THE QUEEN v. IP TAT MAN AND ANOTHER

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Ip Tat Man - D1 - and Li Shu Fun - D2 - appeared for trial before His Honour Judge Corcoran, sitting as a Deputy Judge of the High Court, upon an amended indictment containing four counts of which the second and fourth were alternative to the first and third. The first count alleged trafficking in dangerous drugs and its particulars were that, on 22nd November 1989 at the Silver Palace Restaurant, N0.39, Argyle Street, Ground Floor, Mongkok, they jointly trafficked in a dangerous drug, namely 0.73 grammes of a mixture containing 0.58 grammes of salts of esters of morphine.

3. The second count alleged the possession of that quantity of drugs for the purpose of unlawful trafficking on the same day and at the same place.

4. The third count was also one of trafficking in dangerous drugs and its particulars alleged that, on 23rd November 1989 at the Fu Shing Restaurant, Nam Cheong Street, Shek Kip Mei, Kowloon, they jointly trafficked in a dangerous drug, namely 1,406.52 grammes of a mixture containing 1,112.74 grammes of salts of esters of morphine.

5. The fourth count was possession of that quantity of dangerous drugs for the purpose of unlawful trafficking on the same day and at the same place.

6. Ip Tat Man was convicted by the jury on count 1 and count 3; Li Shu Fun was convicted by the jury on count 3 having been found not guilty on counts 1 and 2. They now seek leave to appeal against those convictions.

7. It was the case for the Crown that on 22nd November 1989 constable 1072 (PW1) and a police informer, who was referred to throughout as K787 (stet), went to the Silver Palace Restaurant in Argyle Street in the course of the afternoon. There they met Ip. Ip and the constable negotiated the sale of heroin, the constable, stating that he wanted two pieces, was told that the price was 730, which translated as HK$73,000, per piece. Ip gave the constable a packet, which was produced as exhibit P32, as a sample. Ip also gave him his pager number and told the constable that he could contact him on that number.

8. It was the Crown's case in respect of the second set of counts that, on 23rd November in the morning, constable 1072 together with constable 22719 and the police informer K787 went to the Fu Shing Restaurant. There they met Ip and Li who were seated at table 24. There was also another man, a woman and a young boy at that table when the police arrived. Constable 1072 was carrying a black bag, marked as exhibit: Dl, which contained HK$20,000 in one thousand dollar, five hundred dollar and one hundred dollar notes which was intended to represent the $146,000 negotiated price for the two pieces of drugs. Li asked constable 1072 to show him the money. The constable put the black bag on the table, unzipped it and permitted Li to look inside. Li then told Ip to go with K787 to look at the "goods". Ip and informer left the restaurant and were away for some 15 minutes. It was after Ip and the informer had left the restaurant that the man, woman and boy who had been at the table left_ leaving remaining Li and the two police constables. The judge continued, at page 4 of the summing up, his recitation of the facts, by saying as follows:

"I do not go into that conversation here, but after 15 to 16 minutes of being absent, the 1st defendant [Ip} and the informer returned. You will remember that the informer whispered something into the ears of the two constables.

9. This reference to "whispered something", which is detailed at a later point in the summing up, presages the third ground of appeal submitted by Mr. Matthews, who with Miss Marina Chan, appeared for the appellants in this court. We shall come back to that later.

10. On their return Li asked for the bill, took it and went to the cashier's desk followed by constable 22719. At that point, constable 1072 rose and gave the arranged signal to other police in the area by touching his head. Then, 22719 went to arrest Li and 1072 went to arrest Ip, both being assisted by the other police officers present. There was resistance put up by both Ip and Li and, after some struggle, they were subdued and handcuffed and one of the attending constables, 10730, formally declared arrest together with another, constable 4325. Subsequently, the subject matter of the third and fourth counts was found in a car in Block 8 at Pak Tin Estate at about 10 a.m. This car had been under surveillance in the Hang Lung Carpark where it was said Ip and Li had picked it up.

11. It was the case for the Crown that the drugs in that car were to be collected by the supposed buyers once the deal had been consummated at the Fu Shing Restaurant.

