R. v. Lee et al.

2002 BCSC 15err1 R. v. Lee et al Citation: R. v. Lee et al. Date: 20020104 2002 BCSC 15 Docket: CC010051 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

HER MAJESTY THE QUEEN

AGAINST SEE CHUN LEE, GOU DIN HO, CHUK FONG TAO WEI BO CHEN, CHAK NAM CHAN, SIU WAN CHAU and CHEUNG HUNG PUBLICATION BAN PURSUANT TO S. 648

OF THE CRIMINAL CODE

RULING

OF THE HONOURABLE MR. JUSTICE CULLEN Counsel for the Crown: M.M.M. Devlin J.K. Torrance Counsel for See Chun Lee: P. Leask, Q.C. D.J. Jevning J. Gellis Counsel for Gou Din Ho: P.A. Hart Counsel for Chuk Fong Tao: D.B.L. Sokol Counsel for Wei Bo Chen: D. Gaffar J.C. Henderson Date and Place of Hearing: December 12, 13, 14, 17, 18, 19 & 20, 2001 Vancouver, B.C.

INTRODUCTION [1] This ruling arises from applications brought by the accused Lee and the accused Ho in relation to authorization P54/98 to have that authorization declared invalid insofar as it relates to them. [2] The basis of each application is an assertion that the affidavits sworn November 18, 1998 in support of P54/98 does not surmount the threshold of reasonable and probable grounds to believe that the interception of their private communications will afford evidence of offences under investigation. The specified offences falling within the scope of the authorization are as follows: (i) conspiracy to import a controlled substance under the Controlled Drugs and Substances Act, contrary to Section 465(1)(c) of the Criminal Code of Canada; (ii) importing into Canada a controlled substance, contrary to Section 6(1) of the Controlled Drugs and Substances Act; (iii) conspiracy to traffic in a controlled substance, contrary to Section 465(1)(c) of the Criminal Code of Canada; (iv) trafficking in a controlled substance contrary to Section 5(1) of the Controlled Drugs and Substances Act; (v) possession of a controlled substance for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act; (vi) possession of property or any proceeds thereof, obtained or derived directly or indirectly by the commission of designated substance offences,

contrary to Section 8 of the Controlled Drugs and Substances Act; (vii) conspiracy to possess property or any proceeds thereof, obtained or derived directly or indirectly by the commission of designated substance offences under the Controlled Drugs and Substances Act, contrary to Section 465(1)(c) of the Criminal Code of Canada; (viii) laundering any property or proceeds thereof, obtained or derived or believed to be obtained or derived by the commission of designated substance offences, contrary to Section 9(1) of the Controlled Drugs and Substances Act; (ix) conspiracy to launder any property or proceeds thereof, obtained or derived or believed to be obtained or derived by the commission of designated substance offences under the Controlled Drugs and Substances Act, contrary to Section 465(1)(c) of the Criminal Code of Canada.

BACKGROUND [3] Before embarking on a consideration of the validity of P54/98 in connection with Lee and Ho it is necessary to discuss or detail the proceedings leading up to this application and to resolve several issues that arise from those proceedings and the application before me. [4] P54/98 is the fifth and final authorization granted in connection with an investigation, code named EIDER, into, inter alia, the importation and trafficking in heroin by a number of different targets including Ho and Lee. I have already made rulings in respect of the first three authorizations granted in connection with EIDER: P14/98, P30/98 and P41/98. My reasons in relation to P14 and P30 were delivered November 27, 2001 and in relation to P41, on December 11, 2001. [5] On November 27, 2001, I ruled that P14 and P30 were invalid in authorizing the interception of Lee's private communications as a primary target but were valid in authorizing the interception of Ho's private communications as a secondary target. In relation to P41/98, I ruled it an invalid authorization with respect to the interception of Lee's private communications as a primary target, but ruled it valid with respect to the interception of Ho's private communications as a primary target. [6] In connection with the fourth authorization, P47/98, the Crown conceded (given my earlier rulings) its invalidity in connection with

Lee; counsel for Ho conceded the validity of P47/98 in connection with the interception of Ho's private communications as a primary target. THE RECORD FOR AUTHORIZATION P54/98 [7] That brings us to the present authorization, P54/98 which relies on an affidavit sworn by Corporal Bangloy on November 18, 1998 setting out the basis for his belief that the interception of Lee's and Ho's private communications (as primary targets) would afford evidence of the offences under investigation. (i) The P47/98 Affidavit and Cross-Examination [8] It appears from the record that, in addition to Corporal Bangloy's November 18, 1998 affidavit, the authorizing judge had access to Corporal Bangloy's affidavit sworn September 21, 1998 in support of P47/98 as part of the basis for the authorization being sought. That access was available by virtue of a motion to open the P47/98 packet before the authorizing judge in respect of P54/98. It also appears from Corporal Bangloy's evidence that the authorizing judge declined to exercise access to the P47/98 affidavit, as he was satisfied the requisite grounds existed for issuing the order within the four corners of the November 18, 1998 affidavit (the P54/98 affidavit). [9] Counsel for Ho and counsel for Lee take the position that because the authorizing judge did not consider the P47/98 affidavit in granting P54/98, I cannot have regard to it as part of

the record justifying the issuance of the latter authorization in conducting this review of the sufficiency of the grounds in support of it. Counsel for the Crown agrees with the submissions of counsel for Ho and Lee on this point on the footing that, although P47/98 was available for the issuing judge to review, it could not be said to be actually before him because he declined to access it in reaching his determination of the sufficiency of grounds to issue the authorization in question. [10] Although I would not want these reasons to be taken as authority for the proposition that, in these circumstances, where the grounds for the affiant's belief are set out in two affidavits, one of which is placed directly before the issuing judge and the other of which is made accessible to him or her, the latter does not form part of the record if the issuing judge declines to exercise access to it, I accept the submissions of counsel for Ho and Lee and the concession of the Crown that the P47/98 affidavit is not part of the original record which I am reviewing in connection with P54/98. [11] That does not end the matter, however. I granted leave to counsel for Ho and counsel for Lee to cross-examine the affiant in connection with his subjective belief as to the utility of the interceptions sought, the objective grounds for that belief, the reliability of the informants' evidence, and

the reliability of the informant generally. During the course of his cross-examination of Corporal Bangloy, counsel for Lee questioned him about certain paragraphs in the affidavit sworn in support of P47/98 and how those paragraphs justified his subjective belief and the objective grounds for his belief. In addition, counsel questioned Corporal Bangloy about the basis for his belief in the interpretation of a particular paragraph in the P54/98 affidavit which led Corporal Bangloy to testify about the contents of certain other paragraphs in the P47/98 affidavit. [12] Counsel for Ho takes the position that, although Corporal Bangloy's evidence about the contents of the paragraphs in the P47/98 affidavit may be an amplification of the record insofar as Lee is concerned, it is not evidence insofar as his client is concerned as it did not arise in his cross-examination of Corporal Bangloy in support of Ho's application to have P54/98 declared invalid. [13] Counsel for Ho submits that what we are engaged in, under the umbrella of one voir dire, are two applications, and the evidence from one application does not leak into the other application unless expressly adopted by counsel on the latter application. It is his submission that, had the two accused been tried separately or had separate voir dires, then no question would arise as to the admissibility of evidence from one voir dire

