HKSAR v. Chu Kar Keet

CACC 284/2019

[2022] HKCA 1184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2019

(ON APPEAL FROM HCCC NO 319 OF 2018)

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Before:  Hon Zervos, M Poon and A Pang JJA in Court

Dates of Written Submissions:  14 June and 11 July 2022 (Applicant) and 4 July 2022 (Respondent)

Date of Decision:  16 August 2022

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D E C I S I O N

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Hon Zervos JA (giving the Decision of the Court):

1.On 24 May 2022, the applicant filed a notice of motion applying to this Court for a certificate to the Court of Final Appeal on the basis that our decision on 17 May 2022, dismissing his appeal against conviction for trafficking in a dangerous drug involved the following points of law of great and general importance.[1]

“In a jury trial,

(a) under what circumstances could/should a trial judge direct the jury that the absence of fingerprint/DNA evidence on prosecution exhibits was a neutral factor and it proved nothing either way? In particular, when the defence case relied on the absence of fingerprint/DNA evidence on various prosecution exhibits to invite the jury to infer that the presence of the defendant's fingerprint/DNA on certain prosecution exhibits (relied upon by the prosecution as circumstantial evidence) was or might be planted by the police, was it a material irregularity for the trial judge to direct the jury that the absence of fingerprint/DNA evidence on those various prosecution exhibits was a neutral factor?

(b) when the defendant exercised his right not to give evidence and did not adduce any direct evidence of any police misconduct, was it permissible for the defendant to rely on circumstantial evidence based on prosecution's evidence to invite the jury to draw a reasonable but not irresistible inference that the presence of the defendant’s fingerprint/DNA on certain prosecution exhibits (relied upon by the prosecution as circumstantial evidence) was or might be the result of the police frame-up? If so, was it necessary for the trial judge to direct the jury that they must disregard the fingerprint/DNA evidence and could not rely on it in any way against the defendant unless they were sure that such evidence had not been obtained in the circumstances suggested in the defence case or as a result of any police misconduct?”

2.We have addressed this application on the papers without the need for an oral hearing.

3.The applicant was convicted after trial in the High Court on a count of having with Tang Wai Keung (Tang) trafficked in a dangerous drug consisting of 4,318.59 grammes of a solid and powder, containing 3,146.03 grammes of cocaine. Pursuant to a search warrant, police officers had found the drugs concerned inside a unit which was rented by Tang and a female, and in which the applicant and Tang were present. The applicant had shut the door on the police in an attempt to prevent them from entering the unit and had put up a struggle. The unit was sealed in that the curtains were fully drawn and the window above the kitchen was covered in black plastic sheeting. The drugs and related paraphernalia for making crack cocaine were in plain sight inside the unit.

4.At trial, the applicant did not give or call evidence but instead relied on the exculpatory parts of his video recorded interview in which he said that he was staying temporarily at Tang’s unit and denied having anything to do with the cocaine and related paraphernalia. The applicant had keys to the unit and his fingerprint was found on a large electronic scale and his DNA on one of the bags containing the drugs. Most of the drugs and the related items were found on or under a table in the bedroom where the applicant had been sleeping. As part of his defence, the applicant claimed that he had been assaulted and framed by the police.

5.Tang had pleaded guilty to trafficking in the cocaine found in the unit and this was an admitted fact at trial.

6.The two questions in this application purport to raise points of law but in fact concern factual issues which we considered were appropriately dealt with by the judge. The arguments now being advanced in support of the application are in certain respects at variance with the original grounds of appeal. Under the general complaint that the judge’s summing-up was unfair and unbalanced, Mr Eric Cheung, for the applicant, averred that, firstly the judge misdirected the jury that they could only draw an inference of a police frame up in favour of the applicant if it was the only reasonable inference; and secondly, the judge failed to address the differential consideration that should have been given to the DNA evidence as opposed to the fingerprint evidence.[2]

7.Question 1 raises a factual issue and does not involve a point of law as claimed. The judge when addressing the fingerprint evidence mentioned that the absence of a fingerprint on an exhibit was a neutral factor. This was said by the judge in the context of the evidence at trial and after she had summarised the evidence concerning fingerprints, which consisted of the testimony of PW5, a fingerprint expert, who testified as to the procedures he employed in collecting fingerprints, and the admitted fact that a thumbprint of the applicant had been found on the large digital scale on the table where the drugs were located. She said:[3]

“Mr Shaw in his closing speech referred to the lack of fingerprint evidence and DNA evidence on other exhibits and that lack was suspicious and supported the defence allegation of the police framing the defendant. A lack of fingerprint evidence on an exhibit is a neutral factor. The absence of such information does not necessarily help the defendant. Where there is no more fingerprint evidence, it proves nothing either way. PW5 gave evidence that the chances of leaving fingerprints of value differs with different surfaces of exhibits or items.”

