R. v. LEUNG CHI HUNG

IN THE COURT OF APPEAL

1996, No. 575

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant pleaded not guilty to a count of trafficking in dangerous drugs and guilty to two counts of being in possession of small quantities of dangerous drugs. After a trial before Gall J and a jury he was found guilty on the 1st count. He was sentenced to 10 years' imprisonment on the 1st count and 18 months each on the 2nd and 3rd counts all to be served concurrently. He now seeks leave to appeal against his conviction on the 1st count and his sentences on all three counts.

2. On the 1st count the applicant was charged with being in possession for the purpose of trafficking with 83.82 grams of methampetamine hydrochloride which is otherwise known as ice on 14 December outside the CRC Department Store at Argyle Street, Kowloon. He does not dispute that he was in possession of the dangerous drugs. It was and is his contention that he possessed the dangerous drugs for his own consumption.

3. This is notwithstanding the fact that the applicant admitted in a cautioned statement he made that he was delivering the dangerous drugs the subject matter of the 1st count to a person called Simon for financial gain.

4. The applicant agreed that he had made the statement but said that it was not true.

5. Gall J gave a direction to the jury upon how they should consider the question of lies. He said at p9:

"Now, you have been told by Mr TAM that you may look at his evidence and if you find that he has lied to you, then that is something you could take into account in reaching your decision. But you have also got to remember that people lie for many reasons. People lie because they are frightened, they lie because they think you will not believe the truth, they lie because they do not know what else to do. In this case, the accused said he lied in the police station because he thought it was the safer thing to do. When you look at any circumstance where you think the accused might have lied, you must bear in mind that there may be many, many other reasons why he did lie. And you could only rely upon a lie if it goes to a material fact in the case. If it is about something crucial to the proof against him.

Secondly, you must find that the lie was only told for the purpose of avoiding guilt. So you must find that he was trying to escape guilt. You must bear in mind that people lie for other reasons. So lies, I think, are not a matter which can help you a great deal in this matter. You must look at the evidence and decide what is true. Having done that, when you are sure what evidence is true, you will apply to it the law that I am giving you, and that way is how you come to your decision."

6. Before us the applicant argued that this direction was very unhelpful to him and undermined one of the main defences he was running. This was that he had told the police a lie when he had said that he had been delivering the drugs to Simon. It was most unfortunate that the judge might have given the jury the impression that the question whether the applicant had lied was not a matter which could help a great deal.

7. This caused us some concern. We are however satisfied that any confusion which may have arisen as a consequence of this direction was sufficiently rectified by the directions which were given at pages 16 and 17 of the record:

"What is the case for the defence? Now, when I say the case for the defence you know that I do not mean he has to prove anything. The case for the defence is a handy way of saying what did he say about the Crown case that you must bear in mind when you look to see if there are doubts in that case for the Crown. He said that when he was arrested he was in fear, he was anxious, he took the very natural step of trying to minimise what he had done. He considered it and he thought, well, it's probably safest for me if I say it is not mine and it really belongs to somebody else and that I just delivered it for them and I was to get $3,000 for it, and therefore minimise my responsibility because it was not really my drug. That is what he is saying.

And you must take that into account, of course. You must look at that analytically and carefully because if you find that he lied to the police in that statement or if you cannot be sure that what is in that statement is the truth, then you cannot convict for trafficking because that is where the solid evidence lies."

8. The only other observation we would make on the subject of lies is that no direction on the subject should have been made in this case. This was not a case in which the applicant could have been disadvantaged if the jury had thought he had lied to the police. That he had lied to the police was what the applicant had wanted the jury to find.

9. Over and above this there was evidence that on the basis of his admitted daily consumption the quantity of dangerous drugs the subject matter of the 1st count would have lasted the applicant in excess of six months.

10. There was ample evidence before the jury for them to be satisfied at the appropriate level that the applicant had been trafficking in dangerous drugs.

11. No grounds have been advanced which would indicate that the conviction was in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is dismissed.

Sentence

12. The quantity of ice the subject matter of the 1st count comes within the 3rd tier of amounts referred to in the guidelines case of Ching Kwok Hung. It is not possible to say that the judge erred in passing the sentence he did on the 1st count. As the sentences imposed on the 2nd and 3rd counts were ordered to be served concurrently there is nothing further which can be done to assist the applicant on these counts.

13. This application is also dismissed.