HKSAR v. Mushtaq Zeeshan

CACC 394/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 394 OF 2015

(ON APPEAL FROM HCCC 130 OF 2015)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1.On 2 November 2015, the applicant was convicted after trial by Wong J (“the judge”) and a jury, of trafficking unlawfully in dangerous drugs which were particularised as being, (i) 2,469.28 grammes of a solid and powder containing 1544.68 grammes of cocaine hydrochloride, (ii) 6.29 grammes of a solid containing 2.52 grammes of cocaine and 1.35 grammes of cocaine hydrochloride and (iii) 37 millilitres of a liquid containing 0.03 gramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was subsequently sentenced by the judge to 21 years 3 months’ imprisonment.

2.By way of a Notice of Application for leave to appeal (“Form XI”) filed on 18 November 2015, the applicant sought leave to appeal against his conviction.  For the purpose of addressing all the matters raised by the applicant in his application it is relevant to note that the trial was a retrial, and that at his first trial, the applicant was convicted of two counts of trafficking unlawfully in a dangerous drug and he was acquitted of a further count of manufacturing dangerous drugs, contrary to section 6(1)(a) and (2) of the same Ordinance.

3.The applicant has been represented by Mr John Haynes of counsel throughout his trials and appeals.

4.At the hearing of the application we reserved our judgment, which we said we would hand down at a later date.  This, we now do.

The recusal application

5.When the appeal was called on Mr Haynes announced he was instructed to make an application that all members of this court recuse themselves.  That such an application might be made had been foreshadowed in earlier correspondence with the Registrar of the High Court in which a request had been made for the applicant’s leave application to be heard by a different panel from that which constituted the Court of Appeal at the hearing of his successful appeal arising from his first trial.

6.Mr Haynes’s application is not, he made clear, based on actual prejudice but rather perceived prejudice and more especially the perception of his lay client.  The test for what the law refers to as apparent bias was expressed by the Appeal Committee of the Court of Final Appeal in Deacons v White & Case LLP[1] as follows:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”

7.An obvious circumstance is that to date there is no evidence of any prejudice by this court against this applicant. Indeed, quite the contrary; this court allowed the applicant’s appeal in respect of the main charge he faced.

8.The basis of the application is that there are comments in that first judgment which are adverse to the applicant and that as a consequence the applicant now felt it was unfair to him that his counsel should have to convince this court to reverse findings it made in its earlier judgment.  In this respect Mr Haynes relied on paragraphs 31 and 34 of the judgment in CACC 223/2014. 

9.In the first appeal, one of the grounds of appeal was that there was an inconsistency between the verdict of the jury acquitting his client of manufacturing a dangerous drug and the verdict of the jury convicting him of trafficking in a dangerous drug.  In paragraph 31 of that judgment Macrae JA, in giving the judgment of the court, said:

“... we should make it clear that there can be no conceivable argument on the authorities and on the evidence that the verdicts in respect of Count 3 or, for that matter, Count 2 were inconsistent with the applicant’s acquittal on Count 1.”

10.Mr Haynes argues that this adverse comment in respect of that ground of appeal is relevant to the second trial in that at that trial the applicant was not permitted by the trial judge to adduce into evidence the fact that he had been acquitted in the earlier trial of the manufacturing charge.  That refusal of the judge is a ground of appeal in the present application for leave to appeal.

11.The suggested adverse comment contained in paragraph 31 was made in respect of an inconsistent verdicts ground of appeal.  That is a ground of appeal which has a well-settled body of case law underlying it and which requires an analysis of the evidence adduced at trial.  It has no relevance to the present ground of appeal which is based upon a submission that without that fact before the jury the applicant could not obtain a fair trial and properly advance his defence that there was an unknown third party who was using the flat to manufacture crack cocaine.  In our view, quite separate issues are raised by this ground of appeal and the comment in paragraph 31 is simply not relevant to those issues.   

12.The suggested adverse comment in paragraph 34 does relate to an identical issue in the present appeal.  In both trials Mr Haynes applied to the judge for an order that the identity of the police informant be revealed to him.  In both trials this application was refused.  The relevant legal principles are not in dispute.  The identity of the informer will not be ordered to be disclosed unless the judge is satisfied that the disclosure is necessary to show the defendant’s innocence.  This places a burden on the defence to establish a basis on the evidence for concluding the disclosure is necessary to show the defendant’s innocence. 

13.The comment in paragraph 34 was:

“... his application was nothing more than a speculative fishing exercise, in which the defence could raise no more than ‘a tenable possibility’.”

