HKSAR v. Huang Song Fu

CACC 141/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 141 OF 2005

(ON APPEAL FROM HCCC NO. 7 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Tang JA and McMahon J

Date of Hearing: 11 January 2006

Date of Judgment: 22 May 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.The applicant was charged with Kong Pak-lun (Kong) and Chan Ka-lung (Chan) in one count of an indictment alleging the manufacture of 3,4-methylenedioxymethamphetamine (MDMA) on 22 July 2003 at Room B, inside Flat C2, on the 12^th floor of Hang Fung Industrial Building, 2G Hok Yuen Street, Hung Hom.  Kong pleaded guilty at the outset of the trial whereas, for reasons which seem very far from satisfactory, Chan successfully applied to be tried separately.  In due course, he was acquitted.  On 10 September 2004, the applicant was convicted following a trial before Nguyen J and a jury and was sentenced, after the conclusion of Chan’s trial on 15 March 2005, to 15 years’ imprisonment.  He now seeks leave to appeal against conviction.

2.Importantly, the four substantive grounds raised in this application included a criticism of the judge’s directions to the jury on the approach they should take to ‘lies’.  In the light of the arguments we have heard, we have considered it necessary to make a slight modification to the guidelines in HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155 as approved by the Court of Final Appeal in Yuen Kwai-choi v HKSAR [2003] 2 HKC 337.

The facts

3.The facts can be dealt with briefly.  In essence, on 22 July 2003 the police raided the premises identified in the count and discovered that Room B, a partitioned area inside Flat C2, was being used to produce MDMA.  The MDMA was, in turn, being made into ‘ecstasy’ tablets.  Room B consisted of a main office area with a room on either side, referred to at trial as Rooms B1 and B2.  Room B1 was being used as the machine room where ecstasy pills were made.  Some of the walls in the room had been fitted with sound-proofing material to deaden the sounds made by the machine.  Room B2 was used for storage and for drying the powder containing MDMA.

4.Amongst the many items discovered in the premises by the police were an electric tablet-pressing machine, large quantities of yellow ecstasy tablets and MDMA in powder form, boxes of resealable plastic bags, a bag-sealing machine, plastic tablet moulds, numerous pairs of gloves and an electronic scale.  Most of the drug-related items as well as the filters for the air conditioners were found to have traces of MDMA upon them.

5.The 23,577 ecstasy tablets found in the flat were valued at just under $2.1 million and contained, on forensic examination, 2.52 kilogrammes of MDMA.  In addition, there were 30.76 kilogrammes of powder containing 15.82 kilogrammes of MDMA.  If this powder had been processed into ecstasy tablets, the value of these additional tablets would have been just over $14 million.  It was an admitted fact that no traces of MDMA were found anywhere on the applicant including his clothing or his finger nails.

6.Evidence was given at trial that the police saw the applicant close the door to Room B as he came out.  He was promptly arrested but nothing of an incriminating nature was found upon him.  The police found Chan and Kong inside Room B where the machinery for making the tablets was turned on although no tablets were actually being made at the time of the raid.

7.In due course, when fingerprint comparisons were made, this led to the discovery of a single thumbprint of the applicant on a small funnel found in a cabinet in Room B1 which was a component part of the tablet-making machine.  In the main office, traces of the applicant’s DNA were found on 2 cigarette butts in an ashtray.

8.When the applicant was interviewed by the police, he gave mainly exculpatory replies, saying that he had come to Hong Kong as a “tourist” from Vancouver.  He admitted visiting the premises at Room B on 22 July 2003 for about an hour and said that he had been there on three occasions altogether.  According to him, he had only noticed yellow pills in the flat on the day he was arrested although he had seen the powder before.  However, he said that it was “not appropriate” to ask the others about these although he was “curious” and thought perhaps they were making medicine.  For his part, he said that while in the premises he was smoking and “mainly reading the newspaper” although he also chatted with the two other men who were in the flat, one of whom he had met on his arrival in Hong Kong and knew as ‘Fat Boy’.

9.The applicant’s testimony at trial was largely consistent with the answers he had given to the police.  His explanation for his thumbprint on the funnel was that he had pushed it aside in order to reach an ashtray.

Grounds of appeal

10.Mr Marash SC advanced four grounds of appeal on the applicant’s behalf.

