Wong Yau-leung v. The Queen
Read the full judgment text of CACC 363/1981 on BabelCite. This Court of Appeal judgment.
1. On the 16th April 1981 the Applicant was convicted by the jury of the offence of trafficking in a dangerous drug and was sentenced to seven years' imprisonment.
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CACC000363/1981
----------------- Coram: Roberts C.J., Li and Silke JJ.A. Date of Judgment: 20th November, 1981. ----------------- JUDGMENT ----------------- Silke J.A.: 1. On the 16th April 1981 the Applicant was convicted by the jury of the offence of trafficking in a dangerous drug and was sentenced to seven years' imprisonment. 2. He was refused leave to appeal against that conviction by the Single Judge and renewed his application by virtue of which renewal he appears before this Court. 3. He had been jointly charged with one Chan and in the particulars of charge the drug was stated to be raw opium and the quantity 3,568.7 grammes. Further in the particulars it was stated that the offence had been committed with one Mistry an Indian national and the woman, whom for convenience sake I shall call Clarke - she had other names. 4. Both of these persons gave evidence for the prosecution at the trial. 5. Briefly it was their evidence that the Applicant met Mistry in 1977. In February 1980 Mistry went back to Bombay having given the Applicant his address. 6. About ten days after his return he received a letter from the Applicant which told him that the Applicant was coming to Bombay to buy methyl amphetamine. Mistry wrote back to say he could not purchase the drug but received a telephone call from the Applicant saying that he was in any event coming to Bombay. 7. In the interval, as I understand it, between letter and telephone call Mistry met the woman Clarke. They formed a friendship. 8. At the end of June 1980 Mistry got another letter from the Applicant who gave his date of arrival in Bombay and which said he was coming to buy chemicals. 9. Mistry met the Applicant at the airport and went with him to the Taj Mahal Hotel where the Applicant occupied Room 202. 10. On the day after his arrival Mistry met him again and together they went to Dava Bazaar to try to buy methyl amphetamine. They were unsuccessful. 11. On about the third day after his arrival, Mistry introduced the Applicant to Clarke and the three met after that on many occasions including meetings in Room 202 at the Taj Mahal Hotel. 12. In the course of those meetings the Applicant asked Clarke to carry to Hong Kong a suitcase and a brief case containing opium. There is some discrepancy in the evidence of Mistry and Clarke as to exactly when this request was made. 13. Clarke wanted 30,000 Hong Kong Dollars - again there is some dispute between the accomplices as to the actual amount - and an airticket. It was suggested that Clarke go to Delhi to get a visa for China as it was thought easier to enter Hong Kong via China rather than direct from Bombay when carrying opium. Clarke did go to Delhi but failed to get a visa and she returned to Bombay after about one week. 14. In the interval Mistry, having been given the necessary funds by the Applicant, bought four kilos of opium in a place called Crawford Market and made arrangements with someone in the bazaar to make a suitcase with a false bottom and to adapt a brief case to similar purpose. It would appear that Mistry trusted that person for he left the opium with him as well. Again the Applicant provided the funds. 15. When the suitcases were brought back to the Applicant's hotel room Clarke, who had returned from Delhi by now, thought the work was not well done and that the opium would be easily discovered. The two bags were sent back and remodelled. 16. The Applicant left for Hong Kong having given an airticket for the journey Bombay/Hong Kong/Manila to Clarke - and this before the remodelled suitcases had come back. 17. When they did return Clarke left for Hong Kong with them, and with the opium, arriving on the 25th July 1980. 18. She said she had been given the Applicant's phone and paging number by him and, having tried the Nathan and Fortuna Hotels for a room without success, asked one of the receptionists in the Fortuna Hotel to ring those numbers. He did so and made contact with the Applicant through the paging number. The Applicant returned the call, contacting Clarke and told her to wait at the Fortuna. He went there accompanied by at least one other person. 19. Clarke waited outside the Fortuna for about twenty minutes and then a man contacted her and brought her to the Applicant who was waiting around the corner with his car. The man took away the suitcases. The Applicant then took Clarke to the Empress Hotel where he got a room for her. 20. All these manoeuvres, including the presence of the Applicant at Kai Tak that evening, were being watched by a team from Narcotics Bureau. 21. In the early hours of the 26th July Clarke was arrested and the premises of the man Chan was searched. In those premises the cases and the opium were found. The Applicant himself disappeared only to surface later in Australia from where he was extradited. 22. Chan, as well as being jointly charged with the Applicant on the offence of trafficking, was also tried at the same time on a single charge of possession for the purpose of unlawful trafficking in respect of the opium. 23. There was corroboration of some of this evidence from the surveillance team in Hong Kong, from the hotel chits relating to Clarke's stay in India and from some other matters that we do not think necessary to set out in detail. 