HKSAR v. Cheung Ho Kit

[English Translation – 英譯本]

CACC 242/2018

[2019] HKCA 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL CASE NO 242 OF 2018

(ON APPEAL FROM DCCC NO 774 OF 2017)

＿＿＿＿＿＿＿＿＿＿＿

＿＿＿＿＿＿＿＿＿＿＿

J U D G M E N T

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.The appellant, Cheung Ho Kit, was charged with one count of trafficking in dangerous drugs (the “trafficking” offence). He pleaded not guilty and stood trial in the District Court before HH Judge Lo.   

2.On 23 May 2018, the appellant was found guilty and was sentenced to 6 years and 11 months’ imprisonment. Having been granted leave by a single Justice of Appeal, the appellant now applied by counsel, Mr Andy Hung and Mr Marco Li, for leave to appeal against conviction and/or sentence out of time.

Prosecution case and evidence

3.The prosecution alleged that shortly before midnight on 21 June 2017, the appellant was stopped and searched outside No 16B Jordan Road because he was acting in a suspicious manner. Upon search, the police officer found the dangerous drugs involved in the case, namely 0.7 grammes of solid containing 0.43 grammes of cocaine and 23.9 grammes of a crystallised solid containing 9.96 grammes of the dangerous drug “ice” from the appellant’s backpack. The dangerous drugs were inside a marker pen.      

4.Under caution, the appellant admitted that the dangerous drugs involved were bought for his own consumption. The police officer alleged that the appellant agreed to attend a video interview conducted by the police in the absence of a lawyer. During the interview, the appellant said he was a casual cleaning worker earning $600 - $700 a day, but he could make only $4,000 – $5,000 a month. The appellant alleged that the day before the incident, he telephoned his friend Ken to purchase the dangerous drug “ice”. On the night of the incident, the appellant went to a park on Hillwood Road upon the instructions of Ken to buy the drugs involved at $4,000 from an Indian/Pakistani man. The appellant alleged that when he was stopped and searched by the police, he was about to walk along Hillwood Road towards Nathan Road in order to take bus no 118 home. The appellant alleged that he had taken the dangerous drug “ice” for 6 years.

5.The police officer who arrested and cautioned the appellant confirmed the course of the arrest of the appellant and pointed out that what the appellant had said under caution at the scene had been recorded in his notebook. Later, he also made a post-record of what happened at the scene including what was said by the appellant. The police officer pointed out that the appellant not only had signed to confirm that the post-record was correct, he also made the declaration in the notebook as instructed and signed in confirmation.    

6.The appellant was taken back to his residence in Chai Wan by the police for a house search once but nothing was found. The police alleged that when they handled the appellant during the detention process, he indicated that he understood and he made no requests or complaints. 

7.The prosecution and defence agreed that the dangerous drug “ice” involved (23.9 grammes of mixture, $343 per gramme) was valued at HK$8,198.00, while the cocaine involved (0.7 grammes of mixture, $847 per gramme) was valued at HK$593.

8.Both parties also agreed that according to the expert opinion of Dr Mak Kai Lok, the average daily consumption of the dangerous drug “ice” per addict was 0.3 grammes, while the average daily consumption of cocaine per addict was 0.2 grammes. Therefore, 0.43 grammes of cocaine would last for 2.15 days, while 9.96 grammes of the dangerous drug “ice” would last for 33.2 days.      

Defence’s position and evidence

9.The defence case was a total denial of the accusations of the prosecution. The defence alleged that the appellant did not know why the marker pen containing the dangerous drugs involved was inside his backpack. The defence pointed out that as the appellant had a hearing impairment, he could not hear the police officer arrest and caution him for the offence of “trafficking in dangerous drugs”.  

10.The defence also denied that the appellant had made any confession. The defence said the signatures in the police notebook were not appended by the appellant and the police officer had never explained the contents concerned to the appellant.  

11.The defence alleged that the police threatened the appellant during the house search, and offered him cigarettes to induce him to read out the written statements during the video interview. The defence even said the police had indicated to the appellant that if he confessed, he would only be charged with “possession of dangerous drugs” instead of “trafficking in dangerous drugs”, and gave him instructions at the same time on how to answer the questions during the video interview.       

12.The defence said the appellant was unaware of his right to refuse a video interview or to engage a lawyer to represent him. Regarding his replies during the video interview, some of them were given according to the instructions of the police, and others were given according to the contents of the police notebook.