(1) Lies direction

11.It was submitted on the 1^st ground that the judge had erred in his directions to the jury when summing up the approach they should take towards ‘lies’.  These directions had quite properly been the subject of a discussion with counsel albeit this was after they had made their final speeches when it would have been preferable for this to have been raised before the speeches.  The direction was thought to be necessary because it had been alleged that the applicant had lied not only in his interview but also in the evidence he gave.  The judge’s directions were in these terms:

“[Prosecuting counsel] has suggested to you that when the defendant gave the answers that he did in the video-recorded interview, and also when he gave his evidence in this court, he was lying to you. In other words, when he said he was just sitting there, reading a newspaper, those are all lies, and Mr Cheng says what, in fact, was happening was that the defendant not only knew that manufacturing was going on in that flat, but he also took a part in it, together with the other two. So Mr Cheng says the defendant was lying to the police and the defendant was lying to you when he gave evidence.

I have to direct you, members of the jury, that the mere fact that a defendant tells a lie, or tells lies, is not, in itself, evidence of guilt. People sometimes lie for reasons other than that they are guilty. Sometimes people lie to bolster, to reinforce a true defence. Sometimes they lie to protect others, or because they believe that the true story is unlikely to be believed, so they make up a story which they think sounds more convincing; all sorts of reasons of that kind.

If you find that the defendant has lied and that the lie may have been for one of the reasons which I have suggested, then pay no attention to the lie. Simply disregard the evidence which you find to be untrue and concentrate on the evidence which the prosecution has satisfied you is true, and on that part of the defence evidence which you find to be true, or which you find may be true. In relation to the answers that he gave to the police, members of the jury, you must decide whether they are true answers and, if they are true answers, whether they constitute the whole truth or only part of the truth.” (Appeal bundle p. 8)

This direction accorded with the views expressed by counsel and with the guidelines in Mo Shiu-shing for ‘lies’ in circumstances where the need for a fuller direction had not arisen.

12.Towards the end of the summing up, the judge briefly returned to this subject by saying in relation to the answers given by the applicant in his interview when compared to the evidence he gave during the course of cross-examination:

“… you have to make what you will of those answers that he gave to the police.  But please remember what I said to you.  Just because you think that he may have lied to the police, or he may have lied to you in court, do not convict him just because of that.” (Appeal bundle p. 20)

13.As this court indicated in HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155 at 168, in a large number of cases, where the simple allegation that the defendant has been lying is made, the judge can deal with this issue by saying that it relates solely to credibility and that it is for the jury to decide whose evidence they believe.

14.However, where there is a danger that the jury may equate lies with guilt, even where the lies have not been used by the prosecution to support their case, the court in Mo Shiu-shing indicated that a two-fold warning should be given to the effect that lies can never prove guilt in themselves and that persons may lie for reasons other than guilt.  In such a case, the direction should be accompanied by the possible ‘innocent’ reasons that are usually given in a standard ‘lies’ direction to illustrate why a person might lie when faced with a criminal allegation against him.

15.This kind of direction, which was adopted by the judge in the present case, falls short of a full direction on lies which it was stated in Mo Shiu-shing would only be necessary in the rare cases where the lie could be regarded as supporting the prosecution’s case.  This used to be referred to as the ‘Lucas’ direction, following R v Lucas [1981] 1 QB 720 and [1981] 73 Cr App R 159 to which reference is made in Mo Shiu-shing at page 162.  The concluding words of such a direction should be to the effect that it is only if the jury is sure that the defendant has not lied for an ‘innocent’ reason that his lies can be regarded by them as “evidence which supports the prosecution’s case”.

16.Under the guidelines in Mo Shiu-shing, which for reasons we shall turn to shortly need to be revisited, this was not a case, despite Mr Marash’s submission to the contrary, which fell into the last category of case requiring a full direction on lies.  Mr Raymond Cheng for the prosecution at trial had addressed the jury in the following terms:

“Now, remember, with all that in mind, what I said: that he might not be a worth-of-belief person.  Remember one thing, he does not have to prove his innocence.  He does not have to prove anything.  It is for the prosecution to prove that he - - to prove his guilt beyond all reasonable doubt.  All my comments on the defendant’s story as to how he’s not to be believed, aimed at only discrediting him – discrediting his version of the story.

