The Queen v. Lai Hung Fok

CACC000529/1990

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Coram: Hon. Silke, V.-P., Power & Penlington, JJ.A.

Date of Hearing: 19th December 1991 & 6th May 1992

Date of Judgment: 26th May 1992

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge of possession of dangerous drugs for the purpose of unlawful trafficking contrary to s.7 of the Dangerous Drugs Ordinance. The particulars of the count were that he on 28th November 1989 at Reclamation Street, Mongkok, Kowloon, had in his possession a dangerous drug namely 2,082.75 grammes of a mixture containing 1,890.97 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He was tried before Deputy Judge Sharwood and a jury and on the 5th of October 1990, was found guilty and sentenced to imprisonment for 22 years. He now appeals against both conviction and sentence.

3. It was the Crown case that at about 6.24a.m. on the morning of 28th November 1989, three police officers on surveillance duty in a staircase of a building at Reclamation Street saw the applicant come out from a building on the opposite side of the road. It was their evidence that he was holding a white plastic bag and that they then commenced to follow him but that, apparently becoming aware of their presence, he suddenly threw away the white plastic bag and started to run. Two of the officers gave evidence that they chased and eventually apprehended him and the third said that he picked up the plastic bag that had been thrown down. This bag when opened was found to contain the drugs the subject of the charge.

4. We shall deal firstly with Ground 9 of the grounds advanced by Mr. Adams who appears for the applicant as it is a broadly based attack on the summing up alleging that it was unbalanced in that it failed adequately to put the case for the defence and that it contained errors, the totality of which make the conviction unsafe and unsatisfactory. The ground was as follows:

"9. The learned Trial Judge failed to properly and or adequately direct the jury as to the Accused's defence when directing the jury with regard to the Accused's own evidence, when dealing with the defence witness Mr. Tam Chun-fai, when dealing with the evidence of the Police generally, when dealing with Defence Counsel's submissions, and when dealing with the defence of mistaken identity generally."

5. A proper appreciation of the matters raised in this ground, and indeed in the appeal generally, requires an examination of the way in which the trial unfolded. The evidence occupied only one sitting day. The first prosecution witness was Sergeant 20393 who said that, on the 28th of November 1989, he was on duty with Sergeant 16311 and PC 20635 at about 6 a.m. laying an ambush on the staircase of 379--381 Reclamation street. He said that he saw a man coming out of the entrance of a building opposite at 414-416 Reclamation Street and that the other two officers left their observation post, crossed the road and followed the man. He said that the man suddenly looked back and then threw a white bag onto the pavement and started to run towards Shan Tung Street. He said the other two police officers gave chase and he stopped to pick up the bag.

6. Mr. Hatton who appeared for the applicant at trial put to this officer that he had picked up the bag in the middle of the road at the junction of Shan Tung Street and Reclamation Street, a position which was around the corner from where the officer said he had recovered it. It was also suggested to him that it was put to the applicant, before he was formally arrested and cautioned, that the contents of the bag were his and that he had thrown it away and that the applicant had vigorously denied this saying that he was going back to his place. It was never specifically put to the witness that he had not seen the applicant throw down the bag but simply that he had recovered the bag at the junction which was some distance beyond the place where he said he had picked it up.

7. The next witness was PC 20635. He said that he saw a man come out from 414-416 Reclamation Street on the other side of the road, that the police officers then followed him and that when they were about 10 feet away from him, that man looked back, saw them and threw the plastic bag onto the ground. He said that the man then ran along Reclamation Street in the direction of Shan Tung Street and that he and Sergeant 16311 gave chase. He said that they caught up with the man and that Sergeant 16311 caught him and fell to the ground with him as the man commenced to struggle. He said that PC 20393 then joined them carrying the bag and that the bag was then opened and what appeared to be dangerous drugs were seen inside. He said that he never lost sight of the man from the moment when he first saw him until the moment when he was arrested and that the man was the applicant.

8. In cross-examination Mr. Hatton put a number of questions about the state of the lighting in Reclamation Street and about some discrepancies between what the witness had said in his statement and what he had said in his evidence. He finally put to the witness that he and the sergeant had run around the corner into Shan Tung Street and had then found the applicant sitting on the ground. The witness denied this. It was never suggested to the witness that he had not seen the man throw down the bag in Shan Tung Street.

