R. v. CHING KWOK-WING

IN THE COURT OF APPEAL

1994, No.639

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one count of trafficking in dangerous drugs. It particularized that he on 6th January 1993, outside No.227 Sai Yeung Choi Street North, Kowloon, unlawfully trafficked in a dangerous drug, namely 243.37 grammes of a mixture containing 104.08 grammes of salts of esters of morphine. He was convicted after trial before Deputy Judge Bokhary and sentenced to imprisonment for eight years. He now seeks leave to appeal against that conviction.

2. It was the Crown case that the applicant, who was the proprietor of the Sun Yat Hai Motor Company ("the motor company"), was seen by Inspector LAM King-kai coming from his premises at 227 Sai Yeung Choi Street North, shortly after midnight on 6th January 1993 carrying a yellow plastic bag. He was preceded from the premises by two other men and the Inspector said that when he saw the man coming out from the premises he radioed to a waiting squad who immediately came to the scene and apprehended the three men. Prosecution evidence came also from squad members Sergeant Tsang Choi-on, PC Lin King-lun, PC Ng Kwok-wai and WPC. Kan Ka-lai.

3. The applicant gave evidence saying that he was watching TV with two friends in the company premises. He said that the friends left and the police entered and searched and found nothing and that Sgt. Tsang and PC Lin then left and returned shortly after with a yellow plastic bag. He denied absolutely that he had been in possession of any drugs or that he had had any drugs on his premises.

4. He called a Mr. Chan Chi-ming who said that, at the time of the offence, he was a part-time cleaner at the cinema next door. He said that he started work about half an hour after the last show in the evening and then worked for about one and a half hours and that, on the evening in question, he saw two men searching with torches in the side lane, heard one saying "I found it" and then saw him holding a bag.

5. A Mr. Wong Biu-fat was also called. He said that he was a part owner of the cinema and that Mr. Chan Chi-ming was a part-time cleaner and that he paid him $2,000-$3,000 when he could afford it.

6. Mr. Lo Yuen-ching, who became the cinema manager in October 1994, more than 20 months after the alleged offence, was called by the prosecution to give evidence, in rebuttal, that the cinema usually closed at 11:15 to 11:20 and that the aisles were then swept for 2-3 minutes. He said that the main cleaning was done in the morning by an usher and by himself.

7. A friend of the applicant Mr. Li Ping-yiu gave evidence that he had been repairing his car in the street nearby and that he saw two men enter the side lane and then come out and that one, who was holding a yellow plastic bag, told him not to be "fuzzy" or the bag would be given to him.

8. These matters were put to the police officers who denied finding any bag in the lane but Inspector Lam and PC Ng Kwok-wai did give evidence of a search of the side lane undertaken because one of the three men had said that a wooden structure in the side lane was his.

9. There could not have been a more positive clash between two sets of evidence. If the police officers were believed, then there was ample evidence upon which to convict. If the evidence of the defence witnesses was to be believed, or if the jury considered that it might possibly be true, then the applicant was entitled to be acquitted.

10. Mr. Griffiths, Q.C., with him Miss Adriana Ching, for the applicant, submitted that the summing-up failed to make adequate reference to the discrepancies in the prosecution's case and was otherwise unfair and one-sided. The attack was fourfold it being contended that:

(1) the judge had failed to deal with peripheral but vital matters which the defence relied on to establish that there had been or that there might have been a "frame-up";

(2) there had been a gratuitous denigration of defence witness Mr. Wong Biu-fat and of the defence itself;

(3) the evidence of the rebuttal witness Mr. Lo Yuen-ching was such as required a clear direction as to relevance which was not given;

(4)(i)although a proper general direction as to standard of proof was given, in the light of the evidence in this case, a specific further direction was required which was not given,

(ii)the directions as to the essential elements to be proved were referred to in a stark way which slanted the matter against the defence.

Mr. Griffiths submits that these matters taken singularly or together make the conviction unsafe and unsatisfactory. He relies upon Reg. v. Spencer & Ors. (1987) 1 A.C. 128 and in particular upon the statement of Lord Ackner at p.142 where he said:

".......... the extent to which the trial judge should make reference to that material depends on the facts of each case and the overriding rule is that he must put the defence fairly and adequately."

(1) The Failure to deal with peripheral matters which indicated, at least the possibility of a "frame-up"

11. Mr. Griffiths acknowledges that the judge, very early in her summing-up, had said:

"A word about witnesses. You had the advantage of seeing and hearing them. Assess their reliability in the light of what they said and the way they said it. Where there is any discrepancy between what a witness says at one stage and what that witness says at another stage, you should take such discrepancy into account when you consider the witness's reliability. Also, where there is any discrepancy between what different witnesses say about the same matter, you should take such discrepancy into account when you consider those witnesses' reliability. It is open to a jury to accept part of what a witness says while rejecting another part of what that witness says."