into the other. Counsel for the Crown, on the other hand, relies on R. v. Madrid (1994), 48 B.C.A.C. 271 at para. 67 where McEachern C.J.B.C. (as he then was) said the following: [67] I take the above quoted passage from Garofoli to mean that fraud and non-disclosure, etc., are not prerequisites to review as previously thought. Although Sopinka, J., said the cross-examination would be limited, counsel are now exploring such questions by thorough and far-reaching and exhaustive inquiries. As a result trials such as this one consume enormous amounts of court time in the pursuit of fraud, mistake or non-disclosure. These ingredients, if established on cross-examination or otherwise, may destroy the basis for the decision of the issuing judge. But it does not follow, in my view, that the ordinary principles of advocacy do not apply. Evidence given on an issue in a Garofoli examination can be probative both for and against all parties subject to all just exceptions, just as in the trial proper. I need not consider the further question of whether after-acquired testimony given on the review may be considered as that problem does not arise in this case. [emphasis added] [14] In his response, counsel for Ho says that, in context, what "all parties" refers to in Madrid is the Crown and the defence, as in that case the three appellants could be regarded as a single unit because there

were no distinctions among them in terms of the applications being made; whereas here, in his submission, there are distinct applications. [15] In my view, McEachern C.J.B.C.'s ruling in Madrid is applicable to the situation at bar. That ruling is based in part on Sopinka J's judgment in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at 188 where he characterizes the reviewing judge's role as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [16] It must be remembered that what it as issue in the case at bar is not "new evidence" rather it is evidence which the affiant put forward as the grounds for authorization P47/98 and which the applicant on P54/98 made accessible to the authorizing judge in connection with that latter application. As it turned out, the issuing judge declined to read the P47/98 affidavit before issuing P54/98,

but the contents of it clearly formed a portion of the grounds which the affiant relied upon at the time of seeking P54/98. [17] Both Lee and Ho are attacking the sufficiency of grounds in relation to the same authorization - P54/98. While their focus is understandably somewhat different, it is nevertheless the same order that is being attacked by each of them within one voir dire on one trial. In my view, that makes the applications joint and engages the reasoning expressed by McEachern C.J.B.C. above. The evidence arising from Lee's counsel's cross-examination of Corporal Bangloy with respect to the P47/98 affidavit is relevant to a consideration of whether sufficient grounds exist for Ho to be characterized as a primary target in P54/98. Up to this point, counsel for Ho and Lee and the Crown have treated the evidence obtained by cross-examination of Corporal Bangloy by one counsel as evidence applicable in relation to each accused. [18] In addition, before Corporal Bangloy was excused at the conclusion of his cross-examination by counsel for Lee and counsel for Ho, I directed counsel to the issue of the use to which the affidavit in support of P47/98 could be put and I received no submissions on that issue by counsel for Ho. In my view, the cross-examination conducted by counsel for Lee with respect to the P47/98 affidavit constitutes amplification of the record in

connection with P54/98 and there is no distinction to be drawn between Ho and Lee as to the amplified record. [19] The Crown further submitted that the entirety of P47/98 should be considered as amplification of the record in support of P54/98 as it was referred to in the cross-examination of Corporal Bangloy. I am not in agreement with that position. Although it might be argued that the P47/98 affidavit is part of the record before the authorizing judge in connection with P54/98, given the position of all counsel I am not inclined to so rule. It does not follow from the cross-examination on limited portions of P47/98 that the entirety of the affidavit becomes an amplification of the record. In my view, only those portions of the P47/98 affidavit incorporated by the cross-examination of Corporal Bangloy are appropriate grist for the mill of this review. The balance of the affidavit is, in my view (and under these particular circumstances), not an amplification of P54/98. (ii) The P14/98 Affidavit and Cross-Examination [20] At the outset of this voir dire I was asked to rule on the procedure that would be followed in connection with these various applications. It was the position of the Crown, that all authorizations should be dealt with simultaneously, that is that any applications for leave to cross-examine and any consequent cross-examination should take place in relation to

all of the authorizations at issue in this voir dire before any rulings were made. It was submitted by Crown counsel that although the arguments in relation to each authorization could proceed one by one, the evidentiary basis for those submissions should be established before any such rulings were made. [21] It was the accused's position, on the other hand, that the authorizations should be dealt with seriatum such that an application for leave to cross-examine and consequent cross-examination should take place in relation to one, or at the most two, authorizations and then submissions should be made in relation to that, or those limited, authorization(s) before proceeding onto the next authorization or authorizations. It was counsel's submission that it would be helpful to have the rulings in relation to the earlier authorizations before proceeding onto the next, as those rulings may well have an impact on what is to be considered in subsequent authorizations. [22] I ruled that the latter course urged by counsel for Ho and Lee was the preferable course. In so ruling, I also ruled that the proceedings would be conducted as one voir dire, not as a series of discrete voir dires; it was, after all, anticipated by all counsel that some of the evidence adduced through cross-examination of the affiant on earlier authorizations might be relevant to issues arising on later

authorizations, and it was not desirable to have to repeat evidence heard with respect to one authorization subsequently with regard to other authorizations. [23] In relation to this application by Ho and Lee I was asked by counsel for Lee to consider his earlier cross-examination of Corporal Bangloy on the contents of his affidavit sworn in support of P14/98 insofar as it related to the "the informers and their business." [24] The Crown has, in effect, asked that I consider the entirety of the contents of affidavit P14/98 and submits that, because Corporal Bangloy was cross-examined on portions of the P14/98 affidavit during cross-examination in relation to the sufficiency of P54/98 and because P14/98 has been marked as an exhibit in these proceedings, I can consider P14/98 affidavit in its entirety. [25] It is clear that the mere fact that portions of P14/98 were cross-examined upon in amplifying the record of P54/98 does not justify treating it in its entirety as an exhibit in connection with the attack upon that authorization. In my view, however, both the P14/98 affidavit and the extensive cross-examination of Corporal Bangloy conducted in relation to it is part of the amplification of the record in connection with P54/98 for other reasons. [26] P54/98 is an order of this court authorizing police officers to, inter alia, intercept the private communications of both Ho and

Lee during the currency of that authorization. It must be remembered, that the purpose of a review is to permit exploration of the grounds for the affiant's belief "in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence." (See R. v. Garofoli, supra, at p. 198.) It is equally clear that it is not for me to substitute my view for that of the authorizing judge unless the record as amplified on the review leads me to the conclusion that the authorizing judge could not have granted the authorization. In making this determination, I can consider the existence of new evidence as well as fraud, non-disclosure and misleading evidence in determining whether there continues to be any basis for the authorizing judge's decision. (See R. v. Garofoli, supra, p. 188). [27] In my view, if I were to permit counsel for Lee and Ho to select only portions of their earlier cross-examination of Corporal Bangloy on the P14/98 affidavit to be considered as amplification of the record in relation to the sufficiency of the P54/98 authorization it would be a disservice to the process identified by Sopinka J. in R. v. Garofoli, supra. It is clear that what is at the heart of Sopinka J.'s ruling in Garofoli is the need to ensure that the subjective belief of the affiant and the objective grounds for it are fully explored so as to prevent a potential abuse. In my view,