Even if you do not believe a bit in him, it does not mean simply that he is guilty of the offence.  You must be satisfied beyond all reasonable doubt that the prosecution has proved his guilt that he’s manufacturing dangerous drugs on 22 July 2003.” (Appeal bundle p. 179)

As this passage illustrates, the prosecutor had made no attempt to rely on any lie as evidence which might provide support for his case.  In such circumstances, while we do not criticise the judge for deciding to give a ‘lies’ direction, there was, we consider, no strict requirement to give any such direction at all.  On balance, however, it may have been the better course to do so.

17.Furthermore, at the conclusion of the speeches of counsel, when the judge enquired of prosecuting counsel whether he was asking for a “full Lucas direction”, and was informed that he was not, the judge said to defence counsel:

“Well … I’ll tell them that if they think that your client was lying to the police they should ignore it … They can’t convict just because he lied to the police.”(Appeal bundle p. 211)

In the event, the judge gave the directions, which we have recited in full (at paragraphs 11 and 12 above) to provide the context in which the words were spoken, telling the jury to “pay no attention to the lie” if they found that the applicant had been lying, adding later that if the applicant had lied to the police or in his evidence: “do not convict him just because of that”.

18.Mr Marash submitted that the prosecution, in reality, were relying on the lies as supporting their case as the main issue for the jury’s determination concerned the applicant’s credibility in regard to the explanation he gave as to how he had found his way to Flat B and as to his reason, more importantly, for being inside premises where drug manufacturing had plainly been taking place.  Mere unexplained presence was not enough on its own.  Mr Marash gave, as an illustration of this, the fact that Chan, who a jury in a separate trial had acquitted despite the extensive fingerprint evidence against him coupled with his presence inside the premises, had given an explanation which the jury in that case must have believed.  We were informed that his account had been to the effect that he thought the machinery and powder were for making ‘Viagra’ tablets.

19.It is accepted that the judge in the present case had directed the jury that mere presence was insufficient but Mr Marash argued that, aside from the applicant’s thumbprint on the funnel found by the police in Room B1, there was nothing on which the jury could have relied to convict the applicant apart from an adverse assessment of his credibility.  In such circumstances, he submitted that a full ‘lies’ direction should have been given which would have included the words, omitted by the judge, that if the jury was sure that the applicant had not lied for an innocent reason his lies could be regarded by them as evidence which supported the case for the prosecution.  This, he suggested was necessary, because the form of words the judge used, that the jury should not convict “just because” the applicant may have lied, implied that there was something probative about the lies and might have led the jury to conclude from the lies alone that the applicant was guilty.

20.The simple recitation of this argument, as Mr Saw SC for the respondent pointed out, demonstrates clearly that the defence had not been prejudiced by the omission about which Mr Marash was complaining.  Leaving aside the fact that to have included such a formula would have amounted to a betrayal on the part of the judge of the agreement properly reached with counsel as to the effect of what should be said to the jury, Mr Marash was effectively left saying that the jury may have “misused” the lies by using them as support for the case presented by the prosecution.  There was, in other words, even on Mr Marash’s argument, no prejudice caused to the defence by a failure to inform the jury that the lies could be regarded as support for the prosecution.  In this regard, Mr Saw suggested that the formula adopted by the judge was in fact more beneficial to the applicant than a full lies direction would have been.

21.Whilst we accept much of Mr Saw’s argument, Mr Marash’s submission was logically sound in that when the jury rejected the applicant’s account, as they must have done to convict him, they might well have perceived this as evidence which provided support for the prosecution’s case.  If this was a case where the applicant had not lied “for reasons other than that [he] was guilty”, as the judge put it, then the converse position would leave the jury almost inevitably believing that the lies supported the case for the prosecution.  We cannot, however, accept Mr Marash’s further contention that the applicant may have been convicted just because he had told lies.  The judge had instructed the jury in terms that lies were not in themselves evidence of guilt and that if they found that the applicant had lied they were to pay “no attention” to the lie and should “simply disregard the evidence which [they] found to be untrue”.

