HKSAR v. Pang Hiu San

CACC 127/2012
[English Translation - 英譯本]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 127 OF 2012

(ON APPEAL FROM HCCC NO. 417 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the reasons for judgment of the Court):

1.The Applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  The drug involved was 1 kilogram of solid containing 0.86 kilogram of cocaine.

2.The Applicant pleaded not guilty and the case was tried before Derek Pang J sitting with a jury.  On 15 March 2012, the jury returned a unanimous verdict of guilty against the Applicant, who was on the same day sentenced to 21 years’ imprisonment.

3.The Applicant applied for leave to appeal the conviction, and the application was refused by this Court after hearing.  We now give the reasons for our judgment.

Facts

4.The undisputed facts show that on 15 July 2011 at about 5:55 p.m. the Applicant was intercepted by the police in the corridor on the ground floor of King Wah House, Shan King Estate, Tuen Mun. Upon search, the police found from the shoulder bag carried by the Applicant a white paper bag containing the dangerous drug involved.  Later on the police took the Applicant to a unit in King Wah House.  Only the Applicant’s ex-wife was inside the unit at that time.  The police conducted a search inside the unit but did not find anything suspicious.  Then they took the Applicant to his residence in Tung Chung for a search, and again nothing suspicious was found.  Then the Applicant was taken to the police station.

5.The dangerous drug involved, which was in the form of a solid block, commanded a market value of approximately HK$1,063,000 at the material time.

Prosecution case

6.At trial, the issue was whether the Applicant knew that the white paper bag contained dangerous drug.

7.The prosecution case was that, having found the dangerous drug upon search, the police arrested the Applicant for the offence of trafficking in a dangerous drug, and under caution the Applicant said, “Ah Sir, I am caught.  I am carrying the drug for someone else.”

Defence case

8.The Applicant elected to give evidence but did not call any witnesses.  He said that in May 2010 his son was arrested for an offence of “drug trafficking” and in February 2011 was sentenced to imprisonment.  Acting on the instructions of the son, the Applicant’s ex-wife contacted the son’s boss “Ah Wong”, asking him for “private meal money” and to engage a lawyer for the son.  On the instructions of Ah Wong, the Applicant went to a taxi-stand outside King Wah House, Shan King Estate and received $50,000 as “private meal money” from a young person who arrived there by a private car.  As for the engagement of a lawyer, Ah Wong suggested changing the money to “settling-in money”, but nothing further was heard from him until 14 July 2011 when he contacted the Applicant’s ex-wife by phone saying that “settling-in money” in a sum of $300,000 would be paid and making arrangement for the payment to be made the following day.  At about 5:30 p.m. the following day (i.e. the day of the offence), at the said taxi-stand, the Applicant received the said white paper bag from a young person who was on board a New Territories taxi and who told him that this was the money given by the boss.  The Applicant did not open the paper bag but simply put it inside his shoulder bag and went to King Wah House on foot heading for his ex-wife’s residence.  He was intercepted by the police on the way.

9.The Applicant’s case was that at that time 4 or 5 men rushed over to him, grabbed hold of his hands and pressed down his head, while another man took out the white paper bag from his shoulder bag.  Yet another man asked him where the key was.  Then he was handcuffed and hooded, and having waited for a while, he was taken to his ex-wife’s unit.  He said that during this period, no one opened the white paper bag in front of him or formally arrested and cautioned him.  He also said that all along he did not say anything.  He denied having said the words “Ah Sir, I am caught” and “I am carrying the drug for someone else.”  He also said that the police shouted at him with foul language inside his ex-wife’s home.

10.In a nutshell, the Applicant’s case was that he had all along thought that the white paper bag contained $300,000 and never knew that it contained dangerous drug.

Grounds of appeal

11.The Applicant submitted that, on the following two grounds, the conviction was unsafe or unsatisfactory:

(1)  The trial judge’s summing-up to the jury was unbalanced, biased in favour of the prosecution and unfair to the Applicant.

(2)  The trial judge only directed the jury to consider whether the Applicant had in fact made the oral admission without directing them to consider whether the admission had been or might have been made under threat or inducement by the police.

