R. v. SO FONG CHAP

IN THE COURT OF APPEAL

1995, No.150
(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 in this matter faced one count of trafficking in a dangerous drug. This was particularised as follows: that he on 3rd August 1994 at the junction of Sai Yeung Choi Street and Argyle Street, Mongkok, unlawfully trafficked in a dangerous drugs, namely 798.28 grammes of a mixture containing 259.40 grammes of salts of esters of morphine.

2. It was the prosecution evidence that at about 7:40 a.m. on that day the applicant was seen to go into the Hing Hoi Restaurant carrying a black handbag. It was the evidence that he came out 10 to 20 seconds later with a man named Liu Tung-cheong. That man was later the fourth prosecution witness at trial. The evidence was that the applicant hailed a taxi and that both men boarded it and that when the taxi reached Argyle Street the police stopped it and the applicant and the other men were found in the back of the taxi and the black handbag was to the left of the applicant.

3. It was the defence that the applicant was never carrying the bag and that at the police station, where both the men were taken, Liu had prevailed upon him to take the blame saying that he would give him $300,000 and would arrange for him to have legal representation. It was also said that Inspector Tam, the inspector in charge of the case, was aware of this deal between the applicant and Liu.

4. The applicant went on to say that when he became aware that Liu did not intend to keep his part of the deal he complained to the Magistrate and also the Independent Commission Against Corruption.

5. The lines at trial were clearly drawn. On one hand there was the police evidence which, if accepted, very clearly indicated guilt, and on the other hand there was the suggestion of a deal to which the police inspector was privy and which involved the applicant taking the blame when in fact the man Liu was wholly responsible for the drugs on that day.

6. The appeal as argued by Mr. Michell-Heggs falls into three parts. The argument is that, at the end of the day, for one or other of the reasons advanced, the conviction must be regarded as being unsafe and unsatisfactory.

7. It is first argued that there was failure properly to deal with inadmissible and prejudicial evidence which came from Inspector Tam. The principal objection was to an answer which came when Mr. Sceats, who was then appearing for the applicant, was cross-examining the Inspector Tam about the enquiries that had been made about Liu Tung-cheong:

"Q. What was the nature of the further enquiries you made?

A. First of all we hoped that we could crack down the drug syndicate the defendant trafficked the drugs for; secondly, was to see whether there was any other evidence to link Liu with the case. After six days, that was the 8th of September, we arrested the head of the defendant's drug syndicate."

It was complained that this matter was not properly dealt with by the judge. It was, it is true, not dealt with until the summing-up when the judge said:

"At this stage, perhaps, I should mention that in the course of answering Mr. Sceats' questions, Inspector Tam had mentioned certain information that he had received about the defendant during the enquiry made, in particular, the suggestion that the defendant's syndicate was cracked down, and that the head was arrested, that sort of things. I must remind you that those matters were in fact mentioned quite inadvertently, and they are not relevant at all to the issue that you have to decide. So please ignore those matters and cast those matters entirely out of your minds."

It is submitted that it was the duty of the trial judge either to have discharged the jury when the answer was given or at least, at that time, to have given the jury a warning in clear and uncertain terms that they must cast the matter entirely out of their minds.

8. When a matter such as this is raised in an appeal, we must approach it upon the basis that trial judge and counsel have a feel for the run of a case that this court cannot have. In the present case, counsel did not ask for the discharge of the jury, nor did he press for an immediate direction. The trial judge did not take either course but did, as I have indicated, give a firm direction in his summing-up. There was no suggestion from counsel at trial that the direction was inadequate or that the judge should have underlined the matter in any other way. In all of the circumstances we are satisfied that the trial judge who was seized of the feel of the trial cannot be criticised for taking the course he did. There is nothing in this ground of appeal.

9. Secondly it is argued that the record demonstrates a deliberate bias on the part of the police inspector. The argument which Mr. Michell-Heggs has advanced relies upon the questions and answers in cross-examination which preceded that exchange to which reference has just been made. It is his submission that the bias of the inspector was demonstrated so clearly that it required the judge's intervention and the discharge of the jury. We are satisfied that, whatever the reason for the police inspector giving the evidence he did, the trial judge, at the end of the day, dealt adequately with the matter when he instructed the jury as he did.

