HKSAR v. Leung Wai Hung

cacC 52/2006

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO. 52 of 2006

(on appeal from HCCC NO. 263 of 2005)

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BETWEEN

Before: Hon Stock JA, Beeson  J and McMahon J in Court

Date of Hearing: 26 January 2007

Date of Judgment: 26 January 2007

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal against conviction.  On 19 January 2006, the applicant was convicted after trial before Deputy Judge Wright, as he then was, and a jury upon an indictment containing one count of conspiracy to traffic in a dangerous drug.  The verdict was a majority verdict, five-one (one juror having been discharged) and the applicant was sentenced to a term of 27 years’ imprisonment.  He has abandoned his application for leave to appeal against sentence and that, accordingly, stands dismissed.

2.The indictment alleged that the applicant “on divers days between an unknown day in April, 2002 and the 21^st day of May, 2002 in Hong Kong, conspired together and with CHOI Wing-kuen, NGAI Ying-cheung, LIU Ming-sze and other persons to unlawfully traffic in a dangerous drug, namely methamphetamine hydrochloride.”

The evidence

3.On the evening of 20 May 2002 Ngai and Liu were intercepted by police officers at the airport in Hong Kong intending to leave Hong Kong for Guam.  Each had strapped to his body eight plastic bags of the drug, commonly known as ‘ice’, in substantial quantities.  Air tickets found on them demonstrated that they intended to depart for Guam on 20 May and to return to Hong Kong on 24 May.

4.The sole evidence against this applicant at trial was that of Choi, together with a record showing that 84 telephone calls had been made between Choi and the applicant between 22 April and 20 May 2002.  Choi had pleaded guilty to his participation in the conspiracy, a fact that was made known to the jury.  As the judge correctly suggested to the jury, the sole issue which they had to decide was whether the applicant was a party to the conspiracy.

5.Choi’s testimony was that he and the applicant had worked together as transportation drivers in the late 1990s and that in the spring of 2002 he had a chance encounter with the applicant during which he, Choi, revealed that his income was in an unhappy state, and the applicant told Choi that he needed someone to take two kilograms of ice to Guam for a reward of $30,000.  Choi refused to do this, but he was persuaded by the applicant to find someone else who would do so.  Choi knew Ngai and secured his agreement to be the person who would transport the drugs.  There then followed numerous telephone contacts between Choi and Ngai about a passport and about a departure date, and numerous telephone conversations also between Choi and the applicant to carry the scheme to fruition; these were the 84 telephone conversations admitted in the evidence, calls that abruptly ended on 20 May 2002.

6.The accused gave evidence in his defence.  He said that the truth was the other way round: it was Choi who had suggested to him, the applicant, that the applicant should carry drugs to Guam.  He explained the numerous telephone calls on the basis that Choi was telephoning him regularly looking for work and, occasionally, to make arrangements to meet socially.  He also said that the particularly large number of calls during May 2002 took place because Choi had then been involved in a collision and the applicant was assisting him to find a garage that would repair his vehicle.

This appeal

7.There are a number of substantive grounds of appeal.  We find nothing of merit in the suggestion that the judge failed to give a sufficient warning to the jury about the dangers of relying upon the evidence of the accomplice.  We are satisfied that the warning that was given by the judge was adequate in the circumstances.  There is also a complaint that the judge misdirected the jury in telling them that at least five of them had to be agreed, the suggestion being that he may have left them with the impression that disagreement was not an option.  It is clear, however, that the judge told the jury that it was open to them to disagree, in which event he would direct them further.

(1) A direction about the evidence

8.We are however exercised by three of the various issues drawn to our attention.  In the course of his summing-up, the learned judge said this:

“It may be that the opinion you formed of [Choi’s] evidence leads you to reject everything he said.  That is a matter for you.  But even if you do take that view, that is not an end of the matter as you must still then look at the evidence as a whole, at the remaining evidence.”

This was not in the circumstances of this case an appropriate comment.  The only other evidence that could be inculpatory of the applicant was the evidence of the many telephone conversations with Choi at the time of the conspiracy, and, possibly, such lies as the jury may have found – possibly, for example, the explanation for the frequent calls in May – were told by the applicant in the course of his evidence.  But neither the telephone calls nor the lies could survive on their own.  They could at most be supportive of the evidence of Choi and if the jury rejected everything that Choi said, or rejected the essence of his testimony, there was nothing left upon which to convict the applicant and that is what the jury should have been told.

(2) Silence upon arrest and caution

9.One of the many facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, was as follows:

“On 1 August 2005, police officers arrested the defendant at his residence in Tuen Mun.  Under arrest and caution for the offence of conspiracy to traffic in a dangerous drug, the defendant said ‘Ah Sir, I have nothing to say.’”