it would not fulfil that purpose to confine the reviewing judge's consideration to selected portions of cross-examination of the affiant in connection with his subjective belief and the objective grounds for it in preceding applications. To do so may have the effect of distorting the record rather than amplifying it. [28] It is my opinion, in view of the extensive cross-examination of Corporal Bangloy with respect to P14/98 (which consumed the better part of four days and covered much, if not all of the contents of that document) the entirety of the P14/98 affidavit and the cross-examination of Corporal Bangloy in relation to it are properly before me as an amplification of the record before the issuing judge in respect of P54/98. In making that ruling, I am somewhat influenced by the fact that much of the contents of P14/98 found its way into the affidavit in support of P47/98 which, in turn, was made accessible to the authorizing judge in connection with P54/98 as part of the objective grounds for belief justifying the interceptions sought. [29] I make that observation because of the concern expressed by LeBel J. in R. v. Araujo et al. (2000), 149 C.C.C. (3d) 449 (S.C.C.) at p. 475 that: The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of

everyone's privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. [30] In the case at bar, the police did make their case to the authorizing judge by putting before him the affidavit in support of P54/98 as well as through the applicant bringing a notice of motion giving him access to the material contained in the affidavit in support of P47/98 which incorporated much, if not all, of the prior grounds advanced by the police. [31] It is my view that in the case at bar the objectives of the review process established in R. v. Garofoli, supra, are best met with due deference to the concerns expressed by LeBel J. in R. v. Araujo et al., supra, (above) by determining the amplification of the record as I have done and by considering it equally in relation to Lee and to Ho. [32] Thus, it is my ruling that the entirety of the P14/98 affidavit and the entirety of the cross-examination of Corporal Bangloy on it is part of the amplified record. Also the cross-examination of Corporal Bangloy incorporating portions of the P47/98 affidavit, are part of the amplification of the record before the authorizing judge in connection with P54/98. (iii) The Use of Amplification Favourable to the Authorization [33] The next

issue for determination is the extent to which new evidence acquired in the review process can be used to augment the grounds relied on by the police in seeking an authorization. As already noted, it is apparent from R. v. Garofoli, supra, that new evidence can be considered in the review process. Although there has been some controversy whether that new evidence can be considered to supplement the affiant's grounds for belief through amplification, the weight of authority appears to favour that proposition. See. R. v. Morris, [1998] N.S.J. No. 492 (N.S.C.A.), R. v. Madrid, supra, R. v. Hiscock (1992), 68 C.C.C. (3d) 182 (Que. C.A.), R. v. Plant (1993), 84 C.C.C. (3d) 203 (S.C.C.). [34] In R. v. Aurajo, supra, LeBel J. appears to accept the proposition that amplification can be used to support an authorization. [35] It was submitted by counsel for Ho that in R. v. Araujo, supra, however, LeBel J. limited the circumstances in which amplification could be considered which supported the authorization to those cases where the police "had, in good faith, made some minor, technical error in the drafting of their affidavit material" (see R. v. Araujo, p. 475). [36] In my view the context of LeBel J.'s discussion about amplification in the face of minor technical errors must be considered in determining the extent to which amplification can be used to support an authorization. LeBel J.

was specifically considering evidence contained in an affidavit that was manifestly erroneous and therefore was excluded from consideration with regard to the sufficiency of the affidavit. [37] LeBel J.'s remarks were concerned with the extent to which amplification can be used to rectify errors in the contents of the affidavit. [38] In the case at bar, what is at issue insofar as Ho is concerned is the amplification achieved through cross-examination of the affiant by Lee's counsel of material contained in the P47/98 affidavit that arguably augments the objective grounds for the affiant's reasonable belief justifying the authorization against Ho. In my view, that is a different situation from one in which, as in Araujo, supra, Plant, supra, and Morris, supra, the amplification is made to correct an error in the materials and consists of new evidence not previously put forward by the police. [39] In the former circumstances, the reasoning of McEachern C.J.B.C. in Madrid, supra, is apposite and the evidence so given is "probative both for and against all parties subject to all just exceptions, just as in the trial proper." In the latter situation, however, where the amplification in the form of new evidence is being used to rectify a specific error or omission made by the police, care must be taken to ensure that the amplification does not become a means of circumventing the

prior authorization process. [40] Thus, in my view, the cross-examination of Corporal Bangloy by Lee's counsel, even insofar as it may augment the presence of reasonable and probable grounds in relation to Ho or Lee, properly forms part of the amplified record with respect to both accused. THE EXISTENCE OF CREDIBLY BASED PROBABILITY FOR P54/98 [41] I now turn to the question of whether on the record before the authorizing judge, as edited, excised, and amplified on review, there remains a credibly based probability justifying the interception of the private communications of both Ho and Lee as primary targets. [42] In para. 35 of the P54/98 affidavit, the affiant set out a summary of his belief in the involvement of the principle subjects of the EIDER investigation under the heading of "Alleged Activities and Subjects' Involvement", in connection with heroin importation from Southeast Asia to Canada, heroin trafficking in British Columbia, heroin trafficking in Ontario and money laundering. Para. 35 is set out below: 35. Members of my section, the Toronto Police Service and the R.C.M.P. Milton Drug Section have been conducting this investigation since January, 1998. A large amount of information has been obtained regarding the subjects of this investigation. Most of this information is contained in my Affidavit sworn in support of Authorization P.47/98 and in this my Affidavit.

The following sets out the activities under investigation and the subjects' alleged involvement with each of the listed activities. a. Alleged Heroin importation from South East Asia into Canada: CHAN and LEE are believed to be persons who organize shipments of heroin to Canada on a "regular" basis. "Ng Yat", LEE's uncle in Hong Kong, and LEE are believed to be partners in the importation f heroin into Canada. CHAN has "the confidence" of Ng Yat" because CHAN is allegedly able to distribute large quantities of heroin in Canada. (See paragraph 392.f.) Intercepted private communications have indicated that CHAN is able to "control" the heroin market in Canada. CHAN is able to influence the price by controlling the supply. (See paragraphs 119, 120). During the investigation, members of my section have received information that either CHAN, LEE or other subjects of the investigation have either received or are expecting a heroin shipment. To date, investigators have not been able to locate any of the alleged heroin shipments. A search was conducted on November 5, 1998 (see paragraph 425) but no heroin was located. FONG and PANG are also believed to be arranging heroin shipments on a less frequent basis. I suspect that they may be involved with CHAN and LEE in arranging these shipments. The intercepted private communications of FONG and PANG are very "guarded", so to date,

investigators have not been able to determine their exact association with CHAN and LEE. Investigators believe that LEUNG is involved with "Ming" and CHAN in importing heroin. WONG is believed to assist LEUNG in heroin importation. Investigators believe that HUI is importing heroin or investing in heroin shipments on occasion. Investigators believe that he associates with CHAN, LEE and CHAN, Kwok Yung, but to date have not learned details of his alleged heroin importing. b. Alleged Heroin trafficking in British Columbia: FONG, PANG, HUI, HO, Gou Din, WU, VONGVILAY and "Yat" are believed to be trafficking heroin in the Vancouver area as set out in my Affidavit sworn in support of Authorization P.47/98 and in this my Affidavit. Investigators suspect that they obtain their heroin from LEE and CHAN. c. Alleged Heroin trafficking in Ontario: CHAN, Kwok Yung, "Lan Jai", WU and HO, Gou Din are believed to be trafficking heroin in the Toronto area. Investigators suspect that some of the heroin in Toronto is also distributed in the U.S.A. d. Alleged Money Laundering: Investigators believe that LEE, Shu Shing collects the proceeds of the heroin sales for CHAN and CHAN, Kwok Yung and LEUNG [sic]. LEUNG, Por is LEUNG's father and is believed to move money for LEUNG. WONG is also believed to be involved in money laundering for LEUNG. [43] As can be seen, it is asserted Lee was primarily