22.The point raised by Mr Marash, casting doubt on the advisability of an abbreviated lies direction, was not raised or considered in HKSAR v Mo Shiu-shing (above) and the same appears to have been the case in Yuen Kwai-choi v HKSAR (above).  However, Chan PJ giving the judgment in the latter case (at page 350 F-I) said:

“… The terms of the direction must, however, ultimately depend on the circumstances of each case. In deciding what language to adopt, a trial judge should consider the use to which the lie in question is intended to be put or may be put, and the possible effect it may have on the accused’s case, always bearing in mind that the purpose of such a direction is to avoid possible misuse of lies by the jury. Reference can be made to the specimen directions approved by the Court of Appeal in HKSAR v Mo Shiu Shing [1999] 1 HKC 43, 57-58; [1999] 2 HKLRD 155, 169.

40. I should add that some of the difficulties which had arisen in many of the previous cases on what direction should be given to the jury were complicated by the use of terms such as: a Broadhurst direction, a Lucas direction, a full Lucas direction. These terms are sometimes confusing as slightly different meanings have been attributed to them in different cases. I would prefer to simply call it ‘a lies direction’.”

23.We would respectfully agree that any simplification of the law in relation to lies is to be encouraged.  In particular, we observe that the Court of Final Appeal has endorsed the use of the specimen direction on lies set out in HKSAR v Mo Shiu-shing which we repeat here for ease of reference:

“It is alleged (admitted) that the defendant lied to the police (or X) in saying (that ....) and you are entitled to consider whether this supports the case brought against him by the prosecution. In this regard you should consider two questions:

(1)   You must decide whether the defendant did in fact tell (these) lies. If you are not sure he did, ignore the matter altogether. If you are sure, then next consider:

(2)   Why did the defendant lie? The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, and they may possibly be ‘innocent’ ones in the sense that they do not give any indication of guilt, for example lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct (other than) (short of) the commission of the offence, or out of panic or confusion.

If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an ‘innocent’ reason that his lies can be regarded by you as evidence which supports the prosecution’s case.”

24.The court in HKSAR v Mo Shiu-shing (at page 168 F-H) had, as we have said, also left open an abbreviated direction, falling short of the full direction set out in the previous paragraph in that it did not include words to the effect that if the jury were sure that the defendant had not lied for an innocent reason, his lies could be regarded by them as evidence which supported the prosecution case.  We have concluded in the light of the submissions made in this case that whenever directing juries on lies, judges should in future give the full direction (set out in paragraph 23 above).  To this extent, therefore, the judgment in Mo Shiu-shing’s case must be modified and although an omission to direct the jury on lies in full will by no means necessarily be fatal to a summing up, the full direction should ensure that there can be no suggestion that the proper approach has not been taken by a jury when they are considering how to regard a lie that has not been given for an innocent reason.

25.Finally, having regard to this modification, we need to deal with one further passage in Mo Shiu-shing which (at page 169 F-H) reads:

“We emphasise again what Mortimer JA said in R v Ng Chi Wai & Another (unrep., Crim App No 346 of 1996, [1997] HKLY 223). The circumstances in which a direction that a lie may support the prosecution’s case will be rare but may be appropriate where: (1) a defendant has relied upon an alibi; and (2) the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

Lastly on this topic, if the lie is being used as corroborative evidence in the strict sense (eg in a trial of a sexual offence) it must, of course, be evidence that comes from a source which is independent of the evidence it is being used to corroborate.” (Emphasis added)

26.It follows from the conclusions we have already expressed and from Chan PJ’s judgment in Yuen Kwai-choi v HKSAR that as there will only be one standard direction on lies and that it is for the judge to decide after consultation with counsel when such a direction needs to be given, the “rare” direction to be used in cases where an alibi has been called or where a lie is used in an independent corroborative sense will now be one and the same direction as in all other cases where a ‘lies’ direction is considered to be appropriate.

27.In a further complaint about this aspect, Mr Marash suggested that the lies direction given by the judge should have indicated to the jury in plain language that any lies taken into account by them should have been (in phraseology originally taken from Lucas) “deliberate and material”.  This submission was somewhat artificial in that a suggested lie which has not been made deliberately cannot truly be regarded as a lie at all.  Furthermore, in the present context, the applicant’s account as to how and why he found himself in the premises and what he was doing while he was there was the central focus of the case.  No one could suggest that these considerations were not material to the case the jury was trying.

