THE QUEEN v. IP LAI SHEUNG

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, V. -P. (giving the judgment of the Court):

1. The Applicant, Ip Lai Sheung, who is a woman aged 27 was convicted on 29 June 1988 in the High Court after a trial (Barnes, J. and a jury) On unanimous verdicts of trafficking in dangerous drugs (Count 1) and offering to traffic in dangerous drugs (Count 2) contrary to s. 4 of the Dangerous Drugs Ordinance. She was sentenced on 13 July to 18 months' imprisonment on Count 1 and 7 years imprisonment on Count 2, the sentences the run consecutively. She now seeks leave to appeal against her convictions on both counts as well as against the sentences imposed upon her.

2. The Applicant did not challenge the prosecution evidence that she handed over a bag containing 909.5 grammes of cannabis to an undercover police officer on 5 February 1988 in a restaurant at Yaumati in exchange for money. The only issue on Count 1, as the judge pointed out, was whether on the balance of probabilities she had rebutted the statutory presumption which arose out of her control of the bag before she handed it over.

3. The evidence led by the prosecution in relation to Count 2 was that after the transaction in the restaurant, an undercover police officer, Constable ho talked to her about the supply of "Sei Chai", a slang expression for No.4 heroin. The Applicant asked what sort of quantity he was interested in. He responded by saying 10 units. There was evidence that 10 units was understood to mean about 7 kilos.. The Applicant then asked the Constable whether he had the means of disposing of so large a quantity of drugs. The Constable replied that he wanted the drugs for disposal in South America.

4. The evidence then was that the Constable met the Applicant again at the Sheraton Hotel, by arrangement, on 11 February and the two had a discussion about the price of the drugs and the date of delivery. They were talking in term of 20 units by this time. That is, approximately 14 kilos of heroin. On the next day they spoke together again, but this time on the telephone. The Applicant said the drugs were ready but that there had been a price increase. The Constable said he would not pay an increased price and the Applicant replied that she would discuss the matter with the seller. They spoke again on the telephone on 13 February when the Applicant said that the original price would be maintained but that she wanted a cash deposit of $10,000.

5. The Applicant and the Constable met yet again on 15 February, once more at the Sheraton Hotel. The Applicant introduced the Constable to a man named Ah Lam who revealed that he was the seller. There was then a discussion about arrangements for a car to take delivery. The Constable then told the Applicant and Ah Lam that he had a partner, in the deal and, at his suggestion, all three went to the Royal Meridien Hotel. There they found Inspector Santos with other police officers in plain clothes. The Inspector was posing as the Constable's partner

6. According to the prosecution evidence, the next thing that happened was that the Applicant left to go to he toilet and shortly afterwards Ah Lam also went to the lavatory The Applicant returned and received a call on her portable telephone. After the call the Applicant left the hotel. Neither she nor Ah Lam came. back to where the police officers were waiting.

7. The Applicant's defense was that she thought the bag she handed over to the Constable in the restaurant on 5 February (and this was at the request of a friend) had contained jade. She said that there had been no discussion with the Constable about obtaining "Sei Chai". She said she had gone to the Sheraton Hotel in connection with another jade transaction at the behest of the same friend. She denied talking to the Constable on the telephone. She said she had taken no part in the conversation on 15 February at the same hotel. After they had all arrived at the Regal Meridian Hotel she had gone to the toilet and returned. On her portable telephone a friend invited her to a game of mahjong and she had left the hotel.

8. The grounds of appeal all concern one particular passage in the summing up, and they are in these terms:

"1.     the learned judge erred in law in directing the jury that the Applicant's refusal to participate in an identification parade could indicate consciousness of guilt.

2. The learned Judge erred in law, in after having directed the jury that they could not draw an adverse inference from the Applicants refusal the participate in an identification parade, he later directed the jury in terms inconsistent with or precisely opposite to the direction he had earlier given, leaving the Jury to draw an adverse inference.

3.     In all the circumstances the convictions are unsafe and unsatisfactory."

9. There was evidence that the Applicant had declined to take part in an identification parade. The judge mentioned the evidence about this and drew attention to part of a document that had been put in evidence which explained a person's rights when invited to participate in an identification parade. Of this document the judge said: .... it indicates that a person has every right to refuse, He may or may not give reasons for that refusal". The judge then said at.page 2 of the summing up (and this is the passage of which particular complaint is made).

" Now the fact that the defendant did refuse to take part in the identification parade is past of the evidence before you. But her refusal should not be regarded by you as adversely affecting her case. It is quite true, as Mr. Harris [Counsel for the prosecution] said, that if the refusal indicated consciousness of guilt, then of course that would make the evidence very important. But here the defendant has told you what her reason  was and she said that she said the document and understood it, and in refusing she was doing no more than exercising her right.

