Tong Bing-lam and Others v. The Queen
Read the full judgment text of CACC 420/1971 on BabelCite. This Court of Appeal judgment was delivered on 24 December 1971.
2. The substance of the evidence for the Prosecution was that at 3.00 p.m. the police raided a flat in Portland Street, Kowloon. When they rang the bell there was at first no answer and they started to break down the door. Then the door was opened by the 6th Applicant, who was wearing pyjamas. Two cubicles in the flat were locked on the inside. The doors of both were broken in and in the first cubicle the police found the first four Applicants sitting in a semi-circle around a large quantity of
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CACC000420/1971 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 420 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Huggins and Leonard, JJ. Date of Judgment: 24 December 1971 ----------------- JUDGMENT ----------------- Huggins J.: This is an application for leave to appeal against convictions and sentences. The six Applicants were jointly charged, together with another Defendant, with unlawfully manufacturing dangerous drugs. The other Defendant was acquitted but these Applicants were all convicted and sentenced to ten years' imprisonment. The 2nd Applicant was further convicted of being a tenant who permitted his premises to be used for the unlawful manufacturing of dangerous drugs, for which he was sentenced to three years' imprisonment concurrent. 2. The substance of the evidence for the Prosecution was that at 3.00 p.m. the police raided a flat in Portland Street, Kowloon. When they rang the bell there was at first no answer and they started to break down the door. Then the door was opened by the 6th Applicant, who was wearing pyjamas. Two cubicles in the flat were locked on the inside. The doors of both were broken in and in the first cubicle the police found the first four Applicants sitting in a semi-circle around a large quantity of apparatus which appeared to contain chemicals. The 1st Applicant was holding a stirrer which had been placed in a bowl of dark fluid. Another bowl containing chemicals, which was on a stove, was hot. In the other cubicle were found the 5th Applicant and the Defendant who was acquitted. Also in this second cubicle was a quantity of chemicals. 3. Miss Ko, a Government Chemist, testified that she visited this flat and selected various pieces of apparatus, with the chemicals therein, to be sent to her for examination. These and some other items were in due course sent to her and she gave certificates indicating the presence of the drug morphine and several of its derivatives. Also present were chemicals necessary to produce the derivatives from the base morphine or morphine salt. Miss Ko gave it as her opinion that a process of manufacturing dangerous drugs was being carried on in the premises. One of the principal issues upon the appeal is whether the dangerous drug which was being manufactured was diacetylmorphine hydrochloride, the drug named in the indictment, and it will hereafter be necessary to consider Miss Ko's evidence in a little more detail. There was evidence that the 2nd Applicant was the tenant of the flat. Each Accused made statements to the police and these were put in evidence. 4. It was submitted to the jury on behalf of the Accused that Miss Ko's evidence was insufficient to establish that a process of manufacture had been carried on on these premises and that that could be established only by a chemical examination of all the apparatus found. Apart from that, each Accused made an unsworn statement from the dock. 5. The 1st Applicant said that he was merely a driver employed by two men, one named Chan and one named Tsui. He was not aware that two cars had been registered in his name. On the day of his arrest he had been told by Chan to drive a car to Portland Street and to bring the key to him at this flat. When he reached the flat the police were already there and he was arrested. It was, therefore, implicit in his evidence that the police did not find him already in the premises as they alleged. 6. The 2nd Applicant said he had been a coolie employed by the same two men. Tsui had told him that he was going to take a tenancy of the flat in his (the 2nd Applicant's) name to avoid tax. In January this year the 2nd Applicant had resigned and had tried to persuade the landlord to transfer the tenancy into Tsui's name but without success. His case was that when the police arrived he and the four others with him were found not in the cubicle but in the sitting-room and he asserted that he did not know the apparatus in the flat was for the manufacture of dangerous drugs. He, too, said that Chan and Tsui had left the premises about half an hour before the arrival of the police and that the 1st and 3rd Applicants came after the police had entered the flat. 7. The 3rd Applicant, like the 1st Applicant, said that he was merely a driver and that he came to the flat after the police. He had apparently been in the premises previously but according to him the doors to the cubicles had always been kept locked and he did not know what was inside. 8. The 4th Applicant alleged that he was a coolie employed by Chan and Tsui and that they had left the flat half an hour before the police arrived, after packing up all their personal belongings. He said that he and four others were found in the sitting-room and that the police broke into the cubicles. He supported the story of the 1st and 3rd Applicants that they came after the police and contended that he had had nothing to do with whatever his employers were doing in the premises. 9. The 5th Applicant said that he, too, was a coolie and had no knowledge as to the nature of the articles found, although he had helped to take things up the stairs. 