HKSAR v. Yan Sin Man

CACC 367/2015
[2018] HKCA 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 367 OF 2015

(ON APPEAL FROM HCCC NO. 513 OF 2014)

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Before: Hon Lunn VP, Macrae and McWalters JJA in Court

Date of Hearing: 3 November 2017

Date of Judgment: 10 January 2018

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J U D G M E N T

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Hon Lunn VP and Macrae JA :

1.The applicant, represented by Mr H Y Wong, seeks leave to appeal against her conviction on 13 October 2015 after trial before Deputy High Court Judge D’Almada Remedios, as D’Almada Remedios J was then,andajuryofunlawfultraffickingindangerousdrugs,together with a personal or persons unknown, on 23 September 2013 at Room C, 3^rd floor, 188 Fa Yuen Street, Mong Kok, Kowloon, namely 235.75 grammes of ketamine; 62.48 grammes of methamphetamine hydrochloride (“Ice”); 61.33 grammes of heroin hydrochloride and 6.82 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Having been refused the grant of legal aid, the applicant appears in person in her application for leave to appeal against the sentence of 12 years’ imprisonment imposed on her in consequence of her conviction. At the hearing the applicant indicated that she did not wish to persist with the application in respect of sentence.

The trial

2.Police officers in plain clothes maintained observation on the 3^rd floor flat from about 6:45 p.m. on 23 September 2013.  Then, after Yu Fai Tak was seen to enter the flat through the main door, police officers followed him into the flat.  There, they used keys to enter Room C, where they remained with him.  At 7:23 p.m. PC 839, who was outside the premises, saw the applicant, who was together with Ho Pin Man, open the main door to the flat.  Police officers inside Room C heard the sound of the metal grill inside the flat being opened.  Passage through the metal grill afforded access to a corridor and to the wooden doors to Rooms C and B.  Then, the officers inside Room C heard the sound of a key being used to open the wooden door to the room.  The applicant looked at the occupants of the room and, together with Ho Pin Man, turned around and left.  However, they were intercepted by police officers who entered the flat from outside.

3.The applicant was found to be in possession of three keys which fitted locks to and within the flat.  Also, it was an admitted fact that she was in possession of a bag on which was printed the words “Chocolate Rain”, inside which was a notebook, a pink Samsung mobile telephone and $24,600.  Further, the applicant was also in possession of another Samsung and a Nokia mobile telephone.

4.The presence of packets of suspected dangerous drugs affixed to the wall in Room C were pointed out to the applicant who, after she had been arrested and cautioned for the offence of unlawful trafficking in dangerous drugs, replied in Chinese “Sir, I don’t know who the things on the wall belong to.”  Other suspected dangerous drugs having been found in a pink cosmetic bag on a table and in a paper box beneath a table in Room C, after the applicant had been cautioned again, she replied “Sir, I don’t know to whom the stuff inside the box and the cosmetic bag belongs.”

5.The suspected dangerous drugs were contained within 101 plastic bags.  Analysis of the contents determined them to be the dangerous drugs stipulated in the Particulars of Offence.  Their total estimated value was $175,643.

6.It was an admitted fact that the landlord of the premises, Mr Chan Chun Kai had rented the premises, through a real estate agent, on 28 June 2013 to Chu Shun Man.  On 28 August 2015, Mr Chan identified the applicant as the person from whom he had collected outstanding rent and utility charges at Room C on 1 September 2013.  He provided her with a receipt made out in the name of the tenant, Chu Shun Man.

7.In a video recorded interview conducted of the applicant under caution in the early evening of 24 September 2015, the applicant said:^[1]

“ The unit was rented by my boyfriend Chu Shun man. When I was with him before, I went up there occasionally. (I) have not been there for a week so far. I went up there (and) knocked on the door, no one answered (the door), so I took the key to open the door. As soon as (I) opened the door, (I) saw you guys inside (and) you guys arrested me. All the things in it are not mine, I do not know the existence of these things.”

8.Although the applicant declined to answer very many of the other questions posed of her, she did respond to the question of where she lived.  She said “I have two addresses.”  Then, she provided details of anaddress at Room 2014,Sau Ching House,Sau Mau Ping Estate and an address, which she described as “the main home”, at Flat H, 15^th floor, Block 3, Yu Man Centre, Kwun Tong.^[2]

9.The contents of the notebook and photographs found on the pink Samsung mobile telephone were examined by Station Sergeant Chan Yiu Lun of the Narcotics Bureau.  Two of his witness statements, in which he described his analysis of the notebook and the photographs and expressed related opinions, were adduced into evidence pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221.  It was an admitted fact that Station Sergeant Chan is an expert in “dangerous drugs, trends, prices and terminologies.”

10.Of the notebook, Station Sergeant Chan said that it “contained entries of the dates, nicknames, $ prices, kinds, quantities and, for certain dates, presumably transaction records.”^[3]  He identified four kinds of dangerous drugs described in the notebook, namely “white powder”, ketamine, methamphetamine, commonly known as “Ice” and cocaine, commonly known as “coke”.

11.Of the photographs contained in the pink Samsung mobile telephone, Station Sergeant Chan identified codes used to describe the same four kinds of dangerous drugs and selling prices for different dangerous drugs on stipulated dates, places and to persons.

