R. v. Yip Chi Ho

CACC000261/1994

IN THE COURT OF APPEAL

1994, No. 261
(Criminal)

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Coram: Hon Macdougall, V.-P., Penlington and Bokhary, JJ.A.

Date of hearing: 16 March 1995

Date of judgment: 16 March 1995

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. After a trial before Sears J and a jury the applicant was convicted of trafficking in a dangerous drug, namely 698.06 grammes of a mixture containing 292.83 grammes of salts of esters of morphine, and was sentenced to 14 years' imprisonment. He now applies for leave to appeal against conviction and sentence.

2. The evidence for the prosecution was that, at 8.30am on 21 June 1993, police officers saw two cars parked near Yuen Chau Kok Temporary Housing Area. The applicant and another man were seated in one of these cars, a search of which revealed a block of heroin under the driver's seat on which the applicant was seated and a second block in a bag which was in the possession of the other man. When one of the police officers found the block under the driver's seat, he arrested and cautioned the applicant who then stated, "The white powder is not mine. It is Ko Fei's." When asked about the other block of heroin the applicant replied, "That was Ko Fei's."

3. The applicant's version of the incident was that both blocks of heroin were found in the other man's bag and that he and that man had simply met to have tea. He disclaimed any knowledge of the existence of the drugs. The sole complaint made by Mr Poll, who appeared for the applicant in this court but not in the court below, is that the judge failed to direct the jury with clarity as to the standard of proof. The judge gave the following direction:

"The prosecution must prove it in the guilt of the defendant to the standard so that you are sure. If you are not sure of his guilt, then you must acquit. It is not the case of giving anyone the benefit of a doubt at all as one does in a sort of game. This is a duty which is put upon you. If you are not sure of anything, you must acquit. If you are sure then in accordance with your oath, you should convict." (Mr Poll's emphasis)

Later, the judge said this:

"If you are not sure that this defendant was trafficking in dangerous drugs then you must acquit him. If you are sure that he was trafficking, in other words, he was in possession of dangerous drugs for the purpose of trafficking, then you may convict him, if you are sure that he was together with CHEUK Sze-wai, in other words, the two were in it together, carrying drugs around in this car. If you are only sure that he was only in possession of the block that was found under his seat, in other words, he did not know about or may not have known about the other block of heroin, then you should only convict him of the smaller quantity of heroin."

4. Mr Poll submitted that the emphasized sentence in the first of those two passages might have given rise to "the possibility that the jury would not give the defendant the benefit of the doubt".

5. We find this to be an astonishing submission. It is totally devoid of any merit and should never have been made. The judge was making the point to the jury that it was not a concession that they might make to the applicant by way or grace or favour but that there was a duty that was cast upon them to acquit him if they were less than sure of his guilt. No reasonable jury could possibly have understood the judge to be telling them that they should not give the defendant the benefit of any doubt. This is a frivolous application. It is therefore refused.

6. As to the application regarding sentence, it is clear that the judge applied the guidelines laid down by the court in R. v. Lau Tak-ming [1990]2 HKLR 370. Mr Poll urged us to take into account the fact that the applicant, who had previously been convicted of manslaughter, had only recently been released from prison prior to committing the present offence. We do not think this is a mitigating circumstance. Since the judge properly applied the guidelines laid down in Lau Tak-ming it is impossible to say the sentence is either manifestly excessive or wrong in principle. The application for leave to appeal against sentences is also refused.

Representation:

Mr Macleod for Crown Prosecutor

Mr Michael Poll instructed by M/S Paul Kwong & Co. for applicant