HKSAR v. Lo Shing Lok

CACC 5/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 5 OF 2015

(ON APPEAL FROM HCCC 372 OF 2014)

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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 23 December 2014 the applicant was convicted after trial before Deputy High Court Judge Woo (“the judge”) and a jury of a single count of trafficking in a dangerous drug, namely, 1.22 kilogrammes of a powder containing 1 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On the same day he was sentenced by the judge to 21 years and 6 months’ imprisonment.

2.On 6 January 2015 the applicant applied for leave to appeal against conviction.  The matter first came on for hearing on 4 December 2015 when it was adjourned at the request of the applicant so that his counsel could pursue a line of enquiry.  On 21 July 2016 the appeal came on for hearing again but in response to matters ventilated by the court it became apparent to both parties that transcript of the evidence at trial would need to be obtained and so the appeal was further adjourned. 

3.At the conclusion of the hearing on 6 December 2016 we reserved our judgment and said we would hand it down at a later date.  This we now do. 

The prosecution case

4.The prosecution case was that on 1 November 2013 the applicant was seen by two police officers carrying a black plastic bag and walking towards the concourse of Mong Kok East MTR station.  He was observed to be looking around nervously.  The applicant went to the platform of the railway station where he met and talked to his friend Wong Fuk Yin (“Wong”).  Together, they boarded a train travelling to Hung Hom and the police officers followed them.  The police officers were DSPC 52335 Lai Kwok Wai (“PW1”) and DSPC 33644 Kwong Po Yuen (“PW3”).

5.At Hung Hom MTR station the applicant and Wong got off the train and boarded another train travelling on the West Rail Line in the direction of Tuen Mun.  They alighted from this train at Yuen Long MTR station.

6.When the applicant and Wong got off the train at Yuen Long MTR station, the two police officers intercepted them at the platform, revealed their identities to them and demanded a search of the black plastic bag that was then being carried by the applicant.  PW1 then searched the bag and found in it a blue box in which there were three photo albums containing a total of forty-one laminated photographs. 

7.Suspecting that dangerous drugs were contained in the laminated photos, this officer, PW1, then arrested and cautioned the applicant.  This took place at 1:30 pm and in response the applicant was alleged to have said:

“I only carried the drug cocaine to customers for somebody. I have not yet been paid. It has nothing to do with my friend, Wong Fuk-yin.”

8.It was subsequently determined by the Government Chemist, whose statement was read under section 65B of the Criminal Procedure Ordinance, Cap 221, that the cocaine was impregnated in the tissue papers inserted between the photographs. 

9.The applicant and Wong were brought to Yuen Long Police Station and at 2:41 pm PW1 wrote a post-record of the applicant’s response to caution in his notebook, against which the applicant signed. 

10.Later the same day the applicant and Wong were taken to the Narcotics Bureau of Police Headquarters in order for PW1 to conduct a video record of interview with the applicant.  Wong was taken to Room 1743, a video record room, and the applicant to a conference room.  PW1 said that when the applicant was later interviewed the video interview took place in Room 1740. PW1 testified there were three video record rooms on the 17^th floor of Police Headquarters.  

11.It was the evidence of all police officers, other than the exhibits officer, that no video interview room was available and this was the reason the applicant was taken to a conference room where he remained for 1 hour 25 minutes and during this time he was given a meal. 

12.The evidence of the exhibits officer, SGT 53051 Kwok Kin Fai (“PW4”), was relied on very heavily by the applicant to show that there was no legitimate reason to delay in conducting the applicant’s video interview.  The key part of his evidence was as follows:

“Q. Now, you know when you first arrived back to the police headquarters the two video record interview rooms – as stated by you – were they occupied at that time?

A. No.

Q. They were vacant, right? The two video interview rooms were vacant when the whole party and the two arrested persons first arrived?

A. That’s right.

... ...

Q. And then you knew, as a fact, that my client, the defendant was kept in this conference room and guarded by DPC 52335 all the way until about 5.30 pm when he was taken out and went into this video recorded interview room to commence the interview at 1739 hours the same day, right?

A. Yes.

Q. And then you knew as a fact that from the time when the defendant was kept in this conference room and until the time he was taken to this video recorded room for interview, this very video recorded room was vacant, right?

