HKSAR v. Chau Yan Kiu

CACC315/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2013

(ON APPEAL FROM HCCC NO. 433 OF 2012)

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the Reasons for Judgment of the Court):

1.The applicant was jointly charged with Ma Ka Chun (D2) for one count of conspiracy to unlawfully traffic in a dangerous drug, namely ketamine, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.    

2.The applicant and D2 were tried before V Bokhary J ("the Judge") and a jury.  On 16 August 2013, the jury found them guilty, unanimously in the case of the applicant, and by a majority verdict of 6:1 in the case of D2.  The Judge sentenced the applicant to 20 years’ imprisonment and D2 to 22 years’ imprisonments.   

3.The applicant sought leave to appeal the conviction.  After hearing submissions, we dismissed the application.  Our reasons appear below.

The Prosecution Case

4.The prosecution case rests primarily on the evidence of PW1 Sze Kin-wang (“Sze”), an accomplice who had previously pleaded guilty before the Judge to an offence of trafficking in 2,660 grammes of ketamine on 8 July 2011.  The admitted facts at the trial show that Sze was arrested on 8 July 2011 by police officers as he alighted from a cross-border bus at a bus stop in Mongkok.  The brown bag he was carrying was found to hold 14 packets of a powder containing the 2,660 grammes of ketamine.  The street value of the seized ketamine was HK$366,760. 

5.Sze testified that in April 2011, he was pursued by several finance companies and a person called Sunny for debts he had incurred. Sunny offered to introduce him to work and suggested that he could help to carry something from the Mainland to Hong Kong.  Sunny later told Sze to approach D2, nicknamed “Lo Chung”, in the Mainland.  Sze subsequently went to the Mainland and met D2, who told him to carry ketamine back to Hong Kong for a remuneration of $2,000 per kilogramme.  This he agreed.  D2 also told Sze about the role of a person nicknamed “Pai Kwut”, who is the applicant. 

6.In mid-April 2011, D2 took Sze to buy a phone and told him to wait for calls on that phone.  Sze later received a call from someone who brought him 250 grammes of ketamine.  D2 then took Sze to a hotel and helped strap the ketamine on his body.  After this had been done, D2 told Sze to go through immigration and then phoned him.  Sze did so and was told to wait for a phone call.  Later, Sze received a phone call from the applicant who told him to proceed to a specific location.  There the applicant told Sze to leave the ketamine beneath a flowerbed.  Sze was remunerated by D2 on his return to the Mainland.

7.Sze gave evidence that as time went by, the amount of drugs he carried increased. On each occasion, Sze telephoned a person according to D2's instruction and met that person to get the drugs.  Afterwards, he would tell the applicant, and the two of them would then make their way to Hong Kong.  Sze carried the dangerous drugs, and the applicant went with him to pass through immigration.  Upon arrival in Hong Kong, the applicant would tell him to distribute the drug at places such as flushing cistern in a disabled toilet, a flowerbed or a rubbish bin.  When the distribution was done, they would return to the Mainland.  D2 would then pay Sze $2,800 per kilogramme of drug carried by him.   

8.The applicant and D2 were arrested on 29 April 2012 and 8 June 2012 respectively.  They were subsequently identified by Sze at the identification parades.  

9.Both the applicant and D2 were interviewed by the police upon their arrests.  They both denied involvement in any conspiracy to traffic in dangerous drug, although they admitted knowing Sze. 

10.PW2, a police officer, gave evidence that at the time of Sze’s arrest, the applicant was also stopped by police as he descended the cross-border bus.  When he was questioned, the applicant denied knowing Sze.

11.The travel movement records of the applicant, D2 and Sze for the period from 28 April to 9 July 2011[1] as well as a table comparing their travel movements in the same period[2] were agreed and put in evidence.  They show that during the period, there were some 29 or 30 occasions when the two of them arrived back in Hong Kong at almost the same time, and there were 10 occasions on which Sze and the applicant departed Hong Kong for the Mainland at almost the same time.  A comparison of their movement records further shows that on the occasions when Sze went to the Mainland, D2 was also in the Mainland. 

The defence case

12.The applicant elected to testify but called no defence witnesses.  His testimony was basically in line with the answers he gave during interview at the police station.  D2 also gave evidence and called no witness.

13.The applicant gave evidence that he was 23 years of age, single, and had a clear record.  He said he frequently went to the Mainland to visit her girlfriend.  He first met Sze at an internet café in Mongkok in early April 2011.  Afterwards, they had met in Hong Kong and in the Mainland for fun.  Through Sze, he was introduced to D2 in April 2011.  The three of them were never together in the Mainland.  On the night before Sze’s arrest, he went to the Mainland with a friend, Mr Ho, for fun, and also to visit his girlfriend.  When he and Mr Ho were returning to Hong Kong on 8 July 2011, he bumped into Sze by chance.  All three of them took the same cross-border bus to Hong Kong.  When they got off the bus in Mongkok, they were stopped by police.  Contrary to what PW2 said, the applicant told the police that Sze was his friend.  The applicant denied ever trafficking in dangerous drugs or conspiring with anyone to do so.  Neither did he know that Sze was involved in drug trafficking.

