper direction as to the treatment of accomplice evidence as well as the requirement of corroboration. At p.6 he spoke of LO Chun-hung in the following terms:

Later he said:

"So it was not as though his wife was completely immune from prosecution. I want you to weigh up all this in considering LO Chun-hung's possible motives for telling us of the 1st and 4th accused's participation in the manufacturing of drugs."

27. Of the defence the judge said:

Then he listed a number of inconsistencies in the various statements LO Chun-hung made to the police. In particular he drew attention to one matter in relation to which the judge said:

In his exhaustive cross-examination Mr. O'Relly Mayne for the D4 had closely cross-examined LO Chun-hung. The judge was not obliged in his summing-up to list every single inconsistency and repeat the evidence to the jury In any event at p. 10 he said:

"Now I obviously cannot refer to all the evidence which may be relevant to this charge, and indeed there may be points which I have not covered which you may feel are important and you are fully entitled to give such evidence all the weight you feel it deserves."

Then he said:

"Instead, you must carefully consider the evidence in relation to this charge which, as far as the Crown is concerned, comes solely from LO Chunhung, and, having warned yourself of the dangers which I have explained, decide whether or not you are satisfied so as to feel sure that LO's evidence was the truth."

The complaint of the judge's failure to direct the jury how to treat the circumstantial evidence was quite unfounded. In page 2 of his direction, the judge said:    

"Now in considering the evidence and in deciding what inferences you should properly draw from it, you will, of course, apply your collective common sense, your knowledge of the world and your knowledge of human nature. Put aside please any feelings which you may have: sympathy or prejudice, whatever way, and reach your verdict as calmly and dispassionately as you can."

28. There was originally another complaint to the effect that the judge told the jury to-ignore "any reference that was made to lingering doubts or lurking doubts because the law is concerned here with reasonable doubts as I have just explained them to you". However this ground had been abandoned. The judge was obviously referring to defence counsel's suggestion that there should be lingering or lurking doubts.

29. The grounds in support of application on behalf of D1 and D4 had no substance.

30. The principal ground of appeal advanced by D2 in support of his application was that the judge erred in not having excluded the cautioned statement. It was argued that the statement was obtained as a result of oppressive conduct on the part of a senior officer, Inspector Howcroft. It was admitted by Inspector Howcroft that prior to the taking of this statement, he had subjected D2 to persistent questioning without a caution for nearly 2 hours. Counsel contended that this amounted to oppressive conduct. It is also argued that because of this, the will of D2 was so overborne that he was prepared to say anything to suit Inspector Howcroft.

31. Counsel prayed in aid the authorities of R. v. Prager ⁽¹⁾ and The Queen v. LAI Kin-mihg⁽²⁾. Counsel contended that in view of the procedure that was adopted the trial judge should have either. excluded the statement or directed the jury that they put no weight whatsover in this statement. Counsel said that  the  time when D2 was is police headquarters, the police had already arrested him under grave suspicion that he, was conspiring to traffick in drug. Also he was found in possession of drugs. They should have either charged him or cautioned him before questioning. The conduct of Inspector Howcraft was so oppressive and in breach of the Judges' Rules that the trial judge should either have excluded the cautioned statement or directed the jury that they should place no weight on that statement.

32. However, it must be borne in mind that both in the case of Prager and LAI Kin-ming, the statement that was sought to be adduced in evidence was the very statement obtained by questioning without caution or the very statement that was obtained by oppressive conduct. In the present case the uncautioned questioning took place prior to the taking of the statement. We had no record as to the questions  put or the answers given to such questions. There was no evidence from anybody as to the manner of the questioning being oppressive or not. Nor was the question of oppression raised by defence counsel in the court below. What was raised by defence counsel at the trial was assault and threat. The judge having the benefit of seeing the witnesses in the course of the voir dire and receiving evidence in that respect decided that there was no substance in the complaint of assault and threats. A similar situation obtained when evidence was adduced relating to the trial of the general issue. Thus the trial judge said:

33. In the case of LAI Kin-ming, McMullin, V.-P., after he reviewed the series of authorities, said at page 24:

"What those cases establish is that the mere asking of questions of a man in custody is not by itself sufficient to make his answers inadmissible, provided they are not given under circumstances of such a nature as to sap the will and make the subject talk. Silke, J.A. in the latter case said:

 

34. In order to clarify the position there was a recent decision of this court in The Queen v. CHEUNG Wai-yee & Others⁽³⁾ in which McMullin, V.-P. said at page 35 as follows:

"Whatever has transpired we would like to make it clear that in Lai Kin Ming we were not purporting to lay down any principles which went wider than those to be gathered from the many existing English, Commonwealth and Hong Kong authorities covering this much trodden ground. After a lengthy recital of the many circumstances which occasioned concern, in that case; we came to a conclusion expressed  in the words: 'But in the present case, the entire procedure involved an impropriety of an oppressive character.' The conclusion, in other words, was expressly addressed to the circumstances of that case, and the nature of the procedure there alleged, and we can only add that we are in respectful agreement with what was said by their Lordships in DPP v. Ping Lin⁽⁴⁾, the case on which Mr. McNanara strongly relies, and we have no reluctance in taking home to ourselves the .admonition addressed by Lord Hailsham to the Court of Appeal (Criminal Division) (p.21), where the voluntariness issue is stressed as one of the fact for the trial Judge and the Appellant Tribunal is recommended to avoid approaching it in 'too legalistic and casuistical a spirit, so as to form, ..... a clog on the proper exercise by the police of their investigatory function, and, indeed, on the administration of justice itself.'"

