HKSAR v. Wong Yat Hing

CACC000548/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 548
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Leong, JJ.A. in Court

Date of hearing: 23 April 1998

Date of delivery of judgment: 23 April 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted of trafficking in a quantity of dangerous drugs after a trial before Mr. Recorder Tang, S.C. in the High Court. He now seeks leave to appeal against this conviction.

2. The particulars of charge reads:

"TSE Kin-tung and WONG Yat-hing, on the 12th day of November, 1996 at Room 220, 3rd Floor, Block 5, Ngau Tau Kok Upper Estate, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 209.34 grammes of crystalline solid containing 200.97 grammes of methamphetamine hydrochloride (a salt of methamphetamine)."

3. As will be observed the Applicant was jointly charged with another defendant, Mr. TSE Kin-tung. Mr. TSE who was known as Ah Tung pleaded guilty to the offence and gave evidence against the Applicant.

4. The other principle prosecution witnesses were Ah Tung's mother, madam KWOK and a Mr. CHENG who lived with madam KWOK and Ah Tung.

5. Mr. CHENG gave evidence that on the evening in question he was at home with madam KWOK. He heard a knock on the door and when he responded to it and opened the door, he saw the Applicant who was not known to him. The Applicant said that he had come to fetch something for Ah Tung. He then went to Ah Tung's room and took out a shoe box and attempted to leave with it. Mr. CHENG asked him what was in the box and the Applicant declined to tell him. A physical struggle ensued during which the lid of the box was dislodged. He was able to see packets inside containing a white coloured substance. He asked the Applicant if the contents of the packets were drugs and he replied in the affirmative. He then prevented the Applicant from leaving and the police were telephoned. Shortly after this the police arrived and the Applicant was arrested. Madam Kwok gave a similar evidence although there were a number of discrepancies.

6. Ah Tung gave evidence of how he had come to know the Applicant and two other friends. He said that the Applicant had asked him to carry drugs for him. He had agreed to keep a consignment of ICE for him. On the evening in question he had seen the two other friends at the park near his home. He had spoken with them and told one of them where the ICE had been kept. Later the Applicant had arrived at the scene. He assumed that one of the friends had told the Applicant where the ICE had been concealed.

7. The Applicant made a statement to the police. The gist of the statement was that he and his friends including Ah Tung had decided to spend the evening together. Ah Tung had asked him to go to his home and get his shoes for him. He had complied with this request. He had had no idea that the box containing the shoes had been used to store dangerous drugs. He denied any knowledge of the dangerous drugs. He did not give evidence at his trial.

8. The 1st ground of appeal is that:

"The learned Judge erred in law when in his summing up to the Jury he failed to detail the major discrepancies between the evidence of Cheng King-man, the stepfather of Tse Kin-tung, the accomplice witness, and the mother of Tse Kin-tung, Kwok Ah-sin."

9. The Judge did refer to inconsistencies in these witnesses' evidence at p. 6 of the summing up. He said:

"You remember the cross-examination of CHENG King-man and KWOK Ah-sin for example, on whether it was CHENG or KWOK who snatched the shoe box; on whether it was CHENG or KWOK who asked for the ID card; on where KWOK was, was she inside Ah Tung's room or out in the living room; on what happened to the shoe box; on whether CHENG or KWOK knew the defendant and why they let him in; on whether there were telephone calls, how many there were, what was said and who answered them; on whether the shoe box was kept together with the paper bag, and whether KWOK Ah-sin looked inside; on why the report was made to the police at 8.49 if the defendant arrived at the flat at 8.35, on how reliable was CHENG or KWOK on their estimate of time.

You remember the discrepancies which counsel for the defence had highlighted in his speech. These are all matters for you. It is up to you to decide whether they or any of them is important, and you will bear them in mind in assessing the evidence of KWOK Ah-sin and CHENG King-man."

10. There is no requirement for a Judge to detail every inconsistency there may be in the evidence of witnesses. The summary given by the Judge was sufficient in the circumstances of the case.

