The Queen v. Yeung Wai Ming

CACC000308/1990

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Coram: Hon. Kempster, J.A., Power and Macdougall, JJ.A.

Date of Hearing:  17 July 1991

Date of Judgment: 17 July 1991

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant to whom we shall refer as the 2nd defendant faced two counts. In the first he was charged that he, together with one WONG Kam-ki, who was the 1st defendant, on 21st February 1989, in Yuen Long trafficked in 440.53 grammes of a mixture containing 22.97 grammes of salts of esters of morphine. In the second count it was charged that he was in possession of 601. 78 grammes of a mixture containing 34.14 grammes of esters of morphine for the purpose of unlawful trafficking. He was found guilty on 18th May 1990 on both charges after trial before Deputy Judge Leonard and a jury and was sentenced to imprisonment for seven years on the first count and seven and a half years on the second count. One and a half years of the second sentence was ordered to be consecutive to the first sentence, making a total of eight and a half years. He now appeals only against the convictions.

3. It was the Crown case that at about 6.40 p.m., the 2nd defendant had, while under observation, handed the drugs, the subject of the first count to the 1st defendant. The crucial witness was the second prosecution witness, a Chief Customs Officer. He gave evidence that at about 4 p.m. on 21st February 1989 he, armed with binoculars, a revolver and walkie-talkie, had taken up position on a about 550 ft. from the open space in Nam Moon Hau Village in which the first offence was said to have been committed at about 6.40 p.m..

4. There was also evidence from a taxi driver who came to the scene to pick up the 1st defendant after the hand over and from two other Customs Officers, a Mr. Lee and a Mr. Law, who are P.W.7 and P.W.8. The two officers gave evidence that, on receipt of a walkie-talkie message at about 9.45 p.m., they returned to a nut at 23 Nam Moon Hau Village which they said they had previously entered and inspected at about 7.30 p.m. They said that they found the 2nd defendant  in the hut and that, after a struggle, they apprehended him and that a search of an interior room uncovered the drugs which were the subject of the second count.

5. The original Grounds of Appeal urged two broad heads. First, that the trial judge had erred in refusing to withdraw the case from the jury. Second, that the evidence being satisfactory for the reasons particularized, the convictions were unsafe and unsatisfactory.

6. Today Mr. Laskey, who appears for the applicant, has argued only the second of those two grounds.

7. Mr. Laskey referred to Royal Observatory records showing that sunset on the evening in question was at 6.25 p.m.  It will be remembered that the transaction in which it was alleged that the 2nd defendant had passed drugs to the 1st defendant had taken place at about 6.40 p.m. Mr. Laskey also referred to the Road Traffic Regulations which require that drivers must operate their driving lights 15 minutes after sunset. It was his suggestion that darkness must be taken to have fallen by that time. He submitted that there had been a failure at the trial by all parties to consider the relevance of the above two matters and that, had they been considered doubt must have arisen as to the reliability of P.W.2 when he said that he was from his observation able to identify the 2nd defendant as the person who passed the drugs at 6.40 p.m.

8. Mr. Laskey also referred: (i) to the failure of the Crown to produce the binoculars which P.W.2 said he had used from 4 p.m. onwards to observe the 2nd defendant. (ii) to the apparent mistake that had been made by P.W.2 when he said that the stripes on the upper garment worn by the 2nd defendant were blue. He referred in this regard to the evidence of the arresting officer who had said that those stripes were black. He conceded that this was not a matter of great significance but submitted that this court should take it into account when looking overall at the reliability of the evidence of P.W.2. (iii) to the discrepancy between the evidence of P.W.2 and that of P.W.7 and P.W.8, the two Customs Officers who said they had entered the but at about 7.30. Mr. Laskey asked that this be contrasted with the positive evidence or P.W.2 that no one had entered the nut prior to the entry by the 2nd defendant at about 9.40 p.m.

9. It was Mr. Laskey' s submission that these matters raised sufficient doubt as to the accuracy of the identification evidence of  P.W.2 to render unsafe any conviction which relied upon that evidence.

