HKSAR v. Tsang Man Kit

CACC 234/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 234 OF 2013

(ON APPEAL FROM HCCC NO. 144 OF 2012)

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BETWEEN

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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):

Introduction

1.The applicant seeks leave to appeal out of time against his conviction after trial before M Poon J and a jury of a single count of Trafficking in a dangerous drug, namely 5,021.57 grammes of a powder containing 1,718.18 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Following his conviction, the applicant was sentenced to 15 years’ imprisonment.  Although the jury returned their verdict on 18 December 2012, the applicant did not give notice of his intention to apply for leave to appeal against conviction until 11 July 2013, almost six months after the expiry of the time limit for him to give such notice.  No good reason has been given as to why notice was given so late, save for a single assertion by the applicant attached to his Form XI notice of appeal that he “could not find a good private lawyer to represent me all along”.  No further details of what steps the applicant or his family took to secure the services of a lawyer or why it took so long were included in any affirmation placed before us.

2.The time limit for giving notice of application for leave to appeal against conviction is not meaningless legal verbiage to be ignored by applicants who do not feel they are ready to appeal: it is a legal requirement which must be complied with.  If it is not, good reason must be shown and explained in properly prepared affirmations.  There seems to be an assumption by some applicants and legal practitioners that the requirement is not essential and will always yield to arguable grounds of appeal.  That is not the case.  Moreover, in cases where leave out of time is refused, particularly where (as this one) the application is significantly out of time, there may well be consequences such as orders for costs and/or loss of time and, in cases where leave is granted, it may well affect the way the appellate court approaches any application by the respondent for a retrial.  One of the reasons appeals must move forward with expedition is that, in the event that an applicant is successful and a retrial is ordered by the court, the matter will still be relatively fresh in the minds of witnesses who will have to give evidence all over again.  This Court will be alive to late applications where the effect, if not the intention, is to spin the matter out so as to frustrate the possibility of a meaningful retrial.

3.In this case, no good reason has been advanced nor any further details given by the applicant, his solicitors or counsel as to why this application was lodged nearly six months after the time limit in section 83Q of the Criminal Procedure Ordinance, Cap 221 had expired.

The background to the offence

4.The prosecution case was that on 16 November 2011 at around 2.30 pm, a team of police officers, which included DSPC 48522 (PW1), DSPC 50383 (PW2) and PC 19931 (PW3), saw a female coming out of premises at Flat A, 8^th Floor, Lee Hing Building, Nos. 107 - 123 Fa Yuen Street, Mongkok, Kowloon.  They approached the female, Ms Chung Tsz-ying (Ms Chung), who was found to be the then girlfriend of the applicant (the applicant and Ms Chung were about to be married and, indeed, they subsequently were married prior to trial).  A search warrant for the premises was produced and explained to her.

5.A tenancy agreement in respect of the premises, dated 1 November 2011, was signed between the landlord Mr Leung Tak-keung (PW5) and Mr Tsang Hing-man (PW6), who is the sworn father of the applicant.  The premises comprised a living room, a toilet, a kitchen and three bedrooms, referred to at trial as rooms A, B and C.

6.Upon gaining entry to the premises, the police officers saw the applicant sitting on a bed in room C, opposite the main entrance to the flat.  PW1 noticed bruises under the applicant’s right eye and on his chin.

7.PW2 conducted a search of the premises.  In room A, he found a black shoe box on top of a wardrobe containing three plastic bags of dangerous drugs.  In one of the drawers of the wardrobe, he further found a total of thirty-seven plastic bags containing dangerous drugs.

8.The applicant was immediately cautioned and arrested by PW1, whereupon he replied: “Ah Sir, all the ‘kei chai’ belongs to me.  It has nothing to do with my wife Chung Tsz-ying.”  At 2.35 pm, PW1 made a post-record of what had transpired during the raid, including the applicant’s answer under caution.  The record was read to and by the applicant, who then signed it.  Ms Chung was also arrested.

9.The applicant and Ms Chung were subsequently taken to a police station at about 6 pm that evening. Upon seeing the applicant’s bruises, the Duty Officer, a Station Sergeant, asked the applicant how the injuries had been inflicted and whether he wished to see a doctor.  The applicant said that he was injured one or two days before in a fight which was unconnected with the present case; he declined to see a doctor.

