The Queen v. Tse Cheuk Suen

CACC000469/1988

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Coram: Kempster, J.A., Penlington, J.A. & Mayo, J.

Date of hearing: 31 August 1989

Date of delivery of judgment: 31 August 1989

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J U D G M E N T

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Penlington, J. A., delivered the judgment of the Court:

1. This is an application for leave to appeal against a conviction by Deputy Judge Daniell and a jury on a charge of possession of a substantial quantity of dangerous drugs for the purpose of unlawful trafficking.

Conviction

2. The evidence upon which the Crown relied was substantially not in dispute. That evidence was that a party of police officers was approached by a Mr. Szeto, a witness who was not called and whose role in this trial nevertheless forms the grounds of appeal argued before us. They were approached in the street and as a result of what Mr. Szeto said to them they went to premises at Woosung Street, Kowloon where they entered a Room No. 5. They found a shoe box and a plastic bag which together contained a substantial quantity of heroin, 972 grammes, packed in numerous small bags. The room was at that stage unoccupied and the police officers then waited in another room nearby for the occupant of Room No. 5 to come. It is not in dispute that the Applicant did so, unlocked the door and went into the room. The police officers very shortly afterwards followed him and it was their evidence that he was at that stage sitting on a bed actually holding the box and packets of dangerous drugs which he put back in the box.

3. It was also part of the Crown's case that at the time of his arrest the accused made a statement in which he admitted that he was in possession of these drugs. He said that another man called Ka Fai had told him to rent the room and that Ka Fai was using him in effect as a heroin storekeeper, in exchange for a very small salary. This statement was disputed as not having been given freely and voluntarily but it was admitted after the usual voir dire and was for the consideration of the jury.

4. The Applicant gave evidence and said that he had rented Room No. 5 about a month before as a home for himself and his family but that because the door was damaged and the toilet was leaking he had never in fact gone into occupation. He had decided that he had got nothing for the rent which he had paid and he wanted to get it back from the landlord, Mr. Szeto. When arrested he was waiting for Mr. Szeto to come, so as to tell him that he wished to give up the tenancy and to have his money back. He denied any knowledge of the drugs.

5. There is no ground of appeal here that the summing-up of the trial judge was in any way defective but there are grounds on the basis of procedural irregularities.

6. It is firstly argued by Mr. McCoy that there was a failure to grant an adjournment on the application of the defence at the start of the trial because the landlord, Mr. Szeto, could not be found and his absence as a witness resulted in an injustice to the Defendant. It is also further argued that it was wrong for Crown Counsel to put certain allegations to the Defendant when he gave evidence, those allegations being based upon a signed statement which Mr. Szeto had made and which was available to the Crown. Such allegations should not have been made as the Crown had not called Mr. Szeto as a witness and was in no position to do so. However, we are satisfied no injustice was thereby occassioned as we shall explain.

7. As regards the first ground reliance is placed on  R. v. Cavanagh and Another, 1972, 1 W.L.R., 676. a Court of Appeal decision, where Geoffrey Lane, J. (as he then was), set out some of the relevant factors which a judge, faced with an application of this sort, should consider. He said at p.679:

"What considerations will affect the exercise of the court's discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witness's attendance within a reasonable time? Are the prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent witness have been likely to assist the defendant? If the absent witness can be procured, will other witnesses by then have become unavailable?"

We are satisfied here that the judge did make due enquiry as to the reasons why Mr. Szeto was not to be called as witness. We are satisfied that he came to the conclusion that all due diligence had been exercised by the police in trying to locate Mr. Szeto and that he was deliberately not making himself available. He was told by defence counsel that he wished to call Mr. Szeto but took the view that there was no reasonable prospect that, even if an adjournment of a month or six weeks was granted as requested, Mr. Szeto would riot be found so as to give evidence. Having read the transcript and the questions and answers given we do not consider that that was a decision in the exercise of the judge's discretion which we could find was wrong. Clearly considerable efforts had been made to locate Mr Szeto over a period of some months but without' any success.