10. The 6th Applicant admitted being in the premises but said that he had "never seen the articles inside the rooms in this flat". He had worked for Chan and Tsui for only one month and had had no chance to look into the rooms: he was employed "to carry articles up and down the staircase". He maintained that he had no knowledge what dangerous drugs were and that he had never seen any in his life, while, according to him, he answered the bell as soon as he heard it. 11. A number of points has been taken by counsel appearing on behalf of the 1st Applicant, the 3rd Applicant and the 4th Applicant but, having listened to very full arguments, we are satisfied that there are only three of them which have sufficient substance to require mention. 12. First it is complained that the learned Commissioner "did not explain or sufficiently explain the law as to sworn [sic] statements by the Accused in the course of the trial", The statements made by the Accused were as I have said, unsworn. Coupled with this first point is the further contention that the judge misdirected or confused the jury when he said that the unsworn statements were not evidence and omitted any reference to those statements when he divided up "the evidence" into five categories. That such an argument can be advanced is an unfortunate result of the historical development of the criminal trial in England and the British Colonies. It has been held by this Court that an accused person has as a matter of law a right to elect to make an unsworn statement (Reg. v. Tseng Ping-yee(1)), a right which we think is now both unnecessary and undesirable. Counsel relies strongly on Frost v. Reg.(2) and the commentary upon that case at 1964 Crim. L.R. 462. In that case the Commissioner did not read the accused's statement but he indicated to the jury that in his view an unsworn statement had no real value and was to be regarded merely as comment, almost analogous to a speech of counsel. It is clear that counsel at the present day may not state to the jury as alleged existing facts matters which are not going to be proved in a manner authorised by law. The whole purpose of an unsworn statement from the dock is to prove matters of existing fact. Therefore the analogy drawn by the Commissioner in that case was false and it is not surprising that the Court of Criminal Appeal held that the combination of the false analogy and the direction, without further explanation, that the unsworn statement was not evidence amounted to a misdirection. The commentator in the Criminal Law Review said:
Read in its context we do not dissent from that view: to a jury a bald direction that an unsworn statement is not evidence might well mislead them into thinking that they were not to consider the statement in arriving at their decision upon the facts. Whether or not a statement is "evidence" is a question of semantics and we do not think any useful purpose would be served by our trying to answer that doubtless very interesting question. We do not think it greatly matters which view one takes. It is not evidence of the same kind as sworn evidence. It is not even similar in kind to the unsworn testimony of a child of tender years, for even a child may be cross-examined. It is, however, something which the jury are bound to consider in deciding whether the guilt of the accused has been established and to which they can attach such weight as they think fit. In a case where an onus may rest upon the accused, as in the present case where the jury had to consider presumptions under the Dangerous Drugs Ordinance, this necessarily involves the jury's considering the statement not only in deciding whether the Prosecution have proved all that they have to prove but also whether the accused has discharged such onus as is upon him. So long as they understand that they have to consider the statement in this way we do not see that it matters in the least whether one calls it evidence or not. There is an obvious danger in saying that it is not evidence because the onus on the judge to make it clear to the jury that they must consider it becomes heavier. 13. What we now have to decide is whether in the present case the learned Commissioner did make it sufficiently clear to the jury that they had to consider the unsworn statements made by the Applicants. There is no doubt that while he did not read the statements in full he did give a very full summary of them so that the case immediately becomes distinguishable from Frost. Counsel objects that in the case of each Applicant the summary was given in the course of a comparison with previous cautioned statements made to the police by that Applicant, an exercise which was bound to be unfavourable to that Applicant. That is so, but a judge is not bound to put the defence in the most favourable light that is possible, provided only that he puts it clearly and fairly. Would any objection have been taken to this method of introducing the unsworn statements from the dock had they tended to substantiate the previous uncautioned statements? We think not. 14. It is then said that the jury might have understood that the unsworn statements from the dock were to be regarded only as matter to be considered against the Accused and not in their favour. This argument is based in part upon the comparisons to which I have just referred and in part to two other matters. First, counsel cites a passage in the summing-up where the learned Commissioner explained that an unsworn statement, like a cautioned statement to the police, was evidence against the maker but not against his co-accused. Secondly, he relies upon the omission of the statements from the five categories of evidence. If there had been no other indication of the duty of the jury in relation to these statements we would have agreed entirely that the jury might have been misled, but in our view the jury can have been left in no doubt as to the true position. Having pointed out that the Accused had not given evidence on oath the learned Commissioner continued:
That seems to us an impeccable direction and reading the summing-up as a whole we think that nothing else that the learned Commissioner said materially detracted from that direction. 15. The only other matter argued on behalf of these three Applicants to which we think it necessary to refer is the complaint that the Government Chemist was asked, and allowed to answer, a question which was in effect one of the questions which the jury were called upon to decide and that the learned Commissione gave a direction to the jury which might have led them to believe that the witness had decided the question for them. The judge told the jury:
It is, in substance, the inclusion of the words "as an expert witness" to which counsel objects. The first thing to observe is that counsel for the Crown was proved to have been justified in seeking from the witness an explanation of her reason for having examined only selected items, because a very strenuous attack was subsequently made upon her and upon her evidence by reason of her selective approach to her task: not only was it suggested that she had shown professional incompetence but also that she had committed deliberate perjury. We need to concern ourselves only with the former suggestion here. The witness was concerned to ascertain whether the manufacture of dangerous drugs had been carried out. The defence expert said that she would have examined "everything .... every relevant item" but agreed that this was not perhaps strictly necessary if one had adequate evidence. She said that she would have examined a number of other items in particular and that she was not satisfied that the process being carried on when the police arrived was the manufacture of dangerous drugs, although she agreed that the manufacture of dangerous drugs had taken place in those premises. The submission which has been made seems to us to involve too limited a view of the expert's function. Where his opinion must necessarily be based upon a finding of more than one symptom part of his expertise lies in knowing what symptoms to look for and how many such symptoms need to be present to justify the opinion formed. Mr. Bernacchi is entirely right when he reminds us of the danger, inherent in most forms of scientific enquiry, of being too easily satisfied that a proconceived theory has been proved when in fact insufficient data are available. Everyone engaged in the present case in the court below must have been conscious of this difficulty because of the conflicting opinions expressed by the two experts. We say they were "conflicting" although in truth the area of disagreement was not great. Dr. Robinson confessed to the admirable vice of pedantry and further said that she did not regard pressure of work as a material factor in deciding what to examine. She counselled perfection and it was for the jury to decide, having heard her opinion, whether they were satisfied that Miss Ko's opinion was based upon adequate information. The problem may, perhaps, be more clearly understood by reference to a kind of expert evidence more frequently given in these courts - fingerprint evidence. The general opinion among the experts appears to be that 16 points of similarity are sufficient to prove that two prints were made by the same person: that is part of the evidence which has to be given and it is for the jury to decide whether they accept the evidence. An expert who sought perfection would not stop at 16 points of similarity but would go on until he had noted all the visible points of similarity. This would doubtless enable him to advance his opinion with the knowledge that increasingly remote possibilities of error had been eliminated, while the average practitioner would be content to base his opinion upon the elimination of reasonable doubts and not fanciful doubts. 16. In the present case we think it was open to Miss Ko, as an expert witness, to decide what it was necessary for her to examine to enable her to form an opinion on the question whether the manufacture of dangerous drugs was being, or recently had been, carried on in these premises. The jury were not bound to accept her opinion and if the evidence of Dr. Robinson had left them in any doubt they could have acquitted the Applicants. For these reasons the complaint made of the summing-up is unjustified. 17. The only point which has been argued on behalf of the 2nd, 5th and 6th Applicants has given us more anxiety. It is contended that there was no evidence that the drug being manufactured was diacetylmorphine hydrochloride or that it was a salt of an ester of morphine and that the learned Commissioner failed adequately to leave to the jury the question whether it was diacetylmorphine hydrochloride. It must be conceded that the expert evidence was not as clear as it might have been and an interruption by the learned judge during the evidence of Miss Ko indicates that he was worried lest the jury be confused by irrelevant evidence. The task of counsel for these Applicants has not been made any easier by reason of an unfortunate error which has now been discovered in the transcription of the shorthand notes of evidence, an error which appears more than once. It is, we think, now common ground that there was evidence that diacetylmorphine hydrochloride is a salt of an ester of morphine. The main difficulty, however, has arisen from the use of the terms diamorphine and diacetylmorphine. There seems to be some indication that these terms are synonymous but at no point was this expressly stated. Counsel for the Crown in the court below must have assumed that they were synenymous because he asked his witness to explain "how the finished substance, diamorphine, or commonly known as heroin .... is manufactured". The transcript then reads:
The first answer must be wrongly recorded because there can be no possible doubt that what is described is a process of manufacturing some substance from morphine or a salt of morphine, which is subsequently described as "the starting material": the first "or" in this answer should read "from". Again, it seems beyond doubt that, although diamorphine hydrochloride and diacetylmorphine hydrochloride may be the same, diamorphine and discetylmorphine hydrochloride cannot possibly be the same: the final step in the manufacture described is, indeed, the addition of hydrochloric acid to produce a salt. Accordingly the second answer should appear as