The video recorded interview

10.Between 8.36 pm and 9.02 pm that evening, the applicant attended a video recorded interview (VRI) under caution conducted by PW1.  He explained that he had moved into the flat in question, which had been rented by his mother, about a week before his arrest.  He said that he had a key to the premises but was not clear who else had been given a set.  His girlfriend would visit him and sleep overnight there.  However, she did not have a set of keys. When PW1 asked him further questions concerning the dangerous drugs which had been found in the premises, the applicant refused to answer.  It was an admitted fact that, during the interview, the applicant had “exercised his right to decline to answer other questions put to him”.  PW1 refuted the suggestion in cross-examination that he had induced the applicant to sign in his notebook by promising that, if he admitted the drugs were his, then Ms Chung, who was pregnant at that time, would be released without charge.  He further rejected the allegation that he had assaulted the applicant causing the injuries to his eye and chin.

Fingerprints

11.The dangerous drugs seized in the premises were said to be worth half a million dollars.  It was an admitted fact that “no fingerprint of any kind belonging to the applicant was found on any item connected to the drugs seized in room A”.  However, fingerprints were found on a cardboard carton inside the black shoe box, which fingerprints were found to belong to one Lai Wai-hong (Lai), who had a number of previous convictions, one of which related to the possession of dangerous drugs in 2009.  Lai’s record of interview was admitted.  In that interview, he claimed that he did not know the applicant or Ms Chung, that he had never been to the premises in question and that he did not know why his fingerprints were on the cardboard carton.

12.Amongst other items seized inside the premises were an electronic scale containing traces of ketamine, a tenancy agreement, a bunch of ten keys, and a notebook which was placed on top of a drawer where the dangerous drugs were found.  The prosecution suggested that the notebook was a record of selling or supplying drugs.  It was an admitted fact that the fingerprints of Mr Kong Ka-sing (Kong), Mr Yiu Sau-ping (Yiu) and Ms Chung were lifted from the notebook.  Both Kong and Yiu each had previous convictions for possession of dangerous drugs, while Yiu had a further conviction for trafficking in a dangerous drug.

13.A palm print of the applicant’s friend, Mr Leung Ka-ho (Leung), was lifted from the sliding door of the wardrobe where the dangerous drugs were found.  Leung had two previous convictions for trafficking in a dangerous drug, his latest conviction on 8 August 2012 being for trafficking in 1.73 kilogrammes of ketamine narcotic, for which he was sentenced to 10 years’ imprisonment.  Leung’s written record of interview under caution, taken on 28 February 2012 was also admitted by agreement.  In that interview, he said that he had been to the flat in question to visit the applicant.  He had also helped the applicant move furniture, which might have explained why his fingerprint was found on the wardrobe.  In respect of the wardrobe, the applicant’s mother, Madam Chan Siu-yee, gave evidence for the prosecution that she had purchased the piece of furniture and had then wiped and cleaned it.

The defence case

14.The applicant did not avail himself of his right to give evidence but did call two defence witnesses, namely Ms Cheryl Ma (Ms Ma) and Ms Chung.  Ms Ma testified that she was the customer relations manager of a furniture shop, known as DSC.  She confirmed that the applicant’s mother had purchased the wardrobe from her company, which was then delivered to the premises in question.

15.Ms Chung testified that at the time of the incident, the applicant was 21 years of age.  They were about to get married in December 2011, with a wedding banquet arranged for Christmas Day.  They had moved into the flat on 9 November.  The applicant allowed his friend Leung to stay in the premises and let him have a set of keys.  However, after she had lost her own set of keys, Leung had left his set on a coffee table in the premises; which set was subsequently seized by the police.  She had last seen Leung at about 3 am on the day of arrest.

16.She further testified that she had seen the applicant assaulted by a police officer, resulting in bruises to his face. Furthermore, the applicant was asked to provide information about people involved with the dangerous drugs, and was threatened that if he failed to do so, the police would not release her (Ms Chung), and she would have to give birth in prison.  Accordingly, the applicant had signed PW1’s notebook containing the admission.  Ms Chung was not sure whether she had seen the black shoe box on top of the wardrobe before the police raid, but she said she had not seen its contents.

