HKSAR v. Cheung Kim Shing

CACC 267/2017

[2018] HKCA 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 267 OF 2017

(ON APPEAL FROM HCCC 436 OF 2016)

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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.Before S D’Almada Remedios J and a jury, the applicant was convicted after trial of one count of ‘trafficking in a dangerous drug’, namely 1,456 grammes of a crystalline solid containing 1,450 grammes of methamphetamine hydrochloride (‘ice’), for which he was sentenced to 25 years and 6 months’ imprisonment.  He seeks leave to appeal against his conviction.[1]

REESPECTIVE CASES OF THE PARTIES

2.The allegation against the applicant was that of joint enterprise, together with one Lee Wai-kwan, an associate who was found to be “strapped in ‘ice’” upon travelling back to Hong Kong through the Lowu control point, and who later pleaded guilty to the same offence and was the principal prosecution witness against the applicant.

3.This is what the trial judge said in outlining the prosecution and defence cases to the jury :[2]

“ On the facts before you there is no dispute, on 3 August 2014, at about 2323 hours, 11.23 pm, Madam Lee Wai-kwan, who I will refer to from now on as Lee, brought about 1.45 kilograms of ice, the drugs ice, into Hong Kong from Mainland China at the Lo Wu Terminal.

On that same day, at 2055 hours, about 2055, she and the defendant departed Hong Kong for Mainland via the Lok Ma Chau Terminal and both of them returned together via the Lo Wu Terminal shortly before 11.23 pm.

It is the prosecution’s case that the purpose for Lee and the defendant’s visit to China together was to get these drugs and bring them back to Hong Kong together. The short two-and-an-half-odd hours that they spent in China were used to travel to a flat in a place called Tai Wan Garden. There, in this flat, the prosecution say the defendant strapped or we could use the word ‘wrapped’ these drugs to Lee’s body using cling-film and adhesive tape. They then returned together to Hong Kong with these drugs strapped on her body. After her return to Hong Kong it was intended that the drugs would be removed from her body at a place chosen by the defendant to be returned to him.

It is, therefore, the prosecution case that the defendant and Lee teamed up together to bring these drugs into Hong Kong from Mainland China and both of them, therefore, committed an offence of trafficking in dangerous drugs.

The defendant’s case is simply although he went to China with Madam Lee and returned to Hong Kong with Madam Lee, he went with Madam Lee to have fun.  He had no knowledge that Lee had drugs strapped to her body.  He did not strap the drugs to her body and he, therefore, played no part in bringing these drugs into Hong Kong with Lee.  It is his case he went to the flat in Tai Wan Garden to have fun, but also, he had developed a relationship with her and it was there he had intimate relations with her.”

PROSECUTION EVIDENCE

4.Of the prosecution evidence, the judge observed :[3]

“ Lee’s evidence is evidence which directly implicates the defendant in the commission of this offence. There are other pieces of independent evidence which the prosecution say may conclude or support Lee’s evidence that she is telling you the truth. These principally come from the fingerprint evidence and the immigration records …...”

5.By “immigration records”, the judge was referring to the border-crossing times of Lee and the applicant, which were made matters of admitted fact on the strength of their ‘movement records’[4]. As said, they showed that Lee and the applicant had only spent two and a half hours on the Mainland before returning to Hong Kong (8.55 pm to 11.23 pm).

6.As regards the fingerprint evidence, the judge said :[5]

“ …… At paragraph 7 of the Admitted Facts it says, ‘Forensic examination was carried out on the adhesive tape. Two fingerprints belonging to the defendant, namely a right middle fingerprint and a right fore-print was found on the sticky side of the adhesive tape’ ……”

7.Then quoting the 6^th prosecution witness in a subsequent passage, the judge recounted the precise evidence on fingerprints as follows :[6]

“ The next officer, the sixth witness, was Sergeant 33457, Li Chun-ho. He was the fingerprint examination expert. You heard how he found the fingerprints on the sticky side of the adhesive tape which was stuck on the cling-film, on 17 November 2014. He separated the adhesive tape from the cling-film and stapled the strips on the polystyrene film board, which was P1, and then he separated the adhesive tape into three parts, 1.1, 1.2 and 1.3. He applied black magnetic powder and on 1.3, on the sticky side of the fourth and the ninth adhesive tapes he found one fingerprint each. He showed you a frame was drawn around the fingerprint and a number was assigned to it.

He said the adhesive tape was stuck firmly on the cling-film and used detaching liquid to detach it from the cling-film, first using tweezers, then separated it slowly without damaging the tape, the cling-film or the fingerprint …….”

THE DEFENCE APPROACH

8.The applicant did not give evidence, nor did he call any witnesses.  The way in which the defence chose to meet the prosecution case was to attack Lee’s credibility :[7]

“ Members of the jury, to conclude, this case is simply -- the defence case is simply that Lee is an untruthful witness. She is a proven criminal, having committed offences previously and one has been in connection with dishonesty.[8] She has given contradictory accounts on this incident -- sorry, in her evidence, which she has either given an explanation which is unacceptable or has not given an explanation at all. When cross-examined, she has refused to answer some questions. At times her attitude was aggressive and evasive. You have heard that she told Mr Yuen to drop dead, or ‘puk gai’ I think her words were, why he was asking her questions since birth, and she thought some questions were not relevant to this case.

Mr Yuen, for the defendant, says she is not a truthful witness.  If she were truthful there would not be these material discrepancies in her evidence. Therefore, as Lee is unreliable and untruthful as a witness, you cannot rely on her evidence and therefore you should find the defendant not guilty.”

9.It was suggested that Lee lied against the applicant because, according to her evidence,[9] she was threatened or pressurised by customs officers :[10]

“ …… It is the defence case that Lee has framed him up or fabricated, made up this evidence against the defendant as she was pressurised by the Customs officers. You recall Lee’s evidence that the Customs officers said if she did not implicate the defendant she would be in trouble. She will be charged with perverting the course of justice and her sentence would be increased ……”,

but also because she had a selfish motive :[11]

“ The other motive the defence is saying she is fabricating evidence, is she is hoping for a further reduction in her sentence. You recall from the Admitted Facts, at paragraph 3, she has already received a total of 50 per cent reduction in her sentence.”

10.Insofar as the fingerprint evidence is concerned, it was put to Lee that before 3 August 2014, she and the applicant had been to the Taiwan Garden flat thrice (18 July, 26 July and 1 August 2014)[12] and on one of those two occasions in July, the applicant had “used the adhesive tapes to clean the dirt on the sofa” in the flat.[13]

THE QUALITY OF LEE’S EVIDENCE

11.As indicated, quite apart from Lee’s bad character, and the reasons which might have led to her making false allegations, the defence had placed great emphasis on Lee’s demeanour and her conflicting accounts of the incident in attacking the prosecution case.  They were particularly well positioned to do so because, not only was this a retrial,[14] but there were in fact material discrepancies between Lee’s verbal statements upon interception, Lee’s cautioned video recorded interview taken one day after her arrest, Lee’s non-prejudicial statement given some six months after the offence and Lee’s evidence in the applicant’s first trial of December 2015.  Lee’s evidence in the present trial was also contradicted by customs officers who, apart from the question of threats and mistreatment (see paragraph 9 above), also disagreed with her on the more factual aspects of her testimony.

12.Recapping the main areas in which these discrepancies arose and the issues involved in each, the judge said :[15]

“ The object of Mr Yuen’s cross-examination of her was to show you, the jury, the discrepancies in her evidence and to cast doubt on the truthfulness of Lee’s evidence. Mr Yuen, in his closing speech to you on Friday, set out in detail the discrepancies in Lee’s evidence. I shall not repeat them again but remind you of some of them, but bear what he has said in mind.

Firstly, why did she help the defendant carry the drugs into Hong Kong? Lee, on one account, said she owed the defendant money so she promised him to carry the dangerous drug. On another account she said she did not owe him money but did it out of greed. Let us turn to the source of the dangerous drugs that were wrapped on her body. On one account she said they were from the wardrobe in the flat at Tai Wan Garden and on another account she said they were handed to the defendant by a woman who came into the flat a little later than they did.

Look at the reward she said she would receive for bringing these drugs into Hong Kong. On one account she said it was $10,000 and on another it was $15,000. Look at the evidence about whether she owned a flat in Shenzhen. On a previous occasion she said she owned one and in her evidence before you she said she did not. So you have been pointed out to the inconsistency or contradiction which exists within Lee’s own evidence.

There is also contradiction or inconsistencies with a Custom officer’s evidence; such as, the time when Lee mentioned the defendant was involved in this offence. Lee said it was only about an hour or two later or at least not immediately upon her arrest. She only did so because she felt pressurised by the Customs officers at the headquarters at Java Road. Yet, the Customs officer said immediately, almost immediately upon her arrest at Lo Wu Terminal, Madam Lee implicated the defendant, Cheung Kim-shing. So there you have another discrepancy.

In this case you should find no difficulty in deciding that there is in fact and in truth inconsistencies or contradictions.  You have to ask yourself whether such inconsistencies or contradiction is as a result of human error, failure of memory because of length of time, or the inconsistency or contradiction is as a result of a deliberate refrain from telling you the truth, or for any other reason, as shown in the evidence.  In your assessment you may take into account whether there has been explanation for the inconsistency and if there has been an explanation, whether that explanation is reasonable.”

