HKSAR v. Ng Chung Ping

CACC000198/1998

CACC198/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 198 OF 1998

(ON APPEAL FROM HCCC 185 OF 1997)

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Coram : Hon Chan CJHC, Nazareth VP and Wong JA

Date of hearing : 3 August 1999

Date of delivery of judgment : 13 August 1999

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J U D G M E N T

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Chan, CJHC delivering the judgment of the court :

1. On 23 March 1998, after a trial before Hartmann J and a jury, the applicant was convicted of one count of trafficking in dangerous drugs, contrary to section 4(1) of the Dangerous Drugs Ordinance, Cap.134. He now applies for leave to appeal against conviction.

2. He was originally charged with two counts of trafficking in dangerous drugs. Before the jury was empanelled, he pleaded guilty to count 1 but denied count 2. The prosecution amended the indictment by deleting count 1. An amended indictment with count 2 as the only count was placed before the jury. The trial proceeded in respect of this count only. However, the evidence relating to the original count 1 was by agreement adduced before the court. The applicant gave evidence and the jury became aware of the circumstances of that offence and his plea on the original count 1. It is the way in which the trial judge dealt with such evidence and plea in his summing up which forms the basis of the applicant's grounds of appeal.

3. The prosecution's case is this. At about 9 p.m. on 18 February 1997, the applicant was stopped in a street in Mongkok by a police officer (PW1) and his colleague. They searched him and found the drugs, the subject matter of the original count 1, in his pocket. The drugs were wrapped in a white tissue paper with a blue pattern. He admitted to the officers that the drugs were heroin and that he had acted as a courier for a friend, Wong Ka Lung, in connection with those drugs. He was also found to have a key on him. He told the officers that he lived in Room 609 in the Shek Kip Mei Estate and that the key was the key to the door of his residence. At about 3 a.m. in the following morning, the police took him to conduct a search in this unit. When they were there, they found that the key could not open the door but the applicant said that he did not know why. The police officers made inquiries of the occupants in Room 609 and subsequently went to another unit, Room 705, where the key could open the door. The applicant's girlfriend was sleeping inside. Upon a search in the presence of the applicant and his girlfriend, the drugs, namely 567.85 gm of a mixture containing 446.34 gm of heroin, were found in a drawer. The applicant was then arrested and cautioned. In response to the caution, he said : "Ah Sir, all of these stuff are mine. They have nothing to do with my girlfriend. Could you not arrest her?" The police also found inside the unit a hammer, a scale, some plastic bags, a roll of adhesive tape and a roll of tissue paper.

4. The applicant said in evidence that his mother was the registered tenant of three units in the Estate, including Room 609 and 705. He usually lived in Room 609 and his two sons in Room 705. However, he regularly brought his girlfriend home to spend the night and swapped rooms with his two sons. In effect, he said that not only he but also his sons and girlfriend had a key to Room 705. He had no idea as to why the drugs were found in the drawer of the room but said that a number of people including his sons who had criminal records relating to drugs, could be responsible. He said he did not tell the police where he actually lived because he knew his girlfriend was in Room 705 and he did not want her to be troubled by the police. As regard to his reply upon arrest and caution inside Room 705, he said that he uttered those words when he heard the inspector say that the police were going to arrest his girlfriend and take her away. He was also not feeling very well and was very confused at that time.

5. The first submission made by counsel for the applicant is that the trial judge's summing up in relation to the earlier events which took place in Mongkok was defective. Counsel submits that the judge had left it open to the jury to convict the applicant on evidence which included his plea of guilty to the original count 1 and that what the judge had said before the jury retired could not cure the earlier defect in the summing up.

6. The trial judge first dealt with the evidence relating to the earlier incident in Mongkok at page 5 of the Appeal Bundle :

" Before I direct you on the law concerning this count, however, there is a matter of some importance which I must mention. It was effectively agreed evidence at this trial that several hours before the police took the accused to Room 705 and discovered the heroin in that room, they had stopped the accused on a Mongkok street. They had searched him. And when that search took place, they found some heroin in the pocket of his trousers. That heroin was wrapped in a piece of tissue paper. The accused was asked what it was and he admitted at that time that it was white powder that he had on his person. He was then arrested. In addition, of course, you have heard that at that time he had in his possession a key which was later found to fit Room 705. Now the accused has pleaded guilty to trafficking in that quantity of heroin found on him in Mongkok. He has admitted that he committed that crime. He has told you why he committed it and how he did so. What you make of that, or course, is absolutely a matter for you. He has, however, denied any knowledge of the heroin found by the police in Room 705. Effectively, it has been his evidence, you may think, that when the heroin was discovered in the drawer of the wardrobe in that room, he had no idea of its presence or how it could have got there or who could have been responsible for putting it there."

7. Counsel submits that this was confusing because there the judge told the jury that what they could make of the evidence regarding the earlier incident was absolutely a matter for them and yet on page 7, he directed the jury that such evidence was of limited use.

