HKSAR v. TUNG YUE KIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.338
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 19th May 1997, this Applicant was convicted of trafficking in a crystalline solid containing 15.31 grammes of methamphetamine hydrochloride ("ice"). This followed a trial before Deputy Judge Beeson (as she then was) and a jury. The Applicant now seeks leave to appeal against his conviction.

2. Miss Corrine Remedios, who did not appear in the court below, has raised on behalf of the Applicant three grounds of appeal. The first two of these can be dealt with together, and they amount to a suggestion that the trial judge descended into the arena and, in doing so, lost her cloak of impartiality.

3. Ground 1 reads:

"The Judge erred in intervening to question the Appellant, the effect of which, in conjunction with the Summing Up relating to answers elicited thereby was tantamount to inviting the jury to disbelieve the Appellant's evidence and/or the defence case."

Ground 2:

"Further or in the alternative, the intervention by the Judge was not in the nature of questions to clear up any points that had been overlooked or left obscure, but was tantamount to cross-examination which would appear to an impartial observer to indicate that the Court had taken sides against the appellant."

4. The prosecution's case was largely undisputed. It was the interpretation of their case and the inferences to be drawn from the evidence which were challenged by the defence.

5. The Applicant admitted that he was a user of this drug, and it was his case that the ice which the police found on him, contained in 22 separate packets each weighing approximately 0.69 gramme, was for personal consumption. The account given to the police of having bought the ice for $13,000 from someone called Ah Keung was confirmed by the Applicant when he gave evidence. In his testimony, the Applicant explained that because he was not at that time working, he had borrowed $15,000 from his mother. He needed a larger sum than usual to purchase ice because his normal supplier was going to be away for some time. He therefore bought a month's supply and, having done so, he went to have his mobile telephone repaired and after that was arrested.

6. The prosecution relied on a powerful combination of circumstances, in particular three things. They said that this was a relatively large and expensive quantity of drugs for an ordinary consumer to possess. They said it was packaged in just the way a trafficker would normally keep those drugs and, thirdly, an addict would be unlikely to wander about carrying such a large amount with him.

7. Within this context, the passages about which complaint is made occurred at the end of the Applicant's cross-examination. At page 51 in the appeal bundle, the cross-examination of the Applicant commenced and, amongst the topics covered were his income, his past expenditure on ice, his rate of consumption and his past dealings with Ah Keung, the supplier. As for the drugs in his possession at the time of his arrest, he agreed that Ah Keung did not specify how much money to bring with him, but to bring more than usual because he was going to be away from Hong Kong for some time. On meeting Ah Keung, he was asked for $13,000 and was given the 22 bags of ice although he did not count them when he was handed them. He was prepared simply to trust Ah Keung who he had dealt with on about ten occasions before.

8. The kindest way of describing the cross-examination is to say that the questions have very little depth to them. At the end of re-examination at page 56 in the bundle, the judge asked the questions about which complaint was made. There were 14 questions in all and I should read those:

"Q. In respect of this particular deal that you did on the 18th with Ah Keung, you did not indicate any quantity and he did not suggest to you that you should bring $10,000 or $13,000 with you? You just happened to bring $15,000?

A. That was not mentioned at all. He simply told me to bring along more money.

Q Why did you decide on $15,000 as the amount you were going to bring?

A. Because he said he would be away from Hong Kong for quite some time.

Q. But you didn't ask him how long?

A. I didn't.

Q And you didn't check the packets you bought from him for $13,000? You didn't check the number of packets?

A. I only saw that in terms of quantity, it was substantially more than I used to get from him.

Q. In that case, how did you know it was worth $13,000?

A. Because for all the time that I have been dealing with Ah Keung he had never cheated me before.

Q. Did you open up one of the packets to see that it was actually ice?

A. I did not.

Q. Did you know what the per-packet price was, approximately?

A. All I knew was I found that it was about the same quantity as I used to buy it from him.

Q. So, if you just wanted one packet, you didn't know how much money to bring with you, you didn't know the price of the packet, is that right?

A. Yes, that is correct.

Q. At the time you were arrested by the police was your telephone working again? At the time you were arrested by the police on the 18th was your telephone working again?

