HKSAR v. Leung Chiu Yun

[English Translation – 英譯本]

CACC 229/2019

[2022] HKCA 1600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 2019

(ON APPEAL FROM HCCC 67 OF 2019)

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BETWEEN

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JUDGMENT

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

1.This is a case from the Court of First Instance of the High Court. After trial, the applicant was convicted of Count 1 (“trafficking in dangerous drugs”) and Count 2 (“attempting to traffic in a dangerous drug”) but was acquitted of Count 3 (“possession of a dangerous drug”). The trial judge (Deputy Judge Anthony Kwok) sentenced him to imprisonment for a total of 17 years and 10 months. The applicant applied for leave to appeal against his convictions. The application was referred by a single judge to the Court of Appeal.

Prosecution case

2.The prosecution case is summarised as follows.

3.At about 0230 hours on 10 March 2018, the police conducted an anti-crime patrol in the vicinity of Sham Shui Po, during which police officers spotted two men acting furtively and keying in the passcode to the main entrance on the ground floor of Kam Sha Mansion, 212 Tai Nam Street. The officers followed the men in for investigation. Upon patrolling to the 9^th floor, the wooden door to one of the flats was seen open and the metal grille left ajar. In room 1 of the flat there were three men and one woman including the applicant with an array of items on the bed such as an electronic scale, several mobile phones, a quantity of transparent re-sealable plastic bags and drug paraphernalia (“ice” bottle).

4.According to a police officer’s testimony, at that time the applicant was sitting on one side of the bed and holding in his right hand a transparent re-sealable plastic bag, containing what was subsequently confirmed to be dangerous drug “ice”. After being arrested for “trafficking in a dangerous drug” and cautioned, the applicant said that the dangerous drug “was brought here by the hooligans for me to sell”. Upon a further search, the police found in the room more transparent re-sealable plastic bags containing dangerous drug “ice”. After being cautioned for the second time, the applicant said that “these were also brought to me by the hooligans”. The above confessions were recorded in the police notebook of PW1[1].

5.Based on the results of chemical examination, the substances found upon search in room 1 were made the subjects of the three counts concerned, namely: 430.45 grammes of pure “ice” and 11.1 grammes of herbal cannabis in thirty-odd bags (valued at HK$256,618 and HK$3,019 respectively) in Count 1; 110 grammes of a crystalline solid containing a non-controlled substance in four bags in Count 2; and “ice” residue in the “ice” bottle in Count 3.

Defence case

6.In short, the applicant denied possessing the dangerous drugs involved and contended that he had no knowledge of the drugs. He also denied making the confessions as alleged by the police. According to him, the confessions were fabricated.

7.The applicant’s testimony is summarised as follows: he earned a living by running a street stall trading various goods. At about 0100 hours on the day in question, a woman whom he knew brought a Vietnamese man to his rented residence at room 1 to buy jade. Since the applicant had stopped trading jade for some time due to his chronic illness, he told the two persons they could take whatever they wanted from the sundries. Moreover, the applicant had taken medication, and therefore, he continued to sleep after saying the above. Later, he was woken up by some noise, but since he did not put on his glasses, he only had a fuzzy view of someone walking to and fro at his bedside and leaving something behind. The applicant tried to get out of bed, but someone shouted “don’t move”, and subdued him by force.

8.The applicant went on to say that the police never cautioned him at the scene. He did say that “it was the hooligans who brought the stuff here”, but the four words “for me to sell” were definitely not included. As to the other utterance that “these were also brought to me by the hooligans”, it was a total fabrication and he never said that. He was willing to accede to PW1’s request and signed on PW1’s notebook because he was not feeling well while the officer clearly stated that he would be taken to see the doctor only after the latter’s work was finished; and also because he was scared after being assaulted by the police officer. In any event, as he was not wearing glasses, he was unable to see clearly the contents of the notebook.

9.Regarding the query of the prosecution as to why he had not complained about the misconduct of police officers to the duty officer, the doctor in the hospital and/or the magistrate at the mention hearings, the applicant gave various explanations, such as: he had raised the matter with other police officers; he had been pre-occupied with his physical condition while being hospitalised and he had been told by the court staff and duty lawyer that he “may say it or not” [2]. He said it was only more than a year later, as the police had mishandled the case (the other three persons in room 1 were released but he was prosecuted), did he realise he had to lodge a complaint to the Complaints Against Police Office[3].

