HKSAR v. Au Kwai Sun
Read the full judgment text of CACC 350/2019 on BabelCite. This Court of Appeal judgment was delivered on 23 September 2022.
1. The appellant appealed, with leave of the Single Judge granted on 1 November 2021 [1] , against his conviction after trial before Campbell-Moffat J (“the judge”) and a jury, in respect of one count of trafficking in a dangerous drug, namely 187 grammes of a crystalline solid containing 165 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and one count of possession of dangerous drugs
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CACC 350/2019 [2023] HKCA 426 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 350 OF 2019 (ON APPEAL FROM HCCC NO 251 OF 2019) ________________________ BETWEEN
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________________________ REASONS FOR JUDGMENT ________________________ Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court): 1.The appellant appealed, with leave of the Single Judge granted on 1 November 2021[1], against his conviction after trial before Campbell-Moffat J (“the judge”) and a jury, in respect of one count of trafficking in a dangerous drug, namely 187 grammes of a crystalline solid containing 165 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and one count of possession of dangerous drugs, namely 0.07 gramme of a solid containing methamphetamine and 0.03 gramme of a solid containing methamphetamine and cocaine, contrary to section 8(1)(a) and (2) of the same Ordinance (Count 2). 2.On 23 September 2022, having heard argument from the parties, we dismissed the appeal and said we would hand down our reasons in due course. These are our reasons. The prosecution case 3.The prosecution presented its case as a stop and search operation by two police officers (“PW1” and “PW2”), who were on routine patrol in plain clothes. At 07:54 am on 2 January 2019, in the vicinity of Shek Lei (II) Estate, Kwai Chung, New Territories, the two officers intercepted the appellant and found inside a sling bag he was carrying a crisp tube containing the subject matter of Count 1. Following his arrest and caution, the appellant was asked by PW1, “What is this tube of stuff?”; to which he responded, “It was ‘Fei Yue’ (‘Fat Fish’ in English) who owed me $2,000 and asked me to take this tube of stuff”[2]. The course of the arrest and caution and what was said by the appellant in response were recorded “right away” at the scene by PW1 in his notebook and at the same time signed by the appellant in confirmation[3]. 4.Following his arrest, the appellant was taken to his home for a search, where, in certain smoking apparatus, PW2 discovered the Ice in Count 2, which the appellant admitted under caution was for his own consumption. The appellant was again arrested and cautioned for possession of apparatus fit and intended for the smoking of dangerous drugs and for possession of Part I poison, whereupon he made certain responses which were then and there recorded in PW1’s notebook and signed again by the appellant in confirmation[4]. 5.The appellant subsequently participated in a video-recorded interview on 4 January 2019, during which he elected to remain silent[5]. 6.It was an admitted fact that, “in the ‘call record’ in the [appellant’s] mobile (tele)phone, Exhibit P17, Chinese characters 魚老板 (‘Fish Boss’ in English) and a telephone number were located”[6]. The computer examination result in respect of the appellant’s mobile telephone was also admitted into evidence by agreement, showing that his telephone and two SIM cards had been examined by another police officer and the data viewed by PW1 on 18 April 2019, “with no relevant evidence found therein”[7]. PW1 said in evidence that when he inspected the contents of the telephone he only looked at the photographs and videos for anything that could be related to drug trafficking activities[8]: he did not look at telephone contacts and call records[9]; nor did he look for any communication records between the appellant and Fat Fish, because the appellant did not mention to the police receiving instructions to pick up the tube from anyone by the name of Fat Fish by telephone[10]. The defence case 7.The appellant elected not to testify or call evidence. However, the defence presented its case as a ‘set-up’ by the police[11], in which the appellant was intercepted before he could get hold of the tube found on the grass near him. It was contended that although the appellant had implicated Fat Fish in his out-of-court statement, the police had tried to protect Fat Fish and did not properly investigate his case. The further suggestion was that Fat Fish and Fish Boss were the same person[12]. Matters in the trial 8.For the purposes of this appeal, it is relevant to highlight two matters which emerge from the proceedings, namely: (i) the judge’s ruling on admissibility in respect of the contents of appellant’s mobile telephone and the requirements of section 22A of Evidence Ordinance, Cap 8 (see Ground 2 infra); and (ii) the five occasions in which the judge intervened during the trial proceedings (see Grounds 4 and 12 infra). The admissibility issue 9.The issue of admissibility arose