Liu Bo-tai v. The Queen
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Headnote Jury to be warned that before drawing. from facts proved, an inference as to the existence of some essential element of the offence, such inference "must be compelling - one (and tae only one) that no reasonable man could fail to draw from the facts proved" (per Diplock L.J. in Reg. v. Kwan Hing -bong 1979 H.K.L.R. 1)
BETWEEN
___________ Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A. Date: 27th January 1983 __________ JUDGMENT __________ McMullin, V.-P. : 1. The applicant was convicted in the High Court upon a single charge of possession of dangerous drugs for the purpose of unlawful trafficking. He received a sentence of 6 years' imprisonment. His application for leave to appeal against conviction was refused on 5th November 1982 and he now renews it before this court. 2. The Crown's case was that the applicant Liu Bo-tai was the tenant in occupation of a room - referred to at the trial as the balcony room - in a flat on the 8th floor of No. 86 Sai Yeung Choi Street in a building known as the Yuen Hing Buildings. A Mr. Li Kwok-ming, the owner of the flat, was called to prove the connexion of the applicant with that room. His evidence was not very satisfactory. In examination-in-chief, he told the court that the balcony room had been rented to a person called Iu Man whom he identified as the defendant. His evidence in chief was to the effect that the applicant was in continuous occupation of that room between 1978 and 1980. He said that he had seen him frequently heaving and returning to the room and that he used to sleep there. He said that the applicant had keys to the front door and to the balcony room 3. In cross-examination, however, a statement which he had made to the police was resorted to and he agreed that it was in substance true In that statement he had said that Iu Man seldom came to the premises. The room had been let to Iu Man by Mr. Li's wife and Iu Man did not do his cooking there. In answer to further questions he denied that there was an oil lady called Chin who had introduced the applicant to himself and his wife and he further denied that on that occasion the applicant had been in the company of another man. The suggestion, it appears, was that it was the other man who was called Iu Man. 4. The witness would not agree that he had appeared frightened when the police entered his premises and he denied having heard his wife say to the defendant when the latter went to the balcony room: ''Hey, that is not your room, why are you going in there?". 5. It is evident from the tenor of this cross-examination that the applicant was putting the question of his tenancy in issue. He did not give evidence and Mr. Huggins, who appears for the applicant on the appeal, does not contend that Mr. Li's evidence, whatever its deficiencies, ought not to be relied upon for the purpose of proving a tenancy between himself and the applicant. 6. The unsatisfactory character of Mr. Li's evidence was very clearly put before the jury by the trial Judge. He said: "One thing you may think is certain, members of the jury, and that is that if these allegations are true which the defendant has made through his Counsel, then this witness has deliberately lied that the defendant was the tenant, and had the keys, when he wasn't. It is not a question of mistake, you may feel, he has deliberately lied." 7. The strongest body of evidence, upon which the Crown relied, was that given by several police officers who had taken part in the fairly elaborate operation prior to the arrest of the applicant. 8. Sergeant Mak Yu Kwong was one of several officers who had mounted a surveillance operation of which the applicant was the object for about a month prior to the applicant's arrest on 9th September 1980. The Sergeant told the court that during that time he had on two occasions, once on 27th July and once on 28th July, seen the defendant enter the flat on the 8th floor of No. 86, using a key to let himself in via the iron grille outside the main door of the flat. 9. Senior Inspector Lam Chi-kit led a police party to the applicant's home premises in the New Territories on 9th September 1980. The applicant was present when these premises were searched by the police for several hours. Nothing incriminating was disclosed by that search and the applicant then agreed to accompany the Sub-Inspector to the Yuen Hing Building. On the way he was informed that the police had seen him entering that building and going up to the flat on the 8th floor on previous occasions. According to the Inspector, the applicant voluntarily produced a key from a plastic cable conduit a few yards distant from the iron grille. He opened the grille with this key and then led the Inspector and several of his subordinates to the balcony room where he produced another key from a window hedge with which he opened the bottom righthand drawer in a metal desk in that room and took from it a bag which he handed to the Inspector with the words "this is No. 4 power". The bag and its contents were seized and subsequently examined. It contained 392.28 grammes of a mixture containing salts of esters of morphine, the dangerous drugs described in the indictment. 10. Mr. Huggins has raised two points arising from what he conceives to have been misdirection or non-direction in a Summing-up which, I think he would concede, was in all other respects correct, succinct and helpful to the jury. 11. Dealing with the presumptions provided by s.47(1) of the Dangerous Drugs Ordinance the Judge said:
12. That was an impeccable direction and Counsel does not seek to impugn it. 13. Thereafter the Judge took the jury through the evidence which has already been described. He pointed out that another Crown witness, Supt. Leung Chi-bun, had also given unsatisfactory evidence inasmuch as, although he was present with the Senior Inspector and the other officers at the time when they entered the Luen Hing flat with the applicant, he could not remember how the keys were produced or whether it was one of the police officers or the applicant who had actually opened the desk and removed the packet of drugs from the drawer therein. Counsel makes no great point of this but he asks us to bear in mind this weakness in the police evidence. 14. The main objection is taken in respect of passages in the Summing-up which appear at page 20 thereof. At this point the judge returned to the question of presumptions and the evidence which as relevant in their regard. He said:
15. Again, Counsel accepts this as a perfectly proper direction. However, the Judge went on to say immediately thereafter:
16. Counsel maintains that, thus directed, the jury might have seen fit to disregard all Mr. Li's evidence, unsatisfactory as it was, save only for the fact that the applicant was the tenant of the balcony room; it would equally have been open to them to disbelieve all the police evidence as to the manner in which the drugs were discovered upon the 9th of September. Assuming that it was possible that they had done so, these hatter directions would, he says, have misled the jury into believing that even if they were only satisfied, on Mr. Li's evidence, that the applicant was the tenant of the balcony room, and if they were prepared to accept only that part of the police evidence which related to the surveillance during July which showed a connexion of some sort between the applicant and the flat in the Yuen Hing Building and the finding of the drugs in that flat, they might nevertheless conclude, because of the manner in which they had been directed, either that the proof of tenancy was on its own sufficient to raise the presumption, or else that that evidence plus the surveillance evidence would suffice. He relies on Wong Sze-yun v. R. [1963] H.K.L.R. 68 and Wong Mau Ting [1967] H.K.L.R. 530. These cases are good authority to the effect that proof of tenancy in relation to premises in which drugs are found is not of itself sufficient in the absence of any evidence to show custody or control exercised in relation to such premises for a conviction under the Dangerous Drugs Ordinance. 17. Next, Mr. Huggins says, that even were we to hold that these passages mould not have misled the jury into believing that they could convict if they were prepared only to accept the prosecution evidence to the extent that the applicant was proved to have been tenant of the balcony room, and to have had some perceived connexion with the premises, the verdict must nevertheless be unsafe. He points to an earlier passage in the Summing-up where the Judge was giving instructions to the jury on their right to draw inferences from facts which they found to be proved. What he then said was as follows:
18. Relying upon the Privy Council decision in Reg. v. Kwan Hing-bong and another [1979] H.K L.R. 1, Counsel says that this direction was clearly inadequate and did not go far enough. At p.5 of the report, Lord Diplock, giving the opinion of the Board, says:
19. Although the jury in the present case were told that they should note draw speculative inferences from facts, they were not to told that they should not draw any inference from the facts which they found unless it was the only reasonable inference that they could draw. 20. As to the first of these objections, Mr. Franklin for the Crown replies that the first and second paragraphs on p.20 should be read together. Read in that way, he says, it would have been plain to the jury that the vital matter for their consideration was not whether the applicant was the tenant of the balcony room, but whether the facts which they found proved to their satisfaction showed that he had some degree of custody or control of that room. He concedes that, read by itself, the second paragraph must be considered a misdirection. 21. As to the second point, Mr. Franklin does not seek to dispute the authority of Kwan Hing-bong, but he asks us to say that the many correct directions as to the burden of proof which, as is agreed, the Judge gave to the jury, taken with the direction in the passage cited above warning then not to speculate, must have been sufficient to prevent the jury from arriving at any conclusion other than one to which they were compelled by the facts. 22. Neither of the points made by Counsel for the Defence is without substance. Indeed, we note that the first point might be said to be somewhat fortified by what the Judge said immediately after the second of the two passages quoted:
23. In view of the unsatisfactory character of Mr. Li's evidence it is possible that the jury might have believed him only to the extent that he had said that the applicant was his tenant but that would necessarily involve their finding also that the applicant had, as Mr. Li said, possession of the key to the balcony room. Of itself that was sufficient to raise the presumption. 24. In any event, we think it would be speculative to an unrealistic degree to hold that the jury might, in the absence of any rebuttal from the defendant, have wholly rejected the account given by the police officers of the manner in which the dangerous drugs were discovered. Only one of the police fitness, Supt. Leung Chi-bun, could be said to have been unsatisfactory. But his evidence was not unsatisfactory in the same sense as was the evidence given by Mr. Li. Such as we can judge of it from the recital in the Summing-up, it appears to be the evidence of an honest man, unsure of his recollection of the events he was asked to describe and perfectly willing to admit that fact. 25. Furthermore we think Mr. Franklin was right to contend that the passage complained of at P.20 of the Summing-up must be read in the context of the directions as a whole. In the direction immediately preceding the words complained of, the judge made it clear that the jury would have to find that the applicant was tenant in custody and control of the room before any presumption could arise. Although it would have been preferable to say that once again when referring to the tenant in the impugned passage we think the jury must then have understood him in the same sense and cannot have convicted in the belief that mere proof of tenancy, without any evidence of occupancy or other indication of possession, custody or control of the balcony room, would be sufficient. Taking that to be so, the earlier direction given as to the jury's right to make inferences from facts found proved, although it does not go far enough, could not have disabled the jury's consideration of the issue of guilt or innocence. Once they were satisfied beyond reasonable doubt that the applicant had custody and control o?the balcony room where the drugs were found, the presumption in s.47 automatically arose against the applicant. Thereafter, there was no explanation given by the applicant and. there was nothing in the evidence as a whole which would have entitled the jury to say that the presumptions had been rebutted. The application must be refused. Representation: Adrian Huggins (Haldane, Midgley & Co.) for Appellant S.H. Franklin, for Respondent/Crown. |