Hui Kay-yuen v. The Queen

CACC000219/1982

Judge viewing locus with counsel after close of evidence and conclusion of counsel's speeches not to be regarded as an enclosed jury - Rule against admission of fresh evidence after summing-up did not apply.

BETWEEN

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Coram: McMullin, V.-P., Li & Yang, JJ.A.

Date: 30 July 1982

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JUDGMENT

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McMullin, V.-P.:

1. The applicant HUI Kay-yuen was one of three persons tried in the District Court upon two charges. One was possession of dangerous drugs for the purpose of unlawful trafficking contrary to the provisions of section 7 of the Dangerous Drugs Ordinance. The second charge was under section 36 of that Ordinance - a charge of unlawful possession of apparatus fit and intended for smoking.

2. The three defendants were arrested on the 7th of July 1981 at Flat 43 Yen Chow Street on the 4th floor. They were jointly charged in the manner I have stated and on the 2nd of February all were convicted on both charges. The 1st and 2nd defendants received sentences of 5 years and the 3rd defendant, a young woman who has said to be the girl-friend of the 1st defendant, was put upon probation for 2 years on stipulated terms.

3. There was an application for leave to appeal against sentence by the present applicant HUI Kay-yuen on the 10th of March and leave to appeal against conviction and sentence was refused on the 9th of June. He has since renewed his applications. The 1st defendant is not an applicant nor is the 3rd defendant.

4. A police party on the 7th of July had staked out the premises in Yen Chow Street. The party was under the leadership of a woman inspector, Inspector Tong. Amongst the party was P.C. Wong. A great part of the prosecution case rested upon his testimony which was, in substantial detail, supported by the other police witnesses. He described how the party had gone up to the flat on the 4th floor. When they got close to the door of the flat, the applicant was observed about to enter it. He looked back and saw the police party and hurriedly shut the iron grille outside the main door, went into the flat and slammed the door. The police party endeavoured to get in by ringing the bell and knocking on the door but for some four minutes, it was not opened. During that time P.C. Wong, according to his testimony, was able to look inside the premises through a window to the right of the main door. He described seeing a person who was later identified as the 1st defendant running towards the balcony of the flat which was visible from where the police constable stood. He did not say that the man was carrying anything but a police constable who had been stationed outside the building on the opposite side of the street gave evidence to the effect that at about that time, shortly after the police had gone upstairs, he saw a man whom he later identified as the 1st defendant, a man wearing a black upper garment, come out onto the balcony of No. 43 and throw a number of objects out of a window in the balcony. Several of those lodged upon a canopy but one fell into the street. That constable described how he ran and fetched it. It was a polythene bag containing a substance which, upon later examination, turned out to be a dangerous drug of the kind charged in the 1st Charge. This was taken up to Inspector Tong in the flat and the constable then checked his view from the balcony to see if there was an unobstructed line of vision from where he then stood to the place where he had been standing in the street. He then, at the request of the inspector, recovered the other items that he had seen thrown from the window of the balcony. They had lodged on the canopy below the window and these turned out to be a number of other polythene packets containing a substance which, on later examination, turned out to be a dangerous drug.

5. The three defendants were searched personally and the premises were also searched. In the 1st defendant's cubicle was found a file containing suspected dangerous drugs, a notebook, a stapling device and a roll of adhesive tape and some polythene bag inside a big polythene bag. These were under the bed in his cubicle. They were similar to the bags in which were contained the drugs found by the other constables on the canopy and in the street.

6. In the 1st defendant's sister's room, she being the principal tenant of the premises, was found a Chinese scale showing traces of dangerous drugs on later examination. That was found in a drawer in a cabinet in the teng or sitting-room, one of the common areas of the flat. Two bags of suspected dangerous drugs were recovered from the bowl of the toilet in the bathroom. They were floating; in the water there and upon later examination, these bags, which were of a similar character to the others, were found also to contain a dangerous drug of the kind charged. Behind the tank in the toilet was found a tinfoil match box which, upon later examination, showed traces of the dangerous drug.