13.It should also be mentioned that, although the defence did not refer to it again in their closing speech, counsel did question and receive confirmation from Lee that, sometime in the past, which very probably included 2014, she had gone for psychiatric consultations and was prescribed psychotropic medicine, which she did not take.[16]

THE PRESENT APPEAL

14.Mr Yuen, who acted for the applicant both here and below, has filed five substantive grounds, the sixth one being the general ground that, based on the other grounds, the applicant’s conviction was unsafe and unsatisfactory.

GROUNDS 4 & 5

15.In line with what we believe to be the most effective way of dealing with this application, we will, first of all, dispose of Mr Yuen’s Ground 4 and Ground 5.  Respectively, but adopting our own paraphrase, they criticise the judge for :

refusing to direct the jury on the drawing of inferences, in respect of the fingerprint evidence, notwithstanding the request of defence counsel to so do; and.

expressing in the summing up an unjustifiably strong and one-sided view on whether the fingerprint evidence lent independent and conclusive support to Lee’s evidence that it was the applicant who strapped the ‘ice’ onto her body.

16.To give Ground 4 context, it is correct that, throughout the summing up, there was no direction on the drawing of inferences and when defence counsel suggested that one should be given in view of what the judge said about the fingerprint evidence, he was turned down :[17]

“ MR YUEN: I do really apologise my Lady. I wonder before the jury is formally sent out for their deliberations I wonder if I may just raise one point with your Ladyship.

COURT: Certainly.

MR YUEN: I do apologise.

JURY LEAVES COURT - 11.24 am

COURT: Yes.

MR YUEN: I do apologise my Lady. My Lady, it appears that your Ladyship has not told the jury that before they can draw any adverse inference against the defendant that inference must be the only reasonable inference that could be drawn from the evidence.

COURT: Why is there any inference? Why is there any inference? The evidence here is direct evidence.

MR YUEN: Because your Ladyship has said when dealing with the fingerprint evidence your Ladyship has said that, ‘This may lead you to irresistible conclusion that Madam Lee was telling you the truth’.

COURT: Yes.

MR YUEN: So I just...

COURT: But that’s just an irresistible conclusion as to the truth.

MR YUEN: Yes.

COURT: There is no other - I don't - there is no inference here.

MR YUEN: Yes, my Lady, in that case I just raise that point.

COURT: Unless I -- unless Mr Wei thinks otherwise.

MR WEI: No, no, we don't rely our case on inferences. There is direct evidence.

COURT: There is no inferences in this case.

JURY RETURNS - 11.26 am

COURT: Yes, the jury are now present.  So as I mentioned, that is all I have to say.  When you retire you can bring all your bundles and papers, anything you need, with you …….”

17.In relation to Ground 5, the remarks impugned are the same remarks that had led to the above exchange between judge and counsel.  They are reproduced and italicised against the entire part or passages of the summing up which the judge spent on the subject of fingerprints, as follows.  It was really the last sentence which counsel submits was offensive :[18]

“ I turn then to fingerprint evidence. At paragraph 7 of the Admitted Facts it says, ‘Forensic examination was carried out on the adhesive tape. Two fingerprints belonging to the defendant, namely a right middle fingerprint and a right fore-print was found on the sticky side of the adhesive tape’. The question for you, members of the jury, is why are the defendant’s fingerprints on the sticky side of the adhesive tape? The prosecution obviously say the defendant’s fingerprints are on the adhesive tape as he wrapped the drugs on Lee’s body, for why else would his fingerprints be on there?

The prosecution rely heavily on the finding of these fingerprints to show independent support to Lee’s evidence that she is telling the truth that the defendant wrapped the drugs using cling-film and adhesive tape on her body.

Consider, as Mr Wei has said, the only logical reason, the truth as to the reason why the defendant’s two fingerprints were left on the sticky side of the adhesive tape was because it was he who did the wrapping and Lee was telling the truth.

Mr Yuen, counsel for the defendant, asked Lee in cross-examination whether in July she had seen the defendant using the adhesive tapes to clean the sofa. Her answer was she cannot remember. The defence case is that the defendant’s fingerprints, therefore, may have been left on the adhesive tape when it was used to clean the sofa in July. Mr Wei has said why would someone use old, already used adhesive tape to wrap drugs around one’s body? Why would sticky tape which was used to clean a sofa be used to stick and wrap cling-film with drugs, be reused, sorry, again, to stick and wrap cling-film with drugs to her body?

Members of the jury, it is not known how or the way adhesive tape was used to clean the sofa, what was the material of the sofa, how long it was used, how was the sofa dirty?  Members of the jury, there is the absence of any evidence or explanation as to why else the defendant’s fingerprints might otherwise have been there.  So this may lead you to the irresistible conclusion that Lee was telling you the truth and the fingerprint was left behind at the time he wrapped the drugs on her body.”

Discussion

18.We will come straight to the point and say that Grounds 4 and 5 have no merit, for the following reasons.

19.It is trite that directing the jury on the drawing of inference is often unnecessary and undesirable.  In most cases :

“ ...... all that the jury is really being invited to do is to assess a witness’ credibility and reliability in the light of other evidence.”

See the judgment of Bokhary PJ in Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209, at 218D–E.

20.The discovery of the applicant’s fingerprints on the adhesive tapes does not take the present case out of the ordinary.  In proving contact, it was a damning piece of evidence but neither prosecuting counsel nor the judge put it higher than that it amounted to independent support of what Lee said, namely it was the applicant who strapped the substance onto her body.  It remained for the jury to decide whether, on the whole, they could rely on Lee’s evidence to convict the applicant of the offence.  Between the two, there is a subtle but nevertheless important distinction.

21.Approaching the matter from another angle, even if out of an abundance of caution one were to contemplate the notion of giving a direction on inference, one would still be faced with the problem of how to go about it.  By that, we mean the competing inferences that the judge was expected to identify for the jury, as opposed to the one favoured by the prosecution.  See the Judicial Institute-approved direction in Specimen Direction 21.3 :

“ You are entitled to draw inferences — in other words, if you find certain facts proved, you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference. [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that …. On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that ….]”

22.As was explained by us during the hearing, there was and can be no competing inference in this case. Fanciful as it already is, the claim that the applicant might have left his fingerprints whilst using the adhesive tapes to “clean the sofa” was unsupported by any evidence,[19] not least his own.  In fact, Lee denied visiting the same flat in Taiwan Garden on previous occasions, saying that she and the applicant went to different units in the same building.[20]

23.In the result, absent any evidence to the contrary, the judge was not wrong to say to the jury that, under the circumstances, the fingerprint evidence “may lead you to the irresistible conclusion that Lee was telling you the truth and the fingerprint was left behind at the time [the applicant] wrapped the drugs on her body.”

GROUNDS 1 – 3

24.These grounds criticise the judge’s handling of the situation when Lee became difficult in the witness box.  They pertain to two specific occasions.

25.The first occasion, which gave rise to the complaint in Ground 1, was when Lee refused to explain the discrepancy between her examination-in-chief on the one hand, and her non-prejudicial statement on the other, as to where the ‘ice’ she trafficked in came from.  The criticism here is that the judge had wrongly refused to accede to defence counsel’s request to direct Lee to answer his question :[21]

“ Q. Yes. And then in your evidence in this trial, you mentioned that shortly after you and the defendant entered into the premises, the girl arrived. Do you remember saying that?

A. Yes, I remember.

……

Q. And you said: ‘I came to know her in Hong Kong.’ Do you still remember, when did you first come to know that girl?

A. I do not remember when. I came to know the girl when playing Mahjong.

……

Q. Yes, and then you said after the three of you went into the room, the defendant opened a wardrobe, isn't it?

A. Yes.

Q. And in your evidence a few days ago, you said: ‘After the defendant opened the wardrobe, wah, I saw a lot of dangerous drugs, that is ice.’ Do you remember saying that?

A. Yes, I remember.

Q. Would you please take a look at your first witness statement dated the 30 January 2015. Starting from the front page, the first line from the bottom. I'm sorry if we may start the second line from the bottom. You said: ‘Finally, on 3 August 2014, Kim-shing took me to Shenzhen Taiwan Garden.’ Do you see that?

A. Yes.

Q. And then you carry on: ‘During the course, a Mainland woman gave Kim-shing 1.5 kilogram of ice drug.’

……

INTERPRETER: She is mumbling something I can't hear.

COURT: Yes.

A. Well, in fact, it has nothing to do with this case. What are you are talking about these things for? Earlier there's a woman handed it to him.

Q. What do you mean: ‘Earlier there's a woman handed it to him’?

A. It has nothing to do with this case and I refuse to talk about it. It's a waste of time.

MR YUEN: My lady, I wonder if your Ladyship would remind the witness of her duty to answer questions put to her so long as it is relevant.

COURT: Well, it's for you to tell her it's relevant, not me. I don't know anything about this 1.5. I have no idea. You tell her it's relevant and why is it relevant. You're cross-examining her. I've told her many times unless I think that she is not entitled to -- she doesn't need to answer it, she doesn't need to answer it. I don't know what the relevance is, so tell her.

Q. Now, at the time when you made the statement to the customs officer, you knew that you had to tell the truth, isn't it?

COURT: Why don't you just tell her the relevance of this question, Mr Yuen, so that we are not lost.

MR YUEN: Sorry, my Lady, I'm...

