HKSAR v. To Kwan Wing

CACC 302/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302OF 2016

(ON APPEAL FROM HCCC NO. 381 OF 2015)

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Before: Hon Lunn VP, Yuen and Kwan JJA in Court

Date of Hearing: 27 September 2017

Date of Judgment: 27 September 2017

Date of Reasons for Judgment: 12 October 2017

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant sought leave to appeal against his conviction on 29 August 2017, after trial before Deputy High Court Judge Woo and a jury, of four counts on an indictment, namely:

•   Conspiracy to traffic in a dangerous drug, namely methamphetamine hydrochloride (“Ice”), between 31 January and 11 March 2015, contrary to sections 4(1)(a), (3) and 39 of the Dangerous Drugs Ordinance, Cap. 134 and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (Count 1);

•   Keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 135 (Count 2);

•   Trafficking unlawfully in a dangerous drug, namely 10.91 grammes of Ice and 87 millilitres of a liquid containing methamphetamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 3); and

•   Assault occasioning actual bodily harm, contrary to the common law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212 (Count 4).

At the conclusion of the hearing we refused the application for leave to appeal against conviction.  We said that we would give our reasons in due course.  That, we do now.

The trial

2.At about 12:15 p.m. on 11 March 2015, SPC 53789 gained entry to Room 1236 in Luk Chuen House, Lik Yuen Estate, Sha Tin after the door was opened by a female, in response to Ms Ling Fung Yi knocking on the door.  The applicant was seen to be lying on a bed in the living room, from which position he tried to get up and reached out to take something from a bedside table.  The police officer, who was in plain clothes, identified himself as a policeman to the applicant.  There were four females in the room including Wong Lai Na, who gave evidence for the prosecution under immunity.  Having observed the presence on the table of four hookahs containing a liquid, two cannabis joints and re‑sealable plastic bags, which contained a substance subsequently identified as Ice, the police officer arrested the applicant for possession of dangerous drugs, keeping a divan and the common assault of Wong Lai Na.  He had observed bruising around one of her eyes.  The applicant did not respond after the words of caution had been administered to him.

The prosecution case

3.Wong Lai Na testified as a prosecution witness under immunity from prosecution.  She had lived with the applicant in the premises since January 2015.  She paid all the household expenses, including electricity, water and miscellaneous items.  She worked at an acupressure lounge, earning about $20,000 a month for acting as a prostitute.  She gave the applicant money whenever he asked for it, as part of their arrangement that he would use the money to buy Ice for the two of them to consume.  In addition, he invited friends to consume Ice at the premises, charging them for doing so.  All the Ice found in the premises belonged to the applicant.

4.Wong Lai Na said that some of the hookahs found in the premises had been made by the applicant, whereas, at his request, she had bought some of the others.  She said that one of the females found in the premises at the time that the police entered was Chan Sing Yee.  She lived in the premises with them.  Both of them fought for the attention of the applicant.  Ms Chan was jealous of her.

5.Wong Lai Na said that in the few days prior to the arrival of the police officers she had been unable to earn money to pass on to the applicant.  As a result, the applicant punched her eye and grabbed her neck, preventing her from going to work.  In those circumstances she had sent a text message by mobile telephone to her colleague Ling Fung Yi requesting her to report the matter to the police.

The defence case

6.The applicant did not avail himself of the right to give or call evidence at trial. In cross-examination of Wong Lai Na, it was suggested, but denied, that the applicant had not assaulted her, that he did not traffic unlawfully in dangerous drugs or operate the premises as a divan.  Similarly, she denied that, although they had lived together in the premises, in February 2015 the applicant had moved out of the premises and was thereafter only an occasional visitor.  She agreed with the suggestion that on occasions at the request of Chan Sing Yee, a person she referred to as ‘Ah Shing’ delivered dangerous drugs to the premises.  She denied placing such orders herself.  In re-examination, she said that the applicant had placed such orders.

