R. v. WONG LAP CHI AND ANOTHER

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J U D G M E N T     O F    T H E    C 0 U R T

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Macdougall, J.A.:

1. Yiu Yau-lam, Wong Lap-chi and Ng Chi-wai, who were the 1st, 2nd and 3rd accused respectively, were tried before Deputy Judge Sharwood and a jury on an indictment containing three counts. For the sake of convenience we shall continue to refer to them as the 1st, 2nd and 3rd accused.

2. The first count, which was against the 1st accused alone, alleged that on 20 November 1988 in Oil Street he had in his possession a dangerous drug, namely 454.52 grammes of a mixture containing 22.57 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

3. The second count, which was against all three accused, and is the count with which we are directly concerned on the hearing of this application, alleged that on 20 November 1988 at Flat A Wan Wah Building, No. 1-3 King Wah Road, together with Sin Wai-kuen, they had in their possession a dangerous drug, namely 39,260.59 grammes of a mixture containing 2,014.61 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

4. The third count, which was against the 1st accused alone, alleged that between late August 1988 and 20 November 1988, he, being the tenant of the flat referred to in the second count, suffered it to be used for the unlawful storage of a dangerous drug, namely salts of esters of morphine.

5. All three accused were found guilty as indicted. The 1st accused was sentenced to concurrent terms of 7, 15 and 10 years' imprisonment respectively, and the 2nd and 3rd accused both received a sentence of 15 years' imprisonment. The 1st accused lodged a notice of application for leave to appeal against both his convictions and sentences but, on 6 March, abandoned all further proceedings in regard to that notice. The 2nd and 3rd accused each lodged a notice of application for leave to appeal against conviction and sentence but, on the day of the hearing, were granted to leave to abandon their applications in respect of sentence.

6. After hearing submissions from Mr. Mullick, who appeared for both the 2nd and 3rd accused in this court but only for the 3rd accused in the court below, we refused the applications and said that we would give our reasons later. This we now do.

7. The evidence before the jury was that at about 4 a.m. on 20 November 1989 a police constable saw two men emerge from a lane at the rear of King Wah Road and enter Oil Street. One of the men then dropped a plastic bag on the roadside. His suspicions having being aroused, the constable examined the bag and saw that it contained what subsequent analysis confirmed to be heroin. He then contacted other police officers, and an ambush was laid. Another man, Sin Wai-kuen, was arrested at around 4.30 a.m. when he appeared on the scene and picked up the bag.

8. At 5.40 a.m. the police were taken by Sin to the King Wah Road flat referred to in the 2nd and 3rd counts where they gained entry by using three keys found on Sin's person at the time of his arrest. Inside the flat they discovered the large quantity of heroin which formed the subject of the 2nd count.

9. The 2nd accused was arrested on 23 November 1988. He declined to make a statement to the police. The 3rd accused, who was arrested on 25 September 1989 in the office of the Immigration Department in Aberdeen, made a statement under caution in which he admitted that he had visited the King Wah Road flat on two occasions, once with the 1st accused and once with the 2nd accused, in order to fetch heroin.

10. Sin, after having pleaded guilty to having been in possession for the puipose of unlawful trafficking both the heroin in the bag deposited in Oil Street and the heroin found in the flat, ad to two separate count of trafficking in heroin, gave evidence for the prosecution against all three accused.

11. He testified that around September 1988 the 3rd accused had asked him to assist in selling heroin. On the following day, having thought the matter over, Sin agreed to do so. It was not long after this that the 3rd accused introduced the 2nd accused to Sin. He told Sin that the 2nd accused was his partner. The 2nd accused offered to pay Sin $18,000 per month as wages in return for assisting him in carrying heroin. A few days later the 2nd and 3rd accused took Sin to the King Wah Road flat. After the 2nd accused had admitted them to the premises Sin saw accused pick up several packets of heroin and place them in plastic bags. The three men then boarded a taxi driven by a man called Ah Fuk and delivered the bags of heroin to customers. The same operation was carried out on the following day.

12. On the next day the 3rd accused asked Sin to come to his home. There the 3rd accused introduced him to the 1st accused. The three accused and Sin then boarded a taxi driven by Ah Fuk and went to a car park in Middle Road, Tsimshatsui, to locate a private car which the 2nd accused said contained heroin. Having found the car, the 1st accused extracted a key from its exhaust pipe and opened the driver's door. Sin and the 1st accused then drove to the King Wah Road flat in the private car with the 2nd and 3rd accused following in the taxi.

13. On arrival, the three accused and Sin took more than 20 one pound packets of heroin from the boot of the private car and deposited them in the flat.

14. Sin testified that he and the three accused had taken heroin to the same flat in a similar manner on several occasions, and that on each occasion a different private car and a different carpark was involved. In addition to bringing heroin to the flat Sin and the 2nd and 3rd accused had delivered it from there to various customers on more than ten occasions. He explained that the three keys to the flat which had been found in his possession on the day of his arrest had been given to him by the 2nd accused who told him that he could go there alone to fetch heroin.

15. Sin's activities came to an end on 20 November when, after having been instructed by the 3rd accused to go to Oil Street and pick up a bag of heroin lying beside a car and take it to a park in Tak Yan Street, Wanchai, he was arrested by the police in the course of carrying out this operation.

16. He also testified that a telephone number, a paging machine number and an address, all of which were recorded in a notebook that was found in his possession at the time of his arrest, were those of the 3rd accused. It was admitted on behalf of the 3rd accused pursuant to section 65C of the Criminal Procedure ordinance that those numbers and the address were his. It was also Sin's testimony that a number written on a card, also found on his person at the time of his arrest, was that of a mobile telephone operated by the 3rd accused. Although that telephone was registered in the name of the 2nd accused's wife, the 2nd accused gave unchallenged testimony that it belonged in fact to the 3rd accused.

