HKSAR v. Lau Yam Cheung

CACC000737/1996

IN THE COURT OF APPEAL

1996, No.737
(Criminal)

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Coram: Power, V.-P., Mayo, J.A. & Stuart-Moore J.

Date of Hearing: 14 November 1997

Date of Judgment: 14 November 1997

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. The Applicant was convicted on 16th December 1996, following a trial in the High Court before Bokhary J. and a jury, of trafficking in a mixture containing just over 482 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He was sentenced to 17 years' imprisonment. He now seeks leave to appeal against his conviction and sentence.

2. The facts of the case were straightforward. The jury delivered its unanimous verdict on the fifth day of the trial. Essentially, the prosecution alleged that on 14th April 1996 the Applicant was the tenant of the room where the drugs, together with 314 resealable plastic bags, were found. The heroin was valued at over $500,000. The prosecution's case was that the Applicant knew that the drugs were there and that the only inference to be drawn from the quantity of them was that he was a trafficker in heroin.

3. The defence case was slightly unusual. They called Law Pak-kwan ("Law") in order to support the Applicant's evidence that the drugs in question were not found inside the Applicant's flat. Law testified that they were found outside, near the iron entrance gate, in a place where he kept the keys to his own flat, opposite the Applicant's flat. Law gave evidence that the police had arrested him in the street and found white powder on him. Following this, police had accompanied him back to his address. Police asked where he kept his keys and he showed them. Only then were the drugs discovered. Law testified that at that precise moment, the Applicant came out of his flat and police pushed their way inside.

4. The defence case, in effect, was that the Applicant had been framed by police. Their target was Law and it was Law, not the Applicant, who had brought police to the scene. Neither Law nor the Applicant bore responsibility for the drugs that someone must have put outside the Applicant's door.

5. There are three grounds of appeal all of which relate very much to the same point. These have been advanced by Mr. Wong Po-wing who did not appear for this Applicant in the court below. They are as follows:

"1. The learned trial judge erred in not giving any direction to the jury before they deliberated on their verdict after gravely prejudicial evidence had been given by a witness which indicated, suggested or implied that the Appellant was a person with previous criminal convictions or otherwise of bad character. The giving of such evidence before the jury created a real danger of bias on the part of the jury.

2, Alternatively, the learned trial judge failed or failed properly to consider the question of and/or to exercise her discretion to discharge the jury after gravely prejudicial evidence had been given by the witness Law as mentioned in Ground 1 above, although no application was made on behalf of the Appellant for discharging the jury.

3. Alternatively, the learned trial judge erred in allowing or not stopping counsel for the prosecution from cross-examining Law on his association with the Appellant in Lai Chi Kok when such line of questioning would or tended to lead to further prejudicial evidence being given by Law."

6. Defence counsel in the trial, Mr. H.Y. Wong, called Law on behalf of the defence after the Applicant had given evidence and there followed an exchange in the course of the trial which reads:

"A. ...... I seem to know him after this incident, that is after the arrest by police.

Q. I see, right. Ah, how do you come to know him?

A. In Lai Chi Kok. In Hei Ling Chau. First in Lai Chi Kok and then in Hei Ling Chau."

Defence counsel then continued by asking the witness about his previous criminal history that included eight offences related to theft and two relating to drugs.

7. In cross-examination, Law was asked about his association with the Applicant and he replied at one stage:

"A. ..... We were together in Lai Chi Kok ......

Q. Is it right you had almost daily contact with Law?

A. Yes, everyday we were together ...... We were always together ......

Q. Did you discuss anything about this case?

A. Just a little, very little .....

Q. Right, only on two occasions?

A. Yes, we seldom talk about it."

8. We are not impressed by the argument that the jury might have been prejudiced against the Applicant by virtue of the knowledge that this Applicant and Law had spent time in custody together. The allegation was an extremely serious one and a sensible jury might have been expected to realize that the Applicant would be in custody pending his trial. This carries no reflection at all so far as the Applicant's previous character is concerned.

9. In the particular circumstances of the case, however, it was inevitable that the jury would come to know something about the previous meetings. It does not appear to have been accidental on defence counsel's part that he elicited the places in which the Applicant had met Law but, whether it was accidental or not, there was certainly no mistaking trial counsel's intention to introduce Law's criminal history. It suited the defence to establish this to lend support to the suggestion that Law, and not this Applicant, was the target of police attention. Furthermore, it was tactically sensible to introduce the evidence on both these topics while the witness was giving evidence in chief rather than to leave the matter for the prosecution to explore, which might have given the impression that the defence was being less than frank.

10. Trial counsel made no application for the discharge of the jury, and we can see absolutely no reason why he should have wanted to do so. The Applicant's witness had come up to proof and no one had hinted that the jury had heard something that they ought not properly to have been told about. Furthermore, prosecution counsel carried out his duty within perfectly proper bounds when he sought to discredit the witness Law. There was one brief reference to the two custodial institutions.

11. We do not agree with counsel's submission in this court that the learned judge should have taken it upon herself, in the exercise of her discretion, to discharge the jury. However, perhaps mindful of the possible prejudice that can arise where a witness of undoubted bad character gives evidence for the defence, the judge directed the jury in the following terms:

"Now, one thing I must warn you about is this: you must not form an unfavourable view of the accused on the basis of the bad character of his witness. But of course, that witness's bad character is something you can properly take into account in your assessment of what weight to attach to his evidence.

Defence counsel brought out the fact that Mr. Law was the target of the police inquiry which took them to the flat, and that the accused was not a target. The defence wanted you to know that, and they are entitled to have you know that if they wish, which they do."

12. The summing-up was impeccable. It was concise and it was meticulously fair to both sides. At no stage did the judge make any reference to the locations of Law's meetings with the Applicant. Again, we consider that it is not a matter about which criticism can properly be made because, to have done so, might well have focused attention on that aspect. We have been reminded of the case of R. v. Wright, 25 Cr.App.R. 35. This was a case that was very different on its facts, concerning a witness who had seen a photograph in what he described as the "rogues gallery". Avory J. said, in a passage at page 41, that may have relevance to the present application before us:

"We have come to the conclusion that in a case of this kind, where by accident an observation of this nature has been made, it may very well be that the best course for all parties - prosecution, defence and trial judge - to pursue is to abstain from making any reference to it at all. The making of any reference to the matter may only tend to impress it more strongly on the minds of the jury."

13. This is a wholly unmeritorious application. Leave is refused so far as conviction is concerned and the application is dismissed.

14. On the question of sentence, the Applicant is not represented under legal aid. He has had nothing to add, and we have no doubt that the sentence imposed on him was a proper one falling squarely within the guidelines of Lau Tak-ming. We can see no reason, therefore, to interfere with it and that application is also dismissed.

Representation:

Mr. Michael Blanchflower, G.C. (D.P.P.) for the Respondent

Mr. Wong Po-wing (D.L.A.) for the Applicant (re: Conviction)

Applicant in person (re: Sentence)