HKSAR v. Shakeel Ahmed

CACC 61/2017

[2022] HKCA 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 61 OF 2017

(ON APPEAL FROM HCCC NO 27 OF 2016)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.The appellant stood trial before D’Almada Remedios J (the judge)  and a jury on a single count of trafficking in dangerous drugs, namely 967 grammes of cocaine, 116 grammes of methamphetamine hydrochloride (commonly known as Ice)  and 43.7 grammes of herbal cannabis, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. On 1 March 2017, the appellant was unanimously convicted by the jury of the count and the judge sentenced him to 23 years and 9 months’ imprisonment. The judge also made a forfeiture order in respect of a large sum of cash found on the appellant at the time of his arrest.

2.On 16 March 2017, the appellant applied for leave to appeal his conviction, but it was not until about a year and a half later, on 7 September 2018, that he also applied for leave to appeal his sentence and the forfeiture order out of time. 

3.On 6 September 2019,[1] a Single Judge granted leave to the appellant to appeal his conviction in respect of a ground formulated by him, namely whether the references in the evidence to “target person” and “acting on information” were capable of improperly influencing the jury, and whether the judge gave sufficient directions in counteracting the risk of misuse by the jury of the prosecution evidence that the appellant was in fact a subject of police intelligence.  The Single Judge refused the appellant leave to appeal against his sentence and forfeiture order out of time. 

4.At the hearing of the appeal on 17 November 2020, it was apparent that in order to properly assess this ground of appeal, the manner in which the defence conducted its case, particularly as to how prosecution witnesses were cross-examined and what evidence had been elicited from them, was relevant.  Therefore, the Court directed that the transcripts of two prosecution witnesses[2] be included in the appeal bundle.  

5.On 4 June 2021, we dismissed the appeal and indicated we would hand down our reasons for our decision in due course.  These are our reasons.

The prosecution case

6.In the evening of 26 June 2015, a team of police officers, including DPC 12087 (PW2), positioned themselves at the staircase of 5^th floor, Hong Lok House, 477 Nathan Road, Yau Ma Tei, Kowloon, in order to place Flat D under surveillance.  Meanwhile, another team of police officers in plainclothes, which included PC 7011 (PW1), were patrolling in Yau Ma Tei. 

7.The two teams were at that time acting upon information concerning suspected drug trafficking activity taking place in Flat D, involving a South Asian male, who was referred to as the “target person”.[3] 

8.At about 2.40 hours on 27 June 2015, the appellant and another person, who was later identified as Mehmood Khalid (Mehmood), were observed at the junction of Nathan Road and Man Ming Lane.  PW1 understood that the appellant was the “target person”, and put the two men under surveillance at a distance of about 5 to 6 meters away.  PW1 saw Mehmood give keys to the appellant, who then put them into his left front trouser pocket.  The two men then parted, leaving in different directions. 

9.Mehmood was later observed entering Hong Lok House and proceeding to the 5^th floor, where he tried to open the door to Flat D.  There were two locks installed on the door so two keys were required to unlock it.  However, Mehmood could only open one of the locks and it was at this juncture the police turned the operation overt and intercepted him.

10.Upon being informed of what had taken place outside Flat D, PW1 then proceeded to intercept the appellant on Nathan Road at about 3.05 hours.  PW1 searched the appellant and found on his person HK$17,676.70 cash (P44), two mobile telephones in his right front trouser pocket (P48, P50), two loose keys (P46 and P47)  and a bunch of six keys in his left front trouser pocket (P45). 

11.The appellant was taken to Flat D for a search of the premises.  The police used the two loose keys, P46 and P47, to open the two locks on the door to Flat D.  They also tested the keys found on the appellant, P45, two of which also opened the door to Flat D.  Inside Flat D, the following items were found:

(1)  one paper box imprinted in gold with the word “Hennessy” (P2), containing 344 grammes of solid cocaine packed in 50 packets (P3);

(2)  one paper box imprinted in gold with the word “Hennessy” (P4), containing 347 grammes of solid cocaine packed in 50 packets (P5);

(3)  one paper box imprinted in white with the words “Jack Daniel’s” (P6), containing 276 grammes of solid cocaine packed in 40 packets (P7);

(4)  one paper box imprinted in white with the words “Jin Xin” (P8), containing 116 grammes of Ice in 1 packet (P9);

(5)  one black bag made by “Lenovo” (P10), containing 43.7 grammes of herbal cannabis in a plastic bag (P11), an electronic scale (P12), a pack of resealable plastic bags (P13)  and HK$87,850 in cash (P14 – P27);

(6)  a tenancy agreement for Flat D signed by one “Nguyen Thi-luong” as tenant (P28);

(7)  one pair of grey underpants (P29)  and one set of blue underwear (P30)  for men;

(8)  two toothbrushes (P31 and P32), both of which were later found to have on them the appellant’s DNA; and

(9)  a copy of a Form 8 recognizance (P33)  and a gym membership card (P34), both issued in the name of the appellant.

12.The admitted retail value of the drugs was HK$2,259,426 for 967 grammes of cocaine; HK$46,020 for 116 grammes of Ice; and HK$5,812 for 43.7 grammes of herbal cannabis.

13.The appellant’s fingerprint was found on the sticky side of a piece of adhesive tape that was removed from the “Jack Daniel’s” carton (P6), containing 40 packets of cocaine (P7). 