8. It is not disputed that the parties agreed to place before the jury the evidence that the applicant was earlier on stopped in Mongkok and found to be in possession of some other dangerous drugs. The applicant had also told the jury that in relation to those drugs, he had pleaded guilty to a charge of trafficking in dangerous drugs. He gave an explanation as to why and how he did it. It is true that the judge said "What you make of that, or course, is absolutely a matter for you." But reading what he said in the context (particularly the paragraph at page 7P), it would seem likely that this was said in relation to the explanation given by the applicant for committing the first drug offence and how he did it. It might be read as the judge making this comment in relation to the earlier incident and the applicant's plea. But even if the judge was doing so, it cannot be said that he was leaving it open to the jury to convict the applicant on the evidence regarding the incident in Mongkok and his plea. This comment must be looked at in the context of what he said in the rest of the summing up. Having quite fairly directed the jury on the possibility of other persons having access to Room 705, the judge continued (at page 7) :

" But in all the circumstances, I am sure you will agree that it would be very wrong to say: 'Well, the accused had those drugs on him when he was searched on the street in Mongkok and therefore, without considering any further evidence, we will find him guilty of having those drugs on him in Room 705 too.'

You may then asked: 'Well, what can we make of the admitted fact that a few hours before the search of Room 705 the accused was found with heroin on his person?' In the circumstances of this case, members of the jury, I direct you that you can make only limited use of it. Principally, in fact, it does no more than explain why the police saw fit to take the accused to Room 705 in the early hours of the morning of the 19th of February of last year for the specific purpose of conducting a search of that room."

9. Counsel argues that the judge in the above passages seemed to suggest to the jury that they could find the applicant guilty of the present charge based on the earlier incident together with the other evidence. Yet, before the jury retired, the judge told them that the fact that the applicant had certain drugs on him in Mongkok was not to be used in any way as evidence that he committed the present offence.

10. It is quite clear from this part of the summing up that the trial judge was carefully warning the jury and emphasizing to them that they must not draw any inference of guilt in respect of the charge the applicant was facing merely from the fact that he had earlier on had in his possession the drugs in Mongkok and that he had pleaded guilty to trafficking in those drugs. At the end of his summing up, counsel for the prosecution invited the judge to give further directions to the jury on the applicant's previous record. The judge gave a direction which was favourable to the applicant. He also said :

"I have already made it abundantly clear to you that the fact that he had those drugs on him in Mongkok that night is not to be used in any way as evidence that he committed the crime that he now faces. I won't repeat myself there."

11. We do not consider that this was in any way confusing or inconsistent with what the judge had earlier said in connection with the evidence regarding the incident in Mongkok and the applicant's plea. On the contrary, we think that this had served as a reminder to the jury that they should not draw any inference of guilt from the fact that the applicant had those other drugs in Mongkok. The jury had been told in no uncertain terms that they should make limited use of such evidence, that is, only as evidence of the background leading to the search by the police in Room 705. Looking at the summing up as a whole, we take the view that the judge had left no doubt in the minds of the jury that they must not draw the conclusion that the applicant was guilty of the offence before the court merely from his involvement in the earlier crime and his admission thereto. The judge had in the summing up tried to contrast what happened earlier in Mongkok with the evidence relating to the charge the applicant was then facing. See pages 5 and 32. The thrust of his direction was to remind the jury to keep the 2 incidents separate. We do not think that the summing up was in any way defective on this issue.

12. Counsel complains that the judge did not tell the jury that what the applicant had admitted could add credence to his evidence in relation to the present charge. The applicant had given evidence before the jury. He had explained to the jury why he had committed the earlier offence but denied that he had anything to do with the drugs found in Room 705. The judge had directed the jury to consider his explanation. How the jury would assess his evidence was a matter entirely for them. We do not think that the judge can be criticized for not telling the jury explicitly that they could give more weight to what the applicant said in relation to any particular part of his evidence. In any event, the judge had, immediately before the jury retired, given a rather favourable direction on the applicant's good character.

13. The next point argued by counsel for the applicant is that although the judge had directed the jury that they could make limited use of the admitted facts that the applicant was found with drugs on his person in Mongkok a few hours prior to the alleged offence, this direction was inadequate in that it only related to the admitted facts and did not touch at all upon other evidence pertinent to the earlier arrest. In fact, counsel complains, the judge had wrongly invited the jury to compare the exhibits and to link them to the drugs found in Room 705.

14. With respect, we do not agree that this part of the judge's summing up would give rise to the impression as alleged by counsel. The trial judge did not simply direct the jury that the previous incident was of limited use. He also added that it was no more than an explanation as to why the police had taken the applicant to Room 705. The tissue paper and the drugs were produced in court as exhibits. It would seem that the prosecution had invited the jury to link the exhibits found in the two places and draw an adverse inference against the applicant. In connection with these exhibits , the judge said (at page 8) :

"You may then say 'but what about the tissue paper that wrapped the drugs found on the accused in Mongkok. What also of the fact that prosecuting counsel tells us that, with some simple mathematics we can estimate that the purity value of the heroin found on him in Mongkok and the purity value of the heroin found in the drawer are almost the same, if not the same?'