involved with the importation of heroin into Canada, in conjunction with his Uncle, "Ng Yat" and along with another primary subject named Kwok Keung Chan, he supplied various other subjects of the investigation, including Ho, Gou Din, with heroin which was being trafficked in the Vancouver area. [44] Insofar as Ho is concerned, as can be seen, it is asserted that he was trafficking in heroin in the Vancouver area and in the Toronto area, and that he received his heroin from Lee and/or Chan. [45] The evidence said to constitute the requisite grounds for the assertions of Corporal Bangloy in relation to Lee and Ho, inter alia, include information from four informants identified in the affidavit as A, B, C and H, surveillance evidence by police officers, and summaries of intercepted private communications in relation to the people and activities under investigation. [46] The reliance of the investigation on diverse methods of producing evidence which does not readily coalesce into an understandable whole requires some significant analysis and interpretation. To a significant extent the review of the sufficiency of the grounds for P54/98 has consisted of a challenge to the meaning which the affiant ascribed to the particulars of evidence, and ultimately how it is to be interpreted in the totality of the circumstances. [47] The particular challenge of 'wiretap' evidence is that it

is often opaque, consisting of communications between people concerning matters of shared, but not common, knowledge who are frequently hiding the subject of their discussion in code or by using fragmentary sentences. Equally, surveillance evidence is limited in its utility as it necessarily is confined for the most part to public activities and is conducted on a random basis. The clarity of informant evidence can be compromised by the need to avoid revealing information that may disclose the identity of the informant(s). [48] Nevertheless, if authorization P54/98 is to be sustained in relation to Lee and Ho, there must be sufficient meaning in the contents of the record as edited and amplified to permit me to conclude that there was some evidence upon which the issuing judge could have granted the authorization. [49] It bears mentioning that the standard of proof required before the issuing judge can properly grant an authorization is not proof beyond a reasonable doubt, nor even "a prima facie case"; rather it is one of "reasonable probability" or "reasonable belief" or "credibly based probability". See R. v. Debot (1989) 52 C.C.C. (3d) 193 (S.C.C.) at p. 213; Hunter v.Southam (1984), 14 C.C.C. (3d) 97 (S.C.C.); Baron v. Canada (1993), 78 C.C.C. (3d) 510 (S.C.C.). [50] An issuing judge's decision does not equate to a final determination of an issue of fact. It is granted as

an investigative aid in an ongoing process where both the development of evidence and its meaning are incomplete, and conclusiveness is unwarranted. Thus the presence of competing possibilities or even probabilities which may emerge from the grounds for belief are not necessarily fatal to an application for an authorization, so long as those grounds continue to support the credibly based probability being advanced in support of the authorization. [51] In the case at bar, the Crown submits in the totality of the circumstances there is a credibly based probability for the assertions made in para. 35 or some closely-related variation of those assertions. The Crown submits the total circumstances include not only the evidence set out in the affidavit but also the educated interpretation given it by the affiant in consultation with the informant handlers, translators and other investigators. The Crown submits that the affiant's interpretation adds meaning and hence value to the grounds which ought not to be easily discarded or dismissed because the affiant has a knowledge and understanding of the intricacies and nuances of the activities and communications of the targets borne of long experience and involvement in the investigation. [52] As I have said, these reasons must be read in conjunction with my reasons issued November 27, 2001 and December 11, 2001. In the former reasons I

set out the affiant's belief in the reliability of informant A and informant B. The affiant's belief in connection with informant A and B is substantially the same in the P54/98 affidavit as it was in P14/98 and P30/98. The only significant difference in connection with informant B was that he or she, having severed contact with the police in July 1997, re-established contact with them in September of 1998. [53] The information respecting informant C's reliability is set out in paras. 73, 74 and 75 of the P54/98 affidavit as follows: 73. On November 9, 1998, I was advised by Constable KWOK, of my section, and do verily believe it to be true, that he has also received information from the confidential Informant previously referred to an Informant "C" since approximately February, 1996 which has proven to be reliable. I do not know the identity of Informant "C" and Constable KWOK may not reveal the identity of Informant "C" at this time for security reasons, and because the information was given and received on the basis that the identity of the informant would be kept confidential. Constable KWOK further advised me and I verily believe that the basis for his belief in the reliability of the information provided by Informant "C" with respect to the investigation herein is: a. he has received information from Informant "C" approximately 100 times since approximately February, 1996. Some of the information was corroborated by other informants and investigation. Some of the information resulted in arrests of persons for various offences; b. the information has been given voluntarily and Constable KWOK has paid Informant "C" on one occasion for expenses incurred. Informant "C" was not paid for information; c. ●●.

74. I am further advised by Constable KWOK and verily believe it to be true that Informant "C" was previously involved in the heroin trade.

75. I am further advised by Constable KWOK and verily believe it to be true that Informant "C" ●●. [54] The information respecting informant H's reliability is set out in paras. 85 and 86 of the P54/98 affidavit as follows: 85. I am advised by Constable KWOK, of my section, and do verily believe it to be true that he has received information from a confidential Informant (hereinafter referred to as Informant "H") since June, 1995, which has proven to be reliable. I do not know the identity of Informant "H" and Constable KWOK may not reveal the identity of Informant "H" at this time for security reasons, and because the information was given and received on the basis that the identity of the informant would be kept confidential. Constable KWOK further advised me and I verily believe that the basis for his belief in the reliability of the information provided by Informant "H" with respect to the investigation herein is: a. he has received information from Informant "H" approximately 30 times since June, 1995. Some of the information was corroborated by other informants and investigation. Some of the information resulted in arrests of persons for various offences; b. the information has been given voluntarily, and Constable KWOK has not paid Informant "H" for the information which was received; c. ●●.

86. I am further advised by Constable KWOK and verily [sic] it to be true that: a. Informant "H" is not involved in the heroin importing and trafficking activities under investigation. b. Informant "H" was terminated as an informant on January 22, 1998 ●●; c. Contact was re-established with Informant "H" on September 7, 1998. [55] The information in relation to Lee and Ho provided by the informants which is additional to that contained in support of the affidavit in support of P14/98 (which is before me on the voir dire), is set out chronologically in the following paras: 1. Para. 292 - information from informant B on October 2, 1998; 2. Para. 315 - information from informant B on October 7, 1998; 3. Para. 362 - information from informant C received on October 16, 1998; 4. Para. 377 - information from informant C received on October 19, 1998; 5. Para. 390 - information received from informant H on October 22, 1998; 6. Para. 392 - information received from informant A on October 23, 1998; 7. Para. 399 - information received from informant A on October 26, 1998; 8. Para. 420 - information received from informant A on October 30, 1998, and 9. Para. 423 - information received from informant A on November 3, 1998. [56] As is evident from my earlier rulings the reliability of the informant evidence is subject to the scrutiny mandated in R. v. Garofoli, supra, at p. 191 and must be

gauged in light of all the circumstances alive for consideration. [57] The evidence of past reliability of the information of informants B, C and H is relatively sparse. With regard to informant A's information, although the evidence is more comprehensive, it is undermined by earlier instances of inaccurate information referred to in my reasons of November 27, 2001 and December 11, 2001. Accordingly the factors set out in Garofoli requiring an assessment of the informant information in light of the totality of the circumstances and the presence of confluence and corroboration assume significance in any analysis of the sufficiency of reasonable grounds for the impugned authorization. [58] It is perhaps useful as a starting point in analyzing the grounds said to establish credibly based probability in connection with Lee and Ho to summarize the informant information before relating it to other evidence advanced. The issue is then, whether, in light of the amplification achieved on review and submissions of counsel, it supports, to the required degree, the essential contentions against Lee and Ho said to justify the interception of their private communications. (i) Summary of the Informant's Evidence [59] The information provided by informant B on October 2nd and October 7th, 1998 can be summarized as follows: Lee was a major heroin dealer. According to an unidentified heroin