9. The third police witness was Sergeant 16311. He gave evidence that he was with his two colleagues and that he saw a man come out from 414-416 Reclamation Street and throw down the plastic bag. He and 20393 followed him, eventually managed to catch hold of him and they fell to the ground. He said that PC 20393 then arrived with the plastic bag. The witness said that he had not lost sight of the man whom he identified as the applicant at any time during the chase. Mr. Hatton put to this witness that that answer was "quite untrue" and that the witness had come around the corner to find the applicant sitting on the ground. The witness denied this saying that he was very close to the applicant when making the turn. This was the only witness to whom it was specifically put that his evidence was untrue. It was, however, clear from the trend of the questions that the defence was that none of the officers had seen the bag being thrown to the ground, and that all were lying when they said that they had. An important element of this defence was that the bag was discovered not in Reclamation Street: but around the corner at the junction of Reclamation Street: and Shan Tung Street beyond where the applicant was apprehended.

10. It was the evidence of the applicant that he had come out of the Mr. Beef Hot Pot Restaurant into Shan Tung Street at about 6.30a.m. on 28th November when he was knocked down by a man who was running along Shan Tung Street towards Nathan Road away from Reclamation Street. He said that, while he was picking himself up, he was caught hold of by the shoulder, that he asked what the matter was, that the person who had caught him said that he was a policeman. Another policeman then came up and held him up and escorted him to the vehicle. The applicant did not mention having seen a plastic bag being carried by the man who knocked him down and he said that he was never shown any white plastic bag after being apprehended by the police.

11. The only other witness was Mr. Tam Chuen-fai who said that he had photographs of the scene which he had taken on the morning of the hearing. These were tendered in evidence.

Miss Fung who appeared for the Crown in her opening of her evidence told the jurors:

"The issue in this case is concerning the credibility of the police officers."

In her final address to the jurors she summed up the Crown evidence by saying:

"You have also heard that they were only ten feet away from the defendant when they saw him throw the plastic bag. So all along, they told you that it was the one and the same person who came out from that building until the moment they arrested him, and it was the same person who threw the plastic bag away. And from the second and the third police officers, you have heard that they had never lost sight of this person and that was the defendant."

Miss Fung put the matter squarely upon the basis that the police officers were credible and that belief should be given to their evidence and that, upon the basis of that evidence, the applicant was guilty as charged.

Mr. Hatton, when he came to address the jury, put the de fence in the following way:

"Now in this case, it could well be that the officers have made an honest mistake, meaning that those three police officers believe, absolutely believe, that the man they say they saw leaving 416 Reclamation Street is him. But it may well be a mistake.

There must be occasions in your life when you have made an honest mistake and that is a very excusable position for those police officers."

Mr. Hatton made no mention of the evidence given by the applicant, nor did he canvass in any detail the evidence of the police officers. The thrust of his address was that the lighting was poor and that the jury could not be certain that the police officers had not made a mistake. There was no endeavour to analyse the evidence to show what this mistake might have been, nor was any reference made to the explicit evidence of all three police officers that the man observed had thrown down the plastic bag in Reclamation Street nor to the evidence of two of them that they never lost sight of the man before apprehending him. Mr. Hatton nowhere in his address faced the reality of the situation which was that the evidence of the police officers left no room for mistake. Their evidence was either true or was a series of deliberate and calculated lies.

12. The address of Mr. Hatton to a very large extent ignored that evidence and the real issues that were raised by it. It is in this context that we must examine the criticisms of the summing up. There was no question of honest mistake. The police having said that they never lost sight of the applicant were either lying deliberately in an endeavour to have him convicted wrongly or were telling the truth. The judge, not surprisingly, was at pains to emphasize the real issue and to direct the jury's minds to what they were called upon to decide. It is certainly true that the judge was robust in the comments he made about the evidence of the applicant. His comments were, however, no more than common sense and did not, we are satisfied, cross the border into impropriety.

We turn now to Ground 1 which is as follows:

"1. The learned Trial Judge invited the jury to speculate by the following directions given to the jury:

(i)     At page 7 and 8 of the Summing Up:

'It was put to him (PW1 PC 20393) that he picked up the bag at the junction of Reclamation Street and Shan Tung Street in the middle of the road. He denied it. Members of the jury, you might wonder how Counsel for the Accused came to make such a suggestion. The Accused himself did not say anything about seeing a white plastic bag let alone anything about it being picked up on the middle of the road.

Indeed his evidence was that it wasn't ever shown to him. So why did his Defence Counsel put it to this officer that he picked up the white plastic bag at the interception of Reclamation Street and Shan Tung Street in the middle of the road? This is a matter for you.'

(ii)     At pages 11 and 12 of the Summing Up:

'Once again it was put that the white bag was in the road at the junction of Reclamation and Shan Tong Street, somewhere behind the man at the right in photograph 7. The Sergeant disagreed.

