R. v. NGO KIN-SHING

IN THE COURT OF APPEAL

1996, No.181

(Criminal)

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. This applicant was convicted in the High Court on 22nd February 1996 following a trial before Leong J. and a jury. The two counts on the indictment each alleged trafficking in cocaine hydrochloride contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The weight of the restricted substance was 438.69 Krammes in the first count and 429.54 Krammes in the second. The combined retail value amounted to $1,488,285. The jury were unanimous in their verdict on count 1 but convicted by a majority of five to two on count 2. The applicant was sentenced to concurrent terms of 20 years' imprisonment.

2. He now seeks leave to appeal against his conviction on both counts.

3. The evidence at the trial lasted only three days and the issue to be decided was straightforward. On 18th August 1995, at a time when the applicant was himself a serving police officer, he was seen by surveillance officers being collected in a private car. He was in the company of a young woman called Szeto Hing Yiu who carried a black shoulder bag. He was empty-handed at the time. They sat in the back of the car with an unknown third person. The car was followed to a location near Pitt Street in Nathan Road. When the applicant got out he was then allegedly seen to be carrying a white plastic bag. The female was holding the same bag as before. The car then drove away.

4. Police next saw the applicant and Miss Szeto boarding a taxi. They followed the taxi to the traffic lights at Prince Edward Road where they were able to intercept it. The applicant was found holding the white plastic bag which contained the drugs referred to in the first count. Miss Szeto still had the black bag which was duly found to contain the drugs pertaining to the second count.

5. At the trial, Szeto Hing-yiu gave evidence as an accomplice against the applicant. She had pleaded guilty to the second count and blamed the applicant for putting those drugs into her bag.

6. The applicant's evidence was that he knew nothing about any of the drugs. He said that when the taxi stopped at the traffic lights he felt something had fallen at his feet on the floor. He then saw the white plastic bag for the first time. He picked it up to look inside but, as he did so, police opened the door to find him holding the bag. Clearly, if the accomplice was giving a truthful account, she gave the lie to the story told by the applicant.

7. The other crucial piece of evidence concerned the accuracy of the police evidence that it was the applicant who carried the white plastic bag to the taxi.

8. Mr. Hemmings, on behalf of the applicant, submits that the summing up failed in several respects to give a balanced view of the evidence. Firstly he criticises the learned Judge for having failed to deal adequately, or at all, with matters which tended to undermine the credibility of the surveillance officers and the accomplice witness. Secondly, Mr. Hemmings submits that the jury were not adequately directed in respect of a number of pieces of evidence which either supported or tended to support the case for the defence. Taking each of these criticisms in turn, we have looked first at the evidence of the surveillance officers.

9. Police Sergeant 22563 (PW/1) and Detective Police Constable 49078 (PW/5) had each failed to make any reference to the applicant carrying the white bag from the private car to the taxi in the notes they had originally made before the charges were preferred. The police sergeant remedied the defect by later writing a notebook entry. He also recorded the fact in his witness statement. However, the detective police constable did not do so and seems to have explained his failure by saying that he was concentrating on other matters. In any event, he said that he had forgotten to do so.

10. We have been referred to what was said in the summing up on this topic when the jury were reminded of these failures. At page 13 of the transcript, the learned Judge said this:

"Sergeant 22563 told you that he did not note this down in his notebook before the defendant was charged. However, he did note it, this fact, in a notebook after the defendant was charged and he also noted this in his own witness statement which was made according to the notes in his notebook. It has been suggested that the defendant never held anything when he got out from the private car and into the taxi and the sergeant was misleading the court or was mistaken in telling you that he saw the defendant holding the white plastic bag when he changed cars. You will decide whether his evidence is true.

49078 also told you that he saw the defendant holding the white plastic bag when he changed cars. It was also suggested to him that that was not correct and if that had happened, he would have noted that in his notebook. 49078 explained the reason why he did not record that fact was because he was appointed as an exhibits officer - you will remember that evidence - and he was concentrating on recording exhibits and therefore he omitted to record that in his notebook.

Whether you accept that explanation is a matter for you. You will decide, in the light of this, whether his evidence about seeing the defendant holding the white plastic bag coming out of the private car, is true."

11. Whilst this did not deal with every point and did not go so far as to suggest an inherently improbable answer from an experienced police sergeant, as Mr. Hemmings submits this passage should have done, we are quite satisfied that the matter was left fairly and squarely to the jury. This topic had been fully canvassed in cross-examination and, in the opinion of this court, this part of the summing up would have been more than adequate to remind the jury of it.

12. In addition, the taxi driver (PW/3) had given evidence on this point which the trial judge left to the jury in this way:

"The crux of the matter is whether, at that time, the defendant was holding the white plastic bag. The taxi driver was not able to tell whether the defendant was holding a white plastic bag when he got into his taxi. His evidence was that it seemed to him that the defendant was not holding anything. Therefore you may think that his evidence does not assist either the prosecution or the defence."

13. Mr. Hemmings submits that the taxi driver in this regard had been more helpful to the defence than this passage from the summing up suggests. We disagree. Although the taxi driver did say in chief that it had seemed the applicant was not carrying anything, he qualified this in a later answer by saying that he had not noticed that he was carrying anything. The answer was neutral and so were his answers in relation to any conversation that may or may not have taken place between the applicant and the accomplice witness in the back of the taxi.

