THE QUEEN v. LAW WAI CHOI and Another

IN THE COURT OF APPEAL

1995, No. 28
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. In this case both applicants apply for leave to appeal against convictions and sentences on two counts of trafficking in a dangerous drug. They were each sentenced to concurrent terms of 22 years' imprisonment on the first count and 14 years on the second count.

2. The facts were simple.

3. The first count relates to a large quantity of dangerous drug found in a paper bag which the 1st applicant was holding when he and the 2nd applicant were leaving Flat G, Dor Hei Building, 8th Floor, 86-88 Ting On Street, Ngau Tau Kok, Kowloon. The 2nd applicant was behind the 1st applicant at the time. According to the arresting officer's evidence, the 1st applicant pushed him away when questioned and attempted to run away. The police officer subdued the 1st applicant and pressed him onto the ground. Some 8,000 grammes of a mixture containing over 7,000 grammes of salts of esters of morphine were found in the bag which the first applicant was holding.

4. The second count relates to the entry of the police into the flat in question. Upon a search conducted by the police in the presence of the two applicants, two bags containing a quantity of dangerous drug were found in a cabinet inside a bedroom. The 2nd applicant's fingerprints and a palm print was found on the two bags of dangerous drug. In the same flat, other articles such as metal plate, metal mould, set of scales, hammer, an electric blender, plastic spoons and a plastic phial were also found. The flat had little or no furniture. The quantity of drug found in the cabinet was 696.89 grammes of a mixture containing 346.66 grammes of salts of esters of morphine.

5. In his direction to the jury regarding the flat in the second count, the judge said: "It gave the appearance of a dangerous drug factory. The room and the cabinet were not locked, and anyone who could gain access into the flat had complete access to all the rooms and the cabinet." And he spoke in the same vein in two other passages in the summing up.

6. Acting for the first applicant Mr Poll advances three grounds of appeal.

7. The first ground seeks to criticise that part of the summing up when the judge told the jury:

"As a matter of public policy and for good reasons police informers are protected and cannot be compelled to give evidence or to have his identity revealed. Sometimes the information is true and reliable, but very often as it turns out the information may be completely useless. In this case we are not concerned with the information or the informer, what we are concerned is whether the information turned out to be true, and that is whether the police arrested the right people and there is evidence before you that these people are connected with the dangerous drug."

8. It is argued here that the judge having initially told the jury that they were not concerned with the information or the informer, then immediately contradicted that statement and told the jury that they were concerned as to whether the information turned out to be true. And this might confuse the jury as to the significance of the information and thereby caused some members of the jury to think that the information in some way provided additional evidence of the guilt of the accused. Acting for the 2nd applicant Mr Mullick made the same point in his third ground of appeal.

9. Mr Poll's second ground relates to the following passage in the summing up:

"Now, mention has been made about a raid a few days ago before this arrest in the Holiday Inn Hotel involving some men and a very large quantity of heroin. You will keep out of this from your mind because there is no evidence of any connection between the two. Even if there is, well, really I don't think there is anything that would turn out that can be described as favourable to these accused, so you will just ignore that reference."

10. It is submitted that the judge having warned the jury that because there was no evidence of any connection between the present case and the Holiday Inn arrest, they should keep out of their mind any mention that there had been a raid at the Holiday Inn a few days before the arrest of the applicants, when a large quantity of heroin had been recovered, and then concluded the passage of the summing up with the last sentence quoted above. It is argued that a comment such as this was likely to have reinforced, in the minds of the jury, that in fact there was a connection between the Holiday Inn heroin seizure and the arrest of the applicants.

11. The third ground of appeal advanced by Mr Poll is the same as Mr Mullick's fifth ground. Mr Poll submits that the three references in the summing up to the flat having the appearance of a dangerous drug factory were inappropriate and extremely prejudicial, since this was a matter that should have been decided by the jury and not presented by the judge as an incontrovertible and positive fact.

12. We now come to the individual grounds of appeal argued before this court.

13. On the 1st applicant's first ground and the 2nd applicant's third ground, we are of the view that the jury might have been confused by the passage quoted in the summing up above into thinking the two applicants were the "right people" arrested by the police, and they were "these people", i.e. police targets. We accept counsel's submissions.

14. Coming to the 1st applicant's second ground, we are of the view that the last sentence of the relevant part of the summing up quoted above might mislead the jury into linking the Holiday Inn incident with the applicants. Mr Poll fairly concedes that this complaint standing alone is not sufficient to upset the jury's verdicts, but taken cumulatively with the other grounds, it may well render the verdicts unsafe and unsatisfactory. We agree.

15. Next we come to the judge's references to the flat having the appearance of a dangerous drug factory. The issue in point is the state of mind or the knowledge of the applicants as they entered the flat. The references were prejudicial in that the jury might have thought that the applicants must have realized that that the flat was a dangerous drug factory. There was in our view insufficient evidence to indicate that an ordinary person (who, perhaps, had no experience of dangerous drugs or manufacture or packing of drugs) would know upon entry into the flat that it was a dangerous drug factory.

16. Lastly, we come to Mr Mullick's contention that there was a material irregularity arising out of the judge's summing up in that he failed to correctly remind the jury of the evidence given by the 2nd applicant and evidence supporting the defence case and mis-directed the jury that the applicant could not explain the presence of his fingerprints on the two bags.

17. The judge referred to the 2nd applicant's evidence in general terms. The applicant's evidence was that he had nothing to do with the two plastic bags found in the flat. He said that in his transportation business he often had to use this type of bags and he had seen such bags in the 1st applicant's home. He also said that such plastic bags were used to keep string balls and he had used such string balls in his business. The 1st applicant too might have used those bags. Though he said in evidence that he could not explain why his fingerprints and palm print were on the plastic bag, the evidence could have explained it. Whether the jury accepted his evidence was of course a matter for them.

18. Then there was the evidence of the Government Chemist Dr Anna Leung Chan. She said that the yellowish colour in both of the plastic bags might have been left there by some substances in the bag other than heroin "Heroin does not normally discolour. So it does not normally leave a yellow colour behind." Dr Chan said.

19. These two pieces of evidence could have been helpful to the 2nd applicant if accepted by the jury. The judge's omission to put the evidence to the jury left a lacuna in the case for the defence.

20. For the reasons given above we treat the applications for leave to appeal against convictions as hearing of the appeals and allow the two applicants' appeals against convictions. Their convictions in respect of the two counts are quashed and their sentences set aside. Re-trial ordered.