dealer he successfully imported a large amount of heroin into Vancouver in January or February of 1998. He had a new car, a white Infiniti. Lee was associated with a person nick-named Gong Tau Wah and Ho. The latter controlled heroin supplied by Lee. Lee had three underlings working for him whom informant B knew (identities edited out of the affidavit). Lee used Tsang Andy Sui Wong to deliver Lee's heroin. Lee arranged deals locally and was paid in Hong Kong or China. Lee's uncle who owned a restaurant in Kowloon and Hong Kong was a major heroin dealer. Lee had access to handguns and a machine gun. Lee had two cellular phones, one was 760-3339 and the other 889-8063. Ho was holding a quantity of heroin for Lee (as of October 7, 1998). They would accomplish pick-up between them by meeting randomly at the intersection of a main street and avenues. A load of about 50 kilos of heroin arrived in Vancouver in late July or early August 1998. Part of it was Lees and part belonged to Tan, Robert Lee Sa. Hui was in control of it because he as able to have someone pay cash for holding it. [60] Informant C's information relating to Ho and Lee can be summarized as follows: He heard from some other person that Ho was Hung Jai's (a.k.a. "Ah Pau" or "Tony") boss and supplied Hung Jai with heroin. Hung Jai obtained heroin from "Big Circle Boys" and sold it to the Vietnamese. He hung out at Top

10 Billiards, Central Square and the Dynasty Club. Fong returned to China three or four days previously (to October 16, 1998) and informant C believed he used a false passport because he was heard talking about his false identification. Ho used the courtesy phone at the Ying Kee restaurant in Richmond to return pages. He carried a cell phone but does not give out the number. C believed he was currently selling heroin and had some connection with Lee. As of October 19, 1998 C believed Ho went to Toronto to visit his family. [61] Informant H's information relevant to Ho and Lee can be summarized as follows: Fong was seen in Toronto in early October 1998. Informant H believed Fong could be there for drug deals but that he had left Canada and was presently in Guanghzoo, China. Ho had been seen in Toronto a few days prior to October 22, 1998. [62] Informant A's information relative to Lee and Ho can be summarized as follows: Fong's phone number was 808-5399. He was currently in China (as of October 23, 1998) arranging a load of heroin because the heroin price in Vancouver was very attractive. Fong used a false passport for his travel. He had recently lost about $300,000 gambling in Toronto and he wanted to recoup his losses by going to China to set up the heroin deal which would take place in about two months (after October 23, 1998). Pang had a load of heroin come in and would

return to Vancouver secretly using a false passport. Lee lost money in Macau when he was last overseas and was awaiting an unknown amount of heroin to arrive in Vancouver. He worked for his uncle "Ng Yat " who was also connected with Chan and was a big boss with lots of money. Previously Ng Yat had shipped a large amount of heroin but could not depend solely on Lee. Chan had the confidence and contacts and ability to distribute large amounts of heroin. Ho was in Vancouver two weeks ago at the Golden Swan Restaurant (two weeks prior to October 23, 1998). He had a new cell phone and pager number and arranged a load of heroin (17 units) from China. It was round like pancakes and not good quality. He had successfully imported a load seven or eight months previously and had sold some heroin to a dealer who owned a restaurant on Hastings Street previously called the Tin Tin restaurant. The current price of heroin was about $60,000 a unit. As of October 26th Ho and Fai Yai Wong (Wu) were in Toronto. Wu had control of 40 units of heroin in Toronto. Ho was to arrive in Vancouver from Toronto on a domestic flight and would bring heroin either by himself or through underlings. It might be driven or flown in from Toronto. Due to the large amount Ho had to personally come to Vancouver to verify the amount. Wu's phone number was 347-2322 and Ho's was 918-4915. On November 3rd, 1998 informant

A described some heroin that he had earlier (on October 29, 1998 and October 30, 1998) told police was being brought to Vancouver by Wu. He described the heroin as like the size of a pancake, the shape of canned goods. He said that as of November 3rd Ho had already successfully transported heroin from Toronto to Vancouver and had sold those products already. He said Pang was returning the week of November 3rd and had a shipment of heroin coming from Thailand. [63] During testimony, Corporal Bangloy was cross-examined as to the grounds for his belief that, in effect, Lee was associated with Chan Kwok Keung in the importing or distribution of drugs. In his answer he referred, in part, to paragraph 1422 of the P47/98 affidavit which was information from informant C secured on September 2, 1998 which is summarized as follows: Information from informant C was received on September 2, 1998 in which informant C told his handler that Ho was busy selling heroin and had changed his pager because he was being followed by the police; that Fong was also presently busy selling heroin and that Lee and Ho had recently been seen together a lot. Informant C believed that when they were together they were making use of each other and they had something happening together. He asserted that between the two of them Lee was the boss. [64] As can be seen from a review of the informant evidence, the

informants B and C both assert a connection between Ho and Lee. B explicitly refers to the connection as involving the supply and trafficking of heroin, while C's information concerning the nature of the relationship is less definitive but, in context, is suggestive of a heroin trafficking connection. (ii) Surveillance Evidence [65] Surveillance conducted by the police clearly establishes a relationship between Ho and Lee. The P54/98 affidavit sets out a number of occasions when Ho and Lee are observed together after Lee's return to Canada from China on August 11, 1998. [66] On September 27, 1998 Lee and Ho were observed together at a restaurant on Main Street. They left together in Ho's vehicle at 10:40 p.m. (para. 274). On October 14, 1998 Ho and Lee were both present at the Ying Kee Restaurant in Richmond late in the evening. (paras. 352 & 353). [67] On October 16, 1998 Ho went to Lee's residence carrying a brown paper bag at 9:22 p.m. Ho and Lee left Lee's residence together in Ho's vehicle at 10:24 p.m. The vehicle was seen in the parking lot at the Parker Place Mall at 10:46 p.m. and then at the Top 10 Snooker in Richmond at 11:17 p.m. (para. 363). [68] On October 17, 1998 Ho and Lee were together with two unknown males and an unknown female at a restaurant in Richmond. Ho and Lee left together at 9:18 p.m. [69] It appears from the evidence that Ho was in Toronto for a

period of time in October, returning October 26, 1998 (para. 389 as amplified by Corporal Bangloy who testified that the reference in para. 389 to Ho returning to Vancouver on October 21st was an error and should have read October 26, 1998). [70] The precise period Ho was in Toronto is unclear. On being checked at the airport on October 26, 1998, Ho told the police he had been there since September 28th and produced a ticket and flight itinerary that indicated he flew to Toronto on September 28, 1998. That is inconsistent with the sightings of him in Vancouver on October 14th, 16th and 17th, 1998, and with the assertion of Informant A on October 23 that Ho had been seen at the Golden Swan Restaurant "two weeks ago" (para. 392). Additionally, the interception of Ho's telephone call from the Ying Kee Restaurant on October 14, 1998 is inconsistent with what he told the police about being in Toronto throughout that period of time (para. 353). [71] On October 27th, Ho's vehicle was seen at Lee's residence at 7:00 p.m. At 10:16 p.m., Ho got into his vehicle, drove to the entrance of the parking lot of Lee's building, and, at 10:17 p.m., Lee left the building parking lot in his vehicle. At 10:35 p.m., Ho's vehicle arrived at 4818 Main Street and he and Lee went in the front door together leaving their vehicles parked on the street. At 10:48 p.m., three males left the building; one got

