HKSAR v. Yung Hei Choi

CACC000475/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.475
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 3 March 1998

Date of Delivery of Judgment: 24 March 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one charge of trafficking in dangerous drugs which particularized that he, on or about 20th January 1997, outside No.3D, Tai Koon Yuen Road, Tai Hom Village, Kowloon, unlawfully trafficked in a dangerous drug, namely 97.58 grammes of a mixture containing 13.72 grammes of heroin hydrochloride. He was convicted after trial before Judge Chua and now seeks leave to appeal against that conviction.

2. It was the prosecution case that he was approached by two police officers who had been carrying out surveillance and that the dangerous drugs, the subject of the charge, which were packed in 70 small bags within a larger bag, fell out from his upper garment and that, when questioned about them, he said that they were white powder.

3. It was the defence case that the applicant was a food delivery worker and that after he had delivered noodles to four mahjong players, he was stopped by the police who, having found nothing on him, then searched the vicinity and found that drugs nearby in an abandoned dresser. It was suggested that they had then concocted the story which implicated the applicant. He called two witnesses to support his case. The trial judge believed the police officers and rejected the evidence of the applicant and his witnesses. The applicant now seeks leave to appeal against that conviction.

4. Mr. McGowan, who appeared for the applicant both here and below, placed four grounds before the court. We need concern ourselves only with Ground 2 which read as follows:

"Justice was not done and/or seen to be done in all the circumstances of the case."

5. This ground, as phrased, was so broad as to be meaningless. However, in his written argument, Mr. McGowan made it clear that he was contending that the conviction was unsafe and unsatisfactory as the judge had "descended into the arena". He contended that this had occurred:

"on many occasions during the trial, both during the leading and cross-examination of witnesses and the closing address of Counsel. This was far more often than was necessary for merely resolving potential ambiguities, on several occasions superseded counsel's role and, particularly during the Defence closing submission, gave evidence of apparent partiality against the Appellant." (Emphasis supplied.)

6. We asked Mr. McGowan to turn immediately to the submission that the trial judge had, during his closing address, descended into the arena.

7. Counsel, in his closing address, should be allowed, as far as is possible without intervention, to develop his argument along the lines which he considers best puts his client's case.

8. It is of course permissible and, indeed, at times necessary, for a judge to intervene. If the judge is, at any time, unable to understand counsel or to appreciate the case being put for the defence he must seek clarification. It may be appropriate, if the judge has already resolved a matter in favour of a defendant, to indicate that this is so and to suggest that counsel move on to his next point. The judge can properly assist counsel to focus his argument by indicating to him points that he feels are of particular concern.

9. We do not attempt to set out an exhaustive list of situations when a judge can properly intervene but rather to indicate the kind of situation when he can properly do so. Comments that invite argument are only rarely appropriate. Personal comments should be avoided altogether.

10. The main points which Mr. McGowan sought to develop in his closing address at trial were as follows:

(i) that the police evidence as to the circumstances of the apprehension of the applicant, was unsatisfactory, particularly when it was weighed against the evidence of the defence witnesses;

(ii) that police evidence as to time taken to arrest the applicant and to process him after arrival at the police station was unsatisfactory and contradictory;

(iii) that there was no explanation of the failure of the police officers correctly to observe details of the clothing worn by the applicant;

(iv) that there was a real possibility of a frame-up of the applicant by the investigating police officers;

(v) that the evidence that the applicant carried drugs loosely covered by his jumper rather than more safely concealed was improbable.

11. These points encapsulate the thrust of the defence. We deal with them in turn:

(i) The unsatisfactory police evidence as to the circumstances of apprehension.

12. Mr. McGowan before coming, in his address, to this matter sought to indicate a discrepancy which existed between the evidence of the applicant and one of his witnesses was of no real consequence. The judge immediately suggested weaknesses in this submission. Such observations, although pointed, would, standing alone, not have been objectionable. Mr. McGowan then went on to refer to photographs and to a sketch plan. The judge had difficulty following the argument insofar as it made use of these exhibits and, as she was entitled to do, asked for clarification in that regard. Again, this was unobjectionable.

13. A series of questions and answers occupying more than a page of the transcript then followed. These, we are satisfied, gravely inhibited counsel's address. We set them out:

"Mr. McGowan: That's another point, your Honour. According to PW1 they were together all the time up that alleyway. According to PW2, he was on occasions, roaming around the village.

Court: Did he say quite that much? I don't think he said he was roaming around the village.

Mr. McGowan: Well, perhaps I dramatised it, but his evidence was that on occasions he left and walked around. He says, "Yes, I did walk out to have a look around", so he has obviously left the spot, whereas PW1...

Court: "Walk out" means out of that alley. It doesn't necessarily mean that he has strayed very far from it.

Mr. McGowan: Well, it's a matter for you, obviously, your Honour, but that is different from PWl's account that they were together in that alleyway all the time.

