Regina v Danny Sum Mok

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10959/99 - NEW SOUTH WALES CRIME COMMISSION v DANNY SUM MOK

JUDGMENT 1 HIS HONOUR: By an amended summons filed on 21 April 1999 the New South Wales Crimes Commission, ["the plaintiff"], seeks, among other orders: "…………a proceeds assessment order pursuant to s.27 of the Criminal Assets Recovery Act 1990 requiring Danny Sum Mok to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from any illegal activity of Danny Sum Mok that took place not more than six years before the making of the application for a proceeds assessment order." 2 On 7 May 2001 Kirby J made a number of consent orders. The first of them was: "1. Subject to any contrary direction by the trial judge, the hearing of this matter on 30 May 2001 deal with the following three issues only: (a) whether Danny Sum Mok ("the Defendant") was not more than 6 years before the making of the application for a proceeds assessment order pursuant to section 27 of the Criminal Assets Recovery Act 1990 ("the Act") engaged in a serious crime related activity (within the meaning of serious crime related activity set out in section 6 of the Act) involving an indictable quantity; and (b) whether the Defendant received, on 21 January 1999, from registered informant 3027 the sum of $84,000 or the sum of $83,000 or any other sum; and (c) whether the sum referred to in sub-paragraph (b) above was acquired by the Defendant because of an illegal activity (within the meaning of illegal activity set out in section 4 of the Act)." 3 In what follows herein a reference to "the defendant" is a reference to Danny Sum Mok; and a reference to "RI 3027" is a reference to the registered informant. 4 On 31 May 2001 a hearing commenced accordingly. It continued on 8 June 2001, and after a lengthy lapse of time caused in part by controversial subpoena proceedings which went on appeal to the Court of Appeal, the hearing resumed on 7 May 2003; and continued, and concluded, on 9 May 2003. 5 It was agreed at the hearing that, of the three specific questions stated in the order of Kirby J, the question (a) should be answered: yes; the question (c) should be answered: yes, in the event that question (b) were to be answered: yes; and that the question (c) would not call for an answer in the event that question (b) were to be answered: no. 6 The proceedings are civil proceedings: Criminal Assets Recovery Act, s 5(1). The rules of evidence applicable in civil proceedings apply to the exclusion of any rules of evidence that are applicable only in criminal proceedings; s 5(2)(b). It follows that the burden of proof rests upon the plaintiff; and that the standard of proof is according to the balance of probabilities, that concept being understood and applied in the way explained by the decision of the High Court of Australia: Briginshaw v Briginshaw (1938) 60 CLR 336. 7 There is, of course, nothing any longer novel about what is examined and explained in Briginahaw v Briginshaw. There are, however, cases, and in my opinion the present matter is one such, in which it is useful to go beyond a merely formal citation, and to re-state in terms the essential principles. I take them from the judgment of Dixon J at 60 CLR, 361, 362: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matter 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect references. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency." 8 Central to the plaintiff's case is evidence given, both by affidavit and orally, by RI 3027. It is convenient to begin a canvass of that evidence by considering a statement made by RI 3027 to the National Crime Authority on 21 May 1999. 9 According to this statement RI 3027 first met the defendant early in 1998. The meeting took place at a Chinese restaurant in Strathfield. The defendant represented himself as being in charge of the 14 K Triads in both Sydney and Canberra; and gave RI 3027 an introduction to a man whom the defendant described as a senior member of the 14 K in Melbourne, which is where RI 3027 was then living and working. The two men met again on the following day and at the same restaurant. According to the statement, RI 3027 saw on this occasion a number of men approach the defendant seeking favours. They treated the defendant "with a great deal of respect, and deferred to him as the boss". 10 The two men did not meet again until 3 January 1999. This time they met at the defendant's home. There was a discussion about various criminal activities, one of which was the possibility of an importation of 50 kilograms of heroin. The discussion was to the effect that the defendant would orchestrate the importation; and that the purchaser would be a drug trafficker in Melbourne for whom RI 3027 was then working in connection with illegal drug trafficking. 11 A week later, on 10 January 1999, RI 3027 came to Sydney from Melbourne, and again met the defendant. That evening the defendant and RI 3027 met at the Chopsticks Chinese Restaurant in Crow's Nest. The defendant introduced RI 3027 to another Chinese male known as "Brother Hung", the name by which I shall hereinafter refer to him. Brother Hung was introduced as the top 14 K man in Australia; and the defendant told RI 3027 that he would have to go through the defendant whenever he might wish to contact Brother Hung. 12 Later, the defendant and RI 3027 had a discussion concerning the expected arrival during the following week of a "block" of heroin, the purchase price of which would be $82,000. The two men arranged to meet on 14 January 1999 in order to discuss further the purchase by RI 3027 of that "block" of heroin. 13 On 14 January 1999 the defendant and RI 3027 met at the Eaton Chinese Restaurant at Ashfield. During this meeting the defendant told RI 3027: "……….. that Hung is in possession of twelve 25 ounce blocks of heroin. [The defendant] stated that one of these blocks was available for purchase by myself for $84,000. [The defendant] stated that this price included $2,000 for [the defendant] for arranging the transaction. [The defendant] further stated that if I gave him the money, then a couple of hours later I would receive the heroin…………" 14 On the following day, 15 January 1999, the two men met again at the Sea Treasure Restaurant in Crow's Nest. In due course they were joined by Brother Hung. The latter told RI 3027 that a 25 ounce block of heroin was available for purchase by him for $84,000. RI 3027 said that he would think about the proposition. 