THE QUEEN v. TADAO NAGANUMA ALIAS TAJIMA AND OTHERS

_____________________

________

RULING

________

Sir Alan Huggins, V.-P.:

1. We have before us applications for leave to appeal against conviction on very serious charges from three defendants. Two of them are foreigners to Hong Kong. We are asked now to adjourn the applications.

2. Instructions were given for professional representation of the 1st and 2nd Applicants, the two foreigners, on 22nd July. On 26th July the instructed solicitors wrote to the court saying that they had received instructions and informing the court that a named barrister had been briefed and instructed to appear. The date of the hearing of the applications was stated in the letter. On 18th August the court received a further letter from the solicitors saying that today, i.e. the following day, their instructions were to represent the two Applicants to apply for an adjournment only. Counsel other than counsel named in the original letter has appeared before us and, at the beginning of his application for an adjournment, again repeated that his instructions were limited to applying for an adjournment. We wish to make it abundantly clear that we disapprove most strongly of the court's being informed on an application for adjournment that counsel's instructions are limited in this way. Whatever may have been the intention of counsel - and we accept counsel's word that he had no intention to blackmail the court - the effect is to put before the court considerations which are not material to an application for adjournment, and we disregard entirely the fact that counsel's instructions are limited. We de not say that counsel is not entitled to accept such limited instructions but he certainly should not so inform the court until after the application for adjournment has been disposed of.

3. We have no evidence before us in support of the matters which have been put before us by counsel and we are not satisfied that there is any reason why counsel who apparently was briefed in July should not have been present here today to argue the case on behalf of these two Applicants. The application is supported by counsel on behalf of the 3rd Applicant, but he has indicated that he is nevertheless in a position to proceed. He says that the court would benefit from having other papers. No application for other papers has as yet been made to this court. Not unnaturally the Crown has not seen fit to oppose the application but Mr. Longley has not supported it.

4. We think there is no sufficient ground for an adjournment and an adjournment is therefore refused.

19th August 1986

BETWEEN

____________________

Coram: Sir Alan Huggins, V.-P., Kempster, J. A & Macdougall, J.

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P.:

5. We are now concerned with applications by three Defendants for leave to appeal against their convictions. The three Defendants were convicted by the jury of conspiracy to traffic in dangerous drugs. That charge was in count 1. The 5th count was a charge, against the 3rd Applicant only, of possession of dangerous drugs for the purpose of unlawful trafficking. That 5th count related to drugs which were found in the 3rd Defendant's own house. At the time of his arrest at the airport he was in possession of the keys to that house. The only ground of appeal which has been argued on his behalf relates not to this charge but to the conspiracy charge.

6. During the course of his Summing-up Deputy Judge Rattigan misdirected the jury on a number of points, some of which were in favour of the Defendants, whilst others, which he sought to correct, were adverse to their interests. It was one of this last type of misdirection which has been the subject of Mr. Hingorani's argument to us. The judge referred to the evidence of a Mrs. LEE Wai-han, the housekeeper of the Excelsior Hotel. The fact is that this lady never gave evidence at the trial at all. This fact was, very properly, pointed out by counsel to the judge at an early stage. As a result the judge told the jury that they should disregard what he had said about the housekeeper's evidence entirely. It was perhaps unfortunate that he went on to explain to them how he had come to make that error: he pointed out that he had before him a deposition containing the evidence to which he had referred, and it is argued that that would give added weight to the misdirection, for the jury would have in mind that somebody had given evidence on oath to that effect However, the direction to the jury - which we must assume they would obey - was that they had to dismiss it from their minds entirely.

7. The deposition in question related to a room in the Excelsior Hotel where there was reason to believe two suitcases were packed. Those suitcases were eventually found at the airport and each contained dangerous drugs. The housekeeper's story had been that she had seen two Chinese men go into that room at an interval of 15 minutes, and that one of them had carried a cardboard box, which was said to be about 14" x 10". She further said that the room had a notice on it, "Do not disturb", all day and the argument before us was that the jury might have drawn an inference that the 3rd Defendant was one of these two men. That was because only three Chinese men had actually beer identified in the course of the trial.

8. As I have said, we think that there was a sufficient correction by the judge of his misdirection. It is fair to say that, even if we were wrong as to that, we take the view that the evidence which was said to have been given by the housekeeper was not of such a kind as to be detrimental to the 3rd Defendant. In our view no reasonable jury could have inferred from that evidence that either of the two men seen by the housekeeper was the 3rd Defendant.

9. There have been other matters which have exercised our minds, particularly in relation to the first two defendants, but also in relation to the 3rd Defendant. We have been anxious at the large number of misdirections which had to be corrected by the judge. We were further concerned at an unfortunate example which he gave at the outset of his Summing-up as to the nature of conspiracy, an example which in our view could not possibly have justified a jury in drawing an inference of conspiracy and which might, therefore have misled the jury as to the circumstances in which an inference of conspiracy could properly be drawn. These matters have not in fact been made grounds of appeal and, although we have considered them, we are satisfied that taken as a whole, the Summing-up would have left the jury in a state of mind to understand clearly what the issues were that they had to decide and how they should approach them.

10. We turn, then, to the particular matters relating to the 1st and 2nd Defendants which have mainly exercised us, namely whether there was sufficient evidence to connect them with the alleged conspiracy. They were booked on a flight out of Hong Kong. They went to the airport. Neither of them himself checked in at the counter: another person or other persons checked each of them in and also checked in his baggage. There was evidence that the 3rd Defendant had the tickets, boarding passes, passports and baggage tags. He passed all these documents to the 1st Defendant. The evidence given at the trial by the 3rd Defendant was that Andy Chan had asked him to check in the 2nd Defendant and his luggage. The 3rd Defendant did as he was asked and handed the documents to the 1st Defendant. The 1st Defendant said that he handed those documents belonging to the 2nd Defendant to the 2nd Defendant. There was evidence that the 1st Defendant and his luggage were checked in not by the 1st Defendant but by two Chinese men. However, the material point is that at the time of his arrest the 1st Defendant had the relevant documents which related to his check-in, and attached to his ticket were two baggage tags which related not only to the case checked in in his name but also to the case checked in in the name of the 2nd Defendant. There was some dispute as to which of these two Defendants owned which case, but that is of no significance because each case contained dangerous drugs. The 2nd Defendant was found in possession of his boarding pass, and evidence was given that each boarding pass bore a number which identified the baggage accompanying the passenger and which would enable him to claim that baggage if his baggage tag were lost. There was, therefore, evidence from which the jury could, if it saw fit, conclude that these Defendants were in possession of the cases - one in possession of one case, again it being unimportant which case was in the possession of which Defendant.

11. It therefore fell to the Defendants to explain their possession. If they were unable to explain it to the satisfaction of the jury, the jury was entitled on all the evidence to conclude, as it did, that all three men had been conspiring to deal in these dangerous drugs. We are satisfied that there is no ground for saying that the evidence was insufficient, and the result is that the applications of all three Defendants must be dismissed.

19th August 1986