7. When searched the 1st defendant was found to have five keys on his person and a sum of $6,020. The keys included a key to the outer entrance of the building, a key to the grille and 2 to the two locks upon the main door of the flat and a key to his own cubicle. The 2nd defendant, the present applicant, was found to have a similar set of keys. The only difference being that in his case he had a key to his own cubicle but the other four keys were the same as those possessed by the 1st defendant. No dangerous drugs or other paraphernalia were found in the 2nd defendant's cubicle which was to the right hand side of the premises looking from the front door inwards.

8. On these findings the various presumptions relevant under the law arose against the defendants. The girl, the 3rd defendant, when first observed was merely standing in the middle of the teng, not doing anything but during the time the first prosecution witness was observing through the window, in giving evidence, he recounted how he had seen the applicant emerge from a toilet which is to the left hand side of the premises as one looks inward from the front door.

9. All the defendants gave evidence. The 1st defendant said that his sister was the principal tenant. She is not amongst the defendants. She had been tenant of the premises for about a month and he had joined her in the premises after that month and had been there himself for about a month. His girl-friend, the 3rd defendant who visited the premises frequently and occasionally slept there.

10. The 2nd defendant said that he and his wife had moved into the premises about 10 days before the police raid. He did so because space is cramped in his mother in law's place. He was given a place in the premises by a partition being erected to create another cubicle for him. He said that he seldom saw his brother, the 1st defendant, and he never used the sitting-room or teng. The 2nd defendant, the present applicant, told the court that on the night in question he and his wife, the 1st defendant and a friend of 1st defendant had a meal in the premises. After that he took his wife out because she wanted to visit a friend. He took her out to get transport for that purpose and he then returned to the flat. He said that he had not noticed anybody following him as he entered the flat. It would appear that he denied any appearance of rush or anxiety in his entry into it. He denied going into the toilet at any stage. He said he was in his own cubicle when the bell rang. He pointed out that he had only a key to his own cubicle within the premises and not to the other cubicle. He denied all knowledge of the dangerous drugs and in particular denied any of the actions allegedly observed by the first prosecution witness. It is that testimony which has given rise to the principal ground of appeal put before as here.

11. In cross-examination of the first prosecution witness, it was suggested to him that he could not have seen the toilet within the premises from the window where he was standing and therefore his testimony of seeing the applicant emerge from the toilet must have been false. At that stage before the court there were certain photographs which we have before us today and also a rough sketch map drawn by one of the witnesses. These are not very explanatory except inasmuch as the sketch shows the general layout of the premises. The photographs give no indication, looked at full face, as to what possibilities of sight there are within the vision of anybody standing outside the window as the witness said he was standing. The possibility that he had been mistaken was not, however, resolved in the course of the taking of evidence of the trial. What happened was that at the conclusion of the prosecution and defence evidence, counsel addressed the court and in the course of his address on behalf of the applicant, defence counsel reiterated the possibility that the police officer could not have observed what he had said he had observed when standing outside the flat. At the conclusion of the addresses, the court adjourned. There follows a note indicating that the case was adjourned to 2.30 in the afternoon of the same day. Thereafter, there appears on the record a brief note to the effect that the premises, 43 Yen Chow Street, had been visited and viewed.

12. Neither counsel before us was present at the trial and we are not aware whether this was done of the judge's own motion or at the invitation of counsel. At all events we are sure, from the reasons recorded in writing by the judge, that he visited the premises in the company of both counsel but not in the company of the defendants.

13. Mr. Ramanathan advances a novel point. He asks us to say that the position of a District Judge at the conclusion of the speeches of counsel should be regarded as exactly equivalent to the position of a trial judge with a jury at the point in the case when the summing-up to the jury has been completed. Or, as counsel put it more succinctly, at that point in the proceedings the judge should be regarded, in his fact-finding function, as an enclosed jury.

