The Queen v. Lam Ching Ko

CACC000462/1990

BETWEEN

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Coram: Fuad, V.-P. Power and Penlington, JJ.A.

Date of hearing: 8 October 1991

Date of judgment: 1 November 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the majority of the Court):

1. The applicant, Lam Ching Ko, was tried in the High Court (Deputy Judge Perrior and a jury) on an indictment charging him with the possession of a large quantity of dangerous drugs for the purpose of unlawful trafficking. He was convicted by a majority verdict of 6:1 on 31st August 1990 and sentenced on the same day to 12 years' imprisonment. He now seeks leave to appeal against his conviction.

2. The case for the prosecution was that on 15th November 1989 a party of police officers, in plain clothes, forced their way into premises on the 7th floor of a building in Ngau Tau Kok Road. All four cubicles in the premises were locked. The police team waited for about 2 hours until the applicant arrived and, using a key, entered the flat. A key on the key ring used by the applicant to get in to the flat fitted the door of cubicle A, one of the four cubicles. The dangerous drugs which were the subject of the indictment were found in that cubicle.

3. Although the Senior Inspector in charge of the Police team could not recall this, the junior police officers present testified that the applicant had admitted that the drugs were his. The applicant denied having said this or knowing anything about the drugs. He also denied that he had told the police how they could open one of the two brief cases found in the cubicle. The applicant's case also was that he went to the flat as a favour for his friend Ah Fung and to perform an errand for him.

4. Ah Fung's real name is Chung Kam Fung and he was called as PW3 to give evidence for the prosecution. The transcript shows that he was a reluctant witness indeed. From the way counsel for the prosecution questioned him, it is perfectly clear that he did not come up to his proof but an application for him to be treated as a hostile witness failed.

5. After some abortive questioning, in examination in chief, he said that he recalled renting a flat on the 7th floor of a building in Ngau Tau Kok Road. He had slept there only one night. He had been told not to sleep there any longer by someone who had been introduced to him by "Lok Chai". The nickname of that man was "Ko Fei". He did not know his real name. He had seen Ko Fei "less than 10 times altogether" but he would find it diffcult to recognise him. Clearly prosecuting counsel was expecting him to identify the applicant as Ko Fei but he did not.

6. It was put to the witness in cross-examination that he had sent the applicant to the flat in question to collect a brief case containing clothes and he denied this. In re-examination he said that he had met the applicant a few days after he had rented the room at a video games centre. They had then gone to a restaurant to have tea together where they have had a "very ordinary conversation".

7. In the circumstances, perhaps it is not surprising that counsel for the Crown did not mention, or in any way seek to rely upon, the evidence given by Chung Kam Fung (PW3) in his closing address to the jury. However, at pp.10-11 of the summing-up occurs the following passage:

8. This passage suggests that the jury could rely upon Chung's evidence "in a manner adverse to the defendant and that Chung's evidence could, if accepted, be "sufficient to found a conviction".

9. It is not clear what evidence the learned deputy judge had in mind when addressing the jury on this point, but the majority of this court feels that the jury would have been confused by what the judge said about Chung. We are satisfied that the jury should have been told to ignore Chung's evidence entirely as in any way supporting the case for the prosecution, and we think that the judge's treatment amounted to a serious misdirection which would not permit the employment of the proviso to sustain the conviction.

10. We would therefore allow the application, treat the hearing of the application as the hearing of the appeal, quash the conviction and set aside the sentence.

Penlington, J.A.:

11. I entirely agree that the words quoted by Fuad, V.P., from the summing-up were unfortunate and quite unnecessary. There was clearly no evidence from Chung Kam Fung which could in any way be "relied on in a manner adverse to the defendant" let alone to convict him but the jury must have been well aware of that. The warning given by the trial judge was simply a standard one if there is any possibility that a witness was an accomplice. It was clearly not required here but I do not consider it posed any danger of the jury thinking that they were being told by the judge that Chung's evidence was adverse to the applicant or could be relied on to convict him. Clearly it could not. They had been told in express terms to reach a verdict only on the evidence and any comment made by the judge was not evidence. They must be assumed to have complied with that direction. In any event the judge told the jury in clear terms that in his opinion Chung's evidence did not take the matter any further, one way or the other. That was perfectly right and I do not consider that the jury could have been misled by the surplus words which followed.

12. I would dismiss the application.

Representation:

Applicant in person

Mr. D.G. Saw (Crown Prosecutor) for the Crown