R. v. Lau Miu Wan

CACC000662/1995

IN THE COURT OF APPEAL

1995, No. 662
(Criminal)

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Coram : Hon Yang, C.J., Bokhary and Liu, JJ.A.

Date of Hearing : 26 March 1996

Date of Judgment : 26 March 1996

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J U D G M E N T

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Hon Yang, C.J.:

1. D1 and D2 were jointly charged with an offence of trafficking in a dangerous drug. D1 was acquitted after trial and D2 was convicted. The prosecution presented the case on the basis of a joint enterprise between D1 and D2.

2. D1 and D2 did not give evidence in the court below.

3. The facts, as far as D2 was concerned, were that at the time and place in question, she was seen in a car with D1. The police who were keeping observation also saw D1 passing a bag to D2 who then put it in the glove compartment. When the police went up to the car in which D1 and D2 were seated, they found the package which was later discovered to contain dangerous drugs. Upon being questioned under caution by the police, D2 said orally, "Madam, it's noting to do with me. I was having a joy-ride with my boyfriend."

4. The evidence against D2 therefore consisted of her having been observed in the same car as D1, of having handled a package which was later found to contain dangerous drugs and of the statement which I have just referred to.

5. The judge, in an otherwise careful direction, referred to the statement made by D2 under caution. He said this:

"Pausing here for one moment, I will tell you the law regarding the statements and the caution. A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception, a statement made by the accused is not evidence of the facts in the statement. A statement that is not an admission is admissible to show the attitude of the accused at the time she made it."

6. Mr Oderberg, acting for D2 in this application for leave to appeal against conviction, advances two Grounds of Appeal. The first ground is that the verdicts of the jury were inconsistent in that they acquitted D1 but convicted D2 of the same charge on virtually identical evidence. The second ground is that the judge erred in his direction that the exculpatory parts of D2's statement under caution were to be treated differently to parts of a statement under caution which were inculpatory in that the former parts are not evidence of the truth of the words but are evidence only of the response of D2 when confronted with an allegation of criminal conduct whereas the latter are evidence as to the truth of the words.

7. Taking the first ground, it is clear that the only evidence which might have led the jury to convict was the palm prints found on the bag in which were the packages containing the dangerous drugs. If that is so, in our view, the palm prints do not really advance the prosecution's case to any great extent. In addition, the statement consisted of an admission of her presence together with D1 in the car. There is no evidence of knowledge that she received a package of a dangerous drugs. It is difficult to reconcile the verdicts of the jury as regards D1 and D2. There is clearly an inconsistency in the way the jury approached the two accused.

8. As to the second ground, we are referred to the case of Regina v. Sharp (Colin) [1988] 1 WLR 7 where Lord Havers at page 15 D-F said this:

"How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is though fair that it should be considered by the jury. I agree with Lawton LJ that a jury will make little of a direction that attempts to draw a distinction between evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts. One only has to write out the foregoing sentence to see the confusion it engenders."

9. With respect to the learned trial judge, in our conclusion, he has erred in the manner described by Mr Oderberg in the second ground of this application.

10. In essence, the statement made by D2 under caution was a mixed statement since it admits travelling in the car in which the drugs were found. In our view, the situation falls squarely within that envisaged in the case of Sharp (super).

11. For the foregoing reasons, we allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal. The conviction is accordingly quashed and the sentence set aside

Representation:

Mr Keith Oderberg (Messrs Paul Kwong & Co.) for Applicant

Mr William Lam of the Attorney General's Chambers for Crown/Respondent