IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 410 OF 1975

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JUDGMENT

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1. In 1974 police investigations uncovered the existence of a widespread organisation for the illegal importation of dangerous drugs, principally morphine and opium, to Hong Kong. We do not know, and we are not concerned with, the manner in which this came to light but it is evident that a large number of persons thought to be connected with the trade were interviewed by the police and eventually the present nine appellants were charged with a variety of offences concerning the importation of dangerous drugs, but the trial was restricted to the three counts of conspiracy upon the indictment. It seems clear also that from the outset those charged with the duty of investigating and prosecuting the offences were confronted with the difficulty that the only evidence available to prove the conspiracy charges was, effectively, that of persons who had themselves been involved in the alleged conspiracy. We were told that apart from the nine prisoners there were originally the names of some sixteen other alleged co-conspirators on the back of the indictment as prospective witnesses. In the event only seven of those witnesses were called. It was evidently decided that the only proper course was to pursue those who were thought to be the persons at the top of the organisation and, having made its selection of those, the Crown called, in the proving of its charges, seven persons who were admittedly the accomplices of the accused but who had been, on the authority of the attorney General, offered immunity from prosecution for any offences which their evidence might disclose against them on condition that they gave true evidence against the others. One of these witnesses who had originally been charged with the other accused was discharged some time before the trial commenced upon a nolle prosequi being entered in his regard.

2. The case which the Crown sought to establish from the mouths of these witnesses was as follows: The first appellant, who since 1964 has been the proprietor of a number of illegal gambling establishments, had some time in the year 1967 also become involved with the trafficking of drugs. In that year he enlisted the aid of a businessman called NG Ping (P.W. 2) with whom he was acquainted and who in March or April of that year assisted him by delivering some drugs which had been imported illegally. At the first appellant's request NG Ping then introduced LEUNG Fat-hei, the owner of a junk, who agreed to work with them and in November 1967 the organisation was increased by the introduction of the second appellant (introduced by the first appellant as his uncle) who brought with him a lieutenant of his own, CHAN Chai. It was made clear to NG Ping and Leung that the second appellant was to be, together with the first, in charge of future operations. A week later the second appellant introduced the third appellant to NG Ping and with the organisation at that stage of development there followed a series of operations involving the importation of drugs from Thailand in co-operation with some Thai nationals commencing with the delivery of a quantity of drugs in December of that year. A second venture was set on foot in January of 1968 and at this point LEUNG Fat-hei introduced three new recruits to the organisation a man called KWOK Cheung, a fisherman, his wife SIN Koo (the fifth appellant) and a fisherman called LAM Man-yiu (P.W. 4). These were introduced to NG Ping by Leung as persons who were going to assist in their operations.

3. With the organisation at that stage of development there ensued a series of importations, all of them following a closely similar pattern. The first appellant would inform NG Ping that a consignment was on its way from Thailand and the latter would alert LEUNG Fat-hei and his assistants. Two or three days later Leung would inform NG Ping that the drugs had actually been landed. NG Ping would pass the information on to the first appellant. There would then be liaison between the first and second appellants, and the second appellant's foki, CHAN Chai, would arrange the picking up and distribution of the goods. When this had been done the first appellant would give a sum of money to NG Ping who would then arrange for paying off the other members of the organisation who had taken part in the transaction.

4. After the fourth of these transactions, which took place in April of 1968, there was a falling out between the first and second appellants over the unequal distribution of a portion of the drugs which were landed as a result of that operation and the second appellant withdrew with his lieutenant, CHAN Chai, from the syndicate of the first appellant and set up upon his own. At this date the first appellant's organisation consisted of the persons already mentioned and, according to NG Ping, it included also three brothers called Chau - although, according to one of them who was called as a witness (P.W. 5), CHAU Nan, he and his brothers did not join until the following year. At all events the first appellant's syndicate continued to function through 1968 and 1969.

5. The ninth of these ventures took place in August 1969 and it was special in its character because on this occasion it was proposed to pirate a cargo of drugs from a Thai boat on the high seas. The first appellant instructed NG Ping to find some new recruits specially for this task. It was thus that the seventh appellant, who is NG Ping's clansman, came into the picture. The seventh appellant in his turn enlisted the witness, CHENG Kwok-hon, (P.W. 3) who was in fact the half brother of NG Ping and who together with the others brought this piratical expedition to a successful conclusion, the drugs being distributed in the usual way.

6. The tenth operation took place in November 1969 and the eleventh in July 1970, most of the persons already mentioned taking part on both occasions. The twelfth consignment arrived in September 1970. This consignment was special in two respects. Firstly it was the Crown's case that a portion of the drugs landed on this occasion was given by the third appellant into the care of a person called FUNG Lam who was otherwise quite unconnected with the first appellant's syndicate but who later gave evidence against the third appellant in this connection; secondly, because it was after this consignment that NG Ping retired from the first appellant's syndicate and his place was taken over by the seventh appellant.

7. NG Ping was the most substantial witness for the Crown in relation to the first count, which takes the affairs of the first appellant's syndicate up to 1969. That syndicate was however said by the Crown to have continued to function until 1974, when the arrests took place, and the only reason why the whole period of operations was made the subject of two separate counts was because in the year 1969 there was a change in the law relating to dangerous drugs as a result of which a variety of offences (including the offence of dealing with dangerous drugs, the subject to the first count) were embodied in a provision proscribing such activity under the wider description of trafficking in such drugs. It may thus be said that the distinction between the two counts is of a wholly technical nature. In truth it is the Crown's case that there was a single conspiracy involving the appellants named in both those charges extending from 1967 to 1974. Furthermore every witness called by the Crown to give evidence against one or more of the named appellants in the first count gave evidence against one or more of the appellants named in the second count. The syndicate appears to have functioned in precisely the same way throughout the whole period between 1970 and 1974. It may well be, although the point was not argued before us, that to charge the first to seventh appellants with conspiracy to deal with dangerous drugs between 1967 and 1974 in one count would have been perfectly proper since dealing with dangerous drugs is still criminal conduct under the amended Ordinance, though now included within the general term "trafficking in dangerous drugs". It may be immaterial, since this was a charge of conspiracy, that a charge of dealing with dangerous drugs between those dates would have been open to objection. To conclude this outline of the facts alleged under the first and second counts it should be added that there appears to have been roughly another dozen consignments from Thailand after the retirement of NG Ping. The total quantum of drugs imported by the first appellant's syndicate between 1968 and 1974 was 20 tons of opium and 2 tons of morphine.

8. Meanwhile the second appellant had gathered about himself in like manner a band of helpers and together they carried on a series of operations very similar in character to those planned and executed by the first appellant and his men. There was no evidence to show what the second appellant and his group had been doing between 1969 and 1972 but two witnesses who had been of his band were called by the Crown to testify against him and the other two named appellants on the third count. That count, of course, does refer to an entirely separate and distinct conspiracy from the one covered by the first two counts. The first of these two witnesses was CHENG Yung (P.W. 10) who became acquainted with the second appellant in 1971 and in fact became his partner in a gambling casino. CHENG Yung introduced a man called TSOI Ma-wai to the second appellant and this man, who is the brother of the eighth appellant, appears to have been the initiator of an agreement involving himself, CHENG Yung and KO Yuet-ho (P.W. 11, the second of the Crown's accomplice witnesses on the third count) as a result of which in August and November of that year they took part in importing two consignments of dangerous drugs for a person called KONG Shum-chuen, who was not involved in either of these conspiracies. KO Yuet-ho (P.W. 11) who had been drawn into this trade by CHENG Yung (P.W. 10) appears to have taken part only in the later of those two consignments for KONG Shum-chuen. In April 1973 TSOI Ma-wai introduced them to a "new boss" who turned out to be the second appellant. Thereafter the second appellant is said to have used TSOI Ma-wai and CHENG Yung and their subordinate workers as his regular team for the importation of drugs which he was organising from Thailand.

9. Between November 1972 and July 1974 CHENG Yung and KO Yuet-ho took part in the importation of about nine consignments. It is not altogether clear that all of these were on behalf of the second appellant. There is undoubtedly evidence by CHENG Yung that in 1973 he and Ko took part in the landing of drugs on behalf of the other boss, KONG Shum-chuen. However there is no doubt that the bulk of these consignments were for the second appellant. Cheng and KO Yuet-ho gave evidence describing the part played in these operations by the eighth and ninth appellants. The second appellant appears to have been the overall boss of the organisation and its operations, while the eighth and ninth appellants took some part in the actual picking up, removal and distribution of the drugs. We were informed that between April 1973 and November 1974 the second appellant's syndicate succeeded in landing no less than 5 tons of opium and 1/5 of a ton of morphine blocks.

