HKSAR v. KO SAI KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 730
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted in the High Court of one count of trafficking in a dangerous drug. He was sentenced to 27 years' imprisonment. He now applies for leave to appeal against conviction.

2. The prosecution case is this. On 16.1.1997 the applicant went to a car rental company in King's Road Hong Kong and rented a grey Daihatsu registration number GW4501 private car for 24 hours. He took out the vehicle at about 12:30 p.m. that day.

3. At 4:15 p.m. on the same day, police officers on surveillance observed the applicant alight from a car DZ6315 at Sunningdale Carpark in Sheung Shui. A few minutes later, the applicant was seen driving the grey Daihatsu out of that carpark. He then drove the car into the Sceneway Garden carpark in Kowloon and parked it there and walked away. The car was left in this carpark overnight unattended and undisturbed until the following morning.

4. PW17 was one of the officers of the surveillance team. He gave evidence that he was hiding in a goods vehicle in the Sceneway Garden carpark from 7:40 a.m. on 17.1.1997 keeping GW4501 under observation. The goods vehicle was parked opposite to GW4501 but close enough and with uninterrupted visibility for him to see it clearly. At 8:17 a.m., he saw a man approach the shroff office and then the boot of GW4501 empty handed. The boot was opened and then closed. During this period, PW17 lost sight of the man for one or two seconds. Thereafter, he saw the man come out from behind GW4501 carrying a black travelling bag which appeared to be heavy and this man walk towards him. PW17 had been standing or sitting down in the goods vehicle when he was observing this man. The man then went up to a red vehicle EL3590 parked on the left of the goods vehicle. PW17 immediately changed his position to the left rear of the vehicle and looked out from the left rear window through a small gap in the drawn curtains. He saw the man open the boot of this red vehicle and put the black travelling bag into it and close it. The man then walked back to GW4501 and drove away. Subsequently, at an identification parade he identified the applicant as that man.

5. Another officer on surveillance at the entrance of the carpark at Sceneway Garden saw the applicant drive out of the carpark at 8:22 a.m on 17.1.1997. The carpark's video recorded the applicant driving out of the carpark at about that time. The red vehicle EL3590 was kept under observation by officers taking over from PW17. It was unattended until 12:46 p.m. when a man came up to it and drove it out of the carpark at 12:55p.m. The red vehicle was intercepted at the barrier by other police officers and the travelling bag was found in the boot. Inside this bag, there were twenty-one blocks of heroin the subject matter of the charge.

6. The applicant was arrested at his home. In a statement to the police recounting his movements on 16.1.1997, the applicant admitted he hired GW4501 to facilitate the delivery of the dangerous drug and for his part he expected to be paid $21,000. What he said about his movements after he hired the car substantially tallied with the accounts given by the surveillance officers of his movements that day. He admitted he drove the car to Sceneway Garden carpark that afternoon and left it there. Before he drove from Sunningdale carpark in Sheung Shui towards Kowloon, he had ensured that the black travelling bag was in the boot of GW4501 and that it contained the twenty-one blocks of heroin.

7. In the statement the applicant said that the next morning he drove the red vehicle EL3590 to Sceneway Garden carpark and parked it near GW4501. He then transferred the black bag containing the drugs from GW4501 to this red vehicle and he drove away in GW4501, leaving the red vehicle EL3590 in the carpark. Later that day he returned GW4501 to the rental company.

8. The prosecution case clearly depended upon the evidence of PW17 that the applicant put the black travelling bag containing the heroin into the red vehicle EL3590 and the admissions of the applicant.

9. The applicant's evidence is that he hired GW4501 originally for transporting wedding guests of his friend but later he was told this was no longer required. It happened another friend of his called Ah Lung asked to use the car and he let him use it for the time being. Then he drove to Fanling in his own car DZ 6315 and then later collected GW4501 from Sunningdale carpark. It had been left there by Ah Lung after using it. He drove GW4501 to Kowloon and parked it at Sceneway Garden carpark in the evening of 16.1.1997. The next morning, he drove the red car EL3590 to Sceneway Garden for Ah Lung and parked it there. He went to the shroff office, and then he drove GW4501 away leaving behind EL3590. Later that day he returned the hired car to the rental company.

