THE QUEEN v. TSANG WAI-KI AND ANOTHER

HEADNOTE

Criminal law - trafficking in heroin - evidence of heroin addiction - admissibility - material irregularity.

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JUDGMENT

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Stuart-Moore J.(giving the judgment of the Court):

1. These Applicants seek leave to appeal against conviction on 31 July 1995 on counts of trafficking in heroin following a trial before H.H. Judge Pang, sitting as a Deputy Judge in the High Court, and a jury.

2. The indictment contained three counts all of which related to events on 9 October 1994. The first count alleged that the second Applicant was trafficking in a mixture weighing 54.32 grammes containing 15.9 grammes of heroin hydrochloride. The second count alleged that the first Applicant was trafficking in a mixture weighing 53.32 grammes containing 14.5 grammes of heroin hydrochloride. The evidence revealed that the value of each of these quantities was in the region of $17,000. The third count was a joint allegation of trafficking in 1,331.56 grammes of a mixture containing 190.88 grammes of heroin hydrochloride.

3. Police were in a building in Nathan Road, Mongkok, when they arrested the second Applicant at 12:28 p.m. as he was making his way down the staircase. He was searched and the drugs in Count 1 were found in two packets in a trouser pocket. He maintained that they were for his own consumption.

4. The first Applicant was arrested at 9:00 p.m. as he was putting a key into the lock of the outer door to Flat A on the fifth floor of the same building in which the second Applicant had been arrested approximately eight and a half hours earlier. He explained that he was there to look for a friend in Room A3. He gave no answer to the question he was asked as to why he had the keys, but it was noticed that he was flustered and shaky. He was then searched and the drugs in Count 2 were found in two packets hidden inside his trousers. He admitted that this was white powder that he had bought for his own consumption. Police then found that the keys fitted not only the outside grille door but also the door to Room A3.

5. The drugs in Count 3 were found on a shelf in Room A3 and, under the bed, items such as scales and resealable plastic bags were found. The first Applicant told the police that the white powder in that room belonged to someone he called Ah Fu Chai and that he was only there in order to smoke and to help.

6. The evidence of the third count against the second Applicant was equally inferential, arising from the combination of three factors. Firstly, he had been seen leaving the building carrying two packets of heroin with him. Secondly, he had signed a tenancy agreement on 29 September 1994 for Room 3A. Lastly, his finger and palm marks were found on a clock inside that room.

7. The Applicants did not give evidence at their trial, and the issue on Counts 1 and 2 was plain. The jury had to be sure that each Applicant had heroin in his possession for the purpose of trafficking. Questions asked in cross-examination on behalf of both Applicants suggested that possession itself was a matter of dispute together with some of the answers recorded. Neither the prosecution nor the defence suggested that these were drugs for personal consumption. The issue on Count 3 was also clear cut with neither side suggesting that the drugs were for personal consumption. The defence challenged the suggestion that these Applicants were in possession, in the physical or constructive sense, of the heroin found in the flat.

8. At some stage during the trial, the prosecution applied to introduce evidence that both Applicants were drug addicts. Their counsel objected to that course on the ground that it was evidence of a highly prejudicial nature and was non-probative. The learned Deputy Judge nevertheless gave leave for the evidence to be called. A doctor who had examined the Applicants soon after their respective arrests then gave evidence that they were both heroin addicts. He was able to add from conversations he had had with them that they spent $500 and $200 respectively each day on heroin.

9. The main ground on which both Applicants seek leave to appeal is that the learned Deputy Judge wrongly admitted the evidence relating to drug addiction. It has been submitted that there was little, if any, probative value to such evidence since a drug trafficker is just as likely to be someone who is an addict as one who is not. Furthermore, the evidence was so obviously prejudicial to a fair trial that it should have been ruled inadmissible.

10. The well-known authorities which have been cited to us in the course of argument draw the distinction between cases where evidence has been introduced of propensity to commit crime of a certain kind which has the effect that an accused is shown to be a person who is more likely to have committed the particular crime alleged, and those which provide positive proof that the defendant committed the offence.

11. In Director of Public Prosecutions v. Boardman (1975) A.C. 421, Lord Hailsham cited the statement of Lord Herschell L.C. in Makin v. Attorney-General for New South Wales (1884) A.C. 57 (at p.65):

          "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

Lord Hailsham's judgment continued:

12. Returning to the present application, it is not entirely clear why the learned Deputy Judge allowed the highly damaging evidence that both Applicants were addicted to heroin to be introduced as part of the case for the prosecution. He gave no reasons. It may be that he had in mind the possible alternative verdicts open to the jury, on all of the counts, of simple possession. In the course of his summing up, he specifically directed the jury that they would also need to consider simple possession as an alternative to the charges, but the jury was given no indication as to how they should approach the evidence of drug addiction or that it was limited to the lesser alternative.

13. The position might have been quite different if these Applicants had accepted possession of the heroin and the issue at trial had been confined to whether or not they were traffickers. In those circumstances the defence might well have been expected to call the evidence as to addiction to strengthen their case.

14. Where possession itself was the crucial issue, the introduction of the evidence about which complaint is made could only go to propensity. There is no question that the prosecution recognised this. Towards the end of the summing up, Mr. Cantrill, who was prosecuting in the court below, raised in the jury's absence a matter of law relating to the way in which Deputy Judge Pang had summed up on the topic of character. He took exception to the jury having been directed, in so far as the second Applicant was concerned that, in effect, he had never been convicted previously of any criminal offence, that weight should be given to his good character and that, by reason of his good character, he was less likely to have committed the crimes alleged against him. Mr. Cantrill's point was that if the jury accepted the undisputed evidence that the second Applicant was a heroin addict then the jury might not regard him as a person whose character was of much help in determining the facts of the case. The trial judge did not accede to the invitation to amend his summing up, but it illustrates how the prosecution viewed the effect of the evidence.

15. We take the view that in this case the rule in Makin (above) was clearly breached. The introduction of the evidence relating to addiction to heroin cannot be justified. It might have become relevant and admissible in cross-examination, or in rebuttal, if the Applicants had availed themselves of their right to give evidence. This may then have given rise to a proper foundation for an application at that stage to introduce the evidence. In our judgment, the learned Deputy Judge erred in law in allowing the application at the stage when he granted it. This was a material irregularity, and accordingly we have not needed to give detailed consideration to the further grounds of appeal in which complaint is made about other aspects of the summing up.

16. We shall grant these applications and, treating them as the hearing of these appeals, we allow the appeals of both Applicants. The convictions are quashed and the sentences imposed are set aside.

17. We shall further make an order under Section 83E of the Criminal Procedure Ordinance, Cap.221, that this case should be retried on all counts of the indictment.