HKSAR v. KWONG TAI MING

CACC361/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 1998

(ON APPEAL FROM HCCC 445 OF 1997)

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J U D G M E N T

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Power, Ag. Chief Judge, H.C. (giving the judgment of the Court):

1. The applicant in this matter was convicted after trial before Beeson J. and a jury on one count of trafficking in a dangerous drug. That count was particularised in the following way: that on 12th August 1997 on the ground of 63 Sai Yeung Choi Street, Mongkok, unlawfully trafficked in a dangerous drug, namely 800 tablets containing a total of 106.14 grammes of 3, 4-methylenedioxymethamphetamine hydrochloride, being a salt of a compound structurally derived from an N-alkyl-(- methylphenethylamine by substitution in the ring with alkyl-enedioxy substituent. He now seeks leave to appeal against both conviction and sentence.

2. The facts of this matter are ones which we see all too frequently in these courts. They were outlined by the judge in the following way:

"The first witness was the arresting officer. He saw the defendant approaching and stopped and searched him. He took him to a doorway .......... He says he conducted a search, searching downwards with his hand ........ and that when he came to the front pockets of the jeans he felt them bulging and he removed the items in the pockets simultaneously ..............

The police officer questioned the defendant as to what the items were, and according to the police officer, he replied 'Ecstacy'. At that point he was cautioned and told that he didn't have to say anything further unless he wanted to, but he went on to make a longer admission and it's recorded in the first part of the record of interview that he said after that, 'Ah Sir, you give me a chance, please, as I have to go to Japan to study but have no money, so I help the others in selling the tablets.'"

3. It was the evidence of the applicant that he had been framed by the police officers and in fact that he had not been carrying any drugs at all at the time when he arrested. He said that he was searched, nothing was found, that all his personal belongings were taken from him, that he was then dragged to the car and that the inspector in the car as they drove towards Yaumatei and gave him a choice of either getting more tablets by making telephone calls or else admitting that the two bags of tablets belonged to him.

4. That grounds argued by Mr. Matthews are four in number. In the first of those, it is submitted that the judge erred when she directed the jury that they "must apply the same attention to the defendant's evidence and assess it in the same manner as you do that of the prosecution witnesses". It is submitted that this in some way placed an onus on the applicant which should never have been placed upon him. We find no merit in this submission. The jury, we are satisfied, must assess the evidence of all witnesses in the same manner. The suggestion from Mr. Matthews seems to be that the jury might have thought that this direction somehow involved standard of proof. The simple fact of the matter is that it did not, and we are satisfied that the jury would never have though that it did. It was perfectly proper to tell them that they must assess the evidence of each witness in the same manner.

5. The second ground is that the judge failed to explain to the jury adequately or at all the good character direction which she had given in respect of the applicant and how it should be applied to his evidence. The direction which she gave was as follows:

"First of all, I'd advise you that this defendant is a man of good character, and in deciding whether the prosecution has made you sure of the defendant's guilt, you must give weight to that good character. You've heard that he's a decoration worker and that he's now 28 years old and he hasn't committed any offence. And you give that weight in two ways. First of all because, as with any man of good character, it supports his credibility; and secondly, the fact that he's reached the age of 28 without committing any offence means that he's less likely than he might otherwise be to start committing crime now. So those are the two matters that you bear in mind throughout your deliberations."

6. We cannot help but ask rhetorically what is wrong with this direction? It is the standard direction but that does not, of course, necessarily mean that it is an adequate one. We are, however, satisfied that it is. We are satisfied that the jury must have understood it and applied it when considering the evidence of the applicant.

7. We turn to Ground 3. The complaint there is that the judge misdirected the jury when she said:

"Don't think that because a police officer has special training that he must be a better or more honest witness than a layman. That might be the case or it might mean simply that a police officer appears to be a better witness because he's got more practice at giving evidence in court."

8. It is suggested that the jury might have felt that this direction placed police in a special category and might have considered that policemen were somehow better or more honest witnesses than laymen. This ground, in our view, wholly misapprehends the direction. In the last paragraph of this direction the judge says:

"Your task is to assess the evidence of all witnesses very carefully, concentrating not only on their demeanour, but on what they've said and what whether what they've said is consistent with what other witnesses say, or consistent with facts that you've decided are correct and rational in the context of the situations that the witnesses described."

