HKSAR v. Oloyede Wasiu Olanrewaju

CACC 349/2016

[2018] HKCA 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 349 OF 2016

(ON APPEAL FROM HCCC 475 OF 2015)

_______________

_______________

Before:  Hon Cheung, Poon and Pang JJA in Court

Date of Hearing:  16 May 2018 and 1 August 2018

Date of Judgment:  18 September 2018

______________________________

J U D G M E N T

______________________________

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

1.Before Deputy Judge Bruce SC and a jury, the applicant was convicted after trial of one count of ‘trafficking in a dangerous drug’, namely 974 grammes of a solid containing 447 grammes of cocaine, and was sentenced to 15 years and 6 months’ imprisonment.  Having been refused legal aid and the Bar Free Legal Service, the applicant seeks leave to appeal against his conviction in person.[1]

THE PROSECUTION CASE

2.The prosecution case can be summarized as follows.[2] The three officers who appear in the narrative – DPC 822, DPC 89 and Inspector Fung – were respectively PW1, PW2 and PW3 at trial :[3] 

“ …… The case for the prosecution was that DPC 822 and DPC 89 were on duty in plainclothes in the vicinity of 175 Tai Nan Street, Sham Shui Po at about 9.30 pm on 16 February 2015. Both DPC 822 and DPC 89 say that they noticed the accused come out of the building at 175 Tai Nan Street. They say he was looking around and DPC 822 described him as looking nervous. DPC 89 said he looked frightened. Both officers said he was carrying a yellow plastic bag. Both officers I think said he was looking around. They say they approached him to intercept him. Their police identity was revealed through the production of their warrant cards.

The yellow bag was, so both of them said, searched and inside was found a mooncake tin. Inside the mooncake tin they found a white plastic bag which in turn contained 50 bullet-shaped pellets …...

Both officers told you they saw the pellets and they suspected that they were dangerous drugs. They told you that the accused was arrested. The procedure adopted was to declare arrest in Cantonese followed by a caution in Cantonese. To this caution the accused made no response. It became apparent to the officers that the use of Cantonese was not effective as a medium of communication and the arrest was declared in English. There was no caution in English and there appears to have been no response from the accused to that in any event.

…………

Immediately after the arrest the officers say that the accused was handcuffed. They also testified that Inspector Fung Chi-tat(?) arrived at the scene shortly after. He was the officer-in-charge of these officers. Inspector Fung said that he did not see the interception of the accused but he testified that when he arrived he saw the bag containing the dangerous drugs shortly -- and that was shortly after the interception …... DPC 822 and 89 said that the accused was asked where he lived and his response was in English, ‘6’. They took this to mean, so they said, that he lived on the 6th floor of 175 Tai Nan Street.

…………

The accused, the two detective constables and Inspector Fung went up the stairs to the 6th floor where they entered one of the flats on that floor. Apparently floor No 6 was divided into three units and with keys which were found in the possession of the accused, they opened the door to Unit B and searched the premises. The officers said that nothing of significance was found. DPC 89 said that the search lasted about 10 minutes.

The officers testified that they took the accused down from the 6th floor of 175 Tai Nan Street. The accused, still in handcuffs, was placed in a police vehicle. We learned from the cross-examination of DPC 822 and from the testimony of DPC 89 that initially they went to the Mongkok Police Station. DPC 89 said that it was only a few minutes away from the scene at 175 Tai Nan Street in Sham Shui Po. You have seen the map and that is pretty obvious. He said that he called officers at Mongkok Police Station to enquire whether that was the appropriate station to take the accused to to make a formal report of the arrest.

We heard that the police rules are that following the arrest of a person he must be taken to the nearest police station within the police district in which the arrest took place. It turned out that the correct place to take the accused was not Mongkok but Sham Shui Po Police Station. DPC 89 says he was unable to get through to Mongkok Police Station on his phone until they were actually in the car park of that station. Without actually entering Mongkok Police Station they then drove to Sham Shui Po where the report was actually made.

From Sham Shui Po, the accused was taken to police headquarters at Arsenal Street. The object of this exercise was to interview the accused but no suitable interpreter could be found. It appears that the accused was taken back to Sham Shui Po Police Station where he was detained.

On the next day, the accused was, according to DPC 822, interviewed with an interpreter and a lawyer present and said nothing ……

…………

It is appropriate to mention at this stage that it is an admitted fact that neither fingerprints nor DNA were detected on the items seized from the accused. It is to be recalled that nothing was found in that regard. That is to be seen at paragraph 4 of the Admitted Facts …...

…………”

THE DEFENCE CASE

3.As was noted by the trial judge, the defence version of events was “a very different story”.[4]  In sum :[5]

“ …… the case for the accused was …… that he was never carrying the dangerous drugs, the subject of the indictment and that in essence the case against him is a simple frame-up, to use an old, archaic expression.

The case for the accused is that he was an African man found in the wrong place at the wrong time by a group of police officers who are looking for an African man to traffic in dangerous drugs.”

4.For greater detail, such as his background :[6]

“ The accused says that he came from Nigeria and that he completed secondary school there. He says that he went to Mainland China for the purpose of education and to pursue further studies in Chinese. He says he then came to Hong Kong in 2008 …...

The accused says that he holds a Hong Kong identity card. He says he was married in 2012 and his wife is, I think, a fashion designer or in the fashion business. She is from Hong Kong …… He says that prior to his arrest his marriage was, as he put it, excellent. The accused says that his wife was a person who was employed in Hong Kong and he worked as a mobile phone merchant …... He said that he made about 20,000 a month.

…………

The accused testified that prior to his arrest he was living in Tai Kok Tsui.  His wife was the tenant of the premises and that they had started living there in about 2011 …...”

5.As regards the circumstances that led up to and which concluded in his arrest :[7]

“ The accused said that on 16 February he was in the Prince Edward MTR station when he heard his friend, Ishay, call his name. That man is also a Nigerian and the accused says he was told by him that he was leaving Hong Kong on that day. The encounter with Ishay seems to have been an unplanned or chance encounter and seems to have occurred sometime in the afternoon. Nevertheless, he told the accused he was concerned -- that he was concerned that there may have to be some repairs on his premises and if I understood his testimony correctly, Ishay asked the accused and the accused agreed to Ishay giving his - that is the accused’s telephone number - to the landlord of the premises at 6B. Ishay, as you have heard from the accused, is said to have lived at 175 Tai Nin Street, and in particular, Flat 6B. The accused says he had been to Ishay’s premises on a couple of occasions previously. He said that he knew that Ishay was a clothing trader and that he was a good person. He said that Ishay lived alone at the premises. He said there were other African persons living in the building at 175 Tai Nan Street …...

The accused said that he knew another person in that building by the name of Nonso(?). He was described by the accused as a person who lives on the 4th floor of 175 Tai Nan Street. He was, so the accused understood, a cloth trader as well. The accused said that as far as he was aware neither Ishay nor Nonso were persons with any involvement in drugs.

…………

The accused testified that he had been given a key to Flat 6B by Ishay. This appears to have occurred at the chance meeting at the Prince Edward MTR station. The accused, from that chance meeting, understood that Ishay would be outside Hong Kong for about a month. It appears that there were a number of telephone calls on the evening of the 16th after the meeting at the Prince Edward MTR station ……. the last one apparently being when Ishay was just about to board his plane. The request seems to have been that Ishay(the accused?) turn off the gas for the water heater and the electricity for the freezer …... not a matter mentioned by Ishay at the encounter at Prince Edward MTR station earlier in the day.

Apparently, so said the accused, he was initially reluctant to go on that night to 175 Tai Nan Street, but as we know, he did. Apparently that is about 10 minutes’ walk from the residence of the accused …….

…………

The accused says he went up to 175 Tai Nan Street at about 9.15. He testifies that …... he dealt with the water heater and he dealt with the freezer and after that he shut the door and locked it, departing as he says, empty-handed.

He testified …… that when he left the building he saw Nonso who appeared to be with two Chinese males and that they were dragging something. He said that Nonso walked away from the Chinese persons who then approached him. They were the first and second prosecution witnesses.

…………

The accused testified that the officers asked him whether the guy, presumably Nonso, who had just -- whether he knew the guy who had just walked away. The accused said he knew him; that he lived on the 4th floor. They then said to the accused that he should take them to that place. He said he agreed to do so. The communication between the officers was, so he said, in English …....

They then asked the accused, so he said, where he had come from. The accused said he had come from the 6th floor. By that stage, there was a further officer who turned up and who turned out to be the inspector. He joined them. The officers said that they wanted to search the accused ……

…… That brought out a bundle of keys which you have now seen and also two mobile phones …...

…… The accused said the inspector took the keys from DPC 89 and went ahead of the others. He said that this group did not go at the same time and that he went up with the first and second prosecution witnesses and they took him to the 4th floor. The accused pointed out Nonso’s place …...

He said that the inspector called that they should go up to the 6th floor and when he arrived at the door of Flat 6B, it was already open. There was a search but it took about 5 minutes. He said that as far as he could see in the flat, there is nothing but Ishay’s personal possessions …... nothing was taken away and …… the police returned the key in his(the?) flat. The accused said that on the way down from the flat -- from Flat 6B …… he got to the 4th floor and noticed that the door was still open and it appeared to him obvious there was no one inside. They then continued walking down and he was told that the person he knew as Nonso had been arrested by Mongkok Police and that they needed him to give a statement …...

The accused says he was then handcuffed and …… he was not told what he was arrested for. The accused says that he was taken to the Mongkok Police Station. After arrival at the car park, he says he was taken to what he described as a temporary holding cell in the police station …... behind the reception area …… by the first and second prosecution witnesses.

The accused says he was in the temporary holding cell for 5 minutes maximum, but he did not at any stage say what happened inside the cell …...”

6.The applicant also gave a very different account of how and at which point of time the police came to know about his home address :[8]

“ On the journey between the Mongkok Police Station and the Sham Shui Po Police Station the accused says he was asked by the police to be allowed to call his wife and he says that request was refused. Further, he was asked whether the place, presumably referring to 6B, was his residence. The accused told the police it was not. He was then asked where he did live. He said he lived with his wife and they were working (sic) to search his residence if they wished. He says there was a further request by him to call his wife and there was no response to that apart from being elbowed in the leg, I think by DPC 89.

Eventually, they got to Sham Shui Po Police Station and that they were there about 5 minutes. The accused and the police then went to the Narcotics Bureau. At the Narcotics Bureau the accused says that he was interrogated about whether he had information about people dealing in dangerous drugs. He said that he did not know anything. He said that the accused(police?) told him that if he gave information about two or more persons they would release him. He said that later on he first saw the exhibits which had been tendered by the prosecution …...

The accused says that while he was at police headquarters he requested to call his wife. The answer to that was he got a knee in the chest and that was -- seems to have been the response. The accused says he was shown to the media …… before newspaper journalists …… After that they went back to Sham Shui Po Police Station where he was detained overnight.

There were apparently more requests to the officers in charge of the Detention Centre at Sham Shui Po to call the wife, the accused says that those requests were refused. He says there was an attempt to interview him later on, but the interpreter spoke the wrong dialect.

Later, at police headquarters, I think this is on the second day, a Chinese and English interpreter was brought in and that was for the purpose of conducting a video interview.  According to the accused the video-recorded interview was about the time he was first cautioned and charged.”

7.It was pointed out to the jury that the applicant was “a man of good character”, and it was explained to them how this may work in the applicant’s favour.[9]

GROUNDS OF APPEAL

As per the Applicant’s Form XI

8.In his Notice of Application for Leave to Appeal (Form XI), the applicant indicated that he would rely on the grounds of appeal that his trial counsel canvassed in his report to the Legal Aid Department.[10] In the applicant’s own words, these grounds pertain to :

“ Inviting the jury to consider PW3 excuses for lying – the judge.”

“ Failing to stop the trial when evidence of my wife suspicion was given.”

“ Judge refusal of the half-time submission.”

“ Errors of translation by court interpreter ‘my friend is a good person’ & ‘I didn’t see the police left MK police station with any bag’.”

The Context in which the Complaints arise

9.Having been provided with the said report by the applicant, it is abundantly clear to us what the above bullet points were referring to.  In order to give them context, however, it is necessary to recount how certain events had taken place during the trial, as follows.

10.On the first day of trial, whilst giving evidence in examination-in-chief, PW1 volunteered the remark that “[the applicant’s] appearance was similar to our target person”.[11]  It prompted the defence to apply for the discharge of the jury on the basis that this evidence was prejudicial and inadmissible.

11.This application was acceded to by the judge who, before giving his ruling on the following day, said this to prosecuting counsel: “I would expect you, in as plain a language as consistent with your gentlemanly demeanour, to make it plain to the officer in charge of the case that if I hear [the mention of ‘target persons’] again, I’ll hold him personally liable.”[12]

12.What happened next was that, in front a newly empanelled jury, both PW1 and PW2 denied being at the scene “looking for an African”.  In stark contradiction to their witness statements,[13] they said they were there to “patrol to see if there was any suspicious person” (PW1),[14] or to “carry out an anti-dangerous drugs operation and to arrest any suspicious person” (PW2).[15]  These answers, we should add, were proffered solely during cross-examination.  No question of the kind was attempted by the prosecution.

13.As part of the defence case, it was also put to PW1 that it was the applicant who informed the police where he lived.[16] As to that, the answer of PW1 was “I do not agree” and, upon being asked about it again in re-examination, this officer supplemented: “[It was] the defendant’s wife [who] called the police [on] the next day”.[17]  “[The] colleagues in the report room of Mong Kok Police Station informed me that there was a case in Tai Kok Tsui.  That’s how I came to know about the defendant’s address,” he said.[18]

14.When it was his turn to give evidence, but only to bring his account of the case to an end, PW2 was asked by the prosecution to confirm that he had gone to the Tai Kok Tsui address for a search.  PW2 replied, “It should not be called a search.  It was because a woman called the police saying she was worried that there might be dangerous drugs, so we went over there to make an investigation.”.[19]  Under cross-examination, PW2 further explained that he was not initially aware that the Tai Kok Tsui address was the applicant’s place of residence; he found out only after arriving at the place and was so told by the applicant’s wife.[20]

15.The same two topics as above were canvassed in PW3’s evidence, amongst others.  In examination-in-chief, PW3 was asked when it was that he “first heard” of the Tai Kok Tsui address, to which PW3 answered, “The 17^th”.  When he added he “received information that somebody had called Mong Kok Police Station [to say] that he or she suspected [about something]”, however, the court interpreter interpreting his evidence was stopped mid-sentence by the judge who indicated that “the component of the matter [was] irrelevant”.[21]

16.Be that as it may, the matter was revisited by defence counsel in such a manner that what might already have come out in Cantonese in PW3’s examination-in-chief was repeated in full in his cross-examination (note the judge’s first comment) :[22]

“ Q. And later, on the evening of [the 17^th], you went on the search to the premises at Tai Kok Tsui, with your fellow officers.

A. Yes, as what I’ve said.

Q. Yes, yes. Sorry.

A. We were notified that someone had called the police and we went -- we went to the flat in Tai Kok Tsui to conduct a search.

Q. Well, you went there because the defendant said that he lived there, consistently, starting at the scene itself. Isn’t that right?

A. I don't agree.

Q. But it is, in fact, the case that the defendant’s wife, when the defendant did not come home that night, went to Mong Kok Police Station to report that he was missing. Isn’t that right? And then she was told that he was arrested for drug trafficking.

A. The message that I received was that a woman went to Mong Kok Police Station to make a report saying that she suspected that her husband had been arrested for trafficking in a dangerous drug.

COURT : Well, with great respect, that came out in Chinese first, some of which I understood, some of which I didn’t, and you opened it up.

Q. Well, officer, the only reason the defendant’s wife said anything about drugs was because she had been told at Mong Kok Police Station, when she reported him missing, that he was arrested for drug trafficking. So she began to wonder, obviously. Do you agree? Well, do you agree that she was told that when she went to the police station? She did not go to the police station to report suspicions about drug trafficking by her husband, did she, in the first instance?

…………

COURT : I think the question was a multitude of propositions again. Can we just break it up...

MR BULLETT : Yes.

…………

Q. Okay, officer, how are you in a position to say what the defendant’s wife said to Mong Kok Police Station?

A. I’ll repeat what I said just now. The message that I received was Mong Kok Police Station had received a report from a woman saying that she suspected that her husband had been arrested by the police and the offence was trafficking in a dangerous drug. And the woman was worried that there were dangerous drugs at her home and he asked the police for assistance.

Q. But you don’t know whether this is a correct account of what happened, or whether that is the only conversation. You don’t know that this is correct, do you?

COURT : The bottom line is, he wasn't present when that was reported.

MR BULLETT : Yes.

COURT : So the answer is self-evident.”

17.Regarding the nature of the police operation in Tai Nin Street, it was again defence counsel who went about exploring, in fact pressed, the matter with PW3.  He did so on three separate occasions roughly at the beginning, the middle and the end of the inspector’s cross-examination.  The first round of questions, and answers, were as follows :[23]

“ Q. Well, officer, drug police work is -- involves a lot of intelligence, doesn't it?

A. Yes.

Q. And on this occasion, you and your officers were there expecting to arrest an African for drug trafficking.

A. So is it something about intelligence?

COURT : It may do and it may be a matter of privilege under the law. I’m not quite sure what the officer is raising. If it’s privilege then it’s inadmissible, except in limited circumstances. So I think, before we explore this any further, as a matter of prudence, it may be appropriate to invite the jury to retire for the moment.

In fact, I suggest the early coffee break and I will look forward to seeing you at say 12 o’clock.

JURY LEAVES COURT - 11.19 AM

(Proceedings from 11.19 am not required)

Court adjourns - 11.28 am

Court resumes - 12.02 pm

Accused present. Appearances as before. JURY ABSENT.

JURY RETURNS - 12.07 PM

(Proceedings to 12.08 pm not required)

PW3 – Fung Chi-tat (Senior Inspector)                                (o f a)

XXN BY MR BULLETT (Continues)

COURT : Mr Bullett.

MR BULLETT :   Thank you, my Lord.

Q. So officer, I was asking you -- I suggested to you that you and your team that day at Tai Nan Street, were there expecting to arrest a man of African ethnicity. Is that correct?

A. No. We were just carrying out anti-drug operation there.

Q. Well officer, that’s not true, is it?

A. I don't agree.

Q. You made a witness statement quite recently, about this matter, didn’t you, 21 July this year?

A. Yes.

Q. And do you agree that in paragraph 3 of that witness statement, you refer to the fact that you instructed your officers, the driver DSPC33644, DPC89, that’s PW2 and CPC822, that’s PW1, that an African male would be trafficking in dangerous drugs at 175 Tai Nan Street.

MR WHITEHOUSE : Well, I think that question -- I think the whole of paragraph 3 should be put.  You can’t have it both ways.  The information...

COURT : I think we’ll leave the question as it is for the moment.

MR WHITEHOUSE : Yes.

COURT : I take your point.

MR WHITEHOUSE : Yes.

COURT : Mr Bullett.

Q. So do you agree that that was the effect of the briefing?  An African male would be trafficking drugs at that location and at that time, between 2030 and 2230.

A. So maybe I read out the whole paragraph of number 3.

COURT : That wasn't the question.  The question was put to you in terms that, in that paragraph, amongst other things -- and see if I’ve got this right, Mr Bullett. In that paragraph, amongst other things, you briefed your officers that an African was likely to be trafficking at Tai Nam Street at about the time in question.  Is that a fair summary, Mr Bullett?

MR BULLETT : Yes, my Lord.  Thank you.

MR WHITEHOUSE : Sorry, again I don’t want to waste the jury’s time, but there are rather sensitive matters.  I wonder if I could raise something in the absence of the jury?

COURT : You wish to raise a point of law, do you?

MR WHITEHOUSE : It is a point of law actually, yes.

COURT :Sorry, members of the jury.  Can we have a time estimate?  Shall we say...

MR WHITEHOUSE : I think it will just be no more than 10 minutes.

COURT : Very well.  Sorry about that, members of the jury, but this is part of what we do.

JURY LEAVES COURT - 12.13 PM

(Proceedings to 12.23 pm not required)

JURY RETURNS - 12.23 PM

COURT : Mr Bullett, I direct you are entitled to ask the question, as framed.

MR BULLETT : Thank you very much, my Lord.

Q. I was just asking you to confirm, officer, that in paragraph 3 of your witness statement, you had referred to instructing your officers that you were going to that location because you were expecting to find an African male trafficking drugs.  Is that correct?  Is that what your statement says?  Do you agree?

A. What’s written in my statement is, ‘A Nigerian male’.

Q. Well, Nigeria is in Africa, isn’t it?

A. Yes.”

18.Next came the second round of questions and answers :[24]

“ Q. Now, I’d like to just go back to the question of what your mission was on that day, 16 February last year. You’ve said that you were there expecting to -- well, you’ve agreed that you were there, expecting to encounter an African, a Nigerian in fact, trafficking drugs. And this was something that had specifically been briefed to your team bosses, hadn’t it?

A. Yes.

Q. Yes, so they knew that was the specific mission that evening.

A. Yes.

Q. Yes, and that’s why you’d all arrived at 8.15 and waited for more than an hour, before anything happened.

A. Yes.”

19.Finally, there was this third and final exchange which, for present purposes, is the most relevant :[25]

“ Q. So officer, just to recap. Earlier on, you said, when I asked you, was it an operation to apprehend an African male engaged in drug trafficking. You said, ‘No, it was just an anti‑drug operation’. That's right, isn’t it?

A. Yes.

Q. That evidence was untrue, wasn't it?

A. The reason why I answer that way was, I have received instructions that it was hoped that there will be no expression that will affect juror’s impression of the defendant.

Q. Well, what I asked you was, it was untrue. So you agree it was untrue?

A. I agree.”

20.Coming to the end of our description of the events at trial, it is to be noted that no sooner had PW3 finished his evidence[26] than defence counsel was on his feet to make the applications that the judge should either rule there was no case to answer[27] or discharge the jury.[28]  The bases of these applications were said to be that each of the prosecution witnesses had “demonstrably given untruthful evidence” as to whether the police were anticipating the arrest of an African/Nigerian trafficker (hence no case),[29] and that the officers had “deliberately slipped in”[30] the prejudicial hearsay that the applicant’s wife harboured suspicion against her husband (thus necessitating the discharge of the jury).[31]

21.It should also be said that after the night’s adjournment, but before the judge could give his rulings on the next morning, defence counsel had seen fit to bring forth an “alternative application” of a stay of proceedings[32] on the ground that the police officers had “committed perjury” in respect of whether they had in mind an African/Nigerian target.  The question of substance aside, this application was made without any regard for the procedural requirement that advance notice should be given.[33]

22.As it is, the judge did give oral reasons for rejecting both the no-case submission and the application for discharging the jury.[34] With the accommodation of prosecuting counsel on the procedural requirement for notice, the judge also listened to and dismissed the stay application,[35] with reasons to be given later in a written ruling.[36]  In sum, it is the judge’s rejection of these multiple applications that has given rise to the applicant’s present appeal.

Judge letting Jury to consider PW3’s Excuse for Lying

23.The applicant’s complaints having been given context, we are now able to deal with them fairly expeditiously.

24.We will begin by saying that it bemuses us that defence counsel should seek to discharge the first jury.  With a few carefully formulated follow-up questions, whether it be in examination-in-chief or cross-examination, we should think PW1 could well be steered to give his impugned remark a meaning which was both technically correct and consistent with the defence case.  Unless they let go of that part of their case which involved the unspecified African/Nigerian trafficker, such was the task that the defence had to undertake even if PW1 had not disclosed the existence of a target.

25.With the empanelling of the new jury, and the judge’s stern strong warning that there should be no more mention of any target person by the prosecution, it puzzles us even more that defence counsel should adopt his subsequent position.  Although we can understand his frustration at the officers’ denial of an African target, which must be the reason why as a last resort he had confronted PW3 with his witness statement, the reason behind the officers’ denial was clear to everyone involved in the proceedings, so much so that if he felt he was unfairly cornered, PW3 would certainly seek to explain why he had departed from his witness statement.  This was only to be expected.

26.In the event, although the judge had let it be known that he “accepted as true the reason propounded by the inspector that it was to avoid prejudicing the accused in the eyes of the jury”,[37] and that “[the officers’ answers] were carefully calibrated to avoid saying to the jury that the accused was the specific target of the operation”,[38] his respective approaches to the no-case submission and stay application were the principled ones of asking (a) whether the officer’s ‘lies’ would so affect the quality of the prosecution evidence that no jury could accept it,[39] and (b) whether the continuation of the trial would offends the court’s sense of justice.[40]  His answer to both was ‘no’ and we respectfully agree with him.

27.The above conclusion necessarily foreshadows what the appropriate course was in relation to the officers’ ‘lies’: it was to leave them with the jury, together with PW3’s explanation to see how they may impact on the officers’ credibility.[41]  There is no merit in counsel’s contention vide his report to the Legal Aid Department that ‘a lie is a lie’ and, on that basis, the judge should have ruled no case to answer or stayed the prosecution.

The Question of the Wife’ Suspicion

28.As said, the contention here was, given the injurious hearsay that the applicant’s wife was suspicious of her husband’s activities, the judge should have discharged the jury.  The judge, however, disagreed and provided the following analysis to support his conclusion :[42]

“ Assuming for the present application that the wife did not indeed attend before the Mongkok -- sorry, did indeed attend before the police at Mongkok Police Station, it is not known whether the officers accurately reported what she said to them. Further, it is -- what is known is that the police did go to the premises. They did seize a substance which, on analysis, was found not to be illegal, or for that matter, a dangerous drug.

All we have is the possibility, the expression of opinion by possibly the wife of the accused that there were possibly dangerous drugs at the matrimonial home. It could be argued the expression of opinion carried with it the implication that the wife of the accused was of the opinion that there were dangerous drugs in the premises and a possible implication of that is that these were the drugs of the accused. As I say, the sting is taken out of the expression of the opinion by the fact that the police attended at the address, searched it and found no dangerous drugs.

In my opinion, it is conceivable that there is some prejudice in this episode of marginal relevance to the case.  However, it is not such as to compel the discharge of this jury.  In my judgment, such prejudice as there is can be readily cured by a direction to the jury that even if the message received by the inspector was an accurate reporting by the officers at Mongkok Police Station of what was said by the wife of the accused, it was best -- was at best her opinion and more importantly the facts bear out the proposition that the opinion was ill-founded.  And for those reasons, the application is refused.”

29.The judge went on to so direct the jury in his summing up :[43]

“ Both officers and the inspector accepted that on the day after the arrest of the accused they went to an address in June Gardens in Tai Kok Tsui. There is a dispute as to how the police obtained the address of these premises …...

The source of the address seems to have originated from an incident at Mongkok Police Station where the source, according to Inspector Fung that is, where a woman claiming the wife of the accused made enquiries about his whereabouts because she was concerned that he was missing. It would appear that there are two competing versions of what was said. One suggests she was concerned about drugs being in the matrimonial home and the other version suggests she was simply concerned about the whereabouts of the accused.

It would be impossible for you, members of the jury, to resolve what was actually said at Mongkok Police Station. Nobody has given any evidence about that. We have the version reported to Inspector Fung from that police station. There is no evidence that even assuming Inspector Fung is accurately relating to you what he was told, that the person who gave that version to Inspector Fung has accurately related what was said at the police station. There is simply nothing upon which you can determine what was said at that police station. Inspector Fung was not there, the accused was not there; we simply have no evidence.

If you concluded that Inspector Fung has accurately related what he told -- he was told, this cannot in any way be held against the accused. There are a number of reasons for this; I suggest they might be a bit obvious, but forgive me for mentioning. First of all, whoever took the message at Mongkok Police Station may have mis-recorded it, may have misheard it or may have misunderstood what this woman said. Secondly, it may have been accurately related to the inspector. Thirdly, if - if she said anything about drugs to those at Mongkok, at most she is expressing an opinion that there were drugs at her house. Nowhere is it suggested that the drugs were connected with the accused. Even if she was concerned, we have no idea of the basis of her concern. And finally, what the basis of concern -- finally, when you think about that, we have no -- the most important thing and the final thing is no drugs were found at the premises.

In short, you may think that the most sensible way to approach this is to simply put it out of your mind and whatever else you may think about it, nothing can or should be held against the accused in any way whatsoever.  At most, if you accept what Inspector Fung said on this topic, the message might provide an explanation as to why the police went to Tai Kok Tsui ……”

30.We can find no fault with either the judge’s reasons for dismissing the application to discharge the jury or his subsequent directions to the jury.  There is also no reason for us to believe that those directions were not faithfully followed.  In contrast, insofar as we can understand it, the bare assertion in defence counsel’s legal aid report is that the judge was wrong not to empanel a third jury at the reception of the said hearsay.  Such assertions are unhelpful in identifying possible grounds of appeal.  It has no merit.

Judge’s Refusal to stop the Case at Half-Time

31.This complaint is covered in the preceding discussions.

The Court Interpreter’s Misinterpretation

32.In his legal aid report, defence counsel has identified one misinterpretation by the court interpreter.  He wrote :

“ D informed us after the verdict that there had been an interpretation mistake. The translated reply to my question in chief to D about the person, Ishe, whose flat D had been to visit, who had contrived to get D to go there and was therefore a prime candidate to be the informant, was, ‘I think Ishe is a good person’, whereas D says he said, ‘As far as I know Ishe has no connection with drugs’. The defence case was that the police had some kind of involvement with an African man living in that building of whom Ishe was one and Nonso another.”

Describing this to be “perhaps not a very significant error”, counsel nevertheless went on to suggest that “it may have confused the jury, indeed it seemed somewhat implausible, so the jury may have thought D was not telling the truth”.

33.In our judgment, if indeed there was such a misinterpretation, about which no one except the applicant was in a position to detect and correct, but who chose to do nothing at the time, this misinterpretation was not one which would make the slightest difference to the jury’s assessment of the defence case.   The same applies to the other misinterpretation that the applicant has identified viz “I didn’t see the police left MK police station with any bag”.

34.Whatever was the applicant’s understanding of this man, Ishe/Ishay, be it someone who was just a good person, or someone who was not involved in drugs, and whether or not the police left or were seen to have left the Mong Kok police station with a bag or bags, the defence case of a frame-up was clear.  Neither of the factors would affect the defence case one way or the other.

As per the Applicant’s Letters

35.Having gone through the grounds in the Applicant’s Form XI, we move to his two hand-written letters dated 17 January 2018.  They contain two further grounds of appeal bearing no connection with original defence counsel, as follows.[44]

The Judge’s Directions on Inference

36.Under this ground, it is argued that the judge’s directions on inference, given in strict compliance with what is approved by the Judicial Institute, namely Specimen Direction 21.3, are in fact flawed and wrong in law.  As the argument goes, the jury should instead have been directed that :

“ [If] they were to draw an inference that was favourable to the applicant, that inference needed only to be one of the available reasonably possible inferences;”

or in a fuller version,

“ [If] there is a reasonable inference to draw against the defendant, as well as one which is either neutral to the defendant or in his favour, then you must not draw the adverse inference. On the other hand, if the inference which you are drawing is either neutral to the defendant – that is to say, it does not say anything about his liability for the charge. One way or the other – or if the inference is in favour of the defendant, then you may draw that inference even if you find that there are other competing inferences which are reasonably possible from the set of facts. In such a situation of competing inference which are neutral to or in favour of the defendant, it is for you to decide which, if any, inference you will draw. You are the sole judge of the facts, subject to the directions I am giving you.”