24. The defence was a denial of any opium dealings in India - that the Applicant met Mistry for the first time by coincidence in Bombay - that he was introduced to Clarke by Mistry but met her once only. He said he was in Bombay having been to Canton and being interested in starting a business relating to chemicals being imported from India to China. He, knowing that in any such business starting in India there must be an Indian national as a partner, decided to make use of his new found acquaintance Mistry for that purpose. 25. And Mistry does say that, while he got no reward for the activities he described in Bombay, he was assisting in them in the hope of being able to engage in the chemical business to be set up by himself and with the Applicant as a partner. 26. In addition to the accomplice evidence there was called by the Crown Chief Inspector Thomson who had accompanied the Applicant on the plane from Australia to Hong Kong after his extradition. The Chief Inspector gave evidence of a voluble conversation which the Applicant carried on with him on the plane. His evidence was supported by that of Senior Inspector Lam Chi Kit who was also on the plane. 27. Chief Inspector Thomson said he had warned the Applicant on a number of occasions that he did not have to say anything and he made it clear in the course of his evidence that he asked the Applicant no questions. Prior to leaving Australia the Applicant had received a letter from his Australian solicitor advising him in strong terms to say nothing to the Police during the journey to Hong Kong. Indeed the letter had a postscript suggesting if any questions were asked, the Applicant should show the letter to the police officer concerned. 28. I would interpolate here that the sequence of witnesses at this point in the trial has some importance. Chief Inspector Thomson was called as the first witness but, because his statement relating to his conversation was brought to the notice of Counsel then appearing for the Applicant shortly before the Chief Inspector went into the box, his evidence was adjourned to allow Counsel to consider it. The next main witness was Mistry and in the course of his evidence he made reference to his meeting with the Applicant in 1977 in "Lai Chi Kok". He gave no further explanation, nor he would ask for one, as to whereabout in Lai Chi Kok this meeting took place. Mr. Huggins asked us to infer that the jury would come to the conclusion that this was the Remand Centre situated there but, had there been no further evidence, we doubt if that inference would necessarily have been drawn. But there is more. 29. Chief Inspector Thomson gave his evidence, refreshing his memory from notes which he made in the course of the conversation he was recalling. These notes were made at intervals when the Chief Inspector retired to the lavatory on the plane for the purpose of making them. He said he did this because he was afraid if the Applicant saw him making notes he would cease to talk. 30. That which the Applicant had to say was highly damaging. It would appear that he made some references to Chan, his co-accused, but these were carefully edited out in the course of the Chief Inspector's evidence - and quite properly so. 31. The tenor of the conversation was to the effect that the Applicant was interested in methyl amphetamine and that he was in fact "an amphetamine man". This was part of the general narrative and while at first Mr. Huggins took objection to it on reflection he withdrew that objection. I might add here that Counsel at the trial had objected to the admission in toto of this evidence on the grounds that its prejudicial nature outweighed its probative value. That objection was overruled. 32. But there were four particular sentences in the narrative to which Mr. Huggins does take exception and which, he said, should have been edited out in a similar fashion as were the references to the co-accused. These were "Ho knew I was a drug dealer": "I didn't have any money when I got out of prison": "When I deal I in big quantities": and "I had no money when I got out of prison". 33. These were such, says Mr. Huggins, as to put the jury on notice that the Applicant had a criminal record and was a drug dealer in the past. 34. He has also drawn our attention to the evidence led from Mistry who said methy1 amphetamine was to be part of the Bombay Company's business and that he, Mistry, did not know it was called "speed" or that it is classified as a dangerous drug in Hong Kong. 35. The witness to follow the Chief Inspector was Clarke. She in answer to a question from the Counsel for the Crown - and it is Mr. Huggins' contention that Counsel expected the answer she gave said that the Applicant "mentioned he sold drugs in Hong Kong". 36. This general evidence of dealing and imprisonment having come out Counsel then appearing for the Applicant, having sought an adjournment to take instructions, attacked Clarke as to her character. Clarke had been involved in a drug offence in India and was, at the time of giving evidence, serving a sentence for a drug offence in Hong Kong. She was in possession of heroin when arrested on the 26th July. 37. We have gone into the sequence of the evidence in some detail for as well as being a ground of appeal of itself, it forms the background to other grounds with which we shall deal in a moment. 38. Once a jury is appraised of the fact of an accused's previous conviction - and it is a rule of singular importance that they should not be so appraised except in certain specified instances none of which arose here - it places the trial judge in an almost impossible position in attempting to give directions to them sufficient to remove from their minds the effect of such knowledge. It is very dangerous ground. 39. It is true that there was no request made in the Court below to edit out the offending evidence nor did the trial judge take it upon himself to do so. We appreciate that it was the case for the Crown that the Applicant, having gone to Bombay to buy amphetamine and failing to do so, decided to defray expenses by dealing in opium and the fact that he was familiar with amphetamine and with Mistry was part of that case. But the evidence should have stopped there. 40. We note in this context the comment by Crown Counsel in his closing address where he asked rethorically "And isn't that why he went to Bombay to continue dealing in amphetamine?" By that time the jury was fully aware of the Applicant's previous conviction it having been mentioned by him - the horse had already bolted - in his own evidence and evidence of the period of the imprisonment having been called in the course of the defence case in order to show that the Applicant was in prison at a time when Mistry said he had received both a letter and a telephone call from him. 41. In the course of his summing-up the trial judge made one reference to the Applicant's record and in these terms:
42. Mr. Huggins complains that this does not go far enough for he says the Judge should at least have gone on to direct the jury that the previous conviction for manufacturing amphetamine in no way proved or tended to prove the guilt of the Applicant on the count of trafficking in raw opium. 43. Mr. Lloyd, for the Crown in this Court, suggests that the conviction was "relevant" in the sense of admissible in relation to the charge before the Court. He says reference to it was necessary in order to prove the first meeting with Mistry. We disagree. It can never be proper, unless it be admissible as similar fact evidence, to prove or refer to a previous conviction of a like or similar offence in order to prove the offence charged. Even if it may properly be proved on the issue of credibility, it goes to that issue alone and the jury should be so directed. 44. The direction, and I would repeat it is the only reference, is unsatisfactory. (R. v. Vickers)(1). 45. In the course of his summing-up the trial judge gave a proper direction as to corroboration and as to the effect of accomplice evidence. In the course of it he made reference to certain evidence, as was his duty, which could be considered by the jury to be corroborative. Amongst those items was the evidence of Chief Inspector Thomson to which we have already referred. He recited it in full and of it he said:
46. In part that was of course correct but the effect of the direction as a whole was to suggest that that part of the Chief Inspector's evidence which related to the Applicant being a drug dealer generally and having served a prison sentence was also corroborative of the evidence. This could have misled the jury, in the absence of a full and clear warning to disregard the previous conviction, into thinking that they could treat this evidence as indicative of guilt. 47. Mr. Huggins has advanced the proposition, in addition to his complaint as to this particular part of the direction, that a Judge as well as directing a jury as to what is corroborative should further direct them to those parts of the evidence which are not corroborative. We accept that in certain well defined circumstances, such as a complaint in a rape case, such a direction is necessary. For there may be a "danger that the jury will treat as corroboration something which is incapable of being corroboration". (Goddard)(2). In those cases there must be a duty upon a Judge to explain to the jury that which is not corroborative. We do not however think that there can be any such general rule as Mr. Huggins would have us find. Such a rule would make the task of the trial judge virtually impossible. But this is not to say that Mr. Huggins' original complaint is without justification. 48. There is one final matter in the summing-up to which Counsel took exception and that is the direction relating to the effect of those parts of a statement made by Chan, the co-accused, inculpating the Applicant. The direction was this:
49. We accept that this is nothing like strong enough and amounts to a misdirection. It was not just "perhaps wise" to ignore it - there should have been a positive direction that the statement of the 1st defendant Chan was not evidence at all in respect of the Applicant and that the jury should ignore it in coming to their conclusion as to his guilt or innocence for that reason. This is a matter of law upon which the jury are obliged to accept the directions of the Judge. 50. In the light of these matters we have been asked to apply the proviso. We accept that there was a strong case, albeit based to a large extent on the accomplice evidence but bolstered by those parts of the Applicant's conversation with Chief Inspector Thomson which were properly before the Court. But that is not the test. The test, as we see it, is might a jury be influenced unduly by the matters that have been outlined and can we say that the cumulative effect of those matters can be disregarded so that we can be satisfied that the jury must inevitably and despite them have come to the same conclusion. (R. v. Vickers(1): R. v. France and France(3): Redd(4)). 51. With some reluctance we cannot say that the jury might not have been so influenced. Further we cannot know what course the Applicant's Counsel at the trial would have taken as to the attack upon the character of Clarke had the offending parts of the Chief Inspector Thomson's evidence been excised. We cannot say with certainty what view the jury might have taken of the evidence as a whole had full directions been given to them. 52. In the event we do not think this to be a case in which we can apply the proviso. The application for leave to appeal is granted, the conviction quashed and the sentence set aside. Representation: Adrian Huggins Esq. instructed by John Ip & Co. for Appellant. Ian Lloyd Esq., Crown Counsel for Respondent. (1) [1972] Crim. L. Rev. 101 (2) [1962] 46 C.A.R. 456 at p.461 (3) [1979] Crim. L. Rev. 48 (4) [1924] 17 C.A.R. 36 |