11. The 2nd ground is framed in this way:

"The learned Judge erred in law when in his summing up he failed to remind the Jury of the importance of the fact Tse Kin-tung was an accomplice witness and that as a result his evidence may be tainted. It was not sufficient to merely inform the Jury that they should treat the evidence of Tse Kin-tung with great caution merely on the ground that Tse Kin-tung had an interest in inculpating the defendant."

12. Again it is necessary to have regard to the way in which the Judge dealt with this. He said at p. 4 of his summing up:

"Moreover, in considering the evidence of TSE Kin-tung, you have to bear in mind that he is a convicted criminal, and that although he has pleaded guilty he has not yet been sentenced. As he has admitted in evidence, he believes that he might get a lighter sentence if, as a result of his evidence, the defendant is convicted. You should approach his evidence with great caution. You have to examine his evidence with great caution. You have to examine his evidence with particular care because TSE Kin-tung is a person who has an interest in inculpating the defendant. Bear that in mind before deciding whether or not you feel able to accept what TSE Kin-tung has told you about the defendant.

At the end of the day, if you are sure that TSE Kin-tung's evidence is true, you may accept his evidence."

13. It was manifest from the charge sheet that Ah Tung was a co-defendant. The warning given by the Judge was entirely adequate and alerted the jury to the dangers attendant upon accepting Ah Tung's evidence at its face value. It should also be added that the requirement for warning the jury of the dangers of convicting a defendant on the uncorroborted evidence of an accomplice has now been abrogated.

14. The 3rd ground is that:

"The learned Judge erred in law when he adduced evidence as to reasons why Kwok Ah-sin may have given completely contradictory evidence to that of Police Constable KU Ka-man reading from a contemporaneous record of his note book as to what he both saw and heard and from whom when he arrived subsequently to arrest the defendant. The above were not put by Counsel for the S.A.R.H.K. or the Defence to Kwok Ah-sin and were subject to an objection by the Defence counsel after the completion of the summing up. The learned Judge also failed to direct the Jury that whilst the evidence of Kwok Ah-sin and Cheng King-man were virtually the same as to what occurred when Ku Ka-man entered the apartment no explanation was forthcoming to explain that fundamental discrepancy, the evidence of Cheng King-man."

15. The complaint which arises from this stems from the directions the Judge gave at p. 7 :

"The other important witness is the police constable, KU Ka-man. He was one of the officers who visited KWOK Ah-sin's flat as a result of a report to the police. According to him, the door was opened by KWOK Ah-sin and that he saw Mr. CHENG and the defendant seated at the sofa. Also, according to him, it was KWOK Ah-sin who spoke to him and that she spoke for about three or four minutes. His evidence to you is based on what was said by KWOK Ah-sin.

You bear in mind the discrepancies between his evidence and the evidence of KWOK Ah-sin and CHENG King-man. You have to assess the importance of such discrepancies. You have seen KWOK Ah-sin in the witness-box. You have to decide whether she is capable of describing everything which had happened in the short space of a few minutes. You may think that there might have been some misunderstanding between KWOK Ah-sin and the police constable; for example, over who it was who snatched the shoe box from the defendant. You have seen physically how small KWOK Ah-sin is. You remember that she said she was pregnant at the time. You have seen the relatively strong build of CHENG King-man. You may wish to bear all this in mind in assessing the evidence of this witness. It is a matter for you.

You may also remember when the police constable was asked whether KWOK Ah-sin told him how the defendant entered the premises, the constable said something to the effect that he could roughly remember. You may want to bear that in mind in considering the discrepancy between his evidence and the evidence of CHENG King-man and KWOK Ah-sin. In assessing the reliability of a witness, you have to bear in mind that it is not uncommon when different people describe the same thing or incident, there are discrepancies, or that when the same person is asked to describe the same thing or incident on more than one occasion, there are discrepancies."

16. These were perfectly proper observations made by the Judge. At the conclusion of the summing up Mr. Beaumont who also represented the Applicant at his trial did invite the Judge to modify his directions in this connection. He declined to do so as he was satisfied that the summary he had given to the jury had been a fair one. We agree. It is unrealistic in a summing up to descend into all the minutiae of evidence which is given as this would lead to directions of inordinate prolixity. There can be no legitimate complaint concerning this part in the summing up.

