THE QUEEN v. MA WING KEE AND ANOTHER

---------

-----------------

JUDGMENT

-----------------

Silke, V.-P.,

1. Ma Wing Kee - the 1st applicant - Ho Yiu Fat - the 2nd applicant - and Lau Wing Fai - D3 - appeared for trial before Hopkinson, J. and a jury upon an indictment containing a single count of trafficking in dangerous drugs. The particulars alleged that they, together with Li Kang Yuen, on the 15th of July 1988 outside block 5, Shek Pai Wan Estate, Aberdeen unlawfully trafficked in a dangerous drug namely 920.09 grammes of a mixture containing 64.31 grammes of salts of esters of morphine.

2. All three were convicted after trial. The 1st applicant now seeks leave to appeal against both his conviction and his sentence and the 2nd applicant against his conviction only. D3 originally filed an application for leave to appeal against both conviction and sentence but both were abandoned on the 3rd of November 1989 and we are no longer concerned with him.

3. The Crown's case was that, on the evening of the 14th of July 1988, a man "Ah Cheong" asked the 2nd applicant to go to collect "money" from the 1st applicant. They knew each other and the collection was to take place at Block 5 of the estate mentioned in the particulars and on the morning of the 15th of Judy. Li gave evidence and was, properly, treated as an accomplice. He said that on the same evening the 1st applicant asked him to wait for him on the 15th July at 7 a.m. He was then to go to collect something for the 1st applicant for which errand he would be paid with cash and with a small packet of drugs. Li was a drug addict and he slept in the corridor of Block 5.

4. Also on the 14th, D3, who knew Ah Cheong and the 1st applicant, borrowed a white van from a friend. Further, in Wanchai, he hired a private car DT 9609 for a sum of $200.

5. On the 15th of July the police had mounted a surveillance operation in and around Block 5. They set up video equipment - hence the exactness of the times. On that morning at 6.30 a.m. An Cheong asked D3 to take a brown plastic bag and deliver it to the 1st applicant. At 6.45 a.m. the 2nd applicant arrived at the block by taxi carrying a handbag and there met the 1st applicant and Li. It was alleged that the 1st applicant then gave the 2nd applicant a sum of $10,700 which sum was found on the 2nd applicant upon his arrest.

6. At 6.57 a.m. the three, having walked from the entrance part of the building, hung around waiting at a side entrance. At 7.10 a.m. the car DT 9609 arrived near Block 3 of the estate and parked. D3 was the driver and he went to the white van which was also parked nearby and drove it to a place outside Block 5.

7. The 1st applicant led Li to and into the van which left at 7.30 a.m. The 1st applicant went back to Block 5.

8. The van returned to Block 3 and D3 and Li got out and went to the car DT 9609. Both vehicles then moved off, the car going back to Block 5. Before they reached the block, D3 took a bag out of the glove compartment and asked Li to give it the 1st applicant. When they reached Block 5 the car was met by the 1st and 2nd applicants. Li got out and joined the 1st applicant. There was also a man named Tong present. The car drove off and was shortly afterwards stopped by the police and the 2nd applicant, and D3 the driver, were arrested.

9. While this was going on the 1st applicant and Li, carrying the bag, together with the man Tong entered Block 5 and started climbing up the side stairs. The police closed in and met with the group near the first floor landing. The police said who they were whereupon Li dropped the bag and, with the 1st applicant, ran down the stairs. Tong was immediately apprehended. The 1st applicant and Li ran into other members of the police party and were stopped. The time was now 7.18 and 40 seconds. They were taken to where the bag was and then, under arrest, to a police station.

10. At the police station the 2nd applicant made a cautioned statement. Upon that statement reliance was placed at the trial and it forms the substance of the grounds of appeal advanced on his behalf by Mr. King. We will come to them in a moment.

11. At page 27 of the summing up the trial judge set out the issues thus:

"Well the main - well that I think is the main - is the evidence and I think the main issues are: one, was this - was what happened that morning outside block 5, was that a commercial transaction involving the sale of dangerous drugs? And secondly, were the various accused involved - was the 1st accused the purchaser, was the 2nd accused acting as the collector of the cash, and was the 3rd accused acting as driver of the two vehicles and did they all know that dangerous drugs were in the bag?"

This, with the emphasis on "commercial transaction" - and in the light of the definition of trafficking contained in the Dangerous Drugs Ordinance - might be thought to be unduly favourable to the accused. However, it did set out the issues with which the jury were concerned.