COURT: Tell her the relevance. Just say: ‘This 1.5 kilogram does concern the very drugs that were wrapped up on you.’ Is that what you are saying?

MR YUEN: My Lady, I wonder if I may cross-examine in the way I think is most effective to this witness.

COURT: Very well. But I want to know the relevance of this? Is this relevant to this? Is it concerning this 1.5?

MR YUEN: My Lady, if I may explain everything in the absence of the witness?

COURT: Very well. Can I ask you, Madam Lee, to step outside? In the absence of the witness and the absence of the jury?

MR YUEN: Yes, maybe in the absence of the jury. My Lady, in fact, I don't mind the jury's presence in dealing with this question.

COURT: Well, you just have to answer me. Is this 1.5 kilograms that she mentions, the same drugs as they're talking about in this?

MR YUEN: Yes, yes.

COURT: Well, then just put that to her.

MR YUEN: My Lady, I am having my cross-examination.

COURT: Because her...

MR YUEN: And also, I don't think I would be discharging my duty to my client if I just put my case to the witness in my cross-examination.

COURT: No, no, she is saying: ‘What relevance -- what relevance is this?’ I need to know. The jury need to know what relevance is it. So you can just say, ‘Madam, this is relevant because it is the drugs we are talking about in this case,’ and then go on to ask your question, because the jury seem to be lost as well as I see it. So just put that to her. Concentrate her mind: ‘This is what it is.’ I don't know, Mr Yuen. I don't know. So let's call her back in. Call her back in.

I am assured by Mr Yuen that this 1.5 kilograms is the exact drugs that we're talking about in this trial, Madam. So that is the relevance.

MR YUEN: My Lady, if I may take her to one more sentence, I think that would clarify the situation even better.

Q. Now, Madam Lee, would you please take a look at the witness statement? Also, at the point that is the last line on the first page, you said: ‘During the course, a Mainland woman gave Kim-shing 1.5 kilogram of ice drugs. And then after that, Kim-shing handed 1.5 kilogram of ice drug to me and helped pack the drugs onto my body to cross the border.’ See that?

A. I can see that.

Q. So why in this court you told the court that the dangerous drugs that was subsequently tied onto your body was found upon the defendant opening the wardrobe, whereas in the witness statement, you said that the dangerous drugs came from this Mainland woman?

A. Well, in fact, in this case, you have been asking so many questions. Are you asking questions from the time when I was born? You have to ask the defendant. He is well aware of what he is doing.

MR YUEN: I wonder if your Ladyship would direct the witness on the duty to...

COURT: No, Mr Yuen, you're cross-examining her. But you're cross-examining her. Ask her the question again. Ask her if she is going to answer your question or not. If she is not, then the jury can see she is not answering. I have told her. You are cross-examining her. You can ask her. I am not to do your job for you.

Q. Yes, can you answer the question? Why in this court did you say the dangerous drugs was already in the wardrobe when the defendant opened the wardrobe, but in the witness statement, you said the dangerous drugs came from the Mainland woman?

A. Well, do I need to tell how many transactions I have done with him or her?

MR WEI: I'm afraid, this witness should confine to the question, please.

Q. Yes. Now, according to you, the defendant divided the dangerous drugs into different bags, isn't it?

COURT: Are you leaving that then, Mr Yuen? You are not going to get her to answer that question?

MR YUEN: I have asked twice and got what I can from this witness.”

26.The second occasion, constituting Ground 2, took place during Lee’s re-examination when the prosecutor sought to clarify the contradiction in Lee’s accounts as to whether the ‘ice’ was brought by a girl she knew or was it already in the flat’s wardrobe, the same point that is referred to in the preceding paragraph.  The complaint under this ground is that, once defence counsel became aware of the prosecutor’s intention, he had put everyone on notice that, depending on Lee’s answer, he would apply to cross-examine further on the topic, but was wrongly rejected by the judge who stated that counsel had had his chance and was ineffective :[22]

“ Q. Do you remember that when you were asked in chief by me, you told us that you had no idea why there were so many drugs in the wardrobe?

A. I did not know, right.

Q. Now, well, perhaps you will remember that you have told us that there was a woman who gave those drugs to the defendant. You remember saying that?

A. No, no, no, in fact, you all know that from July to the time before 3 August, visited on four occasions.

Q. Yes, we all know that. Now, Madam Lee, I wish you to -- perhaps I will rephrase my question to make it easier for you to answer. On 3 August 2014, did you know or did you not know why there were drugs in the wardrobe? Confine your answer to 3 August, please.

A. On 3 August, upon entering, of course, I did not see, and we were in the sitting room chatting for a while and then went into the room with the defendant and when the wardrobe was open, I saw it and, wow, so much dangerous drugs.

Q. So that's what happened on 3 August?

A. Yes.

Q. Thank you. Now...

COURT: Sorry, Mr Wei, I don't understand your earlier question. Are you -- members of the jury, I'd like to have a word with counsel in your absence, sorry.

MR WEI: My Lady, I just wonder if the witness should be excused too in all fairness to her.

COURT: Very well.

MR WEI: I'm grateful.

COURT: May I have the witness, please -- yes, yes. Yes, Mr Wei, I'm not sure I understand. Are you clarifying why on the one hand she says that this lady gave the defendant drugs?

MR WEI: Yes.

COURT: And on the other hand, there were drugs in there?

MR WEI: Yes. I wish to clarify whether there was a woman because it appears that she gave the impression that she gave two versions of events.

COURT: So then just put that to her. I mean, you put that to her. ‘You have given two versions. One version is that a lady came in and gave the defendant drugs.’

MR WEI: Yes.

COURT: ‘And then the defendant tied the drugs on you. And the other version is that you went into the flat.’

MR WEI: Yes.

COURT: ‘And there were drugs in the cupboard and you took them out of the cupboard.’

MR WEI: Yes.

COURT: So, you know, put those two versions to her.

MR WEI: ‘And which one was the truth?’

COURT: Yes, ‘What are you saying happened?’ Yes.

MR WEI: Yes, I was being perhaps over-cautious because I heard her starting to say on occasions prior to 3 August and that's why I don't push...

COURT: I don't know what happened prior to 3 August. I don't know either.

MR WEI: I don't know, but I suspect she was going to say: ’Well, the drugs were put by that woman to the defendant on 18 July.’ I don't wish this ... (indistinct) to come up.

COURT: Of course, I agree, I agree.

MR WEI: So that's why.

MR YUEN: But I think there is nothing suggesting that to be the case because in the previous trial nothing was said to that effect. And also in ....

COURT: Nothing was said about what?

MR YUEN: Nothing was said about on any date prior to 3 August that Mainland woman took the drugs into the premises. And, in fact, in the...

COURT: But is there anything in the prior trial or anything about the three previous occasions? Anything there?

MR YUEN: In the previous trial, PW1 finally said that there were, in fact, two women entering into the premises during the time and they are...

COURT: No, no, I'm talking about anything that shouldn't have come out on the previous occasions. Anything about that? No.

MR YUEN: Yes, that was explored.

COURT: On what happened on the previous occasions?

MR YUEN: That is her explanation as to what she said in the first NPS about the Mainland woman giving the defendant 1.5 kilograms of drugs.

COURT: On the previous occasion?

MR YUEN: On the previous occasion. But because of the way she answered the question, I could not bring out those parts in this trial. Basically, she just refused to answer any question along that line.

COURT: Sorry, you were trying to bring out a fact from her that a Mainland woman gave your client 1.5 kilos of drugs on a previous occasion?

MR YUEN: No, no, I did not refer her to the transcript for the previous trial because of the way she answered questions. In fact, earlier on, I just...

COURT: No, I want to know whether there is anything damning going to come out of this. You are telling me now there is something damning.

MR YUEN: We don't know, but along the line, I do agree with my learned friend's concern that it might be a case that she is going to come up with something that took place prior to 3 August.

COURT: Which is about drugs?

MR YUEN: I suppose so, yes.

MR WEI: Yes.

COURT: And that was said in the previous trial?

MR YUEN: No, in the previous trial, she just gave an explanation as to why the accounts about the PRC woman bringing drugs into the premises was not mentioned in her evidence-in-chief.

COURT: Sorry, I'm lost. I'm lost, absolutely lost. I have no idea what you're talking about.

MR WEI: My Lady, I think in essence this witness in the first trial told the court that there were two women on 3 August that came into the premises apart from herself and the defendant. One was the woman who do the chatting and refused to carry drugs. And one was the woman who carried the drugs to the defendant to the premises on the 3rd, and that was in the context of 3 August. So that was what happened in the first trial. Be that as it may, my Lady, I don't know what she is going to say this time. I don't know if she is going to say: ‘Oh, no, the woman who brought the drugs to the defendant, it was not on 3 August, it was on 26 July.’ I don't want any sort of...

COURT: Yes, I agree, that should not come out at all.

MR WEI: Indeed.

COURT: But you could say which -- I suppose you say: ‘You have given two accounts what happened on 3 August.’

MR WEI: Yes, yes.

COURT: ‘Which is correct?’

MR WEI: Yes.

COURT: Yes.

MR WEI: Yes, which is correct insofar as 3 August is concerned.

COURT: Only 3 August, yes.

MR WEI: Yes, yes, perhaps, yes. Let me -- I'm grateful for your Ladyship's...

COURT: Yes.

