HKSAR v. Chan Chu Leung

CACC 160/2010

[2022] HKCA 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 160 OF 2010

(ON APPEAL FROM HCCC NO. 263 OF 2009)

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Before:  Hon Macrae VP, Zervos JA and Anthea Pang JA in Court

Date of Hearing:  11 August 2022

Date of Judgment:  31 October 2022

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J U D G M E N T

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Hon Anthea Pang JA (giving the Judgment of the Court):

Introduction

1.The appellant (D1 at trial) and his three co-accused (“D2 to D4”) stood trial before V. Bokhary J (“the judge”) and a jury on one count of attempting to traffic in 6605.68 grammes of cocaine[1]. They were all convicted after trial and each was sentenced to 25 years’ imprisonment on 26 April 2010.

2.On 6 May 2010, the appellant applied for leave to appeal against conviction but he was refused legal aid on 5 August 2010. Then, the appellant filed on 21 October 2010 a notice to abandon all further proceedings in relation to his appeal.

3.On 5 January 2017, the appellant applied for leave to treat his abandonment as a nullity and filed three affirmations in support. However, as the contents of his affirmations did not come anywhere near showing that the appellant’s mind did not go with his act of abandonment, Macrae VP considered that there was accordingly no basis upon which the matter could be listed before the court; particularly after so many years had passed since his act of abandonment. The appellant was advised that, in the circumstances, his only recourse was to petition the Chief Executive (“the CE”).

4.On 21 December 2018, the appellant applied to the CE under section 83P of the Criminal Procedure Ordinance (“CPO”)[2] as a result of which the CE, on 14 January 2022, referred the whole case to this Court.

5.Section 83P of the CPO reads:

“83P. Reference by Chief Executive

(1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either –

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.

(2) A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.

(3) For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

6.In HKSAR v Fu Chiu Wa[3], which was also a case referred to this Court by the CE under the same provision, Stuart-Moore VP said:

“4. The effect of this reference is that the case must be treated by this court for all purposes as an appeal. The position in law is unaffected by the fact that the previous application for leave to appeal was dismissed following the appellant’s abandonment of his application and it is a position in law that is also unaffected by the fact that the appeal comes before us more than five years after the conviction. …

5. Had this been an application for leave out of time, it is therefore far from certain that leave would have been given. Had this been a fresh application to treat the abandonment as a nullity on the basis of a misunderstanding of the law at the time of trial, it would not have succeeded.

6. In this case, such issues of finality, exceptional circumstances for extending time, or the effect of abandonment are not now in our hands, for the decision to refer under section 83P makes such issues otiose before this court.”

7.Accordingly, for a reference made under section 83P of the CPO, we are now not concerned with an inordinately late application to treat the appellant’s abandonment as a nullity but with an appeal against conviction.

The prosecution case

8.On 16 February 2009, a cargo, containing 20 cartons, arrived in Hong Kong by flight from Amsterdam. On examination, the police recovered 25 bags of powder, which contained a total of 6,605.68 grammes of cocaine, from 2 of the said cartons. Plastic bags of baking powder dusted with fluorescent powder were then prepared as dummies to replace the bags of cocaine.

9.PW1 was a delivery driver. On 16 February 2009, upon receiving an order, he drove his van to Kin Fat Lane in Tuen Mun to get an airway bill from D2. Thereafter, PW1 proceeded to the airport to collect the 20 cartons of cargo and drove back to Kin Fat Lane. After PW1 had unloaded the cargo, he left. The appellant and D2 then put the goods into larger cartons at Kin Fat Lane. It was then around 7:30pm.

10.PW2, another delivery driver, upon an order, drove to Kin Fat Lane where he saw the appellant and D2 waiting with boxes by their side. They loaded the boxes onto his van. PW2 drove away with D2 on board the van while the appellant drove a private car. At 8:25pm, PW2 and D2 arrived at Granville Circuit. PW2 helped D2 unload the boxes and left.

11.The appellant arrived at Granville Circuit at 8:35pm. With D2, they moved the boxes into Wing Hing Mansion. D2 opened the door of the building with a key and took a lift to the 3^rd floor with the boxes. The appellant walked to the 3^rd floor, using the back staircase. Shortly after 9:00pm, a team of police officers went to the 3^rd floor. At the corridor outside Room C (“Room C”), the officers revealed their identity. The appellant and D2 rushed towards the officers and put up a struggle. They were, however, subdued and taken into Room C, inside which were boxes containing packets of the dummy drugs. The appellant and D2 were then arrested.

12.The appellant remained silent under caution. Traces of fluorescent powder were found on the appellant’s nail clippings and his fingerprints were also found on a box and the adhesive side of a tape.

13.As regards D3 and D4, the prosecution case was that they acted as lookouts for they were in the vicinity watching when the appellant and D2 were repacking the cartons at 7:30pm at Kin Fat Lane, as well as when they were unloading the boxes at 8:40pm at Granville Circuit. As regards Li Shing-hin (“Li”), he was also at Granville Circuit at the material time and telephone records revealed contacts between D2’s mobile telephone and Li’s mobile telephone on that day. The prosecution alleged that the appellant, D2 to D4 and Li were all acting together in the criminal enterprise.

The defence case

14.The appellant gave evidence.

15.The defence case was one of lack of knowledge. The appellant testified he did not know that the goods he dealt with contained dangerous drugs. According to the appellant, he came to know a person named Ah Chu in January 2008. Since then, he had worked as a vehicle attendant for Ah Chu on 30-odd occasions and he had no reason to think that Ah Chu would be involved in illegal dealings. On 14 February 2009, Ah Chu telephoned the appellant to offer him a casual job of moving goods. Ah Chu had also asked him to find a friend to help, so the appellant asked D2. The remuneration would be $300 each. Instructed by Ah Chu, the appellant received and repacked goods at Kin Fat Lane, and moved them at Granville Circuit into Room C.

16.The appellant denied that he and D2 had struggled with the police officers. Nor had they opened any boxes or bags in Tuen Mun or in Room C. According to the appellant, as they were leaving Room C, the police rushed in. The appellant later felt that his hand had come into contact with something. Then, he saw a police officer holding a white coloured packet. The appellant also denied that he had met D3 and D4 before his arrest.

17.In short, the appellant admitted that he, with D2, had got hold of the boxes and had re-packed them in Tuen Mun. He also accepted that they had moved the boxes into Room C. The sole issue at trial was whether the appellant knew he was dealing with dangerous drugs.

Grounds of appeal

18.Mr Shahmim Khattak, with him Mr Anthony Lai, has advanced 4 grounds of appeal on behalf of the appellant:

(a)  there were material irregularities regarding a breach by the prosecution of the appellant’s right of silence which were not cured by the judge (Ground 1);

(b)  there were material irregularities concerning the way the prosecution dealt with the appellant’s evidence about fabrication of the fluorescent powder evidence (Ground 2);

(c)  the judge failed to give a fair and balanced summing-up, particularly in relation to the drawing of inferences (Ground 3); and

(d)  the judge erred in not discharging the jury after D3 and D4 ceased to attend trial (Ground 4).

