HKSAR v. WONG KWOK LEUNG AND OTHERS

CACC 389/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 389 OF 2005

(ON APPEAL FROM HCCC NO. 345 OF 2004)

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REASONS  FOR  JUDGMENT

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Hon Stock JA (giving the reasons for judgment of the Court):

Introduction

1. On 16 August 2005 these five applicants were convicted after trial before Nguyen J and a jury upon an indictment that charged that between 17 March 2004 and 1 May 2004 they conspired with certain named persons and others unknown to traffic in dangerous drugs, namely heroin hydrochloride and midazolam.  Each has applied for leave to appeal against conviction and sentence but D1’s application for leave to appeal against sentence has been abandoned and is dismissed.  We shall refer to them by their designations in the re-re-amended indictment upon which they were tried.

2. On 15 August 2007 we granted to all applicants, save the first, leave to appeal against conviction and, treating the hearing of the applications as the appeals, we allowed their appeals, set aside their convictions and ordered them to be retried.  We adjourned the hearing of the first applicant’s application and that was heard on 6 September 2007 when we dismissed the application.

3. These are the reasons for allowing the appeals in the case of D2 to D5 inclusive and for dismissing D1’s application.

The prosecution case

4. Amongst the others named in the indictment were three originally indicted with them but who pleaded guilty.  They were Lee Kwok Chu, Lo Chiu Hung and Lee Wai Lam.

5. The allegation against the applicants was of a conspiracy to traffic in dangerous drugs in the vicinity of the sitting out area of King Fuk Street in San Po Kong, including a nearby open area under the flyover, referred to as “the site”, and it was said that the applicants were engaged in selling heroin and midazolam at that area.  The suggestion was that D1 was in charge of the operation, that D2 and Lee Kwok Chu (KC Lee) were supervisors of the “store”, and that the others acted at specific times as salesmen or carriers of the drugs.

6. Between 18 March and 30 April 2004 covert observation was carried out by police and, according to the testimony adduced at trial, drug dealing at the site was observed and recorded on video.  Two undercover police officers referred to at trial as PW1 and PW2 posed as addicts, and purchased the drugs from the applicants and the other alleged co-conspirators at the site.  There were in all twenty-four separate incidents recorded when drugs were purchased.  In addition, there was evidence of two occasions upon which money in substantial quantities was handed to D1 at a restaurant, one of which was on 30 April 2004 when, amongst the funds handed to him was marked money that had been paid by the two undercover officers when they had purchased drugs.

7. The evidence adduced at the trial showed that D1 was present at the site on at least eleven occasions of the twenty-four when the undercover officers purchased drugs at the site, was close at hand when drug transactions took place and, most particularly, made utterances at the site that showed that he was the person in charge of the operation. 

8. We take the balance of this précis of the evidence from the summary presented by the judge upon sentencing:

“	[D2] was present at the site on every day between 18 March 2004 and 30 April 2004, when there was an operation.  Every time the undercover officers went to the site, they always saw [D2] standing near the entrance to the site or sitting on a bench nearby.  The only occasion when they did not see her was on 23 March 2004, during the second operation on that day.  However, the videotapes showed that she was present on that occasion.
	During the conspiracy period, there was a total of approximately 17 re-supplies to the site . On 14 of those occasions, the tapes showed that [D2] was present in the immediate vicinity of the supplier or the person being supplied.  On two of those 14 occasions, [D2] was the person who was re-supplied.  On all 23 occasions when the undercover officers bought dangerous drugs at the site, or when other unidentified persons dealt with the drug dealers at the site, [D2] was somehow always involved in the sale.  After 28 March 2004, she personally sold heroin to the two officers on occasions.
	[D3] was seen on the tapes being present at the site on four occasions.  He was seen for the first time, on the tapes, on 7 April when he spat out drugs from his mouth and handed them to another dealer.  On 11 April, he sold one packet of heroin to one of the officers.  On 30 April, he sold two pellets of midazolam, one to each of the officers.
	…
	[D4] was present at the site on six occasions.  On 22 March 2004, he sold heroin twice to the first officer.  On 23 March 2004, he was present when the re-supply took place.  On 24 March 2004, he sold heroin twice to the first officer and also twice to the second officer.  On 28 March 2004, he was present at the site when drugs were sold to the second officer, and [he] was told by another person to keep a closer watch.
	[D5] sold drugs to the two officers on seven occasions, the first on 19 March, when he sold midazolam to the first officer, and the second on 14 April, when he sold midazolam to the second officer.  On 17 April 2004 and 24 April 2004, he also sold midazolam to the two officers.  The last three sales by him were on 30 April 2004 when he sold midazolam and heroin to the second officer, and midazolam to the first officer.  On 19 March 2004, he was seen on the tapes, selling drugs to a number of other people.  He was present at the site on 11 different days during the conspiracy period, and he was the person re-supplying drugs to [Lee Wai Lam] on at least four occasions.”

