R. v. Chiang Ming Wai

CACC000149/1995

IN THE COURT OF APPEAL

1995, No.149
(Criminal)

______________

______________

Coram: Bokhary, J.A., Ching, J.A. and Stuart Moore, J.

Date of hearing: 10 October 1995

Date of judgment: 10 October 1995

_______________

J U D G M E N T

_______________

Stuart Moore, J. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction in the High Court on 9th February 1995 upon two counts of trafficking in heroin. Leave is sought on two grounds. The first relates to the learned trial Judge's decision to admit in evidence before the jury the record of interview following a voire dire. The Applicant's case, put shortly, had been that she was in no physical or mental state to give a reasonable account of herself. The second ground is that Duffy J. gave erroneous directions to the jury as to their approach to lies if they concluded that the Applicant had been telling lies.

2. The prosecution's case was very straight forward and provided a familiar pattern of events in cases of this kind. The applicant was allegedly found in physical possession of a quantity of heroin. When taken back to the flat that she was renting, a far greater quantity of heroin was found there. The combined value of the drugs amounted to approximately $190,000 worth.

3. Dealing with the first ground it was agreed by both sides at the trial that, prior to the alleged interview being recorded, the Applicant had been feeling unwell. She was taken to a methadone treatment centre where she was given methadone.

4. It was the prosecution case that she became well enough to be interviewed. The Applicant's case, however, was that she was not an addict, that she did not require methadone, that she was not suffering from withdrawal symptoms and that she remained unwell and unable properly to account for herself. Indeed in the voire dire she gave evidence that she had spat out the methadone that she had been given.

5. Mr. Buchanan submits that for the learned Judge to have reached the conclusion that the record of interview was admissible, the Crown should have called medical evidence to prove her condition and that in its absence there was uncertainty as to the precise nature of the Applicant's condition. We do not agree with that submission. The learned Judge had heard the evidence and seen the witnesses and had ample material on which to base his decision. In particular, Mr. Buchanan draws our attention to p.39 in the bundle where Answer 34 of the record of interview states as follows:

"I don't answer. Because for the above questions that I have answered, it was not out of my own free will and out of the lack of clear knowledge of my rights. I will not answer questions."

That answer was given following a brief visit by her lawyer.

6. When we examine the earlier parts of the record it is quite apparent to us, as it must have been to the learned trial Judge, that she fully realized her rights, in particular she had refused to answer questions 4, 5, 6, 16, 17 and 18 of the record in accordance with her perfect right to do so. She had also refused to sign answer 38 and when those decisions on her part were made, she had not had the benefit of any legal advice. Accordingly we reject the arguments that have been advanced on the first ground and we can find no reason to depart from the ruling given by Duffy J. that the record of interview was admissible.

7. On the second ground the learned Judge thought it necessary to give a direction as to the jury's approach to lies should they find that the Applicant had not spoken the truth. The direction given is to be found at pp.11 and 12 in the bundle and I propose to read out that direction in full. He directed the jury in the following terms:

'If, having listened to the defendant giving evidence, you come to the conclusion that she has at some stage told you lies, you must not convict her simply for that reason. People tell lies for reasons other than that they are guilty - perhaps because they think the truth is unconvincing, or out of confusion or panic or to protect someone else or because they are ashamed of their behaviour that might fall short of committing a criminal offence. That is not an exhaustive list of reasons why people tell lies, but it might help you to understand more clearly that people do tell lies sometimes for reasons other than that they are guilty. So do not convict her simply because you thought she was telling you lies. Convict her only if you are satisfied so that you are sure on the whole of the evidence, including her own evidence, that she is guilty of the charges."

8. We are grateful to Mr. Buchanan for his legal researches into this aspect and we have considered the cases to which he has made reference, both in his written submissions as well as the oral submissions made in court today. In particular there are the recent consolidated appeals in England of The Queen v. Burge and The Queen v. Pegg reported in the Times Newspaper on 28th April 1995. The headnote paragraph reads as follows:

'The warning as to how a jury should approach the question of lies told by a defendant as set out in The Queen v. Lucas (1981) QB 720 and 724, was not required to be given in every case in which a defendant had given evidence, even if the jury might conclude that some of the evidence might have contained lies. The warning should only be given where there was a danger that the jury might regard their conclusion that the defendant had lied as probative of his guilt of the offence which they were considering.'

In the matter presently before us the learned Judge decided, and in our view rightly so, that such a direction was necessary. A large amount of the evidence given by this applicant amounted to a denial of the Crown's case both as to possession and knowledge of the whereabouts of the drugs. Clearly if the applicant was not believed in her account about that, it was necessary that the jury should be directed that lies of themselves are never evidence of guilt. As Kennedy L.J. put it in the consolidated appeals to which I have just referred, the direction should, if given, so far as possible be tailored to the circumstances of the case, but it would normally be sufficient if it made 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 had lied was not in itself evidence of guilt since defendants might lie for innocent reasons.

So only if the jury were sure that the defendant did not lie for an innocent reason could a lie support the prosecution case.

9. The submission on behalf of this applicant is that the words used by Duffy J. inadequately dealt with the situation because Mr. Buchanan submits that at no stage was it spelt out to the jury that lies by themselves are an insufficient basis upon which to convict. Again, we disagree with that submission. We think that the jury could have been left in no doubt that the applicant could not be convicted simply upon the basis that she had told lies. The learned Judge said so in terms and invited the jury in the passage from the summing-up that I have already read out in full to convict only if they were sure on the whole of the evidence. Accordingly this application for leave to appeal is refused.

Representation:

Mr. A.A. Bruce, S.A.C.P. for Crown.

Mr. Robert B. Buchanan (Messrs. .C.K. Mok & Co.) for Applicant.