HKSAR v. Cheung Chi Wong
Read the full judgment text of CACC 77/2017 on BabelCite. This Court of Appeal judgment was delivered on 28 August 2018.
1. On 20 March 2017, following a trial before D’Almada Remedios J (the judge) and a jury, the applicant was convicted of two counts of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. He was sentenced to a total term of 30 years’ imprisonment.
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CACC 77/2017 [2018] HKCA 840 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 77 OF 2017 (ON APPEAL FROM HCCC NOS 434 OF 2015 & 126 OF 2016) ________________________
________________________ Before: Hon Macrae VP, McWalters and Zervos JJA in Court Date of Hearing: 28 August 2018 Date of Judgment: 28 August 2018 Date of Reasons for Judgment: 30 November 2018 ____________________________ REASONS FOR JUDGMENT ____________________________ Hon Zervos JA (giving the Judgment of the Court): 1.On 20 March 2017, following a trial before D’Almada Remedios J (the judge) and a jury, the applicant was convicted of two counts of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. He was sentenced to a total term of 30 years’ imprisonment. 2.The applicant appealed against conviction only. At the conclusion of the hearing, we refused him leave to appeal against conviction and dismissed the appeal, saying we would give our reasons for our decision in due course. These are our reasons. The particularsof the conspiracies 3.The particulars of Count 1 alleged that the applicant:
4.The applicant’s co‑conspirator in Count 1, Ng Ka‑hin (Ng), was arrested at Hong Kong International Airport on 6 July 2014, having arrived in Hong Kong on a flight from Bangladesh. He was found to have concealed in his suitcase 5.98 kilogrammes of a solid containing 4.82 kilogrammes of cocaine. The street value of the drugs at the time of the offence was estimated to be $6,273,020. On 17 June 2015, he pleaded guilty to trafficking in the drugs and was sentenced to 18 years and 8 months’ imprisonment. He gave evidence for the prosecution at the applicant’s trial in relation to this count. 5.The particulars of Count 2 alleged that the applicant:
6.The applicant’s co‑conspirator in Count 2, Chan Po‑yu (Chan), was arrested at Hong Kong International Airport when checking in for a flight to Sydney, Australia. She was found to have concealed in her backpack 1,349 grammes of a solid containing 1,340 grammes of methamphetamine hydrochloride (commonly known as Ice). The street value of the drugs at the time of the offence was estimated to be $574,674. On 5 May 2016, she pleaded guilty to trafficking in the drugs and was sentenced to 16 years and 8 months’ imprisonment. She gave evidence for the prosecution at the applicant’s trial in relation to this count. The application for leave to appeal 7.The applicant advanced five grounds of appeal which briefly stated were as follows. 8.The first ground challenged the judge’s ruling, admitting into evidence the video recorded interview of the applicant conducted on 1 September 2014, which was relevant to Count 2. 9.The second ground questioned the directions given by the judge to the jury, concerning the evidence of Chan relevant to the video recorded interview. 10.In the first two grounds, it was also complained that the judge failed to consider in her ruling on the admissibility of the video recorded interview, and failed to remind the jury, that questions and answers in the video recorded interview in relation to an uncharged act should be disregarded. This aspect of the two grounds was abandoned when it was discovered that it was based on an unedited version of the video recorded interview which was not put before the jury. 11.The third ground questioned the use of the phrase, “likely to be satisfied”, by the judge in her summing-up to the jury in relation to the evidence of Ng. It was claimed that the phrase introduced the wrong standard of proof to the jury. 12.The fourth ground complained that the judge failed to warn the jury about comments made by prosecuting counsel in his closing address in relation to the two counts, and the need for them to consider the evidence of each count separately and independently. In oral submissions, it was acknowledged that prosecuting counsel did not make the comments attributed to him by the judge. 13.The final ground complained that the judge failed to highlight to the jury the evidence that the applicant did not have on him SIM cards with telephone numbers matching those from which were sent text messages that the prosecution relied on at trial. The consolidation of the two counts 14.The proceedings against the applicant in relation to the two counts were commenced by two separate indictments, namely, HCCC No. 434 of 2015 (Count 1), and HCCC No. 126 of 2016 (Count 2). The prosecution applied to consolidate the two indictments which was heard by Anthea Pang J on 11 November 2016. The applicant was unrepresented, having terminated the services of the legal representatives assigned to him by the Legal Aid Department. He did not object to the consolidation of the two indictments, but the judge nevertheless satisfied herself that it was appropriate to exercise her discretion in granting the application[3]. 15.The matter, however, was resurrected prior to the commencement of the trial, when the applicant, who was then represented by counsel, applied for separate trials of the two counts. Having considered the written and oral submissions from counsel, the judge refused the application[4]. The challenge to the admissibility of the video recorded interview 16.The applicant also challenged the admissibility of a video recorded interview of him which concerned Count 2. The judge conducted a voir dire and received evidence on the issue from four police officers and Chan for the prosecution, and the applicant for the defence. 