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The Queen v Wong Muk Ping And Another

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date18 October 1984
Year1984
Judgement NumberCACC92/1984
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000092/1984 THE QUEEN v. WONG MUK PING AND ANOTHER

CACC000092/1984
IN THE COURT OF APPEAL 1984, No. 92
(Criminal)

BETWEEN

THE QUEEN

AND
WONG Muk-ping
WONG Ping-fai

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

Coram: Sir Alan Huggins, V.-P., Li & Yang, JJ.A.

Date of Judgment: 18 October 1984

_______________

J U D G M E N T

_______________

Sir Alan Huggins, V.-P.:

1. The task of the court and of counsel for the Crown was made immeasurably more difficult by the failure to file properly drafted grounds of appeal and to direct the argument clearly to each ground in turn. As we understand it, the grounds which have in fact been advanced are as follows:

1st Defendant

(1) That the judge wrongly admitted in evidence this Defendant's statement to the police in that the finding that the statement was voluntary was one which no reasonable judge could make on the evidence.

(2) (a) That the judge erred in failing to direct the jury totally to disregard the evidence of CHAN Man-hin and LEUNG Chau-yung.

(b) Alternatively, that the judge erred in failing to direct the jury that the evidence of an accomplice must be credible before any question of corroboration can arise.
(3) That the verdict was unsafe and unsatisfactory for the following reasons:

(a) Material evidence was given by witnesses who were inherently suspect and uncorroborated;

(b) the evidence of those witnesses was of a quality which inevitably left doubts as to its truth;

(c) that even if ground (1) did not justify the quashing of the conviction per se the statement of the 1st Defendant was of doubtful evidential weight;

(d) PUI Sai-hung, a co-conspirator, was tried separately and was acquitted; and

(e) the conviction of CHENG Ah-kai, another co-conspirator, was quashed on appeal.

5th Defendant

(1) The judge erred in failing to withdraw the evidence of LI Ting-sze from the jury.

(2) The judge erred in failing to withdraw the evidence of CHAN Ming from the jury.

(3) The judge wrongfully disallowed the cross-examination of LI Ting-sze about the assessment of his character by the Court of Appeal in YU Yuk-kwong v Reg.

(4) That the conviction of the 5th Defendant on count 2 was inconsistent with the acquittal of the 1st Defendant on that count.

(5) That the verdicts were unsafe and unsatisfactory for the following reasons:

(a) The acquittal of the 1st Defendant on count 2 raised doubt as to the evidence of LI Ting-sze relating to count 3;

(b) material evidence was given by witnesses who were inherently suspect and uncorroborated; and

(c) the evidence of those witnesses was of a quality which inevitably left doubts as to its truth.

2. The trial of these Defendants resulted from events going back many years, with which events were connected the names, among others of MA Sik-yu, MA Sik-chun and NG Sik-ho. The indictment originally contained nine counts and involved nine Defendants, but counts 1, 2, 3 and 9 were separated. The present Applicants were the 1st and the 5th Defendants, who did not answer to their bail and, as a result, were eventually tried on those counts separately from the other Defendants. The 1st Defendant was convicted on count 9 but acquitted on counts 1 and 2, whilst the 5th Defendant was acquitted on count 1 but convicted on counts 2 and 3. It is material to note that at his trial YU Yuk-kwong (the 2nd Defendant) was convicted on count 2 but that that conviction was set aside upon, appeal. CHENG Ah-kai (the 6th Defendant) was convicted on counts 8 and 9 (which in reality related to one continuing conspiracy) but his conviction was set aside on appeal. PUI Sai-hung (the 7th Defendant) was acquitted on count 9.

3. Count 9 is different in that it relates to trafficking in opium whereas the other counts relate to trafficking in morphine. The opium was delivered to Hong Kong waters by fishing boats and the allegation was that the 1st Defendant had agreed to be responsible for the transportation of the drug after it had been landed. He was arrested on 25th August 1977 by officers of the Triad Society Bureau of the Royal Hong Kong Police, who went to his residence in the early hours of the morning. Two of the witnesses upon whose evidence the prosecution largely rely were fishermen, one named CHAN Man-hin and the other LEUNG Chau-yung. They, together with another man, were arrested in a motor-car near the Lion Rock Tunnel in Shatin a little while before. The evidence of these fishermen was strongly attacked upon the appeal.

