HKSAR v. LAM SAN YAU

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No. 775
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. This is an application for leave to appeal against a conviction for trafficking in a mixture containing 218.74 grammes of heroin and several thousand tablets containing 69.43 grammes of midazolam maleate.

2. The offence took place on 11 April 1997. The applicant was convicted before Beeson J and a jury after trial on 5 December 1997 and was sentenced to a total 11 1/2 years imprisonment.

3. The facts were simple. On 11 April 1997, three police officers who gave evidence, were keeping surveillance on floors 14 to 16 of Block 40 Sau Mau Ping Estate. The applicant was seen to arrive on the 14th floor by lift and then go up stairs towards the 16th floor. When he got there, he went to a rubbish room for which the officers said he had a key. He opened the door and went in, stayed inside for a minute or two and came out carrying two carrier bags. He was stopped and searched. Those carrier bags contained the drugs in the charge. He was asked what they were. He said white powder and blue spirits or blue spurs. He added later that "the stuff is not mine. I fetch it for someone else". He was arrested. Later, his home - which was in the same building - was searched but nothing was found there.

The defence

4. The applicant's account in his evidence was very different. He said that he was an addict and had been for many years. He went up to the 14th floor in order to secretly satisfy his addiction for which purpose he had with him two syringes and a small packet of heroine. He had purchased the heroine that morning and also one of the syringes. His intention was to go down to an empty flat on the 13th floor and inject himself.

5. This was a building in which the lift did not go to each floor. When he emerged from the lift on the 14th floor, he was met by officers and taken up to the 16th floor where he was searched. The syringes and the drugs were found on him and taken. The police also took his identity card. Then he was told to go into the storeroom for a short conversation. He was told that if he could supply the officers with information, he perhaps could avoid being arrested. But inside, the police produced the two carrier bags and handed them to him saying "You're unlucky this time".

6. He was taken out and handcuffed. In spite of his protest that he had gone there to take drugs, he was arrested. The syringes and drugs, which he said were found on him, were never seen again and they were not produced in evidence. He was not charged with any offence in connection with them.

The trial

7. At trial, in order to seek to establish or strengthen his defence that the officers had given false information against him, his counsel cross-examined the officers upon information they had been given about the surveillance operation before they had been sent to this place. He elicited from them - somewhat reluctantly from the first officer - that this place was a drug black-spot. Although they were undertaking a general surveillance, they had been given the applicant's name, his identity card number, a description of him, his age, the clothing he was likely to be wearing and a photograph. Clearly he was one of the targets of this operation. His counsel wanted to establish that in order to indicate to the jury that there may have been a motive for the police to manufacture a case against him. We do not have before us counsel's final submissions to the jury but we one can easily envisage what would be said to the jury in order to support the applicant's case.

The application

8. Ms Panesar appears on his behalf before this Court seeking leave to argue a number of points on appeal. The first ground is that the evidence concerning the information in the hands of the police officers, who were undertaking the surveillance, was inadmissible and ought to have been ruled out, and secondly, was introduced by defence counsel erroneously.

Was the evidence admissible?

9. Let us deal first with the question whether the evidence was admissible. Its trite law to say that this type of evidence, that is the information the police have which motivate them to go to particular places and undertake particular surveillance is not admissible as evidence of guilt against an accused person. It is recognised that evidence that officers are acting on information should not be given because of the inferences which the jury may draw. But for the circumstances of this case it could be said that when counsel for the prosecution asked the question at p.55R of the first officer:

"Q. I believe that morning you had a briefing on a dangerous drug operation that you and your colleagues were to engage in at Block 40 of the Sau Mau Ping Estate?

A. Yes."

It was wholly wrong and inadmissible. The question should never have been asked by experienced counsel. Perhaps he knew - having spoken to the defence counsel - that this matter was going to be introduced as part of the defence case but even then such evidence is not admissible and should never be introduced by the prosecution.

10. But a special situation arose in this case. The evidence was introduced and relied upon by the defence. It was important to establish why the officers were in that place and what information they had in their minds at the time when they were undertaking the surveillance and saw the applicant as the target of their surveillance. This evidence became admissible, not to prove the guilt of the applicant but in order to establish the defence case that the police had a motive for giving false evidence against the applicant as he alleged at trial. The first point put forward by Ms Panesar is - with the greatest respect - wholly misconceived.

Was defence counsel at fault?

11. The second point is that counsel should not have introduced the matter and by introducing it had rendered the conviction unsafe and unsatisfactory. We do not have to consider the duties of counsel in circumstances such as this. The reason is simple. There can be no question here of counsel doing other than was his clear duty to defend the applicant in the way in which he chose. This was a matter entirely for the applicant and his counsel. It was a defence which obviously contained within it a serious risk but that was the way in which counsel chose to defend his client. Having chosen to do so, he pursued the point with appropriate vigour. This second matter raised by Ms Panesar is - with the greatest respect - wholly misconceived.