The issue at trial

17.The ultimate issue at trial was whether the prosecution had proved that the applicant was in possession of the dangerous drugs alleged and, if so, whether he possessed them for the purpose of trafficking.  The defence was that he knew nothing about the drugs, that others may have been responsible for keeping them in room A and that he was not in control of what he did not know existed.  Therefore, he was not in possession of the dangerous drugs.  The judge summarised the defence case as follows:

“You can discern from the evidence in this case that the defence is that the defendant had no knowledge of the drugs in the flat. The defence says that the drugs might have been put in there by Leung Ka-ho. If you think that that is or may be the truth, then you must acquit the defendant as he was not even in possession of the drugs in question. However, if you are satisfied that not only had he control of the drugs found in the flat, but he also had knowledge of the drugs inside the flat, then he would be in possession of the drugs in question.”

Perfected grounds of appeal against conviction

18.Mr Tse SC, who appeared for the applicant at his appeal but not at trial, advanced essentially three grounds of appeal against conviction.  First, he submitted that the judge’s directions to the jury not to draw any adverse inferences against the applicant from his electing to remain silent during certain questions in the VRI were inadequate.  In the light of PW1’s suggestion that the applicant had refused to answer those questions that involved dangerous drugs, the judge should have specifically directed the jury not to draw any adverse inference from either his failure to answer certain questions or the nature of those questions.

19.Secondly, Mr Tse contended that the judge’s direction that any inference the jury wished to draw must be the only inference that could be drawn not only departed from the standard direction but might have given the impression that they could only draw an inference in favour of the applicant if it was the only inference to draw.

20.Thirdly, Mr Tse argued that the prosecution’s closing submission that Ms Chung was herself a guilty party with the applicant to the drug trafficking was not advanced in opening the case nor at any time during cross-examination of Ms Chung.  In such circumstances, it was not appropriate for the prosecution to use, and for the judge to have failed properly to disabuse the jury of any use they might make of, Ms Chung’s knowledge as a stepping stone to the applicant’s guilt, particularly where the prosecution had never made the imputation against her in cross-examination so that she could deal with it.

Consideration of the arguments

The first ground: the right of silence

21.At first blush, it might well seem odd that PW1, as interviewing officer, should have suggested if that is what he set out to suggest, that the applicant’s answers in interview were selective in as much as he was prepared to answer some questions but refused to answer those questions which touched upon the dangerous drugs found in his flat.  However, as Ms Chiu for the respondent submits, the context of PW1’s answers in cross-examination is vital in appreciating why he answered as he did.  There were two relevant passages in the cross-examination of PW1 by Ms Draycott SC, who appeared for the applicant at his trial.  The relevant parts of the first passage are as follows:

“Q.  It’s been quite a change in attitude if what you say is true from him going, “Oh, the drugs are all mine,” to what we see in (the VRI) of a man bruised, despondent and refusing to answer.

A. In the video he did answer questions, it’s just that he would not answer the questions that involved dangerous drugs.

Q. Yes, he didn’t want to answer you, but you say earlier he had answered you willingly. Something had caused that change, hadn’t it?

A. In the video there were places where he did not answer my questions, even when he was asked who rented the flat, he won’t answer, but he did answer some questions and he was answering the questions willingly.

…

A. If he had not wanted to cooperate with me, as I said, he could refuse to answer any of my questions.

Q. That’s what he did.  He refused to answer questions, didn’t he?

A. He did.”

A little later, in a second passage in cross-examination, leading counsel returned to the same theme:

“Q. You knew from the moment you discovered that the girl was pregnant how upsetting and frightening would be the prospect for both of them that the baby would be born in prison.

A. I don’t know.

Q. You used that fact to extract a confession from him that he would not otherwise have made.

A. Disagree.

Q. We can see that he wouldn’t have otherwise have made it for ourselves because only a few hours later, he would not repeat it and he would not answer your questions in front of the camera.

A. It’s not the case that he was not willing to answer my questions. He did answer certain of my questions. Everyone can see this from the disc.

Q. Yes, what everyone can see from the disc is that he was prepared to answer your questions about who rented the flat and what his name was, but as soon as you are asked him anything about drugs or anything like that, he would not answer, would he?