14.D2’s evidence was that his wife is a Mainlander and he lived in Shenzhen.  He said he met Sze at an internet café in Mongkok in mid-April 2011.  Later, Sze introduced him to the applicant.  Thereafter, the three of them met at the internet café once or twice a week.  He had, however, never seen Sze in the Mainland.  D2 denied instigating Sze to traffic in dangerous drugs or knowing anyone called Sunny. 

Grounds of appeal

15.The applicant raised the following grounds of appeal:  

(1) The Judge failed to give sufficient direction on the credibility of Sze in the light of the inconsistencies between his oral testimony and his previous statements to the police.

(2) The Judge erred in accepting the hearsay evidence given by Sze about Sunny.

(3) The Judge failed to direct the jury that the applicant’s evidence and D2’s evidence was supportive of each other.

(4) The summing up was imbalanced in that it was biased in favour of the prosecution. 

(5) The Judge erred in allowing prosecuting counsel to show to the jury in his closing speech, a table consolidating the travel movement records of Sze, the applicant and D2.

Ground (1)

16.Under Ground (1), the applicant pointed out that in Sze’s first witness statement to the police, he said it was in April 2011 that he knew Sunny, through whose introduction he came to meet D2 in the Mainland.  Sze further said it was after some persuasions by D2 that he eventually agreed to do drug trafficking, and 8 July 2011 was the first time he engaged in drug trafficking.  Sze, however, changed his story in his third witness statement, saying that he in fact had since May 2011 been engaged in drug trafficking for D2.  It appeared from his later witness statement that on 26 April 2012, police showed to Sze the applicant’s and his own travel movement records from 28 April to 8 July 2011, whereupon Sze indicated he would be frank with the police about his and the applicant’s role in the drug trafficking. 

17.The applicant complained that Sze’s admission of having lied in his first witness statement and the inconsistencies between his first and subsequent witness statements demonstrated Sze to have fabricated a story in order to obtain a lesser sentence.  In particular, the applicant pointed out that by the time Sze decided to be a prosecution witness, it was seven months after his arrest and after he had the benefit of legal advice.  Sze should therefore know that what he said in his witness statements cannot be used as evidence against him; hence his explanation that he initially lied to the police due to fear of being prosecuted for more offences and/or adversely affecting his sentencing was incredible.    

18.We had read the transcripts of Sze’s evidence at the trial, from which it is clear that he had been extensively cross-examined by the applicant’s counsel on his previous statements to the police.  Sze admitted he had not been wholly truthful in his first few statements to the police.  He accepted he had initially withheld the full picture and that there were discrepancies between what he said in his early statements and his testimony in court.  He explained that it was on 26 April 2012 upon seeing the travel movement records that he gave a full account of the drug trafficking activities that he and the applicant and D2 were involved in.

19.We had also read the transcripts of the closing speeches made by defence counsel to the jury.  The applicant’s counsel, as well as D2’s counsel, had made serious attacks on the credibility of Sze and highlighted to the jury that Sze had the motive and inclination to make false accusations against the applicant and D2 for his own benefits.   

20.In the summing up, the Judge also stressed to the jury that Sze had his own interest to serve in giving evidence against the applicant and D2, and warned the jury to approach Sze’s evidence with caution.[3]   The Judge also reminded the jury of the cross-examinations of Sze, and the attacks on his evidence and credibility made by defence counsel.[4]  As to discrepancies in a witness’ evidence, the Judge directed the jury that[5]:

“Whenever there is any discrepancy between what a witness says at one stage and what the witness says at another stage, you should take such discrepancy into account when you consider that witness’ reliability. ... What counsel have said to you about discrepancy will be fresh in your memories, so I need not repeat what counsel has said. Bear it carefully in mind and give it such weight as you think fit.”

21.In summary, the Judge correctly directed the jury that:

“The question here is whether [Sze’s] evidence is true; and that is for the jury to decide.”[6]

“It is for you, as the sole judges of fact, to decide whether you feel sure that Mr Sze’s testimony against each accused is true.”[7]

22.We do not agree with the applicant’s complaint that the Judge had not given sufficient direction on Sze’s evidence and credibility.  It is important to appreciate that a trial judge’s role is different from that of an advocate.  It is not for the trial judge to perform a critical analysis of the witnesses’ evidence in the direction to jury.  In the present case, the jury had heard the evidence and counsel’s closing speeches. It was clear to them that Sze’s credibility was hotly disputed.  The jury was also made fully aware of the discrepancies between the account given by Sze in his early statements to the police and his later account and oral testimony, including the fact that he initially said he engaged in drug trafficking alone but later said he was accompanied by the applicant when he brought the dangerous drugs to Hong Kong.  The Judge’s summing up had succinctly summarised the focus of the cross-examinations and counsel’s arguments. The Judge had also directed the jury to bear in mind that Sze might benefit from testifying against the applicant and D2, and that they should exercise extra caution when assessing Sze’s credibility and evidence.  In our view, the directions given by the Judge on how to approach Sze’s evidence and the discrepancies between his previous witness statements and his oral testimony were sufficient and proper.  We see no merit in this ground.    