10. Upon the appeal Mr. Charles Ching appeared for the first and second appellants; Mr. Patrick Yu for the third appellant and Mr. Anthony Sedgwick for the remaining appellants. Over some eight days of hearing counsel subjected the evidence and the summing-up of the learned trial judge to a minute and detailed scrutiny and we must now turn to consider whether, upon the arguments advanced, it has been shown that the case of the Crown against any one of the appellants was insufficient to support the finding of the jury in his regard.

11. It is submitted by Mr. Ching on behalf of the first and second appellants, and his argument is adopted by counsel for the other appellants whose convictions depend in part upon accomplice evidence, that the judge exercised his discretion wrongly in not excluding the evidence of the accomplices, NG Ping, CHENG Kwok-hon, CHENG Yung and KO Yuet-ho. The submission is in four parts. First, objection is taken to the judge's statement that it seemed to him that there was no real likelihood that the Crown would renegue on its promise not to prosecute these witnesses. The basis of the objection is that the judge did not expressly refer to the fact that the immunity given to these witnesses was conditional upon their giving full and true evidence at the trial of the appellants and it is suggested that he overlooked this important matter in exercising his discretion whether or not to exclude their evidence. The contention is that by overlooking the condition the judge necessarily failed to consider that the immunity could be withdrawn if the condition were broken. Furthermore, since the immunity was conditional it did not remove the inducement to the witnesses to give the evidence the Crown wished to have rather than to tell the truth, so that, even if the judge did not overlook the condition entirely, it is said he cannot have given it the weight that it served. As to CHENG Yung, while he was in fact charged as a co-conspirator, a nolle prosequi was entered in his favour and as that did not bar a new prosecution for the same offence his position was in the event no different from that of the others. We are not persuaded that the judge did overlook the conditional nature of the immunity. It had been the foundation of much of the argument in support of the objection and it is impossible to believe that the judge had forgotten it. He was not obliged to give detailed reasons for his ruling and we do not regard his failure to mention the condition as fatal. It is doubtful whether anything in the ruling itself can fairly be said to indicate that he did have the form of the immunity in mind, but it is abundantly clear that he had it in mind at two later stages of the trial, for in an exchange with counsel he expressly mentioned the condition and in his summing-up he reminded the jury of it. In our view once it is assumed that the judge did consider all the relevant factors in deciding how to exercise his discretion it is impossible for us to say that his decision was one with which this court can properly interfere. We think Mr. Macdougall makes a good point when he refers to s.115 of the Criminal Procedure Ordinance and draws an analogy between a conditional pardon, which is expressly authorised by the Legislature, and a conditional immunity in the form in which immunity was given in this case. However much weight a judge might think it appropriate to attach to the possibility of a future prosecution of an accomplice witness the conditional nature of the immunity is clearly not an overriding factor. On the contrary we think that in the present case the judge was entitled to conclude that the factors affecting the public were of much greater weight. Nor are we persuaded that the judge erred in having regard to the actual legal position rather than to the position as it might appear to the minds of the accomplices themselves. The suggestion that he did so misdirect himself is based upon the consideration which he gave to the possibilities of their future prosecution. In fairness to him, he was merely dealing with some of the arguments which had already been advanced before him by counsel: had he not mentioned them that omission would doubtless have been made yet another ground of appeal. It has been urged upon us that the evidence in fact given by these witnesses reveals that they were strongly influenced by the fear of possible prosecution. We do not propose, in relation to this ground of appeal, to refer to the various passages which were read to us from the record but merely say that we think all of them can be explained, and in most cases more reasonably explained, differently. The argument that if the Crown should prosecute any of the accomplice witnesses the court would have no power to interfere with and to prevent such prosecution is, we think, misconceived. If the witness broke the condition of the immunity granted to him it is true that the court would have no reason to interfere. In practice it might be difficult to establish if there had been a breach of condition or not, though the witness himself might tend to think that he would be wise to tell the story the police expected to hear, whether it was true or false. In the present case the number of accomplice witnesses available to give evidence made it unusually likely that the police would be able to prove what was the truth. Although he certainly appeared to be doing so Mr. Ching disclaimed any intention to argue that the court could not interfere if the Crown should prosecute in breach of the immunity granted and we have no doubt at all that the court would have power to do so. Indeed, authority for this is to be found in Reg. v. Turner Action No. 2355/R/74 (as yet unreported).

12. In Godber v. The Queen (Criminal Appeal No. 181 of 1975) a similar argument was advanced by counsel for the appellant concerning the alleged failure of the trial judge to exclude accomplice evidence. Certain authorities were cited in support of that argument including Reg. v. Pipe⁽¹⁾, on which Mr. Ching relied in the present case. Notwithstanding the fact that in the present case, as distinct from the case of Godber, an application to exclude the evidence was actually made to the trial judge, and despite the persuasive address of Mr. Ching in this court, we can only repeat that nothing in the authorities referred to in that case or in the present case can be found to support any general rule, related solely to the fact of the evidence being that of accomplices, which would exclude such evidence in limine. That is not to say that there could never occur a case in which evidence tendered by the prosecution might not be legitimately rejected unheard because of some extreme want of honour or probity or some unusual oppressiveness on the part of the officers of the Crown. One hopes that such a situation is most unlikely to occur but if it did the court would without doubt intervene on the ground that no considerations as to the public interest can ever justify the protection of that interest by means amounting to a public scandal. It cannot be said that the trial judge in the present case, in exercising his discretion, was mistaken on the facts for it seems clear that he must have had the conditional nature of the immunity offered to the witnesses in mind after counsel had addressed him. He was not mistaken on the law for his reference to the possibility of the Crown reneguing must be taken to refer to the situation that would arise should the witnesses be prosecuted for offences disclosed by their evidence in court even though that evidence was the evidence which the Crown regarded as the truth. He cannot have applied the wrong principle since the gist of the application to exclude was the likely effect of the inducement upon the minds of the witnesses and hence upon the quality of their evidence. It is true that he contented himself with saying that there was no real likelihood of the witnesses being prosecuted and that he linked this to the promise of immunity given to them by the prosecution. He was certainly right, for if all the witnesses had gone back upon their story and the Crown had sought to prosecute them it could only have done so on the basis of their own extra-judicial confessions and those would almost certainly have been excluded as being produced by inducement and it would have been difficult if not impossible to prove the offence; while if they did not go back on their story and were yet prosecuted then, although the question of inducement would not arise and the Crown could call some of their convicted associates to testify against them, the court would, as has been suggested, have been entitled to intervene to prevent what would amount to a wholly unconscionable proceeding. Admittedly the ramifications of the inbuilt safeguards to their promised immunity may not have been patent to the minds of the witnesses and it is at least arguable that when they came to testify - and assuming that by then they wished to deny in whole or in part what they had said previously - they might have felt that they could only go back on the original story at the risk of prosecution. But even if the trial judge did not have that in mind - and we cannot say that it has been shown that he did not - it must be repeated that nothing that has been said to us by way of general principle and nothing in any of the decided cases put before us can be said to justify the proposition that he was wrong not to exclude the evidence of these witnesses out of fear that their situation as accomplices with conditional immunity might cause them to adhere to a story which might not be the truth. That contention failed in Turner's case, it failed in Godber's case and we can only add that it seems most unlikely to succeed in any case in which the only objection to the evidence is that it may be tainted by inducement. The very paragraph to which we were referred in Archbold (38th Edition paragraph 401) makes it plain that accomplice evidence is always admissible provided it is relevant. If it be permissible to call an accomplice, having simply omitted his name from the indictment (the third of the three courses suggested in that paragraph), it is difficult to see why a witness in such a position should feel any more secure from prosecution or any less tempted to curry favour by damning his associates than would a witness who in addition has been promised that he will not be prosecuted if he tells the truth. We can find nothing in this ground of appeal.