17. There was evidence that there were five calls between 4.32 a.m. and 7.32 a.m. on 20 November from the 3rd accused's mobile telephone to a contact number which the 2nd accused admitted pursuant to section 65C was his. Moreover, it was not disputed that the 2nd and 3rd accused left for Macau at 7.56 a.m. on 20 November. We have already mentioned that Sin's arrest occurred at around 4.30 a.m. on that very day.

18. In addition to the usual sweep-up ground that the convictions were unsafe and unsatisfactory, Mr. Mullick advanced in effect two principal grounds of appeal.

19. The first ground was that the judge erred in law in permitting the prosecution to adduce evidence of the 2nd and 3rd accuseds' participation in drug trafficking activities which were not the subject of a count in the indictment and had occurred on occasions prior to the date of the commission of the offence alleged in the second count.

20. Mr. Mullick submitted that the evidence of these activities was not relevant to the issue of possession of dangerous drugs on 20 November 1988 and that its principal effect was to demonstrate that the accused were of a criminal disposition. As an alternative argument he submitted that the prejudicial effect of the evidence far outweighed its probative value and that therefore the judge had wrongly exercised his discretion in allowing the prosecution to adduce it.

21. Included in the indictment which was before the court on the first day of trial was a count of conspiracy to traffick in a dangerous drug. The judge had ruled that the prosecution should elect whether to proceed on the conspiracy count or on the count which alleged possession on 20 November 1988 of the heroin in the flat for the purpose of unlawful trafficking. Mr. Mullick submitted that, by allowing the prosecution to adduce evidence of specific instances of trafficking, the judge nullified his earlier ruling.

22. In our view, however, the judge properly admitted the evidence of the specific acts of trafficking. The count which lay for consideration was one of possession for the purpose of unlawful trafficking. That being so, it was necessary for the prosecution to prove not only that the accused were in possession of the heroin in the flat but that they had it in their possession for the purpose of unlawful trafficking. There could hardly be better evidence of their intention to traffick in the heroin discovered in the flat on 20 November than that they had actually trafficked in heroin stored there prior to that date. It was also evidence that they were aware of the nature of the substance found in the flat.

23. We are unable to accept the submission that the evidence of the prior instances of trafficking was prejudicial to the accused in the sense that it was unfairly detrimental to them. This was not evidence of prior criminal activity whose only or predominant effect was to cause the jury to conclude that the accused had a criminal disposition or a propensity to commit the crime of being in possession of a dangerous drug for the purpose of trafficking. It did not relate to other crimes committed by the accused that were similar to but totally unconnected with the offence particularised in the second count, but concerned the accuseds' dealing in drugs that had come from the very cache of heroin of which they were alleged to be in possession on 20 November. The judge did not err in allowing this evidence to be adduced. Moreover, as Mr. Mullick frankly conceded, the judge went to great lengths in directing the jury as to the proper use they could make of it.

24. Mr. Mullick also submitted that the judge "failed adequately or at all to direct the jury upon the significance and effect of [Sin's] previous inconsistent statements, and the varying accounts given by him therein." In particular, he complained of the last sentence in the following passage in the summing up:

" Members of the jury, he [Sin] was cross-examined for almost a day, and he was asked many questions abut previous statements which he had made. I have to tell you two things abut this matter. The first is that the statements which were put to him and which he admitted were his are not in any way part of the evidence of this trial. The second is that the fact that he previously made statements which were inconsistent with his evidence if you think they were is a matter which you can take into account in considering his credibility as a witness."

25. It was contended that the effect of the words "if you think they were" was "to suggest to the jury that there was a live issue on the question of inconsistency, even though [Sin] had admitted as much".

26. However, this passage from the summing up must be looked at in its proper context. Earlier the judge had said:

"He [Sin] has lied to the police. There are inconsistencies between his various statements and his evidence in court."

27. He then devoted four and a half pages of transcript to detailing those inconsistencies.

28. Furthermore, Sin did not in every instance that it was put to him accept that there was inconsistency between his testimony and what he said in a statement to the police. Mr. Mullick readily conceded that this was so. In the light of the judge's positive assertion to the jury that Sin had lied to the police and that there were inconsistencies between his testimony and his statements, we do not think that they could reasonably have concluded from the passage complained of that the judge was telling them, in effect, that although Sin had accepted that there were inconsistencies they could find that they did not exist. We are completely satisfied that they would have understood the judge to mean that where it appeared that Sin had denied that a particular alleged inconsistency existed, it was for them to decide whether they accepted his explanation.

29. There is no substance in the contention that the judge failed adequately to direct the jury as to the significance and effect of Sin's previous inconsistent statements. Not only did he direct the jury that they could take them into account in considering Sin's credibility as a witness but he specifically referred them to the admissions made by Sin that he thought that by giving evidence he might secure a reduction of his own sentences, and that his lawyer had told him that he faced the frightening prospect of long years of imprisonment and that the only way to secure a lighter sentence was to become an informant and prosecution witness.

30. We do not think that there was the remotest possibility that the jury would have been unaware of the risk that Sin might have concocted or exaggerated his evidence against the accused. Defence counsel made it abundantly plain to the jury both in their cross-examination of him and their closing speeches that he had given false testimony against the accused in order to receive a lighter sentence.

There being no substance in these grounds of appeal the applications were refused. We are satisfied that the convictions were neither unsafe nor unsatisfactory.