HKSAR v. CHONG WING HOI

CACC000078/1997

1997, No. 78
(Criminal)

HEADNOTE

Drug trafficking - prosecution case dependent upon police credibility - importance of giving fair and accurate summary of defence case however improbable the defence may have sounded.

Co-defendant acquitted on basis of immaterial averment in indictment - failure to discharge jury after co-defendant's prejudicial oral and written statements admitted in evidence - the need to ensure jury aware that all statements of co-defendant inadmissible.

IN THE COURT OF APPEAL

1997, No.78
(Criminal)

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J U D G M E N T

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Wong, J.

1. The Applicant was convicted before Deputy Judge Wesley Wong and a jury of one count of trafficking in dangerous drugs and sentenced to 7 years imprisonment. He now seeks leave to appeal against conviction.

2. The prosecution case was that sometime after midnight on the 5th March and the early morning of 6th March 1996, a police party led by Inspector Mak Siu-kwok went to a hut at No. 65 Tan Kwai Tsuen in Yuen Long. When they entered the hut, they saw the Applicant and Lau Lap-fan who was the 2nd accused. Lau was acquitted by the jury on the direction of the judge halfway through the trial. We will return to this matter later. Both the Applicant and Lau were sitting on a sofa and one of them was smoking a cigarette. Inspector Mak revealed his police identity and produced a search warrant. The inspector asked who was in charge of the hut to which the Applicant replied that he was. The inspector then instructed a police constable to search the premises while another police constable guarded the two men. Dangerous drugs were found on a round stool next to the door of the bedroom and in a tin can in the wardrobe. Before searching the bedroom, there was a small packet of suspected dangerous drugs on the table in the sitting-room along with other paraphernalia for processing and packaging of dangerous drugs.

3. The Applicant and Lau were taken back to the sitting room after the search in the bedroom. A body search was conducted on the Applicant. From his person, the police found $23,000.00 in cash, a pager receipt, a receipt for a portable telephone and a bunch of 5 keys. One of these keys fitted the door to the hut and another key fitted the bedroom where dangerous drugs had been found. Together with some men from the next hut, the Applicant and Lau were taken back to Yuen Long Police Station.

4. The Applicant gave evidence. He said that he did not live in the hut. The address at No. 65 Tan Kwai Tsuen which appeared on the receipts of his mobile phone and pager was for correspondence purposes because the place where he lived, that is Lot 12 Hung Uk Tsuen in Demarcation District 167, had only one mail box for the whole of the village and sometimes his letters got lost. He said he had a share in a factory in Shenzhen and had been an abuser of heroin for the last 6 to 7 years. On the 5th March 1996, he intended to go to Shenzhen at night to bring the money found on him to pay wages to workers of the factory. As he could not get a train ticket to Lo Wu so he went home. He felt an urge to take drugs and cycled to the hut to look for Tai Luk Chai, who gave him a small packet of dangerous drugs which was the small packet found on the table in the sitting room. Inside the hut he was chatting with Lau Lap-fan and he was handling a tin foil in preparation for the smoking of heroin when the police arrived. The police did not ask who was in charge of the hut. There was a search and dangerous drugs were found but he did not know where they were found. He said that he had no knowledge of the existence of the dangerous drug and did not possess them. He only had 3 keys and not 5. The two keys which fitted the main door of the hut and the bedroom were placed on top of the television set. The Applicant also called a witness, Mr. Ng Kei Toi who testified that the Applicant did not live at the hut where the dangerous drugs were found. The jury convicted the Applicant.

5. Mr. Ross who appears before us for the Applicant advances four grounds of appeal. He submits that the judge had failed to give a fair and balanced summing up and this resulted in the Applicant being wrongly convicted. Firstly, he said it was wrong for the judge to query why the Applicant was going to his Shenzhen factory late at night with $23,000.00 cash when the factory must have been closed and locked. When the Applicant gave evidence, he said that the money was to be given to his younger brother, and not to pay the workers himself in the factory. We have examined the transcript. We are satisfied that there is nothing to point to the fact that the Applicant was going to the factory that night with the money. This evidence can be found at p.75N.

6. The second ground is closely related to the first. Mr. Ross argues that the judge was wrong to query why the Applicant wanted to go to the factory while he only had possession of the key to the accounts office and the door of the factory must be locked and the accounts office must be inside the factory. These comments by the judge were not supported by the evidence.

