Leung Kam Tong and Others v. R.

CACC000271/1993

IN THE COURT OF APPEAL

1993, No. 271
(Criminal)

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Coram: Sir T.L. Yang, C.J., Bokhary, J.A. and Mayo, J.

Dates of hearing: 28 and 29 September 1994

Date of delivery of judgment: 29 September 1994

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J U D G M E N T

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1. The three Applicants together with another man were charged with being in possession of a dangerous drug namely 18.63 grams of a mixture containing 9.32 grams of salts of esters of morphine for the purpose of unlawful trafficking. The other man who was granted bail absconded and did not attend the trial. The Applicants were convicted after a trial before Ryan J.

2. The facts of the case are comparatively simple. Customs Officers kept a flat known as Flat C on the 5th floor of 204 Temple Street under surveillance on 22nd October 1991.

3. The fourth Defendant who was the third Applicant was seen entering the flat and emerging from it 45 minutes later. He was subsequently arrested and brought back to the flat.

4. Shortly after 1:50 p.m., the Customs Officers saw the first Applicant who was a tenant of the said flat emerge from the building. He was intercepted and searched. A set of keys was found on him which fitted the lock of the iron gate and the door to the flat.

5. The Customs Officers attempted to enter the flat. They encountered resistance in doing so as a burglar chain on the door was fastened to it. They broke it open and found the third Defendant who was the second Applicant in the living room and Mr. Tse who had been the second Defendant in one of the other rooms. Mr. Tse was at the time smoking dangerous drugs. He was a disgraced Police Officer who had been dismissed from the service and who had served a sentence of imprisonment. All of the men were arrested. However, the third Applicant was not charged until December when it was ascertained that his thumb print was on some of the wrapping of the dangerous drugs.

6. Dangerous drugs were found in a brief case in the living room. Caffeine and a set of scales were found in one of the rooms and four rolls of adhesive tape and three rolls of wrapping paper and four sheets of cardboard were found in another room. None of the internal doors was locked thus affording unimpeded access to the flat.

7. The evidence against the first Applicant was that he was the tenant of the flat and it was the Crown case that an inference could be drawn from the presence of the said articles and the dangerous drugs and his procrastination when stopped by the Customs Officers that he was in possession of the dangerous drugs.

8. The case against the third Defendant, that is the second Applicant, was based on his residence at the flat, the presence of the said articles and the dangerous drugs and his alleged attempts to prevent the Customs Officers from gaining entry to the flat.

9. The case against the third Applicant was based on his said visit to the flat and the thumb mark on the wrapping of the dangerous drugs. He did, however, give evidence. He said that he had visited Mr. Tse at the flat to indulge his drug addiction habit. He had not noticed the brief case with the dangerous drugs. There had been another empty brief case which he had taken away. He had been given this as change and he had intended to give it as a gift to his 15 year old daughter. The explanation he provided for the presence of his thumbprint was that when he had consumed fast food at the flat he had handled papers.

10. The first Applicant's first ground of appeal was that the trial judge should have acceded to the application made by his counsel at the end of the prosecution case that there was no case to answer.

11. Mr. Plowman submitted that there was no primary evidence against the first Defendant and that where it may be possible to draw adverse inferences against him these were based simply upon suspicion. He contended that even if he had had knowledge of the dangerous drugs, this of itself would not be sufficient to found a conviction on this charge. His authority for this proposition was Tam Sui Kee and others v. R. being CA 633 [1969] which was followed in Chan Chor Yam, CA 225 [1986].

12. What is clear is that each case is dependant upon its own particular facts.

13. Mr Plowman emphasised the fact that no dangerous drugs were found in the room which was normally occupied by the first Defendant. Also the various articles in the room were all consistent with innocent use.

14. What needs, however, to be remembered is that there was evidence before the jury which if believed indicated that the interior rooms were not locked and that occupants or persons visiting the flat had unimpeded access to the whole of the area of the flat. The first Defendant held keys to the premises and had been in the building shortly before the raid was conducted. When this evidence is taken in conjunction with all of the articles which were found and, the prominent position of the brief case containing the dangerous drugs, there was ample evidence to leave the jury on the basis of the principles referred to in Attorney General v. Li Fook Shiu, CA 3 [1990].

15. The first Defendant's second ground was that the learned Judge's summing up was defective in that inadequate directions were given on what constituted possession, Mr. Plowman was particularly critical of the absence of directions on what would establish Joint Possession. In this connection, he placed reliance upon R. v. Strong and R. v. Bell, both of which are reported in "The Times", 26th January 1989.

16. He contended that mere knowledge of the dangerous drugs was certainly not enough. He also suggested that a direction should have been given to the effect that the dangerous drugs constituted a pool which was available to all of the Defendants charged and that they could have had recourse to it.

