HKSAR v. Lau Tak Mong

CACC 337/2016
[2018] HKCA 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 337 OF 2016

(ON APPEAL FROM HCCC 287 OF 2015)

------------------------

------------------------

Before: Hon Macrae JA, McWalters JA and Poon JA in Court

Date of Hearing: 21 November 2017

Date of Judgment: 6 March 2018

____________________

J U D G M E N T

____________________

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

1.The applicant was charged with two counts of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The first count alleged that on 10 October 2014 he unlawfully trafficked in 48.6 grammes of a crystalline solid containing 48 grammes of methamphetamine hydrochloride (“Ice”). The second count alleged that, on the same date and at the same location as the first count, the applicant unlawfully trafficked in 15.5 grammes of a crystalline solid containing 15.3 grammes of Ice.

2.The applicant was tried by Yau J (“the judge”) and a jury and on 13 October 2016 he was convicted of Count 1 by a six to one majority verdict of the jury but was unanimously acquitted of Count 2.  In respect of the second count the jury were also asked to return a verdict on the alternative offence of possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance, Cap 134.  On this alternative offence the jury also returned a unanimous verdict of not guilty.  The applicant was sentenced by the judge on Count 1 to 9 years and 6 months’ imprisonment. 

3.The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his conviction.

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

The prosecution case

5.At 2330 hours on 9 October 2014 police officers broke into Lot 2172-2173 Sun Fung Wai, Tuen Mun (“the premises”) and found no one inside.  The premises are a large shed-like structure whose interior is divided into a number of rooms.  There are two bedrooms, a bathroom, a kitchen, an empty room under renovation and a room in which dogs were kept.  On entering the main door of these premises one of the bedrooms is on the left hand side.  It has a red entrance door which the police found was locked.  PW2, PC 5305, Chiu Tak Ho forced this door open and searched the room.  He found in it a mah-jong table and in this judgment we shall refer to this room as “the mah-jong room”.  On the mah-jong table PW2 found a tin box containing nine plastic bags of dangerous drugs which are the subject matter of Count 1 and two electronic scales.  PW2 also found the applicant’s home visit permit in a drawer of the mah-jong table.

6.PW2 denied the defence case, as put in cross-examination, that one of the packet of drugs in the tin box, a packet whose resealable plastic bag had a red rim, had been found in another room which the applicant claimed he occupied and also denied that the applicant’s home visit permit had been seized from the person of the applicant rather than from a drawer of the mah-jong table.

7.The police decided to lay an ambush inside the premises and await the return of the occupant.  PW3, Sergeant 34244, Leung Ka Ho was with about 10 colleagues.  He set up a cordon around the perimeter of the premises and he and PW1 hid inside the room of the premises that was then under renovation.  From his place of concealment PW3 could see the red door of the mah-jong room.  Three and a half hours later, at around 0318 hours on the next day, 10 October 2014, the applicant arrived at the premises with two men. They alighted from two cars.  One of the two cars had, in fact, appeared at the premises at around 0100 hours but it had left after 5 minutes. 

8.When the applicant arrived at 0318 hours he entered the premises.  PW3 saw him holding a bunch of keys and when the applicant was about to insert a key to open the red door of the mah-jong room, PW3 gave the order to intercept him.  The applicant tried to flee and PW3 gave chase, revealing his police identity as he did so and demanding that the applicant stop.  The applicant ignored PW3’s demand.  The chase continued over about 7 metres and concluded with PW3 grabbing hold of the applicant’s shoulders, resulting in both the applicant and PW3 falling to the concrete ground.  The applicant moved his arms and kicked his legs in an effort to escape.  This struggle lasted less than a minute.  With the assistance of his colleagues, PW3 subdued the applicant. 

9.The applicant was arrested by PW1, DPC5389, Tam Tin Wai for the Ice found in the mah-jong room and under caution he said that the Ice was for selling by him.  PW1 then searched the applicant and found in his left trousers pocket a packet containing 15.5 grammes of a crystalline solid containing 15.3 grammes of Ice, the drugs the subject of Count 2.  PW1 then arrested and cautioned the applicant in respect of these drugs.  In response, the applicant again said that all the Ice was for selling by him.  Later the police showed the applicant the dangerous drugs and other exhibits they had seized and PW1 again cautioned him.  For a third time the applicantadmitted “The Ice here is what I told you about for selling.” 

10.It was not disputed that a bunch of eight keys were seized from the applicant at the time of his arrest. PW1 testified that he tried to use these keys and found that they could open the door of the premises, the door of the mah-jong room and the tin box.  