Discussion

Ground 1 (the right of silence)

19.The complaint under this ground relates to two aspects of the appellant’s evidence: Ah Chu and the fluorescent powder evidence.

(a)  Ah Chu’s evidence

Parties’ submissions

20.The first complaint is centred on the following part of the prosecution’s cross-examination of the appellant concerning Ah Chu (“the 1^st impugned cross-examination):

“Mr Iu: Let’s move on, then. Did you ever tell the police that it was Mr Chu who got you into all this trouble?

A: No.

Mr Iu: Was today the first time you mentioned Mr Chu to people -- to anybody, particularly in the court of law?

A: Yes.

Mr Iu: Didn’t you think it would help your cause if you were to tell the police earlier?

Mr Yuen: Sorry, my lady, there is a point of law which I wish to…

Court: All right. Members of the jury, can you leave the court.”[4]

…

“(Jury absent)

Mr Yuen: But it seems my learned friend is trying to ask some questions in cross-examination to create the picture that by not giving the police the explanation about Ah Chu, then this account of Ah Chu must not be a credible one. I think that is the sort of effect which my learned friend is trying to establish through this line of question, and so I would object to that.

Mr Iu: I am not trying to challenge his right of silence. Definitely, with…

Court: But I think that you have now established, Mr Iu, have you not, that this is the first time he has mentioned Ah Chu?

Mr Iu: Right.

Court: You are entitled to make whatever comment you wish to…

Mr Iu: Yes, of course. All right. I’ll move on then.

Court: …in your speech.”[5]

21.The prosecution, in its closing speech, suggested at one stage that the evidence about Ah Chu’s involvement was a “recent fabrication”[6] but we will, in a moment, examine the context in which the comment was made.

22.In summing-up, the judge directed the jury as follows:

“… Before dealing with any of [D1’s] testimony, I direct you to ignore the part of the cross-examination which was on whether he ever told the police about the man he referred to as ‘Ah Chu’ and when he first mentioned Ah Chu to anybody.”[7]

23.Mr Khattak submits that since the appellant had exercised his right of silence, his non-disclosure of the defence case, including the involvement of Ah Chu, could not be used against him in any way.

24.As to the judge’s direction that the jury should ignore the part of the cross-examination about the first mentioning of Ah Chu, Mr Khattak, relying on Lee Fuk Hing v HKSAR[8], suggests that this subsequent direction was insufficient.

25.In Lee Fuk Hing, Mortimer NPJ said,

“Here, the judge chose to simply direct the jury to forget and ignore the inadmissible evidence. But, without some explanation that the appellant was under no obligation of any kind to say anything to the police and therefore the suggestion that he ought to have informed them of Tsang Kei was both wrong and wholly unfair, the jury would have difficulty in putting the point, and its effect on the appellant’s credibility, out of mind. No good reason for them to do so was offered. Our conclusion is that there is a danger that the accused’s exercise of his right of silence became a “source of entrapment”. It impinged on the reliability of the appellant’s evidence which was central of his defence. There is every reason to think that the judge did not succeed in correcting his error.”[9]

26.It is therefore contended that the judge should have immediately explained to the jury that the reason why they had to ignore that part of the cross-examination was because of the appellant’s right of silence and that the non-disclosure of Ah Chu did not support the allegation of recent fabrication as the prosecution suggested.

27.Mr Ned Lai, SADPP, with him Mr K H Mak, PP, for the respondent, highlights the fact that the questions concerning Ah Chu stopped before the appellant answered the third one.

28.Relying on HKSAR v Lam Sze Nga[10], where the Court of Final Appeal held that it is quite proper to allow cross-examination of an accused to determine whether he had in effect availed himself of the right of silence, Mr Lai submits that the first two questions merely served that purpose and were permissible in the relevant context.

29.In respect of prosecuting counsel’s closing speech, Mr Lai suggests that counsel was merely urging the jury to find recent fabrication of the appellant’s evidence about Ah Chu in the context of the apparently inconsistent call records. As a result, there was no risk of the jury using the appellant’s silence to draw an adverse inference as to his guilt or credibility, or to reason that the appellant had any obligation to raise the evidence about Ah Chu earlier.

Consideration

30.With respect to Mr Lai, we have difficulty in accepting that the 1^st impugned cross-examination merely served to confirm whether the appellant had exercised his right of silence. Under caution, the appellant had unequivocally said, “I understand. I do not want to say.”[11] It is therefore clear that the appellant did exercise his right of silence on that occasion. Further, the prosecution was acutely aware that there was no mentioning to the police of Ah Chu at any stage prior to trial. In the circumstances, it could not have been a live issue between the parties as to whether the appellant had or had not made any pre-trial disclosure of Ah Chu. Put simply, the appellant had clearly remained silent on the matter about Ah Chu and the prosecution would not need to conduct any questioning to confirm that he had done so.

31.Therefore, contrary to Mr Lai’s submission, we take the view that the 1^st impugned cross-examination did seek to make use of the appellant’s exercise of his right of silence to challenge his credibility, even if counsel did not go so far as to use it to infer guilt. In the circumstances, the cross-examination should not have been allowed. However, the matter did not stop there for the judge, in her summing-up, did direct the jury, in strong terms, to ignore that part of the evidence given by the appellant.

32.In Lee Fuk Hing[12], where the trial judge had himself engaged in an impermissible line of questioning as to whether the appellant had previously told the police about “Tsang Kei” having left the drugs in his vehicle, which was the defence put forward at trial, and where the trial judge, upon hearing counsel’s submissions, had directed the jury in his summing-up to ignore that part of the questions and answers but had otherwise appeared not to have directed the jury on an accused’s right of silence, Mortimer NPJ observed that, “There is every reason to think that the judge did not succeed in correcting his error.”

33.While the trial judge in Lee Fuk Hing did not succeed in correcting his error, we ask whether the judge in the present case did succeed in doing so? This is the question before us. More precisely, when the direction given by the judge to ignore the cross-examination as to when the appellant first mentioned Ah Chu to anybody (“the further direction”) is examined in the context of the judge’s summing-up as a whole, did she successfully correct the error so as to ensure that the appellant had a fair trial?

34.To answer this question, it is important to note that the judge had, at the early stage of the summing-up, said to the jury:

“In so far as on any occasion when any accused chose to remain silent when arrested, cautioned or questioned by the police, whether upon arrest, when interviewed, or at any other time, such silence would have been in the exercise of a right to silence and such silence is not to be taken against the accused concerned in any way whatsoever. Where an accused chooses to speak to the police, then what he says can be taken into account, subject to my directions.”[13] (emphasis added)

35.Then, before dealing with the evidence of the police officers, the judge had explained to the jury the meaning of a “caution”:

“Members of the jury, I will now remind you briefly of the testimony of the two police officers who told you that they had struggled with the 1^st and 2^nd accused, and of the four police officers who arrested and cautioned the four accused.

