Case Document

100%Judiciary

CACC 142/2018

[2019] HKCA 1244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 142 OF 2018

(ON APPEAL FROM HCCC 333 OF 2017)

------------------------

BETWEEN
	HKSAR	Respondent
and
	YIU CHI MING (姚智銘)	Applicant

------------------------

Before:

Hon McWalters JA in Court

Date of Hearing:	5 November 2019
Date of Judgment:	5 November 2019
Date of Reasons for Judgment:	5 November 2019

__________________________

REASONS FOR JUDGMENT

__________________________

1.The applicant was charged with a single count of trafficking in a dangerous drug, namely 173.9 grammes of a solid containing 160.4 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the charge and was tried in the Court of First Instance before Deputy High Court Judge Stuart-Moore (“the judge”) together with a jury. On 9 May 2018 he was convicted and sentenced to 10 years and 9 months’ imprisonment. Subsequently he filed a Notice of Application for Leave to Appeal (Form XI) against his conviction only.

2.Having been refused legal aid he was unrepresented at the hearing of his application at which he sought leave to amend his grounds of appeal and also applied for an Appeal Aid Certificate. I granted him leave to amend, leave to appeal in respect of only Grounds 1(a) and 2 of his Amended Grounds of Appeal and an Appeal Aid Certificate. These are my reasons for so doing.

The prosecution case

3.In the afternoon on 5 January 2017, the applicant was intercepted by police as he was using a key to open the door of a Toyota car that was parked outside his home at No 2A, Nai Chung Village, Ma On Shan. Nothing incriminating was found on his person or in his house.

4.The Toyota car was then searched. Cocaine was found in the compartment between the front seats, in a transparent resealable plastic bag containing 96 bags of cocaine, and on the floor behind the front passenger seat, in a red plastic bag which contained 6 bags of cocaine, several resealable transparent bags and an electronic scale. The total quantity of cocaine was 160.4 grammes and it had an estimated value of HK$157,901.

5.The police subsequently lifted a fingerprint impression from the rear-view mirror inside the car which matched the right thumb print of the applicant. It was not in dispute that the applicant was not the registered owner of the vehicle. The registered owner was not called by the prosecution.

6.The applicant was arrested at the scene and cautioned by PC 13875 (“PW1”) for drug trafficking and in reply it was alleged that he said:

“My father is suffering from cancer; that’s why I dragged C Chai (transliteration) for someone to earn just a little money. Give (me) a chance, Ah SIR”.[1]

7.This oral admission was recorded in PW1’s notebook and countersigned by the applicant in the police van as true and as having been made of his own free will.

8.A 16-minute video record of interview (“VRI”) was conducted in which the applicant made admissions to trafficking in the cocaine

9.The admissibility of both his oral admission and his VRI were challenged at trial. Firstly, in respect of the oral admission, it was said that it had been fabricated by the police and the applicant signed PW1’s notebook entry of it only because of the inducement and threats that had been made to him. As to the VRI it was said that the incriminating answers were given by him in accordance with coaching by the police; coaching with which he complied because of the inducement and threats made by the police. Both the oral admission and the VRI were ruled admissible by the judge.

The defence case

10.The applicant elected to give evidence and called one witness, his then girlfriend (“DW2”).

11.The applicant testified that the car belonged to one “Wong On-chun” and that he, the applicant allowed Mr Wong to park his car where it was found as parking there was free-of-charge. Mr Wong left the car at this location on the evening of the day before he, the applicant, was arrested. He said Mr Wong lived in Sham Shui Po, and he, the applicant had previously travelled as a passenger in his vehicle on many occasions, which would explain the presence of his fingerprint in the vehicle.

12.He testified that on 5 January 2017 he was going to the car in order to retrieve an ATM card from it for Mr Wong. DW2 left with him as she was disposing of garbage and then going to get some food. At that time he was carrying a bag containing HK$28,720 which was his salary from working in a seafood stall at Lei Yue Mun.

