Hong v Regina [2009] NSWCCA 242 | Case summary

Monday 14 September 2009 Gene Joseph HONG v Regina Judgment 1 SPIGELMAN CJ: Following a trial before Acting Judge Maguire in the District Court of New South Wales, the appellant was convicted by a jury of an offence that, on or about 14 February 2007, he knowingly took part in the supply of a commercial quantity of a prohibited drug, namely methylamphetamine. The appellant appeals against conviction. There is no appeal against sentence. 2 On 14 February 2007 police officers arrested a man named Ricky Thoo. During a search of the garage which Thoo had just unlocked the police found, relevantly, two sports bags each containing a number of plastic bags. 3 There were 55 packages of methylamphetamine in the plastic bags. Some of those packages contained other plastic bags and in total there were 72 plastic bags. The appellant's fingerprints were found on seven bags, of which five were plastic bags which contained other plastic bags and two which did not. 4 The seven packages upon which the appellant's fingerprints were found were as follows: (i) Item 24 - a knotted plastic bag containing five knotted bags, with a total of 139.4 grams of methylamphetamine; (ii) Item 25 - a knotted plastic bag containing five knotted bags, with a total of 139.2 grams of methylamphetamine; (iii) Item 26 - a knotted plastic bag containing two knotted bags, with a total of 55.9 grams of methylamphetamine; (iv) Item 30 - a knotted plastic bag containing five knotted bags, with a total of 139.1 grams of methylamphetamine; (v) Item 31 - a knotted plastic bag containing four knotted bags, with a total of 111.3 grams of methylamphetamine. (The appellant's fingerprint was located on one of these plastic bags); (vi) Item 34 - a knotted plastic bag containing 15 knotted bags, with a total of 420.2 grams of methylamphetamine and ephedrine; and (vii) Item 35 - a knotted plastic bag which contained 19.2 grams of methylamphetamine. 5 The total amount of methylamphetamine contained within these packages was 941.13 grams. The commercial quantity applicable to methylamphetamine is 250 grams. The total amount of the methylamphetamine found in all of the bags was 1.4 kilograms. 6 The case against the appellant was entirely circumstantial. Indeed, there was only one circumstance, namely the presence of his fingerprint on the seven plastic bags. There was no other evidence linking him to the garage or to any other aspect of the supply of the drugs. 7 The issue for the jury to determine was whether this evidence was sufficient to discharge the Crown's onus of proof. The critical factor was a judgment about the number of separate bags upon which the appellant's fingerprints appeared. Out of the 72 bags, his fingerprints were on seven, i.e. about 10 percent. 8 The defence case sought to establish a reasonable doubt in the minds of the jury or, alternatively, to satisfy the test for a circumstantial case that the prosecution had not discharged its onus to exclude a reasonable hypothesis consistent with innocence, on the basis of proof of circumstances in which the appellant's fingerprints could have been placed on the plastic bags. 9 The defence called a witness, David Brady, who had previously worked as the manager of a mobile telephone company called "Allphones". This company was owned by Ricky Thoo. Mr Brady ceased working at the company in September 2006. He affirmed that the company was a legitimate business selling mobile telephones and accessories. He gave evidence, confirmed by others, that the appellant was a close friend of Shannon Thoo, Ricky's brother. 10 Brady said that the appellant would come to the shop "to pick up repairs that needed to be done, phones or accessories". He said that when he picked up the items for repairs they were packaged in "zip-lock or sort of shopping-style freezer bags". He was shown Exhibit 1 (which were bags of the kind in which the drugs subject of the charge were found) and confirmed that these were the same style of bags as the ones used by Allphones. He said that he had seen the appellant touch such plastic bags in the course of his duties working for Thoo's telephone business. 11 In cross-examination he affirmed that freezer bags of the kind in which the drugs were found had been used in the shop. They were contained in a plastic bag which held about 120 of the freezer bags. He also affirmed that the appellant picked up repairs for delivery and did so about two or three times per week. He also picked the items up after they had been repaired and brought them back in freezer bags. 12 In re-examination he said: "Q He'd take the phones away in plastic bags? A Yes. Q And he'd bring them back in plastic bags? A Yes." 13 The defence case was reinforced by cross-examination of Crown witnesses. 14 A police forensic officer, Detective Garry Sarksissian, gave the following evidence: "Q … it's true, isn't it that there is no way of telling from a surface when the print was applied? A No. The only thing you can take into effect is potentially the age of the object, but you can't tell the age of the print. Q Not from the print? A Not from the print. Q No, if a newspaper came out today and there was a fingerprint on it and you examined it tomorrow you would be able to say how old that print was within a day? A Exactly, yes. Q But a thing like a freezer bag that you've got in front of you no way in the world could you say within a year when the print went on? A No. If the bag was produced a year ago, sold at a certain time, if you could trace all that information then you could narrow down, but you can't tell exactly when the print was put on there. … Q The other thing that you can't advance any opinion [on] is where the bag was when the fingerprint was applied to it? A Oh no. Q A third thing you can't advance any opinion on is what was in the bag, if anything, when the print went on it? A No. Q The prints you found might have been applied when the bags were empty, correct? A Correct." 