HKSAR v. Lau Wing Wing

CACC 243/2019

[2021] HKCA 1312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 243 OF 2019

(ON APPEAL FROM HCCC NO 363 OF 2018)

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BETWEEN

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J U D G M E N T

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1.The applicant applies for leave to appeal against her conviction on a single count of conspiracy to manufacture a dangerous drug, contrary to sections 6(1)(a)  and (2)  and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. On 5 August 2019, she was convicted after trial before Toh J (“the judge”)  and a jury, and sentenced to 12 years’ imprisonment on the same day.

2.The particulars of offence alleged that the applicant conspired with a person known as “Jackie” to manufacture cocaine in Hong Kong between 8 and 16 May 2017.

3.The applicant, who is acting in person, has raised concerns in relation to three areas: (1)  the judge’s refusal to allow the defence to show the jury certain telephone exhibits to prove that Jackie did not exist; (2)  the absence of any records as to the existence of applicant’s shoulder bag; and (3)  the directions by the judge after the jury’s retirement.

The prosecution case

4.The evidence revealed that on 17 May 2017, the police intercepted a male known as Cheung Chi-kin as he was leaving a hotel room in Hung Hom, Kowloon and thereby gained entry into the said room.  It was not disputed that, in the hotel room, police found and seized 7 bags containing a solid suspected to be a dangerous drug, as well as tools for manufacturing a dangerous drug[1]. The solid was subsequently examined by a Government Chemist and found to be 185 grammes of a solid containing 74.8 grammes of cocaine with a street value of HK$232,373 at the time.   It was an admitted fact that the hotel room had been reserved by the applicant for five nights at a cost of HK$5,858.60[2]. 

5.DPC12841 (“PW2”)  testified that he arrested and cautioned the applicant when she came to the room, whereupon she responded, “I cooked the dangerous drug for distribution to earn money.  Give me a chance” ^[3].  PW2 post-recorded the admission in his notebook[4].  He subsequently conducted a video recorded interview (“VRI”)  with the applicant, in which she stated how she had met Jackie, who knew that she had lost money in gambling and offered her several thousand dollars as a reward for manufacturing cocaine for him, which she accepted.  Jackie asked her to rent a room, taught her how to crack cocaine from cocaine base and gave her all the tools to perform the task.  Jackie had given her a black telephone with the word “Love” on it (“Exh P29”), through which his friend would reach the applicant to collect the product.  She also said that, after meeting Jackie’s friend, she returned to the hotel room, and called up Cheung Chi-kin to come to the room to play as she was bored.[5]  She said she had not yet been paid by Jackie and the cash of HK$32,000 found on her person was her wages from working as a hostess. 

6.WPC 14536 (“PW3”)  testified that she found and seized the HK$32,000 from the applicant, as well as four mobile telephones and one room card, all of which were placed in the applicant’s shoulder bag[6]. PW3 was questioned as to why she had never mentioned the existence of the bag before, to which she responded that she did not consider it relevant[7].

7.DPC7995 (“PW1”)  was the officer who arrested Cheung Chi-kin.  It was put to him in cross-examination that it was PW1 and PW3 who had planted the HK$32,000 cash on the applicant, but PW1 disagreed.  He further disagreed that Exh P29 had been planted on the applicant.

The defence case

8.The applicant’s case was essentially that she had been framed by her boyfriend, Cheung Chi-kin, and the police. 

9.She testified that she was supported by Cheung Chi-kin and had lived in his apartment since April 2017, after quitting her work in a nightclub.  At the request of Cheung Chi-kin, she rented the hotel room for five nights because his apartment needed to be renovated.  On 17 May 2017, Cheung Chi-kin had told her that he wanted some home-cooked soup, so she went out to the market at about 1 pm, but was arrested on returning to the room.