Why this was in the statement of admitted facts at all, we do not know.  It could have no probative value in the case.  It was not evidence of guilt and it would not have been permissible to use that silence as a basis upon which to derogate from the weight of a defence offered for the first time at trial: Lee Fuk Hing v HKSAR [2005] 1 HKLRD 369.  The fact that it was there would not of itself constitute a ground for allowing this appeal, especially since it was there by consent of counsel for the applicant at trial.  However in this particular case nothing was said to the jury to the effect that no inference adverse to the applicant was to be drawn from his silence in answer to the allegation then put to him by the police.  This, in our judgment, is a direction that should have been given, and in this case we think that is particularly so because the judge had suggested, by his direction to which we have earlier referred, that there was no other evidence from which they might adduce guilt.

(3) Jury communications

10.The jury retired at 11 am and returned to court to deliver its verdict at 2:38pm on 19 January 2006.  Immediately before that, namely at 2:37pm, the judge said this to counsel:

“Just before we get the jury in, I had two requests from them, one of which was to give them a copy of my summing-up, so we said no to that.  And the other of which was for a copy of the records of the phone calls, so I had my clerk explain - - or the jury usher explain to them that those were not part of the evidence; they simply had to take the numbers from the Admitted Facts.”

Immediately thereafter, the jury returned to court and delivered their verdict.

11.We do not know at what stage the question from the jury was communicated and, although on the court file there are two sheets of paper with a few manuscript phrases which seem to evidence a broad request for the matters to which the judge referred (phrases such as ‘Judge’s summing-up’, ‘defendant evidence’ and ‘witness evidence’, we do not know in whose hand these notes are written.  We are satisfied that it is not necessary in this case to inquire.

12.It is obvious from the judge’s statement of what had transpired that the judge was at all times properly mindful of the fact that any communication from the jury to the court, and any response, was something that had to be divulged in open court in the presence of the applicant to counsel.  That is precisely why he told counsel what he did.  But he told them at a stage after he had already communicated his response to their question, a response not made in open court and made instead through the court usher.

13.What happened falls to be examined against the basic principle encapsulated in a judgment of Lord Chief Justice Goddard in R v Green (1950) 34 Cr App R 33 at 34:

“This court and the Divisional Court has said on more than one occasion that any communication between a jury and the presiding judge must be read out in court, so that both parties, the prosecution and defence, know what the jury are asking, and what is the answer.”

The principle there articulated is a cardinal feature of open justice.  Its observance goes to enforce confidence in the administration of justice and to enable a defendant through his advisers to make such submissions in the light of what a jury communicates as may in law be open to him.  A communication between the jury and the judge that may reasonably be said to touch upon the case, issues in the case, the approach to their task, is an event that is itself part of the trial, and the trial must take place in open court in the presence of the defendant.

14.This is not to say that every communication, even the most procedurally banal, must be articulated in open court and it is also not to say that it is every breach of the rule, where the rule applies, that will result in the quashing of a conviction.  That this is so is evident from the analysis in Colins Stuart Crowe [1985] 16 A Crim R 478 where Campbell J said, at p 479 that:

“In Green (1949) 34 Cr App R 33 Goddard LCJ reiterated that any communication between a jury and the presiding judge must be read out in court so that both protagonists, the prosecution and the defence, may know what the jury are asking and what is the answer.  The rule applies unless the communication is on a matter which does not touch upon the case in any relevant way:  Ion (1950) 34 Cr App R 152.  But it has been recognised that not every failure to comply with the rule should result in a conviction being set aside; in a number of cases, of which Furlong (1950) 34 Cr App R 79; Barnowski [1969] SASR 387; Zamparutti [1973] 2 NSWLR 151 and Lamb (1974) 59 Cr App R 196 are instances, the general proviso has been applied empowering an appellate court to dismiss an appeal on the ground that no miscarriage of justice has actually occurred.”

Thomas J then referred, at p 481, to Ion in which Humphreys J had said:

“Similarly, there are other communications which quite obviously cannot affect the merits of the case in which it is left to the discretion of the presiding judge whether the prisoner and his counsel [if he has one] ought to be brought into court so that they may hear what the jury have asked the judge.  Wherever, however, there is a matter in dispute which may possibly result in the prisoner either being convicted or acquitted and that appears in a written note sent in by the jury, it is obviously right and proper that the prisoner himself and his counsel should know what the jury have to say to the judge.”

Thomas J went on:

“Obviously there are some matters which may properly be regarded as trivial or formal which could not possibly have any bearing upon the course of events or the jeopardy of the accused.  The request for a glass of water is a safe example.  Such communications have no possible effect upon the accused’s rights, and failure to mention such a matter in open court would not even be an irregularity.  However, one hesitates to suggest any example much further along the line in this particular context.”