into Lee's vehicle and drove away. The other two got in a grey Mercedes and drove to a location in Richmond. [72] Surveillance of Lee on October 15, 1998 (summarized in para. 359) reveals Lee left his residence at 9:08 p.m. with Pang Chak Yeung in the latter's vehicle. At 9:30 p.m., they parked in a parking lot in the 4200 block of No. 3 Road in Richmond. Lee left the vehicle and walked back to it at 10:05 p.m. Pang then drove the vehicle to the 1700 block of 58th Street in Vancouver and parked at 10:15 p.m. At 10:29 p.m., Pang and Lee left and drove back to the parking lot in the 4200 block of No. 3 Road in Richmond, arriving there at 10:36 p.m.; another person was in the rear of the vehicle at that time. At 10:59 p.m., Lee got out of the vehicle. At 11:00 p.m., another person walked to the vehicle from a business named Chan's Desserts. He went to the driver's door of Pang's vehicle and passed a wallet to Pang. Pang, Lee and the other person then drove away, eventually at 11:25 p.m. arrived at a lounge on Alberni Street in Vancouver, and went in. [73] During cross-examination in support of his asserted belief in Lee's association to Chan, Kwok Keung, Corporal Bangloy referred to a number of paragraphs summarizing the surveillance reports in the P47/98 affidavit tending to show Ho and Lee associating. The paragraphs are as follows: 1. Para. 1182 relating to a surveillance report dated August 11, 1998 providing evidence of Lee's return to Vancouver from Hong Kong and going to his address at 118 - 4155 Sardis Street, Burnaby, B.C.

2. Para. 1346 relating to a surveillance report dated August 26, 1998 showing Lee and Ho together with Lee's wife and two children from approximately 11:30 a.m. to 4:20 p.m.

3. Para. 1399 - a surveillance report dated August 29, 1998 showing Ho, Gou Din being near the courtesy phone of the Sun Tung Kee Hot Pot Restaurant at 8291 Alexander Road in Richmond at approximately 11:30 p.m.

4. Para. 1401 - a surveillance report dated August 29, 1998 revealing evidence of Ho and Lee meeting at the Sun Tung Kee Hot Pot Restaurant at 8291 Alexander Road and driving around the block together in Lee's white Infiniti parking at 8251 Alexander Road whereupon Ho left the vehicle and went to the Hong Lok Yuen Restaurant at that address and then returned to Lee's car two minutes later. . Para. 1406 refers to a surveillance report dated August 30, 1998 again showing Ho and Lee together shortly after midnight until approximately 2:50 a.m. (iii) Intercepted Private Communications [74] There are a number of intercepted private communications said to reveal Ho's and, by inference, Lee's involvement in the activities under investigation. The principal communications referenced in the P54/98 affidavit are summarized in the following paragraphs: 1. Para. 119 - August 1, 1998 between Chan, Kwok Keung and an unknown male; 2. Para 121 - September 2, 1998 from Ho, Gou Din at the Ying Kee Seafood Hot Pot Restaurant Business Telephone to Pager No. 292-6699 at 11:59 p.m.; 3. Para No. 122 - September 3, 1998 at 12 midnight between Ho, Gou Din at the Ying Kee Seafood Hot Pot Restaurant Business Telephone from "Ah Yat"; 4. Para. 283 - September 29, 1998 at 10:25 p.m. from Chan, Kwok Yung to an unknown male; 5. Para 338 - October 10, 1998 at 1:29 p.m. from Chan, Kwok Yung to an unknown male

in Hong Kong; 6. Para. 341 - October 11, 1998 at 2:56 p.m. between Chan, Kwok Yung and "Chu Yam" ("director"); 7. Para. 353 - October 14, 1998 between Ho, Gou Din at the Ying Kee Seafood Hot Pot Restaurant Courtesy Phone to an unknown male; 8. Para. 375 - October 18, 1998 at 2:12 a.m. between Chan, Kwok Yeung and "Lo Li". [75] The principal communications summarized in the P47/98 affidavit incorporated into the amplification of P54/98 by the cross-examination of Corporal Bangloy are found in the following paragraphs: 1. Para. 1037 - August 1, 1998 at 7:50 p.m. between Ho, Gou Din and "Ah Yat"; 2. Para. 1041 - August 1st at 9:56 p.m. between Ho, Gou Din and Ah Yat; 3. Para. 1044 at 2:02 a.m. - August 1, 1998 between Chan, Kwok Keung and Ah Sor and two unknown males; 4. Para. 1045 - August 1, 1998 at 9:54 p.m. between Chan, Kwok Keung and an unknown male (this call was also summarized in the P54/98 affidavit at para. 119); 5. Para. 1093 - August 3, 1998 at 1:29 a.m. between Ho, Gou Din and an unknown male; 6. Para. 1095 - August 3, 1998 at 5:35 p.m. between Ho, Gou Din and an unknown male; 7. Para. 1098 - August 3, 1998 at 10:11 p.m. between Ho, Gou Din and an unknown male; 8. Para. 1104 - August 4, 1998 at 4:11 p.m. between Ho, Gou din and Ah Yat; 9. Para. 1105 - August 4, 1998 at 4:22 p.m. between Ho, Gou Din and an unknown male; 10. Para. 1107 - August 4, 1998 at 8:38 p.m. - a

page to Fong's pager from room 603 of the Park Hill Hotel, 1160 Davie Street, Vancouver, B.C.; 11. Para. 1108 - August 4, 1998 at 8:41 p.m. to Fong's pager from room 603 of the Park Hill Hotel "Toe Dum"; 12. Para. 1122 - August 5, 1998 at 11:05 a.m. between Ho, Gou Din and an unknown male; 13. Para. 1123 - August 5, 1998 at 11:07 a.m. between Ho, Gou Din and an unknown male; 14. Para. 1124 - August 5, 1998 at 11:10 a.m. between Ho, Gou Din and an unknown male; 15. Para. 1125 - August 5, 1998 at 11:14 a.m. between Ho, Gou Din and an unknown male; 16. Para. 1126 - August 5, 1998 at 11:18 a.m. between Ho, Gou Din and an unknown male; 17. Para. 1127 - August 5, 1998 at 11:22 a.m. between Ho, Gou Din and an unknown male; 18. Para. 1129 - August 5, 1998 at 11:49 a.m. between Ho, Gou Din and an unknown male; 19. Para. 1130 - August 5, 1998 at 11:52 a.m. between Ho, Gou Din and an unknown male; 20. Para. 1132 - August 5, 1998 at 1:56 p.m. between Ho, Gou Din and an unknown male; 21. Para. 1133 - August 5, 1998 at 2:10 p.m. between Ho, Gou Din and an unknown male. [76] Not all of the paragraphs set out above were explicitly referred to in the testimony of Corporal Bangloy, however they were incorporated into his testimony by reference on cross-examination. In particular, the paragraphs numbered between 1122 and 1133 were characterized by counsel for Lee as "a number of paragraphs that

