CHOW CHING FUK v. R.

IN THE COURT OF APPEAL

1993, No. 396
(Criminal)

HEADNOTE

Criminal Law - out-of-court statements by others tending to exculpate the accused - the law stated by the Privy Council in Sparks v. The Queen [1964] A.C. 964 is fundamental and remains unchanged. Held (Court of Appeal): The Judge was right to rule the out-of-court statements inadmissible.

IN THE COURT OF APPEAL

1993, No. 396
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against conviction.

2. Chow Ching-fuk, the applicant, faced one charge alleging that he was jointly in possession with his brother Chow Tak-fuk of 1.8 kg. of a mixture containing 918 grammes of salts of esters of morphine for the purposes of unlawful trafficking. He was tried before Deputy Judge Pang and a jury and convicted of that charge. He was sentenced to 15 years' imprisonment. His brother Chow Tak-fuk absconded before trial with the result that the applicant was tried alone.

Prosecution Case

3. In essence the prosecution case was this: The applicant's brother Chow was seen on 29th May 1992 at 10 p.m. by Customs Officers to emerge from a car registration number DV 2932 parked at the carpark of a residential development at Ngau Tau Kok, Kowloon, called Amoy Garden. He unlocked the boot of the car and took out a plastic bag. He walked a little distance away from the car and, within the carpark, he was intercepted by the Customs Officers and arrested. The heroin, the subject-matter of the indictment, was found in the boot of the car together with a hammer and a cutter with traces of heroin on it. About two hours later at 11.50 p.m. the applicant drove a car into the carpark and stopped next to the car DV 2932. He was accompanied by Miss Cheung Ka-yee, his girlfriend. The two stayed inside the vehicle. The applicant looked at DV 2932 for some time, estimated to have been up to about one minute. He was then intercepted by the Customs Officers. A bunch of nine keys was found in the ignition of his car. One of the keys opened both the boot and the doors of DV 2932. The applicant initially said to the Customs Officers that the key was for a vehicle number 2890; this was before the key was seen to fit DV 2932. When a search was conducted of the applicant's car, cash amounting to $40,000 was found in the glove compartment The applicant was then taken to his flat in Amoy Gardens where in a locked cabinet the Customs Officers found cash amounting to a total of $341,000. The applicant had the key to that cabinet. Fingerprint impressions were found on the tape wrapping one of the packets of heroin found in the boot of DV2932. One of those impressions matched the applicant's right ring finger, according to the opinion evidence of the police expert. The applicant told the Customs Officers that the key which opened the boot of DV 2932 was the key to another car which he had sold some time ago. At a later stage he told the officers that he had previously sold DV 2932 to his brother Chow Tak-fuk.

Defence Case

4. The applicant gave evidence at the trial. He testified that he was unaware of the presence of the heroin in his brother's car. He said he was in the carpark solely for the purpose of parking his own car.

5. In relation to the fingerprint, the applicant told the court that he could not say how that got onto the tape.

6. In relation to the money found in the flat, his girlfriend Miss Cheung Ka- yee testified that it was hers, though she did not have the key to the cabinet in which the money was kept. She testified that she kept it there because she had no faith in banks following the collapse of BBCI. She was a night-club hostess and the money was her earnings. The applicant said that the $40,000 found in the glove compartment of his car was an amount he had borrowed from a friend earlier that night as he and Miss Cheung were proposing to go to Macau the following day.

Grounds of Appeal

7. We now deal with the issues raised on this appeal.

8. The first ground of appeal argued by Mr. Daniel Fung, Q.C. was to this effect: that the judge had wrongly excluded the oral confessions and written statement made by the brother Chow to the Customs Officers.

9. What happened was this: As will be recalled, Chow was intercepted at 10 p.m. that evening at the Amoy Gardens Carpark. The Customs Officers produced warrant cards and he was searched. Chow was then carrying a white plastic bag containing an electronic scale. A search of a handbag produced cash amounting to $3,920 and two bunches of keys. Upon a body search being made, a polythene bag was discovered in his right trouser pocket containing 27. grammes of a heroin mixture and another bunch of keys. The Customs Officer asked Chow what was in the polythene bag; he said it was white powder and was for his own consumption. The Customs Officer asked about the bunch of keys and Chow said that they opened his car (DV 2932) parked nearby. The Customs Officer then told Chow that he was under arrest and he was cautioned. He was then questioned about other keys found, and his home address. After this had taken place he was escorted to the car DV 2932. There the officers put on rubber gloves and the keys previously seized were used to open the boot. In the boot a carton was found inside which were 7 bags of heroin, the mixture of which weighed 1.8 kg. and became the subject-matter of the charge of joint possession. The Customs Officer asked Chow what they were and he replied that they were white powder. Chow was asked who the owner was and he said he was the owner; whereupon he was cautioned by the Customs Officer again to the effect that he was not obliged to say anything. He was then escorted to the flat in Amoy Gardens where Chow told the Customs Officers that there was some heroin there for his own consumption. A small packet of heroin was found, whereupon yet another caution was administered to him.

