Tsui Sheung and Others v. The Queen
|
CACC000705/1967 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL No. 705 of 1967 (Case No. 3 of November 1967 Sessions) -----------------
----------------- Coram: Rigby, Ag. C.J. & Huggins, J. Date of Judgment: 8 April 1968 ----------------- JUDGMENT ----------------- 1. Despite the careful and persuasive arguments put forward by Mr. Shears on behalf of the first two appellants, we are satisfied that there is no substance in these applications for leave to appeal and they must be dismissed. 2. The three appellants were convicted of the manufacture and possession of dangerous drugs. The facts may be briefly stated. At about 2.30 p.m. on the 14th September, a party of police acting on information received, carried out a raid on the first floor flat premises at 53A Nga Tsin Wai Road, Kowloon. There are, in fact, two adjacent flats - Nos. 1A and 2A - the outer approach from the landing to both of them being barred by a grille door across the top of the stairs. Knocking at the grille door producing no immediate result, members of the police party forced open the door by the use of an iron bar. The police party then pushed open the front door of Flat 1A, which was apparently unlocked, and entered into the corridor. In the flat were the three appellants, the first and second in the sitting-room and the third appellant in the corridor. It was a small two-bedroom flat with sitting-room, kitchen and bath-room. With the exception of the sitting-room, in every other room, including the kitchen and bathroom and, indeed, in the corridor, was found a considerable quantity of the usual utensils and paraphernalia connected with the manufacture of dangerous drugs. A strong choking smell of chemicals was coming from the direction of the kitchen. In the kitchen cooking was going on of some form of chemical substance. In one of the bedrooms, inside a cupboard were 2 sieves containing a substance - subsequently found to be heroin - being heated over an electric hair dryer. It was abundantly clear that the premises were in fact used for the maufacture of herein on a not inconsiderable scale. 3. The three appellants were arrested. The defence put forward by all of them at their trial was that they were entirely innocent; they knew nothing about the dangerous drugs being manufactured on the premises; nor had they had any part in the possession or control of the dangerous drugs found there, and each one of them was there for an entirely innocent purpose; the first two being there to purchase some furniture from a person who was presumably the owner, or in occupation, of the flat; the third appellant, the woman, having gone there in order to apply for a job as an amah. 4. We do not find it necessary to deal at any length with the evidence against each of the appellants and it is sufficient to refer very briefly to such evidence and to the defence put forward by each of the appellants. 5. In so far as the first appellant was concerned, evidence was given at the trial that at the time of his arrest, he was seen, whilst in the sitting-room, to take a key ring out of his pocket. The key ring was taken from him; it contained 4 keys. Of these four keys, one was found to fit the lock of the iron grille door, the second key the lock of the inner front door to flat No. 1A, and the third key the inner front door to the adjoining flat No. 2A. 6. Evidence was also given that the water in which the first appellant was requested to rinse his hands, upon analysis by the Government Chemist, was found to contain traces of heroin. Mr. Choi, a rent collector, gave evidence identifying the first appellant as the person from whom he had, on two previous occasions, received the monthly rent of the flat. He had received such rent when it had been handed to him, by the first appellant, through the bars of the iron grille door. At an identification parade, he picked out the first appellant, whom he identified by the name of Cheng Tse Choi, being the name in which the rent receipts were in fact issued. Finally, when formally charged with the two separate charges of manufacturing dangerous drugs and possession of dangerous drugs the first appellant, whilst denying the first charge, in answer to the charge of possession, and after caution, wrote in his own handwriting the words "I admit guilty". In his defence, the first appellant vigorously denied that he had ever been in possession of the bunch of keys, three of which fitted the doors of the two flats. He admitted that he had seen a bunch of keys in the sitting-room but denied that he had ever been in possession of them or picked them up. The evidence of Mr. Choi as to his having allegedly seen him through the grille door at the flat on the two previous occasions, was strenuously denied. Cross-examination of the Government Chemist elicited the fact that when heroin is being manufactured in a flat the atmosphere may from time to time be full of heroin dust which could, or might, settle on the furniture, and anybody in the immediate vicinity when such manufacturing is going on could, or might, become contaminated by the presence of such dust on his person or clothing. As to the statement, the first appellant said that after he had been charged with manufacturing dangerous drugs and had denied that charge, he was told that he must give some "face" to the police officer charging him, and that in consequence he was induced or persuaded to admit possession of the dangerous drugs despite the fact that he was entirely innocent. 7. The evidence against the second appellant was, to some extent, of a similar character. At the time of his arrest, he was found to be wearing a singlet and pyjamas; his shirt and trousers being found hanging up in another part of the flat. It was the suggestion for the prosecution that he was so dressed the more easily to facilitate his work in the process of manufacturing the drugs. There was evidence that traces of heroin were found in the basin in which he had washed his hands at the request of the police, traces of heroin were found in clippings taken from his nails, and traces of heroin were found in his clothing. Evidence was given that upon his arrest at the flat, when cautioned, he himself wrote and signed in the police officer's notebook the following statement:-