during the course of the cross-examination of PW1 by the defence. Following a chain of questions and answers related to PW1’s inspection of the appellant’s mobile telephone, Mr Wong, who acted for the appellant at trial as he does at this appeal, requested that PW1 look at the appellant’s mobile telephone in the presence of the jury[13], the purpose of which, so he explained (in the course of legal argument[14]), was to establish the existence of certain call records between the appellant and Fish Boss in the mobile telephone; as distinct from proving the truth of the date or time of the telephone calls[15]. It is in this regard pertinent to note, as the judge herself noted, that “Mr Wong has accepted that he does not intend to prove Fish Boss is Fei Yu or will call other evidence on the point”[16]. 10.The judge did not accede to the defence request and gave a reasoned ruling as follows[17]:
As it turned out, the matter was never raised again by defence counsel. The judge’s interventions 11.As noted earlier, there were five occasions where it is alleged that the judge inappropriately intervened during the proceedings. These occurred when defence counsel was either cross-examining prosecution witnesses or delivering his closing address to the jury. 12.The first intervention took place when the judge asked the jury (and PW1) to leave the courtroom[18] so that she could hear legal argument on the issue of admissibility in their absence. 13.The second intervention arose when Mr Wong suggested to PW1 that he had failed to advise the appellant of his right, amongst other rights as a detained person, to refuse to be interviewed. The following exchange between the judge and defence counsel took place[19]:
14.At that point, the judge asked the jury (and PW1) to leave the courtroom before proceeding to hear legal argument on whether the post-record procedure could be equated with an “interview”[20]. In due course, the judge disallowed the line of questioning relating to the officer’s failure to advise the appellant of his alleged right to refuse to be interviewed (see Ground 3 infra). 15.The third intervention took place in the course of the cross-examination of PW2, following numerous questions by defence counsel concerning the police operation. The following exchange, in the presence of the jury, took place[21]:
In answer to a question from this Court during his oral submissions, Mr Wong maintained that this was the worst of the judge’s inappropriate interventions, because it gave the impression that defence counsel was talking nonsense. 16.PW2 later confirmed making a witness statement on 6 January 2019, recording the events of the police operation. The fourth intervention emerged in the following exchange[22]:
It is pointed out that the jury were only excused from the courtroom after the above exchanges had taken place. 17.The fifth intervention took place in the middle of Mr Wong’s closing address to the jury, when he requested that the appellant be given a toilet break[23]:
Summing-up 18.So far as the significance of the admitted fact that the Chinese characters for Fish Boss were located in the appellant’s mobile telephone, and what impact this evidence might have had on the defence case, the judge directed the jury in these terms[24]:
19.On the issue of the right of silence, the judge directed the jury that “[t]he exercise of the right to silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience”. However, criticism is levelled against her direction which then followed (see Ground 12 infra). The impugned direction reads[25]:
The grounds of appeal and submissions 20.As we have said, leave was granted by the Single Judge on five grounds of appeal, namely Grounds 2, 3, 4, 12 and 16, which may be summarised as follows:
The respondent’s submissions 21.In respect of Ground 2, Mr Pierre Lui, on behalf of the respondent, submitted that the judge correctly refused the defence application on the basis that PW1 had not in fact seen the appellant’s telephone call record. In any event, if the evidence was sought to be admitted for the purpose of proving its truth, it would be hearsay; whereas, if it had any admissible purpose, its evidential value would be negligible. 22.In relation to Ground 3, Mr Lui pointed out that there was no basis to suggest that the appellant was either attending an “interview” or, if the exercise was equivalent to an “interview”, that he had a right not to be interviewed. 23.In respect of the five instances of allegedly unfair intervention by the judge under Ground 4, Mr Lui contended that:
24.As for Ground 12, Mr Lui submitted that the judge had properly and repeatedly directed the jury that the appellant had a right of silence, while it was never in dispute that he had in fact elected to waive such right by responding to the caution[33]. 25.The respondent submitted that there was nothing, either individually or cumulatively, which rendered the conviction unsafe or unsatisfactory. Accordingly, Ground 16 could not be established and the appeal should be dismissed. Discussion 26.It seems to us that the complaint under Ground 2 raises two issues. The first relates to the relevance of the call records, and the purpose for which they were sought to be adduced. The second relates to their admissibility. With respect to the judge, who said, in the opening sentence of the passage recited at [10] supra, that she regarded the issue as one of admissibility rather than relevance, we think it was the other way round and that the whole submission ultimately founders on the supposed relevance of what Mr Wong was seeking to do. 27.Mr Wong’s argument is based wholly on an assertion that “Fat Fish”, whom he mentioned to PW1 when arrested, and “Fish Boss”, which appeared in the appellant’s call records together with a telephone number (according to the admitted facts), were one and the same person. From this assertion, the submission is that not only were the police officers informed at the outset that Fat Fish was the drug supplier, but that the call records between Fish Boss and the appellant were at least discoverable in the appellant’s mobile telephone, had they looked for them. Since the two names are asserted to refer to the same person, but the matter was never properly investigated, Mr Wong argued that he should have been permitted to explore the issue with PW1 by reference to the appellant’s call records, as a result of which he might have been able to elicit more from, or even discredit, PW1 and hence strengthen his case theory of a set-up. 28.However, Mr Wong accepted in oral argument that he suffered from a fundamental difficulty in establishing an evidential link between Fat Fish and Fish Boss, particularly since the appellant had elected not to give evidence. Nor was any other evidence adduced, or anticipated to be adduced, as to any link between the two names or the content of the remainder of the appellant’s call records. Since neither the fact nor the logic of his assertion could be established, we do not see how relevance could have been established; nor do we think that the judge’s direction at [18] supra can be impugned. 29.But even if we were to look at the complaint of non-investigation by the police as a discrete issue, it was an admitted fact that the name Fish Boss (as opposed to Fat Fish) appeared in the call records of the appellant’s mobile telephone, together with a telephone number. As to why there was no investigation by the police, Mr Wong was nevertheless still able to cross-examine PW1 about this issue. And he did so. However, PW1 explained that the appellant had not said anything about having telephone calls with Fish Boss, nor had the appellant mentioned Fish Boss to him at all. The officer did accept, however, that he thought it would be worth investigating had he in fact been given this information by the appellant, which he was not[34]. Accordingly, there never was any evidence from anyone to link the name of Fat Fish with Fish Boss, save for the common character of ‘Yue’ in each name. There was thus no relevance to Mr Wong’s cross-examination of PW1 on this point, which was at best, without wishing to be irreverent, a fishing expedition. 30.As to the second issue, it simply did not arise unless there was a foundation of relevance. Moreover, since Mr Wong had explained to the judge that he did not intend by this exercise to show that Fat Fish was Fish Boss, it seems to us to have been an irrelevant and rather futile exercise. There is no merit in Ground 2. 31.In relation to Ground 3, even if we assume that the signing of post-recorded entries in PW1’s notebook was akin to a formal “interview”, on which issue Mr Wong conceded before us he had no authority to support such a proposition, we do not accept that there was any duty on the officer to tell the appellant that he had a right not to be interviewed. The appellant had been fully advised of his right of silence when he was cautioned upon arrest at the scene[35]. PW1 immediately recorded the fact of the arrest and the caution, as well as the appellant’s response to the caution, in his notebook at the scene, which was there and then confirmed by the appellant’s signature[36]. The appellant was then cautioned again (twice it would seem) at his home when certain items were seized from the premises. 32.As for the proposition that a police officer has a specific duty to tell a suspect that he has a right not to be interviewed by an investigating authority, there is no such duty or right at common law, under the Hong Kong Bill of Rights Ordinance, Cap 383, in the Judges Rules of 1912 or in the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security, all of which are applicable in Hong Kong. There is, of course, a privilege against self-incrimination, which the caution is designed to protect. 33.In contending for such a right not to be interviewed, Mr Wong relied on a single authority of this Court, namely HKSAR v Wan Kwok Hung[37]. However, this authority needs to be carefully examined and understood in context. The principal judgment of the Court was given by Yeung JA (as he then was), who did not touch upon the question of any such supposed right not to be interviewed. The actual ground of appeal in that case concerned the propriety of a de-briefing session conducted by the police, for which no record was made, prior to a formal written interview taking place. Wright J, who agreed with the disposal of the appeal but sought to address an issue raised by the trial judge concerning the use of written records of interview by law enforcement officers where video-recording equipment was otherwise available, took issue with the practice of offering a suspect a choice as to how he was to be interviewed. Accordingly, he said[38]:
34.With respect, we have some concerns about the way Wright J has expressed a matter that was not germane to the appeal as explained by Yeung JA, but which arose out of something the trial judge had expressed “in trenchant terms”, according to Wright J, and with which he seems to have agreed, concerning police practices. If Wright J had said that a suspect had an absolute right to decline to answer questions when interviewed, we would not have disagreed. However, he went on in his judgment to talk about a suspect “giving his consent”, or giving “unconditional consent to being interviewed”, suggesting that he considered there was a general right of a suspect to refuse to be interviewed. With respect, we find no basis for such a right in law or practice. However, we do recall, in the early days of the introduction of video-recorded interviews in Hong Kong, and for some time after their inception, that there was a practice by the police to ask suspects whether they agreed to be video-recorded. That was the practice which the trial judge was criticising in 2008, and with which criticism Wright J was agreeing. Today, of course, the practice of video-recorded interviews has become the norm, and written records of interview, the exception. 35.Wright J’s comments about consent to the mode or method of interview were strictly obiter dicta (as correctly characterised in the Hong Kong Cases report) and did not arise out of any of the grounds of appeal. However, Tang VP (as Tang NPJ then was), in a very short judgment, took issue with Wright J’s view that a suspect’s consent to the mode or method of his interview was not required. But in so saying, he also held[39]:
36.One can immediately see that the point of dissention between Tang VP and Wright J concerned a suspect’s consent to the mode or method, as distinct from the fact, of interview, which issue arose out of the trial judge’s “trenchant” comments about police procedures. Yet, this issue does not appear to have had anything to do with the ratio of the judgment of Yeung JA. But it is on these two statements or assertions that a suspect has an absolute right to decline to be interviewed at all, on which Mr Wong has relied. 37.We do not think that these two obiter statements from Tang VP and Wright J are an adequate or, with respect, a correct foundation for the suggested right of a suspect to decline to be interviewed by a law enforcement authority. We should point out that in the recent decision of this Court in HKSAR v Tam Ho Nam (No 2)[40], we said:
We note that the Appeal Committee of the Court of Final Appeal subsequently dismissed an application for leave by the applicant in the above case to appeal[41]. Ground 3 is not made out. 38.We can be brief in respect of Ground 4. We do not accept that the judge’s so-called interventions were either inappropriate or excessive, or came anywhere near depriving the appellant of a fair trial, and we agree with the respondent’s interpretation of the circumstances in which they occurred. We find no merit in this Ground. 39.As for Ground 12, it should be remembered that there was no dispute at trial that PW1 did ask the applicant what was in the tube of crisps, as a result of which the applicant did answer, “It was Fat Yue (or Fat Fish) who owed me $2,000 and asked me to take this tube of stuff”[42]. The difference between the parties appears to have been when and in what precise circumstances this question and answer took place; whether before or after the caution. Whatever the position, the appellant did not avail himself of his right of silence throughout, as the signed post-recorded conversations in PW1’s notebook made clear. Some questions, at the scene, at his home and in an interview room at Kwai Chung police station, he answered: some, during a subsequent video-recorded interview, he did not. Given that context, we do not see the judge’s impugned remark as infringing the appellant’s right of silence. The judge correctly directed the jury[43]:
40.Elsewhere in her summing-up, she said[44]:
A little later, she said of his choice[45]:
Indeed, even in the passage impugned under this ground of appeal, the judge reminded the jury “that he does have a right -- he has a total right to say nothing but circumstantially this is what occurred”[46]. 41.Looking, therefore, at the summing-up as a whole, as we must do, we do not think there was any danger of the jury treating those occasions when the appellant chose to remain silent as anything more than simply invoking his undoubted right to do so. There is nothing in this ground. 42.Accordingly, we found no merit in any of the substantive grounds of appeal argued before us and, therefore, rejected Ground 16 too. It was for these reasons that the appeal against conviction was accordingly dismissed.