12. The 1st applicant gave no evidence at the trial. His defence emerged from the cross-examination of the prosecution witnesses and it was this: what Li said about him was unreliable and should not be relied upon; the evidence which the 2nd applicant gave in the course of the trial referring to the transfer of $10,700 by the 1st applicant was untrue; the video recording of the events on the morning of the 15th of July at Block 5 was inconclusive and open to differing interpretations; the evidence of arrest given by the police officers was contradictory and, finally and perhaps most important, that a telephone book in his possession had the telephone numbers of the police witnesses in it. It was the 1st applicant's allegation that this was a "set up" and that all he was doing on the 15th of July was going to Block 5 to meet the police officers and to give them information. He knew nothing of the drug dealing on that day.

13. All this was fully left to the jury and they were comprehensively warned as to the dangers of reliance upon evidence given by an accomplice to find guilt. They were also fully directed on the nature of the man Li, a convicted Triad Society criminal with a bad record who admitted to giving evidence against the other accused in the hopes of a reduction in his sentence.

14. The jury were directed as to the possibility of corroboration, and it was left to them whether they found it to be so or not, coming from the contents of the video and certain portions of the evidence given by the police. Again the matter of whether or not $10,700 was handed over by the 1st applicant to the 2nd applicant was left entirely for the judges of fact to consider.

15. To us the 1st applicant has advanced three grounds in writing and, being in person, has submitted briefly upon them at the hearing of the appeal. The first is that the trial judge during the course of the trial had referred to his previous convictions and therefore had bias against him. As to this what had occurred was that aspersions were cast upon the character of Li and, not surprisingly, the issue was canvassed, faintly, as to whether the 1st applicant's record should, if the occasion arose, be brought to the attention of the jury. When this was mentioned the trial judge, in the absence of the jury, asked to be informed what that record was. This in our judgment was a very proper course for it would have been necessary for him to consider what view he should take of any application which might be made to cross-examine the 1st applicant should he give evidence and, at the same time, to consider the course to be taken as to the attack upon the character of Li. In the event nothing turned on this for the 1st applicant did not give evidence.

16. The second ground, which has somewhat more substance, was that in the course of the summing up the trial judge made "several points of comment unfair to me. Both the prosecutor and my lawyer requested the judge to rectify his statement but in vain."

17. It is correct that at the conclusion of the summing up counsel addressed the judge on whether or not he had fairly and properly left the defence of the 1st applicant to the jury. A somewhat lengthy dialogue ensued. As a result the trial judge gave further directions to the jury. It would have been preferable had the contents of those further directions been embodied in the summing up proper. But, apart from that, we can see no valid criticism which can be levelled against the trial judge in the manner of placing the 1st applicant's defence before the jury.

18. The third ground caused us some concern for we were not in possession of the full transcript. It was alleged that his counsel had asked for the discharge of the jury because of some evidence given by a prosecution witness whom the 1st applicant named to us as "Li". We do have the transcript of Li's evidence and certainly no application was made in the course of that. We caused enquiries to be made of counsel at trial, through the good offices of both Mr. Bruce who appeared for the Crown and of Mr. King who appeared for the 2nd applicant, and we have been informed that no one was aware of any such applications.

19. The issues in respect of the 1st applicant were clearly placed before a properly directed jury. It was for them as triers of fact to decide those issues and, in respect of the 1st applicant, the conclusions to which they came were fully justified by the evidence. We therefore dismissed the application of the lst applicant for leave to appeal against conviction and stated that we would give our reasons later which we now do.

20. We also heard the 1st applicant address in relation to sentence. We shall refer to that and give our decision at the conclusion of this judgment.

21. As to the 2nd applicant, Mr. King has advanced two grounds of appeal both, as we have indicated, concerned with the directions the trial judge gave in relation to the cautioned statement. That statement contained highly incriminatory passages. When he was asked, having said he went to collect money, "Do you know what money it was for?" he answered "I went to collect white powder money'". Later he was asked did he know what was inside the brown plastic bag that Li was holding. He answered "It should be white powder since Ah Cheong told me to go there to collect white powder money". He later made a similar reference and stated that his reward was $300.

22. This leads to the first of Mr. King's grounds. Having directed the jury on the manner in which they should consider the cautioned statements the trial judge, at page 44, went on:

"And they also show - they are also useful to see whether the accused has told the same story throughout or whether there is a change - whether he has changed his story by the time he comes to give evidence."

Then, having directed them upon the allegations made by the accused that the statement was forced out of him and, in certain parts, fabricated by the police and, having directed their attention to the evidence given by the police in respect of those allegations, the trial judge at page 54 emphasising as he did on a number of occasions throughout the course of the summing up that these were matters of fact for the jury, said as at line 24

"But if you think those admissions are true, well then of course they are very very telling,  I mean some of those questions in particular - some of those answers in particular."

He then went on at p.53 and this is the gravamen of Mr. King's complaint:

"Well answer (? question) 32 is "Is there any reward for your collecting money for Ah Cheong?" Answer "He said that he would give me $300". Well of course in evidence the 2nd accused changes his story. He says that he was just offered a meal.

