The Queen v. Lam Kok-chiu
|
CACC000122/1983
BETWEEN
Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A. Date: 11th May, 1983. ___________ JUDGMENT ___________ McMullin, V.-P : 1. The defendant was convicted in the District Court upon a charge of possession of a quantity of heroin for the purpose of unlawful trafficking. He was tried together with a girl called Fu Kwan-tai - referred to in the trial as his girl-friend - who was acquitted at the conclusion of the case. 2. The charge arose out of a raid by a party of police under the leadership of Inspector Fung on the 7th August 1982. It appears that the police were, in the early hours of that day, given information - by agreement between the parties detailed in the course of the evidence - which led them later in the small hours of the 7th to the 19th floor of Victoria Centre in Causeway Bay where they proposed to enter Flat B. The lights were on in the flat when they arrived and the door was locked. Eventually they had to break in. There was nobody in the flat when they broke in and shortly before 5 a.m., the two defendants - the present applicant and his girl friend were intercepted by police officers posted at the ground floor of the building and were taken up to the flat where a number of police officers were engaged in a search. This search had revealed the following things. The dangerous drugs, the subject of the charge, were found to be contained in two plastic bags within a larger plastic bag placed on top of some chinaware in the top lefthand compartment of a wall cabinet in the sitting room. In the bottom of that cabinet was found a food mixer which upon later examination showed traces of heroin. 3. There were two bedrooms. They were referred to in the evidence as Room A and Room B. Room B was the room which was occupied by the applicant and his girl-friend and there were clothes there belonging to both of them and also some documents belonging to the girl and a telephone rental receipt bearing his signature. 4. The police entered Room A and discovered upon a chest of drawers therein a red colander which upon later examination showed traces of heroin. There was also a cardboard shoe-box with similar traces. 5. Another item of some importance was a paper Carton containing a large bottle of hydrochloric acid. This was found under the table just beside the entrance door to the flat. When found it was tied with strings in such a way as to conceal the contents of the carton. 6. The applicant and his girl friend were informed of what had been discovered but so far as we know nothing was said by either of them at that time. 7. It is common ground that the defendant was the tenant of that flat. He had acquired the tenancy in November 1981. His girl friend had moved into the premises, as at least a part-time occupant with him, in February 1982. The applicant had all the relevant keys of ingress to the premises. 8. On these facts it was clear that the relevant presumptions under the Dangerous Drugs Ordinance arose against him. The case of the girl was somewhat different and the explanation that she gave, involving as it did the allegation that she was not a constant resident in the place led the Judge, in the end, to conclude in her favour that it might be that she was unaware of the objects which had been found. 9. The applicant gave evidence. He told the court that he had sublet Room A of the premises to two persons, one called William Hung and the other was known as Au Kin-kwong. These were persons whom he had not previously known - they were strangers to him and he permitted them to take this sub-tenancy from him because, it being the month of January before his girl friend had moved in, he found the premises too large for him and was . willing that they should come in as his tenants. The girl moved in with him In February. 10. He said that he was a Kung Fu instructor employed in the Y. M. C. A. From this he derived an income which fluctuated between $6,000 - $7,000 a month. He was also employed by a decoration company which paid him about $9,000 per month. His girl friend was described as a dance hostess and her testimony was that she earned something in the region of about $10,000 per month. In other words there was, for practical purposes, a combined income of a considerable sum. He said that he was unaware of all the objects which were found in the premises. He had come back on the night in question, having spent the earlier part of the night in the company of his girl friend. They had had a meal and had gone dancing, and when they returned, to his surprise, they were intercepted by the police. 11. The trial Judge correctly directed himself as to the burden which was placed upon the defendant arising from the presumptions under Dangerous Drugs Ordinance. 12. On appeal to this court, Mr. O'Reilly Mayne, who appears for the applicant, has made a number of complaints, in extensive grounds of appeal, which may however be summarized by saying firstly that the Judge's approach to the case was wrong from the start inasmuch as he had it subconsciously at the back of his mind that what the Crown had been wishful to prove was a case of manufacturing, but that the evidence disclosed upon police investigation was not quite sufficient for that purpose. 13. Secondly, it is complained that the Judge expressed disbelief concerning the evidence of the applicant's income for reasons which it is said were inadequate. And thirdly - and eventually most importantly- he expressed disbelief of the existence of any such tenancy as was alleged by the applicant - again upon grounds which it is said were insufficient. 