The defence case

11.The applicant testified in his defence.  He denied possessing the dangerous drugs the subject of the two counts.  He specifically denied that he had tried to escape and had struggled with the police officers when they intercepted him.  He also denied that Ice was found on his person, that he had a key to the door of the mah-jong room and that he had made admissions to the police.  However, he did admit that he was an Ice addict and he kept about 10-odd grammes of Ice in the cabinet beside his bed for his own consumption.  He said the packet with a red rim belonged to him.  It had been left over from a previous occasion when he was consuming Ice [1] and he had put this packet in a cabinet next to his bed.  He denied having put it in the tin box on the mah-jong table. 

12.The applicant testified that on the evening of 9 October 2014 he was out with his friends having a night snack in Yuen Long and when he returned home later he was arrested and immediately handcuffed from behind.  He said that when he was out with his friends, at around 12 midnight he was informed by his neighbour, a garage owner, that the police had “climbed into” the premises where he lived.  He was cross-examined by Mr Peter Cahill, counsel for the prosecution, on this part of his testimony as follows:

“ Q. Are we going to hear from the garage man who’s supposed to have rung you at 12?

A. I once tried to contact him. After I was sent to the reception centre, his garage was interfered by some people who went into his garage. He was selling second-hand cars or vehicles.

Q. What’s that got to do with it?

A. I’m trying to explain to you.  I meant that after I was sent to the reception centre, the people who went to live in my house went to interfere with the things inside his garage, so he has had some misunderstanding.”

13.It was the applicant’s case that although he lived in the premises, he had, in fact, rented out the mah-jong room to his friend “Kam Mo” [2] who lived there with his girlfriend Choi Wing Lum (“Choi”).  That is why, the applicant said, he did not have a key to this room. He lived in another room directly opposite to the mah-jong room and his two dogs, Tibetan Mastiffs, were kept in another room.  He, Kam Mo and Choi were all drug addicts and the applicant would take Ice together with them when they played mah-jong.

14.The applicant testified that the woman Choi had written to him, admitting that the Ice belonged to her.  He said that Choi personally spoke to his friend Tam Kar Long about her willingness to swap with the applicant and accept responsibility for the drugs.  The relevant part of the applicant’s testimony was as follows:

“Choi Wing-lum, the girl, once wrote a letter to me. She said she would swap with me so that I could come out. Another friend called Tam Kar-long, when he visit me, he said Choi Wing-lum personally spoke to him. She said -- she admitted that the drugs belonged to her; she admitted that. She wanted to swap with me so that I could come out, she went in.”

15.He was also cross-examined by Mr Cahill as to whether these persons would be defence witnesses and the following exchange took place:

“ Q. Are we going to hear from these people?

A. I don't know.  I have already told my counsel about that.”

16.The applicant said that when he returned home around 3:20 am on 10 October he was arrested by PW1 inside the premises near the door to this room.  He was told to sit on the sofa in the mah-jong room and was questioned by PW1.  Whilst he was on the sofa he was assaulted by PW1, PW2 and another police officer.  He said he intended to play mah-jong inside the premises with the two persons who accompanied him.  He agreed that a key was needed to open the door of the mah-jong room in order to play mah-jong, but denied that he had such a key.  He agreed that he had the key to the tin box and he explained that the tin box was for containing money contributed by each player which was then used as a pool for purchasing food.  He denied that drugs were ever kept in the tin box.

17.He claimed his home visit permit had always been in his wallet which was on his person.  The police officer’s claim that it was seized from inside the drawer of the mah-jong table was not true. 

18.In support of his claim that he had been assaulted by the police the applicant adduced a statement of a doctor from the Lai Chi Kok Reception Centre who had examined him on 15 October 2014.  This statement was admitted under section 65B of the Criminal Procedure Ordinance, Cap 221.  He also testified that he had complained to the examining doctor that he had been assaulted by the police and when he was later taken to Tuen Mun Magistracy he had also complained to the magistrate that he had been assaulted.

The Perfected Grounds of Appeal

19.An important contextual element underlying the grounds of appeal is the acquittal of the applicant on the second count.  On the impact of this acquittal on the safety of the conviction on Count 1 Mr Eric TM Cheung, Solicitor Advocate, for the applicant, submitted that:

“This unanimous verdict could only be explained on the basis that all 7 jurors had reservation about the credibility of PW1 and the truthfulness of three verbal admissions and the seizure of the ‘Ice’ from the person of the applicant (and so the jury must also have reservation about the evidence of the other police witnesses which confirmed PW1’s story.)

So what was left to support the 6:1 majority verdict for Count 1? There was no verbal admission left and unlike in Count 2, the applicant was not even alleged to be in physical possession of the drugs. Hence the case on Count 1 turned entirely on whether there was sufficient circumstantial evidence left undisturbed by the unanimous verdict on Count 2 which enabled the jury to draw the appropriate inferences beyond reasonable doubt that the applicant had knowledge, custody and control of the 9 packets of ‘Ice’.