14.This was a comment on the evidential foundation for the application and it was a view which was shared by the Appeal Committee of the Court of Final Appeal when Mr Haynes sought the leave of that court to appeal this court’s dismissal of his appeal in respect of the applicant’s conviction for trafficking, which arose from him being charged for drugs being found on his person at the time of his arrest at the door of the flat.  The Appeal Committee said:

“First he complained of the Judge’s ‘refusal to [order disclosure of] the identity/background details of police informant/entrapper’. There was, however, simply no basis for suggesting that there had been any ‘entrapment’. Indeed, as the Court of Appeal pointed out, (applying the test which had been approved in HKSAR v Agara, the correctness of which was not challenged by the applicant) there was no evidential basis for an exceptional departure from the public interest immunity accorded to information concerning police informants. Mr Haynes’s submission that the photographs showing drugs in what he suggested were overly conspicuous locations in the flat were such as to suggest a ‘set up’, was purely subjective and speculative.”

15.Mr Haynes wishes to mount the same argument again and he is entitled to do so, subject to his duty to the court to only advance grounds of appeal which he considers reasonably arguable.

16.The objective observer is not only fair-minded, he is also informed.  We were satisfied that a fair minded observer informed of the circumstances of this applicant would not conclude that there was a real possibility that having made the comments it did in CACC 223/2014 this court would be biased in its adjudication of the present appeal.

The prosecution case

17.At around 10:10 pm on 19 March 2013, the police acting upon information, mounted a surveillance operation outside Room E, Flat A, 8/F, Kam Ling Building, 231 Nathan Road, Kowloon.  It was not until around 7 am the following day that the applicant appeared at the doorway of these premises, whereupon he was intercepted by the police officers who then conducted a search of his person. This search revealed, amongst other things, a bunch of keys which the applicant had been holding in his hand.  One of the keys was found to be the head of the key only.  The other half of this broken key, that is, the shaft of the key, was subsequently found in the lock of the metal gate[2] to the premises. 

18.On being arrested, the applicant made no response.  The police then searched Room E, Flat A and found:

(1) in the bedroom:

(a) a brown Louis Vuitton box (“the LV box”) containing two bags of dangerous drug, the subject matter of particular (i) in the count in the indictment (see paragraph 1 supra);

(b) on top of the LV box an electronic scale containing traces of cocaine, as well as a dental floss box containing four packets of dangerous drugs which formed the subject matter of particular (ii) in the count in the indictment; and

(c) next to the dental floss box were some transparent resealable plastic bags;

(2) in the living room:

(a) at the TV cabinet, a photo album[3] containing photographs of the applicant;

(b) at the wardrobe door there two photographs of the applicant;

(c) on the wall between the bedroom and the kitchen there were six photographs of the applicant; and

(3) in the kitchen:

(a) a glass containing liquid containing cocaine that is the subject matter of particular (iii) in the count in the indictment; and

(b) a stove, a clamp, a funnel, a pot (with a sieve and a piece of chopstick inside) and some test tubes which all contained traces of cocaine. 

19.A number of facts were admitted and these included, inter alia, the following:

(i) the street value of the cocaine and cocaine hydrochloride found in the flat was $2,363,175;

(ii) at all material times, the flat was sublet by someone (not the applicant) to a Mr Sandhu Reuben;

(iii) the fingerprints of the applicant were found on a mirror in the bedroom and the fingerprint of the applicant’s right ring finger was found on the LV box;

(iv) in April 2014, the applicant’s legal representative requested the prosecution to provide any recordings from “spy cameras” at or near the flat and any material CCTV recordings from the CCTV system of Kam Ling Building.  In response to that request, the prosecution stated that the police had been unable to discover any “spy cameras” and that the CCTV system of Kam Ling Building had not been functioning at the time; and

(v) the photo album containing a number of photographs was produced.  Of the other eight photographs of the applicant that were seized by the police at the scene, two of them were produced as Exhibit P34(i) and (ii).

20.At trial, the defence also suggested to the police witnesses who were present during the search that a spy camera had been installed above the door of the flat.  They said they were not aware of it, nor did they see other police officers removing a camera from the flat.

The defence case

21.The applicant elected to give evidence and called three other defence witnesses.

22.He testified that he had known Mr Reuben, the sub-lessee of the flat, for four to five years.  He said he had been to the flat in early February 2013 to install a spy camera for Mr Rueben for safety reasons.  The spy camera was connected to a router.  He had also been to the flat on other occasions for social gatherings and to clean it.  As regards the photo album found in the living room, he said he shared it with his friends.

