HKSAR v. SO YIU CHUNG

IN THE COURT OF APPEAL

1996, No. 268
(Criminal)

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J U D G M E N T

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

1. The Applicant seeks leave to appeal against his conviction and sentence for trafficking in dangerous drugs. The amount involved was substantial being 698 grams of a mixture containing 593 grams of heroin hydrochloride. He was sentenced to 20 years' imprisonment.

2. The prosecution case was that the two police officers who were members of a team conducting an investigation saw the Applicant in the street at Kwong Wah Street, Mongkok on 24th August 1995. They saw that he was carrying a carrier bag. He boarded a Honda motor car and started to drive it away. He stopped as his passage was obstructed by other vehicles. The police officers then went across and intercepted him.

3. The bag was found in the car next to the front passenger's seat. One of the officers removed some of the packing and it appeared that the bag contained white powder. A caution was administered and the Applicant remained silent.

4. The Applicant was taken to a white police van and detained in it. After a lapse of time the van was backed up to where the Honda car was so that the Applicant could see the search which was being conducted by the police on the car. Fingerprints had been lifted by an expert but these only established the Applicant's prints being found on parts of the car consistent with its normal use. There were fingerprints on the carrier bag but there was evidence to the effect that they were insufficiently distinct to be of evidential value.

5. The defence case directly contradicted the police evidence on the circumstances surrounding the arrest.

6. The Applicant who gave evidence said that he jointly owned the car with a Mr. Lee Kei On who was a close friend. On the day in question he had needed the car to take his mother to St. Theresa's Hospital for an examination. No appointment had been made for this. The car had not been in the Yaumatei car park as had been led to believe it would be by Mr. Lee and he had telephoned him. He was told that the car was in a car park at the Wealthy Commercial Centre in Kwong Wah Street and Mr. Lee had told him that it had to be returned by 4:00 p.m.

7. He went to the car park to fetch the car. When he drove the car away he was stopped by the police. He denied any knowledge of the carrier bag or its contents. He said that the police had not taken him direct to the white police vehicle. He was first taken inside the car park and kept there handcuffed. The police had refused to tell him what was happening. After he was taken to the van, he was able to see the car being searched. He saw a bag being taken from the boot of the car and he heard the police saying that there were dangerous drugs in the bag. He later retracted this.

8. He had refused to make a statement to the police as he believed that he was being framed by them.

9. Subsequently he had been able to contact Mr. Lee. Mr. Lee had told him that the dangerous drugs had been in his possession in connection with a drug trafficking operation he was involved in. He had agreed to give evidence in court to this effect. Indeed, he did evidence at the trial before Stuart-Moore, J to this effect.

10. The 1st, 2nd and 3rd grounds of appeal can conveniently be dealt with together are:

"1..The Applicant/Appellant's Counsel and Solicitors representing him at the trial acted in flagrant dereliction of their professional duty in advising the Applicant/Appellant that he should not call two witnesses namely, two of the staff of the Wealthy Commercial Centre, who were at Court under subpoena and who could have been expected to give evidence relevant to the case in that it would have contradicted aspects of the police evidence and supported the defence.

2..The Applicant/Appellant's Counsel acted in flagrant dereliction of their professional duty in not calling the two witnesses referred to in Ground 1 herein thus depriving the Applicant/Appellant of a full and fair trial.

3..The Applicant/Appellant's Counsel acted in flagrant dereliction of their professional duty in:

(a) threatening the Applicant/Appellant that they would withdraw from the case if he insisted on changing his instructions so that the incident giving rise to the case occurred approximately 30 minutes earlier than his original instructions and,

(b) Advising him not to change his evidence in respect of when the incident occurred when giving his evidence."

11. The Applicant first gave instructions to his then solicitors Messrs Crawford, Miller and Peart on 26th February 1996. In his instructions he said that he had left the car park at about 1:30 p.m. on 24th August 1995. He went on to describe how he had been stopped by the police and taken back into the car park and handcuffed. He said that while he was there, he saw a female cashier or attendant and the man who he thought was in charge of the car park.

