R. v. Lau Yuen Po

CACC000278/1996

IN THE COURT OF APPEAL

1996, No. 278
(Criminal)

--------------------

Coram: Hon Power, Ag. C.J., Litton, V.-P. and Ching, J.A.

Date of hearing: 25 October 1996

Date of judgment: 25 October 1996

----------------------

J U D G M E N T

----------------------

Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The applicant was convicted on 1 May 1996 on one charge of trafficking in dangerous drugs. After trial before Deputy Judge Bokhary and a jury in the High Court he was sentenced to 25 years' imprisonment.

3. The facts are straightforward. On 19 March 1994 at about 2.30pm at the staircase on the G/F of No. 316 Nathan Road Kowloon the applicant was intercepted by the police together with a man called Yuen Tung Lam (Ah Tung). The applicant was carrying a knapsack on his back. Inside the knapsack were 32 bricks of heroin. These were found later by the Government Chemist to weigh over 10 kilogrammes with the active ingredient, salts of esters of morphine, weighing 8.705 kilogrammes.

4. The applicant was brought back to the Narcotics Bureau Headquarters. He was interviewed by DPC 22204 Lam Fai-biu between 7pm and 8.48pm and a cautioned statement was recorded. The applicant said:

"Ah Sir, I only worked for Ah Tung, drove the stuff to Nanking Street for Ah Tung. He would give me twenty thousand dollars. I didn't know that the stuff was white powder."

5. On being further questioned the applicant said that Ah Tung had called him the night before (18/3/94) asking him to rent a car to drive something for him and he would give the applicant $20,000. He met Ah Tung after 9pm. Ah Tung gave him $1,500 cash and together they went to a shop near the Liberty Theatre and rented a Honda. The applicant then drove Ah Tung around, looking for someone until, between 4am and 5am the next morning, he drove Ah Tung to Jordan Road and there parked the car at the Yaumati carpark. He went on to say that the next morning Ah Tung called, sometime after 11am, told him to collect the car and pick him up at Woosung Street. After picking Ah Tung up he was told to drive the car to Tai Po Railway Station. Ah Tung alighted, telling the applicant to wait. 10-20 minutes later Ah Tung returned with two men, one carrying the knapsack. Ah Tung told the applicant to open the boot of the car for the men to place the knapsack inside. Ah Tung then told the applicant to drive the stuff to Nanking Street and he (Ah Tung) would wait for him there. The applicant then met up with Ah Tung again at Nanking Street. The applicant took the knapsack out of the boot as told, and the two men walked to 316 Nathan Road where they were intercepted by the police.

6. When asked by DPC Lam what he thought was inside the knapsack, the applicant replied:

"I only thought it was contraband, however, for the sake of earning twenty thousand dollars, (I) did as told by Ah Tung."

7. It was common ground at the trial that the applicant was, on 19 March 1994, carrying the knapsack with the 32 bricks of heroin inside. Given the quantity, and the applicant's own version of how he came to pick up the knapsack with Ah Tung from the two men at the railway station, the issue for the jury was very simple. If the applicant was proved to have known that the knapsack contained heroin, the inference that he was trafficking in dangerous drugs was irresistible.

8. As the trial judge correctly pointed out to the jury, the crucial issue was knowledge. Did the applicant know the knapsack contained dangerous drugs? In this regard, quite apart from the inference of knowledge to be drawn from the circumstances, the law went to the aid of the prosecution. Section 47(1) and (2) of the Dangerous Drugs Ordinance Cap 134 raises two presumptions from the fact of possession of the knapsack: (i) that the applicant knew that it contained dangerous drugs and (ii) that he knew the nature of such drugs.

9. At the trial, the applicant testified in his own defence. In essence, his case was that he was engaged as Ah Tung's chauffeur the night before and innocently did his job. He did, as he told the jury, go with Ah Tung to Tai Po Railway Station and there Ah Tung did meet the two men, one of whom was carrying the knapsack.

10. In essence his testimony was consistent with what he had told the police in his cautioned statement, though there were minor variations in detail.

11. A number of grounds of appeal have been raised by counsel on the applicant's behalf.

Ground 1

12. The first ground concerns the judge's direction to the jury on the standard of proof. As mentioned earlier, the facts gave rise to two presumptions under s47 of the Dangerous Drugs Ordinance. Counsel submits that the judge had misdirected the jury concerning the burden falling upon the defence to displace the presumptions. At p4-N of the summing-up, the judge said this:

" I spoke of facts being presumed unless and until the defence disproves them. By that, I mean disproves them on a balance of probabilities. The defence does not have to prove them beyond a reasonable doubt. The defence only has to disprove them to the lower standard of a balance of probabilities."