Ground of appeal (1)

12.Regarding ground of appeal (1), Mr. Ma, Counsel for the Applicant, submitted firstly that the trial judge had broken down the challenges raised by the prosecution to the Applicant’s case into 17 points and extensively repeated the details of the prosecution’s cross-examination of the Applicant and their views, as if reiterating the closing speech of the prosecution; and then the trial judge had mentioned that the prosecution case was reasonable and sensible while the Applicant’s defence was unreasonable. Such an approach was (it was submitted) tantamount to refuting the defence case point by point and destroying it.

13.The established legal principle is that the summing-up delivered by a judge when directing the jury to arrive at a verdict should be balanced and fair as a whole.  In considering whether a summing-up is balanced and fair, it is necessary to take into account the circumstances of the case, in particular the overall effect of the summing-up.  In line with the requirement of impartiality, the trial judge in delivering the summing-up has the duty to describe, analyze and comment on the parties’ cases and evidence in a reasonable, impartial and fair manner, in order to assist the jury in reaching a conclusion: HKSAR v Yeung Chor-ming [2004] 1 HKLRD 136, at para. 29; HKSAR v Hong Tsz Yin (unreported) CACC 189/2010, at paras. 63-66.

14.Furthermore, the trial judge is entitled to point out in the summing-up such weaknesses, implausibilities or illogicalities as may exist in the parties’ cases: HKSAR v Hong Tsz Yin, at paras. 71 and 72; HKSAR v Gao Lian (unreported) CACC 9/2012, at para. 12.

15.In the present case, the trial judge in his summing-up explained and analyzed the contents of the charge and the relevant legal elements, and then summarized the evidence of the witnesses.  He dealt with the evidence of the two prosecution witnesses and the evidence of the Applicant in the same way.  He mentioned the evidence given by each of them in chief, and then summed up the issues covered by the cross-examinations and their responses.  The 17 points raised by Mr. Ma in his submissions are, in fact, the summary and summing-up made by the trial judge on the evidence given by the Applicant under cross-examination.  They respectively concern the Applicant’s personal background and means (Points 2 and 3), the circumstances in which he was intercepted and arrested by the police (Points 4-7, 14 and 15), the phone found on him (Point 8) and the arrangements over the “settling-in money” (Points 9-13, 16 and 17).

16.At trial, the main issue was whether the jury could be sure that the Applicant had knowledge of the presence of dangerous drug inside the white paper bag when he was intercepted by the police.  Given that the Applicant did not dispute the fact that the white paper bag was found from the shoulder bag carried by him, his explanation of the whole matter, including the circumstances in which he obtained the white paper bag and what he thought the bag contained, was crucial.  This being the case, in the summing-up the trial judge had the duty to give a detailed account of the evidence of the Applicant and his responses to the questions put to him by the prosecution, in order to assist the jury in understanding the Applicant’s defence and assessing its credibility: see HKSAR v Gao Lian, at para. 5. In our judgment, it was unavoidable and proper for the trial judge in the summing-up to repeat at great length the evidence of the Applicant.

17.As for the aforesaid 17 points of evidence, they were all pertinent to the issue in the present case. Furthermore, the trial judge stated and described the evidence in unbiased terms without making any criticisms.  Even when the trial judge mentioned, in relation to Point 5, that the Applicant’s responded “inconsistently” to the question of whether he knew “Ah Sir” referred to the police, i.e. at one point he said he knew while at another he said he did not, this only reflected the evidence of the Applicant in this regard and cannot be described as an attack on the Applicant.  Nor did it constitute an unbalanced or biased speech.

18.Mr. Ma also alleged that, having stated the 17 points of evidence given by the Applicant under cross-examination, the trial judge made improper comments by saying that the prosecution’s case was reasonable and the defence case was not.  The trial judge’s speech in this regard is as follows:

“Members of the jury, the above is my summing-up of the evidence in the present case. The closing speeches were only made yesterday and I believe that they are still fresh in your minds. In fact, I noticed that the seven of you were very attentive at that time. So the impression should be deep and it can be taken into consideration seriously. To sum up, the prosecution said that the version given by the police was reasonable whereas the defendant’s version was completely absurd. For example, how could the ‘settling-in money’ not be paid until a year later when everything was over? What’s more, how would drug traffickers hand over drugs of $1 million in value to someone who was completely in the dark? It would easily go missing any time. On the contrary, the defence said that this was obviously a frame-up. Why? The prosecution witnesses admitted that they went there for an ambush with a target having similar features to the defendant’s, and what’s more, the police knew that they would go to Room C2003 to conduct a search without being told by the defendant. As to the motive for framing the defendant up, it is very difficult to tell.” (Appeal Bundle, 20 G-K)

19.In the above passage the trial judge was merely stating concisely the parties’ respective positions as stated in their closing speeches without making any personal comments.  We do not agree with Mr. Ma that this part of the summing-up refuted the defence case point by point and destroyed it.

