Wong Siu Lung (D.1) and Another v. The Queen

CACC001558/1983

BETWEEN:

Coram: Roberts, C.J., Yang and Barker; JJ.A.

Date: 3rd April, 1984.

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JUDGMENT

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Roberts, C.J.:

1. The appellants were jointly charged with possession of a dangerous drug for the purpose of unlawful trafficking.

2. The first appellant (D.1) who was convicted and sentenced to ten years' imprisonment, seeks leave to appeal against conviction.

3. The second appellant (D.2) pleaded guilty and was sentenced to nine years' imprisonment. He seeks leave to appeal against sentence.

Facts

4. On 12th July, 1983, the police arrested D.2 and searched the flat in which he was living on the 8th floor, Ka Lai Building. They found a substantial quantity of dangerous drugs, namely 4,929 grammes of a mixture containing 1,408 grammes of salts of esters of morphine, in one of the bedrooms of the flat, some in plastic bags, some in a drawer of a desk and some in a cardboard shoe box.

Case against D.1

5. The Crown case against D.l, who was arrested in the street at the same time as D.2, can be summarized as follows. First, that he was the tenant of the premises. Second, that some of the dangerous drugs were found in a plastic bag which bore, after expert examination, what was shown to be a fingerprint of the first defendant. Third, that some of his clothing was found in a bedroom. Fourth, that when he was arrested about $16,000 in notes were found in his possession.

6. D.1 gave evidence at his trial and put forward an explanation of all the main grounds upon which the Crown relied. As the trial judge himself said in his summing-up, the most important part of the defence put forward by D.1. was his assertion that, although he continued to be the head tenant of the premises, they had nevertheless been sublet by him from 15th June to D.2 and that he, D.1, had not visited the premises since the date of the subletting.

Rent receipt

7. The rather curious story of the counterfoil book of rent receipts became an important issue in the trial. Although there is some confusion about this, it seems most likely that Inspector Carruthers found in the living room where D.1 was living, not in the premises in which the drugs were found, a book containing some completed counterfoils and some uncompleted receipts.

8. The important counterfoil was dated 15th June, 1983, and was signed, on behalf of WONG Siu Lung, by his wife, Madam Ng. It showed the receipt from Ah Pui, which was the name by which D.2 was known, the sum of $2,800 rent as for Flat E, 17 Ngau Tau Kok Road, where the drugs were found, from 15th June to 15th July.

9. Inspector Carruthers, very fairly, and this is greatly to his credit, realized that the book might be of assistance to the defence. He therefore made it available to the solicitors acting on behalf of D.1. They made a copy of the relevant counterfoil, and used it in support of an application for bail on behalf of D.l. At the trial, unhappily, the solicitor had to admit that the original counterfoil book was missing. Consequently, the defence was only able to produce before the jury the photocopy which had been used in the bail application.

10. Only after the judge had completed his summing-up and retired did the book come to light. Although the matter was brought to his attention, he did not feel that at that stage there was any further action that he could take.

11. It is clear that the judge harboured a strong suspicion of the genuineness of the photocopy of the counterfoil which had been produced to him. In the course of his summing-up, he commented as follows, in relation to the evidence which had been given as to the loss of the document -

"....... you may think it is incredible, members of the jury, that a document obviously of such importance to the defence could have been lost in these circumstances."

12. Thus, although the solicitor's evidence was not challenged by the Crown, and quite rightly, the judge is himself casting doubt upon the credibility of the solicitor as to the circumstances in which the book was lost, a course which was not justified by the events of the trial, during which it was never suggested that the solicitor's evidence was open to doubt. The judge then embarked upon a series of speculations as to the genuineness of the document, commenting upon the possibilities of the counterfoil having been "concocted" -

"You must consider very carefully, members of the jury, if this was not a genuine document - if it was made for the purposes of a concocted defence - you must ask yourselves could this have been done by the 1st defendant's wife, or brother-in-law, or perhaps somebody else ....."

There are other comments later in his summing-up to the same effect.

13. He is asking the jury to consider whether or not a document which was crucial to the defence was a false one, fabricated for the purposes of the defence, although this was not an issue which had been raised at any stage during the trial, and the Crown had not suggested that it was other than a genuine document. No questions had been asked of the defendant, or of any other witness, to suggest that the counterfoil was false.

14. Had the original book been available before the judge summed-up, we think it likely that he would have not have thought it appropriate to suggest that the photocopy was other than genuine.

15. As it was, the judge's observations are ones which, in the circumstances, he should not have made. They must have seriously affected the jury's mind, not only in relation to the genuineness of the document itself which, as I have said, was an integral part of the defence, but also in relation to the general credibility of the defendant on the other issues which arose during the course of the trial.

References to fingerprints

16. One other aspect of the summing-up has caused us some anxiety. The judge referred twice in his summing-up, to evidence that the defendant had handled a packet containing drugs. The evidence does no more than establish that the defendant's fingerprint appeared on a bag in which dangerous drugs were discovered. Therefore, it was misleading of the judge to refer to handling the packet containing the drugs, unless he coupled this with a reminder that they must take into account the explanation of the defendant as to how his fingerprint appeared on the bag.

Summary

17. For the reasons which I have given, we are satisfied that this conviction cannot stand. Application had been made to us on behalf of the Crown by Mr. Mason Parker, to whom we are indebted for his very fair approach, that this is a proper case in which a retrial should be ordered.

18. The judge, when he refers to the counterfoil, comments as follows -

"If this is a copy of a genuine rent receipt, or a counterfoil for that matter, it does go a long way to establish that the 2nd defendant was a genuine sub-tenant in this flat and to prove that the 1st defendant's evidence is true."

19. We do not disagree with this and, in our view, if there were a retrial, the chances of the applicant being acquitted at the end of it would be very high. We do not, therefore, think that this is a proper case in which a retrial should be ordered.

Representation:

M. Ford (Oliver & Driver) for D.1.

D.2 in person

S.R. Mason-Parker, Crown Counsel, for Crown.