HKSAR v. Chan Kam Chiu and Another

CACC 227/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 227 OF 2006

(ON APPEAL FROM HCCC NO. 227 OF 2005)

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Before: Hon Stock VP, Hartmann JA and Wright J in Court

Date of Hearing: 2 June 2009

Date of Handing Down Judgment: 31 July 2009

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J U D G M E N T

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

Introduction

1.On 1 June 2006, following a trial in the Court of First Instance before Deputy Judge Line and a jury, the two applicants were convicted of trafficking in the dangerous drug commonly called ‘ice’.  The quantity of the narcotic involved consisted of 3,382.69 grammes in both solid and liquid form.  In respect of that charge, each applicant was sentenced to 24 years imprisonment.

2.Before us, the first applicant sought to appeal his sentence only.  His application was determined on the day and judgment given.

3.The second applicant, however, sought leave to appeal both his conviction and sentence.  We reserved judgment in respect of the two applications and now give that judgment.

Background

4.The prosecution case against the second applicant rested essentially on the testimony of two witnesses, one an admitted accomplice and one a police informer.

5.The accomplice, a man called Yeung, testified that in early 2005 he was informed by the first applicant that he had a quantity of ice which he wished to dispose of for profit and was asked if he could find some way of doing so.  Yeung testified that he approached the second applicant who said that he would be able to arrange for the shipment of the ice to Guam and for it to be purchased there.  A plan to that effect was formulated: two couriers, a man and a woman, would fly to Guam with the ice concealed in their suitcases.  Yeung testified that he had a number of meetings and telephone calls with the second applicant to arrange the logistics of the plan.  He said that at one of the early meetings the second applicant introduced him to a man by the name of Ho who was responsible for providing the two couriers.

6.Ho was in fact a police informer.  Ho testified that, after he had been approached by the second applicant to find two couriers to carry a consignment of ice to Guam, he reported the matter to the police and thereafter worked closely with them in what may described as an undercover operation.  Ho testified that he also had a number of meetings and telephone calls with the second applicant to arrange the logistics of the plan.  This involved the identification of the two couriers, both of whom were police undercover agents, the purchase of their tickets and the supply of two suitcases in which the ice was to be concealed.

7.The second applicant testified at trial.  While he did not deny acting as a middle man, he said that at all times he had been acting together with, and in support of, Ho as an informer.  In this regard, it was an admitted fact that, at the time of the events in question, the second applicant had been registered with the police as an informer.

8.The second applicant testified that he had known Ho for several years and that they were friends.  He said that he knew Ho was an informer, the same as himself.  The second applicant said that, in fact, Ho had been the one to approach him to complain that the police were putting a lot of pressure on him because, as an informer, he was achieving no success and he was afraid that the police would use evidence from an old case to prosecute him unless he was able to come up with some viable information.

9.As for the involvement of Yeung, the second applicant testified that Ho confided in him that he was aware that Yeung was trafficking in drugs to Guam and wanted to find out more so that he could pass on the information to the police.  The second applicant testified that it was therefore Ho who persuaded him to set up a meeting with Yeung.  However, once he was involved, he was unable to extricate himself as Yeung was not prepared to deal directly with Ho and insisted that he remain the link man.

10.It was the second applicant’s case that it was out of friendship that he agreed to act with Ho as an informer.  He said that, while he did not make any reports to the police as to his involvement, content for Ho to receive the credit, he received assurances from Ho and from Ho’s own supervising police officer that he would be protected.

11.The second applicant’s version of events was denied by Ho and also by Ho’s supervising police officer.

12.The issue of fact that fell for determination by the jury was whether they could be sure that the second applicant had acted as a ‘true trafficker’, to use the phrase of the trial judge, or whether he may have acted as an informer in support of Ho.  By a majority of 6 to 1, the jury rejected the second applicant’s defence, being satisfied that he had at all times been a true trafficker.

The appeal against conviction: the first ground

13.Mr K W Chan, counsel for the second applicant before us but not the court below, advanced the argument that, as the credibility of the principal witnesses was such a crucial issue at trial, the judge had misdirected the jury by failing to caution them that, while their assessment of a witness’s demeanour was a factor which they could take into account in deciding how much weight to give to that witness’s evidence, it was a fallible measure, one that carried with it its own inherent dangers.

