Chau Au Shu v. The Queen

CACC000771/1981

Appellant charged with offences: A. Attempting to defeat the course of justice by hiding suspected drugs which he found in a seam. B. Possession of drug - Appellant convicted of charge A but acquitted of charge B - Appellant appeal against conviction on ground that the verdict relating to the two charges inconsistent.

Held, dismissing the Appeal, that:-

Coram: McMullin, Li, JJ.A. & O'Connor, J.

Date of Judgment: 11th March 1981

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JUDGMENT

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Li, J.A.:-

1. The appellant was charged originally with two offences: (1) attempting to defeat the course of public justice contrary to common law and (2) possession of dangerous drugs. The particulars relating to the 1st charge were that between 12th March, 1980 and 20th March, 1980, he, being an officer of the Royal Hong Kong Police Force attempted to defeat the course of public justice by concealing a quantity of dangerous drugs found by him at No. 38 Ship Street, 3rd floor, in the course of a police investigation which evidence he knew to be material to the said investigation intending thereby to defeat the course of public justice. The particulars of the 2nd charge were that between 12th and 20th March, 1980 he had, unlawfully in his possession a dangerous drug, namely 3.50 grammes of a mixture containing O.72 gramme of salts of esters of morphine and O.33 gramme of babitone. He was convicted of the 1st charge but acquitted of the 2nd charge. He now appeals against his conviction.

2. The appellant was a sergeant of the Royal Hong Kong Police Force. In March last year he was attached to the Dangerous Drugs Squad of the C.I.D. Wanchai Police Station under the command of one Inspector Keith Barrow. Other members of this squad comprised of PC20502, WPC15903, PC20020, PC20247, PC19396. In the morning of 13th March last year, following the arrest of a suspected drug trafficker, Leung Wah and upon information, the squad decided to conduct a search on two sets of premises occupied by Leung Wah's son, Leung Kai-hung. One of the two sets of premises searched was No. 38 Ship Street 3rd Floor. Members of the squad who went to search the premises at Ship Street were Inspector Barrow, the appellant, PC20502 and WPC15903. They brought Leung Kai-hung with them. On arrival, they commenced to search a room which was identified by Leung Kai-hung to be the one occupied by himself, his brother and sister-in-law. Those who took part in the search were the appellant, PC20502 and WPC15903. The search was conducted in the presence of Inspector Barrow and Leung Kai-hung who were at the door while Leung Kai-hung's sister-in-law was in the room.

3. The Crown's case was that the appellant searched a chest of drawers in the room. At that moment PC20502 and WPC15903 were standing beside him one on each side. The appellant was seen to have taken a tin from the top drawer. He opened it and the police constable saw that there were small packets typical of packets containing dangerous drugs usually found on drug traffickers. At this juncture the appellant put his index finger on his lips indicating to PC20502 to be quiet. The appellant then slipped this tin with the packets into his trouser-pocket. PC20502 at once signalled to the Inspector indicating that the appellant had put the tin in his trouser pocket. However, the Inspector did not understand the signal and ignored it. Nothing further was found and the squad left for the Wanchai Police Station. On their way the appellant was alleged to have said to PC20502 something to the effect that if this was known by the Inspector he (the appellant) would certainly die. It was further alleged that back at the station the appellant asked PC20502 as to where "the things" should be put. By "the things" PC20502 understood the appellant to mean the tin and the packets. Again at about 2.30 p.m. the same day at the police canteen the appellant showed PC20502 the same tin and the packets saying that there were 20 packets. Later at 4 p.m. the same day the appellant told PC20502 that he (the appellant) had buried "those things" under the sand in the Divisional Superintendent's carpark. PC20020 who was never a member of the search party at Ship Street gave evidence that the appellant showed him the tin and its contents in the appellant's car while it was parked outside the Causeway Bay Magistracy in the afternoon on 13th March, 1980.

4. The incident of the appellant secretly keeping the tin and its contents had been reported by PC20502 to the Inspector several times. Owing to his inexperience and his desire to consult his superiors the Inspector did not bring the matter to light until the 19th March, 1980.

5. On 19th March the appellant was put through a body search by officers of the C.A.P.O. with no result. The appellant was then ordered to bring his car into the police compound to a place near the Divisional Superintendent's carpark which at one time had been used as a shooting range. Nothing was found in the car. But the ground in the vicinity where the car was parked was searched. This time the police found a police exhibit bag in a drain near to the entrance of the Divisional Superintendent's carpark or shooting range. Inside this exhibit bag was a smaller plastic bag containing 23 packets of what were found to be dangerous drugs. On examination by the Government Chemist it was found that the 23 packets contained a mixture of dangerous drugs as set out in the particulars of the 2nd charge.