23.At the time of his arrest, the applicant said he went to the flat at Mr Reuben’s request to mend the door lock in which a key had broken off.  He said he had no knowledge that there were dangerous drugs inside the flat until the police officers took him into it in order to search it.

24.The applicant said that when he last visited the flat on 18 March 2014 to perform some cleaning work, the spy camera that he had installed was still there but that it appeared to have been removed by someone after the flat was searched on 20 March.  He also said that when the police officers searched the flat, they disconnected the router to which the spy camera had been connected.  He could not recall whether he had checked the LV box, thereby leaving his fingerprint on it, on 18 March 2014.  He said that, throughout the search, he saw no photographs of himself displayed on the walls of the flat.  

25.The second defence witness was an employee of the management company.   He said there was no record which could show in the period covering one week prior to and one week following the offence date whether the CCTV system of the Building was operating normally or not.  He also said there was no record of any police officer coming to Kam Ling Building enquiring about the CCTV prior to 20 March 2014.

26.The third defence witness was a caretaker of Kam Ling Building.  He said there was no problem with the CCTV equipment of the building at the material time. 

27.The fourth defence witness was the sub-lessee of the flat, Mr Reuben, who confirmed in his evidence that he had asked the applicant to clean the flat on 18 March 2014 and had requested him to fix the broken lock on 20 March 2014.  He further confirmed that he had not seen any photographs of the applicant displayed in the flat on 18 March 2014 but recalled that the applicant had previously shown the photo album to others inside the flat.

28.Before and during the trial the defence made three applications to the judge.  These applications were to:

(i) seek disclosure of the identity of the police informant whose information led to the surveillance operation;

(ii) rule that there was no case to answer; and

(iii) admit into evidence the fact of the previous acquittal of the applicant of the manufacturing a dangerous drug offence.

The Perfected Grounds of Appeal

29.In his Perfected Grounds of Appeal Mr Haynes advanced the following six grounds of appeal against conviction:

(i) the judge wrongly rejected the no case to answer submission of the defence;

(ii) the judge wrongly refused to admit into evidence the fact of the applicant’s previous acquittal of the manufacturing a dangerous drug offence;

(iii) the judge wrongly refused the application to disclose the identity of the informant;

(iv) the summing-up failed to highlight the suggestion that the removal of the spy camera, either by the police or the informant, could be seen on a close examination of the photographs which depicted the flat’s living room;

(v) the judge’s direction on the police response to the availability of CCTV footage was inadequate with the consequence that it “unfairly marginalized” the defence that could be developed on the basis that the CCTV records of Kam Ling Building had been available; and

(vi) by reasons of the grounds pleaded above, there was a lurking doubt as to whether the applicant had knowledge of the dangerous drugs in question.

Discussion

The 1^st ground of appeal: no case to answer

30.Mr Haynes adopted the submissions he had made to the judge when he submitted that the applicant had no case to answer.  In essence, these were that the prosecution evidence was insufficient to establish the applicant’s possession, let alone knowledge, of the dangerous drugs in question.  In particular, he said, there was no evidence to show that (i) the door to the flat had been in a secure state before the applicant was intercepted;(ii) the applicant was the live-in tenant of the flat; and (iii) the LV box contained any dangerous drugs when the applicant’s fingerprintwas left on it.

31.Before us, he also submitted that the fact that a person was in possession of a key (or half of a key) with intent to enter the premises was not prima facie evidence of that person having knowledge of what might already be in those premises.  He emphasised that there was no evidence of control of the premises and anyone given a key to the premises, such as a handyman or cleaner, could have found themselves likewise implicated in this offence.

32.Mr Haynes argued that the only real evidence against the applicant was the presence of photos of him on the wall but he suggested that the evidence in respect of these photos being on the wall was not credible.

33.The prosecution case was a very simple one.  It was that the applicant was the occupant of the premises and as the occupant was in possession of everything contained within it that related to the dangerous drugs.  Once it was accepted that, firstly, the applicant was the occupant of the flat and that, secondly, he was in possession of the drugs and equipment in the flat, then the jury could infer he was trafficking in cocaine.  The inference that the applicant was in possession of the drugs and drug paraphernalia would flow from the fact that he was the occupant of the flat, the drugs and drug paraphernalia were readily visible in the flat and his fingerprint was found on the LV box.

