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Cheung Wai Ying v. The Queen

Read the full judgment text of CACC 548/1979 on BabelCite. This Court of Appeal judgment was delivered on 23 July 1979.

1. The appellant has been convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking and has been sentenced to 6 months' imprisonment. She now appeals against conviction on the ground that in all circumstances of the case the conviction is unsafe and unsatisfactory. The prosecution case leading to the conviction is that on the 16th January this year at about 8.00 p.m. a police party led by one woman police inspector Pang laid an ambush in the staircase lead

Case No.CACC 548/1979
Court
Court of Appeal
Date23 Jul 1979
Judge—
Case Document
100%Judiciary

CACC000548/1979

IN THE SUPREME COURT Criminal Appeal
1979 No. 548

BETWEEN
CHEUNG WAI YING Appellant

AND
THE QUEEN Respondent

Coram: Li, J. in Court

Date of Judgment: 23 July 1979

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JUDGMENT

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1. The appellant has been convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking and has been sentenced to 6 months' imprisonment. She now appeals against conviction on the ground that in all circumstances of the case the conviction is unsafe and unsatisfactory. The prosecution case leading to the conviction is that on the 16th January this year at about 8.00 p.m. a police party led by one woman police inspector Pang laid an ambush in the staircase leading to No. 7-19 Tang Lung St., 11/f. At about 9.30 p.m. a man and a woman came out from the premises. She talked to them. Soon after that another man came out. That other man was found to be the principal tenant of the premises on that floor. The man was searched and a key was found on him. The police used the key to open the door. As soon as the door was opened they saw the appellant. The police told the appellant that they wanted to search the premises. Before they could do so, the appellant asked for permission to take her child to the toilet. The woman inspector and a police constable kept watch on the appellant and her child, at the door of the toilet. The appellant was seen to use her right hand shuffling something in front of her abdomen and then threw a package out of the window of the toilet. The constable then shouted out "throw things". Perhaps I should mention that before the police party went up to the 11th floor, they sent another constable to the 1st floor keeping watch on the 1st floor balcony of the same building. The package landed on the balcony of the 1st floor. The constable on the balcony picked up the package and found 1 phial and 19 packets of dangerous drugs weighing 17.8 grammes which contained, upon analysis, 5.7 grammes of salts of esters of morphine.

2. The defence case was that at the material time, namely about 7.00 - 8.00 p.m. two of the appellant's friends came to her home. They watched television. Just before 9 o'clock the lights of her flat went out and the friends left the premises. The appellant asked her husband, who was the man that was searched, to go out and find someone to put the lights right. It was at that time when the police came and said that they wanted to search the premises. The woman inspector asked the appellant into a room to be searched. After the appellant was searched her lady friend was also searched in the same room. After the body search the police started to search the premises. It was only then that the appellant obtained permission to take her son to the toilet. After her son had urinated they were told to sit by one side. A little later a police constable, the 3rd prosecution witness, left the premises and then returned after half an hour bringing with him a large package. The police brought the appellant and the suspected dangerous drugs to the police station. The appellant said that there were bars being fixed on the toilet window and the window was closed. The bathroom was only 3ft. 7in. x 2ft. 8in. The bowl of the toilet was about 2ft. from the door. The lavatory window was about 8ft. away from the nearest next window. There were laundry sticks jutting out from all the lower floors below the toilet window. The balcony was on the 1st floor below. The appellant denied that she threw anything out. She said that Tang Lung St., had stalls and a metal shop opposite and was noisy. She also said that there was no shouting by the constable at all. Her witness, the husband of her lady friend, corroborated her. He said that after he got out he was caught by the police and was taken to the staircase and searched. The appellant was told to go to the room to be searched. After the appellant, her lady friend was also searched. They were told to remain in the sitting room. It was only then that the child wanted to go to the toilet. One of the police party left the premises and returned with the alleged drugs. He confirmed that there was no shouting and the window was closed with a little slit opened.