35. No issue of oppression was raised at trial. The issue of assault, threat and violence was raised and resolved by the trial judge after hearing evidence. We could see no reason why this court should interfere and take upon ourselves to add yet another objection on behalf of the applicant.

36. The second ground in support of the application was that the judge misdirected the jury on the matter of presumption. It was alleged that at the time of arrest and the drugs found, D2 never had the keys to the premises of 259, Temple Street, in, his physical   possession. The argument was that the police party who brought D2 to the premises had to break open the door. The keys were found on top of the television set. As such D2 had no possession of the keys to the premises. It was also argued that there were other persons than D2 occupying the same flat. For these reasons counsel said the presumption of possession should not apply to D2. Such arguments were so tenuous that they did not merit any serious consideration.

37. As to the 3rd ground in support of the application, the probative value of the evidence about things found in the Tzewanshan premises of D2 was outweighed indeed by prejudice. They should not be accepted in evidence. However, that was done without protest from defence counsel.

38. The. example given as to what constituted an agreement by people seen together at a cinema was unfortunate. However, the judge did give a proper direction as to what constituted conspiracy.

39. Having regard to the circumstances, such defects would not have affected the jury's verdict. It was an obvious case to apply the proviso.

40. The only ground advanced by the 3rd accused was that the conviction was unsafe and unsatisfactory. In this respect we found the complaint against the judge that he failed to direct the jury adequately on the Crown's case against the 3rd accused unjustified. Counsel for D3 complained of the judge's narrative of D1 and LO Chun-hung, the accomplice, as being prejudicial to D3. However, the judge in that instance was merely giving a narrative leading up to the Crown's case against D2 and D3. So at page 13Q, the judge said:

"So the Crown say you have LO's evidence as to the agreement reached between himself and the 1st accused, and that the irresistible inference to be drawn from the movements of the 2nd and 3rd accused is that they had agreed, and in pursuance to that agreement, were at that place to take delivery of the drugs carried there by LO."

And he said at page 14:

"Now of course, as I have already said, it is for the Crown to prove this conspiracy to traffick in dangerous drugs, and the standard to which they must satisfy you is a high one, because you must be satisfied beyond reasonable doubt or satisfied so as to feel sure."

We dealt with the example about people in the cinema as an example of forming an agreement given by the judge when we dealt with the grounds of appeal advanced by D2. We would not repeat that.

41. Counsel also complained of the trial judge referring to irrelevant matters such as D3's drawing of the $30,000 cheque and his business transaction with YAU Chi-kwong. However such matter were raised by D3 in explanation of his drawing the cheque which at one time fell into the hand of D1. Their validity or otherwise must be left to the jury. Thus he said:

It was for the jury to draw their own inference on such evidence. Similarly in reference to the evidence of DPC 13684. He said:

42. The question whether D3's presence in Yim Po Fong Street was part of his overt act in pursuance of the conspiracy or a pure coincidence was a matter for the jury. The judge was justified in directing the attention to the jury by saying:

Whether DPC 13684 saw D3 going into the address at 259 Temple Street was irrelevant. The fact remained that certain documents belonging to D3 was found in the aforesaid premises. We did not find the disparity between the $10,000 in possession  of D3 and the value of the dangerous drugs in possession of LO Chun-hung to be of relevance.

43. Taking into consideration of the arguments advanced in support of the application on behalf of D3 as a whole we were of the opinion that they had no merit. We also refused D3 leave to appeal against his conviction.

44. D1 was sentenced to 10 years imprisonment for count 1 of conspiracy and 14 years for count 3 of manufacturing. D2 was sentenced to 6 years imprisonment for court 1 and 2 years for count 2 of possession. D3 was sentenced to 9 years imprisonment for count 1 and D4 12 years imprisonment for count 3. Whilst we felt that it was difficult to differentiate the culpability between the 3 co-accused in the count of conspiracy, we observe that D2 did not apply for leave to appeal against sentence. Obviously the trial judge took into consideration the different parts played by each co-conspirator in the conspiracy : their respective ages and records and the overall sentence appropriate for each accused.

45. The case of CHAN Chi-ming provided a guide line as to tariff sentences for the offence of possession for the purpose of unlawful trafficking. The offence in the instant case was one of conspiracy to trafficking in dangerous drugs. We found no merit in applying the guide in CHAN Chi-Ming's case to a different offence. Accordingly, application for leave to appeal against sentence by D1, D3 and D4 are also refused.