R. v. Wong Ping Tak

CACC000162/1991

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Coram: Hon. Sir Derek Cons, V.P., Penlington, J.A., & Hooper, J.

Date of hearing: 7 April 1992

Date of delivery of judgment: 16 April 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. On 15th March 1991 Wong Ping Tak ("the defendant") was convicted by a jury on two counts of possession of dangerous drugs for the purpose of unlawful trafficking, one opiumin respect of well over 10 kilogrammes of raw opium and the other of approximately one-and-a-half kilogrammes of No. 4 heroin. Barnes, J., imposed upon him sentences of five years and fourteen years to run concurrently. The defendant now applies for leave to appeal against both convictions and sentences. With regard to the former he has the advantage of being represented by Mr. Buchanan, who also appeared for him below; with regard to the latter he appears in person.

2. Certain facts were not in dispute at the trial, namely, that on the evening of 14th May 1990 the defendant hired a passenger sampan from the Shaukiwan waterfront, directing it beyond the breakwater of the harbour and then to what has mostly been referred to as "the Chinese vessel". We have no photograph of that vessel, as we do of the sampan, but apparently she was a fairly large steel hulled cargo ship, stationed just outside the breakwater. When the sampan was taken alongside the Chinese vessel the defendant boarded her and, after a while, returned to the sampan. Another man also boarded the sampan, which the defendant then directed to return to the shore. On arrival he was intercepted by a party of police. On board the sampan was found one of the commonly seen red, white and blue terylene bags containing the drugs we have already mentioned. The crucial question, as the case was presented, was how the bag got there.

3. Evidence was led from a Mr. Cheng Kan Fook, an illiterate ex-fisherman who operated the sampan, that the bag had been handed down to the defendant from the other man who subsequently boarded the sampan. That was his evidence in chief. Under cross-examination his evidence became somewhat confused and contradictory, saying sometimes that the bag had been thrown down onto the sampan and at other times that it had been carried onto the sampan by the other man, after the defendant had re-boarded.

4. Evidence was also led from a police constable who had been keeping observation with binoculars on the Chinese vessel from the top of a 23-storeyed building nearby. He said that he saw the sampan moor alongside the Chinese vessel and a man from the latter board the former. A short while later a group of persons emerged in view on the Chinese vessel. Two of that group were carrying the bag in question and got down into the sampan. Unfortunately his evidence was allowed to remain vague as to how exactly the bag itself got onto the sampan, but he did say that he saw the same two men again carrying the bag after they had boarded the sampan.

5. The defendant's evidence was that he went out to the Chinese vessel in the hope of finding a fellow villager to take back $10,000 to his younger brother, still in the village, who was intending to get married. His brother had telephoned him two days earlier telling him that a vessel would arrive outside the breakwater on that evening. He did not know the man in question, but his brother had mentioned the name of Wai Wah. Not finding Wai Wah on board he returned to the shore, allowing the other man to share his sampan because of his difficulty in getting another sampan at that time of night outside the shelter of the breakwater.

6. A curious feature of this case is that no challenge was made to the defendant's explanation for going to the Chinese vessel at all. The prosecution was presented solely on the suggestion that once there he handled the bag sufficiently to bring into play the presumptions contained in the Dangerous Drugs Ordinance. Therefore, as the judge put it to the jury:

"So the only real remaining question in respect of each charge is: Has it been proved beyond a reasonable doubt that the defendant was in possession of those drugs?"

7. The answer depended upon the view they took of the evidence of Mr. Cheng and the police constable.

8. One ground of appeal is that the judge did not deal sufficiently with that of the former, in particular when referring to the crucial question of how the bag came to be on the sampan, saying only,

"I leave it to you to work out from his evidence, if you can, how the two men and the bag came aboard."

9. It is suggested that the judge should have dissected his evidence into the three versions that we indicated earlier, directing the jury's attention to their inconsistency and observing in addition that acceptance of the last of the^- three versions would to some extent support and confirm the defendant's case. What the judge actually said was:

"In describing this part of the evidence, I have not attempted to recap what Mr. CHENG actually said, nor have I made a precis of what he said. It is a matter for you how you interpret Mr. CHENG's evidence.

What I am attempting to do is to describe the scene by omitting what appear to me to be the inconsistent and contradictory parts of his evidence. I must stress, however, that any question as to whether any witness did give inconsistent or contradictory evidence is not a question for me to answer, but for you."

10. The second ground of appeal is that the judge failed to direct the jury's attention, other than in the context of the use to which lies might be put in_. evidence against him, to the statements made by the defendant to the police upon his arrest, which were to the same effect as his evidence in court and merited, it is suggested, a comment on the lines of Lawton, L.J., in R. v. McCarthy [1980] 71 Crim.App.R. 142 at 145:

"One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime".

