R. v. LAU CHOW-TONG

IN THE COURT OF APPEAL

1994, No. 551

(Criminal)

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REASONS FOR JUDGMENT

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Mortimer JA:

1. On 17 October 1994 the appellant was convicted of two offences of trafficking in and one offence of manufacturing heroin before Duffy J and a jury. On the following day he was sentenced concurrently to 23 years imprisonment for the trafficking offences and 25 years for the manufacturing. Having heard counsel, we gave leave to appeal against conviction, treated the application as the appeal and dismissed it. We now give reasons.

The facts

2. The offences were committed on 18 February 1993. The appellant employed Ng Hon-kei, who gave evidence as an accomplice, to assist him in committing the offences. The manufacturing (count 3) took place in a flat on the 22nd floor of Golden Lion Garden, Shatin. The first count of trafficking concerned drugs found on Ng when he was leaving the flat and count 2, drugs in the flat yet to be sold.

The evidence

3. The prosecution case depended upon the evidence of Ng the accomplice who testified that the appellant had recruited him to assist in his drugs operation. Ng's part was to rent the flat in which the appellant mixed and packed the drugs and contacted customers; then Ng acted as courier by carrying the drugs and mixture to the flat and delivered the prepared drugs from the flat to the customers.

4. Ng testified about the appellant's visits to the flat on 17 and 18 February and the handing over of a plastic bag by the appellant to Ng in Broadcast Drive on 17 February. This evidence was confirmed by customs officers who were carrying out surveillance.

5. Finally, there was admitted evidence that the appellant's fingerprints were on two waxed packets of drugs, themselves in manila envelopes found on the accomplice when he was arrested on leaving the flat. It was also agreed that considerable quantities of drugs and drug manufacturing paraphernalia were in the flat. This paraphernalia included a pot of wax which was the same as that on the packets bearing the fingerprints.

6. The appellant, who was an addict, gave evidence in his own defence, saying that Ng was his supplier who had implicated him in order to obtain a lighter sentence. He admitted visiting the flat on one occasion only between 8 and 8.30 a.m. on 18 February in order to collect a supply of drugs for his own consumption. He denied driving a car, or having a licence. His case was that the customs officers were mistaken in identifying him as the person who visited the flat at other times and as the person in Broadcast Drive on 17 February.

7. He explained his fingerprints on the packets saying that when in the flat, Ng asked him to place the drugs already in the waxed packets into envelopes.

Corroboration

8. When directing the jury, the judge left it open for them to accept the fingerprints as corroboration of the accomplice's evidence on each count including manufacturing. Mr McCoy, for the appellant, submits that this is wrong and that such evidence is only capable of corroborating the trafficking offences. We do not agree.

9. The point taken is that 'packaging' standing alone is not within the definition of 'manufacturing' in s. 2 of the Dangerous Drugs Ordinance, Cap. 134. This provides:

"'Manufacture' means any act connected with the making, adulterating, purifying, making, separating or otherwise treating a dangerous drug;"

Therefore Mr McCoy submits that the evidence of the applicant's fingerprints on the wax-covered packages supports his involvement in packaging - and therefore trafficking - rather than manufacturing. We leave open for future decision whether in any particular circumstances 'packaging' is within the definition of 'manufacturing' in s.2. For present purposes, it suffices to say that the wax on the packages bearing the fingerprints matches the wax in the pot found among the manufacturing paraphernalia in the flat, and was such an integral part of the manufacturing which had obviously taken place there, that it was open to the jury to accept the presence of the fingerprints as corroboration of the accomplice's evidence that the applicant had manufactured the drugs. On this, the judge's ruling was correct and this ground of appeal fails.

Lies as corroboration in Hong Kong

10. The judge left the appellant's in court lies - of which there was evidence at trial - as possible corroboration of the accomplice. Mr McCoy concedes that the directions to the jury were in accordance with R v Lucas [1981] 1 QB 720 in the English Court of Appeal. However, he submits that this Court is bound by its previous decision in R v Chik Shui-wai & Anor [1977] HKLR 259 when it decided that in court lies could not amount to corroboration. Following R v Chapman (1960) 44 CrAppR 158 the reasoning of this Court was that only evidence could amount to corroboration and there was no evidence of in court lies before the Court. At p. 262 McMullin J (giving the judgment of the court) said:

"When a lie is being considered to see whether it alters the complexion of other evidence it does not seem to us to matter whether the lie has been told in court or out of court. On the other hand, if a lie is told in court there is no 'evidence' of the lie - and corroboration must be evidence. It is presumably this which justifies the distinction between a lie told in court and one told out of court, for evidence may be led of the fact that the defendant has lied out of court. Thus the lie told in court cannot by itself be corroboration and 'leads only to the rejection of the evidence given, which then has to be treated as if it had not been given'. That does not prevent its being treated as corroboration in conjunction with, for example, evidence of opportunity."

