THE QUEEN v. CHAN WAI SHING

IN THE COURT OF APPEAL

1987, No. 557

(Criminal)

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J U D G M E N T

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Fuad, V.P. (giving Judgment of the Court):

1. The Applicant, Chan Wai Shing, was convicted in the High Court (Addison J and a jury) on 23rd October 1987 of possessing, dangerous drugs for the purpose of unlawful trafficking. The jury's verdict was by a majority of 6:1. He was sentenced to 20 years' imprisonment. He now seeks the leave of this Court to appeal against his conviction and sentence.

2. The evidence led by the prosecution, in summary, was that in the early hours of the morning of 19th July 1984 a number of police officers from the Narcotics Bureau, acting on information, were on surveillance duty near some blocks of flats in Ngau Tau Kok Road in the New Territories.

3. At about 2:00 am, two young men drove into the car park of the blocks of flats (which were known as Amoy Gardens). The men got out of the car and as they were about to leave the car park they were confronted by the police officers. One of the men was the Applicant. He made no reply when asked what he was doing there at that hour. When searched, two keys were found in one of his trouser pockets, which he explained were the keys to his sister's flat in the Shun Tin Estate.

4. The other man with the Applicant had five keys in his pocket, two of which were similar to the ones found on the Applicant. He told the police that those two keys were for his own flat in the Ngau Tau Kok Estate which was nearby.

5. After another group of police officers had arrived, the police team took the two men to the Lee Kee Building, which is one of those in the Amoy Gardens complex. The keys seized from the Applicant and the two similar keys found on the other man were found to fit respectively the metal grill to the main, ground floor, entrance to the building and the grill of flat No. D6 on the 17th floor. The wooden front door of the flat was unlocked.

6. The flat comprised a living room, two bedrooms a bathroom and a kitchen. The door to the first bedroom was open and the door to the second was shut. The senior police officer present kicked the latter door open when he found it was locked. In that bedroom there was a bed with two bolsters on it but no mattress. On the bed about a dozen cardboard cartons had been stacked while on the floor, in neat piles, there were 379 blocks, each about brick size, of what looked like drugs. They were so placed that many of them would have been clearly visible when the door was only partially open.

7. It was proved by an unchallenged certificate that the blocks weighed 233.896 kilos and they were of a mixture containing 195.470 kilos of esters of morphine.

8. In the second bedroom, there was a cupboard, a small table upon which rested a television set, and a mattress on the floor with a wicker-work pillow and a crumpled sheet on it. There was no bed.

9. In one of the drawers of a desk in the sitting room, the police found a key which fitted the lock of the door of the bedroom in which the drugs were found. Among the documents seized from the flat by the police were seven telephone bills (from April 1982 to March 1984) in the name of the Applicant, his passport and a re-entry permit.

10. The Applicant's sister did not live at the address given by the Applicant and the two keys found on him did not fit the doors of the flat where she did in fact live.

11. The Applicant made no response when he was cautioned in the flat after the drugs had been found, but when formally cautioned later that borning at the police station, he said:

"I did not know at all that I myself was in possession of the dangerous durgs. The reason is that I had a vacant room which was rented to a friend for living."

12. As foreshadowed by his cautioned statement, the Applicant's defence was that he had rented the room in which the drugs were found to a tenant and that he knew nothing about the drugs. He told the jury that an acquaintance of his, Hwang Chi Kong, needed somewhere to live and since he had a spare room he had rented it to him from about March 1984. He had given the key of that bedroom to Hwang and had not kept one himself. Hwang paid him rent for the four months he lived there and was given receipts for the money he paid.

13. The desk in which the key to the second bedroom was found, and the bed, were Hwang's and not his. Hwang had first put the, desk into his bedroom but had later moved it into the living room. Hwang had told him that he could use the desk and he had done so, keeping his own telephone receipts etc in the desk. His tenant kept his rent receipts there as well.

14. The Applicant went on to say that he had seen his tenant only occasionally and had not looked into, or entered, the second bedroom during the latter part of Hwang's occupation.

15. On the morning of his arrest he was to some extent suffering, under the influence of alcohol. He had told the police as soon as the drugs had been found that he had sublet the bedroom to a tenant.