Court: I think if you take a few steps out of the alley, it doesn't mean that you weren't together, does it? I mean we're all together in the same court but obviously there is distance between us.

Mr. McGowan: Seems to be fixed. Well, your Honour, as I say, it's a matter for you but, in my respectful submission, that is an inconsistency.

Court: Well, you've just moved two feet.

Mr. McGowan: Yes, but I haven't moved from behind the Bar table, have it?

Court: No, you haven't, but that's what I mean. If PW2 said he walked out to look, doesn't necessarily mean he didn't then recede back to an area behind where they were keeping watch. I just think it's just not likely for two human beings who are on watch for two hours, to remain rooted to the same spot.

Mr. McGowan: That's probably entirely right, but it wasn't PWl's evidence. He says they were up there keeping watch...

Court: He said they were still together, but that doesn't mean they weren't. However, let's go to the next point.

Mr. McGowan: Yes, I don't want to waste a great deal of time on it. You have the evidence of PW1 that's PC 51552 had no dealings with the defendant.

Court: Well, he's explained that mistake, has he not?

Mr. McGowan: Well, yes, he contradicted himself, that evidence in re-examination.

Court: I don't know that it's a contradiction. There are always two ways to look at it, you say it's contradiction, the prosecution, I suppose if he's applied his mind, would say he explained. Perhaps he misunderstood the question. Yes.

Mr. McGowan: The usual explanation. 51552, according to PW2, was actually...

Court: Yes, any more discrepancies?"

14. Some of these questions were argumentative and the reference to the movement by counsel while addressing the court was both argumentative and personal.

15. The exchanges continued:

"Mr. McGowan: Well, yes, there are, your Honour, if you can give me a moment.

Court: Yes, go ahead, sorry.

Mr. McGowan: I'm trying to be as quick as I can, but I think it's my duty to point them out to you, whether you believe they are significant or not is a matter for yourself. But PW2 says that 51552 was on the operation, indeed, in the vicinity and he started off with the three of them and then he went away. That's not PWl's evidence.

Court: What was the number of that officer, the third officer?

Mr. McGowan: 51552.

Court: Yes, thank you.

Mr. McGowan: PW1 says, in his evidence, both officers, he and PW2, took the defendant to Room 106. PW2, in his statement said that it was 48890 who took the defendant away from the report room.

Court: Well, he did say in his evidence that he accompanied 48890.

Mr. McGowan: Yes, in his statement, which I put to him...

Court: Well, it's a matter of expression, isn't it?

Mr. McGowan: Well, if his evidence and his recollection ....

Court: His evidence is what I rely on, particularly if he ...

Mr. McGowan: He agreed that he made the statement while the events were fresh in his mind.

Court: Yes.

Mr. McGowan: In that statement...

Mr. Tam (for the prosecution): If I may assist. I think in evidence, given at court, both officers said both officers accompanied the defendant up the first floor, but PW2 did not actually enter Room 106.

Court: I know that.

Mr. McGowan: Well, that's what PW2 said.

Mr. Tam: Yes, that's what both said, I think. And I think my learned friend is taking the point about the statement, the last sentence in his statement.

Court: I appreciate that, Mr. Tam.

Mr. Tam: Yes, and there was a mistranslation, I think my learned friend realised that at the time, but I don't know why he is picking that point now.

Court: I think he has forgotten but he did say at the time that he was working on uncertified translation."

What should have been an address had turned into a running dialectic. Further we think the references to Mr. McGowan in the third person in the final observation from the court unfortunate.

16. The interventions by the judge prevented Mr. McGowan from putting the argument which he sought to make on this first point in any coherent way.

(ii) The unsatisfactory and contradictory police evidence as to the time taken to arrest the applicant and to process him at the police station.

17. Mr. McGowan had barely launched himself upon this topic when the court asked an entirely argumentative series of questions as set out in the following passage:

"Court: What do you have on your watch, Mr. McGowan. what's the time on your watch?

Mr. McGowan: Well, it's five minutes fast, but allowing for that, it's about 3 minutes past 3, your Honour.

Court: No, what does it say on your watch?

Mr. McGowan: My watch says 9 minutes past 3.

Court: Yes, the court clock says 1 minute past 3.

Mr. Tam: And mine is 4 minutes past 3.

Court: And mine is 5 minutes past 3.

Mr. McGowan: I know mine is fast, your Honour.

Court: I don't know that mine is fast, Mr. McGowan.

Mr. McGowan: May I suggest that if anyone is relying on a court room clock for accuracy in time, well...

Court: No, I don't, I rely on my own time. But I appreciate the court clock is sometimes different and the clock in my chambers is different. They are all electric clocks, controlled elsewhere.

Mr. McGowan: Yes, your Honour, there is a nine minute discrepancy. Even on my watch, which is five minutes fast, that is a significant difference.