8.The judge’s comments about the neutrality of the evidence were specifically said in respect of the fingerprint evidence. At the appeal hearing, Mr Cheung accepted that the judge’s comments pertaining to the fingerprint evidence were supported by the evidence at trial. As pointed out by the respondent, Mr Cheung’s complaint under this ground of appeal was directed to the DNA evidence.[4] He argued that the judge’s comments in respect of the fingerprint evidence gave an impression to the jury that they also applied to the DNA evidence. We disagreed with this submission having considered in detail the DNA evidence that was presented at trial and how it was addressed by the judge in her summing-up.[5]

9.It is also argued in respect of Question 1 that Specimen Direction 108-29 to 108-31, in the Specimen Directions in Jury Trials, 2020, on the absence of fingerprint evidence creates confusion and is inconsistent with decisions of the Court of Appeal. This is a completely new argument which was not advanced before this Court in this appeal.

10.It is accepted by the applicant that his case did not fall within the usual situation where the defence seek to rely on the exculpatory effect of a lack of fingerprint/DNA evidence on all the exhibits. Rather, the applicant relied on the absence of fingerprints and DNA on some of the exhibits as a piece of evidence to support the contention that the presence of his fingerprint and DNA on other exhibits were or might have been planted by the police.

11.There was no evidence before the jury that police officers pressed exhibits on the applicant to extract fingerprint and DNA evidence from him. This had been put to and denied by the police officers.[6] Counsel for the applicant at trial submitted the applicant had been framed by the police and attacked their credibility, questioning why they did not interrogate the applicant for resisting arrest[7]; referring to the applicant’s complaint against the police and the medical report[8] (which recorded that the only visible injury was to the applicant’s left wrist area[9]); and questioning why only two exhibits had the presence of the applicant’s fingerprint and DNA[10]. The defence case was before the jury which they rejected by their verdict.

12.In Question 2, it is complained that the judge failed to highlight the circumstantial case of the applicant having been framed by the police by reference to the matters just mentioned. In his closing speech to the jury, counsel for the applicant addressed this issue as follows:[11]

“Now, lastly, members of the jury, these are the areas I want you to consider whether the police officer is credible. If they are not credible, is it likely or is there any possibility that the defendant is being planted? Why is it his DNA is only left on one plastic bag and not the rest if he is actually doing the opening and closing or putting dangerous drugs inside the plastic bag? If he is using the scale, the large scale, which is not necessary, small scale will do the job, why is there is only the left thumb on it, no other fingers? Do you think that somebody operated the scale, weighing it, taking powders onto it, just can do it by a left thumb? I ask you to consider.[12]”

13.As we mentioned in our Judgment, the judge, after a very detailed review of the evidence and the issues in this case, reminded the jury:

“You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed.”[13]

14.When addressing the prosecution case, the judge referred the jury to the defence submission against them drawing an inference of guilt from the circumstantial evidence. She said:[14]

“The defence, on the other hand, says that the circumstantial evidence does not add up to the only inference that can be drawn in all the circumstances. Mr Shaw stressed the defendant’s immediate and spontaneous reaction when arrested was to admit he knew what was in the premises but told the police everything belongs to Tang. Take into account what he said in this regard as evidence of his reaction when first questioned about the drugs. The defence suggest that the police framed the defendant by pressing his thumb against the weighing scale and pressing a bag of drugs against his face and mouth. They suggest there was no struggle when the police first entered. The defence say his explanation in his video-recorded interview was credible and supports his innocence, whereas the police witnesses are not credible.

You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed.”

15.The judge went on to remind the jury about drawing an inference but this was in reference to the prosecution case as we explained in our Judgment.[15]

“Members of the jury, in a criminal case the inference drawn must be the only inference that can be drawn in all of the circumstances. You must use your common sense and experience as men and women of the world to draw the reasonable inference and the only inference in the circumstances.”

16.Mr Cheung also seeks to argue that a direction akin to a Mushtaq direction[16] should have been given to the jury in the present case in respect of the fingerprint/DNA evidence, because the “circumstantial evidence in support of the defence suggestion that the fingerprint/DNA was or might have been a result of a police frame-up.”[17] First, a Mushtaq direction is given in respect of an alleged confession by a defendant to a person in authority. Secondly, this argument ignores the judge’s direction to the jury:[18]

“Do bear in mind throughout your deliberation that the prosecution also always bears the burden of proof. If the defence version is true or may be true, then it means that the prosecution has failed to make you sure that the accused, the defendant, is guilty, and you must acquit. Even if you were to completely reject the defence version, the burden will still be on the prosecution to prove its case against the defendant. If the prosecution on the evidence adduced or produced succeeds in making you sure of the defendant’s guilt, then you must convict.” (Emphasis added)

17.The factual issues referred to in the two questions were appropriately addressed by the judge in her summing-up and no points of law as submitted arose in this Court’s decision.

18.For the above reasons, we refuse to grant a certificate on the points of law advanced by the applicant.

Mr Man Tak-ho, Jonathan, DDPP and Mr Au-Yeung Shun-hei, Dimitri, SPP (Ag) of the Department of Justice, for the respondent

Mr Eric T M Cheung, Solicitor Advocate, and Mr Stephen Keung, instructed by ONC Lawyers, assigned by the Director of Legal Aid Department, for the applicant