R. v. WONG KA SHUN

IN THE COURT OF APPEAL

1995, No.139
(Criminal)

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J U D G M E N T

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Liu, J.A.:

1. The applicant stood charged in the High Court on 2 counts of conspiracy to traffick in a dangerous drug. The charge period of the conspiracy in the first count was between 4 May 1992 to 18 May 1992. For the second count it was between 28 June 1992 to 6 July 1992. He was acquitted by the jury unanimously on the first count but convicted by a majority of five to two on the second count. He was sentenced to 24 years' imprisonment. On behalf of the applicant, counsel applies for leave to appeal against his conviction. The applicant applies for leave to appeal against sentence in person.

2. A great number of Grounds of Appeal had been filed. Two further Additional Perfected Grounds of Appeal against conviction were caused to be submitted on 25 September 1995. Of these Perfected and Additional Perfected Grounds of Appeal, counsel submits on three issues of substance, to which this court need address itself. They are: (1) direction on corroboration of an accomplice's evidence, (2) direction on identification and (3) the adverse effect of prosecution counsel's reference to the wife's access to restricted area at Kai Tak Airport at the material time. It would be unproductive to set out in extenso the Perfected and Additional Perfected Grounds of Appeal against conviction. This appeal hinges upon the three issues stated above.

3. It is desirable to set out the prosecution case with respect to these two conspiracies. For the first conspiracy: in March or April 1992, through the introduction of Mak Chi-keung, the applicant met Yiu Chun-pong several times in a hotel coffee shop in Kowloon. The applicant arranged with him to bring heroin from Thailand to Hong Kong. Two trips were made, one on 22 April 1992 and the other 29 or 30 April 1992. Each time the applicant gave Yim money to buy a return ticket to Bangkok and they met up there. On 22 April 1992, no supply was available and Yim made a detour in his journey back to Hong Kong from Phuket via Bangkok for testing the airport security checks. On 29 April, Yim again met the applicant in Thailand. Again Yim returned to Hong Kong empty-handed on 4 May. In May the applicant took an extra loan of $100,000 and sent Yim to Thailand by air. Yim had been given $10,000 for a return air ticket for 13 May. Yim stayed at the Malaysia Hotel, Bangkok on the following day. As instructed by the applicant, later Yim moved to a better hotel. That evening, the applicant told Yim that the heroin would be ready in a matter of days. On 16 May, the applicant brought Yim 8 units of heroin. Each unit is 24 ounces. Next day they travelled overland to Phuket but separately. They again met in Phuket but flew out of Phuket Airport on the same flight but on their own. Yim returned to Hong Kong via Bangkok. The applicant obtained a boarding pass for Bangkok as a destination. The applicant and Yim met in the Domestic Lounge. Yim carried a bag with the drugs. There was a bag-switch in the Domestic Lounge and the applicant left the departure area for Hong Kong with Yim 's bag which contained the drugs. The two men met up again for boarding the plane for Hong Kong. Again there was another switch of bags in the passage-way for boarding. As a result, Yim took the heroin on to Hong Kong without detection. Yim placed the drugs in the false ceiling of the Disabled Persons' Lavatory in the Departure Lounge. About 20 days after the applicant's return to Hong Kong, the applicant paid Yim $70,000. That is in totality the first charge. There was no corroboration of Yim's account. The jury acquitted the applicant unanimously.

4. As for the second alleged conspiracy between 28 June 1992 to 6 July 1992: in June 1992, the applicant arranged with Yim for another trip. $10,000 was given by the applicant to Yim for a return air ticket departing 28 June and returning 6 July 1992. On 27 June 1992, Yim telephoned the applicant in Bangkok, informing him that he himself would be arriving the following day. On 28 June 1992 Yim arrived and checked into the Malaysia Hotel. Unknown to Yim, from his arrival he became the target of a surveillance operation set up by the Thai police. At the trial, the evidence of Yim was compared with the evidence of the two Thai police officers, a Sergeant Major and a Lance Corporal:

(1) Yim's version is that on the evening of 28 June 992, he and the applicant met in the Montien Hotel coffee shop. The Thai Lance Corporal disagreed;

(2) Yim told the court that he met the applicant at the coffee shop the next evening. The Thai Lance Corporal also disagreed;

(3) Yim claimed that on 3 July 1992 the applicant visited him in his Hotel room. Yim was told to move to a better hotel;

(4) The applicant came up with Yim to his new room and went out with him;

(5) They went to the coffee shop of Montien Hotel where the applicant introduced Yim to a man known as "Siu Lung".

