Case Document

100%Judiciary

CACC 154/2016

[2018] HKCA 153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 154 OF 2016

(ON APPEAL FROM HCCC 185 OF 2015)

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BETWEEN
	HKSAR	Respondent
and
	CHUNG YIU LAM (鍾耀林)	Applicant (D1)

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Before: Hon Lunn VP, McWalters JA and M Poon J in Court

Date of Hearing: 25 January 2018

Date of Judgment: 25 January 2018

Date of Reasons for Judgment: 22 March 2018

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REASONS FOR JUDGMENT

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

1.The applicant was jointly charged with Yeung Hoi Ting (“Yeung”) one count of trafficking in a dangerous drug, namely 4.96 kilogrammes of a crystalline solid containing 4.86 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant pleaded not guilty but Yeung pleaded guilty on 5 April 2016. On 18 May 2016, after a trial before Deputy High Court Judge Campbell-Moffat (as she then was) (“the judge”), the applicant was convicted by the unanimous verdict of the jury. On 19 May 2016, the applicant was sentenced to 28 years and 3 months’ imprisonment and Yeung to 18 years and 10 months’ imprisonment.

2.Subsequently the applicant and Yeung both filed a Notice of Application for Leave to Appeal (Form XI). By his Notice the applicant sought leave to appeal against both his conviction and sentence, and by her Notice Yeung applied for leave to appeal against her sentence. However, at the hearing of the applications, counsel for Yeung applied to adjourn her application for leave to appeal her sentence which we granted.

3.We proceeded with the hearing of the applicant’s application for leave to appeal at the end of which we allowed it, quashed his conviction and ordered that he be retried on a fresh indictment. We said we would hand down our reasons for so ordering at a later date. This we now do.

The prosecution case

4.The prosecution alleged that the applicant and Yeung acted in concert in trafficking in the Ice the subject of the charge. On the morning of 18 September 2014, police officers laid ambush in the vicinity of Sheung Shui Railway Station, keeping the applicant under observation. He was seen standing near the A2 exit of the railway station at 09:30 hours, appearing to be waiting for someone.

5.At 09:17 hours, Yeung entered Hong Kong from Mainland China at the Lo Wu crossing point. She was carrying a blue backpack strapped to the front of her body and had a red, blue and yellow plastic shopping bag slung over her right shoulder. This shopping bag bore a Paddington Bear print and was referred to in the trial as the Paddington Bear bag, a description which we shall employ in this judgment.

6.Yeung then took a train to Sheung Shui Railway Station and disembarked from it at about 09:25 hours. She was seen approaching the applicant at the A2 exit. There, they met and, after a brief conversation, they went to an urban taxi stand. The applicant was observed handing over a wad of banknotes to Yeung who placed them in the outside pocket of her backpack.

7.At the urban taxi stand the applicant opened the rear right door of the taxi and sat at the rear right seat behind the driver. At that time, the taxi driver asked the applicant where he was going, and he replied he was heading to Mongkok. The taxi driver testified that the applicant appeared nervous and was sweating.

8.Whilst standing by the taxi and talking to the applicant, Yeung placed the Paddington Bear bag on the floor of the back seat in front of the applicant’s legs. Yeung then stepped back onto the pavement, moving away from the taxi. The applicant prepared to close the rear door of the taxi and at this time the police moved in.

9.Yeung did not board the taxi. When she turned and started to walk away, police officers intercepted Yeung and the applicant and seized the Paddington Bear bag from the floor of the taxi. This bag was searched and found to contain four transparent bags of a white crystalline substance, which was later confirmed to be 4.86 kilogrammes of Ice. When the police searched Yeung’s backpack they found $20,000 in banknotes.

10.An analysis of the call records of Yeung’s mobile phone and a mobile phone found on the applicant showed that the two had been in contact on 38 occasions during September 2014, including five contacts between 07:15 hours and 09:23 hours on the morning of 18 September 2014. The last contact, at 09:23 hours, was just two minutes before Yeung disembarked from the train at Sheung Shui Railway Station. The value of the Ice found in the carrier bag was estimated to be $1,993,920 if sold at street level.

The defence case

11.The applicant elected to testify in his defence. He said that on the morning of 18 September 2014 he had not slept for a whole day and he asked Yeung if he could sleep at her home after picking her up in Sheung Shui. When he met her at Sheung Shui railway station she informed him she was pregnant. He suggested that she have an abortion and this upset her. They quarrelled and the applicant said he decided to drop Yeung at her home and then return to a mah-jong parlour in Mongkok which he operated with others. He sat in the vehicle and he moved himself over the rear seat of the taxi, as he expected Yeung to also board it. She placed the Paddington Bear bag on the floor of the taxi but before she could board it the police officers arrived on the scene.

12.The applicant denied that he had told the taxi driver to go to Mongkok directly and claimed he had told him to go first to Chiu Keng Village, Sheung Shui, and then to Mongkok.

13.The applicant also testified that whilst Yeung was in prison on remand awaiting her trial in this case he arranged for a friend to provide prison supplies to her and spend $20,000 each month on her and her family.

14.The applicant was interviewed under caution and it was an admitted fact that the statements made by him during this interview were voluntary. The prosecution did not, however, adduce this document into evidence. The prosecutor, Mr John Dunn, cross-examined the applicant on answers he gave in this interview which were inconsistent with the evidence he gave when he testified in the defence case. For example, during this interview the applicant was twice asked about his relationship with Yeung and he twice answered that he did not know her. When asked why he denied knowing her in his cautioned interview he said[1]:

“Because at that time I was arrested by them all of a sudden it happened. I was kind of frustrated and getting nervous, anxious, feeling restless.”

15.He also said that he blamed her for his arrest but claimed that he did not know she was in possession of the Ice. He also denied that he had given to Yeung the $20,000 found on her.

16.The applicant was also cross-examined on why he had failed to mention in his interview that he was the joint operator of a mah-jong parlour.

The applicant’s Perfected Grounds of Appeal against Conviction

17.In his Perfected Grounds of Appeal Mr Boyton, counsel for the applicant, both at trial and on appeal, raised a single ground of appeal, namely, that the judge in her summing-up erred by misdirecting the jury on the concepts of ‘direct evidence’, ‘circumstantial evidence’ and ‘inferences’ thereby rendering the conviction unsafe and unsatisfactory.

18.The relevant context is that in this trial the core factual issues which the jury were required to resolve were:

(i) whether or not the applicant had handed over the $20,000 to Yeung;

(ii) whether or not Yeung had handed over the Paddington Bear bag to the applicant; and

(iii) whether the applicant knew that the Paddington Bear bag contained a dangerous drug.

19.It was the applicant’s complaint that the judge’s directions on direct evidence, circumstantial evidence and inferences may have so confused the jury that there was a real danger that they may not have approached the resolution of these core issues properly.

20.Mr Boyton referred to the directions given by the judge regarding ‘direct evidence’ where she said[2]:

“… For example, somebody else, other than the police officer, let us have an independent passer-by who actually sees money passing between the defendant and the lady. Somebody who is unassailable, as we call it, because the officer has been criticised. That will be direct evidence of money passing. All right?”

21.Mr Boyton submitted that the effect of this direction was to tell the jury that the police officer’s observation of money passing was not direct evidence because he ‘has been criticised’ and direct evidence could only come from an independent witness. This was particularly relevant to the evidence of the applicant as it had attracted detailed critical comment from Mr Dunn.

22.However, whether a witness was independent or whether the witness’s evidence had been the subject of criticism only went to the witness’s credibility and reliability and could not change, for example, the officer’s testimony that he saw ‘the defendant, give the lady some money’ or the applicant’s testimony that ‘he did not give her the $20,000’, from being direct evidence.

23.Mr Boyton submitted that the confusion created in the jury’s mind as to what was direct evidence was aggravated by the judge when she suggested to the jury that their finding as to whether money was handed over by the applicant to Yeung was a matter of inference. The judge said[3]:

“… If you did find it proved money was handed over. But you may only do so if the inference is the only reasonable inference you can draw.”

24.My Boyton submitted that there was, on this issue, no inference to be drawn as the crux of the dispute was the credibility and reliability of the witnesses’ direct evidence. This mis-direction, he argued, left the jury with the impression that there was a difference in the standard of proof between direct and circumstantial evidence. Mr Boyton said ‘direct’ and ‘inferential’ evidence should not be compartmentalised nor considered separately.

25.Mr Boyton submitted that all these mis-directions created the danger that in the eyes of the jury:

(a) admissible parole evidence within the knowledge of a witness and/or direct evidence that ‘has been criticized’ by the opposing counsel carries less weight and cannot be considered as direct evidence;

(b) a ‘criticized witness’ could also include the applicant as there was no direction to the contrary; and

(c) the evidence of an independent passer-by (defined as direct evidence) carries more weight than that of a ‘criticized witness’.

26.With these erroneous impressions in their minds there was a real danger the jury might adopt an incorrect approach to the applicant’s testimony, rejecting it, wholly or substantially, on the basis that he was a ‘criticized witness’ and his testimony was not independent and was, therefore, not direct evidence of his innocence.

27.On the judge’s treatment of inferences and circumstantial evidence, Mr Boyton submitted that the judge had failed to properly define ‘circumstantial evidence’ to the jury and they were directed to deal with inferences and circumstantial evidence as if these were two different, unconnected and separate entities. The judge in her summing-up said[4]:

“Now, you are entitled to draw inferences, and they are slightly different than looking at circumstantial evidence, because sometimes circumstantial evidence is a little easier because you pile one thing upon another. But inferences, a bit like the chocolate and the little boy with chocolate around his mouth, you could equally call that circumstantial evidence, could you not, because you have got chocolate around his mouth.

Inferences must only be drawn in certain circumstances. You have to find a fact proved from which you are going to draw an inference. For example, if you did find it proved money was handed over. But you may only do so if the inference is the only reasonable inference you can draw.”

28.Mr Boyton complained that the judge ended up with a confusing direction when she defined three pieces of evidence before the jury as both circumstantial evidence and direct evidence. She said[5]:

“So circumstantial evidence can be powerful, for example, we know she is carrying the drugs and we know she is coming in from the mainland and we know, at the end of the day, she has got $20,000 in her front pouch in $1,000 notes. That does not look like shopping money.

So you know all of that. That is direct evidence that you have, and you know that she is physically with the defendant.”

Mr Boyton submitted that this passage could have suggested that ‘direct evidence’ is uncontested evidence, that is, evidence which is not ‘criticized’.

The respondent’s submissions in respect of the applicant’s conviction

29.In replying to the sole ground of appeal against conviction, Mr Andrew Li, Senior Public Prosecutor, for the respondent, submitted that the complained directions[6] must be read in the context of the whole trial. He submitted that the judge was saying there was no direct evidence of the applicant’s knowledge of the dangerous drug and contrasting it with the issue of possession, giving the example of the independent passer-by. This is because in the course of cross-examination, the integrity of the police officer who saw the handing over of money was criticized. He argued that the judge was merely trying to give a clearer example of direct evidence and at no time did the judge suggest to the jury that the officer’s evidence was not direct evidence.

30.Mr Li submitted that the judge referred the jury to the competing inferences urged by the prosecution and the defence when she said[7]:

“So, if you found that money was handed over, is the only reasonable inference you can draw that he was paying her for bringing the drugs in…”

31.Given the adequate direction on the burden and standard of proof, as well as their application to the evidence adduced by the defence, Mr Li submitted that there was no real risk that the jury might treat the testimony of a criticized witness as carrying less weight than that of a non-criticized witness or an independent witness.

32.Regarding the second complaint that the judge failed to properly define “circumstantial evidence” to the jury and they were directed to deal with inferences and circumstantial evidence as if they were two different, unconnected and separate entities, Mr Li submitted that the judge had at least on two occasions directed the jury that they had to take into account all other evidence in order to determine whether the applicant committed the offence and so there was no real risk that the evidence had been compartmentalized.

33.Mr Li acknowledged that the judge’s reference to “direct evidence” after she had identified three pieces of circumstantial evidence is baffling. However, he submitted that it appeared that it was only a slip of the tongue as the judge was clearly dealing with “circumstantial evidence” when that particular sentence is read in context.

Discussion

34.The prosecution case was quite a straightforward one. A drug courier, Yeung, travelled from the Mainland importing into Hong Kong a quantity of Ice. After having crossed the border of Lo Wu she travelled to Sheung Shui where she met her handler, the applicant. There, they walked to a taxi during which time the applicant paid her $20,000 for transporting the Ice. The applicant boarded the taxi and Yeung placed the Paddington Bear bag containing the Ice on the floor of the taxi in front of the applicant’s feet. Yeung then moved away from the taxi. On the prosecution case there was nothing in Yeung’s conduct which suggested she was going to board the taxi. Quite the contrary; her conduct evidenced an intention not to board the taxi.

35.If the prosecution case was accepted by the jury, as it must have been, given their verdict, then Yeung parted with possession of the Paddington Bear bag containing the Ice and the applicant accepted possession of this bag. This factual finding is not a matter of inference but is simply a conclusion that inevitably follows from accepting the direct evidence of the police officers as to what transpired from the moment the applicant and Yeung met at Sheung Shui railway station to the moment they were intercepted and arrested.

36.But this direct evidence only related to the issue of physical possession of the Paddington Bear bag and whether the applicant intended to acquire custody of it and exercise control over it. There was no direct evidence that he knew that the bag contained Ice. On this issue of knowledge on the contents of the bag the jury were being asked to draw an inference from the circumstantial evidence.

37.The judge was well aware of this and, after explaining to the jury the legal concept of possession said[8]:

“ Now, of course the prosecution says she has handed it over, he is taking it somewhere else. So he clearly, the prosecution says, was in possession of the bag and was going to do something with it, so he exercised to control over it. Whatever he was going to do, whether he is going to put it in a rubbish bin or give it to somebody else, possession had moved from her to him. He now had possession. So if you accept that, you are sure of that, then that would be the end of the matter on the possession element side of it, although, of course, you have got to think about whether he knew what it was he possessed.

If you think it was placed at his feet by Yeung, for him to take it to Mong Kok and give it to others, then that is sufficient for possession. If, however, you think it is or may be the case that he had made room for her in the car and she had placed it in the footwell prior to getting in herself in order for her to be taken home, then you may find that she was still in possession of it and not him. It is a matter for you to decide. But, equally, you may find, if you find that she was going to get into the car as well, you may find that they were both getting in and both going to Mong Kok in which case they were jointly in possession. So it will depend on what you make of the facts, would it not it, all right?

And, perhaps, ladies and gentlemen, it turns on what you make of his knowledge when we look at all the circumstances; the facts of what happened; whether you find that he must have known what was in the bag? I am going onto what inferences can be drawn from the facts but that is the question you are going to ask yourself: am I sure he knew what was in the bag, yes?”

38.The judge went on to discuss the evidence in the case, suggesting to the jury that[9]:

“You may think that in order to make a decision about this case you really need to be concentrating on what happened from 9:30 onwards.”

39.Up to this point there can be no criticism of what the judge has told the jury. She then went on to discuss the evidence of the prosecution witnesses and in doing so distinguished between the taxi driver and the police officers. When she came to the evidence of the taxi driver the judge, after referring to the police evidence that Yeung placed the Paddington Bear bag on the floor of the taxi, said[10]:

“But the point is, it was in the footwell at the end of the day and the taxi driver sees there, and he is the most independent of all of the witnesses, is he not? So even if you are a little concerned about the evidence of the police officers - I am not suggesting you should be, but even if you were because it is for you to decide - you have got the evidence of the taxi driver and he says they go to the car but they are chatting.”

40.The distinction she made is that the taxi driver was the most independent of all the witnesses. By independent we presume that the judge was not just referring to the fact that the police had an involvement in the investigation but also that they had been attacked by defence counsel when cross-examining them. This became apparent when, later in her summing-up, the judge referred to direct evidence as evidence coming from an independent passer-by; someone who was unassailable and who, unlike the police officer, had not been criticized. The passage in which these comments were made by the judge are quoted at paragraph 20 of this judgment.

41.After concluding her discussion of the applicant’s evidence, the judge embarked upon a discussion of circumstantial evidence and the drawing of inferences. She said[11]:

“But the complicating bit is, because you have got that – and because often you do not get direct evidence of criminal offences – what the prosecution are saying to you is that there is evidence you can look at and you can take into consideration and when you look at that evidence which you know happened, you can say that you can draw an inference that something else must have been the case because of the evidence you do know.”

42.Again, no criticism can be made of this direction. However, after giving the jury an illustration of how an inference can be drawn the judge returned to the inference that the jury, in the case before them, was being invited to draw by the prosecution, namely the inference that the applicant knew there were dangerous drugs in the Paddington Bear bag. The judge said[12]:

“So ‘circumstantial evidence’, we call it, and Mr Dunn quite rightly and Mr Boyton have said there is no direct evidence of the knowledge of the defendant. There is direct evidence about possession that you can decide about, but knowledge is a very difficult thing, it is what is in somebody’s head. So sometimes we will ask you to find something proved by a fact by direct evidence. For example, somebody else, other than the police officer, let us have an independent passer-by who actually sees money passing between the defendant and the lady. Somebody who is unassailable, as we call it, because the police officer has been criticized. That will be direct evidence of money passing. All right?

But it is often the case that you do not get that direct evidence and you have to rely upon other evidence. And you pool all of that other evidence, if you agree it, in order to decide and make a conclusion about whether somebody committed a crime.

Now, it is not necessary for the evidence to provide an answer to all of your questions. You often would not be able to answer all of your questions, often there will be gaps because this is not a film, somebody has not directed this and taken account of everything. But it must lead to a conclusion that you are sure of the defendant’s guilt.

So circumstantial evidence can be powerful, for example, we know she is carrying the drugs and we know she is coming in from the mainland and we know, at the end of the day, she has got $20,000 in her front pouch in $1,000 notes. That does not look like shopping money.”

43.However, at this juncture, the judge then carried on to describe these “primary facts” as “direct evidence”[13]:

“So you know all of that. That is direct evidence that you have, and you know that she is physically with the defendant. What you do not know is the relationship. So it can be powerful but you must use it very carefully in order to find that it is reliable and it proves guilt. Or is it sufficiently reliable? Or is there something about the strength of it that casts a doubt upon the prosecution’s case. So please be careful to distinguish when arriving at conclusions based upon circumstantial evidence that it is not speculation or guesswork.”

44.What the jury required was a simple explanation of what primary facts were relevant to the inference of knowledge. The jury is made up of lay persons who cannot be expected to have independent knowledge of the meaning of “direct evidence”. We were satisfied that there was a real danger that the jury might have thought from all the comments the judge made that evidence that was not independent or evidence that was vulnerable to criticism was not direct evidence and that had the jury laboured under such a misunderstanding that it would have affected their view of the applicant’s evidence.

45.This would have been compounded by the judge’s misdescription of the circumstantial evidence relating to Yeung as direct evidence. The judge had gone to great pains to emphasise the importance of the inculpatory value of direct evidence and so this misdescription, in the circumstances of this case, took on a greater significance. It cannot be easily dismissed as a mis-speaking by the judge, which the jury would have readily recognised as such.

Proviso and retrial

46.The respondent acknowledged that this was not an appropriate case for application of the proviso but applied for the applicant to be retried. Mr Boyton did not oppose the application and did not seek bail for the applicant pending his retrial.

Conclusion

47.For these reasons we allowed the appeal, quashed the applicant’s conviction and ordered his retrial on a fresh indictment, pending which we ordered the applicant to be remanded in custody.