Ground (2)

23.Ground (2) relates to Sze’s evidence about Sunny.  In gist, Sze said Sunny was one of the debt collectors.  In April 2011, Sunny said he would introduce Sze to carry something back from the Mainland to Hong Kong.  Acting on Sunny’s instruction, Sze then went to the Mainland and met D2.  Sze also admitted in cross-examination that he had mentioned in his statement to the police that D2 told him he would get his remuneration for carrying the drug from Sunny.   

24.The applicant pointed out that there was no other evidence at the trial to show that a person called Sunny did exist and that he did say or do the things related by Sze in his evidence.  It follows, the applicant argued, Sze’s evidence about Sunny was hearsay, and the Judge was wrong to allow it to be adduced.  It was further argued that without this evidence about Sunny, there would be no case of a conspiracy between Sze, the applicant and D2.

25.Mr Man who appeared for the respondent did not seek to dispute that Sze’s evidence about Sunny was hearsay.  He, however, submitted that the evidence about Sunny was adduced not for the purpose of establishing the truth of what was said by Sunny, but as relevant to the state of mind of Sze at the relevant time.  It was therefore an exception to the rule against hearsay, and the evidence was admissible.  We agree with his submission.  We additionally note that neither defence counsel had objected to it when the evidence was given.  Not only that, counsel for the applicant had cross-examined Sze on what he said about Sunny in his witness statement and in court with a view to attacking his credibility.

26.Moreover, even if the evidence about Sunny was excluded from the trial, it would not have meant there was no case of conspiracy.  Sze had given evidence on the instructions he received from D2, how the applicant repeatedly travelled with him to Hong Kong from the Mainland when, to the applicant’s knowledge, he was carrying dangerous drugs, the instructions given by the applicant on where to distribute the dangerous drugs, and the applicant returning to the Mainland with him after the dangerous drugs were distributed.  On the basis of such evidence, a reasonable inference could be drawn that the applicant was acting pursuant to an agreement between him, Sze and D2 to traffic in dangerous drugs, and the applicant was party to the conspiracy.

27.For these reasons, Ground (2) failed.

Ground (3)

28.Under Ground (3), the applicant referred to his and D2’s evidence that in April 2011, though Sze’s introduction, they met each other at an internet café in Mongkok.  He complained that the Judge did not direct the jury that their evidence was consistent and supportive of each other. 

29.We see no merit in this ground.  Firstly, this was not a piece of material evidence.  The Judge was not obliged to give specific direction on it.  Secondly, the Judge had in fact in the summing up directed the jury on how to approach the evidence of the two accused.[8]  Specifically, the jury was told:

“... And as I view what each of them said in court and out-of-court, none of it is of any harm to the other accused. ... As to what an accused says in court that is in the witness-box, it is evidence for all purposes. Where it is helpful to a co-accused, it can and should be taken into account in favour of the co-accused if you think that it is true or might be true. ... As it happens, however, as I have said, neither accused has, either in court or out-of-court, said anything of harm to his co-accused.”

Ground (4)

30.We turn next to Ground (4) which complained that the Judge’s summing up was partial and biased in favour of the prosecution. The applicant repeated his complaint under Ground (1) that the Judge failed to highlight and direct the jury on the discrepancies and doubts in Sze’s different accounts to the police and in court.  We have, when dealing with Ground (1), already set out our reasons for not accepting the applicant’s complaint in this regard (see paragraph 22 above). 

31.The applicant also contended that the Judge was uneven in her treatment of the prosecution case and evidence and that of the defence case and evidence.  The applicant drew support from the judgment of Lord Lane in Mears v. Regina (1993) 97 Cr App R 239, at 243, and passages from the Court of Appeal’s judgments in HKSAR v. Jin Zhiheng (金志恒)(unreported) CACC152/2010, 11 December 2012, at §28, and HKSAR v. Zhu Jinni ( 朱金妮 ) [2012] 4  HKLRD 444, 451 at §40.          