10. His defence was he did not transfer a black travelling bag from the boot of GW4501 to the boot of EL3590 and the evidence that he did so was either a mistake or otherwise untrue. On such evidence the judge directed the jury and the jury returned a verdict of guilty on the charge.

11. The sole ground of appeal is whether the issue identification of the applicant arose in circumstances which made it incumbent upon the trial judge to direct the jury upon the principles in R v Turnbull 63 Cr. App. 132 but no such warnings or directions were given. In the circumstances is the conviction unsafe and unsatisfactory?

12. Mr. Buchanan for the applicant submits that the evidence of PW17 on his observation of the man who put the black travelling bag into the red car required a Turnbull direction and a warning to the jury of the danger of mistaken identification by a convincing witness. He submitted that even if the applicant was in the carpark at the material time, there was still an issue as to the identity of the man who put the travelling bag into the boot of the red car. He also submits that the trial judge should make it clear to the jury that they should consider if the statement under caution supported the evidence of the identification.

13. Mr. Cross S.C. for the Government on the other hand submits that there was no suggestion that there were other persons in the carpark at the material time. There was no suggestion of mistaken identification so that the issue did not arise. Therefore the Turnbull directions would not be necessary.

14. It is true that the summing up of the trial judge did not contain any direction along the lines of Turnbull and there was no warning as to the danger of mistaken identification by an honest and convincing witness. The question in this appeal is whether in the particular circumstances of this case, such a direction and warning should have been given failing which the conviction cannot be regarded as safe and satisfactory.

15. In Jason Bradley Cape & others [1996] 1 Cr. App. R 191 a case which Mr. Cross referred to, Roch L.J. discussed when a Turnbull direction would be required. Mr. Roch L.J. said (at page 197):

"When is a direction about identification and the dangers of identification evidence required?" The answer can be found in the case of Turnbull itself at p. 137 and p.228 of the respective reports. There the Lord Chief Justice said:

'First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. So the Turnbull direction needs to be given in those cases where the case against the accused depends wholly or substantially on the correctness of an identification of the accused which the defence alleges to be mistaken.'"

16. His Lordship then referred to what the Lord Chief Justice said in the case of Oakwell [1978] 66 Cr. App. R. 174, that Turnbull was intended primarily to deal with the "ghastly risk run in cases of fleeting encounters". His Lordship also referred to the case of Courtnell [1990] 1 Cr. L.R. 115 and said this:

"In the Criminal Law Review at p. 116 there is a commentary on that decision which says:

'The Turnbull rules were primarily designed, as Lord Widgery so vividly put it in the later case of Oakwell, to deal with the ghastly risk in cases of fleeting encounters. These rules are expressed to apply wherever the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken. If the defence alleges, not mistake, but a frame-up no useful purpose would be served by giving the warning. With that passage this court agrees.'"

17. Applying those principles to the present case, PW17 identified the applicant as the man who drove GW4501 from the carpark shortly after 8:17 a.m. of 17.1.1997. The carpark video recorded the applicant driving out GW4501 and another police officer at the carpark entrance saw him driving the vehicle out at 8.22 a.m. The applicant in his evidence admitted he went to the carpark in the morning of 17.1.1997 in the red car EL3590 and approached the shroff office before he left the carpark in GW4501. There was no evidence that other persons were around the two cars between 8:17 a.m. and 8:22 a.m. There was nobody else associated with the two vehicles in the carpark at the material time. It was not a fleeting glance situation contemplated by Turnbull. The defence is PW17 fabricated or concocted the evidence that the applicant put the black travelling bag into the boot of EL3590 or PW17 made a mistake that the applicant did so. Thus the identification of the man in the carpark at the material time as the applicant is not an issue. The real issue for the jury was what the applicant did in the carpark and specifically whether he had put the black travelling bag into the boot of EL3590. This is not a case of visual identification that requires a Turnbull direction. The absence of such a direction does not render the conviction unsafe and unsatisfactory.

18. In addition, the applicant's admission by itself, if accepted is sufficient for the jury to conclude that the drugs were put into the boot of EL3590 by the applicant. The applicant's statement supports the evidence of PW17. In convicting the applicant the jury clearly had accepted the evidence of PW17 and the admissions of the applicant in his statement. In the circumstances, the application for leave to appeal must be dismissed.