16. The first ground in the Notice of Appeal states that a material irregularity occurred during the trial, which prejudiced him, in that the jury were made aware that a police informer, who had not been called as a witness, had alleged that the Applicant was the storekeeper of his (the informer's) drugs. At the put hearing before us, Mr. Hemmings put the matter rather differently. He submitted that the judge should have warned the jury that while what the informer told the Inspector might explain the latter's conduct, it should not he regarded as evidence implicating, the Applicant.

17. This is what Inspector Fan Kwok Wah (P.W.3) said at the beginning of his re-examination by Counsel for the Crown:

"Q.     Inspector, it was put to you only a few moments ago that you didn't take care to investigate the scene because you formed the opinion that he was living there alone, that because of your opinion you didn't bother to check the sizes of clothes, you didn't bother to check certain documents and so on. Do you remember that?

A.     I remember that.

Q.    And you didn't bother to do those things, even though you were told round about 10 o'clock that he'd sublet or claimed to have sublet that room. You remember that being put to you?

A.     Yes.

Q.     You said that you found he was not telling the truth.

A.     Yes.

Q.     Why did you Rive that answer?

A.     Because we had, as the defence counsel earlier suggested, an informer who gave us the details of this, and the 2nd defendant who is not here about the activities, their car numbers and where the drug was supposed to be which belongs to this defendant."

18. Counsel for the defence raised the matter in the absence of the jury, submitting that the evidence was hearsay and inviting the judge to give a direction to the jury to Ignore what the Inspector had said about the information he had received. The learned judge ruled that the question asked by Crown Counsel was quite permissible in re-examination in the light of questions asked of the witness in his cross-examination. No doubt the judge had in mind the following exchange between Counsel for the defence and the Inspector:

"Q.     You see, what I am suggesting to you is this: that you did not take particular care to properly investigate the scene of the arrest because you had formed a conclusion already that the defendant was living there alone. You, therefore, did not bother to properly investigate whether the clothes in the room where the drugs were found fitted the accused or whether they were of completely different sizes.

A.    I do not agree.

Q.    You didn't bother to carefully take out and list the items that you found in the drawer, to pay attention to the rental receipt that you found.

A.    I didn't do it on that day.

Q.    Even though you knew by 10 o'clock or shortly after that morning that that was what the accused said.

A.    I found he was not telling the truth.

Q.     That was your opinion.

A.     That was not my opinion.

Q.     Information about the presence of the drugs in these premises at 55 Ngau Tau Kok Road came from a man called KO Yee-shut, didn't it?

A.     According to what I heard, yes.

Q.     You were involved in this investigation.

A.     Yes, I was briefed to this effect.

Q.     A man who had been arrested a couple of days previously, in relation to another seizure of drugs somewhere else.

A.     Yes. I am not sure whether it is several days previously. I can't recall the exact date.

Q.     It is right, isn't it, that this man KO Yee-shui was, according to his own admission at that time, responsible for importing a large quantity of drugs into Hong Kong. You know that or not.

A.     I knew that."

19. In our judgment, the terms of the cross-examination of the Inspector let in the answer he gave about the information he had received and, in any event, it really did not take the matter much further in the light of the fact that defence counsel had asked him whether it was not true that he had received information from Ko Yee Shui that the drugs were in the flat. The judge chose not to remind the jury of the Inspector's reply to the question he was asked in re-examination and in all the circumstances we, are not persuaded that he was bound to do so and then go on to give the direction contended for.

20. It is then said that there was another material irregularity in that when the prosecution case had been closed the judge declined to allow the Applicant at any time to consult his counsel before opening the defence case.

21. The trial began on 19th October 1987 and the case for the prosecution concluded at about 3:30 p.m. on the following day. The transcript shows that Counsel asked the judge "for a few minutes" to seek instructions from, the Applicant. The judge indicated that he did not intend to grant an adjournment unless it was for personal reasons but that he would allow Counsel to have a few quick words with his client, in the dock, as the time of the jury was very valuable. After this had happened, the record shows that Counsel said: "My Lord, I am most grateful for this opportunity to speak to my client briefly. I have explained his rights to him."

