HKSAR v. Bulalong Aurea P.

CACC000080/1999

CACC80/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 80 OF 1999

(ON APPEAL FROM HCCC 312 OF 1998)

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Coram: Hon. Nazareth, V.-P., Stuart-Moore, V.-P. and Keith, J.A.

Date of Hearing: 7 September 1999

Date of Judgment: 7 September 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

The charges

1. On 4th February 1999, following a trial in the Court of First Instance before Burrell J. and a jury, the Applicant was convicted on the second charge of an indictment which alleged trafficking in a crystalline solid containing 9.42 grammes of methamphetamine hydrochloride (ice), and was sentenced to 41/2 years' imprisonment. She was acquitted on the first charge of trafficking in a crystalline solid containing 46.25 grammes of ice. The Applicant now seeks leave to appeal against conviction on the ground that the verdicts were inconsistent. Mr. H.Y. Wong, who represents the Applicant, submitted that the facts relating to the two offences were so interwoven that no reasonable jury who had properly applied their minds to the case could have acquitted on the first charge and convicted on the second.

2. The point is a short one. Mr. Wong accepts, following what was said in R v Durante, [1972] 56 Cr. App. R 708, and followed in R v Cheng Man-to, [1987] 2 HKC 261, that in appellate proceedings it is for the applicant who seeks the quashing of a conviction on this ground to show not merely that the verdicts are inconsistent but that they were so inconsistent as to call for interference by the Court of Appeal.

Prosecution's Case

3. Turning to the facts of the case, these were straightforward, albeit the defence case was almost entirely at odds with the way in which the prosecution was presented. The prosecution's case was that the Applicant returned to her flat on 21st May 1998 at 11 p.m. and was intercepted by police as she entered. Four police officers testified as to the events thereafter. In essence, two of the officers went with the Applicant into her bedroom, namely a WPC and a woman inspector who was the most senior officer present. The Inspector asked the Applicant what the items were that were lying on a table beside the bed. There was no reply to her question. The WPC then searched through the handbag which the Applicant had been carrying when she came into the flat. The ice, which is the subject of the first charge, was found in seven packets in an inner compartment of the bag. The two officers then went out of the room. The WPC handed the handbag to the Exhibits' Officer together with the seven packets of ice which were said to have come from it. The Exhibits' Officer placed the seven packets back inside the bag. Following these events, which were recorded as taking place at 11.13 p.m., the Exhibits' Officer went into the bedroom to conduct a search in the Applicant's presence. The Applicant was with the WPC at this time, while the Inspector stood at the door with a sergeant outside the room behind her.

4. The judge accurately summarised the evidence to the jury as to the items which were then found by the Exhibits' Officer on the bedside table. At page 15M, he said to the jury:

"Firstly, a black plastic tray, inside which were two parcels, two sealed plastic bags with white granules in it, those are items P6 and P7, a further unsealed bag with white grains in it and 269 plastic bags, which were empty. Also on the table were recovered some pieces of tinfoil; some drinking straws, 13 of which were unused, one of which was used; a plastic drinking straw with a padlock on it; and a further plastic bag with some white grains in it. Then there were some scissors, a lighter, an electronic weighing machine, a glasses case, and inside the glasses case was a further plastic bag with suspected dangerous drugs inside. Also a rates reminder was seized."

5. These items, which were consistent with the kind of paraphernalia used in drug packaging, contained amongst them five bags with small amounts of ice inside, some only with traces, the subject of charge 2.

6. The judge also reminded the jury of the way in which the defence was put in cross-examination on this aspect of the case. At page 16M he said:

"It was specifically put to the Exhibits Officer, and again denied by him, that, in fact, the only drugs that were found in the defendant's bedroom were two very small packets of drugs which had been in a pocket of a jacket in her wardrobe. All the other drug-related items on the table, it was suggested to all the police witnesses, were gathered from other places, or must have been gathered from other places, and put on the table for the purposes of a photograph, which was to show the exhibits in the place where they were found. The prosecution evidence is that the handbag was originally on the defendant's shoulder when she entered the flat. The officer said the reason it appeared in photograph 7 was simply because he wanted the photographer to take a photo of all the scene's items, even though the handbag and the 'ice' from it had been separately and earlier photographed in photograph 4.

Mr. Shum (the defence counsel), on the other hand, invites you, members of the jury, to consider that the fact that the bag appears there plus the fact that there are some other small differences between the officer's sketch and the photograph suggests that the defendant's version of events may indeed be true and, of course, if you decide that her version even may be true and correct, then you will acquit her."

Defence Case

7. The defence case was confirmed by the Applicant when she gave evidence. She referred to the other rooms in the flat which were occupied by two sisters who were called "Vivian" and "Josefina". It was an admitted fact that Vivian had gone to the Philippines on 9th May 1998 and returned on 3rd June 1998, and that Josefina had gone to the Philippines on 15th May 1998 and returned on the day after these events at shortly after 3.30 p.m. The Applicant admitted that she had been a consumer of ice since 1993 and she estimated that 1 gramme would last her for about one month. It was her case that exhibits P6 and P7 represented the whole of her present supply which she kept in a jacket in her wardrobe. She denied possession of the remainder of the ice and alleged that the police had fabricated a case against her. Whilst she did not directly allege that the other quantities of ice might belong to someone else who had used the flat, the Applicant did say that she had seen Vivian's husband, who she knew as "Boy", smoking ice at some stage before she herself moved into the flat in March 1998.

