R v. POON SAI MING

IN THE COURT OF APPEAL

1996, No. 410

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was charged with two counts of trafficking in dangerous drugs before Wong J and a jury. After a trial he was convicted on the second count. Particulars of the offence were that on 24th day of December, 1993, at Room 613, Cheuk Ping House, Long Ping Estate, Yuen Long, New Territories, in Hong Kong, together with Yun Hon-luen, unlawfully trafficked in dangerous drugs, namely 282.75 grammes of a mixture containing 179.10 grammes of salts of esters of morphine and 54 tablets containing a total of 109 milligrammes of flunitrazepam. He now seeks leave to appeal against this conviction.

2. The police were performing surveillance duties in the early hours of 24 December 1993 at Hong Lok Road, Yuen Long. They saw two men arriving in a taxi at House 27. The two men approached the entrance. One of the police officers who had been under cover emerged and attempted to arrest the men. The man who was in front was arrested and the man behind managed to escape.

3. The first man was Mr Yun Hon Luen. He was the man who was referred to in the particulars of the offence. Mr Yun was charged with these offences but died before he was tried. None of the police officers were able to identify the 2nd man. It was the prosecution case on the first count that it had been the applicant who had been the second man. He was acquitted on this count.

4. Mr Yun took the police to Room 613 Cheuk Ping House, Long Ping Estate. They had to effect a forcible entry. A large quantity of dangerous drugs was found at these premises. They also found a telephone account made out in the name of the applicant.

5. The police party then proceeded to the Wing Wah Restaurant. The applicant was there and was arrested by the police. When cautioned it was claimed that he said "Ah Sir I was responsible for taking those 100,000 pieces to that house for Shek Ma Mei." Shek Ma Mei was Mr Yun's nickname. On the way back to the police station it was alleged that the applicant said "The dangerous drugs and equipment were not mine. They belonged to Shek Ma Mei. I lent him the place to manufacture dangerous drugs. I was responsible for packing for him." There was also evidence that keys to Room 613 were found on the applicant and that he was the tenant of the room.

6. Later at the police station the applicant made further inculpatory statements.

7. The defence run by the applicant was that he had not made the remarks which had been post recorded by the police officers. So far as the cautioned statements were concerned he claimed that they had not been made voluntarily. The applicant went on to deny knowledge of Mr Yun's activities at his flat. He called both his and Mr Yun's lady friends to give evidence in his defence but they were unable to be of much assistance.

8. Also a scientific report was put in evidence in which an expert opinion was given to the effect that there had been so much heroin present in the room that the applicant could have been contaminated as a result of his contact with the various police officers.

9. The first ground of appeal is that the judge improperly informed the jury that he had ruled the applicant's statements to be admissible. On reading all of the available record it would appear that there had been some abrupt exchanges between Mr Haynes who represented the applicant and the judge and that the judge had disagreed with Mr Haynes over the manner in which he had attacked the prosecution evidence in this connection. To get a full flavour of these exchanges it may be helpful to see exactly what was said in p15 of the record:

"Mr Haynes addressed you on the rules and directions on the questioning of suspects, issued by the Secretary for Security on 1 October 1992. These are rules for the guidance of police officers and other officers who are charged with the duty of interviewing suspects and taking statements from them, but they are not strict rules of law, and the non-observance of any of the rules may, and I emphasise may, but not must, render the statement inadmissible in evidence, and that is, the statements cannot be put before the jury as evidence.

But it is for the judge to decide whether the statements should be placed before the jury for their consideration or not. I have decided that the statements should be placed before you for your consideration despite there had been non-observance of some of the rules."

10. It should be added that immediately after this passage the judge went on to say that the jury had to be satisfied that the applicant had made these statements and that they were true before weight could be attached to the contents of the statements. He also said that the fact that there may have been breaches of the Secretary for Security Rules did not of itself mean that they should disregard the contents of the statement.

11. In the context in which this situation arose we do not think that the applicant suffered prejudice as a consequence of the judge imparting this information to the jury. In this connection the judge should not have referred to having admitted the statement. However the situation is readily distinguishable from the situation which arose in The Queen v. Murray [1951] 1 KB 391.

12. Before leaving this matter it needs to be said that some of the observations which were made by Mr Haynes were inappropriate and irrelevant.

13. Ground 2. It has been said on numerous occasions that it is singularly within the discretion of a judge having regard to the situation as a whole whether or not a statement should be admissible as evidence.

14. We are not convinced that there were breaches which would render this conviction unsafe or unsatisfactory.

15. Ground 3 states the comments that "Defence Counsel had said "completely untrue" and "completely misleading" things to the jury were material irregularities. These remarks completely undermined (without justification) the presentation of the applicant's case. The Judge's attempt to correct his error only made matters worse. Justice was not seen to be done."

16. While it is true to state that the judge did make some comments in a fairly robust manner these criticisms would not undermine the authority of Defence Counsel in the conduct of the defence. There is nothing in this ground.

17. Ground 4 relates to the judge's criticism of Mr Haynes for attempting to put all of the blame on Mr Yun. The point which was being made by the judge was that there was nothing inherently improbable in both the applicant and Mr Yun jointly being in possession of these dangerous drugs.

18. Ground 5 reads as follows:

"The direction as to 'mere knowledge' that was eventually given to the jury was defective in that it included 'possession for trafficking' which was not part of the Crown's case. When this direction is considered together with the comments at p18, then the jury could be left with the impression that mere knowledge was enough to support a conviction."

19. The part of the summing-up complained of made it clear that mere knowledge of the drugs was insufficient to found a conviction. The reference to possession for the purpose of trafficking only arose as a consequence of the definition the judge was giving of what might constitute trafficking in dangerous drugs in this case. There is nothing in this ground of appeal.

20. Ground 6. Complaint is made that the applicant's conviction on the second count and acquittal on the first count was perverse. This is not so As no identification was made of the applicant when the two men first approached House 27 there may have been a sufficient doubt in the minds of the jury to enable them to conclude that the prosecution had not proved its case against the applicant beyond a reasonable doubt.

21. This conviction was in no way unsafe or unsatisfactory and this application is dismissed.