7. The third ground makes complaint of a number of matters that the judge in his summing up:

8. To be fair to the judge, it was never the prosecution case that the Applicant lived in the hut and the judge never said he did. The evidence adduced by the prosecution at the trial was the police entered the hut. The Applicant was sitting on a sofa with Lau Lap-fan. The Applicant admitted being the person in charge of the hut. On the table in the sitting room, there were dangerous drugs and paraphernalia for processing and packaging. More dangerous drugs were found inside the bedroom. The Applicant was found with keys on his person and two of those keys fitted both the main door of the hut and the bedroom where the dangerous drugs were found. In relation to the fingerprints, it would be better if the judge had simply said that there was no evidence of fingerprints or any evidence why fingerprints were not checked, and stopped at that. We are, however, satisfied that the manner he dealt with it is not a matter of any great significance.

9. The last ground of appeal is that the judge failed to direct the jury to take no account of PW2's evidence as to what Lau Lap-fan had said about the Applicant's role in the hut when he was arrested. The evidence is found at p.43 of the transcript. After Lau was arrested and cautioned, he was alleged to say to the officer: "Ah sir, I only help Ah Chung, it has nothing to do with me". Ah Chung was a reference to the Applicant. It is submitted before us although the judge told the jury to disregard everything Lau Lap-fan said in his written cautioned statements, he had not done so in regard to the damaging oral remarks implicating the Applicant. Halfway through the trial, Lau Lap-fan was acquitted by the jury on the direction of the judge because there was a minor mistake in the cautioned statements of Lau. The date given in the statements was different from the date stated in the particulars of the charge. Instead of 5th March 1996, he said 6th March in the statements. At that stage, Lau's cautioned statements had been admitted in evidence and were before the jury.

10. Counsel for the Applicant at the trial invited the judge to discharge the jury but the judge declined the invitation and indicated that the matter could be corrected by a direction to the jury in his summing up and this he did at p.19 of the summing up where he said; "First of all, I must remind you the statement can only incriminate the maker because it is a declaration against self-interest. Apart from that, it cannot incriminate any other people. So if, even if, assuming that the statement is evidence, still you cannot rely on the part which incriminates 1st Defendant as evidence against him, so you must ignore it. Besides, after the 2nd Defendant was formally acquitted, his statements should no longer be evidence in this court and so you must ignore them." Mr. Ross submits that this direction does not cover the oral remarks Lau Lap-fan made in response to a caution by the arresting officer.

11. Ms. Zervos for the Government submits, on the other hand, that this direction is all embracing and it is wide enough to cover both the written statements as well as the oral remarks of Lau Lap-fan. We are unable to agree.

12. We have given very careful consideration to all the matters raised before us and to the summing up. This is a case depending largely on the evidence of the police officers and the Applicant. Their credibility is a matter of great importance. The judge was not only inaccurate in regard to the evidence of the Applicant about his going into the accounts office of the factory in Shenzhen with the money while he only had one key. What he told the jury in that respect was tantamount to inviting them to disbelieve the Applicant.

13. All the matters cumulatively considered, we cannot help feeling a sense of uneasiness. We are unable to be satisfied that the conviction is safe and satisfactory. Accordingly, we grant leave and treating the application as the hearing, we allow the appeal, quash the conviction and set aside the sentence.

14. Having heard counsel, we are satisfied that this is not a case to apply the proviso.

Stuart-Moore, J.

15. I agree with the judgment of Wong J.

16. It has become apparent during the hearing of this appeal that at the trial there was an extraordinary turn of events. It emerged that the co-defendant (D2) was acquitted on the learned deputy judge's direction entirely because the date was wrongly stated in the particulars of the charge that he faced.

17. In the circumstances of this case, the date was not a material averment. The error could have been simply cured either by making an amendment or, alternatively, by the judge informing the jury in his summing up that this was not a material particular in the charge and that it could be disregarded. D2 had erroneously given the date of his involvement as the 6th March when it is clear that he had intended to refer to 5th March, 1996. The probable reason for the mistake was that the interview in which the reference was made to the date took place in the early hours of the morning of 6th March. Adopting the day as given by D2, the charge read that D2 had trafficked in heroin on 6th March. Clearly as that Defendant had been in custody since midnight on 6th March, he could not have been trafficking on that date. The date was neither here nor there. In the context, it had no importance at all.

18. The error that had arisen was not a proper basis on which to direct the jury that D2 should be acquitted of trafficking in heroin. However, it was in the light of D2's interview that the jury knew of the damaging remarks he had made about this Applicant. It was therefore most important for the learned deputy judge when declining to discharge the jury, as defence counsel for the present Applicant invited him to consider doing, to give a fair and balanced summing up in favour of this Applicant, however unlikely his defence may have sounded. We have found that this was regrettably not done in this instance.

Power, V.-P.

19. I agree that the appeal should be allowed and the conviction quashed.

Representation: