WAN CHIK WAI v. R.

IN THE COURT OF APPEAL

1993, No. 669
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. The applicant, Wan Chik Wai, appeared for trial before Her Honour Judge Chua in the District Court on a single charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drug Ordinance, Cap.134.

2. The particulars of that charge read that he on 16th November 1992, inside Shop No.28, 1/F., Yee Fat Building, No.202, Wo Yip Hop Road, Kwai Chung, New Territories, had in his possession a dangerous drug, namely 32.14 grammes of a mixture containing 14.73 grammes of salts of esters of morphine.

3. He was convicted and sentenced to a period of 2 years' imprisonment. He now seeks leave to appeal against that conviction and, if necessary, the sentence.

4. On 16th November 1992, a police raid was carried out on the shop referred to in the charge. The door was broken down and upon entry two men were found inside. These were the applicant and one Tsang Wai Man. The inspector in charge of the party, having identified himself and informed the men that he suspected the premises to hold dangerous drugs, asked the men what they were doing there. It was his evidence that the applicant said that he was the principal occupant. Nowhere was this recorded.

5. The shop was searched and in a room to the left at the top of the sketch produced was found on a form of desk a Marlboro cigarette packet which contained 17 drinking straws sealed at both ends. These contained heroin the quantity being a mixture of 4.99 grammes containing 2.06 grammes of salts of esters of morphine. Also on top of the desk were three metal clips, a pair of scissors, a pair of shears and a plastic lid of a po-chai phial to which a handle of wire had been attached. All of these contained traces of heroin. There was also found a box of plastic cut drinking straws similar to those which contained the heroin in the Marlboro cigarette packet. Further, cash of $800 and a cigarette lighter were found on the desk.

6. In a drawer in the desk was a single polythene bag of heroin with 27.12 grammes of a mixture containing 12.67 grammes of salts of esters of morphine. The applicant was searched but nothing was found on him. In another area in the shop, in a cabinet, was a blender but this had no traces of dangerous drugs.

7. The second prosecution witness PC16370 arrested and cautioned the applicant. In reply to the caution, the applicant, according to the constable, said:

"The things are not to related to Tai Pau [and we take it to be the other man Tsang who was on the premises]. He came to look for me to have a chat. I'll hand over this case to you and you give me a chance."

8. When asked what the reference to "this case" meant, he said he would pass on information relating to drugs to the constable.

9. After the premises had been fully searched, the applicant was asked if he had any key or keys to it. It was the constable's evidence that the applicant searched for a while and then produced two keys which were near the door. Where exactly was not stated. These keys could open the iron grille and the wooden door.

10. Originally, the seized items, that is other than the Marlboro cigarette packet and the plastic bag of drugs, were not produced. The court intervened to ask why they had not been produced and counsel appearing on fiat for the Crown expressed it as his view that, as the applicant was charged with possession, he did not believe them to be material. At a later stage in the trial, the first prosecution witness PC47807 was recalled for the purpose of producing them.

11. That which was said in answer to the caution was later post-recorded and, we are told, signed by the applicant. But that exhibit was never produced.

12. During the evidence given by the recalled PW1 the trial judge expressed it as her view that she could not understand why a possession charge had been laid. In the course of the evidence of the final witness, the Inspector - who had not originally been expected to be called and was not on the list of witnesses - the judge suggested that the Crown did not close its case until it had obtained instructions on altering the charge. She asked for an amended charge. On the second day of the trial, counsel informed the judge that he had taken instructions and that these were not to amend the charge. The judge thought this to be "absurd". Counsel expressed the view that the applicant may have been packing the drugs for his own use to which the judge retorted "Nobody packs it in straws for his own use." She went on to state that she would make her views known in her verdict. The Crown's case was then closed and the applicant gave no evidence.

13. At this point, counsel then appearing for the applicant asked for an adjournment for the purpose of calling the landlord of the shop. That application was refused. This was the subject of the first ground argued before us by Mr. Haynes who appeared for the applicant in this court. It can be very easily disposed of. Counsel was by no means taken by surprise at the evidence of the inspector as to the occupancy of the shop. It appeared in the summary facts where the applicant was stated as having said that he was the "tenant" of the premises. Further, the charge date was 31st December 1992, the first plea was taken on 15th January 1993 and the trial did not begin until 18th October 1993 . There was ample time for the applicant to have made arrangements, should he wish to call him as a witness, to have the landlord present.

