R. v. LAM HON POR

No. 524 of 1994
(Criminal)

HEADNOTE

Criminal law and procedure - Dangerous Drugs Ordinance - "Lucas" direction - it is not necessary to give such a direction in every case where the defendant gives evidence - The Queen v. Lee Gee Yan, C.A. No. 523 of 1994 and The Queen v. Chong Chak-on, C.A. No. 633 of 1994 considered and followed - Alibi - where the evidence given by the defendant and his witness is in direct conflict with case of prosecution, the question of alibi does not arise and no direction to the jury is necessary - "Turnbull" direction - on the facts the judge gave a proper and adequate direction to the jury - Appeal dismissed.

IN THE COURT OF APPEAL

No. 524 of 1994
(Criminal)

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J U D G M E N T

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Wong, J.(delivering the judgment of the Court):

1. The applicant was convicted before Deputy Judge Beeson and a jury of one count of trafficking in a dangerous drug and sentenced to a term of imprisonment of 20 years. He seeks leave to appeal against both conviction and sentence. The particulars of offence are :

"LAM Hon-por, on the 22nd day of October, 1993 outside the entrance of Kwun Tong Public Cargo Working Area, Hoi Bun Road, Kowloon, in Hong Kong, together with HUI Lam-chuen, unlawfully trafficked in a dangerous drug, namely 2,771.35 grammes of mixture containing 2,517.45 grammes of salts of esters of morphine."

2. In the afternoon and evening of 22 October 1993, a team of customs officers carried out surveillance in the vicinity of Kwun Tong Public Cargo Handling Area. Officer Lee Kwok-fai was keeping observation from the 10th floor of the Kong Sang Hong Building with the aid of a pair of binoculars. The focus was a Chinese territorial vessel called Ying Fung 312 which was moored about two hundred metres away from this observation post. The duty of this officer was to report through his radio on what he saw to other officers who were observing on the ground. These officers included Customs Inspector Kong Shui-wing and Customs Officer Fung Sing-lok.

3. Officer Lee had a good view of the moored boat and the area around it up to the area just inside the sea wall but he could not make out any features of the people in the boat because of the distance. Although the lighting was not perfect or ideal, all three officers maintained that it was sufficient for them to see what was going on and Inspector Kong and Officer Fung were able to see the features of the man who got into and off a small boat, walked to the car, opened the car door, put the bag inside and returned to the small boat by the same route. At some point of time, these two officers were very close to the man who carried and put the bag in the car, keeping a distance of about only twelve feet in order to avoid, as far as possible, their presence being noticed. In the course of the trial, the judge, jury and all the parties concerned paid a visit to the scene in the evening to take a view of the locality with special attention being paid to the lighting conditions. They arrived there at about 7 p.m. and left 40 minutes later.

4. A few minutes before the man carrying the bag appeared, a car bearing the registration number FC6580 was driven into and parked at the general area of the cargo handling area. The driver remained in the driver's seat. It was this car into which the man placed the bag he had been seen carrying. After the man had put the bag into the car and walked away, the car drove off with customs officers in Government vehicles following in pursuit. The car was later intercepted in Tokawan and inside the car was the bag which Officer Fung Sing-lok described as silver in colour. This bag was found to contain 2,771.35 grammes of a mixture containing 2,517.45 grammes of salts of esters of morphine, the subject of the charge.

5. Customs Officers including Inspector Kong and Officer Fung later went to the Ying Fung and from a line up of all 13 members of the crew, Inspector Kong and Officer Fung identified the applicant as the man who had carried and put the bag into the car. A T-shirt was found in the cabin which the applicant occupied and these two officers identified it as similar to the one worn by the man who carried and put the bag in the car.

6. The applicant gave evidence and called one witness. His case was that he went out in the morning of 22 October to buy some jeans and had not left the boat again after he returned to the vessel. He had been sleeping in his cabin for the rest of the day because he was not feeling well. His witness, Yu Kam-kiu, gave similar evidence.