The Sergeant Major followed Yim by motorcycle to his new hotel but he did not see the activities set out in (3) (4) and (5) above.

5. On 4 July 1992, the applicant visited Yim in his hotel room sometime between 10 to 11 a.m. They left together for a restaurant where they met "Siu Lung" and a fat boy. After a taxi ride to a footbridge, Yim, the applicant and "Siu Lung" took delivery of a consignment of drugs. Yim and the applicant returned to Yim's hotel. They were dropped by the taxi at a shopping arcade opposite the hotel. A shirt was bought for its wrapping which was used to rewrap the drugs in the hotel room. They checked out of the hotel and went to a bus terminus by taxi. Yim bought the ticket to Phuket. The applicant saw Yim off. The Lance Corporal described the first sighting of Yim on 4 July 1992 as approximately 4 p.m. when Yim was seen talking to a Chinese male in the coffee shop. The Chinese male, identified later as the applicant, made a phone call, rejoined Yim and left the hotel with Yim to walk to a shopping arcade. They separated shortly and Yim took a taxi alone to a bus terminus where he took a bus to Phuket. The Sergeant Major's identification of the Chinese male in the coffee shop as the applicant was not supported by Yim's evidence which did not put Yim in the coffee shop at that or any other time on that day. Yim told the jury that upon arrival on 5 July, he checked into a hotel in Phuket. He went to the airport by self-driven car for fetching the applicant and drove him to a nearby hotel. They had meal together outside the hotel. They then returned to their own hotels and later the applicant visited Yim's hotel room where the drugs were again repacked. Yim was handed an airline ticket in the name of 'S. S. Lee' by the applicant. The Sergeant Major saw Yim arrive at the Phuket bus terminus at about 9 a.m. on 5 July 1992. After Yim had checked into his hotel, the Sergeant Major kept watch downstairs together with two other police officers until midnight. The Sergeant Major did not see Yim again that day nor did he see the applicant. On 6 July 1992 Yim checked in at the Phuket Airport purporting to take a domestic flight to Bangkok using the ticket in the name of 'S S Lee'. Yim proceeded to the Domestic Lounge with his bag of drugs. The applicant turned up and placed his bag next to Yim's. There was a switch of bags. Yim left the Domestic Lounge and re-checked in for the same flight in his own name to Hong Kong via Bangkok, using the International Lounge. On their way to boarding the aeroplane, there was another switch of bags. The applicant and Yim sat in different seats. Upon arrival in Bangkok, Yim proceeded to the International Terminal for the flight to Hong Kong. He was arrested on his arrival back in Hong Kong. These two Thai police officers, the Sergeant Major and the Lance Corporal, claimed to have seen the applicant on 6 July 1992 at the Phuket Airport. But the Sergeant Major was only able to see the switch of bags once in the Domestic Lounge. The Sergeant Major was quite close to the applicant on his way to boarding the plane but he never saw the switch of bags then.

6. In the applicant's evidence, it was denied that he met Yim on 4 July, 6 July and that he was in Phuket at any time between 23 June and 6 July. There was no documentary evidence to show that the applicant had been on the aeroplane on 6 July or in any hotels in Phuket for the night of 5 July. The applicant's case is that he had been to Thailand during that period but only for selling fake watches.

7. In his summing up to the jury, the judge referred to the identification parade at which the applicant was identified by the Sergeant Major and the Lance Corporal. That was several weeks after they met the applicant during the giving of their respective statements to Inspector Ma on 1 December 1992. There was no Turnbull direction.

