R. v. Yan Wai Chung

CACC000033/1994

IN THE COURT OF APPEAL

1994, No. 33
(Criminal)

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Coram : Hon. C.J., Macdougall, V.-P., & Penlington, J.A.

Date of hearing : 24 November 1994

Date of judgment : 24 November 1994

Date of handing down reasons : 10 March 1995

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. We heard this application for leave to appeal against conviction and sentence on 24th November 1994. We allowed the application for leave to appeal against conviction, treated that hearing as the hearing of the appeal, allowed the appeal, quashed the convictions and set aside the sentences. After hearing submissions from Counsel for the Crown, Miss Victoria Hartstein, and for the applicant from Mr. Wilson Chan, we ordered that there be a re-trial on all counts on a fresh indictment. We said we would hand down reasons for our decision, which we now do.

2. The applicant was convicted by Rogers, J. and a jury on 12th January 1994 on two counts of trafficking in a dangerous drug, one of being in possession of a dangerous drug and a fourth count of manufacturing a dangerous drug.

3. On the afternoon of 30th November 1992, the applicant drove a motor car, FH 5168, into the carpark of Whampoa Gardens. He parked in the no. 6 carpark and then went up to a 7-11 convenience store. That was undisputed. The Crown's evidence was that the applicant then returned to the car and opened the front passenger door. He was seen to take something from the car which he put inside his green jacket. He then closed the car door and went towards staircase no. 14. A police officer said that was informed of this by radio and apprehended the applicant who was subdued following a struggle. In the inside front pocket of the applicant's jacket an envelope was found which contained a dangerous drug, namely 337.92 grammes of a mixture containing 160.9 grammes of salts of esters of morphine. The police officer's evidence was that the applicant told them that "his boss had asked him to deliver it" and that it was "white powder". He also said that he was paid $1,500 for each delivery. That was the basis of the first count of trafficking.

4. It was the applicant's case that the police evidence was totally false and that he was in fact arrested at the car, not at the staircase, and that he was not alone but together with a Mr. Chan, whom he had met in the 7-11 Store. He was not wearing the green jacket and, if drugs had been found, they were not his but Mr. Chan's.

5. The second count relates to a packet containing 337.85 grammes of a mixture containing 161.45 grammes of salts of esters of morphine which, according to the police officers involved, was found in the glove compartment of the car, FH 5168. They said that they found the drugs there after they had arrested the applicant and that, when asked about those drugs, the applicant did not say anything. It was the Crown's case that as the applicant was driving the car he knew that they were there and was delivering them. The applicant gave evidence denying any knowledge of these drugs. That was the evidence on the second charge, also of trafficking.

6. The third and fourth charges related to drugs found at Flat G, 3rd floor, Block 3, Ravana Gardens, Shatin. There was no doubt that those premises had been used for the manufacturing of salts of esters of morphine and that, on 30th November 1992, when they were searched by police officers, other dangerous drugs were found there, namely 161 tablets of flunitrazepam in one packet and 126 similar tablets in another packet.

7. There was no dispute that the applicant was the tenant of that flat. His evidence was that he had rented it because his existing flat was too small. However there were problems in giving up his previous flat and he sublet the Ravana Gardens flat to the Mr. Chan, whom he had met in the 7-11 Store at Whampoa Gardens. It was, however, the police evidence that the keys for the flat had been found in the car which the applicant had driven, FH 5168.

8. There was other evidence both for and against the Crown's case. In light of the view we have taken of this matter, there is no need to go into that in any detail.

9. There were two grounds of appeal argued by Mr. Chan. The first being that the trial judge had failed to put to the jury a proper direction as to the relevance of the applicant's previous good character. It is submitted that here the essential question which the jury had to decide was the credibility of the witnesses i.e. were they satisfied, in the light of the evidence given by the applicant, that the police officers had been telling the truth as to what happened at the time of the applicant's arrest at Whampoa Gardens and, secondly, were they satisfied on all the evidence that by reason of his tenancy of the Ravana Gardens flat, it was the applicant who was in possession of the dangerous drugs found there and that he was the person responsible for the manufacturing of heroin which had been going on. Reliance is placed on the now oft quoted decision in R. v. Berrada [1990] 91 Crim. App. Reports 131. This decision was then followed in R. v. Vye [1993] 1 WLR 471 where the English Court of Appeal placed an even higher burden on trial judges to direct juries as regards a defendant's previous good character. Those authorities were considered by this court in R. v. Chan Wu-nam, Crim. App. 274 of 1992. There, Mortimer J. (as he then was) delivering the judgment of the court said:

"We are not to be taken as saying that it is incumbent upon a judge to give himself and to articulate what is called a 'Berrada Direction' in each case. Suffice it to say that in this case because of the importance of credibility, the judge should have carefully dealt with the effect of the applicant's good character under both 'limbs' of Berrada - as to its effect upon the applicant's credibility and as to the effect upon the proof of guilt."

10. For the Crown here, reliance is placed by Miss Hartstein upon the decision in R. v. Chan Wing-shing and another, Crim. App. 129 of 1994 where Macdougall, V.P. in delivering the judgment of the court said:

"Where there is evidence of the accused's clear record, we think that there is considerable force in the view that, even where the judge fails to give a direction as to the effect of the clear record, it would be a very dense jury indeed that did not understand that they must take the evidence of good character into consideration in deciding not only whether the accused committed the offence charged but whether his testimony or his statement to the police are more likely than otherwise to be credible."

11. Here, there is no dispute that the jury were not given any direction at all as to the manner in which they should consider the applicant's undisputed good character.

12. Having given anxious consideration to the evidence here, we are satisfied that while strong it was by no means overwhelming and that essentially the jury had to consider the credibility of the applicant. We considered that this was a case where a direction as to character was essential and accordingly the application for leave to appeal should be granted the appeal allowed and the convictions and sentences quashed.

13. We also were of the view that the Crown's evidence was such that there should be a retrial and so ordered.

Representation:

Mr. Wilson Chan instructed by D.L.A. for the Applicant

Miss V. Hartstein, S.C.C., for the Crown