37.We do not agree.

38.The proposed directions are unsupported by authority and whatever extra benefit they are thought to have, the same or analogous benefit is routinely accorded to a defendant through the directions on the standard and incidence of proof as well as what is commonly called the ‘liberato direction’.

The Judge’s Directions on Speculation

39.Under this final ground of appeal, the judge is criticized for being “slanted” in his directions to the jury that they should not speculate.  Three incidences of such alleged unfairness are identified for this purpose.  The first one concerns the likelihood of the police securing nearly one kilogramme of a mixture containing nearly half a kilogramme of cocaine to frame the applicant :[45]

“ …… the prosecution also argues that the police would not need to come up with nearly a kilogramme of mixture and nearly a half a kilogramme of drugs in that mixture in order to fix them on the accused. The prosecution argue it is one thing to accuse a witness falsely of -- prosecution witnesses to falsely accuse a person of - of an event such as stabbing or a punching or something like that, but dangerous drugs is another thing, so the prosecution would argue. This is an event which requires not only the witnesses to describe the event but to produce a substantial quantity of illicit drugs.

In this regard, toward the end of his closing submissions counsel for the accused raised a suggestion that perhaps some other seizure of dangerous drugs was broken up and used in the case -- present case to frame-up the accused.  There was not a scrap of evidence about that called in the case.  The officers were never cross-examined about it.  What counsel for the accused invites you to do on that topic is speculate; that is one thing you cannot do and must not do.”

40.The second incidence concerns the fact that there was neither any fingerprint nor DNA evidence on the seized drugs :[46]

“ It is appropriate to mention at this stage that it is an admitted fact that neither fingerprints nor DNA were detected on the items seized from the accused. It is to be recalled that nothing was found in that regard. That is to be seen at paragraph 4 of the Admitted Facts. Plainly, if there had been either fingerprints or DNA found on the exhibits that came from the accused that might be some circumstances which might have added to the case for the prosecution. However, the absence of such information does not necessarily help the accused. You might come to the conclusion in the absence of information about handling of the items that any conclusion about that would be the clearest speculation. As I have directed you, you have to have regard only to the evidence in this case.”

41.The third incidence concerns a member of the police party who, before the trial, was convicted of a drug offence :[47]

“ There was, as you have heard, a fourth member of the police party that travelled between Tai Nan Street and Mongkok Police Station and on to Sham Shui Po. He was the driver of the police vehicle who was not called before you to give evidence. It is an admitted fact that Exhibit P16B - you can look it up later, I suggest - that sometime ago he was convicted of an offence of possession of a dangerous drug and received a suspended sentence. We simply do not know what he would have said about the journey or indeed, given that he was driving, whether he saw or heard any of the events relating to the accused. It was suggested in submissions on behalf of the accused he might at least have been in a position to reveal that the officers went into Mongkok Police Station; we simply do not know what he would have said. I direct you not to speculate about this.

Just one further matter about this officer.  You may remember that Inspector Fung was cross-examined upon the basis that he had heard this officer had been dealt with dangerous drugs offences.  He said, that is, Inspector Fung, that he had been transferred out of the team which undertook the operation in this case and that he had not heard of this.  You were invited to speculate by counsel for the accused that maybe he heard something through office gossip.  Again, that submission was an invitation to you to speculate about something.”

42.There is no merit in this ground.

43.The difficulty in securing a large yet unaccounted for quantity of dangerous drugs for one’s free disposal is a matter of common sense.[48] But even if it is a difficulty that can be overcome, the officers must be given the opportunity to explain the personal risks involved, plus the police procedures they had to bypass, before it became an issue.  As pointed out by the judge, this was not done: the matter was never raised in cross-examination.  That is why defence counsel was inviting speculation.

44.The judge’s directions on the lack of fingerprint and DNA evidence were almost standard.  As there are all sorts of reasons why someone coming into contact with something may not leave any of their human traces behind, any attempt to draw any inference from this neutral fact must be by way of speculation, and should not be allowed.

45.Gossips are by nature multiple hearsay so, whether PW3 had heard any in respect that fourth officer as regards his possible involvement in further drug offences, if it was intended to be used as a question or query to create doubt on the credibility of the entire police team, must also amount to speculation.

DISPOSAL

46.As we can find no merit in any of the applicant’s grounds of appeal, we refuse the applicant’s leave and dismiss his appeal against conviction.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Applicant in person, being present