HKSAR v. Au Yeung Fu

CACC000257/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.257
(Criminal)

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Coram: Power, Ag. Chief Judge H.C., Mayo & Stuart Moore, JJ.A.

Date of Hearing: 12 February 1998

Date of Judgment: 12 February 1998

Date of Reasons for Judgment: 24 February 1998

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J U D G M E N T

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Stuart Moore,, J.A. (giving the judgment of the Court):

1. On 12th February 1997, we gave leave to appeal and, treating the hearing as the appeal, we allowed the appeal and quashed the convictions in this case. We ordered at the same time that there should be a re-trial of both counts on a fresh indictment. We now provide the reasons for allowing the appeal.

2. The Applicant was convicted on 1st May 1997, following a trial in the High Court before Deputy Judge Wesley Wong and a jury. He was convicted of two counts of trafficking in heroin hydrochloride. In the first count the mixture contained 3.29 grammes of the dangerous drug and in the second count 53.33 grammes.

3. The case was one which fitted a familiar pattern. The prosecution's allegation was that the Applicant was stopped and searched as he left his premises. In a trouser pocket were found two resealable transparent bags that contained the drugs in count 1. The Applicant asked for a chance and said they were for his own consumption. He was still holding a bunch of keys in his hand and he was taken to his flat for this to be searched. Again, he allegedly cooperated with police by telling them where the rest of his drugs could be found. Regarding this much larger quantity, he was recorded as saying that the white powder was intended to be sold for a living, and he again asked to be given a chance.

4. The Applicant did not give evidence at his trial and allegations of a frame-up, put on his behalf by Mrs. Panesar when cross-examining officers of the police team who were responsible for this investigation, were wholly denied. In particular, there had been allegations that all the drugs in the case were planted by the police, that police had acquired the keys to the premises from another source, that someone called Ah Kuen was the tenant who lived in the flat, that the Applicant was assaulted after his arrest and that he was even forced to smoke dangerous drugs.

5. In short, the issues were concerned with the credibility of the police team responsible for the arrest. If the police could be trusted and were to be believed, the evidence against the Applicant overwhelmingly showed that he had possession of the heroin and, by virtue of the amount in the second charge, that the Applicant was a trafficker.

6. Against that background, Mrs. Panesar has raised a large number of grounds of appeal. These were by no means easy to follow because the amendments to the Perfected Grounds of Appeal had not been highlighted in the way this is usually done to draw what has been altered to immediate notice.

7. We have found it necessary only to concentrate upon the more important grounds that are raised. These are closely linked because they are all encapsulated in the last ground of appeal in which it is submitted that the judge failed to sum up the points raised by the defence except where he mentioned them only in order to undermine or discredit them.

8. The first illustration of this arises from the evidence of (PW5) Inspector Melinda Fong Man-yee's evidence seen at page 37A-G of the transcript which reads:

"Q. Inspector, before we carry on. It is right, is it not, that after the defendant was taken to the police station there was a general discussion between all the team members to synchronize the time, the locations, and other matters of that nature?

A. That is true.

Q. And were you present at that ?

A Yes.

Q. And the object of that type of meeting or discussion is to make sure there is no discrepancy in individual officer's recollections of what they perceived as having happened; is that right?

A. True.

Q. And it is to make sure that any differences and difficulties with the evidence and matters of that nature are ironed out before the case ever reaches the court.

A. Yes."

9. It is clear that the answers given by the Inspector were frankly and truthfully provided to the court. We have little doubt that the Inspector was not intending to indicate from those answers that the police had put their heads together in any sense that could be construed as dishonest. However, the main defence issue being put forward at the trial was whether or not the police had put their heads together in order to fabricate evidence. The defence naturally relied heavily on those answers given by the Inspector to show that the police had the opportunity to seal up the cracks in their case. We note, however, that the Inspector never had that suggestion put to her in those precise terms. Whether or not police had fabricated evidence was for the jury to determine, based upon what they could be sure about.

10. The trial judge in his summing-up said this at page 19A:

"You have heard counsel for defence complaining that the police officers, after the case, went back to discuss the time and the place. Does that amount to perversion of justice or that they fabricated the matter? In fact it is not an unusual procedure and the courts in England has ruled that it was proper to do so."

11. Those words were not appropriate in our judgment to deal with this aspect of the case, and seem to amount to an attempt to remove the sting and force of the defence submission that police had discussed between themselves the nature of the evidence they would be giving so that they would not make any mistakes. It may well be that de-briefing exercises are legitimate in certain circumstances, but if this was intended, as apparently it was, to be a direction to the jury that they should regard this meeting between police officers as necessarily legitimate because the English Courts had ruled that such procedures are proper, it dealt a serious blow to the defence. In the present circumstances, the jury might well have been given a warning about the potential dangers when police seek to synchronize times and places by general discussion between themselves, which might have balanced out what the judge told the jury on this issue.

12. In any event, the preponderance of modern English judicial authority is not in agreement with what the trial judge told the jury. In reality it is the other way. An example is R. v. Arif, The Times Law Reports, 22nd June 1993 (unreported), which reads:

"The fact that there was a pre-trial discussion of evidence between potential witnesses could not always render the evidence of such witnesses at the trial so unsafe that it ought to be excluded. While the practice was to be strongly discouraged, each case had to be dealt with on its own facts.

The Court of Appeal (Lord Justice Nolan, Mr. Justice Swinton-Thomas and Mr. Justice Colman) so held on May 26 in dismissing an appeal by Dogan Arif against his conviction in March 1990 at Maidstone Crown Court (Judge Waley, Q.C. and a jury) of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis.

Mr. Justice Colman said that in some trials it might emerge in the course of cross-examination of the witnesses concerned that such discussions might well have led to fabrication of the evidence.

