HKSAR v. Ip Chun Yin

CACC 241/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 241 OF 2014

(ON APPEAL FROM HCCC NO. 27 OF 2013)

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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 was convicted on 30 June 2014 before Deputy Judge Remedios and a jury of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was sentenced to 15 years’ imprisonment.

2.Since the particulars of the offence on which he was convicted (Count 1) engage a particular ground of appeal, it should be noted that the applicant originally faced an indictment containing two counts of trafficking in a dangerous drug; the second being alternative to the first.  The first count alleged, so far as is material, that on 5 September 2012, the applicant together with Wong Sai-hang (“Wong”), inside a subway in Sheung Shui, New Territories unlawfully trafficked in 1.93 kilogrammes of a powder containing 1.45 kilogrammes of ketamine (Count 1); while the second count alleged that the applicant, on the same date and in the same place, but without any reference to Wong, unlawfully trafficked in 0.97 kilogrammes of a powder containing 0.62 kilogrammes of ketamine (Count 2).

3.In the event, the jury convicted the applicant on Count 1 and it was not necessary, in accordance with the deputy judge’s directions, for them to return a verdict on Count 2.  He now seeks leave to appeal against his conviction only.

The Trial

The prosecution case

4.At around 6:35 pm on 5 September 2012, the applicant and Wong, the other person named in Count 1, were intercepted by Customs Officers inside a subway in Sheung Shui.  Each was carrying a shoulder bag.  In the applicant’s bag was found 0.97 kilogrammes of a powder containing 0.62 kilogrammes of ketamine, while in Wong’s bag was found 0.96 kilogrammes of a powder containing 0.83 kilogrammes of ketamine.  The respective drugs were each contained inside a green plastic bag containing four sealed red smaller bags, on each of which was printed the Chinese characters “鐵觀音” (a type of Chinese tea).

5.The applicant was arrested and cautioned, whereupon he explained in answer to the arresting officer’s questions that he did not know what was in the bags, that he had on the instructions of others (whom he identified as Lo Sai and Ming Gor) retrieved them from under a traffic cone in order to deliver them to customers as directed in return for a payment of $300. The estimated street value of all of the dangerous drugs in both shoulder bags was HK$252,830.

6.It was not disputed that the applicant had earlier been observed by Customs Officers holding both green bags, one of which he had passed to Wong shortly before being intercepted.  The applicant’s left thumb print was subsequently found on the green bag in Wong’s bag.

7.It was the prosecution’s primary case that the applicant was engaged upon a joint enterprise with Wong and was thereby guilty of trafficking in all of the drugs in their joint possession, both those in his own bag and those in Wong’s bag. Hence the way in which Count 1 was particularised, the weight of the dangerous drugs being the combined quantity in both bags, namely 1.93 kilogrammes of a powder containing 1.45 kilogrammes of ketamine.  The prosecution’s alternative position (Count 2) was that the applicant was only trafficking in the drugs found in his own bag, namely 0.97 kilogrammes of a powder containing 0.62 kilogrammes of ketamine.

8.Investigations subsequently revealed that a cash deposit of HK$3,000 had been made into applicant’s bank account on the material day.  Two withdrawals in the sums of HK$2,000 and HK$2,500 were made on the same day.

9.The applicant, who was nine days short of his 17^th birthday at the time of his arrest, signed a post-record of his answers to the arresting officer CO 98216 (PW1) and subsequently gave a video record of interview to PW1 and another officer CO 9777 (PW2).

10.During the video recorded interview on the following day with PW1 and PW2, the applicant said that at about 6 pm on 5 September he had been playing electronic games at a cyber bar when Lo Sai had telephoned him and told him to collect some parallel goods from underneath a traffic cone opposite Fung Kai No 1 Secondary School.  Having retrieved a bag from under the cone, he was instructed to tear it open and give one of the green bags inside it to Wong.  The applicant said that Wong was a school friend of his who was 15 years of age at the time.  Lo Sai had also instructed the applicant to deliver the goods to Tsing Yi, while Wong was to go to Tai Wo.  HK$3,000 (not HK$300 as earlier indicated in the post-record) was deposited into his account and half of it was to be given to Wong.  Having torn open the bag and given Wong the green bag pursuant to his instructions, he was intercepted by Customs Officers.

11.At the end of the interview, when asked if he had anything to add or clarify, the applicant claimed that Lo Sai and someone he referred to as Sai Ming (who had originally introduced Lo Sai to the applicant) had threatened him that if he did not work for them, they would check his address, disturb his family and harm him.

The defence case

The voir dire

12.Both the post-record of the verbal answers to PW1 at the scene and the subsequent video recorded interview were challenged at a voir dire on the basis that they were obtained by assault, threat and inducement.  It was also alleged that some of the answers given in the video recorded interview were coached by Customs Officers prior to the interview being recorded.  The judge conducted a voir dire and received evidence and submissions over a period of some eight days.