17.The applicant’s grounds of objection to the admissibility of the video recorded interview were that he had been assaulted, forced and induced to make the admissions contained in the interview, and coached by police officer, IP Kwok Wai, (DPC 89), as to what to say. 18.The applicant testified that on 31 August and 1 September 2014, DPC 89 had assaulted him at the hotel room, where he had been arrested, and later at the Wan Chai Police Station. The applicant said he was assaulted with punches and kicks by DPC 89 and some other police officers. He was told to make admissions and that if he refused he would be treated as the mastermind of the case, or assaulted until he agreed or died. He was also threatened that if he refused to make the admissions, he would be extradited to mainland China where he would be executed. He was told that he could choose between death in mainland China or detention in Hong Kong, and that he should make admissions in accordance with the story that they would coach him to make. He said he was given a written version of the story to study and told to repeat it in the video recorded interview. 19.The defence in support of the assertion that the applicant was assaulted by the police officers, adduced medical reports by the nurse and doctor at Lai Chi Kok Reception Centre on 3 and 4 September 2014 who examined him when he was taken into custody. Whilst the medical reports recorded that the applicant had injuries on his body, it was also recorded that he told them that he received the injuries as a result of a fight. 20.In answer to the defence allegations, the prosecution called the police officers in question who denied any improper conduct in their dealings with the applicant. 21.The prosecution also called Chan, who testified that the applicant was assaulted in mainland China in the early hours of the morning of 31 August 2014 when he was in a fight. She said he had bruises on his body and was bleeding from his head. 22.The defence challenged Chan’s evidence, submitting that she had been coached by the police officers to provide this explanation. It was noted that she made no mention of the event in her first two statements to the police, and it was only shortly before the commencement of the applicant’s trial, on 1 March 2017, that she said the applicant had been assaulted in mainland China. It was submitted that Chan had been instructed by the police to fabricate the story of the assault, when it became known at the pre-trial review that the defence intended to challenge the admissibility of the video recorded interview. In addition, it was submitted that the injuries sustained by the applicant were not consistent with the account of the assault given by Chan, as he had no injury to his head as she claimed. 23.As for the statements he made to the nurse and doctor, that he was involved in a fight, it was originally the defence case that the police told him to say he received his injuries as a result of a fight. However, when the applicant testified, he departed from the case advanced on his behalf, and stated that he never made the statements to the nurse and the doctor. It was also noted by the defence that the applicant made several complaints against the police in relation to these matters. 24.At the conclusion of three days of evidence, both counsel presented closing submissions to the judge. 25.Prosecuting counsel submitted that the applicant’s allegations of police misconduct were refuted by his apparent demeanour and the way he answered questions in the video recorded interview, which indicated that he was not a frightened and beaten individual as he claimed. He referred to the evidence of the police officers who denied the allegations and noted that they had been supported by Chan, who testified that the applicant had been involved in a fight in mainland China on 31 August 2014. He also noted that the nurse and the doctor who examined the applicant soon after his arrest on 3 and 4 September 2014, had recorded in the medical report which was, admitted into evidence, that he told them he received his injuries as a result of a fight. He pointed out that the applicant in his evidence denied having made these statements to the nurse and the doctor, which meant that he was saying that they had invented it. 26.By his submission, prosecuting counsel was inviting the judge to accept the evidence of the prosecution witnesses and reject the applicant’s evidence[5]. 27.Defence counsel submitted that the evidence of the police officers and Chan should not be accepted. He pointed out that after Chan was arrested on 31 August 2014, in a video recorded interview, and later in a non-prejudicial statement dated 23 October 2015, she did not mention the incident of the assault. He noted that it was not until her statement dated 1 March 2016 that she mentioned it. He emphasised the discrepancy between Chan’s evidence that she saw a lot of blood coming from the applicant’s head when he was assaulted and the medical report of the applicant’s injuries, which made no mention of an injury to his head. He addressed the prosecution’s challenge to the credibility of the applicant in relation to his claim that he had been beaten and coached by the police to say the things he said in the interview as well as to say that he was in a fight if he was asked about his injuries. He finally addressed the evidence of the police officers by questioning their credibility[6]. 