Then after signing that statement, he wrote down and signed the further sentence:-
When charged the following day with the offence of manufacturing dangerous drags, and after being cautioned, he himself recorded the words:-
and finally, when charged with possession of drugs after being duly cautioned he himself recorded and signed the statement:-
In an unsworn statement from the dock, the appellant explained the fact that he had taken off his shirt and trousers and was wearing only a singlet and pyjamas for this reason; he said that having agreed to purchase the furniture from the owner of the flat, he started to move it but was unable to do so by himself. The flat owner said that he was going out to get a meal and would send him some coolies and a lorry to assist him in the removal of the furniture and he agreed to this course. Whilst waiting for the coolies and lorry to arrive, he found that his clothes had become dusty as a result of handling the furniture and, since he was hot in consequence of his efforts, he took off his trousers and shirt in order to cool down until the arrival of the coolies and the lorry. He strenuously denied the statements tendered in evidence had been voluntarily made or that they were true and he contended that he had been forced to make them against his will. As to the third appellant, here again there was evidence that the water in which she was requested by the police, upon her arrest, to wash her hands was found to contain traces of heroin. Here again, Mr. Choi, the rent collector alleged that he had seen her through the grille door on at least two occasions when he had previously gone to the flat to collect the rent. The appellant's explanation for being on the premises was that she had gone there to seek employment. She admitted that she had been to the flat once before. 8. The issues before the jury were perfectly clear; upon the evidence adduced by the prosecution it was for them to determine whether they were satisfied, upon that evidence, that the three appellants found in the flat were jointly concerned in the manufacturing of drugs - which was undoubtedly going on at the very time when the police entered the flat - and whether they were in joint possession or control of these drugs, or whether they believed - or thought they might reasonably be true - the explanations put forward by all or any one of the appellants as to why they were on the premises at that time. The learned judge correctly directed them that it was essential that they should consider the evidence against each one of the accused persons individually and separately. As to the weight to be placed upon the statements tendered in evidence as against the second appellant and repudiated by him, the learned judge directed the jury in these terms :-
9. If any criticism can be made of that direction, it would be that it was unduly favourable to the accused. In our view, there was ample evidence to support the convictions against both appellants and their applications for leave to appeal must be dismissed. 10. However, before finally leaving the matter, we think it desirable to deal specifically with certain submissions made by Mr. Shears in the course of his arguments. 11. Mr. Shear's first complaint was that, even assuming the jury was satisfied that the first appellant was in fact in possession of the key ring containing keys fitting the locks of the doors of the flat in which the dangerous drugs were found, there was an inadequate direction by the learned judge to the jury as to the presumption of guilt arising under S. 16 (1) of the Dangerous Drugs Ordinance as a consequence of the possession of these keys. It is clear that the learned judge did in fact explain the meaning of the presumption to the jury but, unfortunately, he omitted to direct them as to the standard of proof required from the first appellant in order to rebut that presumption. At the conclusion of his summing-up Crown Counsel very properly reminded the learned judge of this omission specifically indicating - as is of course correct - that in order to rebut any presumption of guilt arising from possession of the keys, the degree of proof required from the appellant that he did not know that there were drugs in the flat was proof on the balance of probability and not proof beyond reasonable doubt. The learned judge sought to remedy the omission but, in the course of that direction stated:-
He went on to say:-
