Wu Man-choi v. The Queen

CACC000371/1978

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 15 March 1979

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JUDGMENT

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Huggins, J.A.:

1. Basically this was a very simple case, albeit that the indictment was for possession of dangerous drugs for the purpose of unlawful trafficking. There was, however, one slight complication in that a witness called by the Crown did not come up to proof and an application was made to treat her as hostile.

2. The facts alleged by the Crown were within a very small compass. The police raided a flat: there were four officers in the raiding party - an inspector, a woman police sergeant and two detective police constables: they rang the bell and the wooden door was opened by the Appellant: there was, however, a locked grille outside the door: on learning who the visitors were the Appellant shut the wooden door and did not reappear for some three minutes: during that time a noise was heard outside, as though something had fallen: the Appellant then returned with a key to the grille and the police were admitted: the only other person in the flat was a girl, Miss To Wan-lin: on a roof or an awning some floors below the police saw two packets: the Appellant was hand-cuffed and taken downstairs: the packets were recovered and were eventually found to contain dangerous drugs: the Appellant was taken back to the flat and Detective Police Constable Li Wing-kit started to take a statement from him: the other constable then returned with a photographer and finger-print expert and D.P.C. Li took the Appellant into the bedroom to complete the taking of the statement: they were alone and no pressure of any kind was put upon the Appellant: the statement was to the effect that the drugs were his and had nothing to do with Miss To.

3. It is submitted that the learned judge twice failed to give a proper direction as to the evidence concerning the events in the flat, once when he was directing himself prior to his ruling on the admissibility of the Appellant's confession and once when he was directing the jury upon the same matters. We deal with this contention first because if the confession was wrongly admitted the conviction could not stand even if the judge's summing-up were impeccable. The confession was objected to because it was said to have been obtained from the Appellant by a two-fold inducement offered by D.P.C. Li in the bedroom. As the defence case was that Miss To was present in the bedroom and heard the inducement offered, it was material to decide whether Miss To was in truth in the bedroom at the time or whether, as the Crown alleged, she was then in the sitting-room. In his ruling the learned judge mentioned the evidence of D.P.C. Li, that of Woman Sergeant Cheung Oi-ping and that of Inspector Chan Yu-sang (which last he thought did not assist him) and, on the other side, that of the Appellant and Miss To. He did not mention the police photographer (Mr. Au Hing) or D.P.C. So Kwai-on. This omission was not an oversight because in his charge to the jury, the Appellant not having given evidence, the judge said:

"So, the effect of my direction is to tell you to regard Miss To's evidence as unreliable and that you cannot act on the previous statements which are attributed to her. So, when you come to consider the evidence relating to the statement you, in effect, have the evidence only of Detective Constable 6349 and the woman sergeant."

Here Mr. Au and D.P.C. So are again ignored. Mr. Jackson-Lipkin contends that the evidence of these two witnesses was in truth most material and that even Inspector Chan's evidence was material, although he could not speak directly to the taking of the statement, because his evidence on other matters conflicted with that of D.P.C. Li and cast doubt upon the credibility of the constable. Mr. Au said he was not aware of the presence of Miss To in the living-room while he was taking his photographs, that being by general consent the time at which the statement was taken from the Appellant in the bedroom, and as there was evidence that Miss To and the woman sergeant had to move to a position next to the photographer for him to take one of his pictures in the sitting room it is said to be inconceivable that he would not have noticed Miss To had she been there and not in the bedroom. That was a point legitimately urged in the court below, but we would be surprised if the judge or the jury attached much weight to it. The photographer was there for one purpose only and no one is likely to be impressed by the fact that he was not conscious of the presence of Miss To. The judge obviously thought that Mr. Au's evidence was of no help either way and he was entitled to take that view. When he came to sum up to the jury, he warned them that they should consider all the evidence, whether he mentioned it or not. Counsel had referred to Mr. Au and to D.P.C. So and, if the jury had thought that their evidence was significant, it is unlikely that they would be misled by the judge's use of the word "only". They were well aware of the issue to which this evidence related. D.P.C. So may at first sight appear more important and it is to be regretted that he was not mentioned. Nevertheless he contradicted himself as to where the Appellant was when he (D.P.C. So) returned to the flat from searching downstairs and the judge may have thought him unworthy of mention in relation to the location of persons inside the flat. The constable, So, said that on his return he "saw [the Appellant] in the living-room" but qualified that by saying "I can't remember where he was exactly, but it seems to me that he was sitting in the living-room". When then asked where Miss To was upon his return, he answered: "I think the female was together with the accused sitting inside the bedroom". Later he said: "the accused and the woman were not all the time in the bedroom. Sometimes they were in the bedroom and at other times they were outside in the living-room" - a fact which has never been in dispute but which hardly assisted anyone to decide whether Miss To was in the bedroom when the statement was taken. It is also fairly pointed out by Mr. Lunn for the Crown that, like the photographer, Constable So appears to have had a specific duty, namely that of collecting exhibits and supervising the taking of photographs: he was not directly concerned with Miss To or the Appellant. The glossing over of Inspector Chan's evidence is challenged on the ground that while not going directly to the whereabouts of Miss To at the relevant time it had a material bearing upon the credibility of Constable Li. Indeed, it is contended that there was such inconsistency between the inspector and the constable as to what passed between them prior to the taking of the confession statement that the constable's evidence concerning the taking of the statement had suspicion cast upon it. We do not find in their evidence such inconsistency as rendered the testimony of the inspector material to the issue of admissibility of the confession and we think the judge was not obliged to mention it. The result is that we are not satisfied that the judge was wrong to admit the Appellant's confession in evidence.

