THE QUEEN v. CHOW HUNG CHEUNG AND ANOTHER

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. My Lord Li V.-P., who regrets he is unable to be present today, has asked me to say that he is in agreement with the judgment about to be delivered, which is thus the judgment of the whole Court.

2. The two Applicants, who lived together as husband and wife, were on the 12th April convicted by His Honour Judge Blackwell at the Kowloon District Court of being in joint possession of 180 odd grammes of a mixture containing heroin for the purpose of unlawful trafficking therein. The husband was convicted of a further similar offence with regard to 56 odd grammes.

3. The evidence was that the husband was seen by Customs Officers to leave his address at 41-47 Hang On Street, carrying a handbag and a brown plastic bag. The plastic bag was later found to contain the larger amount of heroin. He went into a restaurant opposite and emerged 5 minutes later together with the wife. When they were intercepted by the Customs Officers the brown plastic bag was found inside a handbag which the wife was carrying. In the husband's handbag was a key which eventually led to a flat in 41-47 where scales, packaging materials and the smaller amount of heroin were found.

4. In addition both the husband and the wife made statements to the officers, in which, amongst other matters, the husband claimed the powder in the plastic bag to be his and that he had put it in the handbag of the wife without telling her what it contained, while the wife said that she knew it was white powder that was put into her bag, but only came to know that when the Customs Officers opened the bag and showed it to her.

5. The case was first called in the District Court on the 6th January. Both Applicants pleaded not guilty and the hearing was set for the 24th March with the following day also reserved. When the case was called again on the 24th March a solicitor instructed by the Director of Legal Aid informed Judge Blackwell that the husband had withdrawn his instructions from the Director and wished to be represented privately. At this juncture a Mr. Chang, whom we understand to be from the firm of Gary Mak & Co., Solicitors, informed the Court that he acted for both Applicants and would like an adjournment of the hearing as he had been instructed only a few days previously and that time was needed for the Applicants to raise money to brief counsel. The learned Judge took the view that there had been ample time since the first hearing to raise money to brief counsel and, the prosecution being ready to go on, he refused the adjournment. Mr. Chang's instructions were limited to an application for an adjournment and accordingly he then withdrew. However the solicitor originally instructed by the Director of Legal Aid was still in Court and the learned Judge offered to stand the matter down for legal aid to be regranted. Both Applicants declined the offer. They were thus unrepresented during the trial.

6. It is not possible in those circumstances to suggest that the earned Judge exercised his discretion wrongly, and to be fair to Mr. Poll, who appears for the Applicant, he does not do so. What he does suggest, if we understand his contention correctly, is that looking at the matter now with hindsight, and bearing in mind the presence in evidence of the two statements and the fact that neither husband nor wife cross-examined or gave evidence, it may well be that had they been in fact, represented learned counsel might have ordered things differently for them and secured for the wife at least a possibility that the Judge would take a more favourable view of her involvement.

7. With respect we do not think it possible to speculate upon what might have happened in circumstances which did not, or as to what view the Judge might have taken if either or both of the Applicants had given evidence. We would only add that Mr. Poll is instructed that the last minute application for adjournment was not due to the idleness or, financial inability of the Applicants. but may perhaps have been the result of defalcation by the solicitor on whom they had originally relied. If that is so, it is unfortunate that it was not mentioned to the Judge, who might well then have taken a different course.

8. But the matter does not rest there. In R. v. Leung Kam Kwok⁽¹⁾ the Privy council dealt with what are commonly called "mixed statements". Lord Roskill said⁽²⁾ -

"Their Lordships respectfully suggest that the position resulting from those English decisions is not as complicated as the Court of Appeal there appeared to have thought. If an accused person in a statement not made on oath in court denies his guilt, saying for example 'I am not guilty: I was not there' and no more, that statement is not evidence of the truth of his absence from the scene of the crime and thus of the truth of his alibi. But if such a statement consists partly of an admission and partly of an explanation for example 'I shot him: it was an accident or I shot him: I was provoked' the admission is plainly admissible and common fairness requires that the entirety of the statement should be admitted so as to show the precise context in which the admission was made, even though what is said by way of explanation or excuse is not evidence of its truth. Where the accused goes into the witness box and repeats the explanation or excuse on oath there is no problem.  Where he does not go into the witness box it behoves the trial judge, when dealing in his summing up with the admission, in common fairness to the accused, also to refer to the accompanying explanation or excuse, adding if he thinks fit to do so that that explanation or excuse, has not been supported by evidence on oath before the jury. It is then for the jury to evaluate the admission and the unsworn explanation or excuse as they think fit."

9. As we read the Reasons for Verdict of the learned Judge below he made no attempt to "evaluate the admission(s) and the unsworn explanation(s)". He merely observed that the prosecution sought to produce the statements in evidence "despite the overwhelming evidence given by the arresting officers".

10. We therefore took time to consider whether had he done so there was material in the statements which might have persuaded him in the wife's favour in which case we should order a retrial as far as she is concerned. There was obviously nothing which could have helped the husband. However on consideration we have concluded that we should not. The last question recorded in her statement is - "Do you know what work (the husband) does in earning money for your living expenses?". The answer is fatal to her case - "Selling white powder". We are not prepared to accept Mr. Poll's suggestion that this was a conclusion that she had drawn from the husband's conduct that very morning, and once it is accepted that she knew beforehand of her husband's activities, no judge could give credence to the claim that she did not realise at the time that what he was putting into her handbag was itself white powder.

11. For these reasons we refuse leave to appeal to both Applicants.

(1)    [1986] H.K.L.R. 188

(2)    at p.196