R. v. CHIU HUNG WONG

IN THE COURT OF APPEAL

1994, No. 161
(Criminal)

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J U D G M E N T   O F   T H E   C O U R T

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Macdougall, V.-P.:

1. The appellant was convicted on two counts of trafficking in a dangerous drug after trial before Deputy Judge Jones sitting as a judge of the High Court with a jury. He now appeals against those convictions.

2. The evidence for the prosecution came principally from two police officers who testified that at around 4.30pm on 19 November 1992 while they were on observation duty outside the ground floor of Chu Fong House in Kowloon they saw the appellant holding a Giordano bag.

3. They intercepted him and, on searching the bag, discovered that it contained substances that later analysis proved to be 396 gms of a mixture containing 165.32 gms of salts of esters of morphine and 480 tablets containing 855 milligrams of flumitrazepan. These drugs formed the subject of the first and second counts in the indictment respectively.

4. The appellant elected to give evidence. His version of the incident was that he had been standing by a tree when suddenly someone bumped into him and ran off. The Giordano bag containing the drugs was found by one of the officers on the ground nearby. The appellant denied having held the bag or of possessing its contents. He had simply been the innocent victim of circumstances.

5. Mr McGuinniety, who appeared for the appellant in this court but not in the court below, submitted that the deputy judge erred in failing to direct the jury properly on the meaning of possession and that as a result the jury might well have equated possession of the Giordano bag with possession of the drugs contained in it.

6. Having read to the jury the definition of "trafficking" in the Dangerous Drugs Ordinance Cap. 134, and having referred them to the evidence, the deputy judge gave the following direction:

"I have told you before that the definition of trafficking in a dangerous drug includes possessing the dangerous drug for the purpose of trafficking. So the first question you have to decide is whether or not the defendant possessed the dangerous drugs in each charge. If you believe the defendant, or to put it more correctly, if you have a reasonable doubt that the two officers are telling the truth, then you will acquit the defendant. He cannot be guilty on his own evidence of events and if you cannot accept that of the two officers, there is no basis for convicting him.

If, however, you accept the version of events recounted by the two officers, then you may feel that there is no doubt that the defendant possessed the dangerous drugs knowing what they were. That is a finding which you may only reach if you are satisfied beyond a reasonable doubt that such is the case."

7. Mr McGuinniety complained that the deputy judge did not give a direction in conformity with that which this court in R. v. Ching Kwok-wing Criminal Appeal No. 4 of 1994 (unreported) said was appropriate in a case similar to the present one. We at once observe that the decision in that case was given subsequent to the appellant's trial. While we accept that the deputy judge did not give a model direction to the jury we are satisfied that, in the light of the last two sentences in the above passage, the jury had to be satisfied beyond a reasonable doubt not only that the appellant was in possession of the bag but that he knew that it contained dangerous drugs.

8. A further complaint was that the deputy judge failed to direct the jury concerning the presumption that arose under section 47 of the Ordinance in the event that they found that the appellant was in possession of the Giordano bag and that it contained the dangerous drugs. We find no merit in this complaint. In view of the deputy judge's general direction that the burden of proof remained on the prosecution throughout and that the appellant did not have to prove his innocence, his failure to direct the jury that the presumption under section 47 was activated, once they were sure that the appellant was holding the Giordano bag containing the drugs, can only have been to the appellant's advantage.

9. Lastly, Mr McGuinniety submitted that the deputy judge erred in making an observation to the jury that had the effect of portraying police officers as persons less likely to lie than others and that the effect of this was to render the convictions unsafe and unsatisfactory.

10. What the deputy judge said was this:

"Now the allegations that the police officers have together lied and produced false evidence are most serious. The seriousness of the allegations does not necessarily mean that the allegations can't be true. It is however a factor which you may bear in mind. Would the officers go so far as to risk disciplinary proceedings and even charges if found out? I am not saying that they must be telling the truth, that's a matter for you and you should consider all relevant factors."

11. We were referred to R. v. Wong Kim-wah Criminal Appeal No. 258 of 1993 and R. v. Shen Da-cheng Criminal Appeal No. 348 of 1993 in which another deputy judge made comments to the jury about the evidence of police officers which led this court to allow the appeals.

12. However, the observation made by the deputy judge in the instant case was similar to that made by the judge in R. v. Wellwood-Kerr [1978] Crim.L.R. 760:

"You may even wonder if this officer would be so stupid as to risk his career in manufacturing evidence of the sort that this defendant says he has."

13. The Court of Appeal, consisting of a particularly strong bench of Roskill LJ, Ackner and Stocker JJ, dismissed the appeal, holding that there was no material irregularity. The Court went on, however, to stress that it was desirable to avoid comments of this sort.

14. While we too disapprove of such comments and take this opportunity to remind judges to avoid making them, we do not consider that what the deputy judge said went as far as the observations made either in the Hong Kong cases to which we have referred or in R. v. Culbertson (1970)54 Cr.App.R. 310 and R. v. Fisher [1983] Crim.L.R. 486. The deputy judge's observation, although undesirable, did not render the verdicts unsafe or unsatisfactory.

15. For these reasons the appeal is dismissed.