HKSAR v. Chau Hon Kwong
Read the full judgment text of CACC 86/2010 on BabelCite. This Court of Appeal judgment was delivered on 7 December 2010.
1. The applicant sought leave to appeal his unanimous conviction by a jury before Line J of a single charge of trafficking in 372.50 grammes of heroin hydrochloride contrary to s. 4 of the Dangerous Drugs Ordinance, Cap 134, as well as the subsequent sentence of 17 years imprisonment.
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CACC 86/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 86 OF 2010 (ON APPEAL FROM HCCC NO. HCCC 254 of 2009) ____________
Before: Hon Yeung and Yuen JJA and Wright J. Date of Hearing: 7 December 2010 Date of Judgment: 7 December 2010 Date of handing down Reasons for Judgment: 10 December 2010 ____________________________ REASONS FOR JUDGMENT ____________________________ Hon Wright, J. (giving the judgment of the Court): 1.The applicant sought leave to appeal his unanimous conviction by a jury before Line J of a single charge of trafficking in 372.50 grammes of heroin hydrochloride contrary to s. 4 of the Dangerous Drugs Ordinance, Cap 134, as well as the subsequent sentence of 17 years imprisonment. 2.At the conclusion of the hearing we dismissed the application for leave to appeal conviction. We granted leave to appeal sentence, treated the hearing as the appeal proper, allowed the appeal and substituted a sentence of 16 years. We indicated we would give our reasons later. This we now do. APPEAL AGAINST CONVICTION The grounds of appeal 3.It was necessary to identify just what it was in the conduct of the trial that gave rise to this application, for the primary ground of appeal did not accurately reflect the events which occurred. The two specific grounds of appeal, in addition to the usual catchall of the conviction being unsafe and unsatisfactory, were:
Events at trial 4.The applicant elected to testify on his own behalf. On the morning of 24 February 2010 when he was being examined in chief by leading counsel, Mr. Clive Grossman SC, the following exchanges occurred:
5.That afternoon the prosecutor and Mr. Grossman made their closing speeches to the jury. The judge indicated that he would address the jury the following day. After the jury had departed Mr. Grossman raised with the judge an aspect of the judge's forthcoming summing up in respect of which the judge had provided counsel with a draft. When that issue had been dealt with the judge asked the prosecutor, Mr. Whitehouse of counsel, whether he had a copy of the applicant's antecedent statement. That was given to the judge who then queried the whereabouts of the record of the applicant’s criminal convictions. That was then made available to the judge. The following exchange between the judge and counsel occurred:
6.The following morning, in the absence of the jury, the judge pursued the matter with Mr. Grossman during a fairly lengthy exchange, in which the following passages were relevant to this appeal:
7.The prosecutor then suggested that there should be a trial de novo. The judge read to counsel the passage that he intended to include in his summing up to cover the issue which had arisen. The prosecutor indicated that he had no objection to that passage whilst Mr. Grossman expressed the view that it was the "... best [he] could hope for" if the judge had taken the expressed view. There were further exchanges about the possibility of a new trial during which the judge accepted that Mr. Grossman had not made any mention during the course of his closing speech of the applicant's employment or the fact that it supposedly provided him with an income sufficient to remove any necessity for him to involve himself dangerous drugs. Then the following:
8.The jury returned to court and was told:
Ground 1 9.There were two aspects to this ground: first, whether the judge had "decided" that the applicant had put character in issue; secondly, whether the terms of the admission made by the applicant could have left the jury with the impression that he had a previous conviction or previous convictions. 10.It was clear from the two italicised passages which we have quoted that the judge took the view that the applicant had testified in such a manner as to constitute having given evidence of his good character in that he had testified, first, that “... each year, I draw $500,000 as my wages. And I also got other sources of income, like a bonus and dividend of certain shares.” when, in truth, he had been in jail for at least three years in the recent past and thus not in employment and, secondly, that the point that he had sought to make was that he was financially secure and had no necessity to involve himself with dangerous drugs. There was the further aspect that he had agreed with Mr Grossman that during the day he had been “...at work with his companies...” which, during his period of imprisonment, was plainly misleading. 11.The significance of this was to be found, submitted Mr Reading SC for the applicant, in the provisions of s. 54(1) of the Criminal Procedure Ordinance, Cap. 221, especially subsection (f). We reproduce the relevant passages:
12.It follows that if the judge were correct in the view he expressed it would have been open to the prosecutor to apply for leave to reopen his cross-examination of the applicant and cross-examine the applicant on his employment and financial ability. It is well established that whether a court will allow such a course to be followed is to be determined in the discretion of the judge. Although this section does not itself stipulate that it is necessary to obtain the leave of the court before cross-examining on previous convictions, that is the practice which prevails. 13.In this case that was neither the course that the prosecutor sought to persuade the judge to follow nor the course that the judge took. The judge specifically indicated in the underlined passage which we have quoted that he was not considering such a course. Thus, whether the judge, as the first ground of appeal asserted, actually had decided that it would be open to the prosecution to cross-examine the applicant and whether the judge would have been correct in arriving at such a decision was not an issue which, in our view, it was necessary for us to decide for the purposes of this appeal. 14.It was self-evident from the exchanges that what exercised the judge was the false impression which had been created by the lengthy answer regarding his financial affairs which the applicant gave to the straightforward question by Mr. Grossman which related to the nature of the work in which the applicant was engaged at the time of his arrest. This was compounded by the subsequent two leading questions by Mr. Grossman concerning the purpose of that evidence and whether he had been at work in his company during the daytime. There could not be any doubt that such an impression would have been created by the applicant’s testimony and his answer to those leading questions and that that impression would have been false. 15.The judge correctly identified it as his duty to dispel a factual misapprehension which he perceived as potentially being important to the jury's decision. It is often overlooked that fairness is a two-way street: it is the duty of a judge to ensure fairness not only to a party on trial before him, but also to the prosecution. 16.We were conscious of the words of Diplock LJ in Michael Sargvon (1967) 51 Crim. App. R. 394 when considering the discretion to be exercised by a judge in permitting cross-examination where that appellant had put his character in issue by seeking to create the impression of being honest and upright:
17.It would have been open to the judge, of course, to have invited submissions and then to have made a ruling as to whether the applicant had brought himself within the provisions of s. 54(1)(f) and, consequently, to decide whether he should exercise his discretion in favour of allowing cross-examination. Plainly, had that course been followed the adverse impact on the case of the applicant may have been considerable, albeit not unfairly so. 18.We were concerned to note that the prosecutor had first categorised the judge’s proposed course as “unsatisfactory” which he then amended to “unusual”. This is particularly so given that the situation was unlikely to have arisen if, as he should have done, he had provided the antecedent statement and criminal record of the applicant to the judge at the outset of the trial, or taken issue with the line of questioning pursued by Mr Grossman. In our view, the judge’s solution was pragmatic, sensible and resulted in fairness for both the prosecution and the applicant. 19.We noted that in England there now exists specific legislative provision which deals with the creation of a false impression as to good character by an accused and provides for leave to be granted to the prosecution to cross-examine in order to dispel that false impression: see ss. 101(1)(f) and 105(1) of the Criminal Justice Act 2003. 20.In R v Render [2006] 1 WLR2948, which related to an offence involving violence, the judge allowed cross-examination in regard to a previous charge of assault which had been disposed of by way of an absolute discharge after the appellant had been found unfit to plead, the fact of the assault having been established before the jury. At §23 the court, in upholding the decision of the judge, observed:
21.As to the second aspect of this first ground of appeal, we saw no realistic basis upon which it could be suggested that the terms of the admission could have left the jury with the impression suggested by the applicant. 22.It was to be remembered that Mr. Grossman introduced that admission by indicating to the jury that the judge had permitted him to make a clarification of one point which had arisen during the applicant’s evidence the previous day. That introduction was, it seemed to us, deliberately tailored to make it look as if the admission had emanated from the applicant himself. We also noted that, given the terms of the proposed admission, Mr. Grossman did not even regard it as necessary to take instructions from the applicant as to whether it should or should not be made. 23.The terms of the admission to which Mr. Grossman apparently had no difficulty in agreeing were bland to the point of being innocuous and were confined to a single, simple statement of fact. They met the circumstances of the case and did no more than address the issue in the most favourable way possible to the applicant. 24.Assuming that the jury even regarded this aspect of evidence as being of sufficient importance to consider it specifically, the submission that it would arrive at a decision that "the obvious answer would be" that the applicant had not been earning an income during the previous three years "because he was serving a prison sentence" was fanciful. 