R. v. HUI CHUEN KIT

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J U D G M E N T

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Litton, J.A.:

1. This is the judgment of the court.

2. Before I deal with the grounds of appeal which the applicant has lodged on this appeal, I first dispose of a matter he has raised in court today concerning the transcript of the proceedings at trial. It is not the system of these courts to provide a full transcript in every appeal. Procedurally what happens is that certain parts of the transcript will be ordered to be supplied as considered relevant to the appeal by the Vice-President of this division of the Court of Appeal, based upon the matters which the appellant has raised. The appellant before us today has asked to be supplied with a full transcript of the proceedings in the court below. This is, he says, in order for him to see whether he can raise other matters additional to those he has already raised in his various grounds of appeal. This application we reject as we propose to deal with the grounds of appeal as they stand.

3. These grounds are by themselves very substantial. In order to deal with them, I give a brief history of this matter.

4. The applicant was convicted on 2nd December 1991 upon verdicts of the jury of two counts. One of simple possession of heroin and the other of possession for the purposes of trafficking.

5. Essentially, count 1 was to this effect: That on 24th May 1989 at the main hall of Kwai Fong MTR Station the defendant had in his possession a mixture weighing 13.66 grammes which contained 13.04 grammes of salts of esters of morphine, that is to say No. 4 heroin, and it is alleged he had it for the purpose of unlawful trafficking. The jury found the applicant not guilty of possession for the purpose of trafficking but found him guilty of unlawful possession: a fact which the applicant himself. has never disputed.

6. The second count was that on 25th May 1989 at the roof top of No.42 Yim Tin Kok Village, Tsing Yi Island, he had in his possession a mixture weighing 1312.7 grammes which contained 1218.75 grammes of salts of esters of morphine; i.e. No. 4 heroin, for the purpose of unlawful trafficking.

7. The appeal before us is confined to count 2, the applicant having throughout admitted that he was in unlawful possession in relation to the drugs referred to in count 1.

8. What happened essentially was this. At about 10 p.m. on the night of 24th May 1989 the applican was stopped and searched at Kwai Fong MTR Station. Suspected drugs were found on him inside a Marlboro cigarette packet. He was taken to Kwai Chung Police Station to await the arrival of officers from the Narcotics Bureau. The applicant had on him the sum of about S11,700. At about 11 p.m. that night officers from the Narcotics Bureau arrived and they took him, together with two others, WONG Siu-lung and Miss CHOW Kwai-fan, to the address at Tsing Yi. This is a 3-storey building with a rooftop. There were 6 units in the building, all with access to the rooftop. Inspector Chan was in charge of the party of police officers from the Narcotics Bureau. At about 1.30 a.m. the next morning, 25th May 1989, the applicant, Wong and Miss Chow together with the police arrived at the address. The police conducted a search and found (i) four blocks of suspected No. 4 heroin inside a foam rubber box and (ii) what they suspected was No. 3 heroin in granular form inside a detergent cardboard box behind a washing machine. At the time the applicant said nothing. Then a detective police constable searched the defendant's room and various things were found including a steelyard, plastic tube and scales. At that flat, at about 4.10 a.m., the detective police constable took a cautioned statement from the applicant; having indicated he understood the caution he said: "All the dangerous drugs at the rooftop are mine and have nothing to do with the other persons." Later on that morning the defendant was taken away from the premises and eventually was brought to the Narcotics Bureau at Wan Chai, having first gone to Tsing Yi to have an entry recorded in the police station there.

9. The party got to Wan Chai at about 9.25 a.m. whereupon the officers from the Narcotics Bureau went off duty, having been on duty for nearly 24 hours. Later on that day, at about 6.15 p.m., detective police constable Ng who had taken the first statement cautioned the applicant again, seeking clarification of what he had earlier said; pursuant to that the applicant made what amounted to a total confession of the crime in count 2, with full particulars of the serious crime of possession of the heroin found at the rooftop of Tsing Yi for the purpose of trafficking.

10. At the trial before the jury the defences which the applicant put up were, in effect, as follows. (1) He never denied that he was in possession of the drugs in the Marlboro cigarette packet found on him at Kwai Fong MTR Station that night; that was for his own consumption. But as regards the very large quantities of heroin, amounting to about 1.312 kilos, he was wholly innocent. Those had nothing to do with him. (2) He said he had never voluntarily admitted possession for the purpose of trafficking in relation to those very large quantities of heroin found on the rooftop. The defence put forward was to this effect. Being in fact "experienced" in matters relating to dangerous drugs, he knew as a fact that if a person were caught in possession of such large quantities he was likely to face a sentence of 15 to 20 years imprisonment. With such knowledge it was most unlikely he could ever have voluntarily made the confession he is alleged to have made. He further said that by that time, in the late afternoon of 25th May, he was suffering from severe withdrawal symptoms, himself being a drug addict, and anything he had said was said under the influence of severe withdrawal symptoms. (3) He intended to and did admit to being in possession of an unknown quantity of drugs in the premises because he knew that the police had found drugs there. This was to protect his friend who he thought might have been the guilty person. He was prepared to take the blame himself because he had been caught with heroin anyway at the MTR station earlier that night.