13.When giving evidence on the special issue, the appellant had set out his background. He said at the time in question, he had made arrangements to give some clothes to his friend, Miss Chan, but he was intercepted by the police when he was on his way to meet her. The appellant said at that time he was holding a plastic bag containing clothes, but the marker pen concerned did not belong to him. He did not know why the marker pen was found in the exterior side pocket of his backpack.

14.The appellant alleged that he had a hearing impairment, and therefore could not hear what the police officer said when he was arrested and cautioned. He stressed that he had never admitted that the dangerous drug “ice” inside the marker pen was for his own use. He also had never signed the statement concerned in the notebook. He had reservations about the authenticity of his signatures in the notebook.   

15.The appellant also described to the court how he was threatened, forced and induced by the police.  

The trial process

16.The trial commenced on 1 March 2018. The appellant was then represented by Mr Lawrence T H Law, counsel instructed by the solicitors assigned by the Legal Aid Department (the LAD). On the third day of the trial, i.e. 5 March 2018, when the appellant gave evidence on the special issue and was cross-examined by the prosecution, the appellant expressed discontent with the legal team provided by the LAD and requested a replacement. In the end, the case was adjourned to 13 March 2018 for mention.      

17.On the day of mention, a new legal team including counsel, Mr James YK Tse, was assigned by the LAD. They told the court that they would take instructions from the appellant after he had finished his evidence on the special issue. The appellant continued to be cross-examined on the special issue. Meanwhile, the appellant indicated that the person appearing in the video interview might not necessarily be him.    

18.Upon the completion of the defence case on the special issue, Mr Tse told the court that the appellant had reservations about the authenticity of the Legal Aid Certificate and asked the LAD for clarification. The trial judge made it clear to the appellant that further delay of the case would not be allowed. In the end, the appellant indicated that he was willing to accept the new legal team including Mr Tse as his legal representatives.    

19.In respect of the special issue, Mr Tse made submissions to the court to challenge the admissibility of the confession of the appellant. However, in the end, the trial judge found that the appellant’s confession was made voluntarily and it was admitted as prosecution evidence. Mr Tse accepted that there was sufficient prima facie evidence, therefore he did not make any halfway submissions.  

20.On 6 April 2018, i.e. the 5^th day of the trial, the appellant decided to refuse the legal representatives assigned to him by the LAD and he indicated that he would act in person. The appellant confirmed that he had received all the documents and he was ready to act in person.    

21.In the end, the trial judge found that there was a prima facie case against the appellant and she explained his rights to him . The appellant elected not to give evidence or call any witnesses.   

22.After that, counsel for the prosecution made a closing speech before the trial judge. Prosecution counsel only repeated the prosecution evidence including the course of the arrest of the appellant by the police and the appellant’s “confession”. Prosecution counsel pointed out that neither dangerous drugs nor smoking paraphernalia was found during the search of the appellant’s residence, and he also stressed that the appellant appeared to be “in good fettle, natural and fluent” during the video interview conducted by the police. Prosecution counsel stressed that the total market value of the dangerous drugs involved was more than two times his monthly income.     

23.Prosecution counsel reiterated the prosecution’s position that the appellant was in possession of dangerous drugs for the purpose of “trafficking” and urged the court to find him guilty of the charge of “trafficking in dangerous drugs”.   

24.The appellant submitted in his closing speech that he was unemployed and the drugs involved did not belong to him. He also said he would not put valuable dangerous drugs in the exterior side pocket of his backpack. The appellant stressed that he could not hear any caution administered by the police officer and did not notice the  police searching his backpack. He even questioned how the police knew about the dangerous drugs inside the marker pen.   

Findings of the trial judge

25.The trial judge found that the appellant had made the oral “admission” and voluntarily signed the notebook containing the post-recorded “admission” to confirm its contents. The trial judge also found that the appellant had attended the video interview voluntarily. 

26.The trial judge was of the view that the prosecution witnesses were honest and reliable. Based on their evidence, she made the following findings:  

(1)  The marker pen concerned was found inside the left side pocket of the appellant’s backpack, and the pen contained the dangerous drugs involved; 

(2)  The appellant admitted under caution that the dangerous drugs were for his own consumption;  

(3)  The appellant voluntarily signed the police notebook with the post-record about the arrest; and

(4)  The appellant voluntarily attended the video interview.

