R. v. LEE YIU SANG

IN THE COURT OF APPEAL

1995, No. 2
(Criminal)

-----------------

----------------------

J U D G M E N T

----------------------

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

1. On 2 December 1994 the applicant was convicted of trafficking in a mixture containing 55.17 grammes of heroin before Keith J and a jury. He was later sentenced to 4 years imprisonment. In the same trial he was acquitted of another offence of trafficking.

The evidence

2. On 15 December 1993 the applicant and two others were chatting and looking about them at a road junction in Homantin outside a 7-11 store. When police officers approached, Yu Wai-tung (Yu) walked away and as he did so, threw to the ground a packet containing 4 polythene bags of heroin. One of the police officers (PW1) asked the applicant what was in the bag. The applicant replied 'white powder' and then after caution, 'Ah sir, I intended to buy the white powder from the man in the black jacket (Yu). We had an appointment to meet him'. The 3rd man (Law) made similar replies to another officer. The applicant was arrested for trafficking. He then said, 'Ah sir, money has not been paid for the purchase and you still arrest me. Can you give me a chance'. Nothing incriminating was found upon him.

3. Law had a flat nearby. With keys found upon him, the police gained entry and took with them the applicant and Law. Nothing was found which linked the applicant with the flat but he was a regular visitor to smoke heroin.

4. When the flat was searched, a polythene bag containing less than a gramme of heroin was found and elsewhere in a box, there were six polythene bags containing a mixture of 54 grammes of heroin.

5. PW1, the same officer, asked the applicant about the 54 grammes. According to him, after caution the applicant replied, 'Ah sir, the white powder was checked by me and Ah Leung (Law). If a customer called Ah Leung, Ah Leung and I would deliver it to the customer, just like what happened this afternoon.'

6. The other two officers in the room did not hear this reply and after a voir dire the judge ruled the post-recorded statement, said to have been taken by the officer and signed by the applicant, to be inadmissible.

7. The applicant gave evidence. He admitted to heroin addiction and said he went to Law's flat to smoke heroin three or four times a week. He denied any knowledge of the drugs in the flat and although he met Law just before his arrest, he denied meeting Yu to buy drugs and denied being asked about drugs by the police officer either in the street or in the flat, and denied the admissions. He said that later he was slapped and urged to cooperate when he signed the police notebook and the post-recorded statement.

8. Nail clippings were taken from him which bore traces of heroin.

9. On this evidence, the jury acquitted of trafficking in the street (count 1), but convicted of trafficking in the drug found in the flat (count 2).

The application

10. Mr Mullick, for the applicant, contends that the jury's acquittal on count 1 is inconsistent with their verdict on count 2 and consequently that the verdict on count 2 is unsafe. The point hinges particularly upon whether or not the jury accepted the admission the applicant was said to have made in the flat. On its face this was an admission to both offences, not simply to count 2.

11. In the result, it is not necessary to make any determination on this ground because, during submissions, the court invited counsel to consider adding a further ground to allege that the judge's direction on the applicant's lies, both to the police and to the court, was flawed. Understandably, he followed the court's suggestion and we gave leave.

Lies

12. We turn to the judge's direction on lies.

13. The Crown alleged that the applicant's denials of trafficking in the street were lies and that the applicant's evidence was a pack of lies from start to finish in order to hide the fact that he was a drug dealer. There were grounds upon which the jury had to approach the police officer's evidence of the admission in the flat with caution. No other officer heard it and it was made suddenly after previous denials. Further, the judge excluded as inadmissible the post-recorded statement of this admission which (it is alleged) had been signed by the applicant.

14. When dealing with the Crown's submissions to the jury on lies, the judge gave this direction which we set out in full:

"The Crown say that what the defendant has told you is a pack of lies from start to finish designed to pull the wool over your eyes and I think I ought to say something about that. If you are sure that the defendant has been telling lies, whether lies in his evidence to you or lies in what he told the police at the time of his arrest, then you should ask yourselves why he lied. You see, just because someone tells a lie, that does not mean they're guilty. People can lie for all sorts of reasons, sometimes to bolster up a true defence, sometimes to protect someone else, sometimes to conceal conduct they are ashamed of which does not amount to the commission of a criminal offence and sometimes people can lie simply out of panic or confusion. So simply telling a lie does not necessarily mean you are guilty, which is why I say that if you are sure that the defendant has told you lies in his evidence or if you are sure that the defendant told lies to the police, then you should ask yourselves why he lied. If you think that there is or could be an innocent explanation for any lies that you are sure he's told, then you should not take any notice of those lies though, having said that, the Crown say that the reason why he lied to the police was because he hoped to conceal from them the fact that he was a drug dealer, and the reason why he's lied to you is because he knows that if he told you the truth, you would have no alternative but to convict him."

Conclusion

15. The mischief in this direction is that if the jury came to the conclusion - as well they might - that they had doubts about the admission but no doubt that the applicant had told a pack of lies in the witness box, they may have thought - having asked themselves why he had lied - that it was open to them to convict of trafficking on the lies alone. It was not.

16. This was a material misdirection which leads us to grant the application for leave to appeal against conviction, to treat the application as the appeal itself and to allow the appeal.

General

17. This is yet another case in which directions given on lies have led to difficulty. Perceived lies are a frequent - if not usual - feature of criminal trials, and prosecuting counsel often seek unnecessarily to rely upon them to support proof of guilt when there are plain issues of fact for the jury's consideration. Where this has been done we urge judges to take a firm and practical approach by leaving to the jury lies as relevant to credibility only.

The order

18. We allow the appeal, quash the conviction and sentence, and order the applicant's release.