22. Whether or not a judge grants an adjournment, and for how long, is a matter solely for his discretion. Mr Hemmings, who represented the Applicant at the trial and who appeared before us on this application, has been unable to persuade us that the Applicant was prejudiced in any way by the course the judge took. After speaking to his client, had Counsel sought an adjournment for valid reasons, it seems to us unthinkable that this experienced judge would have refused to grant it. In the light of what Counsel told the judge, he was entitled to assume that no problems remained.

23. The next ground of appeal is that the judge failed to give a balanced review of the evidence and, in particular, he had not dealt adequately with the discrepancies regarding the rent receipts between the testimony of Inspector Fan Kwok Wah given before the jury when compared with what he had said in an earlier trial.

24. It was an important part of the defence case that the Applicant had issued rent receipts to his tenant, with his name and identity card number on them, in respect of each of the four months during which the second bedroom had been occupied by him, that these had been kept in one of the drawers of the desk in the sitting room; that the police (Inspector Fan) had seized them with other documents in the presence of the Applicant after the drugs had been found; and that these receipts had never been returned.

25. In the trial with which we are concerned, Inspector Fan told the jury, in chief, that so far as he could remember although he saw documents, envelopes, some tools, a pair of scissors, photographs and some pieces of paper, including telephone bills, in the top drawer of the desk, so far as his memory went, there was nothing else of any relevance to the case. The whole drawer with its contents had been taken to the Narcotics Bureau. All the documents and the drawer were eventually returned to the Applicant's brother, apart from the telephone receipts.

26. In the earlier proceedings, as the transcript of that trial showed and the witness acknowledged, he had been asked whether any documents like rental receipts had been found on the premises, and he had answered "yes" but had denied that they were in the name of Hwang Chi Kwong. He had said that he could not recall in whose name the receipts were and added that the rental receipts were presumably still in the flat as he had left them, and most of the documents in one of the drawers of the desk. He had agreed that since he had left the rental receipts where they were, he could not say who they had been made out to; he had not paid particular attention to the matter. However he agreed that there had been a name on the receipts and that he could not then say whether the name had been that of Hwang or not.

26. Before Addison J's jury, Inspector Fan said that now that he had seen a list of the documents compiled by another policeman (which he had not been shown at the earlier trial) he realised that items 9 and 10 on the list, referred to as "7 temporary receipts of the Lee On Realty Company" and "5 receipts of Lee On Realty Company" were the rental receipts to which he had referred at the previous trial and he also now realised that these, too, had been seized and taken in the Narcotics Bureau. It was common ground that it was the management company which had issued those receipts-in respect of charges due from the flat owners. The Inspector swore that the "rental receipts" to which he had earlier referred bore no resemblance, in format, size or colour to the standard form of receipt so often used by landlords in Hong Kong, a copy of which was shown to him when it was suggested that he had in fact seen rent receipts of that kind in the drawer.

27. The learned judge spent some time on this point in his summing up, emphasising to the jury that it formed an important part of the defence case. After summarising Inspector Fan's evidence on the matter, the judge asked the jury to consider whether the Inspector or the police might have "bungled the whole thing"; might some of the documents have been mislaid?; might some of them have become separated in the excitement of the occasion? He told the jury to ask themselves whether they were satisfied that the documents in the drawer of the desk were in fact receipts issued by the management company, or whether they might have been, as the defendant was asserting, rental receipts in the standard form.

28. The judge had earlier told the jury that they had seen the Inspector giving evidence and asked whether it seemed to them that he was a honest witness doing his best to recollect events that had occurred many years before. He was not, stressed the judge, always consistent in his answers. In that part of his summing up, too, the judge had asked the jury to resolve the question whether the witness was, or might have been, mistaken about the absence of ordinary rent receipts.

29. The judge again explained the importance of this evidence, for the Crown's case was that the defendant never had a tenant and therefore there were no rent receipts, arguing that the story of a tenant had been concocted to provide the basis for a false defence, while the defence case was that had the Inspector done his job properly, and had he carefully examined the documents, he would have seen that they included standard rent receipts, with the tenant's name on them.

30. The judge also dealt with the evidence given by the Applicant's brother that when he had received various documents and other items back from the police on behalf of the Applicant, he had noted (as the exhibit showed) on the list that a belt, a pair of glasses and rent receipts had not been returned. This note had been countersigned by a detective police constable. The judge reminded the jury that the police officer had stated that when he signed the note, he was not acknowledging that the items mentioned had in fact been retained by the police but merely confirming that the note had been made on the document by the Applicant's brother.