14.The appellant’s DNA was found on the bristles of P31 and P32.  Other DNA samples and fingerprints were also obtained in Flat D, but were unable to be identified.[4] A sample of Mehmood’s DNA did not match with the DNA found.

15.Upon being arrested and cautioned at the scene, the appellant exercised his right of silence.  In a subsequent video record of interview conducted between 21:40 and 23:15 hours on 27 June 2015, he stated he had no knowledge of the drugs found in the flat.  He said the cash found on him of about HK$17,000 was entrusted to him for safekeeping by his friend “Usman”, who was to request it back at a later date.[5]

16.Ms Nguyen Thi-luong (“Ms Nguyen”), the registered tenant of Flat D, testified for the prosecution and stated that she met the appellant on the Internet in early 2013.[6] As the appellant told her that he could not rent a flat without a Hong Kong Identity Card, she was sympathetic and agreed to rent Flat D for him to stay.[7]  The tenancy commenced in September 2014,[8] and it was the appellant who paid for the rent.[9]  She recalled at the time of the signing of the agreement that she had received only one key from the estate agent, which she then gave to the appellant.[10]  When she visited the appellant at the flat, he would always open the door for her.[11]  However, they stopped seeing each other in April 2015.[12]

17.Under cross-examination, it was put to Ms Nguyen that she had an intimate relationship with the appellant[13] and rented the flat so that they could meet and spend time there together.[14]  She denied this was the case.  She said two or three months after the flat had been rented, the appellant told her that he had someone change the old lock used by the former tenant.[15] She denied she had set up the appellant by instructing Mehmood to give him the keys and asking him to go to Flat D, knowing that there were drugs inside.[16]  

The defence case

18.The appellant gave evidence and called one witness on his behalf. 

19.The defence case was that the appellant, a Pakistani national and a Form 8 recognizance holder,[17] was not the occupier of Flat D at the material time, nor did he have any knowledge of the drugs found in the flat.  He accused Ms Nguyen of setting him up in respect of the present offence because their relationship had deteriorated in April 2015 and she was seeking revenge.  The appellant also relied upon the exculpatory answers he gave in his video record of interview.   

20.The appellant said he had lived at 22 Kimberley Road since 2012, which was the address as stated in his Form 8 recognizance. He said he had gone to the flat on previous occasions to visit Ms Nguyen, his then girlfriend and the occupier of the flat.  He said he would also consume liquor there, such as “Jack Daniel’s” and “Hennessey” with Ms Nguyen and another person by the name of “Abbas”, a tenant living in another flat on the 5^th floor.  He said the last visit he made there was in April 2015 when their relationship ended.

21.The appellant testified that the toothbrushes, on which his DNA was found, belonged to Ms Nguyen, which he used when he visited her and this explained why his DNA was found on them.  However, it should be pointed out that only the appellant’s DNA was found on the toothbrushes.[18] He denied knowing of the presence of drugs in the boxes, and believed that his fingerprint might have been accidentally deposited onto the sticky side of a strip of adhesive tape, which was then stuck on the “Jack Daniel’s” box, P6, by someone else.  He was unaware of the presence of his Form 8 recognizance and gym membership card, P33 and P34, inside the bedside drawer as he thought he had lost them.    

22.As for how he came to be in possession of the keys to Flat D, the appellant said he only came to know Mehmood on the night he was arrested, and it was Ms Nguyen who instructed Mehmood to give him two keys so that he could enter Flat D and wait for her there.  In order not to lose them, he put the two keys onto his key chain (P45).  However, he maintained that at the time of the arrest he only possessed the two keys on P45, but not P46 and P47, as alleged by the police officers. 

23.Mr Grewal Inderjit Singh, (DW2), testified that he was the owner of a mobile telephone business at Chungking Mansions and had known the appellant for 4 to 5 years.  He recalled on one occasion the appellant went to his shop with “Usman” as they wanted him to witness the handing over of about HK$14,000 to HK$15,000 from “Usman” to the appellant.  DW2 accepted that he did not know for what reason or on what terms the money was given to the appellant. 

The appellant’s submission

24.Mr Frederic Whitehouse, counsel for the appellant, submitted that the judge, first of all, should not have permitted the highly prejudicial and inadmissible evidence concerning the information leading up to the appellant’s arrest to be placed before the jury.  Having erroneously allowed this evidence to be adduced, the judge further erred in not directing the jury properly or sufficiently to disregard such evidence in reaching their verdict, thereby rendering the appellant’s conviction unsafe and unsatisfactory.

25.Mr Whitehouse argued that the evidence of the police acting on information and targeting the appellant, the characteristics of whom they said fitted the description of the person they had been provided with, was clearly inadmissible hearsay and highly prejudicial.  In support of his argument, Mr Whitehouse primarily relied upon Li JA’s observation in R v Chan Tat-wah, where he said:[19]

“34. It is wrong that evidence should be led to indicate that the police went to a particular place as the result of information that they had received. It is very wrong that evidence should be led to the effect that the person on trial is the person referred to in that information. Such information is clearly hearsay of the most damaging kind.”

26.Mr Whitehouse complained that prejudicial references such as “target” and “target premises” were introduced by the prosecution in PW1’s evidence, which were then constantly employed by both counsel throughout the trial.  He noted that the description of the “target” by PW1 closely fitted the description of the appellant.[20]  He further complained that notwithstanding the overwhelmingly prejudicial effect of these references, the judge did not see the need to intervene or to discharge the jury.     

