HKSAR v. Tam Kai Cheng

CACC000148/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 148
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 17 June 1998

Date of delivery of judgment: 2 July 1998

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J U D G M E N T

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

1. The Applicant was charged with one count of conspiracy to traffick in dangerous drugs and one count of trafficking in dangerous drugs. Particulars of the first count are:

"TAM Kai-cheng, between about June, 1993 and the 9th day of August, 1994 in Hong Kong, conspired with SZETO Tsz-kwong, CHAN Kan-wing and CHEUNG Mei-yee, to unlawfully traffic in a dangerous drug, namely salts of esters of morphine."

and of the second count:

"TAM Kai-cheng, on the 9th day of August, 1994 in Hong Kong, unlawfully trafficked in a dangerous drug, namely 10,554.93 grammes of a mixture containing 10,413.63 grammes of salts of esters of morphine."

2. After a trial before Bewley, J. and a jury he was found guilty as charged and sentenced to 30 years' imprisonment. He now seeks leave to appeal against his convictions.

3. On 9th August 1994 the police were conducting surveillance duties outside a building in Cheong Wah Street. They saw two men getting out of a Honda motor car, registration no. FZ563. It subsequently transpired that the two men were Mr. SZETO Tsz-kwong and Mr. CHAN Kan-wing. These two men are two of the people referred to in the conspiracy count.

4. The police saw Mr. SZETO take a blue bag from the boot of the car and enter the building. Mr. CHAN drove off in the car and later returned on foot and entered the building.

5. The police conducted a raid on Flat G, on the 8/F of the building. They found Mr. SZETO, Mr. CHAN and another man called CHAN Ping-fai at the premises together with the dangerous drugs referred to in the second count.

6. Although no reference was made to the Applicant at the time of the raid, three bank deposit slips were found, two in his name and one in the name of Work Salon a business he was connected with together with his mistress Madam CHEUNG Mei-yee who was the fourth conspirator referred to in the charge.

7. From the time of his arrest Mr. SZETO admitted his involvement with the dangerous drugs. Although he did not refer to the Applicant immediately, he did refer to him the next morning.

8. He has at all times been co-operative with the authorities and he gave detailed information to them implicating the Applicant.

9. At his trial Mr. SZETO pleaded guilty to trafficking in a large quantity of dangerous drugs and was sentenced to 16 years' imprisonment.

10. Mr. CHAN also at a later date gave the police information concerning the Applicant.

11. One of the main features of the trial before Bewley, J. was that the principle prosecution witnesses were Mr. SZETO and Mr. CHAN.

12. They both gave detailed evidence as to how they had come to know the Applicant and how they had engaged in trafficking in dangerous drugs with him.

13. There was other evidence implicating the Applicant. The police also conducted a surveillance exercise in April 1994. They had seen the Applicant, Madam CHEUNG and her daughter at Kai Tak. They had been met by two men and had gone to the Honda car registration no. FZ563, and it had been driven away by Madam CHEUNG who was accompanied by the Applicant and her daughter. The Honda car was registered in Mr. SZETO's name.

14. The Applicant was eventually arrested in July 1995. Shortly after this he made a lengthy cautioned statement in the presence of his solicitor.

15. In this statement he denied knowing Mr. SZETO or Madam CHEUNG. He also made a number of other denials on material matters.

16. At his trial the Applicant gave evidence. The main thrust of his defence was that he was being framed by Mr. SZETO and Mr. CHAN. He claimed that although he had known Mr. SZETO, he had not engaged in any drug trafficking activities. Indeed his involvement with Mr. SZETO had been exceedingly reluctant and had only come about consequential upon various financial dealings they had had together.

17. Hardly surprisingly the Applicant was cross-examined at some length upon the cautioned statement he had made and why he had denied knowing Madam CHEUNG and Mr. SZETO. The main explanation he had made concerning these matters was that he was aware that Mr. SZETO had been involved with dangerous drugs and that he had been anxious to distance himself from him. In any event the Applicant had admitted in his evidence that he had lied to the police when he had made the cautioned statement.

18. It is on the subject of lies that the one outstanding ground of appeal is based.

19. Ground 1 which is the sole remaining ground of the amended perfected Grounds of Appeal is that the Judge erred in law in that he misrepresented and/or failed to direct the jury properly upon the issue of the Applicant's lies.

20. The Judge directed the jury to consider lies in this way at p. 15 of the summing-up:

"Now, he admits - the defendant admits, that he lied about not knowing SZETO. And you may think that he has lied about other matters in the statement also, for example, being - being in China between January and August and having a - a mobile phone, it's a matter for you.

As to these lies, if you believe they are lies, if you are sure that he - that they are lies, you must consider why he lied. The mere fact that a defendant tells a lie, is not, in itself, evidence of guilt. A defendant may lie for many reasons. For example, to bolster up a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or from panic, or confusion.

If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them. But if you are sure that he did not lie for some such, or other, innocent reason, then his lie can support the prosecution case."

21. This direction also needs to be considered in conjunction with this further direction at p. 52:

"Well, that's it, members of the jury. The case, as I've indicated, depends on the evidence of SZETO and CHAN. If you have doubts about that, then you will acquit, on both counts, whatever your view of the defendant's evidence."

22. Mr. Grounds submitted that the direction at p. 15 was wrong in law and that the further direction at p. 52 did not rectify the position. He argued that even where it had been established that a defendant had lied the only effect which could flow from this was to adversely affect his credibility.

23. He placed particular reliance upon the passage at p. 48 of the speech of Lord Devlin in R. v. Broadhurst [1964] 2 WLR 38.

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

24. From this he contended it was only in a situation where a jury was being invited to draw inferences that a direction along the lines indicated by Lord Devlin was appropriate.

25. Mr. Grounds contends that lies can only be used as corroboration (R. v. Lucas [1981] 1 QB 720), to support identification evidence (R. v. Goodway [1994] 98 CR App R 11), and to strengthen an inference of guilt (R. v. Broadhurst). He submits that they cannot, in any other way, give support to the prosecution case.

26. Mr. Grounds went on to submit that the summing-up was unsatisfactory as the Judge gave no directions on the use which could be made of the lies. He suggested that what the Judge should have said was that the lies could only be relevant to the Applicant's credibility and not that they supported the prosecution case. The way it was put by Mr. Bruce, S.C. for the prosecution was that lies could never prove guilt but could be used to make the prosecution case more probable. In the present case the Judge was we are satisfied telling the jury that the real issue for their decision was the credibility of Szeto and Chan. He was telling them that if they were satisfied the applicant had lied then they could find that prosecution case which relied upon the credibility of Szeto and Chan was supported by the fact that the Applicant had resorted to lies.

27. This was not a case in which the lies were ever put forward as corroboration of the prosecution's case so that a direction of the kind envisaged in R. v. Lucas [1981] 1 QB 720 would have been inappropriate. If any direction was to be given, this was a case which fell squarely within what the English Court of Appeal said in R. v. Burge and Pegg [1996] 1 Cr. App. R at page 174:

"The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:

1. that the lie must be admitted or proved beyond reasonable doubt, and;

2. that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case."

28. The direction given by Bewley, J. was entirely appropriate.

29. These convictions were neither unsafe nor unsatisfactory and this application is dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. & Mr. Cheung Wing-leung, S.G.C. (D.P.P.)for Respondent

Mr. Christopher Grounds instructed by M/S Chong, Leung & Co. for Applicant