R. v. Lee Gee Yan
Read the full judgment text of CACC 523/1994 on BabelCite. This Court of Appeal judgment was delivered on 11 May 1995.
1. The applicant Lee Gee-yan was convicted on 3 October 1994 after trial by Cheung J and a jury on one count of trafficking in dangerous drugs. He was sentenced to 18 years' imprisonment. He now seeks leave through counsel to appeal against his conviction.
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CACC000523/1994 IN THE COURT OF APPEAL 1994, No. 523 - Headnote - Criminal law - "Lucas" direction on lies - If a "Lucas" direction was given where it was not necessary, it would add complexity and do more harm than good: R. v. Burge (Times Newspaper 28 April 1995). Held (Court of Appeal): Trial judge did not err in failing to direct the jury as to lies, in the circumstances of the case. IN THE COURT OF APPEAL 1994, No. 523 ____________
____________ Coram: Hon Power, Ag. C.J., Litton, V.-P. and Bokhary, J.A. Date of hearing: 11 May 1995 Date of judgment: 11 May 1995 __________________ J U D G M E N T __________________ Litton, V.-P. (giving the judgment of the Court): 1. The applicant Lee Gee-yan was convicted on 3 October 1994 after trial by Cheung J and a jury on one count of trafficking in dangerous drugs. He was sentenced to 18 years' imprisonment. He now seeks leave through counsel to appeal against his conviction. 2. The indictment against the applicant alleges that on 9 June 1993 at Flat T on 6/F of Kin Hing Building, 11 Tin Hau Temple Road, he unlawfully trafficked in a dangerous drug, namely 2,256.94 grammes of a mixture containing 966.01 grammes of salts of esters of morphine. Prosecution case 3. The facts are briefly as follows. On 9 June 1993 the flat in question was under observation by the police. Two officers were at the rear staircase of the 6/F. At 7.18am the applicant came out of a lift and approached Flat T. The iron gate was opened. PW1, a police officer, together with his colleague DPC5992 went up to the applicant who was then opening the wooden door to the flat. The police revealed their identity and PW1 asked the applicant his name. The applicant said he was Lee Gee-yan. 4. After revealing his identity PW1 then said he was going to search for dangerous drugs in the flat and asked the applicant where the dangerous drugs were. The applicant said they were put in the bedroom. In the flat were the applicant's sister and mother. The flat was searched and on a lower bunk in the applicant's bedroom was found a black bag. Insider the bag were six bricks of heroin, nine small packets of heroin and a batch of small transparent envelopes. The drugs in the black bag constituted the quantity charged in the indictment. On a table next to the bunk was a small scale. Transparent bags and adhesive tapes were found in a white plastic bag which was on top of a carton box. The carton box was referred to at the trial as the "air pot" box. Inside this box were adhesive tapes, Exhibit 6, on which a fingerprint belonging to the applicant was found. Defence case 5. The applicant gave evidence at his trial to the following effect. He was 22 years old, had no criminal conviction and left school when he was about 15 years old. He worked as goods delivery attendant and resided with his parents at the flat. He had a girlfriend. In the months prior to 9 June 1993 he only returned home on Sundays for tea with his parents. He normally resided at his girlfriend's home. He came to meet a Mr Chan in mid-1992. Mr Chan was the boss of a company called Hung Fat Transportation. The applicant did some work for Mr Chan, transporting denim cloth. The applicant also met Mr Chan socially. 6. At the end of May 1993 Mr Chan was about to migrate to the United States and wanted the applicant's help. In June 1993 he went to Causeway Bay, met Mr Chan and his family and helped with his goods and luggage. On the way to the airport, Mr Chan left with the applicant various things including the black bag. He was told that it contained Chinese herbal medicine. After the applicant had helped Mr Chan in carrying his luggage to the airport he returned home. When he got home he put the black bag on his bed. The handle of one of the bags he was carrying was damaged so he removed two boxes from the bag. One of those boxes was the "air pot" box. He looked inside that box and saw some adhesive tapes and plastic bags. He picked up the adhesive tapes and saw there was a camera, some books and a postal scale in the box. He replaced the plastic bag and the adhesive tapes in the box. He then looked into the black bag and saw something like boxes wrapped with adhesive tapes. He zipped up the bag and put it on his bed. He said that during that period he seldom returned to his parents' home. However he was about to go to his parents' home on 9 June 1993 when the police arrived. 7. The applicant said that he voluntarily allowed the police to go into the flat and denied that he had told the police that the dangerous drugs were in the bedroom. 8. As to what happened when the black bag and contents were found, his evidence was to this effect. When asked what the bag contained he replied that it had been left behind by a friend; that it contained herbal medicine and that his friend was going to retrieve it later. He said that when asked by PW1 if he knew that the bag contained No. 4 heroin he replied he did not know and repeated that it had been left behind by a friend. He also said that PW1 looked inside the "air pot" box. When asked about the purpose of the adhesive tapes in the box the applicant allegedly replied that he had been told by Mr Chan that they were his personal belongings; when he himself had opened the box the things were already there. 