HKSAR v. Cheung Hoi Pun

CACC 8/2022

[2023] HKCA 974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 8 OF 2022

(ON APPEAL FROM HCCC NO 264 OF 2020)

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J U D G M E N T

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

1.The appellant faced an indictment in which he was jointly charged with Chan Ying Hong (Chan) on two counts of trafficking in a dangerous drug, namely 499 grammes of a solid containing 381 grammes of ketamine (Count 1), and 1.719 kilogrammes of a solid containing 1.493 kilogrammes of ketamine (Count 3), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (the Ordinance), and separately on one count of possession of a dangerous drug, namely 0.26 gramme of a solid containing 0.23 gramme of ketamine, contrary to section 8(1)(a) and (2) of the Ordinance (Count 2). The appellant pleaded guilty to Count 2 and proceeded to trial on Counts 1 and 3 before Campbell-Moffat J (the judge) and a jury. On 30 December 2021, the appellant was convicted of both counts by unanimous verdicts of the jury and sentenced to 17 years and 9 months’ imprisonment.

2.The appellant sought to appeal against his conviction only. At the leave hearing on 15 December 2022, at which he was legally represented, the Single Judge[1] noted that his sole ground of appeal comprised two matters. The first matter constituted a pure question of law and did not require leave to appeal[2], namely whether the judge’s directions on drawing inferences unlawfully placed an onus of proof on the appellant to establish his innocence in the offences. The second matter involved a question of fact, namely whether the judge’s direction on inferences was unnecessary, for which leave to appeal was refused.

3.On 21 December 2022, the appellant sought to renew his application for leave to appeal against conviction in respect of the second matter. However, by a letter dated 4 February 2023, the appellant indicated his intention to abandon his renewed application. He was directed to file a notice of abandonment but he did not do so. At the appeal hearing, the appellant confirmed the abandonment of his renewal application and his appeal against conviction in respect of the second matter was dismissed. The appeal proceeded to deal with the question of law with Mr David Boyton representing the appellant.

The prosecution case

4.It was alleged that on 3 October 2019, the appellant and Chan trafficked in the quantity of drugs set out in Counts 1 and 3. Chan pleaded guilty and testified for the prosecution at the appellant’s trial. He was PW1 at trial.

5.Chan testified essentially that he had dealt with the dangerous drugs on the instructions of the appellant[3]. In the morning of 2 October 2019, as instructed by the appellant, he had collected a carton box containing about 3 kilogrammes of ketamine (which was further concealed in milk powder boxes) from a GoGoVan, checked into a room at Winland 800 Hotel (Winland Hotel) at Tsing Yi at noon, and gone to the appellant’s home in Tin Shui Wai at about 9 pm, where he spent the night. The appellant gave Chan $1,000 in order to settle the charges for the delivery and the hotel room. On 3 October 2019, they each took some equipment from the appellant’s home to Winland Hotel, which included electronic scales, a sealing machine, plastic bags, empty pet food foil bags and a rice cooker, for the purpose of dealing with the dangerous drugs. When they were unable to extend their stay at Winland Hotel, since there was no available room, they moved to the nearby Rambler Garden Hotel (Rambler Hotel), which the appellant managed to book for 3 days using his own credit card but Chan’s name and Identity Card number. They checked into Room 2355. Having done so, they went out from the room on several occasions in order to buy food and some further equipment, such as Ziploc bags, paper plates and gloves. They then extracted the drugs from three of the six milk power boxes, divided them into smaller quantities, weighed the drugs, and placed them in Ziploc bags, marking their respective weights. The appellant took photographs of the Ziploc bags and sent the photographs to another person to check if the packaging had been done correctly. The Ziploc bags were further concealed within pet food foil bags and sealed.

