THE QUEEN v. MA WING HONG (D1) AND ANOTHER

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JUDGMENT

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Kempster, J.A.:

1. On 28th November 1985 MA Wing-hong was found guilty by a jury in the High Court and duly convicted of possessing a dangerous drug for the purpose of unlawful trafficking.   Against that conviction he seeks leave to appeal.  The drug in question was heroin and, jointly with others, the applicant was found to have been in possession of 444.79 grammes of a mixture containing 53.43 grammes of such drug in Kimberley Street, Tsimshatsui, on 31st May of last year.

2. The applicant relies both on certain grounds which he himself filed on 12th of December last and on perfected grounds settled by counsel and filed on 20th of March of this year.   But the matter which has elicited substantial reference to authority and the strongest emphasis is the complaint that the trial judge failed adequately to put material evidence supporting the applicant's case before the jury when summing-up.  That evidence was given by a co-accused, CHUNG Kwok-ping, called on the applicant's behalf, and failure to remind the jury of its substance, it is contended renders the conviction unsafe and unsatisfactory.

3. At first blush it would be difficult indeed to argue that the jurors had no evidence upon which to come to the conclusion they did.  There was admitted in evidence a cautioned statement made by the applicant which was tantamount to a confession.  The material circumstances involved the carriage by the applicant from a table in a restaurant to the door of the same restaurant of what purported to be a box of cakes and which transpired to be a box of dangerous drugs.  He was certainly in control of those drugs for a certain period of time and as a result a number of legal presumptions came into play.

4. The applicant contended at trial that his cautioned statement was not voluntary; was not his; that words had been put into his mouth and that his own story was not reflected by his signatures.  And insofar as the evidence given by the co-defendant amounted to acceptance of sole responsibility for the presence of the drugs in the restaurant at the material time and to an assertion that he alone was aware of the contents of the cake-box it was material to the applicant's case that what appeared in his cautioned statement was not the truth.

5. We are quite satisfied that the defence as such was squarely put before the jury by the trial judge. But it is correct that no mention at all was made of the evidence of the third defendant.  We think that such evidence was material not only in the context of the truth of the applicant's cautioned statement but also insofar as the prosecution had to satisfy the jury that the applicant was aware of the contents of the cake-box.   We accept that it is very much a matter for the discretion of the trial judge as to the detail in which he reminds the jury of the evidence of one witness or another and the last course which we would seek to commend is one which involves a tedious repetition of evidence given on oath at trial.  However, it seems to us, perhaps as a result of the careful research and persuasive submissions of Mr. Tse, who appeared for the applicant, that the evidence of the third defendant was of such significance in the instant case that the summing-up was incomplete without reference to it. When we say "incomplete" we mean that without a reminder of the substance of that evidence the jury did not receive the degree of assistance to which they were entitled and which, we know not, might have affected their verdict. We do not think it appropriate to apply the proviso because we are not in a position to say with assurance that a just verdict was, in any event, returned.

6. Accordingly the application for leave to appeal against conviction will be allowed.   We treat this as the hearing of the appeal and the conviction must be quashed and the sentence set aside.  It is accepted that there must be a retrial. We so order and direct the preferment of a fresh indictment.