THE QUEEN v. NG YUK TONG

IN THE COURT OF APPEAL

1988, No. 139

(Criminal)

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J U D G M E N T

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Fuad, V.P. (giving judement of the Court):

1. The Applicant, Ng Yuk Tong, was on 7th March 1988 convicted in the High Court (His Honour Judge Daniell sitting, as a Deputy Judge of the High Court, and a jury) of the offence of possessing dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 9 years' Imprisonment. He now seeks leave to appeal against his conviction which was upon an unaminous verdict of the jury.

2. The case for the prosecution was based on the testimony of two police officers. They told the jury that on 23rd October 1987 they formed part of a group of policemen acting, on a tip off from an informer. They went to a restaurant which is almost opposite Mongkok Police Station and saw the Applicant standing in a booth near the entrance of the restaurant. He was holding a brief case in one hand and a carrier bag in the other.

3. The police officers went on to say that the Applicant was arrested when they confronted him and found what appeared to be drugs in the carrier bag. According to their evidence the Applicant said nothing when he was cautioned upon his arrest. He remained silent when cautioned again later at the police station.

4. It was common ground that the carrier bag contained what turned out to be 1,556 grammes of a mixture containing 85.56 grammes of salts of esters of morphine.

5. The Applicant elected to give evidence in his defence. What he told the jury was that he had gone to the restaurant with a man called Ah Shing. He was hoping to persuade Ah Shing, to buy some paper products manufactured by the company which employed him as a salesman. Indeed, in the brief case the Applicant was carrying were found relevant catalogues and price lists. As soon as they reached the restaurant, Ah Shing had said he wanted to make a phone call and, handing over the carrier bag had asked him to take it to where they would be sitting. He ha done what he was asked to do and had put the carrier bag on the seat opposite to the one he had sat down on, in one of the booths of the restaurant. He had, been approached by the Police, after he had been sitting there for about five minutes. He had told them at once that the bag was not his but had not told them that it belonged to Ah Shing.

6. By his grounds of appeal, the Applicant complains that the judge made repeated references to the fact that he had remained silent when cautioned and that these references amounted to adverse comments. It is of Course clear, as exemplified in R. v. Davis (1959) 43 Cr App R 215, that comment by a Judge upon an accused person's silence when arrested and cautioned which is tantamount to inviting the jury to form an adverse view of the accused's case from the fact of his silence, is a misdirection. However, this is not what happened here. The judge was very careful in directing the jury that no adverse inferences were to be drawn against the Applicant in such circumstances. This is what the judge said:

"It is the Crown's case that the second witness that is Sergeant 2054 - had cautioned the defendant, and he told you what he meant by a caution - in fact he read the caution out to you and he said, that the defendant had made no reply. Now do bear this in mind that the very words of a caution serve to put a suspect on his guard, so in those circumstances it should not be held against a defendant if, after hearing a caution, he decides to hold his tongue and remain silent. Later in the police station when the caution was put to him, the witnesses alleged that he remained silent. This, you may think, as I have said, is understandable if indeed the defendant had been cautioned."

7. In view of this entirely fair and proper direction, the judge's treatment of the evidence on this Point cannot be faulted. As we have seen, the Applicant's case was that he had protested at once when arrested that the carrier bag was not his, while the police officers swore that he had said nothing. The judge was bound to deal with this conflict of evidence and in doing so he left it to the jury to decide where the truth lay.

8. The next attack on the summing up is that the judge had, in effect, invited the jury "to dismiss or withdraw the issue or issues concerning, the informer and the police officer receiving, the information from the informer." In dealing with submissions made by Counsel for the Applicant about the dangers of the police relying on information given by informers in return for payment, the judge invited the jury to use their commonsense, saying that police forces all over the world used informers, many of whom were criminals, and who were paid for their information (as happened in this case). He pointed out that the prosecution were not relying on the evidence of the informer who was not a witness.

9. The judge went on to remind the jury that Counsel for the Applicant had pointed out that the police officer who had received information from the informer which led to the Applicant's arrest was on holiday and so he had been unable to call him as a witness. The judge continued:

"    Well, members of the jury it is a matter for you but you were told in evidence that this officer had indeed received the information from the Informer. In fact that I do not think is disputed. You may think though that even had this officer been available he would have been able to add very little, if anything, to the case,  either for the Crown or for the defendant.

    You see, even assuming that the officer could say that the informer was a criminal, what possible assistance could that be to the defendant? Most informers are. The vital issue, you may think, is not what was said over the telephone by the informer to the police officer, but just what did occur in that restaurant when this police party rushed in."

10. We can discern nothing wrong with the judge's comments upon the submissions which had been made by Counsel, on this point. We do not accept the submission that the judge was suggesting to the jury that the Applicant's defence was not credible when he referred to the informer.