17. The Directions given by Ryan J. were along these lines.

" There is in this case no evidence of actual physical possession of the drugs by any of the three accused. None of them were seen carrying the bag in which the drugs were found; none of them were seen to be handling the drugs; none of them were seen actually selling drugs from that quantity.

So the Crown rely on what is circumstantial evidence, and the Crown say to you from that evidence you will be able to draw the inference that the defendants had the drugs in their possession and that they knew that they had them and that they had them for the purposes of trafficking. That will be a matter for you to decide, but I remind you that you could only draw that conclusion or that inference if in the circumstances you consider that it is the only inference that you can draw in respect of the defendant whose case you are then considering."

18. At the conclusion of the summing up, the following exchange occurred:

"MISS CREBBIN : I wonder if you would just consider defining possession and constructive possession to the jury.

COURT : Well, I have explained to the jury that to be in possession you have to be satisfied that the accused was - had the drugs in his custody or he had the drugs under his control. So you don't have to be satisfied - you don' have to be shown that they were carrying the drugs actually in their possession but you have to be satisfied that they had the drugs either in their custody or under their control."

19. In the context of the Directions as a whole these directions have complied with the requirements referred to by Lord Morris in Warner v. Metropolitan of Police Commissioner [1969] 2 AC 256 at 289, and with the requirements referred to by Lord Diplock in the Director Public Prosecution v. Brooks [1974] AC 862 at 862 and with the observations made by Lord Scarman in R. v. Boyeson [1982] AC 768.

20. In the third ground of appeal lodged by the first Defendant complaint was made concerning the directions given on what inferences might properly be drawn.

21. In this connection, the main complaint related to the evidence which had been given by the fourth Defendant concerning the character and activities of Mr. Tse, the second Defendant. It was clear from this evidence that the second Defendant was deeply involved in dangerous drugs as it was claimed that it had been him who had supplied the fourth Defendant with the small quantity of dangerous drugs to indulge his addiction. There was accordingly ample evidence to support a proposition that it had only been the second Defendant who had been involved with the dangerous drugs and that the directions were inadequate to reflect this.

22. There was also the unsatisfactory evidence concerning the alleged procrastination of the first Defendant when he had appeared to be reluctant to lead the Customs Officers back to the flat when he was first apprehended.

23. The answer to these complaints is Ryan J. did indeed deal with all of these matters. He made it clear to the jury that they would have to consider all of these matters and that they could only draw adverse inferences against a Defendant if they were satisfied that this was the only conclusion which could have been reached on the evidence.

24. In connection with the alleged procrastination he did specifically suggest to the jury that one of the possible reasons for the alleged reluctance might have been a desire to protect, the second Defendant who might have been at that time smoking dangerous drugs. We do not consider that any of the criticisms in this ground can be maintained.

25. Mr. Plowman also referred to a number of misdirections on the part of the Judge. These related to inaccuracies as to what was found in different locations in the flat and who had occupied the different rooms.

26. There would be considerable merit in these criticisms if it had been the case that Flat C had been divided into self-contained compartments or units. There was, however, evidence which if believed indicated that the contrary was the case. The doors of the separate rooms were not locked and the drug packing items were found in the three rooms in the flat. It was accordingly not a matter of great significance that Ryan J. did made a number of mistakes as to the whereabouts of the articles and the rooms are occupied by the different Defendants.

27. Mr. Sanguinetti for the third Defendant or the second Applicant adopted the submissions made by Mr. Plowman in respect of there being no case to answer at the conclusion of the Prosecution case and the submissions relating to the misleading and contradictory directions given by Ryan J. He also made submissions himself relating to the particular circumstances of the third Defendant.

28. He submitted that the evidence relating to the third Defendant's residence in the flat was tenuous and unsatisfactory. It had not been proved that the video cassette recorder and the television belonged to him and the key found on him only fitted the outer gate to the premises. There was no key which would give him actual access to the interior of the flat. He did, however, accept that an item of the third Defendant's clothing had been at the flat. Also, more importantly, the case had proceeded upon the basis that he had been physically present at the flat at the time of the raid and that it was evident that he had occupied one of the beds in the same room as the one used by the first Defendant The actual duration of the third Defendant's occupation accordingly assumed less consequence as a result of this.

29. Mr Sanguinetti was also highly critical of the evidence which may have indicated a reluctance on the part of the third Defendant to permit the Customs Officers to enter the flat at the time of the raid. It appeared that when the officer had attempted to open the door, the third Defendant had tried to push it shut again by force. Mr Sanguinetti submitted that a reason for this may have been that D3 was simply attempting to close the door so as to enable the burglar chain to be released. He further contended that the evidence of the Officer could not be relied upon as he had given evidence to the effect that the raiding party had not come equipped to batter the door down in the event of the party being unable to enter the premises. This evidence had been contradicted by one of the other officers in the party and the evidence of the condition of the door depicted in the photographs the evidence of the condition of the door depicted in the photographs definitely tended to indicate that a crow bar had been used.

