THE QUEEN v. CHAN CHUNG KWAN (D1) AND OTHERS

IN THE COURT OF APPEAL

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JUDGMENT

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Li, V.-P.:

1. The applicants CHAN Chung-kwan (Dl), CHOI Hok-man (D2) and CHAN Chung-leung (D3) were indicted for two counts of drug offences. The first court is possession of dangerous drugs for the purpose of unlawful trafficking.

2. The first count charged that the three applicants on the 10th July 1984 at No. 9 Hoi Hong Street, 2nd floor manufactured dangerous drugs. The second count charged them that on the same day in the same place they were in possession of 45.99 kilogrammes of heroin for the purpose of unlawful trafficking.

3. The address No. 9 Hoi Hong Street, 2nd floor is located in the Tor Po Mansion which is continguous to Hoi Hong Street to the south and Hoi Kwong Street to the north. It is accessible from Hoi Hong Street through an entrance and staircase in Nos. 3-9 of Hoi Hong Street. It is also accessible from Hoi Kwong Street through an entrance and staricase at No. 4A-8 of Hoi Kwong Street. To go to No. 9 Hoi Hong Street, 2nd floor, one can go through either of these entrances, walk up a staircase to the 1st floor, open a common gate for Nos. 7 & 9 of Hoi Hong Street and walk up to the flat on the 2nd floor of No. 9.

4. There is no dispute that in that flat, No. 9 Hoi Hong Street, drugs had been manufactured on the day of the 10th July and that a huge quantity of heroin was stored as set out in the second count of the indictment. The floor was littered with powdery substance which turned out to be heroin. Equipment was lying about all over the place indicating that drugs had been manufactured on that day.

5. The substantial issue between the Crown and the applicants was whether any or all of the applicants were involved in the manufacture and/or the possession. Hence, the identification evidence was one of the substantial issues. From June up to the 10th July Officers of the Customs and Excise Department had carried out a massive surveillance in the surroundings of that address, though the evidence adduced concentrated on two days, namely the 28th June and the 10th July.

6. On the 28th June at about 4.20 p.m. D2 and D3 were observed to have alighted from a van driven by another person towards Finnie Road and then reversed to the entrance of Nos. 3-9 Hoi Hong Street. D2 and D3 then were seen to have carried nylon bags and two carton boxes of same size through that entrance. D3 was also seen carrying a green table and went in. Then they went back to the van and drove away.

7. On the 10th July at about 9.25 a.m. a car No. CG2069 which was driven by a person in a yellow shirt with the numerals 27 on each side of the shoulder went along Hoi Kwong Street and stopped in front of Nos. 4A-8 of Hoi Kwong Street entrance. D1 and D2 were seen to emerge from the car and enter that entrance. The colours of their dress were given in evidence. The car was then driven away to a construction side near Hoi Tan Street. The person who drove it parked it in the construction side and was seen to come out from the construction site. He was seen walking along the length of Hoi Tan Street into Hoi Kwong Street where he had a conversation with a man. After a short conversation he then walked to Hoi Hong Street and entered at about 9.50 a.m. into the Hoi Hong Street entrance and entered into the Tor Po Mansion. In the course of his conversation and in the course of his walk photographs were taken of him as shown in Exh. P4. These were colour photographs. They show that he was wearing a T-shirt or yellow shirt with the numerals 27 on each side of the shoulder. There was also evidence that at about 10 o'clock D3 walked to the common gate of Nos. 7-9 Hoi Hong Street on the 1st floor, cough a few times when someone opened that gate for him. He entered the gate. Shortly after D3's entry into the gate at about 10.45 a.m. smoke was seen to emerge from a window of the flat - No. 9, 2nd floor. Between 10.45 a.m. and 1.30 p.m. no less than three Customs Officers detected smoke coming out from that window with a sour smell giving great suspicion that drugs were being manufactured in that flat.