The defence case

12.The applicant availed herself of her right to give evidence.  She said that at the time of the offence alleged she lived with her then boyfriend, Chu Shun Man, at 176, Fa Yuen Street.  On the evening of 23 September 2013 she had gone to Room C on the 3^rd floor of 188, Fa Yuen Street on the earlier telephone instructions of her boyfriend.  He used the pink Samsung mobile telephone, which was registered in her name.  He had done so since February 2013.  On that day, he had left it at 176, Fa Yuen Street.  There were many incoming phone calls.  In a telephone call made to her white Samsung mobile telephone, her boyfriend told her to get the Chocolate Rain bag, which was beneath the bed in 176, Fa Yuen Street, and take it to meet Yu Fai Tak at the flat on the 3^rd floor of 188, Fa Yuen Street.

13.In retrieving the Chocolate Rain bag, the applicant said that she opened it and noticed a stack of banknotes and a Nokia telephone.  She added the pink Samsung mobile telephone to the contents of the Chocolate Rain bag, but carried her own white Samsung mobile telephone in her handbag, and set off to go to the flat on the 3^rd floor of 188, Fa Yuen Street.  She knew that be a place at which her boyfriend consumed dangerous drugs.  For her part, she did not consume dangerous drugs and disapproved of him abusing them.  She was in possession of keys to the premises, having been given them by her boyfriend in order to meet the landlord to pay the rent due on those premises on his behalf on 1 September 2013.  She paid the rent and received a receipt ^[4], which acknowledged payment by Chu Shun Man of rent for the month of August 2013 and which she gave to Chu Shun Man.

14.The applicant said that on the journey to the premises by chance she had met Ho Pin Man and he accompanied her to the flat.  At the wooden door entrance to Room C she had noticed a light shining out through a gap at the bottom of the door and had knocked on the door.  However, there being no response, she had opened the door with a key in her possession.  Then, she had seen that there were a few persons inside Room C.  She described them as bad guys, thieves.  Mr Ho said “Just leave.”  She was scared and turned to leave.  However, she was intercepted by persons who turned out to be police officers in plain clothes.

15.The applicant denied knowledge of the presence of the dangerous drugs found in Room C and denied assisting others to supply those dangerous drugs.  The applicant said that she had never seen the notebook before and that the handwriting in the notebook was not hers.  It was an admitted fact that although two fingerprints had been discerned and lifted from the notebook neither of them belong to the applicant.  After the applicant had lent the pink Samsung mobile telephone to her boyfriend she had never used it again.  She did not take the photographs contained in that mobile telephone and had never seen them before.

16.The applicant acknowledged that she had received a receipt dated 1 September 2013 for payment of rent and utilities to the landlord of Room C, 3^rd floor, 188 Fa Yuen Street.  She had handed the receipt to her boyfriend.  She had no idea why there was a photograph of the receipt in her name, not that of her boyfriend, for payment of that rent and utilities.

Grounds of appeal against conviction

Flight

17.In the grounds of appeal against conviction advanced on behalf of the applicant, Mr Wong submitted that the judge had erred in failing to give the jury a direction on flight.  In cross‑examination of the applicant, the prosecution relied on the fact that the applicant had “retreated” from Room C after she had seen that there were a number of men present in the room.  It was suggested that she had done so because she knew that there was a large amount of dangerous drugs in the premises and she was trying to get away.^[5]  Also, reference to her flight was made in the closing speech for the prosecution.^[6]

Hearsay

18.Then, Mr Wong submitted that the judge had erred in permitting the notebook and the photographs taken from the pink Samsung mobile telephone to be adduced in evidence at the trial.  They were inadmissible hearsay.   The prosecution and the judge had treated the notebook and the photographs of transactions in the pink Samsung mobile telephone as proof of actual transactions in dangerous drugs.  Of Station Sergeant Chan’s evidence, the judge directed the jury “his evidence was not contradicted, was not disputed, and you might feel that you are able to accept what he said and that these transactions are transaction records of dangerous drugs.” ^[7]  Of the fact that Station Sergeant Chan expressed the opinion that the notebook and photographs of records in the pink Samsung mobile telephone described transactions involving four different dangerous drugs, namely heroin, cocaine, ice and ketamine, the judge said “…what the prosecution is saying, as the drug transaction records relate to similar kinds of drugs as found in Room C, these drugs in Room C were for the purposes of trafficking and the inference is that the defendant knew this.”

19.Mr Wong complained that the judge had not directed the jury as to the use that they could make of Station Sergeant Chan’s evidence, in particular that it was not evidence of the truth but that at most it was evidence that the applicant was in possession of records that were “…the kind of record a trafficker would keep for trafficking transactions.”

20.Similarly, it was contended that the prosecution and the judge had treated the photograph of the receipt in respect of the payment of rent on Room C, 3^rd floor, 188 Fa Yuen Street as evidence that the applicant was the actual tenant of those premises.