17. The 4th ground complaint is made that:

"The learned Judge erred in law when he intervened by putting a line of questions to the TSE Kin-tung concerning shoes and the lighting conditions at the time he was wearing those shoes. This line of questions was not put by the Counsel for the S.A.R.H.K. nor formed part of the cross-examination by the Defence."

18. There is no justification whatever in this complaint. Clearly the Judge was seeking clarification on these matters as he was perfectly entitled to do.

19. The 5th ground is that:

"The learned Judge erred in law in failing to describe a demonstration of the examination of the shoe box by Cheng King-man and the contents thereof, which demonstration went to the credibility of Cheng King-man and which further was not described in the summing up."

20. Counsel here appears to be labouring under a misapprehension concerning the function of a Judge performs when he sums up to a jury. The purpose of the summing up is not to repeat in its entirety all of the evidence which has been led in the case. The purpose is to give directions to the jury on the law and highlight aspects of the evidence in a manner which may assist the jury. It is also very clear that the jury would have seen the demonstration. There is no merit in this ground of appeal.

21. In the 6th ground it is complained that:

"The learned Judge erred in law when he spent a quarter of the period of the summing up in directing the attention of the Jury to the cautioned statements of the Appellant P13 and P14 and reading out part of the contents thereof, and subsequently directing the Jury as to what weight they might give to those questions and answers together with the fact that the Appellant had not been cross examined upon his statements and that they were not made upon oath whilst omitting to direct the Jury that both statements as well as the Post Recorded notes were made under caution and further were not the subject of challenge as to their admissibility."

22. The point here is the Applicant did not go into the witness box to give evidence. The best possible way of putting the Defence case was to refer to the Applicant's cautioned statement. This complaint is unjustified.

23. The 7th ground refers to what appears to have been a slip of tongue. It would have been very obvious to the jury that the Judge had been referring to the evidence of Ah Tung.

24. The 8th ground is without merit. It would have been obvious from the overall evidence that the Applicant's knowledge of the contents of the box came from Mr. CHENG and madam KWOK.

25. The 9th ground is also without merit. It was entirely a matter for the jury as to whether they accepted Mr. CHENG and madam KWOK's evidence. There was no necessity for the Judge to speculate as to why they had allowed the Applicant to enter their flat.

26. The 10th ground is also without merit. There was ample evidence to enable the jury to conclude that the Applicant was engaged in trafficking in dangerous drugs.

27. In the 11th ground a complaint is made that:

"The learned Judge erred in law when he failed to give clear and separate directions to the jury as to the four elements required to be found in order to convict Appellant of the offence of trafficking in dangerous drugs."

28. There was agreement that the dangerous drugs the subject matter of the charge were in the shoe box. The Judge then went on to give the following directions:

"So far as trafficking is concerned, according to the Dangerous Drugs Ordinance, trafficking in relation to a dangerous drug includes 'importing into Hong Kong, Hong Kong, procuring, supplying exporting from or dangerous drug, or possession of a otherwise dealing in or with a dangerous drug for the purpose of trafficking.' It is possession for the purpose of knowingly carries dangerous drugs from trafficking if a person one place to another so that the dangerous drugs may be sold or dealt with later.

If you are sure that the defendant had at one time possession of the shoe box, that is to say he took it out from the middle drawer and held it until it was snatched from him - if you are sure that is what happened, they you may find that he had possession of the shoe box. On the evidence, you should have no difficulty in concluding that the shoe box contained 10 packets of dangerous drugs. But that is not enough. You have to be sure that the defendant knew that the shoe box contained dangerous drugs. If you are not sure, you must acquit. If you are sure that he knew that the shoe box contained dangerous drugs, you must convict him as charged. You may think therefore that the single most important issue is whether the defendant knew that the shoe box contained dangerous drugs and that he had possession of it for the purpose of trafficking. Now, on this you must use your common sense."

29. These directions were sufficient in the circumstances.

30. The conviction was in no way unsafe or unsatisfactory and the application is dismissed.

Representation:

Mr. Francis LO, S.G.C. (D.P.P.) for Respondent

Mr. Ben Beaumont assigned by D.L.A. for Applicant