15 On 18 January 1999 RI 3027 telephoned the defendant and said that he was coming to Sydney on 21 January 1999 "….. to do business". 16 On 21 January 1999 RI 3027 did in fact travel to Sydney from Melbourne. The course of events thereafter on that day is the crux of the present proceedings. 17 On the afternoon of 21 January 1999 RI 3027 met two National Crime Authority senior investigators, Mr. Newbery and Mr. Arnold. RI 3027 had kept the National Crime Authority informed about the proposed heroin deal; and the National Crime Authority was proposing to carry out a controlled operation in that connection. Mr. Newbery accordingly gave RI 3027 $84,000 in bank notes of various denominations. The preponderance of the evidence suggests that the money was handed over, initially, in a plastic shopping bag. 18 Later during that same afternoon, RI 3027 met the defendant at the Chopsticks Restaurant. They remained together until about 4.30 p.m., at which time the defendant left the restaurant, returning at about 6.00 p.m. Throughout the whole of the meetings between the defendant and RI 3027 on 21 January 1999, the latter was wearing a recording device by means of which he made audio tape recordings of his conversations with the defendant and with various other persons. It will be necessary to look later herein at the content of the recordings that were thus made. 19 What then transpired, as narrated by RI 3027, was as follows: "19. About 7.30 pm this same date, MOK received a call on his mobile phone. At the conclusion of this telephone call MOK told me that it was time for us to go. A short time after this MOK and I walked to his Toyota Van, New South Wales registration RBG 600 that was parked in the car park at the rear of the restaurant. We then drove to Sussex Street, Sydney. During the journey I showed MOK the $84,000 and I had a conversation with him that was recorded by Listening Device. He told me to go into the McDonalds at the Entertainment Centre and wait for someone. Before I got out of MOK's van, I placed the money inside the glove box of the vehicle. 20. Shortly after 8.00 pm MOK stopped the van on Sussex Street, Sydney near the Entertainment Centre. I then got out of the van and walked into the McDonalds at the Entertainment Centre and waited. 21. About 10 minutes later I saw "Brother HUNG" inside a Mercedes that stopped right outside McDonalds. HUNG waved to me to come over to him. HUNG then got out of the car and greeted me, before we both got into the Mercedes. HUNG then drove me a short distance before parking the car on Bathurst Street, Sydney near Castlereagh Street. HUNG and I then got out of the car and walked down Bathurst Street, then turned right into Pitt Street and then turned right into Park Street. HUNG then attempted to make a phone call from a public phone located on Park Street near McDonalds, but could not get through. We then started to walk back down Park Street to another public phone. During this period HUNG received a call on his mobile phone. He then told me it was ready, so we then walked back along Pitt Street then Bathurst Street towards HUNG's Mercedes. We had a brief conversation near his car and then HUNG got into his vehicle and drove off. I then waited outside the ANZ bank on the corner of Castlereagh Street and Bathurst Street. 22. About 5 minutes later a young Asian male that I had never seen before approached me, briefly greeted me, then handed me a white plastic bag and walked away. The earlier conversation with MOK in his van, and all conversations with HUNG and the unknown Asian who handed me the plastic bag, are recorded on Listening Device tapes WL/LD/05 and WL/LD/06. I have read the transcripts of these tapes and signed each page as a true record of the recordings. 23. About 8.45 pm. On 21st January 1999, I walked to George Street and caught a taxi to the Domain area of Sydney. At the Domain area I met with Investigator Nick BINGHAM of the National Crime Authority and handed him the white plastic bag. I then left the area." 20 Thereafter, and until about mid-March 1999 there were further contacts between RI 3027 and Brother Hung. All of them were recorded. Neither these recordings themselves, nor transcripts of them, were in evidence in the present proceedings. 21 The defendant swore two affidavits, both of which were read in his case. In an affidavit sworn on 11 May 2001 the defendant deposes: "1. I am the Defendant in these proceedings and associated criminal proceedings. I speak little English, my first language is Cantonese and I am assisted in the preparation of this affidavit by Allan Chan who speaks both Cantonese and English. 2. I am aware that a person who has been identified in this matter by the Police as "Registered Informant 3027" alleges that I was given $84,000 (or $83,000 in his evidence of 4 July 2000) in respect of a drug transaction on 21 January 1999. I deny ever entering into any arrangement to receive such money, nor did I receive such money. 3. I pleaded guilty at the District Court to having knowledge and concern in a drug transaction on this day, however never did I receive either $83,000 or $84,000. 6. At no time has any person placed either $83,000 or $84,000 into my glove box, nor have I ever seen any person place such money in my glove box." 22 What is there deposed was amplified somewhat in paragraphs 18 and 19 of an affidavit sworn by the defendant on 7 June 2001, and deposing: "18. I have subsequently become aware that [RI 3027] kept $6,000 of the money he received from the Police for the drug and the remainder went to WU. 19. What I do want to make clear is that although I did expect to be paid the sum of $1,000 and even though I agree that [RI 3027] did talk about giving me that sum of money the truth is that I did not even receive that amount from [RI 3027] ."

