The Queen v. Lai So Hung

CACC000224/1990

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Power & Macdougall, JJ.A.

Date of Hearing: 22 August 1990

Date of delivery of judgment: 22 August 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. This is an application for leave to appeal against a conviction of possession of dangerous drugs for the purpose of trafficking. Lai So Hung ("the Defendant") was convicted by the majority of the jury in a trial presided over by Judge Sharwood sitting as a Deputy Judge of the High Court.

2. The Defendant had been charged jointly with a man, Lam Hon Fai, whom the jury also convicted. The evidence before them was that on the 24th July of last year at about 11:20 in the morning Lam and the Defendant came out together from a villa in Nam Kok Road. Lam was holding a bag. The two of them stopped for a moment and Lam passed the bag to the Defendant. (It contained the drugs which were the subject of the charge.) After the handing over the two went in different directions.

3. The Defendant was intercepted by the police, and in reply to a constable said, "We are going to the walled City." Asked who the "we" referred to, she indicated Lam. She made no reply to the questions why they were going there or what was inside the bag. She appeared nervous and the hand that was holding the bag was trembling. When it was opened, and the drugs found, she said to the constable, "An Sir, do not arrest me. The powder there is not mine."

4. Taken to the police station she made a statement under caution in which she suggested that she had been threatened with being raped if she did not agree to take the bag. The person who threatened her was not Lam.

5. Her evidence to the jury painted a different picture. She pointed out that she was 16 with a clear record. She said she had gone to the villa expecting to meet her boyfriend. She did not find him there, but instead found Lam, whom she had known for about a week through the introduction of her boyfriend. The next morning Lam asked her to take the bag to her boyfriend, to which she agreed thinking that there were only clothes inside. She told the jury that she had given the false story about the man threatening her with rape because at the police station Lam had told her to admit the offence.

6. To a large extent the written grounds of appeal merely repeat what the Defendant told the jury. But in addition, it is claimed that the judge misled the jury. Understandably the Defendant finds it difficult to explain clearly how she thinks that was done, but expresses it as "he kept on telling them that I had taken part in it".

7. We have each read the whole of the summing-up. It is true that the judge gave a strong indication of his own views. But that is something he was entitled to do, provided overall he made it clear to the jury, as he did, that it was for them to make up their own minds whether they believed the Defendant's story, which was the crux of the case. If they thought that she was telling the truth, or might be telling the truth, then they should acquit her. That is now they were directed. Unfortunately, from the Defendant's point of view, they did not believe her.

8. In the circumstances there is no reason for this Court to interfere. The application is dismissed.

Representation:

G.E. Forlin, Crown Prosecutor for the respondent

Applicant in person