LAW CHUN KWONG and Another v. R.

IN THE COURT OF APPEAL

1996, No. 49
(Criminal)

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J U D G M E N T

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

1. The two applicants apply for leave to appeal against conviction. The first applicant also applies for leave to appeal against sentence. They faced three counts, namely:-

(1) On 18th February, 1995, trafficking in a dangerous drug, namely 1,032.19 grammes of a mixture containing 14.54 grammes of heroin hydrochloride at the lift lobby of the 9th floor, Block A, Tsuen Tak Garden, Tsuen Wan in the New Territories of Hong Kong.

(2) On the same day, trafficking in a dangerous drug, namely 148.43 grammes of a mixture containing 20.16 grammes of heroin hydrochloride within Flat H, 9th floor, Block A, Tsuen Tak Garden, Tsuen Wan in the New Territories of Hong Kong.

(3) On or before 18th February, 1995, manufacturing a dangerous drug, namely heroin hydrochloride in the premises set out in the second count.

The first applicant was found by the Judge to have no case to answer on the second and third counts. The jury convicted him on the first count by a majority verdict of five to two. He was sentenced to imprisonment for a term of six years. The second applicant entered a plea of guilty to the second count. The jury found him guilty of the first count by a majority verdict of five to two and of the third count unanimously.

2. The evidence of the prosecution was as follows. Acting on information received the police had laid an ambush outside the premises mentioned in the second and third counts. One of the policemen, Sergeant 13833, was posted outside the building. The rest, including Sergeant 21682, went up to the ninth floor where they kept watch on the front door of Flat H through a window in the door between the staircase and the lift lobby. At about 2.15a.m. on 18th February, 1995, they saw the applicants emerge from Flat H into the lift lobby. The applicants were stopped and searched. The first applicant was carrying a bag within which there was another bag, black with a silver and yellow pattern. Inside the latter there were three blocks of the mixture particularised in the first count. They were wrapped in plastic and tape. On two opposite sides of the wrapping on one of the blocks there was a fingerprint of the first applicant. The keys to the first applicant's car were also found upon him. The second applicant was the lessee of the premises and had taken possession of them in an unfurnished state on 1st January, 1995. The keys to the premises were found on him.

3. Cautioned statements were taken from both applicants and were admitted into evidence. The first applicant said nothing on being cautioned but on being confronted with the three blocks he said,

"Ah Sir, I have nothing to do with the white powder. I just help him to take (it) out."

Upon being asked who it was that he had helped to take it out he said,

"Ah Sir, that's the Ah Keung that your foki is now arresting."

He was asked from where he had taken it out and he said,

"That's from Room H here. Ah Sir, please don't ask me any more questions. I do not want to say anything now."

Meanwhile, the second applicant was being cautioned by another officer. He said,

"This bag of 'white powder' is not mine. It was Ah Kwong who carried (it) out."

He was asked who 'Ah Kwong' was. He pointed at the first applicant and said,

"This is the person."

When he was asked what he meant by saying that it was Ah Kwong who had carried it out he said,

"Ah Kwong himself took (it) out from Room H of this floor, that he lives in."

'White powder' in the Cantonese vernacular is well known as meaning heroin.

4. With the keys taken from the second applicant the police entered Flat H. There they found the mixture particularised in the second count. They also found equipment appropriate for both the manufacturing and the trafficking of dangerous drugs. There were additives consistent with those found in the three blocks. Some of the equipment bore traces of the additives and the heroin hydrochloride. There was a metal mould and a jack with which the blocks could have been compacted. There were black bags with a silver and yellow pattern such as that in which the three blocks had been found. There were plastic wrappings and tapes such as those in which the three blocks had been wrapped. The palm print of the second applicant was found on the bowl of a mixer. There were traces of heroin hydrochloride in an air-conditioning filter and on two curtains. The discovery of these objects gave rise to the third count.

5. The first applicant gave evidence. The second applicant did not but was, of course, entitled to the benefit of the first applicant's case so far as that case was common between them. The cautioned statements were adopted by neither and so were evidence only against the maker of each. The first applicant called three witnesses in support of his version of the events. His version was that he and the second applicant had not been arrested in the building at all. They had been arrested in the streets of Mongkok where he had parked his car. They had been taken to a number of places before they were taken to the premises. When they were taken to the premises the mixture the subject of the first count was planted upon him. His fingerprints were forcibly applied to one of the blocks. It was absurd that he should have parked his car in Mongkok so that he and the second applicant should have to find other means to travel to Tsuen Wan. In fact the car had attracted a parking ticket in Mongkok. Two of the witnesses he called were Law and Chan. They gave evidence that on the night of 17th February, 1995, they had met the applicants at the Golden Harvest Restaurant and had then travelled with them in the first applicant's car to the Broadway Cinema in Mongkok where they had been dropped off at about 11.30p.m. It was Law and Chan who eventually retrieved the car after the arrest of the applicants.

