The Queen v. Ko Po Kun

CACC000077/1988

BETWEEN

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Coram: Silke, V.-P., Power, J.A. & Macdougall, J.

Date of Hearing: 11th August 1988

Date of Judgment: 11th August 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant was charged with possession of dangerous drugs for the purpose of unlawful trafficking. The particulars of that charge was that on the 4th October 1987 at Lai Kok Estate Public Carpark, Tonkin Street, Sham Shui Po, Kowloon, he had in his possession a dangerous drug, namely 52,362.87 grammes of a mixture containing 4,007.45 grammes of salts of esters of morphine for the purpose of unlawful trafficking therein. He pleaded not guilty to that charge. He was tried before Garcia, J. and a jury and was, after trial, found guilty by a majority verdict of 5 to 2. He was sentenced to fifteen years' imprisonment. He now appeals against his conviction.

2. The facts relied upon by the Crown came from several police officers who said that on the morning of 4th October they were on duty in the carpark mentioned in the charge when they saw the accused on foot inside the carpark. He was seen to get into an unattended private car(DS 6182) on the 3rd floor of the carpark and then to drive that car two levels, up to the 5th floor where he parked it. He was seen to get out of the vehicle, open the boot and take out two large bags from the boot. As he was doing this the police officers approached him. He became aware of them, dropped the bags and ran. There was a chase during which the applicant went from the carpark into Tonkin Street where he was apprehended. He was then brought back to the carpark on the 5th floor and the two bags which had been seen being taken from the car were examined. They were found to contain 20 packets of salts of esters of morphine weighing about 10 kg. The vehicle was then searched and similar bags were found inside the boot. The quantity of drugs found in all was about 52 kg.

3. The evidence of the applicant at the trial was that on that day he had borrowed a car CG 4690 from a person called Sing Chai. This was not the car in which the dangerous drugs were found. He said that he had driven it from the junction of Prince Edward Road East and Lai Chi Kok Road to the Lai Chi Kok Multi-storey Carpark and that he had then parked the car. He then went up to the fifth level because there were no vacant parking spaces at lower levels and parked the car next to the blue car DS 6182. Upon alighting he noticed that the driving side door of DS 6182 was not fully closed and that, in a moment of greed, he opened the door to ascertain whether there was anything worth stealing in the car. Finding nothing of value, he walked towards the exit staircase and that as he was leaving the carpark two men shouted at him that they were police officers. He ignored the warning and ran away but was apprehended, pushed to the ground, handcuffed and taken back to the 5th floor.

4. With respect to Mr. Plowman who appeared for the applicant the matters argued by him under Grounds 2 and 3 do not occasion us any doubt as to the propriety of the conviction.

5. However, his first ground does concern us. That ground was that

"The learned trial judge on three separate occasions in the summing-up referred to the Appellant as "a target person" adopting the terminology used by PW2 when giving evidence in chief. Such reference was highly prejudicial particularly having regard to the nature of the defence in this case."

6. The evidence which gave rise to these references came from Wong Ming-yan P.C.19739 who was asked, when giving evidence about the surveillance which he kept at the scene, "Did somebody in particular come along." His answer was "I saw the target person." There was no objection taken to that evidence at the time and no reference was made to it either in cross-examination or at any other point in the trial until the summing-up.

7. In the Summing-up the trial judge made three references to that evidence. He first said at p.6 of his Summing-up:

"On the day in question a party of police officers from the Narcotics Bureau was deployed in various locations in the vicinity of the Lai Kok Estate multi-storey carpark and in the car park itself for the purpose of observation and surveillance of a particular peson whom you have heard described as ' a target person'."

On the next page the trial judge again made reference to the phrase saying:

"And you have heard PC19739 say that at about 11.38a.m. that morning he saw the target person (that is, the defendant, who was then wearing a yellow long-sleeved T-shirt and a pair of jeans) near the exit of the car park on the third level between the spaces A309 and 310, and at that time the defendant was walking towards a blue private car No. DS 6182 which was parked at the space numbered A311."

The third reference appears on p.9 of the Summing-up where the trial judge said:

"You might ask yourselves that if one of the witnesses had seen this target person get into the blue car and start the car why no action was taken to apprehend the driver of the car as he got into the car and started to drive off but he had waited until the man had driven all the way up to the fifth level; and even then no action was taken whilst the car was being reversed into the parking space. But you have heard from the evidence that it was not until the man had run away from the car park into Tonkin Street and then to Lai Ho House that he was apprehended by three police officers."

8. It is argued that the reference by the trial judge to these words was gravely prejudicial to the applicant.

9. The police officer clearly should not have used the term "target person". implicit in such a phrase is a suggestion that a defendant is, or is about to be, involved in the crime in respect of which the police operation had been mounted. Indeed we see no warrant of any sort for the use of any such term. If reference has to be made to the reason why a police party is at a certain place all that need be said in the ordinary case, and this was one, is that they were there "on instructions".

10. The term "target person" having been used and no objection having been taken to it the trial judge might have seen fit to make no reference to it thereafter. That however was not the case and we make no comment as to whether or not that would have been a proper course. We are faced with the situation where the trial judge on three occasions did make specific mention of the phrase.

11. In our view if the trial judge was to raise it at all it should only have been to tell the jury that they must put it completely out of their minds. We consider that the position is very similar to that dealt with in the judgment of the court delivered by Li, J.A. in The Queen v. CHAN Tat-wah^(l) and we are in respectful agreement with him when he said:

"Further evidence was permitted to be adduced that the police were acting upon information and that it was the applicant for whom the police were looking. This highly prejudicial evidence was not only before the court but Counsel for the prosecution relied upon it in her closing address to the jury.

It is wrong that evidence should be led to indicate that the police went to a particular place as the result of information that they had received. It is very wrong that evidence should be led to the effect that the person on trial is the person referred to in that information. Such information is clearly hearsay of the most damaging kind."

The trial judge's reference to the phrase here was clearly wrong. The effect of what he said and his omission to give direction which he should have given was to leave the words as evidence before the jury for them to make of it what they would. We further agree with Mr. Plowman's submission that, in the context of this case, given the nature of the defence, this reference might well have worked a particular prejudice to the applicant. In the circumstance we have no recourse but to allow the application for leave to appeal, treat the hearing of the application as the hearing of the appeal and to quash the conviction.

(Having heard counsel a retrial was ordered.)

(1) Criminal Appeal No.545 of 1983

Representation:

Miss L.M.A. Shine (Crown Prosecutor) for the Respondent.

Mr. Gary Plowman (D.L.A.) for the Applicant.