27.The trial judge pointed out that according to the expert evidence agreed by both parties, the dangerous drug “ice” involved would last for 33.2 days, while the cocaine would last for 2.15 days. The trial judge stressed that the total retail value of the drugs involved was HK$8,791. It was impossible for the appellant to buy the drugs at $4,000 and it was even more impossible to get the cocaine at the same time.        

28.The trial judge was also of the view that the appellant, with regard to his income, could not afford the dangerous drugs involved. Taking into account factors such as the quantity and types of the dangerous drugs, other items found by the police upon search, the value of the dangerous drugs, the appellant’s income, as well as the time and place of the arrest of the appellant, the trial judge drew the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking. Hence, the trial judge found the appellant guilty as charged.

29.In paragraph 112 of the Reasons for Verdict, the trial judge  stated as follows：

“In addition, as the defence did not give evidence on the general issue, the prosecution should not make any closing speech. As a professional judge in this case, I would discard the brief prosecution closing speech entirely and exclud it from consideration. Hence, no injustice would be done to the defendant.”

Grounds of appeal

30.Mr Hung, counsel representing the appellant, put forward three grounds of appeal. He said the fact that the trial judge had allowed the prosecution to make a closing speech when the unrepresented appellant did not give evidence was a material irregularity and rendered the trial unfair.    

31.Mr Hung also pointed out that the other expert evidence from the prosecution after completion of the trial was very much contradictory to the facts agreed by both parties during the trial, which also rendered the trial unfair and the conviction unsafe. Mr Hung asked the court to admit fresh evidence to strengthen his position. In the appellant’s notice of motion, he asked the court to admit fresh evidence including five reports prepared by four doctors, but in the end Mr Hung only asked this court to admit the report prepared by Dr Lam Ming on 4 July 2018, and the relevant part of the report was:    

“The chronic methamphetamine abusers attending our substance abuse clinic commonly use ¼ to two strokes (i.e. 250 mg to 2 grams) a day.”

32.Mr Hung was of the view that if the trial judge had had the chance to consider the fresh evidence, she might not necessarily have drawn the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking.

Discussion

33.In a criminal trial, if an unrepresented defendant acts in person, the usual convention is that the prosecution has no right to make a closing speech on the facts because there is a difference in the ability to express oneself between a prosecution counsel who has received professional training and an unrepresented defendant. The speech by a professionally trained counsel will clearly be more convincing than that by an unrepresented defendant. One of the possible ways to redress this considerable imbalance in ability and to ensure that the defendant receives a fair trial is to forbid the prosecution from make a closing speech. However, prosecution counsel is allowed to make a closing speech to the court on the law. (see HKSAR v Zhuo Yaying [2016] 3 HKLRD 916).  

34.The Court of Appeal confirmed the aforesaid principle in HKSAR v Tso Kin Shing [2014] 3 HKLRD 721. In paragraph 5.7 of the judgment, the Court of Appeal stated clearly that:

“The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness. However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.”

35.In fact, the Court of Appeal made the same ruling in 1980 in the case R v Man Ching Ip & Others [1980] HKLR 890. At that time, the Court of Appeal made it clear that:

“... counsel for the prosecution has a right to open the evidence, so, we think, he has a right in every case to sum up the evidence at the end unless the defendant is unrepresented and calls no witnesses to the facts except himself.”

36.The aforesaid principle applies not only to criminal trials by jury in the High Court, but also criminal trials by a judge sitting alone in the District Court (see Zhuo Yaying and HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298, para 43 of the judgment).

37.Hence, the fact that the trial judge allowed the prosecution to make a closing speech was an irregularity. While the trial judge had made it clear that she would not take into account the prosecution’s closing speech, that was not sufficient to cure such irregularity.

38.However, the aforesaid irregularity does not mean that the Court of Appeal must quash the appellant’s conviction. In Tso Kin Shing, the Court of Appeal after taking into account the cases of R v Paul [2013] 2 Cr App R 282 and R v Pink (Ronald)[1971] 1 QB 508 held that:      

“Generally speaking, non-compliance of this principle will result in the conviction being quashed. That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case.”

39.In R v Cojan [2015] 2 Cr App R 20, Hallett LJ made the following analysis in respect of the issue in paragraph 12 of the judgment:  

“... we share the doubts of the court in Paul as to whether there is still any rule that prosecuting counsel may not make a closing speech where the accused is unrepresented. As Rose LJ observed, law and practice has moved on considerably since the days when Mondon was decided. In any event, we are not prepared to contemplate a rule, the effect of which would be to enable an accused deliberately to dispense with the services of his representatives so as to prevent prosecuting counsel making a closing speech in an appropriate case.

