HKSAR v. Mok Swee Chuan

CACC 96/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 96OF 2007

(ON APPEAL FROM HCCC NO. 209 OF 2006)

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BETWEEN

Before: Hon Stock VP, Yuen JA and McMahon J in Court

Date of Hearing: 1 December 2009

Date of Handing Down Judgment: 15 January 2010

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J U D G M E N T

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Hon Stock VP:

Introduction

1.On 21 March 2007, the applicant was convicted after trial before Deputy High Court Judge Longley and a jury of trafficking in dangerous drugs and he was sentenced to 21 years’ imprisonment.

2.He now seeks leave to appeal his conviction.

3.The allegation was that on 4 June 2002 he with others unlawfully trafficked in 2.52 kilograms of methamphetamine hydrochloride, the drug commonly known as “ice”.

4.The prosecution evidence was primarily that of an undercover police officer who testified that in the course of an operation investigating suspected money-lending activities, he was asked by somebody called Kam to deliver dangerous drugs to other countries. He was told that someone named Wong Chai would contact him to tell him what to do. He received a call from Wong Chai on the morning of 3 June and was told that the owner of the goods would contact him with further instructions. That person was the applicant who telephoned the officer and introduced himself as Chan Chai.

5.There was a meeting between the officer and the applicant just before midnight on 3 June 2002 when, according to this evidence, the applicant told the officer to carry goods into the restricted area of the airport.

6.Upon the instructions of Wong Chai,the officer collected the drugs in two plastic bags from a motor vehicle the following morning and went to the airport. After the officer checked in, the applicant called him before he went through immigration and arranged to meet at a restaurant in the secure departure area. The officer went through immigration controls with the goods in his bag, met up with the applicant at the restaurant and passed him the goods. The applicant checked the contents but complained about the packaging to the officer and also to Wong Chai in a telephone conversation, asking how he could pass them to a person to carry through the checkpoint. The applicant then sent the officer away.

7.The applicant was arrested at the airport shortly thereafter.

The key issue

8.After his arrest at the airport, the applicant was the subject of two interviews in the course of which he provided an explanation for his conduct. It was clear from those interviews that he accepted that he had been in possession of the bags which contained the drugs but he said that he did not know that they housed drugs.

9.The trial before Judge Longely was the applicant’s second trial upon the same indictment. The first trial took place before Nguyen J in December 2003 and on 2 January 2004 the applicant was convicted. However in November 2006, the applicant’s appeal against conviction was allowed by the Court of Appeal and a retrial ordered. It is the conviction following the retrial at which this application is directed.

10.In the course of the retrial, prosecuting counsel explored with the defendant material differences between the accounts which he had given (a) in the course of his interviews; (b) in his first trial; and (c) in his retrial.

11.It is unnecessary for present purposes to rehearse the three different versions. It suffices to say that whilst there was a common thread, namely, that the applicant ultimately thought that he was going to be delivering glass from Hong Kong to Japan and thought that the bags which were handed to him by the undercover officer contained glass, there were material differences. These included differences as to who it was who originally drew the applicant into coming from Malaysia to Hong Kong; the circumstances in which he came to accept the job (on one version he needed the money and was offered a reward of US$5,000; on another because he could speak Japanese; and on yet another he owned a company that was going to engage in the glass business); the circumstances in which he came eventually to be flying to Japan on his own (on one version that was always the plan; in another version, that transpired only because the wife of his intended co-traveller fell ill); and whether he ever suspected that the bags he was handed contained drugs (on one version he did but his fears were allayed; on another version he never harboured such a suspicion.)

12.Not surprisingly therefore, counsel for the prosecution cross-examined the applicant about his previous inconsistent statements, referring to them as statements made “on a previous occasion.” It was put to him that the account given previously was “radically different”, with which proposition he agreed.

13.In explaining these material differences, the applicant contended that the version given at the first trial was one that had been concocted by his solicitor or his solicitor’s clerk. Counsel for the prosecution put to the applicant that that was untrue and that the real reason for the further change in story was that the jury had not believed the version given at the first trial and had convicted him.