34.The key finding of fact which the prosecution invited the jury to make was that the applicant was the occupant of the flat.  This finding of fact could only be reached by inference.  The applicant made no admission to being the occupant and he could not be connected to the flat through any rental documents.[4]

35.The evidence linking the applicant to the flat was:

(i) he had a key to the flat;

(ii) he was arrested in the process of entering the flat;

(iii) a photo album, which clearly belonged to him, was found in the flat;

(iv) other photos of him were affixed to a wall of the flat;

(v) his fingerprints were found on a mirror in the flat; and

(vi) his fingerprints were found on a shoe box which was located in the bedroom, a more private part of the flat as opposed to the more public area of the living room, and this shoe box was being used to store drugs and drug paraphernalia.

36.Clearly many of these pieces of evidence were contested at the close of the prosecution case, but the prosecution were entitled to say that a reasonable jury properly directed could accept these pieces of evidence and draw an appropriate inference connecting the applicant with the flat and the drugs.  The prosecution case was not entirely clear as to how the key came to break off in the lock, but it was open to the jury to find that it broke off as the applicant was turning the key in the lock whilst at the same time being physically restrained by the police in course of the arrest process.

37.The test to be applied by a court when faced with a submission of no case to answer was laid down by the Court of Appeal in Attorney General v Li Fook Shiu Ronald.[5] There the Court of Appeal said at page 13C that when a no case to answer submission is made in respect of a prosecution case which depends upon inferences being drawn from primary facts the court should ask itself:

“... could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

38.As we have indicated there are three inferences that have to be drawn if all the elements of the prosecution case are to be established.  They are that the applicant was:

(i) the occupant of the flat;

(ii) in possession of the drugs and drug paraphernalia; and

(iii) trafficking, in some form, in the dangerous drugs.

These inferences that the jury could, may or might draw, being inferences adverse to the applicant, must be capable of being regarded by a jury as the only reasonable inferences.  In Secretary for Justice v Ng Siu Lun[6] Lunn VP, in giving the judgment of the Court of Appeal, at [30] quoted with approval the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1:

“... If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

39.This resonates with the statement by this court in Li Fook Shiu Ronald when it said at page 12I that:

“... the test is not what the judge thinks the jury, and still less he, ‘must’ conclude, but what a jury ‘could, may or might’ properly conclude in the future.”

40.The third inference, the trafficking inference, flows as a matter of course from the first two inferences.  Once those inferences are drawn a conviction will be virtually inevitable.  Thus the key inferences are the first two. 

41.In support of his contention that the applicant was not proven to have occupied the flat Mr Haynes submitted that the prosecution did not adduce any real or meaningful evidence to connect the applicant to the flat, such as by DNA evidence or by proving that his clothing, shoes and toiletries were in the flat or by being able to find more items and areas where he had left his fingerprints.  But, with respect, this is not to the point.  The absence of such evidence does not undermine or contradict the inference.  The presence of such evidence may strengthen the primary facts and its absence may lessen their strength.  But, ultimately the only issue is whether those primary facts allow of the inferences to be drawn, as the only reasonable inferences, that the prosecution relies upon in order to prove its case.

42.If the jury were to find that the key broke off as the applicant was turning it in the lock, then it would follow that he had a key to the flat in his possession and was using it to gain entry to the flat.  The flat was associated with him in that there were personal items, namely the photographs of the applicant, that were not just in the flat, as with the photo album, but were used to decorate a wall of the flat.  The act of decorating premises with personal memorabilia is normally done only by occupants of the premises in order to make those premises more of a home or at least to make those premises more personal to them.  Such an act of decoration is strong evidence of occupancy.

43.We are in no doubt at all that the primary facts are capable of producing in the mind of a reasonable jury properly directed, the conclusion that the only reasonable inference is that the applicant was the occupant of the flat.  Given the way the drugs were stored in the bedroom, the presence of the applicant’s fingerprint on the drug box and the way the drugs paraphernalia were on open display in the kitchen we are likewise in no doubt that the primary facts were capable of producing in the mind of a reasonable jury properly directed a conclusion that the only reasonable inference is that the applicant was in possession of them.

44.The judge was perfectly correct to rule that there was a case for the applicant to answer. 

The 2^nd ground of appeal: the applicant’s acquittal of manufacturing

45.This application was made to the trial judge when the prosecution had finished calling all its witnesses.  Mr Haynes sought to admit into evidence by way of section 65C of the Criminal Procedure Ordinance the fact of the applicant’s previous acquittal of the manufacturing a dangerous drug charge.