Grounds of Appeal

10.Mr. Eric Cheung, Solicitor Advocate, who did not represent the applicant at trial, put forward the following two grounds of appeal.

(Ground 1)

11.Ground 1 criticised the trial judge for failing to give proper directions to the jury in respect of the applicant’s delay in complaining against the police.

12.The background in relation to this ground of appeal is as follows: the prosecution cross-examined the applicant and attacked him during the closing submission on the delayed complaint[4]. At the closing stage, the defence cited the applicant’s testimony in response[5], during which the defence suggested that the applicant had availed himself of the right to silence by lodging no complaint to the magistrate on the advice of people such as the duty lawyer[6]. This submission led to an objection from the prosecution. The prosecution relied on the determination of the Appeal Committee of the Court of Final Appeal in Wong Chuck Pan[7] and took the view that whether the applicant had availed himself of the right to silence was still a “live issue” at that time[8], and the defence should not unilaterally jump to its own conclusion. The trial judge agreed with the prosecution and criticised the defence for putting the matter in a too “emphatic” manner[9] that would make the jury “not to take it into consideration”[10]. In the end, the defence accepted the criticism, withdrew the suggestion of exercising the right to silence from the jury and re-characterised the applicant’s lodging no compliant to the magistrate as having a “reasonable excuse”, i.e., because he was “under the influence of the legal personnel”[11].

13.Mr Cheung accepted that according to Lam Sze Nga and Lam Sze Nga (No 2)[12], the prosecution may cross-examine the defendant who claimed to have made no confession or only an involuntary confession. The content of the cross-examination might include the reason for which the defendant did not complain or delayed in complaining. The cross-examination would help the jury consider whether the defendant actually made the confession or voluntarily made the confession, i.e., whether the defendant availed himself of the right to silence (the Availment Use). The evidence given would determine what use could eventually be made of it. However, the court should give the following direction: if the jury considered that the defendant’s assertion was true or might be true, the defendant should be treated as if he had maintained his right to silence, in which case the jury could not draw any adverse inference against him (including the Guilt Use and the Credibility Use).

14.Mr Cheung criticised the prosecution for having crossed the line in its closing submission when the applicant was attacked for his delay in complaining and it constituted the Credibility Use which was prohibited as much as the Guilt Use as stated in Lam Sze Nga and Lam Sze Nga (No 2). To make the situation worse, the trial judge failed to take note of the problem and only focused on clarifying the defence’s suggestion again in the summing-up[13] without giving the full directions to the jury in regard to the principle stated at paragraph 13 above[14].

(Ground 2)

15.Ground 2 criticised the trial judge for failing to give proper directions to the jury on the lack of fingerprint evidence.

16.As shown in the relevant transcript, the defence mentioned in its closing submission that even though PW1 claimed that he saw the applicant holding a bag of drugs, there was no independent evidence in the case such as fingerprints to support this allegation; therefore the benefit of the doubt should go to the applicant[15]. In the absence of the jury, the trial judge refuted that the lack of fingerprint evidence by itself was neither in favour of the prosecution nor the defence, and thus it was “neutral” [16]. As the defence was reluctant to clarify this matter, the trial judge then expressed that he would warn the jury not to “speculate due to the lack of [fingerprint] evidence” [17]. The trial judge gave the relevant directions accordingly in the summing-up[18]. The trial judge even mentioned to the jury that “whether fingerprints could be lifted or not … there are many factors … it did not mean there was definitely no contact even if there was no fingerprint lifted”[19].

17.Mr Cheung’s argument was that there should be two scenarios. If there was no fingerprint examination at all, the lack of fingerprint evidence by itself could not of course prove anything and would indeed be neutral. However, if the lifting of fingerprints was claimed to have been performed by law enforcement agency and the finding was negative or there was no discernible marks to permit identification, while the facts in the case indicated that the defendant would likely or possibly have left his fingerprints, then the fact of having no fingerprint evidence may be taken into account by the jury as one of the factors in favour of the defendant’s acquittal.

18.Mr Cheung went on to say that the present case in light of its facts fell into the latter category. Hence, the neutral direction given by the trial judge was wrong. In the absence of any related expert evidence, it was also not correct for the trial judge to point out to the jury that contact might not result in leaving a fingerprint. See Silva Barba[20].