Use of the expression "produced some evidence" is perhaps unfortunate. It might be taken to mean either that the appellant himself must give an explanation of his possession of the keys or that he must call a witness to give such an explanation. This would not be strictly correct since it is, of course, conceivable that some other witness, whether a co-accused or a witness called by a co-accused or even a witness called by the prosecution, in the course of giving evidence might give some explanation as to how, or why, the keys came to be in the possession of the appellant. Such an explanation, if accepted by the jury, might well be sufficient to satisfy them, on the balance of probabilities, that the appellant, though in possession of the keys to the flat had no knowledge that there were in fact dangerous drugs in the flat. Therefore, we think, be no guilty possession of dangerous drugs without conscious knowledge by the possessor of the fact of such possession, and if an explanation satisfactory to the jury, was forthcoming - from whatever source that explanation might come - disclosing an innocent possession of the keys, the jury might well regard such explanation as sufficient to rebut or discharge the presumption of guilty knowledge as to the drugs found in the flat that would otherwise have arisen under Section 16 (1) of the Dangerous Drugs Ordinance by reason of possession of the keys to the flat. But, as Counsel for the Crown has pointed out, the presumption of guilty knowledge could only arise once the jury were in fact satisfied that the appellant was in possession of the keys. The learned judge himself made this abundantly clear to the jury. If, then, the jury were satisfied that the appellant was in possession of the keys, then even assuming there was an inadequate direction as to the standard of proof required to rebut that presumption, we are satisfied that any such possible misdirection or non-direction was of no practical consequence because no evidence of any kind was given by the appellant or by anyone else to account for his possession of the keys. In these circumstances, even assuming there was any such misdirection or non-direction, we are fully satisfied that it amounted to no possible miscarriage of justice and that this is eminently a proper case for the application of the proviso contained in Section 81 of the Criminal Procedure Code. 12. Complaint is next made by Mr. Shears as to two passages contained in the opening address of Crown Counsel to the jury. In the first passage Crown Counsel, in reference to the flat in which the drugs were found, suggested that "... it looked most unlike any normal flat, in fact it looked like a factory far more than a flat - a factory which was being used in the manufacture of some sort of chemical." 13. There is really no substance in this objection and we are satisfied that this was, in reality, nothing more than an invitation to the jury to find, in due course on the evidence that they would hear, that the flat in fact was being used as a factory for the manufacture of dangerous drugs. 14. The objection taken to the second passage is rather more substantial: in that passage Crown Counsel said :-
It was obviously never intended to prove such a statement and it should not have been made, no objection was taken to it at the time and we are wholly satisfied that it was not such an observation as could in any way, on the facts of this case, vitiate the trial. At no time was it suggested in cross-examination that there was any irregularity or impropriety in the manner in which the identification parades were conducted or that they were in any way defective. The sole question for the jury was whether the principal witness attending that parade, Mr. Choi, the rent collector, was correct in his identification of the first appellant and the third appellant as persons whom he had seen through the grille door of the flat on the previous occasions he had been there to collect the rent. 15. Mr. Shears next complains that the learned judge was wrong in inviting the Crown to make the last address in the voire dire proceedings. The general rule as to the order of speeches is that the party who asserts must open, and that he also has the privilege of reply. On the general issue that rule has now been changed in criminal cases and we apply the rule now in force in England. On pure questions of law, e.g. as to the admissibility of a question, where objection is taken by the Crown there seems to be no reason why the general rule should not apply. The admissibility of a confession depends on mixed fact and law. In our view the balance of convenience lies in adopting the same order of speeches as upon the trial of the general issue. There was, therefore, in our view, an error of procedure in this case. No point was taken before the Trial Judge and we believe no injustice resulted. For this reason we think the proviso should be applied. 16. We have already indicated that we would apply the proviso in relation to the misdirection upon the presumption. This further application does not relate to a misdirection and on that ground alone Regina v. Jones(1) (which deals with the application of the proviso in relation to more than one misdirection) can be distinguished. In any event we think the true principle is that every case falls to be decided on its own facts and in the present case we are well satisfied that it would be right to apply the proviso in relation to both errors. 