Lo Choi v. The Queen
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CACC000880/1979
----------------- Coram: Roberts, C.J., Leonard & Li, JJ. Date of Judgment: 21 December 1979 ----------------- JUDGMENT ----------------- Leonard, J. : 1. The appellant was charged jointly with CHAU Chung-wai with having in their possession for the purpose of unlawful trafficking therein on 3rd April 1979 at Block D6, 21st Floor, Li Ki Building, No. 55, Ngau Tau Kok Road, Kowloon a quantity of salts of esters of morphine. 2. The evidence of the prosecution was to the effect that the appellant's co-accused was the sub-tenant of a room at that address. On the 3rd of April 1979 these premises were raided by a party of police and at the time of the raid Chau and the appellant were occupying the room in question. Chau surrendered the keys of the room to the police. On a search of the premises, the drugs, wrapped in polythene packets contained in a yellow brown paper bag, weighing scales, empty polythene packets, two paging machines and a sealing machine were found. It was apparent that packing of the drugs had taken place there. 3. In the summary of evidence, which was apparently before the learned trial judge by way of opening by the prosecuting counsel, one of the witnesses, a P.C. 12324, is indicated as being prepared to say that on 4th April 1979 he obtained a cautioned statement from the appellant in which she admitted that the exhibits in question were found inside the room where she lived with CHAU Chung-wai and that she had keys to the said room. No such cautioned statement was put in evidence. 4. The following passage, however, appears in the cross-examination of the appellant :
It will be noted from this passage that the appellant was not cross-examined about the contents of the statement; only as to whether she had made one. 5. An accused person may not be cross-examined as to the contents of a statement to the police unless the statement is shown by the Crown to have been voluntary and to have been admitted in evidence. Such cross-examination would be to admit the statement in evidence "by the back door" (See TSANG Po-man v. R.(1)). 6. The trial judge does not refer in his judgment to this cross-examination. Mr. Duffy, Crown Counsel, handed to us from the police file a statement written in Chinese which purports to have been signed by the appellant. There was no translation of it available but the learned trial judge reads Chinese. We do not know if he read this document. The record suggests that he did not. Even so, bearing in mind the fact that he had before him the summary of evidence which refers to the damaging admission as to the appellant's possession of a key to the premises, he may well have been affected in his assessment of her credibility by her answer to the question as to whether she had made it as well as by its contents. This was an irregularity which necessitates a close scrutiny of the evidence and of the reasons for verdict. 7. The prosecution evidence consisted firstly of evidence of the police raid and secondly of evidence from the occupant of another room concerning the occupation of the room in question. 8. On entry to the flat, D6, 21st Floor, Li Ki Building, the police found that there were three rooms occupied by "three different families". In the room next to the toilet, in an unlocked drawer of a vanity table, the dangerous drugs were found together with empty polythene bags and scales; under the bed was found the sealing machine; on top of the table two paging machines. The co-accused, CHAU Chung-wai, surrendered the keys of the room to the police together with a rent receipt in the name of Wong. Both accused were in this room when the police entered, CHAU Chung-wai wearing a vest, a pair of long trousers and slippers, the appellant a night-gown and slippers. One of the police witnesses P.C. 17941 claimed to have arrested and cautioned the appellant who said she understood but said nothing further. P.C. 12324 did not give evidence. 9. The evidence of the occupant of the other room in the flat was to the effect that the occupant of the room in which the drugs were found was a "Mr. Wong", whom she identified as CHAU Chung-wai and whom she said she met but "very seldom". She was "not clear whether he lived there alone or with somebody there"; later she said "I have no idea anyone living with Mr. Wong apart from Mr. Wong but there was a girl living in Mr. Wong's room". She identified the girl as the appellant and then said :
10. In cross-examination a somewhat different picture emerged. It appeared that the room was in fact used as a place of assignation by various couples, thus
11. Both CHAU Chung-wai and the appellant gave evidence. The evidence of CHAU Chung-wai was that prior to the evening in question he did not know the appellant, that the room in question was rented by a Mr. WONG Wah who had arranged to supply him with a prostitute and that Mr. WONG Wah had introduced him to the appellant, who took him to the room so that they might have sexual intercourse for payment. He claimed never to have had the keys of the room, which he said was opened for him by a man whom the appellant addressed as "Ah Wu Chai". He denied having been there before and offered no explanation for the evidence of the occupant of the other room in the flat. 12. The appellant in her evidence claimed to be a prostitute living in Tsuen Wan and to be married and to have children and not to be married to CHAU Chung-wai. She had been to the room in question with customers before. It was looked after by Wu Chai, She claimed to have had sexual intercourse there with Chau and that he had been about to leave when the police came. Her evidence and that of the police were in conflict as to the time of the raid. 13. A witness was called for the defence who claimed to be the roomboy in question. His evidence was garbled and he clearly lied as to the manner in which CHAU Chung-wai and the appellant gained entrance to the room, claiming that the keys to it were kept by a Miss Wong and that WONG Wah was the occupant of the room which was used, he stated, as a brothel. When questioned by the Bench, he claimed that the appellant was always at the premises, that she stayed there all the time and that he "would not allow her to leave except to allow her to buy something". He later said that he did not know whether she lived there or not. His evidence, however, insofar as it can have had any value, favoured CHAU Chung-wai rather than the appellant. 14. On the evidence offered CHAU Chung-wai was clearly guilty. If the evidence of the police was accepted he had the keys of the room and was its tenant. His defence and that of the appellant supported one another but the case against the appellant was not nearly so strong as that against CHAU Chung-wai. Since they were charged jointly and were represented by the same solicitor and both told substantially the same story, there was danger that the trial judge might fail to consider the case against each separately. 15. The trial judge put the following issue to himself :
This passage suggests that he may have failed to distinguish adequately between the evidence against the appellant and CHAU Chung-wai. There is no doubt but that CHAU Chung-wai had possession of the keys to the room. There is some doubt as to the frequency with which the appellant resorted to it, although it would appear that she had been there before the night in question since she was known to the co-subtenant as Mrs. Wong. The judge comments on the evidence as follows :
This passage seems to me to indicate that he failed to consider the possibility, that while CHAU Chung-wai was undoubtedly guilty, the appellant was no more than a prostitute plying her trade on the premises, as she claimed. 16. This possible failure, together with the irregularity in her cross-examination compels us to the view that the conviction is unsafe and unsatisfactory and we give leave to appeal and quash the conviction. Representation: Appellant in person. Mr. Duffy Counsel for Crown/respondent. (1) Criminal Appeal No. 948 of 1979. |