This context, it is submitted, requires this court to closely examine the adequacy of the Trial Judge’s directions to the jury to ensure that there was no danger of any jurors embarking on an impermissible process of reasoning in convicting the Applicant on Count 1.”

20.Within this context, Mr Cheung complains in his Perfected Grounds of Appeal of four “irregularities” in the judge’s summing-up which he asserted resulted in a real risk that the jury might have embarked on an impermissible process of reasoning in drawing the necessary inferences of knowledge and/or possession of the dangerous drugs in Count 1.  The four irregularities are:

(a) a failure by the judge to direct the jury that there is no burden on the applicant to explain the motive of police officers in assaulting and fabricating evidence against him.  The need for such a direction arose, it was argued, from the prosecutor’s cross-examination of the applicant which attacked his inability to explain why the police officers would assault him and fabricate evidence against him;

(b) a failure by the judge to explain that the applicant had no obligation to call defence witnesses.  The need for this direction arose, it was argued, as the judge had highlighted the applicant’s answer to questions by the prosecutor on whether he would be calling certain persons as his witnesses;

(c) a failure by the judge to give a lies direction, when the prosecution had attacked the applicant as having lied on material collateral issues, namely his claims that:

(i) he was a multi-millionaire with a monthly income of $60,000 but he nevertheless chose to rent out the mah-jong room whilst living in a smaller room[3];

(ii) he had been beaten by the police whilst being interviewed inside the premises[4];

(iii) the garage owner had called him and told him about the police having entered his place; and

(iv) he had come back with two friends to play mah-jong. 

(d) the omission by the judge to give an inferential reasoning direction set in the context of the evidence, and the arguments relied on by the prosecution in respect of it, from which the prosecution invited the jury to draw adverse inferences, particularly as regards the following:

(i) the applicant’s ownership of two Tibetan Mastiffs;

(ii) the applicant’s admission that he kept for his own consumption about 10-odd grammes of Ice; and

(iii) the alleged presence of a home visit permit inside the drawer of the mah-jong table.

21.The overall effect of these irregularities, it is argued, was, or there was a real danger could have been, to tempt the jury into reasoning impermissibly in their assessment of the evidence.  Firstly, in respect of the applicant’s evidence they could have reasoned impermissibly in assessing his credibility by taking into account, adversely to him, that he    could not or did not:

(i) provide a motive for the police to fabricate evidence against him; and

(ii) call witnesses that could corroborate his evidence or exculpate him.

Secondly, having rejected those parts of the applicant’s evidence that directly related to the first count they may have reasoned that the lies told by the applicant on the collateral issues supported the prosecution case.  

22.In respect of the first irregularity Mr Cheung referred to Mr Cahill’s cross-examination of the applicant on the police officer’s motive and complained that it unfairly discredited the applicant in the eyes of the jury.  He relied on Wong Kwok Wang Warren v HKSAR (2009) 12 HKCFAR 218 and submitted that the judge did not give any specific directions to alleviate the dangers of the prosecutor’s cross examination and the comments made by him in his closing speech.  Mr Cheung argued that, although the judge gave a standard direction on the burden and standard of proof, the jury might still have wrongly thought that the applicant’s inability to provide an explanation would support the prosecution case, thereby shifting the burden of proof.

23.In respect of the second irregularity, Mr Cheung pointed out that, when summarising the applicant’s evidence, the judge mentioned what the applicant had said regarding whether he would call defence witnesses, including Choi and the garage owner, but he did not specifically direct the jury that the applicant had no obligation to call them as witnesses. This failure, it was submitted, created a real risk that the jury might draw an adverse inference in respect of the credibility of the applicant’s evidence and/or prompted the jury to feel more confident about relying on the evidence of the prosecution.

24.Regarding the lies direction, Mr Cheung relied on Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113.  At page 127H-I the court explained the impermissible line of reasoning that might be employed by a jury in respect of a defendant whom the jury find has lied, as follows:

“… There may be many reasons for the jury not to rely on the evidence of a witness. It is not necessarily because the witness has lied. But even if he has lied, there may be different reasons for not telling the truth. There is, however, a natural tendency that if the jury consider that a witness is not telling the truth on one aspect of his evidence, they may not believe him in respect of other aspects. This tendency has a much greater impact on the criminal process when it is the accused who has testified in the witness box. If the jury consider that the accused is not telling the truth on one aspect of his case, there is a tendency that they may infer that he has lied because he is guilty of the charge before the court. This ‘impermissible process of reasoning’, though sometimes natural enough for a layman, is to be avoided if the accused is to have a fair trial.”

25.The court went on to discuss when a lies direction was necessary, saying at page 129C-D, paragraph 38:

“Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case … or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies.”