46.Mr Haynes put his position to the trial judge as follows:

“The relevance is enormous, it levels the playing field, it clears away an inherent suspicion here that he was operating the kitchen, which is manufacturing.”

47.In opposing this application Mr Donald submitted that:

“... for the jury to be told he was acquitted of manufacturing, I suggest, would be prejudicial to the prosecution’s case and unfair to the prosecution because it gives the jury a wrong complexion about what took place.”

48.The judge revealed his concern were he to accede to the application.  He said:

“If the court allows this evidence to be admitted, there is at least a possibility that the jury will start to think there was a trial before, what was the trial about? Was the defendant charged with the present offence? What was the result? Of course I’ll tell them not to speculate but they come to realize something that they should not have been told.”

49.In the end, the judge, having referred to the case of Chan Ka Man v HKSAR,[7]ruled against the application.

50.In support of this ground of appeal Mr Haynes submitted that it would have been clear to the jury that the flat was being used to manufacture crack cocaine from cocaine hydrochloride.  This would have been evident from the charge, which referred to both forms of cocaine, from the implements seized from the kitchen and, finally, the presence of sodium bicarbonate.  Given the prejudicial nature of this evidence, which implied that the applicant was a manufacturer of crack cocaine, and given that the defence case was that another person was responsible for placing those items there and for engaging in any manufacturing of crack cocaine that was taking place there, it was only fair to the applicant to inform the jury that he had been acquitted of the manufacturing charge. 

51.Mr Haynes argued that in acquitting the applicant in the first trial the jury must have accepted that another person was involved in the manufacturing and, by not informing the jury in the second trial of the applicant’s acquittal of manufacturing in the first trial, the applicant was deprived of running a defence that the manufacturer and trafficker were one and the same person, probably the informant.  His ability to run such a defence was substantially weakened.

52.The reason why the jury in the first trial acquitted the applicant of the manufacturing charge is unknown.  It does not mean that jury must have accepted the existence of an another person who was the manufacturer.  That, we are satisfied, is mere speculation.  All that it means is that the jury were not persuaded, for whatever reason, of the guilt of the applicant on the manufacturing charge.  Nor did it make the presence within the flat of all the manufacturing paraphernalia irrelevant to proof of the trafficking charge.  The prosecution was entitled to rely on that evidence in proof of its trafficking charge as long as in doing so they did not seek to suggest he was involved in manufacturing.  This they were very careful to avoid.

53.The principles governing the admissibility of a previous acquittal were articulated by the Court of Final Appeal in Chan Ka Man v HKSAR[8]. Essentially, what governs the admissibility is fairness to both sides but that “coupled with fairness, was the necessity for the judge to ensure that the jury whom he was assisting did not have their minds clouded by issues which were not the issues they had to determine.  The dangers were that the jury would spend their time, not in determining what they believed to be true from the evidence they had heard and that they would be deflected from that course to a consideration of what had actually actuated the first jury to reach the conclusion it did.”[9]

54.In Chan Ka Man Lord Woolf NPJ said at paragraph 19:

“If there is a lesson to be learnt from this case, it is that trial Judges, unless there is a clear justification for taking a different course, should not allow material which is not relevant to go before a jury. The danger of allowing this to happen is that it will, without justification, make both the task of the jury and the task of the judge more difficult. It can divert the jury from their primary task of deciding whether the defendant is or is not guilty of the offences with which he is charged. An outcome that is to be avoided if possible.”

55.In the circumstances of the present case, and given the way the defence was being presented, this was a very real danger.  This danger is exacerbated by then having to disclose, in fairness to the prosecution, the charges of which the applicant was convicted and why one of those convictions was quashed on appeal.  Hence, the retrial.

56.The judge was alert to the need to treat the applicant fairly and also to his responsibility not to encumber the jury with matters that may make their task more difficult and may distract them from the real issues and may also unnecessarily complicate his duty in directing the jury.

57.We can detect no error in the judge’s reasoning and we are satisfied he was correct in refusing to admit the fact of the previous acquittal into evidence.  

The 3^rd ground of appeal: non-disclosure of the informant’s identity

58.This application took place at the second pre-trial review hearing on 11 September 2015.  The evidential basis of the application was the witness statements in the committal bundle, notably the statements of the police officers who related what they had been told at the briefing by the Detective Senior Inspector.  It was submitted that the information of the informant that was revealed at this meeting was so detailed and accurate that it suggested that the informant was familiar with both the applicant and the flat where the dangerous drugs were found.  On this basis it was argued that the informant might have had access to the flat and even have planted the dangerous drugs and drug paraphernalia in it.  Mr Haynes alleged that the apparent disappearance of the spy camera might further indicate that the informant was aware of the existence of that equipment and hence had made an effort to conceal his conduct by removing the spy camera.