14.The direction which was criticised as being insufficient was to the following effect:

“When a witness gives evidence from the witness-box, you have an opportunity to watch them and listen to them and observe their demeanour, their body language. That demeanour is a factor which can help you decide how much weight to put on the evidence of the witness.” (Summing-up p 3S-U)

15.What was pointed out to the jury, of course, was no more than that demeanour could be a factor to assist in deciding how much weight to put on the evidence of a witness.  As a possible guide, it was one of several given by the judge.  By way of illustration, the passage was preceded by the following:

“The fact that you disbelieve or do not accept a witness on one part of his evidence does not mean that you must reject or disbelieve him on the whole of his evidence.  It is up to you what you accept and what you reject.  This is particularly so in dealing with a case like this one, involving police informers and accomplices.  When assessing claims of what occurred, you may think it wise to try and work out, if you can, what was then in the interests of any particular individual at any particular time.” (Summing-up p 3M-R)

16.A further guide followed the criticised passage, namely:

“When you are trying to assess the credibility of a witness, you are entitled, and indeed you are expected, to make use of your own experience of life, especially life here in Hong Kong and – this is important – you are expected to use your common sense.” (Summing-up p 4A-B)

17.As to the jury’s consideration of the evidence of Ho, the informant, and Yeung, the accomplice, the judge’s reference to assessment of demeanour had to be read in the context of the explicit warning that he gave concerning their evidence:

“Mr Ho and Mr Yeung were both, on their own stories, criminally involved in trafficking in the “ice” in this case, Mr Ho by design, to assist the police, and so he has not been prosecuted; Mr Yeung for his own profit and so guilty and awaiting sentence.  The burning question is have they invented false cases against the men in the dock for some purpose of their own?  You must obviously consider what may make them take such a course.  You must exercise caution when dealing with witnesses who may have their own interests to serve, especially if those interests could be strong enough to put innocent men in goal for long terms.” (Summing-up p 38N-T).

18.In our view nothing said by the judge in respect of demeanour was inappropriate.  In any event, as this Court, differently constituted, observed in HKSAR v Cheung Mei Ching, Tina CACC 349/2007 at para 34:

“There is no rule of law which requires a judge to go further and warn the jury of the “limited value” of a witness’ demeanour in assessing credibility.  Apart from anything else, demeanour may not have limited value and, to the contrary, it may provide a valuable guide to the truth.  That will be for the jury to assess. …”

The second ground

19.When directing the jury as to the drawing of inferences, the judge sought to assist them with an analogy.  In this regard, he said:

“You are entitled to draw inferences.  This merely means that if you find certain facts proved, you are entitled to infer the existence of other facts.  For instance, if you heard a shot and saw a man walk out of a closed room with a smoking pistol in his hand, leaving a dead body inside, you might readily infer that he had shot the deceased, even though you did not see it.” (Summing-up p 4G-I)

20.The use of this analogy was criticised by counsel on the basis that it was fundamentally and logically flawed, being an illustrative comparison which allowed for more than one reasonable inference to be drawn.  Accordingly, so it was argued, it left it open to the jury to draw an inference when it was not the only reasonable inference in the circumstances.

21.There is nothing in this point.  An analogy is a common device used graphically to describe a matter which in its technical definition alone may be difficult to understand.  An analogy itself is never intended to be dissected and is never taken as such.  It is a pointer to understanding, no more.  As such, the analogy employed by the judge very adequately served its purpose.

22.In any event, all teeth are drawn from the criticism by having regard to what the judge said to the jury immediately after the drawing of the analogy:

“The prosecution invites you to draw inferences of guilt against these defendants.  You may do so, but only if the inference is the only reasonable inference to draw from the proved facts.” (Summing-up p 4J-K)

The third ground

23.The accomplice witness, Yeung, was originally charged with the same trafficking offence as the first and second applicants.  He pleaded guilty to that offence, agreeing to testify for the prosecution.  The fact that he had pleaded guilty and that he would only be sentenced after he had testified was known to the jury.  The jury were correctly warned to approach his testimony with caution on the basis that he therefore had reason to falsify or exaggerate his testimony.

24.On behalf of the second applicant, however, it was submitted that the judge should have warned the jury against the danger of concluding that the first and second applicants must themselves be guilty because Yeung had pleaded guilty to committing the offence of trafficking with them.

25.We do not agree.  Directions to a jury – other than the most fundamental, for example, the burden of proof – must be tailored to assist the jury to determine the case before them.  In the present case, such a direction would have been superfluous, even confusing.

26.It is to be remembered that the second applicant’s defence was to the effect that Yeung was indeed guilty of trafficking.  It was his position that Yeung’s guilt had been brought to light by his own endeavours when acting, not as a true trafficker himself, but as a police informer together with, and in support of, his friend Ho.

27.In support of the proposition that there was a dangerous potential that the jury may assume that the second applicant was guilty because of a plea of guilty by Yeung we were referred to the decision of this court, differently constituted, in HKSAR v LO Wai Ming [2007] 3 HKLRD 191.  The facts underlying that decision are far removed from the present.  Whilst a warning to the effect that a plea of guilty of a co-accused cannot assist the prosecution in establishing guilt usually should be given where the fact of that plea is before the jury and that co-accused has not been called to testify, it is superfluous where, as here, the co-accused testifies against the accused on trial.  This is because there is no question of the jury assuming guilt, the issue for the jury being the acceptance or rejection of the evidence it hears from the co-accused.