Submissions

8. Mr. Wong submitted, in the light of this background, that there were two possibilities which may have caused the jury to acquit on count 1. He suggested that the jury may either have decided that they were not satisfied the Applicant had possession of the seven packets which the Inspector and the WPC alleged they had found in her handbag or alternatively that they were satisfied of the Applicant's possession of the ice but had doubts as to whether she was in possession for the purposes of trafficking. The latter alternative was unlikely, he suggested, given the quantity of ice involved. On this issue, the trial judge had left open for the jury's consideration a possible verdict of guilty in respect of simple possession, but they were not able to reach agreement as to this with the result that they were discharged from returning a verdict. Mr. Wong submitted that this could only mean that the jury had doubts as to whether the Applicant was in possession of the seven packets of ice. Resulting from this, he argued that the evidence of the Inspector and of the WPC was to be doubted, and doubts over their evidence should also have been reflected in the verdict on charge 2 given that it was the same two witnesses who had first gone into the bedroom of the Applicant and who testified that they had seen the drugs' paraphernalia on the bedside table before the Exhibits' Officer conducted his search.

9. Mr. Bruce, S.C., on behalf of the Respondent, answers these submissions by saying that the jury were entitled to give separate evaluation to each of the police witnesses. He rightly pointed out that the evidence about ice being found in the handbag was solely dependent upon the evidence of the Inspector and the WPC. By contrast, the drugs in charge 2 were physically found by the Exhibits' Officer even though it may be that the Inspector and the WPC had earlier seen items which, as it turned out, included the drugs on the bedside table. Mr. Bruce's submission was that the jury were effectively saying that they were sure of the evidence relating to charge 2, but were not sure of the evidence on charge 1. Even if, he suggested, on a general overview, the jury's verdicts can be seen as an example of imperfect logic, these verdicts did not reach a standard of irrationality that justifies appellate intervention.

Summing up

10. The judge gave the jury a number of legal directions as to how they should approach the evidence. In particular, on page 1 he told the jury:

"The facts of the case, however, are for you to decide. You are the sole judges of the facts of the case. It is for you to decide what evidence you reject, what evidence you accept, what evidence you are sure about, and what evidence you are not sure about."

11. Later the judge reminded the jury of an unsatisfactory aspect of the Inspector's evidence where this differed from her earlier witness statement. In her evidence, she testified that she had declared arrest on the Applicant for "trafficking" in drugs, whereas in her statement she had referred to the arrest as being for "possession". The Inspector put the difference in those two versions down to a "typing mistake". The judge then continued his summing up on page 5 as follows:

"The next matter is this, and I hope you agree it is no more than a statement of common sense. The fact that you disbelieved or do not accept a witness on one part of his or her evidence does not mean that you should reject or disbelieve him on the whole of his or her evidence. It is entirely a matter for you to decide the weight you attach to the evidence and whom you believe or disbelieve. It is therefore open to you to accept the whole of a witness' testimony or reject the whole of a witness' testimony, or accept some parts of it and reject other parts of it."

12. In two passages later on, the judge made it plain that the jury should consider charges 1 and 2 separately and at page 8 the judge said:

"If the prosecution has not made you sure on the whole of the evidence that she was in possession of the dangerous drugs in the handbag, then that is the end of Count 1, you would acquit her. And if you are not sure that she was in possession of the dangerous drugs on the table in her bedroom, that is the end of Count 2, you would acquit her."

13. He went on to say, in a very sensible and fair way, that if the jury felt that the Applicant was in possession only of exhibits P6 and P7, which it was admitted by her were drugs possessed by her, then the approach of the jury should be as follows:

".... I direct you to find her not guilty of everything. I give you that direction because even though she has admitted being in possession of a small quantity, if that was all you were sure about then in reality the prosecution would have failed to prove its version of events, and they would not be entitled to a conviction."

Conclusion

14. Having considered the arguments on each side, and bearing in mind the way in which the judge directed the jury, we accept that the verdict of not guilty on charge 1 was a surprising result bearing in mind the guilty verdict on charge 2. We are not, however, driven to conclude that even if it could be described as inconsistent, that this was a case which calls for our intervention. There was evidence from the Exhibits' Officer on which the jury could properly conclude that the Applicant was guilty. Whether or not this was the sole basis for the outcome of this trial will never be known. It would certainly not be unknown for a jury to produce what is often referred to as a "sympathy verdict" which cannot be justified in strict law but is widely recognized as a feature of the administration of justice where it is dispensed by juries. In the present case, for example, the jury was made aware that the Applicant had been an ice addict since 1993 and that she was bringing up her eight-year-old son in Hong Kong where she worked as a singer. In these circumstances, it would be hard not to feel some sympathy for her. These are not matters which it is for us to speculate about. What we are confident about is that it would not be right to interfere with the verdict in this case simply because it is difficult to reconcile the acquittal on charge 1 with the conviction on charge 2. This is a long way from saying that no reasonable jury could have achieved this result or that the verdict was unsafe.

15. Accordingly, the application in relation to conviction must be dismissed. An application in relation to sentence, made by the Applicant in person, was not pursued so that this is also dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. Vincent Wong, S.G.C. for D.P.P./Respondent

Mr. H.Y. Wong, instructed by Director of Legal Aid, for Applicant.