14. As to the accomplice, it is argued that her evidence is littered with answers that were implausible and yet no adverse comment was made about this during the course of the summing up. It was submitted that this is in contrast to the way in which the applicant's evidence was treated when the summing up turned to what he had had to say.

15. Dealing first with the young female accomplice, Mr. Hemmings points out that there were two particular areas of her evidence where adverse comment could and should have been made. This is because, as he puts it, of the absurdity of the assertions she had made and because what she had said conflicted with the evidence of the detective police constable. These answers related to property that she said was given back to her by the applicant at the police station, and to verbal communications she said she was able to have with the applicant after their arrest. Again, we cannot agree. There is no duty on a judge to recapitulate on every matter that has been covered by the evidence. The jury had been told that they should look at the totality of the evidence and that they were not limited to the passages selected by the judge in summing up the case. In any event, neither of the examples related to a matter of central importance. We can see no justification for the judge to have made strong adverse comments in this regard assuming it had even occurred to him to do so.

16. More significantly, it is submitted, there had been insufficient warning given to the jury about the effect of the inconsistencies in Miss Szeto's evidence when compared to her previous statements to police. We have therefore examined what the jury was told on this aspect and it comes to this. They were reminded that she had written letters to the police while she was in custody and that these letters made no reference to some of the matters she had stated in her evidence. One example, about which the jury was specifically reminded, related to the absence of any mention of the conversation she had allegedly had with the applicant in the back of the taxi. The jury was reminded also that there were differences between Miss Szeto's witness statements and her evidence in court.

17. On matters of general credibility, the learned judge told the jury that the accomplice had admitted making a false claim that she had been assaulted by police, albeit the reason for doing so was, she alleged, that the applicant had 'taught' her to do so. She had also admitted trying to avoid liability for what was in the black bag by saying that she had no connection with it. At page 21 of the transcript the learned Judge continued by saying:

"You will note these inconsistencies between her evidence and what she previously told the police.

Members of the jury, her previous statements, which are inconsistent with her evidence, are not evidence since she had not adopted them as evidence. The inconsistencies only go to her credibility. You will assess her evidence and her credibility in the light of these inconsistencies.

It is suggested by the defence that she made up her evidence based on the statements furnished to her after her committal and, therefore, there are such inconsistencies between her evidence and her previous statements. Do you think she did that? It is a matter for you. However, you should bear in mind that she had decided to be a Crown witness as early as 29 September 1995 when she wrote the second letter, and this was before the prosecution statements were furnished to her.

Whether you accept her evidence is a matter for you."

There were other comparatively minor inconsistencies to which no reference was made in the summing up. We do not propose to cover those specifically save to say that they were relatively trivial and they do not, in our judgment, affect the balance of the summing up in regard to Miss Szeto's evidence. The learned Judge had, moreover, specifically warned the jury as to the need for caution before convicting upon her evidence. He demonstrated that the reason for this was that she had something to gain by doing so, in terms of the sentence she would receive for her part, and therefore she might have a reason to lie.

18. So far as the applicant's evidence is concerned, it is clear that some adverse comments were made by the trial judge as he was perfectly entitled to do. However, as Mr. Albert Wong for the respondent in his written reply to the submissions points out, the jury were equally reminded of several positive factors for the applicant. Some of these were legal directions that had to be given, namely in relation to the jury's approach to good character and to lies. These directions were dealt with immaculately. Additionally, and quite rightly, the jury were told that whilst the applicant had admitted cheating on his wife by having sex with Miss Szeto at a villa on the day of their arrest, this was behaviour that should not be taken into account on the question of guilt or innocence. The jury was also told that, although the applicant admitted being heavily in debt to legitimate creditors, this did not necessarily mean that he was guilty of any of the offences.

19. Having summed up the applicant's evidence the learned Judge directed the jury in clear, accurate and fair terms as to the issue that called for their decision and, at page 29 of the transcript he said this:

"If you believe the defendant's version of what happened on the night of 17 and 18 August 1995, or think what he told you may be true then, of course, the prosecution has not proved the case beyond reasonable doubt. You should acquit him of both - both counts.

However, even if you do not believe his evidence, as I told you earlier, the burden is on the prosecution. You should not convict him simply because you do not believe his evidence. You have to consider whether, on the prosecution evidence, the case has been proved beyond reasonable doubt. You will only convict him of the first count if you are sure that he was in possession of the white plastic bag, in the sense I told you earlier, and he knew it contained cocaine hydrochloride, and he had it in his possession for the purpose of unlawful trafficking.

You will only convict him of the 2nd count if you are sure that the cocaine in the girl's bag was put inside by the defendant, and he was in joint possession of it with the girl, and he knew it was cocaine hydrochloride, and the possession was for unlawful trafficking.

If you have any reasonable doubt about the defendant's guilt, you should acquit the defendant.

So the defendant's and the girl's credibility are very much of importance in the decision, so you will consider the evidence."

20. We are in no doubt that there is nothing which has been submitted to us that can affect the propriety of these convictions. Accordingly leave to appeal is refused.

21. At the outset of this hearing Mr. Hemmings indicated that a late application for appeal against sentence would only be pursued if one of the convictions was quashed. The convictions stand and accordingly this application is dismissed.