8. Yim initially gave a statement to the police identifying his accomplice for the drug purchasing expeditions in Thailand as one "A Keung" i.e. Mak Chi-keung. The applicant was known as "Ah Cheong". It was not until some 15 months later that he changed his identification from "Ah Keung" to "Ah Cheong". Secondly, Yim never said that he was in the hotel coffee shop at about 4 p.m. or any other time on 4 July. That is contrary to the evidence of the Lance Corporal. Thirdly, the applicant denied that he was at the Phuket Airport on 6 July. The Sergeant Major agreed that he was walking sometimes close to Yim and the applicant and sometimes further away. The Lance Corporal testified that they were both walking in the vicinity. Fourthly, there was no documentary evidence to show that the applicant had been on the aeroplane on 6 July or in any hotel in Phuket on the night of 5 July. Fifthly, there are other differences in the accounts given by the Thai police officers. The applicant's wife's access to the restricted area of the Kai Tak Airport at the material time emerged from the applicant's evidence in cross examination by prosecution counsel. It is submitted that that could go some way to linking or identifying the applicant. The reason given is: in the 1st conspiracy, the prosecution case is that drugs were left in the false ceiling of the Disabled Persons' Lavatory in Departure Lounge. Although the applicant was ultimately acquitted on that count, he could be taken as a potential party to the 2nd conspiracy, also using Kai Tak Airport. Sixthly, the Thai police officers were questioned as to possible misidentification by reason of viewing through the glass window, the distances at which the observations were claimed to have been made and the length of time for which the target was said to have been kept under surveillance. In these circumstances, there was sufficient evidential basis for mounting a challenge on mistaken or false identification. A Turnbull direction should have been given. The omission to direct the jury in the manner outlined in Turnbull was of particular importance in the present case. In considering all of the weaknesses inherent in identification evidence, we may add that one should bear in mind the passage of time which elapses from the time when the person identified was observed and the time when the witness sees the person again and states that this was indeed the person previously identified. What was significant in this case was that the period was well over a year. Even then when the Thai police officers did come into contact with the applicant he was introduced to the officers in the context of being a suspect. This may have greatly influenced the Thai police officers and their identification may have been made on the basis of being a confirmation of an earlier impression rather than a genuine identification. Further, on the premise that the identification evidence of the Thai police officers could be doubted by the jury, the evidence of Yim as an accomplice might arguably be left uncorroborated, in which case the prosecution case, including Yim's evidence would have had to be evaluated by the jury in a wholly different light. The case then would not have been one of Yim's evidence corroborated by the Thai police identification evidence but one of his evidence possibly standing alone without the support of such evidence from the Thai police officers. Had the jury ever harboured doubt in the identification evidence of the Thai police, count 2 might have ended up on the same footing as that of count 1. The applicant was acquitted on count 1. Of course, his acquittal could have been for a variety of reasons. If there was a need for directing on the identification evidence of the Thai police officers, the circumstances of this case would at least render it desirable to direct the jury also as to how dangerous it would be to convict if they should doubt or reject the identification evidence of the Thai police officers. In this case, much depended upon the identification evidence of the Thai police officers, for which a Turnbull direction was predominantly necessary. Yim's evidence as an alleged co-conspirator was closely linked to such corroborative identification evidence. Despite the amendment to s. 60 of the Criminal Procedure Ordinance, this is a case in which the judge should have indicated to the jury the need to exercise care when assessing the evidence of Yim, particularly if it stood unsupported they having rejected the identification evidence of the Thai police officers.

9. Further because of the weaknesses in the identification evidence, the jury might wrongly have relied upon the evidence of his wife's access to the restricted area at Kai Tak Airport at the material time as a further link in his identification.

10. We find nothing of substance in any of the other grounds of appeal, but on the three main issues the conviction on the second count is, in our view, neither safe nor satisfactory. We would allow the appeal. We are unable to apply the proviso. It is unnecessary therefore for us to entertain the applicant's personal application for leave to appeal against sentence. We would hear counsel on the question of a retrial.