R. v. KONG FU AND ANOTHER

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Reasons handed down: 23 September 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. These are our reasons for having dismissed, on 11th September 1992, applications by Tang Siu Ming for leave to appeal against conviction and by Kong Fu for leave to appeal against conviction and sentence.

2. The applicants were convicted on 14th November 1991 after a trial before Judge Tyler in the District Court of possessing dangerous drugs for the purpose of unlawful trafficking therein contrary to section 7(1) and (2) of the Dangerous Drugs Ordinance. Tang was the 2nd accused and Kong the 4th accused. They were both sentenced to 4 years' imprisonment. Two other men jointly charged had been convicted with them. Another man (the 5th accused) had earlier pleaded guilty to the same charge.

3. The evidence led by the prosecution was that on 4th April 1991, as part of an anti-drug operation, a party of police officers raided a men's dormitory on the 6th floor of a building in Wanchai Road. This was shortly before 8 p.m. The resulting search of the dormitory yielded no results. However, with the permission of the occupant of one of the cubicles in the premises, two police constables remained behind and used the cubicle for surveillance purposes.

4. One of the police officers kept watch into the living room from about 8.45 p.m. through a peep-hole. He told the court that he saw Kong with the 3rd and 5th accused sitting on the edge of one of the bunks (no.15), talking together and sometimes walking round that bunk and the next bunk (no.16). Tang was not there at the time. The watching policeman heard them talking about the recent raid. Following a knock on the door some men came in and gave money to the three accused persons then present.

5. At about 11.30 p.m., according to the witness, Tang came in. He was previously known to the witness. Shortly afterwards, the 1st accused entered the living room. The 1st accused, Tang and the 3rd accused then sat down on small stools around bunk no.15. Later, from another position, one of the police officers saw the two applicants and the three other accused men all sitting round the same bunk leaning over the bunk and doing something with their hands. Kong was seen packing what looked like white powder The other four men had their hacks to the police officer.

6. The second police officer testified that he saw the 1st accused holding a piece of wire and poking or scooping at some powder on a piece of coloured paper on the bunk, while the 5th accused was folding a small piece of brown paper. The other three men, with their backs to him (Tang, Kong and the 3rd accused) also had pieces of brown paper, rolled up or folded, in their hands.

7. When the police shouted "Police, don't move" the men threw whatever they had in their hands on to the bunk, and tried to escape. They were all caught before they got very far. None of them said anything when they were cautioned after their arrests.

8. What turned out to be drugs in various packages were found on a tray on the lower tier of bunk no.15.There were also 136 brown paper squares, 194 pieces of white plastic sheeting, a mixture of loose drugs and a few other items. Tang had HK$14,770 on him.

9. It will be recalled that the 5th accused had pleaded guilty. The applicants, as well as the 1st and 3rd accused persons elected not to give evidence and called no witnesses.

10. In his full and careful Reasons for Verdict, the judge reviewed and discussed the evidence in considerable detail and explained why he accepted the testimony of the two police witnesses regarding what they said they saw the applicants doing. He found that all the five accused "were involved in an operation of packing a mixture containing salts of esters of morphine". He said that he was satisfied beyond reasonable doubt that each of the accused persons was in joint possession of all the drugs found on the bunk in question. He went on to say:

"I find, in the light of the evidence of the unidentified visitors to the premises, the quantity of drugs and all the paraphernalia and the packaging operation that the defendants were in possession of these drugs for the purposes of unlawful trafficking therein."

11. Mr. Tolliday-Wright, who did not appear in the court below, urged before us, on behalf of Tang, the following grounds of appeal in respect of the judge's Reasons for Verdict:

(a)    the judge had failed properly or at all to -

(i)     direct himself on what joint possession entailed in the circumstances of the case,

(b)    the judge's finding that all five accused were involved in an operation of packing a mixture containing salts of esters of morphine was in regard to the applicant unsafe and unsatisfactory in view of the evidence presented;

(c)    the evidence of the two surveillance police officers was vague and imprecise;

(d)    there was no evidence that the pieces of paper were recovered and exhibited;

(e)    in all the circumstances the conviction was unsafe and unsatisfactory.

12. On the question of joint possession, counsel referred us to paragraphs 26-50 and 26-46 of volume 2 of the 1992 Archbold and the cases therein cited, as well as to R. v. Strong and Berry, The Times, 26th January 1989. All we feel it is necessary to say is that the evidence of the police officers, if believed, and in the absence of any evidence from the applicants, presented a formidable case of joint possession against all of the five men. The evidence was not simply that the applicants were present in premises where the drugs were found, and it went far beyond proof of mere knowledge that the drugs were there. The facts in the cases cited to us were very different.

