HKSAR v. YUEN SIU WING

IN THE COURT OF APPEAL

1997, No. 190
(Criminal)

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court): On 26 March 1997 the applicant was convicted after trial before Deputy Judge Wesley Wong and a jury of trafficking in a mixture containing 925.90 grammes of ice. He was sentenced to 20 years imprisonment. He now applies for leave to appeal against his conviction.

The facts

1. On 24 June 1996 at about 11.05 pm police officers were in Ma Tau Wai Road. They gave evidence that they saw the applicant walking towards them carrying black plastic bag. They stopped him. There was a short conversation in which the applicant said he lived in Tsing Yi. The bag was searched and the substance which turned out to be the drugs was found inside.

2. At the scene the applicant said:

"Ah Sir, it is ice. Give me a chance. I dare not do it in future."

He later said he carried the ice for other people; that it did not belong to him and asked them not to arrest him.

3. Evidence on those lines was given at trial. The applicant gave evidence also. His defence was that he was with a man called "Lo" during the evening of his arrest. At the time of arrest Lo was with him. But it was Lo who had the plastic bag and had told the applicant earlier that he was taking that bag to a friend at the Golden Gate Cinema. The two of them, Lo and the applicant, were intending to go to the China Chem Cinema for the midnight show. When the police came towards them, Lo, he said, had run away. One of the police officers chased after him but was unable to catch him. It was in those circumstances that the police then accused him of carrying the drugs. The defence case was, therefore, that the police were making up the evidence that he was holding the bag. The issue for the jury in the end was a simple one of fact - whether the applicant was carrying the plastic bag containing the drugs at the time of his arrest.

4. Mr Kwok seeks to advance one ground of appeal. He submits that the applicant was denied a fair trial because the judge - first in cross-examination and later in the summing-up - made remarks which demonstrated that the judge did not accept what the applicant was saying so that he was not to be believed and that, therefore, the judge took away from the jury the consideration of the defence to which the defendant was in fairness entitled.

5. The first passage was in the cross-examination of a police officer. It was suggested by the applicant's counsel that the officer's colleague was wearing a black leather vest. This was on 24 June in the summer. The judge reacted to the question and answer in this way:

"Q: Is it correct that your colleague - DPC 806 - that evening was wearing a black leather vest?

A: I can't remember.

COURT: In June? In June, wearing a black leather vest?

COUNSEL: A black leather vest, yes.

COURT: it was in the middle of the summer?

COUNSEL: Yes, My Lord, a black leather - looks like a black leather vest, yes, it is.

COURT: What do you say to that?

A: I can't recall."

The submission put shortly is that the judge poured such cold water on the suggestion that one of the police officers was wearing a black leather vest in the middle of summer, that he took away from the jury the consideration of the point to which the applicant was entitled.

6. In his summing-up the judge referred to that matter again, saying this:

"It was put to him that DPC 806 was with them and DPC 806 wore a black leather vest to which he denied. Members of the jury, 24th June was a hot summer day, have you ever seen someone in leatherware on a hot summer day? This is a matter entirely for you."

That is the first point taken.

7. The second point refers to the absence of any evidence at trial of any fingerprints on the black plastic bag or its contents. The judge referred to this in two passages. The first is - referring to the applicant's evidence:

"In cross-examination, he said he saw the contents inside the bag and he did not know they were drugs. He thought there's no fingerprint of his in the bag. In re-examination, he said LO wore a short-sleeved shirt, jeans and leather shoes."

Later, the judge said this:

"The absence of fingerprint evidence proves nothing one way or another. That piece of evidence is just neutral. As a matter of commonsense, when you are being intercepted unexpectedly, and if you are not holding anything, would you really think of fingerprints on the spur of the moment? Well, this is a matter entirely for you."

Those later remarks of the judge would indicate that the applicant in his evidence had said something about the absence of fingerprints on the bag at the time of his arrest. Neither counsel before us was present at trial and neither do we have a transcript of the applicant's evidence. In fairness to him, however, Mr Kwok has invited us to assume that there was some evidence of that kind given. We do so by approaching the case on that basis.