13. In the second ground of appeal taken on behalf of the first and second appellants complaint is made of the judge's assertion that:

Mr. Ching says this was a misdirection in that it suggested to the jury that there was only one step in their deliberations with respect to the accomplices' evidence, instead of two. He says the two steps were first to decide whether the jury believed the accomplices' evidence and second whether it was corroborated. He submitted that there was no difference between that and the alternative way in which he said the matter could be approached, i.e. that the jury should first decide whether the accomplices' evidence was credible and then whether it was corroborated. With respect it seems to us that there is a great difference between these two approaches. It is surely preferable, at least in a criminal case, not to distinguish between belief and belief beyond all reasonable doubt: that distinction can only lead to confusion, particularly when addressing a jury. To suggest to a jury that they may possibly not believe a witness beyond all reasonable doubt although they believe him is to court misunderstanding and, indeed, to lead them into realms of unreality. That no question of corroboration can arise if the evidence of the accomplice is totally incredible or unworthy of belief must, of course, be accepted: Reg. v. Kilbourne⁽²⁾. That would be too obvious to require stating here were it not for the fact that the argument on behalf of the appellants seems to require that the jury should be told it expressly. However, evidence may be prima facie credible and yet not be believed, which in the context of a criminal case means believed beyond all reasonable doubt, for no lower standard of belief is relevant. By suggesting that there is a double standard of belief the ordinary man will be confused: to him anything less than belief beyond all reasonable doubt should be regarded as nothing more than suspicion, though it may be strong suspicion. It is here that corroboration becomes important. The fact that a witness is an accomplice introduces a possible reason for not believing his evidence and it is to eliminate any doubt which may thereby be raised that corroboration is to be sought. The matter is made clearer when one compares a case in which a statute makes corroboration essential. The jury may there in fact be entirely satisfied that the witness requiring corroboration has told the truth, but they are still not entitled to be satisfied beyond all reasonable doubt in the absence of corroboration. In a case where corroboration is required solely as a matter of practice there is no such prohibition: the jury may be satisfied beyond reasonable doubt even in the absence of corroboration, but it is dangerous for them to do so. If they are so satisfied they may convict even in the absence of corroboration, but the purpose of requiring corroboration is to dispel the doubt which the witness's participation in the offence has raised. In other words, as the judge said corroboration is sought to enable the jury to test whether an accomplice who is prima facie credible is telling the truth. If in a case where corroboration is required as a matter of practice the jury may convict in the absence of corroboration, it is absurd to suggest that before considering whether here is corroboration the jury must make up their minds whether they believe the witness, for, if they are satisfied of his veracity without considering any corroboration there may be and in spite of the inherent danger, they can convict in any event and to consider whether or no corroboration existed would be a pointless exercise. Rather are the jury to ask themselves whether there is evidence which could be corroborated, that is to say evidence which is prima facie credible, and then to see if there is corroboration - and finally to decide whether they do in fact believe the evidence. When one clears away the semantic difficulties the real complaint here is that the jury were not told that there was no need to look for corroboration unless they thought there was evidence capable of corroboration. With respect that gives no credit at all to the intelligence of the jury: it is wholly unnecessary to spell the matter out in that way.

14. Mr. Ching has suggested that there are difficulties arising from the decisions to which he has referred. That may be so but what has already been said is consistent with all the authorities. No doubt Lord Hailsham was surprised by the argument based upon Reg. v. Kilbourne⁽²⁾ when, in Reg. v. Boardman⁽³⁾ he said:

"What I said in Reg. v. Kilbourne was not that to give or require corroboration a witness must be believed without doubt. What I said, and what I meant, was that unless a witness' evidence was intrinsically credible he could neither afford corroboration nor be thought to require it."

Nothing we think could be clearer than that; the only difficulty arises when it is assumed that by "otherwise credible" and "intrinsically credible" Lord Hailsham meant that the witness requiring corroboration must be believed though not necessarily believed beyond all reasonable doubt. That is not what he said nor do we think it is what he meant. By using the word "otherwise" he indicated that he was predicating a measure of doubt - which was to be expected, since the very reason for requiring corroboration was to eliminate just such a possible doubt.

15. In fairness to Mr. Ching it should be added that there is no impropriety in using the word "believe" in a civil case as meaning something less than belief beyond all reasonable doubt, although to many the word would connote a certainty which is something more than a satisfaction on a mere balance of probabilities. He could fairly claim biblical support for the weaker sense of the word for in Mark 9.24 the father of the child afflicted with a dumb spirit is described as saying "Lord, I believe; help thou mine unbelief". But evidence may be prima facie credible without its necessarily being such that at the conclusion of even a civil case it is in fact believed. The first way in which Mr. Ching worded his argument is, therefore, open to objection on the ground that the first step in relation to corroboration is not to ask whether a witness is to be believed but whether he is prima facie credible. The judge said nothing which was inconsistent with that and this ground of appeal fails.

16. Finally on behalf of both of these appellants it is said that the judge failed to put the case for the defence fairly to the jury. None of the appellants gave evidence in the case and it is not suggested that any specific line of defence was overlooked. What is said is that the judge's summing-up was altogether one-sided. The defence of all the appellants, including the first and the second, was that the witnesses who had spoken against them were not telling the truth and the burden of this ground of appeal - which is made a complaint in respect of the other appellants as well - is that the summing-up inadequately explored the shortcomings of the prosecution case and failed to point out matters which might be taken to be in favour of the defence. Under this ground, of course, all the arguments urged on behalf of the point that the judge should have excluded the evidence of the accomplice witnesses on the ground that their testimony was tainted by inducement are put forward once more but this time upon the basis that that feature of their testimony was not adequately brought to the attention of the jury. Primarily what was suggested under this ground was that the judge should have stressed the possibility that the police, in their zeal to see that those persons whom they regarded as being the principal offenders were brought to justice, had combined with certain of the accomplice witnesses to produce a coherent story and that there were certain matters which might lend colour to this possibility which should specifically have been mentioned to the jury. It is by no means necessary to refer to all such things as were said to have been relevant in this regard. Counsel conceded that a line must be drawn between failure to stress features which ought to have been mentioned and anything in the nature of an excursion through minutiae. It must be said however that a considerable number of the things brought to our attention could only, in our view, fall within the latter category. The scale of that criticism can perhaps best be exemplified by referring to certain of those matters which counsel considered to be the most serious omissions and to which most time was devoted. The witness NG Ping was the principal witness against the first accused, and gave long and detailed evidence about many occasions upon which, as the first accused's trusted lieutenant, he had received instructions about the importation of the drugs and had reported back to him upon their arrival. A general criticism of his evidence (and indeed of the evidence of many of the accomplice witnesses) was that he showed an eagerness to get on with his story and not to be interrupted by questioning. This, it was said, was some indication that he, like the others, had learned to parrot his evidence which, indeed, covered a very long period of time and went into some detail upon matters which had occurred years previously. In this regard a great deal was made of the fact that at one point in the evidence, in answer to a direct question by counsel, he said that he had "memorised" his evidence. Leaving aside all questions of possible misunderstanding by virtue of interpretation we are quite satisfied that this meant no more than that, when put to it by the police, and no doubt out of the desire to save his own skin, he had sought to recall, in, as great detail as he could, events in which he had been involved together with the first appellant and certain of the other appellants.

17. Then it was said that the witness CHENG Kwok-hon, who had given evidence against the first appellant touching three consignments between September 1969 and April 1971, had been "destroyed" as a witness. Two matters were urged in favour of that view. Firstly, it appeared that in his deposition at the commencement of the proceedings he gave a somewhat more frank account of his part in the piracy than he was prepared to give at the trial; secondly, there was the evidence given by Cheng concerning three visits paid to the house of the first appellant. On the first of those occasions he went to complain about the seventh appellant not having paid him part of his due in respect of one consignment of drugs. It is clear from the evidence that the first accused had spoken to him about that matter and that as a result he was paid by the seventh appellant. On the two subsequent occasions Cheng went with the seventh appellant to the first accused's house to discuss whether they would continue in the first appellant's service and on those two occasions it was his evidence that the first appellant took no part in the conversation. In cross-examination he was asked whether he agreed that the first appellant had a high falsetto voice, and he maintained that he had not heard the first appellant speak - a curious answer in the circumstances. Then there was the witness LAM Man-yiu, who gave evidence of a somewhat indirect kind against the first appellant. There was an occasion when he felt he had not been paid his just due and he said that LEUNG Fat-hei, asking him to fix the engine of a boat, overcame his reluctance to do so by assuring him that the first appellant would be able to pay him as he, the first appellant, had many big restaurants. This testimony is likewise said to have been destroyed because, in chief, the witness said that the name of the first appellant was mentioned and then in cross-examination said that only the "boss" was mentioned, whilst in re-examination he repeated that the name NG Sik-ho had been mentioned. In addition, counsel put it to this witness directly that the story he was telling disclosed matters of detail which would be impossible for anybody to remember and he appeared to agree with this suggestion. Finally against the first appellant there was the evidence of CHENG Yung. He recounted having overheard a conversation between the first appellant and the sixth appellant whilst they were in a cell at the court on remand. In the course of this the first appellant has said to have upbraided the sixth appellant for not having taken responsibility for the money which the sixth appellant had remitted on behalf of the first appellant to Thailand. CHENG Yung gave a positive date for this event and added that is was during the committal proceedings. This was incorrect and, when it was pointed out to him, he suggested a later date.