Mr Pierre Lui SPP, of the Department of Justice, for the Respondent Mr Philip Wong, instructed by Gallant, assigned by the Director of Legal Aid, for the Appellant [1] The grounds were not properly numbered in counsel’s original Perfected Grounds of Appeal, dated 8 January 2021, and were accordingly re-numbered in sequential order by Zervos JA, sitting as a Single Judge. Leave was granted by the Single Judge on Grounds 2, 3, 4, 12 and 16 of the re-numbered grounds, although Ground 2 appeared to involve an issue of pure law, on which leave to appeal would not have been required: HKSAR v Au Kwai Sun [2021] HKCA 1631, at [36]. However, as the argument developed before us, Ground 2 became more an issue of fact than law. [2] As confirmed by defence counsel at the Case Management Hearing held on 21 October 2019, the admission was made voluntarily: Appeal Bundle (“AB”), p 136L-N; p 143J-K. [3] AB, p 175G-I; Exh P21: AB, p 88. [4] AB, p 194G-Q; Exh P21: AB, p 89. [5] AB, pp 36S-37B. [6] Admitted Facts No 3, at [1]: AB, p 20. [7] Admitted Facts No 2, at [4]; AB, p 19. [8] AB, p 231F-G; p 232N-O. [9] AB, p 230N-P. [10] AB, p 232L-M. [11] Defence closing speech: AB, p 350R-S. [12] Defence closing speech: AB, p 345J-K. [13] AB, p 240H-I. [14] AB, pp 355-362R. [15] AB, p 357A-C, P-Q. The evidence which Mr Wong intended to adduce was a screenshot of the appellant’s mobile telephone depicting: one outgoing call on 2 January at 19:34 hours (duration 6 seconds), one incoming call on 2 January at 19:32 hours (duration 1 minutes 42 seconds), one missed call on 2 January at 19:31 hours, and one outgoing call on 2 January at 19:24 hours (duration 4 minutes and 12 seconds). [16] AB, p 389 (penultimate paragraph). [17] AB, pp 387-390. [18] AB, p 240J-L. [19] AB, pp 256J-257R. [20] AB, pp 362S-366G. [21] AB, pp 301L-302N. [22] AB, pp 303A-304Q. [23] AB, pp 348L-349J. [24] AB, pp 39R-40R. [25] AB, p 48M-S. [26] Appellant’s submissions, dated 9 December 2021, at [3]. [27] Au Kwai Sun, at [38]. [28] Respondent’s submission, dated 12 January 2022, at [25]. [29] Respondent’s submission, dated 12 January 2022, at [26]. [30] Respondent’s submission, dated 12 January 2022, at [23]. [31] Respondent’s submission, dated 12 January 2022, at [24]. [32] Respondent’s submission, dated 12 January 2022, at [27]. [33] Respondent’s submission, dated 12 January 2022, at [31]. [34] AB, p 246 P-U. [35] AB, p 175C-E. [36] AB, p 175G-I; p 88 [37] HKSAR v Wan Kwok Hung [2009] 6 HKC 299. [38] Ibid., at [54]-[55]. [39] Ibid., at [2]. [40] HKSAR v Tam Ho Nam (No 2) [2021] 5 HKLRD 367. [41] HKSAR v Tam Ho Nam (Unrep., FACC 6/2022, 5 May 2022). [42] AB, pp 174F-175F; p 279L-O. [43] AB, p 37A-D. [44] AB, p 30I-J. [45] AB, p 32A-C. [46] AB, p 48O-P. |
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