15.It is clear that the communication in this case from the jury was not of the purely trivial or procedural form of which Thomas J there gave examples.  The jury asked for a copy of the summing-up, a matter that evidently touched upon their deliberations on the factual merits of the case.  It cannot in our judgment be said to be a communication of the kind that could have no possible bearing on the course of events.  The request for a copy of the summing-up was a request that must have been made for a reason; perhaps because the jury wished to be reminded of a piece of evidence or perhaps because the jury wished to be reminded of a direction as to law.  That the judge eventually told the parties what had transpired does not alter the fact that the course he originally adopted constituted in our opinion a material irregularity.  That he later told counsel in open court what had transpired goes only to the question whether we should apply the proviso.  There was a material irregularity because there was a direction from the judge to the jury that was relevant to the case itself which was not in open court and which in addition was made orally through a third person, giving rise, as such communications always do, to the risk of inexactitude and of informal remarks passing between that third party and the jury, or simply of the parties not knowing exactly what has been said by the third party or by the jury upon communication of the message.  In all instances other than those of the trivial or formal kind to which Thomas J referred in Crowe above, the practice should be that indicated in R v Lamb (1974) 59 Cr App R 196 at p 199:

“The practice should be that, on the Court being informed by the jury bailiff of the jury’s wish to make a request of the Court or to communicate something to the Court, the request or communication should either be delivered in writing to the Court and the contents and any reply to be delivered through the bailiff, made known in public in Court before delivery, or, the jury should be brought back into Court to make the request themselves and the Judge should answer their request in Court.” (emphasis added).  

16.The appropriate course in this case, regardless of any submissions that might have been made by counsel, was to have told counsel in the presence of the applicant of the questions that had been raised and brought the jury back to court to clarify what it is they wanted, but in any event to explain to them in relation to telephone records that they had to work with what they had been given but, more importantly in this instance, that it was not possible to provide them with a copy of the summing-up but to ask whether there were any matters, whether as to evidence or as to law, in respect of which they sought a reminder or explanation.  It is true that the judge told the parties in open court what had happened, but the error was that that communication of the jury’s question was not timely, in other words, as soon as practicable after the jury had raised its requests; that the judge’s response was not communicated in open court to the jury; that it was communicated as far as we know other than in writing, through a third party, the usher – a course that always leaves open the possibility of inexact communication; that counsel were not given an opportunity of considering the question raised, and of making submissions; and that the jury was not given an opportunity in open court of explaining why they needed a copy of the summing-up.  The error constitutes, in our judgment, a material irregularity.

The proviso question

17.It is realistically conceded by Mr Leung for the respondent that what happened constituted a material irregularity, but he invites the court to say that no harm resulted from the incident and that we should accordingly apply the proviso.  In aid of this submission he suggests that even had the matter been canvassed in open court the answer given to the jury would have been the same and, secondly, that when the judge told counsel in open court what had happened, no objection was then taken and no application made that the jury be discharged.

18.We do not agree that the answer would have been the same.  We think it probable that counsel would have invited the judge to ask the jury into court to ascertain what assistance they required, and we have made clear our view that even if counsel had not made such a request, that is the course the judge ought of his own motion to have taken.  As to the second point, that counsel did not take issue with what had happened when it was revealed to them, the reality is that counsel were for practical purposes given no opportunity to advance submissions.  The matter was disclosed to counsel at the very moment that the jury was on the cusp of delivering its verdict and, for practical purposes, counsel were presented with a fait accompli.  It may be, although we are loathe to suggest examples, that some jury questions touching upon the trial itself allow so obviously of only one answer, giving rise to no possibility of a further inquiry to the jury or of submissions by counsel, that the proviso can properly be applied; or the nature of the question may itself relate to so peripheral a matter as, in the context of the evidence as a whole, will give an appellate court no concern.  But this is not such a case.  Upon this ground alone we would allow the appeal.  It is unlikely that either of the other two grounds to which we have referred would in isolation have resulted in the quashing of the conviction although a combination of the two may well have done so.

Result

19.In the event, we grant the applicant leave to appeal against conviction and, treating the hearing of the application as the appeal, we allow the appeal and set aside the conviction and sentence.  We shall hear counsel as to any application there may be. 

[Submissions]

20.An application is made for a retrial which Mr Lloyd does not oppose.  We therefore order that the applicant be retried for the offence charged and he is remanded in custody pending his retrial.

Mr David Leung, SGC, of Department of Justice for the Respondent

Mr Ian Lloyd and Mr Anthony Lo, instructed by Messrs Christopher Li & Co. for the Applicant