6. The third witness called by the first applicant was a caretaker, described by the Judge as a more impartial witness, who was on duty at the relevant time at Block A. It was not his regular post and so he could not recognize the residents. He was on duty from 6.00p.m. on the evening of 17th February, 1995, until 6.00a.m. the next morning. At about 10.00p.m. a group of people emerged from the lifts and left the building. Among them were three men who he thought might be friends or guests of the others. He had not noticed them come in. At about 1.00a.m. the next morning these three men returned. He asked the first to come in to register, presumably in a visitor's book. The man was clearly Sergeant 21682. He said he was a policeman and,

"I am working here. You sit there and I would sit at your seat."

The place where the caretaker was told to sit was a cubicle used for changing clothes from which there was no view of the lobby. He sat there for about 15 minutes until the policeman said,

"Uncle, you can come out now. We have finished. You can resume your work."

As soon as he had come into the premises the policeman had asked him whether the video security system was attached to a recorder and was given a negative reply. After the caretaker had been told he could come out of the cubicle he was told not to say anything if something happened.

7. Another witness called, it is not clear by whom, was a solicitor's clerk whose evidence militated against that of the first applicant as to where the arrest took place. When the first applicant was before the Magistrate he did say that he had been arrested in Mongkok. However, he subsequently applied for bail and instructed solicitors for that purpose. He gave instructions to the solicitor's clerk on the basis of which an affidavit was prepared. The solicitor's clerk gave evidence that he was never told of any arrest in Mongkok. He had been instructed that the arrest occurred in the lift lobby outside Flat H and the affidavit had been prepared accordingly and the first applicant had sworn it. The first applicant said he had never given such instructions and that the relevant paragraph in the affidavit had never been interpreted to him.

8. It is accepted that questions of fact were for the jury to decide but the complaint is that the Judge did not adequately put the defence or the evidence in support thereof to the jury. The Judge did put the defence to the jury in broad terms although parts of it were lacking in some detail. He told the jury that the defence was that the drugs found on the first applicant and in Flat H had been planted by the police. He traversed with them the first applicant's evidence as to the place where the applicants had been arrested and where they had been taken and commented that the timing held together quite well. So far as the first applicant's car is concerned there were some omissions in the summing-up. First, the first applicant had the keys upon him when he was arrested. This may be neutral as there appears to have been no evidence as to whether there was a spare set. Secondly, however, the first applicant gave a further cautioned statement on 19th February, 1995. It is quite clear from that statement that he was saying that he had lent the car to a friend two days previously and that the friend was to contact him to return it later. At the time of the making of the statement the car was said to be still with the friend. While it is true that the Judge did not deal with these details they could hardly have assisted the applicants. The statement gave the lie to the evidence of Law and Chan, the argument that they would not have left the car in Mongkok and travelled by other means to Tsuen Wan and the evidence that the applicants had been arrested in Mongkok after the first applicant had just parked his car there. It remains to consider the evidence of the caretaker.

9. Sergeant 21682 admitted that he had asked the caretaker whether the video surveillance was connected to a recording system. He was neither asked nor did he say why he did so. It is common ground that he was given a negative answer. He denied that the caretaker was in the cubicle for 15 minutes. He said it was for about one and a half minutes. He denied that he told the caretaker to go into the cubicle. He said that the caretaker had looked frightened and even asked if he should stay away for a while. The caretaker went into the cubicle of his own volition. The Sergeant said that he had gone down to the ground floor to speak to Sergeant 13833 because their means of communication with him from the ninth floor were not good. It was never put to him that he told the caretaker not to say anything if something should happen. There was an odd piece of evidence which was common ground, namely that the Sergeant had sat in the caretaker's chair after the caretaker had gone into the cubicle. The Sergeant said that there was a good reason for his doing so but the only reason he gave, in re-examination, was that he was tired.

10. The Judge commented that the evidence of the Sergeant and of the caretaker was curiously similar. Of the Sergeant's evidence, he said,

"He said that during the time he was on watch he went down, spoke to the watchman, popped over and sat in his seat (the watchman being then sitting inside his little cubicle - the room, he says, is a changing room); he said that it was alright if he could come out, asked if there was a tape-recorder hooked into the surveillance television camera and then went on his way.

