Woo Sum v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.395 OF 1968

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JUDGMENT

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1. This is an appeal against the conviction of the appellant on charges of possession of dangerous drugs contrary to section 10 of the Dangerous Drugs Ordinance and of offering to supply dangerous drugs contrary to the same section.

2. In the court below the story disclosed by the prosecution opened with a meeting at the Lung Tuen Teahouse of Detective Inspector Chan Ping Cheung and Detective Corporal Chan Fei with the appellant. The inspector was posing as a potential buyer of dangerous drugs and the corporal was supposed to be his chemist. At this meeting, according to the prosecution evidence, the appellant offered 10 lbs. of "goods" to the inspector at $3,300 per pound. It was apparent that someone had arranged this meeting probably a police informer who was present at the meeting at the teahouse, although his identity was not disclosed and he did not give evidence. The inspector and the appellant did not recognise each other and questions were put for the purpose of identification. It appears that the price of $3,300 per pound was reached after some bargaining, the initial offer having been for a sale at $3,600 per pound.

3. The agreement reached was, at the instance of the inspector, subject to inspection and approval of the goods and apparently up to that point no direct reference had been made to dangerous drugs, the commodity merely being referred to as "goods". For the purposes of inspection the inspector and the corporal went with the appellant to a room in the Pak Kung Apartment House. They said that he went out of the room and returned in a few minutes with a carrier bag, inside which were polythene bags with blocks which were subsequently identified by the Government Chemist's certificate as containing morphine hydrochloride.

4. No evidence was given by the appellant in the court below.

5. In his findings the trial judge said that he was satisfied that the appellant had offered to supply dangerous drugs to the inspector and that the appellant knew it was dangerous drugs that were being offered. He also found that the appellant was in possession of these dangerous drugs, being fully aware of their nature, and that the quantity involved was 10 pounds.

6. The application for leave to appeal was filed by the appellant in person and he set out his grounds as follows:-

7. The instructing solicitors added a further ground:-

"That there is no or insufficient evidence for the learned trial judge to find that the appellant was the owner of the 10 pounds of drugs."

8. Counsel who now appears on behalf of the appellant has directed the main weight of his argument to the contention that the police, by acting as agents provocateur in this case, overstepped the permitted boundaries and were themselves so much responsible for the commission of the two offences of which the appellant was found guilty that he should be relieved of any guilt in the matter and the convictions in the lower court should be set aside.

9. In support of these arguments he has referred us to a number of cases, beginning with R. v. Sze Shing Chuen⁽¹⁾, where in the District Court Mills-Owens D.J., as he then was, reviewed a number of the English decisions, and having done so said that in the case before him it was impossible to say that the accused would have pursued a course of corruption if the police officer involved had not paved the way for him and, in effect, invited a corrupt approach. He went on to say (at page 32):-

"It is one thing to entrap an intending or habitual offender, but quite another thing, even in the supposed public interest, to induce someone who otherwise might never have been minded to do so to commit an offence - to induce a person to believe that he may discount whatever moral scruples he may have in the assurance that he may do so with impunity."

10. That passage follows one in which the judge had said:-

"To give an example, I would see nothing reprehensible in a police officer, who suspects a person of operating an 'illegal taxi', presenting himself as an intending passenger in order to secure evidence to lead to a conviction, provided no pressure was exerted on his part."

11. Counsel went on then to refer to the comparatively recent case of Sneddon v. Stevenson⁽²⁾, where the earlier well-known case of Brannan v. Peek⁽³⁾ and the Northern Ireland case of R. v. Murphy⁽⁴⁾ were considered.

12. The headnote to Sneddon v. Stevenson⁽²⁾ says:-

"Though a police officer acting as a spy may be said in a general sense to be an accomplice in the offence, yet, if he is merely partaking in the offence for the purpose of getting evidence, he is not an accomplice who requires to be corroborated."

13. From the facts it appears that a police officer drove his car past the appellant, a known prostitute, who was loitering in the street talking to a man; then turned the car round and stopped near the appellant in a manner which he knew from his experience would attract her attention. When she came up to the car and asked the police officer if he wanted "business", he replied "How much?", he assented to the reply and she got into the car. He then drove towards a colleague of his and she was arrested.

14. In the Divisional Court, Lord Parker, C.J. said, at p.1280:-

"No doubt this court does frown on the practice of police officers being employed to commit offences themselves, or indeed to encourage others to commit offences. Here, of course, it cannot be said, as I have already indicated, that the police officers were employed themselves to commit offences. In my judgment, the respondent did not commit an offence; in so far as it can be said that he did act so as to enable others to commit offences by making himself available if an offence was to be committed, it does seem to me that, provided a police officer is acting under the orders of his superior and the superior officer genuinely thinks that the circumstances in the locality necessitates action of this sort, then, in my judgment, there is nothing wrong in that practice being employed."

15. Waller J., concurring in the dismissal of the appeal, thought that there might be circumstances "where this sort of device is justified" but appeared to indicate that it should be restricted to serious crimes.

16. Counsel also referred us to the Hong Kong case R. v. Ngai Kam Chung⁽⁵⁾, where the headnote says:-

"A police officer is properly engaged in the detection of crime when he reasonably suspects a certain class of crime is being habitually committed, and sets a trap without his having any ground for suspecting a particular individual until the occasion of setting the trap (but) a police officer must not, if the suspect refuses to participate in a criminal act, try to persuade him to do so."

17. Counsel also directed our attention to the Hong Kong case of Assandas Chimandas Danani v. The Queen⁽⁶⁾. He relied on the statement by the judge in the lower court, in that case, that if a witness in the court below had induced the accused to obtain possession of the dangerous drugs he would be an agent provocateur and " it would be most dangerous" to rely on his evidence.

18. Counsel for the Crown has, in addition, directed us to a number of cases including Brannan v. Peek⁽³⁾ contending that the statement of Lord Goddard in that case, sometimes relied upon for the purpose of criticising the action of police in employing an agent provocateur, was qualified in the later case of Sneddon v. Stevenson⁽²⁾ as merely obiter dictum. He went on to refer us to the East African case of R. v. Wanjiko⁽⁷⁾, where the appellant had on several occasions asked one of the police witnesses if she was a Mau Mau adherent and whether she could obtain ammunition for the appellant to pass on to the terrorists. The witness passed this information to the authorities and was instructed to lay a trap pursuant to which she gave ammunition to the appellant, who thereupon was convicted for being in unlawful possession of it. The appeal against conviction was dismissed but the Court of Appeal...