MR WEI: Well, my Lady, in fact, I think even if -- for the purpose of discussion, I think, even if she is going to say, ‘Well, the drugs were brought in by women prior to 3 August,’ it is permissible because it obviously is an exception qualified by the Court of Appeal for uncharged acts. It would explain the context of why there were drugs in that premises. But I am not going to go that far.

COURT: No, no, I wouldn't go there, no.

MR WEI: I am not going to go that far.

COURT: No, no, no, I wouldn't.

MR YUEN: And also, my Lady, I would say that if she gives any explanation about the inconsistency, I would apply to cross-examine her on that because in my cross-examination proper, I tried to cross-examine on the discrepancy appearing on the NPS version and also in her evidence-in-chief version, but I simply could not.

COURT: But, Mr Yuen, I said you weren't cross-examining her effectively. That's not -- I'm sorry to say this. I'm really sorry to have to say that, but it just wasn't effective. You just didn't bother to go on with it. You just kept saying: ‘Well, she's not answering my question.’ There are ways to go about it.

MR YUEN: But, I think, my Lady -- no, no, but I think your Ladyship could go back to the audio recording and see what questions have I put to her and the way this witness answered my two questions and that's why at that point of time, I was trying to get the assistance of the court to remind...

COURT: But you could just say what I just said to Mr Wei. ‘You said this. You said this. Why the difference?’ But you don't put it that way. You put it very long and put the transcript and...

MR YUEN: I don't think -- I don't think that is the case, my Lady.

COURT: I don't think -- and I'm sorry, Mr Yuen, I don't think I am going to permit you to reopen cross-examination.

MR YUEN: Yes, but I have just...

COURT: You had every opportunity to ask her and you didn't ask her directly.

MR YUEN: Yes, yes. Just on record, I have made an application, yes.

COURT: Yes, let's call the witness back in.

MR WEI: I'm grateful.”

27.Ground 3 argues that, given the judge’s errors as identified above, the defence was prevented from effectively discrediting Lee on the question of the provenance of the ‘ice’. It was not a prejudice that could be overcome by what the judge said of Lee’s performance as a witness in her summing up.

Some Background

28.From the start, it was obvious that Lee was not going to be an easy witness.  Within the first half-hour or so of her examination-in-chief, she was already volunteering information, which the judge stopped :[23]

“ A. At the beginning, I was a little scared.

Q. Yes, but did you eventually -- did you or did you not eventually agree to the defendant’s suggestion?

A. Because I owe him money and he demanded payment from me, of course I agreed. My Lady, there’s one part I would like to clarify for myself...

COURT: Hold on, please.

A. Can I?

COURT: Can I just ask you, in a moment, just listen to your counsel’s question -- prosecution counsel’s questions first, and if he thinks necessary, he will ask you more questions.

A. Yes.

……”

29.Eight questions later, a change was detected in Lee’s behaviour the precise nature of which is not readily discernible from the transcripts, but which prompted the prosecutor to make the following inquiry :[24]

“ Q. Madam Lee, are you okay? Do you need to take a short break to calm down?

A. No need.

Q. Now, Madam Lee, do relax. If you need -- have any needs, please voice out to her Ladyship.

A. Yes. My Lady, because what I said are all true. My mother, the family of my mother, is of Buddhist faith and I was imprisoned.

Q. Right. Now...

A. Well, in fact, I really do not want to come here to be such a witness.

Q. Now, Madam Lee, I’m grateful you’re here. I wish to know, as you have told the court, you had at one stage indebted to the defendant. Why were you so indebted to the defendant?

……”

30.When the court finally rose for the day in another half an hour, defence counsel was sufficiently alarmed by what had taken place to address the judge in the absence of the jury, as follows.  Although it is not recorded in the transcripts that Lee, whose evidence was in Chinese, had mentioned any undisclosed visit by the customs officers, that would certainly appear to be what counsel had heard, hence his two “concerns” :[25]

“ MR YUEN: In fact -- sorry, my Lady, in fact there are two points in PW1’s evidence which did raise some concern on my part. I wonder if your Ladyship would recall; at first, she said that a few days ago there were customs officers visiting her. I don’t know what is she going to say on that.

And the second point is that she took the initiative of trying to clarify certain thing to your Ladyship, but then your Ladyship ask her to listen to and answer my learned friend’s questions.  I don’t know whether that is something that should not be revealed to the jury.  I really have no idea.”

It led to a lengthy three-party discussion the larger part of which is reproduced below :[26]

“ COURT: That’s why I didn’t touch -- I didn’t want to go there.

MR YUEN: Yes.

COURT: I don’t know what she’s going to say.

MR YUEN: Yes. Because certainly they are not matters covered in either the previous trial or the NPS at all.

COURT: Sorry, what are not matters?

MR YUEN: Sorry?

COURT: Sorry, what are not matters?

MR YUEN: The points suggested by the PW1.

COURT: Well, as to...

MR YUEN: In fact, I really have no idea as to what is she going to say. Just in case what she intended to say is something which the jury is not supposed to learn about, I think there might be a problem.

COURT: That is why I asked her to just listen...

MR YUEN: Yes.

COURT: ...to Mr Wei’s question, in case she came out with something that the jury wasn’t...

MR YUEN: Unexpected.

COURT: Yes, unexpected, or the jury’s not to hear.

MR YUEN: Yes.

COURT: So, I thought that was the best way to resolve it.

MR YUEN: Yes.

COURT: As to your concern about the customs officers seeing her, I don’t know anything about that. Maybe you could talk to Mr Wei to see whether he knows and then you can explore that matter with him. I don’t know what’s happened there. I don’t know whether it’s because I know the last occasion, what we had mentioned...

MR YUEN: Yes.

COURT: ...to tell her not to mention certain things.

MR YUEN: Yes, yes. Yes, yes.

COURT: I don’t know.

MR YUEN: Yes.

COURT: It could be that.

MR YUEN: Yes.

COURT: I’m assuming it’s that, but of course I don’t know. Perhaps you could talk to Mr Wei about that.

MR WEI: Yes, I think your Ladyship had quite rightly resolved the matter in the way as your Ladyship did. Honestly, I don’t know what she was going to do, let’s say. I think my learned friend, if he wishes to explore further, he’s entitled to do that in cross-examination. My view is insofar there is nothing that could possibly prejudice the defendant...

COURT: Not now.

MR WEI: No, not now, yes.

COURT: But what Mr Yuen is saying is it may be. I don’t know if Mr Yuen -- I mean I really don’t know what -- perhaps, Mr Wei, do you know what the customs officers visited her for?

MR WEI: As far as I know, that’s the only -- the only visit that was paid by the custom officers to Madam Lee was reduced into a statement. That was served as unused material to my learned friend. So, it was that visit.

……”

31.Obviously having pondered over the situation during the night’s adjournment, defence counsel returned to court the next morning and informed the judge that he would adopt a certain phraseology, such as “on the previous occasion”, and methodology, namely “to be as general as possible without referring to the transcripts [of the previous trial]”, when it was his turn to question Lee.[27]  Made very much in advance in time, these suggestions found favour with the judge who more than once referred to Lee’s behaviour on the previous day.  Not without emphasis, she intimated that it was her as much as counsel’s concern that Lee should not be triggered to “coming out with more than [was] necessary”.  She asked counsel, both of whom were Chinese-speaking, to be vigilant and to “stand up and stop” Lee if they “[heard] anything”.[28]

32.On the above understanding, Lee’s examination-in-chief continued and ended without incident.  It has to be said however that, for the remainder of that exercise, the prosecutor did what any prosecuting counsel would do in such a situation: keeping things short, simple and to the point.  That is not how cross-examination of a major witness can be expected to be except in the rarest cases.

33.During the hearing, we were also able to confirm with Mr Yuen the reason behind the delicateness with which Lee was handled by all as a witness.  He referred us to the Court of Appeal’s judgment on the previous trial[29] where it was shown that Lee had mentioned the applicant selling drugs in his mahjong establishment and, given it was these “uncharged acts” which gave rise to the problems affecting the original conviction, plus the fact that, from the start, Lee appeared slightly out of control in what she may want to say in the present trial, he said everyone including the judge and the prosecution were anxious to keep Lee on a tight leash, as it were.  Lee’s little known yet documented psychiatric condition also added little to assure one of her predictability, Mr Kuan for the respondent suggested.

Some Background

34.As was hinted above, the same sense of calm and cooperation which prevailed over the latter half of Lee’s examination-in-chief did not persist through to her cross-examination. Within minutes, she was already “saying [so] many things at one go” and in “[such] long sentences” that the court interpreter complained that he was unable to keep up, and the judge had to repeatedly intervene.[30]

35.For an example of how, sometimes, Lee and defence counsel were at cross purposes, we also set out below an exchange that took place even during these first moments :[31]

“ Q. Now, Madam Lee, after you were arrested, did any officer, did any customs officer or officers say to you, ‘Miss Lee, I believe there must be someone else together with you for carrying the dangerous drugs’?

A. Yes. They unanimously said so.

Q. Were they plainclothes officers?

A. There were plainclothes officers as well as uniformed officers. On the day of my arrest, it was said in such a manner already. I remember there’s one Ah Sir in uniform wearing eyeglasses said that to me because at that time I did not admit because I said I was alone.

COURT: What do you mean you said you were -- what does that mean?