10. The third matter argued was that the summing-up was flawed and unfair for two reasons. The first was that there was a failure to deal in a balanced way with the evidence of Liu Tung-cheong and the second that there was a failure to deal properly with the early complaints made by the applicant to a magistrate and to the Independent Commission Against Corruption.

11. The direction which the judge gave in relation to Liu who was, of course, an important witness although one who was declared hostile, must be read in its entirety to be properly appreciated. It commences at p.44:

"As I have told you earlier, Mr. Liu Tung-cheong, Mr. Liu, the man who was arrested together with the defendant, was called by the prosecution as a prosecution witness. But the prosecution suggested that the evidence he gave in court did not support the prosecution's case, the prosecution was therefore allowed to treat him as a hostile witness - as I said a witness who had changed side - and the prosecution was allowed to cross-examine him to show that he had earlier made statements which are inconsistent with the evidence that he had given in court.

I must remind you, although you have been told about some of the contents of those earlier statements, but the contents of those earlier statements are not part of the evidence in this trial, except for those parts of them which Mr. Liu had told you are true. Those earlier statements of Mr. Liu were only put or put forward by the prosecution to throw doubt on the reliability of Mr. Liu's evidence in court. You have to decide whether you can accept any part of the evidence which he had given in court, and if so, what part of it.

On the other hand, if you think or decide that there is really a serious conflict between the evidence which he gave you in court and the content of the statements that he previously made, you may think that you should reject his evidence altogether and not rely upon anything he said in the witness-box.

If a witness said something in the witness-box, and then said something quite different in earlier statements, you may think that he is not the sort of witness whose evidence you can rely on at all. Nevertheless, his evidence is before you and you should take it into consideration if you are satisfied that his evidence is credible.

It is a matter for you, you have heard Mr. Sceats' comment about Mr. Liu and his evidence. And on the evidence you may feel that Mr. Liu was really quite a dubious character, quite apart from his previous convictions, and the fact that at the material time he was on bail in respect of a drug offence for which he is presently serving a twelve year imprisonment.

He in fact, you will remember, refused to answer some of the questions that were put to him when he was asked about the purpose of the meeting that he had with the defendant, and some questions about what happened on the day in question on the base that the answer to such questions may incriminate him.

He has also denied having seen this black handbag at all that day. You may feel or suspect that Mr. Liu may well be involved in the drugs in question despite his denial. But I must remind you, Mr. Sceats had mentioned a lot about this aspect. Mr. Liu is not on trial in respect of this charge, and he had not been given a chance to properly defend himself. And on the prosecution's case there is really no evidence against him.

In any event your task here is not to decide whether Mr. Liu is guilty or otherwise of this particular charge in question. Whether Mr. Liu is guilty of the offence in question or of some other offence is completely irrelevant. Your duty is to decide whether you are satisfied beyond a reasonable doubt that the charge against the defendant had been proved or not.

Nevertheless, you must consider all the evidence in deciding if the charge against the defendant had been proved to the required standard or not. And to that extent, you must take into consideration all the evidence that you have heard."

12. We do not agree that this was in any way an inadequate or improper direction. It was one which, in our view, must have left the jury in no doubt as to what was described as the main thrust of the defence case.

13. We turn then to the second matter argued under this third head and that was that there was a failure to deal with the early complaints to a magistrate and the I.C.A.C. It is certainly not true to say that they were not mentioned because they were. The trial judge said in his summing up:

"Mr. Liu did not keep the promise of engaging a lawyer for him to get bail for him, and therefore, he himself decided to disclose this matter to the magistrate. And he also mentioned about giving a statement to the I.C.A.C. about the matter, but he was told by the I.C.A.C. that the I.C.A.C. would not be involved with this particular case against him as they would only be dealing with the money aspect."

The judge brought this to the attention of the jury and that mention was, in our view, sufficient in all of the circumstances.

14. There is only one final matter which is a suggestion by Mr. Mitchell-Heggs that we should look at and give weight to a communication addressed to this court to which our attention was brought not by his counsel but by the applicant after his counsel had addressed us. It is a letter which purports to have been written by Liu Tung-cheong. It is not properly before the court and no proper endeavour has been made to place it properly before the court. We reject the suggestion that we can read and give weight to it.

15. The application for leave to appeal against conviction is refused.