28.In the present case, there could have been no confusion as to the issue that fell for determination by the jury: could they be sure that the second applicant had at all times acted as a true trafficker or may he in one manner or another have been acting as a police informer?  In that context, there was no danger of the jury concluding that the second applicant must be guilty of trafficking simply because Yeung had pleaded guilty to that offence.

The fourth ground

29.Although this ground was not advanced with any conviction, something briefly must be said of it.

30.It was to the effect that, when directing the jury as to the second applicant’s defence, the judge appeared to give impermissible judicial support to the credibility of the prosecution witness, the police informer, Ho, by saying:

“If – I am not saying you should – but if you decide to proceed on the basis that Mr Ho was under pressure to crack a case for the suggested reason, you may think it would then be a sensible step to ask what was in it for Mr Ho to invent a false case against the [second applicant] when he had a perfectly good one against Mr Yeung, so good that Mr Yeung has pleaded guilty.” (Summing-up p 50K-M).

31.In our view, even when that passage is read in isolation, it cannot be criticised.  The judge was doing no more than suggesting the sort of question that a logical and methodical approach may prompt.  When the passage is read in context, however, the criticism loses all force –

“If the [second applicant] was truly helping to crack the case, why did Mr Ho want to keep that secret from the police?  One reason for doing so could lie in the possibility of a greater reward to an informer if more than one defendant was implicated, but the evidence from Inspector Cheung, if you accept it, was to the contrary.  He said that was not the case.  Does simple malice against his former friend provide an answer?  These are the sort of questions perhaps you will ask yourselves.” (Summing-up p 50M-R).

The fifth ground

32.It appeared to be the substance of this ground that the judge failed to warn the jury, or failed to do so at least in sufficiently clear terms, that the evidence of Yeung, the accomplice, and Ho, the informer, must be approached with caution.  This is not the case.  The judge went to considerable lengths to point out to the jury the necessity to keep in mind their self-interests.

The appeal against sentence

33.During the course of his directions, the judge gave the following instruction to the jury:

“As a matter of legal technicality, it may be possible to consider whether the [second applicant] here acted as an aider and abetter on his own story in that it could be argued that he helped [Yeung], even though his purpose was to assist Mr Ho in gathering information against him.  Put that from your mind.  The prosecution case is that the [second applicant] was a true trafficker in this case who was not acting on the side of the police.  That is the basis on which the prosecution seek a conviction.  Do not worry about guilt on any other basis, or consider guilt on any other basis in reaching your verdict.” (Summing-up pp. 7-8)

34.By this direction, so it was submitted, the judge prevented the jury from coming to a possible finding which, in terms of moral culpability, was more favourable to the second applicant, namely, that, while the second applicant was guilty of trafficking, he may nevertheless have done so in order to pass information to the police.  It was submitted that, if that basis for conviction had been left open to the jury and was consistent with their verdict, then the sentence imposed on the second applicant would have had to take that into account and would have merited a sentence well below the tariff.

35.There is nothing to this contention.  The judge, in clear and succinct terms, made it plain to the jury that, if they came to the conclusion on all the evidence that the second applicant may have involved himself in the trafficking of the ice with the intention of passing on information to the police, they would be duty bound to acquit.  In short, the judge did not leave any ‘middle ground’ open to the jury.  That direction was favourable to the second applicant.  As the judge put it in the passage which we have just cited, if the jury were to convict they had to be sure that the second applicant was a “true trafficker” and was not “acting on the side of the police”.  On any ordinary reading of that direction, taken in the context of the directions as a whole, “acting on the side of the police” had to include the carrying out of criminal trafficking activities with the intention of obtaining information in order to pass it on to the police.

36.As it was, the verdict of the jury was consistent with only one version of the facts: that the second applicant had not in anyway “acted on the side of the police.”

37.Accordingly, the sentence of 24 years imposed on the second applicant was not in any way wrong in principle.  Nor, as the second applicant’s counsel conceded, could it be criticised as being manifestly excessive.

Conclusion

38.For the reasons given the second applicant’s applications for leave to appeal against conviction and sentence are dismissed.

Mr Paul T.Y. Tse, instructed by Messrs Li, Wong, Lam & W.I. Cheung, assigned by Director of Legal Aid, for 1st Applicant

Mr Kay K W Chan, instructed by Quan & Co., for 2nd Applicant

Mr John Reading, SC, DDPP and Mr Alvin Chui, of the Department of Justice for the Respondent