11. These were the issues he raised in the court below and they were comprehensively dealt with by the judge in his summing up to the jury.

12. The appellant has raised in his various written notices of grounds of appeal, a large number of grounds, some of which are not wholly intelligible, but the ones which are comprehensible can be summarised as follows.

13. One, he impeaches the conduct of his case in the court below by counsel then representing him. The impeachment proceeds on two bases:

(i) Failure in cross-examining the prosecution witnesses to point out contradictions in their testimony; in particular contradictions between what they had said at a previous trial and what they said at the trial at which the applicant was convicted.

(ii) Defence counsel had wrongly failed to object when the applicant was in the witness-box and was being unfairly cross-examined by the prosecutor.

The conduct of the defence of a defendant in a trial before the jury is a matter of judgment on the part of defence counsel; it would have to be a fairly extreme case before such conduct could be regarded as material irregularity, causing this court to intervene. The conduct complained of in this case comes no where near that stage. This ground of appeal fails.

14. Two: the second ground of appeal relates to evidence adduced at trial concerning the applicant's previous convictions for drug-related offences.

15. The law is clear. Normally evidence of the bad character of a defendant at trial is not admissible in proof of his guilt. But there are exceptions. Here in fact there were two separate justifications for adducing evidence of the applicant's previous convictions.

    (1) It was in the nature of his defence to impute the character of prosecution witnesses and this had put his own character in issue.

    (2) In fact it was a necessary part of his own defence to show to the jury that he, being "experienced", was knowledgable as to the normal tariff for sentences for serious drug offences; the amount of drugs involved in this case being so great he could not, he says, have admitted to the police voluntarily his possession of the quantities found on the rooftop. It was for these reasons that evidence of his previous convictions was adduced. We see no reason why this court should now interfere on this score.

16. Three: the question of his suffering from withdrawal symptoms by the late afternoon of 29th May 1989. It was his case that he had told the police that he was suffering from withdrawal symptoms. He says he told the police he was a drug addict. The police denied this was said. Obviously if the jury had believed that be was affected by drug deprivation in the way he claimed, they might well have been inclined to attach less weight to his confession than they did. But this issue was very fully put to the jury by the judge. We see no grounds to interfere on this score.

17. Four: The fourth ground of appeal is a particularly worrying one. When Inspector Chan was recalled as a witness for further cross-examination he said in his evidence that the defendant had been under police surveillance, together with others, prior to 24th May 1989. Inspector Chan himself was not a member of the surveillance team. This was simply something that Inspector Chan had been told. He went on to say that he understood that the applicant was the prime target. This was extremely damaging, if true, and plainly Inspector Chan's understanding of the matter was not evidence; this matter should never have been put before the jury. However, the judge was plainly aware of this. He dealt with this very fully. In clear terms he directed the jury to disregard this and he amplified the direction by explaining to them why they should do so. For these reasons we do not interfere with the verdict on this ground.

18. Five : A new ground of appeal was raised by the applicant in his latest grounds. of appeal. It is this. He challenges the accuracy of the judge's summing up of what he had said in his evidence-in-chief. This was at p.44F of the summing up: that is, whether he, the applicant, had ever said in his evidence-in-chief that a Madam Ng Po-chu had, in the early hours of 25th May, whilst the police party were at the flat, ever been taken into the kitchen. The point is relevant to the applicant's conviction because Madam Ng was called as a defence witness, and the effect of her evidence was that the applicant had taken the blame on himself in order to protect her and her husband. Obviously, if Madam Ng was in truth in the kitchen, she could not have heard what the applicant alleges he said to Inspector Chan in the living room. So for the Judge to tell the jury that is what the applicant had said in-chief about Madam Ng would have been a serious misdirection, if the applicant in fact had never said that.

19. We do not have a transcript of what the applicant said in-chief. We note, however, that almost immediately after the passage in the summing up complained of, the judge told the jury this: "Three women were in the living-room while the defendant's cautioned statement exhibited P-2 was being taken." One of these women must have been Madam Ng. So in effect what the judge told the jury as a fact was that Madam Ng was present in the living-room when the cautioned statement exhibit P-2 was being taken. In these circumstances even assuming that the judge had in the earlier passage misrepresented the effect of the applicant's evidence-in-chief, it was not of a nature that would cause us to interfere. Having told the jury in terms that the three women were present in the living-room when that statement was taken any error previously made would have been substantially corrected.

20. For these reasons the application for leave to appeal is dismissed.