THE QUEEN v. LO SHING KEI AND ANOTHER

------------

------------------

JUDGMENT

------------------

Silke, V.-P.:

1. This is the judgment of the Court.

2. Four defendants appeared for trial before His Honour Judge Leong in the District Court upon a charge sheet containing two charges. The first was a joint one against Wong Tai Shing - D1 -, Chan Kin Yip - D2 - and Lo Shing Kei - D3 -. The second concerned only D4, Lau Ho.

3. The joint charge alleged in its particulars a conspiracy to steal, between 1st July and 29th September 1988, drugs and medications belonging to the Hong Kong Government. D4 was charged that, between 1st August and 29th September 1988, he dishonestly handled stolen goods namely: drugs and medications belonging to the Hong Kong Government knowing or believing the same to be stolen goods.

4. Before going further we think it would be useful to identify who the defendants were and the roles assigned to them by the Crown. D1, who was PW2 at trial, was the collector of the drugs. D2, who was PW1 at trial, was a medical doctor employed, first of all, at Queen Elizabeth Hospital and subsequently at Caritas Medical Centre. D3 was a medical doctor employed at Queen Elizabeth Hospital. D4 was an enrolled nurse also in the employ of the Medical Department of the Hong Kong Government.

5. At trial D1 and D2 pleaded guilty and were subsequently called in the course of the trial of D3 and D4 as witnesses for the prosecution. D3 was found guilty and sentenced to 9 months' imprisonment. He now seeks leave to appeal against that conviction. D4 was found guilty and sentenced to 6 months' imprisonment. He now seeks leave to appeal against that conviction.

6. The trial took place in October 1989 and these applications were first listed for hearing on 23rd March 1990. There was then an adjournment at the request of the applicants since there had been changes of legal representation. Various applications, upon which directions were given, had been made by the applicants and it was not possible to list this matter until last month. We mention this not in any sense of criticism but in order to explain the delay in the hearings which has resulted in the sentences imposed being served.

7. It was the Crown's case that D2 was approached by D4 in June 1988, D2 at that time being a houseman in the Queen Elizabeth Hospital and D4 a hurse at the same hospital. D4 enquired of D2 if he could buy drugs which he named as Duromine, Apisate and Zantac from private medical practitioners and if he knew any such practitioners. D2 then approached D3 who was also a houseman at Queen Elizabeth and who had been at University with him. D3 said he would make enquiries.

8. On 20th July 1988 D2 met D3 at Shun Tak Centre and D3 informed D2 that he could find no one to provide the drugs. D3 suggested that the two doctors should themselves prescribe Zantac, a drug dispensed from Government dispensaries. The object was to use prescription forms available to them, supply those forms to a collector who would then use the prescriptions to go to various Government hospitals and dispensaries and obtain the drug free. D2 contacted D1, a childhood friend of his, whom he knew wanted to change his job. He was to be the collector. It was suggested to him that he would be paid something in the region of $4,000 to $5,000 per month for so doing. It was arranged that a meeting would take place between D1, D2 and D3, but before this there was another meeting between D2 and D3 in D3's room at Queen Mary Hospital where D3 was then a houseman. D2 had by that time moved to Caritas as a Medical Officer. At that meeting D3 showed D2 the form MD53, which is a prescription form, and the Government Form 181. There was suggestion that they prescribe drugs other than Zantac to avoid suspicion. D2 then went to a restaurant where he met D1 who was there taught how to fill in the prescriptions on the forms.

9. The following evening D1 and D2 met D3 at the Hoi Nam Restaurant. The purpose of this meeting was for D3 to meet D1. D3 explained to D1 the procedures for obtaining drugs from Government dispensaries by the use of the form MD53 and by using follow up cards and discharged patients prescription sheets. He was also shown the chopmarks which were necessary to place on those sheets to indicate payment for fees had been made. D3 was told by D1 that the main aim was to obtain Zantac and its collection should start at the Queen Elizabeth Hospital. He also told D1 that he, D3, was then working at Queen Mary Hospital but was also servicing the Sai Ying Pun Clinic. He would later be able to obtain follow up cards of that clinic to be employed in their scheme.

10. Payment for D1 was discussed and D3 told him that he would receive $20 for each trip to the dispensaries and if he managed to make 10 trips a day he would make $5,000 to $6,000 a month.