17. The learned judge intervened in this case to ask counsel whether he was objecting to the admission of a statement made by the first appellant in answer to the charge. The only statement which had at that point been mentioned was the statement in answer to the charge of manufacturing and Counsel said that he was objecting. Counsel then appearing for the second appellant said that he likewise would contest "both statements" by his client, but he did not indicate to which statements he was referring. The only statements in the nature of confessions (and therefore the only statements to which objection could be taken on the ground that they were involuntary) were Exhibit 100 by the First Appellant and Exhibits 101 and 127A by the Second Appellant. We think these must have been the "three statements" referred to by the learned judge in his ruling. Nothing turns upon this, however, because the ruling was as to admissibility only: it still remained for the statements to be admitted and it was open to counsel to renew his objection when the statements were tendered if he were in doubt about the applicability of the ruling to any particular statement. In the absence of objection we are entitled to assume that such objection as had been made had been ruled upon. 18. In order to save difficulties of the kind which we have experienced upon this appeal we think it right to say that in relation to statements it is the duty of counsel on the one side to make any objection clearly, stating (i) what he is objecting to and (ii) why: and on the other side to apply formally for the admission of each and every statement as it is produced - only when it is admitted should it be marked as an exhibit. 19. As to the substance of the appeal against the ruling on admissibility of the statements counsel first argues that the Judge did not have regard to the fact that the First Appellant was a Shanghainese and that he was charged in Punti. We have some difficulty in understanding this argument since the Appellant gave his evidence in Mandarin and the charge was read to him by the interpreter in Shanghainese: the fact that the charging officer spoke Punti is neither here nor there. In any event there was unchallenged evidence that when he was charged he appeared to understand the caution which was read to him. It was only as to the caution that the language factor was material and it seems to us that no just criticism can be made of the ruling on this score. 20. Then complaint is made that the Judge said that if he believed the charging officer and his interpreter "that really is the end of the matter". The suggestion is that this in some way indicated a wrong approach to the decision of any question in a criminal trial. Counsel relies on Mohamed Yatin Bin Abu Bakar v Public Prosecutor(2) The relevant paragraph of the judgment in that case is on page 58: "Reading the learned President's grounds of decision as a whole it seems to me that he tended to approach the question of the guilt or innocence of the accused on the basis of deciding which of two stories he should believe". We agree that if a judge does that he is not applying the correct principle: but there is nothing in the ruling here which leads us to believe that the learned judge was merely balancing one story against another: on the contrary in our view it is clear that he fully appreciated that he had to be satisfied beyond reasonable doubt and he used those very words in the course of his ruling. It is totally unnecessary to repeat the incantation over and over again either when giving reasons for the ruling on the voire dire or in charging the jury: Wong Cho-kui v Reg.(3) If, having heard all the evidence, the Judge believed the Inspector and his interpreter the voluntariness of the statement had been proved beyond reasonable doubt - and that was the end of the matter. 21. The only part of the ruling which might appear open to criticism is the passage where the Judge says that the statements of the second appellant "bear the mark of truthfulness of them". It is rightly said that in deciding whether a statement is voluntary it is immaterial whether the statments are true or not. But it seems to us that when the judge made this remark he was dealing with the other contention advanced on behalf of the second appellant, that he had never made the statement at all, for the judge goes on: "On their face ..... they must have been made by the second accused and not, as he would have it, dictated to him by a Constable". We are not persuaded that the judge took into consideration the truthfulness or otherwise of the statements in relation to the issue of voluntariness. He thought the Crown had proved that the statements were voluntary and said that "again, it (was) a question of credibility". We see no reason to believe that having adopted the right test in relation to the statement of the first appellant he then adopted a different test in relation to the statements of the second appellant. 22. As to the third appellant the only matter we think it necessary to consider is whether there was evidence sufficient to leave to the jury on the two counts. In our view the case against her was put very fairly by the judge. There were three facts which were proved. First, she was present in the flat when the manufacturing process was clearly going on. Second, traces of heroin were found in the water in which her hands were washed. Third, she was identified as having been in the flat on two previous occasions, although her own story was that this was only the second time she had been there. It was not a strong case but in our view there was evidence which, if believed (as it clearly was), entitled the jury to convict.
8th April, 1968. Representation: (1) (1961) Crim. App. p.68 (2) (1950) 16 M.L.J. 52. Malayan Law Journal (3) Criminal Appeal No. 95 of 1965. |