18. Now it is clear that none of these matters was put specifically to the jury by the judge and for convenience one may add the following points which likewise were not specifically drawn to their attention : (a) the admission by Superintendent Woodward that there may have been some unfairness in the police procedures relating to the arrest of the first appellant and his wife inasmuch as they were not told at once what the purpose of their arrest was, and also that a young female employee of the first appellant was questioned by another police officer who tried to dissuade her father from having a lawyer in attendance; (b) the fact that the first appellant was the proprietor of a firm called the "Precious Stone Company" in Hong Kong and also was associated with a company with the same name in Thailand and that he was engaged in the jewellery trade; that he was an owner of restaurants and casinos and that he also carried on a trade in jade with Thailand, all of which might be sources of or associated with the considerable sums that passed between Hong Kong and Thailand; (c) the possibility that the sixth appellant's silence when admonished by the first appellant, in the cell where they were together with CHENG Yung, concerning the sixth appellant's failure to acknowledge that the money was his, might have been a circumstance that told in favour of rather than against the first appellant. Similar matters were urged against the evidence of KO Yuet-ho and CHENG Yung, who were principal witnesses to testify against the second appellant, but they scarcely reached even the scale of those deficiencies to which reference has been made already in the evidence of the witnesses who testified against the first appellant. The evidence of NG Ping of course touched the case both of the first appellant and the second appellant.

19. Now it is clear that the learned trial judge did warn the jury in the clearest possible terms not only that these witnesses were the accomplices of the appellants but that they were also, each and every one of them, persons of the most questionable character. In addition he dealt very clearly and forcefully, if briefly and generally, with the powers of the police in investigating such matters and with the possibility that persons in police custody, may be at a disadvantage and that there is a danger that the police may exceed their lawful rights in coming at what they believe to be the truth of the case. In addition he reminded the jury, again in very general terms, that there had been discrepancies in the evidence and he asked them to consider the possibility that there might have been, as he put it, a "frame-up" engineered by the police to secure the conviction of the appellant. We have carefully considered the points of detail which have been mentioned as well as numerous other points of the same sort but of less significance. Every one of them was explored at length in cross-examination and the full implications or suggested implications of these and many similar points made on behalf of the other appellants were, we understand, fully explored in the addresses of counsel, which occupied some two and a half days at the conclusion of the evidence. It will often be a matter of very nice judgment on the part of a trial judge who has the task of addressing the jury at the end of a long and complicated case involving many accused persons to decide how much of the detail of the evidence he should draw to the attention of the jury. The central issue for the jury in respect of the first and second appellants (as indeed in respect of all the other appellants) was the credibility of those witnesses who spoke against them. The jury were well apprised by the judge of the need to be cautious in respect of the testimony of those witnesses and it is inconceivable that by the time they came to consider the evidence every questionable circumstance affecting it and every doubtful nuance contained in it had not been fully borne in upon them through the combined labours of counsel and the trial judge. Notwithstanding the able and persuasive argument of Mr. Ching we cannot find any material misdirection or non-direction affecting the cases of his clients; there was abundant evidence against the first appellant on the first and second counts and against the second appellant on the first and third counts upon which the jury could convict.

20. The evidence concerning the third appellant, CHAN Wing-hung, is that of NG Ping and one FUNG Lam. NG Ping said that shortly after he met the second appellant the second appellant took him to the Golden Horse Restaurant and introduced him to the third appellant. There he asked NG Ping to co-operate with the third appellant.

21. The next reference to him by NG Ping is in connection with an incident at the Golden Horse Restaurant. It arose out of the consignment of April, 1968, which was to be shared between the wife of the first appellant and the second appellant and which ended in dispute over the division of the part consisting of morphine. NG Ping reported to the first appellant and his wife that the second appellant's share had already been removed from the junk which brought the consignments into Hong Kong. The first appellant's wife told NG Ping that she wanted him to meet "someone" and they went to the Golden Horse Restaurant. There they met the third appellant and the lady tried to introduce them but was informed they had met already. A person aged about 40 then joined them and she told NG Ping "to fix up with him". During this time the third accused said nothing. NG Ping asked this man if he was there to collect the drugs - apparently the lady's share- and on being told that he was an appointment was made between NG Ping and the man to meet later.

22. The only other mention of the third appellant by NG Ping is in reference to a consignment which arrived about September 1970 - about two years later. He described an incident in the Pak Hei Restaurant in early September at which flags and part of a banknote were received from the first appellant which were to be the signals and means of identification between those people on the Thai boat bringing a consignment of drugs and arms and those on the ship to receive them. The meeting, according to Ng in his evidence in chief, took place in the beginning of September. The operation was completed. The consignment arrived and the first appellant was informed by Ng. On the direction of the first appellant Ng met the first appellant's wife the next day and according to him, was taken by her to meet the third appellant, again at the Golden Horse Restaurant. It might be remembered here that the third appellant had been introduced to Ng by the second appellant but by 1970 the first appellant and the second had parted. They met the third appellant and a short while later a young man, aged about 20, arrived and Madam Cheng told NG Ping to fix up matters with "that foki". Ng said he did not know whose foki he was. During the conversation the third appellant was present. Ng said he took the young man off and introduced him to those who had been responsible for landing the consignment.

23. No further reference is made by Ng to the third appellant in his evidence but by reason of one of the grounds of appeal of the third appellant the date of the meeting in the Pak Hei Restaurant is extremely important. Needless to say, he was cross-examined at length and vigorously by Mr. Yu. In the course of that cross-examination Ng admitted that a number of days would intervene between making the arrangements to meet at sea the boat bringing the drugs, e.g. receiving the signal flags and bank notes etc., and the arrival of the drugs in Hong Kong. He said it would take 1-2 days from the time the drugs were received at sea till they arrived in Hong Kong and usually four days from the time he, Ng, received instructions to arrange thr rendezvous. In further cross-examination it was put to him that in his evidence in the magistrate's court he had said that the meeting to arrange the rendezvous was on the 9th, 10th or 11th of September, but he disagreed with this. He said he was referring to a date on which the first appellant told him drugs were seized by the Government and he was instructed to investigate if there was "a double crosser". He was adamant however that prior to the 10th of September the first appellant had told him that some of the drugs had been seized. In further cross-examination he was asked to tell from the beginning how the operation commenced and he said that in the beginning of September he met the first appellant in the Pak Hei Restaurant. Unfortunately his narrative was interrupted there but later he said :

and further, that it was before the 10th September that he was told by the first appellant that "the goods" had been seized.

24. The only other witness to give evidence concerning the third appellant was one FUNG Lam. He said he met the third appellant, whom he had known for a long time, towards the end of August and the third appellant informed him that if he had "anything to be done" he would inform the witness. The witness said that a few days later he met the third appellant who asked him to keep some morphine blocks for him - about 30 to 40. The witness agreed, and an appointment was made for the next day. The next day they met and as a result the witness received the morphine blocks and took them to his home. There were four parcels. That, so far as it is relevant, is the end of that witness's evidence involving the third appellant.

25. It so happened that at this time the home of FUNG Lam was under surveillance by the police and on the 2nd September he was seen taking parcel into the house. Surveillance was maintained until the 10th September when the premises were raided and a quantity of morphine and opium was recovered. The witness was duly charged and, on a plea of guilty, convicted and sentenced to two years' imprisonment.

26. If then, the evidence of NG Ping is accepted, and there is no evidence to the contrary, that an operation was planned in the beginning of September and that it look four days from then for the drugs to arrive in Hong Kong, then clearly the drugs seized in the home of FUNG Lam could not be part of the planned consignment. Again, if the first appellant told Ng that "the drugs" had been seized before the 10th September in a godown then equally clearly those seized on the 10th of September in FUNG Lam's house could not be those drugs.