6. In the Court below, the appellant's case was that whilst he took part in the search in that room at 38 Ship Street, he never searched the chest of drawers nor did he observe anyone doing so. He denied having taken anything or any tin from anywhere in the course of the search at any time. He further categorically denied all the alleged conversations with PC20502 in the police station or while they were on their way to the police station. He also denied having showed the tin and its contents to either PC20502 in the canteen or PC20020 in his car.

7. Having considered the evidence as a whole the learned trial judge convicted the appellant of the 1st charge and acquitted him of the 2nd charge in these words. At p.212 he said:-

"The accused was found not guilty on a second charge of having unlawfully in his possession dangerous drugs and I cannot say beyond reasonable doubt that what I find the accused did "conceal" was in fact "a quantity of dangerous drugs". However on the evidence I am satisfied that the accused did conceal a tin and its contents on his person during the search at the Ship Street premises and I am satisfied that the contents of that tin looked to PC20502, a member of what is called a Dangerous Drug Squad of Wanchai Police Station, to be packets of dangerous drugs and that this constable had good reasons for this belief, and that the accused told PC20020 that what was in the tin he found was dangerous drugs. The Crown cannot rely on the accused's statement to PC20020 to establish in fact that the contents of the tin were dangerous drugs but the evidence is that the premises at Ship Street were being searched to see if drugs were in them and what the accused found not only looked to an experienced member of the Drug Squad to be packets of dangerous drugs but were later on the same day said by the accused to be packets of dangerous drugs. I am satisfied that the Prosecution has established sufficient to cover that element of the charge." .........

At page 214 he said:-

"I am satisfied beyond any doubt that the accused did search in the top drawer of the chest of drawers and in it found a tin which when he opened it was seen to contain what must have been, by him, reasonably suspected to be packets containing drugs as PC20502 thought with good reason they were, and he then secreted the tin to his right trouser pocket." ........

At page 215 he said:-

"I am unable to say what eventual purpose the accused had in mind when he took the tin and its contents although on the evidence it was with the approval of the occupant of the cubicle. But the immediate purpose was to and did frustrate the proper activities of the Wanchai Drug Squad in its investigations at the Ship Street premises."

8. The grounds of appeal filed on behalf of the appellant are:-

9. In the course of the appeal Mr. Sedgwick for the appellant indicated that he would not advance any argument in respect of Ground 3. He further indicated that Ground 5 added no more to the other grounds of appeal.

10. With regard to Ground 4 of the grounds of appeal, it is observed that at page 213 the trial judge did analyse the personality of PW4 (PC20502) in which he said:-

"........ Having seen and observed PC20502 in the witness-box one can appreciate the Inspector's unhappy hesitation. PC20502 obviously thinks he is destined for higher things - in rank and duties. He is a self opinionated, cocksure young man and it may be true that his abilities were being not sufficiently used as a, mere, constable. Certainly he could not have made things easy for his Inspector."

Then the trial judge said that he was satisfied beyond any doubt that the accused did search the top drawer of the chest of drawers. We observed at the trial that Inspector Barrow gave evidence that he also saw the appellant search the chest of drawers. Thus it cannot be said that the evidence of PC20502 was totally uncorroborated. In the course of the trial the so-called conflicts and frictions between the appellant and PC20502 were thoroughly aired. It was only by comparison and after consideration that the trial judge accepted the evidence of PC20502 and rejected the appellant's evidence. It can hardly be said, we feel, that the judge failed to consider the reliability or otherwise of the evidence given by police officers involved.

11. The arguments advanced in support of the 1st ground and paragraph (a) of the 2nd ground are interrelated and the same. It is true that the proposition advanced by the Crown was that the dangerous drugs in the tin box hidden by the appellant were the same dangerous drugs in respect of which the appellant was charged with possession. Mr. Sedgwick contends that since the learned trial judge acquitted the appellant of possession of dangerous drugs it would be inconsistent to convict the appellant of having hidden the same drugs with the intention to defeat the course of public justice. For the same reason it is argued that Crown has not established beyond reasonable doubt that a quantity of dangerous drugs was concealed by the appellant. By his own findings it is obvious that the trial judge was not satisfied beyond reasonable doubt that the packets found by the appellant in the tin were the packets of drugs found in the drain. It is also apparent that the trial judge convicted the appellant of the 1st charge solely on the evidence of PC20502 and PC20020. The appellant was seen of hiding a tin containing packets which, to the eyes of PC20502, were packets of suspected dangerous drugs. There is ample evidence to support the judge's findings that the appellant believed the packets in the tin to contain dangerous drugs. The appellant's own conduct and the appellant's conversation with PC20502 and PC20020 supply such evidence.