28.At the conclusion of defence counsel’s closing submission, the judge confirmed with him the evidence of the nurse and the doctor as to what they recorded was told to them by the applicant concerning his injuries. It was noted that there was a record that on 3 September 2014 the applicant had revealed that the injuries he had sustained were related to a fight prior to his admission, and on 4 September 2014 he told the medical officer that he was assaulted by other people on 30 August 2014 in the street in China. 29.Defence counsel confirmed with the judge that he accepted the truth of what was contained in the record. When it was pointed out by the judge that the applicant testified that he did not make these statements to the nurse and the doctor, defence counsel acknowledged that there was a material discrepancy with his evidence because the defence case was that he made these statements because he had been told to do so by the police. Clearly, the admitted medical records contradicted the applicant’s evidence and his case. 30.The judge was clearly focused on the issues and it was apparent that the only question for her was whether she believed the evidence of one side or the other. 31.In her ruling, the judge set out the objections and the allegations by the applicant. She then went on to briefly state:
The evidence of trial 32.At the trial, the prosecution essentially relied on the evidence of Ng to prove its case on Count 1, and on the evidence of Chan as well as the applicant’s admissions in the video recorded interview to prove its case on Count 2. As to Count 1 33.In respect of Count 1, Ng testified that sometime in June 2014, he was approached by a person known as “Joe Chan” who asked him if he was interested in working. He said he was and met Joe Chan to discuss the matter. At the meeting, Joe Chan told him that his boss wanted someone to pick up drugs from Brazil and bring them back to Hong Kong. He was offered a reward of $70,000. He agreed. He was asked to provide his passport and identity card to make the necessary arrangements. When he met Joe Chan to give these items to him, Joe Chan introduced the applicant to him as “Tony”, his junior boss. Subsequently, Ng identified the applicant in a police identification parade as the person who was introduced to him as Tony. 34.Ng had various meetings with the applicant and others that were usually arranged by text messages. Ng testified that on 28 June 2014, a meeting was arranged for him to meet the applicant’s boss, “Jerry”. At the meeting, Jerry explained to him the arrangements regarding the trip to Brazil in order to bring the drugs to Hong Kong. The applicant acted as a lookout while the meeting took place. After the meeting, he and the applicant took a taxi together, and he was dropped off at his home. 35.On 30 June 2014, Ng accompanied by the applicant and Joe Chan picked up his visa for the trip. The three men then took a taxi to Mong Kok where they met Jerry. Jerry gave Ng US$1,000 cash for hotel and other expenses. Ng and the applicant took a taxi to the airport but on the way they got off at the Lai King MTR Station as Jerry’s boss wanted to see Ng. Before they had got into the taxi the applicant gave Ng an old mobile telephone and told him that when he was in Brazil someone would give him a Sim card for the mobile telephone through which they would communicate. Ng then went to the airport with the applicant and Joe Chan. The applicant and Joe Chan did not accompany Ng into the airport. However, they requested Ng to maintain contact with them before boarding. 36.Ng then flew to Brazil. He informed Jerry that he had arrived and arrangements were made for someone to contact him. The contact gave him a Sim card which he inserted in the mobile telephone and arrangements were made for the contact to communicate with him the following day. He informed Jerry and the applicant of what had taken place. The contact arranged to meet him and gave him a suitcase with the drugs inside. He informed the applicant as well as Jerry and Joe Chan that he got the suitcase. There were more communications between them, mainly in the form of text messages, about making arrangements for a new flight for Ng to come back to Hong Kong via Bangladesh. On 6 July 2014, Ng arrived in Hong Kong who, after being stopped and searched by customs officers, was found to have 4.82 kilogrammes of cocaine in his suitcase. As to Count 2 37.In respect of Count 2, Chan testified that in August 2014, she received a telephone call from “Mr Chan”, a person with whom she had previously communicated on the internet. Mr Chan offered her a $30,000 reward to transport drugs from Hong Kong to Australia. As Chan was in urgent need of money, she agreed to transport the drugs. On 22 August 2014, in preparation for the trip to Australia, Chan was instructed by Mr Chan to go to Jordan, where she met the applicant who introduced himself as Kelvin, and another man, who the applicant introduced as Ah Chong. Subsequently, Chan identified the applicant as Kelvin, by photograph identification on 23 December 2015 and by a dock identification when she testified in court. 