Once again, members of the jury, you will ask yourselves how that question in cross-examination can be reconciled with the Accused's evidence. The Accused said nothing about the whereabouts of the white bag. Indeed he even said that it was never shown to him.'

(iii) At page 14 (para.3) of the Summing Up:

'But there is one matter I will comment on.

The accused said when he was arrested he did mention to the policemen

"Somebody had knocked me down" "That is why they helped me up and took me to a small vehicle."

13. 'Members of the jury, you may have noticed that it was not suggested to a single police officer in cross examination that the Accused had told him that he had just been knocked down by a running man. Does that suggest to you that the Accused made this up during his cross-examination or do you think there is some other explanation? It is a matter for your. You may think it a matter of some importance in the circumstances of this case.'"

14. It was Mr. Adams' suggestion that the judge was, i the above passages, suggesting to the jury that the applicant had lied and was in effect inviting them to speculate as to why he had done so. We are unable to put that interpretation upon the passages. The trial judge was doing no more than indicating that the cross-examination of counsel was not on all fours with the evidence of the applicant and that this was a matter which the jury could bear in mind when. making their assessment of his evidence. It is proper so to direct the jury and we find nothing in this ground.

Ground 2:

"The above quoted passages from the Summing Up amount to a reversal of the burden of proof in that they imply that an Accused must in his own testimony support every matter put to prosecution witnesses in cross-examination by the Accused's Counsel."

As we have already indicated the passages referred to do no more than draw to the jury's attention that, the evidence of the applicant was not on all fours with his defence as put. This in no way amounts to a reversal of the burden of proof. These were matters which were quite proper for the jury to consider.

Ground 2A.:

"Alternatively:

The learned Trial Judge's direction would have given the jury the impression that lies of the Accused by themselves may amount to proof of guilt."

There is nothing in the summing up to support this suggestion. At the outset the trial judge told the jury:

"In our system, the burden of proof is on the Crown or the prosecution throughout and it never shifted to the accused. It is for the prosecution to establish the guilt of the accused in this case.

The standard of proof that is required is that the prosecution must satisfy you beyond reasonable doubt that the accused has committed the offence with which he is being charged :before you can convict him of that offence. Another way of putting it is that you must be satisfied so that you feel sure that the accused is guilty before you can convict him of the offence with which he is being charged. That is the same thing as being satisfied beyond reasonable doubt of his guilt."

15. In his summing-up the judge correctly focused the jury's attention on the real issue saying:

"The crucial evidence in this trial you might think is that all three officers said that they saw the man drop the bag at a distance of ten to twenty feet whilst they were behind him and closing fast on that pavement: in photograph 4.

Two said that they chased that same man, never lost sight of him and caught him. The man was the accused. The bag that was carried and dropped was found to contain dangerous drugs. That, members of the jury, is you may think the vital and relevant evidence in this trial. You may of course accept it or you may reject it. But you may think you will not be greatly assisted by the other matters which have arisen: the photographs in October 1990, and all those other matters."

There was no suggestion anywhere that the lies of the accused by themselves would be sufficient to prove guilt. The judge clearly and properly put the matter upon the basis that the real issue was whether the jury accepted the evidence of the prosecution witnesses or whether they were occasioned any doubt in relation thereto. It was never suggested that the jury might be assisted in coming to their decision by drawing an inference of guilt from lies.

Ground 3:

"The repetition, twice, by the learned Trial Judge of the evidence of PW3 Sergeant 16311 that the Accused had said 'I have lost ....' and the comments by the learned Trial Judge thereon, for example: 'You may think that it is a matter of importance and that it could at the very least be interpreted as an admission .... Perhaps the Sergeant heard it and the others didn't' served only to emphasize this evidence and vitiated the directions to ignore it."

This direction was, in our view, a very favourable one for the applicant. The evidence of the sergeant was both relevant and admissible and, if accepted by the jury, depending upon the view they took of it, could have been very damaging to the applicant. The judge, taking a view which is not that of this court, told the jury that they should ignore it. The fact that he did so, the effect being wholly favourable to the accused, cannot be urged by him as a ground to suggest that the verdict was unsafe.

Ground 4:

"The learned Trial Judge misdirected the jury in that he failed to give any direction to them upon an important issue in the trial namely the credibility of the Police Officers who gave evidence and the learned Trial Judge's directions amounted to a withdrawal of this issue from the consideration of the jury."