Grounds of appeal against conviction

7.Mr Michael Leung, who appeared for the applicant at his trial, submitted that the judge’s summing up was “unbalanced, unfair to the defence and biased in favour of the prosecution”, in particular in respect of the evidence of Wong Lai Na.  He submitted that the judge was wrong to suggest to the jury that Wong Lai Na was forgetful in respect of her evidence as to why it was that she had stopped sending a text message to Ling Fung Yi and by suggesting that she had a weak memory.  Similarly, he was wrong to suggest that, because she was uneducated, she did not understand the nature of her immunity from prosecution and that the discrepancies in her evidence as to who had opened the door to the premises so that the police officer could gain entry and why her text message had finished abruptly were “minor things”.  Those observations had the effect of “watering down” the inconsistency between her assertion in her out-of-court non-prejudicial statement that the applicant had beaten her up in order to force her to go to work to earn money to purchase dangerous drugs and the assertion in the text message to Ling Fung Yi that the applicant did not allow her to go to work.

8.In the context of the judge’s identification of evidence that might support the evidence of Wong Lai Na it was submitted that the judge was wrong to direct the jury that the evidence of the police officer that he had seen the applicant stretch out his hand towards the bedside table on which were found dangerous drugs and hookahs was “separate evidence, unrelated to Wong’s evidence, but supporting Wong’s evidence that the defendant possessed the drugs.”  Further, the judge was wrong to direct the jury that the discovery of dangerous drugs on the premises supported her evidence.

9.Of the applicant’s role in the occupation of the premises, it was submitted that the judge was wrong to direct the jury “the defendant must be the principal occupier.  He calls the shots.  He can decide who is going to live there.”

10.Then, it was suggested that the judge had commented unfairly on the fact that, the words of caution having been administered to the applicant, he had availed himself of his right of silence.

11.Next, it was submitted that, since it was the applicant’s case as put in cross-examination that he had been assaulted by the police, the judge erred in suggesting to the jury that the results of the medical examination of the applicant “really does not matter” because the applicant had not made an out-of-court admission.

12.Also, it was contended that the judge had erred in suggesting to the jury that it did not matter whether or not PC 11333 had weighed the dangerous drugs in the presence of the applicant, it having been suggested in cross-examination that the applicant was not present.

13.Finally, it was suggested that some of the observations made by the judge on the evidence were in the nature of a prosecutor’s closing speech not that of a judge.  For example, in the context of Wong Lai Na’s evidence that she earned about $20,000 a month, which she gave to the applicant as and when he requested money, the judge observed that had not been challenged in cross-examination.  Similarly, her evidence that the applicant ordered drugs from Ah Shing had not been challenged.

14.It having been pointed out by the Court to Mr Leung that the judge had directed the jury in respect of the standard of proof, inter‑alia, “But “sure” does not necessarily mean 100 percent certain”, Mr Leung said that he wished to argue that the direction was inappropriate.

The respondent’s submissions

15.For the respondent, Mr Franco Kuan opposed the application.  He submitted that, taken in the context of the summing up as a whole, the judge’s directions were balanced and the criticism made of them not justified.  Certainly, the judge’s summing up could not be said to be a second speech for the prosecution in closing.

16.Mr Kuan acknowledged that the judge was in error to direct the jury in respect of the standard of proof that “…‘sure’ does not necessarily mean 100 percent certain”. However, he said that that direction had to be read in context, not only in respect of the sentences immediately preceding and following the direction but also in the context of the directions overall.  In particular, he pointed to the directions that the judge gave to the jury in closing.[1]

A consideration of the submissions

The standard of proof

17.At the outset of his summing up, the judge directed the jury in respect of the standard of proof:[2]

“ How does the prosecution succeed in proving a defendant’s guilt?  The answer is by making you sure of it.  Nothing less than that will do.  But “sure” does not necessarily mean 100 per cent certain.”

18.In The Queen v Yeung Kuen Chi & Another[3] this Court allowed an appeal and quashed the conviction of an appellant in whose trial the judge had directed the jury in respect of the standard of proof in the following terms:

“ There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt. He cannot do so to a hundred percent certainty. That is not possible, but you must, in other words, be sure.”

19.In the judgment of the Court, Barker JA deprecated the suggestion made by the judge to the jury that there was a difference between “certain” and “sure”.  He said that in directing the jury no attempt should be made to explain the word “sure”.  It was a “plain and simple word.”  He made similar observations in respect of the phrase “beyond reasonable doubt”.  Finally, he concluded:[4]

“ … all references to the inability of the prosecution to prove its case to a mathematical certainty or to any degree of certainty or sureness are to be avoided. They are as confusing as they are misleading.”

