HKSAR v. Wong Ka Fai and Another
Read the full judgment text of CACC 231/2015 on BabelCite. This Court of Appeal judgment was delivered on 1 November 2016.
1. The 1 st and 2 nd applicants, to whom reference will be made by their designations at trial as the 1 st and 3 rd defendants respectively, sought leave to appeal against their convictions after trial before Zervos J and a jury of a count of conspiracy to rob, together with Fong Siu Yu (“Fong”) and other unknown persons on 4 November 2013, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Count 1). We refused the ap
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CACC 231/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 231 OF 2015 (ON APPEAL FROM HCCC NO. 266 & 354 OF 2014) ____________
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________________________ REASONS FOR JUDGMENT ________________________ Hon Lunn VP (giving the Reasons for Judgment of the Court) : 1.The 1st and 2nd applicants, to whom reference will be made by their designations at trial as the 1st and 3rd defendants respectively, sought leave to appeal against their convictions after trial before Zervos J and a jury of acount of conspiracy to rob, together with Fong Siu Yu (“Fong”) and other unknown persons on 4 November 2013, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Count 1). We refused the application of the 1st defendant and, treating the hearing of the 3rd defendant’s application as the hearing of the appeal, we allowed the appeal against conviction of the 3rd defendant and quashed his conviction on Count 1. We said that we would give our Reasons for Judgment in due course. That, we do now. 2.On arraignment the 1st defendant had pleaded not guilty to Count 1 on the indictment, but guilty to handling stolen goods on 8 November 2013, namely of 72 ‘iPhone 5S’ and 945 ‘Intel’ computer processing units, knowing or believing them to be stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210 (Count 2). Of that count, it was stipulated:
The prosecution case 3.Yang Gengjie (Mr Yang) operated a company on the Mainland dealing in electronic products. It was an admitted fact that on 4 November 2013, Mr Yang purchased a large number of iPhones and Intel computer processing units (“Intel CPU”) at various places in Hong Kong. Each iPhone had a unique reference number. At about 8:30 p.m. on 4 November 2013, Mr Yang engaged the transportation services of Power-King Transportation Company Limited (“Power-King”) to collect and transport his purchases, which were valued at over $4 million. 4.The 3rd defendant, who was the registered owner of a light goods vehicle with the registration number MW 4898, and worked as a driver for Power-King, was assigned the job. He picked up Mr Yang at Sing Yip Industrial Building in Kwun Tong, and drove him to various places in Hong Kong where they collected boxes of goods, some of which displayed the logo images of the iPhone or the word ‘iPhone’ in English and others the word ‘Intel’. During the course of collecting goods, Mr Yang replied in the affirmative to the 3rd defendant’s enquiry if the goods were mobile phones. Eventually, at around 9:20 p.m. they arrived at Sin Tat Plaza to collect more boxes. After the goods were loaded, the 3rd defendant absented himself, telling Mr Yang that he wanted to buy some food at a nearby convenience store. On his return, on Mr Yang’s instructions, they set off to return to Shing Yip Industrial Building. 5.In the vicinity of Manulife Centre, the 3rd defendant’s driving manoeuvres, namely switching from lane to lane and constantly monitoring the rear view mirror, attracted the attention of Mr Yang, who asked why he drove in that manner. Having manoeuvred the car to a stop and having remained stationary for some time, as the 3rd defendant began to drive forwards and change lane their light goods vehicle was hit from behind by another vehicle. Telling Mr Yang that they had been involved in a collision, the 3rd defendant disembarked from their vehicle. Then, two men boarded the vehicle, one of whom declared robbery and the other pressed Mr Yang’s head downwards and placed a knife against the back of his neck, after which the vehicle was driven off. Eventually, when it came to a stop, Mr Yang was pushed out into Wai Fat Road. Then, Mr Yang reported the matter to the police. 6.For his part, the 3rd defendant was observed by a witness near Manulife Centre as he disembarked from his light goods vehicle, after which he was seen to become involved in what appeared to be a fight with some men who had disembarked from another vehicle. Then, he was seen to be pushed into the other vehicle, which drove off. 7.The 3rd defendant made a report to police at Ma On Shan Police Station. Having been set ablaze, the 3rd defendant’s light goods vehicle was located by police officers at 11:30 p.m. on 4 November 2013. He assisted with the police investigation on 5 November 2013. However, on 9 November 2013 he was arrested on his return to Hong Kong from the Mainland. 8.On 8 November 2013, police officers conducting a surveillance operation at Sand Martin House, Sha Kok Estate, Sha Tin observed the 1st defendant, the 2nd defendant at trial and Fong together in a car outside the Estate. Having alighted from the car, the 2nd defendant at trial took out two carton boxes and a nylon bag from the boot of the car which he passed to Fong, who was seen to deliver them to Room SR67 in the building. Eventually, the 1st defendant and the 2nd defendant at trial went to that room, to which they were admitted by Fong. A subsequent search of the room by police officers revealed the presence of three cartons, which were found to contain 72 iPhones and 945 Intel CPUs. 9.Having travelled from Hong Kong to the Mainland on 5 November 2013, the 1st defendant returned on 7 November 2013, but he left later that day returning to Hong Kong through the Lok Ma Chau Control Point on the evening of 8 November 2013, at