6.There were two sets of admitted facts[4], in which the following facts and circumstances were admitted, namely:

(i)  The movements of the appellant and Chan inside Rambler Hotel, including their checking in and the four occasions they went in and out of the hotel together on 3 October 2019;

(ii)  The arrests of the appellant and Chan and the seizure of the drugs. At about 8:23 pm, the two men were both arrested at Rambler Plaza, Tsing Yi. At that time, Chan was carrying a bag[5] containing the drugs particularised in Count 1 (which was concealed inside a packet of cat food (Exhibits P1-3[6])). The retail value of these drugs was $246,007. The appellant was escorted back to Room 2355. The drugs particularised in Count 2 were then found in a wallet carried by the appellant. The drugs particularised in Count 3 were found in Room 2355 and their retail value was about $847,467;

(iii)  The appellant’s left thumb fingerprint was found on the toilet door inside Room 2355;

(iv)  The appellant’s mobile telephone contained photographs of Room 2355 and the drugs (Exhibit P99A);

(v)  The appellant and Chan had exchanged frequent calls, texts, and telephone messages via WhatsApp from February 2019 up until the date of arrest.

7.The prosecution relied on the appellant’s admissions recorded in Customs Officer 0758 (PW2)’s notebook as a mixed statement, although the admissions were disputed[7]. In respect of Count 1, the appellant was recorded as saying, amongst other things, that[8]: Chan was his friend and was carrying “cat food” at the time of the arrest; and he himself had come down from Room 2355 in Rambler Hotel, but he did not know who had hired the room. In relation to Count 3, the appellant said he knew nothing about the drugs; as for the substance in the packaging in the paper boxes, it was milk powder and not his. In relation to the packaging equipment and tools, he said he did not know about them.

8.The prosecution relied on the following facts: (i) the appellant was with Chan at the time of arrest; (ii) CCTV footage of the hotel captured the appellant and Chan coming in and out of the hotel together at various times; (iii) the appellant’s admission that Chan was his friend; (iv) the appellant’s admission that he paid for Room 2355 for 3 days; (v) the appellant stayed inside Room 2355 on and off for 6 hours; (vi) Room 2355 had a significant amount of drugs inside[9]; (vii) the appellant carried a number of boxes to Room 2355; (viii) there were no personal items necessary for staying overnight inside the room; (ix) the room was awash with dangerous drugs and paraphernalia, including plastic gloves; and (x) the appellant’s mobile telephone had photographs of the drugs, in their weighed and marked states[10].

The defence case

9.The appellant testified in his own defence[11]. He said that he had loaned $1,000 to Chan, and that he knew nothing about the GoGoVan, the 3 kilogrammes of ketamine or the hotels concerned. On 2 October 2019, Chan had asked him for money and stayed overnight at his place to take drugs together. On 3 October 2019, he gave a rice cooker to Chan as a gift but brought nothing else out from his home. He was asked to go out with Chan and was taken to Winland Hotel. Chan was unable to renew the hotel room and asked him to find a room for him in another hotel. He then booked a room for Chan at Rambler Hotel. He helped Chan take his things up to Room 2355. He did ask what was inside the box and was told it was milk powder. In the room, he had some rest. About an hour later, they went out shopping together, but he waited outside the shop, so he did not know what Chan had bought.

10.They returned to the hotel, and the appellant fell asleep after taking some drugs given to him by Chan. He later went out for a walk with Chan, who had to deliver some milk powder to a friend; however, he himself stayed in a shopping mall. They returned to the room, and the appellant further rested until 8 pm. Chan said he had to go out to meet someone and since he also wanted to see his mother, they left together and were subsequently intercepted by Customs officers. He had no idea what was going on inside the room. The drugs in the photographs were covered up.

11.It was the defence case that PW2 had fabricated the answers allegedly given by the appellant[12].

The summing-up

12.Before we address the appellant’s submissions regarding the judge’s directions when addressing the circumstantial case against the appellant and the drawing of inferences from the proven facts, it is necessary to consider the structure and content of the judge’s summing-up to have an overall appreciation of the directions she gave to the jury and whether they would have been clear and obvious to them.

13.The judge directed the jury that the burden of proving the case rested on the prosecution to the extent that they were sure of the appellant’s guilt[13]. She explained to the jury that the appellant was not obliged to prove his innocence and repeatedly emphasised with them that if what the appellant said in evidence was or may be true he was entitled to be acquitted[14]. She also warned the jury in emphatic terms to approach the evidence of Chan with caution[15].

