R. v. Tsang Chun Hei

CACC000008/1996

IN THE COURT OF APPEAL

1996, No. 8
(Criminal)

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Coram: Mortimer, Mayo and Ching, JJ.A.

Date of Judgment: 28 May 1996

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 4 December 1995 the applicant was convicted of two offences of trafficking in a dangerous drug and one of manufacturing dangerous drugs before Stock, J. and a jury. Consequentially, on 5 December he was sentenced to a total of 22 years imprisonment. In total the counts involved a large amount of dangerous drugs. In count 1, there was a mixture containing 3.25 grammes of heroin and in count 2, 606.26 grammes of heroin and 817.79 grammes of cannabis.

The facts

2. The applicant and a man called Lau were stopped in Kowloon City Road at about 4 pm one afternoon by the police. Although the facts surrounding this stopping and the following arrest were vigorously disputed at trial, the evidence of the prosecution showed that the applicant had upon him keys to a nearby flat where he admittedly lived, the telephone bill for the phone in that flat and the drugs in a cigarette packet relating to count 1 in the indictment. After he was arrested, he said to the police, "Ah sir, give me a chance". The police eventually took the keys and entered the flat. There they found a man who was also accused, but pleaded guilty, called Wong. That man gave evidence at the trial against the applicant. The police found the drugs in count 2 in the flat together with manufacturing paraphernalia which was the basis for count 3 of the indictment.

3. The tenant of the flat was the applicant's girlfriend, but he admitted living there. At the outset he denied knowledge of the drugs and the paraphernalia but later he made a further admission in the flat. In a statement which was taken by the police in the early hours of the following morning, he made a full admission of these offences in some circumstantial detail.

At trial

4. However, the confession statement was vigorously contested. The applicant denied these offences; basically saying the police had lied about his arrest; he had not got upon him the drugs concerned in count 1; that the drugs and paraphernalia in the flat were nothing to do with him and that those in the flat were aware that he had left the flat earlier and had not intended to return for some days.

The appeal against conviction

5. On the evidence the jury heard, the judge summed up the case in considerable detail and with great fairness. There are, however, three matters which the applicant through his counsel Mr Hoosen seeks to advance by way of appeal against conviction.

6. The first matter concerns the judge's directions to the jury about their approach to the evidence if they were to reject completely the evidence of the confessions said to have been made by the applicant. Mr Hoosen submits that if those confessions were rejected by the jury, there was not sufficient evidence then for the jury to convict. He says, therefore, that when the judge left to the jury the possibility that they could convict of all three counts if they rejected the confessions this was wrong because the evidence left, amounted only to suspicion and it was unsafe for a jury to convict on that basis.

7. The foundation of his argument is a passage of the summing-up in which the judge (at p.88) dealt with the possibility of the jury rejecting the evidence of the police officer contained in note of the arrest in the street and the evidence that the drugs were found upon the applicant in count 1. The judge said at H:

"That is an unlikely scenario, you might think because if you rejected the evidence about the admissions, the police evidence about the admissions, it is not likely that you would be sure that the evidence of the arrest in the street is accurate."

8. However, the judge did leave the possibility of a conviction on all three counts on the basis of the evidence without those admissions. He dealt with the evidence in some detail but finally he said at p.87I:

"You might think it highly unlikely that these drugs and this equipment were brought there without his consent, but before you could convict the defendant you would have to be sure in the absence of the confessions that the only reasonable inference you could draw in respect of each count were inferences of guilt of the offences charged, that the only inferences were that the defendant himself was in possession of the drugs for the purpose of trafficking, or was a party to that possession for that purpose; and in relation to the third count that the only reasonable inference you could draw was that he manufactured the drugs or was party to their manufacture.

The defence would say that without the confessions there is simply insufficient to found a conviction on any of the counts. Nothing was found in the defendant's clothing or fingernails, or on the blinds and air-conditioning filters, suggesting that he had not been in contact with the drugs."

He then continued to outline the defence case.

9. Before he had related the evidence upon which he said the jury could rely, he had also told them that if they rejected the confessions and if the applicant's account that he was out of the flat on the day of the offence and knew nothing about the importation of drugs to the flat; and if they thought that was or could be true, and that he had not been found with drugs on his person on the return to the flat; if they thought that was or could be the truth, then he would be entitled to be acquitted.

10. It suffices to say that there was evidence here upon which the jury could convict in the absence of the confession statements. The judge outlined that evidence with great care. He directed the jury accurately and fairly upon the position and the inferences that they would have to draw and which were open to them on that evidence. There is, in our view, nothing in the first ground of appeal and we reject it.

11. Turning to the second ground of appeal, this relates to a passage in the summing-up at p.33E in which the judge reminded the jury of submissions made by the prosecution. He said:

"In any event, say the prosecution, here was this man with drugs in his pocket, right outside the building where his flat was, and in the flat was a large quantity of drugs and chemicals and equipment. In other words, here he was right outside the factory for drugs, in a flat occupied by him, and, even if you were to ignore the confession, they say that the only reasonable inference that you could draw is that he had those drugs for supply and that the drugs in his pocket came from upstairs for that reason."

Mr Hoosen submits that although the judge was simply reminding the jury of part of the submission by the prosecution, unless he then reminded them there and then that these were matters for their decision and not for his, this passage of the summing-up was highly prejudicial and may have been thought by the jury to take away their function of determining whether the drugs in the flat were being manufactured and were for trafficking. So that although this passage related to count 1 of the indictment, it was seriously prejudicial on the other two counts.

12. With the greatest respect, the judge was entitled to remind the jury of the prosecution case provided, of course, that regarded as a whole the directions did not deprive the jury of their function of deciding the facts and provided that the jury were made aware of what matters they had to find in order to find the applicant guilty of each of the three counts in the indictment. If the summing-up is regarded as a whole, the judge certainly fulfilled his duty in that respect. Again, this ground of appeal fails.

13. The final matter concerns the applicant's previous convictions. In the course of the trial, the judge ruled that the applicant's previous convictions could go before the jury. Primarily that ruling was made on the basis that the applicant had attacked the character of a prosecution witness and in those circumstances the jury were entitled to hear of the character of the person who was making those allegations. But it would appear that those previous convictions became relevant on to a further matter. That was that in his evidence, the applicant suggested that he had told the police that there was no reason for him to do anything against the law in his flat; according to the judge, there was in that an implication that he was a person averse to breaching the law or at least averse to doing so in his own home. The judge considered in his discretion that he would allow the previous convictions to be put before the jury in order that they should be able to balance that suggestion against his previous convictions. That the judge was entitled to do. The applicant allowed those convictions in on that basis. Of course the judge had to be fair and to remind the jury that they could not convict on the basis of his previous convictions. This the judge did immediately after the passage complained of when he said:

"However - and what I am about to say to you is very important - you must not assume that because he has previous convictions that he is guilty of these offences, or any of them, and it must also not be assumed that simply because he has previous convictions that he has not told you the truth about the police conduct or about his role in the whole matter concerning drugs in the flat."

Those were directions which, with the greatest respect to the submissions that have been made to the contrary, were impeccable. This ground also fails.

14. In consequence, we refuse the application for leave to appeal against conviction.

Representation:

Mr Abdul Aziz Hoosen (DLA) for Applicant

Mr John Reading (Crown Prosecutor) for Crown/Respondent