HKSAR v. Yim Man Ho
Read the full judgment text of CACC 310/2016 on BabelCite. This Court of Appeal judgment was delivered on 26 January 2018.
1. This case was originally heard in the Court of First Instance of the High Court where the applicant was convicted after trial of one count of “trafficking in a dangerous drug” (the 3 rd charge in the indictment), involving a net narcotic weight of 5.76 kilograms of “ice”. He was sentenced to 30 years and 6 months’ imprisonment by the trial judge (DHCJ Poon). The applicant applied for leave to appeal against conviction.
Cited by 6 cases · Cites 4 cases
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[English Translation – 英譯本] CACC 310/2016 [2018] HKCA 72 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 310 OF 2016 (ON APPEAL FROM HCCC 207 OF 2015) ______________________
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__________________________ REASONS FOR JUDGMENT __________________________ Hon D Pang JA (giving the Reasons for Judgment of the court): 1.This case was originally heard in the Court of First Instance of the High Court where the applicant was convicted after trial of one count of “trafficking in a dangerous drug” (the 3rd charge in the indictment), involving a net narcotic weight of 5.76 kilograms of “ice”. He was sentenced to 30 years and 6 months’ imprisonment by the trial judge (DHCJ Poon). The applicant applied for leave to appeal against conviction. A. The Charges 2.Below are the three charges originally faced by the applicant:
B. The trial 3.The applicant was the only defendant in this case as “Wong”, “Chan B”, “Fan”, “Lee” and “So” pleaded guilty at various times to their respective charges. 4.After pleading guilty, “Wong” and “Lee” turned from accomplices to become prosecution witnesses. 5.As can be seen from the terms of the charge, “Lee” was the only witness who could offer evidence against the applicant in respect of Charge (2) and his testimony was the only evidence on which the prosecution relied against the applicant on Charge (2). However, “Lee” refused to give evidence after arriving at court and as a result, the prosecution had to abandon calling evidence in respect of Charge (2). As regards Charge (3) in which “Lee” had participated it would be for “Wong” to offer evidence. “Wong” of course had to testify also on Charge (1). 6.In the end, after hearing all testimonies and considering all evidence, the jury unanimously found the applicant not guilty on Charge (1), and by a majority of 6:1 found the applicant guilty on Charge (3). C. Particulars of the case 7.In his “summing-up”[1] the trial judge provided a summary of the circumstances of the offence in respect of Charge (1) and Charge (3)[2], which is adequate for understanding the facts and background of the present application[3]:
8.The “admitted facts” of the case also confirmed[4]:
D. Defence’s Version 9.The applicant said after arrest and having been cautioned for the first time, “I didn’t traffic in dangerous drugs. I just knew Ah Chiu [i.e., ‘Wong’], it’s Ah Chiu who booked the ticket for me as I don’t know how to book tickets. I merely thought about going together with Ah Chiu to Australia for fun.” 10.He said further in the subsequent cautioned video interview: He had known [Ah Chiu] for one and a half years and they had seen each other during that time. At the time of the incident, he was preparing to tour Australia with a friend who was working there. Ah Chiu, who had helped him book tickets previously agreed to accompany him. On that day, he went alone to the airport. It was at the airport that he saw Ah Chiu and the other man and woman who were also involved in the case. He did not know the man and the woman. They had never met before. On Ah Chiu’s advice he went with the group to check in. 11.The two cautioned statements above were admitted without any objection from the defence. 12.Although the applicant chose not to give evidence or call any witnesses, his defence was obviously that he had nothing to do with trafficking in dangerous drugs and he had no knowledge of the incident. E. Core Issues 13.After ‘Lee’ changed his mind, ‘Wong’ became the only accomplice-turned prosecution witness who was willing to offer evidence against the applicant in respect of Charge (1) and Charge (3). His importance can be clearly seen above at paragraph 7 which quoted one part of the “summing-up”. Besides, the trial judge emphasised many times in other parts of the “summing-up” that the key to this case hinged on the reliability of ‘Wong’s’ evidence. For example, he said[5]:
Following this, the trial judge also reminded the jury that at the time of both charges, the applicant was travelling by air (or about to travel by air) with ‘Wong’ to Australia, and that on one of the trips the tickets were booked by ‘Wong’ for all persons involved in the case, however, the suspicious circumstances themselves were insufficient to convict the applicant, the jury had to be satisfied with ‘Wong’s’ evidence in order to find the applicant guilty of the charge.[6] F. ‘Wong’s’ Evidence 14.This heading does not refer to ‘Wong’s’ description of the roles and actions of the persons involved in this case, including the applicant. As mentioned above, such details do not help in the determination of this application. 15.The focus here is on certain procedures and contents at the time ‘Wong’ gave evidence. We now list them below. 16.The prosecution did not know at the start of the trial that ‘Lee’ would change his mind and be unwilling to give evidence. Counsel on fiat mentioned in his opening submission in some detail that he anticipated what the contents of ‘Wong’s’ and ‘Lee’s’ evidence would be, including ‘Lee’s’ allegation that after the arrest, the applicant mentioned in the detention room at the airport providing $300,000 “settlement money” as consideration for ‘Lee’ not to testify that the applicant was the “mastermind”[7]. 17.Counsel on fiat did not mention in his opening submission that ‘Wong’ was making the same allegation. Until that stage, ‘Wong’ as prosecution witness had never made the same or similar claim in his written statement. 18.According to the original arrangement, ‘Wong’ would appear in court before ‘Lee’. However, ‘Wong’ indicated after affirming to give evidence that he had new evidence, so that his testimony had to be adjourned for him to give a new written statement (‘new written statement’)[8]. 19.The prosecution and defence both agreed to the trial judge’s suggestion to let ‘Lee’ into the witness box[9] pending ‘Wong’s’ ‘new written statement’. However, as mentioned above, ‘Lee’ refused to give evidence and the trial had to be adjourned[10]. 20.This Court does not have a copy of the ‘new written statement’, however, from the conversation between the prosecution, defence and the trial judge, the ‘new written statement’ mentioned that ‘Wong’ had received several [chits] (i.e., chits used in communication by detainees) sent by the applicant showing that the applicant had attempted to contact and influence ‘Wong’ in relation to his giving evidence while the case was pending trial [11]. 21.Upon enquiry by the trial judge, counsel on fiat indicated that he would not rely on the contents of the ‘new written statement’ as evidence[12]. Defence counsel also indicated[13] that unless ‘Wong’ brought up the relevant contents in examination-in-chief, the defence would not touch on the topic[14]. 22.‘Wong’ resumed giving evidence. He did not mention the applicant’s attempt to contact him in detention. Defence counsel at the beginning of cross-examination only focused on the difference between the evidence given by ‘Wong’ in court and in his written statement. 23.At a certain stage, defence counsel suddenly asked ‘Wong’ if he had, out of suspicion of being betrayed, made attempts to “communicate” in writing with the applicant. ‘Wong’ replied that, “It’s he who wrote to me”[15]. 24.In order to prove that ‘Wong’ was the initiator of these communications[16], defence counsel, in the following twenty pages of cross-examination, questioned ‘Wong’ on the fifteen pages of [chits] (defence exhibits D1 to D5) one by one[17] by reading out all of the contents therein. 25.D1 to D15 clearly showed that the applicant had knowledge of Charge (1) and Charge (3) in which ‘Wong’ was involved. It was most prominent in D1 (i.e, the first “chit” of the series of communications started by ‘Wong’). ‘Wong’ also stated with certainty during re-examination that he was referring to the two offences in D1[18]:
26.By the use of “chits”, ‘Wong’ repeatedly requested to see the applicant, the purpose of which was clearly to seek by doing a certain act or not doing a certain act, in exchange for the applicant providing certain things – although ‘Wong’ did not say it clearly what they were. D3 was a very good example:
27.As defence counsel said, the applicant was passive. However, in the seven “chits” (D5, D7, D9, D10, D12, D13, D15) in reply to the applicant (sic), there was not one in which he rebutted ‘Wong’s’ allegation, or asked ‘Wong’ what he was referring to. On the contrary, the questions which the applicant asked repeatedly were: how he could meet with ‘Wong’, why ‘Wong’ could not be seen at the arranged place, if ‘Wong’ could give him a bit more time and what ‘Wong’ wanted him to do etc. 28.Confronted with D1 to D15, ‘Wong’ eventually admitted that the communication was started by him, however, he still prevaricated about how and what he had been trying to achieve. It was only when defence counsel pointed out it was money he wanted that ‘Wong’ admitted he “had thought about it”, but at the same time he denied obtaining money from the applicant in detention[20]. On the contrary, he said after he and the applicant were arrested and everyone was detained at the airport police station, the applicant had “told us not to testify against him, to say it’s of our own volition, for money, at the beginning that was said rather tentatively.”