CHENG KING HO v. R.

IN THE COURT OF APPEAL

1993, No. 255
(Criminal)

__________

_____________________

JUDGMENT OF THE COURT

_____________________

Macdougall, V.-P.:

1. The applicant was convicted after trial before Deputy Judge W. Wong and a jury of being in possession of a dangerous drug, namely, 752.88 grammes of methylamphetamine hydrochloride for the purpose of unlawful trafficking. He had earlier pleaded guilty to being in possession of arms without a licence. He now applies for leave to appeal against the conviction for the drugs offence.

2. The evidence for the prosecution was that the applicant was intercepted by police officers on 11 January 1992 after he had alighted from a taxi near his residence at Amoy Garden. The officers accompanied him to his flat where entry was gained by using keys found on his person. The applicant directed the officers to the room which he occupied and, on being asked if he had any drugs, told them that on a metal rack in that room there was a blue box containing 30 ounces of "ice", namely methylamphetamine hydrochloride. After an inspection of the box confirmed that the contents were methylamphetamine hydrochloride, the applicant was arrested. Under caution he stated that the drugs were his and had nothing to do with his family.

3. A further search of the room resulted in the discovery of more of the drug on top of a wardrobe and a safe. The officers also found an electronic weighing device and a quantity of arms.

4. The applicant elected to give evidence. He testified that a man named Johnny Chan had come to his flat for dinner and had brought with him a black plastic bag which he told the applicant he would leave at the applicant's flat while he, Chan, went to a movie, and that he would pick it up later on. When the applicant inquired as to the nature of the contents of the bag, Chan replied that they were items of anti-rapist equipment. With that, Chan opened the bag to allow the applicant to view the contents. Chan withdrew various items, including the blue box, and said that the box contained anti-rapist equipment. The applicant then agreed to keep the bag and its contents for Chan.

5. He admitted that he had been intercepted by a party of police on 11 January and that he had indicated to them which room he occupied in the flat. When the police asked him what was inside the blue box he replied that it contained anti-rapist equipment. The contents were then emptied onto a bed. Much to the applicant's amazement one of the officers told him that he had found "ice". However, the applicant was unable to see the "ice" because his view to part of the contents on the bed was blocked. He was unable to explain how drugs had come to be placed on top of his wardrobe. Johnny Chan had now disappeared and, according to the applicant, was probably in China.

6. A man surnamed Ching gave evidence for the applicant. He testified that he was present in the flat when Chan produced the bag and showed the applicant its contents. He said that he saw the applicant fumbling with a stun gun that had been withdrawn from the bag and that he then handed the gun back to Chan. Ching also said that he heard the applicant ask what was inside the blue box, and Chan's reply that it contained spare parts. Subsequently he visited the applicant at the remand centre and, acting on the applicant's instructions, then endeavoured to contact Chan, but without success.

7. Mr McNamara, who appeared for the applicant in this court but not in the court below, argued two grounds of appeal. First, he submitted that the deputy judge had erred in law in that he failed to direct the jury properly or at all as to the significance of the applicant's good character.

8. We have no hesitation in rejecting this submission. The applicant had not only pleaded guilty prior to trial to having been in possession of arms, but had previously been found guilty of theft and had been placed on probation with no conviction recorded. For each one of these reasons he was not entitled to claim that he was a person of unblemished character. Quite properly, in our view, his counsel at trial did not attempt to adduce any evidence of good character.

9. The possession of a criminal record is not the sole test of bad character. Even if the applicant had not pleaded guilty to the possession of arms count before his trial on the drugs count, it would not have been open to him in the light of the earlier finding of guilt on a theft charge to have presented himself as a person of good character at his trial on the drugs count. These courts not infrequently hear the defence advanced in drugs cases that a defendant thought that he was carrying smuggled goods, not drugs. Plainly, in such circumstances, and notwithstanding the fact that such defendant had neither been convicted nor found guilty of a smuggling offence, it would be absurd to suggest that he could properly put himself forward as a person of good character.

10. We wish to emphasise that unless good character is positively advanced and supported by evidence, not by mere assertion from counsel, it does not fall to the judge to consider whether he should give the jury a Berrada or a Vye direction.

11. Moreover, we wish to make it plain that it by no means follows that a failure by a judge in a jury trial to give a Berrada or Vye direction in a case where a defendant has properly presented himself as a man of good character will result in this court automatically quashing a conviction. In such a case this court will quash a conviction only if it comes to the conclusion that in all the circumstances it is unsafe or unsatisfactory.

12. We think that we should also indicate for future guidance that this court does not require a District Judge or a Magistrate to state in his or her Reasons for Verdict that he or she has given himself or herself a Berrada or Vye direction.

13. The second ground of appeal was that the deputy judge materially misdirected the jury on the burden of proof by telling the jury:

"These are the evidence presented to you by the prosecution and defence. They are conflicting. You have got to be satisfied beyond reasonable doubt as to who was telling the truth,"

14. Mr McNamara submitted that this would have led the jury to think that before they could find the applicant not guilty they must be satisfied beyond a reasonable doubt that he and his witness were telling the truth.

15. We at once recognise that this passage was unfortunately worded. But the impact of what a judge tells a jury is not to be measured by taking a passage in isolation. Immediately after the words complained of the deputy judge went on to direct the jury in these terms:

"but let me remind you once again that even if you reject the evidence of the defendant and his friend, it still remains for the prosecution to satisfy you until you are sure of the guilt of the defendant, because, I repeat again, the defendant has to prove nothing.

After deliberating if you are satisfied beyond reasonable doubt that the police are telling the truth, then consider the amount of drugs found, coupled with the scales and the plastic bags of various sizes. Are you satisfied beyond reasonable doubt that the reasonable and only inference to be drawn is that the drugs were for the purpose of unlawful trafficking? If you have doubts about the evidence of the police, then it is your duty to acquit."

16. Earlier, the deputy judge had given two impeccable directions to the jury on the burden and standard of proof.

17. We do not think that there is the slightest possibility that the jury would have misled by the passage on which Mr McNamara relies. This ground also fails.

18. The application for leave to appeal against conviction was therefore refused.