Lies

21.Finally, Mr Wong submitted that the judge had erred in failing to give the jury a ‘lies’ direction.  It was suggested that the need to do so arose from the fact that the prosecution had relied on the applicant’s failure, in her video recorded interview, to identify premises at 176, Fa Yuen Street as premises at which she lived, whilst describing two other addresses.  The prosecution relied on the applicant’s failure to do so in cross‑examination of her and in its closing speech, suggesting that she was “hiding something, protecting that home.” ^[8]

The respondent’s submissions

22.For the respondent, Ms Catherine Ko invited the Court to note that at trial no issue was raised by counsel or the judge let alone a direction sought by the former in respect of either flight or lies.  On the other hand, she acknowledged that in the course of the summing up Mr Boyton did raise the issue of the judge’s directions in respect of the inferences to be drawn from the transaction records.

Flight

23.Ms Ko submitted that Mr Whitehouse had not “relied on heavily” as evidence of guilt that, when confronted with the presence of a number of men in Room C after she had opened the door, the applicant had turned around and retreated.  The judge had summarized the applicant’s testimony of the reasons for her reaction accurately and fairly.  No flight direction was required.

Hearsay

24.Ms Ko submitted that the prosecution had not sought to rely on the truth of the contents of the notebook and the photographs of similar records in the pink Samsung mobile telephone to establish the truth of the contents.  Those records, together with the testimony of Station Sergeant Chan, pointed to the fact that they were drug‑related transaction records.  The fact that the applicant was in possession of those kind of records, in the context of all the other circumstantial evidence, was evidence from which the jury could draw an inference as to whether or not the applicant was in possession of the dangerous drugs in Room C and unlawfully trafficking in those dangerous drugs.

Lies

25.Ms Ko submitted that the evidence that the applicant had lied in her video recorded interview arose from the fact that in answering the question “where do you live?”, whilst providing two addresses, she had omitted to stipulate premises at 176, Fa Yuen Street which she described in her testimony.  Ms Ko contended that such use that had been made by the prosecution of that evidence was in an attack on the applicant’s credibility only.  It was not suggested that, by itself, it was probative of guilt, nor was there a danger that the jury would treat it as such.  It was only in those circumstances that the need for a lies direction arose.^[9]  A lies direction was not called for in the circumstances of this case.

Grounds of appeal against sentence

26.In the Form XI, by which the applicant gave notice of her application for leave to appeal against sentence, no grounds were advanced in respect of sentence.  At the hearing, the applicant indicated that she did not wish to persist with her application for leave to appeal against sentence.

A consideration of the submissions

27.As Ms Ko pointed out, it is to be noted that, although it is submitted to this Court that the judge erred in failing to give the jury directions in respect of flight and lies, no such directions were sought by counsel for the applicant at trial.  Similarly, no objection was made to the admissibility of the evidence of the applicant’s possession of the notebook and the pink Samsung mobile telephone and its contents.  Indeed, the evidence of Station Sergeant Chan in that respect was adduced pursuant to section 65B of the Criminal Procedure Ordinance.  No direction was sought that the jury be told that the material was not evidence of the truth of actual drug trafficking and that the only use to which it could be put was limited, in the context of all the circumstantial evidence, to having regard to the fact that the applicant was in undisputed possession of records of a kind that a person trafficking in dangerous drugs would keep.

28.At the close of the evidence, there was a discussion between the judge and counsel in which the subject of the directions to be given to the jury was raised, the judge indicating that she did not intend giving a good character direction.  Then, later that day when the court adjourned for the day, the judge having delivered part of her summing up, Mr Boyton raised the issue of the judge’s directions in respect of the “transactional records”, he said: ^[10]

“ You directed the jury that all transactions records all point to the intention to supply those drugs.”

29.Mr Boyton invited the judge to revisit her directions in respect of the transactional records.  He suggested the directions to the jury  were required in respect of a sequence of issues :^[11]

“ Was she in possession of the transactional records and knew that these transactional records were related to drugs, and you have also to come to the conclusion that these transactional records actually relate to those drugs in the flat which are now in the indictment, or something like that.”

30.Having said that she would give the matter further thought, on her resumption of her summing up the following morning, the judge gave the jury further directions about the drug transaction records.^[12]  At the conclusion of the summing up, in response to the judge’s enquiry both counsel indicated they had no matters to raise with the judge.

Flight

31.The fact that when the applicant had opened the door to Room C and had been confronted by the presence of a number of men, she had turned to leave was canvassed with her in cross‑examination and was the subject of comment in the prosecution closing speech.  Mr Whitehouse said:^[13]

“ Another point, members of the jury, … not a particularly important point, and not a particularly good point for the prosecution, but I make it for your consideration.

As soon as she entered -- attempted to enter the premises, she saw the police officers there, didn’t know they were police officers, of course.  She saw the police officers there and immediately retreated.”

32.Of those circumstances, Mr Whitehouse went on to comment:^[14]

“ …you may think it strange that she should retreat.

She might have been afraid, yes.  Yes, she might have been afraid, wondering what was happening, but you would -- you would think the normal reaction would be for someone to say, “Who are you?”  An innocent person would say, “Who are you?  What are you doing in my boyfriend’s flat?”  She didn’t.  She turned and the prosecution say that it was an attempt by her to run away.”  [Italics added.]