8. We have also, however, at the Crown's invitation seen the statement made by Mr. Szeto, which the trial judge was not invited to read. In Cavanagh the statement was also placed before the. Court of Appeal and the Court took the view that the witness, on the basis of his statement, was not going to assist the defence and indeed-it was better off without him. Therefore there was no injustice. Here the trial judge based his decision on his finding that Szeto would not become available even if an adjournment was granted. We are also satisfied; having read his statement, that even if he had been available, as in Cavanagh his evidence would not-have assisted the Defendant but, on balance, would have been against him.

9. Mr Szeto in his statement said that the tenant, the Applicant, himself bought-a padlock for the room and kept the key, which the Applicant denied his evidence. It is true, as has been pointed out by Mr. McCoy, that he does not say that he gave the Applicant a rent receipt and a rent receipt was found in the room when the police arrived. However, taking the statement as a whole, we are satisfied that Mr. Szeto would not have been of any real assistance to the defence and may well have been damaging to it.

10. The history of the tenancy and the background was of some importance and indeed it was the Crown's case that these premises were not suitable for the Applicant to live in and were being used solely for the packaging of drugs, as was shown by the presence of the drugs, many empty plastic bags, a pair of scales and other such equipment. Essentially however the Crown's case depended on the credibility of the police officers. They said they went into the room and found the Applicant actually holding the drugs. That was coupled with his admission. It is true that, as has been pointed out to us, his fingerprints were not found on any of the bags. This was very clearly and fully, however, put to the jury by the trial judge who specifically invited them to consider that factor in assessing the credibility of the police evidence and that of the efendant. That was very much a matter for them. Clearly the jury were satisfied by the evidence given by the police officers and they did not accept the evidence given by the Defendant.

11. As to the second ground raised, the use of the witness statement by Crown Counsel when putting allegations to the applicant, these allegations did not result in any admission being made by the Applicant. He denied the allegations made and the jury, having been correctly directed, could not have found that to be evidence against him. This distinguishes the case from the decision in the R. v. MAK Yiu Ming, Mag. C. A. 207/1989, where suggestions made to a Defendant when he was giving evidence about a statement he had made, which was not part of the Crown's case, did result in admissions being made.

12. It is the duty of the Crown to put forward in its evidence all matters on which it relies as probative of the accused's guilt, R, v. Rice, 1963, 47, Cr. App. R. 79. Where allegations are made based on evidence not called but only as to credit, it is a matter for the judge's discretion as to whether they should be allowed: R. v. Kane, 1977, 65, Cr. App. R. 270. Here we do not consider that the trial judge was wrong in allowing the questions to be put as they were.

13. We are satisfied that there was no injustice resulting from either of the grounds of appeal raised so as to make the conviction unsafe and the application for, leave to appeal against conviction is refused.

Sentence

14. The Applicant also seeks leave to appeal against the sentence passed on him of eight years' imprisonment. Mr. McCoy suggested that this was beyond the normal tariff but having considered the guideline case on sentences for dangerous drugs offences R. v. CHAN Chi Ming, 1979, H.K.L.R. 491, we are satisfied that the tariff sentence for possession of this quantity, just under 1,000 grammes, five to eight years' imprisonment has not been exceeded. While the Applicant did have a clear record this was a conviction after trial and clearly the room in which he was found, and of which there was strong evidence he was the sole tenant, was being used for the packaging of No. 3 heroin on a substantial scale. As was submitted to the trial judge a long prison sentence will cause hardship to his family but as was said in CHAN Chi Ming, the courts must consider the appalling social consequences of this evil trade and those who take part in it for profit can expect to receive no mercy. The application for leave to appeal against sentence is refused.

Representation:

G.J.X. McCoy (Chan & Kong) for Applicant

G.J. Lugar-Mawson, S.A.C.P., for Crown/Respondent