Humayun Suleman Merchant v. The Queen
Read the full judgment text of CACC 308/1981 on BabelCite. This Court of Appeal judgment was delivered on 9 September 1981.
1. On the 31st July, 1980 one Miss Edroos (1st defendant) arrived at Kai Tak Airport from Bombay with a suitcase (exhibit P5) and a vanity case. When interviewed by Senior Customs Officer, HUI Man-kam, she said that she had nothing to declare. Upon Mr. HUI's request she opened the suitcase with a key in her possession.
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CACC000308/1981 Appellant and D1 jointly charged - prosecution did not adduce in evidence a cautioned statement by D1 or intend to use tape-recorded conversation between Appellant and D1 as evidence against D1 - Counsel for Appellant attempted to cross-exam a prosecution witness who took the cautioned statement as to its contents before D1 opened her defence - Counsel also attempted to cross - exam D1 who elected to give evidence as to the contents of the tape-recorded conversations. Trial judge disallowed both cross-exam. Held:-
Case No.: Criminal Appeal No. 308 of 1981 Date of hearing: 27th August, 1981. Date when judgment was delivered: 9th September, 1981. ORDER: The application for leave to appeal against conviction is refused. Cases cited by Counsel in agrument: Nil.
Coram: C.J., Leonard & Li, J.J.A. Date of hearing: 27th August, 1981 Date when judgment wad delivered: 9th September, 1981. Date of Judgment: 9 September 1981 ----------------- JUDGMENT ----------------- Li, J.A.: 1. On the 31st July, 1980 one Miss Edroos (1st defendant) arrived at Kai Tak Airport from Bombay with a suitcase (exhibit P5) and a vanity case. When interviewed by Senior Customs Officer, HUI Man-kam, she said that she had nothing to declare. Upon Mr. HUI's request she opened the suitcase with a key in her possession. 2. Mr. HUI found 17 packages of raw opium totalling 3,317.6 grammes in weight concealed inside the linings of the suitcase. When questioned Miss Edroos explained that she was coming here for a holiday, that the suitcase was lent or given to her by her boyfriend, one Mr. Merchant (the applicant), without her knowing those packages of raw opium were concealed inside the suitcase and that the first time she realized there were dangerous drugs in her suitcase was when Mr. HUI discovered them. 3. She further offered the information that the applicant would join her on her holiday within a day or two if she called him. In order to substantiate her allegation, she was prepared to make a long distance telephone call to the applicant in Bombay. She was successful in persuading the Customs officers to give her a chance to exculpate herself. 4. The Customs officers booked her a room in the Sheraton Hotel (Room No.1245) and booked a long distance telephone call to the applicant. The phone call was put through by 5:50 p.m. the same day. There was a conversation between D1 and the applicant on the telephone, which was tapped and tape-recorded as exhibit P25A. Later, at around midnight the same evening, a long distance call from Bombay was put through to D1. It was again the applicant on the telephone. There was another conversation which was tapped and tape-recorded and was given in evidence as exhibit P25B. 5. From these conversations it was ascertained that the applicant would be coming to Hong Kong arriving on the 1st August, 1980. An ambush was organized by the Customs officers at the Hotel Sheraton. They concealed a microphone in room 1245 where D1 was left alone. In the meanwhile, they occupied a room namely, 123B on the same floor in the vicinity with a tape-recorder listening to the microphone. The applicant flew from Bombay to Hong Kong arriving about 1 p.m. at Kai Tak Airport on the 1st August. Having ascertained that D1 was still staying in room 1245, he made his way there. There was a conversation in that room between the applicant and D1 which was tape-recorded and produced in evidence as exhibit P27A. 6. In the course of their conversation D1 told the applicant that the raw opium in the suitcase had been discovered by Customs officers. He left room 1245. He was intercepted in the corridor and was taken to room 123B, where he made a cautioned statement to the Customs officers which was produced in evidence as exhibit P30. 7. The applicant was jointly charged before the District Court with D1 with the offence of unlawful trafficking in dangerous drugs and the alternative charge of possession of dangerous drugs for the purposes of unlawful trafficking. D1 was acquitted of both charges, while the applicant was convicted of the charge of unlawful trafficking in dangerous drugs. The applicant sought leave to appeal against conviction from a single judge which was refused. He now renews his application before this court. 8. At the trial, counsel for the prosecution did not seek to adduce in evidence a cautioned statement made by D1 to the investigating Customs officer, on the ground that it was a self serving statement. He also informed the trial judge that he would not use the contents of the tape-recorded conversations exhibits P25A and P25B or exhibit P27A as evidence against D1. These decisions of prosecuting counsel gave rise to two questions which required rulings by the trial judge. The first appears at page 19 of the transcript. 9. In the course of his cross-examination of Mr. WONG, the Customs officer who interviewed D1, counsel for the applicant asked the following questions:-