 

Well you may think that that change of story is rather significant and you may wonder whether he changes his story because he on second thoughts - it's just my suggestion - you may feel on second thoughts he might have second thoughts about it, he thought that $300 was rather a high sum to be given. Anyway, that is a question for you."

23. Factually a change of story is correct, but what the accused said in evidence was that when he went to give the answer that he was to be given a meal - the whole of the defence was predicated on the fact that he was merely collecting from the 1st applicant some innocuous money which was owed by that man to Ah Cheong - he said that the police told him that merely to say a meal was not enough and he should say $300. There was therefore an explanation for the appearance of the $300 in the cautioned statement.

24. At the conclusion of the summing up the counsel then appearing for the Crown was anxious that the trial judge should bring this explanation to the attention of the jury. He addressed the judge and a dialogue ensued. The trial judge took the view that what he had said was factually correct and he did not think it necessary to address the jury further on the matter.

25. While Mr. King's' ground suggested misdirection, he accepted, in the course of argument, that his real complaint was nondirection and a failure to give a balanced recitation of the evidence to the jury. He accepts, and Mr. Bruce has emphasised' this, that the normal direction to the jury that they should, if they did not meet their pleasure, ignore comments was given by the trial judge at an earlier stage in the summing up. Mr. King accepts that had the 2nd applicant not given evidence, he could have had no complaint of the wording of the direction to which he has drawn our attention. But he says here, where the cautioned statement was the main evidence against the 2nd applicant and where that applicant had given an explanation in the course of his own evidence as to the apparent change in story, the failure of the trial judge to explicitly draw this to the attention of the jury should engender in the mnd of this Court a feeling sufficient to consider the conviction to be unsafe and unsatisfactory.

26. Mr. Bruce very fairly says that he would have preferred had the judge not couched the direction complained of in the terms in which he did. In the context of the summing up, at that particular point what the judge was doing says Mr. Bruce was making a comment which the jury were entitled to ignore and was referring to a matter which was purely for the jury's consideration. For if they accepted that the statement was that of the 2nd applicant and it was true, then it clearly said that he was being paid a fee of $300. It was a matter for the jury as to whether they did or did not accept the gloss which the 2nd applicant wished to put upon this statement.

27. In the light of all the other matters contained in that cautioned statement and the directions as to weight so clearly and concisely left to the jury this was not a matter of great significance. If the jury believed the contents of the cautioned statement - and there was uncontroverted evidence of the presence of the 2nd applicant at the scene and of his conduct there - then he was clearly involved in trafficking and the jury were entitled to convict.

28. This ground really comes down to a question of balance. In context the judge was quite right in the factual direction he gave. In context, on the basis that the jury could believe the cautioned statement, his comment was correct.

29. We accept that it would have been preferable had the judge made reference to the explanation. He had earlier drawn to the attention of the jury the 2nd applicant's evidence that he was merely going to Block 5 to collect money, the repayment of a debt. He had also, as we have indicated, fully brought to the attention of the jury the allegations as to pressure and fabrication which the 2nd applicant said surrounded the taking of that statement.

30. In those circumstances we do not think that the passage complained of by Mr. King was fatal to the safety of this conviction though it is a matter which was proper for him to bring to the attention of this Court. Were we to think it material we would have had no hesitation in applying the proviso. The second ground relating to the recitation of the medical evidence by the trial judge was pressed so faintly that we do not think it need concern us.

31. The application by the 2nd applicant for leave to appeal against his conviction is refused.

Sentence

32. Ma was sentenced to a period of 10 years' imprisonment. He has in his address to us drawn our attention to the quantity of drug concerned and its purity. He has urged upon us that this quantity has, in other cases, led to sentences lower than that imposed upon him. But we bear in mind that sentence here was after trial; that Ma had two previous convictions for possession of dangerous drugs for the purpose of unlawful trafficking; and that he had, while on bail for another drug offence, committed this instant offence. That other offence was committed in February of 1988 and sentence was passed in October of that year of 2 1/2 years' imprisonment. The judge very properly ordered this present sentence to run consecutively. Further this offence, as the judge fully appreciated, was direct trafficking of which there was abundant evidence. The old R. v. Chan Chi Ming [1979] H.K.L.R. 491 guidelines for possession of a quantity of this nature spanned a term of imprisonment of 5 to 8 years.

33. Ma has urged upon us that a young man of twenty-three, if lie has to serve his full term, will not be released until 1997 when substantial changes in Hong Kong may have come about and that he will not be in a position to participate in or to adjust to those changes. But that is a matter which he should have borne in mind before becoming engaged in this vicious trade.

34. In all the circumstances of the offence and of the offender we do not consider the sentence to have been excessive - and we bear in mind the totality as did the trial judge of the period of imprisonment to be served by Ma.

35. The application for leave to appeal against sentence is refused.