THE QUEEN v. LEUNG YUK TONG AND OTHERS

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. These three Applicants were tried before a judge and jury: on a charge of conspiracy to traffick in dangerous drugs. The 1st Applicant in addition was charged with unlawful possession of dangerous drugs for the purpose of trafficking. A fourth man - who was the 2nd Defendant at the trial - was acquitted of both charges.

2. The evidence generally was that the police carried out a surveillance on a restaurant where the four men were seen together. There were various comings and goings but eventually the 1st Defendant went downstairs and to an underground car-park, from which he later emerged with a bag which he proceeded to put into the boot of a car - a Honda motor-car which then arrived on the scene driven by the 2nd Defendant. He himself got into the car and the two of them drove off and were intercepted by the police. The bag was found in the boot and it contained a large quantity of dangerous drugs. The 3rd and 4th Defendants also left the restaurant. They went down to the underground car-park from which the 1st Defendant had emerged. They drove out a Mazda motor-car. They were stopped by the police, and the case for the Crown was that in the boot of that car was found a quantity of wrapping materials, a sack and polythene, which by expert evidence was associated with the drugs then in the Honda motor-car. Also in the Mazda were found two pairs of gloves. That is sufficient statement of the facts to enable us to deal with the appeal.

3. Dealing first then with the 1st Defendant. It was complained that the judge told the jury that they should deal first with the possession count. We see no error in his having so said. The possession of the drug was inevitably a factor - in fact a major factor - in deciding whether there was the conspiracy alleged: this was one of the overt acts upon which the conspiracy was to be proved. If the jury had convicted on the first count and had acquitted on the second there might well have been an argument that the verdicts were inconsistent, but no such situation arose here.

4. It was then complained that the judge failed to direct the jury as to the position if they found that the 1st Defendant had an opportunity for knowledge about the drugs in his car but were not satisfied that knowledge had been proved beyond all reasonable doubt. The jury were told that knowledge had to be proved. In our view there was no reason why they should think that a mere opportunity was sufficient. The 1st Defendants knowledge could only be a subjective knowledge. Any further direction to the jury might, we think, have resulted in their becoming confused.

5. There was then a suggested failure to distinguish between the matters which had to be proved in relation to the conspiracy charge and the possession charge by virtue of the existence of the presumption. In our view the answer to this argument is clearly contained in s.39 of the Dangerous Drugs Ordinance, which expressly provides that any special rules of evidence which apply to the proof of an offence under the Ordinance shall apply to the proof` of a conspiracy to commit such an offence, and there is therefore no need for us to consider what would have been the position if s.39 had not been in the statute. Speaking entirely for myself I think the result would inevitably have been the same, having regard to the wording of the section creating the presumption.

6. Then it was suggested that the judge did not sufficiently direct the jury as to the evidence which would justify a finding of conspiracy. At pp.21 and 22 of the Summing-up the learned judge did give a summary of the Prosecution case. That in itself, we think, was sufficient to answer the complaint that is made.

7. For these reasons we think that the application of the 1st Defendant for leave to appeal against conviction must be dismissed.

8. As to the 3rd Defendant it is submitted that there was indeed no case for him to answer and that the matter should have been withdrawn from the jury. We have heard counsel for the 3rd Defendant, and counsel for the Crown finds it hard to argue the contrary: we think that the submission is right. There was inevitably grave ground for supicion that the 3rd Defendant was involved in what was going on with these drugs, but we do not think , that that suspicion ever got within the realms of proof, and, that being so, the application of the 3rd Defendant must be granted, his appeal must be allowed, conviction quashed and the sentence set aside.

9. The same argument is not advanced in respect of the 4th Defendant, but it is said that the verdict against him is unsafe and unsatisfactory. The question that has to be asked is Did the facts that were alleged produce such a coincidence that it was a proper inference - in fact the only proper inference- that this Defendant was guilty of the conspiracy? We are satisfied that the evidence did justify a conclusion that the wrappings in the Mazda motor-car had been associated with the drugs in the Honda. Thereafter the coincidence becomes altogether too great for mere chance. Here the matter goes beyond suspicion into the realm of proof.

10. Complaint is made of the judge's direction to the jury in relation to the 4th Defendant's not having given evidence. This is an argument which would also have applied to the 3rd Defendant had we not already allowed his application. The 4th Defendant was shown to have been the hirer and the driver of this Mazda motor-car. It was this which differentiated him from the 3rd Defendant. What the judge said was this:

It is submitted that that was an invitation to the jury to assume the guilt of the accused from their declining to go into the witness box. No doubt what the judge said could have been better expressed but, read together, we think that the two paragraphs merely show that the judge was pointing out that the Prosecution evidence on its own would justify an inference of guilt and telling the jury that that evidence was not contradicted. Had the matter been put along those lines, no possible objection could have been made. That, we think, is what the jury would have understood by what in fact was said.

11. Finally there are the discrepancies in the Prosecution evidence. We think that the judge summed up the evidence in sufficient detail. It is true that he did not draw the attention of the jury to all the specific discrepancies which are relied upon by the Applicant but it was for the jury to note the discrepancies: it was for the judge to point out to them the evidence which had been given. It is, of course, open to a judge to emphasize particular discrepancies - to point to the various pieces of evidence and to compare them - but so long as the evidence is sufficiently summed up we think that that is sufficient. Of rather more importance were the criticisms directed by the judge to the evidence of Mr Suen, a witness called by the Defence. It is the duty of a judge in summing up the evidence to maintain a fair balance in his approach to the evidence of the Prosecution and the evidence of the Defence: he should not appear to take sides although he is entitled to express his opinion. The question here is whether the judge so far commented on the evidence of the Defence adversely as to throw out of balance the whole summing-up. We have looked at this with considerable anxiety but have come to the conclusion in the end that the balance was sufficiently maintained and that the criticisms of Mr. Suen do not of themselves justify our interfering and saying that the summing-up was unfair. Accordingly the application of the 4th Defendant also must be dismissed.

29th November 1984