14.The contention upon this application is that in permitting that cross-examination the judge had erred; and that the prejudicial effect of the revelation of the fact of the conviction at the first trial was greater than the probative effect.

The impugned cross- examination

15.The applicant’s account at his second trial was that at his first trial he had been handed a document by his solicitor headed “Instructions of Mok Swee Chuan”, which, he said, was not a record of the instructions he had given to the solicitor but had been made up by the solicitor himself.

16.In challenging this account, counsel for the prosecution put the following:

“Q. I’m not suggesting you typed it.  What I’m suggesting happened to you was that you gave your lawyer instructions.  Those instructions were then put into written form and this document was produced.

A. Disagree.

Q. Now, you gave evidence in a trial in December of 2003.  2003.

A. Yes.

….

Q. Your evidence was not believed because you were convicted of the offence.

A. I want to explain that.  I want to explain that in the first trial, my representative had defended me after taking my instructions.  If he had listened to my instructions and, according to my instructions, had defended me and I wouldn’t have been put in such a plight.”

17.He was then asked questions about what he had told his barrister and he reiterated that the story was one given to him by the “litigation executive”. He then pointed out that his appeal had been allowed. This led to questions about the grounds of appeal which had been lodged and the fact that they had “made no reference whatsoever to a legal representative concocting or making-up a story for you – a false story to tell the court”; and several suggestions were made by prosecuting counsel that on the last occasion the story he had told had not been believed by the jury and that therefore he, the applicant, wanted to change it.

18.In his closing speech, counsel for the prosecution said that:

“… the prosecution says really that what happened was that Mr Mok gave a version in the previous trial which was not believed, and because of that he changes his version and gives you yet another version.  He seeks to persuade you that what he said in the last trial was because he knew nothing about Hong Kong law and that he’d been coached to do it.”

The summing-up

19.In his summing-up, the judge dealt with this issue as follows:

“  You have heard, members of the jury, that the defendant stood trial in December 2003 for this offence, that he was convicted, that the case subsequently went on appeal and the appeal was allowed.  The defendant admitted, during his cross-examination by Mr Kelly in this trial, that he had said certain things in the course of his evidence in that trial and he gave certain explanations for having done so.  I will remind you of some of that evidence later.

The evidence of what the defendant admits he gave during that trial and his explanations is evidence that you can bear in mind in reaching a verdict in this case.  But it is very important that you are not influenced by the fact that another jury found him guilty in that trial.  That jury decided the case upon the evidence before it and based upon the directions of law that were given by the judge to them.  As you know, the defendant’s appeal was allowed.  As you know from what you have heard – and you have only heard a very small part of the evidence in that case – the evidence was not the same as in this trial; nor are the directions as to the law that I am going to give you the same as those given by the judge in that trial.

The reason that you have heard about the fact that the defendant was convicted in that trial is purely because the prosecution suggests that he has made-up another story in this trial because his evidence in the previous trial was not believed.  It is also suggested by the prosecution, members of the jury, that the reason that he did not complain in his grounds of appeal about having been given a false story to tell by the legal executive who took instructions from him is that he was never given such a false story by the legal executive.

Members of the jury do not be influenced in any way into thinking that because another jury found the defendant guilty, he must, or may, be guilty of this offence.  Also bear in mind, when considering the significance of the defendant’s admission that, in his appeal, he made no reference to the fact that his legal representative had provided him with a false story, that in fact, grounds of appeal are usually settled by counsel based on what they consider are valid legal grounds of appeal.

Members of the jury, you must not speculate, or guess, about matters you have not received in evidence.  It would be quite wrong for you to speculate about matters relating to the first trial about which you have not heard any evidence, or indeed what happened on appeal.  If there is no evidence on a particular matter, you must accept that and reach a verdict in the absence of that evidence.  Do you [not?] try to fill in the gaps by making guesses about what might have happened.”  (Emphasis added)

Analysis

20.Since the applicant had provided materially inconsistent prior statements and since one of those inconsistent versions was tendered at a previous trial, the applicant opened himself to cross-examination in respect of those inconsistencies. It was therefore permissible for prosecuting counsel to reveal the fact that on a previous occasion the applicant had given a version that was inconsistent with the version which he was offering at the second trial.