And that later in her summing-up she said:

"The speeches of both counsel will be fresh in your minds. Each has urged a different view of the weight and effect of the evidence. Each has made points in support of the view which each urges you to take. Those points are for you, as the sole judge of fact, to assess and to accept or reject as you see fit, using your common sense."

12. Mr. Griffiths points out, however, that the judge did not then go on to deal with specific shortcomings in the prosecution evidence submitting that it was critical, in a case such as this, that the jury be assisted properly to evaluate that evidence in the light of those shortcomings. He argues that it is "the side issues" which are most likely to betray the existence of a "frame-up" as the witnesses will have taken steps to see that the evidence of each as to the central issue is not in conflict with that of the others. He submits that in the circumstances of this case the judge failed in her duty when she did not remind the jury of the importance of those side issues and failed to identify the major flaws in the prosecution evidence. The weight these submissions deserve can only be appreciated when the whole transcript of the prosecution evidence is read and the "side issues" are examined against the totality of that evidence. In this regard it is to be noted that it was never at any time suggested to any of the prosecution witnesses that he had put his head together with other members of the police party to concoct evidence in order to "frame" the applicant. This may have been implicit in the voluminous cross-examination but it was never explicitly formulated in any of the questions asked.

13. Mr. Griffiths submits that, as the defence was "frame-up", the judge was required to explore with particularity aspects of the cross-examination of the prosecution witnesses which raised the possibility of a "frame-up". The judge put the evidence that was called by each side squarely before the jury. As we have indicated the prosecution witnesses were not cross-examined upon the basis that there was a calculated plan falsely to accuse the applicant. This suggestion was, we are told, in the submission of counsel made when addressing the jury. If the defence witnesses were believed, or if what they said might have been true, then there must, or might, have been a "frame up". The issue in the first ground is whether the judge, having properly directed the jury as to the burden and onus of proof and indicated to them that they must make their assessment upon the basis of the evidence called by the prosecution and the defence, was called upon to canvass the evidence of the prosecution witnesses in the way suggested by Mr. Griffiths.

14. Mr. Griffiths dealt with five matters which were not referred to by the judge and which, he submitted, should have been as they indicated, at least, the possibility of a "frame-up". They were:

(i) The two major discrepancies in the prosecution evidence;

(ii) The suspect evidence of Inspector Lam;

(iii) The possible collusion between Sergeant Tsang and PC Lin;

(iv) The conflicting identification evidence of structures in the lane; and

(v) The conflicting evidence as to the activities of the police party at the time of the search of the lane.

(i) The two major discrepancies in the prosecution evidence

15. It is suggested that there were glaring discrepancies between the evidence of the police officers as to whether the applicant was inside or outside the shop at the time when he was first seen. It is also suggested that there were discrepancies in the police evidence as to whether he was at that time carrying the plastic bag.

16. Inspector Lam said that he had a sergeant, 5 police constables and a woman police constable in the team which was keeping surveillance on the motor company. He said that just before 1 a.m. on 6th January 1993 he saw two men walking out of the company and then "another man holding a yellow plastic bag also came out from the shop"; that he then used his beat radio to inform four of his team who had been laying ambush in Pak Keung Street telling them to take action; and that four of his colleagues had circled the three suspected men.

17. Sgt. Tsang Chor-hon, who was then a PC in the squad, said that having received instructions from Inspector Lam, he ran 50 or 60 feet, we note that this would be only about 20 paces, and saw three men standing on the pavement with their backs to No.227. He said:

"The man who was standing nearest to me, I am talking about the man in green T-shirt, he was then holding a yellow plastic bag in his left hand."

He said he seized that plastic bag and found two paper boxes of fruit juice which contained dangerous drugs which he then handed to PC Lin.

18. The discrepancy upon which reliance is placed is said to have arisen when PC Lin gave evidence. He said that 8 minutes before 1 a.m. he left the position where he had been keeping observation and went about 60 feet to the "motor car company". He said that when he was first able to see it, he "saw three men coming out". Reliance is placed upon the following answer:

"Q. So when you first saw them where exactly were they?

A. Inside the motor company."

19. Mr. Griffiths also relies upon the following exchange in cross-examination:

"Q. Did you or did you not record in your witness statement that you first saw the three - when you first saw the three Chinese males, they were inside the company? I am asking you about your witness statement, nothing else.