14.The judge’s impugned remarks occurred when she was addressing the situation where the jury rejected the evidence of Chan and the prosecution’s submission that on the proven primary facts the jury could draw the only reasonable inference that the appellant was trafficking in the drugs. However, her remarks need to be considered in the context of what she had repeatedly told the jury about their acceptance of the appellant’s evidence. After she had made some introductory remarks and provided an overview of the case, the judge told the jury[16]:

“In this case, it is for the prosecution to prove that the defendant is guilty. A defendant does not have to prove his innocence. In a criminal trial, the burden, the responsibility for proving a defendant’s guilt is always on the prosecution. Always. How does the prosecution succeed in proving a defendant’s guilt? And the answer is to that is simply: by making you sure of it. That is the same, as you will have heard, about proving a case so that you are satisfied beyond reasonable doubt. We do not use that expression anymore, it tends to be overcomplicated when all you have to be is sure of the guilt of the defendant. And nothing less than that will do. If after considering all of the evidence, you are sure that the defendant is guilty, then you will return a verdict of ‘guilty’.

If the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted. You do not have to positively believe the evidence relied upon by the defence. You cannot find an issue against the defendant contrary to the evidence if that evidence gives rise to a reasonable doubt about that issue.”

15.The final remarks of the judge in the above passage were consistent with the terms of a Liberato direction[17]. She emphasised with the jury that if the defence put forward by the appellant was or may be correct, then the appellant was entitled to be acquitted. This was a message that she repeatedly conveyed to them. In fact, soon after she gave this direction she repeated it again when discussing the appellant’s election to give evidence. She said[18]:

“... You must take into account what he said when he gave evidence when you consider all of the evidence in the case and the facts which you decide you have to determine. And it is for you to decide whether you believe the evidence of the defendant or whether that evidence may be true. And I have previously told you that if his account, the account given by the defendant is true or may be true, then he is entitled to be acquitted.”

16.The judge then proceeded to address the defence case of challenging the credibility of the prosecution witnesses, including Chan, and attributing criminal responsibility for the drug-trafficking offences to Chan. She told the jury[19]:

“… And it is for you, therefore, going back to what I have already said to decide whether you believe the evidence of the defendant or not, or whether that evidence may be true. Because as I have told you, if you believe the evidence of the defendant, or it may be true, he is entitled to be acquitted.

It is open to you to accept the evidence of the defendant and find it to be true, this is the easy part, in which case, he is entitled to be acquitted. It is open to you find that his evidence may be true, and therefore, is entitled to be acquitted. It is open to you to accept part of the defendant’s evidence, or to find part of the evidence may be true, but to reject other parts. If you were to reject part of the defendant’s evidence but find some of it true or may be true, what I suggest you do is this, you reject the part that you have decided to reject, you put it to one side and you do not think about it again. You take the path that you find is true and/or the part you find may be true, and the evidence of the prosecution you are sure of, and then you consider all of that. Because I do not know which parts may be, you put all of that before you and you consider that.

If you do decide to reject the evidence of the defendant in its entirety, put that evidence aside again and ask yourselves whether the prosecution has proved his guilt so that you are sure on Count 1, and separately, so that you are sure on Count 2 because you must consider these offences separately, so one at a time and then, if you do that, on the basis of the prosecution’s evidence for each one, which you have found to be truthful and which you accept. It is actually a fairly easy exercise if you think about it. It is just, get rid of the bits you do reject and then see what you think of the rest of them, but always bear in mind that the onus on the prosecution is higher and must be sure of this, as opposed to the defendant, “Do I accept what he says, or may it be?” But then, you have to decide what that evidence is and how important that is to your decision making on the offence on Count 1 as to what happened at the podium, and what was in the bag, and on Count 2, quite separately, what happened in the room.”

