The Queen v. Chow Wai Kong

CACC000064/1990

BETWEEN

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Coram: Hon Sir Derek Cons, V-P, Kempster and Clough, JJ.A.

Date of hearing: 28 December 1990

Date of handing down of reasons for judgment: 22 January 1991

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JUDGMENT

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Clough, J.A. handing down the reasons for judgment of the Court:

1. On the 28th December 1990 we refused the application of Chow Wai Kong (D3) for leave to appeal against his conviction on the 19th January 1990, after a trial before His Honour Judge Leonard, in the District Court, of the offence of possession of a dangerous drug (205.63 grammes of a mixture containing 11.72 grammes of salts of esters of morphine) for the purpose of trafficking therein contrary to section 7 of the Dangerous Drugs Ordinance (Cap. 134). D3's application for leave to appeal. against the sentence of 5 years imprisonment passed on him by the trial judge for that offence was abandoned at the hearing of the applications. We now give our reasons for refusing D3's application for leave to appeal against his conviction.

2. D3 had been charged jointly with two others (HO Fook-shing (D1) and Chan Yee-wing (D2)) in respect of the above mentioned offence and also under a second charge of possession of apparatus (tinfoil and a paper roll) fit and intended for inhaling a dangerous drug (salts of esters of morphine) contrary to section 36 of the Ordinance. D1 having absconded on the day fixed for the trial, D2 and D3 were subsequently tried together on both joint charges. The Crown offered no evidence against D2 on the first charge and he was. accordingly acquitted. The trial of D3 on the first charge and D3 and D2 on the second charge then proceeded. D3 was convicted on the first charge which does not appear to have been formally amended to delete D2. D3 and D2 were both acquitted on the second charge.

3. The charges were the sequel to a police raid, at about 10.40 p.m. on the 20th July 1989, of the end cubicle of a flat in Mongkok. The police party found all three defendants in the cubicle. Apart from 2 bags of drugs visible on a carton on the bed in the cubicle together with paraphernalia for "chasing the dragon", the remainder of the drugs which were the subject of the charge were concealed and discovered in the police search. 26 bags (138.43 grammes of the mixture) were found in a shoe box under the dressing table in the cubicle and a further 13 bags (61.44 grammes of the mixture) were found hidden behind the ceiling cover of the lavatory adjoining the cubicle.

4. The Crown's case against D3 on the first charge relied on the statutory presumptions by reason of the fact that he was found in possession of keys giving access to the entrance door of both the flat and the cubicle. The Crown also relied on the evidence of PC 10021 (PW1) that he had found in the first drawer of the dressing table in the cubicle two bank passbooks and two travel documents (re-entry permits for Hong Kong and China respectively) of D3. This latter evidence raised a credibility issue because D3's evidence was that the documents in question had not been taken from the drawer  in the dressing table but from D3's black travel bag in the cubicle which had also contained D3's clothing. The judge believed the evidence of PW1 on this issue.

5. The evidence of D3 in his own defence was to the effect that he had done nothing that night but go to his friend D1's place where he had watched television while D1 was taking dangerous drugs. His further evidence was succinctly summarised in the following passage of the trial judge's reasons for verdict:

"The defendant gave evidence to the effect that D1, who had absconded, was the tenant of the cubicle and he had permitted D3 to leave a travel bag containing some of his belongings, including the documents exhibited, in the cubicle until D3 could move in to a room of his own in the district. According to D3, he was at the time living in the family home in Tsing Yi and not in the cubicle, though he had visited D1 there and stayed overnight two or three times. He said he had the keys only to gain access to the flat to collect his bag."

6. In the course of the trial PW1 produced what appeared to be two rent receipts dated the 10th May and the 10th June 1989 purporting to have been issued to D1 in respect of the. premises in question. The evidence of PW1 was that he had found the receipts in the first drawer of the dressing table. The judge held that the hearsay rule precluded him from treating the receipts as evidence that D1 was the tenant of the cubicle, but when he gave his reasons for verdict he indicated that he had considered D3's evidence on the basis that the cubicle might have been let to D1.

