Wong Yee Tai and Another v. The Queen
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CACC000839/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 839 of 1973 -----------------
----------------- Coram: Huggins, McMullin & Leonard, JJ. Date of Judgment: 15th March 1974. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellants are two of three women jointly indicted for possession of dangerous drugs for the purpose of unlawful trafficking. The first Defendant pleaded Guilty and was sentenced to six years' imprisonment. These two Appellants (to whom I shall refer as "the second Defendant" and "the third Defendant") were found Guilty by the jury and were sentenced to seven years' imprisonment. They seek leave to appeal against both convictions and sentences. 2. The facts are relatively simple. The police were keeping surveillance on a flat in Kowloon. At 2.25 p.m. they saw the first and second Defendants coming along the street, the first Defendant carrying a green plastic carrier bag and the second Defendant carrying in her right hand a large grey polythene bag and under her arm a similar carrier bag. From time to time they turned round as if to see whether they were being followed. Eventually they entered the building in which was situated the flat in question. This flat was on the 13th floor. One of the police officers who had been keeping watch remained on watch while the other went for reinforcements. Eventually a police party went up to the flat and knocked on the door. The door was opened by an elderly woman who later turned out to be the mother of the third Defendant. The police disclosed their identity and entered. The evidence was that the second Defendant was found sitting on a sofa while the first and third Defendants were standing in the sitting-room. When the police announced that they had come to search for drugs the first Defendant led them to a toilet where, on a shelf extending more than halfway across the room above the cistern, they found first one of the bags similar to those the second Defendant had been seen carrying. The first Defendant then told the police there was a second bag and upon looking further they found and took down a second bag similar to the first. When they returned to the sitting-room the first Defendant pointed to a green carrier bag, like the one the police had seen her carrying in the street, which was beside the second Defendant. The first Defendant picked up this bag and handed it to the police, saying that they could look for drugs there. The first Defendant said that all the parcels belonged to her and that they had nothing to do with the inmates of the premises. The contents of the carrier bags were subsequently analysed by the Government Chemist and were found to contain the drugs listed in the indictment. 3. Part of the evidence against the Appellants consisted of statements which they were alleged to have made immediately after their arrest in the flat. The first ground of appeal argued on behalf of the first Appellant (the second Defendant) related to her statement. The statements of both Appellants were said to have been taken when the two senior officers of the raiding party were present, namely Superintendent Cheng and Inspector Wong. Inspector Wong gave evidence that he charged and cautioned the second Defendant, but thereafter his evidence seemed a little confused. He said that after he had read the charge and caution the second Defendant signed his notebook with a cross. He said:
After further questioning he indicated that what Superintendent Cheng took down was something to the effect "could not write". According to the Inspector the second Defendant said something in response to his caution and his evidence appeared to indicate that everything she said was written down in the Inspector's notebook by the Superintendent. The notebook was produced and the witness then indicated that the whole of the charge and caution and of the statement alleged to have been made by the second Defendant was in his own handwriting. It seems to us beyond a peradventure of a doubt that what the Inspector was trying to say was what is now admitted on all sides to be the truth, namely that the Inspector wrote the charge and the caution, that the Inspector wrote the second Defendant's answer to the charge and that subsequently the Superintendent added a postscript to the effect that the second Defendant had indicated she was unable to write. It is equally clear that the Inspector for some reason or another had difficulty in expressing himself and that everybody in the court was very much confused by his answers. Because counsel for the Defendants understood the Inspector to be saying that the second Defendant's statement had been recorded not by himself but by the Superintendent he was anxious that the notebook should not be produced by the Inspector otherwise than for the purpose of identification. When the Superintendent went into the witness-box he, not unnaturally in view of the facts as we now understand them, denied that he had recorded the second Defendant's statement and said that it had been recorded by the Inspector. Counsel for the Crown, again not unnaturally, had qualms about asking for the admission in evidence of a written record of a statement made by a person whose identity was apparently hotly disputed by the only two persons who could have made it and he therefore decided to proceed without the writing. However, when he asked the Superintendent to state his recollection of what he had heard the second Defendant say, counsel for the Defendants objected. After some considerable argument the learned judge took time for consideration of the problem and finally decided, with some hesitation, that it was proper for him to allow oral evidence to be led of the statement. It is submitted before us that the learned judge was wrong to allow oral evidence "when the Crown was precluded, by the unsatisfactory nature of the evidence, from producing a written record of the same". With respect we do not think it is correct to say that the Crown was precluded from producing the written record: there was a voluntary decision of counsel for the Crown. Although the contrary has been asserted before us we are satisfied that the prosecution did prove affirmatively that the statement was voluntary: Superintendent Cheng was expressly asked whether he or Inspector Wong did or said anything to induce the second Defendant to make a statement and he replied that they did not. There was evidence that the second Defendant had been duly cautioned and no challenge to the admissibility on the ground of inducement had been made. In our view the learned judge was fully justified in deciding, as he did, that on the evidence the statement was voluntary. We think that the argument that oral evidence was inadmissible by virtue of what is known as "the best evidence rule" is misconceived. This was not a case where the Crown was seeking to lead oral evidence of a written document but a case where they were seeking to call oral evidence of an oral statement which had been recorded in writing. It is said that the learned judge, in the course of the argument, expressed doubts about the manner in which the statement was recorded and that on the principle laid down in LI Kar-wah v. Reg. 1970 H.K.L.R. 572 his finding that the statement was voluntary was open to attack. However, that was a case where the doubts expressed by the learned judge were doubts as to the manner in which the statement had been obtained and not the manner in which the statement had been recorded, and this case is clearly distinguishable. Then it is said that even if this oral evidence of the statement was admissible the prejudicial effect of such evidence outweighed its probative value and the learned judge should have excluded it in the exercise of his discretion. As we understand it the alleged prejudice arose from the fact that the two officers had given conflicting evidence as to who had recorded the statement and was not inherent in the evidence to which objection was taken: see Reg. v. LI Ming-kwan 1973 H.K.L.R. 275, 287. In our view there was no ground for excluding this evidence. 