By ‘caution’, I mean, of course, telling the accused person in effect that he was not obliged to say anything but that anything he chose to say would be taken down in writing and may be given in evidence.”[14]

36.Later, the judge said:

“I now deal with the evidence of DSPC Lok about the 1^st accused, of DSPC Yeung about the 3^rd accused, and DSPC Tsang about the 4^th accused. DSPC Lok testified that he cautioned the 1^st accused upon arrest and that the 1^st accused replied: ‘I understand. I do not want to say.’. DSPC Lok also testified that he conducted two video-recorded interviews of the 1^st accused and that the 1^st accused elected in both interviews not to say anything.

As to the 2^nd accused, you heard that he elected to remain silent when the police sought to interview him on videotape twice.

DSPC Yeung testified that he cautioned the 3^rd accused upon arrest and that the 3^rd accused replied that he knew nothing at all. DSPC Yeung also testified that he conducted two video-recorded interviews of the 3^rd accused and that the 3^rd accused exercised his right to silence in both interviews.

…

DSPC Tsang testified that he cautioned the 4^th accused upon arrest and that the 4^th accused replied that it had nothing to do with him.

…

Members of the jury, in respect of all the accused, I remind you of my directions on the right to silence. Silence is not to be taken against any accused in any way whatsoever. They have a right to silence.”[15] (emphasis added)

37.We pause here to observe that the importance of the right of silence and the fact that the exercise of that right could not be used in any way against an accused were clearly brought home to the jury through the above passages. In particular, the judge had emphasised to the jury that “In so far as on any occasion when any accused chose to remain silent when arrested, … or at any other time, such silence would have been in the exercise of a right to silence and such silence is not to be taken against the accused concerned in any way whatsoever”; and “Silence is not to be taken against any accused in any way whatsoever.”

38.To continue and to recapitulate, when the judge turned to the defence evidence, she immediately gave the further direction which we repeat below:

“The 1^st accused gave evidence as DW1. Before dealing with any of his testimony, I direct you to ignore the part of the cross-examination which was on whether he ever told the police about the man he referred to as ‘Ah Chu’ and when he first mentioned Ah Chu to anybody.”[16]

39.As noted above, having been repeatedly directed, the jury would have been left in no doubt that an accused has a right to remain silent and that, whenever he does so, no adverse inference could be drawn against him. This provides an important backdrop to the further direction given by the judge. Relevantly, the jury must have understood that they were being directed by the judge to ignore the cross-examination as to when Ah Chu was first mentioned because an accused has the right to remain silent at any time and because such silence is not to be taken against him in any way. In our view, the reasoning is so obvious and logical that no juror would have thought otherwise.

40.We would add that, unlike what took place in Lee Fuk Hing where the trial judge himself appeared to have pressed the appellant to provide an explanation, which the appellant did, as to why he did not tell the police earlier about “Tsang Kei”, the 1^st impugned cross-examination only comprised two questions as to whether the appellant had told the police or anybody about Ah Chu to which the appellant simply answered “No”. Prosecuting counsel was stopped when seeking an answer to the further question of whether the appellant considered that it would help his cause if he were to tell the police.

41.Therefore, in realistic terms, we do not think the jury would have reasoned that the appellant had to explain why he did not tell the police earlier about Ah Chu’s alleged involvement. Moreover, with the further direction, any possible effect that the 1^st impugned cross-examination might have had on the jury would have been completely erased and would have been put to rest because the jury were bound to follow the judge’s direction to ignore that part of the appellant’s evidence.

42.In respect of prosecuting counsel’s comment of “recent fabrication” when addressing the jury in his closing speech, it is necessary to set out in full the relevant part of the speech giving rise to the comment:

“In effect, you heard his evidence. You have to assess his evidence. He says, ‘I didn’t take part. I didn’t know. Secondly, it was Ah Chu who instructed me to [do] all this, one thing and the other.’ You remember all that evidence? So you’ve got to consider whether he was telling you the truth, or you’ve got to consider whether his evidence raised any doubt in your mind as to his knowledge. Because at the end of the day, you ask yourself, ‘I’ve heard his evidence. I’ve got the fingerprint evidence. I’ve got the fingernail contamination. What do I make of those?’

So the first question you ask yourself, ‘Do I accept that it was Ah Chu who instructed him to do this and the other, who he met? He gave you an account of the events that afternoon. So you ask yourself, ‘Was Ah Chu really involved? Was it Li who was involved, not Ah Chu?’ Again, if you look at the contacts between the 2^nd defendant and Ah Chu -- 2^nd defendant and Li, you can readily come to the conclusion that Ah Chu was not really involved. There are two matters which stand out in his evidence about Ah Chu.

The first is he said Ah Chu called him at midday. You saw the telephone records. It is not in the mobile phone record, so he said he called at his home? Why suddenly call his home when all the time his phone, his mobile phone, was in operation, actively in operation? The second matter which stands out is there was no telephone contact at all between him and Ah Chu. From the time Ah Chu departed -- remember, Ah Chu departed when he was in a taxi, when the 1^st and 2^nd defendant got back to Kin Fat Lane in a taxi? Remember Ah Chu travelled on with the taxi. Let’s say it’s about 7 o’clock or shortly before 7.23.

But from 7.23 onwards, in D1’s telephone record, there is no contact with Ah Chu. Why was that? Just think about it. If Ah Chu was the person who gave him the job, gave the keys to him, then to take the goods to Room C, wouldn’t Ah Chu be interested? Wouldn’t Ah Chu call him during this time? Would not the 1^st defendant phone Ah Chu to tell him ‘I’m on my way’? Or ‘Jacky Cheung’s van has arrived. I’ve done the repacking. We are on our way. Everything is okay.’ Or on arrival at Room C, you would have expected him, D1, to call Ah Chu, but instead, you saw the telephone -- you saw the telephone contact.

You have the 2^nd defendant calling Li, when they were in C. So you would -- and the only call that came from Ah Chu was much later, 9.50-something, in D1’s phone. Remember that evidence. It’s neither here or there the fact that Ah Chu called him much, much later. It’s during the critical period of delivery, there was no contact. Why was that? So that would suggest, in my respectful submission, that that evidence, that piece of evidence about Ah Chu’s involvement is a recent fabrication. As I pointed out to him, it was the first time he told anybody about it.”[17]

43.Although prosecuting counsel did mention recent fabrication and say at the end, “As I pointed out to him, it was the first time he told anybody about it.”, when read in context, the comment of “recent fabrication” was not proffered on the basis of Ah Chu being mentioned the first time at trial, but essentially on the basis of the inconsistent call records if Ah Chu was involved as suggested by the appellant. In any event, since the judge had directed the jury to ignore that part of the appellant’s evidence, counsel’s reference to “the first time” would have been neutralised and not taken into account by the jury.

