Chong Ping-cheung v. The Queen
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CACC000871/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 871 OF 1972 -----------------
----------------- Coram: Full Court (Briggs, S.P.J., Huggins & McMullin, JJ.) Date of Judgment: 16 March 1973 ----------------- JUDGMENT ----------------- McMullin J. : 1. We dismissed this appeal on the 16th of March and now record our reasons for doing so. 2. The appellant, CHONG Ping-cheung, was charged in a single indictment, together with another man, with the offence of possession of dangerous drugs for the purpose of trafficking, contrary to the provisions of Section 7 of the Dangerous Drugs Ordinance. The co-accused, LEUNG Bun-kau, was found guilty of simple possession and was sentenced to imprisonment for two and a half years, but the appellant was found guilty of the offence as charged and received a sentence of six and a half years. He appealed against that conviction. We were asked in the course of the hearing to give him leave to appeal out of time in respect of the sentence but, no explanation having been put forward for the failure to appeal in time, we rejected that application. 3. The story for the Crown was that two police officers, DPC 6329 and DPC 6778 were on duty in Lockhart Road on the 31st of July this year. At about 11.45 in the morning of that day, they saw the appellant in Lockhart Road and observed him getting into his Volvo motor car outside a certain premises there. They followed him in another car and he came to No, 14, Percival Street where they saw him meet the co-accused, LEUNG Bun-kau, who got into the appellant's car and the two men drove off still followed by the two police officers and eventually the two accused stopped outside No. 474, Jaffe Road. The police officers drew up some distance to the rear of the car containing the suspects and parked along the kerb about 30 yards behind the other car and just short of an intersection between Jaffe Road and Percival Street. DPC 6778 remained in the car and DPC 6329 got out and crossed the road and stood upon the corner of the pavement where the two roads intersect keeping watch upon the occupants of the suspect car. Both the police officers described how they saw the appellant opening the boot of his motor car and indicating something inside. LEUNG Bun-kau (the first accused at the trial then took out a parcel from the boot and walked with it to another car, a Datsun, which was parked nearby, while the appellant drove off. DPC 6329 went up to the first accused and arrested him and took possession of the parcel which upon later examination was found to contain 7.83 kilogrammes of morphine hydrochloride. The first accused was taken to the police station and later in the day about 2.00 p.m. the appellant was arrested at his premises at No. 457, Lockhart Road and was found to be in possession of the keys to the Volvo motor car which had first excited the police officers' attention. 4. Both of the accused gave evidence in the case and neither denied being at the place in Jaffe Road where the incident described by the police officers had occurred. Both of these accounts were, however, considerably different from the incident as it had been described by the police officers. The first accused said that he was a pak-pai driver and that he had seen the appellant on the pavement near the Man Kee Store in Percival Street and that he had asked him if he wanted a car to hire and was told by the appellant that the appellant wished the first accused to take a parcel for him to North Point. A price was agreed and then, according to the first accused, he and the appellant went in the appellant's car to Jaffe Road where the appellant got out opened the boot and handed the parcel to him. He then drove across the intersection of Percival Street and Jaffe Road to where the first accused's car was parked, in Jaffe Road, and he, the first accused, got out with the parcel and put it in his own car and was thereupon arrested. 5. The appellant's account of the matter was that the first accused encountered him in Percival Street and that it was the first accused who was carrying a parcel and that he asked the appellant for a lift. The appellant agreed and together they went to where the appellant's car was parked in Percival Street and the first accused asked him to put the parcel in the boot which he did. The appellant then drove the car through Gloucester Road, Canal Road East, and back to Jaffe Road near the Percival Street junction where the first accused suddenly asked him to stop so that he could get out. The appellant said that he did stop and the first accused got out and he himself drove to his shop where he did some work and later went home and found the police waiting for him and was thereafter arrested by them. He denied both possession of the drugs and all knowledge of their nature; the first accused denied knowledge of the nature of the drugs although, as has been seen, possession of the parcel containing them was admitted by him. 6. It will be seen that on any one of these three versions of the facts all the relevant presumptions in Section 47 of the Dangerous Drugs Ordinance at once arise. The trial judge in summing-up carefully explained the nature and effect of these presumptions and he explained what each of the accused must do to dislodge the onus place upon him of showing that he was not knowingly in possession of dangerous drugs for the purpose of trafficking. He went on to tell them, however, that it was open to them upon the evidence as a whole, and notwithstanding the presumption as to trafficking created by Section 46, to find that the accused had been knowingly in possession of the dangerous drugs though not for the purpose of trafficking. This latter direction has an important hearing upon the one ground of appeal, out of the seven grounds proposed, which appears to this court to be of sufficient weight to merit some consideration. 7. Mr. Eddis, who appeared for the appellant, concedes that this ground taken at its best, can in any event, be no more than a partial answer to the charge. His complaint on this ground is that the verdicts of the jury on the first accused and on the appellant are inconsistent. At first sight there would seem to be some merit in that contention. On any available view of the facts it is difficult to account for the distinction made between the two accused by the verdict of the jury. If the jury were satisfied that the first accused had been knowingly in possession of the dangerous drugs then, in view of the clear direction given to them as to the presumption that arose from that fact, they must, in view of the quantity of the drugs, have convicted them of possession for the purpose of trafficking unless it was possible, upon anything that he had said in his own defence, to entertain a reasonable doubt that he may have had them in his possession for some other purpose. As Mr. Eddis pointed out, however, there was nothing in his evidence nor yet in either of the statements he was said to have made to the police, which could have afforded the jury any reason for supposing that the first accused was advancing any such contention. There is no doubt that the trial judge himself was surprised at this verdict and he went so far as to describe it as one which was : "as illogical a result as I have heard in a long time". In support of this ground of appeal, Mr. Eddis has sought to rely upon the decision in Reg. v. Durante(1). That was a case in which the Court of Appeal (Criminal Division) set aside a verdict as inconsistent on the basis that the jury, in dismissing one of two charges, did so upon a finding of fact which must necessarily have involved that the other charge was equally bad. Mr. Eddis concedes that the court in that case pitches very high the requirements as to what an appellant must show before any appeal court is justified in finding any verdict of the jury to be inconsistent. Their Lordships in Durante adopted the view expressed by Devlin J. in the unreported case of Reg. v. Stone(2) where he says as follows :