11. The evidence of the details of this meeting mainly came from D2 but D1 did say that D3 had told him to confine the scheme to Queen Elizabeth Hospital and Sai Ying Pun Clinic for the time being.

12. Another meeting took place on 31st July 1988 in D3's room. D2 drove his car there picking up D1 on the way. It was D1's evidence that before that, D2 had shown him some prescription forms but D2 did not refer to this in his evidence.

13. D2 described that which took place in D3's room. He said he saw D3 take out a pile of documents from a bag amongst them being Queen Mary Hospital discharged patients prescription sheets, Queen Elizabeth Hospital discharged patients prescription sheets and copies of chopmarks which D3 had shown to them earlier. There were also follow up cards of Queen Elizabeth Hospital and of Sai Ying Pun Clinic. D3 told D2 to make chops from the marks as soon as possible so that the discharged patients prescription sheets could be used in the scheme. They discussed the frequency of dispensary visits. D3 told D1 that he should start on 1st August 1988, he also explained MD1117 which was an out patient prescription form in use at the clinic. These forms in blank could be supplied by D3 for D1 to use. D3 taught D1 now to make use of the forms. D1 said that he was taught by D3 how to write out these prescriptions and he was given a list of drug names which were to be included with Zantac in the prescriptions. This list was torn up but D1 copied it and produced that copy in evidence.

14. On 1st August 1988 D1 started to obtain drugs in the way he had been taught. He said that on that evening D3 phoned him and told him of the availability of MD1117 forms which would be placed at a place above a water tank in the male toilet at the clinic. D1 was to go there the following day to pick them up. This he did after 2:00 p.m.. These forms were produced as exhibit P.12.

15. In the evening of 3rd August D1 received a phone call from D3 who told him that more MD1117 forms would be available at the same place in the clinic. He was to go there and collect them. This he did on 4th August and found them where he expected them to be. One of these forms was a particular exhibit, exhibit P.13, an MD1117 form in the name of Tang Mo Woon. When D1 attempted to get drugs from the clinic by use of this form the pharmacist found the doctor's signature on it suspicious and was put on enquiry. D1 was alerted as to the suspicion and he departed rapidly leaving behind him exhibit P.13 and without obtaining drugs.

16. D1 immediately informed D2 of this aborted attempt and D3 telephoned D1 rebuking him for being so careless and warning him not to go to the clinic any more.

17. On 10th August there was a further meeting between the conspirators. D1 and D2 met first and then went to D3's room to meet him. D2 said that when he arrived he saw various forms in D3's desk relating to Queen Elizabeth Hospital and Queen Mary Hospital. These were discharged patient's prescription sheets, follow up cards and follow up cards of Tang Chi Ngong and South Kwai Chung Specialists' Clinics. There were discussions as to the making of the necessary chops for those clinics, visits to them and how to get to Princess Margaret Hospital and to South Kwai Chung Clinic. D3 also told D1 the consultation hours at the clinics. All the documents to which reference had been made were given to D1 by D3. That was D2's evidence.

18. There is a startling discrepancy between the evidence of D1 as to the events on 10n August and the version given by D2. D1 made no mention of any visit to D3's room and said that it was D2, at a restaurant, who gave him a bag with the documents and the time table of the consultation hours of the clinics.

19. On 16th September 1988, D1 said he met D3 in the morning at Queen Mary Hospital having arranged on the previous day with D3 that this meeting should take place, D3 then gave him a bag containing a pile of doctor's pay slips and follow up cards of Li Kar Shing Clinic. The pay slips contained the treasury numbers of Government officers which numbers were required in the filling up of MD53s so that civil servants could obtain drugs without paying fees.

20. Every Friday, D1 would hand over to D2 all the drugs he collected during the week and was paid the sum of $20 for each dispensary visit. D4 resumed his place in the scheme for after D2 had received the drugs from D1 he would sell them on to D4. This was first at a price of approximately $2 and later at $3 per tablet. The cover up drugs were thrown away or kept by D2 at his home if he thought them useful for some future purpose. Having paid D2 his expenses the balance of the purchase money provided by D4 was shared equally between D2 and D3. During the period of the scheme there were discussions between D2 and D3 as to the progress of D1's collection work and as to whether D4 would increase the price of Zantac or buy other drugs from them.

