THE QUEEN v. NG HOI BUN(D1)

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JUDGMENT

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1. The applicant was found guilty of manufacturing heroin in a flat in Shamshuipo. He was acquitted on a second count of possession of over 10 kg of heroin for the purpose of unlawful trafficking.

2. A co-defendant, Hung Siu-cheung, pleaded guilty to the first count and was called as a prosecution witness. No evidence was offered against him on the second count.

3. The applicant now applies for leave to appeal against conviction and sentence.

4. The flat in question was raided by the police at 11.15 P.M. on 13th December, 1985. There was no response to knocks on the metal gate, so they broke it down. Inside were the applicant and Hung.

5. It is not in dispute that heroin was in the process of being manufactured, nor that drugs worth $1.5 million were found.

6. Nail clippings from the applicant's left hand were later found to contain traces of heroin. Traces were also found on his clothes.

7. Having been found in premises where dangerous drugs were being manufactured, the applicant was presumed to have been manufacturing until the contrary was proved.

8. The other prosecution evidence was that of Hung. He told a tale that showed him in a minor role, but heavily implicated the applicant.

9. He said he had been asked to rent the flat for a seaman who was getting married. He did so and, on 30th November, he gave the keys to a man called Ah Cheung. He was asked to move some things to the flat and, while doing so, together with someone nicknamed 'four- eyed boy', he came to realise that it was a drug factory.

10. On 13th December Ah Cheung told him to take the applicant to the flat, which they entered at 8.30 p.m., using the key which Ah Cheung had returned to him.

11. According to Hung, the applicant told him to weigh five pounds of white powder and pour it into a basin. He also told him to tape the cracks in the door. Hung later saw the applicant stirring thick paste in the basin on the stove.

12. Hung says he tidied the flat and went to the toilet. The police then arrived.

13. The applicant gave evidence and told the court he was a heroin addict and had been buying drugs from Hung since June 1985.

14. On 13th June a friend gave him $7,500 and asked him to buy a half pound of good heroin. He rang Hung and they arranged to meet. Hung said he would take him to see his boss. They went to the flat, where they met 'four-eyed boy', who was in his underwear. The latter gave him heroin to smoke and asked him to sell heroin on his behalf on a regular basis. Meanwhile Hung taped the cracks in the door.

15. The applicant felt drowsy and went into a bedroom,where he undressed and fell asleep. It was hot and there was a sour smell. He later woke up, dressed and asked for a drink. 'Four-eyed boy' went out to buy drinks and soon afterwards the police arrived. He was assaulted and $9,000, which he had brought with him to buy heroin, disappeared.

16. The judge in his summing up pointed out that Hung had probably understated his part in the affair and advised the jury that they might consider some parts of his evidence credible but not others.He warned them that he was an accomplice and that he might have something to gain by implicating the applicant. He directed them that it was dangerous to rely on his evidence in the absence of corroboration.

17. So far so good. Unfortunately the judge went on to tell the jury that corroboration might be found in the presumption. What he said was:

".........the only evidence which is capable of corroborating the accomplice that the accused manufactured dangerous drugs would be the presumption that he did so because he was found in the premises where dangerous drugs were being manufactured, such presumption not having been rebutted.As I have said if the presumption is rebutted, there is no corroboration, then you would be left with the evidence of the accomplice which you would consider in the manner I have described."

18. There is no doubt that this is a misdirection. That is not disputed by the Crown. Corroboration of an accomplice's evidence can only be provided by other evidence. DPP v. Hester ⁽¹⁾ per Lord Morris of Borth-y-Gest at p. 229.

19. If the jury came to the conclusion that the presumption had not been rebutted, they were bound to convict on the first count. If they did so because they rejected the applicant's evidence, without considering Hung's evidence, the misdirection was immaterial. But if they took Hung's evidence into account. in deciding that the presumption had not been rebutted, did they appreciate that they were dealing with evidence on which it was dangerous to rely?

20. This is something that called for a careful and specific direction. Instead the judge put the cart before the horse by saying that the presumption could amount to corroboration, provided it was not rebutted. Since we cannot tell in what way the jury approached the matter, the misdirection is fatal to the conviction.

21. For the sake of completeness we feel we should mention Mr. Howard's other ground of appeal, namely that the verdicts were inconsistent.

22. The jury returned to ask the judge a very acute question: "If the accused is guilty of the first charge, is it a presumption of law that he is guilty of possession of the drug under the second charge?". The judge told them that there was no such presumption. He said they should consider the evidence in respect of each charge separately and that their verdict on the first charge had nothing whatsoever to do with the verdict on the second charge.

23. That, of course, is the usual and classic direction in, a criminal trial. Mr. Howard, however, quoted Lord Hailsham's dictum in DPP v. Kilbourne ⁽²⁾ , that a-summing-up should be tailormade to suit the circumstances of the particular case:

24. He said the judge should have told the jury that, in the circumstances of this case and as a matter of common sense, if the applicant was guilty of manufacturing, he was also guilty on the  second count.

25. It may be, of course, that the jury took the view that the applicant was guilty on the first count because he had failed to rebut the presumption, whereas they were not satisfied beyond a reasonable doubt, on the evidence of Hung, plus the traces of heroin on his person, that he was in possession of the drugs.

26. Mr. Howard relies on R. v. Andrews Weatherfoil Ltd. and others ⁽³⁾, in which Eveleigh, J. said at p. 40:

"When inconsistent verdicts are returned by the same jury, the position is usually more simple. If the inconsistency shows that that single jury was confused, or self-contradictory, its conclusions are unsatisfactory or unsafe and neither verdict is reliable."

27. We think that although, on the face of it, the direction appears favourable to the applicant, it may have had the effect of confusing the jury, as reflected in their verdicts. Clearly a person cannot be guilty of manufacturing heroin without having it in his possession. This must be so even if it is by way of the presumption that the jury come to the conclusion that he was manufacturing.

28. For these reasons we grant the application and, treating it as the appeal, quash the conviction.

                    Having regard to the circumstances in which the applicant was arrested, and in the interests of justice, we order that there be a retrial.

(1)    1973 57 Cr. App. R. 212

(2)    1973 57 Cr. App. R. 381 at p.394

(3)    1972 56 Cr. App. R. 31