14. So far as the first of these points is concerned, the Judge did refer to the fact that the evidence had been insufficient to institute a charge of manufacturing. By itself, that would not be a matter of great substance, though it may possibly indicate some sub-conscious bias in the Judge's mind in relation to the strength of the evidence produced before him. 15. The substantial grounds are the other two and of those, the second is the most substantial. In dealing with the evidence given by the applicant in relation to the sources of his income, the Judge was aware from documentary evidence produced before him, including bank statements, that there had been a lively movement of cash both into and out of the applicant's account before and at the time of the police raid. The Judge said that he found the applicant's explanation of these resources difficult to believe. It would seem that the unspoken inference behind that observation was that this comparative affluence enjoyed by the applicant could have been the fruit of trafficking in drugs rather than from legitimate sources. Mr. Mayne says that the explanation given for these resources was on the face of it a reasonable one and he adds that in any event it could have been checked upon by the police even late in the case since, as it transpired, there was an adjournment of several days after the defendant had given evidence and which would have enabled the police to check with the Y. M. C. A. and the decoration company. 16. As against that, it should be observed that, although the Judge did refer to this evidence as difficult to believe, he also added that the prosecution had not challenged it. That was not strictly correct since questions had been put by counsel for the Crown to the applicant, the purpose of which was to probe his sources of income. But it was unchallenged in the sense that no evidence was led by the Crown to rebut that evidence. In saying that it was not challenged by the Crown it might therefore be said that the initial disbelief expresed by the judge in the course of his reasons was tempered or diluted to the extent that he himself believed it had not been challenged. 17. Secondly, it should be observed, in relation to that, that the onus was upon the defendant to produce to the court a story capable of belief. If in the course of giving that evidence he put forward certain facts which it was within his power to prove, not merely as a matter of probability but conclusively, it would seem to be only right that he should be looked to do so. The defendant after his arrest in August was on bail throughout the whole period up to the time of trial. It would have been within his power to substantiate his story by enlisting the aid of both of his employers. 18. The objection in effect really amounts to a failure on the part of the Crown to rebut the applicant's attempted rebuttal. We do not know how much information was in the possession of the police up to the time the defendant gave his evidence and it seems somewhat unreasonable to blame the prosecution for not doing at the last moment - what the defendant could very readily have done at the outset. 19. Again, by itself, this objection to the Judge's reasons would certainly not be sufficient to cause this court to interfere though it is a point not wholly without substance. 20. The second point upon which the Judge relied in his rejection of the defendant's story is of considerably more significance. Indeed it might be said that it is crucial not only to the soundness of the defendant's own story but to the soundness of the reasons given by the Judge for rejecting it. This relates to the question of the alleged tenancy. The caretaker to the premises, who was the third prosecution witness, gave evidence which on the face of it was capable of supporting the idea that there was a tenancy. He agreed that there were two men who frequently came to the premises, one was a large stout man and the other a thin man who often came to the premises though he was unable definitely to say whether they were there as tenants or merely as visitors< If they were there as visitors, then it is clear from his evidence that they were frequent visitors and that they had the means to get into the flat which means were not supplied to them by the caretaker, although he had had occasion to open the grille at the entrance to the building itself to admit them. 21. The point about this evidence is that it supported two quite distinct possibilities in relation to these two men whose existence the Grown did not dispute. The first possibility was that raised by the defendant himself, viz. that they were there on the premises as his tenants. These tenant, however, were strangers to him, people whom he had never seen before and upon whose movements, behaviour and occupation he did not check in any way. He himself, he said, was very frequently out about his own business during the-day and he would leave in the early morning. He did not often see what these men were doing but he would see them occasionally watching television. They had the run of the common parts of the premises and they sometimes used the kitchen for cooking purposes. 