8. Nothing happened until some time at 7.30 p.m. or 7.35 p.m. when D3 was seen to emerge from the premises of Tor Po Mansion, walk back to the construction site and drive his car away. Officers keeping observation then observed that at about 10.25 p.m. Dl and D2 left the flat. They walked to a restaurant by the name of Wah Yuen Restaurant. D2 went to the restaurant seemingly about to make a telephone call while D1 waited outside in the pavement. They were both arrested, taken back to the staircase of the Tor Po Mansion near to 2nd floor No. 9 Hoi Hong Street where they were searched and was examined in order to obtain contact evidence. In addition, a bunch of 3 keys were obtained from D1 which could open the common gate the iron grille and the door to No. 9 of the Hoi Hong Street flat.

9. D3 was not seen again until some time after 11 p.m. when he was going through the entrance up the stairs to the 1st floor of Tor Po Mansion. He was arrested, searched and he was also examined for contact evidence. As far as contact evidence is concerned Dl and D2 were found to have been contaminated on the face, hair, hand and feet, their shorts and their under-pants with heroin powder. In addition, D1's fingernail clippings in one of his hands were found to be contaminated, too. As far as D3 is concerned he was less contaminated. He was found to be contaminated in his face and in his hands. Such is the gist of the evidence against the three applicants.

10. All the applicants gave evidence and called witnesses. D1 said that some time in 1982 he met a person by the name of  Peter Tam when he was on holiday in 1982. He met him again in 1983 and again in April 1984. On the last occasion he was asked by Tam to do some decoration work in his flat at No. 9 Hoi Hong Street, 2nd floor. D1 said that he would arrange for it. He contacted D3, his brother, who was in that line of business. They visited the flat a couple of times.

11. On the 28th June he received a telephone call from Tam asking him to transport something for him. On that day Dl enlisted the help of D2 and D3, Dl was unwell. Together they drove a van to somewhere in Kowloon where they met Tam. Dl had a conversation with Tam. As a result some carton boxes and nylon bags were put into the van which was borrowed by Dl. Since D1 was not well, he went to his brother's home for a rest and D2 and D3 took the job. They drove the van to Hoi Hong-Street where they put these things into the flat. There is evidence that one of the bags was alightly opened. D2 said that he saw a saucepan and a kettle. All the other things were sealed and they did not know what was inside.

12. Dl said that on the 10th July he went to swim until 2 p.m. He returned home to have a nap until 7.30 p.m. when he received a call from Tam who asked him to clean the flat at Hoi Hong Street. D1 contacted D3 for a game of snooker. However D3's car was damaged and said he would like to take it for repair in a garage near Quarry Bay. Instead they arranged to meet somewhere in Quarry Bay. Dl told his brother that he would be going at about 9.30 to the flat at No. 9 Hoi Hong Street. They arranged to be in touch again on the telephone.

13. Inside the flat Dl started cleaning the place. D1 said that was why his finger print was found on a sauce pan. He could have left it there while he was cleaning the place. As he was cleaning the flat D2 arrived.

14. D2's evidence was that on the 28th June he did help to remove the carton boxes and nylon bags to the flat. On the 10th July he stayed home to look after his daughter because his wife went to see a doctor. He was at home until 2.30 p.m. He went to Mongkok to look for work without success. He decided to obtain loans from his friends. That also failed. By 8.00 p.m. he telephoned D3 hoping to get a loan from him. They arranged to meet at 10.00 p.m. somewhere in North Point. D3 never turned up. It occurred to him that D3 might be going to the Hoi Hong Street address. He went there and saw Dl sweeping up the place which was extremely dusty. There was still no telephone call from D3. The two of them (D1 and D2) walked over to King's Road intending to telephone D3 when he was arrested and brought back to the Hoi Hong Street flat.