deal with Ho and others talking about the fact that the police were there and they should escape". Corporal Bangloy agreed with that characterization, and the paragraphs referred to are manifestly those set out above between 1121 and 1133. [77] The significance of a number of the intercepted communications revolves around the meaning attributable to the call summarized in paragraph 119 of the P54/98 affidavit (and also in paragraph 1045 of the P47/98 affidavit). The relevant portions of that call made August 1, 1998, initially involve an unknown male telling Chan, Kwok Keung that "Ah Yat" met with Ho who had some good heroin that would be sold at $40,000 to $41,000 per unit. The unknown male told Chan it just came from Toronto and it was in grain form. Chan then spoke with Ah Yat who was with the unknown male and confirmed the information about the heroin. Chan said it was his "other old buddy's" heroin and Ah Yat asked Chan if he could talk to his "old buddy" and ask him to give his group a break. Ah Yat said it was flown in on two flights from Toronto. Chan told Ah Yat to leave it as is for the time being. There was further discussion between the two about the quality and price of the heroin and what to do about it. It was Corporal Bangloy's interpretation of this call that it was related to the heroin market in Canada and indicated Chan's control over that market. He

indicated that he believed that Chan's reference to his "other old buddy" was either Lee, Hui or Tan and the call corresponded to informant B's evidence (in para. 315(c) P54/98) about the 50 kilo load of heroin that belonged in part to Lee and in part to Tan that arrived in late July or early August 1998 and which was in the control of Hui. [78] Under cross-examination by Lee's counsel, Corporal Bangloy pointed to various intercepted communications between Ho and Ah Yat on August 1, 1998 (paras. 1037 and 1041, P47/98 affidavit) referring to Ah Yat mixing the heroin; intercepted communication between Ho and an unknown female and unknown males on August 2nd, 3rd, 4th and 5th, 1998 (paras. 1049, 1093, 1095, 1098, 1104, 1105, 1122-1127, 1129-1130, 1132-1133 of P47/98) referring to the presence and availability of the heroin, referring to an awareness of police surveillance, and referring to police attendance at the Park Hill Hotel at 1160 Haro Street in Vancouver.

DISCUSSION [79] The relevance of the various intercepted communications, referred to above, to Ho, is plain. Their relevance to Lee, however, is predicated on drawing a connection between informant B's information about Lee's participation in the 50 kilo heroin shipment, the heroin being mixed by Ah Yat, and discussed by him with Chan, Ho's involvement with Ah Yat and the heroin, Ho's association with Lee, and Chan's reference to "my other old buddy" as being either Lee, Hui or Tan. [80] In my view, in the totality of the circumstances there is a credibly based probability that Lee had some involvement in the heroin shipment referenced in the various calls set out above. The conjunction of informant information relating Lee to Ho, the surveillance summaries connecting them, informant B's information connecting Lee to a 50 kilo shipment from Toronto in late July or early August, Ho's involvement with the heroin shipment at that precise time and Ah Yat's conversation with Chan all combine to create reasonable grounds to believe Lee's participation with Ho in that endeavour. [81] A considerable effort was made by Lee's counsel to establish on the existing evidence that there was a credibly based probability that Chan's reference in paragraph 119 to "my other old buddy" was to someone referred to as "Fai Jai Hong" (Wu) who, an inference could be drawn, was checked by police with Ho

at the Park Hill Hotel on August 5, 1998 (see para. 283), and had an ongoing relationship with Ho (see para. 423 (f), (g) and (h)) and was known of, at least, by Chan's younger brother, Chan, Kwok Yung (see para. 282). Lee's counsel also submitted that, although it might be expected, there was no evidence to support informant B's assertion that Hui or Tan were involved in the heroin shipment. He also pointed out Lee was out of the country when the shipment arrived in Vancouver. [82] Against that the Crown submitted there was no evidence that Chan knew Wu and pointed to several paragraphs (338 and 341 in P54/98) in which Chan's younger brother, Chan, Kwok Yeung appeared to be looking for a number for Lee's uncle, Ng Yat, who was, according to informant A, the connection between Chan and Lee. It was Lee's submission, however, that the person referred to in paragraphs 338 and 341, "Lee Yu", was, because of a reference in paragraph 341 conjoining Lee Yu and "Lo Li", more likely in fact a person spoken to by Chan, Kwok Yeung named Lo Li in a call summarized in paragraph 375. It was Lee's submission, which I accept, that the Lo Li whose private communications were intercepted and referred to in paragraph 375 was not Ng Yat, Lee's uncle. [83] The evidence relating to a connection between "Ng Yat" and Chan, other than the information of informant A, is tenuous. Equally, Chan's

reference to "my other old buddy" is, on its own, enigmatic. While I accept the submissions on behalf of Lee that there are alternate explanations which arise from that evidence, those explanations are not so dominant as to preclude the theory advanced by the Crown to the effect that the references support Lee's participation in the heroin shipment in early August of 1998. The lack of evidence relating to Hui's involvement, while not insignificant, is an absence of evidence, rather than evidence of an absence of involvement and must be regarded in light of all the other evidence already referred to connecting Lee to Ho and Ho to the heroin shipment in early August. [84] In my view, Lee's absence from the country at the time of the shipment's arrival in Vancouver is a neutral fact which neither detracts from nor supports the Crown's theory of Lee's probable involvement. [85] The August shipment of heroin is not however the justifying rationale for authorization P54/98. It is the assertion, based on the informant evidence, surveillance evidence, and evidence of intercepted private communications, that the importation and distribution activities of Lee and Ho represented by the August shipment are ongoing such that the interception of their private communications will afford evidence of offences under investigation. [86] In the amplified record, the principal evidence of Lee's and

Ho's ongoing involvement in the importation and trafficking of heroin comes from the informants. [87] It is apparent from the affidavit in support of P54/98 and the Crown's submissions that the justification of the interception of Ho and Lee as primary targets depend on somewhat different characterizations of their involvement and activities. The assertions against Ho relate at least in part to his ongoing involvement in specific transactions involving quantities of heroin. The assertions against Lee, on the other hand, relate, in the main, to his status and organizational involvement in the importation and distribution of heroin. The evidence said to justify the interception of Lee's private communications in connection with P54/98 is to a significant extent a matter of inference from evidence of his past involvement, current relationships, and observed activities. The evidence said to justify the interception of Ho's private communications is more direct and less inferential, as it involves evidence of his own activity rather than those who, it is being asserted, are acting as agents or underlings. As it is a contention that Lee is working through Ho, to some extent the evidence of Ho's involvement is cogent to the question of Lee's involvement in the offences under investigation. The Evidence Against Ho [88] The informant evidence against Ho consists of information from

informant B that he was associated with Lee and controlled heroin supplied by Lee. Informant B also asserted that the load of 50 kilos of heroin arriving in Vancouver in late July or early August belonged to Lee and to Robert Le Sa Tan. Informant C asserted that Ho used the courtesy phone at the Ying Kee Restaurant in Richmond to return pages in connection with his trafficking business. He asserted that, although he carried a cell phone, he did not give out the number. C believed as of mid-October 1998 that Ho was currently selling heroin and had some connection with Lee. C also believed that as of October 18, 1998 Ho was in Toronto visiting his family. Informant A asserted that Ho was in Vancouver approximately two weeks prior to October 26, 1998 and that he had a new cell phone and pager number and had arranged a load of heroin (17 units) from China. Informant A described the heroin as being round like pancakes and not of good quality. He also provided evidence about a load that Ho had imported seven or eight months previously and that he had sold some heroin to a person who owned a restaurant on Hastings Street previously called the Tin Tin Restaurant. [89] Informant A said that as of October 26th Ho was in Toronto, was to arrive in Vancouver from Toronto on a domestic flight, and would bring heroin either by himself or through underlings. Because of the large amount, Ho had