15 Detective Senior Constable John Guminuk gave similar evidence: "Q You agree that you can't possibly say when Mr Hong touched the bags? A I agree to that. Q You agree that you can't possibly say that the bags were not empty when he touched them? A I agree to that. Q You cannot say that others did not touch the bags after Mr Hong did? A I agree to that." 16 Detective Senior Constable Andrew Lam conducted extensive surveillance of the premises where the drugs were found and of Ricky Thoo. He agreed that: There was no evidence that the appellant had "anything to do with the [premises]". None of the appellant's fingerprints were found on any surface within the premises. No DNA evidence had identified the appellant as having attended the premises. No evidence of traces of drugs was found on the surfaces of the bags where the appellant's fingerprints were found. Thoo owned and ran a phone shop at the time of the offences and this was apparently a legitimate business. Thoo had told police that the appellant "had nothing to do with the drugs" and also that the appellant ran errands for the telephone business and may have touched the bags in the course of that employment. 17 The critical facts upon which the appellant relied in this Court were as follows: The fingerprints of the appellant could have been placed on the bags at any time up to a year prior to 14 February 2007. The evidence of the fingerprint expert could not establish whether the plastic bags were empty at the time the fingerprints were placed on them. The plastic bags on which the appellant's fingerprints were found were examined for traces of methylamphetamine and found to contain none. The appellant provided a DNA sample to police. However, there was no evidence of his DNA being found on the sports bags. There was no evidence other than the fingerprints on the plastic bags connecting the appellant to the sports bags or anything else in the garage. Thoo leased the garage in which the drugs were found. Surveillance evidence did not disclose the appellant in company with Thoo or attending the garage. The appellant was a friend of Thoo's brother and had worked for Thoo at his mobile telephone business transporting telephones and accessories for repair. The telephones and accessories were transported in resealable plastic bags of the same kind found by the police to contain drugs. In the course of his employment the appellant had touched the same or similar plastic bags to those in which the drugs were found. This had occurred around five months prior to 14 February 2007. 18 With respect to the third last bullet point above, the Crown has pointed out that the plastic bags in which the drugs were contained were not "resealable" bags but were "freezer" bags of the character about which Mr Brady gave evidence. 19 With respect to the last bullet point, the period reflects the time between Mr Brady leaving his employment at Allphones and the date of discovery of the drugs. There is no basis, however, for an inference that the appellant's attendance at these premises had ceased. 20 The first ground of appeal is that the verdict is unreasonable and unable to be supported having regard to the evidence or otherwise represents a miscarriage of justice. If this ground of appeal is upheld, then this Court would quash the verdict of guilty and enter a verdict of acquittal. Four other grounds of appeal which are directed to alleged errors in the directions by the trial judge would, if upheld, lead to an order for a new trial. If the first ground is upheld it is unnecessary to deal with the other grounds. 21 The principles applicable to the unreasonable verdict ground of appeal are well established. The Court must ask itself whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. (M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25], [55]-[57].) The principles have recently been summarised in Rasic v Regina [2009] NSWCCA 202 at [25], [26] and [30]. 22 In light of the evidence of the appellant's contact with plastic bags on the premises, the defence case was entitled to substantial weight. The appellant did not give evidence. Nevertheless, the evidence of actual contact with the plastic bags was striking. There is a real issue as to whether, in the light of this evidence, it was open to the jury to conclude that the fingerprints were placed on the bags when they contained drugs or in the course of preparing them for use in that way. 23 The Court was referred to other cases in which accused persons were acquitted, notwithstanding the presence of their fingerprints on incriminating material. (R v Laing (NSWCCA, 20 June 1996, unreported); R v Zouras [2002] VSCA 182.) It was also referred to cases in which persons were convicted on the basis of the presence of fingerprints, notwithstanding the absence of other incriminating evidence. (See R v Ingivald (NSWCCA, 14 April 1989, unreported); Chahine v R [2006] NSWCCA 179 and Halmi v R [2008] NSWCCA 259.) 