A. Right.

Q. And that is in complete contrast to what you say happened in the flat.

A. I agree.

Q. And you have no explanation for that change, do you?

A. There has been a long lapse of time. Perhaps it occurred to him that these things would be adverse to him and that’s why he would not answer any of my questions that concerned dangerous drugs.” (Emphasis supplied)

22.It becomes clear when these passages are read together and in context that, far from “deliberately blurting out”, as Mr Tse characterised it, something which unfairly undermined the applicant’s right of silence, leading counsel for the applicant at trial was seeking to make the point through cross-examination that the applicant’s refusal to answer questions about the drugs in the VRI contrasted with his allegedly cooperative attitude and apparent admission in writing at the scene of arrest; and that, therefore, his later refusal to answer and confirm his answer under caution at the scene made it highly unlikely that he would voluntarily have made the admission attributed to him upon arrest.

23.PW1’s entirely understandable response to this line of questioning was that the applicant was not uncooperative during the VRI, that he had answered several questions, and that he had only refused to answer those which related to the dangerous drugs.  As for the final impugned answer in the second passage (at para 21 supra), the witness had been directly asked by Ms Draycott whether he had any explanation for the applicant’s suggested change in attitude between arrest and interview, to which invitation he answered that perhaps, given the passage of time between arrest and interview (some 6 hours), the applicant had decided he would not answer any questions in the VRI which were adverse to him.  The witness can hardly be criticised for stating his opinion when asked for it; an opinion which ought perhaps to have been anticipated, for it was rather obvious from the earlier round of questions that he was going to say what he did.

24.The question then arises whether the judge’s directions to the jury were sufficient to deal with any prejudice which might have flowed from such answers, even though, with respect, such prejudice as there was arose from questions asked by the applicant’s own counsel.  The judge’s directions were as follows:

“Members of the jury, you have watched the video interview record of the defendant. There are a few matters that I would like you to pay attention to in relation to the contents. First, in the interviews you will see that they are edited interviews. There came a time when the defendant had refused to answer certain questions put to him relating to the drugs.

Counsel had suggested to PW1 that the video disc showed that the defendant looked miserable, angry and betrayed, and the defence submitted that this noticeable change in attitude, namely, from one of cooperation and full admission within a short time of the raid at the flat to refusal to answer questions relating to the drugs during the video recording, could only be explained by the police going back on their promise by arresting the defendant’s pregnant wife.

PW1 disagreed. It is a matter entirely for you to consider whether he looked betrayed or miserable in the tape or just tired and whether that assists you in any way in deciding whether you can safely rely on what was alleged to have been said by him under caution at the scene.

Secondly, in our system a suspect accused of crime is not obliged to say anything unless he wishes to do so. He is entitled to remain silent if that is what he wants to do. Police officers remind suspects of this at appropriate times. It is called cautioning a man and you have heard and read the words of caution in this case, “You are not obliged to say anything…”

It follows that if a man chooses to say nothing and not to answer a question then you cannot hold that against him. It would be both unfair and illogical to give a man a right to silence and then penalise (him) for exercising it. So please remember that you must not think that the fact that this defendant elected to say nothing on occasions is any indication of guilt. You must not hold his silence or refusal to answer questions against him. He is entitled to decline to answer police questions in the video interviews of which you have a transcript and to limit what he wanted to say and not have that be the subject of adverse comments against him later in court.”

25.It seems clear to us that the answers which are now impugned were actually invited from the witness in circumstances where leading counsel was seeking to make the point that the applicant’s later refusal to answer questions about drugs during interview did not sit well with his apparent cooperation and voluntary admission at the scene of arrest.  Following the witness’s disagreement that the applicant was unwilling to answer questions in the VRI and his contention that he did answer certain questions, leading counsel asked the witness in terms:

“Yes, what everyone can see from the disc is that he was prepared to answer your questions about who rented the flat and what his name was, but as soon as you asked him anything about drugs or anything like that, he would not answer, would he?”

26.When Ms Draycott suggested that her client’s response was in “complete contrast” to what the witness alleged had happened in the flat, the witness agreed, whereupon leading counsel issued the challenge:

“And you have no explanation for that change, do you?”

27.With great respect, the answer which PW1 gave to this question in this second passage (at para 21 supra) was one which was not only prompted by leading counsel’s questioning but it ought to have been obvious that he would give such an answer, given the exchange in the earlier passage.  In any event, Ms Draycott could not have made the point she wanted to make without the jury appreciating that the applicant had refused to answer questions in the VRI relating to dangerous drugs.  Given the judge’s clear directions about the right of silence and how the jury were not to hold the applicant’s refusal to answer questions in the VRI against him, we cannot see that this ground can conceivably be made out.