The only significant difference between that evidence and the evidence of the watchman is that the watchman says that he told him to go into that room and said something could happen and he was not to talk about it. I leave that evidence for you. It is your task, it's your job to assess all of that what you believe to be true."

The complaint is that there were in fact radical and important differences between the evidence of the two witnesses and that the review of the caretaker's evidence was both cursory and inaccurate. That review was indeed brief. The Judge said,

"... you must look at the evidence of the watchman who says that he was on duty in keeping watch and he didn't see anyone bring in equipment of the bulk and nature that you have seen in the Court. Now the argument against that of course is that he was tucked away in his little room with the policeman sitting on the seat when all this was done. It's a matter for you that you might think, given the inference to be drawn from the air-conditioning filter and the curtains, that in fact manufacturing did take place in the premises with the equipment in the premises."

The inference referred to was that arising from the traces of heroin hydrochloride in the filter and on the curtains. Those traces must have been air-borne so that manufacture must have taken place in the premises. The point was also made for the first applicant that he was not concerned with the premises and therefore was not concerned with how the equipment and the drugs had found their way there.

11. In Lawrence (1982) A.C. 510 it was laid down that the Judge is to give a

"... succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences the jury are entitled to draw ...."

Other decided authorities deal with the importance of putting the defence case in various situations. It is unnecessary to recite them, for the adequacy of a summing-up must be judged by the demands in any given case. Although the Judge in the present case did deal only very briefly with the evidence of the Sergeant and the caretaker he did put the salient points to them. The significant differences between the two witnesses were put. The only truly significant matter that he omitted was the length of time that the caretaker is alleged to have been in the cubicle and it would have been better if specific mention had been made of this. However, in all of the circumstances this omission is not of such importance as to vitiate the convictions.

12. The next complaint, put briefly, is that the Judge failed to give an adequate direction as to how the jury should approach the defence evidence. The Judge warned the jury that they should not compare the evidence of the first applicant with that of the prosecution witnesses to see which they preferred. He told them that the burden of proof lay upon the prosecution throughout the trial. He told them that the standard was proof beyond reasonable doubt. He explained that direction by saying that the jury must be satisfied so that they were sure before they could convict, a direction he repeated a number of times. On two occasions he mentioned that the applicants were not defendants, for they had no obligation to defend themselves. They were accused persons and it was for the prosecution to make good the accusations. The jury retired at 12.10p.m. At 5.35p.m. they were brought back to Court apparently because the Judge wanted to know how much longer they thought they might be. The jury handed two notes to the Judge, the first of which said,

"We have not come into consent about the place of arrest."

The second said,

"The verdict is four to three."

At 9.33p.m. they were brought back again and it was arranged that they should be sequestered in the Court building overnight.

13. At 11.35a.m. the next morning the jury asked for further directions. They sent a note to the Judge which read,

"(1) We have already reached a verdict on the third count.

(2) We have great difficulties in reaching a verdict on the first count regardless of the efforts we spent on discussion until 2.30a.m. last night and this morning. We need your clarification for the following questions:-

(3)     (i)What is doubtful evidence?

Should it be in favour of the accused in principle?

(ii) How to apply the principle of 3(i) regarding doubtful evidence provided by the prosecution side?

(iii) How to apply the principle of 3(i) regarding doubtful evidence provided by the defendant side?

Please repeat what was stated in your summing-up speech in respect of doubtful evidence should be in favour of the accused."

Clearly, the jury had doubts about some of the evidence, from whichever side it may have come, in relation to the first count.

14. In the absence of the jury the Judge informed Counsel that subject to their comments he intended to direct the jury as follows,

"(i) before you can rely on a piece of evidence, you must be sure that it is true; (ii) you must look at all the evidence from all sources and decide from that what you can be sure is true. Therefore, if you have doubts about a piece of evidence from any source, you must reject it; (iii) from the evidence you are sure is true, you draw such inferences as are reasonable; if there is more than one reasonable inference, you draw the inference in favour of the accused; (iv) you take the evidence you are sure is true and the inferences you have reasonably and properly drawn and see if upon that evidence and those inferences the prosecution has made you sure of the guilt of the accused. If it has made you sure, you convict; if you are anything less than sure, you acquit."

Understandably, this direction caused Mr Mullick, who appeared for the first applicant both here and below, some concern. On the face of these proposed directions, especially that in (i), the jury were going to be directed that before they could rely upon the evidence of and called by the first applicant they had to be sure that it was true. That would clearly be wrong. Eventually, Mr Mullick persuaded the Judge to his point of view and the Judge inserted a paragraph between (iii) and (iv) which read,

"... the accused have to prove nothing. When you consider the evidence given by the 1st accused, you must do so bearing in mind that the prosecution must prove so that you are sure that the facts alleged by the 1st accused are not true before you can convict."

