R. v. Lee Chun Kong

CACC000568/1994

IN THE COURT OF APPEAL

1994, No. 568
(Criminal)

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Coram: Hon Power, V.-P., Liu and Mayo, JJ.A.

Date of hearing: 1 May 1996

Date of judgment: 1 May 1996

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J U D G M E N T

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Mayo, J.A.:

1. The applicant seeks leave to appeal against his conviction for trafficking in dangerous drugs. He was convicted before Cheung J and a jury of trafficking in a mixture containing 3153.83 grammes of a substance containing 1205.99 grammes of salts of esters of morphine and sentenced to 21 years' imprisonment.

2. In the early hours of the morning of 20 August 1993 the police laid ambush outside Flat A of the 15th floor of 382 Castle Peak Road. According to the evidence of the police they saw a man who it later transpired was the applicant coming from Flat A carrying a black brief case. PC 46825 says he shouted 'Stop. Stop, Police' but the man ignored them and attempted to escape. He was apprehended in the lift lobby. They searched the bag and found various items wrapped up in it. The officer asked the applicant what the items were and he said - no need to tell you, you know that they are white powder.

3. PC 46825 agreed that another man had been present who had also had a black brief case and that he had been in possession of keys to one of the doors in Flat A.

4. The applicant did give evidence. He was a manager at a nightclub. He said that on the evening in question he had been having a drink with one of his customers Mr Lui who was a friend of his. He had not been anxious to return home as he had recently had a quarrel with the lady he was cohabiting with. Mr Lui had suggested that they should have a drink at his place. He had agreed to this and they had gone to his flat. After some time his lady friend had telephoned him on his portable telephone and suggested that he should return home.

5. Mr Lui had offered to give him a lift in his car. He had said that he wanted to deliver some papers to an office in Tsimshatsui. There were two black brief cases. The applicant had held the cases while Mr Lui was attending to some final matters in the flat. He had started walking to the lift lobby when he was set upon by some men and knocked to the ground causing his nose to bleed. He had no idea these men were police officers. He had not attempted to escape. He was asked what was in the brief case and he had said that they contained documents belonging to Mr Lui.

6. The applicant had signed the post recorded statement prepared by PC 46825 and this contained the confession that he said the police knew that there was white powder in the brief case. At the trial the applicant contended that this statement was not a voluntary statement. Cheung J held a voir dire and ruled that he was not satisfied that the statement was a free and voluntary statement.

7. The 3rd ground of appeal is that in the light of this ruling the judge should not have allowed the officer to give evidence that the applicant had made this admission when he was arrested. Alternatively if the evidence had been left in he should have given a strong warning to the jury of the danger of placing reliance upon such admission.

8. Mr Macrae for the applicant referred us to R. v. Cheung Hon Yeung (1993)1 HKCLR 292 where a similar situation had arisen. He placed particular reliance upon the minority judgment of Silke, V.-P. who commented upon the illogicality of allowing verbal admissions to be admitted as evidence when the judge had ruled the written admission to have been involuntary.

9. This view was however at variance with the judgments of Power and Macdougall, JJ.A. as they then were. The majority view was that the oral testimony was admissible. Mr Macrae contended that it appeared that the trial judge was unaware that he had a discretion to exclude the evidence. No application was made to the judge by counsel representing the applicant and there is no reason to suppose that the judge was not fully aware of the position. All of the evidence was before the jury including the applicant's testimony to the effect that he had been subjected to a brutal assault prior to making the admission complained of. There is no substance in this ground of appeal.

10. The 1st ground of appeal related to the direction Cheung, J. gave concerning lies. At p39 of the summing-up he said:

" Mr Lam submitted that the defendant was not telling the truth on matters such as his relationship with Mr LUI. He submitted that this went to the credibility of the defendant. He suggested that he was not telling the truth on matters such as his knowledge of the drugs. You have to decide whether he was not telling the truth or, in other words, he lied about these matters. If you are sure that he did, you must consider why he lied.

I have to tell you, members of the jury, the fact that a defendant is not telling the truth or tells a lie on a matter, is not, itself, evidence of guilt. A defendant may lie for many reasons. For example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think there is, or may be, some innocent explanation for his lies, then you should take no notice of them. A lie can only be used as an inference of guilt only if the lie was deliberate; it was clearly shown to be a lie, either by admission of the defendant or by evidence of an independent witness and the defendant lied because he realised he was guilty and feared the truth coming out. You should bear all this in mind."

