R. v. CHAN TUNG CHEUNG

IN THE COURT OF APPEAL

1995, No 198

(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This case comes to us from a trial before Mr Justice Seagroatt and a jury in early 1995.

2. This applicant, a man in his 40's, was the first of the two accused facing the single count in the indictment.

3. It was that they, on or about January 21, 1994, together with one Chan Shek-kwong, trafficked in dangerous drugs consisting of 4,185.12 gms of a mixture containing 3,802.93 gms of salts of esters of morphine: in other words, heroin.

4. On February 28, 1995, the jury unanimously convicted both accused. And on the following morning, the judge sentenced the applicant to 16 years' imprisonment and his co-accused to 20 years' imprisonment.

5. The applicant challenges his conviction. And in that connection, what we have before us at the moment is his application for the admission of fresh evidence on appeal.

6. The full transcript is not before us. But a certain picture is to be had from those parts of the judge's summing-up which are not under attack. And that picture is as follows.

7. On the afternoon of January 21, 1994, the applicant was sitting in a Datsun motor car with an undercover police officer and a man nicknamed "Ah Lung". That car was parked outside an hotel in Kowloon.

8. The undercover police officer, Inspector Kenneth Chang, was posing as a drug buyer, and had $730,000 in cash with him.

9. When he gave evidence, this is what the inspector said. While they were waiting in the Datsun, he asked the applicant why they were waiting. The applicant replied: "We are waiting for my assistant to come and pick me up to collect the stuff." Then the applicant made a call on his mobile telephone, after which he said that his assistant was coming in a car. He continued by telling the inspector to leave the money with Ah Lung and go to the other car to collect the stuff.

10. By now Chan Shek-kwong, the man named in the indictment along with the applicant and his co-accused, had pulled up behind them in a Saab motor car. The applicant pointed out the Saab, and again told the inspector to leave the money with Ah Lung.

11. The inspector alighted from the Datsun and boarded the Saab.

12. Shortly afterwards, the inspector alighted from the Saab and went towards its boot. That was a signal to other police officers lying in wait.

13. Upon that signal, they swooped. They found the dangerous drug in question inside the boot of the Saab. And they arrested all concerned including the applicant and Chan.

14. Chan is the applicant's brother-in-law. In exchange for an immunity, he gave accomplice evidence against the applicant: testifying that he had acted as an intermediary for the applicant in connection with the instance of drug trafficking here in question.

15. The applicant went into the witness-box and denied the inspector's evidence and Chan's evidence. He testified that he was engaged only in trying to sell "ill-gotten goods" in the form of precious stones and jade, and that he had nothing to do with any drugs.

16. But he was, as we have said, convicted.

17. There is in existence a letter dated March 3, 1995, written by Chan to an inmate of the Lai Chi Kok Reception Centre. Addressing that inmate as "Brother Smart", the letter says a number of things including that Chan gave false evidence against the applicant in order to save himself.

18. This application to adduce fresh evidence on appeal encompasses the evidence of eight witnesses including Chan himself although he cannot be found in Hong Kong. The evidence of the other seven witnesses evidence is directed to one thing and one thing only: that there was indeed an authentic letter by Chan saying that his evidence against the applicant is false.

19. There is no real prospect of Chan ever coming to court, or being brought to court, to shed any light on this matter. He cannot be found in Hong Kong. All the indications are that he is in China.

20. The letter, it must be said, does appear to be authentic in the sense that it was indeed written and signed by Chan. That is the effect of the undisputed expert evidence as to handwriting. Of course, the fact that the letter is authentic in that sense does not mean that its contents are true.

21. Reverting to Chan, it needs hardly be said that he has no incentive whatever to come back to Hong Kong. He could find himself prosecuted for the offence for which he was given an immunity - and for perjury as well - if he were ever to come back to Hong Kong and say that his evidence against the applicant at the trial was false evidence.

22. So, very broadly, what we have here are: accomplice evidence which may have resulted in or contributed to a man's conviction; the fact that after conviction the accomplice wrote to a third party saying that his evidence was false; and no real prospect of the accomplice ever coming, or being brought, to court to shed any further light on the matter.

23. Should the "admission" by the accomplice of having given false evidence be admitted in evidence in these appellate proceedings?

24. It seems to us that when faced with this sort of situation, an appellate court has to take a cold hard look at the matter, laying aside both gullibility on the one hand and cynicism on the other hand.

25. The stakes on both sides of the question are far too high for either gullibility or cynicism.

26. We have been referred to a number of cases from various jurisdictions. Some of those cases have to do with how the appellate court approaches fresh evidence which has been admitted. But the wisdom of those cases are useful also on the question of whether the evidence should be admitted in the first place. That would be so generally. And that is particularly so in the present case where, if the letter goes in as an authentic letter, there is nothing much more to look at apart from the letter itself.

27. It seems to us that we must ask ourselves whether the proposed further evidence in this case, essentially the letter itself, is credible. And in determining whether or not it is credible one has to look at all the circumstances, including: how the letter surfaced; the evidence which its seeks to retract; and the strength or otherwise of any other evidence at the trial consistent the evidence being retracted.

28. As to how this letter surfaced, the facts seems to be these. The applicant's brother says that in mid-September 1995, shortly before this appeal was first called on as long ago as October 30, 1995, he saw the applicant in prison and was told by the applicant that other prisoners had been saying that Chan had written a letter to Brother Smart, saying why Chan had been acquitted and the applicant had been convicted. For a number of reasons essentially to do with his own belief as to what an appeal is about and how busy he himself was, the applicant's brother did not do anything straightaway. And it was only on the eve of the hearing on October 30, 1995, that he drew to the applicant's legal adviser's attention the fact that there might be in existence a letter such as the one here in question. Things moved quickly, as one would expect, after the applicant's legal advisers had been so informed.

29. The hearing on October 30, 1995, went off on the application of the applicant; and there have been various steps taken between then and now.

30. It does appear not only that the letter is authentic but that it was received by Brother Smart at about the time of its date. That emerges from the Correctional Services Department's chop on the letter, it being a prisoner's letter.

31. But of course a letter such as this one is all too easy to plant on somebody like Brother Smart. And it certainly will do no harm whatsoever to the erstwhile accomplice witness unless he particularly desires to remain in, or return to, the jurisdiction: something for which Chan has shown no taste whatsoever.

32. Certainly, there is nothing about the way in which the letter surfaced which generates any confidence at all in its truthfulness.

33. When we look at the other evidence at the trial, we are wholly unable to accept the argument advanced by Mr Dykes for the applicant that there was no evidence on which the applicant could have been convicted apart from the evidence of the accomplice. We do not happen to have a full transcript. But the circumstances outlined in uncontroversial parts of the summing-up show that there was ample evidence on which a reasonable jury would have felt themselves drawn inexorably to the conclusion that the applicant was trafficking in the dangerous drug in the boot of the Saab, being the dangerous drugs the subject-matter of the count here in question.

34. We do not say that the fact of other evidence is the only impediment that there can be to the admission on appeal of a post-conviction retraction by a prosecution witness. A retraction may not be credible even though the evidence retracted was the only evidence in support of the prosecution's case. But the presence of other evidence for the prosecution, especially if it is strong, certainly does not help the admission in evidence on appeal of a retraction.

35. Ultimately, there is a discretion to be exercised and to be exercised, as we have indicated, without either cynicism or gullibility.

36. Having given this matter our best consideration, we have come to the firm conclusion that the fresh evidence proffered here should not be admitted before us. We do not admit such fresh evidence.

37. Had it been admitted, it would have led to a fresh ground of appeal. We are now ready to hear argument on the existing grounds of appeal.