R. v. Yip Chi Hung

CACC000119/1992

IN THE COURT OF APPEAL

1992, No. 119
(Criminal)

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Coram: Hon. Silke, Ag. C.J., Litton, J.A. and Ryan, J.

Date of hearing: 8 July 1993

Date of judgment: 9 July 1993

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J U D G M E N T

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Litton, J.A.:

1. The applicant Yip Chi Hung was convicted after trial by jury on two counts, the first count being that on 12 March 1991 at the junction of Tai Nam Street and Boundary Street, Mongkok, he had in his possession a dangerous drug, namely 27.14 grammes of a mixture containing 16.56 grammes of salts of esters of morphine for the purpose of unlawful trafficking. The second count was to the effect that on the same day inside the front portion of the 2nd floor, No. 171 Lai Chi Kok Road, Mongkok, he had in his possession a dangerous drug, namely 195.25 grammes of a mixture containing 120.84 grammes of salts of esters of morphine for the purpose of unlawful trafficking.

2. This application relates only to his conviction on the second count. The prosecution evidence was to this effect. At about 12.05 a.m. on 12 March 1991 the applicant was stopped by a police party at the junction of Tai Nam Street and Boundary Street in Mongkok and there was found in his trousers' pocket a red laisee packet which contained a polythene bag inside of which was the heroin, the subject of the first count. He was also carrying a bag which contained over $44,000 in cash and a portable telephone. He was brought back to the Mongkok police station and then, at about five minutes to two that morning, he was taken by a police party to his home which was the front cubicle on the 2/F, No. 171 Lai Chi Kok Road. Upon the cubicle being searched there was found the heroin hidden in two watch boxes which became the subject-matter of the second count.

3. The heroin in the cubicle was contained in eight polythene bags inside red laisee packets the design of which was identical to the design of the laisee packet found in his pocket earlier that morning. There was also found a total of 160 empty polythene bags and there were other empty laisee packets, all of which were identical to the bag and the laisee packet found in his pocket. There were also scales in the cubicle and inside one of the watch boxes was found the applicant's Chinese re-entry permit.

4. In essence, the applicant's case at trial was this. In relation to the heroin the subject of count 1, he had bought the heroin earlier that night at a 7-Eleven store, in the form in which the police found it. He was intending to bring that to Macau to share with his friends. Plainly, on any view, he was guilty of the offence as charged in count 1 and there is no appeal on that count.

5. As regards count 2, the applicant's case was that he was framed-up by the police; that is to say, that the eight packets of heroin, together with the laisee packets, the polythene bags, all of which constituted incriminating evidence, were all planted in the cubicle by the police. He also alleged that the police planted his re-entry permit in the watch box.

6. On behalf of this applicant, several grounds of appeal have been advanced. The first is to this effect: that the judge failed to direct the jury as to how to approach the applicant's previous convictions. The evidence of previous convictions was in fact led by the applicant himself at trial, presumably to show that he was the sort of person likely to have been framed by the police. We can see no error on the part of the judge in mentioning that fact - the fact that he had previous convictions, the evidence having been led by the applicant himself. The case of Prince [1990] Cr.L.R.49 referred to in argument is, in our view, of no relevance in this case.

7. The next three grounds of appeal we need to deal with can be classified as material irregularity in the course of the trial; namely, comments on the evidence made by the judge rendering the summing-up unfair and unbalanced; it is also argued that bias was shown towards the applicant. Reliance was placed by counsel on the case of R. v. Gilbey (unreported, 26 January 1990) and the dictum of Lloyd LJ to this effect:

"A judge is not entitled to comment in such a way as to make the summing-up as a whole unbalanced. It cannot be said too often or too strongly that a summing-up which is fundamentally unbalanced is not to be saved by the continued repetition of the phrase that it is a matter for the jury."

