HKSAR v. Chan Hon Lun

CACC 409/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 409 OF 2012

(ON APPEAL FROM HCCC 13 of 2012)

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J U D G M E N T

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

1.The applicant was convicted of a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before Deputy Judge A Wong and a jury. The drugs in question were 7.19 kilogrammes of powder containing 2.67 kilogrammes of ketamine. He was sentenced to 15 years’ imprisonment. He now appeals unrepresented against his conviction.

The prosecution case

2.On the evening of 25 October 2011, at about 8:05 pm, the applicant was observed parking a Honda motor car by the pavement of Long Lok Road in Yuen Long.  He remained inside the car for about 10 minutes, during which time nobody got either on or off the car.  Thereafter, he alighted from the car and walked up and down the pavement near the vehicle.  Two plainclothes police officers approached the applicant in order to stop and search him.  When one of the officers produced his warrant card, the applicant immediately turned around and, on being grabbed by the forearm, fell to the ground.  A search was then conducted on the applicant and a bag of white powder found in his waistband.  The applicant was accordingly arrested and cautioned.  On his person, in his right trouser pocket, were also found three bunches of keys, one of which was found to access the Honda motor car, and another to fit its ignition.

3.The motor car was searched and further bags of dangerous drugs were found on the front passenger seat and in the boot.  Between the two front seats of the vehicle was a wallet, inside of which was the applicant’s identity card.  The applicant was then taken back to Yuen Long police station where, at 12:48 am, nail clippings were taken from each hand.  These were subsequently analysed by a government chemist and found to contain traces of ketamine.  The retail value of all of the drugs seized at the scene was HK$790,900.

The defence case

4.The applicant’s defence was a denial of anything to do with the drugs or car keys found on his person, the drugs found in the car or, indeed, the car itself (in which he maintained his wallet and identity card could not have been found).  He gave evidence that he had arrived at the location by taxi intending to meet a friend.  Two men suddenly came towards him and shouted “Don’t run”.  A green motor car then pulled out from its position next to the pavement and one of the two men tried to prevent it from leaving.  When that failed, one of the men told the applicant not to move and pushed him down onto the ground, after which he was arrested and assaulted.  The applicant was further assaulted at the police station.

The grounds of appeal

5.In his grounds of appeal, the applicant makes a number of complaints.  These may be categorised as (i) a complaint of flagrant incompetence against his counsel at trial; (ii) a complaint against prosecuting counsel for leading inadmissible evidence; (iii) a complaint against the judge for trying to bring the trial to a swift conclusion and thereby giving the impression that he was not treating the case seriously enough; and (iv) a complaint against prosecution witnesses for fabricating a case against him.

Disposal

6.We shall deal with the latter three categories of complaint first.

(ii)   Complaint against prosecuting counsel

7.It is not apparent either from the applicant’s grounds of appeal or the transcript before this Court as to what evidence (if any) was improperly led by prosecuting counsel.  No further particulars have been given, apart from the applicant’s observation that on three or four occasions the judge was asked to decide an issue of admissibility in the absence of the jury; and that one of these occasions concerned a question by prosecuting counsel in the presence of the jury, which referred to information upon which the police were allegedly acting.  Inviting the jury to withdraw while evidentiary matters are discussed is perfectly normal procedure and there is nothing in the summing-up to suggest that there was anything inadmissible or untoward introduced into evidence as a result.  There is nothing in this complaint.

(iii)   Complaint against the judge

8.It would seem that the judge was understandably anxious that the jury should be sent out to consider its verdict before the advent of a long weekend which included two public holidays on Monday, 1 October and Tuesday, 2 October 2012.  It was in this context that we understand the judge to have asked counsel whether the case could be finished before the weekend.  There is nothing peculiar about this: indeed, it demonstrates a sensible and prudent approach to case management by the judge.  This was a short case and the judge would have been anxious to avoid, if possible, too great a gap between the applicant’s evidence and his own counsel’s speech on the one hand, and the judge’s directions and verdict on the other.  In the event, the jury was sent out to consider its verdict at about 11:15 am on Thursday, 27 September, returning with a verdict at 5:03 pm the same day.  Had the jury not been in a position to reach a verdict that day, it would have been able to resume its deliberations on Friday, 28 September, which was not a holiday.  There is no substance whatsoever in this complaint.

