Lau Ying-wah and Another v. The Queen

CACC000484/1979

[Interventions by trial judge.]

Coram: Roberts, C.J., Leonard & Li, JJ.

Date of Judgment: 21 December 1979

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JUDGMENT

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Introduction

1. LAU Ying-wah and TSE Man-fai were charged on four counts under the Dangerous Drugs Ordinance. To the first of these LAU Ying-wah, the first defendant, pleaded guilty and was sentenced to four years' imprisonment. On the second count, LAU Ying-wah was charged with possession of a dangerous drug for the purpose of unlawful trafficking. The particulars of the offence were that on the 1st October, 1978, in Flat No.3 on the 3rd floor of 11 Cheung Wong Road in Mongkok, he had in his possession 9 grammes of a mixture containing salts of esters of morphine for the purpose of unlawful trafficking. He was acquitted of this count at the end of the trial.

2. The second defendant, TSE Man-fai, was charged with possession for the purpose of unlawful trafficking of 8.408 kilogrammes of a mixture containing salts of esters of morphine at the same time and in the same premises as the second count.

3. On the fourth count, TSE Man-fai was charged with possession for the purpose of unlawful trafficking of 36.105 kilogrammes of raw opium, at the same time and on the same premises.

4. The second defendant was convicted on the third and fourth counts.

Facts

5. The first defendant was arrested at a restaurant in Kowloon on the 1st October, 1978, by a party of police who were waiting in the restaurant, no doubt on the basis of information about trafficking in dangerous drugs which they had received.

6. After his arrest, the first defendant was taken by police officers to the premises in Mongkok which are mentioned in the particulars of counts 2, 3 and 4.

7. There was some dispute in the evidence as to whether or not the police had already effected an entry into the premises before the second defendant arrived there. In any event, the police entered the premises, searched them and found the quantity of dangerous drugs referred to in the second count in a room which is referred to throughout the trial as "Room A" in Flat No.3.

8. The quantities of drugs which are detailed in counts 2 and 3 were found by police officers in a room in the premises referred to as "Room B", the salts of esters of morphine in a suitcase and the raw opium in four hold-all bags.

9. When the police party were already in the flat and the drugs had already been discovered by them, the second defendant arrived outside the flat.

10. He was searched by the police and was found to have a bunch of four keys in his hand. These keys fitted the wooden door which gave entry to the flat, an iron grille and "Room C" inside the flat; the fourth key did not fit any lock in the premises.

11. The police also found a bunch of seven keys in the kitchen of the flat. These fitted the iron grille, the wooden door and the padlock on the iron grille; also Rooms A, B and C and a wooden cupboard in Room B.

12. The second defendant was the principal tenant of the whole premises. Documents were produced at the trial which established this. It was indeed admitted by the defence.

13. There is no doubt that the keys which were found in the possession or control of the second defendant, whether on his person or in the kitchen of the flat, gave rise to the presumption under section 47 of the Dangerous Drugs Ordinance.

14. So far as the second defendant was concerned, the question at issue was whether or not he retained control and possession of Room B, in which the large quantities of heroin and raw opium were found.

15. The second defendant, when charged with the offence, merely said to the police officer "I plead not guilty". He did not give evidence at the trial.

16. It is therefore necessary to derive the second defendant's defence from the evidence which was given by witnesses for the Crown and by the first defendant, who did testify.

Interventions by judge

17. There has been some criticism of the degree of intervention by the trial judge. It has been urged firmly, but with perfect propriety, by Mr. Eddis, that the effect of these questions was such as to indicate to the jury that the judge was suggesting that the first defendant was a person to whom the jury should not give credence.

18. Of course, it is not the first defendant himself who is taking objection to these interventions. Mr. Eddis does so on the basis that the prejudice to his client, the second defendant, was indirect, in that if the jury were invited to give no credence to the evidence of the first defendant, this must necessarily mean that those parts of the first defendant's evidence which were favourable to the second defendant might similarly be disbelieved by the jury, to the prejudice of the second defendant.

19. We have been referred to authorities on the subject of intervention by a judge and it is necessary only to mention R. v. Hamilton⁽¹⁾ in which the principles are set out. In the Criminal Law Review note on the case it is said that -

"Interventions which may lead to the quashing of a conviction are (1) those which invited the jury to disbelieve the defence evidence in such terms that they cannot be cured by telling the jury that the facts are for them, (2) those which make it impossible for counsel to present the defence properly, and (3) those which have the effect of preventing the defendant from doing himself justice and telling his story in his own way."

20. In this case the judge's interventions did not take place until the very end of the evidence of the first defendant. There is no question, therefore, of him having been questioned in such a way as to make it more difficult for his counsel to present the defence as he would wish to do so. Nor, in our view, did intervention in this way, at the end of the evidence, prevent the defendant from telling his story in his own way.

21. There is nothing objectionable in interventions by a judge so long as these are conducted with moderation and in accordance with the principles set out in Hamilton⁽¹⁾. In this instance, it may be that the judge asked more questions than was desirable. But we do not feel, after an examination of the particular questions which were put, that any substantial prejudice can have been caused to the first defendant by reason of them.

22. Nor do we feel, consequently, that there could be a referred prejudice to the second defendant. It is, after all, significant that, although the judge probed the first defendant with a number of questions, there was no indication in his summing-up of any prejudice against that defendant. If anything, in several passages, he has summed up in the first defendant's favour rather more than the facts of the law might have obliged him to do.