which time he was arrested. He was found to be in possession of a witness statement made to the police by the 3rd defendant on 5 November 2013. Other documents relating to the 3rd defendant, including a photocopy of his driver’s licence and identity card, were found in a search of the 1st defendant’s home. 10.Having been arrested by a police officer at Lo Wu Control Point at 19:16 hours on 9 November 2013, at Ta Kwu Ling Police Station shortly after 22:00 hours, and having been cautioned in respect of the robbery, the 3rd defendant replied, “I called Ah Fai. I do not know who ‘lup’ the iPhones.” A record was made in the police officer’s notebook of what was said to and by the 3rd defendant on that occasion, which record the applicant signed. Subsequently, a video record of interview after caution was conducted of the 3rd defendant at Border Headquarters between 23:58 hours on 9 November and 00:53 hours on 10 November 2013. It was the prosecution case, as reflected in his summing up,[1] that although it was not accepted that everything said by the 3rd defendant was accurate, nevertheless the jury was invited to accept his admissions of contact and dealings with the 1st defendant, Fong and others. 11.Of the undisputed evidence that there were 11 telephone calls made between telephones in the possession of the 1st and 3rd defendants in the period 8:53 to 9:45 p.m. on 4 November 2013, the prosecution invited the jury to infer the existence of a conspiracy to rob, in which both were parties and in which the 3rd defendant had imparted information in respect of the collection of goods for Mr Yang and their movements, resulting in the 3rd defendant manoeuvring the light goods vehicles so that it was in a position to be hit from behind by the other vehicle. The defence case The 1st defendant 12.The 1st defendant did not give or call evidence. However, it was his case as put in cross-examination, as the judge noted in his summing up [2], that the 3rd defendant had committed the robbery together with Fong and others and had arranged for the 1st defendant to handle the stolen goods. The 3rd defendant 13.The 3rd defendant gave evidence. He said that he had come to know the 1st defendant at the end of 2012 as a customer of a business in Sheung Shui, for which he worked, recycling waste paper. Fong was another customer. The 2nd defendant at trial worked for the 1st defendant. Having been unemployed for some time because of an injury sustained at work, the 3rd defendant, began working as a delivery driver in September 2013. In October 2013, he bought the light goods vehicle which he was driving on 4 November 2013. He accepted assignments as a delivery driver from Power-King. 14.The 3rd defendant said that at about 8:30 p.m. on 4 November 2013 he was assigned Mr Yang as a customer by Power‑King and told that he was to collect goods at his direction from various locations. They met at Shing Yip Street. First, they went to 1 Hung To Road, where goods were loaded into the vehicle. Next, he drove to Nan Fung Commercial to collect more goods. From there, he spoke to the 1st defendant by telephone and apologised for not being able to make a delivery for him. Then, they went to Sin Tat Plaza. There, he left Mr Yang whilst the latter arranged for goods to be loaded on the vehicle. For his part, he added value to his Octopus card at a nearby 7‑Eleven store. Having returned to the vehicle, he left again to buy bread. On his return, having seen that the boxes being loaded onto his vehicle bore the iPhone logo, he asked Mr Yang if he could buy an iPhone. The latter demurred, suggesting that it would be cheaper to buy one in the street. Finally, they set off to return to Shing Yip Street. 15.He denied that, whilst they were in the area of Manulife Centre, Mr Yang commented on his driving and had asked him why he was changing lanes. He did not recall having stopped the vehicle. After the collision he had alighted and had been taken away by others in a vehicle. Eventually, he was pushed out of that vehicle and he made his way to Ma On Shan Police Station. 16.The 3rd defendant said that he had travelled to the Mainland where he had met the 1st defendant, giving him the witness statement that he had made to the police. He wanted his advice on an insurance claim on the burnt light goods vehicle. 17.The 3rd defendant denied that he had planned or participated in the robbery or that he had pretended to be a victim. Out-of-court statements 18.The 3rd defendant said that, following his arrest on the evening of 9 November 2013, he was taken to a room in a police station where he was alone with the DSPC 859 and Sergeant 47339. The latter challenged him to fight and abused him in foul language. He was scared. In answer to questions posed by the Sergeant, he said that he had made various telephone calls on 4 November 2013, including to ‘Ah Fai’. He said that he knew the nature of the goods that he was delivering, namely iPhones, but he did not know who “lup” the iPhones. DSPC 859 asked him to sign a notebook in which he had been writing. He did not read them nor were the contents read to him, although he was told that they were about his conversation with the Sergeant. He signed the notebook, having being told by the Sergeant that he had better do so or “suffer a lot” and that, if he signed, he could leave. 19.Of the circumstances in which the video recording had been made a little later that evening, the 3rd defendant said that the Sergeant had told him to cooperate in the interview. His request for a blanket and food met with no response. He was denied the right to contact a lawyer or his family. 