We prefer to approach the matter as an issue of balance and fairness ...”

40.In R v Stovell [2006] EWCA Crim 27, the Court of Appeal  expressed reservations as to whether non-compliance with the principle would result in the conviction being quashed. In paragraph 36 of the judgment, Rose LJ said:

“... we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech.”

41.In Leung Chun Kit Brandon, the Court of Final Appeal was concerned about the defendant’s abuse of the rule by discharging his legal representatives. The Court also made it clear that although non-compliance with the rule by the prosecution making a closing speech when the defendant was unrepresented constituted a material irregularity, it would not necessarily result in the quashing of the conviction (see paras 69 and 74 of the judgment).         

42.In this case, the defendant had been legally represented throughout the prosecution case. The defendant’s position was that he did not know why the dangerous drugs involved were found in the exterior side pocket of his backpack. He said he had never made any admission. What the police officer said in relation to the course of his arrest and admission made by him was a fabrication. He even said the suspect in the video interview was not him.     

43.The appellant gave evidence in the special issue hearing. Guided by his counsel, the appellant set out his position and how he was arrested and handled by the police in detail. Counsel for the appellant also presented to the court the grounds of objection to the admissibility of the appellant’s confession as evidence.     

44.Only after counsel for the appellant had made submissions and admitted that there was sufficient prima facie evidence, the appellant decided to act in person.

45.In fact, when prosecution counsel made his closing speech to the court, he only set out briefly the prosecution case and evidence. Prosecution counsel stressed that the appellant appeared to be in good fettle during the video interview and his speech was natural and fluent. Prosecution counsel also pointed out to the trial judge that no paraphernalia for smoking dangerous drugs was found in the appellant’s residence. Given his financial status, the appellant was in possession of the dangerous drugs for the purpose of trafficking. It was submitted in the prosecution’s closing speech that any reasonable and right-minded person would not find this difficult to imagine.    

46.The facts of the present case were very simple. First, the trial judge had to decide whether the dangerous drugs involved were found on searching the appellant’s backpack. If the said dangerous drugs were in the appellant’s possession, the question was whether he was in possession of the dangerous drugs for the purpose of trafficking.     

47.We should point out that the appellant’s allegation of the set-up by the police officers with evidence planted on him was not supported by objective evidence. His allegation of the police forging his signatures in the police notebook and using threats, inducement and force to extort a false confession from him was not convincing at all. Mr Hung raised some points that might be favourable to the appellant, and they were matters that the trial judge must have known.       

48.In our view, the trial process, the issues in the case and the closing speech made by the prosecution counsel would not cause any miscarriage of justice or render the conviction of the appellant unsafe.

49.Dr Mak’s evidence regarding the average daily consumption of cocaine and the dangerous drug “ice” by an abuser was admitted by the prosecution and defence. According to section 65C of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong, it was “conclusive evidence”.

50.Different experts, relying on factors such as the background, number of years of drug taking, and social environment of different drug addicts, may have different views on the average daily consumption by an addict. According to the information provided by Mr Hung, there was expert opinion that the daily consumption a chronic abuser of the dangerous drug “ice” was 0.25 to 1 gramme; while the average daily consumption of a new user was 0.05 to 0.1 grammes, and the average daily consumption of a regular user was 0.1 to 0.5 grammes. There was other expert opinion that according to a study in China, the daily consumption of the dangerous drug “ice” by an abuser was 0.1 to 2 grammes, while the average daily consumption was 0.13 grammes.     

51.The fresh evidence that Mr Hung asked the court to admit was limited to the report of Dr Lam Ming dated 4 July 2018. In the report by Dr Lam dated 25 April 2013, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to one stroke (i.e. 250 mg to 1 gramme a day). However, in his report dated 4 July 2018, i.e. the fresh evidence that Mr Hung asked the court to admit, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to two strokes (i.e. 250 mg to 2 grammes a day). Dr Lam did not explain in his report the basis or grounds for changing his position.        

