HKSAR v. Chan Siu Leung

CACC000547/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.547
(Criminal)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 6 November 1998

Date of Judgment: 6 November 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 14th August 1997, following a trial before Deputy Judge Gill and a jury, this Applicant was convicted of trafficking in a mixture containing just over 3 kilos of heroin hydrochloride. On the following day, he was sentenced to 24 years' imprisonment. He now seeks leave to appeal against conviction.

2. This was a case that depended upon circumstantial evidence. The offence was alleged to have occurred at a second floor address in Pok Man Street in Kowloon. Police raided those premises on 23rd September 1996, where they discovered heroin worth $3.74 million, together with a large number of drug-related items which had been contaminated with traces of heroin. Although the Applicant was also alleged to have been manufacturing this drug, he was acquitted on that count.

3. On some of the items the fingerprints of a man named Yau Po-hung were found. Yau's name was referred to in the particulars of both of the offences on which this Applicant was tried because the allegation was that this was a joint enterprise.

4. There were five principal pieces of circumstantial evidence relating to the Applicant. These were separately itemized by the trial judge in the summing up. In brief, the first two points were that the Applicant was present at the premises when the police raid took place and, secondly, that the Applicant gave this address as his place of residence. Taking just these to begin with, the first matter was not disputed whereas the second point was. As the judge very properly pointed out to the jury, there were strong indications that the flat was not used for residential purposes at all. The Applicant's evidence, which was supported by other evidence, was that he lived elsewhere.

5. Further aspects of the circumstantial evidence related to personal items with the Applicant's name on them which were found in a cabinet at the address. This was hotly disputed and, putting it shortly, the defence suggested that this was pure fabrication. On the defence case, the items had been in the Applicant's wallet and were planted in the cabinet to lend strength to a weak case.

6. A fourth point related to the Applicant's thumbprint which was found on one of the blocks of heroin. Explanations consistent with innocence were put forward at the trial on behalf of the Applicant.

7. The fifth and final point was that if the Applicant was the casual visitor to these premises that during the trial he claimed to be, and innocent of any knowledge of the offence, he would hardly have attempted to evade capture risking life and limb in the way that he did. In the event he suffered only a sprain when he attempted to get away by sliding down electric cable from the window on the second floor. The Applicant gave evidence that there were other compelling reasons why he did not wish to be found by police.

8. All of these matters, taking them together, were dealt with by the judge in the course of summing up . A brief account of what the defence case had been on each point was given to the jury to remind them of the issues they had to determine.

9. The complaint which is made on the Applicant's behalf by Mr. Marash, S.C. is that the judge erred in his directions to the jury as to the way in which they could draw inferences from primary facts. There were, in the summing up, three separate directions given as to the jury's approach to inferences. The first of these is on page 5 starting at line G where the judge said:

"That leads me to the next important direction that I must give you, important because it is a necessary feature of the prosecution case against the defendant. It is relying in respect of each charge on circumstantial evidence. It is in effect hoping to satisfy you that certain conduct of the defendant combined with other evidence has been proved, which causes you to come to a conclusion, there being no sensible alternative, that he was in respect of the first charge manufacturing drugs, and in the second, trafficking in drugs. For you see, he was not caught in the act of manufacture, or in the act of trafficking. You are invited to find, if you are satisfied the prosecution has proved certain primary facts, that the only sensible inference that can be drawn from those facts is that he, alone or jointly with another, manufactured the drugs, that is the first charge, and trafficked in them, that is the second charge. If you are unable to be sure that these are the only sensible inferences to be drawn, if you find there are one or more alternative inferences capable of being drawn, you must give the defendant the benefit of that uncertainty and find him not guilty."

10. Then moving on to page 11 line M, the judge said, in relation to the manufacturing count on which the Applicant was acquitted:

"Your first task, then, is to consider all the evidence before you and decide what, if any, of the primary facts have been proved beyond reasonable doubt. Having established that, you have to ask the question, 'Is there an inference that can be drawn from these facts that the defendant was engaged in the process of manufacturing dangerous drugs? If so, is this the only sensible inference that can be drawn?

If the answer is 'yes', you have a duty to find him guilty; if the answer is 'no', or you are not sure, you must find him not guilty."