20.In those circumstances, the jury was invited to disregard his apparent adoption of the notebook entry by his signature and the accompanying pro-forma declaration and his answers in the video recorded interview. Grounds of Appeal The 1st defendant 21.Both of the grounds of appeal against conviction advanced by Mr So on behalf of the 1st defendant related to the 1st defendant’s plea of guilty to Count 2, namely of handling stolen goods. Mr So submitted that the judge erred in not leaving the alternative count of handling stolen goods (Count 2) to the jury. He contended that the prosecution had rejected the 1st defendant’s plea of guilty to Count 2 and it was for the jury to deliver a verdict on that count. The judge was wrong to direct the jury of the Indictment that, “There are three counts, but you are now only concerned with two as a result of the plea of guilty to Count 1 by the 1st defendant.” [3] Mr So relied upon section 51(4) of the Criminal Procedure Ordinance, Cap 221.[4] 22.In addition, Mr So drew to the attention of the Court authorities to support the proposition that where a defendant had pleaded guilty to a lesser offence on the same charge, the jury should be informed that the alternative count was open to them [5]. The 3rd defendant 23.By Ground 1, of the grounds of appeal against conviction advanced on behalf of the 3rd defendant, Mr Dickson Li submitted that the judge erred in not giving the jury a direction that the 3rd defendant had the right to remain silent, when inviting the jury to consider his out-of-court statement and record of interviews. The need for that direction arose from the fact that in the course of his summing up the judge had reminded the jury that, whilst it was the 3rd defendant’s case that he had been “induced, threatened and lied to in the taking of the statements”, so that the jury should not rely on what he had said, nevertheless the 3rd defendant had accepted that he had, “never made a complaint at his numerous court appearances and with the police through the CAPO.” [6] In particular, “He was asked (about?) his first court appearance on 11 November 2013. He confirmed he made no complaint and he was legally represented at the time.” [7] It was submitted that a direction was required, to avoid the jury thinking that it was incumbent upon him to make such a complaint, whereas there was no such duty.[8] 24.By Ground 2, it was submitted that by inviting the jury to have regard to the 3rd defendant’s failure to make a complaint in respect of the conduct towards him of police officers in relation to the making of his out‑of-court statements, the judge impliedly asked them to reject the 3rd defendant’s case. 25.By Ground 3, Mr Li submitted that the judge erred in directing the jury that the 3rd defendant had been charged with handling stolen goods, when it was D2 who had been so charged.[9] The respondent’s submissions The submissions of the respondent 26.In her written submissions, Ms Jasmine Ching said that the grounds of appeal advanced on behalf of the 1st defendant were misconceived. The present case was different from the factual situations described in the judgments of this Court to which Mr So referred. She submitted that Section 51(4) of the Criminal Procedure Ordinance related to alternative offences, where the defendant “is convicted on that plea of guilty without trial.” The relevant principles in respect of the procedure to be adopted were identified in the judgment of the Court of Appeal of England and Wales in R v Cole [10], which was followed by that Court subsequently in R v Read [11]. Ms Ching invited this Court to note that the distinction between the two factual situations had been noted in the judgment of the Court of Appeal of England and Wales in R v Hazeltine [12], upon which Mr So relied. (see Salmon L.J. at pages 861 F - 862 A). 27.In her oral submissions for the respondent, Ms Lai SC said that the indictment laid two counts against the 1st defendant. By Count 1, it was averred that he was a party, together with the 2nd and 3rd defendants at trial, to a conspiracy to rob. By Count 2, it was averred against the 1st defendant only that on 8 November 2013 he handled stolen goods. That count was laid in the alternative to Count 1. The 3rd defendant 28.In her oral submissions, in reply to the submissions that the judge had erred in failing to give the jury a direction as to the use to be made of the evidence of the applicant’s failure to complain of his maltreatment by police officers in the context of the making of his out‑of‑court statements, Ms Anna Lai invited the court to have regard to the other directions given by the judge. First, the Mushtaq[13]direction, approved of by the Court of Final Appeal in HKSAR v Pang Hiu San.[14] Secondly, the standard directions as to the burden and standard of proof. Thirdly, directions to the effect that if the jury rejected the defence evidence, nevertheless they had to be satisfied, on all of the evidence that the prosecution had proved its case. 29.Ms Lai submitted that the circumstances of this case were of particular relevance: the prosecution had not sought to use the evidence of the 3rd defendant’s failure to complain of maltreatment by police officers as relevant to credibility other than in the context of his out-of-court statements. In those circumstances, the other directions of the judge, to which we were referred, were sufficient. 30.Ms Lai pointed out that the issue of complaint by the 3rd defendant of police conduct was first raised in the 3rd defendant’s evidence-in-chief. He said that he complained about finding a kitchen sponge in his food. He was ignored. His requests to telephone his mother and her lawyer were ignored.[15] 31.Finally, it was submitted that the judge’s reference to the 3rd defendant as having been charged with handling stolen goods was clearly a slip of the tongue of no consequence in the overall summing up. A consideration of the submissions The 1st defendant 32.On arraignment, the 1st defendant pleaded not guilty to Count 1, but guilty to Count 2 on the indictment. The judge having adverted to that fact, Mr So confirmed that was in accordance with his instructions.[16] When the defendant was put in charge of the jury, the judge’s clerk informed them that the 1st defendant had pleaded not guilty to Count 1, but guilty to Count 2 on the indictment. In his remarks to the jury immediately thereafter, the judge said:[17]
