Lam San Yau v. HKSAR

FAMC000025/1998

FAMC No. 25 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 25 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 775 OF 1997)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 26 January 1999

Date of Determination: 26 January 1999

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. This is an application for leave to appeal to the Court of Final Appeal. It is made out of time and requires an extension of time. The applicant was convicted before Beeson J and a jury on one count of trafficking in dangerous drugs. These drugs consisted of 600.88 grammes of a mixture containing 218.74 grammes of heroin hydrochloride and 3,300 tablets containing 69.43 grammes of midazolam maleate.

2. The police officers who gave evidence for the prosecution said this. They found the applicant in a building carrying two carrier bags. Those bags contained the large quantity of drugs the subject-matter of the count.

3. Clearly the value of such drugs and the way in which they were packaged supported an irresistible inference that they were for trafficking rather than self-use.

4. In his evidence, the applicant denied that he was carrying those drugs. According to him, he was a drug addict and had gone to the building with two syringes and a small packet of drugs in order to inject himself. The two carrier bags of drugs were, he said, "planted" on him by the officers in order to "frame" him.

5. At the trial, the prosecution led evidence to the effect that the officers had been engaged in a drug surveillance operation of which the applicant was a "target".

6. In the Court of Appeal, the applicant complained that this evidence was inadmissible. Delivering the judgment of that court, Mortimer VP rightly pointed out that the complaint was wholly misconceived. Although such evidence was inadmissible, the applicant could not complain of its reception since he had relied on the fact of his being a target as giving the officers a motive to frame him.

7. The complaint which the applicant now wishes to air before the Court of Final Appeal is one the focus of which is not on the reception of the evidence but is instead on jury directions thereon. The applicant wishes to argue, as his first ground, that it was "incumbent on [the judge] to give a clear, emphatic and separate direction to the jury that such evidence can never prove the guilt of the accused" and that "the Court of Appeal failed to recognize that the absence of such a direction was fatal to the conviction".

8. Having read the summing-up as a whole, we do not think that there is any danger that the jury were left with the impression that such evidence could prove the applicant's guilt. The jury would have known full well that in order to convict they had to be sure of two things. First, that the officers were truthful in their evidence that the applicant was found carrying the two carrier bags of drugs. Secondly, that the only reasonable inference was that he had such drugs for the purpose of trafficking in them.

9. The second complaint which the applicant wishes to air before the Court of Final Appeal is expressed thus in his Notice of Application:

"Further, culminatively or additionally:-

2. Where in the summing-up to the jury the Learned Trial Judge characterises the allegations of the accused as very serious, and the police being guilty of criminal offences and guilty of a conspiracy to pervert the course of public justice by taking an innocent man and framing him, such comments variously repeated in the context of the background to this case and in the absence of a direction as under 1. (above) were tantamount to telling the jury they could safely disregard this claim by the accused, hence making the summing-up fundamentally unbalanced and inhibited the jury from giving the applicants' evidence an impartial view

and

the Court of Appeal failed to consider properly that in the circumstances of the summing-up the remarks by the Trial Judge denied to the applicant a fair trial."

10. Mortimer VP singled out this passage from the summing-up:

" The allegations the defendant makes are very serious ones in relation to the police because obviously the police, if they behaved in the way the defendant said they did, are guilty of criminal offences. They are guilty of a conspiracy to pervert the course of justice, by taking an innocent man and framing him with the possession of the quantity of drugs that they either found in the rubbish room of the 16th floor or found somewhere else at Block 40. So, they are very serious allegations and that is why you have to pay particular attention to what the police officers have said in their evidence."

This passage is representative of the judge's message to the jury.

11. Mortimer VP stated the law accurately when he pointed out these two things. First, it is better for judges not to refer to these matters as allegations of crime against the police. Secondly, a judge must never put a police, or any other, witness in the special position of someone especially unlikely to lie because that would put his career at risk or for any other reason.

12. He then carefully considered whether the trial judge in the present case had put these police witnesses in a special position of that kind. And he concluded that she had not. This is a viable view taken by an intermediate appellate court on a matter of the kind eminently for determination in an intermediate criminal appeal and hardly the stuff of a final one.

13. In our view, there is no scope for taking this matter any further before the Court of Final Appeal. No point of law arises. Nor does any danger of injustice. Giving an extension of time to seek leave to appeal would therefore be pointless. This application fails.

Representation:

Mr Robert Buchanan (instructed by the Director of Legal Aid) for the applicant

Mr D G Saw SC and Miss Vivien Chan (of the Department of Justice) for the respondent