R. v. NOEL P INFANTE and Others

IN THE COURT OF APPEAL

1995, No.217
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This case comes to us from a trial in the High Court before Deputy Judge Longley and a jury early last year.

2. Three men, Filipinos in their 30's, were on trial.

3. They were tried on an indictment containing four counts. Each count was of trafficking in a dangerous drug. In each instance, the dangerous drug in question was methylamphetamine hydrochloride, which is commonly known as "ice".

4. The quantity of ice concerned under each count is as follows: 111.24 gms under the 1st count; 11.76 gms under the 2nd count; 5.65 gms under the 3rd count; and 91.35 gms under the 4th count.

5. One count, the first one, is against the 1st and 2nd accused jointly. The other three counts are against the 3rd accused alone.

6. On March 24 last year, the jury unanimously convicted each accused as charged.

7. Sentence was passed on the same day. The 1st accused was sentenced to 10 years' imprisonment. The 2nd accused was sentenced to 12 years' imprisonment. And the 3rd accused was also sentenced to 12 years' imprisonment. His 12-year term was arrived at thus. He drew 5 years on the 2nd count, 4 years on the 3rd count and 11 years on the 4th count. One year of the term on the 2nd count was made consecutive to the term on the 4th count. The term on the 3rd count was made concurrent with the terms on the 2nd and 4th counts.

8. The 1st accused seeks leave to appeal against sentence; while the other two accused seeks leave to appeal against conviction and sentence.

9. On February 7, 1996, we heard counsel on all the applications, and reserved our decision on the same.

10. We now give judgment.

CONVICTION

11. The 2nd accused's first and principal ground of appeal against conviction is that there was no case to answer against him at the close of the prosecution's case.

12. In the small hours of the morning of January 17, 1994, he was arrested along with the 1st accused in the street in Western District. It was the 1st accused who was carrying the dangerous drugs the subject-matter of the 1st charge. Being in the company of the 1st accused does not of itself constitute evidence on which the 2nd accused could be properly convicted.

13. There was, however, the record of an interview of the 2nd accused by a police officer through an interpreter. Over the objection of the defence, the judge admitted that record in evidence (as Exhibit P 52) and put it to the jury as evidence on which they were entitled, if they were sure of its truth, to find the 2nd accused in joint possession with the 1st accused of the dangerous drugs in question for the purpose of trafficking therein. Possession for such purpose would of course amount in law to trafficking.

14. First of all, it is submitted on the 2nd accused's behalf that even if it were properly in evidence, Exhibit P 52 shows no more than that he had tentatively agreed to carry dangerous drugs to the Philippines at some future time. We do not accept that submission. Looked at realistically and in context, what the 2nd accused is recorded as saying clearly amounts to an admission that he had undertaken to carry the dangerous drugs the subject-matter of the 1st charge past the X-ray check-point at Kai Tak Airport in return for payment.

15. There was evidence on which the jury could find that the 1st and 2nd accused were on their way to the airport at the time of their arrest. Once the journey to the airport began, the "courier" operation began. And once it began, both men making the journey could be found to be in joint possession of the dangerous drugs which one man was carrying to the airport and the other man was to carry past the X-ray check-point there.

16. Next, it is submitted on the 2nd accused's behalf that the evidence as to the way in which Exhibit P 52 came into existence was such that it ought not to have been admitted or that the judge ought to have gone back on his decision to admit it.

17. We have considered that submission with care. At the end of the day, we feel unable to say that the judge, who had the advantage of receiving the evidence at first-hand, was not entitled to put Exhibit P 52 before the jury or that the jury, who also had that advantage, were not entitled to act upon it to convict.

18. In our view, there was evidence on which a properly-directed jury could legitimately convict the 2nd accused. Was the jury directed properly?

19. A number of complaints have been made on behalf of the 2nd accused against the summing-up.

20. We have considered all those complaints with care. In our view, neither by any positive error or by any omission does the summing-up, while not a model summing-up, provide any basis for quashing the 2nd accused's conviction.

21. The only complaint which we feel requires specific mention is the one against the judge's failure to give a "lies" direction. As we see it, the answer to that complaint is this. Although prosecuting counsel below (not Mr Cross or his junior before us) did conduct his case in a way which unfortunately calls for adverse comment from us, the one thing he did not do was seek to rely on lies by any accused as being of positive assistance to the prosecution in proving his guilt. He attacked the defence evidence as lies solely for the purpose of getting it rejected. It was not essential to give a "lies" direction in the present case.

22. As far as the way prosecuting counsel conducted his case below is concerned, we are driven to say that the language which he used was far too emotive. But heated advocacy is by no means the most effective form of advocacy. There is only one respect in which prosecuting counsel's excesses could have harmed the defence. That was when he attempted to meet allegations of police impropriety by saying that such allegations were "totally illogical" and continuing to say things like this: "The police had nothing to gain by this, but they would certainly have an awful lot to lose, their careers and even their liberty".

23. It would have been better if the judge had stopped that sort of thing at the time. But he did enough when he said in his summing-up:

"Approach all witnesses on the same basis. Bear in mind that police witnesses have no special status as witnesses. Disregard any suggestion that police officers may have more to lose by lying than anybody else."