8. Mr Kwok relies upon the approach of the Court of Appeal in England in R v Hamilton (1969) CLR 486, the Chief Justice said in dismissing the appeal:

"Interventions to clear up ambiguities and to enable the judge to make an accurate note are perfectly justified. Interventions which may lead to the quashing of a conviction are:

(1) those which invite the judge to disbelieve the defence evidence in such terms that they cannot be cured by telling the jury that the facts are for them, ..."

9. We have been invited to consider also a decision of this Court in R v Tam Chun-fai (1994) 2 HKC 397 where a similar submission was made successfully. In assessing it Macdougall V-P said, having referred to the passage complained of:

"We agree that the effect of this passage was to deny the applicant a fair trial. There is a real danger that the jury may have understood from the deputy judge's opening sentence that police impropriety is a rarity and that they could safely disregard it or at least treat it as being a highly improbable occurrence in the present case."

That passage gives some flavour of the way in which this Court approaches the problem. We have to consider whether there was an indication by the judge that the defence was not to be believed, on what may be described as a peripheral part of the defence, in such a way that it could not be remedied by what was said later in the summing-up, or whether, as Mr Kwok submits, it was made worse.

10. It is only by turning to consider first what was said and its effect and then to consider what was said in the summing-up that the answer will be found.

The effect examined

11. So far as the intervention in cross-examination was concerned, that was obviously a memorable one but it was not persisted in. There was no question of interfering so that counsel could not put his case properly. It can also be said that the leather vest was not central to the defence case.

12. Turning to the summing-up, the vest was referred to again. But to be fair to the judge, it was left as a matter entirely for the jury. Similarly, in relation to the fingerprint he said "this is a matter entirely for you".

13. We turn first to the point about the black leather vest. Looking at that as a whole and considering the way in which the judge left the facts for the jury and their judgment of the evidence, it could not possibly be said that this applicant was denied a fair trial. Judges are entitled to make comments on the evidence provided they also make it utterly clear to the jury that they do not have to follow those comments or act upon them unless they agree with them.

14. So far as the fingerprint point is concerned, the judge left this initially - as counsel conceded - perfectly properly, pointing out that the absence of evidence of fingerprints was a matter that was entirely neutral. We assume that the applicant had said something about the absence of fingerprints at the time of his arrest. The judge made the comment whether he would think of that on the spur of the moment. The jury were perfectly entitled to form their own view.

15. We say they were entitled and would form their own view because of the way in which the judge left the matter in his summing-up read as a whole. We give examples. At the beginning he said:

"As to the facts, you are the sole judges. It is for you and you alone to decide on the evidence before you whether the defendant is guilty of the offence.

... It is your duty to carefully and thoroughly assess the evidence before you and to return a true verdict. ...

Regarding the oral evidence your main duty is to assess its credibility, reliability and accuracy."

He turned to what had been submitted by counsel and said:

"You have heard counsel for the prosecution and the defence. They have expressed certain views on the evidence. Likewise I shall every now and then comment and express my views on the evidence. But please bear in mind that whatever we say, whatever opinions we express, you are not bound by them unless you agree with them. You should form your own views...."

Finally, towards the end of the summing-up he directed them in this way:

"But, even if you reject the evidence of the defendant, it does not mean that he is guilty. You still have to consider the evidence of the prosecution. You can only convict the defendant as charged if you have no doubt that the prosecution witness told the truth and that it was the defendant who carried the bag and that the defendant, on being questioned by PW1, admitted that he carried the ice for people and is not his because, by carrying drugs for people, he would be dealing in, or dealing with, the drugs, which means he is trafficking in those drugs."

Whatever may be said the judge's interventions in cross-examination - perhaps in hindsight it would have been better had he not intervened - any adverse impression was completely cured by the directions which the judge later gave to the jury. Those directions were impeccable.

16. The application is refused.

Application for leave to appeal against sentence

17. The applicant also applies for leave to appeal against his sentence of 20 years imprisonment. He submits that the sentence is in all the circumstances too heavy. However, the sentence of 20 years for this amount of narcotic is exactly in accordance with the guidelines laid down by this Court in Attorney General v Ching Kwok-keung [1991] 2 HKLR 125 which indicates that for over 600 grams the appropriate sentence is 18 years upwards after trial. The application is refused.