The Queen v. Ma Wing Hong

IN THE COURT OF APPEAL

1986, No. 334
(Criminal)

BETWEEN

THE QUEEN

AND

MA WING-HONG

_____________

Coram; Roberts, C.J., Yang, J.A. & Penlington, J.

Date: 24^th March 1987

_______________

J U D G M E N T

_______________

Roberts, C.J.

1. MA Wing-hong (“the defendant”) seeks leave to appeal against both conviction and sentence. He was convicted on one charge of possession of dangerous drugs for the purpose of unlawful trafficking after trial before a judge and jury and sentenced to seven years imprisonment.

2. The charge allege that on 31st May, 1985, in Kimberley Street, Tsim Sha Tsui, together with CHUNG Kwok-ping, MA Wing-hong had in his possession 444.79 grammes of a mixture containing salts of esters of morphine, for the purpose of unlawful trafficking.

3. The majority of the facts adduced by the prosecution witnesses were not seriously in dispute. It was admitted that CHUNG Kwok-ping, who was named in the particulars of the charge and had pleaded guilty to a similar charge on another occasion, brought a cake box, which contained 445 grammes of dangerous drugs, into the Yat Ka Chun Restaurant in Tsim Sha Tsui and placed it on a table, where the defendant, his girlfriend; and a man referred to as "On Chai" were sitting.

4. Acting; no doubt, on information received, police officers Here keeping the restaurant under observation. Sgt. 9601 testified that he saw the box being put on the table at which these four persons were sitting and that it was taken by the defendant out of the restaurant to a car which was waiting outside. On the way out of the restaurant, the box was transferred for a moment into the possession of the girlfriend before being returned by her to the defendant. The defendant and the girlfriend entered the car, taking the box with them. Police officers, who followed them from the restaurant then arrested them.

5. Later the same afternoon, the defendant made a statement to a police officer, which was duly recorded by the officer and signed by the defendant. In it, the defendant admitted knowing that the box had contained 'white powder', that it belonged to him and that his three friends knew nothing about it.

6. The defence at the trial did not dispute that the defendant had been in possession of the box from the time when he picked it up in the restaurant until he was arrested with it in the car, save for a brief period when he handed it to the girl. He did, however, maintain vigorously and throughout that he had no knowledge of its contents.

7. In relation to the detailed confession which he made, he asserted that he did not know what was in the confession when he signed it and that he had been induced to .do so ay a promise made to him by the police officer that, if he confessed, he and his friends would be dealt with leniently. He added that he had believed that only a small quantity of drugs was involved and that he would never have made an admission of this nature if he had known the amount of the dangerous drugs found in the cake box.

8. So the real issues which were before the jury were the status and credibility of the statement, and the knowledge of the defendant as to the contents of the box. It must, of course, be noted, and there is no criticism of the summing-up in relation to this, that once it had been established beyond reasonable doubt, as indisputably it was, that the box containing dangerous drugs was in the possession of the defendant, presumptions arose against him in law that he knew the nature of the drugs and that he was in possession of them for the purpose of unlawful trafficking.

9. To support his defence, the defendant called his girlfriend, who insisted that she had no knowledge of the contents of the box, and CHUNG Kwok-ping, who said that his instructions were to hand. the box to someone else and not to the defendant.

10. Mr. Tse advanced, with much skill, a number of grounds of appeal. The first of these, and perhaps his principal submission, is that there was a material irregularity in that the trial Judge cross-examined the defendant and his witnesses in such a way as to demonstrate his disbelief of their evidence.

11. An examination of the transcript shows that the Judge asked a substantial number of questions of the defendant and his two witnesses. Insofar as statistics are of assistance, the defendant was questioned by the Judge for 2½ pages out of 28 pages of evidence; the girlfriend for 1 page out of 11 and the other witness, Chung Kwok-ping, for 3 pages out of 16 pages.

12. Unfortunately, this criticism of trial judges is made from time to time, and there are several authorities which deal with the matter. It is well established that a Judge may ask questions. There is no objection to him probing matters Which were not raised in examination-in-chief or in cross-examination, though it is desirable that counsel for both sides, in the event of substantial interventions by a Judge at the end of the evidence, should be given an opportunity to re-examine on any new matters raised by the Judge, as was done in this case.

13. What the Judge must not do is to demonstrate his disbelief in the defence and the defence witnesses. In the recent case of R. v. Matthews[1], it was said that, while a large number of interruptions must put an Appellate Court on notice of the possibility of a denial of justice) mere statistics are not decisive. The critical aspect is the quality of the interventions, as they relate to the attitude of the Judge as this might be observed by the jury.

14. In Matthews, there are references to R. v. Hamilton t[2], which is often quoted. In that case, Lord Parker, C.J., referred to there being three being three main types of intervention which could give rise to the quashing of a conviction, the first of which is as follows -

“(1) Those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and that they may disregard anything that the judge may have said with which they disagree;”

15. The other two types of intervention referred to by Lord Parker in Hamilton² are not in issue here, since there were no interventions by the Judge while any of the evidence.

