The Queen v. Chan Kam Tak and Another

IN THE COURT OF APPEAL

1987, No. 204
(Criminal)

BETWEEN

THE QUEEN

and

CHAN KAM TAK

NG KIN WAI

_______________

Coram: Silke, V.-P., Garcia & Liu, JJ.

Date of Hearing: 13th August 1987

Date of Judgment: 9th September 1987

_____________________

J U D G M E N T

_____________________

Silke, V.-P.:

1. This the the judgment of the Court.

2. Chan Kam Tak – “D1” – and Ng Kin Wai – “D2” – appeared for trial before Barnes J. and a jury jointly charged upon two offences of possession of dangerous drugs for the purpose of unlawful trafficking. The first count related to 449.04 grammes of a mixture containing 45.87 grammes of salts of esters of morphine and alledged possession outside No. 4-8, Wong Chuk Street; the second to 4,700.60 grammes of a mixture containing 479.42 grammes of salts of esters of morphine and alleged possession in a flat on the fourth floor of Ho King Mansion, also at No. 4-8, Wong Chuk Street.

3. D1 pleaded guilty to both offences. D2 was found guilty after trial of both offences.

4. On 21st November 1986, surveillance was kept upon the premises at Wong Chuk Street. At 3:35 p.m. a car drove up. It parked outside No. 4-6, D1 was the driver and D2 the passenger. Both alighted. The boot was opened and D1 took a red, white and blue coloured bag out of it and carried it into the building. D2 closed the boot, got back into the passenger seat of the car and waited. About ten minutes later D1 came out of the premises carrying a different type of bag, described in the evidence as a "Jupon" bag. The police party then pounced. The bag was searched and the quantity of drugs referred to in Count 1 were found in it.

5. D1 and D2 were arrested. They were taken to the flat on the fourth floor of Ho King Mansion. That flat was searched and packaged drugs were found in the larger of the two bedrooms and in the quantity set out in Count 2. Also found was a set of scales together with drug packaging paraphernalia, a similar red, white and blue bag, a tenancy agreement in the name of D2 and a rent receipt. On further examination, a paper bag contained in the "Jupon" bag was found to bear a palm print said to be that of D2.

6. In the course of the trial, D1 gave evidence on behalf of the Crown which evidence, if believed, clearly implicated D2. D2 in turn gave evidence. He denied knowledge of the drugs. He explained he rented the flat at Ho King Mansion as he and his girlfriend wished to live there. Later he found the rent too expensive, so he decided to move out. "D1 then asked him to keep on the flat as it was. He, D1 would pay the rent through D2. After he moved out, D2 paid two or three visits, none of which were of a duration longer than 15 minutes, to the flat. On 21st November, D2 said he had arranged to have tea with D1. D1 told him that he wished to bring some clothing to the flat and D2 drove there with him for that purpose.

7. Upon arrest, he made a statement to the police which he now accepts contained various lies which lies he had told for the purpose of helping D1.

8. There are three main grounds of appeal. The first relates to the evidence of the finger print expert, Detective Inspector Yuen Hok Pang the second complains of certain pieces of evidence having been wrongly drawn to the notice of the jury, a full and proper accomplice warning having been given then, as capable of amounting to corroboration of D1's evidence; the third to the directions given on presumptions.

9. These grounds are contained in a document headed Particularised Grounds of Appeal. It would appear that Mr. Westbrook's modesty does not allow him to term his grounds perfected in the sense of perfect, so that he used this somewhat unusual prefix.

10. When Detective Inspector Yuen came to the witness box he was presented as an expert on the identification of persons by means of finger, palm and sole prints. No issue arises as to his giving evidence in that capacity.