In such a case the court might properly take the view that it would be unsafe to leave any of the evidence of the witnesses concerned to the jury.

There might, however, be other cases where the nature of such pre-trial discussions was such that it would be quite sufficient to draw to the jury's attention in the course of summing up the implications which such conduct might have for the reliability of the evidence of the witnesses concerned. In each case it had to be a matter for the trial judge.

Nothing in this judgment should be taken as affording the slightest encouragement to the rehearsal of the evidence of witnesses either for the Crown or the defence in a criminal trial, much less to the coaching of witnesses. Such practices were to be strongly discouraged because the risk of abuse was so very great."

13. The trial judge was similarly dismissive of the point made by the defence arising from the evidence relating to fingerprints. Bearing in mind that everything from the drugs to the keys were said to have been planted upon the Applicant, and that there was no admissible evidence to link the Applicant to the flat where the drugs in count 2 were found, it is not surprising that a great deal was made by the defence of the absence of the Applicant's fingerprints in the flat where the prosecution alleged he had occupancy.

14. The judge dealt with this powerful defence point in the following way (at page 18E-M in the transcript):

"Concerning the fingerprint evidence, not everything, not every object touched could leave a fingerprint because if it were the case then every object from its production line to the ultimate place where it was found, invariably many people would have touched it and there would be such a lot of fingerprints overlapping each other in which case you cannot really lift any fingerprints at all. Even assuming that if anything one touches a fingerprint will remain on the surface then surely one would have expected there would be fingerprints on the silver tray as well. So, the fingerprint evidence, at best, would be neutral. It does not prove anything one way of another."

15. To digress for a moment, there was one piece of physical evidence intended to show that the Applicant was connected to the flat, namely a receipt for rent with his name on it. This had been introduced by the prosecution during the trial despite objection from the defence. However, it emerged that the receipt had been given by the alleged landlady of the premises to police. For some reason she was never called. The receipt was, therefore, in the nature of hearsay material and the judge rightly told the jury to ignore that document. It is clear that the document should never have been introduced in the trial in the first place and that the objection to its introduction was soundly based.

16. Returning to the subject of the fingerprints, the door was firmly shut on the defence by having their fingerprint point effectively neutralized in clear and unambiguous terms. However, the absence of fingerprints in the flat had been strongly relied upon by the defence. Bearing in mind the potentially prejudicial effect of the inadmissible receipt, it was additionally important for the Deputy Judge in these circumstances to point out the total lack of any physical link connecting the Applicant to the flat. The way the fingerprints were dealt with would merely have served to minimize the point.

17. The same thing happened with regard to the next matter raised by the defence when the judge came to deal with this in his summing up. The defence had, reasonably enough, suggested that if the Applicant had been trafficking in drugs, it might be expected that either his clothing or his fingernails would bear some traces of those drugs. No gloves were found at the address. Furthermore, traces of heroin had been found on the drugs paraphernalia connected with trafficking at the flat.

18. The judge in summing up this aspect said (at page 18 N-T):

"Again, it does not follow that if anyone who had in his possession dangerous drugs, traces of the dangerous drugs would be found on the fingernail, his clothing or his hand because if the dangerous drugs were in the bags then there is no chance for traces of the dangerous drugs to be on those items. The lack of evidence of traces of dangerous drugs on those items, again, is neutral. It does not prove anything one way or another."

19. Once again, it was for the jury to decide if they attached any significance to the negative findings in relation to traces of drugs on the Applicant or his clothing. It was not for the judge on this important matter of fact to direct them that it proved nothing. It may have proved nothing, but that was a matter for the jury to consider in the light of the evidence as a whole, especially after the defence had laid so much emphasis on the point. This was another example of an attempt by the defence to demonstrate that there was nothing which could connect the Applicant to the flat beyond the keys, which were themselves alleged to have been planted. The Deputy Judge's comments reflected the stance taken by the prosecution but failed to remind the jury of how the defence put the matter.

20. We have been provided with the transcript of defence counsel's final speech to the jury, in which it is clear that she argued a number of other important points on behalf of this Applicant. However, no mention of these were made at any stage at all by the trial judge. Two examples are worth mentioning.

21. First, the police agreed that when they found the drugs in count 2 in a wardrobe at the flat, they ceased their search of the remaining parts of the wardrobe. The defence suggested that this was strongly indicative of a plant. If the Applicant was a stranger to them, and they did not know what they would be finding in the flat before the search commenced, the police would surely have searched all the premises and all the furniture before concluding their inquiry.

22. The second example to be found in the speech of Mrs. Panesar to the jury drew attention to the fact that the drugs in the flat were about 25% pure whereas those found the Applicant's possession outside the flat were only about 12% pure. No dilutant was found in the flat. This was, the defence argued, strongly indicative that the drugs came from two different sources. Again, the point was being made that this tended to distance the Applicant from the flat.

23. We are left with the firm impression that this Applicant's case was simply not presented to the jury. At no stage did the judge attempt to balance what he had said to the jury by way of favourable comment on the prosecution's case with how the defence case put the matter, apart from reminding the jury that police witnesses had denied certain allegations that had been put in cross-examination. We take the view that this was not adequate in the present case. One by one, each of the points relied on by the defence with which the judge dealt was either neutralized or demolished in a way that was neither fair nor reasonable unless he had gone on later to put the way in which the defence had presented their case.

24. In the result, the jury were given a wholly one-sided view of the case. It may be that none of the defence points individually, or even collectively, would have carried much weight with the jury, but the judge never left those points to be considered by the jury.

25. For these reasons, we reached the conclusion that the convictions on both counts were unsafe and unsatisfactory and could not be allowed to stand.

Representation:

Mr. J. Reading for D.P.P./Respondent

Mrs. M. Panesar instructed by D.L.A. for the Applicant.