R. v. LEE CHU KONG

IN THE COURT OF APPEAL

1994, No.214
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this case faced two counts of trafficking in dangerous drugs. The first charge was that on the 26th of August 1993 at the ground floor of the Yan Wing Building, Kwun Tong, he unlawfully trafficked in a dangerous drug, namely 36 grammes of a mixture containing 8.93 grammes of salts of esters of morphine. The second charge was that on the same day at Flat K on the 8th floor of 26-34 Wan Hong Street, Kwun Tong, he unlawfully trafficked in a dangerous drug, namely 95.47 grammes of a mixture containing 21.88 grammes of salts of esters of morphine. He was found guilty after trial before Deputy Judge Jones and was sentenced to imprisonment for three years on the first count and six years on the second count and these sentences were ordered to be consecutive. He now seeks leave to appeal against both the convictions and the sentences.

2. The facts upon which the Crown relied came from the arresting police officers who stopped and searched the applicant at the ground floor of the Yan Wing Building. The arresting officer PC48381 says that he found the drugs, the subject of the first count, in the applicant's right front trousers pocket. He says that he then arrested the applicant who said, "Sir, I was merely working for someone. I was only making a living." Keys were found on the applicant who, with the arresting officer and the officer accompanying him, then went to the premises at Wan Hon Street. There, the drugs, the subject of the second count, were found as was an amount of trafficking paraphernalia. PC 48381 says that the applicant then said "Sir, I was merely giving Wong Cheung a helping hand. These things were his."

3. The applicant denied having made any admissions and said that only about 14 grammes had been found on his person and that this was for his private use. He says that the police concocted their evidence and planted the drugs in Wan Hon Street premises which he says he had sublet to Wong Cheung.

4. The only ground in the appeal is as follows:

"The Learned Trial Judge, in his directions to the jury, made certain observations, which were to the effect that police officers, by reason of their office, were less likely to lie than the Appellant. Further, the effect of the said observations was to convey to the jury the impression that police officers were to be regarded as a separate category of persons, as distinct from the Appellant, when giving evidence from the witness box. In the premises, the jury were prevented from giving the Appellant's evidence the impartial view to which he was entitled."

5. The passage in the summing-up which gave rise to this ground is as follows:

"Have you evaluate the defendant's evidence of this conspiracy is a matter for you. I do not say it did not happen, because you are the judges of the facts. You are however entitled to consider the gravity of the allegations in reaching your conclusions. You are entitled to ask yourselves - amongst many other things perhaps - but you are entitled to ask yourselves if the officers would have risked their careers, disciplinary proceedings, prosecution and possibly jail for perjury and perverting justice by the fabrication of false evidence. You may ask yourselves if they would think it worth the risk. You may consider the credibility of the prosecution witnesses and weigh this against the credibility of the defendant."

The judge not only made the above comments as to the possible consequences for the police officers if they were perjuring themselves, but he also in the second sentence of the passage said:

"I do not say it did not happen, because you are the judges of the facts."

We are concerned as to what the jury might have made of these observations. Remarks such as this have been dealt with in a number of cases in Hong Kong and we had them cited to us. We say no more about those authorities than that they clearly state that such remarks should not be made and indicate that while in some cases they are so prejudicial as to make the conviction unsafe and unsatisfactory in others they do not reach that point. It depends very much upon the facts of the case and the wording of the observation. In the present case we are satisfied that these were very strong remarks which rest upon the borderline of propriety. We are, further, occasioned unease by a direction which followed on the next page of the summing-up which reads as follows:

"This conspiracy to fabricate the evidence in Wan Hon Street and the details of what they would do there must therefore have come into being fairly quickly amongst the investigating officers. They must have decided very quickly amongst themselves, on going to Wan Hong Street, how they would frame the defendant using the white powder which the defendant said 10846 had discovered at his own home. They could have decided exactly what to do earlier as they did not know what they would find there at Wan Hon Street until they got there."

These remarks suggest a likelihood that there was no conspiracy because it would have had to have been very quickly decided. This observation was weighted against the defence and failed to allow for the existence of other, not fanciful ways in which such a conspiracy might have come into being.

6. We are driven with reluctance to the conclusion that this conviction was neither safe nor satisfactory and it must therefore be quashed.

7. The hearing of the application for leave will be treated as the hearing of the appeal and the appeal would be allowed.

8. We think this is an appropriate case in which to order a retrial and we therefore order accordingly.

9. We are not prepared to grant bail but we order that the trial be brought on for hearing as soon as it can be set down.