THE QUEEN v. KWONG CHIU (D1) AND OTHERS

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JUDGMENT

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Cons, J.A. delivered the judgment of the Court:

1. In December last year a fishing vessel left Hong Kong and motored westward towards Vietnam. Six days later, near to that coast, she kept a prearranged rendezvous with a Thai vessel and under the cover of darkness, a number of large sacks and 2 metal boxes were taken aboard. They were then concealed mostly in the stern hold but one of the two boxes was hidden beneath the floor of the engine room. The sacks contained well over 100 grammes of dangerous drugs and the two boxes a small armoury of hand guns and ammunition. On the return of the Hong Kong vessel to Hong Kong she was intercepted by officers of the Customs and Excise Department and the contraband was eventually discovered.

2. In due course the master of the vessel and the six crew were put on trial before Barnes J. and a jury on two counts; possession of unlicensed arms and ammunition and possession of dangerous drugs for the purpose of unlawful trafficking. The master was the 1st Defendant below. He pleaded guilty to the dangerous drugs charge and was convicted by the jury on the arms charge. The 4th and 5th Defendants, the other two defendants with whom we are concerned today, were acquitted on that charge but convicted on the drugs charge.

3. Apart from the evidence of the interception and so on the evidence against the latter two came from a Mr. Ng, another member of the crew of the Hong Kong vessel who had initially been charged as the 2nd Defendant. He gave evidence for the Crown in return for immunity from prosecution. He implicated the 4th Defendant as the man in charge of the Hong Kong end of the operations, having held a number of meetings at his flat in Minden Row to discuss the prepartions for the voyage. Many telephone calls had been made from that flat to a particular number in Thailand. That number, Ng said, was the number of the contact in Thailand.

4. Ng implicated the 5th Defendant as being present at one such discussion and again also when Mr. Ng called round on another occasion.

5. Mr. Mathew put forward three grounds of appeal on behalf of the 4th Defendant. They may be concisely stated, we hope without disrespect, as -

6. In support of the first ground he drew our attention to many matters which he suggested tended to show that Ng was unreliable, which matters had not been mentioned by the judge. We accept that the matters referred to may be looked upon in that light, and were no doubt considered by the jury in their deliberations. But the choice of how much the jury should be reminded of the evidence of a particular witness and how it should be presented to them is a matter for the discretion of the trial judge, and this Court will not interfere provided that the judge has made it clear to the jury, as did the judge below, that he is not necessarily dealing with all the evidence in the case and that the whole of it is in fact for them, and provided that what he said is fair. In this respect we must mention one passage of the Summing-up which starts at p.14 round about line N. It refers to Ng's giving in cross-examination the name of a person which he had refused to reveal during the whole course of the earlier investigation. This passage was a little difficult to understand on reading the Summing-up by itself, but when taken together with the final speech of counsel who then appeared for the 4th Defendant it would seem that it was put in as an answer to a point made by counsel. We put it no higher than that because even now counsel for the Crown does not understand it in the way that we do, which is as a comment that Ng would not wish to risk the immunity granted to him in return for giving full and truthful evidence by telling in court a lie that in the circumstances could easily be discovered by the Crown. There would of course be no possibility of that lie's being demonstrated to the jury by evidence, and we think it would have been better had the suggestion been left unmade. But we think it unlikely that the jury were unduly influenced by it, that is if they understood it at all, and does not render the summing-up in this respect unfair. The summing-up with every respect to the trial judge we would say was somewhat skimpy. The jury could usefully have been reminded of several other points, but taken all in all we think it was just sufficient.

7. The argument for Ground 2 was in a sense similar. It was not that the judge failed to set out the nature of the defence so much as that he did not present a full picture, that is a picture which included the facts and the principal submissions in support of the defence.

8. With respect we do not accept that he is so required. The authorities to which we were referred do not put it that high. Two were brief reports in the Criminal Law Review. In Tillman⁽¹⁾ the Court of Criminal Appeal in England is reported to have said -

"However weak a defence might be and even when it consisted almost entirely of denials it was a duty of a judge in summing up to put before the jury the nature of the defence reminding them very shortly about the evidence. "

9. In Hamilton⁽²⁾ the same court is reported as saying -

"A person faced with a serious charge was entitled to have his defence laid before the jury in the form that they could appreciate. "

Attfield⁽³⁾ is reported more fully and there is some discussion there on the duties of a judge in this respect. Their Lordships speak of a judge directing "the jury's attention to what may be called the salient features for and against the accused man". The salient feature of the 4th Defendant's defence was that his association with the voyage was innocent. It was very clearly put to the jury that he said so.

10. With regard to the general direction on corroboration of Mr. Ng's evidence the judge was at first unduly favourable to the defence, but he put it right at the conclusion of his summing-up. When speaking particularly of the 4th Defendant he mentioned six items as being capable of amounting the corroboration. They are -

11. The judge then added a further matter which he said could indicate that the 4th Defendant was, as Ng had said, the No. 1 of the operation in Hong Kong. And also earlier in the summing-up the judge had given a general direction, on the accepted lines, that lies in Court can in appropriate circumstances amount to corroboration.