4. The case for the Crown was that the 1st Defendant had arranged for a lorry to pick up one consignment of opium when it was put ashore at Ho Tung Lau in Shatin and that he had supervised the transfer from a fishing vessel to a lorry. The lorry, with the drugs on board, was intercepted by the police near the entrance to the Lion Rock Tunnel and the driver, PANG Tak-po, was arrested. Upon his arrest at 04.50 the lst Defendant had nothing to say. He was then taken to police headquarters and at 06.30 he made a statement which contained a confession to the offence for which he had been arrested.

Ground 1 (1st Defendant)

5. The statement made by this Defendant was the result of a series of over 40 questions put to him after caution. The questions were put by a detective sergeant in the presence of a senior inspector. These officers had not been involved in the surveillance of the landing of the drugs earlier that morning-that being the responsibility of the Narcotics Bureau - and they were not fully informed about the case: they were given a pro forma questionnaire and instructed to put the questions to the 1st Defendant. The pro forma was before the court and was in the English language. The questions there set out were translated and recorded in Chinese by the sergeant along with the answers. A translation of the questions and answers by the court translator was produced, and it is not surprising that the questions appearing in the translation are not in the identical words of the pro forma, although the substance is the same. There appear in the statement two questions which were not in the pro forma. The first, which followed the answer to question No. 36, was:

"Under what circumstances and when did you come to know him ?"

It is likely that the draftsman of the questionnaire had expected a negative answer to question No.36, which was

"Do you know PANG Tak-po ?"

and the sergeant reasonably inserted what was a further question obviously suggested by the affirmative answer which in the event was given. The second additional question followed the very long answer to question No.37. That was the answer which contained the confession and could never have been anticipated by the draftsman of the questionnaire. Again the further question was one obviously suggested by the answer given. However, these questions and answers assume significance in the light of the defence allegations that the statement was not an accurate record of what the lst Defendant said at the time and was, in any event, not voluntary. Thus it was contended that these two questions and answers were added after the 1st Defendant had signed, and the contention appears to receive support from the fact that each of them is recorded at the bottom of a page and that those two pages were signed by the 1st Defendant above the challenged question and answer. Much has also been made of the fact that the 1st Defendant's signature on every one of the pages of the statement appears to have been written "horizontally", that is to say the characters lie horizontally across the page but have to be read (and, presumably, were written) with the page turned sideways. This, counsel submits, is consistent with the 1st Defendant's-evidence that he was made to sign the statement without reading it, for he signed the answer to the formal charge in the more usual manner.The opposing contention is that on some, although not all, of the pages the only space available for the signature permitted no other method of signing. Be that as it may, both the officers concerned testified that no inducement of any kind was held out to the 1st Defendant and that he signed voluntarily.

6. One further matter has been advanced as indicating that the statement was not voluntary. That is that the style of the long answer to question No. 37 differs from that of the rest of the statement.

7. Giving full weight to all these arguments we are not persuaded that the finding of the judge should be disturbed.

Ground 2 (1st Defendant)

8. The submission here is that it was not enough for the judge to warn the jury that the evidence of CHAN Man-hin and LEUNG Chau-yung was "extremely suspect" and that it should "exercise great caution in deciding whether to place any reliance on that evidence at all", and that it was open to the jury to think that it was "so totally unreliable that it ought to be completely disregarded": he should have left the jury with no alternative but to disregard their evidence altogether.

9. We were taken through the witnesses' evidence in extenso and as regards CHAN Man-hin Mr. du Cann submitted that no one would hang a cat on his evidence. Chan himself said that he was "getting senile" - he was 69 years of age at the time of the trial -and repeatedly bemoaned the fact that the events took place "too long ago" for him to remember all the details. It cannot be gainsaid that his story of the events at Shatin was not flawless. He described a meeting - which he originally said had taken place at Aberdeen, but...

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