11. Mr Macrae submitted that a direction in these terms was completely inappropriate. It was not clear what the direction related to. It could have referred to all of the testimony concerning Mr Lui. Also the judge had not directed the jury that a lie before any use can be made of it must relate to a material matter.

12. Mr Macrae referred us to the judgment of Mortimer, J.A. in R. v. Lee Yiu Sang (unreported) being Cr.App. No. 2/95 when he found that directions on the subject of lies of a similar nature had been a material misdirection. After citing in full the direction given by the judge he said at p3 of his judgment:

"Conclusion

The mischief in this direction is that if the jury came to the conclusion - as well they might - that they had doubts about the admission but no doubt that the applicant had told a pack of lies in the witness box, they may have thought - having asked themselves why he had lied - that it was open to them to convict of trafficking on the lies alone. It was not. This was a material misdirection which leads us to grant the application for leave to appeal against conviction to treat the application as the appeal itself and to allow the appeal."

13. The directions given by the judge were quite similar to the directions given in the present case. So far as the directions were concerned Mr Saw for the Crown conceded that the judge should have said that lies could only be used to support evidence of guilt.

14. As to materiality the essential point to bear in mind is that this was not a case where it could be suggested that the applicant had told lies in relation to any matter which was not directly material to the germane issues in the case. The whole basis of the defence being run by the applicant was that he had no knowledge of the contents of the brief case.

15. Power, V.-P. had this to say on p10 of R. v. Chong Chak On (unreported) Cr.App. No. 633/94:

" It is true also that the judge did not instruct the jury that they must be satisfied that the lies were as to material issues. We are satisfied that no such direction is necessary where the lies were clearly as to material issues. Such a direction would be necessary if for instance a defendant told a gratuitous lie as to his age or his address which had nothing to do with the subject matter of the prosecution. However, where, as in the present case, the lies, if the juries were satisfied they were lies, were all told by the defendant in an attempt to establish that his involvement was innocent then they were clearly lies as to a material issue and it was not necessary for the judge to give a specific direction to the jury in that regard."

16. The Court of Appeal attempted in Chong Chak On to deal comprehensively with the whole subject of directions on lies and in particular with the problems which arise out of applying Broadhurst v. R. (1964) AC 441 and R. v. Lucas (1981) 1 QB 720.

17. There were three areas in which the jury might have considered the applicant was lying: (1) the relationship with Mr Lui; (2) knowledge of what was in the brief case and (3) the circumstances of the assault. The jury were told that they could not use a lie unless it was established by admission or independent evidence. As to (1) there was no admission and no independent evidence. (2) was the central issue in the case and if the jury believed that the applicant was telling lies that was the end of the matter. As to (3) it is fanciful on the facts of this case to imagine that the jury would have convicted the applicant simply on account of the fact that they thought that he had fabricated the evidence concerning the assaults.

18. Having regard to the circumstances of this case I do not consider that the directions given by the judge amounted to a material misdirection.

19. Ground 2 which refers to the inadequacy of the directions concerning the applicant's flight can be dealt with quite shortly. The jury had before it the evidence of the police officers and the applicant's version of what transpired. It was all within a very narrow compass and took place over a very short period of time. Early in the summing up the judge had directed the jury that they could only draw an inference adverse to the accused if it was the only inference which was open to them. We reject the suggestion that the failure of the applicant to stop immediately after he became aware of the presence of the police might have been used by the jury to draw an inference of guilt against him. The situation was really more analogous with someone resisting arrest.

20. For the reasons which have been given this conviction was in no way unsafe or unsatisfactory and the application should accordingly be dismissed.

Power, V.-P.:

21. I concur and wish to add only that if the misdirection as to lies did amount to a material irregularity I would have no hesitation in applying the proviso under section 83K of Criminal Procedure Ordinance as I am satisfied that in the circumstances of this case there was no miscarriage of justice.

Liu, J.A.:

22. For the reasons given by Mayo, J.A., I agree that the application should be dismissed.

Representation:

Mr D.G. Saw for Crown Prosecutor

Mr Andrew Macrae (DLA) for the Applicant