to come to Vancouver to verify the amount. About a week later, on November 3, 1998 informant A reported that Ho had successfully transported the heroin from Toronto to Vancouver and had sold the products already. Informant C provided information on September 2, 1998 to the effect that Ho at that time was busy selling heroin, had changed his pager because he was being followed by the police, and that Ho was seen a lot with Lee. Informant C believed that the two were making use of each other and they had something happening together. He asserted that, between the two of them, Lee was the boss. [90] In my view, there is significant confirmation, insofar as Ho is concerned, of the informant information. Informant B and informant C each assert that Lee and Ho are involved with one another and both describe a relationship in which Lee is the dominant figure. There is clear evidence from the surveillance evidence itemized earlier that following Lee's return to Vancouver from China in August of 1998 he and Ho are together on a number of different occasions and in a number of different circumstances. [91] Informant C asserts that Ho uses the courtesy phone at the Ying Kee Restaurant in Richmond to return pages. That is corroborated in paragraphs 121, 122 and 353 of the P54/98 affidavit. It is highly suggestive, particularly given the fact that Ho has a cellular telephone, that he is

engaged in activities which he wishes to keep clandestine. That in itself provides significant support for the informants' assertions that he is involved in the trafficking of heroin. Informant A, H and C all refer to the fact that Ho was in Toronto during October of 1998. This is confirmed by police surveillance evidence establishing that he returned from Toronto on October 26, 1998. In particular, informant A's information that Ho was about to return from Toronto to bring a load of heroin to Vancouver from that city is partly corroborated by the police surveillance that he in fact did return by a plane on October 26, 1998. Although Ho told the police that he had been in Toronto since September 28th, informant A's evidence that he was in Vancouver at the Golden Swan Restaurant some two weeks previously is borne out by other police surveillance of Ho during that period and, as well, the interception of his private communications from the Ying Kee Restaurant in Richmond (see. para. 353 P54/98). [92] In my view, the congruence of the informant evidence insofar as Ho is concerned, buttressed by the police surveillance of his apparent involvement with Lee and his return to Vancouver from Toronto on October 26, 1998 and, as well, the intercepted private communications between Ah Yat and Chan, and between Ho and Ah Yat, and between Ho and various unknown males and an unknown female

all referred to above are all, when viewed in context, supportive of a credibly based probability that Ho is involved on an ongoing basis in the distribution of heroin and that the interception of his private communications under P54/98 would afford evidence of the offences under investigation. The Evidence Against Lee [93] As with earlier applications, the evidence said to justify the interception of Lee's private communications is less definitive than that against Ho. A significant issue is the reliability of informant B's assertion that Lee was a shareholder in a 50 kilo shipment of heroin that arrived in Vancouver in early August of 1998. In connection with that assertion, I have concluded that, in the totality of the evidence, there is a credibly based probability of Lee's involvement. The principal elements of that credibly based probability are, firstly, the consistency of informant B's and C's characterization of the nature of the relationship between Lee and Ho, the police surveillance evidence establishing Lee's association to Ho, sometimes in unusual or suggestive circumstances, and, of course, Lee's protracted trips to China and Hong Kong where, it is asserted, the heroin being imported and distributed ultimately comes from. [94] In my view, the same reasoning which connects Lee with the 50 kilo August shipment applies with respect to assertions of his ongoing

involvement in the importation and trafficking of heroin. He clearly has connections in Hong Kong and China including his uncle Ng Yat. Both informant A and informant B characterize Ng Yat as a major heroin importer. Informant A asserts a relationship between Ng Yat and Chan and asserts that Chan has significant influence on the heroin market in Canada. A's assertion concerning Chan is borne out by the summary of the intercepted private communication contained in paragraph 119 of the P54/98 affidavit. Lee's relationship with Ho as established by surveillance is one which is suggestive of clandestine meetings and counter-surveillance. In that way, the police surveillance is supportive of the assertions of A, B and C that Ho and Lee are involved together in heroin importation or trafficking. [95] The Crown submits that the surveillance of Lee on October 15, 1998 (summarized in para. 359 of the P54/98 affidavit) should be read with informant C's information given the following day (October 16, 1998) to the effect that Lee was standing in for Ho in dealing heroin. Taken by themselves, informant C's information and the police surveillance may not add up to a credibly based probability; however, when placed in the context of the totality of the evidence, including Lee's other meetings with Ho, the clear evidence of Ho's involvement in the distribution of heroin and the persistent

assertions by the various informants of the nature of Lee and Ho's relationship, this evidence, in my view, adds to the probability that the interception of Lee's private communications would afford evidence of the offences under investigation. [96] In my earlier reasons, while finding a sufficient common thread of reliability to informant A's and informant B's evidence concerning Lee, I found it inadequate to justify the previous authorizations because it was rooted in Lee's past activities and associations and justified expectations based only on hope rather than reason. Thus, it could not be said to satisfy the requirements of credibly based probability. [97] In connection with P54/98, however, the information from the three informants was contemporary in connection with Lee. In addition, Lee was back in Vancouver at the time and his activities were subject to police surveillance. In the result, the conjunction of evidence from the three different informants, police surveillance, and intercepted private communications creates a credibly based probability that Lee's illegal activities were of an ongoing nature, and hence, the interception of his private communications would afford evidence of offences under investigation. It is clear that Corporal Bangloy's belief encompassed, at the least, that Lee was involved with Ho in the distribution of heroin. In my view, it cannot be

said that this belief could not be supported on the record as edited and amplified on review. [98] I have not ignored the careful and comprehensive submissions of counsel for Lee and for Ho relating to the deficiencies of the P54/98 affidavit and, in particular, with regard to the confusing and somewhat misleading manner of presenting the basis for a fruitless search of three shipping containers from China, as set out in paragraph 425, apparently based on information received from informant A. I have, however, no basis for concluding that the reliability of the informant's information was undermined because Corporal Bangloy, in cross-examination, said that informant A's information was not inaccurate. In view of that, I can not conclude, in the absence of any additional evidence, that the search was an example of informant A's lack of reliability. [99] I am also alive to the submissions made by counsel relating to paragraph 170 of the P54/98 affidavit which, in counsel's submission, is an example of how evidence presented as reliable in a previous affidavit can be contradicted in a subsequent one without fully informing the subsequent issuing judge of the nature and extent of the contradiction. Counsel for Lee and Ho conceded that the contents of paragraph 170 did not have any direct impact upon their clients but submitted I should view it as cautionary in conducting my review

on the record as amplified. [100] In my view, while both paragraph 170 and paragraph 425 should have been more clearly explained to the authorizing judge, the failure to do so does not vitiate the presence of some evidence upon which the issuing judge could have concluded that the P54/98 authorization was warranted. In my view, the record as edited, excised and amplified is not such as to preclude a finding that the issuing judge could have granted the authorization in respect of Lee and Ho. Accordingly, I hold authorization P54/98 to be valid and the interceptions made thereunder to be admissible. "Cullen, J." January 4, 2002 - Revised Judgment Corrigendum to the Reasons for Judgment issued advising that paragraph 64 on page 33 should read as follows: [64] As can be seen from a review of the informant evidence, the informants B and C both assert a connection between Ho and Lee. B explicitly refers to the connection as involving the supply and trafficking of heroin, while C's information concerning the nature of the relationship is less definitive but, in context, is suggestive of a heroin trafficking connection. In paragraph 93, on page 49, the reference to Informant A should be removed.