15. As to D3's defence is that he is a sub-contractor living in Kent Court in Kowloon. Earlier in April he was asked by D1 to do a job at Hoi Hong Street. He did the job and finished it in April. On the 2nd July he took 2 tables to Hoi Hong Street in his car CG2069. On the 10th July he went to Tuen Mun for business. He was not home until 6.00 p.m. when he went out for dinner. On his way home after dinner he had an accident at about 7.45 p.m. He took the car home and then went for his diving lesson. Dl called him. He told Dl that he was going to the Lee Tung Garage in Quarry Bay and that he would call again. D2 then called him for a loan. They arranged to meet at 10.00 p.m. at King's Road at the Tung Ah Restaurant. He took a taxi to go to the diving lesson. He drove his car (No. CG2069) to Lee Tung Garage at 11.00 p.m. He went up to the garage because there was nobody on the ground floor. When he was half way up he was grabbed from behind by a Customs Officer. He was then arrested.

16. The prosecution evidence was that all three of the applicants were searched and examined for contact evidence before they were taken into the flat. All three applicants said that they were taken into the flat the very moment they were brought to the address, searched. Only after that was contact evidence taken from them. D3 was driven to his home by the Customs Officers who seized some of his clothings including that yellow shirt.

17. D2 called his wife to corroborate him that he was at home the whole morning and part of the afternoon. D3 called a woman police officer to testify that a report had been made that his car CG2069 was involved in an accident at around 7.45 p.m. in Kowloon. Such was the evidence before the jury and the trial judge.

18. In his summing up the judge said at p. 14 as follows:

"It has been vigorously suggested by counsel for the defence to the Officers who carried out surveillance that from their various positions it was virtually impossible for them to see people and other objects with clarity. You will recall that we visited the scene in the morning of the 27th of December and you were shown the various points from which observation was carried out. What you saw at the scene is part of the evidence. You can draw such conclusions as you think appropriate. It's entirely a matter for you to say whether the officers could see what they told you they saw. "

That certainly is a question of credibility. Later at p. 21 he said this to the jury:

"In view of the evidence given by the accused, what the officers told you about their observation on the 28th of June is now largely academic. Both the 2nd and 3rd accused have told you that they were the two men who arrived in a white passenger/goods van BZ2466 and carried the various articles into the second floor of No. 9 Hoi Hong Street. I have nevertheless set out the evidence of the officers on this aspect at some length, as I feel there is some important bearing on their credibility as witnesses.

 

        Credibility is the most important issue in this trial because if you come to the conclusion that these officers were not telling the truth or you have any reasonable doubt about it, the whole of the prosecution case will collapse and you must find all the accused not guilty on both counts. "

As it turned out the question of credibility is not now the substance of the appeal. Learned counsel for all three applicants put their grounds of appeal first on the basis that the judge gave no warning to the jury whatsoever that a mistake that could have been made by the identifying witnesses. Counsel in the court below canvassed this point with vigour. Secondly the judge failed to give some guidelines as to how the jury should assess identification evidence. In addition the judge misdirected the jury as a matter of fact in that the judge told the jury at p.23 that:

"Firstly, the 2nd and 3rd accused went to this flat on the 28th June and delivered to that flat articles which could be used for the manufacture of heroin. "

There was certainly no evidence D2 or D3 had seen any article which could be referable to the manufacture of heroin.

19. Learned counsel for the Crown conceded that the judge indeed had given no warning to the jury as to the identification issue. He contends that the warning and the guideline is only required when the identification is founded upon a fleeting glance. He contends that having regard to the overwhelming evidence against the various accused the failure to warn is not fatal and that this court should apply the proviso.

20. We have considered the argument on both sides. We have come to the conclusion that failure to warn and guide the jury is a material irregularity. In this connection it is perhaps useful to refer yet again to the case of Turnbull ⁽¹⁾. In that case the learned Lord Chief Justice said at p. 228:

"        Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible. In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.

 

        First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should make some reference to the possibility that a mistaken witness all can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

 

        Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made."

Then His Lordship gave a series of examples and tests as a guideline. He continued to say:

"        Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

 

          All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.

 

        In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution."

Reading this passage alone we have come to the conclusion where identification is based on a fleeting glance not only a warning should be given but also a guideline to the jury for the assessment of the identifying evidence is necessary. If the identifying evidence is good in good circumstances, nonetheless, the warning must still be given. Otherwise the non-direction would amount to a misdirection.

