HKSAR v. LI SIU CHUNG

CACC 477/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 477 OF 1999

(ON APPEAL FROM HCCC NO. 353 OF 1998)

_____________________

J U D G M E N T

_____________________

Wong JA:

1. The applicant was tried before Deputy Judge McMahon and a jury in the Court of First Instance on an indictment containing four counts of trafficking in dangerous drugs contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He was found guilty on the first count but acquitted of the second count. He now seeks leave to appeal against the conviction.

2. The first count alleged that the applicant

"on the 20th day of May,1998 at the corridor outside Flat E, 3rd Floor, Cheung Fung Building, Nos. 2-6, Tung Chau Street, Mongkok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,038.20 grammes of a mixture containing 794.97 grammes of heroin hydrochloride."

3. It was alleged in the second count that he did

"on the 20th day of May, 1998 inside Room B, Flat E, 3rd Floor, Cheung Fung Building, Nos. 2-6, Tung Chau Street, Mongkok, Kowloon, in Hong Kong, unlawfully traffick in a dangerous drug, namely 5,905.32 grammes of a mixture containing 4,368.01 grammes of heroin hydrochloride."

4. The prosecution case was that on the 20th May 1998, a team of police officers laid an ambush both inside and outside the Cheung Fung Building in Tung Chau Street, Mongkok, Kowloon. At about 1:45 p.m. the applicant and another man subsequently known as Ah Fai were seen to enter the building and went up to the 3rd floor by lift. The applicant was carrying a brown leather bag. Shortly afterwards, the two men came out from Flat E and on seeing the police they ran away. The applicant was stopped and arrested after a short chase and struggle with the officers. The other man was also arrested. PC 17710 who was PW1 searched the applicant and found two bunches of keys in one of his trousers pocket. This officer also searched the brown leather bag which he had seen the applicant carrying when he first saw him in the street. Inside the bag, there were three blocks and it is not in dispute that they were heroin, the subject of the first count. In response to a caution, the applicant said "the stuff is not mine" or words to that effect.

5. Using one of the keys found, the officers opened the door of Flat E and entered the flat. PW1 asked the applicant which room he had just come from and the applicant pointed at Room B and said 'That one". Inside the toilet area, another officer PC49782, PW5 found two more bags of dangerous drugs which are the subject of count 2. Again when he was cautioned in connection of this quantity of dangerous drugs, the applicant said "I don't know to whom those things belong".

6. The applicant gave evidence. His case was that the drugs in the first count were not found on him and he never had the bag. In relation to count 2, he did not have the keys to Room B. The keys were not found on him and they were not his keys.

7. The main ground of appeal is that the conviction on count 1 was unsafe and unsatisfactory because it was inconsistent with the not guilty verdict returned by the jury on count 2.

8. In his careful and balanced summing-up, the judge firstly directed the jury to consider each count separately and return a separate verdict, see p.8C-L of the summing-up. Earlier at p.4 N-R he had told the jury not to speculate.

9. Towards the end of the summing-up at p.42A-E, the judge again reminded the jury to consider the two counts separately and return separate verdicts. In our view, the jury could have been under no misapprehension that they should do otherwise. Indeed, it would be a serious misdirection if they had been told that they must find the applicant either guilty on both counts or not guilty at all on both counts. The two counts must be considered in the context of the evidence that was before the jury.

10. In so far as count 1 is concerned, there is no conflict or discrepancy between the evidence of the police officers. The applicant was carrying the brown leather bag before he entered the building and he was carrying the same bag when he came out from Flat E. The bag was searched and the three blocks of heroin were found inside. This evidence was clear and uncontroversial. The evidence in support of Count 2 is, however, somewhat different and goes a little further. In order to bring home a conviction on this count, it is fundamental for the jury to be satisfied beyond reasonable doubt that at least the keys which opened the flat and Room B were found on the applicant. On this important aspect of the evidence, there are clearly some significant discrepancies between the evidence of the officers. PC17710, PW1 said that he found and seized two bunches of keys from the applicant. But another officer, PW2 was asked quite specifically and gave a specific answer that one bunch of keys were found on the applicant. He also agreed under cross-examination that keys had been found on the other person arrested, Ah Fai and those keys had also been given to PC49782, as well as the keys, the single bunch of keys, found on the applicant. In his evidence, Sergeant 22563, PW3 referred to only one bunch of keys. PC49782, PW5 said that PW1 gave him two bunches of keys and he also heard the applicant say "That one" in response to PW1's question as to which flat he had come from. Then there is the evidence of Inspector Tong, PW7. He said that he prepared a summary of facts in the Identification Parade Officers' Book and this was the entry :

"In respect of the police gaining entrance to Room B the police party randomly checked with the partitioned rooms of the flat, resulting in successful entry of Room B thereof by using one bundle of keys found on the defendant."

This document was produced as exhibit P23.

The judge had this to say to the jury :

" So that seems to be somewhat inconsistent with the evidence of PW1 and the other officers who said the defendant pointed out which room it was ............. Bear in mind also the conversation, "That one", and the defendant indicating Room B, does not appear, as Mr. Wong has pointed out, does not appear in P23 either."

From the evidence, it is therefore possible that the keys which opened the flat and Room B might have been found on Ah Fai and not the applicant and the officers might have mixed it up. On this basis, the jury were justified to give the applicant the benefit of doubt on the second count and acquitted him. All the evidence was put before the jury by the judge in his careful and balanced summing-up. The jury also had heard and observed the demeanours of the witnesses and there is no doubt that they accepted the evidence of the officers. The fact that inconsistencies have arisen are not necessarily due to the witnesses telling lies, there may be other reasons such as a mix up or an honest mistake made by the officers who seized and handled the keys.

11. The applicant also complains in Ground 2 that the judge erred in directing the jury that if they were sure that the applicant was guilty then the jury's verdict "must be guilty".

12. It suffices to read the full passage at p. 42 A-G to set the record straight. The passage reads :

"Members of the jury, that is all I want to direct you on. You will now go out and consider your verdict. There are two counts. As I have said, you must consider them separately and the case for and against the defendant separately in respect of each count. In respect of each count there are only two possible verdicts. One verdict is guilty and the other possible verdict is not guilty. There is no half-way house.

If you are not sure that the defendant is guilty, then your verdict is not guilty. If you are sure the defendant is guilty, then your verdict must be guilty."

13. We see nothing wrong with this. It is a proper direction. Taking the summing up as a whole, the judge's direction is unassailable. DPP v Stonehouse 65 Cr.App.R 192 deals with a different situation and is of no assistance to us.

14. There is no merit in all the grounds of appeal advanced.

15. We are satisfied that the conviction on the first count is in no way unsafe or unsatisfactory. Accordingly, the application is dismissed.