12. That disposes of the first ground.

The second ground, which Ms Panesar seeks to advance, is that the judge invited the jury to speculate about what the appellant might have done in the rubbish room and about the applicant's knowledge that the two bags contained drugs. The first passage is where the judge told the jury:

"The police alleged that he had the dangerous drugs in his hand after collecting them in the rubbish room. He was in the rubbish room for two minutes, which would have, in the ordinary course of events, been time to look into that bag. You have seen the size of the rubbish room. There's not very much to do in there, except perhaps pick up a packet of drugs, if that is what you were doing, and check the contents."

It is suggested that the judge was in error because she invited the jury to speculate. In fact the judge was making comments which a judge is entitled to make. There can never have been any doubt in the jury's mind that all questions of fact were for them throughout.

13. Another passage, complained upon by Ms Panesar as an invitation to the jury to speculate, concerns the answer to the police that the packets contained white powder and blue spirits or spurs. Ms Panesar suggests that they were invited to speculate that the answer involved knowledge of the drugs. That was direct evidence - if the jury chose to accept it - of such knowledge. There is nothing in that ground.

14. Ground 3 was not pursued and we turn to ground 4. This relates to several passages in the summing-up where the judge reminds the jury that the allegations the defendant made against the police are serious ones. It is only necessary to deal with one of these passages which appears on p.6F-M. The judge said:

"The allegations the defendant makes are very serious ones in relation to the police because obviously the police, if they behaved in the way the defendant said they did, are guilty of criminal offences. They are guilty of a conspiracy to pervert the course of justice, by taking an innocent man and framing him with the possession of the quantity of drugs that they either found in the rubbish room of the 16th floor or found somewhere else at Block 40. So, they are very serious allegations and that is why you have to pay particular attention to what the police officers have said in their evidence."

There are other passages where the judge does not refer to criminal offences but says that the allegations against the police are serious and the jury should pay particular attention to them.

15. Without formulating the particular point, Ms Panesar submits that this passage and others undermine the defence and were prejudicial to the applicant's fair trial.

16. There cannot be any doubt that the judge was entitled to remind the jury that the allegations against the police were serious. They were indeed. But - as Mr Saw, who appears for the prosecution, has pointed out - on almost every occasion when the judge reminded the jury of the seriousness of the allegations made by the defendant against the police witnesses, she also suggested that they would have to pay particular attention to what the police officers had said in their evidence, or particular attention to the allegations. That, Mr Saw said - rightly in our judgment - balances the direction. It gives credibility to the defence case to some extent and indicates that the jury should not dismiss it out of hand but give it serious consideration.

17. If there is any point to be made by Ms Panesar on this passage, it is that the judge unnecessarily categorised the alleged police behaviour as serious crime. Although it can be said that it is better if judges do not refer to such as allegations of crime because of the consequences which an intelligent juror could possibly take into account, the principle which we have to apply is simply this. A judge must never put a witness, police or otherwise, into a special position before a jury. In other words, he must not indicate to the jury that a witness is one who would not lie because he would put his career at risk or for any other reason. He must not put a witness out of the reach of the jury's criticism. We have been reminded of what was said in R v Mok Wing-hung (1991) 2 HKC at 145 which deals with comments which are fatal to a conviction for this reason..

18. The judge made these comments in order to focus the jury's attention on the central issue. But there was no question of her putting the police witnesses in a special position or out of the reach of the jury's judgment. There is no suggestion that there were reasons why the police would not lie. There is no reason for this Court to give leave to appeal on this ground.

19. We turn to ground 5.

20. Ground 5 reads as follows:

"The judge erroneously directed the jury in the terms:

'You have to consider what the defendant said about various matters and test his account of fact ... test his account of what happened against facts that you are sure about.'

This direction was erroneous because the jury were being asked to 'test' the Appellant's testimony against 'facts' established by the prosecution from their witnesses."

It is not necessary to go into that ground any further. The direction given by the judge was perfectly proper. It did not invite the jury to test the evidence against any particular testimony but only against facts that they were sure about. There is nothing in the ground and it fails.

21. The final matter, ground 6, raises an issue about the judge's direction to the jury about the keys which were found on the applicant. The applicant gave evidence that he had just three keys on him which were keys for his home. The police officers said that they saw only one key on him and that was the key that fitted the padlock for the rubbish room.

22. Ms Panesar suggests that where the judge indicated that there were certain parts of the evidence which were "red herrings or false trails", this distracted the jury's attention from real issues. She was directing the jury's attention away from important evidence. But this is not borne out by the transcript. After dealing with the "red herring" point she said:

"It is true that the matters of the lock and where the parties were for their surveillance are not really matters of import or importance in relation to the charge itself. What they are important for though, as Mr Chan says, is in assessing the credibility of the witnesses and assessing the credibility of the defendant, to a certain extent."

That was a proper direction which cannot be criticised.

23. This application fails.