3. On these evidence learned counsel for the appellant pointed out that there were certain aspects which at least aroused suspicion. First of all, the appellant was searched before she went to the toilet and all persons were searched in the first instance at the landing. The appellant said so. So did the 2nd defence witness. The 2nd and the 3rd prosecution witnesses did not say that they searched the appellant and her friend before the appellant went to the toilet. It was argued that the first reaction of any police party who wanted to search the premises would have to search the persons first, particularly when a police constable was sent to the 1st floor balcony in order to prevent people from throwing down things from the appellant's premises. The learned magistrate rejected the evidence of the prior search in only one solitary sentence without assigning any reason. Counsel contended that the 1st prosecution witness's evidence suggested that the window in the toilet were wide open and that the appellant reached out to the toilet window. The 2nd prosecution witness said she tried to catch the appellant without success. The 1st prosecution witness said that the appellant stretched out her hand whereas the 2nd prosecution witness said that the package was thrown out by the appellant. Thirdly it was contended that by his statement to the police investigating officer the 1st prosecution witness said that he shouted from the kitchen window. In court the 1st prosecution witness said that he shouted from the toilet window. If, it was contended, the 1st prosecution witness had to go to the kitchen window to shout then the third prosecution witness who was on the balcony of the 1st floor could not have heard the shouting in time so as to observe the package falling down from the 11th floor. There was also conflict of evidence as to when the 3rd prosecution witness saw the package falling down in his evidenc-in-chief. In his evidence-in-chief the 3rd prosecution witness said that he observed the package falling down from the 11th floor but in cross-examination he said he could not tell from which floor the package fell. The fourth point is that there are inconsistencies in the evidence between the 3rd prosecution witness. In his evidence-in-chief he said that he found dangerous drugs but in cross-examination he reverted to saying that he found suspected dangerous drugs. The 1st prosecution witness did not lean out of the window to shout as there were iron bars barring the window. It was impossible for the 3rd prosecution witness to hear the shouting because the area was crowded. The 2nd prosecution witness said that the appellant rushed to the toilet window but said later that she threw the thing out of the toilet window.

4. Finally it was contended that in the course of the trial the learned magistrate was invited to visit the scene to find out if the area was so noisy that shoutings from the 11th floor of the building could not be heard on the 1st floor. He declined. In his findings the magistrate found the environment quiet without having any evidence in support. Counsel said that the magistrate was wrong to find that consistent evidence as to the conversation between the 1st and 3rd prosecution witnesses indicated that they could hear each other. Counsel complained that the magistrate founded his decision on the fact that there was no direct accusation of a police frame up and without properly assessing the evidence of the 2nd defence witness.

5. The main issues are whether the appellant threw the package out of the toilet window and that the package picked up by the 3rd prosecution witness was the package thrown by the defendant as the learned magistrate stated in his Statement of Findings. The so-called aspects arousing suspicion which counsel for the appellant went through with a fine tooth-comb are matters of argument and credibility of witnesses. Suffice it to say that all these points, except one, have been brought to the notice of the magistrate who accepted the prosecution evidence. He had the advantage of seeing the witnesses and hearing the evidence first hand. It is impossible to substitute my opinion for his.

6. However, some criticisms by counsel for appellant as to the magistrate's findings are valid. By consent of the Crown new evidence which was not available at the trial has been put before me. At the trial, the 1st prosecution witness, P.C. 14688, said that as soon as he saw the appellant attempting to throw the package out of the toilet window he dashed forward to grab her hand without success. He immediately shouted through the toilet window "throwing things" which was heard by P.C. 12471, 3rd prosecution witness, standing on the balcony of the 1st floor below. Third prosecution witness looked up at once and saw a package falling down. He kept his eyes on the package till it dropped on the balcony. In his statement to the investigating officer, however, the same P.C. 14688, 1st prosecution witness, said when he saw the appellant attempting to throw the package he ran to the kitchen window which was some distance away. In that event the shouting would not be instantaneous so as to give the 3rd prosecution witness time to observe the falling of the package. However a package containing some 17 grammes is fairly light. It would take some time to fall down to the 1st floor from the 11th floor. When credibility of witnesses is in issue, as it should be quite apparent at the trial, the better practice is for the prosecuting officer to bring such discrepancy to the notice of the accused or his defence counsel. Thus in para. 443a. of Archbold in the Criminal Pleadings Evidence and Practice 39th Edition it is said:

"Where a witness whom the prosecution call or tender gives evidence in the box on a material issue, and the prosecution have in their possession an earlier statement from that witness which is materially inconsistent with such evidence, the prosecution should, at any rate, inform the defence of that fact: R. v Howes, March 27, 1950, C.C.A. (unreported). Although the discrepancy relates to that part of a witness's evidence which is evidence against one defendant only, the information should be supplied to any other co-defendant against whom the witness also gives evidence, as it goes to the credibility of the witness: Baksh v R. [1958] A.C. 167. In certain cases, particularly where the discrepancy involves detail, as in identification by description, it may be difficult effectively to give such information to the defence without handing to them a copy of the earlier statement: R. v Clarke (1930) 22 Cr. App. R. 58; once again the question arises as to whether the defence are entitled to see the statement in order to be able to judge for themselves whether there is a discrepancy, and if so whether it is material. Implicit in the observations of Humphreys J. and Avory J. in R. v Clarke (1930) 22 Cr. App. R. 58, is the view that the defence are so entitled, but that cases was concerned with a previous written description of the accused given by a police officer.
          Further, there have been cases where, in view of their particular circumstances, judges have ruled that the defence should be allowed to see statements made to the police by witnesses for the prosecution. In the absence of any authority to the contrary it is submitted that the practice of revealing to the defence the previous statements of prosecution witnesses which are relevant to their evidence is not only wholly unobjectional but is very much in the interests of justice. This practice is largely followed at the Central Criminal Court. Oral as well as written inconsistent statements of witnesses can be both put in cross-examination and, if not admitted, proved by the opposing party under Denman's Act. It is submitted that it is wholly wrong for the Crown not to furnish the defence with such material and thus prevent them from exercising their rights under that Act. Quite apart from the "inconsistency" point there is the further consideration that a witness may have forgotten or omitted in evidence some part of his statement which may, unbeknown to the prosecution be most material to the defence case. As to the duty of the prosecution with regard to a prison medical officer's report or statement on the question of insanity, see para. 1447i, and for the obligation to supply details of the defendant's previous convictions to his solicitor or counsel see Practice Direction [1966] 1 W.L.R. 1184."

7. That, however, was not done. The magistrate was deprived of the opportunity to assess the value of the 1st prosecution witness's evidence after taking this discrepancy into consideration. In this connection, I have to make it clear that this neglect casts no reflection on the part of the Crown Counsel in this appeal who was not presenting the case in the Court below. The prosecution before the magistrate was in the hand of an inspector who probably was not aware of this practice and requirement.

8. The second criticism is, I understand, that in the course of the trial the learned magistrate was invited by defence counsel to inspect the scene of the crime to find out for himself if the area was not noisy that no shouting from the 11th floor could be heard on the 1st floor and vice versa. The magistrate declined. Inspection of the scene is very much in the discretion of the trial magistrate. If the feels that he is able to come to a decision without so doing, it is proper for him to decline. However, had I been in his place I would have done so - seeing that the question whether the prosecution witnesses could hear one another with the distance of 10 floors or 11 floors between them was another issue of credibility at the trial. Consistent evidence as to the content of conversation cannot possibly indicate that the parties heard each other. It is only one of the explanations. The reason is obvious. The parties could have corroborated one another by collusion before hand. That, however, is a passing remark and that is of little consequence. What is significant is that having so declined to visit the scene the learned magistrate said in his Statement of Findings as follows:-

".......... . I considered that the environment was quiet in this space. I found that such an exchange of conversation between the two levels could reach each other, after carefully studying the circumstance, environment and the consistent evidence of the contents of words shouted out by P.W. 1 and P.W. 3."

There is no evidence as to the environment before the learned magistrate except the evidence of the appellant who said that the area was noisy at that time of the night. Having regard to the aforesaid criticisms, I am of the opinion, that the learned magistrate did not consider all the evidence before him when he assessed the credibility of the witnesses when he came to any conclusion. On the other hand, the magistrate is clear as to his findings. In view of the aforesaid, I find that there is sufficient valid criticisms on the findings as to the irregularities but there is insufficient doubt for me to quash the conviction outright. For these reasons the appeal is allowed to the extent that the conviction is quashed and that there should be a trial de novo.

Simon F.S. Li

Representation:

Cheng Huan (Alfred Lau & Co.) for Appellant

Murphy c.c. for respondent