12. It had been the police evidence that they themselves had left the car in the Hang Lung Carpark at 8:30 a.m. and at that time it was free of drugs. It had been driven to the car park by sergeant 16052 and constable 23167 together with the informer. Having done so, the three constables waited until sergeant 7707 and constable 4325 arrived. They then left leaving the newly arrived police party on observation duty. It was those two police officers who saw Ip and Li arrive and drive the car away at about 8:30 a.m. The car was then lost sight of until just after 10:00 a.m. when it was examined at the car park at Block 8 of Pak Tin Estate when the drugs were found in it. It was also the prosecution's case that, upon arrest at the Fu Shing Restaurant, Ip had the key to that car, DU4825 in his possession. In connection with another ground this aspect of the Crown's case will be considered in greater detail.

13. Upon arrest, each of the applicants made a verbal statement, having been cautioned. On the return of the police party with the applicants to Shek Kip Mei Police Station each of the constables to whom those verbal statements had been given made a post-recording. This was produced as exhibit P14 relating to Ip and exhibit P13 relating to Li. The post-recording having been made, each of them then made a general statement, taken in question and answer form. It was alleged that upon arrest Ip said:

"I owe people money due to gambling therefore I conveyed things in vehicle this morning for people."

14. After their return to the police station, this, as we have said, was noted down and having been read over to Ip and a further caution being administered Ip said "I do not have anything more to say." He was then asked:

"Well, will you answer some questions which I put to you? Are you willing to answer them?"

Ip said that he was willing. There then followed 22 questions. In answer to the question "You said that you owed people money due to gambling. What did you mean?" he elaborated on his owing money to people by saying:

"I always went to Macau to gamble. However, on Sunday when I went to gamble at Lisboa Casino in Macau, I lost heavily. Therefore, I obtained a loan of $20,000 from the loanshark. Everytime, I had to repay $500 until the loan was repaid in full.

15. He said he conveyed the goods for someone named "Ah Kei" but had no way to locate that person. He then, perhaps in the most incriminating answer that emerges from this statement, said:

"I conveyed things in vehicle for people on the morning of today and it is the dangerous drug which you, the police, seized from the vehicle."

He went on to give the number of the car as

DU4825. He said that he had collected it from the Hang Lung Carpark with another man whom he named as"Sze Yeh Chai" - this apparently was Li. He described taking the car to the outside of Block 8 of Pak Tin Estate and the route he took to get there. Having parked the car he and his companion went to the Fu Shing Restaurant. He did not know where the drugs in the car had been obtained but had been told by the person "Ah Kei" that they were in the car. He was to be paid $1,500 as a reward for this work. He had been given the key to the car by the person "Ah Kei". He denied that he resisted arrest.

16. Ip also made a second statement. This at 6:10 p.m. on 23rd November, exhibit P15. He was told by the recording constable, PC10730, that he had some questions to ask him for the purpose of "clarification". A caution was administered again. Ip was asked if he were willing to answer questions to which he replied in the affirmative. These questions were directed towards that which had become the first count in the indictment and were inculpatory. He made it clear that that small quantity of dangerous drugs was for the purpose of sample for which no charge was made. He had been given the drugs by a person he named as "Ah Wah".

17. When that which Li had said at the scene of his arrest was post-recorded and read to him, exhibit P13, he stated that he had something to add. A further caution was administered to him but, after saying that he would write what he wished to say himself, the statement taking process was interrupted because the report room at Shek Kip Mei Police Station was too crowded. It resumed again some ten minutes later, yet a further caution was administered, and Li then said that he did not know what the matter was, he had gone to have tea with Ip Tat Man when he was suddenly arrested by the police. He had nothing to do with dangerous drugs and he would give, in court, the reason why he resisted arrest. He said that he would not answer any further questions.

18. Neither applicant gave evidence nor were any witnesses called on their behalf.

19. The defence case, as put in cross-examination, was that this whole matter was a frame up. The statements made by Ip were forced out of him, he having been assaulted to force him to make them. He had protested his innocence throughout. The statement in question and answer form and the post-recording were something written by the police which he was forced to sign. He had wanted to see a doctor but was refused. He was also induced to sign in told by constable 10730 that, if he signed, then would mitigate for him before the judge and that merely say he had lost money in gambling. As to statement at 6:10 p.m. it was put that there were other police officers present as well as the recorder, constable 10730, and that Ip was told that, as he has signed in the morning, he should therefore sign again. He was forced to place his signature on that second statement, again by violence and inducement.

20. All of this was drawn to the attention of the jury the submissions of counsel then appearing for Ip had only primary education and that the constable inform Ip that he had a constitutional right not to make a statement. When that last was put to 10730 that constable replied that he thought Ip was old enough to take care of himself. There were, of course, the series of cautions to which we have earlier referred.