A. At that time I was asked, ‘Was there anyone else together with you?’ I said, ‘No.’

Q. Yes. Were you asked that question immediately upon your being intercepted?

A. Yes.

Q. Then what happened next?

COURT: Mr Interpreter, if you’re going to stop her, stop her. Don’t say ‘妳等等’ and then let her carry on. Stop, okay?

Madam Lee, please watch my interpreter. He’s asking you to stop for a reason, because he can’t take in anymore, so when he says ‘等等’, ‘stop’, can you please stop?

A. Yes. That Ah Sir asked me, ‘Do you know what items are now on your person?’

COURT: Did he(she?) say, ‘嗰啲嘢’? Did she say that? No, did she just say, ‘嗰啲嘢’? Is that what she said, Mr Interpreter?

INTERPRETER: I’m sorry, I just ... Sorry.

COURT: Yes.

A. That customs officer asked me, ‘Do you know what was or are’ -- sorry, ‘what is or are in’ – ‘what is on your person?’

INTERPRETER: Sorry, my Lady, I just lost my concentration just now. I’m sorry.

COURT: Not at all.

Q. And earlier on did you also say that, judging from his uniform, you think that he was of a rather senior post, isn’t it?

A. Yes.

Q. I see. In fact, was that the first piece of conversation between you and any customs officer after you were intercepted?

COURT: Sorry, Mr Yuen, what piece of conversation? I want you to be clear here; I don’t want to keep jumping back and forth, jumping back and forth. So, was the first thing said to you, “Do you know what the things are on your person?’” Is that what you’re asking her?

MR YUEN: Or, my Lady, if I may ask this way.

Q. Now, Madam Lee, can you tell us slowly and step by step, immediately upon you were intercepted, what was said between you and any customs officer?

COURT: When they found the drugs or before they found the drugs?

MR YUEN: Intercepted. Intercepted, yes.

A. The Ah Sir asked me, ‘What are they?’ and I immediately replied, ‘Dangerous drugs.’

Q. Yes, carry on, please.

COURT: Hold on, please. So that is obviously when they found the drugs, Mr Yuen.

MR YUEN: Yes.

COURT: So you’re not asking her about this period.

MR YUEN: In fact, I’m trying to ask her from the very moment when she was intercepted, any conversation between this witness and any customs officer.

COURT: Well, as you know what happened, well, tell her, when -- I mean, what is it, when she’s walking through the green channel or, what is it, when you were called over, ‘Please stop, I’d like to search you’? What -- you just put it to her; you know what you’re talking about, she doesn’t. Just direct her to where you want, otherwise we’re going to get an answer like she just gave us, which is not what you want.

MR YUEN: In fact, my Lady, I have already asked her to tell us any conversation between her and any customs officer upon her being intercepted.

COURT: Well, she hasn’t understood you because she’s only said, obviously, ‘He asked me what they are.’ So, that must have been after she was searched or...

MR YUEN: Well, my Lady, in that case if I may ask -- to ask some follow-up questions to clarify.”

36.To add to the greater anxiety of all, no doubt, Lee indicated she wanted to ask the court some questions before continuing on the following day.  It turned out to be whether she would get a further discount in sentence for testifying in the retrial. This led to another lengthy discussion, lasting one hour, half of which involved the judge and the other half only as between counsel, on how some of the admitted facts should be amended and how the defence may word their challenge to Lee’s motive for giving evidence without losing control over what she may say in response.[32] Somewhat surprisingly though, Lee was content when, in direct answer to her question, she was simply told by the judge that she “[would] have to seek legal advice”.[33]

37.That having been said, Lee was soon “mumbling” again,[34] and became progressively agitated and aggressive.  Initial examples included her complaining about the “very complicated way” in which defence counsel asked questions,[35] as well as her challenge to the relevance of some of those questions.[36]  They then escalated to her saying to either the applicant or defence counsel (it was not very clear which one) “puk kai”, translated as “drop dead” at trial.[37]  Other outbursts included :

“ By looking at this statement, it seems that he wants me to die as he wants to exonerate himself. I’m dead already. I pleaded guilty to the charge already.”[38]

“ I have a home outside, my son is 15 years old, and my mother. You have caused me to be in big trouble and what else do you want from me? And your mouth is stinking and even worse than the sewage in standing (sic). Don’t imprison me, and close down all the prisons in Hong Kong. It’s a waste of time.”[39]

“ I feel that defence counsel is forcing me.”[40]

“ I refuse to answer. Drop dead.”[41]

“ He had to get every possible traces of evidence to defend (sic) me. Anyway, he might be able to tell what colour of underpants I was wearing. The dangerous drug was not on his person. The dangerous drug was on my person.”[42]

“ You are attacking into my family history.”[43]

38.Quite apart from these emotional, at times incoherent, outbursts, Lee did also provide answers that were clearly questionable in substance.  Examples included denying authorship of a letter written to the Customs Department whilst accepting it was her signature on the paper;[44] accepting it was her voice but denied saying what was recorded of her statements “on the previous occasion”;[45] and denying saying on that same occasion she was diagnosed to have schizophrenia with suicidal tendencies when the prosecutor did not refute it.[46]  Although relatively minor and tedious, these examples were in addition to the main areas of discrepancies that were recapitulated by the judge in her summing up.[47]  We set them out to give a full picture of what Lee was like as a witness.

The Judge

39.If, in any way, the matters constituting the present complaints[48] have given the impression that the judge was unhelpful or biased against the defence, that, we must say, is not a reflection of the truth.  The judge may have had firm views on how best to handle an irate witness, but it was only to facilitate counsel’s cross-examination, as will become clear from the dialogue quoted below.  Following the intervention noted in paragraph 35 above, this was the judge’s first indication of what could be a different and more effective way of asking Lee questions.  It took place after Lee had complained about the irrelevance of some of defence counsel’s questions, and the complicated way in which he asked them :[49]

“ Q. Yes. And do you agree with me that, in fact, in August 2014, you had a boyfriend, nickname ‘Mao Xiao’ or Little Cat.

A. Yes.

Q. All right. Approximately, when did Mao Xiao become your boyfriend?

A. For several years.

Q. For several years prior to August 2014, isn't it?

A. Yes.

Q. I see. And there was a time when Mao Xiao was arrested and detained in respect of trafficking in dangerous drug matters, isn't it?

A. Yes.

Q. In fact, when was he arrested for trafficking? Just approximately.

A. Well, I did not know he was arrested.

Q. When did you first learn that he was detained in respect of trafficking matters?

A. You mean Mao Xiao?

Q. Yes.

A. I do not remember.

Q. How about the year?

A. I do not remember.

Q. And do you know that he was sentenced to eight years' imprisonment as a result of a trafficking offence?

A. Is it all right for me to refuse answer this person's question? In fact, it has nothing to do with this case.

COURT: Mr Yuen, what is the relevance of this, Mr Yuen?

MR YUEN: My Lady, if I may explain the relevance in the absence of the witness.

COURT: Yes, can I ask you, Madam, to just wait outside. And may I ask the jury, please, just to wait outside for a moment, please.

MR YUEN: Yes, my Lady, the relevance of this line of questioning is on the PW1's own knowledge as to the possible consequences of trafficking in dangerous drugs and it also shows that PW1 herself did have some friends or boyfriend who was involved in trafficking in a dangerous drugs matter. And also, I would be questioning her on the likelihood of PW1 trafficking 1.5 kilograms of ice for the defendant for a reward of 10 or $15,000.

COURT: Yes, but that's to do with the defendant.

MR YUEN: I think that reflects something on the knowledge of PW1 and also her having some sort of friends who is in the field of trafficking in dangerous drugs because the picture so far she has posed to the court in front of the jury is that she is just massager(?)and losing money in Mahjong and then it was suggested by the defendant to ask her to bring dangerous drugs back from China to Hong Kong. I just want the jury to have a wider perspective in understanding what kind of person and association, what kind of association and friends PW1 has.

COURT: Mr Wei?

MR WEI: I have no submission on that.

COURT: Well, I think, obviously, Mr Yuen, if you want her to cooperate with you, then I suggest -- I mean, the way she is now, I mean, you can just say that you know that you have – ‘If you are trafficking drugs...(indistinct) trafficking will be imprisonment,’ and so on and so forth. And then you can say, you know: ‘You do know because your boyfriend is in prison for this much.’ I mean, you can go about a separate way rather than -- the way you're questioning her it's as if you're cross-examining her about her boyfriend. I mean, there's a different way to go about it which I think if I were her, I'd say the same thing: ‘What relevance is it that my boyfriend is trafficking?’ If you see what I mean, if you want some cooperate with her.

MR YUEN: Not necessarily. In fact, all these matters which have been brought up in her previous proceedings, but I just want to see if she would agree to what I ask her so that I do not need to confront her with the transcript of the previous proceeding.

COURT: No, I know that. But what I'm saying is the way she is now, you can approach this differently.

MR YUEN: Yes.

COURT: If all you want to know is about her knowledge of trafficking and her boyfriend, that's all you've got to put to her. But the way you're questioning her is if you are cross-examining her about her boyfriend and what his antics are.

MR YUEN: But, my Lady, I'm afraid if I am just to put the case to her, there might not be an...

COURT: No, I am not suggesting you put the case. I'm just saying cross-examine her in a different way so that you get some rapport with her, rather than questioning her in that way that she feels that you are asking her questions about her boyfriend that, you know, she is not wanting to talk about because it's not about this case. I mean, you can just say: ‘You understand that if you traffic in drugs, you're going to go to prison for a long time.’ Right?