28.Judges, however, must ensure, before leaving the question of lies to a jury, that there is no prospect of the lie having been told inadvertently.  One such example might be where there is a possibility of a mistaken belief on the part of a defendant as to date, time or place.  Where, unusually, there is an issue as to whether the alleged “lie” was deliberately told this must be left to the jury to decide.  So far as the materiality of a lie is concerned, we would hope that it hardly needs to be emphasised that a non-material lie which only goes to a peripheral issue should not be made the subject of a lies direction.  This will be entirely related to credibility where a ‘lies’ direction is not required.

29.On this ground, we shall grant leave to appeal although ultimately the points raised on the applicant’s behalf were, in our opinion, not material to his conviction.

(2) Inferences

30.The 2^nd ground of appeal alleged that the judge’s written directions to the jury on their approach to inferences contained an error which may have misled them.  Mr Marash submitted that as it is only in relation to an inference adverse to a defendant that the jury should be warned that this must be the “only reasonable inference” to draw, the jury may not have appreciated from the form of words used by the judge that an inference drawn in favour of a defendant needs only to be one which is possible.  However, Mr Saw contended that the directions to the jury on inferences, both in the written ‘handout’ and repeated in the summing up itself, could have left the jury in no doubt that the judge was in this regard focusing entirely on the evidence called by the prosecution and the burden and standard of proof applicable to the prosecution.

31.Initially, the judge told the jury (at page 2 of the appeal bundle) that they were entitled to draw inferences but not to “speculate about what evidence there might have been” or to allow themselves to be drawn into speculation.  Thereafter, the judge directed the jury on the burden and standard of proof before giving a direction on circumstantial evidence.  He then turned to inferences, saying:

“[Prosecuting counsel], in his final address, also asked you to draw inferences. He asked you to draw the inference that the defendant knew what was going on and that the defendant took part in the manufacturing. I have a handout for you, members of the jury, on inferences. Again it is in both English and Chinese.

‘Inferences:

You are entitled to draw inferences; in other words, if you find certain facts proved, you are entitled to infer the existence of other facts, but you may only do so if that inference is the only reasonable inference to draw from the proved facts. So if, from a set of facts which you find to be proved, there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference.’

In this particular case, the prosecution says that there is direct evidence that the defendant was present in the flat, and also found in the flat were the dangerous drugs and all the paraphernalia for manufacturing the drugs. The prosecution says that the only reasonable inference to draw from those facts is that the defendant not only knew that manufacturing was taking place in the flat, but he also took part in that manufacturing process.

On the other hand, the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw and that another inference one might reasonably draw is that the defendant either did not know that manufacturing of a dangerous drug was going on, or, if he did know, he took no part in it or in assisting the other people.” (Appeal bundle pp. 5-6)

32.The reference in the final passage (above) to the way the defence had put their case made proper allowance for the jury finding themselves in the position of having to decide between two possible inferences.  In the passage slightly earlier, the jury had been told in terms that if a reasonable inference could be drawn “against the defendant as well as one in his favour” they “must not draw the adverse inference”.  Later in the summing up, the case for the defence was dealt with in considerable detail to remind the jury about the explanations given by the applicant for his visits to the premises where drugs were being manufactured. 

33.We are satisfied, accordingly, that there was no substance to this ground.

(3) The majority direction

34.It was submitted in the 3^rd ground of appeal that the judge’s directions to the jury (of six) concerning a majority verdict were “incomplete and incorrect”.  This criticism was directed at two parts of the summing up.  The first of these was as follows:

“About the verdict, members of the jury, we ask you to try and be unanimous if you can.  In other words, a verdict on which all six of you are agreed, either guilty or not guilty.  But if, after long and careful deliberation, you cannot, all six, agree, then I can accept from you what we call a majority verdict.  A majority verdict in this case has to be five/one.  It cannot be less than five/one.  So it should either be six/zero, guilty or not guilty, or five/one, guilty or not guilty.  So if your verdict is not unanimous and you tell me that, then you will be asked, ‘By what majority is your verdict?’ and then you will be asked, ‘What is your verdict?’” (Appeal bundle pp. 20-21)

35.Mr Marash contended that this direction failed to make clear to the jury that if they were unable to reach unanimity or an acceptable majority, they should inform the judge of this because otherwise the jury might have been left with “the impression that disagreement was in no circumstances possible”.