[21] 29.The last sentence in the above paragraph was followed up and clarified by counsel on fiat in re-examination. ‘Wong’ replied to that when the applicant was in the detention room at the airport police station he mentioned giving him $300,000. He said the applicant did not explain “how it was to be paid” and it did not eventually work out[22]. G. How The Trial Judge Handled It 30.Regarding ‘Lee’s’ absence, the trial judge explained to the jury at the very beginning before ‘Wong’ resumed giving evidence[23]:
31.And at the stage of giving the “summing-up”, the trial judge then said[24]:
32.We shall come to the question of “chits”. It can be seen from the foregoing that the contents of D1 to D15 and ‘Wong’s’ explanation (if any) on them were all disclosed to the jury. It undoubtedly impelled counsel on fiat to refer to these “chits” in his closing submission. For example, he said, if the applicant had no knowledge of ‘Wong’s’ allegation, why would he ask ‘Wong’ in D15 to name the terms[25]? 33.However, counsel on fiat’s submission was stopped by the trial judge who was of the view that ‘Wong’s’ allegations in the “chits” were ‘Wong’s’ ‘previous consistent statements’ and could not be used as evidence. He considered that the applicant having knowledge of the two charges was not the only irresistible inference from the fact that the applicant did not rebut ‘Wong’. The trial judge therefore decided to direct the jury forthwith as follows[26]:
34.Later the trial judge in the “summing-up” also said[27]:
35.Finally, in relation to the “chits”, is the question of whether the applicant had mentioned giving ‘Wong’ hush money as early as the time of arrest. As this allegation was not recorded in ‘Wong’s’ old written statement and ‘Wong’s’ explanation on this was that police “told me not to write this down[29]”[30], therefore the trial judge in the “summing- up” directed the jury in this way and nothing further[31]:
H. The Main Complaints made by the Applicant 36.Mr Wong who represented the applicant only at the present stage put forward four perfected grounds of appeal and principally relied on appeal ground (1), that is, there were two material irregularities in the trial. 37.Mr Wong was of the view that the applicant was alleged to have offered ‘Wong’ $300,000 on his own initiative (see para. 28 and 29 above), which was an “uncharged act”, but the trial judge did not consider not allowing it to be adduced as evidence, nor did he direct the jury how to deal with an “uncharged act”. 38.Mr Wong pointed out that the claim of hush money by ‘Wong’ coincided with ‘Lee’s’ version (see para. 16 above), but the trial judge only directed on ‘Lee’s’ absence and not giving evidence (see para. 30 and 31 above). Mr Wong opined that the judge’s direction was insufficient to eliminate the bias the jury might have towards the coincidence of the ‘Wong’ and ‘Lee’ versions. Discussion 39.It was alleged that the applicant offered on his own initiative hush money to ‘Wong’, the act itself is not truly an “uncharged act” as such in law. The offer of hush money (perverting the course of justice) and the issue which is to be tried in the present case (trafficking in a dangerous drug) are entirely different in substance. The principles for deciding whether evidence of the “uncharged act” should be adduced and on how to direct the jury after such evidence has been adduced (see HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761) do not apply in this case. 40.If this relatively fundamental question is put aside for the time being (see paras. 45 to 49 below), the Court is of the view that the alleged offer of hush money itself is evidence which has probative value and is admissible. The reason is that if the applicant had not trafficked in dangerous drugs, why would he offer money for ‘Wong’ not to testify against him? 41.However, to err on the side of caution, the Court would give directions to the jury in respect of certain “post-offence conduct”. The contents of the direction normally are: The jury has to be sure that the defendant carried out the relevant act, and that the act was not carried out for reasons unrelated to the commission of crime, before the jury can regard the act as evidence in support of the allegation made by the prosecution. 