44.We wish to highlight what Mortimer NPJ went on to say in Lee Fuk Hing as to what a trial judge should do when an error of this type occurs:

“60. When an error is made the judge must decide whether he can correct the error in such a way that the trial can proceed fairly. Sometimes the less said the better. On other occasions careful explanation may be necessary but it has to be borne in mid that lengthy directions may highlight the problem rather than diminish it. The judge will usually seek the assistance of counsel upon the nature of the directions he proposes.’[18]

45.Nothing is set in stone. In the present case, what the judge did was not only to repeatedly emphasise to the jury the importance, at any stage, of the right of silence, she also directed the jury, in emphatic terms, to ignore the 1^st impugned cross-examination. In the circumstances and having examined the summing-up as a whole, we are satisfied that the judge did successfully rectify the error and that no unfairness was caused to the appellant.

(b)  The fluorescent powder evidence

Parties’ submissions

46.This complaint centres on the following exchanges (“the 2^nd impugned cross-examination”):

“Q: Secondly, there are no contact -- no contact, no evidence of contact with florescent powder from your hand? What was found was only the traces of florescent powder was found from your fingernail clippings? You follow that so far?

A: Yes.

Q: That was the gist, is it not, witness, that you had contact -- you had opened the only packet that had been opened, K20 -- or 20K, you had opened that packet so that your fingernails would have traces of florescent powder?

A: I did not.

Q: You see, you see, the evidence that you just described about coming into contact with a white paper bag doesn’t explain the presence of florescent powder in your fingernails? Do you understand?

A: I understand.

Q: So how do you explain the presence of florescent powder in your nails?

A: No.

Q: You can’t explain it?

COURT: Sorry, can you speak up? We can’t hear you.

A: I just gave my own explanation on that.

Q: Your hand coming into contact with the bag?

A: I do not know how he caused that stuff to come onto my hand.

Q: So, again, 503 would be telling lies about that? He would be a liar?

A: I dare not to say that.

Q: Well, he fabricated, he tried to fabricate contact evidence against you?

A: Yes.

Q: In the presence of his superior officers, including the chief inspector? Literally in front of everybody?

A: I do not know whether that CIP was present or not, but there were a lot of people inside the room at that time.

Q: That’s right. I would have thought that if it were to be done, it would have been done discretely.

COURT: What is your question? Is that a comment or what?

Q: Can you think of any reason why you would be singled out to be fabricated against and not your friend?

A: I do not know why he did that.

Q: I put it to you nothing of that sort ever happened?

A: I disagree.

Q: If it had, you would have told your lawyer and made a complaint immediately?

A: At that time, I did not know what’s the florescent powder, and I did not know by doing that it caused me to have some florescent powder on me.

Q: Because up to that time, even when you saw your lawyer, you didn’t know that dummies had been used, those dummies had been dusted?

A: I did not know what was inside. I did not open the boxes.

Q: Do you accept that you had plenty -- you had seen your lawyers, you had plenty of opportunities to complain through your lawyer to either the police or to court or to CAPO or to all relevant authorities, if anybody had done anything improper against you? But you had done none of those?

A: That’s right.”[19]

47.Mr Khattak contends that the prosecution had infringed the appellant’s right of silence by asking him the above questions and by highlighting the appellant’s lack of complaint.

48.Mr Lai, on the other hand, suggests that the 2^nd impugned cross-examination either did not engage the appellant’s right of silence or that the questions were permissible in order to confirm whether the appellant had availed himself of the right. It is further contended that when the summing-up is viewed as a whole, there was no risk of any unfairness arising from the jury using the appellant’s silence to draw an adverse inference of guilt or in respect of his credibility.

Consideration

49.In addressing this complaint, it may be helpful to revisit what was said by the majority (Mason CJ, Deane, Toohey and McHugh JJ) at the very beginning of the judgment in Petty & Maiden v R[20], which judgment was cited with approval in Lee Fuk Hing:

“ A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. …

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.” (emphasis added)

50.It is also necessary, in our view, to bear in mind that the appellant’s defence at trial was one of lack of knowledge: it was not a case of the police moving the drugs to Room C and framing-up the appellant. The defence run in the present case is therefore readily distinguishable from that in HKSAR v Lam Sze Nga[21] where the defendant’s case was that she had never made any admission and also that the drugs were planted by the police.

51.When setting out the background in Lam Sze Nga, Sir Noel Power NPJ, referred to the appeal proceedings:

“14. The Court of Appeal, inter alia, made the following findings:

‘Regarding Deputy Judge Poon’s direction to the jury, we do not think that it was only concerned with the confession of the Appellant and not her substantial defence. Looking at the direction as a whole, Deputy Judge Poon was referring to the Appellant’s allegation and defence, not merely her confession. The Appellant alleged that the police had planted the drug on her. In her direction, Deputy Judge Poon mentioned “the police ‘framed me’. None of the dangerous drug was mine. It was not found on the premises”. This certainly touched upon the substantial defence of the appellant’

…

‘On one hand, she told the jury the Appellant had not disclosed her defence earlier, namely the police planted the drug on her. On the other hand, she did not remind the jury the Appellant had the right to remain silent and that they could not draw any adverse inference against her or find her guilty by virtue of her failure to disclose her defence earlier. Deputy Judge Poon also failed to remind the jury that the direction she gave was only concerned with the confession of the Appellant.’

15. Finally the court said:

‘Deputy Judge Poon told the jury that they have to decide on their own whether or not to accept the Appellant’s explanation. We are of the view that this would mislead the jury into thinking that the Appellant was under a duty to explain why she did not disclose her substantial defence earlier.’”[22] (emphasis added)

52.As to the certified point of law,

“17. …

‘Where an accused has made out of court statements which are ruled admissible but who maintains at trial that they were made as a result of improper police conduct, does a trial judge err in law in summing up to the jury on her failure to complain at the earliest available opportunity to her lawyer or to the authorities, without explaining to the jury the principles of the right of silence?’”

Sir Noel Power NPJ said:

“32. I would answer the certified point of law in the following way. A right of silence claimed by the defendant but disputed by the prosecution becomes an issue for the jury’s decision and a trial judge would err in law if he failed to direct the jury as to the effect of the exercise of that right if they were to decide that issue in the defendant’s favour.” [23]

53.Following the Court of Final Appeal’s judgment in Lam Sze Nga, a retrial took place and the defendant was re-convicted. She again brought an appeal before the Court of Appeal, where Yuen JA said on behalf of the Court (HKSAR v Lam Sze Nga (No. 2))[24]:

“46. In the context of the argument before the Court of Final Appeal (which focused on the confession statements), the order of approach would be as follows:

(1) Did the police coerce her into making the statements?