If you wish, of course, members of the jury, you may examine the tissue paper that wrapped the heroin found in Mongkok and compare it with the roll of tissue paper found in the drawer, according to Constable Ng, under the paper bag. Those are both physical exhibits and you can examine them. Whether it provides some limited link between the two, taken together with the purity values, is absolutely a matter for you.

But in employing your collectively good common sense and your knowledge of life in Hong Kong, you will know that tissue paper is not sold in the same manner as designer dresses from Paris are sold, each one being an original. Tissue paper is sold in hundreds of stores around Hong Kong, no doubt in the same patterns. And no doubt in hundreds of households in Hong Kong you will find that same tissue paper bearing the same blue pattern. In short, that type of tissue paper, you may well find, is a common commodity.

Similarly, as far as the purity values are concerned, you have heard no forensic evidence as to what purity values normally are or whether they change or do not change. So, therefore, in that regard too, with respect to prosecuting counsel, you must approach the evidence with caution."

15. The judge was obviously concerned as to the use which the jury might make of the exhibits. The tissue paper which was used to wrap the dangerous drugs that were seized in Mongkok had the same blue pattern as the roll of tissue paper which was seized in Room 705. It was possible that the jury might draw the inference that the tissue paper which was used to wrap round the drugs found in Mongkok came from the roll of tissue paper found in Room 705. Similarly, the purity of the drugs found in Mongkok was almost the same as that of the drugs found in Room 705 and it was possible that the jury might draw the inference that the drugs found on the applicant in Mongkok came from the drugs found in Room 705.

16. In our view, what the judge said in respect of these exhibits was quite fair to the applicant. He was anxious that the jury should not attach undue weight to these exhibits. He was in effect asking the jury to be careful not to associate the tissue paper used to wrap the drugs in Mongkok with the roll of tissue paper found in Room 705 and the drugs found on the applicant in Mongkok with the drugs found in Room 705. We do not think the judge can be criticized.

17. Counsel further submits, and this is his third point, that the evidence relating to the applicant's earlier crime and in particular, these exhibits should not have been adduced in evidence and that even if they had been adduced by agreement, the judge should have directed the jury to ignore them. It is submitted that this had contravened the rule in Makin v. Attorney General for New South Wales [1884] AC 57. Counsel relied on what Lord Herschell LC said at p.65 in that case : "it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried." Counsel also relied on R. v. Kilbourne [1973] AC 729 where Lord Simon said at 757 that such evidence was not only irrelevant, but was also more prejudicial than probative and therefore should not be admitted. Counsel also refers toDPP v Boardman (1975) AC 421 and R v Tsang Wai-ki and another Criminal Appeal No 568 of 1995.

18. In our view, the cases cited do not apply in the present case. It was an agreed fact that the applicant was found to have some dangerous drugs in Mongkok six hours before the drugs, the subject matter of the present charge, were found in Room 705. It was also the applicant's own evidence before the jury that he was then trafficking in those drugs and that he had pleaded guilty to such an offence. The applicant cannot complain that such evidence was before the jury. Occasionally, there might be some reasons for an accused to agree to include certain evidence which is not otherwise admissible or which the prosecution might be reluctant to adduce or have difficulty in adducing before the court. If such evidence is indeed admitted at the request or by the consent of an accused, probably for the purpose of turning it to his advantage, then if such evidence turns out to be unhelpful or even detrimental to his case, he has no cause for complaint. While he certainly hopes that such evidence might be useful to him, he also takes the risk that the jury might draw an adverse inference against him. In such situation, it would be advisable for the judge, to be fair to the accused, to give a direction which would minimize any possible detrimental effect on the accused. This was what happened in this case. The tissue paper and the drugs were in the jury's arena by agreement. They were entitled to take them into consideration and how they did so was a matter for them. The judge was concerned that they might make use of these exhibits to the detriment of the applicant. He gave a direction which was clearly aimed at steering the jury away from drawing any adverse inference against the applicant from the exhibits. We do not think that the judge was wrong in handling the situation in the way he did.

19. We would add that even without the exhibits in question, there was ample evidence on which the jury could have found the applicant guilty of the present offence. He had the key to Room 705 and no other key; he misled the police as to where he actually lived; he admitted to the officers that the drugs found in Room 705 were his and he asked the police to let his girlfriend go; there was also the evidence on the value of the drugs found and their packaging. With regard to the last two matters, they were clearly relevant to the issue as to whether the drugs found in Room 705 were for the purpose of trafficking. We do not agree that there could be any lurking doubt that the jury might have come to a different conclusion.

20. Looking at the summing up as a whole, we take the view that it was a fair and balanced summing up which may even be considered as favourable to the applicant. None of the criticisms made by counsel is valid. There is no merit in this application which must be dismissed.

Representation:

Mr Paul Madigan, Senior Government Counsel for DPP

Mr Jerome Matthews instructed by Messrs Mike So, Joseph Lau & Co for Applicant