In his summing-up the trial judge made it clear to the jury that the onus was on the Crown to prove the case against the accused beyond reasonable doubt and that the real issue was whether they believed the police officers when they said they had seen the applicant discard the packet of dangerous drugs and chased and caught him. He indicated in the passage set out above that their testimony was "the crucial evidence" and that the jury must make up their minds either they accepted it or rejected it. There can be no doubt that the jury was full- aware that the issue in the trial involved the credibility of the police officers. Nothing said by the trial judge could have led them to think that this issue had been withdrawn from their consideration.

Ground 5:

"5. The learned Trial Judge misdirected the jury by failing to direct them in accordance with the guidelines laid down in R. v. Turnbull & Others [1977] QB 244 and in R. v. Weeder (1980) Cr.App.R. 228 and the learned Trial Judge's directions amounted to a withdrawal of these guidelines from the jury."

When arguing this ground, Mr. Adams initially adopted the approach pursued by Mr. Hatton at the trial. He sought to suggest, relying upon the photographs taken by Mr. Tam, that the police evidence of hot pursuit was inherently incredible. He submitted that the case did not, therefore, involve hot pursuit but was one involving a fleeting glimpse followed by a later apprehension. He criticizes the judge for not having dealt with the matter upon that basis. We are satisfied that there is no warrant for the suggestion that the evidence of the police officers was inherently incredible. That being so it was for the jury to determine whether they accepted the evidence of the officers that they had apprehended the applicant after a hot pursuit or were left in doubt as to whether or not that was so. Mr. Adams was referred in the course of argument to the statement of this court in R. v. Wong Wing-yip and another (Crim.App.512 of 1990). That was a case in which a police officer gave evidence of the apprehension of a suspect after hot pursuit. The Court at p. 6 held:

"The case against the 1st applicant did not, in our view, rest wholly or substantially on the correctness of an identification. The evidence, as we have already indicated, was of hot pursuit and an admission upon apprehension. The trial judge was not required to give a Turnbull direction, although such was, and we shall come to this in a moment, required in the case of the 2nd applicant who escaped from the scene."

We are satisfied that the evidence in the present case similarly did not raise a fleeting glimpse situation but placed the matter squarely within the category of "hot pursuit". It was Mr. Adam's further submission on this ground that the jury should have been given more assistance in making their assessment as to the reliability of the police evidence by reference to the poor lighting and the other circumstances obtaining at the scene which might have made an identification difficult. Given the real issues involved we are satisfied that no complaint can properly be made as to the adequacy of the directions as to the state of the lighting. In the circumstances no Turnbull direction was called for and the real issue would only have been confused had it been given.

Ground 6:

"6    . There was a material irregularity in the trial in that irrelevant and therefore inadmissible evidence was admitted in evidence before the jury, namely the statement of PW2 Acting Chief Inspector Stewart Boris Kruger Young. This statement was read into the evidence before the jury, its contents dealt with the value and notional conversion into No.3 heroin of the seized drugs. The valuation at $1,232,843 and notional conversion to 41,468 grammes of No.3 heroin had nothing to do with the issue to be decided by the jury. The issue to be decided was whether the Accused was in possession of the drugs or not. This evidence was highly prejudicial to the Accused in that it served to emphasis the iniquity of his alleged actions. This evidence ought not to have been admitted by the learned Trial Judge. It having been admitted, without objection from Defence Counsel, the learned Trial Judge ought to have directed the jury to ignore it when considering the issue in question. Instead of so directing the jury the learned Trial Judge reminded them of it (pages 5 last paragraph, 58 and 59)."

We do not take the view that this evidence was either inadmissible or prejudicial. The applicant was charged with possession of a dangerous drug for the purpose of unlawful trafficking. The jury were entitled to be informed fully as to the nature of the drugs which he was alleged to be carrying and as to their value. This was clearly relevant evidence in a charge of trafficking. Indeed his counsel rightly took the view that he could not oppose the admission of such evidence and he did not do so.

Mr. Adam did not pursue grounds 7 and 10 and we therefore have to deal only with grounds 8, 11 and 12.

Ground 8:

"8.     There was a material irregularity in the trial in that the learned Trial Judge refused to entertain a question from the jury to allow the jury to obtain clarification of a point given by a witness (pages 19, 20, 36 and 92)."

The following passage occurred at the conclusion of the defence evidence after the defence had closed.

"Court: Yes. Mr. Foreman, I understand that you have a question.

Mr. Foreman: We were wondering whether it is possible to seek clarification of a point given by a witness.

Court: No. The evidence has been heard; comments would be made on it by counsel; I will comment on it; and it will be for you to assess what it is all about.

Mr. Foreman: Yes."