21. In his grounds of appeal Mr. Matthews, in ground 1, complains of the direction to the jury at pages 33 and 34 of the summing up relating to the presumptions which arise under the Dangerous Drugs Ordinance, Cap. 134. The trial judge made it plain at page 32 that he was dealing only with the concept of possession relative to the second and fourth counts, that is possession for the purpose of unlawful trafficking. It is clear that when he gave the complained of direction the expression at the top of page 32 "Now in regard to these charges" related back to his earlier passage when he spoke of counts 2 and 4. He went on then to refer to the "huge quantity" of heroin in count 4 suggesting that the only purpose for having this large quantity of heroin would be to traffic in it. The passage complained of reads thus:

" Now I referred to statutory presumptions, and I will deal with those now. In cases such as this, that is prosecutions for trafficking in dangerous drugs, or possession of dangerous drugs for the purpose of unlawful trafficking, possession of dangerous drugs, the law sometimes comes to the assistance of the prosecution in its task of proving its case to you, in proving its case against an accused person, and it does so by providing that upon certain primary facts being proved beyond a reasonable doubt, certain other facts will be presumed to exist until the contrary is proved." (Emphasis supplied)

22. It is suggested that the direction was confusing and left open to the jury the option of applying the presumptions to the offence of trafficking simpliciter.

23. The suggestion of judicial error in ground 1 (ii) was not proceeded with.

24. Ground 2 is a general ground which suggests that, when viewed overall, the directions to the jury in relation to the four counts in the indictment were confusing and unclear.

25. We do not accept that the passage set out above amounts to a misdirection. we accept that it could have been put in clearer terms but the jury could have been under no illusion that the judge, who because of the nature of the indictment considered it necessary to direct on the meaning of possession and on the presumptions under sections 46 and 47 of the Dangerous Drugs Ordinance, was directing on those matters only in relation to counts 2 and 4 to which they did apply. The emphasised phrase which triggered off these grounds was, in context, clearly a slip and was immediately corrected by the following phrase "or possession of dangerous drugs for the purpose of unlawful trafficking, possession of dangerous drugs". It was made clear in earlier directions that counts 2 and 4 were alternative to counts 1 and 3. The judge clearly distinguished between the Crown's case on the trafficking counts indicating that this was that the applicants were actually in the process o?the sale of those drugs to the police officers and that it was only if they were unsure that this offence was made out that the jury would then go on to consider the alternative counts 2 and 4.

26. He dealt separately with each set of counts starting his direction in relation to the trafficking counts at page 23 of the summing up. He defined trafficking and applied that the definition to the evidence before the jury.. Having done this, and upon the summing up resuming after an overnight adjournment, the trial judge at page 29 went on to deal with the alternative charges of possession for the purpose of unlawful trafficking giving, as we have indicated, his directions as to possession and it is clear that it was in this context that the passage complained of arose. In our judgment the jury would not have been misled.

27. Ground 3 relates to the evidence that the informer, upon his return to the Fu Shing Restaurant, whispered to the police officers. The actual evidence was given by PC1072 and he stated:

"The informer whispered to me and 22179 that the car had been parked at Block 8 Pak Tin Estate and there was something in it."

28. Mr. Matthews' point is that this evidence was inadmissible as being hearsay and was highly prejudicial to the applicants in that it tended to show that at that time there were dangerous drugs in the car. He further complains that, while the judge directed the jury that it was not evidence and expressed the hope that they had forgotten it he, nevertheless, repeated in terms that piece of evidence to the jury.

29. The first reference is at page 26 of the summing up when the judge said this having made reference to the informer and Ip leaving and returning:

" ... We don't know where they went, there is no evidence where they went, all we know is they left the restaurant and they came back 15 minutes later."

He then went on:

"You will take that in the context of the conversation at the table. But you don't take into account what the informer whispered to the two constables. You may have forgotten it, I hope you have. But you don't take that as evidence, against either the 1st or 2nd defendant."

30. Had the trial judge left it at that then there would have been nothing for Mr. Matthews to complain of. But, in this over lengthy and somewhat disjointed summing up, the judge saw fit to make further reference to this matter. Having recited at page 62 the evidence of constable 1072 as to what took place at the Fu Shing Restaurant, he came in the course of his recitation to the point of the return of the informer and Ip. He then said this at p.63:

"What the informer whispered o?course is not evidence against the other two defendants. But it does tell you, for instance, how 1072 may have come to know that the car was parked at Block 8.