52.Furthermore, based on the views of Dr Mak, both parties admitted that the average daily consumption of an abuser of the dangerous drug “ice” was 0.3 grammes. Where the average daily consumption was 0.3 grammes, it meant that some abusers would consume more than 0.3 grammes, while other abusers would consume less. During the trial, both prosecution and defence were concerned about the average consumption of abusers, rather than the level above or below, or the dosages for “chronic”, “experienced” abusers or other abusers who had particularly strong tolerance.             

53.If the expert reports from the doctors were read properly, one would find the contents of the reports and the facts admitted by both parties are not in conflict.     

54.If the position of the appellant was that he was a chronic or experienced drug addict whose daily consumption of the dangerous drug “ice” far exceeded the average daily amount of 0.3 grammes as agreed by him, he should have called evidence to support his position. In fact, since the appellant elected not to give evidence on the general issue, there was no admissible evidence showing that he was a drug addict, let alone a “chronic” or “experienced” drug addict. The appellant indicated during the video interview that he had consumed the dangerous drug “ice” for six years, but that was insufficient to prove that he was a chronic, experienced drug addict who had a strong tolerance and therefore his daily consumption of drugs could be as much as 2 grammes.     

55.We agree with the position of Mr Simon CY Kwong, SPP, representing the respondent. The fresh evidence the appellant asked the court to admit was neither relevant to the present case nor in conflict with the facts admitted by the prosecution and defence.    

56.The appellant’s application asking the court to admit fresh evidence fails to satisfy the conditions laid down by the Court of Final Appeal in Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20. Accordingly, we dismiss the appellant’s application to adduce fresh evidence and find that the grounds of appeal related to the issue cannot be sustained.    

57.The appellant admitted that he was earning $4,000 to $5,000 a month. He should not be able to afford the dangerous drugs involved worth over $8,000. He was living in Chai Wan but he was on a street in Tsim Sha Tsui at midnight. Having regard to  factors such as the appellant’s means, the value of the dangerous drugs involved, the fact that the appellant was in possession of the dangerous drug “ice” and a small quantity of cocaine at the same time, and the time and place of the appellant’s arrest, plus the fact that the appellant had neither given evidence nor called witnesses to explain, overturn or rebut the allegations of the prosecution, we are of the view that the trial judge was entitled to draw the inference that the appellant was in possession of the dangerous drugs concerned for the purpose of trafficking.     

58.We are of the view that the guilty verdict against the appellant for “trafficking in dangerous drugs” was safe. Accordingly, we dismiss the appellant’s application to appeal out of time against conviction.    

Sentence

59.Mr Li did not dispute the starting point adopted by the trial judge. He only stated that the trial judge did not take into account the fact that some of the dangerous drugs concerned were for the appellant’s own consumption and did not give him a discount in sentence. Mr Li also stated that the trial judge did not give the appellant sufficient assistance on this issue.      

60.The prosecution’s position was that the appellant was in possession of the dangerous drugs for the purpose of trafficking. The appellant, after his arrest, did tell the police the dangerous drugs concerned were all for his own consumption. The prosecution clearly did not accept this contention.   

61.At trial, the appellant’s position was that he did not make any admission. He claimed that the prosecution not only planted evidence on him but also falsely alleged that he had made a confession.  

62.After the trial judge had found that there was a prima facie case against the appellant, she explained his rights to him. The appellant elected not to give evidence or call any witnesses. He was found guilty. In mitigation, the appellant did not submit that he was a drug addict, or that part or all of the dangerous drugs involved were for his own consumption.    

63.Hence, under the above circumstances, the trial judge had no basis to treat any part, let alone a considerable part, of the dangerous drugs involved as for the appellant’s own use.

64.Before passing sentence, the trial judge reminded the appellant time and again to set out his mitigating factors. With regard to the background of the present case, it would be impractical to require the trial judge to assist the appellant and make it clear to him that he might submit in mitigation that a considerable part of the dangerous drugs was for his own use. We must reiterate that the appellant had never raised any contention of this sort, and there was insufficient information to show that the appellant had any basis to make this contention in mitigation. It is not the duty of the court to make suggestions or give hints, or to make up grounds for the reduction in sentence for a defendant who is found guilty.          

65.There is no basis at all to support Mr Li’s application in respect of the sentence. Accordingly, we also dismiss the appellant’s application to appeal out of time against sentence and affirm the original sentence.     

Andy H S Hung and Marco W K Li, instructed by Kenneth Lam solicitors assigned by Director of Legal Aid, for the appellant.

Simon C Y Kwong, SPP 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.