33.At the conclusion of his opening speech for the prosecution, Mr Chau adverted to the pleas tendered by the 1st defendant:[18]
Although he addressed the jury immediately thereafter, the judge did not respond to that suggestion of Mr Chau. 34.Although, in advance of the summing up, the judge invited counsel to address him in respect of the contents of the prospective summing up, Mr So did not raise the issue of the jury being invited to return a verdict on Count 2. 35.In his closing speech, Mr Chau made no reference to Count 2 against the 1st defendant, although he did advert to the fact that it was an admitted fact that on 8 November 2013 part of the goods stolen in the robbery had been found by police officers in premises located in Sand Martin House.[19] They were the goods stipulated in the Particulars of Offence of Count 2. That building was in Sha Kok Estate, Shatin. Evidence had been adduced in the prosecution case that the 1st defendant had visited those premises that day.[20] However, at an early stage of his closing speech, Mr So raised the issue:[21]
36.Not surprisingly, the judge interrupted Mr So immediately:[22]
37.In the course of mitigation, Mr So submitted that the Court ought not to pass sentence on the 1st defendant in respect of Count 2, but he acknowledged that in sentencing the judge was entitled to have regard to the evidence that had been adduced “...about his respective role, a conspirator of the robbery and subsequently deal with the handling of stolen exhibits.” [23] 38.In the result, the judge did not impose any sentence on the 1st defendant in respect of Count 2. As Ms Lai pointed out, the judge took the same starting point for sentence of 10 years’ imprisonment for the 1st and 3rd defendants, the latter not having been indicted with handling the stolen goods. 39.Section 51(4) of the Criminal Procedure Ordinance, Cap. 221 provides that:
40.In R v Cole, the issue of the consequence of the defendant tendering a plea of guilty to one of a number of alternative, separate counts on an indictment whilst tendering pleas of not guilty to the other counts was addressed by the Court of Criminal Appeal of England and Wales. On being arraigned, the appellant pleaded not guilty to counts of conspiracy to rob (Count 1) and armed robbery (Count 2), but guilty to a count of receiving stolen goods (Count 3). The appellant stood trial three times on that indictment. At the first trial, Widgery J refused to accept the plea of guilty to Count 3 and ordered a not guilty plea to be entered. That jury could not agree on a verdict and were discharged. At the second trial Lawton J refused to accept that plea of guilty. That jury was also discharged. At the third trial, Lawton J ordered Count 3 to be severed from the indictment. Having been discharged from entering a verdict in respect of Count 1, the jury found the appellant guilty of Count 2. 41.On 27 February 1964, six men robbed the bank manager and his assistant of monies in a safe in the vault of the bank premises. Two days later the appellant paid part of the proceeds of the robbery into two banks, located nearby to the vicinity of the robbery. Wax seals used by the bank were found in the appellant’s flat, a piece of which matched a piece found outside the bank. 42.It was argued for the appellant that Widgery J had erred in refusing to accept the plea of guilty to Count 3 and in ordering that a plea of not guilty be entered. Having been found guilty of receiving the stolen goods, subsequently the appellant could not be tried for conspiracy to rob or armed robbery. Lord Parker CJ said it was contended for the appellant “...that a plea of guilty must be recorded, that once recorded it ranks as a conviction...; that the judge had no power to direct that that plea should be altered and entered as one of not guilty; and that, on the basis that the plea of guilty remained and was a conviction, it was not possible for the prosecution to proceed further and have the appellant tried for armed robbery.” [24] 43.Of the issue of when a conviction occurs, following a plea of guilty by a defendant on arraignment, Lord Parker CJ said:[25]
44.Of the appropriate procedure, where a defendant pleads to an alternative separate count on an indictment, Lord Parker CJ said:[26]
45.In R v Hazeltine [27] the Court of Appeal of England and Wales allowed an appeal against the imposition of a sentence of 9 months’ imprisonment on the appellant for the offence of unlawful wounding, contrary to section 20 of the Offences against the Person Act, 1861. On arraignment on a count of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Act, the appellant tendered a plea of not guilty to the count, but a plea of guilty to the offence contrary to section 20 of the Act, it being an offence of which he could lawfully be convicted. He did so pursuant to section 39(1) of the Criminal Justice Administration Act, 1914.[28] However, the prosecution refused to accept that plea. At the conclusion of the trial, the jury found the appellant not guilty of the offence contrary to section 18. Nevertheless, the judge proceeded to sentence for the offence contrary to section 20. 46.In the judgment of the Court Salmon LJ, as Lord Salmon was then, said that the statutory provision had been introduced to enable a defendant to plead guilty to the lesser alternative offence of which a jury was able to find him guilty. Nevertheless, he went on to say:[29]
47.He noted that the position where the indictment contained two separate counts was different:[30]