20.Another complaint made by Mr. Ma is that the trial judge had described only in a few words the demeanour of the prosecution witnesses in giving evidence but described in great length the errors made by the Applicant in giving evidence.  Mr. Ma also submitted that the trial judge had improperly described some immaterial inconsistencies in the defence case as additions to, omissions from and discrepancies in the evidence of the Applicant, thereby directing the jury not to believe and accept his evidence.

21.That part of the summing-up to which Mr. Ma referred reads as follows:

“In fact, in the present case, there are examples, albeit not many, of additions to, omissions from and discrepancies in what the witnesses said.  They mainly relate to differences in the details mentioned by the defendant in chief and under cross-examination, for example, the two points concerning how many persons intercepted him and how many minutes he waited in the passageway before going upstairs. Furthermore, the defendant has responded inconsistently to the question of whether he knew that police officers were commonly known as “Ah Sir”.  I will talk about the details thereof later on.  The issue is: are those differences material or irrelevant?  If they are material, did the witness concerned have any reasonable explanation?  You have to take these into account as well.” (Appeal Bundle 12 G-J)

“… The two prosecution witnesses are both police officers, but then police officers are just the same as ordinary people. As witnesses, they are not particularly credible.” (Appeal Bundle 15J)

22.Before pointing out the discrepancies in the evidence of the Applicant, the trial judge reminded the jury in these terms:

“Experience also tells us that where a person talks about an incident over and over again, it is normal for some sort of discrepancy to exist in what he/she said: no two accounts will be exactly the same. That said, one of the possible reasons for the so-called inconsistency in what someone says is that someone was not that clear about what he/she said, or that he/she was making up a story. Whether the former or latter reason applies to the particular case is a matter over which you have to make your own judgement.” (Appeal Bundle 12 D-F)

23.Although the trial judge pointed out to the jury the discrepancies in the evidence of the Applicant, he invited them to consider for themselves the reasons for these discrepancies, whether these discrepancies were material, and whether the Applicant had given any reasonable explanation for these discrepancies.  We do not agree that this part of the summing-up had the effect of directing the jury to reject the evidence of the Applicant.

24.On the other hand, although in the summing-up the trial judge did not touch upon the discrepancies in the evidence of the prosecution witnesses, this does not mean that the speech must be unfair.  As Miss Chiu for the prosecution pointed out, the appeal documents do not reveal any discrepancies in the evidence of the prosecution witnesses.  It was therefore very natural for the trial judge not to refer to any deficiency in their evidence.  Furthermore, it was fair and proper for the trial judge to remind the jury, as he did, that police officers were not particularly credible witnesses – the reminder was given for the purpose of directing the jury that they should not conclude that the evidence of the prosecution witnesses was more credible simply because they were police officers.

25.Mr. Ma also submitted that the trial judge only stressed that the Applicant did not dispute that the white paper bag contained dangerous drug without explaining to the jury that this was not tantamount to knowledge that the white paper bag contained dangerous drug, as a result of which the jury might be prepared to consider erroneously that when the Applicant was intercepted he already had knowledge of the presence of dangerous drug inside the shoulder bag or the white paper bag.

26.In his summing-up, the trial judge did point out to the jury that the Applicant did not dispute that the white paper bag contained the dangerous drug involved.  However, he also told the jury repeatedly that the issue was whether the Applicant had knowledge of the presence of dangerous drug inside the white paper bag when he was intercepted.  When dealing with the legal elements constituting the offence in question, the trial judge said:

“… if you are sure that the dangerous drug came from the defendant’s shoulder bag, then you have to ask yourselves a second question, namely whether the defendant was in possession of such dangerous drug at the material time. In this connection, a particularly important question is whether the defendant had knowledge that what was inside the white paper bag was dangerous drug. If your answer is that you are not sure, which means you are not sure if he had such knowledge, then again you simply return a verdict of not guilty …” (Appeal Bundle 14 R-U)

27.In our view, the jury must have clearly understood that the key issue they had to determine was whether the Applicant already had knowledge of the presence of the dangerous drug inside the white paper bag when he was intercepted, or whether he thought that what was inside the paper bag was $300,000.  We do not accept Mr. Ma’s submission that, as the trial judge had mentioned that the Applicant did not dispute that the dangerous drug involved was found from the white paper bag, the jury would have formed the view that the Applicant already had knowledge of the presence of the dangerous drug inside the white paper bag when he was intercepted.