32.In summing up to the jury, the Judge firstly told the jury the burden and standard of proof and reminded them if they were not sure that the applicant had committed the offence of conspiracy to traffic in a dangerous drug, they must acquit. The Judge then recapitulated the evidence, both for the prosecution and for the defence and at the same time reminded the jury that they must consider the whole of the evidence.  The Judge went on to summarise the prosecuting and defence counsel’s speeches.  The judge concluded by telling the jury again that the applicant needed not prove anything, and that the prosecution must on the basis of the evidence prove beyond reasonable doubt the applicant’s guilt.  The jury was further reminded to bear in mind counsel’s speeches and to consider the whole of the evidence carefully.

33.We do not accept the applicant’s criticism that the Judge while being brief about the weaknesses in Sze’s evidence, had dwelled into the cross-examinations of the applicant’s and D2’s evidence.  Quite the contrary, when directing the jury on the evidence of the prosecution and the defence, the Judge had gone into all the salient aspects of defence counsels’ cross-examinations on Sze.[9] The Judge’s summary of the cross-examination of the applicant was in no way disproportionate.[10]  Similarly, there was no uneven treatment of counsel’s closing speeches.  The Judge had reminded the jury of all the key points made by defence counsel, especially those on the credibility and reliability of Sze.[11]  In contrast, the direction on prosecuting counsel’s closing speech was very brief.[12] 

34.The principles stated in the cases cited by the applicant are not contentious.  It is trite that a trial judge’s summing up must appear to be fair and balanced.  In the present case, having read the summing up, we are of the view that the Judge’s direction was appropriate, balanced and fair.  This ground of appeal failed.

Ground (5)

35.Ground (5) concerns a consolidated table of the travel movement records of Sze, the applicant and D2 from 28 April to 9 July 2011 (“the Document”).  It was provided by prosecuting counsel to the jury at the beginning of his closing speech.  As noted above, the individual travel movement records of Sze, the applicant and D2 as well as a comparison schedule on their travel movements had been admitted into evidence by consent.  The Document, as explained by prosecuting counsel, served was a consolidation of the travel movements of Sze, the applicant and D2 with movements of D2 being added to those of Sze and the applicant.  It was prepared according to their individual travel movement records.  

36.The applicant complained that the Document amounted to a new piece of evidence, that it was not shown to the defence before it was provided to the jury, and that it had not been put to him in cross-examination and he did not have an opportunity to explain or respond to it.

37.Mr Man submitted, and we agree, that the Document was not an exhibit, but was in the nature of a tool to assist the jury in understanding the point he made in closing speech.  It was held in R v. Sharon Lilley [2003] EWCA Crim 1789 at §20 that it was within a trial judge’s discretion to allow jury to be provided with some help by way of a tool, some aide-memoire, with which to grapple with and deal with some of the arguments in relation to matters of detail.  The Document, being prepared from the agreed exhibits, did not contain anything new.  When the applicant gave evidence, he had been asked questions both in-chief and in cross-examination on his and Sze travel movement records.  It cannot be said that the Document had taken the defence by surprise.  Indeed, when the Document was provided to the jury, neither the applicant’s counsel nor D2’s counsel raised any objection.

38.In our view, in the circumstances of this case, it is neither wrong in principle nor an inappropriate exercise of discretion to permit the Document to be provided to the jury to assist them to understand prosecuting counsel’s closing speech.  As can be seen from the prosecuting counsel’s closing speech,[13] the Document was primarily to explain the point that whenever Sze went to the Mainland, D2 was also in the Mainland.  D2’s counsel, in his closing speech, pointed out to the jury that this was a speculative point, that D2 had not been specifically asked about some of the dates appearing on the Document, and that the jury should not draw any conclusion from the Document.  The Judge agreed with D2’s counsel and had specifically directed the jury on this, saying also that the jury should not hold against D2 anything that he had not been given an opportunity to explain.[14]  There was, in short, no unfairness to the defence arising from the provision of the Document to the jury.  Ground (5) also failed.             

Conclusion

39.For the reasons set out above, we were not satisfied there was any ground for disturbing the guilty verdict.  Accordingly, we dismissed the application for leave to appeal against conviction.

Mr Jonathan Man, SADPP, of the Department of Justice for the respondent.

The applicant, unrepresented, appeared in person.

[1] Respectively exhibits P31A, P31B and P31C.

[2] Exhibit P32. 

[3] Appeal Bundle: p.4A-T.

[4] Appeal Bundle: pp.20L-21F, 32D-G and 33E-H.

[5] Appeal Bundle: p.8N-T.

[6] Appeal Bundle: p4T.

[7] Appeal Bundle: p.21H-I.

[8] Appeal Bundle: p.15K-S.

[9] Appeal Bundle: pp.20E-21G.

[10] Appeal Bundle: p.26A-T. 

[11] Appeal Bundle: pp.31R-33K.

[12] Appeal Bundle; p.31N-Q.

[13] Appeal Bundle: pp.242T-243D.

[14] Appeal Bundle: p.32N-S.