There was no cross-examination of the defendant upon the matters to which he deposes in paragraphs 18 and 19. 23 An affidavit was sworn on 6 June 2001 by Mr. Stephen Chan, an accredited interpreter and translator in Cantonese. The affidavit annexes a 23 page transcript which was prepared by the National Crime Authority, and which allegedly records the contents of the listening device material that was obtained by RI 3027 on 21 January 1999. 24 It should be said at once that the transcript makes frustrating reading. 25 For one thing, there are very few passages of continuous intelligible conversations. The transcript is, by and large, a mosaic of conversational fragments dispersed among and around "indecipherable conversation", which is described as such in the glossary to the transcript. 26 Further, the bulk of the recorded conversation is in Cantonese. Not only does this make the Court wholly dependent upon expert opinion evidence, but that evidence itself leaves open nuances of language as to which the evidence remains ambiguous. The most stark example is a word which Mr. Chan would render as "box", but of which he says that "another interpretation may be 'drawer' or 'container' depending upon the context in which the words are used". The evidence given orally by RI 3027 asserts that the correct translation into English is "cupboard", with the added idiomatic gloss that "………all the conservative Chinese people, they refer to a brief case as a cupboard". 27 As if all of that were not sufficiently problematical, there is the question, potentially very important, of correct punctuation. This aspect of the correct transcribing of the relevant conversations does not appear, from the available evidence, to have been the subject of any informed analysis. 28 It is useful to illustrate all of those problems by looking at one particular passage at page 4 of the National Crime Authority transcript. It is easy to see that the passage is potentially of the first importance. It is, unfortunately, just as easy to recognise in the passage every one of the difficulties earlier herein mentioned. The transcript in its original form has RI 3027 saying to the defendant: "There is eighty four here.". The transcript in its original form has the defendant responding as follows: "…… [IND] taken all those things. Don't open ……. [IND] at the moment, to take those things, there is still a bag here, right?" 29 The final position reached with regard to this response of the defendant was that it should be rendered as follows: "…… Just take all those things out. Don't open the box at the moment, to take those things, there is still a bag here, right?…….. [IND] hang on to it first." 30 When these agreed alterations to the transcript were brought to the attention of the Court, the following interchange took place: "HIS HONOUR: Does that mean, "Don't open the box at the moment. To take those things", a new sentence? Is that how it works? [COUNSEL]: As it happens, there are commas in this translation. We have not gone into the translation. HIS HONOUR: It might be necessary, to make sense. [COUNSEL]: It might. [Counsel for the defendant] and I have not turned our minds to what the options are." [T 34, 35, 7.5.2003] [NOTE: My recollection is that counsel's statement: "We have not gone into the translation" ; should read: "We have not gone into the punctuation" .] 31 I accept, doing what I can with the National Crime Authority transcript, that there are some fragments of conversation which support aspects of RI 3027's version of events; but I am wholly unable to divine such a construction of that transcript as would make the difference between the competing versions of the defendant and of RI 3027. 32 It seems to me that the whole of the available evidence is sufficient to establish in the Briginshaw sense the following propositions:

that the defendant was not, as he would have it, a mere middle man on an isolated occasion. In my opinion the probabilities are that he was a much more important cog in the relevant drug-trafficking wheel. The financial analysis made by Mr. Richard Oades in his affidavit of 3 May 2001, is, in my view, strongly supportive of that opinion. Mr. Oades was not cross-examined on his affidavit;

that the defendant drove RI 3027 to his assignation with Brother Hung, being aware of the nature of the impending transaction;

that RI 3027, before going to meet the defendant in connection with that transaction, was carrying with him Australian bank notes totalling in value $84,000;

that RI 3027 received that money in a "David Jones" plastic shopping bag. I take this from the unchallenged evidence of Senior Investiagator Arnold in his statement dated 3 July 2000, which statement was verified by affidavit on, as it would seem, 8 May 2001;

that RI 3027, when he entered the defendant's vehicle in order to travel to his meeting with Brother Hung, was carrying that $84,000 in some type of plastic bag inside a brief case. Quite how and when the money was transferred into the brief case, it is impossible to say;

that there was a conversation between the defendant and RI 3027 about the money, the conversation taking place in the defendant's motor vehicle en route to the meeting;

that it would have been physically possible for RI 3027 to have opened the glove box and to have placed into it the plastic bag containing the $84,000. I take this to be the practical upshot of what is stated by the defendant's then leading counsel on 31 May 2001, as recorded at pages 11 and 12 of the transcript for that day;

that RI 3027 did in fact meet Brother Hung, and was passed on by him to the unidentified Asian male from whom he received the heroin;