13. The judge was fully alive to the fact that the 5th accused had pleaded guilty to the possession of all the drugs. He dealt with the submission made by defence counsel based upon that admission of guilt at page 12 of his Reasons.

14. We were unable to accept the submission that the evidence of the two main police witnesses was "vague and imprecise". In our view, it was not.

15. The final ground of appeal which Mr. Tolliday-Wright argued on behalf of Tang was in these terms:

"There appears to be a material irregularity in the trial in that the charge that appears in the Appeal Bundle has apparently been prepared, and signed by Counsel on fiat and not by Crown Counsel."

16. A perusal of the lower court file shows how the matter relied upon arose; during argument we explained to counsel what was revealed. The case first came before Judge Tyler on 5th November 1991. The prosecution was conducted by counsel on fiat. The applicant, Tang, was then represented by Mr. Adams of counsel. He was also appearing for Kong and the 1st and 3rd accused. The charge sheet, charging Tang and his co-accused with possessing dangerous drugs for the purpose of unlawful trafficking therein, referred, in the Particulars of Offence, to "68.98 grammes of a mixture containing 31.86 grammes of salts of esters of morphine". It was signed by a Deputy Principal Crown Counsel.

17. Before the pleas were taken, Mr. Adams (who had seen a typed copy of the prosecution's proposed opening speech) suggested that the charge should be split into two charges because the speech showed that the 3rd accused had put some drugs out of the window of the room in question. Prosecuting counsel accepted this suggestion. She amended the original charge in handwriting, undertaking to file a typewritten copy of the charge sheet, as amended, on the following day.

18. The amended charges (now two) were read to the five accused persons. The 2nd charge concerned only the3rd accused, and he was charged with possessing etc. 3.69 grammes of a mixture containing 2.07 grammes of salts of esters of morphine. He pleaded not guilty to that charge. The others were charged, in the 1st charge, with possessing etc. 65.29 grammes of a mixture containing 29.79 grammes of esters of morphine. It will have become apparent that if one adds the quantities stated in the new 2nd charge to those in the new 1st charge, one arrives at those set out in the original single charge.

19. On the next day, counsel for the prosecution kep ther promise and filed the new charge sheet, typewritten, duly signed by her.

20. As Mr. Tolliday-Wright has pointed out, by virtue of section 77(1) of the District Court Ordinance, Cap. 336, a charge sheet must be signed by a legal officer as defined in the Legal Officers Ordinance, Cap. 87 (other than by an assistant crown counsel). Of course, a private practitioner, prosecuting on a fiat, is not "a legal officer" as defined.

21. Counsel relied on Morais (1988) 87 Cr App R 9. There a bill of indictment had been preferred with the consent of a High Court Judge pursuant to section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which required, as a condition precedent, that it be signed by a proper officer of the court, certifying (for the purposes of section 2(1)) that he was satisfied that the requirements of section 2(2) had been complied with. After the conviction and sentence of the appellant it was discovered that the bill had not been signed by the proper officer. It was held by the Court of Appeal, Criminal Division, that there had been no valid indictment and thus no valid trial, no valid verdict and no valid sentence. A new trial was ordered following the quashing of the conviction.

22. We reached the conclusion that there had been no irregularity here. The applicant, Tang, and his co-accused, were properly taken before the court on a charge sheet which complied with the law. It was then amended following a suggestion made by counsel then appearing for Tang. Tang was not in any way concerned with the new 2nd charge. All that happened in relation to him was that the charge he had been facing was amended by reducing the relevant quantities of the mixture and the morphine originally specified, respectively by 3.69 and 2.07 grammes. We were not prepared to hold that counsel prosecuting on a fiat had no power, with the leave of the court, to make such an amendment to a charge sheet lawfully signed and presented to the court. It seemed to us neither here nor there that she assisted everyone by having the new charge re-typed, and then added her signature. We found nothing in this point.

23. We were entirely satisfied that the compelling evidence and the cogent Reasons for Verdict rendered the conviction of Tang unassailable.

24. We carefully considered all that Kong (who was not represented) said to us. We had no doubt that he, too, was rightly convicted.

25. We were not persuaded by Kong that the sentence of 4 years' imprisonment imposed upon him was, in the circumstances, "too heavy and unfair" as he put it. We mention that we noted that he had no less than 27 drug-related previous convictions.