17.The next part of the summing-up summarised the prosecution evidence and the challenges to the prosecution case by the defence. The judge discussed how the jury should assess the evidence, suggesting that evidence they rejected should be put to one side or in the “rejection bin”. When dealing with the appellant’s alleged admission to the police officer at the time of his arrest, which was recorded in the police officer’s notebook, she said the following after discussing the issues they had to consider[20]:

“... If it was not the case that you had just said, “I believe the officer. I believe what the officer says. I believe his oral evidence”, end of story. Or, “I’m not sure about that, so I am going to look at the defence case as to what happened thereafter.” Yes? “And I’m going to look at that in the round and see if what I believe.” And you go on and look at it all. But of course, I keep going back to what the defence say, which is, “If what they say is true or may be true, then you reject that evidence.” That evidence alone is not going to acquit the defendant, just because you have put it all in your bin page, at all, is it? But it is evidence you would not consider, you would put to one side when you are considering whether he is guilty or innocent of the offences as charged.”

18.The prosecution presented its case on the basis of the accomplice evidence of Chan and other evidence that was mainly set out in the admitted facts, on which the prosecution invited the jury to draw the only reasonable inference that the appellant was knowingly involved in the trafficking of the drugs. It was on the latter aspect of the prosecution case that the judge addressed the jury on inferential reasoning. She explained that if they disbelieved or did not accept Chan’s evidence, it was the prosecution case that from the proven evidence they could infer that the appellant was trafficking in the drugs. She said[21]:

“… you can go on to draw an inference of the involvement of the defendant by reference to facts which are proven and that is the first step, facts which are proven and which are not in dispute, such as his accepted presence for 6 hours within, in and out of the hotel room, you are entitled in law to draw an inference if you find certain facts proved. You are entitled to infer the existence of other facts.

The first stage is to find facts which you are sure of, which are proved facts, as I said, there are others, but there are also the facts within the Admitted Facts. But you will find there is a number of situations where both of the defendant and the other defendant, Mr Chan, the witness, do actually agree certain things, all right? So that is a matter for you, what facts are proved.

The second stage is to consider the inference you wish to draw. “What do I wish to draw from this?” And then ask yourself, “Is that inference”, for example, the inference that the defendant was involved in the trafficking of dangerous drugs, all right, “Is this inference that he was involved in the trafficking of dangerous drugs the only reasonable inference which can be drawn from those facts?”

19.The judge then gave an example of drawing the only reasonable inference or irresistible inference from a set of facts, and another example where that could not be done. She then went on to explain[22]:

“So if there is a reasonable inference that can be drawn on behalf of the prosecution, but also a reasonable inference that can be drawn on behalf of the defendant, you may not draw the inference against the defendant, he has to be given the benefit of the doubt. That is why this rule says, “If it is the only reasonable inference you can draw, you can draw it” because obviously, there are other reasonable inferences, it is not the only one, is it?”

20.At this juncture, two important observations should be made. First, the judge had repeatedly emphasised with the jury that if the defence case or the appellant’s evidence was true or may be true, then the appellant was entitled to be acquitted. Secondly, the judge had clearly explained that they could only draw an inference against the appellant if it was the only reasonable inference that could be drawn from the proven facts. She emphasised that they could not draw an adverse inference against the appellant if a reasonable inference could be drawn on his behalf because he “has to be given the benefit of the doubt.”

21.The proven facts that the prosecution were relying on to show that the appellant had knowledge of the drugs were summarised by the judge and can be briefly stated as follows: (1) the appellant was together with Chan when they were arrested; (2) the appellant had a connection with the hotel room and stayed there, having booked and paid for the room; (3) the appellant carried a number of boxes to the room, there was no suitcase or personal items in the room, which had scattered inside it drugs and related paraphernalia; and (4) the appellant’s telephone had stored images of the drugs measured and weighed[23].

22.After setting out the proven facts that the prosecution were relying on, the judge went on to say[24]:

“Those are the proven facts. The type of proven facts from which you can draw an inference, he says the only reasonable inference that the defendant must have known. Of course, the defendant will say, ‘Take all the things I said. If you find they are proven, if you are sure of what I said, “I rested, I slept, I did this, I did that, things were covered”,’ for example, not making light of it, but I have already told you what he said, and if you believe that, then there is an inference which can be drawn in his favour that he did not know, if you believe that evidence. So you would weigh them up. It is for you to decide what the facts are and then do the exercise of ‘Can I draw the inference? What inference do I want to draw? Is there another reasonable inference?’ Yes. It is for you to decide that.