13.Both the answers recorded in the post-record and the video recorded interview were ruled to be admissible.  In her ruling, the deputy judge said, inter alia:

“In this case, this is not a matter such as was contemplated in the case of Okafor or to require me to give detailed reasons for my decision.

After careful consideration of all the evidence and submissions relating to the manner and circumstances in which these interviews, oral statements and the post record was made and conducted, including the allegations made by and the evidence of the accused, and also having due regard for the Rules and Directions on the Questioning of Suspects 1992, I am satisfied as to the voluntary nature and further satisfied that there are no grounds upon which I should exercise my discretion to exclude the same from the admissibility before the jury.”

The trial before the jury

14.Following the judge’s admission of the post-record and the record of interview into evidence, the prosecution adduced the same evidence before the jury.  The same issues concerning the misconduct of the Customs Officers and procedural fairness were taken again before the jury.

15.The applicant availed himself of his right to give evidence before the jury.  What he told them was substantially in line with his testimony on the voir dire.  Further, he explained that he had come to know Sai Ming two months before the offence when playing internet games.  Later, in early August 2012, they had met in a café, on which occasion Sai Ming asked the applicant to lend him his bank card in order for him to receive his salary since he had lost his own card.  The applicant accordingly lent his bank card and gave his password to Sai Ming.  Money was thereafter deposited into and withdrawn from the applicant’s bank account by Sai Ming.  Subsequently, Sai Ming asked the applicant to deliver parallel goods for him.  He agreed because he was afraid Sai Ming would hurt his family.  It was through Sai Ming that he came to know Lo Sai.  The applicant said he would sometimes play internet games with the two of them.

16.Several days before 5 September 2012, Lo Sai had called the applicant and told him that there was a consignment of parallel goods to be delivered on 5 September 2012. Since it was his first time to deliver such goods, he asked if Wong could assist him. Lo Sai agreed.  It was the defence case that the applicant had been “set up” by either Lo Sai or Sai Ming (or Ming Gor, as he was also referred to) and that Customs Officers had participated in that “set up”.

17.In relation to the post-record, the applicant’s case was that either he did not say certain things or, if he did, it was as a result of assaults, threats and inducements.  As for his answers in the video recorded interview, he said he had also been coached on what to say prior to the interview.  However, he agreed in cross-examination that he had not made any complaint to his father during the house search, to any senior Customs Officer, or to a magistrate about his ill-treatment.

The deputy judge’s summing-up

18.In her summing-up, the deputy judge spelt out at the outset that the main issue arising in the case was whether the prosecution could prove that the applicant knew there were dangerous drugs in the shoulder bags which he and Wong were carrying:

“You will know in this case there is no direct knowledge of the defendant knowing there are drugs in the bags. What I mean by direct knowledge, I will tell you about later, but just in the beginning briefly, direct knowledge is say for example where the defendant admits “I know there are drugs contained in the bag”. There is none of that evidence in this case, so the prosecution are asking you to draw an inference from the circumstances that he knew there were drugs.  That is important for you to understand at the outset.

So as you have heard, the important issue in this case and the crucial issue for you, the jury, to decide, is fundamentally the very short question, have the prosecution proved that the defendant knew that there were drugs in those bags? That is the crucial and important issue here.”

19.On the question of joint enterprise, the deputy judge directed the jury as follows:

“Now let me explain to you what “joint” is, or what the prosecution are alleging here is a joint enterprise, which relates to the first charge.

It is the prosecution case that the defendant committed this offence together with or jointly with Wong. Where a criminal offence is committed by two or more persons, they are acting together as part of a joint plan or agreement to commit the offence.  The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played a part in it, however great or small, so as to achieve their aim.

So in this case, are you sure that the defendant had the intention and took part in committing this offence with Wong? On the evidence before you, you may have no difficulty in finding it true that the defendant was acting together with Wong, and therefore there was a joint enterprise.  The evidence is not in dispute that the defendant was together with Wong, that the bags were originally with the defendant and thereafter he gave one bag to Wong, and that thereafter they would make their separate deliveries.

If, however, you are not so satisfied that they had a common intention, then you go on to consider if the defendant committed this offence without Wong, and that will take you to Count 2.”

20.Regarding the issue of knowledge, the deputy judge repeatedly directed the jury that the prosecution must prove to the requisite standard that the applicant knew of the presence of the dangerous drugs:

“So what must the prosecution prove in relation to this charge of trafficking in a dangerous drug? In order to secure a conviction or a guilty verdict, the prosecution must prove beyond reasonable doubt - that is, that you are sure - that the defendant, one, was in possession of the drug specified. Now, in this case you have heard it is not in dispute he was carrying the drug in his shoulder bag. They must prove that the defendant knew they were dangerous drugs.