27. In his summing-up to the jury the learned trial judge referred to the two meetings in the Golden Horse Restaurant where on each occasion a foki came who was to take delivery of the goods. The judge commented on the fact that the third appellant had said nothing on those occasions and added:

"It is curious he does not speak, and you may wonder what is the purpose of his being there at all. You would think that from the question of security there was no point in his being there but, on the other hand, you might also take the view that if he was not part of the conspiracy, why should he be waiting at the time when NG Ping was taken to that cafe."

What he said there is unexceptionable, but he continued:

"... (FUNG Lam) said that he stored four parcels of morphine on behalf of the third defendant. You may think that these four parcels were part of the consignment that Ng Ping says was made in September of that year. That was NG Ping's last consignment and was one in which he was actually taken by the wife of the first appellant to the Golden Horse Restaurant. The dates would seem to tie in."

The third appellant as his second ground of appeal says that for the learned judge to suggest that the dates would seem to tie in is a misdirection.

28. Mr. Yu in support of this ground pointed out that there was no evidence whatever to demonstrate any activity of the third appellant from the time he was introduced to Ng in November 1967 by the second appellant until April 1968, although a number of consignments had been brought in. He said that although Ng had said that he was brought by Madam Cheng to the Golden Horse Restaurant "to meet someone" the fact that they met the third appellant there could be fortuitous and that "the someone", was, in fact, the foki who was to collect the drugs. He said it was unlikely that Madam Cheng did not know all the conspirators, yet she did not know that Ng and the third appellant had already met. (It might perhaps be mentioned here that NG said that Madam Cheng frequently paid him for his own efforts and those of LEUNG Fat-hei and the others). As to the second meeting at the Golden Horse Mr. Yu said, despite NG Ping's evidence that they went to the Golden Horse Restaurant to meet the third appellant and found him sitting there, NG Ping's evidence was consistent with him and Madam Cheng going there really to meet the foki who later came into the restaurant and who later went off with Ng to collect the drugs. There was no evidence of the third appellant taking any active part or saying anything.

29. Against that background of tenuous evidence Mr. Yu says that it was a misdirection for the judge to say to the jury that they might think the drugs of the third appellant found in FUNG Lam's house were part of the September consignment adding that the dates would seem to tie in. Mr. Yu contended that, unless it could be shown that the two transactions dovetailed, FUNG Lam's evidence should not have been admitted. He said that the presence in the Golden Horse Restaurant of the third appellant was consistent with an explanation other than furtherance of the conspiracies with which he was charged; that this was an important part of the appellant's defence and that the learned trial judge should have drawn the attention of the jury to it but had failed to do so. He maintained that his failure to do so, taken in conjunction with his reference to the dates of the FUNG Lam incident and the September consignment seeming to tie in, were highly prejudicial to the appellant and misleading to the jury, particularly as an analysis of NG Ping's evidence showed they could not fit in.

30. Mr. Macdougall in reply contended that it was a mistake to focus too narrowly on this matter of the dates. He said that NG Ping's evidence of what happened at the beginning of September could refer to the arrival in Hong Kong of the drugs. That that being so, and it being natural that an importer of drugs was likely to split them up and distribute them in various places, it was possible that part of them reached FUNG Lam through the third appellant. He argued that it was no coincidence that the third appellant was in the Golden Horse Restaurant when Ng and Madam Cheng went there (as Ng said, "to see" the third appellant), but was to arrange for the disposal of the drugs in which disposal the third appellant was to take a part. He argued that the dates did seem to tie in and that it was for the jury to decide, whether in fact, they did. He maintained there was no misdirection.

31. Attractive as Mr. Macdougall's argument may be it seems clear that when NG Ping was asked about the consignment he said it was arranged in the beginning of September and proceeded to give detailed evidence about receiving flags and a foreign bank note from the first appellant in the Pak Hei Restaurant. If the third appellant was in possession subsequently of that, or part of that, consignment it was a most damning piece of evidence. If there was some evidence before the jury which suggested or might suggest he was in possession of part of the consignment and at the same time there was, to say the least of it, strong evidence to suggest that he could not have been, then we feel it was the duty of the learned trial judge to bring the conflict to the attention of the jury. To omit to do so in such circumstances would alone leave the direction open to question; to suggest that the dates seemed to tie in is in our opinion fatal. We would like to stress that it is no insubstantial doubt that we entertain in respect of the case of this appellant. There was evidence before the court that another drug syndicate not connected either with the first appellant or the second appellant was in operation at least from 1972. At that time there were at least three operators in the field and it is unlikely that KONG Shum-chuen was a new arrival since CHENG Yung had first met him in 1966 in connection with a heroin stall. Again, it will be remembered that the case for the Crown was that the second appellant had introduced the third appellant to the first appellant's syndicate. The witness, CHENG Yung, who gave evidence against the second appellant, told the court about a conversation in which the third appellant took part when he and the first and second appellants were in custody upon remand. He said that both the first and the second appellants jeered at the third appellant for his stupidity and the second appellant said that if the third appellant had caused his driver, i.e. FUNG Lam, to remove the drugs from his car in time nothing would have happened. To this the third appellant replied:

"I did. I did inform the Lo Sai or boss, but how did the policemen know about that so soon?"

That remark was certainly susceptible of the interpretation that the third appellant was referring to an entirely different Lo Sai or boss from either of those persons with him. However, all the trial judge said about that conversation was this:

"Whatever exactly those complaints were you may well think that they do in fact amount to an admission of dealing with drugs, and further that is comment to show that he did have a boss with whom or for whom he was working, and that he was not operating on his own but within some system or some conspiracy;".

Although he then went on to tell them that they must decide whether they thought that that conspiracy was the conspiracy with which he had been charged in the first and second counts that direction, coming hard upon the heels of the direction that the drugs given to the appellant by FUNG Lam could have been part of the drugs seized in September 1970 from the first appellant, instead of alerting the jury to the possibility that those drugs were from another source entirely could have served only to reinforce their belief that the Crown had proved that the third appellant had got those drugs from the first appellant. Without the evidence concerning those drugs the case against the third appellant amounted to nothing more than that NG Ping was asked by the second appellant to co-operate with him and thereafter he was twice seen in suspicious proximity to others who were proved to have been in the drug trade. While there was ample evidence to show that he was involved in the drug trade in some respect, the evidence legitimately available to the jury to connect him with the conspiracy with which he was charged was so tenuous that even upon a proper direction they might well have failed to convict. In the light of the misdirection it is plain that his conviction upon those counts cannot stand.

32. All of the appellants with the exception of the sixth appellant, YIU Chung-yau, whom the Crown concedes to be in a different situation from the rest, seek to rely upon the points made by Mr. Ching on behalf of the first and second appellants in relation (a) to the alleged failure of the judge to exercise his discretion to exclude the accomplices' evidence and (b) the alleged failure to give a sufficient warning to the jury concerning the danger of acting upon uncorroborated evidence of accomplices. Those points have already been dealt with and as nothing has been added to Mr. Ching's argument, nothing further need be said of them as regards each of the remaining appellants.

33. One important remaining ground which is common to all the appellants, although it is somewhat variously phrased in the different memoranda of appeal, concerns the alleged failure to put the case for the defence fairly to the jury. It has been pointed out that what, in effect, this amounts to is that the judge, while in the main outlining the prosecution case against each of the appellants correctly, failed to refer to a number of defects in that evidence and failed to enter in detail into the question of such defects as it touched the case of each appellant separately. In addition to that, however, there are in the cases of several of the remaining appellants, separate residual points of appeal.

34. In the case of the fourth appellant the only matter of complaint apart from the points touching failure to exclude the accomplices' evidence and the alleged misdirection as to corroboration is the failure to point out certain discrepancies and other deficiencies in the testimony of those witnesses who spoke for the prosecution. It must, of course, be said that this appellant, in common with all the other appellants, does rely upon and endorse all criticisms made by counsel on behalf of his follow appellants of the prosecution evidence generally, since it is the burden of this ground of appeal, which is common to all of them, that the prosecution witnesses were not telling the truth and that therefore all apparent discrepancies, hesitations, suspicious economies, extravagances or peculiarities of any sort in the testimony of any of the witnesses in relation to any of the accused were important to the defence case generally and thus matters which ought to have been drawn the attention of the jury. Each of the appellants was naturally concerned to point out these deficiencies in the case of the witnesses who had spoken against him directly.