27.The judge in her summing-up reminded the jury that the evidence that the police had mounted a surveillance operation and were acting on information, “… is only information and not evidence as to why the police officers had a search warrant for the premises and why they were there in the vicinity that evening”.[21]  However, Mr Whitehouse complained that her direction fell manifestly short of what was required as stated in HKSAR v Chung Tang Ping,[22] in ensuring the jury was not improperly influenced by these prejudicial references.  He contended the judge failed also to specifically remind the jury not to be improperly influenced by the usage of the equally prejudicial terms of “target” and “target premises”.  Given these terms were used extensively without any restriction throughout the trial, he submitted the only recourse would have been to discharge the jury, and by not doing so the appellant’s conviction was rendered unsafe and unsatisfactory.

The respondent’s submission

28.Mr Ivan Cheung, for the respondent, argued that the fact the police received “information” was admissible at least to explain why the police officers were divided into two teams and how they were able to distinguish the appellant from Mehmood, who was also intercepted at the relevant time.  He observed that references to “target flat” or “target person” were substantially brought out by defence counsel in cross-examination of the arresting officer, PW1.  He submitted this was clearly done to support the defence case that the appellant had been framed by someone.  He added the judge carefully addressed this matter by directing the jury that the “information” could not be evidence by itself of the reason why the police acted as they did but might support the appellant’s case that he was set up by Ms Nguyen.

29.Mr Cheung submitted the judge appropriately dealt with the matter, given the appellant relied on these references as an integral part of the defence case.  He argued the summing-up and directions when viewed as a whole, were adequate to prevent the jury from engaging in any impermissible reasoning arising from the references to “information” and “target”.  He pointed out that the prosecution did not rely on these references as part of its case against the appellant, and the jury would have undoubtedly appreciated that the relevance of this evidence went only to the appellant’s defence that he had been framed.

Discussion

30.In Chung Tang Ping, the Court of Appeal was obviously concerned that terms or expressions which suggest or imply that a defendant may have committed the crime under investigation are not used in the presentation of the evidence to the jury, and if they are mentioned the judge should ensure a jury is not improperly influenced by them.  As for terms or expressions such as “target person” or “information”, the Court said:

“31. Matters such as the police arresting a defendant upon information received or the defendant being the police’s target person should not be disclosed to the jury. The reason is that such evidence is hearsay evidence. Not only is it irrelevant to whether the defendant is guilty or not, it may also cause the jury to be biased against the defendant. Terms such as ‘information’ and ‘target person’ are likely to arouse in one’s mind the notion that information received by the police concerning illegal activities is related to the defendant. Such kinds of information have a substantial influence on the jury, who are lay people. It would also easily tend to predispose them to be biased against the defendant and form the pre-conceived notion that he/she must be related to the illegal activities. (See R v Li Chun Choi [1990] 1 HKLR 665).

32. The Court of Appeal on p. 10 of the judgment of R v Ko Po Kun [1989] 2 HKLR 8 expressly stated the following:

The police officer clearly should not have used the term ‘target person’.  Implicit in such a phrase is a suggestion that a defendant is, or is about to be, involved in the crime in respect of which the police operation had been mounted.  Indeed we see no warrant of any sort for the use of any such term.  If reference has to be made to the reason why a police party is at a certain place all that need be said in the ordinary case, and this was one, is that they were there ‘on instructions’.”

31.The Court went on to explain what action is required of the judge to prevent any improper influence from occurring:

“37. Although it was the defence that proactively brought up the issue that the police acted upon information to proceed to Lok Ma Chau Control Point to arrest the applicant, who was the target person of the police, with the express purpose to reinforce the defence’s stance, the Trial Judge should proactively explain to the jury when he was directing them the reason for disclosing to them the applicant’s identity as the police’s target person, in order to avoid causing the jury to be biased against the applicant on the ground that the applicant was the police’s target person. He should also make it plain to them that they should not on that ground form the notion that the applicant therefore must be related to the police’s anti-dangerous drugs activities, and that the applicant had taken part with knowledge in the said offence.

38.  The Trial Judge when directing the jury pointed out that the police from sources and information from an informant learnt that the applicant would appear at the Lok Ma Chau Control Point and engage in dangerous drugs activities.  However, the Trial Judge had not expressed to them that the said incident was irrelevant to whether the applicant had with knowledge taken part in dangerous drugs activities, and also they may not because of this form a biased view of the applicant.”

32.The principles stated in Chung Tang Ping were derived from previous cases where this Court expressed its concern about terms or expressions which were either inadmissible hearsay or unfairly prejudicial to the defendant, or both.  The underlying rationale of these principles is that a case against a defendant should be proved to the satisfaction of the jury beyond reasonable doubt upon evidence that is admissible in law, and as a corollary, the jury should not have before them “information about the defendant which is likely to have an influence on their minds prejudicial to the defendant which is out of proportion to the true probative value of admissible evidence conveying that information”.[23]

33.In R v Chi Po Yeung and Anor,[24] the Court of Appeal found nothing objectionable in the evidence that the defendant was under surveillance because it enabled the jury to understand fully the circumstances of the arrest.  However, the Court said that mention should not have been made that the defendant was a “target” who might be involved in “a drug transaction”.  Nonetheless, the Court was satisfied that the judge’s direction that it would be wrong to assume the defendant was guilty because he was under police surveillance ensured the jury would attach no weight to it, even though it should not have been admitted.[25]