13. This statement, as counsel accepts, was impeccable. At p14-E the judge said this:

"two presumptions would arise. The first presumption would be that he had those drugs in his possession. And the second presumption would be that he knew the nature of those dangerous drugs, in other words, that they were dangerous drugs.

It would then be for the accused to disprove those presumptions. He would not have to disprove them beyond reasonable doubt. But he would have to disprove them on a balance of probabilities."

14. This too, as counsel again accepts, was impeccable.

15. The judge went on to say:

" So, as to the first presumption, he would have to prove on a balance of probabilities that he did not know that the dangerous drugs were in his knapsack."

No complaint can be made of this passage. What is complained of is in the following sentence: "In other words, he would have to make you believe that he probably did not know that the dangerous drugs were in his knapsack."

16. Counsel says this: All the defendant needed to show was that it was more probable than not that he did not know, and therefore this passage amounted to a misdirection. I confess I fail to understand the point. Semantic distinctions of the kind advanced by counsel have no place in our courts and I would wholly reject the submission that this amounted to a misdirection.

Ground 2

17. Ground 2 is formulated as follows: "The learned judge failed to give any warning to the jury as to how it should treat the evidence of the applicant's bad character".

18. The point arises in this way. The applicant has claimed that he was an asthma sufferer. This was said to be relevant to the weight to be attached to his cautioned statement. In this connection, Dr Wong Cho-kat, who had examined the applicant after he had been interviewed by the police, said in answer to a question from Crown Counsel that upon examination the applicant was "having mild withdrawal symptoms".

19. The judge then immediately said this:

"Members of the jury, that remark by this - by this officer - this medical officer is totally irrelevant to this case and I will ask you to totally put that out of your mind. All right. Please completely ignore that remark as if it hadn't been given by this witness. Do you understand? It's totally irrelevant to this case."

20. It appears that, despite that robust and proper intervention by the judge, counsel at trial asked the judge to discharge the jury. This was refused by the judge. Rightly so.

21. As to whether the matter should have been raised again by the judge in her summing-up, that was a matter for her decision. Counsel submits in this court that the judge should have adverted to the matter again in her summing-up. Had that been done it might then have been said that, having earlier told the jury to totally disregard the doctor's remark, to raise the matter again herself was to stultify her earlier direction to "completely ignore the remark".

22. In our view the judge cannot be faulted for not raising the matter again.

Ground 4

23. Ground 4 raises an allegation of material irregularity at the trial.

24. What happened simply was this. At the end of the prosecution case, counsel for the applicant was dismissed by the applicant, in writing. Apparently the applicant had wish to call the inspector-in-charge, Inspector Ho Chi-kit, as his witness and counsel disagreed.

25. Upon counsel's dismissal, it appears that the legal aid representative also considered withdrawing from representing the applicant. The outcome was that, for the rest of the trial, the applicant was unrepresented. Whether the judge should have adjourned the trial for the possibility of further legal representation to be explored was a matter peculiarly within the judge's discretion. Nothing which has happened in court could have led the judge to believe that an adjournment might have resulted in fresh legal representation being provided. The contrary was the case. Counsel had told the judge specifically that legal aid was considering withdrawing representation.

26. In our judgment there was no irregularity at the trial. This application for leave to appeal against conviction must be dismissed.

Sentence

27. As to sentence, it may be thought that for a man in his early 40s a sentence of imprisonment of 25 years is harsh. Unfortunately this community is plagued by the incidence of heroin trafficking in such a way that deterrent sentences must be imposed by the courts. Given the amount of heroin involved in this case - over 10 kilos of a mixture containing 8.7 kilos of salts of esters of morphine, with a street value of some $9 million - the sentence imposed by the judge was well within the guidelines laid down for many years by this court. The sentence was proper and nothing said by the applicant in mitigation leads us to believe that we should interfere. The application for leave to appeal against sentences is dismissed.

Representation:

Mr Andrew Bruce, QC, SACP and Mr Joseph To, SCC for Crown/Respondent

Mr Andrew Macrae (M/S K.Y. Woo & Co.) for the Applicant