THE QUEEN v. CHAN KA KIT

IN THE COURT OF APPEAL

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J U D G M E N T

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Fuad, V_..-P. (giving the judgment of the Court) :

1. On 23rd June 1987 the Applicant, Chan Ka Kit, was convicted in the High Court (O 'Dea, J. and a jury) of conspiracy to traffic in dangerous drugs (Count 1). The jury's verdict was unanimous. He was sentenced to 14 years' imprisonment on the following day. From his conviction he seeks leave to appeal to this Court. He has abandoned his application for leave to appeal against sentence.

2. Two men were jointly indicted with him on the same Count. Chung Ming (D2) was acquitted on a unanimous verdict. Chung Kwok Kwan (D3) pleaded guilty to that Count; and also to Count 3 in which he was charged alone with possessing dangerous drugs for the purposes of trafficking. This Count bore no relationship to the offence charged in Count 1.

3. The facts, as they affect the Applicant, are simple enough. On 22nd January 1987 the police had the Applicant, D2 and D3 under surveillance. The police saw D2 and D3 go into D3's flat. They left the flat a little under an hour later, between 5 and 6 p.m. D2 was carrying a suitcase. They got into D2's car with the suitcase and drove to a road junction where D3 handed over the suitcase to the Applicant.

4. The Applicant took the suitcase to his own home and emerged with it an hour or so later. He met D2 and D3 again, and D2 drove the Applicant in his car; with the suitcase, to the public car park at Kaitak Airport. They walked over the bridge to the Airport Meridien Hotel. The Applicant checked into a room booked in his own name. The two men went up to the room together, a hotel porter carrying the suitcase ahead of them. They both left the room for a while without the suitcase and, later, returned to the room. A short time later, D2 left the Applicant alone in his room.

5. Shortly after 11 p.m., officers from the Narcotics Bureau knocked on the door of the Applicant's hotel room and were let in by him. He was alone. The suitcase was opened with a key provided by the Applicant. There were some clothes in the suitcase in false compartments in the lining of the top and bottom of the suitcase were found 32 blocks of a substance which later proved to be No.4, that is to say high-grade heroin. The packets weighed 4.11 kilos. The suitcase, empty, weighed 15 1bs. Packed with the drugs, but without the Applicant's clothes, it weighed 24 1bs.

6. The Applicant was found with an airline ticket and was booked to fly to New York on the following morning.

7. All along the Applicant's defendant was that he did not know that the suitcase contained the packets of drugs. He explained that he was going to New York at the behest of D2 who had asked him to go there to collect a sum of between US$70,000 and 60,000 from a friend of D2. He was to receive about US$1,000 for performing this service and his hotel expenses would be met.

8. As to the suitcase, the Applicant said that he had lent his own to his mother-in-law at the end of 1986 so that she could use it on a holiday to China. When he raised the problem of having no suitcase with D2, D2 had said he would provide one for him.

9. The Applicant went on to relate how he had been given the suitcase by D2 on 22nd January and taken it to his home for packing, and then gone to the airport and the hotel with D2. When carrying the suitcase he had noticed only that it was slightly heavier than an ordinary suitcase. He said he was most surprised when the Narcotics Bureau officers found the drugs concealed in the lining of the suitcase he had borrowed for the trip.

10. In his testimony D2 (who works in a travel agency) told the jury that the Applicant had ordered his plane ticket from him and that the Applicant's trip to New York had nothing to do with him. It had been arranged that he would take the ticket to the Applicant. D3 had asked him on the telephone whether he could go along because he was to lend a suitcase to the Applicant. He had agreed to take D3 to the Applicant's flat for this purpose.

11. It is not necessary to say much more about the evidence save to remark, perhaps, upon the extraordinary circumstance, (had the Applicant been an innocent courier) that the real culprits had chanced upon a man willing to take a trip to New York on a false errand who happened to have lent his suitcase to someone else so that they could conveniently pack the suitcase he would have to borrow with the heroin; an innocent courier, too, who would not notice the extra weight of the suitcase and the reduction in space inside when he came to pack his clothes.

12. Whatever may have been the truth of D2's version of what happened, it will have been seen, even without the statutory presumptions, what a formidable case the Applicant had to meet.

13. When the Notice of Appeal was filed there were a number of grounds in it. But the only grounds upon which Mr. Keane argued the application were those in Ground 3 and in the Additional Ground of Appeal. The points raised by those paragraphs are:

(a) that the judge ought to have acceded to the application made during the trial on behalf of the Applicant that the jury be discharged;

(b) that Crown Counsel had supplied probative evidence to Counsel for D2 without informing Counsel for the Applicant to enable Counsel for D2 to cross-examine the Applicant.

14. What happened was this, when the Court resumed on 19th June 1987, the 9th day of the trial, Counsel then appearing for the Applicant, Mr. Polson, applied to the judge to have the jury discharged. He reminded the Court that Counsel for D2 Mr. Hemmings, while cross-examining the Applicant had put various immigration records to him. He, Mr. Polson had not seen them before and had assumed that the Director of Immigration had been subpoenaed and this was how the records came to be produced. That would have been alright. However, late in the afternoon of the previous day's hearing, he had asked Crown Counsel where Mr. Hemmings had got the records from and had received the reply: "He asked me for them and I gave them to him." This meant that the Crown had secretly supplied information to Mr. Hemmings without he, Mr. Polson, being informed.