A. I think so.”

13.At 5:39 pm, the video record of interview of the applicantcommenced and it lasted 38 minutes, concluding at 6:17 pm.  In this video interview the applicant said that he came to know a friend called Ah Chun at a ball court 3-4 months previously.  The previous day, 31 October 2013, he again saw Ah Chun at the ball court at about 8:30 pm and he asked Ah Chun if there was a job he was able to recommend to him.  Ah Chun said there was and he asked the applicant to go to the 7-Eleven Store and buy a phone card.  The applicant did so and returned to Ah Chun who then rang a person and gave him the number of the applicant’s newly bought pre‑paid SIM card.  Ah Chun told the applicant that the person to whom he had just spoken would call the applicant that night. 

14.The applicant said that he received a call at 11:30 that night and was offered a job. When the applicant was asked what the job was the person on the phone said: “Go and carry dangerous drugs to customers for me, and the dangerous drugs are cocaine.”  This person then arranged for the applicant to wait at Mong Kok MTR station the following day, the 1^st of November, between 12:30 pm and 1 pm. 

15.The applicant said he arrived at Mong Kok MTR station at 12:30 pm and 5 minutes later the same person called him and said that another person would call him and that person would hand over the dangerous drugs to him.  The applicant said he did in fact receive another call and arranged to wait for this person at the exit of the Mong Kok MTR station near the Grand Century Place shopping complex.  Three minutes later he met this person and was given a black plastic bag containing a file‑like object.  The applicant said he then called the boss who had offered him the job and was instructed by him to take the black plastic bag to Yuen Long.  He did so and was arrested by police at Yuen Long MTR station.  The applicant said he had been promised $700 for delivering the drugs but would not receive it until the delivery was completed. 

16.The applicantwas asked about his friend, Wong, and he said that this person had no knowledge of the dangerous drugs and was simply keeping him, the applicant, company. 

17.After the video interview was completed the applicant was taken back to Yuen Long Police Station.  Around 2 am on 2 November he was seen by a lawyer after which he made a complaint of police assault to the Duty Officer but this complaint was confined to PW1 assaulting him, once only, in the disabled toilet at Yuen Long MTR station and made no mention of having been assaulted at Police Headquarters prior to the commencement of the video record of interview. 

18.On his first appearance in court later the same day his lawyer made the same complaint to the magistrate, again alleging only one occasion of an assault whilst in the disabled toilet.  His lawyer omitted any reference to an assault at Police Headquarters prior to the video interview and only claimed that there had been threats and inducements at Police Headquarters which had resulted in the applicant admitting the offence. 

19.On a subsequent occasion the applicant made a complaint to the Complaints Against Police Office (“CAPO”).  This complaint was subsequently withdrawn by the applicant at the time he was interviewed by the CAPO officer.  This was on 13 November 2013 and in his CAPO statement the applicant said:

“I withdraw my complaint because I have decided not to pursue the matter. I will inform the judge about the complaint if I consider it necessary.”

The defence case

20.The applicant’s case was that he was at home on 1 November 2013 when he received a call from Wong Fuk Yin, a friend whom he had known for six to seven years, who asked him to join him to have fun together.  He received this call around 9:30 am and arranged to meet Wong at 10:30 am at the Broadway Cinema in Mongkok.  After meeting up with Wong they had breakfast together and then strolled around. Whilst doing so Wong received a call from a friend who asked for his assistance in bringing something to Yuen Long.  Wong agreed and asked the applicant to accompany him.  They waited for Wong’s friend at Mongkok Centre and at 12:15 pm this person appeared carrying a black plastic bag which he asked Wong to deliver urgently to a person at Yuen Long. 

21.At Mong Kok MTR station the applicant separated briefly from Wong when the applicant went to top up his Octopus card.  Wong entered the MTR on his own and the applicant later joined him on the station platform. 

22.The applicant claimed he did not know that the bag contained a dangerous drug.  He said he only came to be in possession of the bag when he was asked by his friend Wong to carry it when the latter had to use “Whatsapp” and he had looked into the bag and seen a blue box together with albums of photographs and he had no suspicion that there was a dangerous drug inside the albums.  When travelling on the train from Mong Kok to Hung Hom the applicant said he held the bag for several minutes and from Hung Hom to Yuen Long for 10 odd minutes.  When the train reached Yuen Long MTR station, it so happened that the applicant was asked by Wong to carry the bag again and it was at this time that he was arrested by the police. 