33.Of the applicant’s evidence in response to the suggestions put to her in cross‑examination by the prosecution as to the events which had occurred when she opened the door to Room C, the judge said:^[15]

“ It was put to her that she ran away, or I think the word is “走” - let us just take it as “retreated” - that is a very neutral term she “retreated”. I think the interpretation was “走” 或者 “行” in Chinese, but in English it is a neutral word “retreated” - and it was put to her she retreated because she knew she was likely to be caught as she knew there was a large amount of drugs in the flat therefore she tried to get away.

She disagreed with that. She said she had no idea they were police officers. They did not have any warrant cards and they were not in police uniform and, in addition, their hair colour was gold, or gold in colour. You know the police officers were not in uniform. They were plain clothes. They have said that.

Again, as I have said, there is no evidence that they showed her the warrant card.”

34.Then, the judge went on to remind the jury that in re‑examination the applicant had explained:^[16]

“ when she opened the door she saw about four to five people in there, and that is possible, as you know, the arresting officer, the exhibits officer, Mr Yu, and another officer. So it is quite possible as to the number of people she saw in the flat…”

35.Earlier, in reminding the jury of the applicant’s evidence‑in‑chief in respect of this matter, the judge said that:^[17]

“ she opened the door with the keys and she saw a few people inside, I think she said about four of them inside who looked like, I think she said “gu waat chai”, or “bad guys”, “teddy boys”

…

Anyway, she says that Mr Ho said, “走” or “行”.  “If you walk, go, just leave”, and then they left.  She said she left the keys in the door.  She said she thought they were thieves, she was scared, and that is why she left.”

36.Subsequently, the judge revisited the applicant’s testimony that she thought that the men in Room C were “thieves”:^[18]

“ And if she retreated, why would you retreat? She says because she thought there were thieves in there. That is a very plausible answer. “I do not know who you are, I am getting away from here”.” [Italics added.]

37.However, immediately the judge went on to remind the jury of the inference that the prosecution invited them to draw:^[19]

“ Mr Whitehouse’s suggestion is that this flat was occupied by her. She knew that nobody else should have been in there. Her suspicions were these were police officers. Knowing there were drugs in there, she retreated.”

38.It is clear from the careful use by the judge of the term ‘retreat’ to describe the applicant’s movements that such reaction as there was from the applicant to having been confronted by the unexpected presence of a number of men in Room C was of very short duration in time and distance.  It had none of the hallmarks of flight and at most appears to be no more than an immediate, spontaneous reaction of very limited duration.  The applicant was apprehended within the flat by a police officer, who had entered the flat from outside where he was keeping surveillance on the flat.  He had gone to the main door of the flat and witnessed the applicant using a key to open the door to Room C. Significantly, in his closing speech to the jury Mr Whitehouse described the applicant merely as having “turned”, notwithstanding the fact that he then invited the jury to conclude that “was an attempt by her to run away.”  It is to be noted that he characterised such point that he made as “not a particularly important point, and not a particularly good point”.

39.The applicant’s conduct is to be contrasted as wholly different from the conduct of the appellant in the case of HKSAR v So Tsz Kon^[20] on which Mr Wong relies.  There, the appeal against conviction was allowed in the circumstances in which the judge had failed to direct the jury in respect of “flight”.  The conduct of the applicant in that case, in which dangerous drugs were found in the vehicle driven by the applicant, was described in the judgment of this court delivered by Yeung CJHC (Ag.):^[21]

“ The prosecution case was clear enough: when the police officer tried to stop and search KX 9176, the applicant attempted to drive away from the scene, as a result of which the police had to block Prat Avenue with an emergency unit vehicle so that the applicant could not flee. If this was indeed the case, the applicant’s attempt to flee would suggest that he had knowledge of the drug, as otherwise there would be no reason for him to have tried to avoid the stop and search by the police.”

40.In the circumstances of the evidence adduced at the trial of this applicant, the issue of giving the jury a direction in respect of flight simply did not arise. There was no flight.  The judge’s directions as to the evidence of the applicant’s reaction to being confronted unexpectedly by several men in Room C were entirely appropriate.  In particular, the judge’s description of the applicant’s explanation that she had retreated because she thought that men to be thieves as being “very plausible” was entirely favourable to the defence.  There is no merit in this ground of appeal.

Lies

41.As noted earlier the complaint made in respect of the judge’s alleged failure to give a lies direction arose out of what the applicant had omitted to say in an out‑of‑court statement, not what she said in testimony.  In testimony, she said that she and her boyfriend lived together in a flat at 176, Fa Yuen Street.  In her video recorded interview, she had stipulated two addresses at which she lived, but had not mentioned the flat at 176, Fa Yuen Street.  Of that, the judge reminded the jury:^[22]

“ You heard about Mr Whitehouse exploring with the defendant why she did not tell the police about her address at 176 Fa Yuen Street when she was specifically asked, “where do you live?”  She gave the address of her mother, and another address in Kwun Tong, but she never gave the address where she lived and where she lived with her boyfriend.

As you have heard, Mr Whitehouse said that she was hiding something, protecting that home.”