MR YUEN: Yes.

COURT: ‘You know this as you have friends who are trafficking. And, in fact, one of your friends is your boyfriend.’ And there's a different way to go about it rather than cross-examine her straight about her boyfriend, as you know the way she is going to answer.

MR YUEN: Yes, yes, my Lady.

COURT: You see what I'm saying?

MR YUEN: I will try that.

COURT: But that shows her association.

MR YUEN: Yes, yes. Yes, my Lady...

COURT: And the way you have cross-examined her, she feels that you're cross-examining her about her boyfriend's affairs which has got nothing to do with her.

MR YUEN: Yes.

COURT: Right?

MR YUEN: Yes, yes. My Lady, if I may approach the matter in this way?

COURT: Okay, yes, yes. Okay, yes, can we have the witness and the jury back in? The jury and the witness.

Q. Now, Madam Lee, on this occasion, that is on 3 August 2014, when you carried 1.4 kilograms of ice from Mainland to Hong Kong, at that time, did you know what possible consequences it may have on you upon your being arrested?

COURT: If you were caught, yes?

Q. Yes, if you were arrested, yes.

A. I'm aware.

Q. I see. Now, in respect of your boyfriend, did you know what amount of dangerous drugs were involved in his case?

COURT: This isn't the way of asking this question. As I said, this is not concerning him.

Q. Yes, if I may ask his then. How do you know the possible consequences?

COURT: Well, what were the possible consequences, you could ask her, yes?

Q. Yes.

A. Arrested, then it will be dead, definitely.

Q. On 3 August...

COURT: Sorry, are you not going to follow up on that question? What do you mean to be dead? Is that just a Chinese saying? What is it?

INTERPRETER: It's very vague, I would say. A Chinese saying, yes.

COURT: What exactly do you mean, Madam Lee?

A. If I was arrested while carrying so large a quantity of dangerous drugs on my person, I will be dead, definitely. That means I have to be imprisoned for a period of time at the end.

Q. How did you know that?

A. Well, what do you mean by: ‘How do you know that?’?

COURT: Sorry, members of the jury, can I ask you once again just to wait outside for one moment, please?

JURY LEAVES COURT - 11.53 AM

COURT: Sorry, Mr Yuen, I don't wish to interrupt your cross-examination, but you're asking in a very methodical -- I know -- I can see you probably have questions written down the way you want to ask. I don't want to interrupt you, but as I say, if you want cooperation with her, you have to change your...

MR YUEN: No, no, I don't think I necessarily want any cooperation from the witness.

COURT: I mean, cooperation in the way that you are telling me in the break without her presence.

MR YUEN: I think the way the witness answer is...

COURT: I mean, when you say: ‘How do you know that?’ You want her to say: ‘I know that because my boyfriend was imprisoned.’ I mean, that's not going to come out from her. You're cross-examining her, so you can put it to her: ‘You're well aware of this because you have personal experience. Your boyfriend was in prison.’ You can put it that way. You're cross-examining her. Put the answer to her. Get the answer you want.

MR YUEN: But the problem is when I was trying to establish the foundation for this line of questioning, I was stopped by your Ladyship.

COURT: No, but I'm saying because she -- I'm not stopping you because of the way she has answered -- going to answer. Like, what kilogram, what does it matter what kilograms her boyfriend...

MR YUEN: I think the way she answers questions is something that the jury is entitled to take into consideration in assessing her credibility.

COURT: Yes, but when you ask her, ‘How do you know that?’ Either, ‘I know that from the news,’ or ‘I know that because, of course, I know that.’ I mean, what answer do you expect her to give? When you're cross-examining, you want an answer from her that you want. So why is it so wide open? You are not examining her in chief. You want to -- as I said, you want to show the jury what you told me in the break when she wasn't here. So put that to her.

MR YUEN: My Lady, in fact, I was just trying to discharge my duty to my client in cross-examining this witness in the best way I think appropriate.

COURT: Yes, which shows her association. So that's what you want to do. So just put that to her.

MR YUEN: Instead of just putting the case to her, I don't think that is a most effective way of cross-examining. And also from the way the witness answers question. For example, she refusing to answer or denying any knowledge or recollection.

COURT: Well, that's different. Let's not go back there. Let's concentrate on this topic now. You are trying to get from her that she's not just whatever it is that you told me in the break. So get that from her.

MR YUEN: Yes, yes, my Lady, I will.

COURT: Okay. Let's have the jury back in.”

40.A similar exchange took place not long after the preceding one.  Before that, Lee had twice said “drop dead” to counsel and had had some of her outbursts.  It developed into a 20-minute discussion which did not conclude until shortly after the lunch adjournment :[50]

“ COURT: Yes, in the absence of the members of the jury and the witness, Mr Yuen, are there other matters in the transcript you are going to put to her?

MR YUEN: Yes.

COURT: Yes. And how do you propose to...

MR YUEN: I think it's some sort of official transcript recording her evidence. I wonder if we may deal with it say by way of some Admitted Facts, because if we produce the transcript itself because that would reveal the date and everything. Maybe at the end of her evidence, we can just single out some more salient point when she denied having said so and so in the court, then we may just put some Admitted Facts to the effect that on a previous occasion, PW1 said to the court so and so, just the most salient points, instead of some minor matters.

……

COURT: Are you intending to put her evidence to her or not, Mr Yuen?

MR YUEN: Just like the way I have...

COURT: No, I mean, by audio.

MR YUEN: Yes, I think that has the advantage of giving her an opportunity of dealing with it because when she looks at the document in English, even though it was translated to her in Chinese, still maybe -- she may still have doubts as to whether this is really the court document recording her evidence. But I think if the audio is put to her, then I think she would have the opportunity of recognising her voice and then the contents before answering my questions. I think that's a good way of resolving it, instead of just dealing with it by way of 65C. Because it is -- there is every possibility that upon hearing the audio that might refresh her memory as to what she said on the previous occasion, I think that is a fairer way of dealing with it to PW1, yes.

COURT: Well, I only say this because obviously -- I don't know. I mean, as I said, these matters, Mr Yuen, it depends what your purpose of cross-examining her is and whether you want to go that far. You can tell her that, you know, this was said by her on a previous occasion, that previous occasion was recorded, and if need be, you can play it to her to show that she did say such a thing.

MR YUEN: But, my Lady, judging from her demeanour or particularly her attitude towards me, I think it's quite a hostile attitude, I don't think whether it helps for me to explain to her that was the...

COURT: No, no, of course it will be. I mean, she said: ‘I never said this. I never.’ That's what she says. ‘I did not say this to the court. I don't know how come this is there. I know the questions framed him up.’ But that's when you can jump in and you can say, ‘Well, I suggest to you this was said to you. In fact, there's a recording. You can hear your voice. This was said by you.’

MR YUEN: Yes, yes, yes, my Lady.

COURT: But in a very mild manner, you know, and just play one sentence to her.

MR YUEN: My Lady, I don't think my manner is terribly aggressive.

COURT: No, I'm just saying that -- you're not, but the thing is, the way you are cross-examining her, she is obviously thinking anything you say is -- you're not. What I'm saying is she is not cooperating with you and you could be more moulding of her. When she says, ‘It's not me, puk gai,’ you know, all that, you can just say to her, ‘Madam, calm down a minute. I'm going to suggest to you that this was you because I'm going to tell you that there's an audio of this, that it's not the customs, it is you.’ I mean, this is the way you can go about it, rather than leaving it and then let it go on and on and then ask your next question if need be. You know, follow her. Follow her and go along with her so you can put it to her and maybe then you can say, ‘I'm going to play you one audio. This is an audio of you saying this and from now on I'm going to put to you other things, there'll be other audio. I'm going to suggest to you, you said A, B, C, D, E, F, G.’ I mean, isn't that a better way to go about it, rather than her being so -- I mean, you obviously want to do this to show that she is being very -- that she has given very inconsistent evidence. You want this to be put before the jury.

MR YUEN: Yes, yes. But I don't think it's the way I was asking questions that caused this problem. I think it's the witness, for whatever reason. Because my problem is...

COURT: I know that. It is the witness. But what I'm saying is you can still go -- I mean, you can still go about your case in a way to say: ‘I'm going to suggest to you, Madam, it's not -- you did say these things, and the reason why I'm going to say this is because it's recorded. There's an audio’ -- whatever. You know what I mean?

MR YUEN: But I think in my judgment to her there might be another reason for her hostility towards me because we have said a lot of things, ‘How come such -- drop dead,’ taking all these things out to frame her, things like that. If I then said, ‘Oh, come on, let's listen to the audio,’ I would expect an even far more hostile attitude.

COURT: Well, then let her be hostile. That's the whole purpose of you cross-examining her. No, but I'm saying, you don't have to say, ‘Okay, that's it.’ ‘I'm going to suggest to you that you did say this. It's not only on a transcript, but there's an audio of this and we can listen to it if need be, if need be. This is what you said.’

MR YUEN: Yes, I think I can try it this way.

COURT: Do you see what I mean? Not that: ‘Oh, there is an audio.’ You know, you don't have to be so direct.

MR YUEN: But, my Lady, I just hope your Ladyship would appreciate that because I do have a duty to my client to cross-examine the witness in the way I think most appropriate and to be...