7. The Perfected Grounds of appeal contained a total of 11 grounds, but Mr. Haldane, who appeared before us and at the trial, argued only 5 of them. They were 7 to 11 inclusive. Ground 7 was formulated to read :

"The learned trial Judge failed to adequately sum up and direct and explain to the jury the law of trafficking in a dangerous drug. In particular the learned trial Judge did not adequately deal with the issue of failure by the Crown witnesses to identify the bag carried and put into the car, as the object must have contained the dangerous drugs."

8. The judge's summing-up on the law of trafficking in a dangerous drug appears at p. 3 where she said :

"Now as you know, this is a charge of trafficking. In relation to trafficking, the definition set out in the Dangerous Drugs Ordinance which I shall just read you as a matter of interest: trafficking in relation to a dangerous drug includes importing into Hong Kong or exporting from Hong Kong, or procuring, which means obtaining, or supplying, or otherwise, dealing in or with dangerous drugs, or possessing dangerous drugs for the purpose of trafficking. And the trafficking is unlawful because it is not in accordance with any licence that has been issued under the Ordinance. So for the purposes of this case, you can take it from me that what has been described by the witnesses does amount to trafficking and there is no question that it is unlawful trafficking."

The trial was conducted on the basis of identification as is apparent from the summing-up at p. 6 :

"Now as has been emphasized by both counsel, this is a trial where the case against the defendant depends wholly on the correctness of the identifications that were made of him by P.W.1 or P.W.2 or P.W.3.

The defence allege that this is a mistaken identification. Their case is that Mr. LAM was never off the boat at this time of the evening. He had gone ashore earlier in the day, had come back, he had slept in his cabin. He did not really wake up until Customs and Excise went onto the boat sometime after eight o'clock."

One has to look at the evidence in its entirety to draw the proper inference. This is a case where a man was seen coming ashore; carrying a bag which one witness described as silver in colour; walking to a car which had only arrived minutes earlier; opening the door of that car; putting the bag he was carrying into the car and leaving; the car drove off pursued by customs officers in Government vehicles; the car was intercepted; the silver coloured bag was found in the car and the bag contained the dangerous drug. It was on the basis of this evidence that the jury convicted the applicant. We are satisfied that they were perfectly entitled to do so. We are also satisfied that the judge gave an adequate direction in regard to the law of trafficking. This ground fails.

9. The complaint in Ground 8 is :

"The learned trial judge failed to adequately warn the jury as to how they should approach and assess the evidence of the applicant especially in relation to the issue of lies. Bundle page 20 at K to 22 at K; Bundle page 24 at H to 26 at K."

10. The passages complained of consisted of comments by the judge on evidence and how the jury should approach the evidence, which, in our view, the judge was entitled to make. She was pointing out the direct conflict between the evidence of Mr. Yu, the defence witness and Officer Lee and Inspector Kong about the boat. But she left it to the jury and this is what she said :

"In the end, it is a matter for you whose evidence you accept about the boat, p. 21."

The judge then went on to advise the jury that demeanour was not a reliable aid to discerning the truth. Demeanour as a means to test the reliability of a witness had been mentioned by both Mr. Haldane and counsel for the prosecution in their closing speeches. It was in the context of demeanour, which could be deceptive, that the judge used the term "accomplished liar". This is what she said at p. 26:

"In respect of demeanour, I would point out that Mr. Haldane also commented on the lack of comment by the Crown about the demeanour of the defendant, but that again is not indicative of anything. The fact that the defendant did not show any signs of wriggling in the witness-box or had particular hesitancy does not necessarily mean that he is telling the truth either. It could mean that he is a very accomplished liar. That is why I am saying that demeanour should really be disregarded as a major tool of your decision. You should listen to what was said; you should take into account the evidence that was led before you, and remember always that it is for the Crown to prove its case, that the defendant did not have to give evidence, that he did not have to call a witness. Your main concern or your only concern is whether or not the man seen delivering what we now know was that quantity of dangerous drug was the defendant."

Reading the passages together, we do not consider that the directions would cause any prejudice to the applicant.

