R. v. Ng Kit Fung

CACC000554/1995

1995, No. 554

(Criminal)

IN THE COURT OF APPEAL

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Coram: Hon Power, C.J. (Ag), Mortimer, J.A. and Leong, J.

Dates of hearing: 20 March 1996, 24 September 1996 and 22 May 1997

Date of judgment: 22 May 1997

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J U D G M E N T

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Leong, J. (Delivering the judgment of the Court) :

1. The applicant was convicted by a jury of unlawful trafficking in a dangerous drug. The amount involved was 338.93 grammes of a mixture containing 90.37 grammes of heroin hydrochloride. He was sentenced to 9 years' imprisonment. He now applies for leave to appeal against conviction and sentence.

2. The prosecution evidence is this. On 9th December 1994 at about 9.30 pm, two police officers on foot patrol observed that the applicant was acting suspiciously, patting his jacket from time to time. The officers stopped and searched him. They found in his jacket two brick like substances. When he was asked what they were, the applicant made no response. He remained silent when cautioned. The substances were subsequently analysed and found to be the dangerous drugs in the present case.

3. The applicant gave a very different version of what happened. His evidence is that on the night in question, he had bought in Central two packets of dangerous drugs which he kept on his person. While he was waiting for his friend in Sunderland Street, the police officers approached him and searched him. They found the two packets of dangerous drugs. He was further searched and beaten. Thereafter he was taken to a third officer called "Fei Gor" who told him to lead the officers to find dangerous drugs and if dangerous drugs were found, they would release him. He therefore took the officers to a place on the 36th floor of a building where he had seen people smoking dangerous drugs. The officers searched the premises and found the dangerous drugs in a water meter box on the premises. His home was searched but nothing was found.

4. He called a number of witnesses. Their main evidence is that the applicant was of good character. His case is that the police officers conspired to say the dangerous drugs in question were found on him.

5. There are three grounds of appeal and these were formulated by counsel on the applicant's behalf :

1. The learned judge having directed the jury to consider whether the applicant had lied in his evidence, failed to provide to the jury a direction on the effect of lies.

2. The trial judge invited the jury to draw inferences from the evidence, but failed to direct them as to the circumstances in which they could properly be drawn.

3. The trial judge invited the jury to engage in speculation concerning the storage of the drugs relying on evidence of the retail value of the drugs when the said drugs were not in retail form.

6. The applicant now acts in person and he has two additional grounds :

7. First, during the trial the judge revoked his bail but subsequently reinstated it. Consequently the jury could have been bias against him. The judge was wrong in not discharging the jury.

8. Secondly, the judge had accused defence lawyer of lying to court but the judge later withdrew the remark. The judge prevented defence counsel from cross-examination of prosecution witnesses. The judge was bias and should have discharged himself from hearing the case.

9. The passage in the judge's summing-up to the jury where "lies" has been mentioned is at page 11 and it is this:

"Now it has been suggested that the officers had fabricated the evidence to frame the accused with a more serious charge and their version - what they told you were complete lies. Of course, you have to bear in mind that telling lies is not the privilege of policemen or any particular class of people. Anyone can and is capable of telling lies. So, you have to examine the issue carefully and decide whether the officers or the accused and his witnesses had told you lies."

At page 18, the judge told the jury that even if they rejected the evidence of the accused the prosecution still was required to make them sure that the accused was guilty before they could convict.

10. In these passages, the judge made it clear to the jury that they should act cautiously before accepting the officers' evidence as true and not to convict simply because they did not believe the defence evidence.

11. There are many authorities dealing with when a full direction to jury on lies is necessary. Suffice to say that there is no rule that a judge invariably has to give such a direction whenever there is a clash between the evidence of a prosecution witness or witnesses and that of an accused even if the acceptance of the prosecution evidence and rejection of the accused evidence necessarily carries with it the implication that the accused has lied (R. v Penman (1986) 82 Cr App R 44; R. v. Cheung King Kwong Cr.App. 583/91; R. v. House & Meadows (1994) Crim L R 682). The present case involves a direct conflict between prosecution evidence and defence evidence. The judge is not obliged to give a direction on lies.

12. On the complaint raised in Grounds 2 and 3, the following passage on page 5 of his summing-up is relevant :

"Possession is established if the accused had custody or control of the dangerous drug and he knew what he possessed was dangerous drug. Therefore if you are satisfied so that you are sure that the accused was in possession of the dangerous drug, it would be open to you to draw the inference that he had the dangerous drug for the purpose of trafficking and in drawing such an inference, you can take into consideration the quantity of the dangerous drug and its value. It is unlikely that the accused would have it for his own consumption or use such a large quantity worth such a large among of money. Further you heard his evidence that he is not a drug addict and that the dangerous drug was in a brick form and not in a powder form ready for smoking."

13. Later at page 16, the judge referred to the street retail value of the drug which, according to the evidence of Chief Inspector Brown, was something in the region of $180,000. Clearly the attention of the jury was drawn to the circumstances from which, if they accepted them to be true, they were entitled to draw the inference that the drug was for unlawful trafficking. There was no real danger that the jury might have based their conclusion on speculation. No complaint can be made against the judge's direction in this respect.

14. As to the applicant's new grounds, the record of proceedings which is now before this court show that at the close of the first day of trial after the jury had left, the judge revoked the applicant's bail . The following morning before the jury returned to court, counsel for the defence requested that the jury be discharged. The judge did not discharge the jury but he reinstated the applicant's bail. The jury could not have been aware of these orders and influenced by them. The applicant could not have been prejudiced in any way.

15. On the second new ground, the record shows that in the afternoon of the second day of trial, counsel for the defence objected to the prosecution calling a doctor on the ground of relevancy and that it was at a late stage of the trial. During arguments in the absence of the jury, the judge was recorded to have commented that conduct of defence counsel was bordering on contempt. Defence counsel then submitted he should discuss with his client as to continued representation by him if he could not "fearlessly and robustly put his case..." The judge remarked that there was "distinction between 'robust' and 'dishonest"" Defence counsel then made submission on that remark and asked the judge to discharge himself from further hearing the case. After hearing arguments, the judge withdrew the word 'dishonest' after he agreed that the use of the word was excessive. In any event, the doctor was not called by the prosecution.

16. Despite this short and somewhat heated exchange between the judge and defence counsel, the record shows that defence counsel was able to cross-examine prosecution witnesses at length and to put the defence case fully before the jury. The applicant was not prejudiced in the trial nor the judge was acting in a manner which rendered the trial an unfair one.

17. Additional matters were raised by the applicant this morning but these had all been put before the jury and adequately dealt with by the judge. This does not take the application any further. There is no substance in this application and it must be dismissed.

18. On sentence, the range of sentence for trafficking a quantity of 90.37 grammes of heroin hydrochloride, according to R. v. Lau Tak Ming is 8 to 12 years. The applicant has a clear record and is not a drug addict. He was 27 years old on the date of his conviction and he came to Hong Kong from China in 1981. There is no evidence that he participated in retailing the drug. If there were, this would be an aggravating factor. There were nevertheless no mitigating circumstances. The sentence of 9 years imprisonment is neither wrong in principle nor excessive in the circumstances of the case. The application for leave to appeal against sentence must also be dismissed.

Representation:

Mr A.A. Bruce, SACP, for Crown/Respondent

Appellant Ng Kit Fung in person on 20th March and 24th September 1996

Mr John Mullick (D.L.A.) assigned for Appellant on 22nd May 1997