COURT: Of course you do. I'm not suggesting you -- I'm not suggesting you do that, but I'm just saying the way she is, you could cross-examine her in a way that would facilitate your cross-examination to show these inconsistencies much clearer.

MR YUEN: Yes, I think the audio is a good way of giving her...

COURT: Well, my clerk will have to call up the audio. It takes a while, I think, if it's in 2000 and -- when was this?

MR YUEN: 2015.

COURT: 15. And my clerk will have to find it and just play that sentence, and you're going to have to listen to it first in case there is any other things said in that part which the jury should not hear. But all I'm saying, Mr Yuen, is this. When she says that, you can just say: ‘Madam, this is the transcript. This is what is the court record. If you're going to dispute this, I'm going to tell you it's you.’ And then you can say: ‘I'm going to play you one audio and from now on take it from me that this is what you said.’

MR YUEN: Or, alternatively, my Lady, I wonder if this sort of thing might be more conveniently to come from your Ladyship.

COURT: No, certainly not. You're cross-examining, Mr Yuen. You're cross-examining. This is how...

MR YUEN: Because, obviously, when your Ladyship asks her a question, her manner and attitude...

COURT: But, Mr Yuen, as I said, you can just put to her: ‘You've denied saying this. I suggest to you that you did say this.’ You're cross-examining her.

MR YUEN: Yes, indeed.

COURT: Yes.

MR YUEN: I'm the one who is cross-examining her.

COURT: Well, let's see whether it's there on the audio.

MR YUEN: Yes.

COURT: (TO CLERK) You have to call it up, 唔會喺度嘅.

MR YUEN: I think there is every chance that once she heard something about the audio revealing her own voice, maybe for the other questions or other parts of transcripts, maybe.

COURT: Correct. Exactly. Exactly.

MR YUEN: Yes, that may...

COURT: That's why I say you have to mould your cross-examination to what she says.

MR YUEN: Yes, yes I have been trying very hard not to make any emotional reaction to the ‘drop dead’ or ‘defence counsel’, things like that.

COURT: No, no, of course not.

MR YUEN: I hope your Ladyship would understand my...

COURT: But I'm just saying that, you know, there are ways to deal with witnesses when they are like this, you know.

MR YUEN: Yes, yes, yes.

COURT: And it is your duty to do it like that because you are cross-examining her.

MR YUEN: Yes, and I can only use the way that I feel best and most effective to cross-examine her. At first, I still thought that the words were directed at the defendant, but subsequently I found that I might be included.

COURT: Well, I'm sure that you are included because she feels -- obviously, she feels rather targeted because, you know, that's how she feels. That's the way she feels.

MR YUEN: Yes, but I think there must be a limit to what the witness can say in the witness-box, particularly, words like ‘drop dead’ or...

COURT: Of course.

MR YUEN: ...some really hostile and unreasonable behaviour, I think.

COURT: But you have to understand that this is not the first time, so you can see the impatience of her.

MR YUEN: But as I have said earlier on, the way she answered questions might be because of some emotional state or emotional problem, but it might be because of something else. For example, she may be trying to avoid what she said which is different from what she said in court today. We really don't know and that's the whole point.

COURT: And that's why it's your duty to put -- to make sure that she did say it.

MR YUEN: That's the whole point in the cross-examination.

COURT: Exactly.

MR YUEN: Yes.

COURT: That's why it's your duty to make sure -- to say to her that she did say it...

MR YUEN: Yes.

COURT: ...and not just let her carry on and start swearing at you or us and what have you. You know, your cross-examination. You are entitled to keep a hold of her. So I'll stand down until 2.30. You can come back, perhaps, at 2.15 to listen to that audio...

MR YUEN: Yes.

COURT: ...if it's up by then which my clerk has to. I mean, you know, when she gets so agitated, you know, you can say to her: ‘Madam, I know you're agitated.’ I mean, there are ways and means of doing it, Mr Yuen, and not bolstering on like that. You're going to get the same reaction which is not going to assist your client. Anyway, I'll stand down until 2.15 and you can listen to the audio. Perhaps put something to her very neutrally, like this passage here which I see there is no interruption by anybody and then you can just play that part to her. Okay?

MR YUEN: Yes.

……

Court adjourns - 12.42 pm

Court resumes - 2.34 pm

Accused present. Appearances as before. JURY ABSENT.

MR YUEN: Yes, good afternoon, my Lady. My Lady, your learned clerk, Ms Lee, has very helpfully located the area in the tape recording showing PW1's evidence that she intended to sell the flat in Shenzhen.

COURT: Very good.

MR YUEN: Yes. In that case, if I may...

COURT: So you can just put that to her, you know, stated...

MR YUEN: Yes, yes, yes.

COURT: Okay.

MR YUEN: In fact, there are two more areas that I would try to see if after listening to the audio if she would be in a position to agree to the transcript then...

COURT: Yes, and please make sure that you ask the question, Mr Yuen, not only does my interpreter need to stop her, you need to stop her.

MR YUEN: Yes.

COURT: Because you're asking the question.

MR YUEN: Yes.

COURT: So it's very hard for me to keep saying: ‘Will you answer “yes” or “no”?’

MR YUEN: Yes.

COURT: You can just tell her.

MR YUEN: Yes.

COURT: ‘I want a “yes” or “no” answer.’

MR YUEN: Yes.

COURT: There's no need to explain because when she says that, she is going to say: ‘Well, where did say that? Buh, buh, buh, buh, buh.’ Then she is going to say -- she might say what you don't want her to say.

MR YUEN: Yes.

COURT: So keep her tight, okay?

MR YUEN: Yes, yes, thank you, your Honour.

COURT: Just say, ‘All I want is a yes/no answer’ to her.

MR YUEN: Yes, yes, yes.

COURT: So what I don't want is her for say, ‘Oh, that's the’ -- and then it comes all out. I don't want her to say that.

MR YUEN: Yes.

COURT: Yes?

MR YUEN: Yes.

COURT: Okay.

MR YUEN: Thank you.

COURT: Yes, can I have the jury back in then.”

41.In the interim, it is not correct to say that the judge had done nothing to help or to bring Lee into line.  On the contrary, the judge was stepping in as she saw fit, as when Lee became unacceptably rude or disobliging, or when she appeared not to understand the question.  Time and again, Lee was instructed to answer counsel’s questions.  The following are some examples :

“ A. What's the use of saying this sentence? I'm now a witness.

COURT: Madam Lee, counsel is entitled to ask these questions of you. If he was not entitled, Mr Wei for the prosecution would certainly object and I too would also not permit him to ask these questions.

A. I feel that the defence counsel...

COURT: It's not a matter of what you feel, so please answer the question.

A. Well, it seems that he is forcing me.

COURT: As I mentioned to you, he is entitled to ask these questions.”[51]

“ A. I refuse to answer. Drop dead.

COURT: Please don't use that language in court. Hold on, please.

A. Because of these few days, I have a nervous breakdown -- the defence counsel. I'm sorry, my Lady.

COURT: Because of these few days, what?

INTERPRETER: ‘Because of these few days.’ It is very incoherent. She just -- she just blurted something out. ‘Because of these few days I had a nervous breakdown.’

COURT: ‘I had a nervous breakdown.’ Is that what she is saying?

INTERPRETER: Yes. She said, ‘And the defence counsel,’ and then, ‘Sorry, my Lady.’.

COURT: Madam, I know there can be quite a lot of anxiety giving evidence, but you are giving evidence and you are there to answer the questions.”[52]

“ COURT: Yes. I'm going to take a break now and in this break -- I will take the early luncheon adjournment, as I said -- in this break, perhaps, you can just have some time for yourself and calm down a bit and we can come back and resume your evidence. As I said to you, these matters are matters which the defence counsel are entitled to put to you and if these questions were inappropriate or not permitted, Mr Wei would certainly object and I would also be here to stop any of this sort of questioning.”[53]

“ A. I don't understand. Is this very important to this case?

COURT: Hold on, please. Hold on, please. Madam Lee, what is and is not important in this case is not for you to decide. Right? Just answer the question put to you. Mr Yuen.”[54]

“ COURT: Madam Lee, what Mr Yuen is asking you really is really whether you had said this previously. The answer is, yes, you said this previously or you did not or you don’t remember.

……

COURT: I hope you understand that Mr Yuen is not asking whether you receive medical treatment every month. The purpose of this is to say that you said this before. Do you confirm you said this on a previous occasion?

A. What? What words has been said?

COURT: What is being put to you.

A. Said? Said it to whom?

COURT: It doesn't matter to whom. Madam, listen. Madam, there has been a transcript put before you. You cannot read English. This transcript is the transcript of your oral speech, supposedly what you say orally. You have heard an audio which you say might be you, might not be, I don't know. This is what Mr Yuen's exercise is. He is putting to you what you have said on a previous occasion. Do you understand?”[55]

42.Then, for a period of one afternoon and one half-morning, Lee’s testimony became relatively trouble-free at least in the sense that she was answering questions.  That was as between Lee and defence counsel.  As between the judge and defence counsel, however, it was clear that there was an increasing lack of appreciation on the part of the former as regards the efforts made by the latter.  Below is one example, there are others :[56]

“ COURT: Mr Yuen, I understand your cross-examination, but you're shifting from one place to another to another, you know, asking about her statements or whatever, now going back to the transcript. You know, she is not quite sure what you are asking about now, so you're asking her: ‘At the Lo Wu Customs Office, you really didn't want to tell them about the man behind the scene,’ is that right? You're not talking about any time. You're talking at the Lo Wu Office immediately after arrest; is that correct?