Analysis and Discussion

(Ground 1)

19.Undeniably the prosecution criticised the applicant regarding the delay in complaining; apart from that, they failed to explain to the jury directly about the restriction of the Availment Use. However, it was the duty of the judge to clarify the issue; thus, our concern is the content of the summing-up. As the trial judge was aware of Wong Chuck Pan and the relevant law, the core of our concern is whether the message therein could be fully conveyed by the summing-up to ensure that the jury would not fall into the trap of drawing improper inferences.

20.Regrettably, we do not consider that the summing-up of the trial judge achieved the required effect. As this court has discovered, the trial judge mentioned the applicant’s delay in complaining twice, but on each occasion, the focus was on whether the delay was reasonable. Regarding the part where no complaint was made to the magistrate, he even plainly stated that it was “not a question of right to silence”. As to what the significance of the reasonableness of the delay was and under what circumstances the jury could make use of the relevant finding, the trial judge did not make it clear. In the first of the two relevant paragraphs of directions, it could even have been understood that he had indirectly told the jury that if the jury found that the applicant’s failure to complain was not due to the influence of others such as the duty lawyer, the jury could proceed directly to draw an adverse inference against the applicant (see the last sentence of the first paragraph)[21]:

“ And questions were also asked in cross-examination about the complaint, that is, at the time the drugs were weighed, at the time when they were put into a tamper-proof bag and when the duty officer was present, why did the defendant not ask PW1 the question of whether there was any complaint. It was also the evidence of PW1 that no complaint was made in the presence of the duty officer. On this point, you should remember that on the last occasion when Mr Wong made his submissions to you, he once mentioned about the complaint, about the defendant’s failure to complain at the magistracy. He once mentioned the question of right to silence, saying whether the defendant was exercising the right to silence. However, later, upon consideration, after thorough consideration, Mr Wong confirmed that he would withdraw this suggestion. It is not a question of right to silence. It is simply a question of whether the defendant was influenced by the things said to him by those court staff. Therefore, when you consider this matter, you should focus on whether it was possible for him to be so affected. If you are of the view that he might have been influenced by those staff so that he did not lodge a complaint, then do not use this point, which is about his failure to complain, to strengthen any adverse consideration against him.”

“ Well, going back to the defendant’s complaint. In the second set of admitted facts, two documents were submitted subsequently, and the complaint made to the Complaints Against Police Office was included. You must take note that this was not a recent complaint, not one after the occurrence of the incident, but a complaint which he lodged after almost a year had passed. For this matter, he also gave an explanation. He said it was because after such a long time that he reckoned that he had not been treated fairly by the police and the investigation of the case had been insufficient. He then decided to lodge a complaint after such a long time, when he would be attending court soon. So you take the view—if you take the view that his assertion is acceptable, then you need not particularly consider that he made the complaint at such a late stage or did not make a recent complaint. Yes, in any event, he did lodge a complaint. So, to some extent, when the prosecution said: why did you not make a complaint if it had really happened? He did lodge a complaint, which is also an objective fact, only that such a complaint was not made instantly. It was made after a long time. It was done a year later. So what is the significance? This is a matter for you to consider.”

21.We must also point out that the above two paragraphs of directions were both located at the summary of the witnesses’ testimonies that were, in the transcript of the summing-up, over ten pages apart from the directions below about how the jury should deal with the confessions in the case. Coupled with the lack of cross-reference between the contents of the two parts, it was really difficult for the jury to understand any connection between them[22]:

“ The above is the defendant’s allegation against the police officers in regard to his confessions. I believe that all of you are very clear about the things said by the defendant. Members of the jury, when you are considering whether it is safe and proper to use the defendant’s confessions made under caution as alleged by the prosecution as the basis of your verdict in this case, you must take into account the following points. Firstly, did the defendant make the relevant confessions? Secondly, did what the defendant allege against PW1 and PW2 actually take place? Thirdly, was the content of the defendant’s confessions true? For the first point, that means whether the defendant actually made the confessions under caution. You have heard all the testimonies from the prosecution and the defence. The police officers from the prosecution said that he did, while the defendant said that he was not cautioned and the content of his confessions was not like that. In this regard, you are to consider the matter carefully based on the testimonies of both parties that you have heard. In the end, if you are not sure whether the defendant really said ‘for me to sell’ in the room, this utterance, these words, you should disregard this evidence of confession. Disregard this piece of evidence in your consideration.