42.Earlier, the judge reminded the jury of the suggestion that Mr Whitehouse had made in his closing speech, namely:^[23]

“ You will know that Mr Whitehouse says she was not giving that address, it is his suggestion, because she was protecting that address from police officers going there and finding out about the address.”

43.Although it is not apparent from the judge’s summing up what, if any, explanation the applicant gave for not mentioning the flat at 176, Fa Yuen Street in the video record of interview as a place at which she lived, it is clear from a transcript of an excerpt of her evidence ordered by the court that she explained that, “although I went to that address often when we were seeing each other”, nevertheless it was the “address of my boyfriend.”^[24]  The police conducted searches, in the presence of the applicant, at addresses in Sau Mau Ping and Kwun Tong and had found nothing suspicious.  The judge reminded the jury of that evidence.^[25]

44.Clearly, the prosecution challenge to the failure of the applicant to stipulate the flat at 176, Fa Yuen Street as a place at which she lived was a challenge to her credibility and no more.  The suggestion made to the jury that she was protecting something at the flat at 176, Fa Yuen Street was wholly speculative.  Those premises had not been searched and no evidence was adduced at trial in that respect.  As was to be expected, the jury had been directed that they “must not guess or speculate.”^[26]  In those circumstances, there was no danger that the jury would make improper use of the evidence.  The fact that experienced counsel did not invite the judge to give a lies direction speaks eloquently to the fact that none was required.  We have no doubt whatsoever that a lies direction was wholly unwarranted.

The drug-trafficking records and a receipt in the name of the applicant

45.Evidence that the applicant had been found in physical possession of the notebook and the pink Samsung mobile telephone on which there were photographs of various records was put before the jury by way of admitted facts.  A photograph of a receipt acknowledging payment of rent by the applicant for the month of August 2013 in respect of the premises at Room C, 188 Fa Yuen Street was stored in the pink Samsung mobile telephone.^[27]  The evidence of the opinion of Station Sergeant Chan, that the records in the notebook and in the pink Samsung mobile telephone were “presumably” of transactions on various dates in one or other of four stipulated dangerous drugs, was put before the jury in witness statements pursuant to section 65B of the Criminal Procedure Ordinance.  In those circumstances, there was no cross‑examination of Station Sergeant Chan.

46.In his closing speech, Mr Boyton had said of the notebook “These contain the drug transactions.” ^[28]  Notwithstanding that apparent ad hoc concession, Mr Boyton went on to identify the issue that was taken by the defence:^[29]

“ It was on the defendant. So what? There is no evidence she looked into it. So what? There is no evidence it was in her handwriting. My learned friend says, well, it must have been written by her. Where is the evidence it’s her handwriting?

There… are no fingerprints on it that belong to the defendant.”

47.That submission was entirely consistent with the defence case and, in particular, the applicant’s testimony.  Although she was in physical possession of both the notebook and the pink Samsung mobile telephone, she was merely delivering them. The judge reminded the jury of her evidence:^[30]

“ …she, remember, had said she had not seen the Chocolate Rain bag before, she had never seen the notebook before, and she did not see the Nokia black phone before, and you have heard she was very surprised to see that big wad of money.

She said that the handwriting in the notebook was not hers.  After lending the phone to the boyfriend in February, she had never used that pink Samsung phone again.  She did not take the photos that you saw in the pink Samsung phone.  She had never seen that before.”

48.Clearly, it was the applicant’s case that although she was in physical possession of the notebook and the pink Samsung mobile telephone, which contained photographs of records, she was not the maker of the records.  Indeed, she was unaware that they were in her possession.

49.Of the evidence that the photograph found in the pink Samsung mobile telephone of a receipt in respect of payment of rent for the month of August 2013 was in the name of the applicant not in the name of Chu Shun Man, as was the paper receipt, the judge said:^[31]

“ Why is that? There has been no explanation. But nevertheless, Mr Whitehouse was saying that shows that this flat, in fact, although to the understanding of the landlord, Mr Chu is the tenant, the defendant is the actual occupier or person who is using the premises.” [Italics added.]

50.Of the applicant’s testimony on that issue, the judge said:^[32]

“ She was asked if she could offer any explanation for this, and she said, frankly, “no”.  She said all that she could explain was the receipt was the one she had received from the landlord P65.  She had no idea what the other receipt had been shown in the pink Samsung phone.”

51.In his closing speech, Mr Whitehouse said of the paper receipt, exhibit P65, and the photograph in the pink Samsung mobile telephone, exhibit P57E:^[33]

“ …in the pink Samsung telephone - we find what is a fairly accurate copy of that rent receipt the landlord had given to her.

You will be aware that there are some minor changes in it… from the one the landlord produced. One was that the… the description of the fourth floor, for some reason, has been missed out, and the format was somehow different, and has been somehow changed. The whole thing seems to be something of a mystery why the rent receipt should be in the telephone at all and why it should have been changed.

But the real significance is, of course, Chu’s name had gone from the… receipt the landlord produced… and we find that the defendant’s name has been substituted…

So that’s yet another connection of this defendant to these premises.”

