THE QUEEN v. LEUNG YUI KEUNG

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JUDGMENT

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Macdougall, J.A.:

1. The applicant was convicted after trial before Judge Caird in the District Court of having in his possession for the purpose of unlawful trafficking 40.67 grammes of a mixture containing 2.48 grammes of` salts of esters of morphine. For this offence he was sentenced to three years imprisonment. He now seeks leave to appeal against his conviction and, if necessary, against his sentence.

2. The evidence for the prosecution was that on the 8th March 1989 a P.C. Chan, who is a member of a three men's squad on patrol duties, observed the applicant enter a lane, button his trousers, squat down and do something with his hand in the region of his buttocks. He then rose, buttoned up his trousers and walked out of the lane. As he was alone at the time, PC Chan contacted the other members of his squad, a Sergeant Cheng and a PC Yau, from his surveillance post by means of his beat radio and informed them of what he had seen. Shortly afterwards he joined these two officers, who by this time had stopped and apprehended the applicant.

3. The squad then took the applicant to the Chai Wan Emergency Unit where he refused to submit to a physical examination. He was then taken to the Chai Wan Casualty Department where be refused to be examined by the duty doctor.

4. Subsequently he was taken to Queen Mary Hospital and again he refused to be examined by a doctor. He was then admitted to a ward where, at the instruction of the doctor, a male nurse inserted a glycerin suppository in his anus. The police officers remained on guard. As there was no reaction the doctor instructed the male nurse to insert another suppository and some twenty to thirty minutes later the applicant requested to be taken to the toilet. His request was granted and he was given a bedpan into which in the presence of the police officers he passed 9 pinkish cylindrical plastic packets measuring approximately 4 centimeters x 2 centimeters. On subsequent analysis these were found to contain the drugs which formed the substance of the charge.

5. During the course of cross-examination of police constable Chan, who was the first prosecution witness, it was alleged that the Sergeant had dropped the packets into the pan after the applicant had defecated. The officer denied that this had happened.

6. However, at the conclusion of that officer's evidence, and no doubt as a result of the allegations made in respect of the Sergeant's activities, Crown Counsel disclosed that as a consequence of an investigation conducted by ICAC, the Sergeant had been charged with a bribery offence or offences arising out of a drug case or cases. No charges had been preferred against any of the other officers who gave testimony in the case against the applicant.

7. Counsel who then appeared for the applicant then made an application for the trial to be adjourned until after the conclusion of the sergeant's trial. The judge refused to grant the application. He noted that the very earliest dates for that trial would be some four to five months later in December and that therefore the applicant's trial could not be resumed at least until January of this year. There was also the real possibility that, in the event that the sergeant was convicted, there would be an appeal with the further possible consequence of a retrial. Moreover, apart from the prospect of a long delay before the resumption of the applicant's trial there was also a possibility, arising from that delay that the prosecution might encounter difficulty in securing the attendance of witnesses.

8. When the trial resumed PC Chan was recalled for the purpose of further cross-examination in the light of the disclosure concerning the sergeant. It emerged that PC Chan had simply been questioned by ICAC concerning certain drug cases in which he had made arrests. He had not been cautioned or treated as a suspect.

9. The sergeant, who having been charged by ICAC was under interdiction, was nevertheless called to give evidence at the trial. He testified that he had been present when the suppositories had been inserted and that when the applicant asked to be allowed to go to the toilet he, PC Chan, and PC Yau had escorted him there. The sergeant then went to look for the doctor. After an unsuccessful attempt to find him he returned to the toilet where PC Yau informed him that the applicant had passed something. The sergeant then saw the 9 packets in the bedpan. PC Yau was then instructed to search for the doctor who was then shown the contents of the bedpan.

10. Not unnaturally the sergeant was subjected to considerable cross-examination in relation to the facts of the case concerning the applicant. He was also asked questions in relation to the matters in respect of which he was facing trial, and although he was informed of his right to refuse to answer those questions he did not avail himself of it.