14. The second, third and fourth grounds gave me greater cause for concern. Ground 2 relates to the judge's attempt to have the charge amended. Ground 3 alleges that the trial judge failed to analyse various discrepancies in the evidence of the two police constables as compared with that which they said in their witness statements. Ground 4 is a rolled-up ground of unsafe and unsatisfactory.

15. The trial judge stated her conclusion, at page 8 of the Reasons for Verdict, thus:

"I am satisfied beyond reasonable doubt the officers were truthful and the defendant had said he was the principal occupant. Looking at the photos [four photos were produced as Exhibits P2 and P14] and the sketch, I infer he was the only person occupying these premises. I also infer from what he said to the officer and the rest of the evidence that he possessed the drugs and had packed them into the short straws found in the Marlboro packet. I also infer he knew the white powder in the straws and bag were heroin."

16. These premises bore little, if any, relationship to a domestic premises. There was a single mattress found in the room which contained the drugs. The rest of the premises, to which was attached no kitchen and no bathroom, contained a miscellaneous items of furniture such as mahjong stools and tables. There was also a television.

17. In the course of the hearing, this shop, as the charge said, became transmuted into living quarters, there being various references in the evidence to "bedrooms" and "living rooms" - a description which the trial judge seemed to have relied on for, in her Reasons for Sentence, she referred to the defendant as being "at home". There was no evidence of any personal belongings of the applicant or of anyone else being found there. This with respect was an unfortunate gloss upon the evidence.

18. Both of the police constables, PW1 at page 24 of the transcript and PW2 at page 34, stated themselves to have heard the inspector ask who the principal occupant was and the applicant to have replied that he was. This was in contradistinction to their witness statement which were used by counsel then appearing for the applicant to cross-examine them. PW1 stated:

"Subsequently, 1 was informed that AP2 [the applicant] was the tenant of that premises."

PW2, in his witness statement, made no reference at all to this matter. As we have said, the inspector made no record of anything said by him or to him on the premises.

19. Mr. Haynes' criticisms that the judge failed to analyse these discrepancies has moment. Regrettably, there seemed to have been a very casual attitude adopted by the investigators of this matter and indeed a casual attitude in relation to the eventual prosecution of the applicant. The trial judge, with respect to her, seems to have been concentrating more on the fact that no trafficking charge had been preferred than on the actual evidence in the case itself. No attempt was made by the investigators to find who was the registered owner of the shop.

20. It is necessary to say that, while on the surface a possession charge is deceptively simple, nevertheless the evidential proofs can be complicated and need careful treatment. This they did not receive here. The only four photographs produced - Mr. Reading who appeared here for the Crown informs us that there were others - do not suggest that this shop was being used as domestic premises. The expressions "principal occupant" and "principal tenant" which appeared to have been used interchangeably at trial have greater relevance to a domestic premises than they do to a shop. The trial judge, unfortunately, revealed her views on the nature of the charge in the course of the trial itself; which must have given the applicant some cause for concern. I fully acknowledge that if the applicant had a good explanation for his presence on the premises - there was a hint in cross-examination that he was there for the purpose of playing mahjong - then he could have given it in the course of evidence. An opportunity of which he did not avail himself.

21. Nevertheless, considering this trial overall and the events which led up to it, and took place in the course of it, I do not think that justice was seen to be done and am left with an uneasy feeling that it may not have been done. That feeling is of sufficient strength to make me think that the conviction is unsafe and unsatisfactory. I would grant leave, treat the hearing of the application as the hearing of the appeal, quash the conviction and set aside the sentence.

Litton, J.A.:

22. I have had the advantage of reading, in draft, the judgment of my Lord the Vice President. I agree with his observations on grounds 2 and 3 of the grounds of appeal.

23. As regards ground 3, this went to an important issue at trial, namely, whether the applicant had ever told Inspector Lo, the officer-in-charge of Team 2, that he was "the principal occupant". PW1, in his testimony, said that once the police party had gained entry into the premises, the applicant "claimed to be the principal occupant of the premises"; and yet, in his witness statement, he said that he was only "subsequently" informed of that fact. PW2 gave evidence at the trial to similar effect; and yet, in his witness statement, he made no mention of this damaging admission by the applicant at all. In these circumstances, the judge's bland statement that "the officers were truthful" and her finding that the applicant had said he was the principal occupant cannot, in my judgment, safely stand.

24. What then remains of the evidence against the applicant bearing upon the charge? There was, firstly, the fact that when the applicant was asked if he had any keys, he searched for a while and then produced two keys which were near the door. These fitted the iron grille and the wooden door. It was unfortunate that the exact location of the keys was not noted by the police witnesses. Nevertheless, the fact that the applicant was able to produce the keys indicated his close relationship to the premises.