28.There is, however, a further dimension to this ground.  No objection to the witness’s answers was made by Ms Draycott either during the cross-examination of PW1 or when he had completed his evidence.  Nor was any complaint made about them when the judge invited the parties to make submissions as to the directions they sought prior to speeches and summing-up. Nor did prosecuting counsel seek to make anything of the matter in his closing address to the jury.  Ms Draycott, however, in her speech to the jury, repeated the point she had been seeking to make in cross-examination:

“Something changed his mind and made him refuse to answer those questions, and the police have no explanation at all for that. The officer said, “Oh, well, maybe he realised how serious it was”.  Well, do you think, with those bags of drugs around his feet (flat?), he didn’t think it was serious then?  He’s not that much of a fool.”

29.What Ms Draycott did, nevertheless, request from the judge, when invited to address her on any directions she was seeking, was “for a firm direction in relation to the exercise of the right to silence, particularly in view of the last answer…”, which we have taken to be the impugned answer in italics in the second passage (at para 21 supra), although it was neither the last answer in the witness’s evidence nor the last answer in the prosecution case.  In any event, that was the direction she received from the judge in her summing-up.

30.Leading counsel at trial was an extremely experienced criminal practitioner, fully conversant with trials by jury in Hong Kong.  It was for her to decide, within permissible boundaries, how to conduct the case, how to cross-examine witnesses and what tactical decisions to make as the trial progressed.  It was she who requested, the admission at the scene of arrest having been ruled voluntary in a voir dire, to have the record of interview edited so as to remove all references to the applicant declining to answer certain questions from the interviewing officer.  Prosecuting counsel in the court below, Mr Necholas, who was also someone with considerable experience of jury trials, acceded to this request.  It may be, on the authority of R v Mann [1972] 56 Cr App R 750, that he would have been justified in rebuffing the defence approach and inviting the judge to rule on the matter, given that the record of interview contained a number of answers on which the prosecution did rely in support of their case, while the parts which were to be edited were not all simple refusals to answer questions.  Nevertheless, the editing of the VRI is what leading counsel thought best advanced her case and she was able to persuade prosecuting counsel to accommodate her request.  We would not go behind that tactical decision, although we wonder whether the complaint which has been advanced would have arisen if the whole record of interview had gone before the jury in its unedited form.

31.Having secured an edited transcript of the record of interview, however, Ms Draycott also wished to make the point that the applicant’s later refusal to answer questions in the VRI contrasted with his earlier cooperation at the scene of arrest.  In making the point, we cannot see how she could have avoided bringing out, or at least risking the fact that it would come out, that her client had refused to answer questions in the VRI relating to dangerous drugs.  Her failure to object or complain to the judge, in the presence or absence of the jury, about the witness’s answers under cross-examination says much about her expectation and understanding of the course upon which she was embarking.  To put it bluntly, she must have realised that she could not have it both ways: either she left the jury not knowing and not speculating about the parts of the VRI which had been redacted, or she let them know that the redacted parts concerned the applicant’s refusal to answer questions about dangerous drugs, which was in marked contrast to his alleged cooperation and reaction at the scene of arrest.  In either case, she was, of course, entitled to receive a direction as to the right of silence.

32.Now, at this appeal, Mr Tse SC argues that, by virtue of the impugned answers from the witness, the applicant’s right of silence was thereby compromised.  So it was, but that was an obvious and inevitable consequence of what leading counsel at trial was endeavouring to show in cross-examination, and why she sought the direction she did.  In the event, she was able to demonstrate the point but at the same time obtain the necessary protection of the applicant’s right of silence in the summing-up.  Mr Tse might not agree with his predecessor’s approach: he has indeed candidly said that he would not have done what she did.  But that, with respect, is not the point.