12. The solicitors made arrangements for the car park to be visited on the 4th March to ascertain whether there was any record of what the Applicant had claimed had transpired on 24th August. The staff were not very co-operative but the solicitors were able to ascertain that there was an events register and that there was a record of an incident having occurred on the day in question. The solicitors clerk ascertained from Mr. Tong Tin Yuet that he was the manager at the relevant time and a Ms Li Yuk King was on duty then.

13. The solicitors arranged a conference with counsel on 27th March one day before the trial was due to commence. Counsel engaged were Mr. Plowman, Q.C. and Mr. Alex Ng and a clerk Mr. Thomas Sun represented the solicitors. After the conference both counsel and Mr. Sun went for a site visit to Wealthy Commercial Centre car park and interviewed Ms Li's sister, Ms Li Yuk Bing. She showed them the events register. There was a record of an incident having been noted on 24th August.

14. According to the record 2 plainclothes police officers had brought a young man into the car park and kept him there. The incident had lasted from 12:55 p.m. until 1:15 p.m.

15. These times did not correspond accurately with available evidence in the case. The Applicant had stated in his instructions to his solicitors that he had left the car park at about 1:30 p.m. on that day.

16. Also it was the evidence of the police officers who had arrested the Applicant that they apprehended him at 1:54 p.m.

17. A decision was made to subpoena Mr. Tong and Ms Li Yuk King and require them to bring with them to court the events register.

18. In an affidavit sworn by Mr. Alex Ng he says that on the morning of the 1st day of the trial (28th March), he spoke to Mr. Tong and Ms Li and they had indicated that they would not be able to recognise the man who was the subject of the incident. Ms Li however was able to say that to the best of her knowledge the incident in question was the only incident which had occurred on that day.

19. Mr. Ng goes on to state that following this a conference was arranged with the client when he was apprised of the results of the interviews with the two witnesses. He says that as a consequence of the discrepancy in the times a decision was made by the Applicant not to call the two witnesses and instructions were given to that effect.

20. The prosecution case went very quickly. Mr. Plowman did not press the prosecution witnesses on the question of time. The prosecution closed its case on the morning of 29th March. A message was then relayed to Counsel that the Applicant wished to consult them. Both counsel and two solicitors clerks Mr. Ho and Mr. Ng attended upon the Applicant. This was an important meeting and we do not think that we can do better than to cite the contemporaneous note which was made of the meeting which was recorded by Mr. Charlie Ng.

"During the morning break, sometime after 11:05 a.m., Mr. Plowman, Mr. Ng and I paid a visit to the defendant in the cell and he asked Mr. Ng and Mr. Plowman whether he could change the time in his instruction in order to adjust his evidence with the on-going evidence in the trial. Both Mr. Plowman and Mr. Alex Ng advised defendant that he couldn't do so as Mr. Plowman's cross-examination had basically been according to his instructions. Mr. Plowman further advised that if defendant wants to change his evidence, Mr. Plowman and Mr. Ng then had to discharge themselves."

21. It is evident from a perusal of Mr. Plowman and Mr. Alex Ng's affidavits that what the Applicant was attempting to do was to tailor his evidence so as to make it accord with what he anticipated the witnesses from the car park would testify to. They considered that they would be unable to be a party to such a course of conduct.

22. In his latest affidavit the Applicant states that the underlying instructions to his legal advisors at this meeting were that "the time I mentioned in my instructions may not be so accurate. In view of the timing recorded in the register was 12:55 p.m. and the time difference was about 30 minutes it might be that either myself or the witness could have made a mistake. On the other hand, it would be quite possible for the two witnesses to either recognise me or the two police officers who were with me at the time".

23. Mr. Oderberg who was originally representing the Applicant contended that it was always open to a witness to change his evidence if he honestly believed that he had not correctly remembered his evidence originally. He went on to argue that the failure of his legal representatives to act upon the new instructions the Applicant had attempted to give them constituted a flagrant dereliction of their duties.