11. He was shown two exhibits, exhibit P51 and exhibit P52. P51 is the normal Royal Hong Kong Police Force palm print form. P52 is a photograph of the bag and the markings on it described as a palm print. He said he had been asked to compare that with the palm print on the police form which is that of D2. He expressed his conclusions as being that the palm impression shown on the photograph was made by the left palm of D2. He came to that conclusion, he said, because there were twelve characteristics on the palm print on the bag which corresponded with twelves characteristics upon the palm print on the form. He explained what he meant by characteristics calling them “friction ridges”. He informed the jury that twelve points were, according to world statistics, sufficient for the probability of identification; the practice of identification by finger prints being based upon the unlikelihood or improbability of two human beings having the same prints. He had no difficulty, he said, in isolating those twelve characteristics. He expressed himself as confident in his judgment that the sample print on the police form is the same as that on the photograph he had of the impression on the bag.

12. That concluded his evidence in chief. Mr. Westbrook, who also appeared at trial, then made a submission to the judge for the exclusion of the evidence given. That may on the face of it appear as a surprising submission but it has force. For what was produced to the jury was not the normal enlarged photograph with the twelve points clearly indicated on it so that the jury would be in a position for themselves to evaluate the expert's evidence but a very small photograph containing an even smaller representation of what was said to be the print upon the bag. On this photograph, none of the twelve identical points were identified. The jury had also before it the paper bag itself with the portion where the palm print was found marked on it and, other than indicating location, it was not of any assistance. Further, it seems quite clear from the size of the area marked upon the bag that it would have been but a small portion of the palm which would have left an impression.

13. I would interpolate here that we are not of the view that any discretion to exclude the Inspector's, evidence arose. It was, as far as it went, perfectly admissible evidence. What was at issue was the quality of that evidence. The difficulty is that it was not the strict proof which is required in a criminal case. A defendant is perfectly entitled to say to the Crown "prove your case". The function of an expert is first to give his opinion upon an issue in the case based on inferences which he draws from perceived facts as a result of his knowledge and experience; second, to give evidence of fact which his training has equipped him to perceive but which would not be observed by a layman. Third: "to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence." (Archbold 42nd Ed. para. 14-9) citing Davie v. Edinburgh Magistrates (1953) S.C. 34 at 40).

14. The characteristics referred to by Inspector Yuen fall squarely within the second category. The jury were entitled to know where they appeared and to have them specifically pointed out to them. When, as here, they are not, then a warning that the opinion becomes the "bare assertion" of the expert and could well be considered to be of little weight, but is one of the factors which lies for the consideration of the jury, becomes desirable.

15. Of this evidence the judge (page 6) said simply this:

".... and the police also found a brown paper bag with a print on it which they found could be lifted and which was lifted, and which was subsequently compared with a print taken from the defendant and an expert gave evidence that the 2 match."

16. We move now to the third main ground of appeal, that relating to the directions on presumptions given by the trial judge. Both the palm print and that direction impingned specifically on the first count. The directions given were prefaced by this passage in the summing up:

"Now I say that because if CHAN's evidence about this man being in joint possession of those drugs with CHAN is corroborated, then joint possession is proved. If you don't accept his evidence, you would have great difficulty, I think, in coming to the conclusion that the presumption doesn't operate." (Emphasis supplied)

We think the word emphasized must be either a slip of the tongue or a misprint.

17. The judge continued:

"Now the presumption is that when a person is found to be in possession, that is, if you are satisfied beyond a reasonable doubt on the basis of CHAN's evidence that he was in joint possession of those drugs in the bag which CHAN took to the car, if you are satisfied beyond a reasonable doubt that he was in joint possession of those with CHAN at the time, then, unless you can see other evidence which establishes on a balance of probabilities that he wasn't in possession, then the evidence establishes guilt on that particular charge.

You see, once possession is proved beyond a reasonable doubt, then, unless there is other evidence showing on a balance of probabilities that he didn't have possession, in this particular case, realistically that at means unless there is evidence which shows on a balance of probabilities he didn't know about the existence of these things or on the balance of probabilities that he couldn't be in possession in that he had no physical - no right to exercise physical control, then, unless there was that evidence you would have to find him guilty because the presumption would not be rebutted."