36.It is unfortunate that the judge chose to depart from the specimen direction which provides a formula to the effect that should the jury be unable to reach a verdict with an acceptable majority the judge will give further directions.  However, whilst we do not seek to endorse the judge’s approach, in the circumstances of this case the judge had, in our view, made it sufficiently clear to the jury that if they were unable to reach a verdict he would deal with the matter.  Putting this into context, the judge had told the jury, immediately before the passage in the summing up which is criticised:

“Mr Foreman, when you return with your verdict, you will be asked certain questions by my clerk.  In order to let you know beforehand what the questions will be, we have a handout for you.  Each of you will receive a copy of that so that you can agree beforehand how Mr Foreman should answer the questions.  If Mr Foreman should give the wrong answer, then you should immediately draw it to my attention.  The first question you will be asked is, ‘On the count of manufacturing a dangerous drug, have you reached a verdict?’  The answer will be either ‘yes’ or ‘no’.  If ‘no’, I will deal with the matter.  If the answer is ‘yes’, then you will be asked, ‘Is the verdict unanimous?’  The answer will be either ‘yes’ or ‘no’.” (Appeal bundle p. 20) (Emphasis added)

A little later, in the last words of the summing up, the judge added:

“Mr Foreman, if, while you are deliberating, you have any questions to ask me, questions about the evidence or questions about the law, then can you please write it down on a piece of paper and my usher will then deliver it to me, and I will have to get counsel to come back to discuss your question with them before inviting you to come back.  So if you have a question or a request, please understand that it may take some minutes for me to get counsel to come back and discuss it with them.” (Appeal bundle p. 21)

37.We consider that it is inconceivable that the jury could regard themselves in these circumstances as having to reach a verdict of either Guilty or Not Guilty.  To find otherwise would be to deny any credit to the jury as to its ability to apply common sense in circumstances where there was no indication at all of any pressure being put on them to return a verdict.  We note, in this context, that the jury returned its verdict of Guilty by a majority of 5 to 1 at 2:59 pm on the same day that they had begun their deliberations.  The point should have been more plainly spelt out but, in the present circumstances, it was a matter of no importance.

38.The second point which was raised under this ground was that the judge gave what Mr Marash described as a “half-baked” ‘Watson’ direction in combination with the majority direction.  Again, there is no doubt that the judge departed from the standard ‘Watson’ direction which is set out in full in Archbold Hong Kong [2005] at para. 4-235.  The paragraph reads, so far as it is relevant:

“N. DIRECTION CONCERNING NECESSARY “GIVE AND TAKE”

In R v Watson & Others [1988] QB 690, 87 Cr App R 1, CA (Eng), the court said that it is a matter for the judge’s discretion as to whether he gives the following direction at all and if so at what stage.  There will usually be no need to do so.  Individual variations which alter the sense of the direction are often dangerous and should if possible be avoided.  Where the words are thought to be necessary or desirable they are probably best included as part of the summing up, or given or repeated after the jury have had time to consider any majority direction.

“Each of you has taken an oath to return a true verdict according to the evidence.  No one must be false to that oath, but you have a duty not only as individuals but collectively.  That is the strength of the jury system.  Each of you takes into the jury box with you your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening to the views of the others.  There must necessarily be discussion, argument and give and take within the scope of your oath.  That is the way in which agreement is reached.  If unhappily, [five of] you cannot reach agreement you must say so.”

A “Watson” direction should never be combined with the majority direction.

Moreover, judges should confine themselves to the precise wording set out in Watson and not add anything to it: R v Buono 95 Cr App R 338, CA (Eng).  A departure from that wording will not necessarily be fatal to any conviction that follows, but the danger in not following it is that words may be used that can be construed as imposing upon the jury improper pressure to reach a verdict, which may render any conviction unsafe: R v Morgan [1997] Crim L R 593, CA (Eng).”