You can, in that exercise, say to yourself, if you have facts which you do accept and may be used in reliance for the defendant, whether that that inference is probable or not, highly probable or not. So there are circumstances in which you can say, ‘That’s too incredible to believe.’ Maybe in the prosecution’s case as well, I am not trying to persuade you one way or the other. Just saying that this exercise is one that perhaps you do not need to go to at all, you may come to decisions without ever dealing with inferences. You may do it, you may decide purely on the evidence of Chan, purely on the evidence of the defendant. But if you got to that stage, for example, remembering that if you were to reject Mr Chan’s evidence, that is not the end of the story, is it? Prosecution have to prove their case. And then, you may say, ‘Well, I’m not too sure about Mr Chan’s evidence either.’ And then you may say, ‘Well, let’s look at whether we can draw an inference.’ Yes? You might do it that way. These are options. But you must do them in the way that I have said.

So I will remind you, you are entitled in law to draw inferences from proven facts, but only if that inference is the only reasonable inference which can be drawn from those facts. If there is also a reasonable inference to be drawn in favour of the defendant, as well as one which can be drawn against him, you may not draw the inference which is adverse to him. So you must also look at what the defendant has said in evidence.” (Italics added)

23.The italicised parts of the above passage are the impugned remarks that the appellant has directed his criticisms in respect of the judge’s summing-up in this appeal.

The appellant’s submissions

24.Mr Boyton contended that the judge’s direction on inferences was unclear and confusing to the jury, and may have unfairly placed the burden of proof on the appellant. He submitted that the judge by telling the jury to draw an inference “if you are sure” of what the appellant said, reversed the burden of proof; and by commenting whether the appellant’s evidence was “probable or not” and “highly probable or not”, imposed a civil standard of proof on the defence evidence for it to be accepted. Mr Boyton submitted that the compound effect of the impugned remarks would have possibly caused the jury to follow an impermissible line of reasoning, that is, in order to undermine or rebut the prosecution case and inferences leading to guilt, the appellant’s evidence had to be accepted to a civil standard or even to the extent that they were sure of it.

25.Mr Boyton argued that the judge’s remarks constituted a material misdirection and the conviction was unsafe and unsatisfactory. He added that the nature and circumstances of the judge’s misdirection could not be saved by the application of the proviso.

The respondent’s submissions

26.Mr Ira Lui, with him Mr Ivan Tan, for the respondent, submitted that the judge’s impugned remarks could have been better expressed but did not constitute a misdirection or confuse the jury on drawing inferences. He submitted that on a proper understanding of the summing-up as a whole, two fundamental legal principles were clearly conveyed to the jury, namely, that they should acquit the appellant if his defence was or might be true; and that the burden of proof was on the prosecution and not on the appellant.

27.Mr Lui submitted that the impugned remarks were brief and given in the limited context of instructing the jury how to weigh the prosecution and defence evidence, with a view to setting out scenarios in varying degrees of possibility to convey how the jury ought to deal with the evidence and accordingly draw permissible inferences. He argued that the judge could not be criticised for telling the jury to take into account the appellant’s evidence before deciding whether an adverse inference could or should be drawn against him, which was clearly the message the judge was seeking to convey to the jury.

28.Mr Lui submitted that when the judge used the terms “probable or not” and “highly probable or not” there was no reference to the burden and standard of proof. Hence, there was no basis to suggest that the jury would have misunderstood that the burden of proof was on the defence, or that they would have engaged in an impermissible line of reasoning by thinking that the appellant had to rebut adverse inferences on a civil standard of proof. He argued there was clearly no misunderstanding as suggested by the appellant as no objection or query was ever raised by defence counsel or the jury regarding the impugned remarks or the directions in general.