15. Mr. Polson suggested that he had been placed at a disadvantage because had he seen the documents earlier, before calling the Applicant, he would have had an opportunity to take instructions and to allow the Applicant to give an explanation for them if he wished to do so.

16. The matter did not, however, stop there. Crown Counsel had been in possession of information that had been supplied to the police by the Immigration Department in confidence, information which had been passed on to Mr. Hemmings secretly.

17. The effect on his client was that he had come to the Court expecting a fair trial and had seen a situation unfolding where Counsel for D2 had come to a secret arrangement with Crown Counsel to acquire confidential information to put to him in cross-examination. That was grossly improper.

18. Mr. Polson then referred the judge to R. v. Weaver [1968] 1 Q.B. 353 for the principles to be applied, pointing out that here there had been no inadvertence, but a deliberate act.

19. Mr. Hemmings responded by reminding the judge that when he was cross-examining the Applicant on behalf of D2 he had certain documents relating to the travel agency for which D2 worked which indicated that tickets had been brought in the Applicant's name for travel during 1936 to various places. To his surprise, the Applicant had denied he had been on some of the trips himself - or could not recall whether he had done so or not - suggesting that some of the trips had been undertaken by other people, and had been extremely vague about it all. He had asked the prosecution whether they had the Applicant's earlier passport because his current passport had been recently issued. He was told that it was not available but that the prosecution did have records from the Immigration Department relating to the Applicant's comings and goings. Counsel explained that he wanted to show that the Applicant had booked the tickets for his journeys with the travel agency for which D2 worked and had himself gone on them.

20. There was, said Mr. Hemmings, nothing secret about the matter at all. The records were handed over in the court room. It was common ground between Counsel that Mr. Hemmings had suggested that there might be an adjournment so that they could be looked at by the Applicant at his leisure. This was after Mr. Hemmings had received the immigration records but before he made use of them. No objections had been raised. Mr. Hemmings explained that if there had been, the appropriate Immigration Officer would have been called, and that those other trips were no part of the prosecution's case.

21. Counsel for the Crown told the judge that there was nothing secret about the documents. He would have handed them to any Counsel who had legitimately asked for them.

22. Mr. Polson then submitted that the basic principle was that when a person stood Trial he was entitled, as a matter of law, to be appraised of the evidence which is intended to be produced against him by the prosecution. When a person decided upon his plea, his legal advisers would go through the evidence against him, take instructions and give him advice. When a decision was made by a defendant to go into the witness box he did so knowing in advance what was the evidence for the prosecution against him, and he had prepared his explanation for that evidence. This had not happened in this case. Put another way the case had "taken a turn because of the conduct of counsel for the Crown".

23. Mr. Polson reiterated the point that information furnished to the Police Department in confidence should not, on any account, be shown to unauthorised persons. That, said Counsel, spoke for itself.

24. As to the suggestion by Mr. Hemmings that he could have stood the matter down to look at the documents, the damage had been done at that stage. It was depriving his client of the opportunity to be shown these in conference with his legal advisers before he made the decision to give evidence. He submitted that suddenly to confront him with the documents in cross-examination was the key to the unfairness.

25. The judge took an adjournment of just under one hour to consider the application and delivered a ruling on his return to Court. He said that he had considered the implications of what had happened in the context of the trial, and in particular, in the context of the evidence as against D1 and the position that he had been placed in as a result. He had also looked at the law and the circumstances which the Courts had laid down when the trial judge should order a mistrial and discharge the jury. He concluded his ruling in these words:

"What, of course, is paramount in this type of consideration - essentially each case depends on its own facts; that the decision at the end of the day is entirely in the discretion of the judge making it. And in exercising my discretion, and having looked very carefully at the complaint which has been made on behalf of the 1st accused, I have come to the conclusion that if any prejudice has occurred to the 1st defendant it falls far short of the degree of injustice which would warrant the discharge of the jury in this case. And accordingly I rule that the application for a mistrial must be declined."

26. Mr. Keane has submitted to us, with some force, that as a result of Crown Counsel's conduct, not only an irregularity, but a material and serious irregularity, had occurred. He suggested that it was wholly improper for Crown Counsel to give material to Counsel appearing for one defendant that might be used in cross-examination against a co-defendant without showing it to Counsel for the co-defendant. He suggested that what had happened was grossly unfair and so irregular that the Applicant was entitled to have his application for leave to appeal granted. The Court would then have to consider^. Whether or not the proviso should be applied.

27. We have carefully considered the matter. While we are quite certain that Crown Counsel had not deliberately acted in a secret manner, we do think that it would have been wiser had he drawn the attention of Mr. Polson to what he was handing over to Mr. Hemmings.

28. However, in all the circumstances, we think the judge was right not to discharge the jury for we are unable to see what possible prejudice could have been suffered by the Applicant as a result of what happened. Although it might be said that there was an irregularity, we are satisfied that it was not a material one and, therefore, that there are no ground upon which the verdict of he jury on the judge's impeccable summing up, can be quashed.

29. For these reasons, we dismiss the application. We formally dismiss the application for leave to appeal against sentence which was, by leave, withdrawn.