4. When directing the jury, the learned judge told them to disregard the evidence of the girl, Miss To. She had been declared hostile and the basis of the application to treat her as such was that she had made two statements to the police which were inconsistent with the evidence which she gave in court. The judge found that she was hostile, allowed her to be cross-examined and directed the jury that they should disregard her evidence and must not act upon the previous statements. The basis of the objections which have been made to his treatment of this witness's evidence is that she asserted that her previous statements were obtained from her by coercion. In effect three points are taken:

The witness did in fact give detailed evidence as to the alleged coercion, but most of it came after the judge's ruling and there was no evidence given on the other side as to the manner in which her statements had been taken. However, as it seem to us, the substance of the matter lies in the third objection. Although it was suggested that the statements were not the witness's statements, they clearly were: she signed them knowing full well what they said and thereby intending to make them her statements. The inconsistency is not disputed, but mere inconsistency, while a material factor in deciding whether a witness is hostile, is not the only factor. The learned judge's reasons for his ruling suggest that he thought that once a previous inconsistent statement was shown, the witness must necessarily be treated as hostile. A passage in Fraser (1956) 40 Cr. App. R. 160, which is cited in full in Archbold (39th ed.) 282 (521) appears to support such a view:

"If counsel had in his possession that statement to which I have referred, it was his duty at once to show the statement to the judge and ask the judge's leave to cross-examine the witness whom he had called as hostile to the prosecution, as of course he was when, after identifying the persons who attacked him and describing what they did, he went into the witness-box and told what appeared to be a pack of lies with regard to identification."

Fraser was not concerned with a statement which was alleged not to be voluntary and in our view the present case is distinguishable. Accordingly, although the judge will normally direct the jury that the effect of a witness's being shown to have made a previous inconsistent statement is to render his testimony negligible (Harris (1927) 20 Cr. App. R. 144) there may be exceptions. Indeed, the better view seems to be that the evidence of a hostile witness always remains evidence in the case which the jury are bound to take into consideration if they are satisfied that it is credible. Thus in Reg. v Thomson (1977) 64 Cr. App. R. 96 a witness was declared hostile and cross-examined by counsel for the Crown when, upon being called, she initially refused to give evidence at all. If, as a rule of law, her evidence could have had no weight, it would have been pointless to cross-examine her. If the inconsistency is explicable on the ground that the previous statement is said (i) to be untrue and (ii) to have been made in circumstances under which an untrue statement might have been made, the credibility of the witness is not necessarily destroyed. A enquiry therefore becomes necessary and it is an enquiry which ought to be conducted in the absence of the jury, because if the inconsistent statement is shown to have been the result of coercion the jury ought not to be made aware of its existence. However, where an enquiry is conducted in the presence of the jury and the witness is found by the judge to be hostile on the basis of an inconsistent statement, no real harm will have been done and the fact that the enquiry had not been held in the absence of the jury would not be justification for allowing an appeal. In the present case the learned judge conducted such inquiry as there was into the hostility of the witness in the presence of the jury, but that inquiry did not include a consideration of the allegation of coercion. The questions still remain here whether there was sufficient evidence upon which the judge could find the witness to be hostile and, if so, whether he based his ruling upon that evidence. Unfortunately the judge made no reference to the demeanour of the witness, for there may be cases where the whole attitude of the witness is manifestly hostile. Reg. v Thomson (supra) was just such a case. So far as we are aware the only reason for treating Miss To as hostile was that she had made the previous inconsistent statements. That would have been a sufficient reason if the judge was satisfied that the previous statements had been voluntary, but not otherwise. He not only made no finding as to that, but also gave no indication that he thought such a finding material. Nor could it be suggested that his subsequent charge to the jury removed any damage that had been done, because he did not leave it open to them to attach any weight to the evidence of the witness as to the events in the flat, even if they believed her story that the previous inconsistent statements had been obtained from her by coercion. We think the judge was wrong to direct the jury to disregard her evidence.