9. The judge was, in our view, when the whole passage is read, clearly telling the jury that they were not to confer any status upon police witnesses. It is clear what she intended to say and we are satisfied that the jury must have apprehended that clear intention. There is nothing in this ground.

10. We turn then to Ground 4 which again refers to the direction as to the evidence of police officers suggesting that it was liable to detract from the evidence of frame-up advanced by the applicant as part of his case which was also diminished by the judge's direction to the jury that such allegations were "easy to make and difficult to refute and further that he had made no complaints of the same during earlier court appearances". This ground deals with two matters. The first is the suggestion that the direction to the jury that allegations were easy to make and difficult to refute was not one which fairly dealt with the position as raised by the applicant. We cannot agree. This was no more than an indication by the judge of the way in which the jury could approach the matter. She had made it plain to them that matters of fact were matters for them. We do not think that any criticism is justified of that observation.

11. The second matter arises out of an observation by the trial judge at page 18 of the summing-up where she said:

"Second, you have to consider that he made no complaint about the arrest or the assault or the frame-up throughout six appearances in court where he was represented, and that to date there's been no complaint to the Complaints Against Police Officer about this matter. And the other question that you might consider is why would he fail to tell the police about Mr. Mak and the circumstances of how he came to be outside the Ngan Lung Restaurant in the first place, when he realised that they were going to frame him with what was a substantial quantity of 800 tablets."

12. There are two grounds of complaint arising out of that passage. In the first, it is suggested that the trial judge was wrong to refer as she did to the failure by the applicant to make complaints about his arrest, assault or frame-up. It is conceded by Mr. Matthews that the applicant had been cross-examined along these lines and, it appears, without objection. We cannot see that any criticism can properly be made of the judge's reference to that part of the evidence. Mr. Matthews suggests, however, that the judge was too emphatic in the way that she made this reference. We cannot agree. She was doing no more than saying that the jury could take into account that part of the cross-examination when they came to consider the credit that should be given to the evidence of the applicant.

13. As to the second part of that passage in which the judge said that the jury could consider why the applicant had failed to tell the police about Mr. Mak, who the applicant said was the man with whom he had been prior to his arrest, when he came to realize that he was being framed. This goes to the evidence of the applicant himself which was that he was searched, nothing was found, his personal belongings were taken, he was then dragged to a car and that inside the car he was told that he had a choice of either getting more tablets or admitting the two bags of tablets belong to him. He alleged, a threat, and a very direct one, by the police officer that he was to be framed if he did not cooperate in the way they wanted him to. The judge was doing no more than saying that the situation was as the applicant was saying it to be, you would have thought that he would have mentioned to the police officer about Mr. Mak and the circumstances of how he came to be outside the restaurant. This, again, is a comment which the judge was entitled to make when assisting the jury in their determinations of fact. There is nothing of any merit in Ground 4.

14. The application must, therefore, be dismissed.

15. The applicant in this matter also appeals against sentence saying that the judge did not follow the guidelines of the Court of Appeal. The judge when sentencing indicated that she was following the guidelines in Lee Tak-kwan, C.A. 177 of 1997, and that she was then taking into account not only the quantity but the applicant's clear record and also the fact that the matter should probably have been not in the High Court but in the District court and, having taken those matters into account, she sentenced the applicant to two years and ten months' imprisonment. As we read what she said, it would appear that she arrived at the sentence by looking at the quantity and at the sentencing scale set out in Lee Tak-kwan and then gave some credit for the two matters which she mentioned. We are satisfied that she must have considered that the scale threw up a sentence of 36 months. In this she was mathematically incorrect. The scale in fact throws up a sentence of 30 months. Following the spirit of her sentencing, we consider it proper to reduce that 30 months to 28 months. The applicant will, therefore, succeed in his application for leave to appeal against sentence which will be varied from one of two years and ten months, i.e. 34 months, to one of two years and four months, i.e. 28 months.