33.In Hong Kong, unlike perhaps other jurisdictions, counsel on appeal is very often not the same as counsel at trial.  It is therefore rather easier for appellate counsel to look at the evidence and trial process on paper and argue that something should or should not have been done or said by trial counsel, without a full appreciation of the tactical and forensic decisions which are being made by trial counsel (in some cases experienced criminal practitioners) as the evidence is unfolding.  Looked at another way, the fact that counsel did or did not do or say something at trial for tactical or forensic reasons should not readily assist an appellant, simply because his new counsel on appeal thinks that things should have been done differently.  Flagrant incompetence is, of course, another matter, but Mr Tse accepts that his complaint underlying this ground could not come anywhere near such a suggestion.

34.Furthermore, it is not sufficient to shrug one’s shoulders and say that, whatever counsel at trial did, the judge should have stepped in and repaired the damage because ultimately it was his or her responsibility.  Counsel at trial themselves have a responsibility to take matters up before a judge on behalf of their clients if they consider it necessary in their client’s interests, always bearing in mind that sometimes counsel may think it not necessary to do so and that the less said the better. If counsel do not do so, this Court is entitled in appropriate cases to assume that that they did not do so for good reasons.

35.The matter may be tested by asking whether leading counsel at trial could have argued this particular ground of appeal had she been conducting the appeal rather than Mr Tse.  The answer is that she would have had great difficulty in complaining before this Court that the judge should have intervened, or in contending that the judge’s direction to the jury was inadequate, when leading counsel had herself precipitated the witness’s answers for reasons which she considered advanced her case at the time, when she did not complain about those answers at any stage thereafter and when the direction she received was exactly what she had asked for.

36.There is nothing in this ground of appeal.

The second ground: inferences

37.We can take the complaint about the judge’s direction on inferences more simply.  It is true that the judge did not give the standard direction on inferences, in as much as she omitted to say that if there was a reasonable inference to draw against the defendant as well as one in his favour, the jury must not draw the adverse inference.  However, that was in our judgment the effect of the direction she did give.  The judge explained, firstly, that the jury must not speculate and that they could only draw inferences based on facts which they found proved:

“So you must be sure of the basic facts before you can use the basic facts to draw an inference.”

Secondly, she explained that in criminal cases:

“the inference you wish to draw must be the only reasonable inference that can be drawn in the circumstances. It must be an inference that no reasonable person could fail to draw from the established facts.”

38.Ideally, the part she omitted should have followed on immediately following the second direction.  However, instead, the judge directed the jury as follows:

“Now, always remember that you may only draw inferences of guilt or other inferences against the accused if you are satisfied from the inference, satisfied that that is the only reasonable inference that you can draw. In drawing the adverse inference you must be satisfied beyond reasonable doubt. You must be sure. If you have any doubt at all of his guilt you must give the benefit of that doubt to the defendant.”

In its overall effect, the jury were told that inferences must be based on facts they found proved and not on speculation.  However, if the inference was one which pointed to the applicant’s guilt or was adverse to him, the jury must be satisfied beyond reasonable doubt before drawing it.  Obviously, if the jury followed this direction as well as the judge’s general directions as to the burden and standard of proof, they could not draw such an adverse inference if there existed a reasonable inference to draw in the applicant’s favour.  In the circumstances, we think there was no danger of the jury somehow concluding that they had to be sure of an inference which was not adverse to the applicant.

39.This ground of appeal must also fail.

The third ground: failure to put an allegation of complicity to Ms Chung

40.The applicant did not give evidence.  Instead, his then girlfriend (now wife), Ms Chung, was called on his behalf.  There were two main aspects to her evidence: firstly, she painted a picture of a young relatively well-off couple who were about to get married, who had everything to look forward to, and who would not therefore have wanted or needed to be involved in trafficking dangerous drugs; secondly, she accounted for the injuries to the applicant’s face at the hands of the police and the circumstances giving rise to the signing of the alleged admission in the flat at the time of arrest.

41.It is clear that in cross-examination, prosecuting counsel, Mr Necholas, explored a number of matters in Ms Chung’s testimony, such as how often she visited the premises, how many keys were found and whose those on the coffee table were, what her connection was with the notebook on which were found four of her fingerprints and what had happened when the police arrived in the flat leading to the applicant’s injuries and admission.  It is also clear that he did not accept several aspects of that testimony.  Nevertheless, although he conducted what might be termed “a raised eyebrow” approach to her evidence, his cross-examination did fall short of explicitly suggesting that she was complicit in the applicant’s trafficking in dangerous drugs.