30. Mr. Sanguinetti also suggested that the small size of the flat would have rendered it unlikely that the third Defendant would have run from the door to the room he was in when the officers did gain entry.

31. All that can be said on all the these matters is that all of the evidence was before the jury and there was nothing in Ryan J.'s directions which could have misled them in reaching the conclusions they did.

32. The fifth ground of the third Defendant's grounds of appeal are unique to him. This was the complaint that Ryan J.had permitted the evidence of the $120,000 being found in his Safe Deposit Box at a bank to be admitted as evidence. He contended that the prejudicial effect of the evidence far outweighed any probative value. He also argued that the Judge had been wrong to admit the evidence on the grounds of relevance.

33. A similar situation had arisen in R. v. Chu Pui Hung, CA 133 of 1993 when Silke, Vice President, had this to say:

"The second matter with which Mr. Raffell takes issue, as he did at trial, is the production of the $500 note. He submits that this was inadmissible evidence and he cites in support a report in "The Times" of 25th April 1994, R. v. Batt. Batt had been charged with possessing a class B drug with intent to supply but there had been no charge of drug dealing generally. Money and drugs were found in the appellant's house. It was held that the possession of the money could be in no way probative of the actual offence with which Batt was charged. Here, the offence was possession for the purpose of unlawful trafficking, the note did have relevance and a probative value relative to that charge. It was entirely a matter for the jury what they made of it but it was properly before them."

34. Mr. Sanguinetti attempted to differentiate the present case from Chu on the basis that in that case the money had been found on the Defendant whereas in the present case it had been in a Safe Deposit box. I do not consider that this makes any material difference and it does not justify us in adopting a different approach to this evidence. This was particularly the case as Ryan J. directed the jury that the evidence was not relevant.

35. Having said this great care needs to be exercised over referring to money evidence regardless of the question of the admissibility. In this case, in which the judge virtually directed the jury to disregard the money evidence, we are satisfied that there has been no miscarriage of justice.

36. Mr. Sanguinetti adopted the submissions made by Mr. Plowman concerning Tse's character and the definite possibility that he had been the sole person who had been engaged in the activities relating to the dangerous drugs and there is nothing which can usefully be added to this.

37. Mr. Haynes for the third Applicant made an application for the introduction of further evidence.

38. This related to what had transpired concerning Mr. Tse subsequent to his absconding from the terms of bail which had been granted to him in the present case. Mr Haynes submitted that the fact that he was arrested in respect of another very similar drug offence was highly relevant to the present case. This was on account of the fact that had the jury been aware of Tse's activities they may well have been more likely to conclude that the dangerous drugs which had been found in the flat were the second Defendant's dangerous drugs and that none of the other men had been connected with the dangerous drugs.

39. After hearing submissions along these lines we ruled that leave would not be granted to introduce this additional evidence. The reason for this decision was that it was clear from the way in which the case had proceeded before Ryan J. that attempts had been made to shift the blame on to Mr. Tse and that it was at least the fourth Defendant's case that Mr. Tse had been the person in the flat who had been involved with dangerous drugs. When this was taken in conjunction with his absconding there was ample evidence before the jury concerning Tse's character: It was accordingly not an appropriate situation for leave to be granted to introduce the additional evidence.

40. So far as the fourth Defendant was concerned, the evidence against him consisted of his visit to the flat on the day in question and more importantly the thumbprint evidence. The fourth Defendant had given evidence at the trial and it would appear that he was disbelieved.

41. The fourth Defendant's grounds of appeal cover much of the ground referred to in the grounds advanced by the other Applicants. There was as much or more evidence of the fourth Defendant's involvement in the dangerous drug activities and accordingly on the basis of what has been said earlier there was a case for him to answer.

42. Equally the observations concerning the directions given by Ryan J. are also applicable and we do not think that there is any reason to reach a different conclusion concerning him.

43. It is a common theme to all of the Applicants that the convictions were unsafe or unsatisfactory and that they should be quashed.

44. We do not believe that to be the case. For the reasons which have been given all of these Applications for leave to appeal are granted and the applications are heard as substantive appeals against conviction. They are all dismissed.

Representation:

Mr. Gary Plowman, Q.C. & Mr. Alan M.S. Ng instructed by Stephen Smout & Co. for the first Applicant.

Mr. A.J.J. Sanguinetti & Mr. Johnny J.H. Chan instructed by Tang, Wong & Cheung for the second Applicant.

Mr. John Haynes (DLA) for the third Applicant.

Mr. M.C. Blanchflower (A.G.'s Chambers) for Respondent.