11. We turn to the complaint that the judge failed to give a "Lucas" direction to the jury in relation to lies. This is a simple and straightforward case with evidence the jury accepted. It is clear from the jury's verdict that they accepted the evidence of the customs officers and rejected the evidence of the applicant and his witness. It is trite law that it is not necessary to give a "Lucas" direction in every case where the defendant gives evidence, see The Queen v. Lee Gee Yan, Criminal appeal No. 523 of 1994. In The Queen v. Chong Chak-on, Criminal Appeal No. 633 of 1994, Power, Ag. C.J. quoted with approval a passage from a decision of the Court of Appeal of New Zealand in Dehar (1969) N.Z.L.R. 763 at 765B, which says :

"How far a direction is necessary will depend upon circumstances. There may be cases, as for instance, R. v. Dunster, an appeal (unreported) that came before this court in April 1967, where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic."

In our view, the appeal before us is not a case that requires a direction in terms of R. v. Lucas (1981) 73 Cr. App. R. 159. Ground 8 also fails.

12. Ground 9 and Ground 11 are inter-related which were argued together. They are :

"9. In view of the learned trial Judge's summing-up on the issue of identification, in particular her direct references to the possibility of mistake by PW2 and PW3 the verdict of the jury ought to engender a strong sense of disquiet and cause this Honourable Court to have a lurking doubt that justice has been done and that 'in all the circumstances' the verdict is unsafe and unsatisfactory.

11. The learned trial Judge ought to have withdrawn the case from the Jury because her own summing-up clearly indicated that she considered the quality of the identification to be poor."

13. At the close of the prosecution case, the defence made a submission of no case to answer which was rejected by the judge. This was what she said :

"Yes, I consider that this is a good case to go to the jury. It may well need to be suitable warnings given, and they can be given and will be given. Call the jury back please."

The judge was at that stage satisfied that the prosecution had adduced sufficient evidence to establish a prima facie case. In the summing-up, she gave a full direction to the jury in accordance with R. v. Turnbull 63 Cr. App. R. 132. The relevant part of the summing-up is to be found at p. 7 and p. 8. She warned the jury in no uncertain terms of the possibility of mistaken identification even by honest and apparently convincing witnesses and pointed out specific weaknesses in relation to the identification evidence. The judge repeatedly and specifically instructed the jury that they could only convict the applicant if the two customs officers identified the applicant by his features. At p. 15, she said :

"Unless you are satisfied that the witnesses saw the features of the man they say was the defendant and identified him by those features, you must acquit the defendant."

And at p. 19 :

"Again, you have to make certain that he has not just identified the shirt. He says that he identified him by his features. That is a matter for you to decide, whether in fact he could see the features and whether in fact he did identify by the features."

Again at p. 25 and p. 26 :

"I consider that, for the purposes of this identification, you should really ignore the evidence of the shirt."

We are satisfied that the judge had given a proper and adequate direction to the jury on the issue of identification. On the evidence, the judge was right to leave the case to the jury and the jury was entitled to convict. We reject Grounds 9 and 11.

14. We come now to Ground 10 which is set out in these terms.

"The learned trial Judge failed to direct the Jury that the Crown must disprove the applicant's assertion that he was on the ship at the time of the alleged offence. This ought to have been so directed on the basis of Alibi."

15. Section 65D of the Criminal Procedure Ordinance requires a defendant to give notice of alibi where the defence of alibi is to be raised at the trial. No notice of alibi was served. The question is whether the applicant left the vessel or not at around 7:30 p.m. He and his witness said that he did not leave the vessel at that time whereas two customs officers identified him as the man who carried and put the bag into the car and the bag was found to contain the dangerous drug as specified in the particulars of offence. This is a direct conflict of evidence and a matter for the jury. It is not an alibi situation. This ground is also rejected.

16. We are satisfied that the verdict of the jury is neither unsafe nor unsatisfactory. There is nothing in the summing-up or in the grounds of appeal to cause us concern. The application for leave to appeal against conviction is dismissed.