23. It should also be noted that the first defendant was acquitted, an indication that it is highly unlikely that jury could have been prejudiced against him by such questions as were put by the judge.

Was second defendant's case put adequately?

24. The principal criticism which was made of the summing-up was that the defence of the second defendant was not put adequately before the jury. It was said that the judge should have directed the jury, when they were considering the rebuttal of the presumption by the second defendant, to examine the evidence of the first defendant, in so far as it could be said to be in favour of the second defendant.

25. It was argued that the judge should have referred the jury, at that point in his summing-up, to the evidence about the keys to Room B, so far as this could be said to tell in favour of the second defendant and to the presence of rent receipts which were found in Room B, rent receipts in the name of the second defendant which referred not only to one of the rooms of the premises (though, unfortunately, in equivocal terms which did not identify any particular room in the premises), but also to rooms which were said to be occupied by the second defendant in other premises outside this particular block.

26. Early in his summing-up, the judge directed the jury with great care as to the effect of the presumptions which arise under the Dangerous Drugs Ordinance.

27. He makes it clear that the burden of proving the facts from which these presumptions may arise has to be proved by the Crown beyond reasonable doubt.

28. He directs the jury as to the burden which lies on an accused person when such a presumption arises. He makes it clear that this burden, which lies on the accused, is a lesser one and is a balance of probabilities or, as he puts it, more likely than not to be untrue.

29. Towards the end of his judgment, he says, in relation to the second accused -

30. The judge there has correctly drawn the attention of the jury to the fact that they must look at the evidence of the first accused and the evidence given by the Crown witnesses when deciding whether or not, on the balance of probabilities, the second accused has discharged the presumption which may have arisen against him, if the jury were satisfied of the facts from which such presumption could be inferred.

31. He does not, in that part of his summing-up deal in terms with the particular matters which the jury might think ought to be taken into account when deciding whether or not the presumption had been rebutted by the second accused.

32. However, those aspects of the first defendant's evidence which would be said to operate in favour of the second defendant were dealt with in other parts of his summing-up.

33. The judge reminded them of the substance of what the first defendant had said - and I quote from it -

"The first defendant said that he had sub-let Room B on the sketch from the 2nd accused at a rental of $350.00 per month. And upon his moving into the flat ....... he was given a set of 5 keys, one for the iron grille, one for the padlock, one for the main wooden door, and one for Room B and another for the chest of drawers in Room B."

34. Further on in his summing-up, he says (referring again to the evidence of the first defendant) -

"The evidence indicates that the 1st accused had pointed to Room A as the one he had been occupying but in his evidence yesterday, he stated that he was living in Room B, and that Room A was occupied by the 2nd accused who was the principal tenant of the flat."

35. Shortly afterwards, he says -

"The 1st accused also says that he had found these dangerous drugs, that is those drugs in the wardrobe, originally in Room C which was occupied by a seaman whom he had only seen once and that in the absence of that person who was called LEE he had stolen the dangerous drugs and placed them in the room he occupied, that is Room B."

36. On no less than three occasions in the summing-up, therefore, the jury had been clearly reminded that the story told by the first defendant was that he had rented and occupied the room in which the large quantities of drugs were found.

37. The judge does not, in his summing-up, refer to the rent receipts found in Room B, which as we have said related not only to the tenancy of a room in the premises to the second defendant but also to rooms in other premises which were said to have been rented by the second defendant.

38. There were, as we have indicated, several references in the summing-up to the second defendant living, or occupying, Room B. This seems to us to be the most important feature of his defence which could be derived from the evidence given by the first defendant. The receipts were part of that defence.

39. The jury had been reminded by the judge at the outset of his summing-up that they were not to disregard pieces of the evidence merely because he did not refer to them in his summing-up. And a summing-up is, after all, what it says. It is intended to be a summary of the evidence, not a repetition of all of it.

40. We cannot believe that the significance, such as it is, of the receipts would have been absent from the jury's mind. These receipts had been tendered in evidence and, as is the normal custom, they would have been with the jury when they were considering their verdict. The receipts themselves are not an isolated piece of evidence and it would be for the jury to decide what significance to give to them in conjunction with the evidence of the first defendant that the second defendant was living in Room B.

41. We therefore have come to the conclusion that the summing-up by the judge was more than sufficient and that the evidence was such that the jury were entitled to reach the verdict which they did. Nor do we feel that that verdict could in any way be described as unsafe.

42. The jury had no evidence before them from the second defendant himself. An accused person is not obliged to give any explanation of his conduct. It does not, however, assist him to discharge a burden of proof, when this is thrown upon him as a result of a presumption of law, if he does not put forward any explanation.

43. The jury had to derive from the evidence from the Crown and the evidence of the co-accused such factors as they could when determining whether or not the second defendant had discharged the burden thrown upon him.

44. We are not in the least surprised they should have come to the conclusion that the second defendant had not discharged the presumption under section 47.

45. We refuse leave to appeal against conviction.

Representation:

Sparrow (D.L.A.) for 1st appellant

Eddis (H.M. So & Co.) for 2nd appellant

Bell for the Crown/Respondent

(1) (1969) Crim. L.R. 486.