25.There was no merit at all in this ground of appeal. Ground 2 26.In the course of his oral submissions to us, Mr Reading realistically accepted that this ground could not have stood alone if Ground 1 failed and relied upon his written submissions. It was fallacious to say that the defence had not challenged the prosecution's case. Whilst much of the prosecution evidence was not in dispute, the core of its case was that it was the applicant who was the person in possession of the drugs and other items found in his own home. It was the core of the applicant's case that he was not, that they were there without his knowledge or consent as the property of a third party upon whose identity he could only speculate. The only effect of the direction about which complaint was made was simply to remind the jury that the applicant would have to be acquitted if they thought that he might be telling the truth. This ground of appeal was also devoid of merit. APPEAL AGAINST SENTENCE 27.The judge correctly identified that the quantity of heroin involved, 372.5 g, came close to the top of the bracket delineated in R v LAU Tak-ming & Ano [1990] 2 HKLR 370 which indicates that trafficking in between 200 and 400 grammes should attract a starting point after trial of between 12 and 15 years imprisonment. 28.The judge noted that the applicant was not simply a courier but that he had the drugs together with equipment in his home, which he described as "a relatively expensive flat", to enable the drugs to be cut with agents which were also found there, thereby increasing the quantities that were available for sale. For this fact, the judge determined that, absent one other significant feature, the applicant’s previous convictions, the appropriate starting point would be at the top of the bracket, namely 15 years imprisonment. 29.The judge then went on to say that the applicant’s previous conviction:
30.The submission initially was twofold. First, that because the quantity of narcotic fell within a stipulated band, the court was bound by the upper limit of that band irrespective of any aggravating features. It was suggested that because the phrase "within the suggested bands" appears at the commencement of a paragraph which identifies some matters of aggravation, an offender may not be sentenced "... outside the tariff band for the quantity of drugs involved." This aspect was not pursued before us, Mr Reading recognizing that it failed to reflect express decisions of this court, differently constituted, in HKSAR v YUEN Wing-chuen [2006] 3 HKLRD 220 that aggravating factors may cause the limit of a particular band to be exceeded followed in HKSAR v LUK Chun-man [2006] 3 HKLRD 450. 31.Secondly, enhancing the sentence by a period of two years simply because the applicant had one previous similar conviction was submitted to be wrong in principle as the effect of previous authority was that there must be an element of persistence in previous offending of the same or a similar nature. Reliance was placed on dicta appearing in Lau Tak-ming as well as HKSAR v Chan Pui-chi [1999] 2 HKLRD 830. 32.The applicant has an extensive criminal record covering, in chronological order since 1975, operating a gambling establishment, wounding; theft; robbery; loitering; possession of dangerous drugs in 2004 for which he was sentenced to 18 months imprisonment in the High Court after being acquitted of the initial charge of trafficking; and trafficking in dangerous drugs in 2008 for which he was sentenced to 4 years and 6 months imprisonment on a retrial. 33.We do not accept that where a judge relies upon previous offending as an aggravating feature, such a course necessarily would require more than a single previous instance of similar offending. This was recognised in, for example, HKSAR v Chan Pui-chi at 833I where Stuart-Moore V-P said:
and again in HKSAR v Abdallah Anwar Abbas [2009] HKC 197 at §32:
and at §35:
34.What the submission ignored was that the basis upon which the judge enhanced the applicant’s sentence was not persistent offending - although the fact that his two most recent offences, both of them relating to dangerous drugs and for which he had been sentenced, in the preceding six years, to six years imprisonment in aggregate, was a factor to which he was entitled to have regard. To have ignored these facts would have been to deny reality. 35.The express reason which the judge gave for enhancing the sentence was the proximity of the commission of this, third, drugs offence to the release of the applicant from a substantial period of imprisonment for an identical offence. It demonstrated the lack of impact which two periods of imprisonment for similar conduct in fact had on the applicant. It demonstrated remorselessness on the part of the applicant. It demonstrated the lack of deterrent effect which periods of imprisonment have on the applicant. 36.In our view, the judge was correct, as a matter of principle, in taking the view that he did. 37.The question that remained was whether, by enhancing the sentence by two years, the sentence of 17 years imprisonment was manifestly excessive. In our judgment the appropriate enhancement would have been one year, resulting in a sentence of 16 years imprisonment.
Mr Wesley Wong, Senior Assistant Director of Public Prosecutions, Department of Justice, for Respondent. Mr John Reading, SC, instructed by Messrs Rowdget W Young & Co for the applicant. | |||||||||||||||||||||
Cases cited in this judgment