However, if you are sure after consideration that the it was really like what PW1 had said, if you accept PW1’s testimony, if you accept PW1 to be honest and reliable, and you accept that PW1 actually did caution the defendant and the defendant really did say after the caution that ‘the stuff was brought by the hooligans for me to sell’, if he really said so, then for the second point, I will ask you to be sure, to be sure upon consideration, that the defendant’s allegation against the police officers did not take place before you can make use of this confession. In the course of considering whether the content of the defendant’s confessions or replies was the truth, you have to decide whether the defendant’s confessions, the declarations he copied and the content and replies he gave were or might have been a result of oppression, or something said or done by the police officers in the case that would probably render the defendant’s confessions or replies unreliable. If your decision after careful consideration is that such admission by the defendant, that is to say the dangerous drugs were brought to him for sale, or such replies he gave, even though he said so, was a result or probably a result of oppression, or acts, or things said or done to the defendant by any of the police officers in the present case, and such oppression or acts, or things done or said might render the confessions or the replies of the defendant unreliable, then you should disregard such confessions and replies of the defendant. That means even if you are sure that the defendant said what is contained in the oral confessions, that he did say so, giving such replies, and they were really something spoken by him, but if your decision in the end is that the defendant’s allegation against the police officers, that means the allegation against PW1, is or may be true, that is, what he said about the police officer — about the improper treatment of him, that means telling him to see a doctor and he ignored them, hoping that he would cooperate as soon as possible — if you take the view that it was really probably the case, then you cannot consider or use the confessions and replies for your verdict. Do not consider the confessions and replies any further. So, please put aside all the confessions and replies from your consideration. You cannot draw any adverse inference against the defendant for having made the oral confessions or replies. You must not consider at all the oral confessions and replies made by the defendant. You must also bear in mind that all along the defendant had the right to silence in law.”

22.In a nutshell, the trial judge failed to comply with what the Court of Appeal identified in Lam Sze Nga (No 2) the directions to combine the law with the facts to deal with the issue of delay in complaining, so that there was a high chance that the jury might engage in an impermissible line of thinking. Certainly, the relevant directions do not need to follow a specific format, but the contents below must be included[23]:

“ 46. In the context of the argument before the Court of Final Appeal (which focussed 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”.

47. However, the Judge should have gone on to direct the jury that if they found in the applicant’s favour on the issue of coercion (ie step 2 above), they should then treat her as if she had maintained her right of silence, in which case adverse inferences could not be drawn, whether for the Guilt Use or the Credibility Use (para.28).”

23.The respondent stressed that the applicant had not denied telling the police that “it was the hooligans who brought the stuff here”; according to cases such as Li Siu Hing and Ko Cheuk Fan[24], once the applicant responded to the enquiries of the police officers, he should be deemed as having waived his right to silence. Hence, the mistake of the trial judge in dealing with the relevant issue would no longer be significant. The problem is that according to the applicant’s evidence, he was assaulted by the police when he was trying to get up in bed. Therefore, the submission is certainly not an answer on which the respondent can rely.

(Ground 2)

24.The circumstances in Silva Barba were exceptional: the defendant was found having concealed dangerous drugs in his luggage when he came into the territory via the airport. The Customs and Excise Department made no attempt to collect any DNA but only lifted fingerprints from the various layers of the wrapping material of the five packets of drugs. The result was that no marks with sufficient characteristics were discerned to permit identification. Other items on the prosecution’s list of exhibits such as the defendant’s luggage, hand carry bag, clothing, boarding passes, hotel reservation document, newspaper, personal computer and charger were never sent for an examination. However, it was rashly stated in the admitted facts that “There is no fingerprint or DNA evidence of the defendant found or lifted from any of the prosecution exhibits”[25].

25.As seen from the relevant paragraphs of the judgment of that case, it was the binding effect of the admitted facts[26], that a large quantity of personal items belonging to the defendant and with various surface materials must be found lacking his biological traces, that led the Court of Appeal to rule that the judge could not assert that “there are many reasons why contact may not result in traces of DNA and/or fingerprints” in the absence of expert evidence[27]. That is to say, similar representation may not necessarily be wrong; one has to look at the unique circumstances of each and every case. The same understanding is seen in Zhou Limei[28], another case of the Court of Appeal, where it was held that, in the circumstances of that case, the conviction was not affected even though the judge had remarked that it was “common sense” that contact would not necessarily leave fingerprints and DNA and that the absence of evidence of fingerprints and DNA was “neutral”[29]. After all, it all depends on the facts of the case.