42.Directions on “flight”, “lies” and “concealment” are typical directions of this kind. Having said that, it does not mean that the judge is only required to give directions in respect of the several established scenarios. Quite on the contrary, the judge does not necessarily have to give directions to the jury for any remotely comparable situations. It depends on the circumstances of each individual case. After all, the aim of this kind of direction is to remind the jury to be cautious about looking at matters superficially. 43.In the present case, it was not even disputed by counsel on fiat that ‘Wong’s’ evidence was not to be believed in its entirety. In his closing submission, he pointed out that ‘Wong’s’ words were “self-contradictory” and that “he was lying”[32]. However, ‘Wong’ was found to be “lying” only when the “chits” revealed that he was the one who took the initiative to contact the applicant. As to what his purpose was and whether he was trying to get money from the applicant, ‘Wong’s’ final version was that it was because in the detention room at the airport police station the latter offered to pay hush money to him. In the other words, he was just thinking of following up on the applicant’s offer. 44.That being the case, the Court is of the view that there was a need for the trial judge to give the jury the two-pronged direction mentioned in para. 41 above. Apart from having to decide the truthfulness of ‘Wong’s’ claim, the jury had to consider if the applicant might have offered ‘Wong’ money out of fear of the latter framing him, the sort of reason which had nothing to do with the commission of crime. No matter how obvious the trial judge might have thought the answers to the two questions above were, he still had a duty to remind the jury but failed to do so. 45.After discussing the issues above, the Court has to point out that it is more concerned that the trial judge ought not have allowed matters to develop to such a state in the first place. As mentioned above, at the start of the trial the prosecution did not know that ‘Lee’ would change his mind by not giving evidence, counsel on fiat therefore gave the jury in advance the evidence of ‘Wong’ and ‘Lee’ in detail. Regarding Charge (3) in which both ‘Wong’ and ‘Lee’ participated, it was like inculcating the jury twice with the allegation that the applicant was guilty. 46.Regarding the matter of information prejudicing the interest of the defence being placed before the jury, the Court generally has three ways of handling it. The first would be not to mention it anymore and let things pass in the course of the trial. The second would be to give a clear and strong direction to the jury to disregard such material. The third would be to discharge the jury. The choice would be a matter within the discretion of the judge. Depending on circumstances of each and every case, the appellate court would judge according to the issues involved, the impact of the prejudicial information, the way and process of disclosure of the information, the degree of prejudice to the interests of the defence and the remedy available by way of the judge giving directions, whether the decision of the judge refusing to discharge the jury was appropriate. But the appellate court would not readily interfere (see R v Lawson [2007] 1 Cr App R 20). 47.In the present case, unfortunately, neither the trial judge nor the prosecution or defence noticed that ‘Lee’s’ version had already been disclosed. After ‘Lee’ had left the court, none of the parties raised the matter of or applied for the discharge of the jury. The trial judge’s direction on ‘Lee’ no longer giving evidence was just telling the jury not to speculate but Charge (2) was no longer relevant. How ‘Lee’s’ version on Charge (3) should be dealt with was not touched upon by the trial judge. 48.The ways of dealing with the matter as mentioned above were inadequate. The trial judge’s standard direction that counsel’s submissions were not evidence could hardly make up for the damage the prosecution’s opening submission had done to the applicant. Besides, as Mr Wong has pointed out, ‘Lee’ alleged that the applicant offered to pay him hush money, the dates, venues and sums were entirely the same as ‘Wong’s’ version. Although ‘Lee’ did not give evidence, by the prosecution’s opening submission, ‘Wong’s’ version had been indirectly confirmed. The damage to the applicant was beyond reckoning. The danger of the jury becoming biased against the applicant was “real” and not just a “real likelihood” (see R v Docherty [1999] 1 Cr App R 274). 49.The Court is of the view that the trial judge should have discharged the jury after ‘Lee’ refused to give evidence. Doing this would only have wasted a day’s time on the part of the court but the defence’s interests would have been effectively safeguarded. The trial judge never considered or handled it in this manner, which in itself was a ‘material procedural irregularity’. On this basis, the appeal should be allowed. The Issue on the Chits 50.The Court considers that there is a need to discuss D1 to D15 here. 51.It was surprising that the defence had chosen to read out the contents of all the “chits” before the jury. As the Court has mentioned, such contents were to the disadvantage of the applicant (see paras. 