20.In subsequent judgments, this Court made it clear that the drawing of such a distinction by a judge did not vitiate the summing up, so long as the judge made it clear to the jury in his directions that they must be sure of guilt before they returned a verdict of guilty.[5]  Regard was to be had to the summing up as a whole.

21.It is to be noted that having given the initial direction to the jury quoted above, the judge went on to direct the jury:[6]

“ You just feel sure of it, then you can find him guilty; if you are not sure then find him not guilty. As simple as that. If after considering all the evidence you are sure that he is guilty you must return a verdict of guilty. But if you are not sure your verdict must be not guilty. That is in respect of each of the counts.”

22.Then, as Mr Kuan pointed out, at the conclusion of his summing up on the first day the judge repeated his directions to the jury that they must be sure of the applicant’s guilt before they could convict him of any of the counts on indictment:[7]

“ If you are not sure of the prosecution’s evidence that makes you sure of the defendant’s guilt in any of the four charges, you must return a verdict of not guilty. This is the direction on law. If you are not sure of his guilt on any of the counts, you have to return a verdict of not guilty. You must do that. And that is in respect of each of the charges.

Only if you are sure that each of the ingredients of the charge is proved that you should return a verdict of guilty of that charge. You deal with each charge separately.”

23.Earlier, consistent with that direction, the judge had directed the jury in respect of the offence of conspiracy to traffic unlawfully in Ice:[8]

“ …. before you can convict the defendant, you must be sure that on the conspiracy there was in fact an agreement between the two, between Wong and him, or more persons, to commit unlawful trafficking in ‘Ice’ and the defendant was a party to that agreement.”

24.We are satisfied that, having regard to the summing up as a whole, the judge directed the jury correctly as to the requisite standard of proof.

Unbalanced summing up

25.Of the litany of complaints advanced as to the allegedly unbalanced nature of the summing up, Mr Leung confirmed at the outset of his oral submissions that, notwithstanding the fact that the summing up had taken place over two days, at no stage did he raise any complaint whatsoever with the judge.

26.It is to be noted, as was to be expected, that the judge had directed the jury in terms in the summing up “…if my view appeals to you, you accept them, but if my views do not appeal to you, ignore them.” [9]  At the outset of his summing up, the judge directed the jury:[10]

“ It has always been your responsibility to judge the evidence and decide all the relevant facts of the case. You and you alone must decide what evidence you accept, what evidence you do not accept, and what evidence you are not sure about.”

The testimony of Wong Lai Na

27.The judge identified four aspects of the evidence of Wong Lai Na “…which may make one feel that she is not a reliable witness” [11]. First, Wong Lai Na denied that she had opened the door to the police party, whereas all the other witnesses said that she, not Chan Sing Yee, had done so.  Of that, the judge posed the rhetorical questions: “Is it just because she was forgetful?  Or is it for some purpose that she gives a different story from the others?”  Also, the judge pointed to the discrepancy in her evidence as to the message that she had sent.  In evidence-in-chief she had said that it stopped abruptly because she was tired and did not finish the message.  However, in cross‑examination she accepted that the message had been continued.  The judge suggested “at least she was careless with her evidence”.

28.Of those matters, the judge said:[12]

“ You may think that the matters I mentioned… are really minor things which does not affect Wong’s reliability or truthfulness.”

29.Obviously, the judge made it perfectly clear to the jury that it was a matter for them to determine.  But, in any event on their face the two issues were of no significance in relation to the issues to be determined by the jury.  What was the possible relevance of who opened the door to the police party?  At most, it was an inconsistency in the evidence, but it was in no way whatsoever material to the issues in the case.

30.In any event, it is to be noted of Wong Lai Na’s evidence, that she had not completed her text message to Ling Fung Yi because she was tired, that both passages to which she referred, first in evidence-in-chief and secondly in cross-examination, were incomplete sentences.  That was consistent with the overall, broad effect of her evidence, namely that her message to Ling Fung Yi was incomplete and terminated prematurely.

31.The judge went on to draw attention to other contradictory aspects of Wong Lai Na’s evidence, reminding the jury of her explanation of why it was that the applicant had beaten her:[13]

“ “He beat me because I was not able to work and bring money home and he beat me.” On the other hand, she said, “He kept beating me because he prevented me from going to work.” Now, you may say it is conflicting, contradictory, but she said it in the same breath. It is very strange but perhaps ladies who understand this more, there may be many reasons.”

