THE QUEEN v. HO SAI KUEN (D1) AND ANOTHER

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal against conviction by the 3rd Defendant. He was convicted before Deputy Judge Rattigan and a jury on two counts of possession of rugs for unlawful trafficking. There were two other Defendants at the trial.  The 1st Defendant was convicted on Count 1. The 2nd Defendant, a young girl aged 17, was convicted on Count 2. The Applicant was convicted on Count 2 together with Miss Ho and also on Count 3.

2. The basic facts found by the jury are very simple. On the early morning of the 24th April Miss Ho and the Applicant were seen to go down from the Kam Bo Building, to MacDonald's Restaurant in Jordan Road. Miss Ho was carrying a plastic bag which was later found to contain three packets of drugs. That formed the basis for Count 2 on which she and the Applicant were found guilty. Inside the restaurant she gave by a somewhat secretive procedure, one of the packets of drugs to the 1st Defendant. That formed the basis of Count 1 on which he was found guilty.

3. As Miss Ho and the Applicant left the restaurant, Miss Ho was still carrying the plastic bag with the remaining drugs inside. They were intercepted by Customs Officer who found upon the Applicant two bunches of keys. The keys from one bunch fitted the door of a cubicle, to which he led the officers and inside the cubicle were found certain paraphernalia associated with the distribution of drugs and a small amount of drugs as well. The Applicant told the Customs Officers there that those drugs were for his own use. That is the basis of Count 3.

4. Miss Ho gave evidence to the effect that she was an innocent agent, carrying the bag and passing over the packet without knowing really what it was, at the instigation of the Applicant. The jury must have accepted her evidence to some extent because they convicted the Applicant on Count 2, but they rejected her protestation in other respects and found her guilty.  At one stage she had also lodged an application for appeal against her conviction, but through her counsel this morning she has abandoned her application and we have dismissed it.

5. Mr.Persaud, who appears on the appeal for the Applicant, has put forward five Grounds of Appeal. It might be convenient to deal with them in the order in which he did.  We start with No. 4:

"That the learned Judge was wrong to direct the jury that the 3rd Defendant possession keys to the cubicle in which a Mr. Szeto was found asleep did raise the presumption that the contents found in that cubicle were under the 3rd Defendant's possession and control."

(We should perhaps have mentioned in going briefly through the facts that when the Customs Officers went to the 3rd Defendant's cubicle in Kam Bo Building they found a Mr. Szeto sleeping there.) In support of this ground of appeal our attention has been drawn to very many passages in the summing-up and in the evidence. So far as they are part of the summing-up they appear to us quite unexceptionable. So far as they are evidence, apart from indicating perhaps some contradictions, they have no relevance to this ground of appeal.

6. Taken at its face value this ground of appeal has no merit Possession of the keys themselves raises the presumption when taken together with the drugs found in the premises. For that we need not. go further than Section 47(1)(d) of the. Dangerous Drugs Ordinance. If there is a suggestion that the real ground is that the presence of a sleeping man was in itself sufficient to rebut the presumption thus raised then we would respectfully not agree. His presence there was a fact for consideration, but it was well known to the jury and they do not seem to have been impressed by it. If there is any other point behind the ground then regretfully we do not understand what it is.

7. The 5th Ground of Appeal is -

"That the learned Judge erred in law that the previous decision in another case relating to similar facts should not influence the jury in reaching their decision in this case."

Counsel is somewhat reluctant to explain his purpose in drawing the attention of the jury to the case that he did, save that h concedes that it was only in reference to its decision on the facts thereof. In that circumstance no reference ought to have been made to the jury at all, and the Judge was quite right to advise the jury to ignore it.

The 1st Ground of Appeal is -

"That the learned Judge erred in law that the. 3rd Defendant had a case to answer and wrongfully refused to withdraw the case from the jury at the close of the case for the prosecution, by reason that the evidence adduced by the prosecution were only circumstantial to establish a presumption of joint possession of dangerous drugs."

To be fair to counsel he has not pressed this particular ground. In our view the evidence was not entirely circumstantial, but even had it been, that would not have been a sufficient ground to withdraw it from the jury.

The 2nd Ground of Appeal is -

"That the learned Judge erred in law by refusing to disempanel the jury after prejudicial evidence was given by the prosecution witnesses against the 3rd Defendant that he was known to the police and that he was in possession of dangerous drugs prior to the date of his arrest."

We have been referred to two incidents which occurred during the course of the trial. The first appears at pages 83 and A of the record. We find there, as the unintended result of questions put by Mr. Persaud in cross-examination, the possibility of a suggestion that the Defendant was already known to the police for matters other than those with which he was currently charged. There was at that stage no application made to Discharge the jury and the matter was dealt with there and then. by the Judge with an adequate direction to the jury.

8. The second incident starts from. page 156 of the record and takes its rise from another question put in cross-examination by Mr. Persaud which might perhaps have been better left to the jury. There followed a long and confusing exchange between Judge and counsel, during which one question was put by counsel for the Crown to the officer then giving evidence -

"You say, in answer to a question put by my learned friend, that the 3rd accused never had. possession, physical possession of the drugs, do you know, of your own personal knowledge gained by observation, whether or not he had physical possession at some other time?"

And the answer was -

"Yes, he did or he was."

9. It was an unfortunate question and answer, out in due course the Judge again give a warning to the jury. He told them in clear terms to ignore it. Again, in our view, that was an adequate and sufficient direction.

10. Subsequently an application was made to discharge the jury. We understand that it was based on the two incidents which we have just recounted. We have already indicated our view that the two' warnings were in themselves sufficient and we think the Judge was quite right to refuse the application.