22. On that story, if it were correct, the possibility that things bestowed about the premises by his tenants, and particularly the items in Room A which was their own, would have gone unobserved was distinctly higher than the possibility that was raised upon the only alternative available upon the evidence. That alternative was of course not the story put forward by the defence but it was a story which, when he had rejected the tenant's story, the Judge was compelled to consider. The possibility, that is to say, that these two men were visitors only. If they were visitors, then it is clear that they must have been visitors on very familiar terms with the defendant. They were coming and going at odd and unusual hours as testified by the caretaker. They had free access to the premises at any time and they could come and go as they wished. If that were so then it is clear that they were not only visitors but familiar acquaintances and probably close friends. On that story therefore it would be very much less likely that anything brought to the premises by them and bestowed in the way in which these objects were bestowed when discovered by the police would have passed unnoticed by the tenant himself. 23. Mr. Pritchard for the Crown, referring to these two distinct possibilities, asked us to say that in fact there really is, for practical purposes, very little difference between the two situations. He asked this court to take the robust view that in either case it would be incredible that a large quantity of very valuable dangerous drugs would be left lying about virtually unconcealed where anybody at all, including possibly the 1st and the 2nd defendants themselves, might become aware of them and either become suspicious and report to the authorities or else, perhaps, take it into their hands to appropriate part of these valuable items themselves. 24. It may be that such a robust approach would have been a proper one in the circumstances of the case, but that is not the approach taken by the Judge. We must scan the reasons that he gave and that is not among them.] We are not entitled to say that he must have convicted for other reasons, assuming that he went wrong in the reasons which he gave. 25. What we have to decide in the end is whether by his manner of dealing with the evidence, the Judge deprived the applicant of a reasonable opportunity of an acquittal which, had his approach been different, the Judge might have found to be open to the applicant. 26. Now there is some reason to suppose, from what the Judge said in the course of his reasons for conviction, that, had he upheld the tenancy contention, he might possibly have acquitted because in dealing with the question of Hung & Au being possibly visitors and friends, he said:
27. Having said that, the Judge went on to find the clinching evidence against the applicant in the open display of the red colander in Room A and the shoe-box found in the same room; and, secondly, in the discovery of the bottle of hydrochloric acid in its carton and the food-mixer in the cupboard. This mixer was an item which the defendant himself admitted he knew about and he said that he had regarded it as somewhat strange that it should be kept in that cupboard. 28. Those were all items which told strongly against innocence on what I might call the visitor hypothesis. Clearly had the Judge accepted the tenancy story, that might well have eliminated at least the colander and the shoe box from the items of incriminating and clinching evidence. Now if we add to that possibility the fact that the hydrochloric acid was under a table and in a carton tied up with string, so that the Judge was not quite justified in saying, as he did, that the bottle must have been plainly visible to anyone leaving the flat, and if we further add the consideration, that the oddness of visitors bringing into or keeping a mixer on the premises for some unexplained purpose, although known to the host, is considerably greater than would be the oddness of such behaviour in the case of a stranger with tenancy rights and the free range of the common parts of the premises, then it must be said that the question which must have weighed most in the Judge's mind in considering the truth or falsehood of the defendant's story was whether in fact these men were friends and visitors in truth or merely tenants, over whose behaviour he had no interest and no control. 29. Thus the Judge's reasons for rejecting the tenancy story become the vital issue. He rejected the allegation that William Hung and Au Kin-kwong were tenants for several reasons. Firstly, he suggested that a person of the obvious affluence of this applicant had no need of sub-tenants in any event. Secondly he said it would be unlikely that the applicant would wish them to continue as his sub-tenants after his girl-friend had moved into the premises. The Judge observed that she was a remarkably attractive young woman so that it might be that the defendant would be hesitant to leave her during the day in premises which were frequented by two strangers while he himself was absent. 30. Lastly, and most importantly, he came to the conclusion that a book of rent receipts and counterfoils produced at a late stage in the case were fabrications. 31. Now so far as the first two reasons are concerned, it may be that there is some substance to the idea that the defendant might be hesitant to leave the girl in the flat with strangers but as against that it must be remembered that she' too had irregular hours. Moreover her business was that of dance hostess and no doubt she would be sufficiently sophisticated to deal with awkward situations. 32. Again as to the wealth of the defendant, the point is not of great substance since his explanation was that the apartment, before his girl friend moved in, was too big for him and he was paying $4,500 rent. Even to a man of comparatively affluent means the saving of $1500 a month would have been a matter of some importance. 33. It is however with regard to the last of the circumstances relied upon by the Judge that we find the gravest misgiving. The book of rent receipts did indeed appear very Late on in the proceedings. There are some six of these receipts made but to the two alleged sub-tenants for the months up to August. 