16. What the Judge did was to ask a number of questions after the conclusion of the re-examination of the witnesses. Undoubtedly, some of them were searching; some were to a degree repetitive, some may be thought to show that there were some doubts in the mind of the Judge as to the evidence giving by witnesses on some matters. What we have to decide is whether the Judge went beyond the permissible limits, to the point at which in the words of Jones v. National Coal Board[3] “one of the parties has come away complaining that he was not able properly to put his case” or whether it could be said that the Judge had clearly demonstrated a disbelief in the defence being put forward to the jury.

17. We do not think that the Judge overstepped the line behind which a Judge must always remain. He made it clear, in addition, to the jury in the early part of his summing-up that, whatever he might say in relation to them, the juries were the judges of the facts -

“If I express any view on the evidence, such views may also be ignored if you consider that they do not accord with your own views or you come to the conclusions that those views are of no assistance to you."

18. Although we do not think that, on an examination of the questioning in relation to the context of the case as a whole, permissible limits, we would like to repeat, for the guidance of trial Judges, that excessive questioning of witnesses is to be discouraged, since there is a danger, though we think it was avoided in this case, that frequent interventions by the Judge may impair the impression interventions by the Judge may impair the impression of impartiality which he should always preserve.

19. The second ground put forward was that there were misdirections on individual items of evidence. In particular, there was criticism of passages which related to whether or not the applicant made a phone call from the restaurant shortly before the cake box arrived and as to whether the applicant was arrested by the exit from the restaurant or in the motor car outside.

20. There are passages both in the transcript of evidence, and in the summing-up, which are not as clear as they ought to have been, but they related to peripheral matter and, even if misunderstood by the jury, could not have had any substantial effect on the main issues which were before them.

21. The third ground is that the trail Judge failed to give a fair and properly balanced summing-up for the defendant in the same way as he had for the prosecution. It lists a number of comments which were made by the Judge and suggests that they were in favour of the Crown and against the defendant.

22. The Judge did make a number of comments, on aspects of the defence put forward, in an unfavourable manner, but so long as a Judge makes it clear, as he did in the passage to which I have referred and in later passages as well, that all findings of fact are for the jury, this he is entitled to do.

23. In general terms, we see no substance in the suggestion that the jury. On pages 6 and 7 of the defence, as to the evidence of the Sergeant who was present in the restaurant, is put forward in detail. On page 8, the Judge refers to the denial by the defendant of his knowledge of the contents of the cake box. On page 9, he refers to the defendant’s allegation that his statement was not the product of his own mind, and was concocted by a police officer. On page 14, he refers in detail to the evidence of the girlfriend, CHENG Lap-hung, and. of CHUNG Kwok-ping, the other witness called by the defendant.

24. Although there are some items of evidence, which might have been regarded by the jury as being favourable to the defendant and which were not repeated by the Judge in his summing-up, taken as a whole, we see no reason to criticize it as not presenting the defence in a sufficiently full and fair manner.

25. The only other ground of appeal, with which it is necessary to deal, is the fifth ground, which suggests that the trial Judge failed to put the defence adequately, in relation to the weight to be given to the statement which was admitted in evidence by the Judge after a voir dire.

26. The Judge did not rehearse before the jury all the evidence which had been given in relation to the circumstances in which the statement was given and the contents of it, but he gave clear directions to the jury as to how they should approach the statement.

27. At page 9, he warned them that the defendant had said that his signature to the statement was obtained by inducements. On the following page he reminded the jury of the defendant’s denial that he was given an opportunity of knowing what the contents of the answers were before he was induced to sign them. At the bottom of page 10, he told the jury that it was for them to decide whether the confession was a fabrication; in which case, they must ignore it completely. He added that if they found that it was recorded as the police officer had claimed, it became what he described as "good evidence” against the defendant, and that they were then entitled to assign full weight to it and to convict him on the statement alone.

28. This appears to us to be an entirely fair and proper direction as to the functions of the jury in relation to that statement and as to the weight which it was proper for them to give to it.

29. We see no grounds on which we should interfere with this conviction and the application for leave to appeal against conviction is dismissed.

30. The sentence of seven years' imprisonment falls within the tariff level prescribed in R. v. CHAN Chi-ming[4]. According to that case, for quantities of dangerous drugs between 150 and 1,000 grammes, a range of sentences of between 5 and 8 years is appropriate, on conviction following a plea of not guilty and a trial.

31. The applicant is aged 32. He has two previous convictions though neither of them was for an offence of much gravity. There are no special circumstances in his case, which would lead a court to reduce a sentence below what would be normal within the tariff. We see no grounds for saying that a sentence of seven years, though it may perhaps be slightly on the high side, is so manifestly excessive that we should interfere with it. The application for leave to appeal against sentence also fails.

Mr. Joseph W.Y. Tse (David K.W. Tsang & Co.) for Appellant

Mr. C.D.F. Coghlan, Crown Counsel, for Respondent/Crown Prosecutor

[1]  [1984] 78 Cr.App.R. 23

[2]  [1969] Crim.L.R. 486

[3]  [1957] 2 Q.B. 55

[4]  [1979] H.K.L.R. 491