THE QUEEN v. YAU CHIK HUNG

IN THE COURT CAF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 10th September of last year YAU Chik-hung was convicted by a jury in the High Court of two offences of possessing dangerous drugs for the purpose of unlawful trafficking. The first related to a mixture containing over 457 grammes containing heroin and the second to a mixture containing over 36 grammes of such a mixture. He visa sentenced by Deputy High Court Judge to 7 years imprisonment for the first offence and to 4 years imprisonment for the second; the two sentences to run concurrently. Against those convictions he seeks leave to appeal. Originally he sought leave, in the alternative, to appeal against sentence but that application has been abandoned and we formally dismiss it.

2. The prosecution case, as summed up by the learned judge to the jury, really amounted to the fact that the applicant was seen by police officers, when they entered certain premises, to be literally up to his elbows in white powder, subsequently analysed as a heroin mixture, which, with the aid of a piece of cardboard, he was shovelling into cellophane packets. That was quite sufficient to warrant the jury, if they accepted such evidence, in convicting him of these offences.

3. There was another defendant, who makes no application to us, whose convictions depended upon the application of certain presumptions which arose following the discovery in her possession of keys to the premises. Unhappily, in his manifestly great concern to explain the effect of the presumptions to the jury in relation to that defendant the judge also suggested to them that they should take the presumptions into account in relation to the applicant since keys were also found in his possession. These directions, which reflected his concern, were extremely confusing and repetitive and, in consequence, the jury came back and sought further directions. This resulted in a fresh set of speeches from counsel and virtually a fresh summing up from the judge to similar effect. Indeed, he even suggested that the real conflict of evidence lay between witnesses for the Crown rather than between witnesses for the Crown and witnesses for the defendants.

4. In the event the grounds of appeal originally relied upon by Mr. Alderdice, who appears for the applicant, were supplemented with leave by additional grounds relying both on the confusion which must have been caused by the directions on the presumptions and on the length of time during which the jury was subjected to them. In relation to a case the facts of which came within a very small compass the summing up lasted for three and a half hours. We ourselves had been somewhat astonished to observe the number of pages taken up by the transcript. And so it is suggested, now conceded by the Crown and found by us, that the convictions were unsafe and unsatisfactory.

5. Before considering whether or not it would be appropriate to invoke the proviso to section 83(1) of the Criminal Procedure Ordinance we would like to observe once more that it is helpful to inform juries, before they retire, that if they have a question to raise arising from their deliberations it should be reduced to writing and then returned to the judge by the jury bailiff so that before they return to Court it can be considered by counsel as well as by the judge. In due course the jury may receive from the judge, and only from the judge, such fu further assistance as is appropriate.

6. Should we invoke the proviso in this instance. It is true, as Mr. Shaw says on behalf of the Crown, that if the jury accepted the evidence of the police officers beyond a peradventure they would have returned verdicts of guilty. But the defendant himself gave evidence and we are in no position to be assured that the jury in fact accepted the one account rather than the other. In those circumstances we do not think it appropriate to invoke the proviso.

7. We allow the applications, treat this as the hearing of the appeals and quash the convictions. But the matter will not remain  there. As is fairly conceded by Mr. Alderdice this case must be retried. We accordingly order that the applicant be retried upon a fresh indictment but, having regard to contingent sentencing realities, in the District Court.

8. In conclusion we would like to thank counsel for the way they have conducted this matter before us resulting, we think, in the correct outcome.