13.He said he was intercepted by two police officers who took him back to his residence. After a while he was taken to the car. When police officers searched it they found a red plastic bag and its contents which they showed him. He told the officers that he did not know what they were, but was willing to give information to them on the car owner. He said the officers were not interested in hearing this and took him to the police van which was parked nearby.

14.The officers told him that if he admitted the offence DW2 would not be charged, the $28,720 would be returned to her and she could go free, but only after he participated in a VRI.

15.He said he signed the police officer’s notebook in the police station and not in the police van and that he signed it because he wanted to appear co-operative so that DW2 would not be charged and would be released as soon as possible. He said that what was recorded in the notebook was a total fabrication.

16.As to the answers given by him in the VRI, he said that before the interview started he was coached by the officers about the questions they would ask and the answers they wanted him to give and was told to remember them. He said he did as he was told because he had been threatened by the officers.

17.After the interview he was allowed to put the cash, his Octopus card and his bank card in a plastic bag which he passed to DW2.

The applicant’s grounds of appeal

18.In his Amended Grounds of Appeal the applicant made a number of complaints. Under his first ground of appeal he complained of:

(a)     the judge wrongly omitting to give directions on inferential reasoning in terms of Specimen Direction 21.3;

(b)     the inferential direction that should have been given in the context of the evidence;

(c)     the prosecution failing to call Mr Wong to testify which he asserted was in breach of its duty to call all material witnesses; and

(d)     the judge illustrating the legal concept of possession by an example that was prejudicial to him.

19.Secondly, he complained that the judge wrongly omitted to give a Mushtaq direction in accordance with Specimen Direction 39.1.

20.In his third ground of appeal he complained that the judge invited the jury to make a simple choice between the versions of events of the prosecution and defence, thereby misdirecting them on the correct application of the burden and standard of proof.

21.Lastly, he complained that the judge erred in his summing-up by endorsing the prosecution submission that it was unbelievable that a drug trafficker would leave a car full of drugs, so openly displayed, in the possession of another.

Discussion

22.None of the applicant’s complaints are reasonably arguable other than Ground 1(a), the failure to give an inference direction, and the second ground of appeal, the failure to give a Mushtaq direction.

23.This was a disputed confession case. Without the confession the elements of trafficking could only be inferred. There was no need for an inference direction unless the prosecution was seeking a conviction on the circumstantial evidence only. On the basis of what the prosecutor said in his closing address to the jury it is reasonably arguable that the prosecution was, in fact, seeking a conviction on this basis as well. The prosecutor said:

“But even apart from the admissions, there is a lot of evidence against the defendant in this case. First of all, that car, which could be seen in the photographs at item number 8, had drugs stored in the vehicle in two separate places. In the compartment, as shown in photograph number 9 and in the red bag behind the front passenger seat, as shown in photograph number 11.

That vehicle was parked outside the defendant’s home. He had the key to the vehicle. He was apprehended as he was opening the vehicle. Members of the jury, would it make sense for anybody to lend somebody a car that was full of drugs? No. The defendant must have known about those drugs.”[2]

24.However, this alternative basis for conviction was not addressed by the judge who, together with defence counsel, may not have understood the prosecutor’s words as an invitation to the jury to convict even if they rejected the evidence of the applicant’s admissions. Both the defence counsel’s closing address and the judge’s summing-up approach the case on the basis that it was a confession only case and that once the admissions were rejected the applicant would have to be acquitted.

25.Here, the circumstantial evidence consisted only of the fact that the applicant had the key to the car which contained the cocaine, it was parked outside his home and his thumbprint was found on the rear mirror in the car. In my view this circumstantial evidence was not such as to make a conviction inevitable. It would certainly have been reasonably arguable that findings of possession and knowledge were not the only reasonable inferences available.

26.I, therefore, grant leave to appeal to argue the amended Ground 1(a). Ground 1(b) simply flows from Ground 1(a) and is not itself a free-standing ground of appeal.