52.Although it was the prosecution case that the “notebook was hers, the Samsung pink mobile phone was hers”,^[34] apart from the undisputed evidence that the applicant was in physical possession of the two items, the prosecution adduced no other evidence that the applicant was the maker of the records contained in the notebook or the photographs of the records in the pink Samsung mobile telephone.  Although two fingerprints had been discerned and lifted from the notebook neither of them was that of the applicant.  No evidence was adduced in respect of the handwriting in the notebook.  The bare, wholly unsupported, assertion made in cross‑examination of the applicant that she was the author of the entries made in the notebook under the date of 23 September 2013 was roundly rejected.  Of that cross‑examination, the judge said:^[35]

“ Then it was put to her, as you will recall, that the entries were made by her and she disagreed. Again, she denied she had seen any of the pictures in the telephone…”

53.In the judgment of this Court in HKSAR v Or Suen Hong,^[36] Stock JA addressed the issue of the evidential status and use of handwritten records found in the flat in which the applicant was arrested.  In three hours of surveillance conducted of the flat, the applicant was seen in the living room to make 59 telephone calls and, in the case of about half of them, to make a note after the telephone call.  In the delay, between the police announcing to the occupants of the flat that they wished to enter the flat and police officers breaking into the flat, the applicant was seen to leave the living room holding papers and to make his way to the kitchen.  Records of what on their face appeared to be records of betting on soccer matches and on horseracing were found respectively in the refrigerator and a drawer in the kitchen.  The applicant’s fingerprints were found on records found in both places.  Expert evidence was called in the prosecution case that the records were of betting on soccer and horseracing.

54.Stock JA noted that Professor Cross’ formulation of the exclusionary rule in respect of hearsay was cited with approval in the 9^th Edition of Cross & Tapper on Evidence, namely that “a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated.” ^[37]

55.In addressing his rhetorical question: “What was the purpose in this particular trial of the production of the exhibits analysed by the expert?”, Stock JA said:^[38]

“ Now the mere fact that the applicant had in his possession these betting slips could not in themselves in accordance with the rules of evidence have proved that the persons named in the various records had in fact placed the bets which those records purported to evidence. That is because the purpose of their production, if so limited, and if directed to that end, would have been to establish the facts stated in the records.”

56.On the other hand, Stock JA said:^[39]

“ To show that someone is in business of a particular kind, whether it be as a bookmaker, a banker, a butcher, or a baker, it will always be probative of that fact to show that he kept records, and that they were the type of records kept by a businessman of that category.”

57.In the circumstances of the particular case, Stock JA said:^[40]

“ … the production of the documentary exhibits was to show that the applicant was in possession of the paraphernalia of betting, namely, betting slips. There was other such paraphernalia, namely, the telephones and the colour pens next to the telephones. Those documentary exhibits contained the format and the jargon of the business, and the purpose of proving their possession, their nature, their format and their jargon, was to show, together with other evidence, that the flat was the venue for the conduct of a business of the kind run by bookmakers.”

58.In the result, in refusing the application for leave to appeal against conviction, Stock JA concluded that the evidence was admissible and had been used for that limited purpose only, not “…as proof that the bets purportedly recorded were in fact placed and placed with the applicant”. 

59.In his judgment in the Court of Final Appeal in Oei Hengky Wiryo v HKSAR ^[41], with which all the other judges agreed, McHugh NPJ cited with approval the passages quoted above from the judgment of Stock JA, as to the admissibility of records to show that the applicant kept records and that they were the type of records kept by businessmen of that category.^[42]

60.Of the records in the notebook and stored in photographs in the pink Samsung mobile telephone, the judge directed the jury:^[43]

“ …most importantly the transaction records - I think it is not in dispute these are dangerous drugs transaction records…” [Italics added.]

61.Further, the judge said of Station Sergeant Chan’s evidence:^[44]

“ …as I said, his evidence was not contradicted, was not disputed, and you might feel that you are able to accept what he has said that these transactions are transaction records of dangerous drugs.” [Italics added.]

62.However, the key controversial issue was not the nature of the records, but whether they were admissible against the applicant as to the truth of the implied assertions contained within the records.  Was she the maker of the records?  If so, they were admissible against her as to the truth.  If not, they were not admissible for that purpose.

63.Following Mr Boyton’s complaints to the judge at the end of the first day of her summing up, adverted to in paragraph 29 of the judgment, the judge did give further directions.  First, she said of the “drug transaction record… in the pink Samsung mobile phone, and the notebook” that it was “not disputed” that they had been found “in the defendant’s physical possession.”  Secondly, she said:^[45]

“ The prosecution are asking you to draw the inference that the defendant knew about the drug transaction records, both in the notebook and in the Samsung mobile phone.” [Italics added.]

Thirdly, the judge went on to say:^[46]

“ Mr Whitehouse… put the question to the defendant to say she in fact made the entries in the notebook and he actually mentioned to you that it was her who was likely to have made the entry in the notebook because the latest date was 23 September.”

64.Then, the judge adverted to the evidence of the applicant:^[47]

“ …you have heard evidence from her that her boyfriend worked till late that day and it could have been him because she had no idea about making entries. That is her case, she did not make the entries and she did not know about it.”