8. It is said by counsel that the judge showed bias against the accused by the hostile cross-examination he himself conducted. As to this, counsel focussed on what happened at the end of the applicant's evidence-in-chief when the judge asked a short series of questions which concentrated on two areas: (1) The accused was asked if he disputed the fact that the laisee packet exhibit P1 found in his trousers was identical in design to the packets found in the cubicle. He was asked in effect this: If his story of the police frame-up be true, how could he explain the acquisition by the police of such incriminating material in the short space of time between his arrest in the street at about 12.06 a.m. and the visit to the cubicle just before 2 a.m.? This plainly was a most relevant inquiry and if the judge had considered that was an omission on the part of the prosecutor, it was something which he plainly was entitled to ask the applicant about.

(2) The second matter was this. The judge asked the applicant to explain, if he could, the similarity between the purity of the mixture found in exhibit P1 and the purity of the cumulative total of the eight packets found in his cubicle. In exhibit P1 the purity of the mixture was about 61% and in the total of the eight packets it was about 62%.

9. Complaint is made by counsel because there was no expert evidence led at the trial concerning the purity of the heroin and whether normally one would find heroin of such purity being sold in the streets. But in directing the jury the judge said this:

"Mr. Sarony quite properly suggested that speculation about such matters would be dangerous since inter alia there is no evidence as to how No. 4 heroin was generally sold, perhaps it is always sold in a mixture which is between 61 and 62% or thereabouts or was sold in that purity at that time. If that is so, of course, there would be no significance in the fact that both lots of dangerous drugs were very similar as to purity."

10. Plainly the evidential weight which could be placed upon such comparison is very slight but with this warning given by the judge we cannot see that leaving the matter to the jury amounted to misdirection.

11. As to the complaint of comment on the evidence, there is no doubt that the judge did make strong and repeated comments. But it must be borne in mind that the applicant's defence was a bold one. Despite being apparently caught red-handed with substantial quantities of heroin in easily marketable form in his cubicle, together with the scales, it was his case that the drugs and some of the incriminating exhibits were planted by the police. Hence the judge asked the jury to consider on several occasions whether they thought that the testimony they had heard from the police witnesses was consistent with the suggestion of criminal conspiracy by the police, or was mere ineptitude on their part. There can be nothing objectionable in such questions being put by the judge as far as the accused was concerned. We are of the view that there is nothing in this ground of appeal.

12. We turn now to ground 5 which in essence is this: That the judge misdirected the jury concerning the evidential value of the police witnesses' prior statements and entries in their notebooks. This complaint arises from the fact that out of the party who went to search the applicant's premises, five officers gave evidence and the statement of one, PW6, was read under the provision of s.65B of The Criminal Procedure Ordinance. Among them there was an exhibits officer PW5, the arresting officer PW1, a woman inspector PW3 who was in charge of the party and a sergeant PW4. As a matter of common-sense one would not expect that each of the police officers would have necessarily noted in his or her notebook everything that occurred, such as where specific exhibits were found, whether the accused was asked any questions about the suspected drugs and so on. It is not surprising that leading counsel for the defence, armed with the previous statements of the witnesses, was able to demonstrate inconsistencies in their testimony.

13. The judge in his summing-up dealt generally with this matter in these terms:

"Members of the jury, a number of police officers were asked about previous statements which they have made in this case. I have to tell you two things about this matter. The first is that any statement which was put to a witness is not in any way part of the evidence of this trial, and you must put its contents out of your mind when you consider the evidence." Then he went on "The same thing applies to notebooks. What an officer writes in his notebook is not evidence of what happened, and you must ignore anything that was written in a notebook when you consider the evidence."

14. This is, we see it, nothing more than a reiteration in layman's terms of the common law rule that extra-judicial statements as such do not constitute evidence in a court of law. The judge in fact quite rightly went on to say in his summing-up that when the previous statements or entries in notebooks are found to be inconsistent with an officer's testimony then that goes to that witness's credibility. We can see nothing objectionable in the judge's approach.