This direction perhaps goes too far in favour of the first applicant.

15. There can be no doubt but that this part of the summing-up could have been better and more clearly phrased. However, a summing-up is not be construed too strictly. It is to be looked at overall and, when that is done, in the present case the jury could have been left in no doubt that the burden was on the prosecution to prove the guilt of both applicants on the whole of the evidence. As already stated, perhaps the Judge went too far in his additional directions since the jury was told that in considering the whole of the evidence they had to be sure that the prosecution had proved that the facts alleged by the first applicant were untrue.

16. The next ground of complaint was that the Judge had entered into speculation upon matters never suggested by the applicants. The speculation alleged was contained in a comment by the Judge that it was unlikely that the drugs with which the applicants were said to have been framed came from anywhere other than Flat H. Another piece of speculation alleged is that the Judge said that it was argued that the equipment had been taken into Flat H while the caretaker was tucked away in the cubicle. It is to be remembered that by the time the Judge summed up to the jury the first applicant had already been found to have no case to answer on the second and third counts. The second applicant had already pleaded guilty to the second count. In these circumstances the Judge's comments were referable to the accusation of frame up including the place of arrest, to the fact that the two applicants were jointly charged in the first count and to the question of the second applicant's guilt or innocence of the third count. However that may be, a Judge is perfectly entitled to make his own views known to the jury provided that it amounts only to an expression of his own views and provided that the jury is told that they are free to ignore any of them. This he did and there is no substance to the complaint.

17. The last common argument is one involving the retirement of the jury and their deliberations. When they were asked by the Judge to come back to Court at 9.34p.m. he asked them what prospects they had of reaching a decision. He told them they could take as much time as they wished and,

"... we have accommodation in this building where you can stay overnight and continue your deliberations."

The foreman said there was some prospect of reaching a verdict and the Judge asked if they would like to continue to deliberate, expressing the view that it would be better if they got some sleep and continued fresh on the morrow. The Foreman consulted the other members of the jury and announced that they would continue the next day. There was then a discussion as to when the Court should resume the next day and the Judge said,

"If the jury are going to have their sleep now and start deliberating again in the morning, they might have a worthwhile period before they came back."

Counsel agreed to the Court resuming at 11.00 the next morning and the Judge said to the jury,

"Members of the jury, take what time you need in the morning. If I have not heard from you by 11 o'clock, I will bring you back in and inquire again as to whether you are able to reach a decision in this matter. 11 o'clock if not before."

Three things are abundantly clear from this. First, the Judge never instructed the jury to cease their deliberations until the next morning. Secondly, he did not appoint a time when they should resume their deliberations in the morning. Thirdly, he did not instruct them not to discuss the case amongst themselves unless they were all present together. It is apparent from the paragraph (1) of the note they sent to the Judge at 11.35a.m. the next morning that they had continued their deliberations until 2.30a.m.

18. Our attention was drawn to two decisions. The first was the local case of R. v. Tang Chi Pang (1986) H.K.L.R. 1122. In that case the summing-up had commenced at 9.40a.m. and they retired at 3.50p.m. the same day. The verdict was brought in at 4.37a.m. the next morning. They had deliberated for over 12 hours. One of the grounds of appeal was that the verdict was unsafe and unsatisfactory because the jury must have been too tired to return proper verdicts. There was no evidence that the jury were in fact tired and the ground of appeal did not succeed. The Court took the opportunity of giving guidelines which should avoid future arguments of that sort. Those directions are not presently relevant. The second decision was Mohan Tharakan (1995) 2 Cr. App. R. 368 in the Court of Appeal in England. There the jury had had to be accommodated in a hotel overnight. They were told to discontinue their deliberations but it was clear that they had continued. There was a likelihood that those discussions had not taken place in a private room with all 12 members present and with a bailiff standing outside the door to ensure that there were no irregularities. The Court found that there had been a breach of the guidelines, helpfully set out beginning at page 376 of the same volume of the report, and quashed the conviction. The guidelines have no formal application to or in Hong Kong but they are largely a matter of commonsense.

