R. v. LI KWOK MING

IN THE COURT OF APPEAL

1996, No. 361
(Criminal)

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

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

J U D G M E N T

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

Mortimer, J.A. (giving the judgment of the Court) :

1. On 31 May 1996 the applicant was convicted of possession of a mixture containing 2.74 grammes of heroin for the purposes of trafficking before Stock J and a jury. He was later sentenced to 2 years imprisonment. He now applies for leave to appeal against this conviction.

The facts

2. On 7 October 1995 police officers observed the applicant in the area of Tak Hing Street and its junction at Tak Shing Street. They saw him meet an ill-dressed man in the street who handed over money to him. In his evidence in the court below, the applicant admitted a similar meeting, but said that it was he who was purchasing drugs from the man. The prosecution suggestion was that this was the first part of a drug deal where money was handed over to the applicant for drugs to be delivered later by him.

3. The applicant then entered Pak Cheung House in Tak Shing Street. He later reappeared. The officers described him as acting suspiciously and they stopped him. In the course of a search, a packet, containing the drugs in count 1 in the indictment, was found. At trial, he contended that those drugs had been purchased from the man concerned for his own consumption. So he admitted simple possession.

4. At trial, there were two counts in the indictment. The count of which he was convicted and a second count of being in possession for unlawfully trafficking in 84 grammes of a mixture containing 62 grammes of heroin. It was said that that amount of drugs was in Room 6, Block C on the 6th floor at Pak Cheung House. Much of the evidence at trial concerned count 2 as well as count 1 upon which he was convicted.

The evidence at trial

5. Although the applicant admitted the meeting and later possession of drugs, the evidence of the Customs Officers went much further. The evidence was that the applicant was stopped and when the drugs were found on him, he admitted that the packet contained white powder which he was going to deliver to someone in Reclamation Street - some distance away. Also keys were found upon him which he said belonged to Room 6, Block C on 6th Floor, Pak Cheung House where he was living. The officers were joined by an inspector who found that the keys did fit that room. Inside, as directed by the applicant, the drugs in the second count together with packaging equipment were found. When asked, the applicant admitted that the drugs were his and that the equipment was for packaging them for sale. At the premises, one of the police officers made a record of the arrest; of the finding of the drugs upon him; of the admission in the street; of the finding of the keys; of the visit to the flat and of the finding of the drugs and equipment there followed by a further admission. The applicant signed the written record accepting its truth and accuracy.

6. Later at the headquarters, according to the Customs Officers, he made a statement under caution, enlarging upon the story but confirming it in all details. There he signed each answer and also acknowledgement of the truth of the statement.

The defence

7. In short his defence was that the police - perhaps in conjunction with a man who was in possession of the drug in the flat - had set up a wholly false case against him for trafficking in the drugs. They stopped him. He was an addict and having found the drugs, manufactured the rest of the case against him. He made no admission upon his arrest, no drugs were pointed out by him in the flat, no admissions were made there and that both written admissions were made at the headquarters at a time when he had been mistreated, was suffering from withdrawal symptoms, and was prepared to sign anything put in front of him.

At trial

8. Miss Sze for the applicant, demonstrated many discrepancies and inconsistencies in the police evidence. Not only were there inconsistencies between the Customs Officers, but also between the evidence given at trial and evidence given on a previous occasion. Inconsistencies were shown between earlier statements and the evidence, and between the evidence and facts which were later admitted. Some of those inconsistencies were completely insignificant, others were significant.

9. The judge, in the course of a very careful summing-up, reminded the jury of those matters. The jury acquitted on count 2 and convicted on count 1.

The application

10. Miss Sze, who appears also for the applicant here also, submits that the verdict on count 1 cannot stand in the light of the acquittal on count 2. Put shortly, she says this. It is not possible to divide the evidence on the two counts and say that the jury could properly accept the officers' evidence on count 1 when they were unable to do so on count 2. She submits that in the very special circumstances of this case, including the evidence and the facts, the conviction on count 1 cannot stand.

11. Further, the judge ought to have made that clear to the jury in his directions, it is submitted, that there was no evidence apart from that from the officers - in particular the oral and written confessions - upon which it was open to the jury to convict on count 1.

Conclusion

12. The question to which we must turn is therefore on what basis could the jury have convicted of count 1 after acquitting on count 2? It does not follow because the jury acquitted of count 2, that they concluded that the officers concerned were lying or that they were manufacturing a case against the applicant, or that the applicant's evidence in relation to the whole case was true. It is just as likely that the jury rejected count 2 on the basis that they could not be sure of guilt, having regard particularly to the fact that the applicant was a drug addict and may have been suffering from withdrawal symptoms at the time of signing the confession statements.

13. But this is simply speculation. Leaving aside the confession statements and the confessions - was it open to the jury to convict of count 1? The answer is simple. The jury had before them evidence, which it was open to them to accept, that the applicant met a man in the street, that there was a handing-over of money to the applicant, that thereafter the applicant went into the building and later reappeared. When he reappeared, he had upon him a considerable quantity of drugs of high narcotic content, together with a substantial amount of money - $10,800. He admitted simple possession of the drugs. On that evidence alone, the jury could find it proved that his possession was for the purposes of trafficking. Of course, as found by the jury, the case may have been much stronger. They may have accepted the evidence of the officers that on being stopped and searched, he admitted the drugs were for trafficking. That will never be known. The judge rightly directed the jury that it was open to them to accept some evidence and reject other evidence and that they had to consider each of these two counts separately. With the greatest respect, this ground of appeal which amounts to a submission that the verdicts of the jury were inconsistent is - in the circumstances of this case - misconceived.

14. Miss Sze takes one further point. That in the course of directing the jury that it was open to them to bring in the lesser verdict of guilty of simple possession, the judge failed to indicate to them sufficiently that even if they rejected the applicant's evidence that he had the drug only for his own use, that did not prove the case of trafficking against him. But if the whole of the summing-up is considered, it is quite clear that the judge directed the jury properly upon the burden and standard of proof which had to be achieved. In certain places he rightly told the jury that if they thought the applicant's evidence on that point was true, or even may be true, then they would have to acquit of trafficking. This did not in any way detract from his earlier directions.

15. For these reasons this application is refused.