HKSAR v. Kwan Cho Hon

CACC000145/1999

CACC 145/1999

HEADNOTE

Criminal law - practice and procedure - exhibits passed to the jury - duty to check that exhibit bags contain no more than what has actually been exhibited before being passed to the jury.

CACC 145/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 145 OF 1999

(ON APPEAL FROM HCCC 209 OF 1998)

_____________________

Coram: Hon. Stuart-Moore VP, Leong and Wong JJA

Date of Hearing: 25 January 2000

Date of Judgment: 25 January 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. On 9 March 1999, the Applicant was convicted of trafficking in a mixture containing approximately 1.19 kgs. of heroin hydrochloride following a seven-day trial before Lugar-Mawson J. The Applicant was sentenced to twenty-two years' imprisonment. He now seeks leave to appeal against conviction and sentence.

2. The circumstances leading to the Applicant's arrest could not have been more straightforward. He was kept under surveillance on 22 March 1998 and was eventually arrested at the Outlying District Ferry Pier in Central having got out of a taxi. He was carrying a Maxim's bag which contained a tissue box. Inside the tissue box, police found four blocks of heroin. These were concealed by four tissues which had been placed over the top of the blocks to hide their existence. The Applicant's fingerprints were not found on the tissue box or on any of the wrapping around the heroin.

3. The Applicant's case was that he was an innocent dupe who had been used by a man known as "Ah Dai" to act as a courier of pirated video compact discs (VCDs). He said that on the first occasion he had acted in this way, he had checked that he was actually carrying VCDs and found that he was doing so. On the occasion of the present offence, he had not bothered to check because having done so in the past he was now able to take Ah Dai's word.

4. The only issue for the jury's determination was concerned with the Applicant's knowledge. Had the prosecution established to the required standard that the Applicant knew that dangerous drugs were inside the Maxim's bag? The prosecution's case was entirely inferential.

5. No criticism has been made of the judge's most thorough and careful summing up. The sole ground of appeal is aimed at what occurred after the jury had retired to consider its verdict. There came a time when the jury requested to see a number of the exhibits. These were duly sent out to them. One of the exhibits was P28, a Smartone mobile telephone and one Smart SIM card. However, when the jury took into their possession the bag which contained Exhibit P28, they would have found clipped to it, in the manner we were shown in court today, a further SIM card, which was a Hutchison card, which did not form any part of the exhibit. The jury very responsibly notified the court of this finding and asked a question in writing which was sent to the judge. The question was:

"Your Honour, we have found that there are two SIM card(s) from Hutchison and Smartone in which we have never been told. Should we put these on our discussions(?) From the jury."

6. With this background, the ground of appeal which has been advanced can be set out. It reads:

"There was a material irregularity during the trial of the Appellant in that the Prosecution led highly prejudicial evidence before the Jury, namely the finding of two mobile phone 'sim cards' allegedly in the physical possession of the Applicant. One was from Smartone mobile phone company and the other 'sim card' was from Hutchison mobile phone company. The Applicant was, through no fault of his own, apparently unaware that such evidence had been exhibited and given to the Jury to deliberate upon (and/or inspect) whilst considering their verdict.

The Applicant was thereby unfairly unable to give any explanation to the Jury as to how the two 'sim cards' had come into police possession at trial. It was important for the Applicant to explain the two 'sim cards'. He had given evidence in his defence where he only admitted having one mobile phone and one mobile telephone number. The Jury without hearing from the Applicant could easily have drawn an adverse inference that the Applicant had lied to the Jury which could not be cured by direction from the Learned Judge.

The Applicant's credibility in this case was especially paramount in view of the fact that the crime alleged was that of

i) trafficking in a dangerous drug,

ii) the Applicant agreed nearly all the facts in the case including the fact he was in physical possession of the bag containing the drugs at the time of the arrest,

iii) the Defence raised by the Applicant was he had no knowledge that the bag's contents were dangerous drugs."

7. And so it is that Mr Allan, on the Applicant's behalf, submitted that this irregularity in the trial has led to a verdict which was unsafe and unsatisfactory. He described the 'telephone' evidence as a vital or crucial issue affecting the Applicant's credibility because the Applicant had given no evidence about the second SIM card and had said that he owned only one mobile telephone.

8. It should be said that the defence was well aware of the existence of the second (Hutchison) SIM card because, without any question, it was referred to in the witness statement which defence counsel had seen, and it was also listed as having been found amongst the prisoner's property in a copied extract taken from the Occurrence Book. However, the prosecution had attached no importance to it and apparently did not produce it. The defence attached no importance to it either and, it seems, did not refer to it. It is agreed that it had not been appreciated by trial counsel or the judge that the Hutchison card was to be shown to the jury as it had never been formally produced as an exhibit.

9. How then did this irregularity occur? During the summing up, the jury were informed that they could, if they so desired, see any of the original exhibits. Counsel in the court below were content that the exhibits could be taken to the jury's retirement room if such a request was made. The jury retired at 12.14 p.m. on 9 March 1999. They sent the question which I have already read shortly before 4.14 p.m., at which time the court was re-convened, in the jury's absence, for the judge to discuss with counsel the question the jury had sent. At the beginning of the discussion, the judge said that he had received "over lunchtime" a request from the jury to see a number of exhibits and he went on, when dealing with this, to say:

"In view of what you (counsel) told me just after the jury's retirement, I said that they could be passed to the jury."