32.Clearly, in reminding the jury of that evidence and in suggesting to the jury that the evidence was to be viewed as “conflicting, contradictory,” the judge was drawing their attention appropriately to a fundamental conflict in Wong Lai Na’s evidence of the circumstances which had led her to contact Ling Fung Yi and which had resulted in the arrival of the police officers at the premises.  Those strident observations were in no way watered‑down by the judge’s suggestion that Wong Lai Na had obviously been mistaken in her initial evidence, almost 18 months after the event, as to which of her eyes the applicant had punched and his suggestion, in respect of who it was that opened the door to the police party, that the jury consider whether Wong Lai Na had a weak memory.

33.The judge went on to identify the two other aspects of the four aspects of Wong Lai Na’s evidence which he had said the jury might consider to be relevant to her reliability.  First, in the context of the evidence of Wong Lai Na of having had an intimate relationship with the applicant, that the presence of Chan Sing Yee caused tensions.  Of that, the judge reminded the jury of Wong Lai Na’s evidence that the applicant accepted allegations made against her by Ms Chan and scolded her, even hitting her.  The judge suggested:[14]

“ Therefore, she might hold a grudge against the defendant. She might hate the defendant and that is why she might lie.”

34.Then, the judge referred to the acceptance by Wong Lai Na that, on an earlier occasion, she had “jumped bail” rather than surrender and face the prospect of a suspended sentence of prison being activated.

35.Of her relationship with the applicant and Chan Sing Yee, the judge said:[15]

“ She might hate the defendant. You may also think that she did not hold a grudge against the defendant. Or that she did not hate him, so much so as to tell lies about him. It appears that she hates Chan but not the defendant.”

36.Clearly, the judge was making it plain to the jury that it was a matter for them what view they took of the evidence.  In that context, the judge directed the jury:[16]

“ However, if you consider these matters affect her credibility and reliability you should consider her evidence with great caution…. You may think that you should not simply accept her evidence without some supporting evidence.”

Evidence supporting Wong Lai Na’s evidence

37.The judge referred to the evidence of “possession of the ‘Ice’ by the defendant” as being evidence “apart from Wong’s evidence.” [17]  Of the undisputed evidence that dangerous drugs and hookahs had been found on the bedside table next to where the applicant lay in bed, the judge said:

“That is PW1’s evidence, the arresting officer’s evidence. He went in, he saw Wong(defendant?) was trying to get off from his bed and stretch his hands to the table. That is the evidence, separate evidence, unrelated to Wong’s evidence, but supporting Wong’s evidence that the defendant possessed the drugs.

  The presence of the evidence of the bongs, if nobody was using the drugs, why were the bongs there.  So what were the bongs with liquid inside?  That means they have been used to smoke ‘Ice’ with liquid methamphetamine inside.  That allows the inference to be drawn that the ‘Ice’ had been smoked there through the bongs.”

38.There is nothing in the judge’s very lengthy recitation of the evidence that suggests that the police officer’s evidence of having seen the applicant stretching his hand towards the bedside table was challenged in cross-examination.  There was no dispute that the dangerous drugs had been found in the premises.  It was in those circumstances, the judge said:[18]

“ Her oral evidence is supported by these other pieces of evidence. That is why as a jury your duty is to consider the evidence of the case as a whole.”

39.Although, with respect to the judge, it would have been better if he had stated in terms that it was a matter for the jury whether or not they were satisfied that the evidence did support Wong Lai Na’s evidence, we are satisfied that in reminding them that it was their duty to consider the evidence the jury was being reminded of the directions given at the outset that what evidence they accepted was a matter for them only.

40.Subsequently, the judge went on to address such evidence as was available if they rejected the evidence of Wong Lai Na “If you do not accept Wong’s evidence of the defendant’s involvement, there is still direct evidence.”  In that context, he drew the attention of the jury to various pieces of evidence, including:[19]

“ (a) packets of drugs were found on the table next to the bed in which the defendant was sleeping, with the bongs containing methamphetamine liquid inside; and this is based on the direct evidence of PW1, the table beside his bed, and also the evidence of these drugs, that is in the agreed facts. It is very simple. These are pieces of direct evidence, but not so direct as to involve the defendant, except PW1’s evidence that the defendant was trying off his bed to stretch his hand to the table.