7. P.C. 23721 (PW2) was a member of the police party which raided the cubicle on the night in question. He had arrested D1 and recorded a cautioned statement made by him. The record of the proceedings shows that the first question and answer given by PW2 under cross-examination were:

When this evidence was given the judge questioned its admissibility and, after hearing the submissions of the solicitor representing D3, ruled that it was hearsay and that in the absence of D1 as a witness it could not be relied upon by D3 to prove the truth of what had beef said by D1. In his reasons for verdict the judge adhered to this ruling.

8. The substance of the judge's reasons for his decision to convict D3 on the first charge was set out in the following passage in his reasons for verdict:

"         D3, having admitted possession of the key to the door of the cubicle, faced the statutory presumption (S47(1)(D) Cap. 134) that he was in possession of the drugs found in that cubicle, unless the presumption could be rebutted on the balance of probabilities. I gave careful consideration to his story and I approached it on the basis that the cubicle may indeed have been let to D1. I did not find D3 to be a believable witness and his contention that the bank books and travel documents were in a travel bag raised no doubt in my mind as to their whereabouts. I was satisfied beyond reasonable doubt that they had been found in the drawer. Taking the evidence as a whole, I found. that the presumption of possession had not been rebutted, the standard of proof for rebuttal being the balance of probabilities.

Possession being presumed, the further statutory presumptions arose (i) that D3 knew (S47(3)) what the drugs were and (ii) that he had them for the purpose of unlawful trafficking (S46 (c) and (d)). This presumption was based on the number of packets and the quantity of drugs. There was no evidence whatever to rebut either presumption. Indeed D3's own evidence indicated that he well knew what the drugs were. These presumptions stood unrebutted and so a conviction was inevitable. It may well be that D1 was also in possession of the drugs but even if he were, that would not assist D3."

9. D1 was subsequently tried on the 24th April 1990 by Deputy Judge Jenkins in the District Court on the same joint charges. He pleaded guilty to the second charge and was convicted after trial on the first charge. In the Crown's summary of facts, which was agreed on D1's behalf by his solicitor, reference was made to his cautioned statement to the police and it was stated that:

"He admitted possession of the dangerous drugs found in the premises. The items found in the cubicle and seized by the police belong to the defendant."

10. The defence having admitted all the ingredients of the first charge except the purpose of D1's possession the Crown produced the relevant exhibits by consent and called no further evidence, relying on the statutory presumption regarding the purpose of D1's possession. D1 gave evidence in his defence. He said the premises were rented in his name and that he lived there with his girl friend. His defence was that he had never trafficked in dangerous drugs. He said the drugs in question had been bought by him that same night for his own consumption and that he had been smoking some of the drugs when the police arrived. He said that D2 and D3 had come to watch television on the evening in question. He denied that they had come to take drugs or that he had packed the drugs in bags in order to traffic in them. The trial judge, whilst not ruling out that D1 might himself have been an addict, did not believe that all the drugs in his possession were for his own consumption and concluded that D1 had not rebutted the statutory presumption.

11. The perfected grounds of appeal of D3 in his appeal against conviction under the first charge were directed to showing that his conviction was unsafe or unsatisfactory by reason of the separate trials of D1 and D3. The substance of the complaint made in the grounds of appeal was that, not only had D1's non-availability as a witness at D3's trial deprived D3 of the benefit of D1's oral exculpatory evidence, but it had resulted in the trial judge applying the hearsay rule to exclude both the evidence of D1's cautioned statement to PW2 exonerating D3 and the rent receipts purporting to have been issued to D1.

12. It was asserted in the first ground of appeal that at his trial D1 had given evidence "to the effect that the drugs so seized at the scene was solely his".  In the fourth ground, it was asserted that fresh evidence of D1 "that he was the owner, of the drugs seized at the scene" had become available which rendered D3's conviction unsafe and unsatisfactory and it was stated that D3 desired to call D1 at the hearing of the application to give evidence "that the drugs seized at the scene were possessed by Dl and not the appellant." No formal application was made to admit fresh evidence under section 83V of the Criminal Procedure Ordinance (Cap. 221) but Mr. Abbott for the Crown raised no objection to the informality of the application and D1 was in attendance and available to give evidence at the hearing of D3's application.