5. We turn now to the principal objection taken to the summing-up, namely that relating to directions concerning what had to be proved. It is to be observed that the judge made no reference at all to the presumption as to possession under s. 49(1) but in effect directed the jury that it was open to them to infer possession from the evidence. Yet he did not indicate to them what parts of the evidence might justify such an inference. We have said before that where facts which would give rise to a presumption are established that presumption operates whether it is mentioned or not. Usually, therefore, it is desirable where a presumption could arise that the judge should direct the jury as to the presumption, even though there may be evidence from which the fact which may be presumed could be inferred, and to sum up the evidence from which the fact may be inferred. In the present case no presumption could arise under s. 47(1)(c) or (d) because the drugs were not found in the flat, but, if the jury were satisfied (as they must have been) that the Appellant had the two packages in his custody or under his control, then a presumption arose under para. (a). However, the only evidence by which that presumption could be established was the very evidence from which possession could be inferred, namely the shutting of the door in the face of the police, the delay in admitting them, the noise of something falling outside the window, the finding of the packages of drugs and the Appellant's confession statement. The failure to mention this presumption was therefore not so material as the failure to indicate clearly the evidence from which knowledge might properly be inferred and it has therefore been submitted that the entirety of the directions as to what the prosecution had to prove was so confused that the verdict was unsafe.

6. In his general directions at the beginning of his summing-up the learned judge said (p. 219):

"Now in a normal criminal trial, it is not for an accused person to have to prove anything but it is for the Crown to prove the guilt of an accused, to satisfy you beyond reasonable doubt to the extent that you are sure of the guilt of the accused. As I mentioned before, there is a general rule of law that a person cannot be in possession of something, the nature of which he does not know, thus in a normal criminal trial, the Crown would have to prove to your satisfaction to the extent that you are sure that the accused knew that the drugs, if you found he had drugs in his possession, knew that they were dangerous drugs. That would be in a normal criminal trial. Now in most cases it is difficult to prove by positive evidence what a man knows or intends to do because it is difficult to prove the state of a man's mind. For this reason, in a criminal trial relating to dangerous drugs, some principles of the general law relating to the onus of proof on the Crown are relaxed."

Although it is arguable that this passage contains no palpable error, its general tenor was such as might well mislead the jury. An error does appear at p. 221 where the learned judge said:

"In a normal case an accused person is presumed to be innocent but in cases involving dangerous drugs, the position is reversed in certain circumstances."

The Full Court in Chan Siu-shing v Reg. 1974 H.K.L.R. 493 and this court in Lam Wai-ming v Reg. Cr. App. 1977 No. 981 have emphasized that in a dangerous drugs case no less than in any other criminal case the onus of proving the guilt of the accused is always upon the Crown. Even to tell a jury that that is the onus on the Crown in "a normal criminal trial" and to hint that a trial relating to a dangerous drugs offence is not "a normal criminal trial" might possibly give the impression that in a trial for a dangerous drugs offence the onus is on the accused to prove his innocence.

7. At p. 225 of the record the learned judge said:

"The Crown do not have to prove to you that [the Appellant] knew [the parcels] contained dangerous drugs, but that it is the Crown's case that he knew they contained dangerous drugs". (sic)

Had the judge told the jury about the presumption under s. 47(1)(a) that might have been correct, although we think a judge should always avoid saying that a fact which may be presumed does not have to be proved, in case the presumption is rebutted: thus it may be possible to prove possession of drugs found in a receptacle although the presumption of possession has been displaced by proof that the defendant, although aware of his possession, did not know that the drugs had been placed in that receptacle. Since the judge here had not mentioned this presumption, it was clearly wrong to say that the Crown did not have to prove that the Appellant knew the parcels contained dangerous drugs: without such knowledge the Appellant could not have been in possession at all and only when possession was proved or presumed could the other presumptions arise.

8. In dealing generally with the presumptions the judge said at p. 219:

"A legal presumption is a provision which, if it applies, does away with the need for proof".

The need for proof of what? The judge was in fact indicating that particular ingredients of an offence may not have to be proved if they are to be presumed, and standing by itself the direction is unobjectionable, but when read with the earlier direction which may have given the impression that the onus was on the accused to prove his innocence it became less innocuous.

9. At p. 221 appears this passage:

"Once the Crown has satisfied you beyond reasonable doubt that the accused was knowingly in possession of those two parcels in which those fifteen small packets were found, then that is all the Crown has to prove. The presumptions I have mentioned to you then apply and it is for the accused to prove to your satisfaction on the balance of probabilities which I shall explain to you in a moment that he did not know the nature of the drugs, that he did not have them in his possession for the purposes of trafficking".