The defence cases

9. Amongst the applicants, only D1 and D2 gave evidence at trial.  D1 admitted that he was frequently at the site but he said that whilst the persons there were engaged in various activities including trafficking in dangerous drugs, he was a money lender and was owed money by KC Lee and that that was the business in which he was engaged at the site, not drug trafficking.  Similarly, the collection of funds at the restaurants on the two occasions to which reference has been made had nothing to do with drugs but had to do, rather, with monies owed to him.

10. D2’s defence was that she was a drug addict.  She lived with KC Lee who operated a gambling den and she assisted him at the site as a lookout in that connection.  He did sell drugs but, as to that, she did not assist Lee.  She admitted that there came a time when she herself supplied drugs but that was not part of any conspiracy: these were isolated incidents concerning only herself and the buyer.

11. Although the other defendants did not give evidence, the suggestion made on their behalf was that they too engaged in isolated acts of trafficking not part of the alleged conspiracy.

The appeal of D2 to D5

12. It is convenient to deal first with our reasons for allowing the appeals of D2, D3, D4 and D5.

13. None of these applicants was represented upon appeal, each having been denied legal aid.  Each raised a number of grounds amongst which was one that caused us concern and that led to the quashing of the convictions.  Upon the last day of trial, the jury retired at 11:37 a.m. and the court resumed at 6.08 p.m.  In the absence of the jury the judge said this:

“	I should inform counsel for the record at just before about 10 minutes before my clerk was told that the jury had a verdict, I in fact received a question from the jury.  The first question was:
	‘	Conspiracy with Yu Wai-mei constitute a defendant’s guilty in this charge?’
	The second question was:
	‘	How long can you stay tonight?  Please state specifically!’
	I will show that to counsel and I was going to come to court to deal with the first question and answer the second question and before I was dressed and ready to come into court, we received another message the jury had a verdict.
	I think the reason why question two was asked was they were, they want to know if they did not, by what time they would be sent to bed if they did not return with a verdict.  I think that was the reason why question two was asked.”

What then happened was that at 6.11 pm the jury was brought back into court and the verdict was delivered.  The verdict was delivered without the judge answering the questions raised, without informing the jury that he had received their questions and without him satisfying himself that the jury had, despite the absence of an answer, most especially to the first question, resolved the matter nonetheless to their satisfaction.

14. Such inquiries as we have been able to make reveal that counsel who prosecuted at trial was informed by the court – presumably by the judge’s clerk – at 17:38 that the jury had indicated they had two questions yet only 10 minutes later or so, the jury intimated that they were ready with their verdict.  What we do not know is how long before that information was passed to counsel the questions were passed by the jury to the jury bailiff, but in the normal course of events one would assume the question to have been raised shortly before counsel was informed.  If so, it is odd that the substantive question as to the effect of Yu’s role seems, on the face of matters, to have been resolved by the jury without ever having received an answer.  Be that as it may, what concerned us was the fact that the question raised about Yu was never answered and, furthermore, that the factual scenario posed by the question had not adequately been addressed in the summing-up.  It is a matter that concerned us all the more because, in a sense that we shall now explain, it was central to the defence raised by these four applicants.

15. The import of the question about Yu seems to us to be clear and, in so far as it is said by the respondent to be unclear, we must nonetheless make an assumption about its import favourable to the applicants.  The defence of these four applicants was that whilst each was separately engaged in drug trafficking at the site, none was party to the enterprise, at the centre of which stood D1, alleged by the indictment.  They were saying in other words that such conduct as could be proved against them – by their own admission – was no more than individual specific acts unconnected with D1’s store; that in so far as Yu came into the picture, he was but a supplier of drugs to them individually; and that none of the defendants was acting in pursuance of some criminal purpose allegedly held in common between them.  Mr Luk SC for the respondent accepts that if that account were true, or possibly true, then upon the indictment advanced, these applicants, or such of them as might benefit from such a defence, were entitled to be acquitted.  That being so, the question raised by the jury was important.

