R. v. Tang Siu-man

CACC000432/1996

IN THE COURT OF APPEAL

1996, No.432

(Criminal)

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Coram: Bokhary, J.A., P. Chan & Stuart-Moore, JJ.

Date of hearing: 28 January 1997

Date of judgment: 28 January 1997

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. On 9th July 1996, this applicant was convicted on two counts of trafficking in heroin hydrochloride following a trial in the High Court before Deputy Judge Jackson and a jury. On the following day he was sentenced to a total period of imprisonment amounting to 17 years. He now seeks leave to appeal against his convictions but has abandoned his application in relation to sentence.

2. The Grounds of Appeal are commendably brief and the applicant, who is unrepresented, has reduced his original grounds of complaint to what amount in reality to two major grounds of criticism. This appears to be set in a general context that the applicant believes that he was framed by police who were anxious to protect another man who they had at one stage arrested.

3. The first ground of appeal makes the sweeping statement that what the trial judge said to the jury was both wrong and unfair. We can dispense with that point immediately by saying that we have had the benefit of reading the learned judge's summing up which was clear, accurate and fair.

4. In the second point made by this applicant, he criticises both his own lawyer and the learned judge for having overlooked evidence given by Police Constable 200054, who was the first prosecution witness, which in one part of the proceedings contradicted evidence given in another. On the first day, there had been a voire dire and this witness later gave evidence before the jury in the trial. Whilst it is true that the summing up did not include a reference to every piece of evidence given in front of the jury, we are confident that the learned judge covered all material contradictions in the evidence of that police constable. We are also confident that Mr. Callaghan, who represented the applicant at the trial, cross-examined with great skill and left out nothing from his cross-examination that was important. If he chose not to rely on a minor discrepancy that had arisen from the evidence in the voire dire, the trial judge was not at liberty to make any reference to it when summing up to the jury.

5. The whole case was dependent upon the credibility of that police constable. From time to time he was the subject of severe criticism from the trial judge. When the jury was being reminded of the evidence he had given, they were told that despite the officer having been 18 years in the police force, he had conducted a search in circumstances that were "to put it mildly, unwise". The learned judge went on to express three possible ways of approaching that vital witness. All of them were unflattering. He said:

"... you may conclude that he is not very bright and did not know any better but that he is nonetheless truthful. You might conclude that he was untruthful or, members of the jury, you might conclude that he was essentially truthful in his recollection of events but shown in cross-examination to have been patently unreliable."

Later the learned judge described the police officer's procedure for recording notes on a scrap of paper that was later thrown away as "wholly unsatisfactory". That description equally applied to the evidence of this police constable to the effect that he had made no note of the alleged confessions at the scene until, as the judge pointed out "15 hours later when he wrote down his own witness statement". The jury was reminded also that the officer accepted that there were discrepancies between the witness statement he had made and his evidence in court. As the learned judge said:

"The witness ... somewhat disarmingly agreed that there were such discrepancies, but did not seek to offer an explanation".

6. Dealing with the evidence related to searches carried out in the course of this inquiry, the learned judge invited the jury to consider whether the failure of the police constable to seize certain property was:

"because the officer was inept, or that he was doing his incompetent best in a situation which he was not qualified to deal with? Or do you think, as Mr. Callaghan suggested, that these items were not seized because the defendant was never searched that night, and that PC 20054's account of the searches was or might have been a fabrication?"

The same police constable had also referred to finding seven packets of drugs, when in reality there were eight. The jury was reminded that he had said that this was "his mistake".

7. Numerous other contradictions, mistakes and the examples of incompetence were drawn to the jury's attention in a meticulous summing up that would have left the jury with a clear picture of all the material points made on behalf of the defence at the expense of that prosecution witness. The second point that the applicant makes must, like the first point, fail.

8. There is nothing material in the other matters raised by this applicant and we have no hesitation in dismissing his application for leave to appeal against these convictions. The applicant has abandoned his application relating to sentence and that is also dismissed.

Representation:

Ms. Denise Chan Fung Shan for the Respondent.

Applicant in person.