The punctuation of this passage by the shorthand writer may, perhaps, be questioned, for no doubt what the learned judge meant was that possession of the two parcels was all that had to be proved in order that the presumptions should arise. However, what had to be proved (having regard to the absence of any direction as to the presumption under s. 47(1)(a)) in order that the presumptions under s. 46 and s. 47(3) should apply was not that the accused was "knowingly in possession of those two parcels" but that he was in possession of the dangerous drugs inside the two parcels, which was not the same thing: the latter quotation involved that the accused be shown to have known what was in the parcels, whilst the former did not. Again, on p. 221 the learned judge said:

"Once the Crown has established to your satisfaction that those two parcels you have seen and heard about contained dangerous drugs, and if you are satisfied by the Government chemist's certificate that they were dangerous drugs, if you are satisfied beyond reasonable doubt that they were on the day, on the 17th of September of last year, knowingly in the possession of the accused then the presumption lies on him to prove to you on the balance of probabilities that he did not know that they were dangerous drugs, that he did not have them for the purposes of trafficking." (sic)

Here there is, first, a manifest contradiction, for, if the Crown was able to prove to the satisfaction of the jury beyond all reasonable doubt that the accused was "knowingly in possession" of these two parcels and of the dangerous drugs inside them, there could be no question of the accused's proving on a balance of probabilities "that he did not know they were dangerous drugs". The confusion is between knowledge that the parcels contained dangerous drugs and knowledge of the nature of those dangerous drugs. In truth what the accused would have to prove by virtue of s. 47(3) was that he did not know the nature of the dangerous drugs.

10. Secondly, there was an association of the presumptions under s. 46 and s. 47(3) which later assumed greater importance. Thus, on p. 222 the judge said:

"To put it in another way, is it more probable than not that he did not know the nature of the drugs, that he did not have them for the purposes of trafficking? If the accused, on what has been said on his behalf by his counsel relating to the evidence at large, has managed to persuade you that it is more likely than not that he did not know the nature of the drugs, that he did not have them for trafficking, then he must be acquitted."

As it appears on paper that passage twice suggests that the accused must rebut both presumptions to escape conviction and that the rebuttal of only one of them would be insufficient. Nevertheless, had this passage and a similar passage on p. 226 stood alone, we could not have been persuaded that there was any error, because they can easily be read in such a manner as to leave no doubt that a disjunction was intended and we would assume that that was how they were spoken by the judge. But the passage cited from p. 221 contains the conjunction "and", and it is argued that this coloured the subsequent passages. That argument has a superficial attraction, but it must now be pointed out that the judge had previously read the relevant parts of s. 46 and s. 47(3), in such a way as to make it clear that they raised separate and distinct presumptions. When the summing-up is taken as a whole we think this second point has no substance.

11. The validity of the first point - the confusion between knowledge that the parcels contain dangerous drugs and knowledge of the nature of those dangerous drugs - still remains and if there is any possibility that the jury may, if properly directed as to proof of possession of the dangerous drugs, have returned a different verdict, the appeal must be allowed on this ground alone. It seems to us that if the jury, upon a proper direction, had rejected the possibility that the parcel came from a source other than the Appellant's flat and the possibility that the Appellant did not have custody or control of the parcels, either alone or jointly with Miss To, the Appellant could never have begun to rebut the presumption of possession of the dangerous drugs inside the parcels. The absence of a proper direction as to possession of the dangerous drugs could not then have caused a miscarriage of justice. Objection is taken to one further passage in the summing-up (at p. 222) where the judge deals with the onus of rebutting the presumption:

"If an accused, in respect of these matters, can tip the scale fractionally in his favour, then that is sufficient. He has discharged the onus of proof upon him. If the scale remains tilted against him, even fractionally, then he has not discharged the onus of proof, and if the scales were in your mind to remain exactly level, in that case also he would not have discharged the onus of proof."

We see no justification for complaint here: unless the scales are tilted in favour of the accused, be it ever so slightly, the onus of rebutting the presumption is not discharged. There is, of course, no room for suggesting that this is yet another passage which may have led the jury to think that the Appellant had an onus to discharge in respect of the general issue of guilt.

12. The other points made on behalf of the Appellant do not, in our view, merit consideration in this judgment: there was no substance in any of them.

13. On behalf of the Crown Mr. Lunn submits that any errors or inadequacies in the summing-up were insufficient to render the verdict unsafe and unsatisfactory. We have reluctantly come to the conclusion that the combination of the direction to disregard the evidence of Miss To and the confused directions relating to the matters to be proved and the manner in which they had to be proved were such as to invalidate the verdict. Nevertheless, subject to anything counsel may have to say, we would order a new trial.

15th March 1979.

Representation:

Jackson-Lipkin, Q.C. & Bleach (Haldane & Co.) for Appellant.

Lunn for Crown/Respondent.