48.The judgment of this Court in HKSAR v Lee Wai Keung [31], on which Mr So relies, serves to confirm the dicta cited above from Hazeltine, to the effect that when the prosecution decline to accept a plea tendered to an alternative lesser offence to the single count in the indictment, the plea was withdrawn and treated as a nullity. In that case, the applicant pleaded not guilty to the charge of unlawful trafficking in dangerous drugs but pleaded guilty to having been in possession of those dangerous drugs. The prosecution did not accept the plea and the trial proceeded on the single count of unlawful trafficking.[32] 49.In her summing up, the judge did not direct the jury that it was open to them to convict the applicant on the lesser alternative offence of unlawful possession of the dangerous drugs. This court found that the judge’s failure to do so was a misdirection. She was persuaded to do so by counsel for the applicant. Of those circumstances, in the judgment of this court Hartman JA said:[33]
Conclusion 50.There is no merit in the grounds of appeal advanced on behalf of the 1st defendant. The 3rd defendant The 3rd defendant’s out-of-court statements 51.As noted earlier, it was the prosecution case that, having been arrested and cautioned in respect of the robbery, the 3rd defendant replied, “I called Ah Fai. I do not know who ‘lup’ the iPhones.” As the judge reminded the jury, ‘lup’ was a slang term for robbery.[34] In his subsequent video recorded interview, the 3rd defendant explained how he came to be driving the vehicle in which Mr Yang had been robbed and how events had unfolded. He spoke of his contact with others that evening. He said that he had been assigned by Power-King to provide transportation services for Mr Yang on the evening of 9 November 2013, at his request they drove to Sin Tat Plaza, Hung To Road, and then E-Max in Kwun Tong, before going to Sin Tat Plaza in Mong Kok. Goods were loaded onto the vehicle at each of those places. Then, they drove towards Shing Yip Street. On the way a collision occurred, when his vehicle was hit from behind by another vehicle. On disembarking he was attacked and, when he regained consciousness, he found himself in a motorcar with several men. When he was permitted to disembark, he made a report to the police. 52.The 3rd defendant denied when asked separately and in sequence knowing the kind of goods that were loaded onto the vehicle at those places. At the end of the interview, when the question was posed, “...you picked up the victim to collect goods. Well, do you know what the goods were?”, he answered in the negative three times. Then he said, “There seemed to be a picture of iPhone.” He went on to say that he had noticed that only in the journey to Sin Tat Plaza. 53.When asked if he had called anyone, the 3rd defendant said that on the way towards Shing Yip he had called his friend Man Chai, also known as Ah Fai. They chatted for two or three minutes, but he did not remember about what they had talked. Then, the collision occurred. When told that the police officers had found a copy of the 3rd defendant’s witness statement in the possession of the 1st defendant on his arrest for the robbery, the 3rd defendant explained that he had given it to the 1st defendant to fax to a motor trading company. Similarly, when told that copies of his identity card and driving licence had been found at the 1st defendant home, the 3rd defendant explained that he had bought a car for him. The issue 54.Issue was taken by the 3rd defendant as to the circumstances in which the out-of-court statements were made. He testified of being threatened, oppressed and the subject of inducements. It was the prosecution case that they were made voluntarily, absent oppression or inducement. 55.In their evidence, the various police officers who dealt with the 3rd defendant from the time of his arrest at the Immigration office at Lo Wu at 19:16 hours on 9 November 2013 until the conclusion of the video record of interview at 00:53 hours on 10 November 2013, and indeed thereafter, all denied that he had been threatened, made the subject of oppressive behaviour or induced to assist the police officers.[35] Of the approach that the prosecution invited the jury to take to the statements, the judge said:[36]
56.Of the 3rd defendant’s case, the judge said:[37]
57.The judge directed the jury that two issues arose in those circumstances. First, did the 3rd defendant make the statements? Secondly, were the statements true? The directions that the judge gave thereafter accorded with the Specimen Directions of the Judicial Institute. In addressing the second issue, the judge said:[38]
58.Then, the judge reminded the jury of the 3rd defendant’s evidence in that respect:[39]
60.Finally, the judge concluded by noting that some of what the applicant said in the out-of-court statements was pointed at to demonstrate inconsistency with what he had said in evidence, suggesting, “That is a matter that would go to his credibility.” [41] Absence of complaints by the 3rd defendant of his maltreatment by police officers 61.In the course of cross-examination of the 3rd defendant by counsel for the prosecution, the issue of the absence of any complaints to any police officer and to the courts of his maltreatment by the police officers at the time at which he was questioned by them in respect of the offence, was canvassed:[42]
62.Then, counsel for the prosecution cross-examined the 3rd defendant in respect of his failure to complain to the courts of his maltreatment by police officers:[43]