There is no doubt that that is the proper standard to apply and the facts in Durante do not seem to be of great assistance to the appellant in the present case. The defendant in that case had been charged with handling a stolen cheque in one count and in another with endeavouring to obtain money on a forged instrument (i.e. the same cheque). His defence was that he was too drunk at the material times to be able to form the criminal intent which was an essential ingredient of both offences. The jury convicted him of handling the stolen cheque but acquitted him of endeavouring to obtain money on a forged instrument. The Court of Appeal described the issue of drunkenness as being at the heart of the case. The judge who tried the case had told the jury, however, that the two charges did not necessarily stand together. In view of the very short time which had elapsed, upon the evidence put before the court, between the commission of the two offences alleged, the Court of Appeal took the view that while in many cases, it would be realistic to direct a jury in that manner concerning two separate charges, in the circumstances of the case before them it was wholly unrealistic to have done so. Accordingly they set aside the conviction on the grounds that it was neither safe nor satisfactory. In the present case, however, there is a clear indication that this verdict was not the result of more capriciousness on the part of the jury. In dealing with the meaning of the word "trafficking" the learned trial judge said the following :
Assuming that the jury found, as must indeed be the case, that the appellant had handed over the parcel to the first accused who was almost immediately thereafter arrested by the police, it may well be that the jury formed the opinion, on what had been said to them by the trial judge, that the act of the second accused in transferring the package to the first accused was sufficient to denote him in truth a trafficker whereas the first accused, who had not yet shown any intention of transferring the package to anyone else or transporting it around the Colony, had not yet embarked upon any course of conduct which they were prepared to regard as amounting to trafficking. That was of course a wrong conclusion in law but it had not been put to them that he who transfers and he who receives such a package might equally be regarded as a trafficker. In view of the fact that it had been left open to them to say that the accused persons had been in possession although not in possession for the purpose of trafficking this interpretation of the evidence put before them was obviously one that remained open at least as regards the first accused. 8. In the upshot the first accused has been very lucky to receive a punishment which may have been based upon a view of the facts which, in law, ought to have attracted the full penalty. It cannot be said however that what the jury did was so inherently unreasonable or contradictory as to warrant the court's interference in favour of the appellant. Clearly, the jury thought that the appellant had been an active trafficker in that he had initiated the transfer of the package and in this they were not wrong; that they may have been wrong in their conclusion as to the effect in law of the other man's activity at that moment is not something that the appellant can rely upon in reduction of his guilt. 9. For completeness one other ground of appeal ought to be mentioned. Mr. Eddis (under ground three of his grounds of appeal) sought to persuade us that the learned judge had confused the jury in warning them of the necessity to look for corroboration of the evidence given by each of the accused in so far as it implicated the other on the grounds that they were accomplices. The point he was making, although it seems not quite consonant with the ground as framed, was that, although the warning as to accomplices was not open to objection, the judge should have gone on to warn the jury that, if they were regarding the evidence of either of the accused in the light that the other was not an accomplice there was a degree of danger inherent in self-serving evidence given by one accused against another albeit the witness was himself in fact innocent of the charge. There would have been no objection to the trial judge having put this alternative state of facts to the jury coupled with some such warning, but it certainly was not necessary for him to do so. As Mr. Lucas, for the Crown, rightly pointed out, the rule that the jury should be warned that they should look for corroboration of the evidence even of an accomplice is a rule which applies only when such a witness has been called for the prosecution. In this connection he referred us to the decision of this court in the case of LUNG Yee-hing v. Reg.(3) where, at page 84, the Acting Chief Justice quoted the decision of the Court of Criminal Appeal in Reg. v. Barnes & Richards(4) where at page 166 - 167 it is said :
While stating that that passage should not be regarded as an authority for the proposition that it is never necessary or proper to give a warning in the case of a co-defendant, the court, nevertheless, concluded that in the case of a co-defendant there is no inflexible rule in the matter and that if the direction actually given was adequate in the circumstances the verdict should not be interfered with. That appears to be the correct position. It is entirely left to the discretion of the judge, even in the case where a co-defendant is an accomplice, to give such a warning although no doubt he would normally do so. It must be evident that in the case of persons who are not regarded as accomplices but who are co-accused the exercise of the judge's discretion is that much the less susceptible of criticism. In any event the trial judge when dealing with the question of accomplices did go on to give a warning which perfectly suited the necessities of the case viewed simply as one in which two co-accused had given evidence when he said in explaining why the jury should treat that evidence with caution :
10. None of the other grounds of appeal advanced requires comment and for these reasons we dismissed the appeal. Representation: (1) (1972) 1 W.L.R. 1612. (2) (unreported) December 13, 1954. (3) 38 H.K.L.R. 1954 74 (4) 27 C.A.R. 154 |