THE QUEEN v. TANG WAI KEUNG

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JUDGMENT

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Ching JA (delivering the judgment of the Court):

1. The applicant was convicted on a single charge of trafficking in dangerous drugs and now seeks leave to appeal from that conviction.

2. The prosecution's case was that the applicant was stopped by two police constables in the Centenary Park in Tsui Sha Tsui East in the early hours of the morning. He was sitting on a bench holding a paper bag in which the drugs together with other articles were found. There was evidence that upon being questioned the applicant said that the white powder was his and had nothing to do with other persons. At the time there were two other people nearby, a man and a woman, who were allowed to go after questioning and a check on their identity cards.

3. The defence was that the bag was not the applicant's at all and that he never said the words alleged. The applicant claimed that the two policemen had simply decided to arrest and charge him rather than the couple or either of them who were his friends. At the trial, one of the policemen who was the 2nd prosecution witness was attacked on the basis that his evidence was contrary to the account given in his witness statement. He had said in his witness statement that it was both he and his partner who had stopped and questioned the applicant whereas in his evidence he said that it was his partner who had done so while he dealt with the couple who were nearly. He had made no mention of that couple in his witness statement although they appeared in an entry in his note-book.

4. The complaint before us was that in his summing up the Judge below failed to direct the jury on the significance of the inconsistencies between the statement and the evidence of the 2nd prosecution witness. It is argued that the Judge ought to have directed the jury that they must, as opposed to may, take account of the discrepancies, and that he ought to have directed them to take into account the manner in which the witness tried to explain away those inconsistencies. We do not agree. The Judge drew the attention of the jury to the inconsistencies and left the matter to them. He had begun his summing up with the direction that questions of fact were solely for them. He instructed them that the credibility of the two policemen were matters for them. It goes without saying that the jury without being instructed must take into account all the relevant evidence. The direction was an adequate one and the application for leave to appeal is dismissed.