R. v. LAU YUEN-PO

IN THE COURT OF APPEAL

1995, No. 267

(Criminal)

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J U D G M E N T

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Ching J.A. (giving the judgment of the Court) :

1. The applicant was convicted on one count of trafficking in dangerous drugs for which he was sentenced to a term of imprisonment of 25 years. He now seeks leave to appeal against both conviction and sentence.

2. In March of last year, the police were keeping surveillance on premises in Nathan Road. Shortly after 2 o'clock in the afternoon they saw a motor car arrive. Two men alighted, one was a man called Tuen Tung-lam and the other was the applicant who was carrying a knapsack. They were stopped and the quantity of drugs specified in the charge was found in it. The questions for the jury were first whether the applicant was in possession of the drugs and secondly, if he were, whether he was in possession of them for the purposes of trafficking.

3. The drugs consisted of a mixture of 10,072.06 grammes of which 8,705.21 grammes were salts of esters of morphine. This was an enormous amount worth over $9,000,000 and simply could not have been for the applicant's own consumption. Since the drugs were found in the knapsack which he was carrying the only factual question for the jury was whether or not he knew what they were.

4. In the course of his evidence in chief the applicant made allegations that he had been approached by a police officer while on remand. He said that it was suggested that he should plead guilty in return for which his sentence would be lighter and that a number of cases would be arranged with the applicant acting as an informer. This would give him stronger grounds of mitigation. This evidence in chief caused counsel for the prosecution to embark upon a line of questioning in cross-examination designed to show that the applicant was a drug addict. This was admitted by the applicant. His counsel did not at first object and the Judge did not intervene. There was no application by the prosecution to be allowed to open up the character of the applicant. Eventually the counsel applied for a mistrial but the Judge below refused.

5. Before us Miss Crabtree for the Crown has not attempted to defend the propriety of the questions. She argued however that it is not for every irregularity that a trial will be aborted. We agree, but it is a matter of degree.

6. Mr. Dinan for the applicant puts his argument in this way. He says that the objectionable questions were asked of the applicant during his evidence. The Judge should not only have intervened but should have directed the jury then and there to ignore the questions and the answers otherwise the jury would be hearing the evidence of the applicant in the light of his admission that he was a drug addict. It would be impossible, Mr. Dinan says, to dispel the prejudice this would cause the applicant in the minds of the jury by way of summing up. He followed that by saying that even if it were possible, the Judge in her summing up merely told the jury that the prosecution did not rely on the evidence and that they should ignore it.

7. In these circumstances, we find that there was a material irregularity at the trial. Mr. Dinan had said that he would not be able to resist an order for a re-trial and in the circumstances, that is the order that we propose to make. We therefore order that this application do succeed and treating it as the appeal itself, we allow the appeal but we order that the applicant should be re-tried upon the original charge. In these circumstances, we need not deal with the application to appeal against sentence.