that thereafter RI 3027 reported back to the police. He handed one of them, Senior Investigtor Bingham, the following items: "1. White paper shopping bag labelled SP 2 containing the following: 2. SP 2 invoice/statement for the amount of $39 dated 2 August 1998; 3. Men's light brown trousers; 4. Watson's blue and white plastic shopping bag; 5. Chinese newspaper dated 10 May, 1998; 6. GLAD clip-seal bag containing white powder" According to an affidavit of Senior Investigator Newbery, sworn 3 May 2001 and verifying an operational report made by him on 16 March 1999, he, having seen RI 3027 hand Mr. Bingham the items noted above, thereafter: "(I)n company with Senior Investigator Arnold, ……. . had a conversation with RI 3027. At this time RI 3027 handed me the sum of $980.00 in Australian bank notes. This money was part of $84,000.00 I had handed to RI 3027 earlier that day" . 33 To the foregoing findings I add the following agreed facts as recorded in Exhibit A in the present proceedings: "1. On 21 January 1999 between the hours of 3 pm and 8.45 pm there was no constant Police surveillance of Registered Informant 3027. 2. About 8.45 pm on the evening of 21 January 1999 Registered Informant 3027 returned to the Art Gallery where he met four Police Officers. (1) Officer Bingham: who recalls that in the Registered Informant's possession at that time was: · A white paper shopping bag · An invoice for $39 dated 2 August 1998 · A pair of men's light trousers · A blue and white shopping bag labelled Watsons · A Chinese newspaper dated 10 May 1998 · A re-sealable Glad Bag containing white powder (2) Officer Newbery: who recalls that in the Registered Informant's possession at that time was: · A white paper shopping bag · A black suitcase from which the registered informant produced $980 (3) Officer Arnold: who recalls that in the Registered Informant's possession at that time was: · A plastic shopping bag (4) Officer Baker" 34 All of the foregoing leaves for consideration the oral evidence of RI 3027 and of the defendant. As to the core question now at large: what happened to the $84,000 less the $980 returned to the police?, the two give diametrically opposed and equally dogmatic versions. That of RI 3027 is that he put the money into the glove box of the defendant's motor vehicle and left it there. That of the defendant is a flat denial that such a thing happened. 35 I find the oral evidence of both RI 3027 and the defendant to be unhelpful in answering the core question. 36 The defendant, I cannot assess in any real way as to demeanour. His appearance in the witness box was brief. The whole of his evidence was given in a language of which I have no knowledge whatsoever. I accept, of course, the integrity of Mr. Chan's translation of that evidence; but that tells me nothing about tone or other nuance of language; or about body language; or about anything else apt to enliven the "subtle influence of demeanour", to borrow from the judgment of McHugh J in Abalos v Australian Postal Commission (1988) 171 CLR 167 at 179. 37 By contrast, RI 3027 gave his evidence in fairly fluent English. My difficulties in making a confident assessment of him are other than linguistic. 38 RI 3027 is a practiced police informer. He seems to have been a fairly successful one. That means that he has lived, for some time, a lie. On his own version, indeed, he was trained to be a professional informer, " ….. an honest liar", as he put the point. The Court of Criminal Appeal has recognised that in a jury trial upon indictment the evidence of a police informer is a class of evidence apt to attract a warning pursuant to s 165 of the Evidence Act 1995 (NSW): Reg v Lau (1998) 105 A Crim R 167 per Kirby J at 176, Priestley JA and Abadee J concurring. Section 165 is not limited to jury trial in criminal cases. Even in civil proceedings, therefore, the evidence of a police informer needs to be approached with prudence and caution. 39 RI 3027 presented, in my opinion, as being very sure of himself. He was, he said at one point: "………the most trusted informer".

"I was" , he reminded cross-examining counsel in one response, "a successful informer, don't forget" .