MR YUEN: Yes, yes, my Lady.

COURT: Mr Yuen, you know where you are. She doesn't know what you're talking about. Please direct her to the exact date, time and place.

MR YUEN: In fact, my Lady, I think I have already done so by referring to her answer that: ‘The night when I was arrested, I was detained in the Lo Wu Office of C & E Department.’ I think that's clear enough.

COURT: Yes, but that previous question -- yes, but the previous question -- the previous question, ‘Did you feel obliged to provide?’ She said, ‘I don't understand,’ and you left the question. She told you: ‘I don't understand.’

MR YUEN: But what else can I ask when she says she didn't understand?

COURT: Well, you can say: ‘Look, at the Lo Wu Office of the Customs and Excise.’ Direct her. Never mind about what's in the transcript. Just direct her to what you are asking her, otherwise, we're going to go round and round in circles. And then with this answer just now, she is talking about a customs officer approaching her many times. Again, this is a wide answer. You want her to answer a question about Lo Wu, is that right, on 3 or 4 August after her arrest? Is that right?

MR YUEN: My Lady, if I may.”

This tension, we observe, came to a head in the episodes described in paragraphs 25 and 26 above.

In the Final Analysis

43.We have gone to great lengths to reconstruct in this judgment what took place at various points of the trial.  Our purpose is to set out in detail the background which gave rise to the matters now forming the applicant’s complaints.  It is important not only to show what the judge did or did not do but also why she was prompted to take the course she took.

44.That having been said, it is irrelevant whether the judge was correct in embracing what obviously was her view on the efficacy or otherwise of Lee’s cross-examination.  In the final analysis, the questions we have to determine are whether as a matter of law or procedure, the judge was wrong to refuse to direct Lee to answer counsel’s question (Ground 1), and wrong to deny counsel leave to re-open his cross-examination (Ground 2).

45.As Mr Yuen readily acknowledged during the hearing, the second question is only of marginal importance in the prosecution of this appeal.  It is so not least because whether the judge was predetermining a matter for the wrong reason, her decision was of no practical significance to subsequent events.  As Mr Yuen’s application to re-open his cross-examination was contingent upon Lee’s answer, yet what Lee said in re-examination was not the “explanation about the inconsistency” that Mr Yuen was after (see below),[57] it is difficult to see what basis Mr Yuen might have for having a second attempt :[58]

“ Q. Yes, right. To avoid any ambiguity, please do bear with me if I ask you on this topic once again. Now, in relation to this dangerous drugs in the Shenzhen flat, do you remember that under cross-examination you told us that there was a woman who gave the dangerous drugs to the defendant? Remember that?

A. Yes.

Q. Thank you. And in your evidence-in-chief, you told us that you really didn't know why there were so many drugs in the wardrobe. Do you also remember that?

A. Yes, I remember.

Q. So, now, Madam Lee, I wish to know insofar as 3 August 2014 is concerned, which version is correct?

A. On 3 August 2013, when I was arrested that day, I did not know as I suddenly saw there is such a large quantity of dangerous drugs. Wow. I did not know.

Q. Now, Madam Lee, coming to another topic ……”

46.The first question is less straightforward.  As the transcripts show, the judge was neither completely unhelpful nor unreasonable.  She declined to “remind [Lee] of her duty” in the first instance because counsel had supposedly failed to make known the relevance of his question.  But when that was clarified, the judge took the initiative to call Lee back into court and explained to her on counsel’s behalf that “this 1.5 kilogrammes is the exact drugs that we’re talking about in this trial”.[59]

47.The precise point of counsel’s question thus having been explicitly stated, however, the situation got trickier in that Lee’s next answers appeared to convey a veiled threat to let on more than was relevant to the present case :[60]

“ A. Well, in fact, in this case, you have been asking so many questions. Are you asking questions from the time when I was born? You have to ask the defendant. He is well aware of what he is doing.”

“ A. Well, do I need to tell how many transactions I have done with him (or her)?”

The question for us is whether in such a situation, when defence counsel had appealed to the judge for a second time to direct Lee to answer his question (he did so after the first stated answer above), the judge was correct to deny him help.

48.Our conclusion is that she was not.

49.We have considered caution and the unwillingness to provoke Lee as a possible explanation for her refusal but, given the tone and content of everything that the judge had said at the time, particularly at the end when she asked counsel if he was leaving the subject and was not going to insist on an answer[61], it seems evident that that was not her concern.  In the absence of any contra-indication, we can only conclude that, for no good reason, the judge had wrongly failed to compel Lee to do her testimonial duty, specifically to answer counsel’s question, as a witness.  That necessarily amounted to a material irregularity.

50.This leads us to the applicant’s final but related ground of appeal (Ground 3).  As was implicit in some of defence counsel’s remarks to the judge on what may or may not be an effective way of questioning Lee, getting an answer, presumably a bad one, was not the only way of showing up this witness :[62]

“ I don’t think I necessarily want any cooperation from the witness.”

“ I think the way she answers questions is something that the jury is entitled to take into consideration in assessing her credibility.”

51.In fact, given Lee’s clear contradiction on where the ‘ice’ was from, the girl or inside the wardrobe, we find it difficult to think what defence counsel was hoping to achieve by pressing the point.  On the assumption that counsel would actually confront Lee with the relevant transcripts, Lee may succumb and adopt what she said in the previous trial :[63]

“ Q. Now, Madam Lee, yesterday you described one lady coming to the apartment, bringing a thing. Was that lady the first or the second lady? You said there were two ladies.

A. This lady was the second one.

Q. I see. And when did the other one come into the picture?

A. Concerning the first one, just a few minutes after we entered this apartment, this female came with the bag of item. Then after that, soon after that, this female left this apartment.

Q. And was this bag of item brought in by this female subsequently found to contain the dangerous drugs, part of which were subsequently tied to your body?

A. Yes.

Q. I see. And in fact, that was the lady you described to the officer in your first statement, isn’t it?

A. Yes, I wanted to tell the Custom officers that that lady was the same person. She was someone from Hong Kong but she also got a home in China. She arrived there for fun. Then the defendant called her and asked her to take the item.

……

Q. So approximately how long after the first lady entered the apartment did the second lady appear?

A. Just about some over 10 minutes in between.

Q. So who witnessed the defendant tying the dangerous drugs onto your body? The first, the second or both ladies? Yes.

A. Just one lady, the second one. Concerning the first lady, after she arrived, she put down the bag of stuff. Then she left. Then the second one arrived.

Q. Then why did you omit telling the Custom officer in the statement about the second lady?

A. Because, originally, I did not want to create so much, so many troubles and I did not expect that when I testified in the court, I needed to provide such a detailed description.

Q. And why did you omit telling the court in your evidence yesterday about the first lady?

A. Are you talking about I omitted this lady when I gave the evidence to the Customs officer?

Q. Sorry, I...

COURT: In court.

Q. ...I refer to your evidence...

COURT: You said say in court.

Q. I refer to your evidence in court yesterday.

A. What is the use of mentioning this lady? In fact, I do not want to take the trouble to mention her. I think the court is just interested in knowing if the 1.5 kilograms of ‘Ice’ belongs to the defendant or not. I do not want to mention so many people.

Q. So do you agree with me that in giving evidence in this court, you had deliberately -- sorry, you had a deliberate selection process? In other words, you only told the court what you think the court was interested to know instead of telling the whole truth about what you saw on 3 August 2014, isn’t it?

A. Because I think the female brought the dangerous drug to the room, and it was not important because she was a mainlander.  I took the dangerous drug from Shenzhen, and then this mainlander was not someone in Hong Kong.  Even if she was to be arrested, she was not to be arrested by the Hong Kong side as she should be arrested by the PRC authority.  Therefore, I did not want to take the trouble to mention her.”

At the other extreme, Lee may say she was confused as to two or more different transactions which, in fact, was what she threatened to do.[64] In neither scenario do we see any benefit accruing to the defence.

52.In short, getting no answer or explanation from a witness is often as good a blow to his or her credibility as catching him or her out on an inconsistency itself.  It was an advantage which the defence had exploited to the full in this case.  As an illustration, out of his closing speech of 22 pages in transcript, we have counted at least 16 instances where counsel was attacking Lee on the point,[65] using such phrases as “[she] did not answer”, “[she] never explained” and “even the prosecutor could not get any explanation [from her]”.  The rest was a detailed, almost dissective, analysis of Lee’s discrepancies under every identifiable topic. Accordingly, this is what the judge said in her summing up.  It is both accurate and essence-capturing of the defence position :[66]

“ [T]he defence case is simply that Lee is an untruthful witness …… she has given contradictory accounts on this incident …… which she has either given an explanation which is unacceptable or has not given an explanation at all. When cross-examined, she has refused to answer some questions. At times her attitude was aggressive and evasive …….”

53.In the circumstances, looking at the matter in the round, we do not think it can be argued that real prejudice had been caused to the applicant, notwithstanding the material irregularity that we have identified.  In our judgment, this is clearly an appropriate case for applying the proviso.

DISPOSAL

54.For the reasons stated above, we grant the applicant leave to appeal against his conviction but dismiss his appeal.

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

Mr Bernard Yuen, instructed by M/s C.S. Chan & Co., assigned by Director of Legal Aid, for the applicant