10. In the early hours of 30th May, the Customs Officer took a statement from him under caution which was not completed until 3.10 a.m. In his written statement Chow asserted that his girlfriend had nothing to do with the packet of heroin found in his trousers pocket. As to the large cache of heroin found in the boot of his car, Chow is recorded to have said as follows: "I tended to sell it to others and earn money to be spent on my own consumption. My girlfriend and other persons knew nothing about it."

11. As can be seen from the summary of facts above there were four separate occasions when Chow made statements to the Customs Officers: the first when the bag containing the 27 grammes of heroin mixture was found in his pocket, the second when the 1.8 kg. were discovered in the boot of his car, the third when the small packet of heroin was found in the flat and lastly his written statement to the Customs Officers. Plainly, as part of the res gestae of the crime with which this applicant was charged, the only relevant statement made by his brother Chow was the second; that is to say, on the occasion when the drugs, the subject-matter of the charge, were discovered in the boot of his brother's vehicle.

12. Mr. Fung, Q.C. submits that the proper test for the admissibility of out- of-court statements of this kind is that propounded by Lord Wilberforce in the case of The Queen v. Rattan [1972] AC 378 at 391c:

"Hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of proximate but not exact contemporanity) of involvement or pressure so as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

This was adopted by Lord Ackner in Andrews [1987] 1 AC 281 at 300. Applying that test we cannot see how the relevant oral statement made by Chow could have been admitted as evidence at the trial of this applicant. By the time Chow made the statement concerning the drugs in the boot of his car, the 27 grammes in his pocket had already been discovered. He had been arrested and cautioned and he must fully have anticipated that the Customs Officers might find the large cache of heroin in the boot of his car, after all, he had the keys to the car in his pocket, which the Customs Officers had seized.

13. To be admissible in evidence, the occasion in which the out-of-court statement is made must be such as to "exclude the possibility of concoction or distortion". We cannot see how in the circumstances of this case such a possibility could be said to have been excluded when the applicant made his oral statement. Far less can we see this possibility excluded when he made the written statement many hours later. But there is perhaps an equally fundamental objection to Mr. Fung's ground of appeal. What Chow said did not go to the issue at trial, namely, whether this applicant was involved with him in trafficking in heroin; that is to say, in joint possession of the parcel of heroin in the boot of the car for the purposes of trafficking.

14. Chow's confession in no way excluded the possibility that the applicant was involved with him in a joint enterprise. Assuming that the written statement made many hours after the discovery of the drugs be admissible under some other exception to the hearsay rule, as to which we are not in the least convinced, what, it might be asked, did the statement amount to? Chow said in his written statement: "My girlfriend and other persons knew nothing about it." What did this mean? It is vague to the extreme. Whether Chow's girlfriend knew it or not was wholly irrelevant to the matter before the jury. As to the other statements, they touched the question of ownership and Chow's admission as to ownership of the drugs, whether in his pocket or in the boot of his car, in no way excluded the possibility of a joint enterprise with this applicant.

15. We do not think that the circumstances of this case afford an occasion for discussing the case of The Queen v. Blastland [1986] 1 AC 41; far less does it afford an occasion for exploring and perhaps, as Mr. Bruce suggests, distinguishing or not following the decision of the English Court of Appeal in Beckford and Daley [1991] Crim.L.R. 833, the report of which, we would add, is bare and plainly much abbreviated. The law as regards out-of-court statements has been clearly reiterated barely 20 years ago in the opinion of the Privy Council in Sparks v. The Queen [1964] AC 964, where the rule against the admission of hearsay evidence was said to be fundamental. In our judgment the judge was right to have excluded from the jury's consideration the out-of- court statements made by Chow.

