The Queen v. Tam Wing Hung

CACC000337/1988

Coram: Silke, V.-P., Macdougall, J.A. & O'Connor, J.

Date of Hearing: 20 April 1989

Date of Judgment: 20 April 1989

Date of handing down Reasons: 4 May 1989

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J U D G M E N T

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Silke, V.P.:

1. The Applicant, Tam Wing Hung, was convicted after trial before Her Honour Judge Chua of possession of dangerous drugs for the purpose of unlawful trafficking. He was sentenced to 5 years' imprisonment. He now seeks leave to appeal against conviction only.

2. At the conclusion of the hearing as there were matters proper to be brought to the attention of this Court both in fact and in law, we granted leave, treated the hearing of the application as the hearing of the appeal but dismissed the appeal. We said we would hand down our reasons later. This w now do.

3. At about 6:15 a.m. of 10th June 1987 a man named Shum went for a walk accompanied by his wife and their dog. They were under surveillance by customs officers who saw a private car DR1529 pull up beside them. Someone in that car handed a packet to Shum. When Shum was subsequently arrested, that packet was found to contain dangerous drugs.

4. The surveillance on the car was continued and it was followed to a building in Ngau Tau Kok Road. There it drove to a car park. At about 9:40 a.m. two persons were seen to approach that car in the car park. One of them was the Applicant. He got into the drivers seat: the other got into the passenger seat. He was surnamed Chiu. The car drove off and, as it left the car park, was stopped by customs officers. The two persons who were in the car were searched and nothing was found on either of them. The car was then, searched and under, the passenger seat there was found a white plastic bag with the name "Dodwell" upon it. That bag contained the dangerous drugs, the subject of the charge, in the quantity of 462.82 grammes of a mixture containing 43.87 grammes of salts of esters of morphine. The drugs were in eight separate packets which were newspaper wrapped. Six of those packets contained ten smaller packets, one of them had nine smaller packets and there was a single packet.

5. There was no issue at trial as to the identity of the Applicant nor of the findings of the drugs in the car of which he was in control.

6. Further there was evidence that he had hired the car on a Saturday night at about 9:00 p.m. for a return on the following Monday at about 9:00 a.m.. Chiu, the passenger, and the Applicant were both arrested and were both charged. Subsequently no evidence was offered against Chiu.

7. The newspaper wrappings were fingerprint tested and on the inside of a piece of sticky tape which was attached to one piece of the newspaper was found, a fingerprint. It was the Crown's case that this print belonged to the Applicant.

8. The grounds of appeal firmly and valiantly argued by Mr. Hatton were first that the credibility of the Applicant was an important issue, given that the presumptions under the Dangerous Drugs Ordinance arose and that there as an anus upon him to rebut them. In assessing that credibility the trial judge found facts which she wrongly held to be adverse to the Applicant. These facts were not such as would entitle her to take judicial notice of their existence. Second the trial judge in her further assessment of the credibility of the Applicant fell into error in misinterpreting a portion of his evidence and led herself into the drawing of an injustified adverse inference. Third, that the trial judge in determining the guilt of the Applicant wrongly relied on the Applicant's silence at the time of the seizure when the drugs packages were said to have bean opened and after which he was arrested and cautioned.

9. It is his rolled up ground that this conviction was unsafe and unsatisfactory in the light of the general evidence and the grounds either individually or collectively.

10. The fingerprint played a large part in the trial. There was evidence from an expert witness, Inspector Yuen, that he found twelve points of similarity as between the Applicant's fingerprint and the print found on the piece of sticky tape. In the course of his evidence at trial he indicated three further points of similarity.

11. The defence called their own expert, Dr. Grant. He accepted that nine of the points were of sufficient similarity to be evidential. He was doubtful of one of the points and, because of the nature of the item examined, the print being partially obsecured by newspaper attached to the sticky tape, he could not be certain in his view that five further points including the three extra ones to which the prosecution witness had referred in evidence were individually sufficient for the purposes of a comparison examination.

12. Dr. Grant spoke to each of the points in turn. He said that he had found eleven or ten identical then the print was probably that of the person whose print was being compared. But if there were but nine in similarity he would say it was unlikely. He continued that:

"It is hard to put probability into numbers there are other factors involved. The question of seasonable doubt e.g. which I associate with 'could exist'."

13. He was in his evidence confining his examination to those points which Inspector Yuen had said to be similar. He had been unable for various reasons to make his own separate comparison. He gave no evidence that any of the points on the print were dissimilar from the Applicant's print.

14. In her Reasons for Verdict, the trial judge considered both the evidence of Inspector Yuen and that of Dr. Grant and appreciated that it was not for them to decide the case for her but for she herself to make her own decision bearing in mind the evidence. She found that, accepting Dr. Grant's evidence at its highest, there were eleven points of sufficient similarity as between the print on the sticky tape and that of the Applicant. She went on to consider her own examination and the evidence overall. She held that, of the fifteen points referred to by Inspector Yuen, she was not satisfied, either because of the lack of clarity of the actual print or of the photographs of it, of the similarity. But she accepted ten points of similarity to exist. She was therefore, as she put it, "unable to arrive at the required twelve points of similarity". She then appears to have given no further consideration to this part of the evidence.