34.In R v Ko Po Kun,[26] the Court of Appeal made it clear that when police witnesses are giving evidence there is no warrant for the use of the term “target person”.  As the Court explained its use inevitably carries with it the suggestion that the “target” is known from information to be involved in something illicit.  The Court added that if reference has to be made to the reason why a police team is at a certain place, all that need be said in “the ordinary case” is that they were there “on instructions”.[27]  In that case, the Court considered the term “target person”, having been frequently used by the judge to the jury, was clearly wrong and the effect of what he said and his omission to direct them to ignore such term was to leave it as evidence before the jury for them to make of it what they would.  The Court concluded that in the context of the case, “given the nature of the defence”, the reference might well have worked a particular prejudice to the applicant.[28]

35.In R v Li Chun Choi,[29] prosecuting counsel opened his case to the jury that a police officer received information that a man called “Ah Choi”, matching the defendant’s description, often dealt in dangerous drugs at a particular location.  There was an exchange between the judge and both counsel about the reference to “information received”, whereby prosecuting counsel agreed not to lead that evidence and for the police officer to be confined to the use of either of the phases “I was keeping surveillance” or “pursuant to instructions.”[30]  The Court of Appeal found this was unsatisfactory as the jury had not been told to completely ignore what had been said by prosecuting counsel in his opening address.

36.In R v Ng Shun Ying & Anor,[31] evidence had been led from two police officers at trial that information had been received that dangerous drugs and syringes were available for sale at a specified location.  The Court of Appeal said that the testimony of the two witnesses was not only hearsay but also potentially damaging and prejudicial.[32]  As to how the judge should have dealt with the matter, the Court said:

“… He could of his motion have discharged the jury. He could at each juncture have advised the jury to ignore what they had heard. He could have done so in the course of his summing up. In order to avoid giving the inadmissible testimony undesirable emphasis he could, as apparently he did, have ignored it. This was a difficult decision for the trial judge and the sort of predicament in which he found himself was recognized by Lord Goddard CJ in R v Jackson [1953] 1 WLR 591; an authority cited in the judgment of my Lord, the Vice-President in R v Li Chun Choi (Crim App 1244/89, unreported).”[33]

37.The Court went on to conclude that having regard to the strength of the prosecution evidence, it was satisfied that no miscarriage of justice actually derived from the hearsay testimony in the particular circumstances of the case, adding they were not suggesting that the trial judge should have referred to it in his summing-up.[34]

38.Care needs to be taken not to over generalize whether terms or expressions are hearsay or highly prejudicial. 

39.As to whether the evidence is hearsay, the Court of Final Appeal in Oei Hengky Wiryo v HKSAR (No 2)[35] explained that this will depend upon what is said in evidence and the purpose for which it is tendered.  The hearsay rule is that an oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.  In order to decide whether the rule had been breached, it was necessary to determine the purpose for which evidence of an out-of-court statement, made in the absence of a party, was tendered.  As long as its contents were not relied on to prove a fact recited or asserted, it would be admissible if it tended to prove a fact in issue or a fact relevant to a fact in issue.[36]

40.As to whether a term or expression is highly prejudicial will invariably involve assessing what is said and its contextual relevance in order to determine whether the prejudicial effect of the evidence upon the jury was likely to outweigh its probative value, and thereby operate unfairly against the defendant.[37]

41.Critical in answering this ground of appeal is how the defence case was presented at trial and to assess the exact nature of the evidence that was claimed to be hearsay and highly prejudicial.  The appellant did not dispute he was in possession of the two keys to Flat D that were on his keychain or that there were drugs in Flat D at the time of his arrest.  It was his case he had been targeted by the police and a search warrant was obtained for Flat D because he had been set up by Ms Nguyen and the police had been tipped off to apprehend him inside the flat with the drugs.

42.In order to appreciate the terms and scope of the defence case it is best to view how the jury were addressed by defence counsel at the conclusion of the trial.  The central theme of defence counsel’s closing speech to the jury was that the appellant was set up by Ms Nguyen.  She submitted to the jury that Ms Nguyen was lying and had tipped off the police to target the appellant.

43.Defence counsel took the jury through the evidence showing the appellant occupied the flat and connecting him to the drugs found inside the flat with a view to demonstrating that he had been framed by Ms Nguyen because she was a scorned lover.  She noted the appellant’s evidence that Ms Nguyen had talked about marriage and she made photocopies of his Form 8 recognizance which was found in the flat together with his California Fitness Centre membership card.[38]  She said:

“… You may think that it was Ms Nguyen or someone else who has placed that photocopy there. Was that deliberately placed there to frame him up by Nguyen, to set him up? Members of the jury, this piece of paper, Exhibit P33, again raises a serious doubt.

California Fitness card, the defendant said he lost it. He’s reported it lost, it’s replaced. It was obviously left in that flat either by him -- well, let’s just look at the evidence of Madam Nguyen, Ms Nguyen. She’s testified, she’s a woman who is now 45, at the time was about 43 years old. The defendant was 28 years old. There is a 15-year gap between them. Why was she so interested in this defendant?”[39]

…

“What do you think her interest in him was? Either it was sexual or it was to set him up, to find – to find – a cover for her own unlawful activities, maybe dangerous drug-related, and the defendant was going to provide that cover by, on her suggestion, someone who lived there. Members of the jury, we don’t know whereabouts the truth lies and it’s not for you to work out. If there is a doubt, the benefit of that doubt goes to the defendant, but you may think Ms Nguyen is a particularly devious woman, a witness.