26.Mr Cheung submitted that Mr Cahill repeatedly suggested that the applicant had lied on a number of collateral issues and that he lied in order to escape his criminal responsibility.  The collateral issues were:

(i) whether the applicant received a call from the garage owner;

(ii) whether the applicant received a letter from Choi;

(iii) whether the applicant returned home in order to play mah-jong with his friends;

(iv) whether the applicant was assaulted by the police; and

(v) whether the police planted drugs on the applicant.

27.Mr Cheung argued that by inviting the jury to conclude that the applicant lied to escape conviction the prosecutor was, in reality, inviting them to use the applicant’s lies as support for the prosecution case.  By linking the lie to the offence the prosecutor went beyond attacking the implausibility of the applicant’s testimony, so necessitating a lies direction.  

28.Mr Cheung submitted that the applicant’s case was, like Yuen Kwai Choi, one where “there was a real risk that the jury might make improper use of the lie and wrongly infer guilt from it.”[5]  That being so the judge should have given a lies direction.

29.In respect of the fourth irregularity Mr Cheung relied on the Court of Final Appeal’s decision in Nguyen Anh Nga v HKSAR[6] and submitted that the judge had not placed his directions on inferences in the  context of the facts and issues in the applicant’s case. 

30.Mr Cheung referred the court to parts of Mr Cahill’s closing address where he invited the jury to draw particular inferences and submitted that in his summing-up the judge failed to draw to the jury’s attention the opposing inferences that were either probatively neutral or favourable to the applicant.

31.Mr Cheung, in the course of his submissions complained that the judge had not specifically addressed the drawing of inferences in respect of the issues of possession and knowledge. 

The respondent’s submissions

32.Ms Peggy Lo, Senior Public Prosecutor, on behalf of the respondent, accepted that the verdict of not guilty on Count 2 could be taken as indicating that the jury did not accept the evidence of PW1.  She submitted, however, that the following evidence in relation to Count 1 was undisturbed by the acquittal of Count 2:

(a) PW2’s evidence on how the police broke into the mah-jong room and seized:

(i) the Ice in relation to Count 1 from the tin box on the mah-jong table;

(ii) next to the tin box, 2 electronic scales; and

(iii) from inside a drawer of the mah-jong table, the applicant’s home visit permit.

(b) PW3’s testimony on how the applicant was about to use a key to open the door to the mah-jong room;

(c) the applicant’s attempt to flee;

(d) the admitted fact that a bunch of eight keys including those to the doors of the premises, to the door of the mah-jong room and to the tin box containing the Ice was seized from the applicant; and

(e) the applicant’s evidence that one of the packets of Ice belonged to him and that he possessed the key to the tin box.  

33.In respect of the first alleged irregularity, Ms Lo submitted that the cross-examination of the applicant was not aimed at testing the applicant’s ability to provide a motive for the police to take certain action, but, rather, was to test the veracity, reasonableness and logic of the applicant’s evidence and that, therefore, the Wong Kwok Wang Warren judgment has no application in the present case.

34.In respect of Mr Cahill’s closing speech, Ms Lo submitted that although the term “motive” was used, the focus of the speech was in fact on the reasonableness of the applicant’s version and was therefore unobjectionable.

35.In respect of the second alleged irregularity Ms Lo submitted that the judge, in the course of directing the jury on the burden of proof had told them that the applicant did not have to prove anything and did not have to call any witness.[7] Later in his summing-up the judgereminded the jury that the applicant had no obligation to prove anything.[8]  Ms Lo submitted that as no issue was taken by the judge on the failure to call defence witnesses when he summarised the applicant’s evidence and that on the basis of the directions already given, there was no basis for the criticism made by Mr Cheung.

36.In respect of the third alleged irregularity Ms Lo submitted that the case fell to be determined by an assessment by the jury of the credibility of the witnesses for the prosecution and for the defence.  In this situation, on the authority of Yuen Kwai Choi, no lies direction was called for.  By way of example she submitted that the comments of Mr Cahill in his closing speech on the applicant’s intention to play mah-jong on returning home were said in order to make the point that if the applicant was returning with friends to play mah-jong then the applicant must have been in possession of keys to the mah-jong room.  This claim by the applicant could be used by the jury in support of the prosecution evidence that he had possession of the keys to this room from which fact the jury could draw the inference that he was in possession of the Ice in that room.

37.In respect of the fourth alleged irregularity Ms Lo submitted that if the applicant’s evidence was not accepted, then, given the presence of Ice in the mah-jong room, the fact that the applicant had the key to open the door of this room and the presence of the applicant’s home visit permit in one of the drawers of the mah-jong table, the jury would have had no difficulty in drawing the inference that the applicant was in custody and control of the Ice.  The judge also gave a direction on whether the applicant possessed the Ice for the purpose of trafficking and in doing so referred to the evidence relied upon by the defence that, it was said, pointed to the applicant not being in possession of the drugs.