38.Chan testified that it was Ah Chong who gave the applicant some money, who then gave it to her to buy air tickets to Australia. The applicant told Chan that she had to go to mainland China on 30 August and stay overnight, as she had to pick up the drugs from there. Before they parted company, the applicant gave Chan his telephone number in order for her to communicate with him. 39.On 30 August 2014, Chan went to mainland China as instructed. She was picked up by Mr Chan and taken to a private room of a nightclub, where she met the applicant. They spent the night at the nightclub, having fun. At about 6 am on 31 August 2014, the three of them left the nightclub and took a taxi to a sauna to rest. After they alighted from the taxi, suddenly four or five men appeared with poles, chasing after the applicant. She said that as the applicant was running away, he was beaten up. She saw that the applicant had sustained injuries and thought he was bleeding from the back of his head and saw that blood had gone down to his clothing. She also saw bruising on his arms and legs. They then went to a sauna and rested. At about 3 pm that day, Chan and the applicant took a taxi to Huanggang Village where Ah Chong gave a rucksack containing the drugs. Chan was escorted by the applicant across the border to Hong Kong, and then took a taxi to the airport alone. At the airport, Chan was stopped and searched and found to have 1.34 kilogrammes of Ice in her rucksack. She was arrested. 40.At about 8 pm on 31 August 2014, police officers located the applicant in a room at the Hotel Bonaparte. They broke into the room and arrested him. A search of the room, revealed $119,500 cash in a desk and $4,220 cash in the applicant’s wallet. 41.Between 5.36 pm and 6.09 pm on 1 September 2014, the applicant participated in a video recorded interview in which he admitted that he knew Chan through Joe Chan. He said he knew that Joe Chan had met Chan on the internet and that she later was asked to transport drugs. He also admitted that he first met Chan, whom he called “Tomboy”, on 30 August 2014, when Chan purchased air tickets to Australia. He said that he was instructed to take Chan to mainland China to meet someone who would give her something. He was also instructed to keep Chan there for a night because they feared she would change her mind and not take the flight to transport the drugs on the following day. He said that he went to mainland China prior to Chan, and that he later met her and had fun together at a karaoke bar and sauna. At about 4 pm, he and Chan went to Huanggang Village where someone handed a backpack to Chan. The applicant then escorted Chan to Hong Kong. He admitted that he knew Chan was going to transport drugs, which he believed were inside her backpack. The defence case 42.The applicant did not give evidence at trial. The defence case, however, was that there was no agreement with either Ng or Chan to traffick in dangerous drugs. As for the evidence of Ng, it was submitted that Ng and the applicant were merely strangers. They had met twice in Lai Chi Kok Reception Centre and he had falsely accused the applicant of being the one involved in the conspiracy. As for the evidence of Chan, it was submitted that the applicant had only been with her at a karaoke bar on 30 August 2014 for fun, and that she had falsely accused and implicated him. The defence suggested that the reason Ng and Chan falsely accused the applicant was because they wanted a reduction to their existing terms of imprisonment. 43.As for the admissions made in the applicant’s video recorded interview in relation to Count 2, the defence case was that the admissions were not true as the applicant was forced and coached by the police to make them. The summing-up 44.The judge from the outset of her summing-up explained to the jury that the two counts related to two separate conspiracies. The judge then immediately directed the jury:
45.Having briefly outlined both the prosecution case and the defence case, the judge then identified the issues to be determined by the jury:
46.The judge then went through the usual directions including, how the jury should approach the evidence and the burden and standard of proof, reminding them again of the importance of considering the two counts separately when evaluating the evidence of Ng and Chan:
47.On the evidence of the accomplice witnesses of Ng and Chan, the judge stressed the need for them to approach their evidence with caution:
48.Noting the issues arising from the evidence of the applicant’s video recorded interview, the judge very thoroughly explained to the jury the defence case.
49.The judge went on to explain:
50.Having summarized the defence’s case regarding the admissions made in the applicant’s video recorded interview, the judge once again reminded the jury:
51.It should be noted that the judge repeatedly reminded the jury that the evidence was not to be used generally between the two counts but that each count and its relevant evidence had to be considered independently and separately from each other[15]. The grounds of appeal 52.We turn to address the issues which are engaged in this appeal. The first ground of appeal 53.It was advanced by Ms Olivia Tsang, counsel for the applicant on appeal but not at trial, that the judge had erred in ruling admissible the video recorded interview of the applicant. There were two limbs to this ground. (i) The first limb 54.First, it was submitted that the judge failed to consider that part of the evidence of Chan was contradicted by the medical report, exhibit D1, concerning the injuries to the applicant. This was one of the matters the defence raised in challenging the credibility of Chan, which was the main thrust of the defence case in relation to Count 2, both in the voir dire and at trial. 55.Chan testified that she and the applicant went to mainland China to pick up the drugs and at the time he was attacked by a gang of men who beat him with poles. Immigration records showed that Chan and the applicant were in mainland China on 30 and 31 August 2014. She said, amongst other things, that he sustained an injury to his head and there was a lot of blood. 