HKSAR v. Leung Wai Kit
Read the full judgment text of CACC 292/2019 on BabelCite. This Court of Appeal judgment was delivered on 7 March 2023.
1. On 9 September 2019, following a trial before Deputy High Court Judge Johnny Chan (the Judge) and a jury, the appellant was convicted of a single count of trafficking in dangerous drugs, namely 28 grammes of a crystalline solid containing 24.33 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 5.99 grammes of a crystalline solid containing 0.36 gramme of methamphetamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced t
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CACC 292/2019 [2023] HKCA 322 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 292 OF 2019 (ON APPEAL FROM HCCC NO 124 OF 2019) ________________________
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________________________ REASONS FOR JUDGMENT ________________________ Hon Zervos JA (giving the Reasons for Judgment of the Court): Introduction 1.On 9 September 2019, following a trial before Deputy High Court Judge Johnny Chan (the Judge) and a jury, the appellant was convicted of a single count of trafficking in dangerous drugs, namely 28 grammes of a crystalline solid containing 24.33 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 5.99 grammes of a crystalline solid containing 0.36 gramme of methamphetamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 8 years’ imprisonment. 2.On 21 September 2021, the appellant was granted leave to appeal his conviction[1], which was unopposed by the respondent as it was accepted that it was reasonably arguable that the Judge’s direction to the jury exceeded proper bounds when he told them to consider whether the failure by defence counsel to cross-examine a police witness regarding an alleged conversation he had with the appellant about the search of his home reflected on the appellant’s credibility: HKSAR v Chan Hing Kai [2]. It was complained that the Judge erroneously endorsed the prosecution’s submission inviting the jury to consider the failure to put this conversation to the police witness (the lack of puttage) in determining whether the appellant had made up a story and therefore lacked credibility. On the other hand, the respondent maintained that the conviction should be upheld as there was no miscarriage of justice. The prosecution case 3.The issue at trial was whether the appellant possessed the Ice found on him for the purpose of trafficking or for his own consumption. 4.It was not disputed that, at about 4:45 am on 25 February 2018, the appellant was stopped by a police officer (PW1) as he was leaving a flat on the mezzanine floor of a building in Hung Hom, Kowloon. PW1 took the appellant back inside, and later, other police officers arrived to assist him. In the flat were a male and female, but nothing illegal was found on them, and they were subsequently released. The appellant’s waist bag was searched, and found inside were 12 transparent resealable plastic bags containing the dangerous drugs as particularised in the count. Also found on him were $6,000 in cash and another transparent resealable plastic bag containing 10 empty resealable plastic bags. He was taken to a flat on the rooftop of the building where he lived for a house search, but nothing illegal was found. 5.The appellant stated under caution that the dangerous drugs found on him were for his own consumption. In a subsequent video record of interview, he stated, amongst other things, that he purchased about 10 grammes of drugs for a few thousand dollars in Shum Shui Po from a Vietnamese male. He said he usually consumed 1 to 2 grammes of Ice daily at home using a hookah (a device for consuming Ice). The $6,000 cash found on him was his own money, of which $4,000 was his salary. He intended to use the money to pay for family expenses. He had gone to the flat to find his friends, who were unaware of his drug habit, or that he had drugs on him. 6.A urine specimen was taken from him on the following day, 26 February 2018, which tested positive for amphetamines and cannabis. 7.An expert gave evidence at trial that it was very rare for someone to consume 1 to 2 grammes of Ice per day and that such a consumption rate would cause serious harm to a person. 8.The total quantity of 33.99 grammes of Ice had a street value of $17,471 at the time of the offence. The defence case 9.The appellant elected to testify at trial. His defence was that he was not trafficking in the dangerous drugs in question because they were for his own consumption. He explained that he could consume 1 gramme of Ice a day because he had been a drug user since 2012[3] and had a high tolerance for drugs[4]. After work on the day in question, he purchased the Ice for $8,000 from his friend “Ah Au” in Sham Shui Po, which he was told weighed 20 odd grammes. He admitted that he had lied about the supplier and quantity of drugs in his video recorded interview because he feared that Ah Au would cause trouble for his family and arrange for him to be beaten up in custody[5]. 10.The appellant said that before his apprehension, he had taken Ice in the toilet of his home, after which he placed the hookah on top of the water closet. He confirmed that when PW1confronted him, he told him that the drugs were for his own consumption. The appellant’s statement to this effect was recorded in the police officer’s notebook. He said he also told him when they went to search his home that he had a hookah in the toilet, but the police did not search the toilet nor seize the hookah as an exhibit[6]. The alleged conversation the appellant had with PW1 about the hookah was not put to the police officer when he testified. Prosecuting counsel made a significant issue about this omission during the course of the trial. The evidence regarding the hookah 11.The alleged conversation about the hookah first arose in the following questions and answers of the appellant’s examination-in-chief [7]:
12.When the appellant was cross-examined by prosecuting counsel, he raised the issue of the alleged conversation about the hookah. He suggested to the appellant that this conversation had not been put to PW1 because he was making up a false story, which the appellant denied[8]:
The closing speeches regarding the hookah 13.The issue of the alleged conversation about the hookah and the failure by the defence to put it to PW1 featured prominently in counsel’s closing speeches. Prosecuting counsel focused particularly on this point. He stressed to the jury that it was significant that defence counsel did not put to PW1 the alleged conversation about the hookah and invited them to consider that the failure to do so meant the appellant had made it up in the witness box[9]:
14.Defence counsel, in response, told the jury that there were other innocent explanations for the failure to put the alleged conversation about the hookah and requested them not to speculate[10]:
15.Defence counsel went on to make the point that the issue about the hookah was irrelevant because it was established that the appellant consumed Ice. He said[11]:
The summing-up 16.The Judge during his summing-up, directed the jury that they were entitled to take into account the defence’s failure to put matters to a witness on which the appellant gave evidence in their assessment of his credibility. He reminded them of the prosecution’s submission that the failure to put matters to the relevant witness indicated that the appellant was making up a false story. He instructed them to consider the degree of importance of the matter and whether it should have been put to the police officer in deciding whether this affected their assessment of the appellant’s credibility [12]:
Discussion 17.The rule in Browne v Dunn [13] requires that a witness be given the opportunity to explain a matter of substance if the opposing party intends to later contradict or discredit the witness about it. The purpose of the rule is to secure fairness in the conduct of adversarial proceedings, which is particularly important in criminal trials. What can or should be done, if anything, will depend upon the nature and context of the failure to comply with the rule. This will involve a consideration of the various remedial measures available to the court to ensure a fair trial. The relevant principles and the approach to be taken when the rule is not observed have been comprehensively addressed in Chan Hing Kai. A key consideration when addressing a material failure to comply with the rule is to remedy any unfairness but to do so without any adverse consequence to the fair trial of the accused. 18.In the present case, the appellant contested the charge that he was trafficking in the drugs on the basis that he purchased them for his own consumption. It was an admitted fact that he had tested positive for amphetamine and cannabis after he had been arrested for this offence[14]. It was accepted that he was a drug abuser. He testified that he had a hookah on top of the water closet inside the toilet of his flat, where he would consume the drugs. 19.In cross-examination of PW1, defence counsel put to him that there was a hookah on the water closet inside the toilet of the appellant’s flat, to which he said he did not see it, and that he failed to seize it because he did not search the flat properly, to which he disagreed[15]. Defence counsel omitted to put to PW1 that the appellant told him he had a hookah inside the toilet. However, this omission has to be assessed in context. First, in respect of what had been put to PW1 that there was a hookah in the appellant’s flat which he failed to seize. Secondly, in respect of what was in issue in as much as there was no dispute that the appellant was a drug abuser who consumed Ice and used a hookah to smoke it. He testified that the water closet was very high on which he placed the hookah, but the police did not search the toilet. The Judge asked him whether he told the police that he had a hookah inside the toilet. He said he was asked by PW1 when they went to his flat to do the house search if there was anything else at his home, and he had told him, “Nothing else except the bottle on top of the water closet.” The police were dismissive about the hookah as long as he admitted the drugs belonged to him. He also mentioned that when the police went to his flat, they did not go into the toilet but spoke to his girlfriend, who was present at the time[16]. 20.Prosecuting counsel attacked the appellant’s credibility in cross-examination over this matter, emphasising that defence counsel had not put this conversation to PW1 when he cross-examined him. He put to the appellant that he was making it up, to which he disagreed, insisting that he told PW1 about the hookah[17]. Prosecuting counsel continued emphasising the matter in his closing speech to the jury. He explained to the jury the concept of the rule in Browne v Dunn, and invited them to draw an adverse inference against the appellant that his evidence was a recent invention. In response, the defence counsel, in his closing speech, provided an innocent explanation for the lack of puttage and asked the jury not to speculate. He explained that as an advocate, he received his instructions from an instructing solicitor, and sometimes difficulties arose in obtaining and remembering those instructions. He said the fact that he did not canvass a matter in the examination of a witness did not necessarily mean he was not told about it by the appellant, and may have simply reflected a failure on his part. When prosecuting counsel pointed out the lack of puttage during the appellant’s evidence-in-chief, defence counsel replied that it was “not necessary to put to him” and went on to give an explanation[18]. 21.The Judge did not have the benefit of the decision of Chan Hing Kai, which was handed down four months after the appellant’s trial when addressing the lack of puttage in his summing-up to the jury. Whilst he directed the jury in neutral terms on the issue, as raised by the prosecution, he did not refer to the defence response, which would have at least given the issue a balanced perspective. As was noted in Chan Hing Kai, a failure to put a matter to a witness may be due to a myriad of reasons that do not reflect on the accused’s credibility. However, the jury was invited to consider whether the appellant had given false evidence about matters not put to a witness in assessing his credibility. Only in exceptional cases should a trial judge consider directing the jury that an adverse inference as to credibility may be drawn against an accused in consequence of the rule in Browne v Dunn not being observed. 