21. D1 was arrested on 28th September 1988. Shortly after that D2 was arrested. When the latter's premises were searched the police found a quantity of drugs contained in a mooncake tin-box. These were of various types and had different dates on their packets. It was D2's evidence that those with dates before 1st August had either been given to him by D3 for him to explore the possibility of their sale to D4 or had been prescribed for himself or his family use. Those with dates after 1st August were given to him by D1 and retained by him for future use.

22. D3 in evidence said that he knew D2 because they were fellow medical students and later fellow housemen in Queen Elizabeth Hospital. He accepted that the scheme which has been outlined was put to him by D2 and that he was interested in it. However, he found out at the meeting between himself and D2 at Shun Tak that D2 was not acting properly when D2 told him that his friends had found a plan to obtain discharged patients prescription sheets and follow up cards and to use them to obtain expensive medicine from Government dispensaries. D2 asked D3 to assist in obtaining such documents. D3 said he told D2 that this was unlawful and dangerous and he would refuse to take part. He said D2 then warned him not to tell anybody and, about a week after this, D2 again asked him to help and he again refused. He was warned and was told that if he did say anything about the operation he, D3's, name would be forged on the forms.

23. He went on that, in August 1988, as he had reported a burglary police came to his dormitory and were seen there by others in the vicinity. In September 1988 D2 telephoned him and asked if he had told anyone of the operation. D2 thought that dispensaries seemed to be suspicious. D3 said he had not but, shortly after that, he was arrested.

24. Basically, it was the case for the defence that D2 implicated D3 because of his refusal to take part in the scheme and because he thought that D3 had informed the police of what was going on.

25. The trial judge was fully aware that, as he put it, D2's "credibility is at stake". He warned himself of the dangers of relying on his evidence in the absence of corroboration, and having looked, found none. He did however find corroboration of the evidence of D1, whose credibility also was at issue, in three items: exhibits P.13 and P.22 and the evidence of PW3 Wong Suk Mui who was a nursing officer at Sai Ying Pun Specialists' clinic and had spoken to both exhibit P.13, which was the prescription form in the name of Tang Mo Woon, and exhibit P.22 which was the treatment sheet of that patient at the clinic.

26. Many and varied were the attacks made at the trial upon the two accomplice witnesses and the evidence they gave. Mr. McCoy in his submissions on behalf of D3 to this Court, he was not at trial, continued and extended those attacks and he has itemised ten matters as further and better particulars of his second ground of appeal which is that the trial judge failed to adequately consider, or consider at all, the numerous discrepancies of substance in the evidence. This non-evaluation of the evidence he submits renders the convictions unsafe and unsatisfactory.

27. We find it necessary to consider in detail but two of the items. One was the matter which the trial judge did refer to in his detailed and explicit Reasons for Verdict, the divergence as between D2 and D1 on 10th August 1988 meeting, to which we have made reference. Mr. McCoy suggests that in relation to that the trial judge failed to adequately consider its significance. The second, is a matter to which the trial judge made, surprisingly, no reference at all. We shall come back to that in a moment.

28. The meeting of 10th August was an important one in that D2 had explicitly stated that it was D3 who was providing the necessary papers for the scheme to continue, had discussed how the requisite chops were to be made and had suggested the extension of the scheme to two further places, informing D2 of the consultation hours at those places.

29. D1's version was totally disparate for there was no mention of D3 in his evidence at that point at all and the place of his meeting with D2 was not D3's room but was the Hoi Nam Restaurant. The only portion of his evidence which did coincide was that it was D2 who handed him all the various documents. The judge was aware of this difference. He clearly considered it to be a minor discrepancy for he said at page 15, in the consideration of that which had been submitted to him in relation to the evidence given by D1 and D2:

"I find that despite all that had been said on the evidence of P.W.1 and 2 by counsel for D3 and all the minor discrepancies, both witnesses are credible witnesses and I accept their evidence."

30. He had prefaced that passage by his specific finding that he did not find the difference between their evidence as to the happening on 10th August:

 

".... significant as to vitiate the credibility of both witnesses."