38.In respect of the Nguyen Anh Nga case Ms Lo submitted that it did not affect any change in the law and whether what a judge said on the evidence, the issues and the drawing of inferences was very much a case sensitive matter.  She submitted that trial judges must be accorded some leeway to determine what was adequate or necessary in each case and in respect of this applicant the directions given by the judge were appropriate in the circumstances of this applicant’s case.  

Discussion

39.Notwithstanding that the jury acquitted the applicant of the second count and notwithstanding that this means the jury did not accept the evidence of PW1, Mr Cheung accepts that there still existed sufficient evidence on which the jury could find the applicant guilty of the first count.  Mr Cheung’s complaints are not with whether the jury could convict on the remaining evidence but whether in the process of analysing that evidence and reaching their verdict there was a real danger that they may have engaged in impermissible lines of reasoning.

40.The point about the acquittal of the second count and the disbelief of PW1 is that it removed any direct evidence from the proof of guilt and forced the jury to rely on circumstantial evidence only in reaching their verdict. That necessarily brings into sharper focus the adequacy and correctness of the judge’s directions on a number of issues.

41.Before dealing with these matters it is necessary to make some fairly obvious and fundamental points.  First, the purpose of the prosecutor’s cross-examination was to demonstrate that the applicant’s evidence was not believable.  A perfectly normal method of achieving this is to suggest to the witness that what he says happened is a lie.  However, merely to suggest to a witness that he is lying is not necessarily an invitation to the jury to conclude from the fact that he lied that he must, therefore, be guilty.  In dealing with each of Mr Cheung’s complaints the question becomes whether, notwithstanding that the object of the cross-examination was only to discredit the applicant’s testimony, there was a real danger because of the way the questions were phrased, of the jury engaging in an impermissible line of reasoning, whether the line of reasoning be that the applicant must be guilty because he could not explain why police officers would fabricate evidence against him or because he lied about various matters or because he failed to call witnesses that could support his case.

42.The first area of cross-examination where it is asserted that the jury might have been tempted into an impermissible line of reasoning is the cross-examination of the applicant on whether he could provide a motive for the police to fabricate a case against him.  Mr Cheung relies on the following three passages of cross-examination:

“ Q. Tell me, having found or planted this, so you say, piece of drugs, packets of drugs on you, why -- did you see the need for the police to start beating you?

A. Because they wanted me to answer questions. I refused to admit.

Q. I suggest that you were cautioned. At that stage, they had your keys, they had the box of drugs. Why was there a need to suddenly just produce a piece of drug or drugs out of your bag?

COURT: Sorry, could you repeat the question?

MR CAHILL: All right. I will break it down. Thank you, my Lord.

COURT: Yes.

Q. Do you say that this officer had this drug with him and he placed it in your bag and then took it out again pretending that it had been found there?

A. I’m not clear, but surely I knew that he placed the bag there. ‌…”

“ Q. How did it get into that box, your drugs?

A. You can ask the police, they know full well. I don't know.

Q. Well, if you didn't have the key to the red door, how could the drug get into the tin, your drugs get into the tin can or the silver box, I should say?

A. After this group of police officers came into my premises, they searched my room. I knew - and I am honest - I knew that I had some left, some drugs left from previous consumption, so I believe -- and the consumption, the amount left after my consumption was about 10 grammes, so I believe the drugs in the plastic with the red rim belong to me.

Q. Yes. How did they get into the tin box, is my question, as simple as that.

A. Because one packet of ‘ice’ belongs to me, one packet of drugs belong to me. I had put it in my bed -- in the cabinet next to the bed.

Q. How did it come to get into the silver box?

A. Let me continue; I haven't finished.

Q. Sorry.

A. I remember clearly my drug was put inside a plastic bag with red rim, so I suspect the bag here belongs to me.

Q. Well, if it belongs to you, I still ask the question, how did it get there?

A. I’ve explained to you. Ask the police, they know full well.

Q. Are you suggesting the police planted these drugs?

A. I really don’t know. I really don’t know. When I went in, they said they were already there, the things were already there, so they know full well.

Q. Full well what?

A. They know full well from where the drug came from.”

“ Q. Are you suggesting the police planted that one too?

A. Of course.

Q. Do you think that’s a bit of an overkill when they had the drugs and they had you?

A. I don’t understand why the police did that.

Q. I suggest to you that what occurred that night is precisely what the police have told this court.

A. Disagree.”

The italicised parts of these quotations are the passages on which Mr Cheung particularly relies in support of this ground of appeal.