10. The judge then read out the jury's question in full and there followed a discussion in court as to how the Hutchison SIM card could have come to be with the Smartone card. It became apparent during the discussion that the witness statements which referred to the Hutchison card revealed that the card had been found by the arresting officer in the Applicant's wallet. It is less clear whether the arresting officer, when giving evidence, actually referred to this in his testimony. On any view, however, no significance was attached to the Hutchison card by either side, and it was not produced until it was discovered by the jury attached to the packet which contained Exhibit P28.

11. Pausing here for a moment, this provides an example of what may happen when there is a failure to check precisely what is being handed to the jury in response to a request to see exhibits. We need perhaps to say no more than to emphasise the importance of counsel and the judge ensuring that what is sent to the jury contains no more than the exhibit itself together with its wrapping or property bag. It is frequently the case that exhibit or property bags contain more than the exhibit itself, and if counsel for the prosecution and counsel for the defence have done their duty properly, the situation encountered in the present case will not arise. There is a particular duty on the part of prosecuting counsel to ensure that prosecution exhibits, for which he or she must take the ultimate responsibility, are in the proper form. In this respect, the judge should also ensure that there has been no oversight on the part of counsel before releasing the exhibits to the jury, thus providing an additional safeguard against what has happened in the present case.

12. This being said, we have had to ask ourselves how important the jury's discovery of a second SIM card actually was. It is apparent from the summing up, and confirmed by both counsel in court, that the mobile telephone was never mentioned during the course of the entire summing up. There were in the case apparently two sets of admitted facts which were placed in writing before the jury, but none of these referred in any way to the mobile telephone or the SIM cards. The exhibit list itself referred to the Smartone portable phone, as it was described, together with its telephone number and one Smart card. None of the photographs showed the mobile telephone or either of the SIM cards.

13. It is apparent from the discussion in the jury's absence about the question which the jury had asked, that the Applicant had given evidence in his own defence which was to the effect that he was in possession of Exhibit P28 at the time of his arrest. It is also apparent that neither counsel asked any questions about the second SIM card in the Applicant's possession.

14. Defence counsel, when addressing the judge, as to the question asked by the jury, went on to say:

".... I must confess I am in a quandary. I would - if there be, as there may well be, a sensible explanation for the confusion of the defendant insofar as he has applied through Hutchison and I think his evidence - well, I am not sure what his evidence - but, my Lord, the situation is that it would be wrong to tell the jury that the SIM card - Hutchison one - was not part of the prisoner's property because, plainly, it was. It is equally ...."

There, the judge interrupted:

"Well, all I can say is, 'you have before you a SIM card which was handed in as part of Exhibit P28. There is no explanation for it either from the prosecution or the defence' and that is as far as it can go.

(Defence) Counsel: And if there be a doubt - I would invite your Lordship to go on, if there be confusion, it must be resolved in favour of the defendant, given our rules.

Court: That must be right"

15. Following this exchange, the judge then formulated a reply to the jury which found favour with defence counsel and, when the jury returned to court, the judge said:

"Thank you, members of the jury. Members of the jury, I have called you back in and I have also called counsel in because I have received a question from you which I have discussed with counsel in your absence. It reads, 'Your Honour, we have found that there are two SIM card from Hutchison and Smartone in which we have never been told. Should we put these on our discussions. From the jury.' And it is signed Mr Yiu Wai-keung.

Members of the jury, all I can say is this. If, with the mobile telephone which I believe is Exhibit P28, you have found two SIM cards, I can only say that there is no explanation for that in the evidence - either in the evidence led by the prosecution or in the evidence led by the defendant. As I said to you in my summing-up this morning, it is too late to introduce any fresh evidence. You are not to speculate about why this is so. Any doubts that this matter may be giving rise to in your minds, you should resolve in favour of the defendant. And, apart from that, members of the jury, I cannot help you further on this matter. Thank you very much."

16. The jury then went out at 4.31 p.m. and they finally returned with their unanimous verdict at 5.04 p.m.

17. We are satisfied in the circumstances which prevailed that, although this was an unfortunate irregularity in the trial, it was one which bore no materiality whatever. The mobile telephone was not an aspect of the case which contributed in any way to the proof of the allegation against the Applicant. If it had any relevance, it was as relevant to activities being conducted by a person involved as a courier in pirated VCDs as it was to someone who was a courier of drugs. In these circumstances, it is clear that there was no prejudice caused to the Applicant, particularly in the light of the judge's very sensible and clear direction which the jury were given just before they made their final retirement.

18. Accordingly, the application for leave to appeal against conviction is dismissed.

19. Turning now to the question of sentence.

20. The Applicant has put forward representations in person to the effect that the sentence he received was longer than other offenders who have committed offences of similar gravity. This court is not concerned with other offenders but with the propriety of the sentence imposed upon the Applicant. There will be many reasons why other offenders have received lower sentences even though they may have trafficked in larger amounts of drugs. Indeed, if this Applicant had pleaded guilty to the charge he faced, the likelihood is that he would have received a sentence in the region of fourteen years' imprisonment. The guidelines in R v Lau Tak-ming (1990) 2 HKLR 370 are very clear and the sentence range was twenty years or above for the quantity of drugs involved in this case. Indeed, the judge would have been entitled to have taken a higher starting point and the Applicant, in fact, was dealt with moderately with the starting point that was taken. There is no merit whatever in this application and it is dismissed.

Representation:

Miss Anna Y.K. Lai, SGC of the Department of Justice for the Respondent.

Mr William Allan, instructed by Messrs Paul Kwong & Co., for the Applicant (re: Conviction)

Applicant in person (re: Sentence)