His Lordship continued at p. 229 and said:

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. "

Later he said:

"The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so. "

21. In the present case the judge only directed the jury on the question of credibility. He neglected to direct the jury as to the warning, the guideline. He also failed to direct them as to what constitutes supporting evidence or what does not.

22. Such is the law. We do not think a longer list of authority is necessary. There are some authorities in this court to suggest that it is not always necessary to guide the jury as to how to assess the identifying evidence. That is of no assistance to this court since they were decided on special facts of the case.

23. How then has the material irregularity or wrong direction affected the rights of these three applicants?  We shall deal with them one by one in turn.

24. We take D3 first. In his case it is conceded indeed that the judge failed to warn the jury of the need for caution as in the case of Dl and D2. However D3 had been observed for a much longer peoiod. At about 9.50 a.m. he was seen walking along Hoi Tan Street to Hoi Kwong Street. Before he entered the Tor Po Mansion he had his picture (Exh. P4) taken by the officers. If the Customs Officers, however honest, could make a mistake the camera could not. The jury only need to have a look at the photograph and have a look at his person to judge for themselves. He is also wearing a yellow T-shirt with the numeral 27 which is not a really common form of garment. He was seen to have entered the Tor Po Mansion flat No. 9 Hoi Hong Street at 10.00 a.m. By 10.45 a.m. smoke and smell emitted from the window of that flat. He was again seen to have emerged from Tor Po Mansion at about 7.30 p.m. Indeed this second observation had not been supported by photographic evidence, but at least one or two same officers who took his photograph in the morning saw him on the second occasion when he walked to pick up the same car which he parked in the construction site. This car was left there for the whole day on the 10th July. In that event the question of identity is secondary and credibility is of primary importance. Again, when he was caught at 11.00 p.m. contact evidence was taken from him. That again is a question of credibility. It is obvious that the jury accepted the Customs Officers' evidence and rejected D3's evidence as to how he was contaminated and his version of his earlier movements. Having regard to the whole evidence against D3 and taking into consideration of the lack of warning by the trial judge in his direction, we are of the opinion that even if the jury had been properly directed they would have come inevitably to the same conclusion and convicted D3. For these reasons, we grant leave to appeal against conviction, treat the application as the appeal but dismiss the appeal by applying the proviso.

25. We come to D2 and D1. Perhaps the slightest difference between D2 and Dl is that whereas D2 was seen on the 28th June, Dl was not even seen on the 28th June. The evidence adduced against them is that at 9.25 a.m. they left car CG2069, walked the width of the pavement and disappeared into the Tor Po Mansion. There was no further evidence concerning them except that they left the premises at about 10.25 p.m. The inference that the Crown asked the jury to draw was that they were inside the flat for the whole day. That depends substantially on the identification issue. There the jury was confronted with the situation where there was a fleeting glance and warning had not been given. This is a non-direction on both points. The question whether D2 went to the flat on the 28th June is neither here nor there. There was a misdirection of fact as well. Without putting their position in the flat as from 9.25 a.m. onwards it would be difficult to say that they were inside the flat for that whole day until 10.25 p.m.

26. Their evidence was one of credibility as well. They said that they went there just before half an hour or so before 10.00 p.m. and spent an hour or less in the premises where it was obviously littered with heroin and manufacturing equipment. Be that as it may, it does not really prove beyond reasonable doubt that they were the manufacturers. The Crown saw fit, and quite properly so, not to rely on the presumption as far as manufacturing is concerned. As to the count for possession the Crown also did not rely on the presumption even though D1 was found to possess keys to the flat. Having regard to the judge's non-direction on the identification issue in the case of Dl and D2 it will be difficult to speculate whether the jury would have returned the same verdict of guilty if they had been properly directed. They might, in view of the identification evidence, but we cannot be sure. For these reasons, applications for leave to appeal against conviction by Dl and D2 are granted. Their application is treated as the appeal proper. The appeal is allowed, the conviction is quashed and the sentence is set aside. Having regard to the seriousness of the case and the totality of the evidence both by the Crown and that adduced by the defence, it is only proper to order new trial and we so order.

(1) (1977) 1 Q.B. 224