11. We also draw attention to the provisions of section 57(1) of the Dangerous Drugs Ordinance, Cap134, designed to protect informers There is a statutory prohibition against information for an offence under the Ordinance being admitted in evidence in any proceeding, civil or criminal, and the subsection goes on to provide that a witness in any proceedings cannot be obliged to disclose the name or address of any informer who has given information to the police with respect to an offence under the Ordinance or of any person who had assisted the police in any way with respect to any such offence. Nor is a witness obliged, under the subsection, to answer any question if the answer thereto would lead, or would tend to lead, to the discovery of the name or address of such informer or person, if, in either case, such informer or person is not himself a witness in such proceeding. In the circumstances of this case it is difficult to conceive what assistance the jury would have derived had the absent police officer been able to give evidence; the judge's comments on the matter were fully justified.

12. It is then said on behalf of the Applicant that the judge had, in effect "invited the jury to dismiss or withdraw the issue of the police having made no finger print test on the plastic bag in question." The judge reminded the jury that the contents of the bag were not tested For finger prints although one of the police officers had testified that the normal practice would have been to carry out such a test. We have no doubt that the judge dealt with this issue perfectly fairly and, as the following passage shows, he did not withdraw the issue from the jury nor Could the jury have been led to believe that they should not consider the point:

"Now I do not know what you wll make of this but it is a matter about which you may or may not think is of significance. You may think it would have been desirable for finger print testing to have been carried out hut on the other hand, it is the Crown's evidence, it is the evidence of both the officers that the defendant was holding the bag in his hands at the time of his arrest. In these circumstances, you may think that the failure to test for finger prints was understandable but this is a matter which is of course for you to ponder on.

13. Nor do we find that any valid criticism can be made of the judge's comment that "the case is indeed very simple and effectively stands or falls on the view you take of the evidence of these two police officers". The judge made this valid comment at the conclusion of the passage in which he dealt with information given by paid informers and it must not be read out of context.

14. The next criticisms of the summing up are couched in this way: that the judge had wrongfully indicated to the jury that there could be no question of there being any mistake on the part of the police officers in their seeing the Applicant holding the bag in question in his hand, and had wrongfully invited the jury to come to the view that, if the Applicant were an innocent man, the only possible inference to draw was that the officers had wickedly conspired together to lie and had concocted a case against an innocent man.

15. It is well held (see, for example, R. v. Culbertson (1970) 54 Cr.App.R. 310) that it is improper for a summing up to contain any words indicating that an acquittal of the defendant will or may ruin a police witness who has given evidence against him, but what the judge said in the passage about which complaint is made fell far short of any such indication. And we think that the judge was fully justified in emphasizing to the jury in the words that he used, that the police officers were either telling the truth or lying and that there was no room for mistake in their testimony. When the relevant passage is read as a whole, it readily appears that the judge was giving proper directions, leaving the matter fairly to the jury. The passage is as follows:

"You see, the evidence of these two officers is such, you may think, that there can be no question of there being any mistake on their part on this matter Each was emphatic: when repeatedly questioned, each said that the defendant did hold the bag as he stood in that booth Now do you think, members of the jury, that these officers have wickedly conspired together to lie about this and thereby concoct a case against an innocent man? Because if you do think that they have done this or even may have been lying on this issue, then that would be an extremely serious matter and it of course would spell the end of the Crown's case. Or do you find these witnesses to be truthful and reliable? You will have to make up your minds about this. You have heard and seen all these witnesses, in the case, and all the evidence is before you. It is a matter entirely for you. If you think, as I have said, if you think that these officers were not being frank with you and that you cannot rely on their evidence, then that would, as I say, be the end of the Crown's case, and you would have to acquit the defendant."

16. As to the next ground of appeal, the suggestion which is made that the judge had misrepresented the Applicant's case to the jury in one particular is quite unsustainable.

17. Finally complaint is made that the judge descended in to the arena in "cross-examining the Defendant, which cross-examination also had the effect of drawing an adverse inference to the Defendant's remaining silent under caution." The judge's questions were these:

"Court: Well, there is one point I don't quite understand. You told the police the bag wasn't yours, but why couldn't you say, It belongs to the man who had just left the restaurant Mr SHING'?

A:     It was because they had already said that they wanted to arrest me.

Court: Well, isn't that more reasonable to say that 'It doesn't belong to me, that belongs to Mr SHING'?

A:     No idea."

18. We would merely say that there was nothing whatever improper in these questions in the context in which they were asked.

19. We have reached the conclusion that the summing up as a whole was eminently fair. It was also very clear and helpful to the jury. The application is wholly without merit and must be refused.