14. Counsel had no direct authority to support this proposition but he did refer, without elaborating, to certain English cases in which it has been settled that it is a grave irregularity for a judge sitting with a jury to admit evidence after the close of the summing-up. This line of cases begins with R. v. Owen⁽¹⁾ and concludes with Corless⁽²⁾ in which most of the earlier decisions on the point were considered. It is unnecessary to review all of those cases. It is clear that the basis of the rule is that after the jury has been sent to deliberate, no fresh evidence should be introduced for their consideration. That that is so is illustrated by one of the rare cases in which the strict rule was departed from and the Court of Appeal felt able to apply the proviso to section 4(1) of the Criminal Appeal Art 1907 and to affirm the convictions. The case is Nixon⁽³⁾ . The charge was driving a private motor car while disqualified. The defendant was observed by police driving his Vauxhall Viva motor car in the early hours of the morning. Two police officers in a police vehicle followed him and drove ahead of him and stopped him. As one of them was approaching the Vauxhall, he saw a movement take place in the front seats of the car and his evidence was that when he arrived at the car, the defendant and his wife had swapped positions - she being then in the driver's seat. This incident, including the identity of the motor car and of its occupants was covered by the evidence. The jury retired to consider their verdict but returned after about 15 minutes and asked to see the motor car. The evidence had shown that the defendant was a large man and his wife was at the time in an advanced stage of pregnancy. The point which interested the jury was whether the manoeuvre which was alleged to have taken place in the front compartment of the motor car would have been feasible in view of the size of the motor car and the comparatively limited space available for such a changeover to have taken place. Defence counsel asked that the jury be permitted to view the car and the jury did so, and then retired once more. 15 minutes later they brought in a verdict of guilty against the defendant and found his wife guilty as an aider and abettor.

15. Applying the proviso the Court of Appeal stressed the strictness of the rule concerning the admission of fresh evidence after the retirement of the jury but took the view that in the case before them it was not a question of producing fresh evidence but merely of apprising themselves of the nature of something which had already been identified to them.

16. It might be too much to say that the circumstances in that case was so precisely similar to what we are dealing with here that the decision can be said to overcome the objection of counsel for the defence. The window which had been identified in the photograph as the window through which the constable had allegedly seen the defendant is shown in that photograph to be partly obscured by some object within the room. Without taking further evidence from the constable and affording an opportunity to the defendant himself to give evidence on the matter, a doubt would remain as to whether what was seen by the judge and counsel was precisely the same as the situation described to the court in the course of the evidence.

17. A case which comes closer to the present situation is Flynn ⁽⁴⁾ .The charge was larcency from the person and the defendant had given evidence raising a late and undisclosed alibi. After counsel had made their speeches, the prosecutor asked for leave to call rebutting evidence in respect of the alibi. He was given permission to do so. The defendant was convicted and appealed. Lord Goddard, L.C.J., said that it was within the discretion of the judge to do so and he distinguished the case from decisions of the Court of Appeal in Owen ⁽¹⁾ and Wilson ⁽⁵⁾ on the basis that in the earlier cases the jury had already retired after the summing-up and the disputed evidence was admitted in each case after that.

18. It is often difficult in endeavouring to draw a parallel between the situation of a judge sitting alone as judge of fact and law and a judge sitting with a jury to apply evidential rules to the former situation which have been formulated to deal with the latter. Giving a common sense gloss to this distinctly theoretical dichotomy, we think it would be best to regard the judge in the present case as, in a sense, not yet having begun to sum-up to himself the issues in the case so that he should be properly regarded, in his jury function, as a jury which had not yet received the proper instruction and had not yet received the proper instruction and had not retired to consider its verdict. It would, no doubt, have been better if the locus had been viewed in the usual way at an earlier stage in the locus had been viewed in the usual way at an earlirer stage in the proceedings but we cannot say that any irregularity occurred which would require the intervention of this court. The drugs seized amounted to 176.69 grammes of a mixture containing 52.57 grammes of salts of esters of morphine. The sentence is not excessive. The applications are refused.

(1)    (1952) 36 Cr. App. R. 16

(2)    (1972) 56 Cr. App. R. 341

(3)    (1968) 52 Cr. App.R.218

(4)    (1958) 42 Cr. App. R. 15

(5)    (1957) 41 Cr. App. R. 226

Representation:

Kumar Ramanathan (Jenkins, Oliver & Au) for the Appellant.

McClelland for Respondent/Crown.