Court: And how many minutes discrepancy between your watch and the court clock?

Mr. McGowan: Yes, but I know, I deliberately keep my watch fast.

Tam: But you know that we don't.

Mr. McGowan: But are you saying that official records...

Court: Say there is something fishy about the fact that there is a discrepancy, what does that prove?

Mr. McGowan: Well, your Honour, has to be satisfied about the reliability...

Court: Yes, but that's all after the event. Why would two officers say they left the report room, or made the report at such a time, and why would the duty officer there give a different time, deliberately?

Mr.McGowan: Well your Honour, there is a document ...

Court: Deliberately, don't you think it's not deliberate and more likely because their watches just say different times. There is no purpose to it, is there?

Mr.McGowan: Well, if they were downstairs at 21.30 or 21.33 ...

Court: Your client hasn't suggested that there was this great delay in taking him to the report room, has he?

Mr. McGowan: He said it was over 5 minutes. No, he said the time he spent in the report room was between 5 and 10 minutes.

Court: At the report room, yes. The report was made at such and such a time. I don't see that it serves the officers any purpose at all.

Mr. McGowan: Well, I was going on to the times, your Honour, perhaps I could deal with your obvious concern at that stage.

Court: Well, I'm not concerned. I'm saying I'm not concerned because I don't see the purpose for them to deliberately fudge the time. Why would there be something sinister about this?"

18. This exchange should never have occurred and prosecuting counsel should never have entered into it in the way in which he was allowed to do.

19. Further we think that the judge was premature in the dismissal of this point. Mr. McGowan was, however, allowed to then go on fully to develop the point.

(iii) the failure of police officers to observe details of the clothing worn by the applicant.

20. As soon as Mr. McGowan embarked upon this point, the following passage occurred:

"Court: How long have you been practising in Hong Kong, Mr. McGowan?

Mr. McGowan: Three and a half years.

Court: I don't know how often you come to court and how often you've had police witnesses. I don't think any witnesses I've seen are very good, the ones who come to court, they are not very good at giving descriptions. They always say if their shirt is patterned it's a 'floral pattern' when it's not floral at all. You and I are trained as lawyers and we are much more precise in our description. But they are not, they are notoriously bad. Your case is not that they seized the wrong person, so whether the description of the shirt, whether it matches how you would describe it, is neither her nor there, is it? It's a white T-shirt in that it has a white background, and on the front is a Mickey Mouse pattern.

Mr. McGowan: The point I'm making, your Honour, is the first impression these officers had was that he was wearing a white T-shirt, which is consistent with them approaching him from the back, which is what the defendant says, as opposed to their evidence of approaching him from the front.

Court: That's only so if they said, 'the first thing we saw was the person from', whether the back or the front, 'with a white T-shirt', I don't think that's so significant.

Mr. McGowan: Well, again, your Honour, it's a matter for you.

Court: When you asked more questions, didn't PW1, in fact, finally remembered that there was a sort of doll pattern and he finally said that it was Mickey Mouse.

Mr. Tam: PW1, said this.

Mr. McGowan: Yes, I accept that, but I had to really drag that out of him. His first, in my respectful submission, first and lasting impression was that it was white. Again, your Honour, it's a matter for you, but I don't think I should pass that by without comment."

21. Again there was a personal question directed to Mr. McGowan, again he was prevented from making his point and, again, prosecuting counsel intruded into the exchange which itself should never have occurred.

(iv) the possibility of a frame-up of the applicant by the investigating police officers.

22. We do not set out the transcript. It suffices to say that the same sort of exchanges again occurred with the court asking question after question indicating weaknesses in the contention that a frame-up had occurred. Again counsel was given no chance to develop his argument.

(v) The improbability that the applicant would have carried drugs loosely covered by his jumper rather than have had them more safely concealed.

23. Mr. McGowan sought to illustrate this point by using a photograph which was about the size of the bag of drugs. An unnecessary exchange, which was largely concerned with the size of the photograph (Was it 4R or 3R?), followed. Mr. McGowan then went on to develop his argument saying that a person would be much more likely to conceal the drugs in his pocket or to carry them in his hand than to carry them loosely inside his jumper. This observation was met with the following comment from the court:

"Probably that's why you're a barrister, Mr.McGowan, you think about these things."

We are not sure what exactly the judge meant by this remark but it was personal and uncalled for.

24. Mr. McGowan shortly thereafter concluded his address. He had never been allowed to develop his points and to put the defence case in a coherent way to the court.

25. The conviction, because of the interruptions by the judge during the address by defence counsel, was neither safe nor satisfactory. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the conviction is quashed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Albert Wong, S.G.C. (D.P.P.) for the Respondent.

Mr. James H.M. McGowan instructed by Messrs. Miller & Peart for the Applicant.