NG PO YAU v. R.

IN THE COURT OF APPEAL

1991, No. 81
(Criminal)

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J U D G M E N T

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Silke, Acting C.J.:

1. This is the judgment of the court.

2. Ng Po Yau appeared for trial before Barnes J. and a jury on a single count of trafficking in a dangerous drug, contrary to sections 4(1)(3) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

3. The particulars alleged that he, on 9th March 1990 at Hong Kong International Airport, unlawfully trafficked in 701.77 grammes of a mixture containing 631.51 grammes of salts of esters of morphine.

4. After trial he was, on 16th January 1991, convicted and, on 29th January 1991, sentenced to a period of 15 years' imprisonment. He filed, and in time, on 22nd February 1991, an application for leave to appeal against conviction and an application for leave to appeal against sentence. He was to be represented in the hearing of those applications by a firm of solicitors who, on 29th July 1991, informed the court of the applicant's intention to abandon his application for leave to appeal against conviction. The matter was heard on 1st August 1991 and by a notice dated on that day he did so abandon. The issue of sentence was dealt with and the application was refused.

5. The applicant had, prior to the intended hearing date of his application for leave to appeal, received advice from counsel that there were no arguable grounds in respect of either conviction or sentence. A fresh counsel having been instructed he proceeded in relation to his sentence only.

6. In the second half of 1992 he sought further advice from counsel - by now the third counsel. As a result he petitioned His Excellency the Governor to refer the whole of the case to the Court of Appeal under the provisions of section 83P(1)(a) of the Criminal Procedure Ordinance. The Petition was based on a suggestion that, as the applicant was found at Kai Tak in possession of the drugs then, although he had passed through Immigration control, he was not "trafficking in the drugs because he had not yet exported the drugs". "Exporting" it was submitted would not have taken place until the aeroplane had left Hong Kong air space. Nor surprisingly, His Excellency refused to accede to the Petition.

7. Now a fourth counsel, Mr. Marash, enters into the matter. While the application before us was, in form, for an extension of time within which to appeal against the conviction, it is in reality an application to treat the abandonment of the 1st August 1991 as a nullity on the basis that the applicant's mind did not go with his act.

8. We are satisfied that the principles set out in Medway (1976) 62 Cr App R 85, as adopted in R. v. Chan Tak Kwong [1983] HKLR 391, are applicable. The test being whether, at the time the applicant abandoned his application, his properly advised mind went with his act. Was it the applicant's true act or was it a mistake? It is important to note that there is a difference between a mistake as to his act and a mistake as to the prospects of success of an application which leads to an abandonment. It is unlikely in the latter case that leave would be granted.

9. Mr. Marash based his advice to the applicant, and his submissions to us, on one passage in the summing up which contained a reference to the fact that "a defendant has an obvious motive to lie". The full passage, to illustrate the context of the portion in respect of which complaint is made, reads as follows:

" In making your assessment of what you accept and what you reject, you should use your common sense, your experience as people of the world and your knowledge of human nature. Your recollection of the demeanour of the witnesses as they gave their evidence is a useful aid in making that assessment. You will ask yourself whether the witness had an interest in telling the truth, whether he or she had a motive to lie.

A customs officer who thinks he has caught somebody in the act of committing a serious offence may be tempted to improve his case by telling a lie because he does not want to see a guilty person escape.

A defendant has an obvious motive to lie. so obvious that it does not need to be stated here. But of course the fact that a person may have had a motive to lie does not mean to say that he or she did in fact lie. It is a matter that you will keep in the back of your minds when you are making an assessment of the credibility of a witness.

You will ask yourself: did the version which the witness related have the appearance of truth, or were there unexplained inconsistencies which made it unacceptable to you as the jury." (Emphasis supplied)

In R. v. Robinson (1991) 55 A Crim R 318 at 321, the High Court of Australia said this:

"If that [the presumption of innocence] is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite a plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which the presumption gives to an accused person.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

10. That passage was adopted by this court in R. v. Leung Kit Chun Criminal Appeal No. 291 of 1993, judgment being delivered on 1st February 1994.

11. The point raised by Mr. Marash did not impinge upon his consciousness until he had seen a copy of the judgment in Leung Kit Chun. It is his contention. that the passage from the summing up to which we have just referred contained all the elements of that which was condemned in Robinson and for that reason is fatal to the conviction here.

12. Here the facts proved at trial were sufficient in law to raise against the applicant the presumptions of possession and knowledge as provided for in section 47 of the Dangerous Drugs Ordinance. The applicant admitted possession of the items containing the drugs. When stopped and searched at Kai Tak, one packet of drugs was found in his clothing and one was strapped to his abdomen by adhesive tape. It was the applicant's case that he had been given the packages, which he thought to be souvenirs, by a man with whom he had become friendly while on his visit to Hong Kong. The applicant intended to return to the United States, where he then lived, in connection with his application for naturalization as United States citizen. Two days before his due date of departure, he was visited by this friend who brought the two packets of gifts. The applicant said that he was told that the packets contained cigarette lighters and gold pens; that the friend was to arrange for his, the friend's, family to pick up the applicant on arrival in America; and that he was not to make a customs declaration about the articles because they were not worth a lot.

13. The applicant intended to put both packets in his inner pocket of his jacket but, as there was not enough room, he had put one in the pocket and concealed the other by strapping it to his abdomen. He did this so that, if the customs detected the articles in his jacket, he would have to pay duty for only one of the packets hoping the other would be undiscovered.

14. Clearly, by his admission of factual possession, the burden of proof had shifted to the applicant and he had to prove, to the required standard, that he did not know he was in possession of dangerous drugs.

15. The evidence at trial was overwhelming. In the course of an interview with a customs officer made under caution - and the voluntary nature of this was contested at trial - the applicant stated that he was to be given tea money by his friend's relatives when he arrived in the United States. That tea money was to be some US$10,000. This was unlikely if the packages really contained souvenirs of little worth.

16. Those circumstances differ from the circumstances that existed in Robinson. It was incumbent upon this applicant to give evidence and it was incumbent upon him by that evidence to persuade the jury, on the more likely than not test, that he did not know the packages contained heroin.

17. We accept that the complained of passage is not one which should have been contained in the trial judge's summing up even if the judge were attempting to assist the jury by a comparison between the customs officer's contested evidence as to the tea money statement and that of the defendant. Every guilty defendant has a motive to lie - far less so if a defendant were innocent - but it would have been quite wrong for the judge to have put the matter in that way to the jury. But that, in effect, was what he did.

18. The judge left the real issue squarely to the jury when he said to them at page 8G:

"So that is it, members of the jury: if you think that it is more likely to be true what he has told you about how he came into possession of those articles, find him not guilty: if you think that that is a lie, a weak attempt to explain how he was caught red-handed, then of course you will find him guilty. That is it in a nutshell."

19. In the light of the judge's observation to the jury that the applicant had an obvious motive to lie, we granted the application for leave to treat as a nullity the abandonment of his application for leave to appeal against conviction.

20. However, while we were indebted to Mr. Marash for his interesting submissions and having considered the whole of his argument, the evidence before the trial court, where the burden of proof lay, the correct general directions on the burden of proof and the nature of the direction complained of, we had no hesitation in coming to the conclusion that there was here no miscarriage of justice - however unfortunately worded the direction may have been.

21. We therefore treated the hearing of the application for leave to appeal which was before us, consequent upon our treating the abandonment as a nullity, as the hearing of the appeal but dismissed the appeal by the application of the proviso.