Discussion

29.When considering specific remarks in a summing-up it is critical to put them in context and read the summing-up as a whole when assessing whether the jury may have been misdirected by those remarks on a fundamental issue, such as the burden and standard of proof. As stated by Macrae VP in HKSAR v Chua Shirley Masigla and others[25]:

“It is not at all uncommon for a judge to give an overarching direction as to the burden and standard of proof at the commencement of their summing-up in accordance with the specimen directions and subsequently to ask the jury to consider what they ‘accept’ or ‘think’ or ‘find’ or ‘believe’ of a particular piece of evidence, including defence evidence, as he or she proceeds through a summary of the evidence. To require a judge each time he or she uses such an expression to add the qualification ‘or may accept’, ‘or may think’, ‘or may find’, ‘or may believe’ would be unrealistic and an unnecessary counsel of perfection. It is also an affront to the intelligence of the jury in understanding the burden and standard of proof in criminal trials. What is essential is that, reading the summing-up as a whole, the message is clearly conveyed by the judge to the jury that it is for the prosecution to prove all matters in issue and for the defence to do no more than raise a reasonable doubt about them. However, there is no burden on the defence. When one reads this summing-up as a whole, this ground of appeal is not reasonably arguable.”

30.It is submitted by the appellant that the judge’s impugned remarks unfairly placed a burden of proof on the appellant to prove an innocent inference and directed the jury to draw such an inference from the appellant’s evidence which they accepted according to the civil standard of proof. It is argued that the judge by directing the jury “if you are sure of what” the appellant said, placed a burden on the appellant; and by commenting that on facts accepted in favour of the appellant “whether that that inference is probable or not, highly probable or not”, required that the appellant’s evidence had to be accepted on the civil standard of proof. It is contended that this placed a burden on the appellant according to two different standards to prove that he was innocent.

31.As we have already noted the judge correctly and repeatedly directed the jury that the onus of proof was always on the prosecution and the appellant did not have to prove his innocence[26], and that the appellant was entitled to be acquitted if his defence was or might be true[27].

32.It is appropriate to refer to the decision of Jim Fai v HKSAR[28], in which Chan PJ, giving the judgment of the Court of Final Appeal, highlighted the fundamental difference between the treatment of defence evidence and prosecution evidence, which he explained was intrinsically linked up with the direction on the burden and standard of proof. He noted that when it comes to defence evidence, even if the jury totally reject it, they still had to be sure that the prosecution evidence was true and that there was no reasonable doubt before they could convict the accused. He explained that if the jury think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence had raised sufficient doubt in the prosecution case and the jury have to acquit the accused. See HKSAR v Kwan Tat Yee [29].

33.We are satisfied that the jury would have clearly understood from the judge’s directions that if the defence had raised sufficient doubt about the prosecution case then the appellant was entitled to be acquitted and that no inference could be drawn against the appellant, unless it was the only reasonable inference.

34.In the passage in which the judge made the impugned remarks, she was addressing the prosecution’s argument that the jury could draw the only reasonable inference from the facts the prosecution submitted had been proven that the appellant knew of the drugs should they reject Chan’s evidence[30]. She presented the countervailing argument that such an inference could not be drawn if the jury believed the appellant’s evidence. She told the jury that the appellant would be asking them to accept his evidence and find the things that he said to be proven, if they were “sure” of what he had said, reminding them that the appellant had testified that he had rested in the hotel room and the items there had been covered. She further told them that if they “believe” the appellant’s evidence then there was an inference which could be drawn in his favour that he did not know of the drugs. She concluded by reminding the jury that it was a matter for them to decide the facts and what inferences they could draw.

35.Mr Boyton takes issue with the judge’s remark to the jury about being “sure” of the appellant’s evidence. This was the correct standard of proof and the judge by her remark was not putting a burden on the appellant to prove his innocence. She was merely pointing out evidence that the appellant would be relying on to invite the jury to draw an innocent inference. She put the defence position that if the jury “believe” the appellant’s evidence then they should draw an inference in his favour that he did not know of the drugs. The judge’s remarks were obviously designed to ensure that the prosecution’s submission that the jury could draw an inference of knowledge from the proven facts was given a fair and balanced consideration by them.