31. The judge then referred to the cross-examination of Inspector Fan on his earlier evidence and once again asked the jury "... do you think that the documents which the inspector saw were the ordinary type of rent receipts, or might have been? Or do you find that they were not rent receipts of the ordinary kind?" He went on to direct the jury that it was a matter for them to decide, with respect to the evidence given by the Applicant's brother whether the Applicant was genuinely seeking to recover the rent receipts he had issued to his tenant and which had been taken away by the police, or was he, in their view, creating his own evidence and using his brother as a means of seeking to establish a defence that there were rent receipts when all along there were none.

32. The question of the rent receipts and what the Inspector had said at the previous trial was very fully aired before the jury, both when Counsel for the defence was cross-examining, him and when Counsel made his closing address. We are unable to accept the submission that the judge did not deal adequately with the evidence regarding the rent receipts in the light of the evidence given at the earlier trial, or that the judge, in relation to that evidence or the other evidence led at the trial, gave a distorted or unbalanced presentation of the evidence led by the Crown and the defence. Moreover, he fairly left the factual issues to the jury and made it clear, throughout, that the determination of these issues was their function. We recognise that the summing up was a strong one but we do not think that the judge went too far in any of the comments he made, taken singly or together in view of the formidable case the Applicant had to meet.

33. The Applicant also states by his grounds of appeal that the judge failed in his summing up to direct the jury adequately or at all in respect of one matter raised by the Crown daring the cross-examination of the Applicant, namely, his failure to call certain witnesses to support his assertion that he had sublet the room in which the drugs were found.

34. The cases show how careful a judge must be when he is commenting upon the failure of an accused person to call a particular witness. But it is not suggested that in his summing up, the judge commented adversely upon this matter. In our judgment, provided that no misdirection can be pointed to a judge is not bound to include in his summing up directions of the kind Mr. Hemmings suggests merely because the cross-examination of the defendant took a certain line. On our view of the case as a whole, the Applicant has not been able to establish the non-direction of which he complains.

35. In general terms, we have reached the conclusion that the judge's summing up contained nothing which was unfair or inconsistent with his duty. We find it impossible to say that the conviction was unsafe or unsatisfactory.

36. The application for leave to appeal against conviction is therefore refused.

37. As regards sentence, the Applicant is aged 27 and has an irrelevant previous record of three gambling convictions. He was arrested on 19th July 1984 and has been in custody ever since. At the earlier trial, on an indictment containing two counts (one of conspiracy and one for possession of drugs for the purpose of unlawful trafficking) he was convicted on both. He appealed against his convictions. The appeal succeeded and a re-trial was ordered on 10th April 1987 but only in respect of the possession offence. At the earlier trial, in respect of that offence, he had been sentenced to 15 years' imprisonment. There was no application by the Attorney General to review that sentence.

38. We have been addressed with full and careful arguments by Mr. Hemmings submitting that in all the circumstances of the case, Addison J. should not have imposed a greater sentence than the one imposed at the earlier trial.

39. We accept the force of his submission that the judge at the earlier trial, who had 14 defendants before him, was better able to decide the role each of the defendants, including the present Applicant, played in what was a very serious and far-reaching conspiracy to deal in dangerous drugs, and he had thought that for the part played by the Applicant, although he had been convicted of conspiracy as well, a sentence of 15 years was appropriate.

40. Of course, in this jurisdiction, unlike the position in England, a Court on a re-trial is entitled to pass any sentence which it considers appropriate and is not restrained by statutory provisions to the effect that the sentence on a re-trial may not exceed that given at the first trial. However, our attention has been drawn to a passage in the learned judge's remarks when passing sentence, when he said of the Applicant: "You are a big fish in the syndicate and a highly trusted lieutenant". We can only assume that the judge inferred this from the quantity of drugs that had been found in the Applicant's flat but we are bound to say that there was no evidence before him to justify this conclusion.

41. For these reasons, we think that we should interfere with the sentence. We treat this application as the hearing of the appeal and allow the appeal to the extent of reducing the sentence from 20 years to 15 years' imprisonment.