R. v. Szeto Hong

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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. On 9th January 1992 the applicant Szeto Hong was convicted upon the verdict of a jury of two counts of possession of dangerous drugs for the purpose of trafficking, contrary to section 7 of the Dangerous drugs Ordinance. The first count alleged that on 11th March 1991 outside 632 Fuk Wah Street Kowloon he was in possession of 66.69 grammes of a mixture containing 50.82 grammes of salts of esters of morphine. In count two it was alleged that on the same date in room 5 on 3/F of 621 Fuk Wah Street Kowloon he had possession of 3,831.45 grammes of a mixture containing 201.27 grammes of salts of esters of morphine. He now seeks leave to appeal against these convictions.

Prosecution Case

3. The facts alleged by the prosecution can be summarised as follows.

4. On 11th March 1991 the Police Narcotics Bureau were mounting observation at Fuk Wah Street. At about 5.20 p.m. they saw the applicant emerge from No. 621 Fuk Wah Street.He was stopped and searched and they found tucked inside his underpants three packets wrapped in tissue paper which turned out to contain No. 4 heroin. This constituted the substance of count 1.

5. In the search they also found on him the following: (1) about HK$13,000 in cash and (2) a bunch of four keys, three of which were found to open the following (a) an iron grill at the bottom of the staircase at 621 Fuk Wah Street (b) the iron gate of room 5 on 3/F of the premises and (c) the wooden door of those premises.

6. The police then proceeded to search room 5 on 3/F and discovered the following : (1) a bag containing two packets later found by the Government Chemist to contain 150 grammes of No. 4 heroin (2) an electronic weighing machine on which traces of drugs were subsequently found (3) a red purse under a pillow in which there was one packet of No. 4 heroin weighing 2.9 grammes (4) a packet containing caffeine under the mattress and (5) a carton box at the end of the bed inside which were 8 packets of granular substances which turned out to be No. 3 heroin weighing a total of approximately 3.8 kilogrammes. This constitutes the substance of the second count.

7. In the early hours of the next day, 12th March 1991, the applicant was interviewed at the Narcotics Bureau.  In his cautioned statement he said that he had rented the room with a friend CHAN Chi-cheung and both had keys to the doors; that around February 1991 that friend had left and he continued to live in the premises with a girl friend; as to the drugs found in the flat they might have been left by Chan; as to the three packets tucked in hisunderpants he said he had stomach problems and the drugs were for his own consumption to cure his illness.

8. The applicant was further interviewed on 12th March 1991 in the evening at about 7.20 p.m. He was asked about the packets found tucked inside his underpants and he explained that he had come to know a person called Ah Fai in Stanley Prison and had got the drugs from him; he was unable to give the police any means of locating Ah Fai; as regards the contents of the flat the packets of No. 4 heroin were for his own consumption but the weighing scales found in the flat had been left by Chan.

9. Among the witnesses called by the prosecution was Miss LEE Ming-chu who said that she was the applicant's girl friend at the time, had sexual relations with him and had spent the night of 10th to 11th March-1991 with-the applicant at the flat. She said she remained in the flat when the applicant left in the morning. The police evidence was to the effect that they saw the applicant leaving either 621 or 623 Fuk Wah Street in the morning. (There was some confusion as to the precise staircase from which he emerged at the time when the Narcotics Bureau team were mounting their surveillance on the premises.) What I have just stated above was in summary of the prosecution case.

Defence Case

10. The defendant gave evidence in his own defence at the trial which can be summarised as follows. (1) He was living with his parents at an address in Kam Lam Street and in March 1991 was working as a hawker and watchman earning about $10,000 a month. (2) In the previous year, in July 1990, he had rented the flat in Fuk Wah Street with CHAN Chi-cheung, the tenancy being in his name, but in December 1990 he had moved back to his parents' flat in Kam Lam Street leaving Chan in sole possession and occupation of the flat. (3) On the night of 10th March 1991 he had stayed in his parents' flat (thereby contradicting the testimony of LEE Ming-chu who said she had spent the night with the applicant in the Fuk Wah Street flat). He further said that on 11th March 1991 he was in the vicinity of Fuk Wah Street because he was looking for a shop space to rent for the purposes of a new business of motor repairs he was embarking upon with a friend. (4) At noon on 11th March 1991 he had met Chan and LEE Ming-chu. When they parted at the restaurant Chan had left behind his bunch of keys to the flat and he had picked them up. He then contacted Chan by phone, arranged to meet Chan at a cafe at the junction of Fuk Wah Street and Castle Peak Road in order to return the keys to Chan but on the way to the rendez-vous he was accosted by the police, dragged into a corridor, punched and interrogated.