39.Normally, in our experience, as a matter of general practice a Watson direction is given, if at all, only after the jury has been considering its verdict for some considerable time.  It is difficult to understand why the judge felt it necessary in the present case to give any direction along the lines recommended in Watson or, having done so, to have departed from its terms.  The directions he gave were as follows:

“If you have never served on a jury before, members of the jury, the thing to remember is you have to make up your own mind about the verdict but you should also listen to the views of your colleagues and see what they say.  After you have heard their views, you are entitled to stick to your original decision and say, ‘I’m not changing my mind,’ or you can say, ‘I’ve heard you and I am persuaded by what you say, so I will change my mind and go along with you’.  So it is a lot of give and take.  You make up your own mind but you listen to the views of your colleagues.” (Appeal bundle p. 22) (Emphasis added)

40.Directions of this kind have been extensively analysed in other recent cases, but notably in HKSAR v Shek Wai-Chiu (CACC 445/2004) where this court considered the judgment in HKSAR v Chan Ka-man [2005] 1 HKC 162.  It is only fair to point out that when the directions in these cases, which also concerned the jury’s approach to majority verdicts, were given by the same judge who presided in the present case, this was before any criticism to the form of his directions had been raised in the Court of Appeal.  We do not, therefore, propose to undertake a further detailed review of the law on this aspect.  The main focus of the criticism in the present case was upon the words: “So it is a lot of give and take”.  Mr Marash argued that it can never be known whether, as a result of the use of those words, one of the jurors had “caved in” to the majority view.  Whilst again making it clear that we do not endorse the judge’s approach, the degree of criticism about the choice of words used and the context in which they are spoken will inevitably be case-specific.  Here, the judge had made it clear to the jury that each of them was entitled to “stick to” their original view having listened to the views of the others.

41.Whilst we shall grant leave on this ground, in our opinion the directions contained no material flaw.

(4) Unsafe or unsatisfactory verdict

42.In his final ground, Mr Marash argued that the prosecution’s case against the applicant was not a strong one and he submitted that a variety of factors, small in themselves, went wrong at trial which, together with the other matters raised in his earlier grounds, may have contributed to the applicant being found guilty.

43.Mr Marash justified his suggestion that this was an essentially weak case by highlighting a number of circumstances to demonstrate his point.  These included the fact that as the applicant’s thumbprint was found on one of the funnels for the tablet-making machine, this showed that the applicant, as an innocent visitor to the premises, had not been wearing gloves.  Furthermore, the presence of only one of his prints was an indication that the funnel had been pushed away, as the applicant had stated in his evidence, rather than having been picked up in which case it would be more likely that two prints would have been left behind.  Mr Marash referred also to the acquittal of Chan, despite his fingerprints being found in the premises in numerous places, as an indication of how shallow the case against the applicant had been.  Further indicators in this regard were to be found, he submitted, from a variety of circumstances including the fact that the lease for the premises was signed by a ‘Mr Lee Kin-chuen’ on 10 July 2003 who could not in any way be connected to the applicant, that nothing incriminating was found on the applicant even in the form of drug particles on his clothing or body and that he was not in possession of the keys.

44.Before we turn to two specific areas of evidence covered by Mr Marash on this ground, Mr Saw countered the suggestion that this was a weak case with an expansive overview of the evidence to put the applicant’s presence at the premises into its full context.  Summarising his submission, he pointed in particular to the fact that on any view the premises which the applicant had been visiting were being used as a drugs factory where, at the time of the raid, drugs with a potential value of over $16 million at street-level prices were found.  Those concerned in such a venture would be aware of the serious consequences arising from being found out and would be careful to keep their activities a closely guarded secret as indicated by the fact that industrial premises had been chosen and, additionally, sound-proofing had been installed.  The equipment, in the form of the machinery and the raw materials used to make ecstasy (or ‘fing tau’), would have been expensive and required expertise both to operate and to make which indicated a degree of sophistication when compared to many smaller-scale operations more commonly encountered in Hong Kong.  He pointed also to the fact that on any view the applicant had been inside the premises for about an hour and, by his own admission, had previously been there twice.  It was surprising, therefore, that only one thumbprint had been left behind by the applicant.  The answer lay, Mr Saw suggested, in the fact that there were copious pairs of new gloves found in the premises and the waste-bin was full of used gloves.  Furthermore, the police found hats made from newspaper, no doubt to prevent dust particles getting into the hair.  All of these factors were graphically illustrated by the 94 photographs produced by the prosecution at trial.