13. Mr. Chan for D3 accepted that the judge had correctly applied the hearsay rule when excluding D1's cautioned statement at the trial. He argued somewhat faintly that the rent receipts were admissible as part of the res gestae but ultimately conceded that he could cite no authority to support the admission of the rent receipts as per se constituting evidence that D1 had been the tenant of the cubicle. The real thrust of the application was that the separate trials of D1 and D3 had worked an injustice to D3 because the trial judge at his trial had been prevented from hearing D1 confirm his cautioned statement exonerating D3 and admitting that he had been the tenant of the cubicle to whom the rent receipts had been issued. The inference was that if this evidence had been available to the judge at D3's trial the hearsay rule would not have operated and the judge might have entertained a reasonable doubt regarding the guilt of D3 on the first charge.

14. Accordingly the court gave sympathetic consideration to applications by Mr. Chan to admit several forms of fresh evidence of Dl under section 83V. These were:

When asked by the court which provisions of section 83V he was invoking in relation to those items of evidence Mr. Chan identified section 83V(2) in relation to items (1) and (2) and section 83V (1) (b) and (2) in relation to item (3). The court read items (1) and (2) and permitted D1 to be examined, cross-examined and re-examined before expressing any view or decision regarding the admissibility or effect (if admissible) of all the evidence thus tendered. The court then retired briefly and upon the resumption of the hearing it delivered the following ruling:

"         Whether or not, having regard to what has happened during the course of this appeal, we maybe deemed to have 'received' the affirmation and viva voce evidence of Mr. Ho Fook Shing and the record of proceedings before Deputy Judge Jenkins on the 24th April this year, we are satisfied that no credence can be afforded to either the affirmation or viva voce evidence of Mr. Ho and that the record of proceedings before Deputy Judge Jenkins does not advance the application further. Therefore we propose to disregard these materials in our consideration of the outcome of this application."

15. Thereupon the court again retired briefly to permit Mr. Chan to consider D3's position. On the resumption Mr. Chan made no further submissions and the court formally refused D3's application.

16. It seemed to us that on any view of the technical niceties of section 83V(1) (which confers an unrestricted power on the court to admit fresh evidence if it thinks it necessary or expedient in the interests of justice) or 83V(2) (which imposes a duty on the court to admit fresh evidence if the conditions of that subsection are met) (see Lattimore (1976)62 Cr. App. R. 53 per Scarman L. J. at pp. 55-6; Reg v. Lee (Bruce) [1984]1 WLR 578 (C.A.) per. Ackner L.J. at p. 583G), once we were satisfied, after seeing and hearing D1 give evidence on oath, that no credence could be afforded to his evidence on crucially material matters there could be no basis for this court to conclude that D3's conviction was unsafe or unsatisfactory for the purposes of section 83 (1) (a) even if it could strictly be said that any of the tendered evidence had been received or admitted for the purposes of section 83V(1) or (2).

17. Inherent in Mr. Chan's argument was the proposition that once evidence had been received by the court under section 83V (2) (upon which he relied) which was "likely to be credible" within the meaning of section 83V (2) (a) (i.e. "well capable of belief in the context of the circumstances as a whole": see R v. Stafford and Luvaglio (No. 1) (1968)53 Cr. App. R. l per Edmund Davies L.J. at p.3 and R v. Beresford (1971)56 Cr. App. R. 143 per Sachs L.J. at p.150), then it was not for the court to decide if the evidence was actually to be believed. The implication seemed to be that the fact that the fresh evidence was well capable of belief was in itself (provided the evidence was sufficiently relevant) sufficient to render the conviction unsafe or unsatisfactory, because, being well capable of belief, it might have raised a reasonable doubt regarding D3's guilt in the mind of the trial judge who performed the functions of both judge and jury at D3's trial.

18. In support of his proposition that this court should not decide if the fresh evidence was to be believed Mr. Chan cited the dictum of Lord Parker C. J. in Reg. v. Parks [1961]1 WLR 1484 (C.A.) concerning the former power of the English Court of Appeal to admit fresh evidence conferred by section 9 of the Criminal Appeal Act 1907 (now section 23(1) of the Criminal Appeal Act 1968 corresponding to section 83V(1) of the Ordinance). At p.1486 Lord Parker observed:

"It is only rarely that this court allows further evidence to be called, and it is quite clear that the principles on which this court acts must be kept within narrow confines, otherwise in every case the court would be in effect asked to carry out a new trial. As the court understands it, the power under section 9 of the Criminal Appeal Act, 1907, is wide. It is left entirely to the discretion of the court, but the court in the course of years has decided the principles on which it will act in the exercise of that discretion. Those principles can be summarised in this way: First, the evidence that it is sought to call must be evidence which was not available at. the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for the court to decide whether it is to be believed or not, but evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial." (Emphasis supplied).