35. The evidence implicating the fourth appellant was that of the witnesses LAM Man-yiu (P.W. 4), CHAU Nan (P.W. 5) and LEUNG To (P.W. 6). LAM Man-yiu who had taken part in about eleven consignments and CHAU Nan, who took part in twelve, identified the fourth appellant as one of the persons who was active on a number of occasions in the picking up of drugs at the rendezvous point at Man Chau between 1968 and 1974. LEUNG To took part in only one such operation and that was the last consignment, in May 1974, but he also mentioned YU Yin, the fourth appellant, as one of the persons who took part in the operation. In describing one of these occasions, which occurred on the 9th moon of 1971, LAM Man-yiu said that he saw the appellant on CHAU Nan's junk when drugs were being off-loaded from Chau's junk to his own, but Chau, purporting to describe the same incident, enumerated the persons who were aboard his junk and did not mention the name of the appellant. In view of the large body of evidence given by both of these witnesses, covering a period of years, a discrepancy of that sort, if it be a true discrepancy at all, is scarcely surprising. Then there was the fact that the witness CHAU Nan declared that while he and his two brothers were being interrogated at the police station they were kept separate, whereas at a later stage in the evidence he said that during that time he had in fact had a conversation with his two brothers concerning the nature of the smell emanating from the sacks on board the junk. This was said to have shown, firstly, that he had told a lie and, secondly, that that he and his brothers had combined to concoct their entire story. The more obvious explanation was that given by Mr. Macdougall, which was that the witness's original statement was that he had been kept apart from his brothers while he was being interrogated and that there was a recess during which they had a meal and had an opportunity for conversation. We cannot think that there was anything in either of these points and no detriment to the appellant has occurred from the failure of the judge to put them to the jury. We find no substance in the appeal of this appellant.

36. The fifth appellant, SIN Koo, seeks leave to appeal on eight grounds but although we are indebted to counsel for the range and thoroughness of his argument we have not felt it necessary to deal expressly with every point raised by him and having considered all of them have come to the view that three only need to be referred to.

37. The first ground is substantially the same as the first ground of the first and second appellants and has as its support the same arguments which were put forward by Mr. Ching. Mr. Sedgwick adopted, without amplifying them, Mr. Ching's arguments insofar as they applied to the witnesses to whom the fifth appellant objected.

38. The second ground was that the learned trial judge wrongly exercised his discretion in allowing an amendment of the first count in the indictment by the addition to it of this appellant's name. Mr. Sedgwick argued that there was not sufficient evidence revealed in the depositions to justify a magistrate in committing this appellant for trial and that in the circumstances the learned trial judge should not have done what the magistrate would not have done. He conceded that there was a scintilla of evidence, but submitted that in allowing the amendment it was not to that that the judge adverted, but to the fact that the appellant would not be inconvenienced by the amendment. It was, substantially. Mr. Sedgwick's argument that by so doing the judge had considered the matter on an incorrect ground and thereby prevented himself from exercising a discretion. In any case, he would argue that as the evidence in the court below was so weak the judge by allowing the amendment on it wrongly exercised his discretion.

39. We find no substance in this point. It was only after the judge had expressly found in the depositions evidence to justify the Crown's application for the amendment that he went on to say that he could not see how she would be prejudiced by the amendment.

40. Mr. Sedgwick then proceeded to argue the fifth ground. The appellant was charged on two counts of conspiracy, one existing between the 1st January, 1967 and 16th January 1969 and the other between the 17th January, 1969 and the 12th November 1974. The fifth ground alleges that the learned trial judge in his summing-up failed adequately or at all to sum up separately the evidence against her on each count. Mr. Sedgwick pointed out that the judge disposed of the case, so far as it concerned this appellant, in what was recorded in one page of the transcript and that in dealing with the evidence he nowhere attributed any particular part of it to any particular count. The first witness to mention her was NG Ping. NG Ping had said that in January 1968 he was told by the first appellant to gather men to go to Macau. This was the first step in picking up a consignment of drugs at sea. NG Ping telephoned LEUNG Fat-hei, who was responsible for collecting the drugs at sea. Ng said that in respense LEUNG Fat-hei arrived with one, KWOK Cheung, who became LEUNG Fat-hei's right hand man in the sea operations, and with Kwok's wife, the fifth appellant. Ng said that LEUNG Fat-hei told him that he wanted these two people to help him. He said that LEUNG Fat-hei told him this in the presence of the other two and that the fifth appellant said nothing. Mr. Sedgwick said that the next reference to the fifth appellant related to an incident in April 1968. NG Ping said that a consignment was arranged which was to be divided between the second appellant and the wife of the first appellant, Madam CHENG Yat-yuen. He told of a dispute over the sharing of the morphine in the consignment, which ended the association between the first and second appellants. There was a delay in paying to Ng the money due to those who took part, but eventually he received $120,000. This sum Ng said was less than was due but, at a meal to which he invited a number of people, among whom were the fifth appellant and her husband, he gave all of it to those who took part.

41. Mr. Sedgwick pointed out that there were references to a number of incidents between then and the 19th January, 1969 and although KWOK Cheung (the fifth appellant's husband) was mentioned on many occasions by Ng no further reference was made to the fifth appellant. There was never, he said, any suggestion by any witness in the case that she had ever received any money.

42. It was Mr. Sedgwick's contention that it was possible that the jury might not have believed the evidence that Ng gave concerning the period covered by the first count, or might not have been convinced that she was part of the conspiracy then, and for that reason it was essential for the judge to remind the jury of the scanty evidence against her.

43. Mr. Sedgwick is correct when he says that the learned trial judge did not specifically refer to the particular items of evidence pertaining to each count but in concluding his address so far as it related to the fifth appellant he did allude to the fact that she was involved in two counts. He concluded:

"I should add, for the sake of completeness, that the evidence as to her activities with regard to the question of time does cover the periods of both count 1 and count 2".

This must be considered in conjunction with what he had earlier said:

"There are three counts you have to consider. You have copies of those counts ... all that concerns you are these three particular counts of conspiracy. The first count is against the first defendant, the second defendant, the third defendant and the fifth defendant - all four of them. The charge is that between the 1st January 1967, and the 16th January 1969 they conspired, that is they agreed together with each other and with ... (others) to deal in dangerous drugs .... The second count is somewhat similar. It is against the same four defendants together with three more ... The dates carry on where the first count left of and they go from the 17th January, 1969 right up until the 12th November last". (The reference to the second defendant being involved in the second count is an error but nothing turns upon it.)

Continuing from there the learned trial judge proceeded to explain that it was necessary to prosecute the accused on two separate counts, although there really was no change in the conspiracy, because of a change in the law on the 17th January 1969 whereby the substantive offence involved in the first count was changed from "dealing with dangerous drugs" to "trafficking in dangerous drugs". He ended the passage, however with the following very clear direction :

That lucid exposition of the position given by the learned judge shortly before he proceeded to deal with the case of the fifth appellant in particular must have left the jury in no doubt of the necessity to consider the evidence against this appellant insofar as it applied to each count. We are of the opinion that it was not necessary after that direction for the learned judge to spell out to the jury the occasions prior to 1969 when the fifth appellant was mentioned in evidence.

44. For completeness it should be added that this point taken on behalf of the fifth appellant might equally have been urged on behalf of the first and third appellants, who, together with the fifth appellant, were the only persons accused of activities in both periods of the conspiracy laid in the first and second counts (the case of the third appellant has already been dealt with). Needless to say the same answer would have sufficed to meet the objection in their case also. It might be argued that it was necessary at any rate to warn the jury that they should not rely on evidence connecting any of these appellants with the second count conspiracy as proof of his involvement in the first count conspiracy. Technically speaking that may be correct because of the way in which the conspiracy was charged but the evidence against the fifth on the first count was that of NG Ping who clearly was accepted by the jury against the first appellant as to the same period. As Mr. Macdougall said, there is no reason to suppose that they would have rejected his evidence where it dealt with the fifth. As for the first appellant NG Ping's evidence spanned both periods against him. In the circumstances we cannot say that there was a material non-direction.

