YUNG CHUNG HO v. R.

IN THE COURT OF APPEAL

1992, No. 432
(Criminal)

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J U D G M E N T

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Hon. Yang, CJ

1. This is an application for leave to appeal against conviction on the first count and sentence on the second count if the conviction on the first count is quashed.

2. The applicant was convicted after trial of one count of trafficking in a dangerous drug and sentenced to 20 years' imprisonment. He was also convicted after trial of possession of a dangerous drug for the purpose of unlawful trafficking and sentenced to 20 years' imprisonment. The two sentences were ordered to run concurrently.

The case for the prosecution is that, on the 23rd of April 1991, police officers keeping surveillance at an area near Shanghai Street and Hamilton Street, Kowloon, saw the applicant make a telephone call outside a store, enter a stationary shop and re-appear after a short while with a roll of brown craft paper, after which he entered the Cheung Fat Building and re-appeared after a few minutes holding a packet wrapped in brown paper. The police officers then saw him enter the Saan Yeung Restaurant and have a conversation with two persons. One of the police officers who followed him into the restaurant saw the applicant handing over a packet to a man (later identified to be one Ng Ka-cheung) who put it inside a black plastic bag and left in a taxi. Ng Ka-cheung was later intercepted by the police and found to have dangerous drugs inside the black plastic bag.

3. The above forms the subject matter of the first count.

4. The facts relating to the second count are these. The applicant took the police to his home. He told the police where the key to the inner room was kept. It is not in dispute that the applicant knew of the key because he had been told about it by a man called Chan Fai. The evidence of the police was that the applicant confessed to the whereabouts of the dangerous drugs found in the inner room. The applicant however denied having said that. The evidence of the landlady of the premises was that she had let the room to the applicant for occupation.

5. The appeal turns on the way the judge directed the jury on the issue of knowledge. It is argued in respect of the first count that the judge failed to direct the jury that the ingredient of knowledge as to the nature of the contents of the packet was necessary. No mention was made of the ingredient of knowledge. There was therefore a non-direction. However, when the judge came to direct the jury on the second count, he correctly explained the ingredient of knowledge.

6. It is argued that the omission by the judge to refer to that ingredient in his direction to the jury in respect of the first count was rendered more serious by his direction as to the necessity of knowledge as an ingredient of the offence in the second count.

7. By the final Ground of Appeal, it is contended that in the premises the conviction on the first count is unsafe and unsatisfactory.

8. In respect of the second count, the issue as to knowledge was clearly and correctly explained to the jury in the judge's summing up. There was no question that the jury were perfectly entitled to convict as they did. In doing so, they must have understood the judge's direction on knowledge and, accepting the evidence of the police's witnesses, found that the applicant had the requisite knowledge in respect of the second count.

9. In our judgment if the jury had been given the full direction on the first count they would have inevitably convicted on that count as well, particularly in the light of the strong evidence against him alluded to above. The jury could not have been under any misunderstanding that whilst knowledge was required in respect of the second count, it was not required in respect of the first count.

10. The omission of a direction on knowledge in respect of the first count was an unfortunate lapse. We do not think, however, that there could be a miscarriage of justice in all the circumstances of the case. This is clearly a case for the proviso. We apply the proviso and dismiss the appeal.