19. However, properly understood in the light of the consideration which this dictum received in Stafford v. D. P. P [1974] AC 878 (H.L.) (also cited by Mr. Chan) Parks is not authority for Mr. Chan's proposition. The true position was clearly stated by Viscount Dilhorne in Stafford at p.892 when considering Parks. He observed:

"Mr. Hawser argued that all the Court of Appeal was entitled was to do was to consider" whether the fresh evidence was relevant and capable of belief. He based this argument primarily on some observations of Lord Parker C. J. in Reg. v. Parks [1961]1 W. L.R. 1484, where Lord Parker said that it was not for the Court of Criminal Appeal to decide whether the fresh evidence was to be believed or not. Lord Parker was then stating the principles which the court would apply in relation to the exercise of its discretion to admit fresh evidence under section 9 of the Criminal Appeal Act 1907 (now replaced by section 23 of the Criminal Appeal Act 1968). He said the evidence must be relevant and credible. Then he said that it was not for the court to decide whether it was to be believed. I agree that in deciding whether to admit fresh evidence, the court, which at that stage has not heard the evidence, has not to decide whether it is to be believed but I do not agree that, when the court has heard the evidence, it has not to consider what weight, if any, should be given to it. Lord Parker's fourth principle, as he called it, was that the court, after considering the evidence, would go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial. I cannot see how the court can consider this question without considering what weight should be given to the fresh evidence they have heard; and I do not see that this principle is applicable to the question whether the evidence is to be admitted. It is only after it has been admitted and, it may be, subjected to cross-examination, that its weight can be assessed and the court decide whether it might have affected the jury's verdict.

I do not suggest that in determining whether a verdict is unsafe or unsatisfactory, it is a wrong approach for the court to pose the question - 'Might this new evidence have led to the jury returning a verdict of not guilty?' If the court thinks that it would or might, the court will no doubt conclude that the verdict was unsafe or unsatisfactory. Mr. Hawser in the course of his argument drew attention to the many cases in which, since 1908, and since the amendment made in 1966, the court has quashed a conviction saying that in the light of the fresh evidence the jury might have come to a different conclusion, but I do not think that it is established as a rule of law that, in every fresh evidence case, the court must decide what they think the jury might or would have done if they had heard that evidence. That it is a convenient approach and a reasonable one to make, I do not deny. When a court has said that, it means and can only mean that they think that the fresh evidence might have led to a different result to the case, and that in consequence the verdict was unsafe or unsatisfactory." (Emphasis supplied).

20. Viscount Dilhorne expressly rejected the argument (as did Lords Cross and Kilbrandon at pp. 907 A-E and 912 C-F respectively) that even if the Court of Appeal concluded that the fresh evidence raised no reasonable doubt regarding the guilt of the accused they should nevertheless quash the conviction if they thought the jury might reasonably take a different view. At p. 839D-F Viscount Dilhorne dealt with the matter thus:

"Mr. Hawser strongly urged that the court should recognise that reasonable men can come to different conclusions on the contested issues of fact and that, although the court came to the conclusion that the fresh evidence raised no reasonable doubt as to the guilt of the accused, they should nonetheless quash the conviction if they thought that a jury might reasonably take a different view.

I do not agree. It would, in my opinion, be wrong for the court to say: 'In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returnees but as the jury who heard the case might conceivably have taken a different view from ours, we. quash the conviction' for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, 'they think' the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt."