56.When the applicant was first seen by the nurse and then the doctor at Lai Chi Kok Reception Centre Hospital on 3 and 4 September 2014, he was examined for his injuries. The medical report listed the injuries on the applicant’s body, which consisted of bruises and abrasions, but did not mention an injury to his head. The medical report also recorded that the applicant explained his injuries to the nurse as having been sustained in a fight prior to admission, and to the doctor as having been sustained in a fight in China on 30 August 2014. Several weeks later, the applicant complained that his injuries were a result of having been beaten by police officers. He later arranged, on 1 December 2015, to be medically examined at Lai Chi Kok Reception Centre Hospital, on which occasion he said that the injuries were a result of having been beaten by police officers. 57.It was argued that Chan’s evidence was contradicted by the medical report, which did not suggest any injury to the applicant’s head, and yet the judge made no mention of this discrepancy in her ruling on the voir dire. 58.Ms Tsang relied on the judgment of Stock VP (as he then was) in HKSAR v Okafor [2012] 1 HKLRD 1041, which provides guidance on the question of whether, and in what circumstances, a court is obliged to give reasons for its ruling as to admissibility on a voir dire. She submitted that the present case belonged to the category of case mentioned by Stock VP where “there is material and obviously inconsistent or contradictory testimony on an important issue” which should be explained by the court if it is decided to admit a statement against interest. 59.It is well settled that the reason for ruling admissible a statement against interest must be sufficiently clear and apparent so as to provide the basis for a meaningful appellate review of the correctness of the ruling. However, this does not necessarily require that the reason be found in the ruling itself. It is when the basis of the ruling is not clear from the record, including the evidence, the nature of the challenge and the exchanges in the course of the proceedings, that a reasoned ruling should normally be provided. 60.This was explained by Stock VP in his judgment:
61.There is no need for the provision of reasons when the ruling, admitting into evidence a statement against interest, is clear from the circumstances as revealed by the record. Stock VP, also in his judgment, set out examples of situations which may require the delivery of a reasoned ruling by a court when determining the admissibility of a statement against interest. He emphasised, as we now do, the danger in treating the examples he provided as requiring in all cases that a reasoned ruling must be given, “no matter how clear the reason is from the record.” Importantly, he went on to emphasise that, “[t]he examples are provided to illustrate the type of case where it may well be difficult readily to cull the reasons from the record and where a reasoned ruling tends to be called for ...”[17]. 62.As noted by Lord Mustill in Wallace v R [1971] 1 Cr App R 396, each case will depend on the circumstances whether reasons should be given, and if so with what particularity[18]. 63.It is simply not enough, when complaining about the reason for a ruling to admit into evidence a statement against interest, to limit consideration only to the ruling without proper regard of the circumstances as revealed by the record. 64.In the present case, the judge gave a ruling in which she outlined the basis of her decision. As for the reasons for her ruling in relation to any specific issues that she had not mentioned, they were clear from the record of the proceedings. 65.The judge identified and applied the correct principles on the admissibility of a statement against interest. She explained that she was satisfied that the video recorded interview was made voluntarily, and that there was no reason for her to exercise her residual discretion to exclude the video recorded interview because of any unfairness to the applicant. As we have already noted, the judge was clearly focused on the issues, having received lengthy submissions from defence counsel on the discrepancy of evidence point now being argued that she did not address. The real issue for the judge was whether she believed the evidence of one side or the other. Her ruling makes it patently manifest that she believed the evidence of the prosecution witnesses and rejected the evidence of the applicant. 66.In the result, we were satisfied that the judge was entitled to rule the video recorded interview admissible in evidence and that her ruling contained all that was required when considered together with all the circumstances, as revealed by the record. (ii) The second limb 67.Secondly, it was submitted that the judge failed to consider the exchange between DPC 89 and the applicant as recorded in the video recorded interview in relation to the physical condition of the applicant at the time of the interview when it would have been apparent that he had sustained injuries. It was complained that the police officer did not specifically raise with the applicant the injuries to his body but instead asked two standard questions. The officer asked the applicant if there was any problem with his present physical condition to which he replied there was not, and then he asked him if he was fit to conduct a video recorded interview to which he replied he was. 68.It was argued by Ms Tsang that the applicant’s answers contradicted the injuries that he had sustained and that his responses corroborated his complaint against the police that they had beaten him and coached him to say the things he said in the video recorded interview. She further argued that on this basis the applicant’s complaints may have been true and the judge should have ruled the video recorded interview inadmissible. 