Ng Kau v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 726 OF 1972

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JUDGMENT

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Huggins, J.:

1.  The Appellant was charged before the District Court with possession of dangerous drugs for the purpose of unlawful trafficking. He pleaded Not Guilty and after a trial was convicted and sentenced to four years’ imprisonment. The single judge gave leave to appeal against sentence but dismissed the application for leave to appeal against conviction. That application has now been renewed before this Court.

2.  The evidence for the prosecution was that two revenue officers kept observation upon a flat in To Kwa Wan. One of them (Mr. Fok) was looking from the floor above and another on the same floor as the flat, which was in a resettlement area. They started watching at 9 p.m. At 9.45 they saw a man come out of the flat carrying a plastic bag. He then turned left along the corridor towards the place where Mr. Fok was hiding. Before reaching the officer he turned right down another corridor. By that time he was out of sight of the officer upstairs. Mr. Fok came out of the hiding, to the end of the corridor, and watched the man walking away from him. The man reached the end of the corridor and turned right through a door to a staircase. At that point Mr. Fok lost sight of him but he pursued and ran down the stairs. He did not see the man again but on the staircase he did see a pile of garbage and amongst that pile of garbage he saw a plastic bag which appeared to him to be similar to that which he had seen the man carrying. Mr. Fok said that the bag was “red on one side and green on the other”. He opened the bag, taking about half a minute to do so, and found what he suspected to be dangerous drugs. He then returned upstairs to the place where the other officer was still keeping observation and, at about the same moment as he reached the other officer, a man came back along the corridor to the flat from which the man had emerged and he was identified by both officers as the same man who had left the flat – and as the Appellant. The time when Mr. Fok returned to the floor above was stated to be 9.49, that is just four minutes after the man had left the room. There was some suggestion in argument that the evidence as to the time of the man’s return to the flat was insufficiently established, but in our view it is quite clear that he returned at 9.49 or within a few seconds of that hour.

3.  There was then a statement which was alleged to have been made by the Appellant to one of revenue officers. It was in these terms:–

“I, NG Kau, am old and slow in hand movement. I therefore request Inspector FOK to write for me. I understand the above caution. I am now old. I was responsible for cooking meals at the above address. I have a friend who asked me to put a plastic bag downstairs at the 11th floor staircase landing. I only know he is surnamed TSOI. He did not tell me what articles were in the plastic bag. He instructed me to put it at the 11th floor staircase landing before 10 o’clock tonight. I have not received any reward from him because he is my fellow villager. Now I know I was wrong. I hope the Judge to give me a chance to reform and turn over a new leaf.”

4.  This statement was challenged by the defence and it was suggested that it was not made at the time and place alleged by the revenue officers in their oral evidence, namely in the flat after they had entered the room at about 10:30. The Appellant said it was taken some hours later in a police station, and counsel has very fairly pointed out that the statement itself does not indicate either the place or the time at which it was taken. This was a matter of reasonable criticism. I should have said that the officers, after they saw the man enter the flat, remained watching from the floor above until 10:30. That was a period of approximately forty minutes. They were not asked why they did that but they went on to say that somebody else then came out of the flat and they ran down, stopped him and, with his aid, obtained admission into the flat.

5.  The suggestion for the Appellant is that the evidence was unsatisfactory and that this conviction was not safe. It is pointed out that when the man disappeared from view at the end of the corridor he was not seen again until he returned to the room, even if it was the same man – and, that of course, is contested. It is true that Mr. Fok was not able to keep the man in view the whole time, but the position is that he saw a man walking down this corridor from the room with a bag, that the same man was seen to return without the bag some four minutes later: in the mean time a bag containing dangerous drugs – a bag which looked like the one the man had been carrying – was found on the staircase down which this man must have passed and in our view it was a reasonable inference and, indeed, the only reasonable inference in the circumstances that this man who left the flat did leave the bag there – as he said in his statement. The Appellant has sought to say that he was in the room throughout that time – that he never left – and, therefore, he, of course, was not able to give any explanation of how the bag had been left on the staircase or how the man who had left the flat had disposed of the bag which he was carrying (if it was different from that which was found on the staircase).

6.  The learned judge rejected the evidence of the officer who was upstairs at the beginning when he purported to identify the bag which was found on the garbage pile as the one which was carried by the man from the flat: he was at a distance of some ten yards, the light was not very bright, his view was partially obstructed by some plants on the verandah and, in our view, it was not unreasonable that the judge should have doubts about the clear identification which was made, but the other officer was able to see also as the man came towards him and then turned to the right. The evidence was that the bag was bulging and it is, therefore, possible that he would be able to see both sides of the bag – and, it was, as I have said, red on one side and green on the other.

7.  The other ground of complaint was that in the flat was found a family by the name of Loh. Indeed, it was said that the Appellant was working as cook for Mr. Loh. None of the persons in the flat was called to give evidence. There are two matters upon which it is reasonable to imagine they might have been able to give evidence: one was as to the making of the statement in that flat (if, indeed, it was so made, as alleged by the revenue inspectors) and the other matter was the Appellant’s alleged remaining in the flat throughout the material time. Counsel has suggested that the absence of these persons as witnesses was enough to raise a reasonable doubt as to the guilt of the Appellant. In our view this is not a tenable argument and, in particular, we would remark that towards the close of the prosecution case, as the last witness was coming to the end of his cross-examination, he was asked whether he could find the Lohs on that very day that the case was being tried and his answer was “Yes”. Now if, as is suggested, the defence had been very anxious indeed to find the Lohs and had made all efforts which they could think of, there was an opportunity for the defence to ask the learned judge at least for an adjournment while the officer sought to find the Lohs so that they could be called as witnesses. No such application was made. We have no reason to believe that the prosecution had any cause to think that the Lohs could give evidence which was favourable to the defence. If, of course, they had any such information it was incumbent upon them so to inform the defence and we would accept the dicta in Dallison v. Caffery 1964 2 All E.R. 610 which refer to the duty of counsel for the prosecution in relation to the calling of, or making available of, witnesses who can give evidence favourable to the defence. We do not know whether the prosecution even regarded the Lohs as credible witnesses. It may be that they did not and that that is why they were not called. Certainly there was no secret about the fact that the Lohs had been in the flat, and really the substance of the complaint appears to be not so much that the defence were not aware of their existence as that the prosecution did not make the witnesses readily available at the trial. In our view there is no substance in that complaint.

8.  The other matters argued before us do not require any mention in this judgment. We think there is no ground upon which we could interfere with this conviction and the application for leave to appeal against conviction is dismissed.

9.  As to the sentence of four years’ imprisonment we also see no justification for interfering with a sentence of that length for the amount of drugs was substantial: there were 1,395 grammes of a mixture containing salts of esters of morphine, the actual weight of the morphine being 526.7 grammes.

10.  It is complained that there was inadequate evidence as to the value of those drugs. Two figures were given in the course of the proceedings, one of $80,000 and one of $22,500. It is suggested that neither of those figures was correct. Nevertheless, it is to be noted that when pleading in mitigation on behalf of the Appellant the solicitor who represented him himself referred to the drugs’ being worth $22,500 according to the prosecution and he appeared to accept that that was the correct figure. Quite clearly the figure which has been suggested to us as a basis for calculation seems very much on the low side and we so see no reason to think that the figure of $22,500 is materially wrong. Be that as it may, there was a very substantial quantity of drugs and we think that a sentence of four years’ imprisonment was not manifestly excessive.

11.  The appeal against sentence must also be dismissed.

17th April 1973.