It wouldn’t be the first time a woman has set up a man and got him into trouble, and it would neither be the last. She, being a married woman, buys him commodities -- oh, rents the flat, buys him commodities, provides him with clothing and she says it wasn’t just him. There was his brother Jack too, so she is practically supporting the two of them. Defendant says he had no such brother, Jack. He said he’s got a brother, Kamran in Pakistan -- or did he say Pakistan? Pakistan, yes. And the defendant said it was the first outing, they went to a bar, never mind what its name was, she denies it happened, it was 7-Eleven, she said, and so, no, not much happened.”[40]

44.Having forcefully submitted to the jury that Ms Nguyen was a woman scorned, defence counsel stressed upon them that the appellant had been set up by her.  She said:

“… You may think it’s a lie by Nguyen, and untruth, that the defendant asked for that flat to be rented.

Members of the jury, you may think what the defendant had put to me, to Ms Nguyen, was the truth. She rented the flat, she’s then told the defendant, I think it was late September, she said, ‘Hey, no need to go to the guesthouses and waste money, let’s just go to this flat, I’ve got this flat’, and she takes him there and the defendant said then they used to spend two or three days there a week in that flat and that’s why his toothbrush was there.”[41]

…

“You may think Ms Nguyen was more involved with the dangerous drugs in the flat and this defendant has been set up by her. We don’t know what the true value is. According to the defendant she said to him, she portrayed to him she was a woman of means. She said, she actually told him of her family, her brother, working with her former boyfriend, an American chap, somewhere in Central.”[42]

…

“… She was telling him a pack of lies to keep him tagging along. …”[43]

45.Defence counsel went on to remind the jury that “the information” was not actually evidence in itself and it could be the case that false information was furnished to “frame up” another person, such as the appellant:

“Now, there is one matter I would like to touch on briefly. In the cross-examination we talked about information. Information, according to PW1, was that the dangerous drugs transaction would take place. On the evidence before you there is no evidence of any transaction before you. They would not say whether they knew at the time that there were dangerous drugs inside the flat. So there is no evidence with regard to that but no transaction relating to dangerous drugs has taken place that’s for sure.

Members of the jury, when we are talking about informers of information, that is not actually evidence in itself. It’s not evidence at all. It’s hearsay. Someone could give false information to the police. Rightly or wrongly, maybe someone just wants to frame up someone and say, ‘Oh, so-and-so is engaging in this unlawful illicit activity’. It may be true. It may not be true. There is no evidence here. We don't know what the information was save and except for the fact that on that day they expected a dangerous drugs transaction to take place but none took place.” [44]

46.Whilst stressing to the jury not to draw an adverse inference against the appellant because he was referred to as a “target” in the evidence, defence counsel invited them to find that this might suggest he had been “framed up”:

“Then we talk about targets. Again, that is linked to the information. The fact that someone is referred to as target is not evidence. It’s not based on any facts. It’s just someone alleging that that’s possibly the case. So this information target is not evidence in itself but it’s a trigger point where police then decide to take action. Police, as we know, went and obtained the search warrant, but according to them, having obtained the search warrant they did nothing until the 27^th, 26^th, 27^th, nothing happens. So these words ‘information’ and ‘target’ is not evidence against the defendant but it triggered the police to take action, that’s all. And I have already said at least what they said the information suggested would happen doesn’t happen actually, so to that extent it was wrong.

Now, police, they think that the defendant is the target. Do you think that they may then go and fit the material they have against the defendant; for instance, the two keys, Exhibit 46 and 47, which the defendant says were not found on him, were not given to him, do you think it’s possible that this defendant has been framed up? Police officers do a wonderful job for the most part. There have been instances where police officers, like any people, are capable of lying. So you have to look at their evidence like any other witnesses, like Nguyen, like the defendant, you consider their evidence. Their evidence is not in some special category. Members of the jury, so no adverse inference is to be drawn from these two words, ‘the informer’, ‘the target’. I’m sure her Ladyship will address you or direct you in this regard.” [45]

47.This closing address was consistent with the appellant’s evidence, who said he was set up by Ms Nguyen and that she had arranged Mehmood to give him two keys to Flat D where he was to meet her later on.[46]

48.The defence case needs to be contrasted with the prosecution case.  Prosecuting counsel in his closing address to the jury focused on the evidence and made no reference to the police acting on information in the conduct of this operation, nor did he make any reference to “target person.”  He specifically addressed the evidence to show that the appellant was the true occupier of Flat D and in possession of the drugs, and that Ms Nguyen had not set up the appellant as claimed.[47]

49.In his opening address to the jury, prosecuting counsel stated that in the evening of 26 June 2015, police officers had mounted a surveillance operation at and in the vicinity of Flat D.  Later in the early hours of 27 June 2015, the appellant and another man were observed in Nathan Road, when the other man gave the appellant a set of keys.[48] He mentioned the keys opened the locks to the door of Flat D, which was under observation by the police and in relation to which the police executed a search warrant.  No objection had been taken by defence counsel to prosecuting counsel’s opening remarks to the jury.[49]  The prosecution then proceeded to present its evidence.