11. Mr. Marash then took us to the direction at page 13 line K where the judge said this:

"Once again, you have to consider the agreed facts, the unchallenged evidence and make findings of fact on those matters which are disputed. Once again, at the risk of excessive repetition, I remind you the burden is on the prosecution to prove its case. Then you are invited, if you find the primary facts proven, to draw an inference that the defendant was in possession of the drugs. Only if you find this is the only sensible inference to draw from the primary facts proved, can you be satisfied he was in possession, alone or jointly with another. If you do not find it is the only sensible inference to draw, or you are not sure, then that is the end of the matter, and you must acquit him."

12. The criticism made by Mr. Marash is to the effect that the guidance offered in R v Kwan Ping-bong & Another, [1979] HKLR 1, was not implemented. Lord Diplock at page 5 in the judgment of the Privy Council said:

"There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged - and the proof must be 'beyond all reasonable doubt', which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

13. In essence, Mr. Marash has submitted that the judge's directions on the inferences to be drawn were not the proper ones as set out in that case, namely that the inference must be both compelling and the only inference that no reasonable man could fail to draw from the direct facts proved. He points to the repetition of the word "sensible" which the judge had used in his summing up. Mr. Marash submits that this was not sufficient.

14. Mr. Bruce, S.C. for the Respondent, has replied to this argument by calling it, in effect, academic hair-splitting. We entirely agree with this assessment and we have no intention whatever of embarking upon drawing any distinction between, on the one hand, "the only reasonable inference" and, on the other, "the only sensible inference". Such considerations in the context of this case would be bordering on the absurd.

15. In any event, as Mr. Bruce has again pointed out in his very helpful reply and the cases which he has provided for us, this court has endorsed on many occasions the approach which was taken by Lord Morris in McGreevy v D.P.P., (1973) 1 WLR 276. Lord Morris, in delivering the judgment of the House of Lords, cited Lord Goddard C.J. as having said about proof of a fact by circumstantial evidence that the jury must be warned that it must lead to one conclusion only. The judgment continued on the penultimate line of page 284 in this way:

"If, having regard to the facts and circumstances of a particular case, a summing up is held to have been inadequate and to have failed to set the jury on their proper line of approach or to give them proper guidance, a conviction might be held to be unsafe and unsatisfactory. But I am averse from laying down more rules binding on judges than are shown to be necessary."

16. The judgment (at 285H) goes on to demonstrate Lord Morris to be saying that the legal requirement for anything more complex would be undesirable and liable to produce "legalistic complications in a sphere where simplicity and clarity are of prime importance".

17. Returning to the present case, the judge could not have been more explicit in warning the jury that the inferences must be the only sensible inferences to be drawn from primary facts proved by the prosecution beyond a reasonable doubt.

18. This Applicant was convicted upon overwhelming evidence of circumstance, which was treated with meticulous fairness and even-handedness throughout the summing up. No part of the Applicant's case was omitted. We do, however, comment that where the courts have constantly referred, in the context of inferences, to "reasonable" or "irresistible" inferences, it is to be discouraged that a judge should depart from well-recognised directions that are almost always given. In this particular case, the distinction is without a difference.

19. Ground 1 fails.

20. In Ground 2, under the guise of a separate ground which refers to the convictions as being unsafe and unsatisfactory, (there was, of course, only one conviction) and, amended to read "in all the circumstances generally", Mr. Marash has attempted in this submission to re-argue a matter that was fully ventilated in the court below. This related to the allegation that the Applicant had said that he lived in the premises raided by the police. We do not, of course, propose to go down that path, and we are surprised that leading counsel should even consider that it would be appropriate for us to do so.

21. Mr. Marash goes on to suggest in the same ground that the previous convictions of the Applicant were put in evidence by the prosecution partly as the result of the allegation made by the Applicant at trial that the answer given by him as to where he lived was a "fabrication" on the part of the police. That is certainly so, and indeed the Applicant, as emerged earlier in this judgment, also alleged the planting of evidence to make a weak case stronger.

22. There is no doubt that the Applicant had thrown away his shield, and that the jury were entitled to hear of the Applicant's long record of previous convictions. He has no cause to complain on this ground.

23. The Application is without the slightest merit and it is dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. Hayson Tse for D.P.P./Respondent

Mr. Daniel Marash, S.C. instructed by Messrs. Yolanda Fan & Co. for Applicant.