45. In her seventh ground the fifth appellant objected to the summing-up because the analysis of the case against her consisted of but a brief summary of the prosecution witnesses evidence in chief and the learned trial judge failed totally to draw the jury's attention to aspects of their evidence and passages from the evidence of other witnesses which the jury ought to have been directed to consider in evaluating the truth and reliability of the witnesses' evidence. Particulars of three of these alleged omissions were given, the third being again sub-divided into three. The first was that NG Ping had told the jury that the appellant had gone with others on a certain trip to Macau. This is objected to on the ground that NG Ping had not seen her go and his evidence was hearsay. In fact what NG Ping said could not correctly be described as hearsay but conjecture, but, in any case, NG Ping almost immediately after saying that, and after an objection by Mr. Sedgwick, indicated to the jury that he assumed she went but that he did not know if she did or not. The second of the particulars objects to the learned trial judge telling the jury that two witnesses had said she was "active" in taking off in a junk KWOK Cheung and LEUNG Fat-hei on their way back from various trip and adding what was alleged to be an amplification of what he had just said which indicated that the appellant had on many occasions gone out halfway to the point of rendezvous to pick up these people.

46. We can find no substance in either of these objections. The jury could have been in no doubt as to the trip to Macau. As to the second point the judge, in what was alleged to be an amplification, was merely reminding the jury of the procedure that was usually followed when bringing drugs to Hong Kong. There was evidence from the two witnesses that she had picked up KWOK Cheung and LEUNG Fat-hei at sea, and that, taken in conjunction with what the learned judge then said about the evidence of her passing messages and paying money, would indeed justify a reference to her as being active.

47. The remaining portion of this ground was disposed of when dealing with the fourth appellant.

48. The evidence implicating the seventh appellant, YU Tak-shing, was given by the witnesses NG Ping (P.W. 2); LAM Man-yiu (P.W. 4) LEUNG To (P.W. 6); CHENG Kwok-hon (P.W. 3); and CHAU Nan (P.W. 5). It will be remembered that Cheng was the man who had been recruited by NG Ping for the forthcoming assault upon the Thai boat and who later took over from NG Ping when the latter retired from the syndicate. All these witnesses described incidents concerning consignments of drugs in which this appellant took part.

49. In addition to the complaints made about the failure to direct the jury on matters concerning the other appellants it is additionally urged, in relation to the seventh appellant, that there were certain other matters to which the jury's attention should have been drawn. Firstly it is said that the jury should have been asked to consider whether the story as to the recruiting of the witness, CHENG Kwok-hon, by this appellant was credible. The suggestion was that they should have been reminded that although NG Ping was an adopted brother of the appellant he did not think of enlisting him but asked CHENG Kwok-hon to enlist somebody else and Cheng later turned up with a person who coincidentally happened to be Ng's adopted brother, the seventh appellant. There was also the matter of the evident reluctance of CHENG Kwok-hon to admit that, at the subsequent conversation concerning the forthcoming expedition, the use of guns was discussed, while NG Ping was clear that this had been discussed. There was also NG Ping's evidence concerning the paying out of money to participants in the pirate expedition. He said that he had paid a sum of $50,000 to CHENG Kwok-hon (P.W. 3) whereas Cheng said that he had received that sum from the seventh appellant. It is far from clear that there was a discrepancy at this point, since subsequent cross-examination revealed that NG Ping had not paid every person who was present on that occasion. But if it was a discrepancy it was scarcely surprising in view of the length of time which had elapsed since the occurrence. We cannot think that there was danger that the jury were impeded in their task of truly estimating the value of the testimony of these witnesses through failure of the judge to put to them the matters of such minute detail. Nothing therefore which has been said on behalf of this appellant would lead us to doubt whether they came to a right conclusion in his regard.

50. The evidence implicating the eighth appellants, TSOI Ma-yu, was that of the witnesses KO Yuet-ho (P.W. 11) and CHENG Yung (P.W. 10), both of whom gave evidence concerning the second conspiracy, that charged in the third count. CHENG Yung described how this appellant had taken part as one of the shore party in the three deliveries of drugs in which Cheng had himself taken part. The judge referred to the evidence of KO Yuet-ho as confirming that of Cheng. That evidence was to the effect that the eighth appellant had helped Ko to transport drugs in a speed boat from an island where they had earlier been concealed upon arrival from Thailand. Firstly it is said that the judge failed to warn the jury that the witness, CHENG Yung, had been present at the committal proceedings and had heard the witness KO Yuet-ho giving his evidence. It is said that the jury should therefore have been warned that this was a factor which might weaken the extent to which Ko's evidence confirmed that of CHENG Yung. It is true that this was not put to the jury but there is no rule that a warning must be given in such circumstances. Even if a warning was desirable little damage can have come about as a result of its absence, for the evidence of Ko and of Cheng, at least upon the record, is both involved and copious and it would, to put it mildly, be difficult to discern in the evidence of either of them any endeavour to make his testimony correspond closely with that of the other. Each described many incidents in detail and few of these overlap; where they do overlap the stories are by no means mirror images of each other. It is not altogether easy to see why the judge regarded the evidence of Cheng as confirmed by that part of the evidence of Ko which relates to Ko being told by TSOI Ma-wai that the goods being ferried in the speed boat were from a cache belonging to the second appellant. Ko did testify to that effect but that evidence, although strictly admissible, was of doubtful weight and furthermore it is by no means plain upon the evidence that these were part of the second appellant's goods. It was Ko who said that a delivery of drugs in July 1974 was taken not to any of the usual places on the mainland but to the island Ha Mei Wan because of fear of detection by police dogs. Ko referred to two deliveries in the month of July 1974, the earlier one being made at Tai Wan when, he said, CHENG Yung was present in person. It was the later delivery in July that was taken to Ha Mei Wan and Ko certainly believed that this belonged to the second appellant because he had been told that by TSOI Ma-wai. CHENG Yung on the other hand told the court about one delivery only in the month of July 1974. He said that that was for KONG Shum-chuen not for the second appellant. One would think that something might have been made of these ambiguities at the hearing of the appeal, in view of the care which was taken to comb the record for discrepancies, but in the event they were not mentioned. Whether or not it was strictly right for the judge to say that Ko's evidence in this regard did confirm the evidence of CHENG Yung concerning the three deliveries which he made on behalf of the second appellant the direction can scarcely have caused any damage since in fact Ko's evidence clearly does confirm that of CHENG Yung in respect of the first of those deliveries, the delivery made in May of 1973. There is no doubt that Cheng's evidence was that upon that occasion a quantity of drugs was landed on behalf of the second appellant and that he, Cheng, and Ko were present. In fact both gave evidence to that effect and that they saw or heard each other at the scene, and both testified that the eighth appellant took part in that operation.

51. The final point made for the eighth appellant is that it was improper for the judge in any event to say that the evidence of Ko did confirm that of Cheng instead of leaving this matter to the jury. Counsel sought to draw an analogy to the duty of a judge in dealing with corroborative evidence in the strict sense and evidence which is said merely to confirm other evidence in the case i.e. that it was for the judge to say whether evidence could be confirmation but for the jury to say whether it was confirmation. As Mr. Macdougall points out there is no rule of law to that effect. The jury had been carefully warned that the accomplice witnesses could not corroborate each other and in saying that Ko's evidence confirmed Cheng's story of having taken three deliveries for the second appellant in 1974 it is clear that he was saying only that Ko's evidence was consistent with that of Cheng, which indeed it was inasmuch as they both testified to having dealt with drugs on at least oneof the occasions identified by Cheng as a delivery made for the second appellant. We can find no reason to interfere with the conviction of the eighth appellant.

52. The ninth appellant was convicted upon the evidence of one of the accomplice witnesses, KO Yuet-ho. Ko told the court how the ninth appellant had been present on one occasion in June 1974- shortly before the time when he, Ko, had been ferrying drugs by speed boat from Ha Mei Wan - when, at the house of TSOI Ma-Wai, there was a discussion about dredging up drugs, belonging to some other persons, which had been cast away during a typhoon. The mission was unsuccessful but the ninth appellant accompanied Ko in his endeavour to recover the drugs. He then described a number of occasions when, at the house of TSOI Ma-wai, there were discussions concerning the picking up of the drugs which had been cached at Ha Mei Wan by speed boat for transportation to the mainland at a point called Tai Hau Wan. On each occasion the ninth appellant was present and it was, on each occasion, arranged that his car would go to the pick-up point to receive the drugs. Ko was not able to say that he actually saw the ninth appellant at the pick-up point on any of these occasions but he was able to recognise his motor car which was invariably waiting and he would see others of the party remove the drugs from his speed boat and load them into the motor car. This motor car was taken by the police immediately after the arrest of the ninth appellant. The boot was locked and the keys of the boot were obtained from the appellant and upon being opened there was found inside a rubber mat which, upon scientific examination, showed traces of opium.