10. When considering the first of these matters, the suggestion that darkness must be taken to have fallen on that day within 15 minutes after sunset at 6.23 p.m., it is necessary to look at the evidence. The significant evidence in this regard came from the taxi driver who drove to the scene to pick up the 1st defendant. He was an independent witness, quite unconnected with the events or the participants, who was involved only because he summoned to pick up a passenger. He was asked:

"Mr. Hung, can you recall the lighting condition at the place when you picked up your passenger?"

His answer was:

"Quite bright at that time. The sun has just set down."

Whatever may have been the time of sunset this was positive evidence from an independent witness that the lighting at the scene after sunset was quite bright. The evidence from the Royal Observatory, while informative as to the precise time of sunset, did not purport to be determinative of the visibility at the time the offence was alleged to have occurred.

11. We turn now to the apparent mistake made by P.W.2 as to the colour of the stripes. The trial judge in his summing up referred at length to this matter and left it squarely to the jury for their consideration. It was, in our view, properly dealt with as it was essentially a matter for the jury's assessment. The same applied to the discrepancy between the evidence of P.W.2 and that of P.W.7 and P.W.8. It was for the jury to give to this evidence the weight they considered it deserved when assessing whether or not they could rely upon the evidence of P.W.2.

12. The trial judge in his summing up made it quite clear that the significant evidence was that of P.W.2. He said to the jury:

"So a lot is going to turn on pour evaluation of the second prosecution witness as whether you believe he is honest and reliable."

The tenor of his summing up throughout was that it was for the jury to make their determination in the light of all of the evidence as to whether they could accept that P.W.2 was an honest and reliable witness.

13. We turn now to the failure of the Crown to produce the binoculars. It is suggested that this failure was a material irregularity sufficient of itself to occasion this court to consider that the conviction was unsafe and unsatisfactory.

14. The second prosecution witness was cross-examined at length about the binoculars. He gave a full description of them. He was cross-examined as to how he came to be in possession of them and as to the identity of the officer who had issued them to him, but at no time during his cross-examination was he asked to produce them. It was only after the Crown case had closed when the matter of an inspection of the scene was being canvassed that the defence counsel suggested that the binoculars should be taken on the view. The trial judge quite properly ruled that they were not in evidence and that therefore they could not be made use of by the jury. The the judge was at pains in his summing up indicate to the jury that the binoculars had not beenproduced and to indicate to them that it was for them to make up their minds as to whether or not this occasioned them any doubt as to the evidence of P.W.2. Indeed Mr. Laskey concedes that the summing up of the trial judge was, in this regard, very fair. It would, we are satisfied, had been preferable had the binoculars been produced, but, as they were not produced and were not evidence in the trial, the jury was required to make its assessment upon the evidence that was properly before it.  If they were occasioned any doubt by the failure to produce the binoculars, then it was made clear to it that they must give the benefit of that doubt to the accused. The failure, in the circumstances, to produce the binoculars gives ground to no argument of merit in this appeal.

15. Mr. Laskey finally submitted that there had been a misdirection as to a matter of evidence. The trial judge said to the jury:

"Well whatever  the figures are, members of the jury, you have the advantage of having gone up there and seen what it looks like. He told you that he started his observation in sunshine(i.e. P.W.2). And you will recall that the taxi driver said that when he was there picking up D.1, it was quite light and the sun had just sunk down that was about 6.40. So it would seem that the observation was in broad daylight for the time up to the time when D.1 left in a taxi."

It is suggested that the trial judge was misstating the evidence when he said the observation was in broad daylight. The evidence of P.W.2 to which we have already made reference was that the lighting condition was "quite bright". We are satisfied that this misstatement was, in the overall circumstances, not one of any real materiality. Neither it nor any of the other matters that have been urged before us by Mr. Laskey brings us to the conclusion that the convictions were either unsafe or unsatisfactory. The application for leave to appeal against the convictions is therefore refused.

Representation:

Mr. P.S. Chapman (Crown Prosecutor) for the Respondent.

Mr. Edward Laskey (instructed by M/s Ip & Willis) for the Applicant.