21.Furthermore, once the applicant at his second trial sought to explain material inconsistencies by alleging that the original version was a false version provided by his solicitor or his solicitor’s clerk, he necessarily opened himself up to cross-examination about the veracity of that assertion.

22.In our judgment it was unnecessary for prosecuting counsel to reveal the fact that the applicant had been convicted at his first trial. The applicant’s credibility could sufficiently have been undermined by the more obvious and usual device of seeking the judge’s permission to call the evidence of the solicitor or of the solicitor’s clerk in rebuttal. The applicant’s explanation for the inconsistency was not one which the prosecution could have forecast and in those circumstances it is likely that the judge would have granted such an application. Had that course been taken, it would not, in our opinion, have been difficult for the questions to be asked in such a way as to avoid express revelation of the fact of the earlier verdict. No doubt, the solicitor or the solicitor’s clerk would have denied the allegation and the jury would have had to make a determination of fact accordingly.

23.The question however is whether in the circumstances as they had developed at trial, revelation of the fact of the previous verdict had probative value and, if so, whether the prejudice occasioned by that revelation exceeded the probative value, such that it should not have been made.

24.There can be no question but that the revelation of the fact of the previous verdict was relevant to the extent that it provided a realistic reason for the inconsistency and because it was an inherently more probable reason for the inconsistency than the one advanced by the applicant. There was also probative value in the fact that in the appeal no complaint had been made that the applicant had been forced by his advisers to advance a defence that was not his true defence.

25.Conversely, there can be no question but that revelation of the fact of the previous verdict carried potential for undue prejudice. The argument would be that the fact that another tribunal of fact had found the applicant guilty might undermine such untrammelled and fresh approach as the second jury might otherwise have adopted. In R v Morry (1970) 1 CCC (2d) 498, where a similar disclosure was made in a newspaper, the argument was that the disclosure might in a finely balanced case influence the jury so that, instead of giving the appellant the benefit of the doubt, the jurors might be led to convict because they thought another jury had done so. That argument failed because “whatever prejudice might have been caused by the published reports … was avoided by the eminently proper directions which the learned trial Judge gave to the jury.”

26.A proper analysis of prejudice must always be sensitive to the particular facts and context. The analysis in this case would be an unrealistic one if it were to view the revelation of the previous verdict – even though avoidable – in a vacuum. A realistic assessment is one that has regard to the following facts and considerations, peculiar to the case at hand:

(1)  Cross–examination about the inconsistency between the two versions was permissible: indeed it was rendered necessary by the applicant’s testimony.

(2)  Had the orthdox route of calling evidence in rebuttal been taken, it would have been clear to the jury that the applicant had been the defendant in previous proceedings for precisely the same offence and it is idle to suppose that the jury might not have speculated that he had previously been convicted of it, and if this be so, little or no additional prejudice was in the event occasioned.

(3)  To counteract such prejudice as might have resulted from such speculation, the judge would have been required to give a direction that they were not to speculate about the nature of the previous occasion; but he would have been precluded from telling them that the evidence given at that trial was different, that the directions of law had been different and, in particular, that the appeal had been allowed, a fact of considerable significance in the applicant’s favour when the jury did not know that the reason for allowing the appeal was in fact based on an error of law rather than on the merits.

(4)  The applicant’s explanation for the material inconsistencies was that he had lied on affirmation at his previous trial, an explanation that of itself was highly prejudicial to credibility.

(5)  The previous conviction did not follow rejection by the first jury of the same defence offered by the defendant at his second trial; had that been the case and had the jury been aware of it, the likelihood of an impermissible line of reasoning and the resulting prejudice would have been greater.

(6)  The suggestion that he had been coached to a false story was made before any revelation by the prosecutor of the earlier verdict but, once it was revealed, he contended that had he stuck to the true story, namely, the one he was giving to the jury at his second trial, he would not have been convicted.