23.The applicant accepted that at the time the police intercepted him, PW1 told the applicant that he suspected him of having stolen somebody’s wallet and he and PW3 took the applicant to the disabled toilet where they conducted a search of his person. After having searched the applicant, PW1 asked him what was in the bag and when the applicant said it contained a blue box containing some photos PW1 said it was dangerous drugs and punched the applicant several times on his chest.  When the applicant maintained that it was just a photo album, PW1 again punched him several times on the chest.  The applicant said that whilst at the train station he was never cautioned for trafficking in dangerous drugs.  

24.In respect of his admissions, the applicant alleged that the police fabricated the response to caution and he only signed the post-record of it because he was forced to do so by actual assaults, and the threats of further assaults, by PW1.  He said he had also been offered the inducement that if he cooperated, the police would release his friend, Wong.  However, the thrust of his evidence was that he agreed to do whatever the police required of him out of fear of further assaults. 

25.At the Narcotics Bureau at Police Headquarters the applicant asked, and was allowed, to use the toilet.  He claimed that whilst in the toilet PW1 told him he had to make a statement and, when he refused to do so, PW1 hit him on the chest several times. He was then taken to a conference room and fed.  Whilst he was eating his meal PW1 coerced him into memorizing the points he had to relate in the video interview that would later be conducted.  He said that none of the details relating to how he came to be in possession of the dangerous drugs were true and he simply related what PW1 had told him to say. 

26.The applicant explained that the reason he made a complaint to the Duty Officer of Yuen Long Police Station only after seeing his lawyer at 2 am on 2 November 2013 was because he dared not make a complaint to the Duty Officer earlier as PW1, the police officer who had assaulted him, was then present.  The applicant accepted that the Duty Officer made no record of him having been assaulted or induced at Police Headquarters prior to the video record of interview being conducted.  He explained that he mentioned what had happened at Police Headquarters to the Duty Officer but the Duty Officer told him to save the details for the CAPO officer.  On hearing this the applicant then told the Duty Officer to just write down his allegation of being assaulted in the disabled toilet at the Yuen Long MTR station.  He also accepted that it was only when testifying in court that he mentioned he had been assaulted twice whilst in the disabled toilet at Yuen Long MTR station. 

27.In respect of his CAPO complaint, the applicantsaid he had told CAPO officers when he was in Pik Uk Prison about the assaults in the Narcotics Bureau, but that the CAPO officers persuaded him to withdraw the complaint and did not record down his allegation of the assaults.  He said he was persuaded to withdraw his complaint because the CAPO officer said to him that “there were no superficial injuries in my medical report, it’s hard to prove that I was really assaulted, and that the threats I talk about, there is no proof for it.”

The grounds of appeal

28.The applicant filed an Amended Perfected Grounds of Appeal on 15 November 2016 in which he relied on the following grounds:

(i) the judge erred in deciding to leave to the jury the alternative verdict of having in his possession a dangerous drug[1], particularly without assisting the jury by providing relevant examples; and

(ii) the judge’s summing-up was “unbalanced” and as a consequence the applicant’s conviction was rendered unsafe and/or unsatisfactory. 

29.In respect of the first ground of appeal Mr McGowan, for the applicant, submitted that the judge erred in giving the direction on the alternative verdict of possession of dangerous drugs without any factual example in the summing-up to assist the jury in understanding the distinction between the two verdicts.  This, it was argued, created the potential to confuse the jury and had the effect of weakening the thrust of the defence case.  It was submitted that if the applicant knew of the presence of drugs in the bag, and if he held the bag in order to assist Wong, then the applicant was surely trafficking; and if the judge was of the view that the factual scenario he had postulated could or would amount to mere “possession” he should have provided the jury with an example to assist them in their deliberations and their fact finding. 

30.In support of the ground that the judge’s summing-up was unbalanced, Mr McGowan submitted that the overall “tone” of the comments of the judge was akin to a closing speech for the prosecution which concentrated on the weaknesses in the defence case with the judge engaging in a step-by-step dismantling of the defence submissions.  The applicant stressed that the judge did not engage in a similar exercise with the prosecution case, thus causing the summing-up to be “unbalanced”. 

31.As an example of where the judge’s comments took on such a tone Mr McGowan referred to occasions where the judge made repeated use of the expression “...is it at all possible...” when referring to that part the defence case which alleged a police conspiracy.[2]

32.Another example occurred, it was claimed, when the judge made a sarcastic comment when referring to the defence case that the applicant was only in possession of the bag on a few occasions when Wong needed his hands to be free in order to use his phone. 