16. The jury wanted to know what the position would be if they found as a fact, or as a possible fact, that an individual defendant had nothing to do with the wider conspiracy alleged but was merely receiving drugs from Yu.  Yet they were never told the answer to that.  Nor, despite that defence, was the jury given any instructions in this regard in the summing-up.  Mr Luk takes us to one part of the summing-up in which the judge touched upon the question in the context of a submission made by counsel for D3.  In that context and in that passage, the judge did tell the jury that if they found, in accordance with one aspect of D3’s case, that D3 was on one occasion co-operating with Lee Wai Lam alone in Lee’s dealings with drugs, then what was at that stage afoot was a conspiracy entirely different from that charged and that in those circumstances D3 was to be acquitted.  But that was a reference and a direction in passing in relation to one defendant only, and to one incident in his case, which hardly suffices as a substitute for a general direction as to law that applied to all defendants.

17. That material omission apart, we considered in the circumstances of the case that a further material failure was constituted by the absence of any step in relation to the jury’s question once it had been delivered.  It is no answer to say that it was self-evident that the jury must have provided themselves with an answer to their satisfaction, else why deliver a verdict?  The real point, rather, is that the jury self-evidently considered the question to be relevant to their deliberations, else why ask it?  The appropriate step, in our judgment, once the jury announced that they were ready with the verdict, was for the judge to have told the jury, upon their return to court and before he took a verdict, that although the jury had announced its readiness to deliver verdicts, he intended to direct them in relation to one of the questions they had raised, namely, the first question, since it appeared to him to be important and he wished to ensure that the direction he was about to deliver in relation to the question was properly considered by the jury before they finally determined upon their verdict.  He should then have provided a clear direction upon the issue raised; and required the jury to retire further to deliberate in the light of that direction.  This was not done and the jury was not armed with a direction in relation to a matter that was important to the defence of these particular defendants.

18. It is for this reason that we allowed the appeals against conviction in relation to all defendants except D1.  No objection was raised to the respondent’s application for a retrial in their cases and we so ordered.  The case should be fixed for an early date of hearing and in any event within four months from the date this judgment is handed down.

D1’s application

19. D1 filed a number of lengthy written submissions.  We studied the detail of each but we intend here to concentrate on those matters that did not constitute an invitation to this court to retry the facts. 

20. This applicant first complained that there was provided by the police officers a number of answers which were self-evidently untrue.  For example:

i.	PW1 was asked whether, whilst acting as an undercover agent, he knew that he was under surveillance and that his activities were being videotaped by other police officers.  He answered that he was not sure.  However, when the officer in charge of the case, an Inspector Cheng, testified he said that both undercover officers knew that they were under surveillance and being videotaped.
ii.	It was common ground that PW1 shared the same safe-house with PW2 throughout the undercover operation yet PW1 testified that whilst in the safe house he had never discussed the case with PW2 because, according to his evidence, to do so would pervert the course of justice.  This applicant asserts that this answer was patently untrue.
iii.	The applicant points in the same vein to testimony by PW1 that for the operation on 23 March 2004 there was no discussion with PW2 as to how the operation was to be conducted.  The question naturally asked by counsel in response to this assertion was ‘why not?’; and the answer was that if he discussed the matter with his fellow officer “I'm afraid that it might affect PW2’s undercover operation.”  Again, it is said that, as a matter of commonsense, this was obviously untrue.
iv.	There was evidence by Inspector Cheng that the other officers did not view the video tape of the operation whereas PW1 said that he had.  Someone, contends this applicant, was not telling the truth.

21. We agree that on the face of things, some of these answers appear inherently improbable.  That said, these were issues of credibility that were canvassed by counsel in the course of cross-examination and, no doubt, in the course of their speeches to the jury and must have been considered by the jury to be peripheral to the question of the credibility of the police officers on the central issues.  Credibility on those issues was supported by video evidence of activities at the site and by the finding subsequently of marked money in the possession of this applicant.  We do not see this as affording a meritorious ground of appeal.