(2) If Yes, then the statements were not voluntary and (since one could not involuntarily waive a right) she had maintained her right of silence – in which case her evidence in cross-examination on the delay in complaining should not be taken into account and adverse inferences could not be drawn.

(3) If No (and before giving this answer, the jury would have been entitled to take into account for this limited use evidence on the delay in complaint), then the statements were voluntary and she had thereby waived her right of silence. (Presumably in that situation, adverse inferences could be drawn from all the evidence).

In other words, where questions on the delay in complaining would not have been admissible for the Guilt Use or the Credibility Use, they would be admissible for what, for want of a better term, one might call ‘the Availment Use’.” (emphasis added)

54.A few observations might be made in respect of the above authorities:

(1)  the right of silence[25], insofar as confessional statements are concerned, is the right of an accused “to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played”;

(2)  the right of silence is not only concerned with the confession of an accused but also the pre-trial non-disclosure of the defence case; and

(3)  where the right of silence is said to have been exercised by an accused but disputed by the prosecution, cross-examination concerning the lack of complaint or the delay in making a complaint about improper police conduct is permissible but the judge has to give proper directions to the jury about the right of silence.

55.In light of the foregoing, there does not appear to be a free-standing “right of no-complaint” unrelated to the exercise of an accused’s right of silence.

56.We have referred to these authorities because Mr Khattak places reliance on sub-paragraph (2) of Lam Sze Nga (No. 2) (cited above) in suggesting that the judge erred in allowing the 2^nd impugned cross-examination, notwithstanding:

(1)  it was common ground in the present case that the appellant chose to remain silent;

(2)  there was, in the circumstances, no verbal admission or written confessional statement which the prosecution sought to adduce before the jury but which the appellant said was obtained as a result of improper police conduct;

(3)  the appellant’s defence case was one of lack of knowledge, not one of police fabrication; and

(4)  this was not a case in which the alleged police misconduct was inextricably linked with the contested confession and the defence of planting.

57.It should also be remembered that the fluorescent powder on the appellant’s nail clippings and the appellant’s fingerprints on one of the paper boxes as well as on the adhesive side of a tape were detailed in the admitted facts. Further, the appellant, it would appear, had not sought to deal with the fingerprint evidence when he testified in examination-in-chief, but just the fluorescent powder evidence, and doing so in a rather uncertain way by saying that after he had been handcuffed, he felt that his hand had come into contact with something (not that his hand had actually touched the dummy bag) and he later saw PW9 (PC 503) holding a white coloured packet. The appellant, however, then said that he did not pay attention to what PW9 was doing.

58.Moreover, in the 2^nd impugned cross-examination, when asked if PW9 was a liar, the appellant initially said, “I dare not to say that”, giving the impression that he was not actually alleging fabrication. This is perhaps understandable because the appellant had previous convictions, two dishonesty-related and four drug-related, including possession of drugs and possession of equipment for smoking drugs. He would have no doubt been concerned as to a possible application by the prosecution to disclose his records if he impugned the character of PW9. So, it was only when prosecuting counsel followed up on his answer and asked if PW9 had fabricated the evidence did the appellant then answer in the affirmative. What followed, as recapped above, were the questions about PW9 fabricating the evidence in front of everybody; PW9 singling out the appellant for the fabrication; and the appellant’s lack of complaint.

59.Therefore, when examined in context, the suggested fabrication of the fluorescent powder evidence was effectively the appellant’s attempt to deal with one aspect of the prosecution evidence: it did not relate to his defence, in general terms, about his lack of knowledge; nor, in more particular terms, about the alleged involvement of Ah Chu, for even if he did touch the bag, his defence that it was a bag arranged to be conveyed there by Ah Chu, the contents of which he had no knowledge, remained intact.

60.Adopting the words in Petty & Maiden, this matter was not “about the occurrence of an offence, the identity of the participants and the roles which they played”. Instead, the 2^nd impugned cross-examination only related to one piece of the undisputed evidence at trial which the appellant sought to address. We find that it did not touch upon the appellant’s right of silence and accordingly, the cross-examination was permissible. Similar to testing whether an accused’s suggestion of feeling unwell might be true by asking if he had consulted a doctor, the appellant’s suggestion that the fluorescent powder evidence might have been fabricated could be tested in the present case by asking if the appellant had made a complaint as to the suggested police impropriety. As noted above, it is not our understanding that there is an independent and separate “right of no complaint” of an accused which could not be touched upon in cross-examination irrespective of the context in which such a lack of complaint arises.

61.If, contrary to our finding, the 2^nd impugned cross-examination did touch upon the appellant’s right of silence, then we are of the view that given the judge’s repeated and emphatic reminders concerning the right of silence, in particular, an accused’s entitlement to exercise that right on any occasion and at any time, the jury would not have taken the appellant’s lack of complaint (right of silence if it is so) against him and would not, given the repeated directions that such silence could not be used against an accused in any way, have engaged in an impermissible line of reasoning, whether for the “guilt use” or the “credibility use”.

62.Accordingly, we reject this ground.

Ground 2 (the police evidence)

Parties’ submissions

63.As can be seen, in the course of the 2^nd impugned cross-examination, prosecuting counsel had remarked, “I would have thought that if it were to be done, it would have been done discretely.” He then made the following comments when addressing the jury in his closing speech:

“Do you think that an officer like him, 503, would do that in the presence of everybody? In front of a bunch of police officers there, with the chief inspector, very senior inspector? Would he have done that? And if he did that, why did he not do that to the 2^nd defendant as well? Why single him out? Don’t forget, by this time they were caught, as it were, in laymen’s terms, they were caught red-handed with the dummy powder. They’re in the flat. They have been taking the goods to the flat. Is there a need to plant - to frame him up, let’s say, the contact evidence, the fingernail evidence against him?

…

So they arrested him，cautioned him，and then the defendant said, ‘I don’t want to say anything’ ，as he was entitled to. Then 10 minutes later, he was already taken away. So would that sound as if he was a person, 503, a police officer who went to this extreme of trying to plant evidence against him? You may think not….”[26]

64.Mr Khattak, citing HKSAR v Law Hoi Fu[27], HKSAR v Chung Cheuk Pang[28] and HKSAR v Man Shun Tai[29], particularly what Yeung VP said in Man Shun Tai, namely:

“30. The message conveyed by the [trial] judge is clear. Its meaning is that there was no incentive for the police officers to frame up the applicant, nor were they unscrupulous and foolish enough to do so. The comment made by the [trial] judge indicates that he thought that the police officers’ evidence was more credible than the evidence of other witnesses.”

submits that it is clearly impermissible for the tribunal of fact to find a prosecution witness more credible because he is a police officer. He argues the prosecution did exactly that in the present case because, through the above cross-examination and the speech, the prosecution was seeking to convey to the jury that police officers were more credible than other witnesses, thereby rendering the trial unfair to the appellant.