33.Mr McGowan relied on the cases of HKSAR v Yeung Chor Ming[3]and HKSAR v Umali[4]for the legal principle that the comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts or that the judge was making another speech for the prosecution.  He also relied on the case of HKSAR v Henao Torres Oscar Oswaldo[5], where the trial judge’s detailed analysis of the defence case was described as constituting a point-by-point demolition of the defence case, and which gave the summing-up a decidedly prosecutorial air. 

34.Mr McGowan also referred to occasions where the judge inaccurately described the defence case and then made comments implicitly or explicitly critical of that misportrayed case.  Mr McGowan relied on what was said by Chan PJ in Lin Ping Keung v HKSAR[6] at page 60 E-F (paragraph 27):

“If a trial judge chooses to make adverse comments on the defence, it is important that the facts on which comments are based are correctly stated.”

35.One example on which he relied occurred when the judge said that the defence alleged that there was a police conspiracy whose purpose was to fabricate a case against the applicant and to exonerate Wong.  Mr McGowan submitted that this was wrong and that the defence never alleged that there was such a conspiracy behind PW1’s conduct.

36.Another example was when the judge queried the significance of whether the applicant was kept in the conference or the video interview room.  The defence case was that the claim by PW1 that a video interview room was unavailable was a lie and that this lie was told in order to explain why the applicant was taken to the conference room.  If a video interview room was available, as stated by PW4, then there was no need to delay the interview of the applicant, unless it was, as the applicant claimed, in order to prepare him for what he was required to later say when interviewed.  All this was relevant to the credibility of PW1 and of the applicant’s allegations as to what had occurred in the conference room.   

37.A similar complaint was made by Mr McGowan in respect of the defence case relating to the administration of the caution at the time of the applicant’s arrest.  The defence had referred to the method by which the drugs were concealed and suggested that no-one could, from merely looking at the albums, see that they contained dangerous drugs.  Yet, immediately on intercepting the applicant, PW1 had declared arrest without making any inquiries of him.  He then cautioned the applicant and the caution even included a reference to the actual number, 41, of laminated photographs and that they contained dangerous drugs. Mr Chui, who appeared for the applicant at trial, suggested it was highly unlikely that this is what would have happened as at the time PW1 could not have known the precise number of laminated photographs contained in the three photo albums and the applicant would not have so readily and spontaneously made the admission that he was alleged to have made.  This was another example of an improbable aspect of PW1’s evidence which the defence relied upon as impacting on the jury’s assessment of his credibility, especially in respect of whether the applicant made the admission in response to caution as PW1 claimed.

38.On another occasion the judge referred to what he claimed was the applicant’s assertion that one of the reasons he signed the post‑record of the caution and made the admissions in the video interview was because he was induced to do so in order to get Wong out of custody.  The judge made a comment in order to bring home to the jury the apparent illogicality of the applicant’s concern for Wong if, on his case, Wong was a drug trafficker whose actions had caused the applicant to be arrested.  However, Mr McGowan submitted, that it was not in fact the evidence of the applicant that one of the reasons he made the admissions was to get Wong released from custody.

The respondent’s submissions

39.The respondent conceded in respect of the first ground of appeal that a direction on the alternative verdict of possession of a dangerous drug was not strictly necessary.  However, counsel agreed with the judge that the direction should be given and the directions the judge gave were, in their content, legally correct.  The respondent submitted that there was no risk of the jury being confused by the direction. 

40.In support of the second ground of appeal the respondent submitted that the matters in respect of which complaints were made by the applicant were matters upon which the judge was entitled to comment to the jury.  In doing so the judge had approached his task neutrally and had not expressed strong personal views.  In fact he had constantly reminded the jury that they were the only fact-finders and they did not have to follow his views. 

41.The respondent highlighted the fact that the judge reminded the jury of the 7 attacks on the prosecution case that were made by the defence counsel in his closing speech, and that, unlike HKSAR v Yeung Chor Ming[7], the judge did not try and minimise the weaknesses in the prosecution case.  The respondent distinguished the present case from the case of HKSAR v Umali[8] where the trial judge had said that he personally did not believe the central features of the defence case and had undermined each of the defence’s assertions by a lengthy exposition of contradictions.  Nor did he engage in a “point-by-point demolition” of the defence case as happened in HKSAR v Henao Torres Oscar Oswaldo[9]. 