59.Thus, it was argued, on the evidence, the applicant had established on the balance of probabilities that the informant knew the applicant and had access to the flat and knew of its contents.  And if that is so, Mr Haynes submitted:  

“... he is likely to have been within the sphere of this defendant’s acquaintances and therefore his identity may, may, show that he was an enemy of the defendant. It may not, because we don’t know who it is. And it’s on that basis that this application is made.”

60.In opposing this application, Mr Donald took issue with the claim that the informant had provided detailed information and argued that the description of the suspect provided by the informant did not, in fact, match the appearance of the applicant.  Furthermore, the evidence suggested that it was the applicant who was in occupation of the flat and if that was so he must be aware of who else could have access to it.  Mr Donald also submitted that the value of the dangerous drugs being so great, namely $2.5 million, negated the possibility of them having been planted.  Mr Donald concluded by asserting that the defence had not shown that the identity of the informant was necessary to demonstrate the innocence of the applicant.

61.The judge relied on the judgments of this court in HKSAR v Agara[10] and HKSAR v Lam Yat Fung Timothy[11] and refused the application determining that the defence had failed to show that the information sought was necessary to demonstrate the innocence of the applicant.

62.Before us, Mr Haynes complained that, given the lack of information of the informant who was said to have been involved in the present offence, the defence was denied the opportunity to develop a plausible defence of malicious entrapment.  Alternatively, Mr Haynes said that even if the informant’s precise identity was inadmissible, the background of the informant should have been disclosed to the defence.

63.The law has not changed since the first trial and the legal principles governing the disclosure of an informant’s identity are those set out in this court’s decision in HKSAR v Agara[12]. As we have said earlier in this judgment that decision places a burden on the person seeking disclosure to show that disclosure is necessary to establish his innocence.  He discharges this burden by reference to evidence to be adduced in the prosecution case and by calling his own evidence.  Here the application was made pre-trial and no evidence was called by the applicant.  The application was determined on what the prosecution and defence cases were expected to be. That meant there was no difference, evidentially, between this application and the one made in the first trial.

64.Adjudging the matter afresh with a mind uninfluenced by any view taken by us, or any other tribunal, on another occasion and giving the applicant’s arguments our very careful consideration, we are satisfied that the applicant has not shown, on the evidence, that the disclosure of the informer’s identity is necessary in order for the applicant to demonstrate his innocence.

The 4^th ground of appeal: direction in respect of the spy camera

65.It was the defence case that the applicant had installed a spy camera outside of the door of the flat which was connected to a router in the living room.  By this means images of the corridor leading to the door of the flat could be viewed on a monitor inside the flat.  It was the applicant’s testimony that this camera should have still been in place at the time he was arrested. 

66.Under this ground Mr Haynes complains that the judge should have reminded the jury that a close examination of the police photos showed that there was a wireless camera router on a table in the flat which was identical to the image of a router that appeared on the product packaging box for a “Wireless Camera Kit” that was lying within a cupboard.  This evidence tended to undermine the police denials of the existence of any spy camera or associated equipment in the flat and tended to establish that the police or the informant had removed wireless equipment from the flat.  Additionally this evidence supported the testimony of the applicant and so had the effect of enhancing his credibility. 

67.Mr Sean submitted that Ground 4 was devoid of merits for the reason that Mr Haynes had at the trial below extensively attacked the quality of the police’s investigation and their evidence to develop his defence that the spy camera had been improperly removed from the flat. He argued that Mr Haynes’s challenges to the prosecution case were also adequately addressed by the judge in his summing-up.

68.There is no doubt that the issue was an important element of Mr Haynes’s closing address.  He spent a lot of time commenting on it and using it to question the effectiveness of the police investigation, the shadowy presence of the police informant who he suggested may have removed the camera and the difficulty that the absence of a record from the spy camera posed to the applicant in finding independent support for his claim that he was arrested and detained prior to inserting the key into the lock of the door of the flat.  This much is apparent from the following excerpts from Mr Haynes’s closing address:

“Now, of course the defendant can’t prove that the police took away the spy-cams he’d installed. And the prosecutor - you’ll have to do a lot of cases before you hear this from the prosecutor - at one point he’s telling you, yes, there were spy-cams, they were there to warn drug traffickers if police were coming, they’d have time to flush away the things. But on the other hand, the prosecution case is there never were spy-cams. This is called trying to have it both ways.

