HKSAR v. Chan Kwok Wah

CACC000294/2001

CACC 294/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 294 OF 2001

(ON APPEAL FROM HCCC 365 OF 200)

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Coram: Hon Mayo VP, Stock JA, and Lugar-Mawson J in Court

Date of Hearing: 1 February 2002

Date of Judgment: 1 February 2002

Date of handing down of reasons for judgment: 28 March 2002

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REASONS FOR JUDGMENT

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1.The Applicant was convicted after trial by Mr. Recorder Ching Y. Wong SC and a jury on 31 July 2001 of a single count of trafficking in a dangerous drug contrary to s.4(1) of the Dangerous Drugs Ordinance. He was sentenced to serve 15 years and 6 months' imprisonment for this offence.

2.The dangerous drugs were 406.55 grammes of a crystalline solid containing 404.53 grammes of methamphetamine hydrochloride, the substance commonly known as 'ice'.

3.The Applicant sought leave to appeal against conviction only. He was refused legal aid to prosecute his application on 3 October 2001.

Facts

4.The prosecution's case was a simple one. Around midnight on 27 July 2000, two police officers, PWs 1 and 2, laid ambush at the rear staircase between the 2nd & 3rd Floors of No. 272 Reclamation Street. Three hours later, at about 3 a.m. on 28 July 2000, they heard the sound of footsteps coming from below followed by the sound of the smoke lobby door opening. They alerted another police officer, PW3, who was posted at the other rear staircase on the 2nd Floor of the same building. He looked up the staircase and saw the Applicant at a distance of about 75 to 100 feet standing at the entrance of Flat E, which is on the 3rd floor of the building. He appeared to be opening the door to the flat. PWs 1 and 2 went to intercept the Applicant at the entrance of flat. The iron grill and door of the flat were already open and the Applicant was seen to be holding a white plastic bag containing a paper box. Inside the box paper were 15 packets each containing a white substance, which, upon later analysis, was found to be nearly half a kilogramme of 'ice'. The Applicant appeared to be very nervous and was breathing heavily. PW1 asked the Applicant what the packets were, the Applicant made no reply. PW1 then arrested the Applicant and cautioned him for trafficking in dangerous drugs. In reply, the Applicant said, 'Ah Sir, give me a chance'. The Applicant was then taken into Flat E. A bunch of 3 keys were found, one of which could be inserted into the main door's lock. PW2 asked the Applicant whether the key to the lock was his and the Applicant nodded in assent. PW2 tried all the keys, all 3 were identical and each could operate the lock. The flat was searched, nothing that was suspicious was found.

5.The Applicant, elected to give evidence at trial. He said that he was intercepted by the police on the 2nd floor staircase and was not holding anything at the time of his interception. The police officers brought the box that contained the 3 packets out from the kitchen of the flat. The box appeared to be the box that had contained the door lock, which another person and he had bought earlier on 27 July 2001. In short, his defence was that the police had 'framed' him.

6.The Applicant's self-written grounds of appeal amount to the following three complaints:

(1) That the Recorder erred in drawing an analogy between a bank robbery and his case;

(2) that the Recorder erred in telling the jury that all the prosecution witnesses were in agreement that the door was capable of being locked; and

(3) that the Recorder erred in leading the jury to consider that it was the Applicant who put the 'ice' in the paper box.

7.However it is not these three matters that gave us cause for concern, for we were sure that there was no substance in any of them. What concerned us were the Recorder's directions to the jury on various elements of the offence of trafficking in dangerous drugs and the tenor of his summing up.

The definition of 'trafficking'

8.Section 2(1) of the Dangerous Drugs Ordinance defines trafficking in dangerous drugs in these terms:

""trafficking", in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and "traffic in a dangerous drug" shall be construed accordingly;"

9.From the prosecution's facts, we take it that the allegation was that the Applicant was in possession of the 'ice' for the purposes of trafficking in it.

10.At page 12 A-H of the summing up, the Recorder attempted to define trafficking in dangerous drugs to the jury in this way:

"'Trafficking" means procuring, that is getting, supplying or otherwise, meaning apart from procuring or supplying or otherwise, dealing in or with a dangerous drug. Or possession of a dangerous drug for the purpose of trafficking. That is possessing the dangerous drugs for the purposes of supplying, dealing in or with it. So the actual getting of the dangerous drugs, supplying the dangerous drugs, or dealing in or with the dangerous drugs is trafficking. Also possession of dangerous drugs for those purposes is also trafficking. It is not difficult."

11.That definition is, in material aspects, incorrect. 'Getting' dangerous drugs (especially when, as a concept, it is put as an alternative to dealing - as it is in the Recorder's attempted definition) is not, on its own, trafficking in them. Assume for the sake of argument that the Applicant arrived home - as the police say he did - with dangerous drugs in a box, then he has clearly 'got' the drugs. If 'getting' is taken to mean that he has 'fetched' the drugs from somewhere, then he has indeed fetched them from that place, but that is not 'supplying' or 'otherwise dealing' in them.