In Chik Shui-wai's case, the court was considering in court statements which had not been demonstrated to be lies by evidence at trial. Consequently, that case is distinguishable from a series of decisions in which this Court has accepted that provided necessary conditions are fulfilled, including the condition that the statements are shown to be lies by evidence or admission, and appropriate directions are given, in court lies may amount to corroboration. See R v Li Wai-keung Cr App 361 of 1991 (unrep), R v Ho Chi-chung Cr App 142 of 1993 (unrep) and R v Chong Chak-on Cr App 633 of 1994 (unrep).

11. Mr McCoy, who described this submission as somewhat 'sterile', readily concedes that if this Court is not bound by Chik Shui-wai's case on the point, the necessary conditions were fulfilled and appropriate directions were given. It is not necessary to consider the submission further.

Was a 'Turnbull' warning necessary?

12. The evidence of the customs officers that the appellant arrived and left the block of flats on both 17 and 18 February 1993 and that the appellant was in Broadcast Drive on 17 February was strenuously challenged on the basis that their identification was mistaken and that the surveillance had been inattentive. The prosecution case did not depend upon this identification evidence, but it was important in that, if accepted, it supported the accomplice's evidence of the appellant's visits to the flat and his meeting with him in Broadcast Drive. Further, this evidence was not required to establish the appellant's connection with the flat. He admitted both a visit on 18th February and his fingerprints on the packets.

13. The customs officers, who were undertaking planned surveillance, had no difficulty observing the person identified in that there was no criticism of the light, the length of time or other circumstances in which the identifications were made. Further, the judge left the issue on identification squarely to the jury and reminded them of the points raised by counsel when criticising the customs officers as witnesses. Even so Mr McCoy submits that following the guidelines in R v Turnbull and Anor [1977] QB 224, 228-231, the judge ought to have warned the jury appropriately of the dangers relating to identification evidence and he gave no such warning.

14. The question for this Court is whether the case against the appellant depended so much upon the correctness of one or other of the identifications that a warning was necessary.

15. Even though the identifications were made in good conditions by several officers who were carrying out planned surveillance, in each instance, the defence was that the identification was mistaken. In these circumstances we think an appropriate Turnbull warning was desirable and ought to have been given. The failure to give the warning was a misdirection and, although borderline, was a material misdirection.

Conclusion

16. Appropriately tailored Turnbull directions when the case against an accused depends substantially upon the correctness of an identification alleged to be mistaken are important and, indeed, at times, crucial. The reasons are well known and have been frequently repeated by this Court.

17. In the absence of such a warning, the passage at p. 21C of the summing-up:

"Can the surveillance evidence, once again, be mistaken? Probably your common-sense will provide the answer to that question, members of the jury"

was, if considered alone, inappropriate. However, this is an isolated passage and otherwise the summing-up on the surveillance evidence was fair and balanced and the judge carefully reminded the jury not only of the appellant's evidence on the point but also of defence counsel's cross-examination of the witnesses and his criticisms of them in his final speech.

18. The case against the appellant did not depend upon the identification evidence, even leaving it aside, the case against him was strong. This evidence was from the accomplice, corroborated by the appellant's fingerprints on the waxed packets and his admission of presence in the flat.

19. In spite of a material misdirection, such as usually requires any ensuing conviction to be quashed, after a careful review of the evidence, we were satisfied that even if properly directed, the jury would inevitably have convicted the appellant of the offences. There was no miscarriage of justice and we applied the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap. 221.

20. For these reasons, we dismissed the appeal against conviction but before we leave the case we express our gratitude to Mr McCoy for his succinct, clear and helpful submissions.

Sentence

21. Nothing of substance was raised by counsel in his application for leave to appeal against the sentences and it was refused.