27.In regard to Ground 1(c), the allegation that the prosecution was in breach of its duty by not calling Mr Wong, the registered owner of the car, to testify, is not reasonably arguable. Here, the case against the applicant was neatly confined to the fact that he held the key to a car that contained a substantial amount of cocaine in respect of which he made full admissions to trafficking. Mr Wong’s status as the registered owner of the car had no relevance to the primary prosecution case. Although his status would assume greater significance if the jury rejected the admission evidence, I am still of the view that the prosecution was under no duty to call him as witness.

28.In regard to Ground 1(d), the complaint in respect of the example employed by the judge to illustrate the concept of possession is simply nonsense and does not merit any further attention.

29.In Ground 2, the applicant complained that the judge omitted to give a Mushtaq direction in the exact terms of Specimen Direction 39. Given the way the defence was conducted at trial, the present case certainly called for a Mushtaq direction to be given to the jury.

30.When specifically dealing with the VRI the judge said:

“ And it is only if you are sure that the defendant, of his own free will, gave those answers in the interview that you could rely on the answers that are provided by him in the course of the interview. If you are sure that he was making a true confession, well, then, only then could you rely on that evidence.”[3]

31.However, earlier in his summing-up the judge set out the defence case as follows:

“ The defence say that the police are not to be trusted at all. They have fabricated a case against the defendant by making up answers that he is supposed to have given to the police and by forcing him to sign documents which he would never normally have signed but for the threats and the inducement that had been put forward to him that if he co‑operated, his girlfriend would not be arrested and charged.

And so it is that when the interview took place in the video‑recording room, he made a confession which was the confession he had been asked to make by the police who had given him advance notice of the questions he would be asked so that he was told what answers he should give, and what Mr Boyton has just argued to you just a few minutes ago is that if the confession and all the other stuff is, as it were, a false confession, but made under threat and inducement, so that is why he did it, you cannot trust the police an inch. That is what they are saying. And if you cannot trust the police, you throw this case out and that is the end of it, because if the evidence that they have given is false, making him come up with a false confession to an offence he never committed, well, then, of course, he must be acquitted; found not guilty. And that is not just if it was the case, but if it may be the case, you would also find him not guilty, because if it may be the case, anything might have happened. You have to be sure that the police have played the investigation straight and have told you the truth, and if you are satisfied about that, well, then, of course, it is a very different picture to the one the defendant has presented, and his girlfriend - ex‑girlfriend - to you.”[4]

32.I am of the view that it is reasonably arguable, and I put it no higher than that, the summing-up did not convey all the elements required of a Mushtaq direction in the context of the evidence of this case.

33.The Court of Appeal may well find that when read as a whole the elements of a Mushtaq direction have been fully conveyed to the jury. That, however, is a matter for the Court of Appeal in due course. Having found that the ground is reasonably arguable I do not believe it is for me, as the leave judge, to anticipate how the Court of Appeal may deal with it.

34.In Ground 3, the applicant complained that the judge misdirected the jury on the correct application of the burden and standard of proof. What the judge said in the impugned paragraphs was no more than setting out the different versions from the prosecution and the defence to the jury, and telling them it was for them to decide the facts. The judge correctly and comprehensively directed the jury on the burden of proof, in particular that the applicant need not prove anything at all[5] and the prosecution must prove their case beyond reasonable doubt[6]. Ground 3 is not reasonably arguable.

35.The applicant in Ground 4 argued that the prosecution submission that no drug trafficker would leave a car full of drugs with a friend in the circumstances described by the applicant, was erroneous because it assumed the applicant was not already fully aware that Mr Wong was a drug trafficker. I do not agree. What the prosecution was putting forward in its closing submission was simply a comment on the implausibility of the applicant’s evidence.

Disposition

36.For these reasons I granted the applicant leave to appeal in respect of only Grounds 1(a) and 2 of his Amended Grounds of Appeal and an Appeal Aid Certificate so that he could have the assistance of counsel to argue them.