R. v. LO KIT LUNG

IN THE COURT OF APPEAL

1994, No. 420
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This applicant, a man in his early 40's, faced two counts of trafficking in dangerous drugs.

2. The dangerous drugs the subject-matter of the 1st count consisted of 317.77 grammes of a mixture containing 129.62 grammes of salts of esters of morphine. Two police officers gave evidence of having found those drugs on the applicant upon a street search.

3. As far as the second count is concerned, the dangerous drugs the subject-matter of that count consisted of 27.01 grammes of a mixture containing 22.70 grammes of salts of esters of morphine. The officers gave evidence of having found those drugs in the applicant's home upon escorting him there after his arrest in the street.

4. According to the applicant's evidence, he was a drug addict from whom the officers wanted information on drug dealing and they "framed" him when he failed to give them such information.

5. The trial took place before Deputy Judge Wilson and a jury in August last year.

6. In relation to each count, the essential questions for the jury were these. First, were they sure that the drugs had been found rather than "planted"? Secondly, if the drugs were found rather than "planted", was the only reasonable inference that they were possessed for the purpose of trafficking?

7. How the jury answered those questions appears by their verdicts.

8. On the 1st count, being the "street search" count, they convicted of trafficking as charged. On the 2nd count, being the "drugs in the home" count, they convicted of simple possession only.

9. The applicant now seeks leave to appeal against his conviction on the 1st count, being the "street search" count, on which he was convicted of trafficking as charged.

10. The grounds set out in the applicant's notice of application for leave to appeal read as follows:-

" (1) What the police officers testified were different from the settings of the scene.

(2) The evidences given by the three police officers responsible for the case were self-contradictory.

(3) Why is it that the cautioned statement was presented to the court only when I had asked for it? When presented to the court, there were several signatures which were not signed by me. What were they trying to cover? My signature is this (signed), and I have signed ten signatures to my counsel, but he did not help me.

(4) The judge held that the statements with forged signatures were insignificant evidences. Is it that the judge was biased against me, or that there were other reasons?"

11. The first two grounds - under which the applicant raised questions such as why photographs were taken at his home but not in the street - can be disposed of simply on the basis that they involve questions of fact which were for the jury, who received the evidence at first-hand, to resolve.

12. As far as the last two grounds are concerned, it is worth quoting from the summing-up at p.5T to p.6R, where this appears:-

" And he, the defendant, produced his own statement. This was exhibit D4, which shows that after he was cautioned by the police that he need not say anything, he did not in fact say anything. He also insisted on having produced through his counsel exhibit D2, something which the prosecution were not intending to produce themselves because they did not consider it particularly relevant, but the defence are entitled to have anything produced of this nature which they claim might be relevant. Here the defence did exercise the right and have you see it, this exhibit D2, which is a notebook entry written by a police officer recording the general events and what he says, the police officer says, he got signed by the defendant at the end and it contains the words "I am mentally unbalanced. I knew nothing."

Now that of course would simply seem to be a denial of the charges. But for some reason, the defendant was at pains to tell you that that was fictitious. He did not sign that. I am not sure where that gets you at all. It seems to be that the defendant is denying his own denial. So you may feel that there is no particular significance in the circumstances of the signing of that notebook.

In respect of the defendant's statement where he did not say anything to the police, I must tell you that any person suspected or charged with a criminal offence is entitled to say nothing when he is asked questions about it, and you must not hold his refusal to answer questions against him."

13. Now, if it looks as if the police might well have fabricated false confessions which they did not dare to produce but which surfaced at the instance of the defence, then any impropriety which may be suggested by the circumstances surrounding the taking of such confessions could of course be used to call into question the integrity of the officers concerned: so that it would adversely impact upon their evidence even on matters outside of the taking of the confessions. But here it seems fanciful in the extreme to imagine that the police would fabricate statements of no assistance to the prosecution whatsoever. The matter was raised by the defence. And they have had their say. Ultimately, it did not carry the day with the jury. And that is the end of the matter.

14. Leave to appeal is refused.