11. PC Yau confirmed that the Sergeant and PC Chan had escorted the applicant to the toilet to enable him to defecate in the bedpan and that only he, PC Yau, and PC Chan were present when the applicant actually passed the packets. PC Yau then went to inform both the doctor and the sergeant as to what had happened. After leaving the toilet he said he met the sergeant and told him what had occurred. The sergeant then directed him to find the doctor and bring him to the toilet. In cross-examination it was put to him that the sergeant had been present in the toilet all the time, that the applicant had hot passed the packets and that it was the Sergeant who had put them in the bedpan. The officer denied all these allegations.

12. The applicant testified that he had refused to undergo a physical examination on the two occasions at Chai Wan and that at Queen Mary Hospital the suppositories had been inserted without his consent. As to this latter matter the doctor from Queen Mary Hospital had earlier given evidence for the prosecution and testified that he had informed the applicant that he intended to insert suppositories and that the applicant had given an affirmative nod.

13. The applicant further testified that he had requested to be allowed to defecate and he was then escorted by four officers to the toilet. After passing the suppositories the sergeant then produced what the applicant said was a pile of things from his right trousers' pocket and dropped them into the bedpan.

14. He admitted that when the doctor arrived and examined the contents of the pan he made no complaint to him as to what had happened. The reason he gave for failing to do so was that he was anxious to leave the hospital as quickly as possible so that the police could give him some heroin to consume. He complained that a police constable 17799 and the Sergeant had stolen some syringes from the hospital and that PC Chan and PC 17799 had later provided him with one of the syringes and some heroin when they returned to Shaukeiwan Police Station.

15. He conceded that at Lai Chi Kok Reception Centre he had made no complaint about the treatment he had received at the hands of the police but said that he had not done so because he had not been taken to see anyone and that shortly after his admission he was sent to Queen Elizabeth Hospital for three to four days in respect of a medical condition unrelated to this case. On his return to Lai Chi Kok although he complained to "the Commander" he was not provided with a pen and paper to reduce his complaint to writing.  Later he was granted bail by the court and on the following day he made a report to ICAC.

16. The judge rejected the applicant's evidence as to what had happened in the toilet at Queen Mary Hospital, and in his reasons for verdict he said he was satisfied that all the prosecution witnesses had given truthful and, notwithstanding some minor discrepancies, accurate evidence as to what had happened and that the applicant's guilt had been established beyond reasonable doubt.

17. Mr. Hemmings, who represented the applicant before us but not in the court below, submitted that the application for leave to appeal against conviction should be granted and the appeal allowed on the basis that the judge wrongly exercised his discretion in refusing to allow the applicant's request for adjournment.

18. We are satisfied that there is no substance in this ground of appeal. The judge was entitled to refuse the application in the light of the facts we have already mentioned. We are not disposed to interfere with the exercise of his discretion. But even though it cannot be said that the judge wrongly exercised his discretion the question how arises whether we should allow the appeal on the basis that since as it has now come to light that the Sergeant was ultimately convicted of two offences against section 4(2) (a) of the Prevention of Bribery Ordinance and has abandoned his application for leave to appeal against his convictions, the applicant's conviction is unsafe or unsatisfactory.

19. The case against the applicant depended on the evidence of the three police officers. It is not unreasonable to think that the sergeant, being the leader of the team, might have been able to exercise some influence over his subordinate officers.

20. It is plain from the judgment of Judge Gould in the case against the sergeant that PC Yau, who was called as a witness for the prosecution, was protective of the sergeant and that in certain respects the judge did not believe his evidence. Moreover, the judge rejected the sergeant's evidence. Although we accept that Judge Gould was concerned with matters that were unconnected with those in the instant case we think that had these two witnesses been cross examined before Judge Caird after the trial before Judge Gould it is quite possible that Judge Caird would have taken a different view of the evidence presented to him. In all the circumstances we are left with a lurking doubt as to the safeness of this conviction.

21. Mr. Casewell, who appeared on behalf of the Crown, very fairly conceded that the proper course is that proposed by Mr. Hemmings, namely, that we should order a retrial. Accordingly the application for leave to appeal is granted and treating the hearing as that of the appeal we allow the appeal, quash the conviction and order a re-trial.