This is highly disputed. As you know, the defendant says he did not know they were dangerous drugs. The prosecution must prove the dangerous drugs, or any part of it, was intended for the purposes of trafficking and that the trafficking was unlawful.”

21.She further directed the jury that:

“It is the prosecution’s case that the defendant was in possession of these drugs because he was going to deliver them to someone in Tsing Yi, and Wong was to deliver them to someone in Tai Wo, so they were going to deliver these drugs to some place for someone else to somebody else.

If you find this proven, you may find that the defendant was trafficking if you find he knew they were dangerous drugs. Let me just remind you the prosecution do not have to prove which particular one of these activities the defendant was involved in. They just have to make you sure the defendant knew that he possessed these drugs and his purpose in doing so was for one of those activities.

So that brings me to the important question of knowingly possessing dangerous drugs. In this case, you have heard the defendant was in physical possession of the drugs, or one set of drugs anyway; he had the amount that was found on Wong in his bag just before he was intercepted. Now, no one can be convicted of trafficking in dangerous drugs if they are not aware that there were drugs in their possession. So the defendant said he believed that there was tea in the bags, but he had no idea that those bags contained drugs. If he had no idea those bags contained drugs, he would not be in possession of the drugs. The law is not so cruel as to say that you are guilty of possessing something you do not know is there.

So, for example, in your jacket pocket let me say you have your wallet. You leave your jacket on your chair at your desk at work. Somebody unbeknown to you puts some drugs in your pocket in your jacket. If you did not know they had put the drugs in your pocket, you would not be in possession of the drug, but you would be in possession of the wallet, because you knew it was there. So the prosecution must prove that the defendant knew the drugs were in the bags.

I remind you again that the prosecution do not have to show the defendant knew the drugs were ketamine, but he had to know he was carrying dangerous drugs. It would not be sufficient if he thought he was carrying tea.

Now, how does the prosecution ask you to come to the conclusion that the defendant had knowledge that what he had with him was drugs? I refer to direct and indirect evidence, which I told you earlier: direct evidence was that he said, “I know I’m carrying drugs”, or “I know this is ketamine”, or “K-chai”, as it is called; but he never said that. So there is an absence of direct evidence. So you must infer from the indirect evidence or from the circumstances of this case that the defendant knew. The prosecution is asking you to infer knowledge from the circumstances and facts of this case.”

22.In addressing the question of how the jury should look at the applicant’s out-of-court statements, the deputy judge stated:

“You must consider whether the defendant has said those words or has signed the notebook and made the VRI in the circumstances where the Customs officers engaged in this ill-treatment or oppressive or improper conduct. If you think that the defendant may have said things or signed records or was coached in the circumstances the defendant said he was, then it would be unsafe to rely on those statements attributed to him, and then you should ignore that evidence.

If, however, you can be sure the defendant made those statements, then you must consider whether those statements are true. If you are sure they are true, you can rely on them. If for whatever reason you are not sure those statements are true, you must disregard them. That is what I wish to say about the oral statements made by the defendant.”

23.After the jury retired to consider their verdict, they sent a note to the court, which was in the following terms:

“Do we have to know if Wong Sai Hang realised what he was carrying was drugs provided that Count 1 (joint count) is charged?

What does it mean by trafficking drug ‘together’?”

After discussing the matter fully with counsel and receiving oral submissions, the deputy judge answered the jury’s questions in the following terms:

“Now, members of the jury, this is how I’m going to answer your question. The drugs in the 1^st count, as you recall, relate to all the drugs found on the defendant and on Wong. What you must be sure of is that this defendant knew of the existence of all the drugs. That is, 1.93 kilogrammes of drugs.

If you are sure the defendant knew of all the drugs, 1.93 kilogrammes - that is, found on him and on Wong - then irrespective of the knowledge of Wong, you may convict him on Charge 1 provided you are sure he knew of all the drugs, the total amount of drugs, and that the element of trafficking is satisfied.

…..

But let me just repeat again: irrespective of the knowledge of Wong, you can convict the defendant on Charge 1 provided you are sure of the element of trafficking and he knew of all the drugs.”

The grounds of appeal

24.Mr Ross, on behalf of the applicant, has argued three grounds of appeal.  First, he submits that, in answering the jury’s questions as she did, the deputy judge directed the jury that they could convict the applicant on a different basis from the joint enterprise basis put forward by the prosecution (Ground 1).  Secondly, it is averred that the deputy judge gave no reasons for ruling the applicant’s out-of-court statements as voluntary and admissible (Ground 2).  Thirdly, it is argued that the deputy judge wrongly directed the jury that if they were of the view that the applicant’s out-of-court statements were unfairly obtained from him, they should disregard them, since such a direction would also have caught any exculpatory statements which might be true (Ground 3).