21. In the present case, this court applied its understanding of the effect of Stafford. The position clearly is that this court does not have to determine whether evidence is to be believed when deciding whether to admit fresh evidence under section 83V(1) or (2). However section 83V deals only with the question of the admissibility of fresh evidence. As the editors of Archbold (43rd edition) point out in Vol. 1 at p.1014 para 7-96 in relation to section 23 of the 1968 Act, section 83V says nothing about how an appeal should be determined when fresh evidence is admitted. The determination of such an appeal is governed in Hong Kong by section 83(1)(a) of the Criminal Procedure Ordinance which provides that this court should allow an appeal against conviction if it thinks that the conviction should be set aside on the ground that. under all the circumstances of the case it is unsafe or unsatisfactory. Accordingly when fresh evidence is admitted the court has to assess the weight of the evidence and, in the words of Lord Diplock in Stafford at p.906 F-G, each member of the court has to ask himself the question:

"Under all the circumstances of the case as it now stands in the light of the additional evidence, am I satisfied that the verdict of jury [judge in the present case] was safe and satisfactory?"

22. This understanding of Stafford was recently manifested by the English Court of Appeal in Callaghan (1989)88 Cr. App. R.40 and Byrne (1989)88 Cr. App. R.33. In the latter case at p.37 the court applied the following dictum of Lord Lane C.J. in Callaghan at p.47 which we respectfully adopt:

"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."

23. For the sake only of completeness we mention that Mr. Chan relied on Ditch (1969)53 Cr. App. R.627 where a conviction was quashed on the strength of the fresh evidence of the applicant's co-defendant on a burglary charge who had been convicted at the same trial as the applicant but had subsequently admitted that he was the sole offender. The Court of Appeal heard the co-defendant's evidence de bene esse and, having decided to receive it, accepted it as credible and as rendering the conviction of the applicant unsafe and unsatisfactory. The reasoning process of the court was expressed by O'Connor J. at p. 633 as follows:

"We now hold that it is proper to receive this evidence and we do receive it. We find him to be a credible witness, and we accept his evidence of what occurred. That being so, had that evidence been before the jury, it is quite inconceivable that the applicant would have been convicted of this crime. He would, inevitably, have been found not guilty."

This case did not, in our opinion, assist Mr. Chan's argument because the court clearly assessed the weight and effect of the fresh evidence after receiving it and decided the appeal in accordance with the approach subsequently laid down in Stafford.

24. Reverting to the circumstances of the present case we were unable to give any credence to Dl's affirmation or oral evidence. He was a thoroughly evasive witness whose evidence was riddled with inconsistencies. His affirmation made the day before the hearing of D3's application for leave to appeal contradicted the evidence of D3 at his trial concerning the important question of D3's connection with the cubicle where D1 had been living and the drugs had been concealed.

25. In his evidence at his trial D3 (who gave his parent's address in Tsing Yi as his address) had said that he had not stayed overnight for any long period of time in D1's cubicle but that he thought he had spent three nights there. He had denied under cross-examination that he had ever resided in the cubicle at any time. D3's evidence was that he had left a bag containing his clothing and bank and travel documents in the cubicle because he had just rented a room which was not yet ready for occupation and wanted to store those things (which he removed from his parents' home in Tsing Yi) in the cubicle in the meantime. According to D3's evidence he had done this "several days prior" to the incident of his arrest (on the 20th July 1989) and he was then given the keys to the premises by D1 so that D3 could retrieve his clothing if D1 were out.

26. In his affirmation D1 said he had lived in the cubicle (which was at the far end of the flat in question) with his girl friend for about two months before his arrest.  He went on to contradict D3's evidence at D3's trial on highly material matters, affirming that D3 had "moved in to" D1's cubicle about a month before the arrest incident. In paragraph 7 of his affirmation D1 said D3 had done this because he nab quarreled fiercely with his girl friend with whom, he said (in paragraph 8), D3 had formerly, been living in Hankow Road. In paragraph 9 D1 affirmed that D3's parent's home was then in Tsing Yi where "there was no place for the Appellant (D3) to sleep at all." As they were very good friends D1 had, he affirmed, consented to D3 "moving in" to D1's cubicle together with D3's big bag containing his clothes and belongings and had given him two keys for the premises. In paragraph 10 D1 affirmed as follows:

"10.     For about the initial 2 weeks after the Appellant moved in, he slept in a then empty cubicle (which was the second one from the main entrance) at the said premises. Subsequently this cubicle was leased and the Appellant slept on the floor of my cubicle. I knew that the Appellant was then seeking premises nearby but I did not know whether lie had found and rented such premises or not."