12. Item 6, could in our view perhaps amount to corroboration, in that it puts the defendant at one stage at least in direct physical connection with the drugs. But it must be remembered in this respect that the Crown had expressly declined to put its case on the basis of mere membership of the crew. Item 5, by itself we do not think confirms anything. As to the first four items we respectfully think that the judge below overlooked the fact that for them to prove anything at all reliance upon the evidence of Ng is first necessary to connect those items with the crime. They were thus not independent testimonies. Mr. McNamara for the Crown made a brave attempt to suggest that, although individually the six items may have taken the matter no further, collectively or culminatively they must, with common sense, do so. We regret that we are not so persuaded.

13. In the circumstances of this trial the question of corroboration was one of importance, and we feel the misdirection in this respect was serious and may substantially have misled the jury. They may not have believed Ng without what was said in this way to be corroboration.

14. It is not necessary then to consider the other two matters put forward. We should add however, that a general direction as to the possibility of lies amounting to corroboration, although perhaps a useful direction in some cases, appears to serve no useful purpose in the present instance and may only have confused the jury.

15. We turn then to the application by the 5th Defendant. Mr. Corrigan on his behalf adopted the first ground of appeal and the argument put forward by Mr. Mathew for the 4th Defendant. We need now say no more as far as that is concerned.

16. The second ground relates to corroboration. At p.19 of the transcript the judge said -

"... the evidence of the finding of a fingerprint of the 5th accused at the flat at Minden Row could corroborate the accomplice's evidence that the 5th defendant attended those premises to be a participant in a discussion about this adventure. "

We must interpose, that like the four items we have just dealt with, that could not in any event be corroboration, because it was only the evidence of Ng himself that suggested that flat to be the venue of the discussions. However the judge discounted the evidence for other reasons. He said -

"        We have, however, had evidence from the 4th accused who says that the 5th accused is a friend of his and since the 4th accused was living at that flat, then there would be nothing out of the ordinary if the 5th accused did at some time visit the 4th accused at that flat and leave his fingerprint on a glass in that flat. "

And then later he said -

"... so, therefore, it really doesn't corroborate Ng Chiu-ming's evidence that the 5th accused was present at any of the discussions. "

17. It is said that these passages may have confused the jury and that it would have been better for the judge simply to have given a straight direction that the fingerprint was not corroboration. Perhaps that is so, but we do not think that the jury can in the end have been left in any doubt whatsoever as to the true position.

18. The third ground in respect of this defendant refers to misdirection on the facts. Two passages in the Summing-up are concerned. The first is again at p.19 where the judge said -

"         There is evidence in his own statement to the police that he went on the October voyage and said he was seasick. "

The October voyage was an attempt to bring in dangerous drugs in a manner similar to the present, but which had to be aborted due to bad weather. It may well be that the 5th Defendant did not take part in that voyage. His statement to the police did not admit participation. All that it did say was that he went on one, or perhaps two, genuine fishing trips in September. However we think the slip is of no importance. The crux of the judge's comment, for what it was worth, was that the defendant went to sea again after being sick on the first occasion.

19. The second passage follows on immediately in the Summing-up. It seems to be no more than a suggestion that an enterprise such as took place in this instance could not happen simply by accident, it would need detailed arrangements in advance. That in fact was what the evidence of Ng was mostly about and would seem in any event to be very obvious. It is not easy to understand why the judge thought fit to make the comment at all, or, as it has no more reference to the 5th Defendant than any of the other defendants, why he chose to insert it at that point. But it is not a matter of much significance, and we do not think it can have misled the jury to any degree.

20. Ground 4 is the same as Ground 3 of the 4th Defendant, that is, that the judge did not adequately present the defence. We do not need to repeat the comments we have already made in this respect except to observe that this defendant directed himself not to give evidence. The judge was criticized for not reminding the jury that they should draw no adverse conclusions from that fact. That, we accept, is a common direction, but it is not mandatory.

21. The final ground is the catch-all of "unsafe and unsatisfactory". It is sufficient to say that neither by reason of the particular matters argued or generally are we left with any lurking doubt.

22. That leaves the application of the 1st Defendant. It will be recalled that he pleaded guilty to the drugs charge and was convicted after trial in respect of the arms and ammunition. Mr. Corrigan has submitted two separate grounds of appeal, but to a large extent they go together. In effect they are 1. that the judge failed to tell the jury that the presumption created by Sec. 24 of the Firearms and Ammuntion Ordinance Cap. 238 could be rebutted by the evidence of the prosecution, and 2. that his comment that he himself could see no such evidence at all was too strong, in view of several matters that he could have mentioned to the jury.

23. As regards the first point it must be accepted that the judge did not use express words to that effect, as judges in similar circumstances often do, but the general tenor of his comments could have left the jury in no doubt that it was the evidence which had been led before them to which they could turn and that they were not bound to convict the defendant merely because he had elected not to give evidence himself.

24. As to the second point, the matters in question are set out in a notice of appeal. They are matters that could well have been urged in favour of the defendant if this had been a case where the presumption did not arise. But it did arise, because the lst Defendant was master of the vessel, and its effect was inescapable. What is now suggested are no more than comments. They do not amount to evidence in his favour and in the circumstances the jury were in effect left with little alternative.

25. The consequence of the conclusions we have just recited is that the 2nd Applicant (who was the 4th Defendant) is granted leave to appeal, the hearing is treated as that of the appeal, and the appeal is allowed. The other two applicants are refused leave to appeal against their convictions. That leaves them both with applications for leave to appeal against sentence. But we would first like to hear counsel as to what course we should now adopt with respect to the 2nd Applicant.

(1) (1962) C.L.R. 261

(2) (1972) C.L.R. 266

(3) (1961) 45 Cr.App.R. 309