42.The respondent submitted that, the judge was entitled to point out and analyse the inconsistencies to the jury for them to determine the crucial issues, including whether the police had fabricated the case against the applicant and assaulted him.  Nothing the judge said compelled the jury to accept his view. 

Discussion

43.We agree that there was no need for a direction to be given to the jury on the alternative verdict of possession of a dangerous drug.  Once it was established that the applicant knew there were dangerous drugs in the bag, then any act by the applicant to assist his friend transport them would render the applicant criminally liable as a trafficker in them notwithstanding that the applicant did not intend to have any involvement in their ultimate disposition. 

44.However, notwithstanding that the direction was not necessary, we do not see that the giving of it in any way prejudiced the applicant.  Nor was any prejudice generated by giving it without citing a factual scenario to which it might apply.  The reality was that there was no factual situation arising from the evidence adduced in the trial to which it could apply.  Trying to create such a scenario, when no such scenario arose from the evidence, might itself have created the potential for confusion in the jury’s minds.  There is nothing in this ground of appeal. 

45.In respect of the second ground of appeal, however, Mr McGowan’s complaints have more merit.  There are two strands to this ground of appeal but on many occasions they overlap.

46.One strand is that the judge did not appear to correctly understand the significance of some of the points being made by defence counsel and so inaccurately portrayed them to the jury.  The second strand is that when discussing elements of the defence case the judge unfairly employed a denigratory and dismissive manner which conveyed to the jury a personal view of the judge adverse to the applicant. 

47.In respect of the first strand of this ground of appeal, a prime example on which the applicant relied was the judge’s discussion of the defence claim that a video interview room was in fact available and yet the applicantwas kept in the conference room.  The defence had suggested that the prosecution witnesses, other than the exhibits officer, gave untruthful evidence when they claimed that all the video interview rooms were occupied and that the applicant was kept in the conference room because they were waiting for an interview room to become available.  The defence case was that the applicant was taken to this conference room and kept there for 1 hour 25 minutes before the video interview took place so that he could be coerced into adopting, and rehearsed into repeating, a fabricated story which the police wanted him to repeat in his video interview. 

48.In respect of this point the judge said:

“My obvious comment on this is: could that not be similarly done in a VRI room and not the conference room? It is the same. Wherever he was kept, right, he can be assaulted, he can be induced, he can be given rice in the VRI room and not the conference room. He can be taught, the rehearsal can take place in the VRI room and not the conference room. Why the big fuss about the conference room and the VRI room? You see. You have to consider yourself.” (Emphasis added.)

49.The explanation that there was no video room available was, on the defence case, a lie and the reason it was necessary for PW1 to tell this lie was in order to explain why the applicant was not interviewed soon after his arrival at Police Headquarters. 

50.In contrast to the evidence of PW1, there was the evidence of PW4 and also the fact that there was at least available the video interview room in which Wong was being kept.  Wong was not interviewed until after the applicant and so Wong could have been kept in the conference room and the video interview room in which he was being detained then made available to interview the applicant. 

51.The true significance of the point the defence case was seeking to make lay not in whether the applicant was in the conference room or the video interview room but in whether the long delay before interviewing the applicant could be credibly explained.

52.The judge did address some of the defence points immediately before the quoted paragraph when he said:

“Three, why was the defendant put into the conference room and waited for an hour and 25 minutes before being interviewed in the VRI room? And whether there were three VRI rooms or only two inside the NB on the 17^th floor of the police headquarters.

Four, was it true that it took the defendant 50 minutes to finish the box of BBQ Pork Rice?

Five, whether all the VRI rooms were occupied as stated by 52335, or the defendant was kept inside the conference room for being assaulted, threatened and induced and, eventually, for being taught to tell a story composed by the officer, with rehearsal.”

53.But the judge does not appear to have fully appreciated the context in which the defence were raising these queries for he then concluded his discussion with the paragraph quoted at paragraph 48 ante and which ends with his comment:

“Why the big fuss about the conference room and the VRI room?”

54.In making this comment the judge failed to properly convey to the jury the true significance of the third to fifth points quoted in paragraph 52 above and would have only confused the jury as to the real point the defence was making.  This was that there was an unjustified delay in interviewing the applicant and the prosecution witnesses lied about the reason for the delay, thereby giving credence to the defence claim that the delay was needed in order to persuade the applicant into relating a false story in the subsequent video interview and coaching him in the content of that false story.  The significance of the applicant being kept in the conference room was that if he was kept in a video interview room there would be no reason for the police not to immediately commence the interview. 