50.PW1 (PC 7011)  explained that the police on 26 and 27 June 2015 had been briefed to carry out an anti-drugs operation.  There were two teams of police.[50] The relevant passages of PW1’s evidence were as follows:

“Q. … But when the taller man gave the defendant the keys, what did the defendant do with them?

A. He put the keys into his left trouser pocket, left front trouser pocket.

Q. So we left it that he was inside the McDonalds restaurant and you were waiting outside. Is that right?

A. Yes.

Q. And what happened next?

A. And from our communication, I learned that the other team had stopped the taller man on the 5^th floor of Hong Lok building.

Q. And what did they tell you?

A. I was told that this man had gone to our target flat but the key that he had was not able to open the two locks on the door, because that wooden door was quite special, there were two locks on it. And the key -- and the one key that this man had could only open one lock on the door.

Q. So, what did you do?

A. And I suspected that the two keys that this taller man had given to the defendant earlier on could open the two locks of Flat D, 5^th Floor, Hong Lok building. When the defendant came out from the McDonalds, I stopped the defendant and I searched him.

Q. And what did you find?

A. In his left front trouser pocket, I found two separate keys and a bunch of keys and cash of around $18,000. ...”[51]

“Q. So officer, we left it that you were standing outside Mcdonalds and you had just searched the defendant and found these exhibits.

A. Yes.

Q. What happened next, please?

A. Then I took the defendant to Flat D, 5^th Floor, Honk Lok building.”[52]

“Q. And at 0310, you arrived at Flat D, and I was asking you who was there.

A. I saw the taller man and our team members, 11302 and 12087 and the members of the other team were also around.

Q. And can you tell what happened next, please?

A. 12087 showed a search warrant issued by the Kwun Tong Law Courts to the defendant and the taller man. He expressed that he was going to search this flat. And I hand over the keys that were found on the defendant to 12087 to see if they could open the two locks of Flat D.

Q. Sorry, which keys did you hand over?

A. The two separate keys and a bunch of six keys to 12087. I handed the keys altogether to him.”[53]

…

“Q. So you handed the keys to PC12087, and what happened next?

A. 12087, with the key that I had given to him, he opened the door of Flat D.

Q. Which keys, please?

A. The two separate keys. And two keys from that bunch of six keys could also open the door of Flat D.”[54]

51.In cross-examination, PW1 was asked about the police operation and the briefing he received in relation to it:

“Q. And before that, that’s 22 June, did you know there was this target person or the target premises you went to on 26 June?

A. No.

Q. So on 22 June, what did you find out?

A. I learned that - - I learned of the area of the - - sorry. The physical location, the location of the operation and the, what kind of persons would this type of person be.

Q. Right. So, on 22 June, did you know Flat D was the target of this operation?

A. No.

Q. Right. When did you find out that Flat D was the target of this operation?

A. On 26 June, there was a briefing, and during the briefing the target flat and the target person was talked about.

Q. Did you know there was a search warrant obtained from the Magistrate, regarding this flat?

A. The search warrant was talked about in the briefing.

Q. And did you know from this briefing whether this Flat D had been kept under observation since the issuing, at least, of that search warrant?

A. As far as I know, the operation was undergoing on the 22^nd, but I do not know about the details of observation. And on the 22^nd, the briefing was about the target flat and target person and that there was a search warrant and an authority of it.”[55]

…

“Q. So on 22 June, how did you find out about this operation?

…

A. There was not a formal briefing, it was only communications between colleagues.

Q. Just tell us, to your know, on the 22^nd, was this flat under surveillance?

A. I had no idea about the situation.

Q. Let’s talk about the so-called target person. Did you find out the name of the target person on 22 June?

A. No.

Q. Before the interception of the defendant, did you know the name of the person who was the target?

A. No.

Q. So are you telling this court that before you were briefed on -- is it the 26^th?

COURT: Six.

Q. 25 June, you -- 26 June, you did not know anything about the location of the flat, of the name of the person or the particulars of the person.

A. That’s right.”[56]

…

“Q. On the 26^th what were you told to expect? What did you think was going to happen at the flat, by that person, the target person?[57]

…

Q. Now, what were you told in the briefing would happen at the flat?

A. Are you talking about 26 June?

Q. Yes.

A. And we were given the description of the target person and it was a South Asian man and he was about 1.7 metres tall, of strong build and had stubbles on his face.

Q. Yes, but what were you told in the briefing he would be doing?”[58]

…

“Q. All right, please carry on, officer.

A. And the location of the flat suspected to be used to traffic in dangerous drugs was told and it was said that Flat D was our target flat and that we had a search warrant, so we have the right to enter the flat to search it.

Q. Well, can you tell this court, what was the target person expected to be doing during your observations? Was he supposed to be transferring drugs, carrying drugs? What was it that he was expected to be doing?

A. If there was any suspicious activities we would stop him for a search.

Q. Well, that doesn’t mean anything. There are many men of South Asian origin firstly, who would fit the defendant’s description or the target person’s description. Do you agree?

A. Agree.

Q. And that night, in the briefing, were you told what coloured shirt he would be wearing, the target person would be wearing?

A. Not mentioned.

Q. I see. In the briefing, was the second person mentioned, the taller man you described?

A. No.

Q. Right. Well, so it was just sheer luck that you happened to stumble upon these two Asian men fitting that description, is it?

COURT: Sorry, I don’t recall, did he say what description was the other man? Did he say? I don't think he said.

MRS PANESAR: No he hasn’t actually. Perhaps I could just leave that.