Then: (b) the defendant was stretching his hand to the table.  The drugs were on the table, the defendant was stretching his hand to the table.”

The immunity from prosecution

41.Of the circumstances in which the immunity from prosecution was granted to Wong Lai Na, the judge said:[20]

“ Actually, she could not give explanation when she was asked why the immunity? She was muddled, in fact. She did not quite understand what was the effect of it, except that she will not be prosecuted if she gives truthful evidence. And that is what the immunity says, but whether she asked for it she said no, she did not ask for it. She did not ask for the immunity but she was given the immunity.”

42.Subsequently, the judge went on to say “She may not understand why she was granted the immunity.” [21]  Having reminded the jury that Wong Lai Na had testified that she had provided the applicant with money with which to buy dangerous drugs, which she joined him in consuming and which she knew that he sold to others, the judge said that, in light of that testimony, Wong Lai Na was a party to the enterprise and explained:[22]

“ …that is why she requires - - she needs the immunity to be free from prosecution for conspiracy. But she did not quite understand this. I mean, it’s difficult to understand, in fact, for a layman, especially for an uneducated layman.”

43.In fact, the issue whether or not Wong Lai Na sought an immunity was canvassed in cross-examination.  Initially, the following exchange ensued:[23]

“ Q. Did you ask for it?

A. No I did not ask for it.

Q. You sure?

A. Yes.”

44.Then, after she had been referred to a non‑prejudicial statement that she had made on 27 June 2015, the following exchange ensued:[24]

“ Q. So by virtue of making this statement you were asking or looking for immunity from prosecution, correct?

A. Yes.”

45.It is to be noted that the matter was canvassed in the address of Mr Leung for the applicant in his closing speech:[25]

“ …during the cross-examination, you remember, she has given a statement, what we call without-prejudice statement, looking for immunity. At the start of the cross, the questioning, she denied that she was looking for immunity until the point I read it out. So this is the observation you can make, whether she was looking for something when she agreed to make such a statement. What was that something she asked for? ”

The applicant’s right of silence

46.Relevant to the fact that the applicant had remained silent on being arrested and cautioned in his premises, the judge gave the jury a lengthy direction as to his right of silence and, having reminded them of the words of caution, he went on to direct the jury:[26]

“ The caution is to warn him, to caution him, to remind him that he has got the right to remain silent. You are not obliged to say anything. He is not obliged to say anything and therefore he remained silent, he is exercising his right to remain silent. There can be no complaint.”

47.Subsequently, in his review of the evidence of SPC 53789, the judge said:[27]

“ PW1 then cautioned the defendant but the defendant did not reply.  That was his right, especially in view of the caution because he was told “you are not obliged to say anything”.  Then of course he shuts up.  He does not need to say anything.”

48.Clearly, those directions brought home to the jury that the applicant was exercising a right and that in doing so there could be no complaint.  There is no merit whatsoever in the suggestion that the jury might thereby have been invited to infer that the applicant “chose not to speak up as he committed something wrong”.

The presence of the applicant’s DNA on a straw in one of the hookahs

49.In the course of reminding the jury of the significant evidence adduced in the admitted facts, the judge said:[28]

“ … paragraph 10 simply talks about one straw. I think there is one straw on exhibit P 12, the bong, which shows the DNA of the defendant. That means the defendant had used this bong, apparently.”

Exhibit P 12 was one of four hookahs found on the table next to the bed on which the defendant was lying when the police entered the premises.

50.There is some force in Mr Leung’s submission that the judge erred in stating to the jury that the presence of the applicant’s DNA on the straw “…means the defendant had used this bong, apparently.”  The inference to be drawn, if any, from that evidence, having regard to all the evidence, was a matter for the jury.  On the other hand, no issue was taken in cross-examination of the evidence of Wong Lai Na that she and the applicant had consumed Ice on the premises smoking the drug through a straw fixed in a hookah.[29]  Also, she said that she and the applicant shared the use of the hookahs with his friends who smoked Ice on the premises.[30]  There is no substance in this complaint.

51.Similarly, we are satisfied that there is no substance in any of the other complaints advanced on behalf of the applicant that the summing up was unbalanced and unfair to the applicant.

Conclusion

52.For the reasons that we have given we refused the application.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr Michael H.K. Leung, instructed by Lo, Wong & Tsui, assigned by Director of Legal Aid, for the applicant