10. At this point crown counsel informed the trial judge that the statement was self serving and not admissible. Whilst he did not dispute that a statement was taken, he would object to its contents being put before the court at that stage, unless they were introduced by the crown. 11. Counsel for D1 also objected on the ground that, if the statement was to be used, the crown must prove affirmatively that it was made voluntarily. The trial judge upheld such objections, saying that the evidence of D1 was not evidence against the applicant and that it was not proper at that stage to go into the contents of D1's statement. 12. The second question appears at pages 108 and 109 of the transcript, when D1 elected to give evidence. She was cross-examined by counsel for the applicant as follows:
The last question was based on a conversation between D1 and the applicant which was recorded in exhibit P25B. 13. Counsel for D1 objected to this question. Indeed, he objected to any cross-examination based on what was said by D1 in the course of her conversations with the applicant recorded in exhibits 25A, 25B or 27A. His ground of objection was that the crown had not sought to argue that either what she said or what the person at the other end said was evidence against D1. Had the crown done so, it would be incumbent upon them to prove that she took part in those conversations voluntarily. The trial judge upheld the objection and disallowed any cross-examination of D1 on the contents of those conversations. 14. Although counsel for the applicant filed five grounds in support of the application, at the commencement of the hearing he abandoned the first three, retaining only the 4th and the 5th grounds. The 4th ground is that the judge erred in preventing any cross-examination of the 1st defendant by counsel for the applicant as to what she said on the telephone to the applicant on the 31st July (see pages 108, 109) and thereby deprived the applicant of an opportunity to discredit the evidence against him which was given by the 1st defendant. The 5th ground is that the judge erred in preventing counsel for the applicant from cross-examining the Customs officer who took a statement from the 1st defendant on the 31st July as to the contents of that statement. 15. With regard to the 5th ground, the crown did not seek to adduce the cautioned statement made by the 1st defendant in evidence. It was therefore not evidence against the 1st defendant nor the applicant. Counsel for the applicant would have been entitled to question the Customs Officer Mr. WONG as to the conversation which took place between him and D1, in an effort to show that she had told Mr. WONG a different story from that which she might later give in evidence. 16. But we think the judge was right in ruling that the statement itself should not become the basis of cross-examination at that stage, since it was not in evidence. 17. Counsel for the applicant could, when D1 gave evidence, have cross-examined her about her statement, which he failed to do. Had counsel been refused permission to do so at the later stage he might have had a justifiable complaint. That, however, was not the case. 18. As to ground 4, we bear in mind the evidence of D1, which is damaging to the applicant, and the line of defence adopted by the applicant at trial. According to D1, she and the applicant planned to have a holiday in Hong Kong together one week prior to her departure on the 30th July. On that day, the applicant informed her that he, the applicant, had some urgent business to attend to and would not be going with her but would join her in Hong Kong a day or two later. D1 was not keen to go by herself but was coaxed to do so. The applicant went with her to obtain the air ticket and to obtain U.S. dollars for her for the trip. 19. When she told the applicant that she wanted a suitcase for the journey, the applicant offered to lend her one and gave one to her. She packed her clothing in it, without knowing or noticing anything peculiar about it. She was seen off by the applicant at the airport in Bombay. The applicant's line of defence was that he and D1 were lovers and had slept together before, but had never planned to take a holiday together in Hong Kong. The applicant denied having obtained the air ticket or foreign exchange for D1 or having given or lent her any suitcase. 