We think it would have been preferable had the judge at that point ascertained exactly what it was that the jury sought to have clarified. It may well have been, of course, that the jury was seeking clarification upon a matter as to which, the evidence having been completed, no assistance could be given to them.

16. However that may be, the matter would clearly have been left in a less than satisfactory state had no further reference been made thereto.

17. The trial judge, it seems clear, did take the request to have been one involving clarification of the evidence of a witness as he said during his summing-up:

"Your foreman this morning raised a question in general terms seeking clarification. Clarification of evidence cannot be given as such after the conclusion of evidence.

What can be given is to repeat what the evidence was in case you heard it or misheard it - simply giving it again, so far as we are able to do so from our notes or memories. But it can't be explained.

When he asked whether there could be clarification, I understood it to be explaining something that had been said. That can't be done. Having said all that, Mr. Foreman, is there something that you still seek clarification?

Mr. Foreman: No.

Court:

As I say if you have any question, write it down, formulate it as precisely as possible, give it to the usher and I will convene the court and answer your question or give you further directions."

In the light of this further exchange which clearly gave the jury the opportunity to raise any questions, should they have wished to do so, we do not consider that any complaint can be made in this regard.

Ground 11:

"11. The learned Trial Judge brought undue pressure to the proceedings by his oft repeated desire to finish within the case three days. (sic)"

It was true that the judge on several occasions mentioned the desirability of finishing the trial within the three days allotted to it. We were disturbed by the allegation that this resulted in undue pressure. The only implication from such an allegation is that a fair hearing was not accorded the applicant because the trial judge, for reasons of his own, was pressing to finish the trial in three days. There is nothing in the record to suggest that the defence counsel was in any way "unduly pressured" nor do we have any complaint from him either in the record or upon affidavit to that effect. There was no proper foundation

for this serious allegation and we are satisfied that it should never have been made.

Ground 12:

"12. The learned Trial Judge entered the arena and exhibited a clear bias against the Accused in the course of cross-examination of him thereby prejudicing a fair trial. This was particularly unfair in view of the evidence from the police that they had searched premises of the accused near the scene at 257 Reclamation Street and found nothing of significance."

18. Despite the serious allegations made in this ground Mr. Adams did not during argument address it except in the most general way. We, however, given its nature, were satisfied that it called for a 'detailed examination of the questions asked of the applicant by the judge. We found the questions to have been limited in number and of a kind which gave no support to a suggestion of bias and unfairness.

19. Nothing has been raised that occasions us any doubt as to the propriety of the conviction and the application for leave to appeal against it is therefore dismissed.

Sentence

Coram : Silke, V.-P. & Penlington, J.A.

20. Having earlier dismissed the application for leave to appeal against conviction, we now deal with the matter of sentence. The applicant was sentenced to a period of imprisonment for 22 years. The quantities involved were converted to an amount of 41,468 grammes of No.3 heroin, that is 41 kilos.

21. At the date of the offence, the decision in R. v. Cheng Yeung [19891 2 HKLR 258 was the applicable decision. R. v. Lau Tak Ming [19901 2 HKLR 370 was not promulgated until 29th May 1990. Cheng Yeung said in relation to sentences for drug offences of this nature, where section 7 of the Dangerous Drugs Ordinance is involved, and we quote from page 264 of the report:

"Above any s.7 tariff, space must be left for the greater penalties appropriate for the trafficker, the manufacturer, and the importer. In practice this means that the s.7 tariff as such can scarcely go higher than 20 years after trial."

22. This man was a courier. He was not, as far as the evidence showed, the trafficker, the manufacturer or the importer. The principle which has been established by this court is that couriers do not get any discount by virtue of the role they play but that the trafficker, the manufacturer the importer, the financier - and that list is not exhaustive - received an enhanced sentence over and above the general tariff.

23. In sentencing here, the judge was very conscious, as is this court, of the very large quantity of drugs involved. He stated himself to be following the lines of Cheng Yeung having been addressed at an earlier stage on the basis of both Lau Tak Ming and Cheung Yuen but, with ,respect, the 20 years which would be the cut-off point where Cheng Yeung to be applied was exceeded by him.

24. We think that the sentence is wrong in principle in that sense. As we have indicated, we are very conscious of the quantity of drugs, but we think that the sentence of 18 years imprisonment would be appropriate both for the offence and the offender.

We, therefore, grant leave, allow the appeal against sentence, set aside the 22 years imposed and substitute for it one of 18 years imprisonment.

Representation:

Mr. Paul Leung (Crown Prosecutor) for the Respondent.

Mr. Nicholas Adams and Raymond Yu (instructed by Messrs. W.S. Lo & Co.) for the Applicant.