'The informer whispered to me and 22719 that the car had been parked at Block 8, Pak Tin and there were something in it.'"

31. A quite unnecessary and unfortunate repetition of that which he had told the jury to forget.

32. We shall come back to consider the effect of this when we are considering the overall submission that the convictions are unsafe and unsatisfactory.

33. We note, however, that this whisper took place in the presence of both Ip and of Li and there is nothing to suggest that they were incapable of hearing that which was said.

34. Ground 4 related to the person Of the sergeant 10652, and in the context of the suggestion that there was a frame up in which at least the informer was involved. This centres round the sergeant being shown, at the time of trial, to have been suspended because of investigations into an allegation that he had corruptly split with another informer, not the informer in this case, an informer's fee. Subsequent to this trial, and we permitted fresh evidence to be led in respect of this under section 83V of the Criminal Procedure Ordinance, Cap. 221 and in the interest of justice - this without objection from Mr. Saw, who appeared for the Crown - sergeant 10652 had pleaded guilty on 15th January 1991 to two charges of soliciting an advantage and was sentenced to a period of 9 months imprisonment on each concurrently. The summary of facts which had been accepted by the accused sergeant at that trial stated that the sergeant was aware that his then informer had received an information fee of $150,000 in relation to a forged bank note offence. The two had arranged to meet and in the course of that meeting, monitored by the agents of the Independent Commission Against Corruption, the sergeant asked for $30,000 of that reward from his informer. After negotiations the sergeant agreed to accept $20,000 of which he was immediately given $10,000 in cash. The remaining sum was to be deposited into his bank account. Mr. Matthews's submission is that, had the trial judge been aware of matters which had happened subsequently, he would have given a much stronger direction than in fact gave as to the nature of sergeant 10652 as a witness in the case before him.

35. In the course of argument Mr. Matthews submitted that the sergeant had lied in the course of his evidence before the court in relation to his suspension and that it would be unsafe to rely on any of the evidence he did give, particularly in so far as it involved the informer in this court. We should have an unease about the background of this case which should lead us to have a lurking doubt of sufficient strength to find these convictions unsafe and unsatisfactory.

36. Mr. Saw submits that the direction given by the trial judge was in any event an adequate one and, second, that the evidence of the sergeant was peripheral to the generality of the evidence in this case.

37. The direction the judge gave was at page 15 of the summing up and reads:

"You have been told, members of the jury, that Sergeant 10652 has been suspended from duty in connection with an allegation by his informer that he split some information money. Now we don't know exactly what that allegation is, but he was suspended from duty, and no doubt this will alert you to be extra careful when assessing his credibility and his evidence, and you will look to see how his evidence is supported or confirmed by the other evidence of other officers. But, members of the jury, it is for you to assess this sergeant's credibility and his reliability in his evidence as a witness in this case, and it is for you to assess the weight which you'll give to his evidence."

38. He then went on to make reference to the defence allegations that there was a frame up. Having at various portions of the summing up dealt with the evidence of the sergeant in relation to these offences - we shall refer to this in a moment - he made a further reference at page 69 of the summing up to the suspension by saying:

" And we have heard, members of the jury, that Sergeant 10652 has been suspended because of some sort of a difference with his informer. The allegation by the informer is that the sergeant split the information money, he took a bit for himself and gave the informer a share. We don't know how much he is alleged to have kept for himself. This is an allegation against him by the informer.

    The Station Sergeant said you have to be very careful with informers, you have to be very cautious and very careful. And, indeed, that register is a register to ensure that no bad elements get in there. But you could be suspended from duty for being amongst bag (sic) elements. But since an informer is a bad element himself anyhow - you probably know what it means, to be a long time around with these sort of underground - underworld characters, I think.

    But, anyhow, 10652 - the informer that 10652 is involved with is not the informer in this case, it is another informer, and he is suspended from duty. But, members of the jury, you also remember that, you know, 10652 is just one of a team of 11."

39. There was evidence in this instant case that the informer here was to be paid something like $28,000 for his assistance.