12.The only other passage in the summing up where the Recorder dealt with trafficking is at page 18 E-H. Here he compounded his error, saying:

"The amount involved 400 grammes, 15 packets, does that help you to decide, to infer, from those facts that therefore the defendant was in possession of these drugs for trafficking? If not trafficking, dealing with, or in them, already by holding them."

13.It goes without saying that a person does not deal in drugs merely by 'holding' them.

14.It is to be regretted that the Recorder did not base his direction on the model direction on trafficking in dangerous drugs given in the Judicial Studies Board's High Court Criminal Manual. These, although they should never be followed slavishly and should always be adopted to fit the facts of each case, are based on firmly accepted authority.

The double-barreled direction on inferences and presumptions

15.At pages 14 through to 19 the Recorder repeatedly directed the jury that that they could infer knowledge on the part of the Applicant that he was aware of the existence of dangerous drugs in the box OR (our emphasis) that they could operate the statutory evidentiary presumptions given in s.47(1) & (2) of the Dangerous Drugs Ordinance.

16.At page 14 A-F, he said:

"From the fact that he was holding this bag and perhaps with the assistance of other evidence like, for example, PW1 saying that he looked very nervous and he was breathing very quickly, etc., you can draw the inference, can you not, that he knew what was inside? That is, of course, if you accept the evidence that he was holding the bag. So that is how inference will apply here.

But apart from inference, the law also assists in that under the Dangerous Drugs Ordinance there are provisions which assist in this. The law provides that where the person is proved to have had in his physical possession anything containing dangerous drugs, he is presumed, until the contrary is proved, to have had such dangerous drugs in his possession. So in other words, here you do not necessarily have to rely on your inference from surrounding circumstances to find that the defendant was in the possession of the "Ice", you can rely on the presumption given by the law that because he was holding the bag and inside the bag was the "Ice", therefore he is presumed to be in possession of the "Ice". But, of course, that presumption would only work if you find that there was no evidence which proves that presumption wrong."

17.At page 14 O-S, he said:

"Two ways of then dealing with the situation. One, you look at the surrounding circumstances disclosed to you by the evidence to see whether you can infer that he was in possession of the drugs, the "Ice". Or you can use the presumption provided by the law that since, he was in possession, physical possession, of the bag, he is presumed to be in possession of the "Ice" inside the bag."

18.At page 16 C-H, he said:

"So what it means is simply this. If you find that the defendant was in possession of the ice, whether by inference or by this presumption that I have told you about, then because he was in possession the law says he is presumed to know that it was ice. Unless, of course, that presumption again is no good because of the evidence. That is, in other words, you say, yes, he was holding this bag, yes, inside the bag was the ice, therefore I am quite sure that he was in possession of the Ice."

19.In parenthesis, we find, as must the jury, considerable difficulty in following this passage and understanding what the Recorder could possibly have meant when he referred to the presumption being '...no good.'

20.At page 17A-B, he said:

"If you find you can not infer that then you can rely on the presumption that I have told you about."

21.At page 17J-K, he said:

"Of course I come back again, if you find presumption is not really of much use to you then you can rely on your own inference from the evidence, from the fact that he was in physical possession of the bag, and then from there to see whether you can safely draw the only reasonable inference being that he knew that it was "Ice.""

22.And at page 19C-G, he said:

"If you are sure about that, then No. 3, whether or not by inferring and/or by the use of the presumption I have told you about in respect of possession, that the defendant was in possession of those drugs, that is the 15 packets of "Ice". If you are sure about that, then No. 4, whether or not, again by inferring or by using the presumption I have told you about in respect of knowledge, whether or not the defendant knew that they were dangerous drugs, namely "Ice.""

23.We have never come across a judge leaving the matter to a jury in this way before. It was quite unsatisfactory for the Recorder simply to leave it to the jury to determine whether they should decide such a key issue in the case by the application of the statutory presumption, or, on the other hand, ignore the presumption altogether and decide whether the prosecution had proved its case on the basis of inferences. It is unnecessary for us to comment on the circumstances in which it is acceptable for a case to proceed as if the statutory presumptions do not exist. The point, for present purposes, is that a case such as this either proceeds on the basis of a presumption, or it does not. It cannot be correct, on any view, for the choice to be left in the air and placed in the lap of the jury for it to do as it thinks fit. The course the Recorder chose was imprecise and bound only to lead to confusion.

The tenor of the summing up

24.Pages 20C to 32G of the summing up, which amounts to about 12 full pages of a 41 page transcript, contain the Recorder's review of the evidence, including the defence case. Pages 32K to 39T, around 9 full pages of the same transcript, are then devoted to the Recorder pointing out weaknesses, or apparent illogicalities, in the defence case and effectively demolishing it. Not only was this done shortly before the jury retired to consider their verdict, it was delivered in a tone which, we regret to say, sounds far from impartial, as the following examples serve to illustrate:

25.At page 35 M-R:

"'Another matter raised by Mr Wong [defence counsel] is that the door of Flat E could not be closed. Why has that been suggested? Well, perhaps because the defendant was saying, "Well, I was kept in the corridor by PW1 after being stopped. PW2 then ran in to the corridor and came back out. And then when I was taken in the door and grille were already open." Now, if the door could be locked, and without the key how could it have been opened? So in other words, in order to substantiate that part, it was necessary to be put to the prosecution witnesses that the door could not be locked."