20. According to the applicant, the first time he knew that D1 was going to Hong Kong was in the afternoon of the day when D1 boarded the plane. They met in a cafe, when he was told by their mutual friend, Faizal, that she was going to Hong Kong. The applicant was angry that D1 was going by herself without him. When he asked her about it, she merely smiled and Faizal said he would tell him about it later. 21. He denied having escorted D1 to the airport in Bombay. He said he only saw D1 and Faizal leaving in a taxi and he went home. It was not until the afternoon of the next day after D1 left that Faizal told the applicant that she, D1, had opium in her suitcase. It was Faizal, he asserted, who suggested that the applicant should join D1 in Hong Kong, giving the applicant credit for the air ticket. The applicant was induced to come to Hong Kong for two reasons, to have a good time with D1 in Hong Kong and to advance his usual trip to obtain seasonal goods in Hong Kong by one month. 22. Having regard to the aforesaid, it is quite apparent that the credibility of D1 was a major factor in determining the guilt or innocence of the applicant. The judge, in his reasons for verdict, commented that:
He continued:
23. We find that the judge was in error in disallowing cross-examination of D1 on her statements in exhibits P25A, P25B and P27A. Although the prosecution declined to make use of these transcripts as evidence against D1, nevertheless D1's evidence was damaging to the applicant in that she alleged that the applicant was the instigator of the import of the raw opium into Hong Kong through her, an innocent agent. In this way the prosecution was allowed to have the best of both worlds. They produced a witness who gave incriminating evidence against the applicant; yet the applicant was deprived of the opportunity of testing the credibility of that witness by questioning her about the contents and meaning of the recorded telephone calls. This constitutes an irregularity. 24. However, we have to look at the totality of the evidence and ask whether, despite this irregularity, any miscarriage of justice has occurred and whether, had there not been this irregularity, the judge would nevertheless have necessarily convicted the applicant. 25. Counsel for the applicant contends that in both exhibits P25A and P25B, D1 appeared to show particular concern about Faizal. Having been deprived of the opportunity to cross-examine D1 on this point, the applicant was denied the chance to show that Faizal was in fact the instigator. Further, many parts of the conversations had been transcribed as "inaudible". The applicant was denied the chance of bringing out any exculpatory element in those parts transcribed as inaudible. 26. In our opinion, no useful purpose will be served by speculating on the "inaudible" passages. Copies of the transcript of the conversation were available to the applicant at trial. Had there been anything exculpatory of the applicant, or tending to discredit D1, the applicant had ample opportunity to supply what was "inaudible" when he gave evidence. He never attempted to do so. 27. Whether Faizal was involved in the trafficking is neither here nor there. Nor are we concerned with the guilt or innocence of D1, except to the extent that D1 might have been a party involved and thus have had her own purposes to serve by giving evidence incriminating the applicant. What we are concerned is the guilt or otherwise of the applicant. 28. In our view there was sufficient evidence to support the following inferences:
29. From these findings, we consider that there is an irresistable inference that the applicant handed the suitcase to D1 with full knowledge that there was raw opium in it. He persuaded D1 to come to Hong Kong alone in advance, so as to clear the coast for himself. 30. Not until the applicant and D1 had a conversation in room 1245 at the Sheraton Hotel did the applicant know that a Customs officer in Hong Kong had found the drugs in D1's suitcase on her arrival. Whether D1 knew of the drugs beforehand would not exculpate the applicant. In view of the aforesaid, we are of the opinion that, despite the irregularity we have mentioned, the judge would inevitably have convicted the applicant on the totality of the evidence. Accordingly we apply the proviso. 31. The application for leave to appeal against conviction is refused.
Representation: A. Huggins (H.M. So & Co.) for the Appellant Conram for Crown |