11. The applicant denied having any drugs tucked into his underpants. His testimony was that just before photograph No. 9 was taken the police had tucked several pieces of tissue paper into his pants for the purpose of the photograph. He said that he was not a drug addict, having been converted to Christianity whilst he was in prison.

12. As to the statements made in the offices of the Narcotics Bureau, to the effect that the drugs were for his own consumption, he said that this was an invention by the police. He denied having anything to do with any of the things found in the flat.

The Grounds of_. Appeal

13. There was therefore a sharp clash of evidence before the jury. On the applicant's case, he was wholly innocent. In his summing up to the jury the judge said in relation to count 1: The crucial issue was whether the police were telling the truth that the packets were found tucked into the applicant's underpants and he directed them accurately as to where the burden of proof lay in that regard.

14. Plainly if the jury was satisfied that the drugs were found tucked into the applicant's underpants in the way described by the police it was easy to conclude_ that he knew that they were dangerous drugs; the jury would then have to go on to consider whether the possession was for the purpose of unlawful trafficking.

15. In his appeal today the applicant draws attention to the discrepancies in the testimony of Detective Police Constable 12266 HO Man-fai. In his evidence-in-chief he appears to have said that he had taken out one of the wrapped packets for the purpose of examination, but seems to have denied this later on in cross-examination. we have looked at the transcript carefully in this regard. It is quite clear from perusing the transcript that this was a matter which leading counsel for the applicant had firmly in mind in conducting the case for the applicant in the court below. DPC 12266 was cross-examined in this regard and such discrepancies as there might have been were clearly pin pointed in the course of the cross-examination. There was in fact some ambiguity in the way the evidence came out. It is not entirely clear whether the officer had said in-chief that he took the packet out, in the sense that it was wholly removed and taken into his own hand for the purpose of examination, or whether he was merely saying that it was taken out from concealment sufficient for him to examine the contents. The judge in his summing up said this to the jury:

    "The officer did not take them out. He simply tore open the tissue paper a little and had a look. The three packets were left as they were found in his underpants and these were the 66.6 grammes of No. 4 heroin."

Obviously, if there was in fact a clear discrepancy which the judge failed to point out, and took the version favourable to the prosecution only, this would have been a misdirection. Having regard to what we have said above we are not satisfied that this was in any way a misdirection by the judge in relation to the testimony of PW1 and the applicant's complaint in this regard cannot properly be a ground of appeal.

16. As to count 2 the judge summed the evidence up to the jury by telling them this: It was their duty to consider all the circumstances, for example whether the defendant had access to the flat, whether he still lived there, whether he knew of the presence of the drugs in the flat. The judge said that it was for the jury to consider and weigh what the defendant was alleged to have said in his cautioned statements. The judge further reminded the jury of the testimony of LEE Ming-chu to the effect that she had slept in the flat with the applicant on three or four occasions between December 1990 and March 1991 and in particular on the night of 10th and 11th March 1991 : a matter which the applicant had denied. The judge also reminded the jury that LEE Ming-chu had said that someone else had first brought her to the flat and had keys to the flat other than the applicant. And in the summing up he enumerated in twelve paragraphs the evidence with reference to the second count from which the jury could draw the inference that the applicant at the material time had custody and control of the drugs in count 2 and it was so for the purpose of trafficking.

17. The testimony of LEE Ming-chu was very important in relation to the applicant's culpability on count 2. Her evidence directly contradicted the applicant's case that he had moved out of the flat since December 1990 and therefore could not have been the person in custody and control of the contents of the flat. As to her testimony the applicant's complaint on this appeal is in effect this: that she had said in her evidence that she had been threatened by the police and it was for that reason that she had given a statement to the police incriminating the applicant. The applicant's complaint is that this fact was not sufficiently brought to the jury's attention. We cannot accept this. The judge expressly told the jury that they had to consider her evidence with great caution, told them that she was a drug addict, and had been convicted of drug offences and offences involving dishonesty. And in relation to the statement that she had given to the police the judge reminded the jury of her testimony to the effect that the witness statement-had been given under threat. In these circumstances it seems to us that the judge had done more than sufficient to warn the jury of the possible unreliability of LEE Ming-chu as a witness.

18. The judge had given a very full and careful summing up to the jury. Every possible issue was explored and in our judgment there is nothing arising from the summing up or the conduct of the trial which can possibly constitute a ground of appeal. The application for leave to appeal must therefore be dismissed.