15. Much criticism was levelled at PW4, sergeant Fung Kam-fai, because in his testimony he said that he noted in his notebook as soon as he could the fact that $44,000 odd was seized from the applicant and this recording did not take place until 8.15 a.m. But it turned out that at 7.30 a.m. he had already written in a statement form the fact that the money had been seized. Insofar as the sergeant said that the statement was made "by reference to his notebook" this was plainly wrong. In this regard the judge said this to the jury:

"Well members of the jury, you may think this is all very interesting, but you may think that the police officers are very busy, that they worked long and irregular hours, that this team had been working through the night, and that it was a year ago. But most importantly, the accused admitted that he was in possession of this money. The accused did not dispute that fact.

So what do you think is the significance of the sergeant having been entrapped in what appears to be an impossible situation? Is he lying? If he is, what is the point of it all? The money was found and here is the sergeant making entries and getting it wrong, what does it all amount to? That the sergeant was involved in a criminal conspiracy to pervert the course of justice or that he was tired and perhaps somewhat less efficient than you would wish him to be? In fact, you might think that all the police in this case, I do not wish to insult them, were hardly the best and the brightest, but is a matter entirely for you."

16. The applicant's case on the second count was that there was indeed a criminal conspiracy involving all the police officers to pervert the course of justice by planting drugs and incriminating material such as the laisee packets and the polythene bags on the applicant and putting the re-entry permit in the watch case. And here the judge was in effect reminding the jury of the essence of the applicant's case. It is said by counsel that the judge ought to have also reminded the jury that the applicant had alleged that the sergeant had at one stage offered to do a deal with the applicant if he paid the sergeant $100,000. This, says counsel, was the reason why the sergeant made no contemporaneous entry in his notebook of the seizure of the money. In fact, reading the summing-up, it can be seen that a few lines before the passage impugned the judge did remind the jury of that aspect of the applicant's case, namely, that there was allegedly a demand for $100,000 from the accused in return for letting him go.

17. The only aspect in the passage on p.17-18 just quoted which we find troubling is this. Because, by the skilful use of cross-examination, counsel was able to show up inadequacies in the way some of the officers recalled the events as they evolved, and there were some inconsistencies in their testimony, this led the judge to categorise the officers as being "strikingly unintelligent and inefficient", "not the best and the brightest" etc; criticisms impugning these officers in their professional capacities which, by the very nature of things, they had no opportunity to refute. These criticisms, roundly levelled, must have led the jury, after delivering their verdicts, to take the unusual course of adding a rider: that they were "very dismayed by the lack of recording-keeping by the police officers in this case". But was it the responsibility of every officer cross-examined by defence counsel to keep records? Was it apparent to the officers that their efficiency as police officers had become an issue rather than their credibility as witnesses? The judge was of course entitled to comment on their evidence, but in our view he went too far in judging their professional competence.

18. In our judgment there is no merit in ground 5.

19. The rest of the matters which, it is said, render the verdict on count 2 unsafe and unsatisfactory turn on the way the judge commented on various aspects of the evidence. It is unnecessary to go into them all. For instance, in relation to the woman inspector, the judge said this:

"Members of the jury, once again you saw and heard this female inspector, do you think she would have involved herself in the planting of evidence? If not, do you think that the sergeant could have done it literally under her nose without telling her what was going on?"

20. This is said by counsel to be "throwing doubt on the challenge to the integrity of the police officers". In our judgment, the judge was perfectly entitled to put the matter to the jury in that way. As is conceded by counsel, the judge had earlier given an impeccable direction to the jury as to the respective roles of judge and jury, and how they should approach the judge's own comments and opinions on the evidence.

21. In our judgment, there is nothing to suggest that the verdict on count 2 was unsafe or unsatisfactory. The applicant has had a fair trial. He sought to impugn the honesty of the police witnesses and totally failed and must accept the jury's verdict. The application must be dismissed.

Representation:

Neville Sarony, Q.C. and Miss M. Rattigan (D.L.A.) for Applicant

S.R. Bailey (Crown Prosecutor) for Crown/Respondent