11. The extent to which the judge deals with the evidence in his summing-up is very much a matter for his own discretion, which he will exercise in the light of all the circumstances of the case, including of course, the closing speeches of counsel. The extent to which the exercise of that discretion can be subsequently questioned is possibly best found from the comments of the learned editors of Archbold, 1992 Edition, at paragraph 4-387:

"In a complicated and lengthy case it is incumbent on the judge to assist the jury by dealing with the salient features of the evidence; but in a short case and one in which the issue of guilt or innocence can be simply and clearly stated, it is not necessarily a fatal defect to a summing-up that the evidence has not been discussed: R. v. Attfield (1961) 45 Cr.App.R. 309."

12. The present case was short and extremely simple. We are satisfied that the summing-up was in these respects sufficient and left the jurors, at the end, in the words of Ashworth, J., in the case referred to in the last quotation:

"in a position adequately to discharge their duty of deciding which side they believe".

13. Immediately after the close of the prosecution, the judge took by surprise Mr. Buchanan, who was intending to make a submission of no case to answer, by addressing the defendant in these words:

"    You now have the opportunity to put evidence before the jury either by giving evidence yourself and/or by calling witnesses to give evidence on your behalf.

You are not obliged to give evidence or to call witnesses to give evidence.

But in this case I should tell you this: that if the jury find that you had that bag under your control, either alone or jointly with another, then unless there is evidence before the jury to prove that you were not in possession of any drugs in that bag, the jury must, as a matter of law, find that you were in possession of any drugs that were in the bag. Do you understand that?"

14. It is difficult to understand why the judge chose to take that course. The defendant was well represented by counsel, who would no doubt have explained to the defendant the effect of the provisions of the Ordinance and the options open to him at that stage of the trial. As a further ground of appeal it is suggested that these observations of the judge were "prejudicial and unfair", leaving the defendant and the jury with the impression that the defendant had to call evidence, thereby restricting his free and unfettered right to do so or not. With respect, we cannot see how either of those consequences could possibly follow when the judge expressly advised the defendant that he was "not obliged to give evidence or call witnesses". While not approving the course taken by him, we do not see that the defendant suffered any prejudice thereby.

15. The final question to which we must turn is that of lies. Towards the end of his cross-examination of the defendant counsel then appearing for the Crown suggested that the defendant had not been truthful when he told the police that he had not noticed the bag in the sampan and that it had not been under his seat. How counsel subsequently put his point before the jury we do not know, for the judge merely said:

"      Mr. TONG told you yesterday that I would give you certain directions about how you should regard the telling of lies if you found that that is what the defendant has done. What Mr. TONG told you was a correct statement of the law in appropriate cases, but in my view, the law he referred to has no relevance in a case such as ours."

The judge then continued:

"    What you should bear in mind is this: You do not say that because a defendant has told lies to the police, or to you or to both, that he is therefore guilty. It is the reason for the lie that is important because many people lie for reasons unconnected with guilt, sometimes simply to avoid embarrassment over other matters. Let me give you an example."

which he did, and continued again:

"    You can see from that that this matter of lies is one you should approach with some care. The defendant's statements to the police do not amount to admissions, so they do not prove anything directly, but if you are sure that his explanation to the police is false and he knew it to be false, then that conduct of his may indirectly show that he had guilty knowledge of what was contained in that bag if you are convinced that the lie was told because he had a guilty conscience about knowing that the drugs were in the bag."

16. How far lies told by a defendant may be probative of his guilt, as opposed to merely destroying his credibility, is almost invariably a difficult question, and where, as is often the case, the lies are an integral part of the defence as a whole, it is a question that is usually better not introduced. But in the present instance, with the acceptance by the Crown that the defendant was present on the sampan for a legitimate purpose, the jury would have been entitled to the view that even if the bag had in fact been brought onto the sampan by the other man alone, it was extremely unlikely that the defendant could have failed to notice its presence, and that his pretence of not doing so could only be attributable to his being in some way involved and indicating knowledge of what it contained. Hedged as it was with appropriate warning, the judge's suggestion to that end is unobjectionable.

17. For all these reasons we find nothing to support an appeal against the convictions and the application for leave is therefore refused. We will now hear the defendant as to sentence.

Representation:

C.D.F. Coghlan, Crown Prosecutor for the respondent

Robert B. Buchanan (D.L.A.) assigned for the applicant (re: conviction)

Wong Ping Tak, applicant in person (re: sentence)