42.However, when he came to address the jury in his closing speech, having referred to the contents of the notebook, Mr Necholas then said this:

“Married with the drugs that (are) found less than a (foot) underneath this book, can there be any doubt? Members of the jury, further, the woman said, “Oh, I know nothing about this”. In fact, this book, I would submit to you, belongs to them. Why? They’ve even used this to order their furniture, in the back, see all the furniture from Pricerite and Ikea. Why would you use a book to report (record?) your ordering of furniture if it doesn’t belong to you?

So this is no doubt, this is a book containing, in my submission to you, the drug transactions, and they used the same book to order furniture.”

A little later in his speech, prosecuting counsel returned to the same theme:

“So there is no doubt, members of the jury, she knows. If she knows, doesn’t he know? They are man and wife.

Members of the jury, to suggest otherwise would be to insult your intelligence, in my respectful submission.”

Finally, towards the end of his address, Mr Necholas reminded the jury that it was the applicant who was on trial and submitted as follows:

“(Ms Chung’s) fingerprints were on this book and she ordered furniture using this book. It is my submission that all this, whether others have also come to the flat to give drugs or not, it really does not matter. The main thing is what is the defendant’s connection with the drugs? That is the question. And do not speculate, members of the jury, why others are not charged. At the moment, he is on trial and your attention and your duty is to try him and not the others.”

43.As soon as Mr Necholas finished his address, leading counsel for the defence, Ms Draycott, immediately stood up in the presence of the jury to complain about two matters in prosecuting counsel’s speech which she said were inaccurate.  However, neither complaint concerned the imputation that Ms Chung was being accused of complicity in the offence when it had not been put to her in cross-examination.  Having made her points, Ms Draycott immediately embarked upon her own speech.  Whilst she submitted to the jury that neither the applicant nor Ms Chung had any reason to involve themselves in trafficking dangerous drugs, when there were several other visitors to the premises who did have a connection with dangerous drugs, she did not complain or argue that this was the first time the prosecution were suggesting Ms Chung was involved. Nor did she address the judge on the matter before her summing-up.

44.Nevertheless, in her summing-up, the judge evidently considered that she should warn the jury of the danger of concluding that the applicant was guilty because his girlfriend was implicated by the notebook.  The judge said this:

“It has been submitted by the prosecution that the contents of the notebook look like a record of selling or supplying drugs. Mr Necholas submitted that the presence of Ms. Chung’s fingerprint clearly shows that she had knowledge of the drugs and, if she knew, then the defendant also knew.

On the other hand, the defence pointed out that there was nothing in this notebook to link the defendant to the knowledge of the drugs. But I must warn you, members of the jury, that even if you were to conclude that Ms. Chung knew about the drugs, it does not automatically follow that the defendant knew. How much that assists you in deciding whether the defendant knew about drugs is a matter entirely for you.”

45.Mr Tse takes issue with this direction, which he says does not go far enough to dispel the danger of the jury concluding that the applicant must have been trafficking because his then girlfriend was trafficking, a suggestion that was never put to her in cross-examination.  To direct that it was entirely a matter for the jury whether Ms Chung’s knowledge impacted on the applicant’s knowledge was impermissible in circumstances where it had never been suggested that she did have knowledge of the drugs.  In addressing this complaint, it is necessary to look at prosecuting counsel’s cross-examination, defence counsel’s response in dealing with the matter and the summing-up as a whole to see whether the complaint is justified and, if it is, whether it is sufficient to unsettle the conviction.

46.Although it was never explicitly put that Ms Chung was complicit in the offence, she was asked by prosecuting counsel about her four fingerprints on the notebook which contained the records of alleged drug transactions.  However, before she could answer, Ms Draycott for the applicant interrupted to suggest that it should be explained to the witness that the notebook was a completely different colour from the time of its seizure because of its exposure to chemicals; and, when that rather unnecessary and distracting issue had been traversed between the parties, that the witness should be warned of her right against self-incrimination.  As a result, before prosecuting counsel had the chance to ask any further questions on the subject, Ms Chung indicated to the judge that she would not answer any questions in relation to the notebook.  Whether or not it was leading counsel’s tactic to deflect prosecuting counsel from linking Ms Chung with the rather damning contents of the notebook, it certainly had the effect of bringing that line of cross-examination to a halt, because prosecuting counsel merely responded by saying: “I’ll put the (note)book away then”.  And that was the end of that particular aspect of cross-examination.

