HKSAR v. YU CHEUK SAN

FAMC No. 19 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC No. 324 of 2002)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  The applicant was convicted on seven charges of trafficking in dangerous drugs.  He was alleged to have sold those drugs to undercover police officers at a Wanchai establishment.  He applies for leave to appeal against that conviction on the substantial and grave injustice ground, making a single complaint.  This concerns the adequacy of a direction given by Mr Andrew Macrae SC sitting as a Deputy Judge of the High Court.

2.  At the trial, after having retired for nine hours, the jury sought further directions.  The judge conveyed their  question in these terms:

“The question that they have posed is this, if the officers induced the defendant to sell drugs, the action of selling drugs will, I interpolate it, be regarded as guilty or not?”

3.  The judge stated his understanding of the question as follows:

“…... if either one of the defendants was induced, by which I think you mean perhaps enticed or incited so as to initiate, is that correct, the transaction – I see the jury foreman nodding – would that have any effect on the guilt of a subsequent supplying of drugs.”

He directed them that in such an event, the incitement would not be a defence in the case of the applicant, but only a matter of mitigation.

4.  The complaint is that the jury’s question showed that they were approaching the evidence on a basis that had not been advanced at the trial and that the judge had wrongly failed to direct them that they could not adopt such an approach.

5.  That is not an arguable ground of appeal.  It is true that the applicant’s defence was not that he had been incited by the undercover officers to sell the drugs.  His case was that he did not make any sales at all and that the officers had fabricated their evidence.  Incitement was also no part of the prosecution’s case.  So, the key issue for the jury was whether there had in fact been a sale.  Their question is premised on there having been a sale, which is a finding reflected in their decision to convict.  They wanted to know whether that sale would still be criminal if it was the result of an incitement by the police.  They were told that it would.  The jury were, in other words, merely told to disregard incitement as a possible defence.  No complaint can be made about that since it was never part of the defence case in any event.  The basis of the conviction was not affected by anything said in that direction.

6.  Three authorities were cited on behalf of the applicant (R v Adair (1958) 42 Cr App R 227; R v Cooper and Schaub [1994] Crim L R 531; and R v Tarmohammed [1997] Crim L R 458).  They are all crucially different.  In each of those cases, the jury indicated that they might be adopting a basis for convicting the accused which was never part of the case advanced against him.  That is not what happened in the present case and the application for leave to appeal must be dismissed.