10.The applicant testified that she had been assaulted and threatened by the police, and coached as to what to say in the VRI; she claimed that she had never made any confession to the police.  She had no knowledge of the cocaine and the cooking pot, and had not seen those items when she left the hotel room that day.  The HK$32,000 cash allegedly found on her, as well as the cocaine and paraphernalia found in the hotel room were all planted by the police.  She said that Exh P29 in fact belonged to Cheung Chi-kin.[8]

Summing-up (the part relevant to the 2^nd Ground)

11.In summarising the evidence of PW3, the judge reminded the jury that PW3 had first mentioned the applicant’s shoulder bag only at trial and had made no record about it, before leaving it for the jury to determine[9]:

“Now, you have also heard from WPC14536 and she gave you an account about the body search of the defendant and she said that she seized $32,000, four mobile phones, one room card from the defendant, and that these items were in a sling bag, a cross-body bag. She agreed that the first time she mentioned the sling bag was before you on this -- in this trial and that she did not mention in her notebook entry about the bag. And her answer was, “No, because I thought the bag was not relevant so I did not mention the bag.” And she said, “There should also be a door card. I not write it in my notebook,” she said.

So that is a matter for you. Mr Boyton says, “Well, if she did, if there was a sling bag, if there was a bag, a handbag or a sling bag, why did she not put it in her notebook? Why didn’t she mention it until now?” Mr Boyton’s point is that why should she be carrying all these phones in her bag and, therefore, Mr Boyton says, “Well, she must be lying.” On the other hand, you may consider, as Mr McNamara says, would a Hong Kong girl go to live in a hotel for five days without her handbag and just be carrying a plastic card cover with her rather than a bag? So that is for you, members of the jury, to consider.

Now, so again Mr Boyton has cross-examined this witness for quite extensively and you may notice also that the cross-examination also reveals that in her prison property ‒ prisoner’s property there was only her ID card, her hair tie and hair pin and her copy of the DVD for her video-recorded interview.  There was no Octopus card.  There was no $500.  And so where are these items?  So that is another matter which we do not know, members of the jury, and we must not guess or speculate because it is just a matter we do not know.”

Jury’s question and further directions by the judge

12.After they have retired to consider their verdict, the jury raised a question as to the identity of Jackie; with some apparently thinking that it might be Cheung Chi-kin.  In the absence of the jury, the judge discussed the question with the parties.  She indicated that she would tell the jury that Jackie was a person mentioned by the applicant in her VRI and there was no other evidence as to who he was; nor was there any evidence that he was Cheung Chi-kin[10]. Defence counsel, however, suggested that the judge should go further and direct that the conspiracy alleged was between the applicant and Jackie: if the jury thought that the conspiracy was between the applicant and Cheung Chi-kin, they should acquit.  The judge rejected counsel’s suggestion as an invitation to speculation.

13.Accordingly, the judge directed the jury as follows[11]:

“Well, members of the jury, the mention of Jackie is actually in the video recorded interview of the defendant. She mentions Jackie as the person who actually taught her how to manufacture. Now, we have no evidence whatsoever who Jackie is, apart from what was said in the video recorded interview. There is no evidence that Jackie is Cheung Chi-kin.

So, as I have said to you, you can only consider the evidence.  Do not speculate.  Do not guess.  The only time that Jackie is mentioned is by the defendant in her video recorded interview.  So, members of the jury, that is the evidence.  All right.”

14.Since it was late in the evening, the judge reminded the jury that it was important for them to take all the time they conscientiously needed to reach a verdict, and it would be undesirable for them to consider their verdict under pressure of time or when they were tired.  The judge said she was minded to ask them to break and resume in the morning; she asked if the jury were close to their verdict, whether they were tired, or if they still needed some time.  She emphasised very strongly that she was not asking them to return their verdict before they were absolutely ready to do so.  She told the jury that they should let her know if they had trouble in relation to matters of law, or if there was any evidence in respect of which they needed to be reminded. 

15.At about 7:53 pm, after 10 minutes of discussion, the foreman of the jury indicated that the jury were close to a verdict.  The judge asked whether they would be ready if they were given another 20 minutes, and the foreman said “Yes”[12]. The jury announced their verdict at about 8:23 pm on 5 August 2019.

