R v. Mok Lun

CACC000502/1993

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Coram: Hon Yang, C.J., Penlington and Liu, JJ.A.

Date of hearing: 22 February 1995

Date of Judgment: 22 February 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. In this case, the applicant, Mok Lun, seeks leave to appeal against his conviction on Count 2 but abandons his application for leave to appeal against his conviction on Count 1. Both counts related to trafficking in dangerous drugs which occurred on the same day.

2. For the purpose of this hearing, it is not necessary for us to go into the facts save to say that the prosecution's case was that a large quantity of drugs and paraphernalia relating to trafficking were found inside the premises alleged to be occupied by the applicant.

3. The gist of the grounds of appeal is that the deputy judge erred in his direction to the jury when he dealt with the question of lies: the lies in question being that the applicant told the police that he was a street sleeper and keys found on him were for premises in China, whereas he was in truth the occupant of the premises in which the dangerous drugs were found and the keys were for the premises.

4. Clearly, the prosecution relied on the alleged lie to be part of their case. Crown counsel in the court below in his final address to the jury said this:

"The Crown says this man was caught with a packet of drugs, dealing in these drugs. He tried to confuse the police about where he lived, and to stop them going back to his house. The Crown says that all points to the fact that he knew the drugs were there, that he was dealing in drugs, and he tried to put the police off the scent."

5. In his summing up, the learned deputy judge said this when dealing with the question of lie:

"Was it because he does not want the police to know where he lived so that he can avoid being searched? If that be the case, does it mean that he really had the drugs in his - he knew that there were drugs in his flat so as to avoid police raiding the flat? These are matters entirely for you as what the prosecution suggested. If you feel that you can adopt his suggestion, then by all means. If not, then ignore it. After all finding of facts is a matter entirely for you."

6. The Crown concedes this morning that neither a Broadhurst direction nor a Lucas direction had been given by the deputy judge but it is argued that in the light of the strong evidence against Mok Lun, no prejudice was caused by the failure on the part of the deputy judge to give such a direction.

7. In our view, this is a clear case in which a Lucas direction should have been given. We do not think that this is a case for the proviso to be applied.

8. For the foregoing reasons, we allow the application, treat the application as the appeal and allow the appeal against conviction on Count 2. We order a new trial on Count 2.

Representation:

Applicant in person (Re: Count 1)

Mr C Grounds (D.L.A.) for Applicant (Re: Count 2)

Mr D G Saw (of the Attorney General's Chambers) for Crown/Respondent