24. The difficulty which we encountered in this connection was that there is a clear conflict between what the legal advisors say in their affidavits and the version of events now being put forward by the Applicant. The matter was not made easier for this court as Mr. Oderberg at the hearing on 7th May 1997 indicated that he did not wish to cross-examine the deponents.

25. As we were most concerned about this matter we adjourned the matter further so that the Applicants latest affirmation could be shown to those who represented him at his trial.

26. Both Mr. Plowman and Mr. Ng have filed further affidavits. They have maintained their stance that the Applicant did give them instructions not to call the car park witnesses and that when there was a conference at the close of the prosecution case it was their impression that what the Applicant was attempting to do was simply to adjust his evidence so that it could be reconciled with the evidence he anticipated would be given by the car park witnesses.

27. Counsel were not prepared to go along with this. However they added that the client had not expressed any dissatisfaction concerning the way in which the defence had been conducted.

28. It would appear that Mr. S. Ng, who now represents the Applicant in place of Mr. Oderberg, does not wish to cross examine Mr. Plowman or Mr. A. Ng on their affidavits. We are left to decide questions of credibility solely upon the basis of the statements made in the affidavits.

29. We accept the evidence which has been given on affidavit by counsel.

30. On the basis of the evidence given by counsel the Applicant would appear to have been represented in a wholly competent manner and the allegations of incompetence have not in any way been substantiated.

31. There is a further matter which needs to be referred to shortly. The Applicant claimed in his affirmation that he had not agreed all the admitted facts which were admitted at the commencement of the trial. This was notwithstanding the fact that he had signed instructions to this effect. The complaint which he makes is that the wrapping of the dangerous drugs was partially torn. He had wanted to cross examine the police officers as to whether they had noticed this. We do not think that this would have been a matter of significance or would have impugned the evidence of the officers if they had said that the wrapping had been torn.

32. Grounds 1, 2 and 3 have not been made out.

33. A further consequence of this is that as the car parking witnesses were available to give evidence and no satisfactory reason has been given for their not giving evidence at the trial there can be no question of an application to adduce further evidence pursuant to S.83V of the Criminal Procedure Ordinance having any prospect of success.

34. The 4th ground was that the learned trial Judge erred in law, when he characterised the case in his summing-up to the jury as one of pitting the evidence of the defence against the integrity of the police.

35. At p. 39 of the Judge's summing-up, the Judge directed the jury in these terms:

" Well, there is, it is a summary of some of the evidence. And the real question is all one of credibility, who you believe. Do you believe those police officers, or have the defendant and his witness, Mr LEE, created a doubt about which you find yourself saying that you cannot trust the integrity of the police?

If you are sure that the police were speaking the truth then you must decide what this case comes down to; does it show that the defendant was trafficking - whether or not Mr LEE was as well is quite a different matter. Whether Mr LEE was working for the defendant does not matter, was the defendant trafficking in those drugs that day? And if you have any doubt about that you must acquit him. If there is no doubt about that, only then do you find him guilty."

36. We do not consider this direction to be unfair. The essential point to bear in mind is that this was not just a question of the prosecution evidence being matched to the defence's evidence. What was involved was a specific allegation that the police officers were deliberately attempting to frame the Applicant. This was an attack upon the personal probity and integrity of the officers and the Judge was right to direct the jury in these terms.

37. The 5th ground is that the trial Judge failed to sufficiently comment upon the inconsistency between the contents of PW2's written statement and the evidence he gave in court.

38. There was no necessity for the Judge to comment upon the detailed inconsistencies such as there were. The essential issue was the matter referred to in the previous ground of appeal. That was whether the jury believed the evidence of the police officers in the circumstances outlined. There is nothing in this ground of appeal. This conviction is in no way unsafe or unsatisfactory and this application is dismissed.

Sentence:

39. This application for leave to appeal cannot be successful as the sentence was within the guidelines laid down in R v LAU Tak-ming [1990] 2HKLR. The sentence was a proper sentence and was in no way either manifestly excessive nor wrong in principle. The application is also dismissed.