28.Mr. Ma also complained about the directions given by the trial judge to the jury on the use of the telephone card found on the Applicant.  The relevant part of the summing-up reads as follows:

“(8) The Defendant said that by that time he had been using his mobile phone for only half a month and the SIM card was an unregistered card which only required top-up, and therefore he did not even know his own phone number. However, the prosecutor alleged that he used this type of card for the exclusive purpose of contacting drugs traffickers and threw it away after use. This he denied.” (Appeal Bundle 19J-L)

29.Mr. Ma submitted that it was not surprising for the low-income group to use this type of “top-up” phone cards which were cheaper than those requiring registration/subscription, and that it was wrong for the prosecution to surmise, as they did, that the Appellant held this type of phone card to facilitate communication with drugs traffickers.  Mr. Ma submitted that the trial judge had not only failed to correct this mistake but had reiterated in the summing-up this erroneous challenge mounted by the prosecution.

30.As stated above, all the trial judge did in this part of the summing-up was to summarize the evidence of the prosecution and the defence, including the topics touched upon during the cross-examinations. Regarding the phone on the Appellant, the prosecution put it to him that drug traffickers used “top-up” phone cards for the exclusive purpose of communication and threw them away afterwards.  We do not think that this suggestion put forward by the prosecution must be erroneous and unsustainable so that it was necessary for the trial judge to make rectification in the summing-up to jury or to exclude that suggestion when summarizing the topics touched upon during the cross-examinations.

31.On ground of appeal (1), we do not agree that the summing-up of the trial judge was in effect another closing speech of the prosecution or was unbalanced and obviously prejudicial to the Applicant. This ground of appeal fails.

Ground of appeal (2)

32.Ground of appeal (2) relates to the oral admission made by the Applicant upon interception and search by the police.  The Applicant’s case was that he did not make any oral admission.  On this point, the trial judge in his summing-up gave the following directions to the jury:

“(3) Both of the prosecution witnesses said that the police did formally arrest the Defendant and then caution him, and that the Defendant admitted under caution that he carried the drug for someone else.  But these were completely denied by the Defendant.  Well, what should you do?  You have to decide for yourselves what in fact happened.  The most important thing is that if you are of the view that the Defendant did not say or may not have said the words “Ah Sir, I am caught.  I am carrying the drug for someone else”, then you have to forget those words as if you have never heard them, and rely on other testimony and evidence in making your decision.  On the other hand, if you are sure that the Defendant did say those words, then they may be strong evidence that the Defendant had knowledge of the presence of the drug inside the white paper bag or even trafficked in dangerous drug.”  (Appeal Bundle 15 J-O)

33.Mr. Ma submitted that the Applicant’s evidence was that, upon interception and search by the police, he was subjected to violence and threat, and that the police neither formally arrested him nor cautioned him.  Mr. Ma submitted that the trial judge should therefore have directed the jury to consider whether the admission made by the Applicant was (or might have been) rendered unreliable by oppression from someone with authority, and that the trial judge should not have exceeded his duty by deciding for himself that the admission was true and accurate.

34.In our view, although the Applicant’s evidence was that when he was intercepted on the ground floor of King Wah House, the police grabbed hold of his hands and pressed his head down, he also said that he did not say anything until his arrival at his ex-wife’s residence. This being the case, all that the jury had to decide was whether the Applicant had made the oral admission under caution that he carried the dangerous drug for someone else.  As to whether he made the oral admission as a result of threat or inducement by the police, this was simply not the defence case, nor did the Applicant give evidence to that effect at the trial before the jury.  It was not necessary for the trial judge to give directions in his summing-up as to whether the admission was made under threat or inducement by the police and whether its contents were true.

35.Ground of appeal (2) fails.

Conclusion

36.Based on the above analysis and reasons, we have refused the Applicant’s application for leave to appeal conviction.

Mr. Henry Ma, instructed by Messrs. Lau Y.K. & Chu, for the Appellant

Miss Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by

Mr. Edmund Cham, Solicitor.