31. With respect, that was not quite the point. The issue was specifically directed to the credibility of D2.

32. The second point arose thus: in a statement to the police after his arrest, D2 had cast aspersions upon the integrity of D3. In cross-examination he was asked questions concerning his knowledge of D3, who had been his contemporary, from 1982 to 1987, in Hong Kong University. He repeated his allegation that while D3 was educated at St. Paul's Co-educational College he had not been accepted for matriculation from that College because of his misconduct. He elaborated on that by saying that D3 had then to go to St. Paul's Boys School because of this refusal. He said he had been told by D3 that the reason for his non-acceptance in St. Paul's College was that he had offended teachers and that his English language was of a D standard only. D2 continued that he had heard from schoolmates in medical school that D3's conduct there was not good and that is what he meant by misconduct when he spoke to the police. He further said that in medical school D3 had failed his degree examination because he had cheated in the final. He had been told that by D3 himself who had asked him to accompany him to see the senior lecturer to ask his help. He further elaborated on the matter by saying that the cheating had occurred in the Obstetrics and Gynaecologic aspect of the final and D3 had been found out by the professor.

33. In evidence D3 denied any such matters. A letter from St. Paul's Co-education College, signed by the principal, was introduced into evidence. In it D3 was described as a quiet and self-motivated student. The records of the school showed that while he was with them his conduct has always been good and he was never penalised for misconduct. In 1980, he had been offered a place to continue his studies in the lower Form VI arts stream. But, as he wished to study science, he was admitted to St. Paul's School. Science clearly would be of greater assistance to a doctor.

34. There was also produced a letter from St. Paul's School describing D3's conduct while he was there as good and that he had had a satisfactory career. Finally there was produced a letter from the Acting Faculty Secretary of the University of Hong Kong certifying that D3 had completed all the requirements for his degrees of Bachelor of Medicine and Bachelor of Surgery. He had no record of misconduct of any kind during his under-graduate career in the Faculty of Medicine.

35. It is no easy thing to upset the findings of fact of a trial judge. The trial judge here had gone into great detail in his Reasons for Verdict. Had the first matter, that is the 10th August meeting divergence, stood alone it might well have been, despite the other criticisms which have been levelled at his conclusions, that we would not have been persuaded to feel a sense of unease. But given the defence raised that D2 was dragging in D3 to serve his own purposes, and bearing in mind that D1 in his numerous statements to the police made no reference to D3's involvement until the sixth of those statements, the totally unwarranted attack made by D2 on the integrity of D3 was something which clearly needed to be dealt with by the trial judge. Had it been fully considered we find it difficult to say that the judge would not have found it a matter which would have seriously affected the credibility of the uncorroborated evidence of D2.

36. While Mr. McCoy has attacked the items referred to as corroborative of the evidence of D1 as being, in law, incapable of corroborating that evidence, we do not think it necessary to deal with the submission for, if the evidence of D2 was to be found incredible, we do not consider that the evidence of D1 standing alone would have been sufficient to ground a conviction.

37. In the light of our finding it is not necessary for us to refer to the matter of the handwriting evidence given by one Mr. Shun who confessed himself in cross-examination not to be an expert in handwriting. Mr. McCoy attacked the trial judge for not making it clear in the course of the evidence that he found Mr. Shun not to be an expert and for making that finding only in his Reasons for Verdict. It certainly would have been preferable had the trial judge indicated, once Mr. Shun had declared himself not to be the expert the defence hoped him to be, to rule on the matter but this in no way deprived D3, as has been suggested by Mr. McCoy, from calling someone better qualified. There could have been no doubt in the mind of counsel at trial that Mr. Shun's evidence was not that of the expert he had hoped him to be.

38. In the event, we find the conviction of D3 to be unsafe and unsatisfactory.

39. Turning now to D4. In his Reasons for Verdict the trial judge made reference to eight matters arising from the evidence and he accepted that any one of those taken by itself could amount only to suspicion but, taken together, he felt that it must have been obvious to D4 that the drug Zantac which he bought from D2 was stolen. He drew the irresistible inference that D4 knew or believed those drugs were stolen when he bought them.

40. Clearly D4's involvement in this matter, for he accepts that he did buy the drugs from D2, a doctor, in circumstances which can only be described as furtive, was nighly unethical. He then sold those drugs to a chemist shop, their intended destination apparently being Taiwan. That substantial amounts of Zantac found its way into the hands of D4 was not disputed nor that his transactions with D2 were always for cash. There was a taped telephone conversation between D2 and D4 which could certainly be taken to indicate their uneasy relationship and the improper nature of their conduct.