36.Having directed the jury to consider the defence evidence, the judge went on to explain:

“So you should weigh them up. It is for you to decide what the facts are and then do the exercise of “Can I draw the inference? What inference do I want to draw? Is there another reasonable inference?” Yes. It is for you to do that. You can, in that exercise, say to yourself, if you have facts which you do accept and may be used in reliance for the defendant, whether that that inference is probable or not, highly probable or not. So there are circumstances in which you can say “That is too incredible to believe.” Maybe in the prosecution’s case as well. I’m not trying to persuade you one way or the other.” (Italics added)

37.Immediately following these remarks, the judge reiterated to the jury that if they rejected Chan’s evidence they had to consider the circumstantial case against the appellant which the prosecution had “to prove”[31]. She made it abundantly clear that on drawing an inference of guilt against the appellant, the onus of proof was on the prosecution.

38.In the first set of impugned remarks, the judge was merely telling the jury that if they were sure of or believed the appellant’s evidence, there was the basis from which they could draw an innocent inference in his favour. She did not reverse the burden of proof on the appellant. She was simply ensuring that the jury considered whether they could draw other inferences from the facts that they had accepted. In the second set of impugned remarks, the judge did not suggest that the jury had to accept facts from the appellant’s evidence according to the civil standard of proof, although that would have been at a lower standard than that of the criminal standard of proof. We reject the appellant’s interpretation of the judge’s impugned remarks for the following reasons. First, the judge did not use the phrase “probable or not, highly probable or not” in respect of the appellant’s evidence. She used the phrase in respect of an inference drawn from facts which they accepted that might be used in the appellant’s favour to illustrate competing inferences. Secondly, she was urging the jury to appropriately appraise the drawing of an inference from the facts that they accepted and to consider whether such an inference was “too incredible to believe”. Thirdly, she made it plain that her remarks applied equally to the prosecution case.

39.In our view, there is no basis that the jury would have understood that the appellant had to rebut adverse inferences on a civil standard of proof. The judge gave the jury clear directions on how they should approach the drawing of inferences, providing them with examples to assist them in this exercise.

40.We are satisfied that the judge was instructing the jury to critically appraise the prosecution’s case and the evidence as a whole before drawing an adverse inference against the appellant. The overall effect of judge’s remarks was to reinforce to the jury that it was a matter for them to decide what facts they accepted and what inferences they could draw, emphasising the principle that no inference could be drawn against the appellant, unless it was the only reasonable inference. In our judgment, there is no reason to suppose that the jury failed to understand or apply the principles governing inferential reasoning.

41.The judge’s remarks when considered in their proper context, cannot be said to be unfair or adverse to the appellant’s case. We reject the appellant’s contention that the judge’s remarks reversed the burden of proof on the appellant or imposed the civil standard of proof in accepting the appellant’s evidence from which they could draw an inference, which would have been to the appellant’s advantage. As we have already noted, the overriding direction from the judge was that the appellant should be acquitted if his evidence was or might be true.

42.Accordingly, we are satisfied that the judge’s impugned remarks did not constitute a material misdirection, and for the reasons that we have given we dismiss the appellant’s appeal against conviction.

The order of “no separate penalty”

43.An issue was raised before us concerning the sentences passed by the judge on the appellant and Chan. Both had been found in possession of a small quantity of ketamine at the time of their apprehension and this was reflected as a separate possession count against them together with the two trafficking counts. When sentencing the appellant and Chan, the judge applied the guidelines for ketamine as laid out in HKSAR v Hii Siew Cheng[32], which she appropriately adopted to the circumstances of their respective cases, but when dealing with the possession count, she stated that there would be “no separate penalty”.

44.Mr Lui pointed out that the judge’s order was in effect an absolute discharge for the possession count. He submitted that the judge had power to discharge a defendant conditionally pursuant to section 107 of the Criminal Procedure Ordinance, Cap 221, but could not do so unconditionally under that section or section 36 of the Magistrates Ordinance, Cap 227.

45.It is the usual practice when sentencing multiple offences to pass a sentence for each offence in accordance with relevant sentencing principles and policies. However, we have not heard argument or received submissions on a judge making an order of “no separate penalty” when sentencing an offender upon conviction of an offence together with other offences, but we note that it may be an issue that should be raised before us in an appropriate case.

Mr Ira Lui, ADPP, and Mr Ivan Tan, PP, of Department of Justice, for the respondent

Mr David Boyton, instructed by Alvin Cheng & Rosaline Choy, assigned by Director of Legal Aid, for the appellant