11. That leaves us with only the 3rd Ground of Appeal which is -

"That the learned Judge erred in law by refusing to. allow Counsel for the 3rd Defendant to cross-examine the 2nd Defendant, upon her inconsistent cautioned  statement, after she made extremely adverse allegations against the 3rd Defendant."

12. During the course of Mr. Persaud's cross-examination of Miss Ho he came to a point where he wished to contradict the evidence she had just given by reference to a statement which she had made earlier to a Customs Officer and which statement included comments that would have been highly prejudicial to her own defence. Objections were taken by counsel for Miss Ho and eventually the propriety of the course envisaged was argued before the Judge.

13. The Judge was in a difficulty. How was he to reconcile the competing claims of two principles, each of which is well established. in its own right? On the one hand there was the right of Miss Ho not to be cross-examined upon an inculpatory statement which had not been tendered by the prosecution. On the other there was the right of the Applicant to attack the credibility of an adverse witness by examination as to a previous contradictory statement. After hearing argument, and further submissions the following morning, the Judge ruled that the questions should not be put to Miss Ho.

14. In Yu Tit Hoi⁽¹⁾, where a similar problem had arisen, this Court ruled that the former principle should take priority. Cross-examination upon the unadmitted statement should not be allowed and, any injustice that this might work to the aggrieved defendant could be avoided by discharging the jury at that stage and ordering a separate trial.

15. In R. v. Rowson⁽²⁾, a recent decision of the English Court of Appeal, a different view has been taken. In their Lordships' opinion such line of cross-examination is admissible, and if as a result evidence of an otherwise inadmissible previous statement be elicited-

"The judge should briefly explain the position to the jury, and having regard to the circumstances in which the previous statement was made, he would be able to discourage the jury from placing weight on that statement in considering the prosecution case against the defendant he made the statement."

16. In Rowson⁽²⁾ the circumstances in which the previous statement was made were clear and simple. The breach of the Judges Rules was more technical than oppressive. And the statement itself contained "matter which was material to the defence of the Rowsons".

17. In the present instance we do not know the circumstances in which the previous statement was made, although counsel below indicated he would strenuously resist its introduction. At the same time it can hardly be said that the particular matter mentioned to us before the adjournment was material to the 3rd Defendant's defence. The suggested contradiction is between on the one hand, "Now, Miss Ho, have you ever slept there in that cubicle yourself?", to which her answer was "No, as far as sleeping is concerned, no". And "you remember in that statement you told the Customs Officer that you slept there once".

18. The object of the cross-examination, so we understand, was to establish that Miss Ho was much better acquainted with the 3rd Defendant than she was willing to admit to the jury. We do not think that any difference there may be between the two quotations we have just given would have advanced that object much further.

19. We have been told since the adjournment that there are other matters in the statement which might perhaps have been of more significant help. Be these as they may, this Court is bound by its previous decision in Yu Tit Hoi⁽¹⁾ and the Judge was right to conclude that the questions should not be put.

20. We should perhaps mention a faint suggestion that the question was not fully argued in the earlier case With respect that suggestion is not tenable. Reference to the judgment shows clearly that the question was.

21. For these reasons the application for leave to appeal by the 3rd Defendant is refused, and we turn to questions of sentence.

22. Mr. Macrae, for the 2nd Defendant Miss Ho, who, it will be remembered, is a girl of only 17 years, makes one point alone, that the Judge failed to have regard to the duties imposed on him by Section 109A(1) of the Criminal Procedure Ordinance -

"No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, end shall take into account any information before the court to determine the character of such person and his physical and mental condition."

When passing the sentence the Judge said:

"Offences of this nature have got to be stopped. The police and customs officers are doing a good job in bringing these people to justice. It is my opinion that it is for the courts on conviction to back them up and impose stiff sentences which will be both a punishment and a deterrent.

 

        I have a measure of sympathy for this young girl who was used though knowingly to carry the drugs. But all these considerations must be weighed against the interest of the common good. Innocent people have got to be protected and they will, against the unscrupulous traffickers who care very little, if at all, about the consequences of their trade."

23. We would respectfully agree with the general sentiments there expressed It must also be that the Judge made some allowance for Miss Ho's age. However his comments give no indication that he had at any time directed his mind to the considerations set out in Section 109A, even though he did have before him a probation report and a report from the Drug Addiction Treatment Centre.

24. Had he given consideration as he should, and nevertheless imposed a term of 7 years' imprisonment, it is unlikely that this Court would have interferred. On the other hand, had he done so we think it more than probable that he would have come to the conclusion, as we do, that prison was not the only appropriate method of dealing with Miss Ho. We do not propose to go into details from either report It is sufficient to say that Miss Ho clearly has a weak and undeveloped character which can obviously benefit from a long period of rehabilitative training. As the Probation Officer said, she is "a vulnerable character in need of disciplinary intervention". A report called for earlier by this court shows she is suitable for. admission to a Training Centre.

25. For these reasons we grant leave to appeal, treat the hearing as such, allow the appeal and vary her sentence from one of 7 years' imprisonment to detention in a training centre.

26. The 3rd Defendant was sentenced to 10 years for the major offence and to one year consecutive for the very small amount of drugs that were found in his cubicle. Mr. Persaud has said everything that could be said on his behalf, but we find no reason to interfere. His application for leave to appeal against sentence is refused.

(1)    [1983] H.K.L.R. at p.7 .

(2)    [1985] 2 All E.R. 539 at 543