65.Finally, the judge concluded by identifying the basis on which the prosecution invited the jury to infer that the applicant had made the entries:^[48]

“ … It is the prosecution case to ask you to infer that she is the one who made these entries as the book was, in any event, in her possession and it was in the flat--- which she had in her possession when she was going to Room C.”

66.Of the implied assertions in those records, in the opinion of Station Sergeant Chan, the judge said:^[49]

“ In respect of those drug transaction records, as you will have heard and it is not disputed, those transaction records relate to four different types of drugs. Those are ketamine, cocaine, heroin and ‘ice’.” [Italics added.]

67.Of the significance of that evidence, the judge said:^[50]

“ So what the prosecution is saying, as the drug transaction records relate to similar kinds of drugs as found in Room C, these drugs in Room C were for the purposes of trafficking and the inference is that the defendant knew this.” [Italics added.]

Inferences

68.Earlier in her summing up, the judge had directed the jury that there was no direct evidence that the applicant was in possession of the dangerous drugs in Room C for the purposes of unlawfully trafficking in those drugs.  Of that, she said:^[51]

“ …so they ask you to draw an irresistible inference from the evidence to find that the defendant was in possession and control of the drugs in Room C and that she was trafficking in them.”

69.Of the drawing of such an inference, the judge said:^[52]

“ So when you wish to draw an inference, you must bear in mind several things. You can only draw inferences from facts which had been proved beyond reasonable doubt, or admitted. Mere suspicion is not enough. In a criminal case, the inference drawn must be the only inference that can be drawn in the circumstances and it must be an inference which no reasonable person could fail to draw from the facts. You must not guess or speculate. You must use your common sense and experience as men and women of the world to draw these inferences.”

70.As noted earlier, the judge directed the jury that they were invited to draw the inference that the applicant was the maker of the entries in the notebook from the evidence that she was in possession of the notebook when she was going to Room C.  Immediately before giving that direction the judge reminded the jury of the applicant’s evidence, namely that “…she did not make the entries and she did not know about it.”  However, the judge did not remind them, in the context of drawing that inference, that although two fingerprints had been discerned and lifted from the notebook neither of them belong to the applicant.  Earlier, in the context of the prosecution case that the “book is hers”, the judge did remind them of submissions made on her behalf:^[53]

“ Mr Boyton says the absence of the defendant’s fingerprint is evidence that she did not handle the notebook; therefore, that assists her in showing to you, members of the jury, that the book was not hers.”

71.Moreover, the judge did not remind the jury, in the context of being invited to draw the inference that the applicant was the maker of manuscript entries in the notebook, of the point made by Mr Boyton in his closing speech, namely that there was no evidence that it was in her handwriting.  Most particularly, that there was no evidence whatsoever about the handwriting in the notebook.  As noted earlier, Mr Boyton said to the jury:^[54]

“ There is no evidence it was in her handwriting. My learned friend says well, it must have been written by her. Where is the evidence it’s her handwriting?”

72.With respect to the judge, the absence of any evidence whatsoever as to the handwriting entries in the notebook and, most particularly, evidence of an expert connecting the handwriting entries with the handwriting of the applicant was a very significant factor in consideration of the invitation to draw an inference that the applicant was the maker of the entries.  Unfortunately, it appears that there was no discussion between the judge and counsel as to whether or not it was permissible to invite the jury to draw the inference that the applicant was the maker of the notebook entries on the narrow basis advanced by the prosecution, notwithstanding the absence of any supporting evidence of fingerprints or handwriting.

73.In our judgment there was an insufficient evidential basis on which, if properly directed, the jury could find properly that not only was the applicant in physical possession of the notebook records and the photographs in the pink Samsung mobile telephone but also that she was the maker of the notebook records or, for that matter, the photographs in the pink Samsung mobile telephone.  Those were not the only reasonable inferences that could be drawn from all the circumstantial evidence.

74.In those circumstances, in our judgment, the judge erred in leaving it to the jury to infer from the evidence that she was in possession of the notebook as she was going to Room C that she was the maker of entries in the notebook.  The judge ought to have directed the jury that, contrary to the prosecution’s submissions, there was insufficient evidence upon which to draw that inference and that they were not to do so.  Further, that in consequence, the contents of the notebook and the photographs in the pink Samsung mobile telephone could not be used against the applicant in proof of the truth of the statements made in the records, in particular that the evidence was not capable of being proof against the applicant of actual drug trafficking in those drugs.  In those circumstances, consideration ought to have been given as to whether or not it was appropriate to invite the jury, if they were satisfied that the applicant knew that she was in possession of those records, to have regard to the fact that she was in possession of records of the kind and nature which would be kept by someone trafficking in dangerous drugs.  Obviously, given the way in which matters proceeded at trial, consideration of those matters did not occur. 

75.If we are wrong that, having regard to the paucity of the evidence, the judge erred in permitting the prosecution to invite the jury to draw the inference that the applicant was the maker of the entries in the notebook, we are satisfied that it was necessary for the judge to give the jury directions that gave focus to that issue.  The direction in respect of inferences had been given the previous day.  The judge ought to have reminded the jury that they could draw an inference adverse to the applicant only if it was the only reasonable inference to draw and that they must not speculate or guess.  Then, the judge ought to have reminded the jury specifically that, whilst the applicant was in possession of the Chocolate Rain bag, in which the notebook and the other items were contained, as she was going to Room C, neither of the two fingerprints that had been discerned and lifted from the notebook were those of the applicant and there was no evidence whatsoever in respect of the handwriting on the notebook.  With respect, such directions as the judge gave did not give the requisite focus to the issue.