4. It has been contended that the learned judge failed adequately to put the defence of the Appellants to the jury in that he omitted to refer to the evidence regarding the circumstances in which the drugs were recovered. Counsel submits that it was incumbent on the judge on the charge in the present case to emphasise that it was the first Defendant who led the police to the drugs and that it was not enough merely to tell the jury that the defence of the second and third Defendants was absence of knowledge of the drugs. However, counsel said that he would not have objected had the learned judge not referred to discrepancies in the evidence of these Defendants, so that his real complaint appears not to be that the defence was not adequately put but that the summing-up was weighted unfairly against the defence. As the learned judge pointed out early in his charge to the jury the evidence had been very short and would still be fresh in their minds. We cannot say that the summing-up was weighted unfairly against the defence. 5. Counsel did not pursue the grounds of appeal complaining of an inadequate definition of possession, but in relation to the contention that the verdict against the third Defendant was unsafe or unsatisfactory the court questioned whether there was not a possibility that the jury were misled by a passage in the summing-up where the judge was dealing with the presumptions of possession and knowledge. He listed the three presumptions which might arise to support the case against the second Defendant and then continued:
It seemed that the jury might have been led into two errors here. First, the use of the phrase "in addition to the three presumptions already mentioned" might indicate to them that all the first three presumptions might arise against the third Defendant. That was not so. The first of those presumptions was the presumption of possession where it was proved that a defendant had in his possession or custody or under his control a receptacle containing a dangerous drug. There was no evidence which would have justified the jury in finding that the third Defendant was in possession of the carrier bags, but they may have thought the judge was directing them that such a finding was open to them. Secondly, the statement that the presumption of possession of the drugs which might arise from proof of possession, custody or control of the flat was relevant because the third Defendant was "an occupant" of the flat might have led them to believe that that evidence of mere occupation was evidence which would entitle them to make a finding of possession, custody or control. This was a case which required a very clear direction as to the evidence upon which a finding of possession, custody or control could be founded and unfortunately such a direction was lacking. Counsel for the Crown submits that even if there is a danger that the jury may have been misled in these two ways there is still no reason to doubt the correctness of the verdict because on the evidence no reasonable jury could have found otherwise than that the third Defendant was at least in control of the flat: on her own evidence she lived there with her husband, her mother sometimes came to stay with them and the only other adult persons in the flat when the police arrived (the first and second Defendants) were even more temporary visitors. It was stated by counsel when addressing the court in mitigation of sentence that the husband was the registered owner of the flat and although there was no evidence of that we think it more probable that he was the owner than that the third Defendant was the owner. Mr. Wong replies that even the third Defendant may not have been really in control of the flat because the first and second Defendants were her husband's friends and not hers and she might have felt that she was not free to exclude them: it was for the jury to decide whether or not she was in control. It is not immaterial to this argument that the third Defendant is a handicapped person who might be particularly subject to the will of her husband. Whether or not that argument carries the assumption of male domination too far, there still remains the possibility that the jury were led to believe there was evidence on which they might find that the carrier bags were in the possession of the third Defendant and that they based their finding of possession of the drugs upon such a finding. It seems to us that this was a case where real evidence to connect the third Defendant with the drugs was so entirely absent that an especially careful direction was needed as to the elements of possession and the circumstances in which some of those elements could be presumed to exist. While it may well be that there was no actual misdirection we think there was sufficient room for misunderstanding to compel us to say that we have a lurking doubt whether the third Defendant was rightly convicted. 6. The case against the second Defendant was very much stronger and counsel has not sought to argue that the verdict against her was unsafe or unsatisfactory within the meaning of s.83(1)(a) of the Criminal Procedure Ordinance. 7. The result is that the application of the third Defendant must be granted and, treating this as the hearing of the appeal, we allow the appeal and quash her conviction. The application of the second Defendant for leave to appeal against conviction is dismissed. 8. It is urged that a sentence of seven years' imprisonment upon the second Defendant was excessive. Counsel submits that, having regard to the quantity of drugs and to the fact that there is no evidence that the second Defendant obtained any profit from the offence, this was a case where a sentence of less than the usual length ought to have been imposed. Moreover, while she was merely assisting the first Defendant, the first Defendant received a sentence of only six years' imprisonment. The Appellant is 55 years of age and her only previous conviction, for keeping an opium divan, was ten years ago. The first Defendant also had a previous drugs conviction but she pleaded guilty and was very co-operative with the police. The learned judge said that the second Defendant and the first Defendant "must share equal responsibility in this case" and that seems to us to imply that he did not accept their assertion that the first Defendant was really the ring-leader. He may well have been influenced by the fact that the second Defendant was carrying two parcels of drugs while the first Defendant was carrying only one. In any event we find no ground upon which we could properly interfere with this sentence and the application of the second Defendant for leave to appeal against sentence is dismissed. 15th March 1974. Representation: |