19. When the jury retire for their deliberations it is vital that they should not be subjected to extraneous influence. When they do deliberate it is important that they should only do so when they are together. If it should appear that one or some members of the jury are tired it is equally important that they should cease their deliberations until they are in a fit state of mind with which to come to a properly considered verdict. While the importance of these matters cannot be doubted it is just as important to have regard to all of the circumstances. With the consent of Counsel who are themselves aware of the physical provisions for jurors in Hong Kong whose deliberations might be interrupted overnight we have made use of our own knowledge. It may be that when a number of juries need overnight accommodation resort to hotels or other lodgings may be necessary. Where, as in the present case, there is only one jury there are accommodations within the court building. They consist of a self-contained unit of two rooms with a common bathroom in between. One of the rooms has two beds and a table with seven chairs. The other, larger room has five beds. The bailiffs are accommodated in a room next door. Except for communications with the bailiffs there are no other means of communications.

20. In the present case there was no sign of any member of the jury being tired. Contrast Mohan Tharakan (supra) at 372G. When they were brought back into Court the second time at 9.33p.m. on the first day of their deliberations the Foreman said that they had some prospect of reaching a verdict and there was no dissent. Clearly they were deeply into their deliberations and preferred to continue. In fact they continued until 2.30a.m. the next morning. There is no room for speculation that any of them was tired. Nor is there any room for speculation that, in the accommodation described, some of them may have carried on their deliberations in the absence of one or more of the others. It is not a question of the applicants having to show prejudice to themselves by what has occurred. Rather, they must show a possibility of prejudice but that has not been shown.

21. In the circumstances the application of the first applicant for leave to appeal against his conviction fails and is dismissed. So far as his sentence is concerned it has been argued that the drug content in the mixture found upon him was at the lower end of the five to eight year bracket laid down in Lau Tak Ming (1990) 2 H.K.L.R. 370. Sentencing guidelines such as those laid down in that case are not to be rigidly applied. The Judge took a starting point of seven years and, for reasons unexplained, reduced it to six. The only relevant point of mitigation was that he appears to have been active in community service, the details of which we were not given. No reason has been shown for this Court to interfere and the application for leave to appeal against sentence is also dismissed.

22. The second applicant's application for leave to appeal against conviction also fails insofar as his grounds are common to those of the first applicant. He has advanced further grounds. Grounds 1 to 4 relate to the third count. The first is that the Judge misdirected the jury in relation to the palm print on the bowl of the blender in two ways. First, the Judge at one stage told the jury that the palm print was on the drugs. It is enough to say that it is not apparent how any sort of print could be on drugs themselves. The Judge had clearly and consistently instructed the jury in numerous passages that the palm print was on the bowl and it is not possible that the jury could have been misled by what was clearly a slip of tongue when he said at one stage that it was on the drugs. Secondly, it is said that the Judge was wrong to direct the jury that if they found that the palm print was on the bowl otherwise than as a result of what the police had done then the only inference was that the second applicant had been involved in the manufacture of drugs. What the Judge did, however, was merely to suggest that that was the only inference as he was entitled to do.

23. The second ground relates to the second applicant's tenancy of Flat H. It is argued that the Judge failed to direct the jury that that tenancy and his possession of the keys went only to show that he had access to the premises, not that he was involved in the manufacture. There is nothing in this. He was the tenant and he had the keys. The premises were clearly being used for the manufacture of drugs and his palm print was on the bowl of the blender. He was seen leaving the premises and there was no one else within. The evidence was all one way and led inevitably to the conclusion that he was involved in the manufacture.

24. The third ground of complaint is that the Judge was wrong in directing the jury to consider the evidence on the first and third counts separately. It is said that both counts depended upon the credibility and reliability of the same police officers and that therefore they should have been considered together. That is a novel proposition. Separate counts must be considered separately. There is nothing to this ground. The fourth ground also deals with the credibility and reliability of the police officers and the complaint is that the jury failed to consider these matters properly. It is not apparent how that can be said. So far as the summing-up is concerned the Judge made it clear that the credibility of the police witnesses was in issue.

25. Grounds 5 to 7 deal with the conviction on the first count. The fifth ground is that the Judge was wrong in directing the jury that because the drugs in the first count might have been packed inside Flat H it would be unlikely that the police procured the drugs from elsewhere and that if they had framed the applicants they must have done so with drugs taken from that flat. The complaint is a misreading of the summing-up. The Judge drew the facts to the attention of the jury and commented that they might draw the inferences he mentioned. He was amply justified in making those comments. The same applies to the sixth ground which complains that the Judge was wrong in directing the jury that because the second applicant was the tenant and had the keys of the flat and because the case for the prosecution was that the drugs the subject of the first count may have been packed in the flat, if they were to find that the second applicant was arrested outside the flat an inference could be drawn that the applicants were involved in the movement of the drugs together.

26. There is nothing in any of the grounds advanced by the second applicant and his application for leave to appeal against conviction is dismissed.