34. This rent receipt book gave rise to evidence called by . way of rebuttal by the Crown. The matter arose in this way. The book had never been referred to in the course of the earlier part of the trial when Mr. Fung was giving evidence. But when the applicant was giving evidence, he said that there was such a book in existence and he said that it was in a certain cocktail cabinet which was one of the items of furniture said to have been searched by the police. The allegation was that` at that stage the police have overlooked it. 35. After the adjournment the police officers concerned were called and gave evidence to the effect that they had searched the cabinet and that they had found no such book there. Now Mr. Mayne concedes that the Judge was justified in coming to the conclusion that that evidence of the police was correct and that the defendant had not told the truth about where these books were bestowed. That however could take the Judge legitimately no further than the finding that the witness had told an untruth about where the seat receipt book was found. By itself that would not necessarily lead to a conclusion that the rent receipts had been forged and were late fabrications. The Judge himself did not really think so because he went on to consider the nature of the rent receipts themselves and he said that in themselves they constituted documents of an unusual nature. That was a factor which weighed with him in rejecting them. 36. We have been unable to understand that comment. The criticism apparently was that the counterfoils had been made out in an elaborate way with details which, it was suggested, would not normally be added in by somebody keeping such a book in the ordinary course of his affairs; and secondly, it was said that several of the rent receipt counterfoils were written out in different ink. In fact, on inspection it will be seen that the amount of detail filled in was not over-elaborate but consitituted what one could expect to find in such a document. The point as to different inks, if it told in any direction would tell rather in the direction of these being made out in the proper course of a landlord's business of issuing rent receipts. The suggestion was of course that this was both a very late and a very cunning invention. So far as the lateness is concerned, the Judge fell into error which was perhaps understandable because he did not have before him the evidence which is now available to us. From the way he dealt with this late production of evidence, it is clear that he thought that the rent receipt counterfoils had been forged or fabricated over the couple of days of the adjournment, and were therefore the fruit of what one might regard as eleventh hour panic on the defendant's part. Clearly that was not the case. We had an application before us at the outset of the hearing of the appeal by Mr O'Reilly Mayne to call evidence to show that this rent receipt book with its counterfoils had been in the hands of the applicant's solicitors about one week before the commencement of the trial. The truth of the affidavit made by the solicitor testifying to that effect was acknowledged by Mr. Pitchard, very properly, for the Crown and no evidence needed to be called. 37. That disposed of the late nature of the alleged fabrication as envisaged by the Judge. It left open, of course, the possibility that there had been a fabrication at some earlier stage. But the reason seized upon by the Judge was one which would have lent considerably greater force to the idea that the defendant had tried to plug whole in his defence. The several reasons for rejecting the tenancy suggestion seemed to us to be insufficient. 38. The reasons given by the Judge for disbelieving the story which he went on to consider, that is the "visitor" version, would we think have been not insufficient for the reasons already given, that is to say that the items discovered would scarcely have been bestowed about the premises in the way that they were by a visiting close friend without the defendant being aware of it. But on the alternative version that there were truly two tenants in the premises - and in view of the fact that the Judge himself realized that the package of dangerous drugs in the wall cabinet might have been placed there even by visitors without the defendant realizing it - the possibility remained open, had the Judge not rejected the tenancy idea, that the two persons who were named by the applicant as his tenants could have introduced these items to the flat and in particular the especially incriminating ones found in Room A which, on that version of the facts was their own room. It is for these reasons that we feel that the grounds expressly relied upon by the Judge were insufficient to support the conviction. 39. Counsel has already addressed us on the subject of re-trial, it being conceded that there is no question in the present instance of any argument as to the application of the proviso. We have considered what has been said to us on that topic by Mr. O'Reilly Mayne. We realize that it is always a hardship to any defendant or appellant who has succeeded thus far to be subjected once more to the process of justice. We cannot say however that this is a case in which the evidence was not strong. It concerns the trafficking in dangerous drugs - a trade of the utmost concern to the citizens of Hong Kong inasmuch as its deleterious effects are every day demonstrated by further cases in court. Balancing out these factors it seems to us that the interests of justice demand that there should be a re-trial and we so order. Representation: O'Reilly Mayne, Q C & A Souyave (Howell & Co.) for Appellant R. Pritchard for Respondent/Crown. |