41. Mr. Mumford, with him, Mr. Souyave, who appeared in this Court for D4, has attacked in detail each of those eight points in the hope of persuading us that the inference drawn by the trial judge from them was by no means an irresistible one.

42. Mr. Bruce, the Deputy Crown Solicitor, who appeared for the Crown, very fairly accepted at the outset of his submission that the case against D4 was a circumstantial one and was never overwhelming. He accepts that the trial judge was aware - this from the evidence of D2 - that D2 had told D4 throughout the period of the scheme that the drugs he was selling to him were sample drugs. But he also accepts that this aspect of the evidence in relation to D4 received little attention on the face of the Reasons of the trial judge. However, he points out to us that D4 was said on occasions to have asked the source of the drugs even after he had been told that they were samples which is indicative of his concern at the dubious nature of the transactions being carried out. D4's assurances in the course of the taped conversation given to D2 as to safety were, as Mr. Bruce says, strongly suggestive of illicit and illegal business. While he accepts that some of the strands of the rope which the eight points collectively make up were somewhat frayed, nevertheless he submits that it was still open to the trial judge, looking at all the circumstances, to draw the inference he did. In the light of those somewhat frayed strands the question for this Court is: Was the conviction safe and satisfactory?

43. The trial judge in considering the case against D4 found the evidence was principally that of D2 combined with other circumstantial evidence. He accepted the evidence of D2 which by implication must mean that he had told D4 that the goods were samples. There was evidence read into the trial from a Dr. Wong who is in charge of sales and marketing of Glaxo Company Limited, the manufacturer of Zantac. It was perhaps unfortunate for the Crown that that evidence did not condescend to the particular issue raised here on samples. In it, and this was unchallenged, Dr. Wong was asked the procedure of the supply of Zantac to Government hospitals. He describes this as being through a direct dealing with the Medical and Health Department. Upon receipt of orders from them Glaxo would deliver drugs to the pharmacies which had given orders. There were no direct dealings with Government doctors. Glaxo did however provide an insignificant amount of samples to doctors merely to show what a product is like but that the quantity supplied to Government doctors is so limited that the supply is not documented. The statement contained no specific reference to the supplying of samples to private medical practitioners. It did talk of price: to Government $3.20 but to the private sector $6.725 - this until July 1988. The sale price to the private sector was raised to $7.06 per tablet as from 15th August of that year.

44. Samples, Dr. Wong said, were usually placed in a box on the surface of which is endorsed the fact that they are samples and not for sale. Each packet in the box contained 10 tablets.

45. It was never suggested that the tablets which were handed over to D4 were packed in boxes with such endorsement on them. The sample tablet itself is indistinguishable from the general sale tablet.

46. The trial judge had made reference to Zantac being a restricted drug. That may well have been an eliding of ideas for Zantac is on open sale but can be obtained from Government pharmacies only on prescription. But that may not have been the meaning which the judge intended to give to the use of the word "restricted" for, in his point 2, he had gone on to say that D2 was unable through ordinary business channels to obtain the drugs from the manufacturer. The reference is ambiguous.

47. Mr. Bruce found himself in difficulty in supporting point 4 where the judge found that D4 must have known at the time of buying them from D2 that the Zantac were not in ordinary packing. This appears to relate to the endorsement of sample on the boxes which on the evidence D4 had never seen.

48. We have considered with care the detailed submissions of Mr. Mumford in respect of each of the eight points and that which Mr. Bruce had said in reply. There certainly was an aura of shady dealings about the transactions between D2 and D4 - unethical as we have stated them to be. It is a big step from that to a finding that D4 knew that at the time he received the tablets from D2 that they were stolen tablets.

49. With respect to the trial judge we are again left with a feeling of unease about the safe and satisfactory nature of the conviction of D4, however improper his conduct may have been. We do not think that the matters to which the trial judge made reference lead irresistibly to that inference.

50. In the event we grant leave, treat the hearing of the applications as the hearing of the appeals and allow the appeals of both D3 and D4, quash the conviction and set aside the sentences.