25. There was then the evidence that, on being arrested and cautioned by PW2, the applicant said:

"The things are not related to Tai Pau. He came to look for me to have a chat. I'll hand over this case to you and you give me a chance."

When asked what case the applicant was to hand over to the police officer, he asked PW2 to give him a couple of days' time, then he would pass On Tau to him.

26. "Tai Pau" was the other arrested person inside the premises and "On Tau" meant dangerous drugs packed in one ounce packages. Apparently, the applicant's answers were recorded in writing by PW2, and the cautioned statement in writing was signed by the applicant. Plainly, this written statement, constituting admissions to an extent, was relevant evidence since it bore the signature of the applicant. I cannot understand why it was not produced as an exhibit at the trial. However, PW2's recollection of what the applicant had said was never challenged in cross-examination, and since the applicant gave no evidence at the trial, the testimony of PW2 in this regard stood uncontradicted.

27. It was put in cross-examination that when cautioned the applicant said that he was there to play mahjong and was waiting for the others to arrive. This was denied by the police witnesses. As the applicant did not go into the witness box, this suggestion, denied by the prosecution witnesses, was wholly unestablished.

28. It seems to me, upon the evidence which remained unimpeached, the District Judge, properly directing herself on the law, must nevertheless have convicted the applicant. She was entitled to weigh in the scales the fact that the case as established by the prosecution called for an explanation from the applicant but he chose not to give evidence.

29. Sharing as I do with my Lord the Vice President all his anxieties concerning the unfortunate way in which the prosecution case was presented and the equally unfortunate way in which this trial was conducted by the District Judge, I have nevertheless reached the conclusion that in all the circumstances of the case no miscarriage of justice has occurred. I would accordingly give leave to the applicant to appeal, and treating the hearing of the application as the hearing of the appeal, apply the proviso to section 83(1) of the Criminal Procedure Ordinance and dismiss the appeal.

Bokhary JA:

30. The judge found that the applicant was the principal occupant of the flat. And it was on that footing that she convicted him of possession of the dangerous drugs in the flat. But, for the reasons given by my Lord the Vice President and my brother Litton, that finding cannot stand.

31. What does that leave?

32. First, there was the evidence that when the raiding police party asked him where the keys to the flat were, the applicant was able, after a search, to locate and produce those keys. But there is no evidence as to how long the search took. Nor is there any evidence as to how difficult the keys were to locate. For all we know, therefore, anybody could have located them as the applicant had done.

33. Secondly, there is, as my brother Litton points out, what one of the officers testified that the applicant had said upon being arrested and cautioned. These things are, I believe, referred to as "verbals" by criminal lawyers who, I understand, approach them with caution. It is true that the officer's evidence thereon was not challenged in cross-examination. But the last question put to the officer before his cross-examination began was put by the judge herself. And it was whether the officer had made a record of what the applicant had said. The answer was "yes". Nevertheless, no attempt was ever made to produce such record.

34. Neither of the counsel who had appeared below appeared before us. For all we know, the defence may have been waiting to see if any such attempt would be made. It would not be safe to assume that the defence's failure to cross-examine on the matter in advance of any attempt to produce the record amounted to acceptance of the officer's evidence. In any case, as Hogan CJ said in R. v. Chan Chi Kong [1964] HKLR 782 at p.789:

"To say that failure to cross-examine amounts, in itself, to an admission does, I think, go too far, although such failure must inevitably put counsel in difficulty if he subsequently asks the court to disbelieve the evidence."

In the present circumstances, it would be no safer to assume that the failure to cross-examine amounted to acceptance of the officer's evidence than it would be to assume that the prosecution's failure to make any attempt to produce the record amounted to abandonment of reliance upon the officer's evidence. So even the difficulty referred to by Hogan CJ is by no means insurmountable in the present case.

35. So the matter does not rest on a sure foundation. But let us assume that it does.

36. On that assumption, the "verbal" here would afford evidence on which a reasonable and properly directed tribunal could convict the applicant of the offence with which he was charged. But would the tribunal be bound to so convict him on such evidence? In my view, it would not. A tribunal of fact free from the errors made by the judge might, with the whole tableau before it, have concluded that those words could only have come from a person in possession of all the dangerous drugs in the flat. Or the tribunal might have taken the view that, apart from such a person, they could also come from, for example, someone who had gone to the flat to deliver some drugs or to collect some drugs for delivery or to buy some drugs for his own consumption.

37. In my judgment, the proviso cannot be applied, and this conviction must be quashed.