Finger-print

16. We now turn to the question of the fingerprint.

17. The prosecution case was that the applicant's fingerprint was found on the tape wrapping of one of the seven packets of heroin found in the boot of Chow's car. The evidence of the lifting of the fingerprint came from a detective police constable PW6. The main averments were not challenged and the cross- examination was directed to establishing that a fingerprint appearing on a particular tape did not establish that the person who touched the tape must also have touched the contents; and it was suggested that the discovery of the fingerprint did not establish when it might have been put on the tape. The prosecution called a detective station-sergeant Leung, PW7, as a fingerprint expert. He said he compared the print lifted by PW6 with a print taken from the applicant and in his expert opinion the two matched; they came from the same person. He so concluded when he found 12 points of similarity. In cross- examination he accepted that in the United Kingdom conclusive proof would only be reached when there were 16 points of similarity.

18. In his closing submission counsel for the applicant submitted to the jury that fingerprinting was not an exact science and counsel went on to say that if it be accepted that it was the applicant's fingerprint, there was no evidence as to when and how it got onto the tape.

19. The judge in dealing with the fingerprint told the jury:

"It was never the defence case that the print lifted did not belong to the accused."

20. Mr. Fung's argument is this: Whilst the trial judge could not be faulted for reminding the jury that the defence (a) never advanced a positive case that the fingerprint did not belong to the applicant and (b) never challenged the expertise of PW7, nevertheless the impression given to the jury in the summing up was that the matter was closed. Mr. Fung argued that when the judge said to the jury "The fingerprint, which is that of the accused person's right and ring finger, was lifted from a plastic tape", this amounted to a misdirection.

21. Insofar as the judge slightly overstated the position, Mr. Fung is right in his criticism. If the judge had said to the jury "Members of the jury you may think that the fingerprint is that of the accused's right hand ring finger" that would have been impeccable. Mr. Fung's complaint is that the judge intruded a personal view, stated his own conclusion on a question of fact, usurped the jury's role and effectively prevented them from reaching their own conclusion. In our judgment this submission has a slight flavour of contrivance. The reality is that upon the evidence before the court, the only possible conclusion the jury could have reached upon the evidence was that the print found on the tape was that of this applicant's. Any other conclusion would, on the state of the evidence, have been perverse.

22. The judge had earlier directed the jury accurately as regards their duty to assess the evidence and specifically said this as regards the fingerprint:

"You have ... the various other items, ... the photographs, fingerprints. They also form part of the evidence that you should consider. Your main duty as regards to the evidence is to assess its credibility, reliability and accuracy. Your decision may depend on a number of factors."

We cannot see how, in these circumstances, the way the judge had put the issue to the jury could amount to a material misdirection. This ground of appeal therefore fails.

The Cash

23. The last ground of appeal relates to the cash found in the car and particularly the $341,000 found in the cabinet in the flat to which the applicant had the key. The way the point is put in the Grounds of Appeal is this: that the judge had failed to "direct the prosecution to particularize its case as to the effect of the various sums of cash found". We have difficulty in understanding this ground of appeal. The prosecution case was plain enough: that the applicant had the drugs in his possession jointly with his brother for the purpose of unlawful trafficking. The discovery of large sums of cash within the control of this applicant was plainly consistent with the prosecution case.

24. The judge's summing up to the jury with regard to the cash was to this effect:

"You have heard evidence from Miss Cheung that the $334,0000 belonged to her and how she came to accumulate this sum of money. She worked as a night club hostess in the China City Night Club. You will also recall how the two sums of $100,000 and $60,000 were given to her by her customers. Regarding the $30,000 making up the latter sum of $60,000, you will also note that a photocopy of a cheque ... was produced as an exhibit. The money was given to her by a Mr. Chu, whose name also appears on the cheque."

Then a little later the judge said this:

"Members of the jury, you may wish to ask yourselves these questions: Did the sum of $334,000 belong to the accused? Can I be sure that the sum of money plus the $40,000 seized from the car, were somehow, as the prosecution would like you to find, connected with the drugs? If the money did belong to Miss Cheung and it was connected with the drugs, Miss Cheung was never charged with any offence. May I remind you that you are not here to speculate. You must base your findings on the evidence before you."

The weight of the evidence was for the jury to consider. Its relevance to the charge was plain. We cannot see how the judge could be said to have erred in any way with regard to the evidence concerning the cash.

25. In our judgment there are no merits in the grounds of appeal and the application for leave to appeal must be refused.