A. Yes, it was.

Q. Whereabouts did you go on to, what shop did you go on to, to get it fixed at 10 o'clock at night?

A. Arrived in Sham Shui Po at 9 o'clock.

Q. And the shop was open for repairs at 9 o'clock?

A. It closed at 9.30, that shop.

Q. What shop?

A. The shop which sells mobile telephones.

Q. Yes, but does it have a name or is it the particular brand of telephone or is it just some shop?

A. I can't remember the whole name of the shop, but then it consisted of a Chinese character pronounced "Dick".

Q. And they were open for repairs up until 9.30?

A. Right."

9. The evidence provided in these answers was repeated to large extent in the summing up and particular criticism is made of the way the judge referred at page 17 in the summing up to the borrowed sum of $15,000 as appearing to have been "plucked out of the air because Ah Keung had not said how long he would be going away or what size purchase the defendant should make ....."

10. It is also suggested by Miss Remedios that there is added partiality to be found on the part of the judge at page 18 line C because the comments appear to have been made, she submits, with an air of disbelief. The judge said:

"He did not check the quantity of the drug that he purchased or the number of packets. He did not test it to see if it was actually ice and not just something like sugar. The suggestion is that this was because he was keen to buy the drugs and not wanting to prolong the transaction. That may be the case, or is it because he is not telling the truth about the purchase, in other words, the purchase did not happen like that at all, and that he is uncertain of the details of it. There is no indication as to why suddenly $13,000 was considered the appropriate amount of drugs to purchase. If Ah Keung was going to be away for a long time and he had $15,000, why did he not spend the whole $15,000?

11. A very short while after that passage, the judge continued by saying to the jury:

"It is quite possible that he did not give the whole of the $15,000 to Ah Keung because he needed money for his own day-to-day expenses ...."

12. There is no need to review the authorities cited in this case. This court in H.K.S.A.R. v. Jahangir & others, Cr.App. 35/1997 recently reviewed some of the authorities on this topic.

13. We have considered all the submissions most ably advanced by Miss Remedios, but we can find no substance in any of them. There is nothing which suggests to us that the judge's questions were other than perfectly properly made, nor indeed that they had been asked with an air of incredulity as it has been suggested. Even the most superficial reading of the questions asked by the judge shows that they were most restrained, and many of them were intended no doubt to clarify issues which had not properly or fully been covered in cross-examination. It is small wonder, in the light of the cross-examination, that the judge felt to need to ask these questions.

14. In the summing up, the judge repeated much of the evidence but at no stage treated it with scorn. At no stage did she disparage the answers that had been given. Indeed, while Miss Remedios makes her complaints of the passages already read out at page 18, it is clear that the defence case was very fully put to the jury in fair and accurate terms at a later stage in the summing up.

15. There is no merit in these grounds.

16. So far as the third ground of appeal is concerned, it is as follows. The judge directed the jury in these terms and complaint is made of it:

"If you think that a possibility, if his evidence makes you unsure about the Crown's case, and you think it is reasonably probable as a result that the Defendant's account of his addiction and his reason for having the drugs is true, then you must give him the benefit of that doubt and acquit him." (Emphasis added.)

17. The complaint is that the jury may have concluded from that direction that there was an onus of proof on the balance of probabilities upon the Applicant. Miss Remedios submits that at the very least this may have led to confusion on the part of the jury as to where the burden of proof lay.

18. This can be dealt with quickly as while those words may be described as a misdirection, they cannot be read in isolation. There was, of course, an earlier standard direction as to the burden of proof. Following that, on page 15 of the summing up, the judge went on to say this:

"If, having considered the defendant's account of the events of that evening and his explanation for them, you think that what he says has made you have doubts about the Crown contention that he was trafficking, or if you think what he says might reasonably have been possible, then he has succeeded in casting doubt on the prosecution case so that you cannot be sure of his guilt. In that case, you must acquit him."

19. After that passage came the passage which is complained about where the judge made the error of referring in terms to probability. But then she went on a very short while afterwards at page 25 line D:

"If, having considered carefully all the evidence , you find that his account of events is reasonably possible, then he has cast doubt on the prosecution case and you must acquit him of the trafficking charge. Keep in mind throughout that the defendant does not have to prove anything at all. The burden is always on the Crown to make you sure that the defendant was trafficking.

If, having considered all the evidence, you do find that you have a doubt and you don't believe that he was trafficking, you must acquit him of that charge ....."

20. In the context, we are satisfied that the misdirection of which complaint is made was not material. There is nothing in this ground of any substance. Accordingly the application must be dismissed.