(iv)   Complaint against prosecution witnesses

9.This was a jury trial in which the essence of the defence was that a case had been fabricated against the applicant when the police were unable to arrest the real culprits.  The fabrication included the planting of dangerous drugs on the applicant’s person, lying about his connection with, and keys to, the Honda motor car in which more drugs were found, the planting of his identity card in the vehicle and the causing of the applicant to handle the bags of ketamine in the police station so that the dangerous drugs could contaminate his finger-nails.

10.All of these matters would have been canvassed before the jury who were in the best position to determine the issues.  The applicant has also taken us this morning to what he contends were discrepancies in the prosecution evidence.  However, we are quite satisfied that these matters would have been clearly before the jury and the applicant has not levelled any criticism against the judge’s summing-up in this regard.  Indeed, we see no reason at all to impugn the judge’s summing-up on these matters or the jury’s resolution of the factual issues in the case.  On the contrary, the judge’s summing-up was both comprehensive and entirely fair throughout.

(i)         Complaint against defence counsel

11.We come to the applicant’s complaint of flagrant incompetence against his own counsel.  As a result of the applicant’s assertions under this ground of the appeal, defence counsel has been required to file a comprehensive affirmation dealing with the applicant’s complaints.  This will inevitably have caused counsel considerable anxiety and time in preparing his response.  If he was in some doubt as to what the complaints are about, then so are we. 

12.However, it appears that the applicant complains that certain questions were not asked during the voir dire.  Yet defence counsel in fact succeeded in having the applicant’s admissions excluded from the trial.  He also complains that he was not properly advised as to his plea, leaving him with no choice but to plead ‘not guilty’.  However, given the tenacity with which he has pursued his appeal against conviction before us this morning, we are under no illusion that the applicant ever had any interest in pleading ‘guilty’. Indeed, having succeeded on the voir dire, he would have had even less interest in such a course.  As for the further complaint that counsel did not object to inadmissible evidence firmly enough, we have already noted that on several occasions the jury was invited to leave court so that matters could be dealt with in its absence.  This was an entirely appropriate course to follow and would have been prompted by defence counsel.

13.The allegations (such as they are) against defence counsel amount to a complaint of last resort, which in this case has absolutely no merit whatsoever.  Such complaints are easily made and, as we have said, cause considerable worry and anxiety to those against whom the complaints are made.  Whatever the merits, they have to be taken seriously and appropriately by the appeal courts.

14.We say at once that there is not one iota of justification for the complaint in this case and defence counsel should know that we entirely exonerate him of any of the accusations which have been made against him.

15.Applicants, whether they be represented or unrepresented, must understand that if they persist in making groundless complaints against counsel, in circumstances where their appeals are wholly without merit, there will be consequences.

Conclusion

16.For the reasons discussed above, we dismiss the application for leave to appeal against conviction.

Order: section 83W(2) of the Criminal Procedure Ordinance, Cap 221

17.At the conclusion of the applicant’s oral submissions at the hearing today we reminded the applicant that Form XI of the Criminal Appeal Rules, Cap 221, by which he gave notice of his application for leave to appeal against conviction, states in terms, in both English and Chinese, that this Court has power under section 83W, “to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject.”  The exercise of that power was addressed in a Practice Note (CRIME: SENTENCE: LOSS OF TIME) issued on 9 October 2013, after consultation with the Chief Judge of the High Court and all other members of the Court of Appeal.

18.We intimated to the applicant that we were minded to make an order of “loss of time” pursuant to section 83W(2) of the Criminal Procedure Ordinance, and invited him to make such submissions as he wished to make before the Court made such an order. 

19.Following that invitation, the applicant submitted that we should not order “loss of time” in relation to grounds of appeal which he felt strongly about.  He also said it was his first time appearing before this Court and he was accordingly nervous.  He did not mean to be impolite to the Court in advancing these grounds.

20.For the reasons already referred to, we are satisfied that the application for leave to appeal against conviction was wholly unmeritorious.  In particular, given the serious allegation of professional impropriety in failing to represent properly a man charged with a serious criminal offence, the complaints would undoubtedly have caused counsel a great deal of anxiety.  Furthermore, counsel has been put to the entirely unnecessary time and effort of providing the court with a detailed rebuttal of the complaints made against him by the applicant, whilst this Court has inevitably been delayed from hearing other more meritorious appeals.

21.It is for these reasons that, pursuant to section 83W the Criminal Procedure Ordinance, we order that 6 weeks of the time during which the applicant has been in custody pending determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

The applicant in person