69.We failed to see the logic or the significance of this argument. In fact, this was not an argument advanced at trial by defence counsel in challenging the admissibility of the video recorded interview. The only reference to this exchange by defence counsel in his closing submission on the voir dire was in response to the point made by the prosecution that if the applicant had been coached by the police to say that his injuries were a result of a fight in China as he claimed, then why did he not say so when asked in this exchange. Defence counsel submitted the applicant did not do so, because, as the applicant said in his evidence, he had not been specifically asked[19]. 70.It was noted by defence counsel that there had been a previous video recorded interview of the applicant where he was asked about his injuries and in response he said that he received them at a disco in mainland China. He submitted that the applicant gave this answer because he was under threat. He further submitted that that was why when the applicant was first presented to the nurse, and subsequently to the doctor, at Lai Chi Kok Reception Centre Hospital, he told them that he sustained his injuries as a result of fighting. 71.We observed that the police officer’s inquiry of the applicant as to whether he had a problem with his physical condition and was fit to conduct an interview, was no more than the police officer confirming with the applicant as to whether he was fit and able to be interviewed. The applicant’s responses that he had no problem with his physical condition and he was fit to be interviewed is a far cry from the suggestion put by Ms Tsang that this corroborated his complaint that he had been beaten and coached by police officers. 72.The judge in her ruling addressed this, as well as other matters, when she said:
73.The judge had previously noted in her ruling that the admitted medical reports included statements by the applicant to the nursing officer on 3 and 4 September 2014 that his injuries were sustained as a result of a fight prior to admission, and to the medical officer on 4 September 2014 that he was assaulted by other people on 30 August 2014 in the street in China. She also noted that from the admitted medical reports that it was later, on 1 December 2015, at the applicant’s request, that he was interviewed again by the medical officer whom he informed that his injuries were a result of him being assaulted by five plainclothes police officers on 31 August 2014[21]. She said:
74.We found no merit in this ground of appeal. The second ground of appeal 75.In this ground of appeal, Ms Tsang complained that the judge failed to direct the jury that if they were unsure of the evidence of Chan in light of the applicant’s medical report, they should consider whether the applicant might have been forced or coached to say the things he said in the video recorded interview. 76.She argued that there was a contradiction between the evidence of Chan and the medical report, and the judge failed to explain to the jury how they should handle such a material discrepancy in the evidence. The contradiction, as already noted, was that Chan testified that when the applicant was assaulted in mainland China she saw that there was a lot of blood coming from his head. When the applicant was medically examined soon after the incident, no mention was made in the medical report of such an injury. 77.The so-called contradiction was a matter that was fully ventilated at trial by defence counsel and extensively canvassed in his cross-examination of Chan and closing address. The judge made frequent references to the matter in her summing-up. She said:
78.The judge went on to say:
79.There is no dispute that the judge put the defence case fully and accurately to the jury and emphasised to them that the credibility and reliability of Chan in relation to Count 2 was a key issue. We failed to see what more was required of the judge. She addressed the issue, and told the jury that it was a matter that went to the credibility of Chan. It was all part and parcel of the defence case that the police officers orchestrated Chan to provide a false story that the applicant had been assaulted in China and that they assaulted the applicant and forced him to cooperate with them. 80.Ms Tsang relied on HKSAR v Pang Hiu Sau (2014) 17 HKCFAR 545 and R v Mushtaq [2005] 1 WLR 1513 in support of this complaint but the judge gave what is commonly referred to as a Mushtaq direction which instructs the jury that if they consider the out-of-court statements were, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it[25]. 81.We found no merit in this ground of appeal. The third ground of appeal 82.The subject of this ground is the judge’s direction to the jury that they should return a verdict of guilty if they were to accept the evidence of Ng and “were likely to be satisfied that the prosecution has shown the conclusion of an agreement between Ng and the accused to traffic in dangerous drugs”. 83.It was complained that the judge erred in introducing the phrase “likely to be satisfied”, thereby introducing a wrong standard of proof to the jury. 84.The judge’s remarks came at the end of her summary of the evidence of Ng in relation to Count 1. She said:
85.The judge actually said something similar at the conclusion of her summary of the evidence of Chan in relation to Count 2[27]. 86.Whenever it is necessary to evaluate or assess a matter, its context will invariably be very important. Context should not be pushed aside and ignored for the convenience of an argument. The phrase in question does not introduce a different standard of proof to the jury when viewed in its context. 87.As is common practice, the judge reminded the jury at the outset of her summing-up that if she expressed a view concerning the facts or evidence they should not accept that view unless they agreed with it[28]. She then went on to emphasize to the jury that they must be satisfied beyond reasonable doubt, so that they were sure, of the applicant’s guilt in relation to each count before they could return a verdict of guilty. She said:
88.She then added:
89.Before addressing the elements of the offence of conspiracy to traffic in a dangerous drug, the judge addressed the jury on the two counts:
90.The judge later repeated to the jury that, in accepting Ng’s evidence they had to be sure before they found the applicant guilty of a conspiracy[32]. 91.It is clear from the passages we have quoted that the judge directed the jury that if they accepted the evidence of Ng so that they were sure there was a conspiracy to which the applicant was a party, they should find him guilty of Count 1. She constantly reminded the jury that they had to be satisfied beyond reasonable doubt so that they were sure of the guilt of the applicant in relation to the two counts throughout her summing-up. 92.As to the impugned passage, the judge was telling the jury that if they accepted the evidence of Ng, they were likely to be satisfied that the applicant had conspired with Ng as alleged, and if so satisfied, they should return a verdict of guilty to Count 1. She was not telling the jury that they should convict the applicant if they were “likely to be satisfied” of Ng’s evidence. When she said “In that event, you return a verdict of guilty”, she was saying that in the event they accepted the evidence of Ng and were satisfied of the conspiracy agreement between the applicant and Ng, they should return a verdict of guilty. 93.As part of this ground, Ms Tsang argued that the judge should not have used the phrase “likely to be satisfied” because Ng’s evidence did not support a finding that there was the conspiracy agreement as alleged between the applicant and Ng. 94.This submission was based on a selective series of observations of Ng’s evidence and ignored the nature and timings of the meetings between Ng and the applicant, whom Ng identified as Tony, and the number of WhatsApp messages between Ng and the applicant about the transportation of the drugs from beginning to end. There was ample evidence based on Ng’s testimony, if accepted by the jury, for them to be satisfied to the requisite standard of the conspiracy alleged. 95.We considered that this ground failed. The fourth ground of appeal 96.The judge in her summing-up to the jury said:
97.It was initially complained by Ms Tsang that the judge failed to warn the jury to disregard the prosecutor’s rhetorical question and to consider the evidence of each count separately and independently of each other. The argument being that the rhetorical question was an invitation by the prosecution to the jury to consider the evidence of Ng and Chan jointly. Instead of directing the jury to disregard the prosecution’s remarks, it is claimed that the judge set out a counter-argument to the defence’s challenge to the credibility of Ng and Chan. 98.An examination of the closing address of prosecuting counsel revealed that at no stage did he make the comments attributed to him by the judge. In fact, he emphasised with the jury that they must look at each of the cases separately. He then embarked on a careful and meticulous presentation of the evidence in relation to each count[34]. What the judge seemed to be referring to is prosecuting counsel’s two distinct comments when dealing with each count separately. Of Count 1, that the applicant “is the unluckiest man in the history of this world” in response to the suggestion that Ng picked him out as the person known as “Tony” because they were in Lai Chi Kok together[35]. Of Count 2, that Chan would pick out a totally innocent person and tell lies about him for no particular reason[36]. Ms Tsang acknowledged this to be the case although she maintained her complaint about the judge’s comments. 99.The judge made this comment in the course of a very lengthy presentation of the matters raised by defence counsel, attacking the credibility of Ng and Chan. On some occasions, she would put the opposing argument by the prosecution in order to present a full account of the issue. However, the substance of this ground is whether the judge by her comment was inviting the jury to give weight to the evidence of Ng and Chan because they lent support to each other. 100.It is also important to gauge this comment against the judge’s constant reminders to the jury that they had to consider the evidence in relation to the two counts separately and that they could not use the evidence of one in relation to the other. At the very beginning of the summing-up, the judge said:
101.She again reminded the jury to consider each count separately:
102.Immediately after the judge made the comment in question, she dealt with the two cases separately by referring first to Ng’s evidence[39] and then to Chan’s evidence[40]. Later in the summing‑up, she repeated to the jury that they must consider the cases separately. She directed the jury:
103.It is also worth noting that the judge directed the jury that in respect of Count 1, if they did not accept the evidence of Ng, then there was no evidence upon which they would be entitled to convict the applicant[42]. She gave a similar direction in respect of Count 2. She told the jury that if they did not accept the evidence of Chan and reject the admissions, then there was no evidence upon which they would be entitled to convict the applicant[43]. 104.We are satisfied that even though the judge may have conflated these two sets of remarks by prosecuting counsel, the jury would have been under no misapprehension as to their task, namely, to consider the two counts separately and not to use the evidence of one in relation to the other. 105.We are satisfied that the judge’s comment could have been framed more carefully, but that it in no way detracted from the judge’s repeated reminders to the jury that they were to consider each count separately and not use the evidence of one in relation to the other. The fifth ground of appeal 106.It is claimed in this ground that the judge failed to highlight to the jury the evidence that when the applicant was arrested, he did not have on him Sim cards with telephone numbers matching those from which text messages had been sent that the prosecution relied on at trial. 107.It is true that the judge made no reference to the absence of SIM cards in the possession of the applicant at the time of his arrest. However, nor did defence counsel in his closing address to the jury. The judge did mention, however, what the police found, which was mainly sums of cash, in the hotel room where the applicant had been arrested[44]. 108.We wondered whether such evidence was presented at trial, since nothing has been put before us to suggest that it was. When Ms Tsang was asked about the matter she was unable to point to such evidence. Even if it had been, the judge gave the standard direction to the jury on their assessment of the evidence, which included that they did not have to accept the judge’s review of the evidence, and if she did not mention something that they thought was important, they should have regard to it in any event and give it such weight as they thought fit[45]. 109.We do not consider, in the context of this case, that this matter would have loomed large, if it all, as an issue in the minds of the jury. The jury had been directed not to speculate about evidence that was not before them. That may explain why defence counsel made no reference to this matter in his closing address to the jury. The judge also made it clear to the jury from the outset of her summing-up that one of the main issues was whether the applicant was “Tony” in relation to his dealings with Ng, or “Kelvin” in relation to his dealings with Chan[46]. 110.Ng testified that the applicant was the person he knew as “Tony”. It was an admitted fact that he positively identified him in an identification parade[47]. There were a lot of WhatsApp messages between Ng and the other participants in the trafficking of the drugs, including with the person known to Ng as “Tony”. 111.Chan testified that the applicant was the person she knew as “Kelvin”, with whom she went to mainland China and exchanged WhatsApp messages. It was also an admitted fact that she positively identified that applicant by photograph identification[48]. 112.We note that in an initial message with Chan, the applicant also referred to himself as “Tony”[49]. He confirmed in his video recorded interview that he used the names “Tony” and “Kelvin”[50]. However, the judge directed the jury that they could not use this evidence in relation to Count 1, and that it could only be used in relation to Count 2[51]. 113.The key issue, which the judge repeatedly emphasised with the jury, was whether they believed and accepted the evidence of Ng and Chan. That was the central theme of the case at trial and that is how the judge summed up the case to the jury. 114.We found no substance to this ground of appeal. Conclusion 115.For the foregoing reasons, we refused the application for leave to appeal against conviction and dismissed the appeal.
Mr Eddie Sean, SADPP, of the Department of Justice, for the respondent Mr Olivia Tsang, instructed by Leung, Tam & Wong, assigned by the Director of Legal Aid, for the applicant [1] Appeal Bundle, I. [2] Appeal Bundle, I and II. [3] The application was made pursuant to Rule 7 of the Indictment Rules, Cap 221C. [4] The application was made pursuant to section 23(3) of the Criminal Procedure Ordinance, Cap 221. [5] Appeal Bundle, 146F – 147K. [6] Appeal bundle, 147L – 151N. [7] Appeal Bundle, 156L – U. [8] Appeal Bundle, 2E – K. [9] Appeal Bundle, 4B – F. [10] Appeal Bundle, 8O – 9A. [11] Appeal Bundle, 13G – 15D. [12] Appeal Bundle, 17K – 18A. [13] Appeal Bundle, 18B – G. [14] Appeal Bundle, 20A – D. [15] Appeal Bundle, 31P – R; AB 32D – E; AB 33C – H. [16] At paragraph 29. [17] At paragraph 33. [18] A judgment frequently cited with approval by Hong Kong courts, see Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540 per Chan PJ at para 25; HKSAR v Okafar, per Stock VP at para 23; and HKSAR v Ci Wai Man, CACC 249/2014, 18 May 2015, unreported per Lunn VP at paras 42 – 44. [19] Appeal Bundle, 149E – P. [20] Appeal Bundle, 156L – O. [21] Appeal Bundle, 155R – 156G. [22] Appeal Bundle, 156P – T. [23] Appeal Bundle, 19F – U. [24] Appeal Bundle, 20A – J. [25] Appeal Bundle, 17K-N, 20A – D and 29T – 30B. [26] Appeal Bundle, 25M – Q. [27] Appeal Bundle, 29Q – 30B. [28] Appeal Bundle, 5M – O. [29] Appeal Bundle, 7L – S. [30] Appeal Bundle, 7T – 8C. [31] Appeal Bundle, 90 – 10G. [32] Appeal Bundle, 15I – Q. [33] Appeal Bundle, 15E – H. [34] Appeal Bundle, 158 – 167. [35] Appeal Bundle, 161K – O. [36] Appeal Bundle, 167B – D. [37] Appeal Bundle, 2B-L. [38] Appeal Bundle, 80 – 98. [39] Appeal Bundle, 15R-S. [40] Appeal Bundle, 15H-Q. [41] Appeal Bundle, 31P-R. [42] Appeal Bundle 25P-Q. [43] Appeal Bundle 29U – 30B. [44] Appeal Bundle, 30C – K. [45] Appeal Bundle, 5L – O. [46] Appeal Bundle, 3T – 4A. [47] Appeal Bundle, X para 5. [48] Appeal Bundle, XI para 13. [49] Appeal Bundle, 29P. [50] Appeal Bundle 32B – C and 79 – 80 (Counters 371-378). [51] Appeal Bundle, 32D – E and 33D – G. |
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