55.Another example of where the judge failed to accurately portray the defence case to the jury occurred was when he referred to Mr Chui’s query as to whether PW1 had really administered the full caution as claimed and documented in the post-record.  He said:

“The police officer said this – if you get it on the first page, P16B, the English, get it – the quote, five lines from the bottom: ‘I am Detective senior Police Constable 52335, Lai Kwok-wai’. What is the difficulty in saying this? He was, he was the DSPC 52335, Lai Kwok-wai, he is telling his name. What is so lengthy about it? Nothing.

‘I am currently attached to Team 3B, Operations Division, Narcotics Bureau, Police Headquarters.’ It is true he is attached to that division. What is wrong with that? How lengthy is that? And then he said: ‘I now arrest you for the offence of trafficking in a dangerous drug because I found, in a black plastic bag being held in your hand, one plastic box containing three albums in which there were a total of 41 laminated photographs containing suspected dangerous drugs’. What is so difficult about that, to utter that? If he seized a bag with a box inside with albums with 41 photographs, why can he not say that? Is it so difficult?

Then he says: ‘I have reason to believe that it is connected with you’. What is so difficult? If he catches somebody with that bag, he says that, ‘I have reason to believe it is connected with you’. ‘Now I caution you,’ and then he says, ‘You are not obliged to say anything unless you wish to do so but whatever you say may be put into writing and given in evidence.’ Is it a difficult thing to utter? Every police officer knows how to caution people. This is the caution.

Mr Chui says, oh, this is such a lengthy passage for the officer to mention and it is difficult to believe that he did utter that. You may think, as I suggest, but you may not listen to my suggestion, that everything in this so-called long passage is easy and natural and, in fact, this does not give rise to any difficulty in saying it. Anybody can say that. If you are a police officer, you say that sort of thing. It is not difficult.” (Emphasis added.)

56.Again the judge appears to miss one of the points which Mr Chui was making which was that the police officer could not have immediately known that there were 41 pages in the photo album and so that at least this part of his evidence about the caution must have been a lie and if it was a lie then it was relevant to the jury’s assessment of his credibility.  The judge’s form of expression is also said to be another example of his denigratory and dismissive manner in discussing the defence case.

57.A more serious example of the judge inaccurately portraying the defence case, and then employing dismissive language when discussing it, occurred when he suggested to the jury that they take a “broad view” of the case.  A “broad view” of the defence case included the allegation that the police conspired together to fabricate a case against the applicant “Just to enable Wong, the true culprit, to be exonerated?”  He said:

“Again, and still on a broad view consideration, is it at all possible that the police would go into such a big conspiracy with the team 3B of Narcotics Bureau to frame up the defendant, using so much effort, including violence, threats and inducement, and together with the assistance of the CAPO officer later on, to get the defendant to withdraw the complaint? Just to enable Wong, the true culprit, to be exonerated?” (Emphasis added.)

58.As Mr McGowan correctly pointed out, this was not the defence case at all.  The defence was not alleging a conspiracy by all the police officers in Team 3B, together with the CAPO officer, let alone a conspiracy whose purpose was to frame the defendant in order to exonerate Wong.  The defence case was that PW1 was lying in his evidence and had fabricated the case against the applicant. It was not that the whole of the police team and the CAPO officer were party to an all-encompassing broad-ranging conspiracy one of the key goals of which was to exonerate Wong.  By inaccurately portraying the defence case in this way the judge unfairly misrepresented it to the jury and having done so, his comments that were critical of it then assumed a legitimacy and force they should not have borne.

59.On another occasion the judge said of the defence claims of oppressive conduct by the police:

“That is the meaning of his story; he was, in effect, forced to do so because he was assaulted, he was hit on the chest for 10-odd times, or several times for twice, you see, adding together, 10-odd times maybe. He was forced by the assaults, threats of further assaults and inducement of releasing Wong.

I do not know why that happened to be an inducement to him. If Wong was carrying the things, if it was Wong who was the culprit, why should he bother to help his friend’s release by himself getting involved more than he deserves? But that is his story.” (Emphasis added.)