Usually, one expects the prosecution to have a settled and sensible and evidence based view of the reality of the situation. But there’s a big problem for them because when it’s discovered, by enlargement, that there’s a newish-looking box in the bottom of the wardrobe marked ‘wireless camera kit’, what does that say? Remember, the defendant doesn’t have to prove anything beyond reasonable doubt but, on the balance of probabilities, there is a wireless camera somewhere.

It wasn’t in the box, otherwise the searcher would’ve told us. And then when on the box there’s a label depicting a router which has been left in the premises and can be seen in the other photographs, you’ve not only got the container for the wireless camera kit, you’ve got an integral part of the wireless camera kit. So really, almost on the level of proof beyond reasonable doubt. There must have been a wireless camera kit at one time.

Now, rather than suggesting the naughty policemen took away the wireless camera kit and suppressed the record of the way they really intercepted him in the corridor - it’s unattractive to have to suggest that without any direct evidence on it - it may be, of course, because these informants are pretty cunning, that the informant would need to disable that surveillance before he carried the drugs in there.

Otherwise, despite the promises of anonymity, there’s going to be a record on some machine of him doing that, so that there would be a great interest in him removing or disabling the spy-cams.  We don’t know; because the choice has been made to give him immunity and free from coming to tell us, we can’t put it to him.”

Later he said:

“And the defendant says, ‘That’s not right because they intercepted me halfway down the corridor in their rush and then they took me to the entrance and pushed me through’. That of course is not the correct textbook way of arresting somebody but that’s what he says happened. And of course he’s a bit angry about no spy-cams because he says that’s what it would have showed, and it would have showed four of them. Again, he can’t pin responsibility for the removal.”

And finally:

“And as I say, the prosecution haven’t been able to decide what to do about it. One moment they want spy-cams because they say it was for drugs they’re setting up spy-cams, and the next moment, they say there weren’t any. What are they saying? They’re in difficulty because they’re worried, as they should be, about this router and this kit.

And the answer probably is that the cunning informant has been careful not to leave pictures of himself and has disabled the system before he brings the bag of drugs in, because he didn’t bring the Louis Vuitton box, he obviously brought the big red bag with all the drug contents in it and he didn’t want to be seen doing that.”

69.That the issue was before the jury, simply from Mr Haynes’s closing address, cannot be doubted.  The only issue is whether the judge, as part of a balanced summing-up, also drew it to the jury’s attention.  We are satisfied that he did.

70.Firstly, in his summary of the evidence the judge reminded the jury what the witnesses had said on this issue and that, of course, included the evidence of the applicant. 

71.Secondly, when he directed the jury on the spy camera he did so immediately after directing them on the absence of the CCTV footage from the camera system for the Kam Ling Building in circumstances when he was clearly inviting them to treat the two pieces of “missing evidence” in the same way.  There was in fact only one CCTV camera and it was installed inside the lift.  On the absence of the CCTV footage the judge said:

“Now, the speech of Mr Haynes, defence counsel, might have given you an impression that if the evidence is available, it may go to support the defence case. Now, you may feel that the present situation may have made it more difficult for the defence to present its case. You are entitled to take this into account, but whether, and if so to what extent, it affects your decision is a matter for you. Mr Haynes had asked you to bear in mind that it was the defence who took the initiative to ask for the CCTV. But in any case there is one fundamental principle you must bear in mind, and I have been telling you this, if there is no evidence, you must not speculate if there is a CCTV record before you what will it show? You must not speculate.”

72.The judge then went on to point out to the jury that these same directions also applied to the existence or non-existence of the spy camera.  The judge said:

“Now, the same fundamental principle is what you must bear in mind in relation to the spy camera which the defendant said he had installed, no matter what findings you are to make as to the existence of the spy camera at the material time.

Now, whether or not the evidence on these two aspects will affect your assessment of the credibility of the relevant police officers is for you to consider.”

73.Thirdly, the judge ended his summing-up by addressing various points made by the prosecutor and Mr Haynes in their final addresses to the jury.  He listed out a number of matters which Mr Haynes had emphasized, amongst which was the presence of the camera kit box and the fact that the defence had requested the Kam Ling Building CCTV footage.  The judge said:

“ Now, Mr Haynes brought to your attention matters which he submitted cast a favourable light on the defence, which include:

...

(6) The existence of a camera kit box in the room as well as a router.

(7) The defence took the initiative to ask for the CCTV, which is not a matter a criminal would usually do.