18. It must be remembered that it was D1 who came out of the building carrying a bag different from that which he had carried in. When he came out, the Applicant was sitting in the car. D1 was stopped before he reached that car. D2 never came into physical possession of the "Jupon" bag. Mr. Bruce, who appears for the Crown, accepts that this direction is erroneous. First, possession must be found and to suggest here that one could find possession and that then the offence is fully made out, with respect, confuses "container" possession with the facts as they existed on Count 1.

19. While the absence of strict proof on the matter of the palm print might not, had it stood alone, have caused a miscarriage of justice sufficient for us to refuse to apply the proviso, combined with the misdirection as to presumptions it makes the conviction upon the first count unsafe and unsatisfactory.

20. In considering the reliability of the conviction upon the second count, it is necessary to bear in mind the effect on the jury of the two matters to which we have earlier referred together with the complain of corroboration directions.

21. D1's evidence implicated the Applicant in known drug dealing on both Counts 1 and 2. Seven particulars are complained of which the jury were told could amount to corroboration of D1's evidence in the Baskerville sense. These are first: the evidence that the Applicant was a tenant of the flat in which the drugs in Count 2 were found; second: that he was in the car with D1 while D1 was on a drug delivery mission; third: that D1 was in possession of keys to the flat which according to the Applicant's statement he had handed to D1 "at some time"; fourth: the palm print; fifth: the evidence that the Applicant had made a change in the rent paying arrangements for the flat a few days before 21st November; sixth: the evidence that the receipt for the rent paid on 15th November and given to the Applicant was found in the flat on 21st November; and, seventh: the evidence contained in the Applicant's cautioned statement, which was before the jury, relating to the giving of the keys to D1 and how the Applicant and D1 came to go to the flat on 21st November.

22. The difficulty with the majority of these items is that, for them to prove anything at all, reliance on the evidence of Chan implicating the Applicant in drug dealings was first necessary so as to connect those items with the crime as charged. The Applicant had explained his rental of the premises, the presence of the receipt, the change in rental arrangements, why he was in the car and how D1 came to be in possession of the keys. Those were innocent explanations. It is only by use of the very evidence which needed corroboration that these "innocent" items become tainted with criminality.

23. It was, of course, entirely open to the jury to accept the evidence of Chan - if they did then a conviction would be inevitable - but they had to evaluate it. They were told, quite rightly, that it would be dangerous to convict without its being corroborated in the full sense of tending to show not only that the crime was committed but also tending to implicate the Applicant in the commission of that crime.

24. There was a perfectly proper direction on presumptions which arose from the evidence concerning the second count and no quarrel is or can be taken with them. But, of course, presumptions cannot corroborate.

25. Mr. Bruce has argued that each of the pieces enumerated above were capable, a word he stresses, of implicating or tending to implicate the Applicant. He says, quite rightly, that corroboration should not and need not be a carbon copy of the evidence of the person to be corroborated, otherwise his evidence would be unnecessary. None of the factual matters were in dispute but that has no direct relevance. It was an active tenancy and the inference is that a tenant knows what is going on in his own tenement. He accepts he is in some difficulty in relation to mere presence in the car of itself as being corroborative of Chan but says that quite clearly the palm print is. With this latter observation we agree. He has asked us in both cases, if we are against him, to consider either the application of the proviso or to order a re-trial. In respect of Count 1: as he feels that the sentence would inevitably be a concurrent one, he does not seek an order to retry.

26. Drug trials in which presumptions are involved can frequently give rise to difficulty. Where a great deal of the evidence implicating a defendant comes from a co-accused heavily involved in the crime itself, it becomes a matter of importance that the issue of corroboration, and that which is capable of being corroboration, is clearly set out before the jury.

27. While, as we have said, the jury would have been entitled to accept the evidence of D1 if they believed it and upon it to convict, we do not know the basis upon which they eventually came to their conclusions. The issue of corroboration was one of importance. The misdirections in relation to it could have misled the jury and the conviction on Count 2 cannot stand.