65.Reliance is also placed on HKSAR v Silva Barba[30]to suggest that where there is a danger that the jury might have been misled by the prosecution to regard officers from the law enforcement agencies as being less likely to fabricate evidence or as being more credible, the judge should give a direction to cure the misconception. It is submitted that the judge, unfortunately, did not do so in the present case.

66.Mr Khattak further suggests that the irregularity surrounding this issue is exacerbated by another impermissible comment of prosecuting counsel in his closing speech when he said, “But you may think that pressing that against the bag -- pressing the bag against his hand doesn’t – would result in fingerprints, but there is no fingerprints.”[31] Mr Khattak submits that whether a lack of fingerprint evidence supports one party’s case or is a neutral factor would depend on the context.[32] The judge, it is said, erred in not correcting the impression.

67.On the other hand, Mr Lai suggests that prosecuting counsel’s closing speech just served to remind the jury of the admitted facts about the dusting procedure in order to provide a context for the jury to consider if the contamination of the appellant’s fingernails could have come about as suggested by the appellant.[33] Mr Lai further contends that when taking into account the context of the relevant part of prosecuting counsel’s closing speech, the comment, “Do you think that an officer like him, 503, would do that in the presence of everybody?”[34] was simply an invitation to the jury to consider the appellant’s allegation alongside his other evidence and the same could be said of the comment, “I would have thought that if it were to be done, it would have been done discretely.”[35]

68.Mr Lai emphasises that the prosecution never urged the jury to believe PW9 because he was a police officer and never suggested that he was more credible and reliable than the appellant.

69.With regard to the fingerprint matter, the respondent maintains that the comment was properly made before the jury.

Consideration

70.We can deal with this ground shortly for we do not consider that the prosecution invited the jury to find PW9 more credible or less likely to fabricate evidence on the basis of his status as a police officer. We accept Mr Lai’s submissions that the cross-examination and the closing speech simply centred on the illogicality of PW9 fabricating the evidence in the circumstances described by the appellant: in the presence of D2 and other police officers, including his seniors; singling-out the appellant; in the face of the indisputable fact that the appellant and D2 had carried the boxes from Tuen Mun to Room C; and PW9’s frank acceptance that the appellant had exercised his right of silence under caution.

71.Moreover, on a proper reading of the part of prosecuting counsel’s closing speech now under attack in this ground[36], we note that prosecuting counsel had, before he dealt with the relevant circumstances surrounding the arrest of the appellant, actually asked the jury to “examine the evidence of 503 very carefully, because he was the officer who arrested – who arrested – the 1^st defendant”[37]. The analysis and the comments which followed should therefore be viewed in this context, not in a context in which the prosecution had openly suggested that police officers were, by their positions, more credible than other witnesses, which was not the case here.

72.In any event, in Silva Barba[38], which is relied on by Mr Khattak, Lunn VP observed:

“91. …the Judge did direct the jury to treat all witnesses equally in their assessment of credibility. We are satisfied that not only was the direction appropriate but also it cured any risk of the prejudice to the applicant and prohibited the impermissible line of reasoning described above.”

73.In this case, the judge told the jury at the early stage of the summing-up:

“You are entitled to accept part of what a witness says while rejecting another part of what that witness says; but if you find a prosecution witness unreliable on anything that matters, then you must of course be extra careful before accepting anything else which matters said by that witness against an accused.”[39] (emphasis added)

74.Since the judge had singled out prosecution witnesses in the above direction and had asked the jury to be “extra careful”, any suggestion that the jury might have been misled into believing that police witnesses were more credible or less likely to fabricate evidence could readily be dispelled.

75.We reject this ground.

Ground 3 (unfair and unbalanced summing-up)

Parties’ submissions

76.The appellant relies on Nguyen Anh Nga v HKSAR[40]in which the Court of Final Appeal observed that directions on inferential reasoning are to include “a summary of the defence case as to the disputed evidence, the identification of evidence which may rebut the inference of guilt, and the disputed inferences” to suggest that the judge erred in not having done so in this case.

77.The complaint, more particularly, is that while the judge summarised the prosecution case,[41] she did not direct the jury about the drawing of inferences from the defence perspective, but simply stated that, “… you will of course remember and consider the testimony of the 1^st and 3^rd accused, each saying that he is innocent” and “You will remember and consider what was said by his counsel on behalf of each accused …”[42] (“the impugned direction”)

78.Mr Khattak contends that, by doing so, the judge had also failed to follow the Specimen Directions in Jury Trials, issued in September 2013 by the Hong Kong Judicial Institute, on circumstantial or inferential evidence;[43] and in reliance on HKSAR v Wong Yu Wing[44], Mr Khattak suggests that the judge’s failure rendered the summing-up unbalanced.

79.In addition, it is submitted that the unfairness of the summing-up was further exacerbated by the following:

(a)  the judge did not remind the jury of the criticisms by defence counsel in their speeches concerning police credibility but instead, suggested that the inconsistencies may “simply go to show that the police had not put their heads together to come up with a story”[45]; and

(b)  although defence counsel for D3 and D4 had suggested that Li was an informant[46], the judge failed to follow HKSAR v Chung Tang Ping[47], where it was said that even if “police information” was brought up by the defence, the judge should still explain to the jury that the matter is irrelevant and could not be used against any defendants. Instead, the judge merely gave a general direction that the jury should try the case on the evidence and not speculate[48], which was insufficient.

80.The respondent, relying on HKSAR v Jitsatta Chosita[49], in which it was said that to maintain a balance in the summing-up, the trial judge is not required to repeat every point made by defence counsel in the closing speech, suggests that there was nothing wrong with the present summing-up.

81.In particular, it is submitted that the judge had highlighted in the course of her summing-up the arguments and the following evidence in favour of and raised by the defence: (a) no struggle or resistance by the appellant or D2[50]; (b) the appellant’s version that PW9 had pressed one packet of white powder on the appellant’s hand[51]; (c) the police had torn off some of the adhesive tapes when searching the boxes[52]; (d) discrepancies in the police evidence as to the search[53]; (e) the defence suggestion that those who opened the boxes in Room C were not guiltily involved[54]; and (f) the appellant’s evidence-in-chief in detail.[55]

82.Mr Lai submits that this was the context in which the judge gave the impugned direction which is said to be unfair but which, when examined carefully, was entirely proper.

83.In respect of Mr Khattak’s complaint that the judge gave the jury the impression that discrepancies in police evidence were not material, Mr Lai argues that, firstly, the judge had directed the jury that they “should” take into account any “discrepancy between what different witnesses on the same side say about the same matter” when considering those witnesses' reliability[56] and invited them to carefully bear in mind what counsel had said about the discrepancy, giving it such weight as they saw fit[57]. Secondly, the judge had directed the jury to consider the “discrepancies in the police evidence” to see if they might affect any prosecution evidence in all the circumstances[58].