63.Mr Harris SC, who appeared on behalf of the 3rd defendant at the hearing of 1 November 2016 only, acknowledged that no objection was taken on behalf of the 3rd defendant to that cross-examination. However, the defence case having closed, in the absence of the jury the judge made a general invitation to counsel to raise issues in relation to the prospective summing up. For her part, Ms Yip raised concerns that in cross-examination of the 3rd defendant the prosecution were “... stressing on the fact that on the day when he (was) first brought up to the Magistrates’ Court he was using the same lawyer as D1 and that...seems to suggest that they must be a party...” [44] For his part, the judge noted that the context of that evidence relevant to the 3rd defendant was “...whether or not he made any complaint.” [45] Ms Yip did not respond directly to the judge’s observation, but merely responded affirmatively to the judge’s enquiry that she sought a direction to the jury “that they should not read anything into the fact that they have the same representation.” In the summing up, the judge directed the jury that, having regard to their common representation at their first appearance in court, they“...should read nothing adverse into” the 3rd defendant having the same legal representation as the 1st defendant.[46] 64.Counsel for the prosecution addressed the issue, of the evidence that no complaint had been made by or on behalf of the 3rd defendant of maltreatment by police officers, in his closing speech to the jury:[47]
65.In her closing speech for the 3rd defendant, Ms Yip also addressed the matter. She said:[48]
66.For his part, the judge reminded the jury of the issue:[49]
67.The judge gave the jury no direction, nor was he asked to do so by counsel, as to how they were to approach the evidence and submissions of the 3rd defendant’s failure to complain about his maltreatment by police officers at the time of the making of the out‑of‑court statements. More particularly, he gave no directions as to how the jury was to approach that evidence and submissions in the event that they determined that the 3rd defendant’s answers may have been obtained in the circumstances about which he testified. 68.In HKSAR v Lam Sze Nga [50], on the application of the prosecution against the order of this court quashing the respondent’s conviction, the Court of Final Appeal addressed the issue of the ambit of permissible cross-examination of a defendant and the requisite directions to be given to the jury in circumstances where it was not common ground between the parties that the defendant had availed himself of the right to silence. It was the prosecution case that, after dangerous drugs and the paraphernalia for packaging dangerous drugs had been found in the presence of the defendant at her home on 3 May 2002, she had made an oral admission “You people found it upon search. Caught red-handed. Nothing to say”, the written record of which the defendant had signed subsequently. Further, that in a video recorded interview the defendant had admitted knowledge that the substance was Ice, which she had obtained from another person who had taught her to package the Ice. 69.In her testimony, the defendant denied that the dangerous drugs had been found in her home. Rather, she had been framed by the police. She denied making the oral statement and signing the written record of that statement at her home. Although she had signed that record at the police station, she only did so because she was told that she would be released on bail if she cooperated. When she signed that record, she was not aware of its contents. She was coerced and induced into participating in the video recorded interview, the contents of which were not true. 70.Subsequent to being charged, the defendant appeared on occasions in the Magistracy represented by a Duty Lawyer. However, it was not until 2 September 2002 that she first complained, in a letter to ICAC, of the conduct of the police officers. The defendant was subjected to extensive cross-examination in respect of her failure to complain for some four months. Of her failure to complain to the Duty Officer at the police station, she said that she did not know that she could do so. She was scared. She accepted that did not complain to the magistrate before whom she appeared two days later, even though she was legally represented. She did not know her rights. She made no complaint for some four months because she was tired and only lodged a complaint when asked by a fellow inmate of Tai Lam Correctional Centre why she had not complained. 71.In the judgment of Sir Noel Power NPJ in the Court of Final Appeal, with whom the other judges agreed, the issue of the permissibility of cross-examination of the defendant on her failure to complain was addressed:[51]
72.Then, Sir Noel Power said that, in directing the jury in respect of the issue of the respondent’s failure to complain, having regard to the defendant’s explanations in testimony, “...the judge simply told the jury that it was “entirely up to” them whether they accepted that explanation or not.” Of the inadequacy of that direction, Sir Noel Power said:[52]
73.Following the judgment of the Court of Final Appeal, affirming the Court of Appeal’s orders that the respondent’s conviction be quashed and that she be retried, the respondent was retried and convicted again. On her appeal against that conviction, this Court quashed the conviction and ordered another retrial. The appellant testified at trial that the police officers had framed her, planting the dangerous drugs in her home. At the retrial the post-recorded record of the oral statement made by the applicant on arrest having been cautioned and the video recorded interview were ruled inadmissible, but the oral statement, “You people found it upon search. Caught red-handed. Nothing to say.” was ruled admissible.[53] The applicant denied having made an oral statement. 74.In acknowledging that she had not complained to the Duty Officer at the police station of that conduct, the applicant said she did not know that she could do that. Further, she acknowledged that, although she was legally represented, no complaint had been made to the magistrate before whom she appeared two days later. When she complained to her mother that she had been framed, she had been told merely to be “good inside”. She made her complaint to ICAC, some four months after having been arrested, only after being asked by a fellow inmate why she had made no complaint. 75.In the judgment of Yuen JA, with whom the other judges agreed, it was noted that in her summing up the judge had directed the jury in respect of the alleged oral statement of the applicant “...that if they found that she had not made that statement, they should not use that fact (that she had not made a statement) against her or infer guilt.” [54] Of the issue that arose, Yuen JA said it was “...how the Judge should have dealt with the evidence of the lack of complaint to the authorities for four months.” 76.In her most helpful analysis of the effect of the judgment of Sir Noel Power in the Court of Final Appeal in HKSAR v Lam Sze Nga, Yuen JA said:[55]