12. This leads us to consider the question whether it is necessary for the Crown to prove that the packets concealed by the appellant were, in fact, dangerous drugs in order to support the conviction of the 1st charge. Attention was drawn to the case of Reg. v. Machin reported in 1980 1 W.L.R. p.763. At p.766 Eveleigh L.J., said:-

13. In the light of this dictum it is apparent to us that the substance of the offence is the attempt to defeat the course of public justice. The mention of dangerous drugs in the particulars of offence is not the substance of the charge, it is merely intended to give information to the appellant about what he was supposed to have hidden or what he had believed he had hidden. The defence of the appellant was that he had hidden nothing whatsoever. Whether or not what was in the tin concealed by the appellant was in fact dangerous drugs, was not vital to the charge. The issue, on this part of the case, was whether or not he had concealed the tin and contents with intent to defeat the course of justice. The defence were well aware that they had to meet this issue.

14. The learned trial judge was amply justified in concluding that the appellant did hide a tin containing packets which the appellant believed were dangerous drugs, or at least suspected to be dangerous drugs and which he actually alleged to be dangerous drugs. In this connection we recall to mind the case of Reg. v. Chow Hei reported in 1960 H.K.L.R. p.37. That was the case in which a person was charged with corruptly offering a gift to a police officer for forbearing to take action in respect of an offence of possession of dangerous drugs. That person was alleged to have offered a thousand dollars to a police officer not to arrest two persons stirring a pot of substance which appeared to be dangerous drugs. There was no evidence that the pot contained dangerous drugs. One of the grounds of appeal was that there was no evidence that the offence of possession of dangerous drugs was being committed or had been committed by those two persons or any person. Dismissing the appeal in one of the majority judgments Blair-Kerr, J. said:-

"I do not believe for a moment that the defendant could possibly have been misled by the fact that the charge did not describe the drugs offence as "an alleged offence" or "as a dangerous drugs charge". The gravamen of the corruption charge was the inducement to forbear taking action in the drugs offence. The police had a duty to take action. That was the matter with which they were concerned. From all the evidence before the learned trial judge, it is quite obvious that the appellant knew perfectly well that the two persons, Yu and Chan, had been arrested for possession of dangerous drugs and his bribe was intended to put an end to the prosecution of this offence. In the circumstances so far as proving the corruption charge was concerned it was completely unnecessary to have introduced any evidence relating to the guilt of Chan and Yu on the drugs charge."

15. In the present case when he found the tin containing the packets the appellant knew well that had he disclosed the tin containing the packets even of suspected dangerous drugs Leung Kai-hung would have been arrested for the possession of dangerous drugs. The appellant's action in hiding them was intended to put an end to such investigation or arrest. So far as proving the attempt to defeat the course of public justice was concerned, it was completely unnecessary to introduce any evidence relating to the fact that Leung Kai-hung was in fact in possession of dangerous drugs in those tins. It may well be better that the particulars of offence contain the words "suspected dangerous drugs" rather than merely "dangerous drugs". But, in our opinion, the omission of the word "suspected" is not of any great importance because the evidence of the attempt to defeat the course of public justice and to prevent the instant arrest of Leung Kai-hung is overwhelming. But we consider that any doubt in this connection can be resolved by the application of the proviso in the Criminal Procedure Ordinance. If this is necessary we would have no hesitation to apply the proviso.

16. In paragraphs (b) and (c) of Ground 2 of the appeal it is contended that the Crown has failed to establish beyond reasonable doubt that the appellant intended to defeat the course of justice or that the conduct of the appellant had the tendency to defeat the course of justice.

17. In this connection it is necessary to consider when has the course of justice begun. In Reg. v. Bailey 1950 N.I.R. 15 at p.24 Lord McDermott said:-

"But the administration of public justice, particularly in the criminal sphere, cannot well be confined to the sphere of adjudication. In point of principle, we think it comprehends action that nowadays belong, in practice almost exclusively to the police such as the investigation of offences and the arrest of the suspected persons; and we see no good reason for regarding these preliminaries as belong to the scope of the category we are not considering."

In the case of Reg. v. Britton Road Traffic Report 1973 502:-

"The appellant was convicted of attempting to defeat the couse of justice by consuming alcohol in order to prevent the provision of a sample of blood or urine as a specimen for the purposes of section 1(1) of the Road Safety Act 1967."