Only one process is described and it would seem to follow from this answer that the product of the process may be called either diamorphine hydrochloride or diacetylmorphine hydrochloride. The third answer said that the product may also be called, in layman's language, "heroin". At various states in her evidence the witness was asked what was the meaning of heroin. One reply was that heroin was a layman's term "only for diacetylmorphine hydrochloride, but a salt of an ester of morphine is a general term for including diamorphine hydrochloride". (The use of diacetylmorphine hydrochloride and diamorphine hydrochloride in the same answer right suggest a distinction between the two.) Another reply was: "Heroin is the layman's term for diacetylmorphine only" but when the "only" was questioned she replied "heroin is the layman's term for diamorphine or diamorphine salt only, not for monoacetylmorphine". Monoacetylmorphine was there expressly mentioned because she had previously said that there were two esters of morphine, namely diamorphine and monoacetylmorphine, and two salts of an ester of morphine, namely diamorphine hydrochloride and monoacetylmorphine hydrochloride. At another point the witness said that diacetylmorphine hydrochloride is also a salt of an ester of morphine and it follows that either there are in fact three salts of an ester of morphine or that, diamorphine hydrochloride and diacetylmorphine hydrochloride being the same thing, the witness was right when she said there were only two. The witness further said that she formed the opinion that the manufacturing of dangerous drugs had been going on in the premises and that she found "the product, namely diamorphine or diacetylmorphine" was also present. The conclusion which we draw from all this and diacetylmorphine are the same thing and, as a corollary, that diamorphine hydrochloride and diacetylmorphine hydrochloride are the same thing. In our view the evidence supports such a conclusion, but the real issue is whether the learned Commissioner sufficiently directed the jury upon this evidence. 18. The indictment alleged not merely the manufacture of a dangerous drug and not merely the manufacture of a dangerous drug, to wit a salt of an ester of morphine, but the manufacture of a dangerous drug, to wit that salt of an ester of morphine known as diacetylmorphine hydrochloride. Having assumed the burden of proving these particulars it was for the Crown to discharge that burden and if the burden was not discharged in its entirety the Applicants were entitled to an acquittal. This seems to us a basic principle of the criminal law and we obtain no assistance from the cases cited to us where reference has been made to an attempt on appeal to support a general verdict of guilty upon the basis of a presumption which was not relied upon in the court of first instance. It is open to the prosecutor to ask leave to amend the particulars but this is not a case, as was faintly suggested, where we can substitute a verdict of guilty of some other offence by virtue of s.81(5)(b) of the Criminal Procedure Ordinance. The learned Commissioner told the jury:
The words "diacetylmorphine hydrochloride which is a salt of an ester of morphine" were obviously a quotation from the indictment although no inverted commas have been included in the transcript. The substance which the Commissioner was saying, as a matter of law, was a dangerous drug was "a salt of an ester of morphine", for that is included in para. 3 of the First Schedule to the Ordinance. It was for the jury to find whether the Applicants had manufactured diacetylmorphine hydrochloride and whether diacetylmorphine hydrochloride was a salt of an ester of morphine. No direction as to this was given beyond the general direction that the onus was upon the Prosecution to prove the guilt of the Accused beyond reasonable doubt. We cannot agree that the words cited from the summing-up can reasonably have led the jury into thinking that they were being directed as a matter of law that diacetylmorphine hydrochloride was a salt of an ester of morphine and was therefore a dangerous drug. The defence had been presented on the basis that the failure to examine everything found in the premises made it unsafe to conclude that dangerous drugs were being manufactured and that the microscopic amounts found about the persons of the Accused were explicable by their presence in a contaminated atmosphere. In his closing address counsel who appeared for all the Accused in the court below did not suggest that even if there were evidence of the manufacture of a drug it was not the drug indentified in the indictment and this may have led the learned Commissioner to think that while there was not, of course, any admission nevertheless no real dispute existed upon the point. He himself had doubtless come to the conclusion that diamorphine hydrochloride and diacetylmorphine hydrochloride were one and the same thing and that the evidence as to the identity of the drugs found was so overwhelming as not to require more detailed mention. We have every sympathy with him and it is with all deference and the benefit of hind sight that we say we think it would have been better, in view of the confusing state of the evidence, had he expressly told the jury that they must be satisfied the drug found was the particular drug named in the indictment, i.e. "diacetylmorphine hydrochloride which is a salt of an ester of morphine". However, the evidence was indeed overwhelming and we are satisfied that there has been no miscarriage of justice. 19. We see no reason to interfere with the sentences which were imposed on any of the Applicants. For these reasons the applications of all the Applicants are dismissed. Representation: Judgment read out. B. Bernacchi, Q.C., L.Leung (S.C. MOK) for 1st., 3rd., and 4th. appellants. H. Litton, Q.C., Sakhrani (Ngan and Wong) for 2nd. 5th. and 6th. appellants. (1) 1969 H.K.L.R. 304 (2) (1964) 48 Cr. App. R. 284 |