25-27 above). The trial judge also erred in saying that the contents had no probative value against the applicant (see paras. 33-34 above). After the defence had adduced the “chits”, the jury would be entitled to consider their contents together with other evidence and the trial judge only had to give the full direction on “inference”. 52.The Court understands that the defence was trying to prove through the batch of “chits” that ‘Wong’ was lying, however, the benefit of doing so in this way was much less than the damage it caused, indeed it was entirely disproportionate, particularly given that ‘Wong’s’ credibility had already been questioned (see para. 22 above). Furthermore, to prove that ‘Wong’ had approached the applicant on his own initiative, the defence only had to hand the whole batch of “chits” to ‘Wong’ and let ‘Wong’ confirm their sequence and the person writing and sending out the first “chit”. At most the defence only had to read out the sentences “you have to explain” and “reply me” at the bottom of D1 to achieve the aforesaid purposes. 53.Of course ‘Wong’ was not a witness who could be handled easily. Taking the above approach might not be straightforward, however, compared to all the “chits” being read out and submitted, this would have been a much better way and one which should have been tried using best endeavours. 54.It was surprising that defence counsel disclosed the contents of the “chits”. If the applicant complained about defence counsel’s handling of the matter in this way, it would undoubtedly be a matter which required careful examination. I. Other Grounds of Appeal 55.The Court does not intend to spend time discussing in detail the other grounds of appeal advanced by the applicant. 56.To put it simply, the Court considered that the analysis of HKSAR v Chand Gill CACC 219/2014 (11 January 2016) and FAMC 17/2016 (19 August 2016) applied in this case. The fact that the trial judge did not give directions according to the standard wording in Liberato was not sufficient to overturn the conviction in this case: Ground of appeal (2). 57.The Court considered that the circumstances in Charge (1) and in Charge (3) were truly different. For example, the date of offence of Charge (1) was much earlier than that of Charge (3), ‘Wong’ and the applicant were not caught red-handed at that time. The prosecution’s case was merely based on ‘Wong’s’ statement alleging that the applicant committed the offence. The Court did not consider that the verdicts of the two charges were inconsistent: Grounds of appeal (3) and (4). J. Judgment 58.On the basis of the conclusion at para. 49 above, the Court granted the applicant leave to appeal against his conviction, allowed his appeal and quashed his conviction.
Wong Hay-yiu, instructed by Cheung & Liu Solictors, for the Applicant Eddie Sean, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Refers to the directions on the law and summary of the facts given by the trial judge to the jury, same below. [2] Apart from that, the trial judge has also repeated ‘Wong’s’ evidence in detail to the jury but there’s no need for me to repeat it here. [3] pp.2R -3 A and 3C-F in the appeal bundle. [4] p.X to XV in the appeal bundle. [5] p.1Q-R in the appeal bundle. [6] p.5I-O in the appeal bundle. [7] p.59J in the appeal bundle. [8] p.60-65 in the appeal bundle. [9] p.68 in the appeal bundle. [10] p.73-73 in the appeal bundle. [11] p.66S, p. 69H and p.70K in the appeal bundle. [12] p.69M. [13] Defence counsel in the trial is not the same person as defence counsel Mr Wong for the applicant now. [14] p.69V and p.70M in the appeal bundle. [15] p.126C to p.127D in the appeal bundle. [16] p.147F-V in the appeal bundle. [17] p.127-146 in the appeal bundle. [18] p.186P in the appeal bundle. [19] ‘Wong’ admitted during cross examination that Fai Tau referred to ‘Chan B’ in Charge (1): p.150N. [20] ‘Wong’ admitted that he was once in the “same cell” during the exchange of “chits”. [21] p.147Q – p.154C in the appeal bundle. [22] p.189M – p.190F in the appeal bundle. [23] p.73U – p.74D in the appeal bundle. [24] p.1K-N in the appeal bundle. [25] p.204Q – p.205F in the appeal bundle. [26] p.210P-T in the appeal bundle. [27] p.8H-L in the appeal bundle. [28] They should be D1 to D15. [29] p.196K-M in the appeal bundle. [30] This written statement was taken down by PW4 who had denied doing so in evidence. [31] p.8C-F in the appeal bundle. [32] p.204N-O in the bundle. |
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