15. We entirely accept that, had the print been the only evidence in the case, its similarity to that of the Applicant had not been proved beyond a reasonable doubt. But the existence of the print must be viewed in the light of all the other evidence. It was a circumstantial factor which the trial judge could properly have taken into account in assessing the guilt or innocence of the Applicant. It was part of the evidence which included the hiring of the car by the Applicant, his control of it, the finding of the drugs in it and his attitude upon arrest. She would have been entitled to consider whether, in the light of all that, the addition of the print, which was probably that of the Applicant, would justify her in drawing the irresistible inferences of guilt. In our judgment that evidence would, subject to a consideration of the defendant evidence, have so entitled her.

16. It was the Applicant's case, as emerged both in cross-examination and from his evidence, that he had no knowledge of the existence of the packet in the car he was driving and consequentially no knowledge that that packet contained drugs. He had, he said, hired the car for the purpose of a joy ride with his girlfriend and of going to various estate agencies in the New Territories in order to view flats which he wished to acquire. The hiring, as we have said, was from Saturday night to Monday morning. That hiring was then extended to facilitate a loan of the car to Chiu. Chiu was at the time they were both arrested in the process of returning the car to the Applicant. The implication, though this was never specifically stated, which the Applicant desired the Court to adopt was that this was all Chiu's fault.

17. He was cross-examined as to his which he said was $5,000 per month, of which he gave $3,000 to his mother. The purpose of this cross-examination, of course, was to highlight the hiring costs of the car at $300 per day to a man with $2,000 per month to spend.

18. At a later stage the Applicant said that if he wanted money he could get some from his mother; that some of the money which he had given her and which she was saving for him.

19. At the time of his arrest, he had not made any reply to the question posed by the finding officers "Whose is this?" because first he was not care to whom that question was directed and that, if the constable did take out a package and show it to himself and Chiu, his view was obstructed by those who were present and he was not clear what hap happened. Further there was a contest at trial as to whether or not all the packages were taken out, opened and shown or whether merely one of them was.

20. Mr. Hat ton complains that the judge in her comments on the money aspect where she said:

"This remarkable generosity made have taken place in the good old days but the modern adult in Hong Kong, even those who remain resonably filial would never give such a proportion of his earnings to his parents."

had no evidential justification for the views expressed.

21. Further in her comments on the manner in which a person would look for flats in the New Territories, which was not the way the Applicant said he went about it, and when she said"

"I would very much doubt that property agencies can be easily located, if they exist at all in Tsuen Wan, Tuen Mun, Shatin and Tai Wai."

the trial judge again had no evidential justification.

22. Questions in cross-examination on the matter of Chiu's absence from Court went to the fact that Chiu was not being called as a witness and not, as the trial judge seemed to think, that the Applicant never "thought to look" for that man.

23. The passage of which Mr. Hatton makes most complaint appeared at the end of the Reasons for Verdict and it runs thus:

"What I find most significant is the fact that the defendant did not spontaneously express astonishment and ignorance to the police when the drug packages were opened. The natural reaction seems to me if innocent is to do so. It may he to protect his good friend Chin that he does not relate the story of Chiu having borrowed the car. But to say in Court that even after he was charged and preparing for the trial he never thought to look for Chiu is inconsistent with innocence."

24. The combination of the trial judge's comment on the exercise by the Applicant of his right to silence combined with her misinterpretation of the Applicant's evidence to which we have referred is, says Mr. Hatton, sufficient to show the erroneous approach of the trial judge which, in a matter where credibility was of such importance, is fatal to the conviction.

25. We accept that in the passages quoted the judge want a great deal further than she Should. It was not, in relation to the income and the estate agencies visits a matter of taking Judicial Notice. Those facts are not so notorious to justify the judge taking such a course nor could the use of local knowledge be prayed in aid to justify what was said.

26. The trial judge was entitled to be skeptical of the evidence of the Applicant and that of his brother.

27. The failure to spontaneously say words to the effect "Oh, what is all this? I know nothing about it" at the time the drugs were found and displayed, in whatever manner they were displayed, we consider could have properly been a matter for comment. But not for the comment the trial judge made.

28. But, accepting all that, there was ample evidence on which a properly directed jury, in this case the judge alone, could have convicted. Had any of the comments which are complained of been made in summing up to a jury then the criticism levelled at them would have had much greater moment.

29. We are firmly of the view that a proper appreciation of the evidence in this case would inevitably have led to the conviction of the Applicant be it by judge or jury. In those circumstances, we do not think that the manner in which the trial judge set about her findings occasioned any miscarriage of justice.

Representation:

A.J. Hatton, Esq. (Andy Lo & Co.) for the Applicant

C.D.F. Coghlan, Esq. (Crown Prosecutor) for the Crown