22. The applicant points to numerous occasions on which prosecution witnesses referred to K C Lee, Lee Wai Lam and Lo not simply by their names but as “defendant.”  Added to this there was an occasion when Lo was referred to by prosecuting counsel as D5.  This was the designation in the original indictment before Lo pleaded guilty, and, similarly, the reference to the others as defendants was no doubt triggered in the mind of the witness by the fact that on the original indictment, before they had pleaded guilty, they were indeed defendants.  Added to this is the fact that when reference was made to identifications at identification parades the witnesses were asked not only whether they had identified the particular defendants on trial but also the other three.  Then, there was an occasion when a prosecution witness referred to D2 as the person “who is now second defendant”.  The overall effect of this, says this applicant, is to have informed the jury that the other three had been charged and had been defendants at one stage and the only inference for the jury then to draw was – as indeed was the fact – that they had pleaded guilty at an earlier stage, and all this despite the fact that the judge had asked that witnesses should not refer to the others as defendants.  Nor was the matter addressed by the judge in the summing-up.

23. It would have been better had the two Lees and Lo not been referred to as defendants, but we are satisfied that this does not render the conviction of any of the applicants unsafe or unsatisfactory.  Counsel for the applicants did not object to the references, let alone seek the jury’s discharge.  The jury would have speculated equally as to the fate of these others had they not been called defendants.  Their existence and their roles had to be mentioned in the course of the evidence for otherwise the case could not be presented and their absence from the dock would in any event have been a noticeable fact.  More importantly there was no evidence before the jury that these three persons had pleaded guilty.  There was no real danger therefore that the jury would infer the guilt of D1 from the fact that co-conspirators had admitted theirs.  Once isolated reference had been made to them as defendants, a specific direction by the judge to the jury in that regard would have served only to draw further attention to the matter: it was by then best left alone. 

24. The applicant raised concern about the fact that several newspapers on 12 July 2005 referred to the fact that three defendants had pleaded guilty and the complaint is that the judge encouraged those acting for the applicants to the course that the jury should not be alerted to these news items by any reference to them.  The matter was, we believe, sufficiently dealt with by the judge in his summing-up in asking the jury to ignore any press reports addressed.  It is apparent in any event that the matter was not of sufficient concern to cause counsel to ask for the jury to be discharged.

25. This applicant raised, not surprisingly, the same ground in his case as that raised by the other applicants as to the jury questions and the way in which those questions were dealt with by the trial judge.  As we have earlier intimated, the evidence against D1 was of presence at the site on numerous occasions talking to various drug traffickers at or about the time of the drug deals and, most particularly, of highly incriminating comments made and overheard by the police officers.  These were comments that clearly showed someone in charge of an operation, warning the dealers to take care with whom they were dealing, giving instructions from time to time to close the store and to work out the funds due to him.  In addition there was the highly incriminating evidence of receipt by him of large sums of money amongst which were marked banknotes from drug transactions.  His testimony was that he was but a loan shark.  If the testimony of the police officers was accepted, their evidence was inconsistent with the role which he, the applicant, said he played at that site.

26. In these circumstances, we were satisfied that the first of the two questions raised by the jury did not impact upon this applicant's case as it did upon those of the other applicants whose appeals we have allowed.  There was no question in the case of this applicant, as there was in the case of the others, of any discrete involvement by him with Yu – and it was to the ramification of such a discrete involvement that the first of the jury questions was directed.  It was not his case that he was involved in discrete trafficking incidents with Yu or any other supplier of drugs at the scene; nor was there any evidence of he himself handing over or receiving drugs.  We are satisfied that the first of the two questions did not impact upon this applicant’s case as it did upon those of the other applicants whose appeals we have allowed.

27. This leaves, in so far as this ground is concerned, the issue of the second question asked by the jury for it is in this regard that this applicant alleges that what happened evidenced an unseemly rush by the jury to return a verdict.  Before the jury retired, the judge specifically told them that there was no time limit to their deliberations and that they should take all the time that they wished.  It would be a matter of pure speculation as to what happened that prompted the second question and, more particularly, what happened between the raising of the question and the delivery of the verdict.  There is no reason to believe that whatever it was prompted the question in the mind of one or more of the jurors, had not properly been resolved by the jury before delivery of the verdict. 

28. We considered the other grounds of appeal raised by the applicant but we saw no merit in them.  

29. For these reasons, we dismissed D1’s application for leave to appeal against conviction.