Coram: Huggins and Pickering, JJ.A. and McMullin, J.
Date of Judgment: 27th February 1978.
1. McMullin, J. is unfortunately unable to be present this afternoon, but I am authorised to say that he has agreed with the judgmentwhich I am about to read.
2. Upon his trial in the High Court the Appellant was convicted of conspiracy to traffic in a dangerous drug, “namely, salts of estersof morphine”, and with trafficking in the same drug, and he was sentenced to twenty years’ imprisonment on each count concurrent.He appeals against conviction and sentence.
3. The first two grounds of appeal are based upon the fact that the only evidence as to the nature of the drug involved was that itwas “heroin” or “white powder”. In his summing up the learned judge referred only to the evidence that it was “heroin”. Throughoutthe trial there was no discussion about the nature of the drug and it appears to have been assumed that “heroin” and “white powder”were “salts of esters of morphine”. It is now contended that this assumption was wrong.
4. It is accepted that although the charges specified “salts of esters of morphine” the particular salt in question was diacetylmorphinehydrochloride. Diacetylmorphine hydrochloride is a more refined drug than diacetylmorphine, which is an ester of morphine. Diacetylmorphineis sometimes known as “heroin base”. What is submitted on behalf of the Appellant is that when standing alone the term “heroin” andthe common Chinese expression “pak fan” (“white powder”) may refer to both diacetylmorphine and diacetylmorphine hydrochloride. Therefore,it is said, since the prosecution chose to specify “salts of esters of morphine” (intending diacetylmorphine hydrochloride) thatis what they had to prove and the evidence adduced was insufficient to support the conviction. The point may be said to be technicaland certainly has no merit, but it is none the less a point which the Appellant is entitled to take.
5. We were referred to standard pharmaceutical works which suggest that strictly “heroin” is synonymous with “diacetylmorphine” andthat “heroin hydrochloride” is synonymous with “diacetylmorphine hydrochloride”. On the motion of counsel for the Crown we allowedMr. Ronald Edgley, the Chief Government Chemist, to give evidence and, whilst he agrees with this strict interpretation, his viewis that in common usage “heroin” includes both diacetylmorphine and diacetylmorphine hydrochloride. Whether one adopts this viewor the strict view the fact remains that “heroin” is not necessarily synonymous with “diacetylmorphine hydrochloride” and Mr. Sedgwickis, therefore, right when he says that evidence relating to “heroin” was not evidence relating to “salts of esters of morphine”.
6. That leaves the evidence relating to “white powder” and the Crown submits that it was open to the judge, and is open to us, to takejudicial notice of the fact that “white powder” means diacetylmorphine hydrochloride. This seems to us to come within that categoryof cases where the court may take judicial notice of a fact if, although not notorious, it can be established beyond argument uponenquiry. We do not think that Mr. Sedgwick seriously contended otherwise, but he strenuously argues that Mr. Edgley is not qualifiedto speak to the niceties of the Chinese language. Mr. Edgley does not claim to be a Chinese scholar, but he has been a chemist inHong Kong for eighteen years and it is well known that he has frequently given evidence in the courts on issues of chemical analysisand, in particular, of the analysis of dangerous drugs. It would seem that all the work, or at least the forensic work, in the GovernmentLaboratory is carried out with the use of English terminology – which is, perhaps, not surprising when the language of the courtsis English. Nevertheless as a result of his long experience he has come to understand that “pak fan” is a term reserved for heroinin the form in which it is commonly smoked in Hong Kong, i.e. “No. 3 heroin” or “No. 4 heroin”, which are different grades of diacetylmorphinehydrochloride. We think that was evidence which he might properly give. The fact that the persons whom he heard using the expression”pak fan” were all police officers does not appear to us to be material, since it is notorious that the expression is not used exclusivelyor even mostly by the police. It is true that the learned judge did not himself use the Chinese characters or their English equivalentin his summing up, but he pointed out to the jury that the substantive charge was one of trafficking in salts of esters of morphine.He clearly thought he was entitled to take judicial notice of the fact that the drug referred to by the witnesses came within thedescription “salts of esters of morphine” on the basis that this was notorious. All three main prosecution witnesses used the term”white powder”, although one of them also said “heroin” and another said “white powder is heroin”. Although we think this was a matteron which the judge ought to have required evidence, we are satisfied that it was one of which judicial notice could properly be takenand it is inconceivable that the jury would have acquitted had the issue been ventilated before them. Accordingly the first two groundsof appeal fail.
7. The next ground attacks the learned judge’s direction as to corroboration. The main prosecution witnesses were accomplices and itwas important that the jury should be properly warned of the danger of acting upon their evidence without corroboration. It is concededthat a sufficient warning was given, but it is said that the judge asserted that there was evidence which “amounts to” corroborationalthough (1) it was for the jury to decide whether evidence amounted to corroboration and (2) the evidence in question was not capableof amounting to corroboration. As to the first point it is clear that the learned judge had in mind the respective functions of judgeand jury in relation to corroboration, because he began his directions on the subject by posing the question “What evidence thathas been adduced in this case, if you believe it, could in law amount to corroboration?”. Unfortunately he ended by saying: “butas I say, there is other evidence which amounts to corroboration of parts of the accomplices’ evidence which I have already toldyou”. It is not necessary to decide whether that would have been fatal in itself, because the second criticism is also valid: mostof the matters held out to be corroboration were not capable of being corroboration. First was the evidence of an Immigration Officerwho produced records confirming the girls’ story that they left Hong Kong for Vancouver by air and subsequently returned. That evidencedid not tend to establish that the Appellant. What is more, that part of the girls’ story was not in dispute and the learned judgehad a lapsus linguae when he said: “In fact, I don’t think it has been seriously challenged that they didn’t go to Vancouver” whenwhat he meant was that it had not been challenged that they did go to Vancouver. However, nothing turns upon that. The evidence ofthe same Immigration Officer that a woman called Ho Yuk-chun, who according to the girls was helping them in their drug trafficking,left Hong Kong for Vancouver by air on the same day as the girls, similarly did not implicate the Appellant. Nor did documentaryevidence confirming that the girls stayed at the Nathan Hotel before leaving for Vancouver and that they stayed at the Rlue Heavenand Rembrandt Hotels in Vancouver. Nor, again, did the production of the special corsets which the girls said had been provided forthem and in which they carried the drugs incriminate the Appellant. That leaves only the evidence that Miss Ho Yuk-chun remittedmoney from Vancouver to Hong Kong and that corresponding remittances were credited to the Appellant’s bank account. According tothe girls part of the money thus remitted was handed to Miss Ho when they delivered the drugs in Vancouver. Only in so far as thejury were satisfied that the remittance witnessed by the girls was one of those credited to the Appellant could this be corroborationand it was necessary that that should be explained to them.
8. Counsel for the Crown submits that in any event there was evidence capable of constituting corroboration in the testimony of theAppellant himself and that the evidence as a whole was overwhelming. He therefore invites us to apply the previse. In our view themisdirections were fatal and this was not a case where we could properly apply the previse : the jury might well have come to thesame conclusion had they received proper directions but they would not necessarily have done so. Nevertheless, having regard to thenature of the admissible evidence and to all the other circumstances, we think that it would be wrong simply to acquit the Appellant,and we order a retrial. It has been argued that one of the considerations in deciding to order a retrial must be that the witnesseswho gave the admissible evidence will be available. As to that it is enough to say that the fact that a witness is not within thejurisdiction does not raise an inference that he will not be available.
27th February 1978.