The Queen v. Kung Kam Kong

IN THE COURT OF APPEAL

1987, No. 15
(Criminal)

BETWEEN

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Coram:  Silke & Hunter, JJ.A. & Power, J.

Date of Hearing: 23^rd April 1987

Date of Judgment: 23^rd April 1987

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J U D G M E N T

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Silke, J.A.

1. The Applicant, Kung Kam Kong, was convicted of possession of dangerous drugs for the purpose of unlawful trafficking and was sentenced to a period of 12 years' imprisonment. He now seeks leave to appeal against that conviction and, in the alternative, that sentence.

2. The Indictment upon which he appeared for trial contained three counts and there were two co-accused: one of them pleaded guilty at the outset and the other in the course of the trial. The jury were, of necessity, aware of the pleas of these two co-accused and they were very properly directed that they should not bear them in mind 1n coming to their consideration of the Applicant's guilt or innocence.

3. The count upon which he was convicted concerned him only and its particulars alleged that he had, on the 10th August 1986 at Chun Shek Estate Car Park in Shatin, in his possession 10,298.66 grammes of a mixture containing 902.46 grammes of salts of esters of morphine.

4. Surveillance officers had seen him in the car park with a plastic bag. He was seen at a telephone. He was dressed in a yellow vest with white floral patterned pants.

5. He was later seen to approach a car, CV1774, with a plastic bag in his hand and the bag had a Clark Shoes motif upon it.  He went to the rear of the car, opened the boot, put the bag in it, closed the boot and then went to the driver's side door.  He opened that door with keys, took out an umbrella and left.

6. Sometimes later, he was seen in the street getting into a car driven by one of the co-accused. And shortly after that, at 3: 15 in the afternoon, he was seen in the car park.  The driver came and went.  Eventually the plastic bag was transferred from the boot of CV1774 to another car.

7. The second car drove away and went down to the ground floor of the car park. It was stopped and its passengers were apprehended. The Applicant was not a passenger and was arrested some two months later.

8. There was evidence that he had bought the car CV1774 paying a deposit on the 5th August and the balance of the purchase price on the 6th August. It was suggested by the Applicant that the car had in fact been sold on. The identity card of another person had been used for registration purposes.  The Applicant said the car had been sold to a person called “Ah Chi”, that the identity card had been given to him by Ah Chi and he thought that that identity card was that of the end-buyer.

9. The basic issue was identification. The main defence raised by the Applicant at trial was that he had either been mis-identified by the police or that the police had conspired to frame him.  He denied being present in the car park on that day and said he had had a meal with his own mother and his son and then later brought his son to an amusement park for the rest of the day.

10. The jury were warned as to the dangers of identification evidence. Put this was not a Turnbull(1) case in the sense of any fleeting glimpse, for evidence had been led in the course of the prosecution's case that the police surveillance officers had seen the accused on numerous occasions in the two to three months prior to the 10th August.

11. Mr. McMahon, who appears for the Crown in this Court and who unfortunately was not the counsel at trial, has, on the Applicant's behalf, drawn our attention to this particular portion of the evidence and to one of the questions asked by the jury after they had retired. This question was in relation to the prior knowledge of the accused by the police. It is also a matter which forms one of the grounds of appeal presented to us by the Applicant.

12. With respect to Mr. McMahon, without having been the counsel at the trial, he is not in a position to inform us precisely how this evidence came to be introduced. It was clearly a matter of importance to the Crown's case, the issue as I have said being one of identification, though perhaps recognition would be a better way of expressing it.

13. The references in the summing up were solely that the police had known this man for some months prior to the 10th August, and no more.

14. The question asked by the jury was “Why did the P.C.s know this defendant or recognize him for two or three months before this?”.

15. The answer they received was an impeccable one.  They were told that there was no evidence as to how that came about or where or why. They were told they only had the evidence of the police officers that, in the two or three months prior to the day of the incident, they had seen the Applicant on numerous occasions. They were told that that was the only piece of evidence they had and they had got to either accept or reject it.

16. While such evidence has a prejudicial value, it is something which clearly should be before a properly and carefully directed jury where recognition and identification are in issue. The jury here were.

17. The Applicant has suggested that the judge should have explained in greater detail how it all came about. Without further evidence it would be difficult for the judge to make any explanation and, indeed, such explanation might well have been adverse to the Applicant rather than in his favour.

18. It is clear from the manner in which the judge dealt with the jury's question that the evidence of recognition was treated with circumspection, as indeed it should have been.

19. We do not consider there is any substance in the other two grounds advanced to us by the Applicant himself. In the circumstances, the application for leave to appeal against conviction is refused.

Applicant in person.

M.A. McMahon, Esq. For Crown/Respondent.

(1)  (1976) 63 Crim. App. R. 132