    Mr. Harris quite fairly made the point to you and Mr. Polson in his address fortified it: that people may have many innocent reasons for not wanting to go on an identification parade. A female, for instance, may very well be quite reluctant to appear on an identification parade where she is going to be eyed over by male witnesses for instance. But in any case, here it may be that you would draw the inference from her explanation for her refusal that here you have an intelligent woman, a woman who was able to read that document, recognized what her rights were and exercised them. You may draw the inference from her refusal that she is a woman who was not easily intimidated not easily led not easily fooled

    Whether you do draw those inference or not is a matter for you but what I strongly, urge you to do is: not under any circumstances draw an inference from her refusal adverse to her case."

10. The judge returned to this matter later in his summing up where he said at p.5.

" My directionson on the law must be acted on but my comments on matters of fact must not be accepted by you if they do not accord with your own view. In other words, if you did not think that the inferences that I suggested a memento ago which might be available from the defendant's refusal to go on the identification parade or rather from the reasons she gave, if you thought there was any substance in those views which I expressed, then you are entitled to act on them. But if you did not, you must in accordance with your duty not act on them because they were comments of mine on matters of fact."

11. We have been told that the evidence about the refusal of the Applicant to take part in an identification parade was not led by the prosecution; there was a dock identification during the rail by the police officer concerned without objection by Defense Counsel. There was thus no need to call evidence to justify the dock identification. The matter did not arise until after the defense case had begun when Crown Counsel then appearing for the prosecution asked questions in cross-examination of the Applicant about the reasons why shed refused to take part in the identification parade.Her counsel objected to this line of questioning but the judge ruled against him. Certainly it is difficult to see how such questions could properly have been allowed when one considers two particular paragraph's of the Notice To Suspect which was handed to the Applicant in accordance with police procedures when she was invited to take part in the identification parade Paragraph 3 said

"You are not obliged to attend a parade. If you decline to do so, this fact may be given in evidence at any subsequent Court proceedings at which time a witness may be given the opportunity of identifying you. It will also be open to the Police to make alternative arrangements before any Court proceedings, to test whether the witness does identify you as the person whom he saw on the occasion in question. It should be pointed out to you that neither identification in Court nor identification under whatever other arrangements the Police may make, may be as fair to you as a formal identification parade. You are entitled to request a formal identification parade rather than any other method of identification if you so prefer."

And paragraph 6 is in these terms:

"You are asked to sign the form below to indicate whether or not you are willing to attend a parade. If you are not willing to attend you are not obligee to give your reasons but any reasons, you do give will be recorded and may be given in evidence at any subsequent Court proceedings"

12. It is quite apparent from the first passage of the summing up I have read that Counsels who was then representing the crown had addressed the jury to the effect that there could be circumstances in which consciousness of guilt would be indicated by a refusal to take part in an identification parade, although it seems that he acknowledged that there might be an innocent explanation for her refusal Indeed, this must be why he cross-examined the Applicant on this matter. We would say here that having regard to the contents of the Notice, we are unable to find any justification for Counsel having addressed the jury in this way. The judged should categorically have disabused the jury of any such notion.

13. It is true that he expressed his personal view that, because the Applicant had merely exercised her right, clearly stated in the document, to refuse to participate in the parade, the jury should not regard her refusal as adversely affecting her defense. Unfortunately, however, he did not direct them in unmistakable terms that as and a matter of law they could not do so.

14. In the light of his failure both to rule against the impermissible line of cross-examination and to correct Crown Counsel's remarks to. the jury on this matter, it was essential for the judge. To give then, an unambiguous direction in law that the refusal could not be used for the purpose suggested by Crown Counsel. It was not sufficient to "strongly urge" the jury not to do so.

15. Moreover, despite the strong advice repeated twice that the Applicant's refusal to take part in the identification parade should not be allowed adversely to affect her case, we think that the judge's remarks about inferences the jury were entitled to draw were in one sense, perhaps adverse to her as because her story was that she had been duped by, her friend Ng Kan Kong to hand ver drugs on 5 February and not the jade she thought the bag contained and that she had been made is believe that the later deal being arranged also concerned jade and not drugs. To suggest that because the jury might draw from the Applicant's ability to read the document and to recognize and exercise her rights the inference that she was an intelligent woman who would not easily be fooled, served to undermine her defense that she had been duped by her friend. This tenuous line of reasoning would never have been left to the jury for their consideration had the judge firmly directed them to expunge from their minds any reference to her refusal to participate in the parade.

16. Mr. Lugar-Mawson who appears for the Crown on this appeal has very fairly conceded that the judge might have left the jury with the impression that they had an option to draw, from the Applicant's refusal inferences adverse to her case. We feel that there is a very real possibility that the jury might have been confused by the way the matter was put to them and we think that Mr. Lugar-Mawson is right to concede that the verdicts cannot be sustained.

17. Rightly, we think, Mr. Lugar-Mawson has not urged us to apply the proviso. It would be quite inappropriate to do so in this case.

18. We allow the application for leave to appeal against the convictions and treat the hearing of the application as the hearing of the appeal. We quash the convictions on both Counts and set aside the sentences imposed. We shall now hear Counsel on the question whether or not we should order a re-trial.

[Re-trial ordered]