According to him, he sold up a fairly successful business in order to fund what he perceived as the life-style necessary to give verisimilitude to his activities in the world of drug trafficking. He felt that the National Crime Authority had let him down badly in the past by not respecting, as he says they had promised to do, the privacy and security of his family; but he denied that he was still actuated by animosity on that account. 40 The evidence is unclear as to whether or not RI 3027 was required to file contemporaneous reports; or to keep contemporaneous notes; or to vouch in some other way for what he was supposed to be doing as a professional informer. He seems to have been de-briefed by Senior Investigator Newbery, but there is no evidence of the substance of that exercise. Very importantly, as it seems to me, there is no evidence of any attempt by anybody to keep proper overall control of the $84,000; so that there is, at least in that sense, no corroboration of what RI 3027 says that he did with the money. 41 The oral evidence, on both sides of the record, being so unsatisfactory, it is appropriate to consider where, the oral evidence apart, the possibilities lie. It might then be that a balance of probabilities will emerge. 42 It seems to me that the evidence, apart from the oral evidence, leaves open these alternative possibilities:

[1] that the $84,000, less $980, was indeed placed, and left, in the glove box of the defendant's motor vehicle;

[2] that the $84,000, less $980, was paid over by RI 3027, not to the defendant, but to Brother Hung;

[3] that the $84,000, less $980, was not paid over by RI 3027 to anybody, but was retained by himself. 43 As to the first of the three possibilities, all that can be said is that this was physically possible. There is nothing else that I can see that corroborates RI 3027's evidence that this is exactly what happened. I do not overlook in that connection the material quoted earlier herein from page 4 of the National Crime Authority transcript; but I consider that material to be so flawed in its presentation, and in any event so ambiguous, as not to tip the scales in favour of RI 3027's evidence. 44 As to the second possibility, I do not see this as being inherently incredible. Brother Hung was obviously a major figure in the particular transaction. Fragments of the National Crime Authority transcript are sufficiently comprehensible and coherent to give colour to the suggestion that both RI 3027 and Brother Hung were hoping to do drug-trafficking business in the future. I think, however, that there is nothing in the evidence that takes beyond intelligent speculation the submission of the defendant that RI 3027, if he did not simply misappropriate the $84,000, paid it over more probably than not, not to the defendant, but to the defendant's superior, Brother Hung. 45 As to the third possibility, one's first reaction is that this suggestion is imagination run riot. The trouble about the suggestion is that evidence which might have provided a basis for excluding it, is not before the Court. There are, just to take some random examples, the following questions left wholly unanswered by the evidence as it now stands:

[1] When Senior Investigator Newbery speaks of "a black suitcase" , does he mean some form of brief case?

[2] Whether or not that is what he means, did he not inspect the bag and see for himself what it contained?

[3] What was the time lapse between the time the investigators sent RI 3027 on his way with $84,000 of public money, and 8.45 p.m. or thereabouts? (Exhibit A suggests that the answer might be 3.00 p.m. but the matter is ambiguous.)

[4] What is the timing of the successive counters in the National Crime Authority transcript for 21 January 1999?

[5] What, If anything, does the timed sequence of events show in the way of opportunity for misappropriation by RI 3027? No doubt there are other unanswered and potentially important questions that could be identified; but those to which I have pointed will be sufficient, I believe, to highlight what I see as some significant gaps in the evidence. There is a long recognised principle of common law that in civil proceedings "……….. the evidence should be weighed according to the power of the party to produce it, ………….." : Hampton Court Limited v Crooks (1957) 97 CLR 367 per Dixon CJ at 371, and the cases there cited. 46 The whole of the foregoing reasoning brings me full circle, as it were, to the Briginshaw principles earlier noted. If ever there was a case of "inexact proofs" and "indefinite testimony", then, in my opinion, this is the case. The issue is, ultimately, so finely balanced that in my opinion the reasonable application of the Briginshaw principles does not affirmatively tip the balance in favour of the plaintiff. 47 I answer, therefore, as follows the stated questions:

(1(c) Unnecessary to answer 48 The plaintiff is ordered to pay the defendant's costs of the hearing in this Court. The exhibits may be returned.

Last Modified: 05/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.