60.But this is not an accurate description of the evidence.  The transcript of the applicant’s evidence reveals that when he was asked about the oppressive conduct by the police he did indeed mention the inducement of releasing Wong as one of the matters raised by PW1.  However, at no stage did the applicant say that this was a matter that influenced him into agreeing to do what the police wanted of him.  He said in respect of this offer of the police to release Wong that it did not occur to him whether to believe the police and that when they said they would release Wong his state of mind was that he was afraid.  So, it was not “his story” that one of the reasons he inculpated himself was to secure the release of Wong.

61.The second strand of the unbalanced summing-up ground of appeal is that in describing various elements of the defence case the judge employed a denigratory and dismissive manner and in support of this complaint Mr McGowan specifically referred to the judge’s repeated use of the phrase.  “Is it possible ...?”

62.On one such occasion the judge told the jury that they could consider the case broadly and examine whether it was reasonable to believe the applicant’s account that it was a mere coincidence that at the time of his interception he happened to be carrying the bag and that the police would fabricate a case against him while allowing Wong to go free.  In this context the judge then said:

“Is it possible that this happened? That is following his story. It so happened that he carried this bag with cocaine, he did not know the content being cocaine, or dangerous drug. It was his friend Wong who gave him this bag to carry for a moment, right, and it turned out that this bag contained cocaine. And the police fabricated the case against him and let his friend off. Just imagine, is it at all possible that this happened?” (Emphasis added.)

63.On the same issue it was complained that the judge had made a sarcastic comment undermining the credibility of the applicant’s assertion.  He said:

“... He was asked by Wong to carry the bag off and on when Wong had to use the Whatsapp, and when the train was reaching Yuen Long, he was carrying the bag again because Wong asked him to, and he was caught by police with the bag. All coincidence.”

64.On another occasion the judge referred to the applicant’s allegation that he was coerced and forced to say what he said in his video interview, the judge queried whether it could be possible for the events to happen as alleged by the applicant.  He said:

“Now, is it at all possible that this kind of thing happened and the defendant was able to memorise these answers within 20 minutes.” (Emphasis added.)

65.We do not wish to discourage judges from making comments which, in a reasonable manner, raise legitimate question marks about the defence case.  Whilst we feel some concern at the form of expression the judge employed and would have preferred that he expressed himself differently, we are not willing to say that on the instances where he used the phrase “Is it possible?” he crossed the line into impermissible comment and conveyed to the jury a personal view dismissive of the defence case.  However, when these instances are combined with the language employed in the other passages quoted, especially this comments on the defence criticism of PW1’s evidence concerning his administering of the caution,[10] we feel there is a much greater reason for concern.

66.Quite apart from the language employed by the judge we are deeply troubled by his misunderstanding of certain elements of the defence case and his inaccurate portrayal of other elements of it.  The comments of Chan PJ in Lin Ping Keung v HKSAR, quoted at paragraph 34 ante are directly relevant in this regard.  The effect of the judge’s comments was that the defence case was not accurately placed before the jury.  When these inaccurate portrayals were accompanied by adverse comments in respect of them the judge’s error was compounded and resulted in an unbalanced and unfair summing-up.  In these circumstances we are satisfied that the conviction cannot stand.  

Retrial

67.The respondent indicated that should this appeal be allowed it would seek a retrial.  Mr McGowan indicated, realistically, that he could not resist such an application.  The offence is particularly serious and the reason for allowing the appeal has nothing to do with the strength of the evidence.  We are of the view that it is in the interests of justice that the applicant be retried.

Conclusion

68.For these reasons we allow the application for leave to appeal and treating the application as the hearing of the appeal we allow the appeal, quash the conviction of the applicant and set aside his sentence.  We further order that the applicantbe retried on a fresh indictment before a different judge.  The fresh indictment should be filed within 14 days of the handing down of this judgment and the case listed before the Listing Judge for the fixing of trial within 28 days of this date.  We remand the applicant in custody pending his retrial.   

4 December 2015

Ms Maggie Yang SADPP and Miss Jessie Sham SPP (Ag), of the Department of Justice, for the respondent

Mr McGowan James HM, instructed by Alan Ho & Co, assigned by DLA, for the applicant

21 July and 6 December 2016

Mr Anthony Chau SADPP (Ag) and Miss Jessie Sham PP, of the Department of Justice, for the respondent

Mr McGowan James HM, instructed by Cheung & Liu, assigned by DLA, for the applicant