43.It is clear to us that by his questions Mr Cahill was suggesting to the applicant that the police had so much incriminating evidence against him that there was simply no need for them to resort to planting evidence, fabricating admissions and applying violence to the applicant.  The purpose of this line of questioning is to demonstrate the implausibility of the applicant’s allegations and there is nothing improper in it.

44.However, Mr Cheung also refers to comments by Mr Cahill in his closing address to argue that the prosecutor made use of this part of his cross-examination to invite the jury to reason that the inability of the applicant to provide a credible explanation for why the police would behave improperly towards him is a reason for them not to believe the applicant.  The prosecutor said:

“Now, the next thing that ought to exercise your mind, members of the jury, is what was the motive the police would have for beating him in the manner he has described? They had a confession from him outside. They had a confession again with the drugs found in his pocket outside. You have a confession from him inside the red room. You have the drugs there and, in his evidence, he points to one of them and says it is similar to his drugs, the red marked -- the red sealed packet. But I will touch upon that briefly later, members of the jury. But my point to you is that the police had no motive to do what this defendant claims was done to him and I suggest to you that that indicates that what he is saying is not the truth, but in fact a lie.

…

When I asked him in cross-examination, how did this packet with the red lining get into that box and all he could say was ask the police, suggesting that the police were again seeking to frame him. Now, members of the jury, I submit that that just does not make sense. What else does not make sense in his evidence is his allegation that the DPC pulled from his backpack another packet of drugs and he suggested they were planted on him by this DPC. In looking at that aspect, members of the jury, you may well ask yourself, what was the motive for doing that? The police had everything by that stage. They had the admissions, they had the drugs, they had the scales; they had everything that was needed by way of evidence. So, why was there was a need (a) to beat him in any way or (b) to produce another packet of drugs? It just makes no sense, in our submission.

Now, members of the jury, he claims, as I’ve indicated, that in his evidence that whenever it became difficult, it was always, ‘Ask the police’ and, indeed, members of the jury, I would suggest to you that this is a person who was evasive in his cross-examination, evasive in his evidence, seeking to avoid being convicted of an offence which he is guilty of. Now, again I go back to this particular packet that he points out in the box. Why, if he is living in his small room where he says he keeps his drugs, how did this packet get into that box? He couldn’t answer that question except by saying, ‘Ask the police’.

I suggest to you, members of the jury, the reason that packet is there was because it was part of those other nine packets destined for distribution and sale.  I suggest to you, members of the jury, that his general demeanour in the witness box, and by which I mean his avoiding of answering direct questions and his allegations by their very nature, without motive, concocted and untrue, in our submission, and an affront to common sense.”

Again, the italicised passages are those on which Mr Cheung particularly relies.

45.These comments by the prosecutor, it is said, needed a corrective direction by the judge to ensure that the jury did not reason in a way that had the effect of shifting the burden of proof.  

46.We do not agree that the prosecutor’s comments acted as an invitation of the kind contended by Mr Cheung or had the potential to lure the jury into an impermissible form of reasoning whose effect would have been to shift the burden of proof.  Mr Cahill was making the same point he made in cross-examination, namely that the police had more than sufficient evidence and there was simply no need for them to resort to impropriety.

47.That this is the way the jury understood Mr Cahill is evident from their verdicts.  Implicit in their acquittal of the second count is a disbelief of PW1 and the jury’s disbelief of PW1 means that they did not, in fact, accept Mr Cahill’s suggestion as to why they should not believe the applicant and should believe PW1. 

48.In respect of the cross-examination by Mr Cahill of the applicant on whether he was intending to call the garage owner or Choi, we are not persuaded that there was anything improper in the form of the questions asked.  The questions did not have the effect of shifting the burden of proof. Furthermore, the absence of any evidence supporting the applicant’s assertions was relevant to the jury’s assessment of the credibility of the applicant’s testimony.  It is worthy of note that on the claim that Choi wrote him a letter confessing to ownership of the drugs the applicant did not even put the letter into evidence.  If the jury used the lack of supporting evidence adversely to the applicant in the course of assessing the credibility of his testimony that would not have been improper.  The use of the evidence by the jury for a credibility purpose does not have the effect of shifting the burden of proof.  The judge gave the standard directions on the burden and standard of proof saying:

“It is for the prosecution to prove the guilt of the defendant. The defendant does not have to prove his innocence. In fact, he does not have to prove anything. He can just sit back, not testify, not produce anything and not calling any witness in his defence.”[9]

49.There is no reason to believe that they would have reasoned that the absence of this evidence somehow strengthened the prosecution case.  There is no merit in this ground of appeal.