26.At page 36 F-M:

"What about this; the drugs being found in a box which only that afternoon was used to hold the lock. So on the face of it it does not seem to be dangerous drugs left behind by Fok Ka-lei, does it? How could she have put the dangerous drugs in a box which both the defendant and Chin bought the lock with? The lock was inside this box that afternoon. Fok Ka-lei was already in Tai Lam being locked up. So how did those dangerous drugs get into that box? If it was left behind who left it there?

But, of course, that is not the prosecution's case. I raised this just as a matter of my own comment. I mean if you feel there is another explanation to it then by all means forget what I have said to you."

27.At page 38 C-L:

"Mr Wong, for the defence, said the prosecution's case is full of holes. That is there are discrepancies, differences, between the evidence of PW1, the evidence he gave you in court here and the contents of his notebook. Also the oversight of PW3 in respect of taking photographs and so on and so on. There are, certainly, these discrepancies, these differences, regarding certain aspects of this case. However, are these discrepancies, are these differences, of sufficient relevance to create a doubt in your mind as to whether or not the defendant was holding the white plastic bag? Because that is the one issue that you must decide to start the ball rolling.

In other words, how do these discrepancies affect your decision on this one issue of whether or not the defendant was holding this white plastic bag? To me these discrepancies are not really of much importance. But that is only my view. You make up your own mind on that."

28.At page 38T to page 39 I:

"...what is of relevance is that PW1 says, "I saw them coming out. The defendant was not holding anything at that time." The point is, if PW1 was going to make this up, why was it necessary for him to wait for the defendant to return? Why could he not have stopped them there and then and make up the story that the defendant was holding the bag? Indeed, how would he know that the defendant would be returning? For all he knew they might have gone off for the night and not returned at all. Or even go to Macao or somewhere and return a week later. He would have to wait a week; for what? Does that sound logical to you?

In other words, if he was going to frame the defendant up with holding the bag, why did he not immediately do that when he saw the defendant? Why was it necessary for him to wait for the defendant's return, not knowing at the time whether the defendant will return at all? So that is something that, perhaps if you find logical you might adopt and keep in mind."

29.At page 39 Q-T:

"....But why then would Chin have to wait at the video games centre for him? Why not wait at the hot pot restaurant? Why wait at the games centre? Indeed, she could have stopped there and waited at that spot, within a minute or two he would be back with his telephone, would he not? Does that sound logical and believable to you?"

30.We were of the view that this part of the summing up, and it is a substantial part, reads as if it were a closing speech for the prosecution. We accept that, in general, a judge is given considerable leeway in commenting upon the evidence, even if he does so in a manner that is adverse to the defence, and that the entitlement of a judge to comment on the evidence extends, in the appropriate case, to the use of robust language. For example, in R v.O'Donnell (1917) 12 Cr App R 219, the appellant's conviction was upheld even though the judge described the appellant's story as a '...remarkable one' and commented that it was contrary to what he had previously told the police.

31.Comments, however, may be so weighted against the defendant as to leave the jury little choice other than to comply with what are obviously the judge's views or wishes. In R v. Canny (1945) 30 Cr App R 143, the appellant's conviction was quashed because the judge had repeatedly told the jury that the defence case was '...absurd'. And in R v. Berrada (1989) 91 Cr App R 131 the appellant's conviction was quashed partly because of a failure by the judge to deal adequately with the relevance of the appellant's good character (for which the case is well known authority) and also because the judge referred to defence allegations that the police had fabricated evidence as '...really monstrous and wicked'. The English Court of Appeal in Berrada said that in directing the jury, it is the judge's duty to:

"...state matters impartially, clearly and logically, and not inappropriately to inflate evidence to sarcastic and inappropriate comment."

32.In Mears v. R [1993] 1 WLR 818 (PC), an appeal from the Court of Appeal of Jamaica, Lord Lane, giving the advice of the Judicial committee of the Privy Council adopted, at page 822, Lloyd LJ's observations in R v. Gilbey (Court of Appeal: January 26, 1990; unreported) that:

"A judge...is not entitled to comment in such a way as to make the summing up as a whole unbalanced...It cannot be said too often or too strongly that a summing-up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury."

33.Here we were of the view that the Recorder delivered a fundamentally unbalanced summing up. His demolition of the defence case was delivered just before the jury retired to consider their verdict and may very well have left them with the view that they should comply with what, quite obviously, were his adverse views of the defence case. We were of the view that his error could not be cured despite the fact, as we acknowledge he did, that he prefaced, or concluded, many of his remarks by reminding the jury that they were his comments only.

Decision

34.We regret to say that the Recorder's handling of this case in the various aspects we have reviewed above led us to the view that the applicant's conviction was both unsafe and unsatisfactory, and, treating the application hearing as the hearing of the appeal itself, we allowed the Applicant's appeal against conviction. After hearing the Applicant and Counsel for the Respondent, we ordered a re-trial.

Representation:

Mr Alex Lee, SGC of the Department of Justice, for the HKSAR

The Applicant, Chan Kwok-wah, in person