84.As regards Mr Khattak’s complaint about the insufficient direction concerning Li being an informant, Mr Lai submits that counsel for D3 and D4 simply made the suggestion in order to persuade the jury that Li, who owed money to D3 and D4, might have invited D3 and D4 to Tsim Sha Tsui “to get rid of D3 and D4”[59].

85.It is therefore contended that the judge’s direction on Li was correct and adequate[60].

86.Accordingly, Mr Lai argues that the summing-up as a whole was fair and balanced and that this ground has no merit.

Consideration

87.In the course of argument and when asked by this Court, Mr Khattak confirmed that his contention was this: for a balanced summing-up and for inferential reasoning, the judge should have specifically dealt with the arguments of the prosecution and the defence, one for one, insofar as evidence giving rise to inferences was concerned. With respect, we do not accept this argument.

88.It is pertinent to note that nothing similar was suggested by the Court of Final Appeal in Nguyen Anh Nga on which Mr Khattak places reliance. Bokhary NPJ said:

“57. Where inferential reasoning is concerned, by far the most helpful reference to the circumstances of the case would be one made in the course of, and as part of, the directions on such reasoning. Whatever the form or forms in which a judge sees fit to direct the jury on inferential reasoning, and however many times such directions are repeated in the course of the summing-up, it always remains important that there be at least one instance in which the directions on such reasoning are specifically set in the context of the evidence and the arguments thereon.”[61]

89.In the present case, the directions on inferences were structured in this way - firstly, the judge gave an overall picture of the prosecution case, saying:

“In broad terms, it is the prosecution’s case that each of the four accused attempted to traffic in the dangerous drugs mentioned in the count by dealing with the dummy drugs, and that having regard to the quantity of such drugs mentioned in the count, their value and the way they were concealed in the cargo of cocoa powder, the only reasonable inferences are that they were meant, eventually, to be sold for profit in the drug trade, and that the person who dealt with the dummy drugs believed them to be dangerous drugs and were attempting to traffic in the dangerous drugs as charged in this case.”[62]

after which she then introduced the concept of inferences and gave her directions, illustrated with examples, as to how to draw an inference and to remind the jury that no adverse inference could be drawn against an accused unless it was the only reasonable inference.[63]

90.Thereafter, the judge continued with other directions before dealing with the evidence adduced by the prosecution. When doing so, as pointed out by Mr Lai, the judge had not only repeated the evidence-in-chief of the prosecution witnesses but also the cross-examination and suggestions put by defence counsel, emphasising that what the appellant and D2 did would be in clear view of anybody in Kin Fat Lane and that anyone guiltily involved should know where the drugs would have been hidden - points made by the appellant’s trial counsel (Mr Yuen) in his closing speech.

91.When turning to the defence evidence, the judge repeated in detail the appellant’s evidence-in-chief which took up 4½ pages of transcript. The appellant’s evidence in cross-examination by the prosecution and the other accused was summarised in less than 1½ pages.

92.The judge then reminded the jury that the case against each accused should be considered separately, in the course of which she said:

“This case may be summarised as follows. A very valuable cargo of dangerous drugs having a street value of approximately $9.1 million was imported into Hong Kong concealed in a cargo of cocoa. The only reasonable inference, the prosecution says, is that these dangerous drugs were imported into Hong Kong by way of drug trafficking.”[64]

93.Finally, the judge concluded by saying:

“The prosecution’s case is that the only reasonable inference is that all four accused were acting together. That is based partly on the broad circumstances of what they were all observed to have done. Additionally, it is also based on telephone contact. Together with the evidence of the 1^st and 2^nd accused being together on 16 February 2009, the evidence of the 3^rd and 4^th accused being together that day and the evidence of Li Shing-hin going up to the 3^rd and 4^th accused at Tsim Sha Tsui that day, you have the telephone records which show that, on that day, there were eight telephone calls from a telephone of the 2^nd accused to telephone of Li’s, there were 13 telephone calls from a telephone of the 3^rd accused to telephone of Li’s, and 25 calls from a telephone of Li’s to a telephone of the 2^nd accused’s.

As for defence evidence, you will of course remember and consider the testimony of the 1^st and 3^rd accused, each saying that he is innocent. There is the testimony of the 2^nd accused’s father whose testimony you will remember and will consider for what you think it is worth, and you will remember and consider the speeches of Mr Yuen for the 1^st and 2^nd accused and Mr McGowan for the 3^rd and 4^th accused. You will remember and consider everything each defence counsel said and how it was put, attacking the prosecution testimony, urging you to acquit and so on. You will remember and consider what was said by his counsel on behalf of each accused and you will of course bear in mind the burden and standard of proof.

…

It is the prosecution’s case, disputed by each of the accused, that you should feel sure on the whole of the evidence that the only reasonable inference is that each accused is guilty as charged. On the other hand, it is defence counsel’s case that looking at all the circumstances, the prosecution has not discharged that burden.

You take into account all the evidence and the submissions both for the prosecution and for each of the accused. You follow my directions on the law and you use your common sense. Doing all of that, you come to your decision on your verdict in respect of each accused.”[65]

94.In our view, taking the impugned direction in isolation and out of context without regard to the judge’s structured approach and without looking at the summing-up as a whole did not do justice to the judge’s directions on inferential reasoning, particularly when the judge had repeated the appellant’s evidence in detail and had, in the course of summarising the prosecution evidence, referred to Mr Yuen’s criticisms and contentions. It was in these circumstances that the judge concluded by reminding the jury that they had to “consider everything each defence counsel said and how it was put, attacking the prosecution testimony, urging you to acquit and so on”[66].

95.Therefore, we could not see how the judge had failed, in terms of her directions on inferences, to “specifically set [the directions] in the context of the evidence and the arguments thereon.” It is also pertinent to note that Bokhary NPJ had observed in Nguyen Anh Nga: “… A trial judge’s assessment of how jurors ought to be directed in any given case is not lightly to be disturbed. …”[67].

96.Moreover, we would add that no meaningful comparison can be made between the present case and Nguyen Anh Nga or Wong Yu Wing. In both those cases, the defence position was that the undisputed evidence relied on by the prosecution would not only admit one reasonable inference as suggested but instead, could be the basis to draw favourable inferences for the appellant: for instance, “the reaction and non-reaction” of the appellant in Nguyen Anh Nga was said to be equally consistent, if not more so, with the defence case that the appellant believed that United States banknotes were concealed in her suitcase; similarly, the empty plastic bags, the electronic scale, and the variety of drugs seized in Wong Yu Wing were said to support the defence case of simple possession rather than possession for trafficking. In the present case, however, defence counsel did not suggest any rival contention based on the undisputed facts but would appear to have accepted the prosecution’s contention on inferential reasoning because other than emphasising that the appellant handled the boxes openly and did not behave in any suspicious manner, he said that, “… generally speaking, those who distance themselves from the boxes are those who know or believe there are dangerous drugs in the boxes …”[68], a position urged upon the jury by the prosecution.

97.It is not surprising for Mr Yuen to have adopted that stance because the main theme of his closing speech was not so much about there being an equally possible innocuous inference on the undisputed facts per se, but rather, if the appellant’s contested evidence and the involvement of the “clever persons” (a term used in Mr Yuen’s speech) were taken into account, then the prosecution’s suggestion that the appellant must have known about the drugs was not the only reasonable inference. When outlining his submission on this, Mr Yuen said:

“I would say there are three points to be considered here; firstly, applying the test on the evidence, are D1 and D2 such clever person? Secondly, if D1 and D2 are not such clever persons, what inferences could be drawn as to their state of mind, whether they had the guilty mind in question? And the third question, more important one, on the evidence adduced, were there such clever person, and if so, who were they, what were the relationship between this clever person and D1 and D2? And whether the existence of such clever persons would shed some light on the main issue, that is, whether D1 and D2 had the guilty mind.”[69]

98.In the course of making good his point, Mr Yuen urged the jury to consider, inter alia, the following:

(a)  “And I would say such a route from the airport to Tuen Mun, and the repackaging, this arrangement only benefited those people, those clever people behind the scene.”[70]

(b)  “And if nothing happened at Tuen Mun, those clever persons behind the scene could go on seeing what would happen to D1 and D2 upon their moving the boxes to the 3^rd floor.”[71]

(c)  “In fact, there is every, I would say – this is quite important – I would say there is every reason for those clever person[s] behind the scene not to let D1 and D2 know that dangerous drugs of any kind might be, or were, in the boxes for a number of reason as common sense would suggest.”[72]; and

(d)  “So the lesser the number of people knowing about the dangerous drugs involvement, the better and safer it would be for the clever persons behind, and it would be ideal if D1 and D2 just perceive and got the job as an ordinary transportation work, nothing else. And after all, D1 had – according to D1’s evidence, he had received over 30 transportation orders from Ah Chu prior to 14 February, year 2009.”[73]

99.As can be seen from the above quoted remarks, the anchor of Mr Yuen’s submission was not the undisputed primary facts but the disputed existence and involvement of Ah Chu in all these matters, which evidence had been repeated in detail by the judge, and which evidence, if accepted as might be true by the jury, would have caused them to acquit the appellant. The prosecution had never suggested to the jury that even if Ah Chu was so involved as described by the appellant, the evidence adduced would still be sufficient for them to draw the only reasonable inference that the appellant had the knowledge of the drugs.

100.We therefore do not accept that the judge had unfairly directed the jury in relation to inferential reasoning.

101.As regards Mr Khattak’s two other complaints concerning discrepancies in the police evidence and the insufficient direction on the informant, we need say no more other than to express our agreement with Mr Lai’s submissions on these matters.

102.Lest one might take an over-analytical approach when addressing matters such as the present complaint, we will reiterate what we recently said in HKSAR v Wu Chi Ki[74], “… using the words in HKSAR v Punsalany Elmer Umali[75] … when assessing whether a summing-up is unbalanced and unfair, ‘Ultimately, it is a question of context, degree and “feel” of the summing-up as a whole’. … regard should also be had to counsel’s closing speeches when considering whether the summing-up is unbalanced.” In the present case, having done so, we are of the view that the judge’s summing-up was both balanced and fair.

103.We reject this ground.

Ground 4 (Failure to discharge the jury)

Parties’ submissions

104.Originally, all the four accused were before the judge and the jury. However, on 19 April 2010, D3 and D4 failed to attend the trial. The case was then adjourned and on the following day, counsel for D3 and D4 applied to discharge the jury from returning a verdict on them[76] but the judge ruled:[77]

“In all the circumstances, the only reasonable and realistic view of the matter is that the 3^rd and 4^th accused have each voluntarily absented himself from the trial, and have each, therefore, waived his right to be present.

It is in the public interest that the trial proceed against each of them, unless it would not be a fair trial for him. I am satisfied that there can be a fair trial for each of them despite his absence. The trial will, I rule, proceed against all four accused.”

105.Mr Khattak now complains that the judge erred in not inviting submissions from Mr Yuen before making the ruling. It is further suggested that the judge might not have fully considered the impact on the two remaining accused by ordering the trial to continue.[78]

106.In particular, Mr Khattak suggests that the fact of the sudden disappearance of D3 and D4 must have aroused speculation amongst the jurors, leading to an adverse inference of guilt. Since the prosecution case was that all the four accused had worked together, it would be difficult for the jury, who were laypersons, to put the absence of D3 and D4 (a prejudicial matter) out of their minds when considering the appellant’s verdict and they might find the appellant guilty because of his co-accused’s absence. Mr Khattak submits that, in order to avoid such a risk, the judge should have discharged the jury.

107.On the other hand, Mr Lai submits that this ground is not about any suggested incompetence of trial counsel in respect of a failure to address the judge about the absence of D3 and D4, which matter would legitimately be within trial counsel’s discretion as to how best to deal with it. Mr Lai further submits that the judge had seized the first reasonable opportunity to explain to the jury the absence of D3 and D4 and had instructed them not to speculate, nor harbour any prejudice in their consideration of the verdict in any way.[79]

108.In her summing-up, the judge again directed the jury not to speculate as to why D3 and D4 were absent and instructed the jury not to use their absence against D3 and D4, or D1 and D2, when they considered their verdicts[80]. In particular, the judge had asked the jury not to assume that the absence of D3 and D4 in any way established that either or both of them were guilty.[81]

109.Mr Lai argues that the above, coupled with the judge’s directions on separate treatments for the different accused[82], would have ensured that there was not the risk suggested by Mr Khattak, and he cites R v Mark Lilley & Others[83] in support of his position.

Consideration

110.We can deal with this ground shortly for we see no merit in it. As submitted by Mr Lai, the judge’s decision to proceed with the trial was both just and fair in that proper consideration had been given to the matter, including the public interest in concluding trials in which the accused are jointly tried.[84] Further, as the judge had given strong directions to the jury not to speculate about the absence or hold D3 and D4’s absence against the accused and that they had to consider the case for and against each accused separately, we see no danger of the jury embarking on any impermissible reasoning, causing unfairness to the appellant.

Conclusion

111.For the reasons given above, we dismiss the appeal against conviction.

Mr Ned Lai, SADPP, and Mr Mak Kam-hung, PP, of the Department of Justice, for the Respondent

Mr Shahmim K. Khattak (Kelly Lam) and Mr Anthony Lai, instructed by M/s Poon & Cheung, for the Appellant