Q. Now, this other, the taller man, what nationality was he?

A. As far as I know, he was also a South Asian man.

Q. Right. So in the briefing, was it mentioned that the target person was a South Asian male?

A. In the briefing, only one target person was talked about and this target person was a South Asian.

Q. So there was no mention of the other person who was the taller person who was arrested that night?

A. Not in the briefing.”[59]

52.Cross-examination then proceeded on the basis that “the target person” could have been either of the two males observed by him.[60] Questions were asked of PW1 about whether he had contact with the informer.[61]  At this stage, the judge stopped the questioning and in the absence of the jury the following discussion took place:

“COURT: Ms Panesar, we’re getting down the lines of -- well, I see that you’ve opened the cross-examination about target person.

MRS PANESAR: Yes. It’s the evidence which has been led in-chief. The officers, they have talked about the defendant being the target person, and now the next, of course I’m entitled to ask obviously they were acting on information, according to their statements, the briefing, they were told, acting on information. So there was information, and my point is this: to be able to distinguish between two very similar people of similar height because it’s very small difference between the two heights, they are saying they were able to zoom into the defendant as being the target person.

So I’m asking whether it was someone they are saying, ‘Look, that’s the man you need.’”[62]

…

“COURT: … is able to -- so we’re going down an avenue here which you might wish to be careful on what you ask because they can identify this person being the defendant. So whether other evidence comes out by accident or what, I would ask you to be very, very careful on what you’re asking.

MRS PANESAR: I’m not going to go down that -- well, I was going to. Perhaps now I agree I’ve got the jury out. I am minded to ask because it is obviously the defendant’s case that he has been set up. He has been set up.

COURT: Yes, and?

MRS PANESAR: And that there was someone leading the police to the defendant, to the flat, having set him up. I wouldn’t like to say who we say might have set him up. Even if that person wasn’t the informer but he was set up. So I have not …

COURT: Well, then so why ask the questions back and forth? Again here we are going down avenues which again you have to have good cause to go down this avenue about informers.

MRS PANESAR: Well, the question is pretty general. I have only asked as to whether the informer was in touch with any of the officers, saying, ‘Well, that’s your target, the man in green shirt.’ As I say, the difference between 1.7 and 1.8, if they are just trying to observe a person …

COURT: Well, that’s that -- well, the answer is that he doesn’t know why but the other officer, 54367, knows. So I just -- I suggest, say, be very careful on what you ask here.

MRS PANESAR: I won’t ask any question which may lead to the possible identity of who the informer was. I’m not going to go there.

COURT: But also why it was him. I mean there might be, I don’t know, Ms Panesar, whether -- why they are saying him. They saw him before somewhere else which may be prejudicial to your case. I don’t know.

MRS PANESAR: It’s opened up and it is there.

COURT: So I’m just warning you now …

MRS PANESAR: Yes.

COURT: … that going down this avenue, if you wish to ask these questions and these officers come out with something against your client, then that’s -- your doing that, this will be prejudicial to your client.

MRS PANESAR: I’ve considered that and I am instructed to ask these questions. I won’t ask any question which may suggest who the -- or lead any evidence in fact in terms of answers which may suggest who the target was, but our case is that he was set up by …

MR BERESFORD: Inform …

MRS PANESAR: … a person.

COURT: Who the informer was, you mean?

MRS PANESAR: Well, we don’t know whether that person happened to be the informer. We don’t actually know who the informer was, and it is the defence case that whoever it was had cleaned out the flat and left sufficient evidence to link the defendant with that flat.

COURT: Well, as I said, just be very careful on where you …

MRS PANESAR: Yes, I would, I would. I’m grateful for your Ladyship’s reminder to me.”[63]

53.Following this exchange, defence counsel asked PW1:

“Q. Yes, now I ask you officer, as a general question, during this observation, to your knowledge was any of the officers in touch with an informer, who pinpointed the defendant?

A. I did not see that.

Q. Based on that very general description, very general description which could fit God knows how many South Asian people around that area, your team was able to narrow this defendant to be that target person, is it?

A. I can only say that there were operations beforehand and as to why 54367 could identify him, that is his ability, and as to how, you have to ask him.

Q. In your notebook, you describe what this Flat D, ‘location C’. Is that right? Location C of observations.”[64]

54.After extensive questioning about what PW1 found on the appellant and what happened at Flat D, defence counsel put to PW1:

“Q. Now, I put it to you, so far as we, the defence and this jury is concerned, we don’t know what you the officers, the police officers or your informers had been doing in this flat from 12 June to 26 June. Do you agree or disagree?”[65]

…

“Q. Let me ask you this. Did your informant have a key to this flat?

A. I was not involved in the informer part.

Q. Right.

A. And it’s not for me to comment on the informer and it was to protect the informer. It’s not suitable for me to disclose the informer’s information.

Q. Well, I was not asking you to disclose the informer’s information. My question simply was, did the informer have a key to this flat?

A. I don’t know.

Q. All right.”[66]

55.PW2 (DPC 12087)  also confirmed that he was involved in an anti-drug operation.  He was stationed at Flat D to observe a South-Asian man, whom it was believed would engage in trafficking in dangerous drugs.  His team was assigned to lay in wait at the rear staircase of the 5^th floor.[67] He gave evidence that the police were armed with a search warrant for Flat D, which they later searched.