50.The third irregularity is asserted to be a failure by the judge to give a lies direction.  The need for such a direction, Mr Cheung submitted, arose from Mr Cahill repeatedly suggesting that the applicant lied on a number of collateral issues and at times went further and suggested that the reason he lied was in order to escape criminal liability for his conduct.  The following questions asked by the prosecutor in cross-examining the applicant illustrate Mr Cheung’s point:

“Q. I suggested to you Mr Lau, that this evidence of yours about receiving a telephone call is a lie and, in fact, the first time you realized the police were there is when you drove back and they were about to open the red door.”[10]

“Q. You say that when you -- on your evidence, you say that the police planted the drugs on you, in your bag.

A. Yes.

Q. Just one bag they planted on you, is that right?

A. Correct. 5389 was the person who did that.

Q. Well, I suggest to you that’s rubbish; he did not.

A. Disagree.”[11]

“Q. I suggest that this officer did not plant any drugs on you and this is just a fabrication by you to seek to escape these offences.”[12]

“Q. Did you know - if one accepts your story, which I suggest is a lie - did you know that your friends had drugs in their room, in the big room?”[13]

“Q. How many people offered to go to jail for you so you could be free of these drug charges?

A. No, just Choi Wing-lum.

Q. Well, I suggest to you that’s rubbish.

A. No.

Q. In fact, I suggest to you, you’re manufacturing your evidence in a manner to confuse the issue and to avoid the liability that falls fully on your shoulders concerning these drugs.

A. No.”[14]

The italicised passages are those on which Mr Cheung particularly relies.

51.Mr Cheung also relied on comments by the prosecutor in his closing speech to the jury.  The following excerpts provide a flavour of how the prosecutor characterised the applicant’s evidence:

“I would like to turn to the claims that have been made by this defendant in his evidence. And, we would submit that on an examination of it, his claims in his evidence are improbable, implausible and defy common sense.

…

… So, I would submit to you that you can with confidence accept that the defendant did, in fact, have a key to that red room and what he is telling you is a plain lie.

…

… But my point to you is that the police had no motive to do what this defendant claims was done to him and I suggest to you that that indicates that what he is saying is not the truth, but in fact a lie.

…

Another part of the evidence, members of the jury, which we submit shows he is not being truthful; he has told you that he came back with two friends to play mahjong.

…

… And his evidence during the course of this trial, the matters that I have sought to raise, indicate that he was clearly lying in various matters, thus how can one accept the evidence of a man like that?”[15]

52.In order to determine whether these forensic advocacy devices employed by the prosecutor made it necessary for the judge to give a lies direction, the first step is to examine why the prosecutor employed them and what use he invited the jury to make of them.

53.That the prosecutor invited the jury to find that the applicant was lying cannot be disputed.  But when a defendant gives evidence in his defence it is inevitable that in the course of cross-examining him the prosecutor will suggest he is not telling the truth and will seek to impress on the jury that his evidence is false.  There is, of course, a world of difference between characterising a defendant’s testimony as false, deliberately fabricated, untruthful and a downright lie and asking the jury to find that it is a lie and having so found to use that lie as supportive of the prosecution case. 

54.The real question is not how the prosecutor characterizes a defendant’s evidence but what he invites the jury to do should they agree with him that the defendant’s evidence is untruthful.  In most cases the prosecutor does no more than ask the jury, as a consequence of making a finding adverse to a defendant, to disbelieve the defendant, put his evidence to one side and focus on the evidence adduced in the prosecution case.  The law is clear that in this situation no lies direction will usually be needed.

55.In the present case it is quite clear to us that the prosecutor was, through the form of his questions and the comments he made in his closing speech to the jury, doing no more than seeking to demonstrate to the jury that the applicant’s testimony was not credible and that the jury should not rely on it. 

56.However, that is not the only situation when a lies direction is needed.  Even if the prosecutor does not invite the jury to use the defendant’s lies as a supportive of the prosecution case it may still be necessary for the judge to consider whether a lies direction should be given.  In making this decision the judge will be guided by the views of the parties.  But, ultimately, it will be for the judge to assess the risk of the jury engaging in the impermissible line of reasoning to which we have earlier referred.

57.What gives rise to a need for a lies direction is when there is a risk that the jury will engage in an impermissible line of reasoning whereby they conclude that because a defendant has lied on important matters, he is guilty of the charge.  The greater the prominence that the lies assume in the trial, the greater the risk of this line of reasoning occurring.  This risk is enhanced if the prosecutor in his closing address draws specific and strong attention to the fact that he says the applicant has lied and discusses in detail each piece of the applicant’s testimony which he says is a lie.  When the prosecutor actually relies upon the lies as providing support to the prosecution case then a lies direction is needed. 

58.In the present case Mr Cheung submitted that there were a number of collateral issues on which the applicant testified and which attracted from the prosecutor accusations that the applicant was lying.  Mr Cheung argued that in the present case “there was a danger that the jury would think that since the appellant was not telling the truth in a collateral issue, his whole story might be infected by such untruthfulness, and so there was a real risk that the jury might make improper use of the lie and wrongly infer guilt directly from it.”