22.There is no absolute rule as to how a witness’s evidence should be challenged if it is intended to contradict it. The method and manner of the challenge will depend on a variety of factors and circumstances, including the subject and significance of the contradictory evidence; the status and quality of the witness, such as a child or vulnerable witness, or an evasive or unresponsive witness; and the nature and issues of the case. In a typical case, the cross-examiner asks questions of the witness that are sufficient to put the witness on notice that he intends to impeach the witness’s evidence on a matter and to provide him an opportunity to explain his position. Depending upon the subject matter, it does not necessarily involve a direct confrontation with the witness by examining the matter in minute detail. The challenge may be apparent by how the case is being conducted, the general line of questioning or the cross-examination of another related witness. It may not be necessary to put questions in cross-examination if a witness has given evidence about a matter that is patently incredible or if it has been made plain in some other manner that the evidence of the witness is challenged: Wong Wah Yee v HKSAR [19]. Sometimes it will be sufficient for the “raised eyebrow” approach to discharge the duty of counsel in this sense: Lo Chun Nam v HKSAR [20]. 23.The consequences of failing to cross-examine a particular matter need to be considered in light of the nature and course of the proceedings. The remedies usually applied are either to allow the party to recall the witness or to take the failure to cross-examine into account in evaluating the weight to be given to the evidence in question, although this should be assessed with other evidence adduced at trial. Only in exceptional cases should the judge consider directing the jury that an adverse inference as to credibility may be drawn against the accused as a consequence of the breach. 24.It is open to a judge to direct the jury that they can take into account the lack of puttage in assessing the weight to be attached to an accused’s evidence on the matter in question. But when the lack of puttage is relied upon to attack the accused’s veracity and credibility, the issue needs to be approached with care and circumspection because it could result in serious unfairness to the accused when the case against him is assessed on a failing by his counsel rather than on the evidence presented by the prosecution. This is why when such an issue arises, all available remedial measures should be reasonably explored and exhausted. In any event, the direction to the jury should be in line with what is laid out in Chan Hing Kai[21]. 25.The respondent submitted that the direction did not exceed proper bounds, and if it did, the irregularity was not material, given the practical effect of the direction. It was argued that the significance of the conversation in the context of the case as a whole was minor, and it was unlikely the jury would have placed much weight on it in determining the appellant’s credibility. The simple answer to this submission is that it was not a minor matter. It played a prominent role in prosecuting counsel’s attack on the appellant’s credibility and was significantly emphasised by him in his closing speech to the jury. 26.In our view, the directions to the jury exceeded proper bounds because they sought to attribute a failure by defence counsel to put a matter to a witness due to the appellant’s lack of veracity and credibility without laying the requisite and onerous foundation for doing so. Furthermore, we consider the matter was given far greater prominence by the prosecution than it deserved and became an inflated issue in the case against the appellant. Through no fault of the Judge, the matter was not properly addressed or directed as required. As a consequence, his directions to the jury inappropriately encouraged them to take it into account in assessing the appellant’s credibility. Conclusion 27.For the foregoing reasons, we allowed the appeal, quashed the appellant’s conviction for unlawfully trafficking in a dangerous drug and substituted for it a conviction of possession of a dangerous drug. We were informed that the appellant had served the equivalent of a sentence of 6 years and 3 months’ imprisonment, taking into account a remission of one third for good conduct, and ordered that the appellant be sentenced to the time he had already served. 28.We substituted the conviction pursuant to s.83A of the Criminal Procedure Ordinance, Cap 221, having been satisfied that (1) the substituted conviction was for an offence of which the jury could, on the indictment, have found the appellant guilty; and (2) the jury would have been satisfied with facts which proved the appellant guilty for the substituted conviction: Hau Tung Ying v HKSAR[22]. Those conditions having been met, we were also satisfied that the substitution served the public interest and was fair to the appellant. As stated by Chan PJ in Hau Tung Yin:
Mr Nicholas Wong, SPP, of Department of Justice, for the respondent Mr Eric Cheung, Solicitor Advocate and Mr Simon Kwok, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the appellant [1] HKSAR v Leung Wai Kit, unrep., CACC 292/2019, 21 September 2021, [2021] HKCA 1408, per Macrae VP. [2] HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082. [3] Appeal Bundle (“AB”), p 22K. [4] AB, p 24T. [5] AB, pp 22T-23D. [6] AB, p 24F-S and pp 136D-137I. [7] AB, pp 136D-137M. [8] AB, pp 150N-151B. [9] AB, pp 169O-170F. [10] AB, p 176G-K. [11] AB, p 177C-M. [12] AB, p 28H-T. [13] Browne v Dunn (1893) 6 R 67. [14] AB, Admitted Facts, p 11, at [12]. [15] AB, pp 115F-L and 116H-N. [16] AB, pp 136C-137M. [17] AB, pp 150N-151B. [18] AB, p 137E-G. [19] Wong Wah Yee v HKSAR [2000] 4 HKC 722, 731E-G, where the cases for the prosecution and the defence was one of stark contrast. [20] Lo Chun Nam v HKSAR (2001) 4 HKCFAR 1, 7D-8E. [21] HKSAR v Chan Hing Kai, at [49]. [22] Hau Tung Ying v HKSAR (2011) 14 HKCFAR 450, at [62]-[64]. |
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