R. v. CHAN KWOK CHU

IN THE COURT OF APPEAL

1994, No. 522
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. It comes to us from a trial before Duffy J and a jury in October last year. The applicant faced one count. It was of trafficking in dangerous drugs. Those drugs consisted of 432.85 grammes of a mixture containing 131.53 grammes of salts of esters of morphine i.e. heroin.

2. On March 11, 1993, in the staircase of a building in Kowloon City, the police caught the applicant, who was then a few days short of his 20th birthday, carrying those drugs.

3. According to the arresting officers, the applicant told them at the time of his arrest that he received those drugs from someone by the nickname of "Ah Fei" and that he, the applicant, was acting as a courier of those drugs.

4. The prosecution produced a disputed confession statement to essentially the same effect.

5. At the trial, the applicant's defence, as put forward by him in the witness-box, was duress. He admitted that he had been trafficking in the drugs, doing so as a courier. But he said that he had done so under duress. The duress, he said, came from someone to whom he referred as "Brother Keung". Keung, he said, forced him to act as a courier of the drugs by threatening to beat him to death and also to harm his family if he did not do so.

6. The jury's verdict of guilty, which was returned on October 6 last year, was unanimous.

7. Two grounds of appeal have been advanced. They read:-

"(1) The Learned Judge wrongly directed the attention of the Jury to the heading of the defendant's statement made under caution, where it is recorded that the defendant was unemployed. This was contrary to the parole evidence given by the defendant who had said he was working in a plastics factory. The fact of the defendant's employment had not been challenged by the prosecution. In a case such as this, where the defence was duress and depended solely upon the credibility of the defendant's evidence, the highlighting by the Judge of a discrepancy in material evidence which the defendant had never had the opportunity to explain was tantamount to destroying that credibility.

(2) In all the circumstances of the case the verdict of the Jury is unsafe and unsatisfactory."

8. There is nothing in the second ground independently of the first one. It might be regarded as a development of the first ground.

9. As to the first ground thus developed, the words of the judge giving rise to the ground are these:-

"The defendant gave evidence, although under no obligation to do so. He told you he is now 21 years of age, and that therefore at the time of the offence, you have heard described in the evidence, he was 19 years of age.

At the time of his arrest he was working in a plastic factory. You will, however, probably note that right at the beginning of exhibit P2, it is stated that he was unemployed at the time of his arrest. However, in his evidence he told you that on 11th March, while normally employed, he was not feeling well that day, so he stayed at home. That is until sometime between 11 and 12 in the morning when he started to feel hungry then he went out for something to eat."

10. The statement there referred to, exhibit P2, is a statement recorded in a record of interview form which has a space for the insertion of the occupation of the person interviewed. And in that space, the word "unemployed" appears.

11. The applicant gave evidence of his employment along the lines summarised by the judge in the passage which we have quoted. And no cross-examination was directed specifically to that matter.

12. Be that as it may, the statement existed and was before the jury. What is more, there was a question in the cross-examination of the applicant in which counsel for the prosecution had put it to the applicant that what he had told the police: "... and as recorded in both these statements are true.". That reference included this statement. The applicant's answer was simply "Disagree.".

13. So the judge had all of that on his hands. And the jury had all of that before them. It does not appear to us that the judge was highlighting any discrepancy to the applicant's detriment. Rather, it seems that he was simply dealing accurately with the evidence. It was not unfair to the applicant that he should do that. Indeed, if nothing had been said by the judge as to the fact that it was recorded in the statement to which we have been referring that the applicant was unemployed, the jury, noticing that on their own, might well have made too much of it.

14. The judge, having drawn attention to what he anticipated that the jury would notice anyway, dealt with the matter in a fair and balanced way. And he in fact provided what might be taken as an explanation as to why there could be a mistake in the statement as to the defendant's employment or lack of it.

15. Rather than making an issue here, it seems to us that the judge was defusing one.

16. The reaction of the experienced counsel who had appeared for the applicant in the court below and now appears for him before us, is illuminating. He addressed the judge at the conclusion of the summing-up. And the point which he made was that the reference to the applicant being unemployed might have come - counsel believed that it did come - from an antecedent statement which was not before the jury. The judge's response was to draw counsel's attention to the statement in question. And counsel then said: "My Lord, then I apologise. It's my mistake.". Certainly, counsel did not develop then the point developed by him now.

17. We do not criticise counsel. With the benefit of more mature reflection, a point may sometimes occur to counsel which did not occur to him before. Nevertheless, if the matter was of the impact now suggested or even if it merely carried some real potential for detriment to the defence, it would be very surprising indeed that nothing of the kind occurred to defence counsel at the time, when his antennae would no doubt be extended for the purpose of detecting any danger to his client's legitimate interests.

18. Anyway, we have now considered the point; and we are confident that there is nothing in it.

19. In the result, this application for leave to appeal against conviction is dismissed.