Grounds of appeal

16.The applicant has set out the following grounds of appeal in her Form XI Notice of Application for leave to appeal:

(i)  The judge wrongly disallowed the defence request to activate and show all the telephones to the jury so as to prove that Jackie did not exist, that the applicant had never contacted him and the calls and telephones had nothing to do with the applicant;

(ii)  The police had never recorded in any document that the applicant was in possession of a shoulder bag at the time of arrest; and

(iii)  After the jury’s retirement for deliberation, the judge did not properly answer the jury’s question, and pressured them to come to a verdict in only 20 minutes.

17.I should add that the applicant has this morning produced a 16-page document from the Faculty of Law at Hong Kong University addressed to Ms Nancy Keung, Assistant Principal Legal Aid Counsel at the Legal Aid Department, dated 25 August 2021, setting out matters which the author, Mr Eric Cheung, solicitor advocate, identifies should lead to a re-consideration of her Legal Aid application.  On the 31 August 2021, Ms Keung refused the application for Legal Aid on behalf of the Director of Legal Aid.  However, although no articulated grounds of appeal have been put before me, apart from the applicant’s own home-made grounds of appeal, I have considered the matters set out in Mr Cheung’s letter myself in this leave application.  It should be borne in mind, when considering this leave application, that the offence was committed more than 4 years ago and the applicant’s conviction by a jury was more than 2 years ago.  I do not consider that anything I have read warrants a further delay of this matter.

Respondent’s submissions

18.Ms Audrey Parwani, on behalf of the respondent, submits in response to the three grounds of appeal articulated in her Form XI Notice:

(i)  It is not apparent from the appeal bundle at what stage of the trial, or in what context, the defence asked for the telephones to be provided to the jury.

(ii)  Much was made by the defence over the lack of records in respect of the applicant’s shoulder bag; defence counsel cross-examined the prosecution witnesses extensively on the issue and made submissions at length[13]; and the judge gave full directions[14] on the issue, by setting out the relevant evidence and reminding the jury of the arguments of both sides. 

(iii)  The judge raised the jury’s question with both parties in the absence of the jury, as was the correct procedure, and then directed the jury in line with what she had indicated to them; she reminded the jury of the relevant evidence, and correctly directed the jury not to speculate.  The judge answered the question appropriately and did not pressure the jury but repeatedly reminded them that they should take all the time they needed to consider their verdict[15].

Consideration

19.I shall deal with the applicant’s grounds in reverse order.  The notion that the jury were put under pressure to reach a verdict is not reasonably arguable.  The judge repeatedly said that the jury should take all the time they needed and not feel under any pressure of time; but, if they were close to a verdict, she would continue sitting and wait.  However, she added, “… please remember, I am not putting pressure on you to come back with a verdict.  If in these 20 minutes you feel you still need more time, please tell me, all right.  It’s no problem at all.  You should take as much time as you wish to”[16].

20.In the authority referred to in Mr Cheung’s letter to, namely De Four v The State[17], the circumstances were very different.  There, the Privy Council held that the “the imposition of a time limit of 30 minutes was a material irregularity”[18].  Here there was no time limit at all: the judge made it very clear that the jury would have all the time they needed without any pressure to reach a verdict.  It was the jury foreman who volunteered that they were “close to a verdict”.

21.In respect of the second issue, the judge dealt with this matter extensively, since it was a significant matter from the defence point of view.  It is difficult to see what else she could have said so that the jury were fully reminded and aware of the issue.  This ground is not reasonably arguable.

22.In relation to the first ground of appeal, I have tried to establish from the judge’s clerk’s log what happened.  The only reference I can find in the log is on 1 August 2019 when defence counsel made an application in respect of one telephone, Exh P29.  However, as the judge pointed out, this was not the applicant’s telephone on her case (as confirmed before me this morning).  She asked defence counsel how this could prove anything, to which counsel responded that he would not pursue the matter.  Counsel having taken that position, it is not open to the applicant to take the point now.

23.Accordingly, I do not find any reasonably arguable grounds of appeal against conviction in the applicant’s home-made grounds of appeal and the application for leave is refused.  I should say that I have considered the other matters raised in Mr Cheung’s letter but I do not find that they could give rise to any reasonably arguable grounds of appeal either. 

24.The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but she is also warned that if she does so, the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending her appeal, if it were to come to the view that there was no justification for the renewal of the application.

Ms Audrey Parwani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person