76.Finally, the judge ought to have directed the jury to disregard entirely the evidence of the photograph of the receipt.  It had no probative value.  Certainly, it did not “…show that this flat, in fact, … the defendant is the actual occupier or the person using these premises.” ^[55]

77.In those circumstances, there is a real danger that the jury acted on the false basis that the records contained in the notebook and on the pink Samsung mobile telephone were capable of being proof against the applicant of actual drug trafficking and, in particular, drug trafficking of dangerous drugs that had been in Room C.

Conclusion

78.For those reasons, we would allow the application for leave to appeal against conviction.

Hon McWalters JA :

79.I agree with Lunn VP and Macrae JA that the appeal should be allowed but wish to explain my reasons for reaching this conclusion.

80.I do not agree with Lunn VP and Macrae JA that there is no merit in the ground of appeal relating to flight.  I do agree that that there were insufficient primary facts from which the jury could draw, as the only reasonable inference, an inference of flight and that being so no flight direction was necessary.

81.However, once the prosecutor invited the jury to find that the applicant suspected the occupants of the room were police officers and for this reason attempted to run away, knowing there were drugs in the room, some intervention by the judge was needed.  The invitation by the prosecutor was to draw an inference that was either not reasonably available from the primary facts or was not the only reasonable inference available from those facts, and then to use that inference as part of their reasoning in reaching their verdict. 

82.The judge may have discouraged drawing such an inference but she did not forbid it.  In my view this created a real danger that in reaching their verdict the jury might have engaged in an impermissible line of reasoning.  On this ground alone I would have allowed the appeal.

83.In respect of the hearsay ground of appeal relating to the contents of the notebook I have the following observations.

84.The prosecution was asking the jury to have regard to the contents of the notebook as a piece of circumstantial evidence from which, with other circumstantial evidence, they could draw the inference that the applicant was in possession of the drugs in Room C.

85.For the contents of the notebook to have any probative value the jury had to be able to infer not just that the applicant had possession of the notebook but was aware of its contents.  Without such an awareness the applicant was no more than an innocent courier of it, as she in fact claimed herself to be.

86.Awareness of its contents could only be proven, absent any admission by the applicant, by proof that she was the author of the contents or, not being the author, she could nevertheless be proven to be aware of the contents.

87.I agree with Lunn VP and Macrae JA that the evidence did not allow of the conclusion that the only reasonable inference was that the applicant was the author of the contents.  That being so the following three questions arise.

88.The first is whether there remained a legitimate evidential use that could be made of the contents of the notebook if the applicant could not be shown to be the author.  Secondly, if some evidential use could be made of the contents was it open to the jury to infer that the applicant was aware of those contents. Finally, if both these questions can be answered affirmatively did the judge direct the jury accordingly.

89.In respect of the first question it is important to recognize that there was no probative value in proving that a particular drug transaction did, in fact, take place on a particular day.  The probative value of the contents of the notebook lay in their character or nature, namely being a record of drug transactions.  For such a record would only be kept by or be of value to a drug trafficker.

90.Proof that the contents of the notebook were a record of drug transactions came from the police expert.  His evidence was needed because the contents were written in a form of code and so he, in effect, decoded the entries.  Whether he was correct in his “translation” was a question for the jury whose responsibility it was to assess what weight to give to his expert evidence.

91.If the contents of the notebook were found by the jury to be a record of drug transactions they were entitled to use that fact against the applicant without breaching the hearsay rule.  Used for this limited purpose the jury would not be relying on any particular entry to prove the truth of what it recorded. They would instead be relying on the evidence of the police expert that where an entry recorded otherwise meaningless words and figures it should be understood as referring to a drug transaction.  This approach, in the words of Tang VP, as he then was, in HKSAR v Yu Wai Man [56] “does not involve the making of any assumption concerning the truth or otherwise of the transaction that the document records.”

92.It is not necessary for me to deal with the issue of whether the jury were entitled to infer that the applicant was aware of the notebook’s contents for, ultimately, the judge wrongly allowed the jury to infer that the applicant was the author of its contents.  Just as with the issue of flight, the judge was leaving it open to the jury to accept the invitation of the prosecutor to draw an inference adverse to the applicant which was not the only reasonable inference available from the primary facts.  That created the real danger of the jury engaging in an impermissible line of reasoning in reaching their verdict.    

Hon Lunn VP :

93.We allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the conviction.

94.We refuse the application for leave to appeal against sentence.

95.We shall hear the applicant on the respondent’s earlier indication to the Court that, if the appeal against conviction was allowed, the respondent sought an order for a retrial.

Ms Catherine Ko, SADPP, of the Department of Justice, for the respondent

Mr Hay-yiu Wong, instructed by Eric Cheung & Lau, assigned by Director of Legal Aid, for the applicant