28. We do not think that either of these counts would be proper matters upon which to apply the proviso. We have been addressed by Mr. Westbrook on re-trial and we bear inmind that which he has said. The second count in this Indictment was a very serious one. One of the factors to be considered is the possibility of conviction upon a re-trial and with it the strength of the evidence. We must also give consideration to the cost to public funds and to the public interest. We are of the view that that interest demands a re-trial but only upon the second count though this can not preclude evidence being led in relation to happenings generally.

29. We would, therefore, grant leave, treat the hearing of the application as the hearing of the appeal, allow the appeal on both Counts 1 and 2, quash the convictions and set aside the sentences. We direct that the Applicant be re-tried on a fresh Indictment containing the second count only.

Sentence: Chan Kam Tak – D1

Date of hearing and decision: 13th August 1987

Silke, V.-P.:

30. Chan Kam Tak and Ng Kin Wai were jointly charged with two offences relating to possession of dangerous drugs for the purpose of unlawful trafficking. The first count referred to a quantity of 449.4 grammes of a mixture containing 45.87 grammes of salts of esters of morphine and the second count related to 4,700.60 grammes of a mixture containing 479.42 grammes of salts of esters of morphine.

31. The first count related to drugs found in a bag outside a premises in Wong Chuk Street. The second count to the drugs found inside that premises in a subsequent search.

32. Chan Kam Tak pleaded guilty to both counts. The trial continued of Ng Kin Wai who pleaded not guilty. In the course of that trial Chan Kam Tak gave evidence. At its conclusion Ng Kin Wai - "D2" - was convicted and sentenced to 11 years’ imprisonment on each count concurrent. He seeks leave to appeal against that conviction - a matter yet to be determined.

33. The sentence passed on Chan Kam Tak was one of 8 years on each count concurrent. He now seeks leave to appeal against those sentences.

34. Mr. Lasky who appears for him in this Court has drawn out attention to the fact that the Applicant pleaded guilty at the first opportunity. This was at the trial itself but the prosecution were clearly aware that he would do so and would give evidence for them in the course of it.

35. It is the main contention in this application that not sufficient discount was given for the plea and the giving of evidence. A factor which has been drawn to our attention here, and which does not appear to have been made known to the the trial judge, is that the Applicant has been of assistance to the police in relation to drug matters In addition to this particular case.

36. We have been referred to three authorities. The first Lau Ying Wai[1] where my Lord Clough J.A. said:

"It is now well established that in cases of serious crime, one of the accused gives assistance which is of some value to the police, it is in the public interest that this should be taken into account and should lead to some reduction in his sentence at his trial."

There was a reference to a one-third deduction as being correct where there was a plea of guilty and assistance to the police but which did not cover, as we understand it, the giving of evidence in Court.

In Chan Muk Ching[2], my Lord Power J.A. referred to the appropriate discount being 50% where an applicant had placed himself in danger by giving evidence in open Court, that is danger not approaching the "supergrass” category.

Finally, in Chan Fu Kai[3], the Chief Justice, referred to a discount of two-thirds in relation to those who fall within the "supergrass" category.

It was not suggested that this Applicant fell within the supergrass category. He had pleaded guilty and he had given evidence in Court implicating both his co-accused and another and he has, and this as I have said was not within the trial judge's contemplation at the time of sentence, also given assistance to the police in relation to other matters relating to drugs separate from this particular case. In these circumstances, we think that a sentence of 6 years on each of the counts would be appropriate.

We grant leave, treat the application as the hearing of the appeal, allow the appeal, set ,aside the sentence of 8 years on each count and substitute there for one of 6 years on each count concurrent.

Edward Lasky, Esq. (Poon & Dissanayake) for D1.

Simon Westbrook, Esq. (C.W. Leung & Co.), for D2.

A.A. Bruce, Esq. for Crown/Respondent.

[1]  Criminal Appeal No. 113 of 1986 (unreported)

[2]  Criminal Appeal No. 29 of 1986 (unreported)

[3]  Criminal Appeal No. 6 of 1986 (unreported)