HKSAR v. Khan Changaz

CAC C 117/2017

[2018] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 117 OF 2017

(ON APPEAL FROM HCCC NO. 412 OF 2015)

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

Date of Hearing: 2 March 2018

Date of Judgment: 12 April 2018

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

1.After trial before Deputy Judge ST Poon and a jury, the applicant was convicted of a single count of trafficking in 52.44 grammes of ICE and 3.37 grammes of cocaine for which he was sentenced to 8 years and 9 months’ imprisonment. He seeks leave to appeal against his conviction.

PROSECUTION’S CASE

2.This is a random search case the evidence of which rested principally on two police officers doing their normal patrol duty.  The trial judge summarized that evidence to the jury as follows^[1]:

“ Now, the first witness is PC14779 …… He, together with his partner, PC15935 …… was on patrol in Tsim Sha Tsui and as they walked along Mody Road they spotted the defendant’s car parked on Minden Row with its headlights on …... He said he initially wanted to see why the car was parked on the double yellow line, but as they were approaching the car he saw the defendant acting suspiciously. He said the defendant was gripping the steering wheel and put his left hand from the steering wheel down to the position of his left trousers pocket.

At this point of time, he decided to do a search on the defendant as he suspected the defendant of having committed some kind of offences. He spoke to the defendant through the driver’s window and asked, in Cantonese, what the defendant was doing there. The defendant simply answered him in Cantonese, ‘Nothing’. He then asked the defendant to get down from the car and the defendant did. He then conducted a body search on the defendant at the position on the pavement some feet in front of the car. There was nothing suspicious found on the body of the defendant. It is the evidence of the first witness that they then called for reinforcement ……

Two other policemen arrived a few minutes later and after their arrival the first witness conducted a search on the car with the defendant standing close behind him, guarded by the second witness. They witnessed the whole process of the search. The first witness found the subject plastic bag at the storage compartment of the right front door of the defendant’s car with the drugs and other objects inside the plastic bag. I will not repeat the objects here.

The first witness said he then showed to the defendant the pink plastic bag and each and every object in it, one by one. He said he showed the defendant the objects when standing beside the driver’s seat of the car with one of his hands holding the plastic bag. And he took out each object from the plastic bag and showed to the defendant one by one.

…...

After showing all objects to the defendant, the first witness declared arrest of the defendant ……”

3.In an earlier passage, it was pointed out by the judge that the above incident took place on 13 March 2015, at around 1 am, and that the “subject” or “pink” plastic bag, which is the same, actually contained[2]:

“ …… two tissue bags with content, two plastic bags with content, six empty plastic bags and some other items ……

Inside one of the above-mentioned two tissue bags there were 12 empty transparent plastic bags and two transparent resealable plastic bags.  The two transparent resealable plastic bags each contained what was later confirmed to be methamphetamine hydrochloride, commonly known as ‘Ice’.  Inside the other tissue bag there were a transparent resealable plastic bag and a sheet of tissue.  The transparent resealable plastic bag also contained what was later confirmed to be ‘Ice’. The contents found inside the two transparent plastic bags in the pink plastic bag were later confirmed to be cocaine.  Subsequent examination by the government laboratory found out that there was in total 53.9 grammes of a crystalline solid containing 52.44 grammes of ‘Ice’ and 5.05 grammes of a solid containing 3.37 grammes of cocaine inside the pink plastic bag ……”

4.Also forming part of the prosecution’s case were three expert witnesses, namely Inspector Lo Kwok-kin, on the value of dangerous drugs; Dr Yip Ming-fai, on DNA examination; and Professor Tang Wai-kwong, on the average daily consumption rate of users of ICE.  Dr Yip’s evidence was relevant because DNA likely to have originated from the applicant was found on one of the plastic bags containing cocaine.

5.There was no out-of-court statement from the applicant.

DEFENCE POSITION

The Applicant’s Version

6.The applicant gave evidence.  His testimony too was summarized by the judge who began by saying[3]:

“…… [The applicant] gave an account in line with what had been put to the first and second [prosecution] witnesses by Mr Bullett in cross-examination …...”

7.The matters put to the two police officers, which they denied, were[4]:

“……that the car was originally parked at a different point …...

…… that the defendant was not acting suspiciously and it was the first witness who instructed the defendant to move the car from its original position to where it was as marked by him on the sketch despite the defendant telling him that he could only drive with glasses on.

…… that when the first witness asked the defendant what he was doing, the defendant answered that, ‘My cousin parked it here. He will come and will move it. I can’t drive because I don’t have glasses.’ …… that what had actually happened was that after the defendant alighted the car the second witness brought him to the rear of the car to do a body search while the first witness, at the same time, starting searching his car.

The defendant did not actually see how the first witness searched the car and after the second witness finished the body search on him, he was asked to go near to the car where he saw the pink plastic bag and other objects displayed on the roof of the car.  The first witness asked the defendant what they are and if they belonged to the defendant.  The defendant said he does not know and the objects are not his and that his cousin had gone to get some water.  As the eyesight of the defendant is poor, he picked up one of the bags to see what it is …...”

8.As is readily apparent, the above version saw the introduction of the cousin and, if believed, would explain the applicant’s DNA on one of the bags containing the cocaine.  It formed the basis of the applicant’s defence commonly known as ‘complete denial’.

9.The rest of the defence version of events was as follows[5]:

“ …… You will remember the defendant said he bought the car for $20,000 one or two months before the date he was arrested …... He often lent his car to his friends and his friends sometimes even lent his car to people he did not know. He had once seen his car driven by someone he did not know and that surprised him. He knew that some people have in their possession the key of his car.

The defendant said he lent his car to his cousin, Mohammad Saeed on the morning of 11 March 2015 between the time of 9 am and 10 am. On the night in question, he went to Minden Row to collect his car back from his cousin. He needed to collect the car in person as he has to see whether the car was damaged. His cousin parked the car at the exit from Minden Avenue to Minden Row. After he had a look of the car he got into the car and sat on the passenger seat. His cousin said to him that he wanted to get some water at 7-Eleven. He asked his cousin to move his car so as not to block the traffic and he offered to his cousin to go get water for him, but his cousin declined and got out of the car.

His cousin left the door of the driver’s seat open and the car was parked in a position which might block other cars going through the road. The defendant then decided to get on the driver’s seat such that he can move the car in case there are other cars coming. About one minute later, someone knocked on his window and he saw PW1. PW1 asked him to produce his driving licence and asked him what he was doing. He answered, ‘I am doing nothing. My cousin has gone to 7-Eleven for water and I am waiting for him.’ PW1 then asked him to move the car to the other side. He told the police officer that he could not see clearly but the police officer said there’s no problem as the car has blocked the traffic behind.

The police then walked ahead of the car and the defendant moved the car to a position following their instructions.  He was then searched by the second witness, PW2, at a position two car lengths behind his car.  At the same time, PW1 opened the door of the car and somehow he got a pink plastic bag out of the car and placed it on the roof of the car saying that he found it in the car.  The first time the defendant saw the pink plastic bag was when it was placed on the roof of his car by PW1.  The defendant said PW1 has already emptied the plastic bag and placed the objects inside on the roof of the car when he was called upon to look at them.  PW1 asked him what they are and asked whether the items belonged to the defendant.  The defendant said he has no idea what they are and said they might belong to his cousin and his cousin has gone to 7-Eleven and when he comes back they can ask his cousin whether the objects belong to him.  The defendant said he had a lot of conversations with the police officers in Cantonese.  The police never cautioned him.”

The Applicant’s Cousin

10.The applicant did not, however, stop at disclaiming knowledge and involvement.  It was his positive case that the drugs belonged to Saeed Mohammad, his cousin.  Hence his insistence that he and Mr Saeed had tried to clarify matters[6], albeit that it was denied by the relevant officers[7]:

“…… the defendant said he went to Tsim Sha Tsui Police Station together with his cousin and asked to see the person in charge of his case. PW3, the third prosecution witness, came out and took him into a room and his cousin was waiting outside. He told PW3 that the drugs found in his car belonged to his cousin, however, PW3 only told him better to explain to the court and sent him away.

When asked by his counsel, Mr Bullett, how long after he has been arrested that this first visit took place, the defendant said it was one to two months later.  The defendant said he went together with his cousin to Tsim Sha Tsui Police Station a second time where he met and talked with PW4.  The defendant said he went to Tsim Sha Tsui a third time, but this time he did not bring his cousin with him.  He met PW5 and told PW5 to talk with his cousin.”

11.The applicant also managed to have Mr Saeed give a statement to a private solicitor[8] admitting inter alia that he was a drug user, that he had indeed borrowed the applicant’s car, that he had bulk-purchased the drugs seized for his own consumption and that he had gone off to buy himself a drink of water when the police spotted the applicant.  He explained that feeling scared, he had not returned to the car but had on a subsequent occasion gone to Tsim Sha Tsui police station with the applicant to make a confession, to no avail.

12.In court, Mr Saeed quickly failed to come up to proof.  His further answers prompted the judge to grant leave for defence counsel to treat him as a hostile witness.  Despite counsel’s effort, the following is, after some prevarication, the account that Mr Saeed stuck to in evidence: he did not have a driving licence nor did he know how to drive so he could not have borrowed the applicant’s car; although he had previous convictions for possession, he had nothing to do with the dangerous drugs in question; he was ‘high’ on drugs when attending the solicitor’s office and, in any event, he was there to give a statement only because the applicant had asked him; the content of that statement of which he had no knowledge or memory was untrue; it was also on offer that should he go to the police station and lie about borrowing the applicant’s car and being the owner of the drugs, he would be paid by the applicant; he had not actually received any money from him.

13.That being the case, but also in order that the statement be proved to be Mr Saeed’s[9], a Mr Qazi, the Pashto-English interpreter who was present during the statement taking was called as a third defence witness.  His evidence was that Mr Saeed’s statement was indeed taken by a solicitor, with the help of his interpretation; the statement was then typed up and signed on the last page; before signing, Mr Saeed had had the benefit of Mr Qazi taking him through the statement again in the Pashto language; during the entire exercise, Mr Saeed “seemed normal” and “understood whatever [Mr Qazi] interpreted to him”; there was no indication of any unwillingness on his part to give a statement; on a second visit to the solicitor’s office, Mr Saeed was asked to append his signature to every remaining page of the statement and Mr Saeed complied.

GROUNDS OF APPEAL

14.Mr Bullett who represented the applicant at trial as in this application has advanced four grounds.

GROUND 1

15.Ground 1 complains that the judge was wrong in giving a lies direction.

16.There are three aspects to this complaint the first one of which is roughly as follows:

(a) This case is all about knowledgeable possession.  If the defence of lack of knowledge was rejected, the jury would have no alternative but to convict the applicant.

(b) That brings it within the situation where “the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic”, and where “the usual direction on the burden and standard of proof would normally be sufficient” (Yuen Kwai Choi v HKSAR (2003) HKCFAR 113, at 129A).

(c) In such cases, it is “inappropriate” to give a lies direction (Yuen Kwai Choi, ibid, at 128J).  Other “risks” aside, such a direction may “give rise to the wrong perception in the minds of the jury that the appellant [was] more inclined to lie than an ordinary witness”, or that he was “less credible than prosecution witnesses” (Jim Fai v HKSAR [2006] 1 HKLRD 968, at 976F – H).

17.The second aspect is:

(a) Neither prosecution nor defence counsel had seen the need for a lies direction.  It surprised the latter when one was given in the summing up.  That does not sit comfortably with the notion that a judge should “of course be assisted by counsel in identifying cases where a [lies] direction is called for” (R v Burge [1996] 1 Cr App R 163, at 173G – 174A).

(b) When defence counsel made known his surprise, the judge responded by observing that (i) the applicant’s defence was “similar” to an alibi defence and (ii) according to the authorities, a lies direction would normally be given in cases involving alibis.  The judge was right as regards (ii) (Burge, ibid, at 173D) but wrong in relation to (i).  The Latin meaning of alibi is ‘elsewhere’, whereas the applicant’s defence is best described as ‘someone else’.  They are entirely different.

18.The third aspect is:

(a) In his closing address, prosecuting counsel labelled the defence case in respect of Mr Saeed as a “fabrication”.  He did not suggest that this fabrication would go any further than to impact adversely on the applicant’s credibility.

(b) In accordance with the lies direction, however, the jury was told that, under certain stipulated conditions, this fabrication or lie of the applicant can be regarded as supportive of the prosecution’s case.

(c) This use of the alleged lie was impermissible because even if the drugs did not belong to Mr Saaed, the applicant would still have to be in knowing possession of the drugs before he could be convicted. Put differently, the jury would still have to be sure that (i) the drugs did not belong to some third person and (ii) the applicant was not unaware of their existence.  These were not, however, foregone conclusions given the applicant’s account that he often lent his car to others.

Discussion

19.We do not think there is any merit in this ground.

20.The first aspect of Mr Bullett’s complaint is falsely premised.  It would have been a valid argument if the applicant had stopped short of calling Mr Saeed as a witness.  If he had been content to confine himself to an account asserting a drug taking cousin who had just returned his car then this would be a case which, according to Yuen Kwai Choi, was not a suitable candidate for a lies direction.  If would be no different from the vast majority of cases where a defence is put forward but which defence the prosecution says is untrue.

21.In this case, however, we have the not un-peculiar feature of Mr Saeed admitting to being the owner of the drugs. Although it was later disavowed in court, this extraordinary and suspect act of self-denial was attested to by an independent third party whose clear evidence the jury had no reason to reject.  Moreover, in disassociating himself from this earlier admission, Mr Saeed had let slip a mundane but highly plausible explanation for such an about-face, namely, the applicant had promised but failed to pay him.  This laid the applicant open to an attack which is beyond just calling the defence case a lie.  Understandably, prosecuting counsel made the following remarks to the jury[10]:

“ Now, what I’m suggesting to you …… is that Mr Khan’s story is a made-up story, a recent fabrication ……

……

Now, he, to bolster, to make his story seem stronger, he asked Mr Saeed, his cousin, hoping — remember, Mr Saeed was a witness called by the defence, not called by the prosecution, not called by me, he was called by the defence — and he hoped that, the defendant Mr Khan hoped that Mr Saeed would say — would help him by saying he borrowed the car. Whether he would say the drugs are his or not, one doesn’t know.[11]

……

So, Mr Khan has, it was put to him, been kind to him when he was kicked out and looked after him for a while, helped him. Now, you may think what better person? If a person is trying to get him to say something which is not true is to get -- he’s the best person to ask, Mr Saeed, heavy drug user, whom at some stage before this time Mr Khan has been kind to.

And, Mr Saeed, being the person he is, was prepared to go along, but up to a point. He’s not prepared to take the blame for such a large amount of drugs which is not his. He was prepared to go along for money, which he told you it’s for money. He probably went up to the solicitor’s office; he went there twice. On the first occasion, a prepared statement was given to him to sign on the last page, if I remember, and he signed. I don’t doubt the interpreter’s evidence that he signed that statement on the last page and subsequently, on the second occasion, on every other page too. But his evidence is, he doesn’t know, he doesn’t remember, as he was on drugs.

Anyway, he was prepared to cooperate with the defendant up to that point, up to the point of his statement, but what he’s not prepared to do is to come to this court to lie to you about the drugs being his, about him borrowing the drugs and about going to the police station.  He’s not prepared to do that and you may think that, although he’s a bad person, that at the end of the day, with a clearer head now, in prison without any drugs, with a clearer head, as I put to him, that he’s telling you the truth now …...”

22.Clearly, in our judgment, these remarks and the peculiarity of the circumstances which gave rise to them rendered it appropriate if not necessary for the judge to give a lies direction.  Although there is nothing in the prosecution’s closing speech which wrongly suggests that, if the jury so found, this lie which the applicant and Mr Saeed had put together was probative of the applicant’s guilt, there is nothing in this speech which would disabuse the jury of this impermissible line of reasoning either[12]. In fact, we are inclined to believe that, without intervention, that may well be how the jury would have taken it.  As the Court of Final Appeal observed in Yuen Kwai Choi, ibid, at 129C – E:

“38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt ……; 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.”

23.Moving on to the second aspect of Mr Bullett’s complaint, we do not think it is correct to say that the parties were caught by surprise.  As the transcripts go, the question of lies did receive attention at the conclusion of the evidence, when the judge was canvassing counsel as to what specific directions he should include in his summing up[13].  It was a mixed and intermittent discussion also concerning the question of hostile witnesses but, to the extent that they can be isolated without any distortion in meaning, these are the major exchanges on lies[14]:

“MR BROOK: My Lord, in my final speech, I would mention matters in relation to DW2 – DW1, sorry, DW1,[15] on the lines that a desperate attempt by the defendant to get out of his guilt by inventing a witness, something on those lines.

……

COURT: Yes, and with that submission, do you think I need to give a lie direction?

……

MR BROOK: Lying in respect of …

……

COURT: The lie of the defendant in setting up all these lies together with this witness and what not.

……

COURT: Well, it may be an academic point, I -- well, it immediately came to my mind, that if the defendant -- so your case is that the defendant had designed a scheme together with …

MR BROOK: Well, that’s how the evidence came out.

COURT: ... this witness. Now, that’s what you will propose to the jury …

MR BROOK: Of course, yes.

COURT: … that the defendant had designed a scheme together with DW1 to fabricate all these.

MR BROOK: Yes. Of course, I would not …

COURT: It’s with a view to …

MR BROOK: I would not put it in those terms. I would put it in – if you – you may think that this is the case but you may think that he’s a witness that you don’t want to believe. If you don’t believe him, don’t believe him, but you have to consider it. That’s how I will put it in my speech.

……

MR BULLET: My Lord, I think my learned friend has just answered the question, but I was going to say that it rather depends how he closes his case whether a lies direction would be required. But, my Lord, I would urge you to look carefully – the defendant himself was not being specific about exactly when these visits to the police station took place, but the first officer was there, there were three weeks, 20 days, before that Saeed Mohammad was in custody.

……

COURT: All right, now, can I ask you this, Mr Bullett? Mr Brook has indicated he will in his closing speech mention about ...

MR BROOK: DW1, yes.

COURT: ... DW1 and what not.

MR BROOK: There is clear evidence that he was told to lie for the defendant by the defendant.

COURT: Now, do you have any observation or objection to this line on the part of the prosecution?

MR BULLETT: Well, I don’t think I can stop my learned friend from saying that, but I...

COURT: If not, then...

MR BULLETT: I believe that...

COURT: ... I will not be in a position to tell the jury to ignore totally DW1’s evidence.

……

MR BROOK: Going back to the lies, as to the lies, I think the standard direction on lies about a defendant who went into the witness-box would be sufficient, would it not?

COURT: Who went to the witness-box.

MR BROOK: Who went to the witness-box. The defendant went in the witness-box; the standard direction if you don’t believe him ...

COURT: It doesn’t mean that he ...

MR BROOK: ... then do you think he’s lied and then so on and so forth, my Lord. The standard one, in my submission, would be sufficient.

COURT: So, you don’t think there’s any need to address by way of a lies direction or similar direction in relation to your proposition that the defendant had designed a scheme together with the first witness.

MR BROOK: Well, that’s another area because it’s not a direct lie by the defendant, he’s put forward a witness which he hoped will lie for him but he didn’t.

COURT: Yes, I will think about this.”

24.The significance of above discussion is that, notwithstanding counsel’s positions, with the defence riding on what the prosecutor said about the limited use of the lie he intended, the judge is seen to have remained vigilant of its possible danger.  He was obviously as much concerned about the evidence of Mr Saeed per se as he was concerned about the content of the prosecution’s closing speech.  His last word on the subject was “I will think about this”.  There was therefore no reason for defence counsel to assume no lies direction would be given, especially given that, after listening to what the prosecutor said to the jury, he did not seek clarification with the judge of his intended course of action[16].

25.In the final analysis, as was pointed out by another division of this Court in HKSAR v Lau Tak Mong CACC 337/2016, unreported, 6 March 2018, at page 25B – F:

“56. …… Even if the prosecutor does not invite the jury to use the defendant’s lies as 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.”

The criticism on the analogy with alibi cases is, we should add, misplaced.  By drawing that analogy, the judge was comparing this case to the case of putting forward another kind of positive defence which risks being found to be a lie by the jury.  The emphasis is on the positive nature of the defence.

26.In our experience, it is not uncommon for defence counsel to resist the giving of a lies direction.  They resist it because, other things aside, the direction speaks of using lies as supportive of the prosecution’s case.  However, as was explained in the judgment of Lau Tak Mong, ibid, at page 26I-M:

“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 …...”

It follows that, as a general rule, this tactical sensitivity of the defence is of little if any significance.  It also means that, irrespective of what a prosecutor (Mr Brook in this case) professes to be his intention in relation to an alleged lie (limiting it to an attack on credibility), for so long as a judge sees the need to do so, then a lies direction must be given.  It is for the defendant’s own protection.

27.More fundamentally, the problem with the third aspect of Mr Bullett’s complaint is that his proposed scenario of some unidentified previous borrower leaving the dangerous drugs in the applicant’s car is entirely speculative.  Apart from the mere assertion that the applicant would often lend his car to others, there is not a scintilla of evidence to support it.  It defies common sense as to why this unknown person had not sought to retrieve those drugs, unless one is prepared to enter into further speculation.  So, from this angle too Mr Bullett’s objection to the lies direction is falsely premised.  As applied to the present case, there is nothing inappropriate about that part of the lies direction which says, under certain stipulated conditions, the applicant’s lie can be regarded as supportive of the prosecution’s case.

GROUND 2

28.Ground 2 complains that the summing up was unbalanced.

29.This ground is based on what the judge said in the following two passages, now italicized.  For context, we have included a short length of what was said before and after the impugned remarks[17]:

“…… you should also take into account the following matters: firstly, the defendant’s account of the circumstances he came to be in his car and his evidence that he had lent his car to his cousin, and his cousin was returning the car to him; and second, he had lent his car to other people.

If you consider appropriate you may also ask yourself this question. Would the person who was actually in possession of the dangerous drugs leave the car, leaving the dangerous drugs inside the car bearing in mind its value? In this connection it is for you to decide what the level of value of the dangerous drugs was. The expert had given you his opinion as to the price of the dangerous drugs. It is common sense, and indeed the expert told you that price may vary amongst different transactions, but it does not mean that if you accept the evidence of the expert you cannot form your own view on the approximate level of value of this batch of dangerous drugs having regard to what you have heard from the expert. Having formed the view on the value of the dangerous drugs, if you consider appropriate you may ask yourselves would the person who was actually in possession of the dangerous drugs leave the car, leaving the dangerous drugs of such value inside the car.

If, after consideration of the whole of the relevant evidence you are not sure that the defendant was in possession of the dangerous drugs found, then you need not consider further and must find the defendant not guilty.

If you are sure that the defendant was in possession of dangerous drugs, then you must carry on to decide why he was in possession of the dangerous drugs …...”

30.Mr Bullett submits that given the low monetary value of the drugs seized (no more than $26,000 according to the expert) and the special relationship which Mr Saeed admitted to enjoy with the applicant (extended family by marriage, close friend and someone who had given him a place to sleep), the judge’s remarks were unrealistic, unfair and unbalanced.

Discussion

31.Value and priciness is a relative concept. Taken against the background of someone who was homeless, and who had a drug habit, we do not think it is either irrational or unjustified for the judge to have made the impugned remarks, particularly if the police were to be believed that the drugs were left unconcealed in the driver’s side door-compartment[18].  It surprises us that, of the entire summing up, counsel should single out these two short passages to press the argument of unfair and unbalanced summing up, whether on its own or in conjunction with other grounds.

GROUND 3

32.Ground 3 questions the sufficiency of the judge’s directions as to the proper approach to Mr Saeed’s evidence as a hostile witness.

33.Mr Bullett’s complaint goes largely as follows:

(a) Mr Saeed’s testimony in court was inconsistent with his statement to the solicitors in a large number of ways.  He was also inconsistent during his oral evidence when he made frequent changes to what he was saying.

(b) An example of the former kind of inconsistencies is when Mr Saeed denied borrowing the applicant’s car, claiming incorrectly as he eventually agreed to have been in custody (examination-in-chief)[19] and later, claiming he did not know how to drive and did not have a driving licence (examination-in-chief)[20].

(c) An example of the inconsistencies of the latter kind is when Mr Saeed explained his purpose of going to a solicitors’ office. It went from having no recollection of and denying any statement-taking because he was on drugs (examination-in-chief)[21] to helping the applicant out with the translation for money (examination-in-chief)[22] to giving a false statement about borrowing the applicant’s car and being the owner of the drugs at the latter’s behest (cross-examination)[23].  It was also suggested that there was to be a reward of money[24].

(d) Given the above inconsistencies, Mr Saeed’s evidence was patently less than satisfactory.  Given those inconsistencies, the judge should have (i)   considered whether Mr Saeed was a witness of sufficient creditworthiness; (ii)   concluded that he was not; and (iii) directed the jury to disregard Mr Saeed’s evidence (R v Maw [1994] Crim LR 841 at 842).

(e) The emphasis here is on the judge making a personal assessment of Mr Saeed’s creditworthiness.  Regardless of his conclusion, the judge’s task was to make that assessment based on Mr Saeed’s own inconsistencies.  Erroneously, he had looked to the contrasting evidence of Mr Qazi, the interpreter, to accord Mr Saeed credence.  Erroneously, he accorded sufficiency to Mr Saeed’s claim of a failed promise of reward as an explanation for his change in evidence.  This is clear from the judge’s pre-summing up discussion with counsel on directions.

(f) Apart from being wrong in law, the judge’s approach was marred by his referring to only some of Mr Saeed’s inconsistencies in the summing up.  In a highly abridged version, the jury was told that Mr Saeed disowned his previous statement because the applicant had promised but failed to pay him.  The jury was not properly assisted in their task of assessing Mr Saeed’s creditworthiness and credibility.

(g) Noting that the Court of Appeal in Hong Kong had cited with approval the High Court of Australia case of R v Driscoll (1977) 137 CLR 517 (R v Yip Moon Tang [1984] HKLR 443), thus acknowledging the absence of an inflexible rule that juries be warned that the evidence of a witness who has made a previous inconsistent statement “should be regarded as unreliable”, a much stronger direction or directions should nevertheless have been given on Mr Saeed’s creditworthiness than was actually proffered.  For example, the judge could have followed what another judge had said in a similar case: “[the witness’] credibility has been seriously damaged, seriously impeached” (Yip Moon Tang, ibid, at 445B – C).

(h) In all the circumstances, given the unsatisfactory state of Mr Saeed’s evidence, short of telling them to completely ignore it (Maw, ibid, at 842), the jury should have been directed that, save where it is favourable to the defence, Mr Saeed’s evidence should be disregarded.  This was proposed to the judge who found it unacceptable.

Discussion

34.Insofar as it is pertinent to the present discussion, the following are all the directions which the judge had given in respect of Mr Saeed’s evidence.  It is convenient to set them out forefront[25]:

“Members of the jury, the defendant has called two defence witnesses. You will remember they are Mr Mohammad Saeed and [Mr Qazi]. You will notice that although Mr Saeed was called by the defendant, he gave evidence which did not support the defendant’s case. With my permission, Mr Bullett has treated him as a hostile witness. That is, a witness who had in effect changed sides. And Mr Bullett was allowed to cross-examine Mr Saeed. I permitted Mr Bullett to do this in the light of the statement that Mr Saeed has previously made at the office of the defendant’s solicitors because it appeared to me that there was material inconsistency between the evidence given by Mr Saeed and what he said in the statement. I permit that to be done so that you can test for yourself whether you can rely on the evidence Mr Saeed has given in court.

His previous statement is not part of the evidence in this trial, but the previous statement has been put to him to test whether the evidence Mr Saeed has given before you is evidence upon which you can rely in whole, in part, or not all. If you decide that there is serious conflict between the evidence he gave you and statements previously made by him, you may think that you should reject his evidence altogether and not rely upon anything he has said in the witness-box.

……

You will remember Mr Saeed initially denied having signed the witness statement, but upon further questioning he was not so sure. He was reluctant in answering the questions posed by Mr Bullett and often gave his answer by saying, ‘I don’t know’ or by asking back Mr Bullett questions. He said he has no relationship with the defendant but later he admitted that they are related somehow by marriage of their relatives. He said he was in drug when he went to solicitors’ office, but Mr Qazi said he appeared to be normal. He said the signatures on the statement were not his, but Mr Qazi said he witnessed him signing each and every page of the statement on two separate occasions.

Members of the jury, you will also remember Mr Saeed said he went to the solicitors’ office to make a statement because the defendant promised to pay him money, but in the end he didn’t pay him. Mr Brook asked you to rely on Mr Saeed’s evidence to find that the defendant has attempted to fabricate a story together with Mr Saeed in order to evade his liability in this case. You must decide whether the defendant did in fact attempt to fabricate a story as alleged. If you are not sure he did, ignore the allegation altogether.

If you are sure, then next consider why did the defendant fabricate the story? The mere fact that a defendant tells a lie or fabricates a story is not in itself evidence of guilt …… [Here the lies direction is given].

Members of the jury, although in the end it is your decision whether to accept or reject Mr Saeed’s evidence in full or in part, I warn you that you should approach his evidence with extreme caution.

However, there are some basic aspects of his evidence which you might think of little controversy.  That is, he was himself a drug addict; he was somehow related to the defendant and he went to the defendant’s solicitors’ office to make a statement.”

35.Also relevant is the pre-summing up discussion to which Mr Bullett has made reference (paragraph 33(e) above).  It was during this discussion that counsel first mentioned his proposed direction, and was turned down (paragraph 33(h) above).  These are the initial but nevertheless theme-setting exchanges[26]:

“MR BULLETT: My Lord, may I add on that? Basically, I would be looking for a sort of strong direction from your Lordship to disregard anything in the Saeed Mohammad’s evidence which is adverse to the defendant because clearly he has contradictions from numerous occasions.

COURT: Now, for this – yes, now, for...

MR BULLETT: He’s been contradicted by a very satisfactory witness, the interpreter, on...

COURT: Now, it might be difficult to give a general direction like that because, obviously, the evidence of [Mr Saeed] in various ways is in contrast with your client’s evidence.

MR BULLETT: Yes.

COURT: And I see no reason not to allow the jury to consider certain area, in particular whether your client has in fact brought the witness to the police station and what not, and of course they are full of inconsistency.

MR BULLETT: Well, he’s given a statement, a signed statement that he did. We’ve heard from the interpreter...

MR BROOK: Yes, but the -- it’s not that there is no explanation, there is an explanation, and there’s clear evidence that Mr Khan told him to lie and offered him money. That’s why -- that’s an explanation for the statement which contains lies.

COURT: Yes.

MR BROOK: That’s what his evidence amounts to.

COURT: Now, what I have in mind is to give the usual direction or standard direction or specimen direction on a hostile witness, and I don’t think I can do more than that, or less.

MR BULLETT: Well, my Lord, I’ll try to persuade you otherwise. I need to go back to the authorities that I’ve been looking at, but it seems to me that it’s very dangerous not to give a stronger warning than the normal standard Judicial Studies direction.

……”

36.Turning to the law, R v Maw, ibid, is a case mentioned in the Judicial Institute-produced Specimen Directions under the section of Hostile Witness.  Below is the part of the judgment on which Mr Bullett places reliance (at 842):

“ If a witness had been treated as hostile, and thereafter given evidence, it was necessary for the jury to consider whether he was a witness who should be treated as creditworthy at all, and they should be clearly directed on that point. The judge did not direct their attention to that question, nor did it appear he considered it himself. It was fundamental importance for any tribunal to consider whether a witness who had given conflicting evidence was of any creditworthiness at all. It was not proper to go straight to the stage of considering which parts of the evidence were worthy of acceptance and which were to be rejected. If the judge considered the witness was of sufficient creditworthiness, he should give the jury a clear warning about the dangers involved in a witness who contradicted himself and that they must consider whether they could give any credence to such a witness. Only if they considered that they could, to go on to consider what parts of his evidence they could accept. It should be the task of the prosecution or any other party inviting the jury to rely on the evidence of such a witness to explore the inconsistencies and reluctance to testify. If there was no explanation the evidence was less satisfactory. If the witness could give an explanation that might set at rest any anxieties there might be about his evidence and enable him to be treated as fully creditworthy.

In this case …… [the] judge told the jury to approach C’s evidence with great caution and reservation, but the warning did not go far enough; it should have addressed C’s creditworthiness.  He invited them to decide which parts of C’s evidence they preferred, not whether they should act on the evidence at all …… The summing up did not approach the question of the conflicting and unsatisfactory evidence of C in a satisfactory way.  The judge should have concluded that the evidence was not fit to provide the basis of a conviction and exercised his discretion to withdraw the case from the jury.  If he failed to adopt that course, he should have directed the jury to disregard C’s evidence ……”  

37.Noticeably, Maw and the Hong Kong case of HKSAR v Chang Kin Man CACC 74/2001, unreported, 20 February 2002, which followed it, were cited and submitted upon through using excerpts in Archbold at a later stage of the pre-summing up discussion earlier mentioned[27].  On the basis of those two cases, the prosecutor adopted the phrase of a “two-stage process” whereby a hostile witness’ creditworthiness is determined[28], no doubt referring to the assessment by judge first, then jury.  Having heard counsel, the judge is noted to have said[29]:

“All right. Now — yes, I think I note your points, both of you, in relation to the credibility and I will make up my mind in due course ……”

Undeterred, Mr Bullett pressed on and made further submissions, making points not unlike those he is making before us.

38.The possibility of omission by inadvertence thus falling by the wayside, the next question is whether the judge was correct to regard Mr Saeed as a witness of sufficient creditworthiness, which he obviously did.  In our judgment, the answer is: it was a conclusion which the judge was entitled to reach.  As is clear from Maw (bottom part of the first paragraph we quoted), whether or not there is an explanation for a witness becoming hostile is important.  It is only with such an explanation that the witness’ change in evidence can be considered in context, taking into account the number and nature of contradictions involved, of course.

39.In this case, the unchallenged evidence of Mr Qazi forms part of that explanation.  It does so by holding a fully conscious and seemingly self-possessed Mr Saeed to a preposterous and absurdly altruist act which, in the absence of contrary evidence, is best explained by the motivation of a reward in money, with or without other reasons.  Analyzed in this way, Mr Bullett is wrong to criticize the judge for referring to Mr Qazi’s evidence.  The judge was entitled to so do and, also taking into account his various inconsistencies, conclude that Mr Saeed was sufficiently creditworthy to, as it were, go before the jury.

40.It is implicit in the above conclusion that we do not find Mr Saeed’s inconsistencies to be of such a scale and nature that, notwithstanding the presence of an explanation, his evidence had to be completely disregarded.  His initial denial of being related to the applicant by marriage, a point on which Mr Bullett places some importance, is an example that comes immediately to mind.  It verges on the trivia.  Other examples are downright nonsense: deny knowing he had made a statement because he was ‘high’ on drugs and allegedly going to the solicitors’ office to do translation for the applicant.  In the main, they were negative assertions aiming to disassociate Mr Saeed from the applicant and the drugs. The suggestion of a monetary reward did not actually come up until the end of his cross-examination[30].

41.Looking at matters in the round, it is our view that the evasive quality of Mr Saeed’s evidence has been considerably overstated.  Discounting the interposition of Mr Qazi and the interruption of counsel-judge communication in the absence of the jury, his entire testimony lasted for only about 45 minutes.  On paper, it has come to approximately 18 pages of transcripts.  In terms of number and content too, the twists and turns were limited, and were neither difficult to understand nor to remember.  Take for example his claim that he was in custody and could not have borrowed the applicant’s car, a point which Mr Bullett submits was glaringly missing from the summing up, it is of note that counsel had spent the equivalent of almost two pages of transcript to tax Mr Saeed with his custody record, at the end of which Mr Saeed conceded that he had got his dates wrong[31]. It is not easy to think how that could have lost its traces in the jury’s deliberation.  In sum, we do not think the judge can be criticized for not repeating all the details of Mr Saeed’s evidence to the jury.  He was in fact fair enough to point out that, at the very least, Mr Saeed had admitted to be a drug addict, that he was related to the applicant and that he had in fact given a statement to the solicitors.

42.We turn now to examine the judge’s directions on hostile witness as a whole.  Interestingly, although Maw is mentioned in the Specimen Directions[32], it is specifically stated to be a case “for guidance on procedure”, which guidance is provided in the first half of the judgment (not quoted under paragraph 36 above).  For general discussion, the cases of Driscoll, ibid and Yip Moon Tang, ibid are cited amongst others.  Of particular relevance is the following passage in Driscoll, as per Gibbs J at 536 – 537:

“In that passage the Court of Criminal Appeal was dealing succinctly with the proper direction to be given in relation to two different questions that arise when a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial …… As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some case the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unrelaibale. The statement to that effect in Reg v Golder, Jones and Porritt (19) was obiter …… Although what was said in Reg v Golder, Jones and Porritt has since been cited with approval …… it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable.”

43.There is, however, no conflict between Driscoll (the above passage) and Maw (the part quoted under paragraph 36 above).  Common to both cases is the anticipation that, in an extreme situation, the judge will have to step in and direct the jury to disregard the testimony of a hostile witness[33].  Other than that, it is clear from Driscoll there is no inflexible rule that the evidence of a previous statement-inconsistent witness must be regarded as unreliable, whereas Maw requires the jury to be told to consider the question of creditworthiness and not just concentrate on whether all or parts of the evidence of such a witness are believable.

44.In practice, one can also see how Maw is incorporated into the standard directions under which the jury is in effect asked to ignore a witness whose departure from his previous statement is so drastic that he is stripped of any credibility (second paragraph of the quote below)[34]. Though modified, this is no different from asking the jury to assess creditworthiness which prima facie is based on inconsistencies and contradictions, only in words that are more readily understandable to them:

“X was called by [the prosecution], but gave evidence which did not support [the prosecution‘s] case. [The prosecution] was therefore allowed to treat him as a ‘hostile‘ witness — a witness who had in effect‗changed sides‘ — and to cross-examine him to show that he had earlier made statements which are inconsistent with the evidence he has now given in court. The contents of those earlier statements are not part of the evidence in the trial, except for those parts of them which he has told you are true. Those statements were put before you by [the prosecution] to throw doubt on the reliability of his evidence here in court.

You have to decide whether you can accept any part of the evidence which he has given in court and, if so, what part of it.  If you decide that there is serious conflict between the evidence he gave you and statements previously made by him, you may think that you should reject his evidence altogether and not rely upon anything he has said in the witness box.”

45.Coming back to the judge’s directions, it is clear that they followed the standard directions.  He gave the modified instruction to assess creditworthiness and in accordance with Maw and a multitude of other cases, warned the jury to approach Mr Saeed’s evidence “with extreme caution”.  Given our view on what the true extent was of Mr Saeed’s inconsistencies, we are not persuaded that this warning was insufficiently powerful.  Conversely, the warning that Mr Bullett suggested (save where it is favourable to the defence, Mr Saeed’s evidence should be disregarded) is unsupported by authority.  It also reminds one of the expression of wanting to have one’s cake and eat it.

46.With the greatest respect to counsel, the sentiment conveyed in the above expression is in fact manifest in his decision to call Mr Saeed because, even before getting him into the witness box, there was already an indication that Mr Saeed would be hostile[35]:

“COURT: Yes, Mr Khan, you’ve finished your evidence, please return to your seat.

Yes, Mr Bullet, there’s one defence witness and you need some time to prepare for that.

MR BULLETT: Thank you, my Lord.

……

JURY LEAVES COURT - 11.10 AM

COURT: There’s a point I want to raise. Mr Bullett, will you warn the witness at the outset of his rights ...

MR BULLETT: Yes.

COURT: ... in relation to self-incriminating? At the outset or when you ask the relevant question? Which course do you think is more appropriate?

MR BROOK: Well, of course, subject to what my learned friend has to say, the -- because at this stage, as I understand it, we don’t know what he’s going to say.

COURT: Yes, but the purpose is obvious, all right? The witness is called ...

MR BROOK: It’s not that obvious, my Lord, may I suggest, because one doesn’t know whether he will say -- because he’s been brought here by a body order, he didn’t come -- walk in by taxi, so that is the question, we don’t -- from my point of view, I don’t know what he’s going to say and I don’t think my learned friend also is very sure what he’s going to say, or if he’s going to say anything. If that’s not the case, then, yes.

MR BULLETT: My Lord, well, although -- of course I’m not advising the witness but I have -- he has been fully informed repeatedly about the privilege against self-incrimination.

COURT: He has been informed?

MR BULLETT: He has.

COURT: He has been informed.

MR BULLETT:  Including this morning, we went to see him in the cells.  However, in fact, based on what he told me this morning, it may well be that I would have an application to treat him as a hostile witness.”

That notwithstanding, counsel pressed on with his game plan, got stung and then tried to persuade the judge (and us) for a direction that is remedial and which best fits his situation.  It is not an approach that this Court can endorse.  To a considerable degree, counsel was the architect of his own misfortune.  There is no merit in any of the arguments in Ground 3 and it must fail.

GROUND 4

47.The complaint here formed part of another ground, differently argued.  Seeing that it is a ground of appeal in its own right, we gave leave to counsel to reformulate it into a new Ground 4, viz in relation to the evidence of Mr Saeed, the judge had misdirected the jury on the standard of proof.

48.The direction in question appears in the following passage of summing up.  For easy reference, the impugned sentence is italicized, and the most crucial words underscored[36]:

“ In your consideration you will take into account the speeches of counsel. If you consider appropriate you may also take into account matters including the following: first, the defendant was sitting in the driver’s seat next to where the dangerous drugs were put; second, it was his car; third, the time at which the defendant was found in possession of the dangerous drugs was at the early hours of the day at a street which the defendant himself described as quiet; fourth, he was alone in the car. In this connection you must take into account your finding on the defendant’s assertions relating to the cousin. In this connection, no matter what was your finding concerning the location of where the car was parked when the police officers arrived, you must still consider whether or not the assertion of the cousin is true or may be true and consider the impact of your finding on your decision of the verdict ……”

The simple point of Mr Bullett’s complaint is that Mr Saeed being “the cousin” whose testimony was adverse to the defence, the standard of proof as applied to his evidence was beyond reasonable doubt and not “true or may be true”.

Discussion

49.Bearing in mind its location which is near the end of the summing up when all the major evidence had been summarized, it is obvious what the judge was saying in the above passage: the defendant was alone in his car with drugs in very suspicious circumstances (“the four matters”), but one has to remember what he said about his cousin – the cousin who had just returned his car but walked away (“the assertions”).  Moreover, whether one believes the defendant that the police had ordered him to shift his car (“location of the car when the police arrived”), that is not the most important point, and one must remain focused on whether one believes the defendant about his alleged cousin (“true or may be true”). It is this question that may affect one’s decision in this case (“impact on your verdict”).

50.As is the respondent’s submission, the only problem with the impugned sentence is the regrettable use of the preposition “of” in the phrase “the assertion of the cousin”.  Had the preposition “about” been used, there could have been no challenge as to what the judge meant.  Indeed, the respondent’s proposition can be tested and shown to be correct in that, had the judge been referring to the evidence of Mr Saeed when he said “the assertion of the cousin”, the sentence of which these words form part would make little sense.  It would break the flow of what was clearly intended by the judge, namely to provide guidance to the jury on how to approach the competing accounts of the prosecution and the defence.

51.With that query out of the way, the only remaining question is whether the jury would, by a single slip of a preposition, be misguided on the question of standard of proof.  We think not.  The jury who had sat through and listened to the entire summing up would have no problem correctly understanding what the judge said in the quoted passage.  The same, we venture to say, must have been the case with counsel as neither Mr Brook nor Mr Bullet was up on their feet when the judge finished, at least not in relation to this point.

52.It is important to note that where the judge was dealing with the burden and standard of proof, specifically in the context of the competing versions of the prosecution and defence case, the judge had done so correctly and with clarity[37]:

“ In the present case, the defendant was alone in the car sitting in the driver’s seat with the headlights of the car on and its engine running. It is alleged by the prosecution that the drugs were found in the compartment of the door just next to the driver’s seat and the defendant’s DNA was found on one of the packets of the drugs. The prosecution ask you to infer that the drugs were within the defendant’s control and he knew there were drugs inside the pink plastic bag and he has also the intention to exercise control over them. The prosecution also ask you to infer that the defendant was in possession of the drugs for trafficking.

On the contrary, the defendant told you that he was not trafficking in the dangerous drugs found. He did not even know that the dangerous drugs were inside his car. He had lent his car to his cousin and at that time the cousin had just driven the car back to him. The cousin had left the car to go to the 7-Eleven shop nearby to get some drinks. He had also lent his car to many friends before and other people also had the key of his car as well. He had brought his cousin to the police station for his cousin to confess, but the police ignored them.

Members of the jury, I repeat, it is for the prosecution to prove that the defendant was in possession of the drugs and the purpose of his possession was for trafficking. It is not for the defendant to prove that he was not. The defendant said he was not in possession of the drugs and that he did not know there were drugs in the car. If you find what the defendant said is true, or may be true, you must acquit him.

Even if you do not believe what the defendant said, or even if you think the defendant was lying in the witness-box, it does not mean that the defendant is guilty.  You still have to consider the prosecution’s evidence and see whether it is sufficient to prove that the defendant was in possession of the dangerous drugs for trafficking. Even if you find the defendant having lied in the witness-box, this does not in itself make the prosecution’s case any stronger ……”

53.However, even if the jury misunderstood the judge and thought he was referring to the evidence of Mr Saeed, we do not think there was any risk that they would have assessed his evidence by reference to a lower standard of proof.  The relevance of Mr Saeed’s evidence lay in the allegations he made about the applicant offering to pay him if he admitted ownership of the drugs.  In the words of the judge in the impugned direction, this was “the assertion of the cousin.”

54.But there was no risk that the jury might act on this assertion if they thought that it only “might be true.”  We say this because of what the judge said when he gave the jury a lies direction.  We have earlier set out in this judgment when dealing with the first ground of appeal how the unusual turn of events in relation to Mr Saeed led the judge to conclude that a lies direction was necessary.  In the course of directing the jury on the invitation of the prosecution to find that the applicant had attempted to fabricate a defence with Mr Saeed’s assistance, the judge made clear to the jury that they could act on the evidence of Mr Saeed only if they were “sure” it was true.  Directing the jury on the assertion of Mr Saeed, the judge said[38]:

“ Members of the jury, you will also remember Mr Saeed said he went to the solicitors’ office to make a statement because the defendant promised to pay him money, but in the end he didn’t pay him. Mr Brook asked you to rely on Mr Saeed’s evidence to find that the defendant has attempted to fabricate a story together with Mr Saeed in order to evade his liability in this case. You must decide whether the defendant did in fact attempt to fabricate a story as alleged. If you are not sure he did, ignore the allegation altogether.”

55.Ground 4 also fails.

DISPOSAL

56.The applicant’s application for leave to appeal against conviction is dismissed.

Mr. Edward Brook, SPP of Department of Justice, for the Respondent

Mr. Andrew Bullett instructed by Ms Morley Chow Seto assigned by Department of Legal Aid for the Applicant