R. v. WONG KIN WAH

IN THE COURT OF APPEAL

1995, No.307
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This case comes to us from a trial in the High Court before Deputy Judge Burrell and a jury.

2. The applicant is a man in his mid-30's. He faced one count. It was of possession of a dangerous drug for the purpose of unlawful trafficking therein. The dangerous drugs in question consisted of 5,807 millilitres of a liquid containing 3,687 grammes of methylamphetamine hydrochloride, the dangerous drug commonly known as "ice".

3. On April 12 last year, the applicant was convicted and sentenced to 12 years' imprisonment.

4. He now seeks leave to appeal against conviction.

5. Shortly before 11 o'clock in the morning on September 12, 1990, the applicant, together a Mr Wong Wai-man and a Mrs Lee Lai-fun, left Hong Kong for China via the Lo Wu Border Control Checkpoint.

6. The three of them returned from China to Hong Kong on the following day, September 13, 1990. They crossed the Border Control Checkpoint at Hung Hom Railway Station shortly before one o'clock that afternoon.

7. They were intercepted by the police at that railway station.

8. The dangerous drug the subject-matter of the count on which the applicant was tried and convicted were found in a total of nine bottles found spread out in his two companion's luggage: five in Mr Wong's and four in Mrs Lee's.

9. It was the prosecution case, accepted by the jury as one sees from their verdict, that the applicant was in joint possession of the dangerous drug in question together with his two companions.

10. After he had been charged with conspiracy and while he was on bail, the applicant absconded, fleeing Hong Kong. That was in December 1990.

11. In August 1994, he was brought back to Hong Kong under escort from the Philippines and re-arrested here.

12. Following voire dire proceedings, there were admitted into evidence: the record of an interview of the applicant by the police from 4.15 PM to 6.00 PM on September 13, 1990, following his arrest; and the record of an interview of him by them from 11.20 PM on August 19, 1994, to 1.35 AM on August 20, 1994, following his re-arrest. We will refer to those two statements of interview as the "first statement" and the 'second statement" respectively.

13. In the first statement, the applicant said that he had taken his companions to China to see persons whom he described as "the personnel of the relevant dangerous drugs manufacturing factory." He also said in that statement that he "did not take part in the incident".

14. Turning to the second statement, one finds the applicant saying that he "played the role of a middleman in this case of Trafficking in Dangerous Drugs."

15. Five grounds of appeal have been lodged on behalf of the applicant. These have been summarised as follows in a written submission prepared by his counsel:

" The First Ground argues that there was never a prima facie case against the Applicant and that the Learned Trial Judge erred in law in rejecting a submission of no case to answer.

The Second Ground contends that it was not open to the Jury on the basis of the Primary Facts established by the Crown to safely draw an inference of guilt, and particularly of participation in a joint enterprise to traffick in 'ice'.

The Third Ground argues that the Learned Trial Judge erred in admitting [the two statements] in evidence as being the product of information given voluntarily by the Applicant to two Interviewing Officers.

The Fourth Ground contends that the Learned Trial Judge misdirected the Jury in terms of 'flight'.

The Fifth Ground is the catchall and alleges that in all the circumstances the Applicant's conviction was unsafe and unsatisfactory. It is however contended that each of the individual Grounds is capable of standing by itself in the sense that if made out the Applicant's conviction would be vitiated."

16. What concerns us particularly is not so much anything directly raised in those grounds as the way in which the judge directed or fail to direct Jury as to the way in which they could make use of the applicant's statements.

17. Towards the end of his summing-up the judge said this to the jury:

"If you accept that in his 1994 statement he said that he was a middleman and if you accept that he was in fact a middleman in the commission of this offence of possession of dangerous drugs for the purpose of unlawful trafficking and taking into account your assessment of what he said in his first statement, the contents of which are not in dispute and taking into account your decisions as to the reasons for his departure from Hong Kong and your assessment of the contents of his second statement, can you safely and properly infer that when he returned to Hong Kong from China on September 19, 1990 he was in joint possession with the other two named in the indictment of the dangerous drugs in their travel bags? If you cannot, you will acquit him. If you can, you will convict provided you are also sure that his purpose in possessing them with the others was to traffic them."

18. In our view, the jury had to be told - but were not told - that the applicant's statements were exculpatory in the sense that he was really denying possession for the purpose of unlawful trafficking even though he might have been confessing to a conspiracy to traffick in dangerous drugs. Those statements are inculpatory only in the sense that they contain admissions against interest by establishing knowledge and presence which, together with other evidence, provide a basis on which to infer guilt of the offence charged.

19. But the question whether a jury can convict if they are properly directed is a very different question from the one whether they were properly directed. And it is our conclusion that there was here material non-direction so that the conviction could only stand in the face of such non-direction if we can apply the proviso. But it is not suggested by Mr Bruce for the prosecution that we can apply the proviso here.

20. In those circumstances, we have no choice but to treat this hearing as that of the appeal itself, allow that appeal, quash this conviction and set aside this sentence. That we do.