24 I do not find assistance from these authorities. Each case turns on its facts. It is not helpful to seek to compare the facts of this case with the different range of facts that arose in these other cases. 25 If the fingerprints had appeared on only one or two bags then I have no doubt what the answer would be. Similarly, if the fingerprints had appeared on a significant majority the bags, I have no doubt what the answer would be. The critical issue in this case is whether the fact that fingerprints appeared on seven out of 72 bags was sufficient to tip the scales and enable the Crown to prove its case beyond reasonable doubt, or alternatively, to disprove the hypothesis consistent with innocence. 26 The Crown case was in such a narrow compass that it does not appear that anything turned on the advantage which the jury had of observing the witnesses. The only exception to this is the evidence of Brady, who was cross-examined in such a way as to suggest that his evidence about the freezer bags may not be accepted. However, it was not put to him that any of the events to which he testified never happened. 27 The materials available to the Court do not include the Crown submissions. However, the Crown submissions in this Court do not suggest that the jury was asked to reject Mr Brady's evidence either in total or as to any particular, eg the frequency of the appellant's attendance at the premises. The Crown case was to emphasise the number of different bags on which the appellant's fingerprints appear. 28 In these circumstances the respect which this Court must show to the jury's judgment is somewhat attenuated. I have less difficulty than may often be the case in applying the proposition in M v The Queen supra at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced." 29 I have such a doubt. In my opinion, it was not open to the jury to convict the appellant. The Crown had not discharged its onus of excluding the reasonable hypothesis that the appellant's fingerprints were placed on the plastic bags in the course of his employment. That is a hypothesis consistent with innocence. 30 The appellant attended the premises two to three times per week. He did so over an extended period of time. His practice was to carry equipment for repair in plastic bags and to bring back that equipment after repair in such bags. He must have touched numerous bags. The evidence, which was questioned, but not ultimately challenged in cross-examination, that bags were kept for reuse, is entitled to weight. Accordingly, it is possible that as many as seven such bags, that were ultimately used in a business of drug supply, were touched by the appellant as an employee of the legitimate business in which he was employed. 31 It is not necessary to deal with other grounds of appeal. However, I do wish to make some observations about the submissions on one ground. 32 The appellant submitted that the trial judge erred in failing to give a direction in the terms of a passage set out at [27] of the joint judgment in Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 387. Whether or not such a direction was necessary depends on the force of that authority and the cases referred to therein. That need not be decided. 33 The appellant's submissions, however, sought to reinforce this ground on the basis that the Criminal Trial Courts Bench Book had been amended to take into account the observations in Mahmood. 34 As this Court has said on previous occasions, the Bench Book should not be relied upon in this way. (See R v Zoef [2005] NSWCCA 268 at [93]; R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [72]-[76].) The contents of the Bench Book are no more than suggested guidance for trial judges. 35 As I state in the Foreword to the Bench Book: "There is a danger that publication of standard directions will convert a summing-up into a series of formulae which are not necessarily appropriate to the facts and circumstances of each particular case. For that reason, it is important to recognise that, subject to any appellate indications to the contrary, no particular form of words is required and an individual judge is free to depart from the suggested directions and to direct the jury as he or she thinks fit, provided that the directions are in accordance with the law. On the other hand, the advantage of standard directions is that, properly used, they improve the efficiency of the administration of criminal justice and assist in eliminating error on the part of trial judges. The draft directions are intended to remind judges of what has to be said and to suggest a way in which it can be said. The directions are not intended to constitute an authoritative statement of the law, nor is it the case that the whole of each direction will be appropriate in each case. In all respects the directions ought be adapted to the circumstances of the individual case and the legal issues which have arisen. ... It is appropriate to reiterate that the Bench Book does not contain an authoritative statement of the law. Practitioners should not act on the basis that a failure to direct in accordance with the Bench Book is of itself indicative of legal error for appellate purposes. Authority for what ought have been in the contents of a direction in a particular case will need to be identified elsewhere." 36 The orders I propose are: 1 Appeal allowed. 2 The conviction and sentence are quashed. 3 Direct a verdict of acquittal. 37 McCLELLAN CJ at CL: I agree with Spigelman CJ. 38 GROVE J: I also agree. **********

Hong v Regina

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (13)

Cited By (7)