(7)  Against that background, the judge warned the jury:

(i)  that it was “very important” that they should not be influenced by the earlier verdict, pointing out in this regard -

(ii)  that that verdict followed evidence before that jury, which was different from the evidence in the second trial;

(iii)  that the directions that had been given by the judge in the previous case had been different;

(iv)  that the applicant had successfully appealed that conviction; and

(v)  that the only relevance of the previous verdict was as to credibility.

27.Viewed in this way – and in particular remembering that the jury was told that the applicant had succeeded on appeal – we do not consider that what happened caused greater prejudice than the prejudice occasioned by the applicant’s admission that he had lied on the previous occasion, remembering also the careful directions given by the judge as to the impermissible line of thought upon which the jury was not to embark.

28.There have been a number of cases in which the question has arisen whether the trial judge ought to have allowed questions to be asked on behalf of the defendant at a retrial to reveal the fact that in a previous trial the defendant had been acquitted of certain of a number of charges. Such an instance is Chan Ka Man v HKSAR (2008) 11 HKCFAR 614. These decisions are of limited assistance because the suggested revelation was not one which was likely to prejudice the defendant. Perhaps the only utility of the Chan Ka Man decision for present purposes is that part of the judgment of Lord Woolf NPJ, at para 17, which intimated the importance of a suitable direction where revelation of a conviction became necessary:

“Counsel for the appellant appeared to accept that if the jury were to be told about the acquittals, they would also have to be told about the findings of guilt and to have been told why those findings were set aside.  I agree, otherwise, the situation would be very unfair to the prosecution and the victim.  But absent an appropriate direction of the judge, this additional knowledge could mislead them into being prejudiced against the appellant on the retrial.” (Emphasis added)

29.Although in this case not a determining factor, we note too that no objection was taken at trial by experienced defence counsel to the course adopted by prosecuting counsel.

30.Accordingly, whilst the issue is sufficiently arguable to warrant the granting of leave to appeal, it does not enure to the applicant’s ultimate benefit.

Other grounds

31.The next ground relates to the written instructions which were produced. On the afternoon of the first day of cross-examination of the applicant, the applicant told the court that the evidence he had given at the first trial accorded with a “transcript” given to him by his solicitor. He had that “transcript” at Lai Chi Kok Reception Centre and when asked whether there was anything to prevent him bringing it to court the following day he said “no problem”. He brought a document to court the next day and it was produced. It was the document entitled “Instructions of Mok Swee-chuan.”

32.The complaint is that the judge ought to have reminded him that since the document was a privileged document he had the right to refuse to disclose it.

33.The point is, with respect, a weak one. No objection was raised by defence counsel to the production of this document. Presumably, he did not object because he recognized that if the document came into being in the circumstances described by his client, it was a document created in order to pervert the course of justice and would therefore not be covered by legal professional privilege; alternatively, because the applicant had by that stage implicitly waived such privilege as might attach to it.

34.There is another ground which is to be found in the written submissions but not in the grounds of appeal themselves, namely, that the judge did not direct the jury that the fact that the undercover officer had, at the time he came across the applicant, been investigating loansharking was irrelevant, for it had never been suggested that the applicant himself was engaged in loansharking.

35.This is not a good ground either. It was never part of the prosecution case that the applicant was involved in loansharking and when the judge told the jury that the object of the undercover work had been to investigate illegal moneylending, he added specifically that: “I will remind you of the background that [the officer] gave to this but, bear in mind, the defendant did not enter the picture until June 2002” which was well after the loansharking investigation had commenced. The prosecution evidence was that it was in the course of the loansharking investigation that the idea of drug trafficking had been put to him by someone other than the applicant. It was clear therefore that the investigation moved from loansharking to one that targeted drug trafficking and it was only in the latter context that the applicant’s name arose. There was in circumstances no need for any further direction by the judge.

Conclusion

36.Accordingly, we grant the applicant leave to appeal against conviction and treat the hearing of the application as the appeal but, for the reasons given, the appeal is dismissed.

Mr David LEUNG, SADPP (Ag.) of Department of Justice for the Respondent

Mr James H.M. McGowan instructed by M/s Quan & Co. for the Applicant

Appeal by the applicant to Court of Final Appeal refused. Please refer to FAMC69/2010 dated 14 December 2010