Mr Haynes also ask you to take into account the investigation approach of the police in your consideration whether the police witnesses are trustworthy.  He criticised the quality of the investigation.  Now, whether you are to agree with Mr Haynes is a matter for you.  Whatever your view on this aspect will be, you may if you think appropriate, ask yourself whether, and if so to what extent, the quality of investigation will affect your assessment of the credibility of the police witnesses.  You must bear in mind that your duty is to consider the evidence available and not to guess what will be shown if further evidence is available.”

74.As can be seen from this last passage from the judge’s summing-up the judge specifically mentioned the existence of the camera kit box in the room of the flat.  Given Mr Haynes’s emphasis on this evidence and the judge’s reminder of it, we are in no doubt that the jury would have been aware of this evidence and the significance that the defence attributed to it.  But ultimately, as the judge properly directed the jury, the impact of this evidence upon their deliberations was entirely a matter for them. 

The 5^th ground of appeal: direction in respect of the CCTV

75.By Ground 5, Mr Haynes said that the judge should have reminded the jury that there was no evidence to prove the police’s hearsay statements about the CCTV system being out of order at the time, and that had the applicant been a liar, it was unlikely that he would request the CCTV film because it would only support the allegation that he lied.

76.As to the working status of the CCTV system installed in Kam Ling Building was concerned, the judge said:

“Now, CCTV. It is an Admitted Fact that subsequent to a request by the defence the prosecution informed the defendant’s legal representatives that the CCTV system for the building had not been functioning at the material time. Now, although this is an Admitted Fact, please note the wording. The admission is not that the CCTV was actually not functioning, the admission is only limited to the extent that the police had said such thing to the defence. The Admitted Fact is not evidence that the CCTV was actually not functioning. As to whether the CCTV was functioning properly, you have heard the evidence of DW2, the staff of the management company, and DW3, the caretaker, and you have also had a copy of the incidence book, a record you are entitled to take into account. Though whether the record is accurate, or truthful or not, is a matter for you.

Now, whether or not you find on the evidence that the CCTV was functioning properly is a matter for you, and whether or not this matter has any impact on your assessment of credibility of the police witnesses is also a matter for you. You will recall the evidence is that there was only one CCTV camera, it was installed inside the lift.

Now, the speech of Mr Haynes, defence counsel, might have given you an impression that if the evidence is available, it may go to support the defence case.  Now, you may feel that the present situation may have made it more difficult for the defence to present its case. You are entitled to take this into account, but whether, and if so to what extent, it affects your decision is a matter for you.  Mr Haynes had asked you to bear in mind that it was the defence who took the initiative to ask for the CCTV.  But in any case there is one fundamental principle you must bear in mind, and I have been telling you this, if there is no evidence, you must not speculate if there is a CCTV record before you what will it show?  You must not speculate.”

77.The CCTV evidence was a simple case of missing evidence of unknown content.  It is no different from that of a missing witness from whom no statement has been taken.  All that can be said of it is that, given its location, which was in proximity to the events in question, it may have made a record that was relevant to what happened on 19 and 20 March. Whether it would have been helpful to either the prosecution or the defence will never be known.

78.In this situation the judge must do two things.  He must, firstly, remind the jury not to speculate on what it might have contained and not to make any assumption as to whether its contents would have favoured either party.  This the judge did.  The second thing the judge should do is to ask the jury to consider whether the absence of the CCTV might make it more difficult for the defence to present its case.  This the judge also did.

79.However, there was one final aspect to the missing CCTV and that is whether the police were being honest in their reply that the CCTV was not functioning properly.  Their reply implied that the police had made an enquiry and had been told what they subsequently related to the defence.  This might be viewed by the jury as being contradicted by the evidence of the defence witnesses.  If they were to take such a view then there was a consequential impact upon the credibility of the police evidence.  Again the judge directed the jury to also consider this aspect of the missing CCTV footage. 

80.We cannot see what more the judge could have done and we are not persuaded that the directions he gave are in any way inadequate and would have had the marginalizing effect contended by Mr Haynes.

The 6^th ground of appeal: lurking doubt

81.Having found no merit in any of the applicant’s grounds of appeal, we do not harbour any lurking doubt about the safety of his conviction.

Conclusion

82.For these reasons we refuse the application for leave to appeal conviction.

Mr Eddie Sean SADPP and Ms Margaret Lau SPP, of the Department of Justice, for the respondent

Mr John Haynes, instructed by George Chan & Co, assigned by DLA, for the applicant