R. v. Cheng Kam Sun

CACC000486/1996

IN THE COURT OF APPEAL

1996, No. 486
(Criminal)

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Coram : Mortimer and Mayo, JJ.A., and Wong, J. in Court

Date of Judgment : 29 May 1997

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 14 August 1996 the applicant was convicted in front of Leong J and a jury of trafficking in a mixture containing just short of 52 grammes of heroin. He was sentenced to 8 years' imprisonment. He seeks leave to appeal first against his conviction.

2. The background of the matter is this. The applicant at the time was 57 years of age. In the past he had worked as a sailor - at the time of the offences he was working as a relief sailor or part-time in a mah-jong school earning between $15,000 to $18,000 per month which he said he spent on his long standing heroin addiction. He had a heart complaint and he lived with his wife in one room.

3. On 20 December 1995 police officers searched his flat. They found 193 grammes of a mixture containing the narcotic in five plastic bags. There were 27 small plastic bags also there together with some Chinese scales and some tin foil and paper tubes with burn marks on them.

4. When the applicant returned to the flat and was confronted by the police he admitted the drugs belonged to him but said that he had them for his own consumption and from that moment onwards throughout his trial and in two statements he had said the same thing. That they were for his own consumption. He said he was heavily addicted and consumed nearly an ounce a day. He said an ounce would cost about $1,700 but cheaper if he bought it in quantity. About a week before he was arrested he had paid $18,000 for the 12 ounces, part of which he was found with. He used the scales he said for checking the weight, not for anything to do with trafficking.

5. All that he repeated in evidence at trial and he produced documents from a drug clinic to prove his addiction. He added that he spent the whole of his earnings on drugs and repeated that he consumed 3/4 oz per day. He used the small plastic bags for packing drugs ready for his daily intake when he was working at sea. So, by those means, he had an explanation for the matters which were relied upon by the Crown.

6. There was at trial no real issue as to whether or not he was an addict. All those matters were put before the jury and the jury by a majority convicted. The one issue that they had to consider was whether he had those drugs for his own consumption or whether he had them or at least some of them in his possession for the purpose of trafficking.

7. Mr Fenton advances three grounds in support of his application for leave to appeal against conviction. The first ground relates to a direction the judge gave at p14 of the summing-up. The direction complained of is this. The judge - having dealt with the explanation given by the applicant - said, "So the question is whether or not you accept his explanation and what inferences you draw."

8. Mr Fenton submits that by that direction the judge was throwing the burden onto the applicant. If the explanation was rejected, the jury might draw adverse inferences against the applicant. The burden was thrown onto the applicant whereas it should have remained always on the Crown. Mr Fenton submits that the judge ought to have gone on to explain to that if there was a possibility that his explanation was true the jury should acquit.

9. This is a submission which takes this one remark of the judge out of its proper context. The judge was summing up to the jury dealing with a number of matters which were put against the applicant, including the value and the quantity of drugs and the empty plastic bags and the scales. He went on to say "I have to remind you, that the small plastic bags by themselves are not evidence of trafficking" explaining they could be put to other use than trafficking.

10. Then came the direction complained of and the judge said "the scale by itself is innocuous. You will decide whether it was capable of weighing dangerous drugs in quantities as low as five grammes." So the direction came in part of the summing-up which was on any view favourable to the applicant. The substantial point that destroys Mr Fenton's submission is that the judge in other parts of the summing-up makes it absolutely clear that the burden is throughout on the prosecution and that if they think it possible that these drugs were in the applicant's possession for his own consumption they should acquit. For those reasons we reject the first ground advanced.

11. The second ground relates to expert evidence was given as to the value of these drugs. The applicant's case was through out that he had bought the drugs in bulk and had paid $18,000 for them. There really cannot have been any confusion in the jury's mind that that was his case.

12. The prosecution called a witness who was accepted by Defence counsel as an expert. He gave evidence as to the retail price of this quantity of drugs explaining that his figures were based on seizures of below 5 grammes. He was giving a retail street value for the drugs. The basis of his evidence was completely clear. The jury could not at any time have been in doubt and indeed the expert was cross-examined to the effect that if he had bought in bulk the price would be less. He agreed that he was not an expert in bulk purchases.

13. It is against that background Mr Fenton says that there is a passage in the summing-up which was misleading to the jury and may have led them to take adverse inferences against the applicant. If they had compared the value of the drugs testified to by the witness and the applicant's evidence that he purchased them for $18,000.

14. The passage is on p13 when the judge said: "You may think, if you accept the evidence of the police expert on the value of the drugs seized being almost HK$108,000.00, that with the resources the defendant said he had at the time, he could hardly afford to purchase such a large quantity of drugs and store them for his own consumption."

15. The question for our consideration is: Could the jury have been misled by that direction considering the whole of the summing-up and the issues which were before the jury into taking that as such an adverse inference against the accused that they were bound to reject his defence and find that the prosecution had proved their case to the necessary standard?

16. An examination of the whole of the summing-up shows that the judge did explain and remind the jury that this price was on the retail market. To say that was totally irrelevant would be wrong. The applicant purchased on the retail market but he said he was fortunate enough to get it in bulk for $18,000. Those matters were all before the jury for their consideration. They cannot have been in any doubt that the applicant was saying he purchased in bulk whereas the figure given by the police officer was for retail of much smaller quantities. In those circumstances there is no basis upon which we should give leave to argue that point on appeal.

17. The third ground advanced by Mr Fenton is that the counsel ought to have put the applicant's record in front of the jury. The applicant had a record of two or three previous offences for being in possession of drugs. There is implied in this ground some criticism of counsel.

18. With the greatest respect to Mr Fenton, there is no basis whatsoever on which counsel could be criticised for not putting the applicant's two convictions in front of the jury. Some counsel may have chosen to do so with instructions from the applicant. But the issue was: Was the applicant an addict? That appears to have been accepted. So there was no purpose in putting in his convictions to show that he was an addict. And one can see also there may have been serious dangers in putting his record before the jury. For example - this is speculation - it may be that the amounts of drugs for which he was prosecuted for possession were very small and he would have exposed himself to very damaging cross-examination if he had advanced those matters.

19. For those reasons this application for leave to appeal against conviction is refused.

Representation:

Mr J.G. Fenton assigned by DLA for Applicant

Mr K.S. Kripas (SCC) (Crown Prosecutor) for Crown/Respondent