45.In such circumstances, it was contended by Mr Saw that it defied logic that those engaged in such an enterprise would permit a complete stranger, who had come to Hong Kong as a mere “tourist” from Vancouver, into the premises.  ‘Fat Boy’ (whose real name was Kong) had, according to the applicant, only been known to him since his arrival at the airport when he had given help to the applicant to find accommodation.  The applicant had also told the police that he had come to Hong Kong for “fun” and had been to Guangzhou to visit his mother.  None of this account, Mr Saw suggested, fitted with a sensible reason to have been allowed into a drugs factory for the purposes, again on the applicant’s account, of smoking cigarettes and reading the newspaper.  Mr Saw submitted that the combination of circumstances, and not merely the thumbprint of the applicant on the funnel, amounted to a powerful circumstantial case against the applicant.  We do not dissent from that view.

46.Lastly, taking two specific complaints which were also made by Mr Marash under this ground, he argued, first amongst these, that the judge’s directions to the jury concerning the date alleged in the count were confusing.  As to this, Mr Marash was on firm ground but, in the circumstances, this did not avail him.  The police had found the machine in Room B1 to be switched on and running, and there were ecstasy tablets in a container alongside it.  Plainly, manufacturing had been taking place on 22 July 2003 and it did not form any part of the defence case that this was not so.  The applicant’s defence was that he had played no part in the manufacturing of ecstasy and had no knowledge of what ‘Fat Boy’ (Kong) and the other men were doing.  The judge, nevertheless, chose to direct the jury that the date of manufacturing was not an important factor for their consideration.  This arose out of a comment made in defence counsel’s speech that the prosecution was unable to prove that the tablets had been manufactured on that particular date.  Mr Marash conceded that the date was immaterial to the issues raised at trial but he suggested that when, at a later stage, the jury was told they must be satisfied that manufacturing had taken place on 22 July 2003 this would have left the jury in some confusion.  All that we need to say in this regard is that, while the judge had introduced an unnecessary complication into the summing up, the judge had strictly speaking been correct in what he had said as the date on which the offence was alleged to have occurred was not a material averment.  Nevertheless, with respect, the judge could have expressed the matter more clearly if he had felt it was really necessary to address this aspect at all.

47.The second issue concerned a part of the summing up where the judge was dealing with the applicant’s evidence at trial concerning his claim that he had gone to Macau with ‘Fat Boy’ (Kong) on 19 July 2003.  The applicant had explained that the two of them had travelled together to the ferry pier by taxi.  Immigration records produced by the prosecution showed that they had gone through immigration checks eleven minutes apart.  Mr Marash submitted that when the judge pointed this out to the jury, he appeared to leave this somewhat peripheral aspect of the case as a matter which went to the credibility of the applicant’s account.  It had never been the subject of cross-examination and the judge’s “oblique” reference, as Mr Marash suggested, may have given the impression to the jury that the applicant was lying when, in reality, the time difference would have been accounted for as the applicant was a foreign passport holder and the two men would probably have had to go through separate immigration control counters.  Whilst the point is well made insofar as there was no need for the judge to have reminded the jury about this evidence, its only probative value being to show that the applicant and ‘Fat Boy’ (Kong) travelled together to Macau, there was equally no harm done by the directions the judge gave.  He reminded the jury that the applicant had never been asked about the time difference and he followed this by stating the obvious fact that it was not known:

“… what the explanation is, but that seems to suggest that they at least left the Immigration Counter at the Macau Ferry Pier 11 minutes apart from each other.” (Appeal bundle p. 15)

A little later, the judge reminded the jury of the evidence that the applicant was supposed to have left Hong Kong on 19 July 2003 and returned to Canada but had not done so.  Instead, he had gone to Macau with ‘Fat Boy’ (Kong).  In these circumstances, it is difficult to visualise how the 11-minute time difference could be regarded by the jury as revealing a possible lie told by the applicant.  It was obviously common ground that the applicant was with ‘Fat Boy’ (Kong) but for some reason they had become separated at the immigration counter.

48.There was no substance in any of the matters raised in this ground.

Conclusion

49.As we have already indicated in our consideration of the 1^st and 3^rd grounds of appeal, we shall give leave.  However, treating the hearing as the appeal, we dismiss the appeal.

Mr D G Saw SC, DDPP, of the Department of Justice, for the Respondent.

Mr Daniel Marash, SC, instructed by Messrs Ivan Tang & Co., for the Applicant.