A. Yes, it is recorded there."

Having closely examined this evidence and set it in the context of the other evidence, we are by no means persuaded that it discloses a major discrepancy of a nature that would require specific mention by the judge.

20. The second discrepancy is also said to have arisen in the evidence of PC Lin. In chief he said that he didn't notice whether any of the three men had anything in their hands. In cross-examination he said, at first, that he could not remember where the bag had come from before it was handed to him by the sergeant but later said that the first time he saw the bag it was being held by the applicant. He explained this apparent contradiction by saying that he had seen the applicant holding the bag but not at the time when he was running towards the Motor Company. The suggested discrepancy is said to arise when this evidence is compared to that of the sergeant who said that he saw the applicant holding the bag when he was running towards the motor company.

21. There is certainly a variation between what each witness said he saw but we are by no means satisfied either that it constituted what could be properly called a discrepancy or that it was such that the trial judge was called upon to comment thereon.

(ii) The Suspect Evidence of Inspector Lam

22. The trial with which we are dealing was a re-trial and Inspector Lam had given evidence at both trials.

23. At the trial the following passage appeared in cross-examination:

"Q. And your original observation was how far away from the entrance of the shop?

A. About ten metres.

Q. Are you sure?

A. Rough estimation by me."

It was then put to the officer that he had at the earlier trial stated that he was about 30 metres from the company entrance. It was submitted that he agreed that observation from 30 metres would have been more difficult than from 10 metres and that his change in evidence was, therefore, of significance as it left open the possibility that it was made in a deliberate endeavour to give a ring of truth to false evidence. This, it is suggested, was a matter of considerable significance which required a firm direction from the judge. This overstates the position. The matter was canvassed at length in cross-examination. It certainly went to the credit of this witness but its link to the 'frame-up' was tenuous. It was not, we are satisfied, such as to require a specific direction from the judge.

(iii) The possible Collusion between Sergeant Tsang and PC Lin

24. It was next suggested that there was material which indicated the possibility of collusion between Sgt. Tsang and PC Lin to give false evidence. They had both in their written statements said that three police officers had taken the applicant out to search a private car and had both in their evidence said that two police officers had taken him out for that search. When this was put to Sgt. Tsang, he said:

"At the time we left the shop, just PC 49049 and I were leaving with the defendant. However when we got out of the door, there was one more officer who join us. From there, three police officers took the defendant to search the cars."

PC Lin, having said in evidence in chief that he, the sergeant and the defendant had gone out to search the car, was cross-examined as follows :

"Q. So the three of you left.

A. Right.

Q. To where?

A. To search a car or cars.

Q. How many of you went to search the car?

A. I don't understand.

Q. How many of you went to search the car, officer, simple question?

A. One was responsible to search the cars.

Q. How many persons went to search the cars?

A. I, Sgt. 19087......

Q. Yes?

A. ..... the defendant and PC 49731. But 49731 was outside when I asked him to give me a hand to search the car.

Q. I see, PC49731 was outside.

A. Yes."

25. The identical explanation given by each officer at least, it is submitted, raises the possibility of collusion. Both of the officers were fully cross-examined upon this matter. It was not a matter which went in a direct way to the "frame-up". It concerned the search of a car during which nothing was found. It was not in our view an incident of such importance that the judge was required to make special mention of it when summing up.

(iv) The Conflicting Identification Evidence as to Structures in the Side Lane

26. Complaint is next made of the failure by the judge to mention that the two police officers who had searched the lane had, when shown a photograph, identified different structures. This, like the matters above, we consider was not of such moment as to call for special comment.

(v) The Conflicting Evidence as to the activities of the police party at the time of the search of the lane

27. We have read the evidence in this regard with care. The matters relied on are typical of the sort of discrepancies which arise in cross-examination whenever a number of witnesses are examined about a sequence of events occurring within a short period of time. They were matters for the assessment of the jury who saw and heard the witnesses. Again we do not consider that it was incumbent upon the trial judge to make specific comment thereon.

28. As to (iii), (iv) and (v) above we think it not inappropriate to ask, rhetorically, why, given that it was not disputed that the search of the car and the side lane did take place, the police witnesses would have felt it necessary to fabricate evidence as to the participation in the incidents. If no sensible reason was suggested for them to have done so, the jury may well have considered that the overwhelming likelihood was that the discrepancies were occasioned by fallibility of memory rather than by deliberate fabrication.