53. In addition to the points which he takes in common with the other appellants Mr. Sedgwick on behalf of the ninth appellant says that the verdict upon this appellant is unsafe and unsatisfactory, grounded as it is upon the evidence of a solitary accomplice. But in addition he maintains that there was a material misdirection in the summing-up in that the judge instead of telling the jury that the opium found upon the rubber mat in the ninth appellant's car was capable of amounting to corroboration directed them that it was in fact corroboration. The passage in the summing-up reads as follows:

"That, you will appreciate, is independent evidence. It tends to indicate that the drugs were carried in that car. So, it is corroboration. I am not quite sure whether or not it is suggested that the mat may have been planted there at some later date and have nothing to do with the defendant. If that suggestion is made, well then, naturally, you will give it such consideration as you think fit."

If the words "So, it is corroboration" had stood quite alone we might have thought that this was a misdirection of substance. Plainly it was for the jury to say whether, in all the circumstances the finding of the opium upon the mat did corroborate the evidence of the witness, Ko Yuet-ho. But the remainder of the passage quoted makes it clear that the finding of the opium could not amount to corroboration unless they were satisfied that the defendant was responsible for its being in the boot of the car in that condition. There was no evidence to account for the history of the motor car between the last operation described by the witness, KO Yuet-ho, and the time when the motor car was seized by the police. It was a space, we understand, of about three weeks. But the boot was locked when the car was found and the keys were in the possession of the appellant and there was no other explanation before the jury as to how the mat with the drugs upon it had come to be in the boot. In those circumstances it was certainly open to them to draw the conclusion that the accused was connected both with the mat and the drugs and we do not think it is correct to say that the judge in putting the matter in the way he did had taken that finding out of their hands.

54. Notwithstanding therefore that the case against this appellant stands solely upon the evidence of one accomplice together with the, perhaps slight, corroboration afforded by the mat we cannot say that the verdict was unsafe and unsatisfactory.

55. Finally there was the case of the sixth appellant who, as it has been conceded by the Crown, appears to stand, upon the Crown's own evidence, in a very different relationship to the drug syndicate from any of the other appellants. In his regard it is alleged, firstly, that the judge was wrong to reject the submission of "no case" made on his behalf at the conclusion of the prosecution. case. The matter was carefully considered by the learned trial judge. Although the argument was forcefully advanced and the evidence was indeed slender and circumstantial, we cannot say that the learned trial judge should have stopped the case against the appellant at that point.

56. The sixth appellant appears to have been in the position of a trusted servant to the first appellant and had been in his employment at one of the first appellant's casinos or gambling houses since about 1967. There was no evidence whatsoever that he was directly connected with the importation of these drugs or that he physically handled them or was a party to any of the negotiations concerning their importation and delivery. The evidence against him consists simply in this : that, on some 185 occasions, he conveyed, on behalf of his employer, large sums of money to a firm called the Hang Cheong Yuen which carries on a kind of money remittance business and which, as is common ground, transmitted those sums to an address in Thailand. On each occasion a receipt for the sum so delivered was issued to him and he would, on his return to his employer's premises, show it to his employer who would return it to him. It was his own story that invariably he thereafter destroyed those receipts. The sum total of these remittances came to some $27.3 million. In a lengthy statement to the police, which was introduced in evidence, he admitted carrying money in this way for his employer but denied all knowledge that it had any connection with trafficking in dangerous drugs.

57. We have given the case of this appellant the most anxious consideration. It seems most unlikely that the handling of such large sums of money would not have aroused in him a lively suspicion concerning their source. He was, in addition, paid anything from $40 to $100 for the various trips which he made with the money through the harbour tunnel. The size of that douceur is however not in itself overly suspicious since any person entrusted with such large sums of money might expect something in the nature of danger money for such risky and unprotected courier work. In addition it must be remembered that the first appellant had been for many years, and presumably to the knowledge of all those who associated closely with him, a man involved in various forms of business not all of them above suspicion. He is said to own a number of illegal gambling houses or casinos in addition to his more legitimate interests in restaurants and the jewellery trade. A simple man of the sixth appellant's background and modest education finding himself well placed in a secure job with a wealthy employer might, even to protect his own peace of mind, hesitate to enquire too closely into the sources of his employer's wealth. The jury evidently concluded from this meagre evidence that an inference could safely be drawn that the appellant was well aware that the source of this unusual fortune could only have been dangerous drugs. That is a step which in all the circumstances we believe they were not entitled to take. The farthest we think they should have gone in that direction was to hold that the appellant must have realized that this money came from some tainted source. There was evidence before the court that an important part of the first appellant's visible means of subsistence were the gambling casinos which were sources of illicit revenue. There was no evidence that the revenue from his other sources of income was modest in relation to the sums transmitted and certainly none that that fact - if it was a fact - must have been apparent to the sixth appellant. These were matters which we think ought to have been drawn to the attention of the jury by the judge. But even with such a direction it might have been difficult to avoid the conclusion that the inference drawn had exceeded the evidential basis supporting it. Thus, not without hesitation, we have come to the conclusion that the evidence adduced in support of the charge against him was unsatisfactory in its character and quantum and that the conviction was accordingly unsafe. His conviction, upon the second count, must therefore be set aside.

58. In the upshot we refuse leave to appeal against conviction in the cases of the first, second, fourth, fifth, seventh, eighth and ninth appellants and treating the applications of the third and sixth appellants as the hearing of their appeals we allow their appeals and set aside the convictions.

59. As to the appeals against sentence we do not propose to say very much. With the exception of the case of one only of the appellants we are unable to regard them as excessive.

60. The evidence on record alone showed the importation, over the period charged, of the extraordinary total of 25 tons of opium and over 2 tons of morphine through the careful planning and dedicated industry of a comparatively small group of people. For over seven years these highly successful associations pursued undetected the business of destroying their fellow citizens at enormous profit to themselves. There is little good that can be said of them and counsel have wisely and properly restricted themselves to commenting upon the unusual scale of the sentences in relation to the individual degrees of participation shown upon the evidence. The sentences on the first and second appellants are heavy. They are and were intended to be exemplary and that is just. In upholding sentences of comparable size imposed upon the notorious Great Train Robbery convicts the English court referred to their combination as an act of warfare against the community. It is not easy to regard the present appellants seven-year campaign more lightly. Deterrence and punishment are necessarily the two factors which loom largest where the community or any section of it is gravely endangered. The reformative element is then necessarily a secondary consideration. Nor can we agree that the learned trial judge erred in the manner in which he apportioned punishment in relation to responsibility and culpability between the individual participants. None of the sentences, not even those passed upon the first, second and seventh appellants could in the circumstances be described as harsh in relation to the enormity of their acts or out of scale with each other. The remaining sentences with the exception to which we will now refer, scarcely call for comment.

61. We take the view however that the case of the fifth appellant, SIN Koo does present a difficulty. While there is no doubt that she was a party to the conspiracy in the first and second charges it is difficult to see her as an entirely free agent in the matter. On the few occasions when the evidence discloses her doing anything at all she is clearly acting under the directions of her husband. She may have been a willing and callous participant but the evidence does not show that. Rather does it give the impression of a silent, acquiescent shadow - bound in the main to her husband, her family and her boat. A married woman of her age and background has few choices open to her when her husband settles upon a career in crime. To take the proper path would have required, perhaps, courage beyond the normal. No doubt she should have taken it but the only half way house between denouncing her husband and his associates to the police and throwing her lot in with them would have been to leave him and herhaps her children also. This court has in many cases performed the melancholy duty of upholding lengthy prison sentences on elderly women convicted of trafficking in drugs. But this has almost invariably been in cases where the prisoner has been a willing recruit and the court has time and again repeated that neither age nor infirmity can give any guarantee of leniency let alone of immunity, for the experience of the courts has been that the big operators tend to seek out such recruits and the latter became victims by their own choice. It is free choice which justifies the punishment and the degree to which the choice is free is a relevant consideration in fixing the degree of punishment. The fifth appellant cannot expect to escape altogether notwithstanding her subordination to the will of her husband but because we find it difficult to regard her as a fully free agent in the matter we have after due deliberation come to the view that her punishment has been too heavy. The sentence of 10 years will be reduced to five.

62. The appeals of all the remaining appellants against sentence are dismissed.

(1) (1967) Cr. App. R. 17.

(2) (1973) A. C. 729.

(3) (1974) 3 W.L.R. 673, 700.