59.There is nothing unusual about collateral issues assuming a degree of prominence in the course of a prosecutor’s cross-examination of a defendant.  When a prosecutor cross-examines a defendant he is trying to find a means of undermining the defendant’s credibility in the eyes of the jury and he may think that a defendant’s evidence on collateral issues could be a fertile area for him to demonstrate implausibilities or contradictions in the defendant’s case.

60.Consequently, the prosecutor focuses on the collateral issue and gives it greater prominence that its probative value might otherwise justify.  But that, by itself, will not necessitate a lies direction.

61.The lies direction is part of the judge’s armoury and is deployed by him to protect and safeguard the fairness of the trial.  We are not persuaded that, in the circumstances of the present case, and given the way the questions were asked and the way the prosecutor dealt with the collateral issues and the applicant’s lies on them as undermining his credibility, there was any need for the judge to give a lies direction. 

62.We note that in the course of giving the standard direction to the jury that even if they disbelieved the applicant they had to go on and consider whether the prosecution evidence made them sure of his guilt, the judge said:

“Even if you find that the defendant is not a truthful witness and reject his evidence, you cannot convict him just on this ground.”

This direction would have conveyed to the jury that they could not find the applicant guilty just because he lied.  We are not persuaded that there was a real risk of the jury engaging in an impermissible line of reasoning had they found that on certain issues the applicant had lied.

63.The final irregularity is said to be a failure by the judge to give a direction on inferential reasoning. 

64.The primary facts from which the prosecutor was asking the jury to draw the inference of guilt were:

1) the applicant’s ownership of two dogs of a breed that made them particularly suitable as guard dogs;

2) the applicant’s admission that the Ice in the red-rimmed plastic bag was his;

3) the possession of keys which opened the door of the mah-jong room; and

4) the presence of the applicant’s home visit permit inside the drawer of the mah-jong table.

65.The judge did direct the jury on the legal principles relating to the drawing of inferences.  There can be no doubt that those directions were correct and adequate.  The complaint of Mr Cheung is not on the content of the legal directions but the application of them to the issues and evidence in the case.

66.The drawing of inferences is simply part of the reasoning process by which the jury reaches its ultimate verdict.  It will have regard to the primary facts from which the inferences are drawn as part of its consideration of the overall evidence.  In determining whether it can be sure of the defendant’s guilt the jury look at the evidence as a whole and should not, in the course of their deliberations, consciously separate out the direct from the circumstantial evidence.  That is why the courts have said that an inference direction is not always needed and care should be taken not to compartmentalise the evidence.

67.Here, the judge clearly explained how inferential reasoning worked and how it could be employed in order to assist the jury to make findings of fact on which there was no direct evidence.  The judge also clearly explained the different elements of the offences and the prosecution and defence evidence in respect of them and repeatedly directed the jury that they could only convict the applicant if they were sure of his guilt.

68.Mr Cheung referred us to the Court of Final Appeal judgment in Nguyen Anh Nga and submitted that, citation already given at paragraph 29, contrary to what was said in that case, the judge’s direction on inferences was not tailored to the inferences the jury were being invited to draw and the evidence relevant to those issues.

69.But as the Court of Final Appeal makes clear in that decision the adequacy of the inferences directions will fall to be assessed against the facts of each case.  In that decision Bokhary NPJ reaffirmed the principles laid down by the court in Tang Kwok Wah v HKSAR[16] that normally an inferences direction will not be needed unless there are exceptional circumstances present.  Depending on the facts of the case, the drawing of inferences by the jury can be “left to their common sense”.[17]

70.Here the facts and issues were quite straightforward and it seems to us that little in the way of assistance would have been needed by the jury in applying the legal principles to the evidence before them.  The key issue in this case was whether the applicant was the occupant of the mah-jong room.  The jury could not have convicted the applicant of Count 1 if they thought that his denial of occupancy was or might be true.  Once the jury rejected the applicant’s denial and found he was the occupant of this room then his conviction of Count 1 was inevitable.  In terms of the finding that he was the occupant of the mah-jong room the evidence in the prosecution case was overwhelming.  He had a key to the room, he was seen trying to open the door of the room and his home visit permit was found in the mah-jong table in the room.

71.We cannot see that, given the issues and evidence in this case, and the directions of the judge there was any risk of the jury reaching their verdicts by any impermissible form of reasoning or misapplication of the burden or standard of proof.

Conclusion

72.For these reasons we refuse the applicant leave to appeal.

Ms Peggy Lo SPP, of the Department of Justice, for the respondent

Mr Eric TM Cheung, solicitor advocate, of ONC Lawyers, assigned by Director of Legal Aid, for the applicant