24. That is all we need to say about the grounds advanced on behalf of the 2nd accused. But some of the grounds advanced on behalf of the 3rd accused are relevant to the 2nd accused too (even as some of the grounds advanced on behalf of the 2nd accused are relevant to the 3rd accused too). We naturally take into account for an accused's benefit anything which might help him whether or not his own counsel urged the same.

25. We turn now to the arguments advanced by counsel for the 3rd accused. Having considered all of those arguments with care, we find no substance in any of them. And there are only two which we feel need specific mention.

26. The first is the argument that the 3rd accused's defence was not adequately put to the jury by the judge in his summing-up.

27. Now, the 3rd accused, as was his right, chose not to go into the witness-box. But there were other defence witnesses. And it was for the prosecution to prove its case and prove it beyond reasonable doubt.

28. It was accepted on the 3rd accused's behalf that the dangerous drugs the subject-matter of the 2nd and 3rd counts, being the relatively small quantities of 11.76 and 5.65 gms of ice respectively, were found in his room by the police when they raided the flat in which it was located. It was his case that he was a consumer of such drugs and that he was in "simple" possession of those two relatively small quantities thereof.

29. But it was also his case that he was not trafficking in those or any other drugs, and that the dangerous drugs the subject-matter of the 4th count, consisting of as much as 91.35 gms of ice, were not in his possession at all. They had been, it was his case, outside his room and had been shifted by the police into his room in order to incriminate him.

30. Now, it is true that the judge did not put that to the jury as neatly as one would have liked.

31. But the jury had received all the evidence and heard all the arguments. And the summing-up must be read as a whole and in context.

32. In our view, the defence was put.

33. The judge talked about the "planting" of evidence. It is said by counsel for the 3rd accused that this was the "shifting" rather than the "planting" of evidence. But the jury would not be going by just one word or the other. Semantics are immaterial.

34. It is said by counsel for the 3rd accused that the judge was biased in his summing-up. We reject that. It is within the province of a trial judge when summing up to a jury to make comments, including telling comments, on the evidence. He must of course make it clear to the jury that they are free to disregard his comments. This judge did make that clear. Also, as has been said in a number of cases, no summing-up should ever go so far as to resemble a second speech for the prosecution. This summing-up did not go that far.

35. The defence was put; and it was adequately put.

36. Turning to the second argument for the 3rd accused which we feel needs specific mention, we come to the complaint that evidence was allowed, some of which was elicited in cross-examination, which linked the 3rd accused to drug consuming activities at an address in Whitty Street. It was submitted that this occasioned prejudice to the 3rd accused, the effect of which would only have been dispelled by a specific direction from the judge which was never given. It is true that no "prejudice" direction was given in the terms suggested. However, we are satisfied that such omission was not a matter of any real weight. No issue had been made of the fact that the 3rd accused was a drug addict. In fact, that was part of his defence. We have no doubt that the jury's mind was firmly focused upon the real issue: which was whether the police had moved the drugs from another part of the flat into the 3rd accused's room.

37. Both applications for leave to appeal against conviction are dismissed.

SENTENCE

38. We turn now to the applications for leave to appeal against sentence.

39. The relevant band here is the "70-300 gms of ice: 10-14 years" band laid down by this Court in AG v. Ching Kwok-hung [1991] 2 HKLR 125 at p. 130.

40. The 1st count concerns 111.24 gms of ice. The 2nd, 3rd and 4th counts together concern a total of 108.76 gms of ice.

41. The 12-year term passed on the 2nd accused under the 1st count and the total term of 12 years passed on the 3rd accused under the 2nd, 3rd and 4th counts are too high. Having regard to how close to the bottom of the "weight" component of the relevant sentencing band the quantities concerned come, those terms are too close to the top of the top of such band.

42. That is especially so when one bears the following in mind. The judge took these accused to be drug users who, as it were, drifted into trafficking. Secondly, as foreigners the impact of imprisonment here is all the greater on them for that reason: which (as we said in AG v. Pedro Nel Rojas [ 1994] 2 HKCLR 69 at p. 73) is a factor even though not a substantial one. And then there is the tragedy of the 3rd accused's wife's miscarriage.

43. We would preserve the judge's decision to treat the 2nd and 3rd accused equally. And we reduce the sentence of each of them to 10 years' imprisonment. As far as the 3rd accused is concerned, we do that by: leaving the terms under the 2nd and 3rd counts undisturbed; reducing the term under the 4th count to 10 years; and making all the terms wholly concurrent.

44. That leaves the 1st accused. We would preserve the judge's decision to treat him more leniently than the other two because of his lesser role. Mr Cross for the prosecution concedes that the 1st accused would have a legitimate sense of grievance if that were not done. So we will reduce his sentence to 8 years' imprisonment. That brings him below the relevant band. But that can be done in exceptional cases. That is what we mean when we say that guidelines are not strait-jackets. It takes exceptional circumstances of course; but it can be done. And here it should be done.

45. Treating the hearing of the applications for leave to appeal against sentence as the hearing of the appeals against sentence, we allow those appeals: reducing, as we have indicated, the 1st accused's sentence from 10 years' to 8 years' imprisonment, and the 2nd and 3rd accused's sentences from 12 years' to 10 years' imprisonment.