27. After dealing in paragraph 11, with D3's bank and travel documents, in a manner consistent with D3's evidence at his trial, D1 concluded, in paragraph 12, by affirming that the drugs in question were his only and had absolutely nothing to do with D3.

28. When D1 gave evidence before this court he was not asked formally to confirm the contents of his affirmation made on the previous day, but Mr. Chan examined him, apparently using the affirmation as a proof. This resulted in material contradictions by D1 of what he had said in his affirmation. He began by saying that neither D2 nor D3 had lived with him in the cubicle. Asked by counsel what he meant by that, D1 explained that he meant they had not lived in the cubicle where he lived with his girl friend. He said he gave D3 the keys to the cubicle a fortnight or so before they were arrested because D3 had just had a row with his girl friend and wanted to bring some of his things to D1's place.

29. Brought back by counsel's questions to the question whether D3 had slept in the cubicle, D1 said that D3 did sleep in the cubicle on two or three nights, adding that he did not remember. He said D3 had slept on the floor, next to the bed in D1's cubicle. D3 had not, D1 said, slept in any other part of the flat. Mr. Chan (whose examination of the witness was exemplary) then endeavoured to elicit evidence from D1 concerning the empty cubicle referred to in paragraph 10 of D1's affirmation. D1 said that when he first rented his cubicle the other cubicles in the flat were occupied. Asked about the second cubicle from the main entrance he said "I cannot remember - seemed they moved out - but I don't remember."

30. Under cross-examination D1 was manifestly evasive and took refuge in loss of memory on matters upon which his affirmation, made a day earlier, had been unequivocal.  He said "No" when asked (in terms of his assertion in paragraph 7 of his affirmation) if D3 had moved in to his cubicle about a month before his arrest on the 20th July 1989. The following sequence of questions and answers then ensued:

31. After the mid-day adjournment specific paragraphs of DI's affirmation were put to him. He confirmed paragraph 4 in which he had given details of his 4 year relationship and friendship with D3. Paragraph 7 (in which D1 had said D3 had moved into his cubicle about a month before their arrest because he had had a fierce quarrel with his co-habitee girl friend) was read to him and he said "Yes. That is true." Asked about the truth of his assertion in paragraph 9 that he had consented to D3 moving in to his cubicle with his big bag containing clothes and belongings, D3 replied  "Yes, True I consented to his moving in. Placed some things, not staying there." He went on to deny the truth of his assertion in paragraph 9 that the home of D3's parents had then been in Tsing Yi where there was no place for D3 to sleep.

32. Finally he was asked about the truth of the content of paragraph 10 (set out above). As to the first sentence (which had asserted that for about the initial 2 weeks after moving in D3 had slept in an empty cubicle, the second one from the main entrance), D3 said he could not recall if that was true because it happened so long ago. The cross-examination closed with the following sequence of questions and answers concerning the second and third sentences of paragraph 10.

33. In the following passage in his re-examination on paragraph 10, D1 completed the obfuscation:

34. Having seen and heard D1 give his evidence and considered it in conjunction with his affirmation made on the previous day we were satisfied that no credence could be given to his evidence, and in particular to his cautioned statement to PW2, reiterated in his evidence before us, to the effect that the drugs in question had nothing to do with D3. As to the record of D1's trial, the course of the trial on the joint charge was clearly influenced by the fact that he admitted possession of the drugs and only defended on the trafficking issue. The evidence and submissions on both sides were not therefore directed to D1's co-possessors.

35. The statement in the agreed summary of facts that the drugs "belonged" to D1 is not inconsistent with D1 and D3 having been in joint possession. Furthermore, having concluded that D1's evidence was not credible we were unable to give any weight to such passages in D1's evidence at his trial which tended to exculpate D3.

36. Accordingly, being left in no reasonable doubt about the guilt of D3 on the first charge and being satisfied that his conviction was in all respects safe and satisfactory, we refused his application without dwelling on the question whether we could be taken to have merely heard de bene esse or to have actually "received" all or any of the fresh evidence tendered to the court under section 83V to which we had given no credence.

Representation:

Mr. Chan Siu Ming (Messrs S.C. Chan & Co.) for applicant

Mr. J.L. Abbott, Sr.C.C. for Crown Prosecutor