56.In cross-examination, PW2 was asked about “the target person”:

“Q. Did you have the name of the target person?

A. No.

Q. Did you have -- did you know of the description of the target person?

A. Yes.

COURT: Sorry, you’re talking about what period?

MRS PANESAR: When he -- that will be before 12 June.

Q. Before 12 June, did you have a description of the target person?

A. I did.

Q. And was it -- was there just one target person or more than one target person? What did you know?

A. At the beginning, we did our observation, because from the intelligence there was only one target person, and that was before 12 June, because when we received intelligence we would do the verification. That was the early stage work and when we did our observation we saw another person.

Q. Right. So there were two target persons, were there?

A. You can say so.

Q. Was there was a woman involved?

A. No.”[68]

57.As already noted, Ms Nguyen, was alleged by the defence to be the former girlfriend of the appellant who set him up.  She was extensively cross-examined about her relationship with the appellant and the tenancy of Flat D that she took out for the appellant.  It was put to Ms Nguyen that she set up the appellant by arranging Mehmood to give the appellant the keys to Flat D and to meet him there, which she denied.[69] The defence case was put to her in the following terms:

“COURT: So it’s put to you that you instructed Mehmood to give the keys to the defendant.

A. No.

Q. And I’m putting it to you that the purpose, the reason behind giving the keys to the defendant was that you wanted to set him up, have him arrested with regard to the dangerous drugs in the flat. Isn’t that right?

A. I disagree.

Q. In fact, I put it to you that you knew there were dangerous drugs in that flat.

A. I don’t know.

Q. And you wanted the defendant arrested in connection with those drugs.

A. I didn’t know there was drugs in that flat.

Q. I am putting it to you that there was this ongoing row from the Valentine’s Day 2015 between you and the defendant and you got him arrested.

A. I disagreed.

Q. And you had made it clear to the defendant in some of your conversations that you had another boyfriend. You even sent the defendant his picture.

A. No. Since I rent the flat for him, he’s the one who is -- who was living there, so I don’t know.

Q. I put it to you that the defendant never lived in the flat but visited the flat only in your company.

A. There’s no such thing.”[70]

58.The judge commenced her summing-up to the jury by setting out the respective cases for the prosecution and the defence.  She stressed to the jury that the principal issue in the case was whether the drugs in the flat were in the appellant’s possession for the purposes of trafficking.  She also stressed to them that their verdict should be based on an objective appraisal of the evidence before them.  She said it was a matter for them whether they accept or reject any views expressed by her in respect of the facts and if she did not mention something which they regard as being important they should nevertheless take it into account and give it what weight they think necessary.[71] She repeated that it was their main duty in the case to assess the credibility, reliability and accuracy of the witnesses and the evidence.[72]  It was in the course of her directions on this subject that she mentioned the police officers had no special status and their evidence was no more worthy of belief or disbelief than any other person and hence they should treat their evidence as they would the evidence of any other witness.[73]  

59.The judge went on to give a comprehensive summary of the evidence presented by the prosecution and the defence and at the outset of it she addressed the matter of the references to “information” and “target”.  She said:

“On 26 June 2015, the police, acting on information, mounted a surveillance operation near 477 Nathan Road, Hong Lok House, and also on the 5^th Floor of Hong Lok House. They had a search warrant in hand - that was issued on 12 June by a magistrate for Flat D. They had information that that Flat D was used to traffic in drugs. It was suspected that there would be a quantity of drugs inside that flat. They had information that a target person was a South Asian male, about 1.77 metres tall, of strong build with stubble on his face. So far as this information of suspicion of drugs in Flat D and evidence of a target person, this is only information and not evidence as to why the police officers had a search warrant for the premises and why they were there in the vicinity that evening. There is no information as to the particular informant of this case. In this case you have heard the defendant say that he was set up by Miss Nguyen. Miss Nguyen denied that she had set the defendant up. However, on this matter you may consider whether this lends support to the defendant’s account that he was set up by Miss Nguyen.” [74] (Emphasis added)

60.The evidence of the references to “information” and “target person” was plainly introduced as a forensic tactic by the defence and on this basis it cannot be sensibly suggested that there was any prejudice occasioned to the appellant with the introduction of this aspect of evidence during PW1’s testimony, as it was clearly an integral part of the defence case. For this reason, it cannot be said that this evidence had a prejudicial effect on the jury that operated unfairly on the appellant. 

61.There is also the fact that answers to questions as to why the police were carrying out surveillance at certain locations and on certain persons, would not offend the hearsay rule if the purpose was not to prove the fact recited or asserted.  In the present case, the evidence was to show why the police had put Flat D and someone of South Asian origin under surveillance at the material times.  Although, the majority of the questions asked on this subject came from defence counsel who wanted to prove that the appellant was a target of the police because he had been set up and framed by Ms Nguyen.

Conclusion

62.It follows from what we have said that in the circumstances of this case, particularly in light of how the defence case was conducted, we were not satisfied there was merit in the grounds advanced against the appellant’s conviction.  We were also of the view that the judge in her summing-up to the jury appropriately dealt with the matter, bearing in mind the evidence that the appellant was a target of the police was highly significant to his defence that he had been framed for the offence. Accordingly, for these reasons, we dismissed the appeal against conviction.

Mr Ivan Cheung, SPP of the Department of Justice, for the respondent

Mr Frederic Whitehouse, instructed by Morley Chow Seto, assigned by Director of Legal Aid, for the appellant