77.Earlier in her judgment, Yuen JA had explained that the phrases “Guilt Use” and “Credibility Use” were the phrases she used to describe the analysis of Mortimer NPJ in his judgment in the Court of Final Appeal in Lee Fuk Hing v HKSAR [56] of the effect of cross-examination of the appellant of his failure to disclose his defence until trial:
78.In applying that analysis to the evidence in the applicant’s case, in particular in respect of the alleged oral admission, Yuen JA said:[57]
79.Having noted that the judge did not give the direction to which she had referred in that paragraph, Yuen JA said that she would allow the appeal and set aside the appellant’s conviction. 80.There is no dispute that in the directions that the judge did give the jury as to their approach to the issues arising in respect of the alleged statements made by the applicant, he did not direct them that, if they determined that the applicant’s testimony may be true in respect of the making of the oral statement on his arrest, his acknowledgement of that statement by his appending his signature on the written record of it and his participation in the video recorded interview, they must not draw inferences adverse to the applicant from his failure to complain to the Duty Officer in the police station or to the magistrate in the Magistracy. For her part, with her characteristic candour, Ms Lai accepted that the non-direction was a misdirection, but she submitted that, having regard to all the other directions of the judge, it was not material. 81.We are satisfied that Ms Lai was correct to concede that the non-direction was a misdirection. With respect to the judge, he fell into error. However, he did not receive the assistance that he was entitled to expect from counsel, neither of whom made any submission on the issue or referred him to any of the relevant authorities. For its part, the Judicial Institute may wish to consider drawing the attention of judges in the Specimen Directions specifically to the necessity of a jury receiving such a direction in the circumstances obtaining in this case. Proviso 82.Clearly, the primary effect of the cross-examination of the 3rd defendant in respect of his failure to complain of his maltreatment by the police went to his credibility. As noted earlier, the suggestion made to the 3rd defendant in cross-examination by counsel for the prosecution was that the alleged misconduct had not happened. He was lying． 83.The fact that the jury convicted the 3rd defendant on Count 1 did not necessarily mean that they had rejected the possibility that the 3rd defendant’s account may be true in respect of the circumstances in which the out-of-court statements were made. As Ms Lai pointed out, the prosecution’s reliance on the 3rd defendant’s out-of-court statements was limited, in effect to his statements of being acquainted with the 1st defendant and Fong Siu Yu and his admission of having been in contact with the 1st defendant by mobile telephone whilst in the company of Mr Yang. As the judge noted, the prosecution pointed to the 3rd defendant’s statement of having made one or two telephone calls to the mobile phones of the 1st defendant, whilst in the course of collecting the mobile telephones for Mr Yang, as being incorrect and inconsistent with the telephone records of the mobile phones of the 1st and 3rd defendants adduced into evidence by the admitted facts. 84.As the judge noted, the prosecution relied on circumstantial evidence in proof of their case against the 3rd defendant on that count, namely:[58]
85.Clearly relevant to the jury’s consideration of those matters was their determination of the credibility of the applicant’s explanations relevant to those issues in his out-of-court statements and in his evidence. 86.Of course, as noted earlier, the jury ought to have been directed that, if they determined that the 3rd defendant’s evidence may have been true as to the circumstances in which he made the out-of-court statements, then they must disregard entirely the evidence of his failure to complain about the maltreatment of the police officers. No doubt, and understandably, without such a direction the jury would have had regard to that evidence in their approach to their determination of the credibility of the 3rd defendant’s testimony and his out-of-court statements. However, that approach was impermissible. In those circumstances, clearly, it is not appropriate to apply the proviso. Conclusion 87.In the result, for the reasons we have given, we refused the application of the 1st defendant to appeal against his conviction on Count 1. Treating the hearing of the 3rd defendant’s application for leave to appeal against conviction on Count 1 as the hearing of the appeal, we allowed the appeal and quashed the conviction. Re-trial 88.Mr Harris did not oppose Ms Lai’s application that the Court order a retrial of the 3rd defendant. We ordered that the 3rd defendant be retried before another judge on a fresh indictment on Count 1, that the prosecution file that indictment with the Court within 14 days hereof and that the matter be listed before the Listing Judge for the fixing of trial dates within 28 days hereof. Costs 89.Ms Lai not having opposed Mr Harris’s application for the cost of the appeal, we made such an order in favour of the 3rd defendant, with a certificate for two counsel.