9. That in essence was the case for the applicant. Clearly it needed careful evaluation by the jury. If what he was saying was true or might have been true he was entitled to be acquitted. On his case he had no knowledge of the contents of the black bag. Grounds of appeal 10. Various grounds of appeal have now been advanced by counsel on the applicant's behalf. The first dealt with the way in which the applicant was first approached by the police. Counsel submits that the applicant should not have been questioned about the suspected drugs without first being cautioned. We agree. Plainly the applicant was at that stage under heavy suspicion and he should not have been questioned by the police without first being cautioned as to his right to remain silence. We note however that no objection was taken by defence counsel. Accordingly the judge was not called upon to exercise a discretion to exclude the answer the applicant gave. The issue for the jury was whether the applicant had given the answer "they are put in the bedroom" as alleged by the police. If the jury were satisfied that he did say that, the weight of that piece of evidence was for them. The judge could perhaps have diminished the weight to be attached to that answer by telling the jury that the answer had been given without caution. However, the weight to be attached to any particular piece of evidence has to be viewed in the light of the surrounding circumstances. The jury was under no misapprehension in that regard. There was no obligation on the judge to direct the jury in the way counsel suggested. There is therefore nothing to the first ground of appeal. 11. The second ground is formulated in this way: At no stage did the Judge warn the jury about the obvious inference to be drawn from a) the police "stake-out" and b) the question asked by PW1 as to where the drugs were. Counsel's submission is to the effect that the judge should have warned the jury not to draw any adverse inference from the fact that the police were then acting on information. In our judgment there is no merit to this point. Indeed that might have been a dangerous course for the judge to take, because the precise circumstances under which the police came to put the flat under observation was never explored evidentially at the trial. Any direction along the lines counsel suggests would have been in effect to invite the jury to indulge in speculation. 12. The third ground of appeal arises from answers which PW1 had given whilst cross-examined by defence counsel. He was asked by counsel concerning his own state of mind when the black bag with its contents was discovered in the flat. When asked why he suspected the bag to contain drugs PW1 said as follows: "according to my experience, the bag was the sort of bag that the drug pushers used to contain drugs". We cannot see what complaint can be made in the circumstances of this case as regards that answer elicited by defence counsel. The jury might have been asked by the judge to ignore that piece of evidence but his failure to do so cannot amount to a misdirection. 13. Ground 4 of the grounds of appeal focuses upon this passage in the summing-up:
14. The complaint in essence is that this put an onus of proof upon the defence which the law does not impose. If indeed the judge were, at that point, directing the jury on where the burden of proof lies that would have been a misdirection. But he did nothing of the kind. He was merely summarising to the jury the essence of the respective cases for the defence and the prosecution. Earlier the judge had told the jury in clear terms that the burden of proof throughout was on the prosecution and that the case had be proved beyond a reasonable doubt and that no burden fell on the defence. We cannot therefore see how this passage was a misdirection. 15. The final ground of appeal is formulated thus: "The learned judge gave no direction whatsoever as to lies in the event that the jury did not believe the whole or part of the applicant's evidence". Counsel's submission is to this effect. Because the applicant had testified at his trial, the judge should have given to the jury a general "Lucas" direction as to the effect of lies: that is to say, as regards lies which the applicant might have told concerning any aspect of his own testimony. It is not suggested that the prosecutor had at any stage of the trial relied specifically on lies as evidence of the applicant's guilt. 16. In our judgment no general direction on lies was called for in this case. Indeed such a general direction might have been very confusing for the jury. If specific aspects of the applicant's story had been selected by the judge for comment that might have simply drawn attention to the weaknesses of those pieces of evidence; it might have been positively damaging to the applicant's case. In this regard it would be helpful to refer to a recent decision of the English Court of Appeal in The Queen v. Burge: The Times Newspaper 28 April 1995, where the report says:
17. Lord Justice Kennedy is reported as saying:
18. This observation would seem apposite in the circumstances of the present case. 19. For these reasons this application for leave to appeal against conviction is dismissed.
Representation: Mr D.G. Saw & Mr D. Pang (Crown Prosecutor) for Crown/Respondent Mr Andrew Macrae (M/S K.Y. Woo & Co.) for Defendant/Applicant |