Page 506, Lord Widgery, C.J. said:-

"Mr. Hill, supporting the conviction, invites us to say that the offence is proved if there is some course upon which justice has embarked and the accused deliberately tampers with that course or interferes with it. ...... The emphasis of his argument, of course, is that there must be come course upon which justice has embarked before there can be any proper case of interference with that course. He submits that in the present case the course of justice is mapped out by the Road Safety Act 1967, the precise steps to be taken are there laid down, and once a police officer has reached the stage of setting that course of action in motion by requiring the provision of a specimen of breath for a breath test from a motorist, then, says Mr. Hill, anything which the accused does thereafter which interferes with and upsets the due working out of the statutory course of action is within the scope of the offence which was charged here. ............... but we are of the opinion that once the statutory course of action has begun by the request for a sample of breath, any action thereafter deliberately and intentionally taken by the accused with a view to frustrating the statutory procedure may be charged as an offence, as charged in this case."

18. In the case of R. v. Thomas 1979 1 ALL E.R. page 577, the appellants were convicted of attempt to defeat the course of justice. They gave the registration numbers of unidentified police cars which were keeping watch on a person suspected of bank robberies to the suspect. But Bridge, J. dealing with the submission that the giving of such information, not being an unlawful actperse, was not sufficient to constitute the offence of attempting to pervert the course of public justice said at p.580 as follows:-

"We have considered that submission with care. We appreciate that the established cases do not in terms show any instance of a conviction of this common law offence on facts which are on all fours with the facts before the court today. But we are unable in principle to accept the logic or validity of the distinction which counsel seeks to draw between an interference with the police in their activity, which is certainly part of the administration of justice, of seeking to arrest suspected persons, which is done in a dishonest, corrupt or threatening way and an interference which consists of such acts as were here involved."

19. In the light of these authorities we have come to the conclusion that the course of public justice has begun as from the time when police investigation begins. Here a team of police officers acting on information and suspicion proceeded to certain premises to look for suspected drugs. This is similar to the constable asking the motorist for a breath sample in Britton's case and similar to the unidentified police vehicles keeping watch on a suspect of bank robberies. It makes no difference whether the course of justice is continued by virtue of statutory provision or by virtue of a common law. Action in public justice has been embarked on all the same. The appellant, in the present case in the course of a search found something which, to say the least, was suspected of containing dangerous drugs. He hid it. On a subsequent inquiry he denied ever having found it. If the discovery made in the course of his search were disclosed to the inspector the certain result was that Leung Kai-hung would have been arrested and the suspected drugs seized for further investigation. By his action the appellant had frustrated or defeated this course of justice. The substantive offence was complete by the conduct of the appellant without the Crown having to prove that Leung Kai-hung was, in fact, in possession of dangerous drugs found in his room.

20. In the circumstances there was every justification for the trial judge to come to the conclusion that the appellant's conduct might defeat the course of public justice or tended to defeat the course of public justice. Evidence adduced by the prosecution did disclose a conversation between the appellant and PC20020 and the WPC to the effect that the appellant deliberately protected Leung Kai-hung, whom he intended to use as a bait to catch a bigger trafficker by the name of Ah Chau. However, that had never been the appellant's defence. His defence from start to finish was that he never found the tin with suspected drugs. Nor did he keep the tin. By the same token it meant that he had hid nothing in order to protect Leung Kai-hung. Even so the learned trial judge did consider the appellant's intention for, at page 215 of his Reasons for Verdict, he mentioned the eventual purpose of the accused had in mind. Further in his oral judgment in sentencing the defendant at page 210 he said:-

"The offence for which defendant is convicted is one that strikes at the proper (regular) public administration of justice in our courts which is dependant upon the trust and confidence that can be placed in those officers of the law in the Police Force. There cannot be two streams of "justice" - one conducted by members of police force and another enforced in the Courts. What the defendant did was to undermine the of suspected offence and so prevent the true administration of justice in the public courts."

By "eventual purpose" the trial judge must have meant the motive which was in the mind of the appellant. Without going to the merit of the case of King v. Ahlers reported in 1915 1 King's Bench 616, the facts of that case are very different. In the Ahlers' case there was indeed a difference of intention on the part of the appellant either aiding the King's enemy or acting in the honest belief of carrying out of his duty as German Consul.

In the present case even if the sergeant's intention were to protect Leung Kai-hung so that he could use him as a bait to catch another criminal the intention to defeat the course of justice vis-a-vis Leung Kai-hung was there. He intended to pervert or obstruct an investigation and the prosecution which he contemplated might follow. The offence was complete even if he hid the tin of drugs with that intent. In the circumstances we find no merit in the grounds of appeal filed and the appeal must be dismissed.

Representation:

A.W. Sedgwick (Hastings & Co.,) for appellant

M.V. Lunn for Crown