26.Hoang Gia Huan and Manan Abdul is the latest authority on the relevant issue. It involves two separate cases heard together[30]. In the end, the outcome of the two cases varied due to their different facts. In summary, Hoang’s appeal was dismissed for the reason that[31] Hoang was a regular visitor of the hut in question and not only was he present at the scene on the material day, he also claimed to have fallen asleep there; the police expert was unable to find Hoang’s fingerprints on the drugs and other prosecution exhibits, but the expert explained in court that he had only examined certain exhibits and that some items were unsuitable or even impossible for fingerprint examination to be conducted; the prosecution case was nevertheless that Hoang was in possession of the drugs inside the hut although Hoang had not necessarily come into contact with the drugs; the judge of the case indeed told the jury that “the lack of fingerprints does not necessarily mean that there was no contact”, but he pointed out at the same time that “it is for the jury to decide whether the lack of fingerprint evidence is and will be in favour of a certain party”; in other words, the judge did not stop the jury from taking into account the fact that there was no fingerprint evidence.

27.The sharp distinction between Manan and Hoang is that the drugs were found in Manan’s trouser pocket and the wardrobe in the bedroom of his home. The prosecution case was that Manan took some drugs from his home to the streets for supplying to others[32]. That is to say, people would perhaps expect that Manan’s fingerprints would be found on the above two batches of drugs, but that was not the result from the examination. The police failed to send the electronic scale and the small plastic bags found in the wardrobe for examination. In the above circumstances, coupled with Manan’s defence (the bedroom was actually occupied by another man present at the scene and the applicant happened to be wearing the trousers he had borrowed from that man)[33], the Court of Appeal ruled that the judge should not “usurp” the function of the jury by giving a direction in the summing-up that “the absence of fingerprints proves nothing one way or the other”. The Court of Appeal pointed out that the absence of fingerprints was a fact relevant to the issue of whether Manan was in physical possession of the two batches of drugs[34].

28.From a review of the authorities we shall return to the present case. The respondent confirmed at the hearing that the police had conducted examination for fingerprints on the exhibits in the present case, only that there was no positive finding. This is a surprising revelation. What it means is that the defence did not even request to have this fact which was very favourable to the applicant stated in the admitted facts. Likewise, the prosecution did not call any expert witness to explain why a person who had contact with an object would leave no fingerprint. In the case there was only the testimony of one of the officers (PW2) who had gone into the flat and said that forensic officers arrived at the scene to lift fingerprints on that night[35]. There was no further evidence or testimonies as to what exhibits were examined by forensic officers, whether the result was that nothing positive had been found or that only marks of no value for identification were found. This must have been the reason why the defence could only state generally in the closing submission that “there is no evidence”. The above circumstances were extremely undesirable, be it for the prosecution or the defence, who were prevented from trying their best to argue their respective cases.

29.In any event, the present proposition of the respondent is that it was precisely due to the lack of substantive evidence on what exhibits were examined that the fact of having no fingerprint evidence by itself was neutral. However, we do not consider it acceptable. Not only does such a proposition smack of taking advantage of the mishandling at trial, it also fails to answer effectively the questions arising from the following matters, namely: the location of the offence was the applicant’s residence; the applicant was alleged to be holding a packet of dangerous drug in his hand at the time of arrest while the other drugs were placed in a large number of plastic bags strewn across the bedroom or in bags within bags; and one of the batches of “ice” weighing some 53 grammes was hidden inside a bag hanging from the bicycle behind the door which was not discovered until a second search by a police dog was conducted. In the above circumstances, one may expect that the applicant’s fingerprints would at least be found on some exhibits, and it is also relevant to the issue of whether the applicant was in possession of the drugs in question. Therefore, the trial judge should not have usurped the function of the jury by directing in the summing-up that the absence of fingerprint evidence was “neutral”. Likewise, given the abundant variety of exhibits, the trial judge should not have made the assertion without any expert evidence in support that “whether fingerprints could be lifted or not, there are many factors, that no fingerprint was lifted did not mean that there had been no contact”.

Decision

30.The applicant’s application for leave to appeal against conviction is granted and the appeal is allowed. The convictions and sentences are both set aside. Moreover, given that the applicant has made it clear that there will be no objection from him, after taking into account the relevant public interest, we order a retrial in the Court of First Instance before another judge sitting with a jury.

Mr Eric TM Cheung, Solicitor Advocate, instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Applicant

Mr Pierre MC Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.