40. The evidence given in relation to sergeant 10652 was first of all that on 22nd November at about 11:30 p.m. he and a constable hired the car, DU4825, and, having done so, drove it to the Airport Police Station where he handed over the key to the station sergeant. At 6:00 a.m. on 23rd November he picked up the car checked it, searched it and then he, the informer, and constable 23167 drove it to the Hang Lung Carpark. There he parked it and handed the key to the informer. At an earlier point, another police team consisting of sergeant 7707, PC4325 and WPC 15000 also drove to the same car park. They saw sergeant 10652 park DU4825 and kept observation after 10652, the informer and PC23167 left. The sergeant 10652 and the constable saw the informer speak to two men outside the Treasure Restaurant in Shan Tung Street. The sergeant identified these two men as Ip and Li. He saw something being handed over by the informer to Ip. The suggestion was that this was the key to DU4825. Constable 23167 was unable to identify either of the men.

41. The two policemen then went back to the Airport Police Station where they met with the informer who remained with them until they left for the Fu Shing Restaurant.

42. While this was going on, the observing team at the Hang Lung Carpark saw Ip and Li arrive at about 8:25 a.m. Ip appeared to be looking for something, opening the doors, the boot and looking underneath the car. Eventually, Ip got in the drivers seat and was joined by Li in the passenger seat. The car was driven away towards the exit of the car park followed by the police observation team in their car. DU4825 did not leave at the exit but returned to the second floor, followed by the police car but the police car then lost DU4825.

43. The police car then left the car park, picking up as it did so, a constable who had been on surveillance duty outside it. That constable had seen DU4825 leave the car park and stop at some traffic lights.

44. The next. time the car was seen was when another police party went to the car park at Pak Tin Estate at about 10:00 a.m. that day. Included in that police party was sergeant 10652. The car was searched, the key found on Ip at the Fu Shing Restaurant being used to open the door. The drugs were found. There was also found in a compartment underneath the clock a Hang Lung Carpark ticket which was dated 23rd November. This had the thumb print of Li on it. On the exterior of the rear door of the car was found the palm print of Ip.

45. It was part of the defence case put in cross-examination that, when Ip and the informer left the Fu Shing Restaurant - and before the car was found in the Pak Tin Carpark - a duplicate key of that car was made; that on the informer's return to the restaurant he handed that key to one of the constables at the table and the key was planted on Ip. All part of the frame up.

46. No doubt had the trial judge been aware, but of course he could not have been so aware, of the conviction of sergeant 10652 for spliting informer's fees he would have explicitly drawn this to the attention of the jury and no doubt have given his warning to them as to the credibility of the sergeant in stronger terms.

47. In the course of the evidence the sergeant could not, without being warned by the trial judge have been asked to answer a question as to the truth of the informer's allegations which is the status they then had. What happened in cross-examination was this (p.473):

"Q. And as I understand, you have been accused of certain matters by the ICAC which matters are solely based upon the allegations of a police informer.

A.    Yes.

Q.    And please tell me if I am wrong. Basically the allegation that this informer has made against you is that you have spilt his informer fee, you have some, he has some, something like that.

A.    I don't agree.

Court: But that is the allegation.

Q.    I am not saying it is true, I am saying what the informer is alleging against you.

A.    I don't know.

Q.    You don't know. But it is concerning your relationship with this other informer, who has made this allegation that has caused you this problem with the ICAC.

A.    That I agree.

48. The cross-examination then continued relative to the untrustworthyness of informers generally it being put that the sergeant's case was a classical example of an informer being so untrustworthy that he "bit the hand that fed him". To which suggestion the sergeant agreed.

49. At the highest, this passage amounts to equivocation as to the sergeant's knowledge of the allegations laid against him. As he had not at that time been placed on trial it is unsurprising that he was not prepared to make a full admission. In any event, the real thrust of this cross-examination was to highlight how untrustworthy informers are. We do not consider that the sergeant can be said to have lied in such a manner as to make the evidence he gave unreliable.

50. The issue of the duplicate key remained a hypothetical one. No evidence was called in support of it. We accept Mr. Saw's contention that the generality of the evidence of the sergeant was peripheral to the main evidence in the case. He was but a part of the general prosecution scene.

51. Considering both the "whisper" ground and the "sergeant 10625" ground, we do not find, although the repetition of the evidence the jury was supposed to forget was unfortunate, that either of these grounds engenders in us a strong sense of a lurking doubt as to the satisfactory nature of these convictions. On the evidence overall, if believed, the jury were entitled to come to the conclusions they did. The appeal is dismissed.