(2) The Gratuitous Denigration of the Evidence of Mr. Wong and of the Defence Case

29. As to Mr. Wong's evidence the judge made the following comment:

"Mr. Wong was asked what you might think is a fairly simple question which is whether he considered the accused a friend. He first answered that he knew him and that he was a boss of the motor car company next door. Not surprisingly, you may think, the question was repeated. And Mr. Wong answered that he knew the accused as he was a boss of the motor car company and frequently bumped into him. And then Mr. Wong asked to be enlightened as to what a friend was, saying that a lifelong friend is a friend and that someone whom he had recently known could also be described as a friend. Be all of that as it may, you heard it from Mr. Chan that it was Mr. Wong who introduced him to the accused after the incident."

The evidence which directed that comment by the judge was as follows:

"Q. Mr. Wong how long have you known the defendant?

A. He is just my neighbour. He's got a motor company next door.

Q. Do you consider that he is a friend of yours?

A. I know him that he was a boss of the motor company next door.

Q. My question was: do you consider him to be a friend of yours?

A. I know him as he was a boss of the motor company, and frequently I bumped into him as he owned a motor company next door. Could you enlighten me as to the definition of a friend, a lifelong friend is a friend and a friend I have recently been introduced can be described as a friend?"

We are by no means satisfied that the trial judge was too robust in the way in which he referred to Mr. Wong's evidence. We do not consider that any objection can properly be taken to her comment.

30. It was Mr. Griffiths' next submission that the trial judge had, to use his words, "rubbished" the defence when he said:

"Perhaps right at the heart of this case is this simple issue. Do you think that those dangerous drugs might have been found just lying around in a side-lane by police officers who planted them on the accused? Or, on the contrary, do you feel sure that the plain truth of the matter is that those dangerous drugs were found in the possession of the accused who was unlawfully trafficking in them?"

31. It is submitted that there was no evidence to justify a comment that the drugs "might have been found just lying around in a side lane...." It is true that the words used did to an extent overstate the position but, given that it would have been correct to have said that the drugs "were left in a side lane where they could be discovered by the police", we do not think that the jury would have been, in any way, wrongly influenced by what the judge said.

(3) The Evidence of Mr. Lo called for Comment and None was Forthcoming

32. Mr. Lo was the manager of the theatre next door to the company but he had not taken up that post until more than 20 months after the incident. He was called in rebuttal by the prosecution following the evidence of Mr. Chan that he at the time of the incident have been a part-time cleaner and had, at 1 o'clock in the morning, gone out into the alley and encountered the police party. It is suggested that the trial judge should have made it plain to the jury that Mr. Lo's evidence, given that he was only able to speak of the position long after the night in question, was of little, if any, relevance. The judge said:

"Mr. Lo, called by the prosecution, told you that he is the manager of the cinema in question which he joined on 1st of October this year. His evidence of the cinema's present routine is to this effect. It normally closes at about 11:15 or 11:20 at night when only the aisles would we would swept, and that would take about 2 to 3 minutes. The cleaning of the cinema takes place in the morning before the cinema opens at about 11:30 in the morning. The usher is responsible for such cleaning with his help at times." (Emphasis supplied.)

Given that the judge made it clear to the jury that the witness was speaking of the position since 1st October 1994, we do not consider that they could have been misled into making any improper use of this evidence.

(4) Inadequate and inappropriate Directions as to Standard of Proof

33. It is submitted that the judge failed to give any or any sufficient direction to the jury that the appellant should be acquitted not only if they disbelieved the prosecution evidence but also if, in the event, they found that evidence to be unreliable. We are not persuaded that the trial judge was called upon to give any such direction. She had given clear directions as to the standard of proof. The jury were told:

"Before you can convict, you must be satisfied so that you feel sure of the accused's guilt. In other words, you must be satisfied beyond reasonable doubt of the accused's guilty before you can convict. No inference adverse to an accused can be drawn unless it is the only reasonable inference."

No further direction was necessary.

34. Complaint is also made as to the stark wording used when describing the first of six matters as to which the judge told the jury they had to be sure before convicting. No issue is taken with the approach of the judge but it is suggested that she erred in the way in which she stated that proposition. She told the jury that before convicting they would have to be sure :

"(1) On all essentials, the prosecution witnesses gave accurate and reliable evidence while the defence witnesses, including the accused himself, did not."

It is suggested that this must have put the jury "into a black and white frame of mind" and that, in the circumstances of this matter, the judge should fairly have added that they should acquit if they considered the defence witnesses might possibly have been telling the truth. We cannot give any weight to this submission. The judge was directing the jury as to the circumstances which, if proved, established guilt. She had already, as we have said above, made it plain to them that the onus was on the prosecution and that they could only be satisfied as to guilt if they were sure. The jury were, further, told that if they had any reasonable doubt they could not convict. The judge was not called upon to give any further direction.

35. The matters raised above do not, whether taken singularly or together, occasion us any doubt as to the propriety of the conviction.

36. The application is refused.