The Queen v. Hung Miu Ching and Another

CACC000551/1988

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Coram: Cons, Ag. C.J., Power & Macdougall, JJ.A.

Date of hearing: 8 August 1989

Date of delivery of judgment: 16 August 1989

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. On the 25th of May last year a police party visited Room 239, Block 31, Sau Mau Ping Estate. They were admitted by on WONG Kam Kwok, a man 18 years of age (D1). With him inside the room were two women, HUNG Miu Ching aged 54 (D2) and AU Yuk Na aged 18 (D3). Each of the three had his or her own key to the room.

2. On a shelf above the door the police found two plastic bags which together contained, in various other plastic bags, what was subsequently found to be a total of 480.56 grammes of a mixture containing salts of esters of morphine. In due course all three were charged in the District Court with possession of the drugs for the purpose unlawful trafficking, (together with another charge which does not concern us here).

3. The hearing came on before Judge Leonard on the 10th of November. The Defendants were represented by a solicitor assigned by the Director of Legal Aid. The Crown was represented by private counsel. Wong, the young man, pleaded guilty at the outset. He was dealt with there and then, being sentenced to four years imprisonment. The judge observed that he would have made it six and a half years upon conviction following a plea of not guilty.

4. The trial of the two women continued. The facts as we have briefly outlined them were admitted on their behalf; likewise photographs which depicted the room and where the drugs were found, and certificates from the Government Chemist. The photographs show a small room, (said to be about 150 sq.ft.), poorly furnished and cluttered with clothes and objects of all description strewn everywhere. The plastic bags which contained the drugs were of the carrier bag type commonly issued by shops and were placed upright at the end of the large shelf, itself covered with a jumble of other bags, boxes and magazines.

5. There in effect the prosecution rested, relying upon the presumption triggered by possession of the keys and other presumptions within the Dangerous Drugs Ordinance, Cap. 134. There was evidence of other matters tendered, but the judge quite rightly refused to accept it as admissible.

6. Both women gave evidence. The elder said in substance that the young man in the room was her stepson, with whom she was not on good terms and over whom she was unable to exercise parental control; he rarely returned to the room at night, but as she was normally away until 8 o'clock each evening, she did not know if he went there during the day; she was home on the day in question because she had reported sick for work and gone home to rest; she was asleep when the police arrived and was not aware that the other two had come in meanwhile.

7. The younger woman introduced herself as the young man's "intimate girl friend", working in her own mother's store. The substance of her evidence was that she had slept in the room a few times but kept no clothes there; sometimes she would prepare soup for her young man and had the key to the room so that she could leave the soup there; on the day in question he had telephoned at noon to say that he was not feeling well, so she went to see him; he declined the attention of a doctor and she had stayed to watch television with him.

8. Each woman denied knowledge or possession of the drugs. The crucial question then, by reason of the presumptions, was whether on a balance of probabilities the judge thought the denials to be true. In the end he was not satisfied that they were. Accordingly he convicted both as charged, sentencing the elder to six and a half years' imprisonment, in line with the comment he had made earlier, and the younger to be detained in a training centre. They apply now, through Mr. Macrae, for leave to appeal the convictions, and the elder woman applies on her own, for leave to appeal her sentence.

9. The outcome of the first application turns upon the "short statement of the reasons for verdict" which the judge subsequently recorded as required by Section 80 of the District Court Ordinance Cap. 336. The material passage is terse:

"D2 and D3 have given evidence in order to rebut the presumptions. D1 who has pleaded guilty to the charge, was not called to give evidence for D2 and D3 though he was available. His plea was not evidence but there were admitted facts relating to him.

Having seen and heard D2 and D3 give evidence, and having considered the admitted facts and the whole of the evidence, I find that none of the presumptions have been rebutted on the balance of probabilities and accordingly I am satisfied beyond reasonable doubt that D2 and D3 are guilty as charged, and I convict each of them on charge 1. I was unable to believe their evidence which amounted to a denial of knowledge and possession. I judged by their demeanour that they were not telling the truth."

10. Mr. Macrae submits, very forcefully, that that is not good enough; that the judge "has failed to explain adequately why he was 'unable to believe' their evidence, or what exactly he disbelieved about their evidence".

11. Similar criticisms have been voiced in the past against other judges. At one stage there appeared to be some divergence of opinion as to how they should be approached in this Court. It is however now settled that the path was correctly outlined by Blair-Kerr J. in R.E. Low [1961] H.K.L.R. 13 when he said at p. 82:

"But it must be remembered that the District Judge is himself the jury. He was heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his bonclusion."

12. This passage was approved in R. v. CHEUNG Yuen Hing [1988] 1 H.K.L.R. 160 and most recently in R. v. NGAN Chi Shing unreported Criminal Appeal 622 of 1988.

13. The judgment in the former case included a useful quotation from R. v. LAM Tin Chung [1970] H.K.L.R. 105:

"Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes."

14. In the present instance the judge was left with a direct choice between the evidence of the women and the presumption.

15. In his Notice of Appeal Mr. Macrae listed eight factors or features which he suggested should have aided the judge in coming to a decision favourable to the Defendants:

(1) the young man pleaded guilty,

(2) it was the young man who opened the grille to admit the police to the room,

(3) the drugs were not obvious,

(4) there was nothing positive to suggest joint enterprise or possession,

(5) the evidence of the older woman that she was asleep when the police came,

(6) the evidence of the younger woman that her presence was due to her delivery of soup to the young man - (that is not strictly correct, her evidence as to that occasion was simply that she "went over to see him"),

(7) her evidence that she had the key in order to deliver soup on other occasions and

(8) the clear record.

16. Emphasis has been placed on the fact that the evidence in items 5, 6 and 7 had not been challenged by counsel for the Crown. It is difficult however to see how he could have challenged matters which were inherently within the knowledge of the Defendants, other than simply to put it to them that they were telling lies. We do not think that would have been of much assistance to the judge. It is not suggested, nor could it be, that failure to challenge bound the judge to accept the evidence as true, but even then, the evidence would not, like the other items listed, be inconsistent with participation in possession of the drugs.

17. Mr. Macrae, while accepting that draconian measures are to some extent necessary to combat the evils of dangerous drugs, has drawn attention to the danger of injustice to which the presumption  in the Ordinance expose the unsophisticated or inarticulate defendant or the one who, though innocent, is naturally tempted to distance himself from what is subsequently shown to be a criminal situation.

18. We appreciate that risk, but such considerations are by no means restricted to prosecutions for drug offences and must be in the mind of every judge or magistrate whenever considering the credibility of a person likely to be so affected. We see no reason to think they were not present to the mind of the judge below, or that he overlooked the other matters we mentioned earlier. We therefore see no reason to interfere with his decision and the applications for leave to appeal against conviction must be refused.

19. The sentence of six and a half years is well within the guidelines suggested in CHAN Chi Ming [1979] H.K.L.R. 491. No other material consideration has been put forward. That application must be refused as well.

Representation:

I.G. Cross Crown Prosecutor for the Respondent

Andrew Macraw Director of Legal Aid for the Appellants