HKSAR v. YUEN YU KIN

IN THE COURT OF APPEAL

1997, No. 136
(Criminal)

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J U D G M E N T

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Saied, J. (giving the judgment of the court)

1. The Applicant was convicted by a jury in the former High Court of trafficking in a dangerous drug, namely 275.28 grammes of a mixture containing 268.63 grammes of heroin hydrochloride contrary to section 4 (1)(a) and (3) of the Dangerous Drug Ordinance, Cap.134. He seeks leave to appeal against his conviction.

2. On 29th June 1996 just before 2:00 p.m., two police officers were in Shanghai Street and they saw the Applicant walking in a hurried manner towards Tsim Sha Tsui, frequently looking behind him. He appeared nervous and then he doubled back in the direction of Mongkok. Just then a taxi stopped to drop its passagers and the Applicant got into the taxi. The taxi driver saw the Applicant carrying a handbag when he boarded his taxi. Just as he got into the taxi, the police officer put his hand on the taxi door and told the driver not to start. He told the Applicant that he suspected him to be in possession of dangerous drugs to which the Applicant applied: "Ah Sir, how come I can have any dangerous drugs. There is no need for any search." However, he was taken outside to a wall where the police officer found dangerous drugs in the bag.

3. It was an admitted fact but he was arrested at about 13:55 hours and that Exhibit 2 was the handbag carried by the Applicant at the time of his arrest, which had a flower patterned black plastic bag contained in which was another black plastic bag, Exhibit 4, in which were 10 plastic packets, the contents of which were subsequently certified by the Government Chemist to be as described in the charge on which he was tried.

4. The Applicant maintained that the police officers found a packet of a very large quantity of dangerous drugs in the back of the taxi and that when he disavowed any knowledge of this drug, saying it was nothing to do with him, the officer got angry, accused him of being cheeky, which was then followed by some altercation between them. Eventually, according to the Applicant, the officer said: " Well, now the property is now ........ here is it in your bag," and put it into his bag. He was also told that it was something for him to fear for a long time to come.

5. In his grounds of appeal, the Applicant states:

"During the trial on 25th February 1996, a juror/jurors was/were found asleep, failing to fulfill the duty. At that time, I did not inform my legal representation. The barister also related the matter to the judge. The judge also found that someone in the jury had fallen asleep. The judge only gave verbal warning at that time but did not dismiss the jury. Since by that time the last witness giving evidence, and the judge did not dismiss the jury, I find the trial to be unfair to me. I wish to appeal and to be re-tried."

6. The transcript of the trial indicated that on 25th February at 4:13 p.m., Mr. McNamara, represented the Applicant, said,

"My lord, ....... my lady, I have noticed in the last two or three minutes that one of the jurors seems to be having a little trouble. It is really oppressive in here I do not know whether.......

Court: Yes, perhaps you could stop here.

Mr. McNamara: Yes.

Court: For the time being.

Mr. McNamara: I am anxious that everyone is alert to hear what I have to say to them.

Court: Members of jury, we will stop here until 9:30.

Mr. McNamara: 10:00......10

Court: Sorry, 10:00 I have PTR at 9:30 anyway. Till 10 o'clock tomorrow. Have you, in fact, chosen a foreman. You have? You are the foreman? Yes, I would like to advise members of the jury that it can get oppressive in here because we do not have a very good control of the air- conditioning. If any of you feel that you might be drifting off to sleep or finding it a little difficult to concentrate, just please let your foreman know and we'll take a rest."

7. The court then adjourned at 4:14 p.m.

8. It seems very clear that the defence counsel was not making any complaint to the trial judge of the nature that the Applicant has mentioned. Certainly, he did not to say in categorical terms that a juror was seen to have gone to sleep so that the trial judge could have enquired into the matter. When the trial judge suggested that the proceedings stop at that stage, Mr. McNamara was content to express his concern that everyone was alert to hear what he had to say to them and the Deputy Judge was content to advise the jury in terms already stated.

9. There was nothing in the nature of a formal complaint made against a particular juror and it is recognized that not every such complaint will call for some enquiry to be made by the trial judge. Each case will depend upon its own peculiar circumstances and, as has been seen in the present case, learned counsel's comment came at the stage when the Deputy Judge thought that it was quite convenient to adjourn for the day with the words of advice to the jury.

10. It is clear that she was satisfied in the circumstances but there was no prima facie complaint for her investigation and we see nothing exceptional in what transpired to effect the general conduct of the trial so as to prejudice the Applicant in many manner. We take the view that the way the deputy judge dealt with the matter was sensible and proper in the circumstances and there is nothing in the Applicant's ground. This application is dismissed.