Ms Anna Lai, SC, DDPP(Ag.) (On 26 Oct & 1 Nov 2016 only) and Ms Jasmine Ching, SPP, of the Department of Justice, for the respondent Mr Alan So, instructed by M.K. Lam & Co., assigned by Director of Legal Aid, for the 1stapplicant Mr Graham Harris, SC (On 1 Nov 2016 only), Mr Dickson S.P. Li and Mr Billy Yau, instructed by Eli K.K. Tsui & Co., for the 2nd applicant [1] Summing up, page 72 N-R. [2] Summing up, page 95 J-N. [3] Summing Up, Appeal Bundle, page 32 F-G. [4] “ (4) Where a person arraigned on an indictment pleads not guilty of an offence charged in the indictment but guilty of some other offence of which he might be found guilty on that charge, and he is convicted on that plea of guilty without trial for the offence of which he has pleaded not guilty then, whether or not the 2 offences are separately charged in distinct counts, his conviction of the one offence shall be an acquittal of the other.” [5] HKSAR v Lee Wai Keung [2012] 1 HKLRD 663; R v Yeardley [2000] 2 WLR 366. [6] Summing up, page 92 I-J. [7] Summing up, page 92 N-P. [8] HKSAR v Lam Sze-nga, Josephine [2007] 2 HKRLD 75. [9] Summing up, Appeal Bundle, page 41 J-O :
[10] R v Cole [1965] 2 QB 388. [11] R v Read [2014] EWCA Crim. 687. [12] R v Hazeltine [1967] 2 QB 957 (see Salmon L.J. at pages 861 F - 862 A). [13] R v Mushtaq [2005] 2 Cr App R 32 (House of Lords). [14] HKSAR v Pang Hiu San (2014) 17 HKCFAR 545. [15] Appeal Bundle, page 339-37 to 339-39. [16] Appeal Bundle, page 287-2 U. [17] Appeal Bundle, page 287-7 J-M. [18] Appeal Bundle, page 332 D-G. [19] Appeal Bundle, page 294-5 K-L: Admitted Facts; Appeal Bundle, pages 14-16. [20] Summing Up, pages 66 L - 67 E. [21] Appeal Bundle, pages 296 P - 297 A. [22] Appeal Bundle, page 297 H-U. [23] Appeal Bundle, page 317 F. [24] R v Cole, page 393 D-E. [25] R v Cole, page 394 E-F. [26] R v Cole, pages 394 G - 395 B. [27] R v Hazeltine [1967] 2 QB 857. [28] “Where a prisoner is arraigned on an indictment for any offence, and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence.” [29] R v Hazeltine, page 861 D-F. [30] R v Hazeltine, pages 861 F - 862 A. [31] HKSAR v Lee Wai Keung[2012] 1 HKLRD 663. [32] HKSAR v Lee Wai Keung, paragraph 4. [33] HKSAR v Lee Wai Keung, paragraph 18. [34] Summing Up, page 74 C-D. [35] Summing up, pages 53 F - 64 C. [36] Summing up, page 72 O-R [37] Summing up, page 72 R-T. [38] Summing up, page 73 D-I. [39] Summing up, page 73 I-L. [40] Summing up, page 73 L-R. [41] Summing up, page 74 A. [42] Appeal Bundle, page 339-104 B-K. [43] Appeal Bundle, page 339-107 N to 339-108 D. [44] Appeal Bundle, page 300-32 F-G. [45] Appeal Bundle, page 300-32 S. [46] Summing up, page 92 P-R. [47] Appeal Bundle, page 292 H-N. [48] Appeal Bundle, page 300-26 T to 300-27 E. [49] Summing up, page 92 K-P. [50] HKSAR v Lam Sze Nga (2006) 9 HKCFAR190. [51] HKSAR v Lam Sze Nga, paragraphs 26-7. [52] HKSAR v Lam Sze Nga, paragraph 28. [53] HKSAR v Lam Sze Nga [2007] 2 HKLRD 75, paragraph 40. [54] HKSAR v Lam Sze Nga, paragraph 17. [55] HKSAR v Lam Sze Nga, paragraphs 46-7. [56] Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at paragraph 33. [57] HKSAR v Lam Sze Nga, paragraph 53. [58] Summing Up, pages 40 N - 41 F. |
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