47.Cross-examination, however, continued in relation to what prosecuting counsel characterised as Ms Chung’s “claim” that she had lost her keys to the flat.  It was suggested to Ms Chung that the keys found on the coffee table were the keys “that would allow the two of you to return to this flat” and that one of them was “the very key that led into this room full of drugs”.  The witness disagreed and answered that the keys belonged to Leung. So far as the applicant’s admission at the scene to PW1 was concerned, prosecuting counsel, following clarification by the judge, said:

“Yes, I’m putting it to her.

Q. … that they found drugs and your husband, with a view to protecting you, admit(ted) that everything, namely all the drugs, belonged to him and that you had nothing to do with it.”

The question was, of course, ambiguous since the implication it conveyed that the applicant might have been “protecting” Ms Chung would apply, whether she was connected or unconnected with the possession of the dangerous drugs.

48.Even if it be accepted, notwithstanding the above questions and prosecuting counsel’s raised eyebrow approach to the rest of her evidence, that he did not put in terms to Ms Chung that she was involved in the offence with the applicant, the judge was careful to make sure in her direction (at para 44 supra) that simply because Ms Chung knew there were drugs in room A did not mean that the applicant must have known.  It should be remembered that that direction was concerned with the element of knowledge in possession and with the danger of concluding that because one cohabitee knew there were drugs in the premises, so did the other.  However, the judge had earlier instructed the jury that “the basic elements of possession are therefore control and knowledge - control and knowledge” and drew a distinction between the two.  Pointing out that “an object may be possessed by more than one person at the same time”, she directed the jury that they were “not concerned with who is the actual owner of the drugs but whether the defendant was at the time in possession of the drugs in his flat and what was the purpose of his possession.”  Furthermore, following the passage of which Mr Tse makes complaint, she reiterated:

“Members of the jury, the main issue in the present case, as I said yesterday, is whether the defendant had possession of the drugs in question and whether that was for trafficking. As I have directed you yesterday, in order to establish possession the prosecution must prove that the defendant had control and knowledge of the drugs. If you should find that the defendant had or might have had no knowledge of the presence of drugs in the flat then you must acquit him for he was not in possession of drugs.”

49.Leading counsel at trial, as we have observed, made no complaint about prosecuting counsel’s closing speech on this issue or of the way the judge dealt with the matter in her summing-up, although she did raise two other unrelated matters with the judge at the conclusion of the summing-up.  Perhaps she was confident the judge had sufficiently dealt with the matter; perhaps she considered the jury would see little difference in the position of the applicant or his girlfriend and yet he was prosecuted and she was not; perhaps she might even have thought that casting the net of potential drug traffickers as wide as possible would redound to her client’s advantage, given that unlike Lai, Kong, Yiu, Leung or, indeed, Ms Chung, the applicant’s fingerprints were not found on any item connected with the wardrobe where the drugs were found.  We do not know how leading counsel at trial reasoned: and Mr Tse cannot say.  In any event, she said nothing.

50.This Court is now invited to say that prosecuting counsel’s failure to put the matter of her complicity explicitly to Ms Chung, which she would almost certainly have denied or refused to answer, vitiates the conviction of the applicant.  We cannot accept this proposition.  Whilst it would have been better and more complete for prosecuting counsel, instead of hinting at it, to have put the allegation explicitly to Ms Chung, he did at the same time make clear that, whoever else was involved in trafficking the dangerous drugs in the flat, the applicant was the one on trial.  Looking at the directions in the summing-up as a whole, in the context of the speeches of both counsel at trial and the issues which arose at trial, we do not think there was any real danger of the jury thinking that because Ms Chung (who was not charged) might have known about the drugs in the cupboard, the applicant (who was charged) must be guilty of trafficking.

51.The third ground of appeal must likewise fail. In our judgment, the verdict of the jury was neither unsafe nor unsatisfactory.

Conclusion

52.Accordingly, we find that there is no merit in this appeal and leave to appeal against conviction out of time must, in the absence of any good reason for the delay in filing notice being shown, be refused.

Mr Joseph W Y Tse SC, instructed by Francis Kong & Co., for the Applicant

Ms Samantha Chiu SPP, of the Department of Justice, for the Respondent