Consideration

Ground 1

25.The thrust of Mr Ross’s argument is that the prosecution had at all times alleged that the applicant was acting jointly with Wong in trafficking dangerous drugs.  The particulars of Count 1 alleged that the applicant had together with Wong Sai Hang trafficked in all of the dangerous drugs (that is those found in both the applicant’s bag and in Wong’s bag) and, consistent with that allegation, the prosecution had opened its case to the jury on the basis that the applicant was “jointly involved” with Wong and that they were “acting together” in trafficking all of the drugs in that count.  When the deputy judge summed up to the jury, she told them in terms that:

“…if you are sure the defendant committed this offence together with Wong, you consider only the first charge. If you think he committed the offence on his own, not with Wong, then you go on to consider the second charge.”

She went on to give the standard direction as to the meaning of joint enterprise before saying:

“If, however, you are not so satisfied that they had a common intention, then you go on to consider if the defendant committed this offence without Wong, and that will take you to Count 2.”

26.Mr Ross submits that, on the prosecution’s own approach to the case in opening and on the way the judge originally summed up the case to the jury, if Wong was not a party to any joint enterprise (perhaps because he did not know about the dangerous drugs in the “鐵觀音” packages), then the applicant could not be found guilty of trafficking on Count 1 on a joint enterprise basis and the jury should then have confined themselves to a consideration of the drugs found in his own shoulder bag (Count 2).  However, when the jury asked its questions, he submits that the deputy judge by her answer changed the way the prosecution case had been put as well as the basis on which she had originally summed up to the jury and instead directed that they could convict the applicant as a sole principal regardless of Wong’s state of mind.  This, he submits, caused prejudice to the applicant.

27.The prejudice for which he contends is that by the time the answer was given to the jury’s questions by the deputy judge allegedly expanding the basis of liability on Count 1, Mr Ross was no longer in a position to address the jury on behalf of the applicant or to call further evidence to meet the new case advanced.  He suggests he might have wanted the jury to know, for example, that Wong had pleaded guilty to all of the drugs in both bags and run his case on the basis that the applicant was the innocent conduit for Wong’s trafficking.  We would observe, however, that when the deputy judge raised the issue of prejudice with Mr Ross at the time of the discussion of the jury’s question, such prejudice as is now contended for was not advanced.  Instead, Mr Ross’s response was that prejudice did not come into the equation.

28.The short answer to this ground of appeal is that the deputy judge’s response to the jury’s questions was absolutely correct. Indeed, Mr Ross has accepted before us that it was the right answer.  The jury were not concerned with Wong or his state of mind: they were only concerned with the applicant and his state of mind.  In the main body of her summing-up, the deputy judge had directed the jury correctly in accordance with the standard directions on the topic that they were not to concern themselves with Wong or to speculate as to what may have happened to him, but to concentrate only upon the guilt or otherwise of the applicant.  Prosecuting counsel in his opening address had in fact said the same thing and, as he pointed out in submissions to the deputy judge when discussing the jury’s questions, the defence had been at pains to ensure that the prosecution should not reveal anything about Wong, who had in fact pleaded guilty.  As a result, the jury were ignorant of Wong’s plea.

29.The applicant had all along been indicted as a principal, albeit a joint principal with Wong.  However, the jury were not concerned with Wong’s state of mind and were told as much.  The questions from the jury were understandable given the way Count 1 had been particularised and the approach to the two counts originally advanced by the prosecution and presented by the deputy judge.  However, the fact that the deputy judge correctly answered those questions, after extensive discussions with both counsel, did not change the applicant’s status as a principal: it merely ensured that the jury should not be distracted or concerned with the position of Wong.  We do not accept that the court allowed the prosecution to “expand” its position because the applicant remained as he always was, namely a principal to the offence of trafficking in the drugs particularised in Count 1.

30.It is perfectly possible, and it happens regularly in our courts, for a jury to be satisfied so they are sure of the guilt of one of two parties to a joint enterprise but not the other party: see, for example, HKSAR v Ng Siu Lin Jackie (2014) 17 HKCFAR 212.  And even if Wong had been an innocent and unwitting agent, the applicant would still have been guilty as a principal of trafficking in all of the drugs by passing the packages to Wong pursuant to an instruction to deliver them, provided that the applicant had the necessary mens rea for possession and trafficking in all of the drugs.

31.We return then to the question of prejudice.  Mr Ross had, as we have said, effectively kept from the jury, as he was entitled to do, the fact that Wong had pleaded guilty to Count 1.  We cannot conceive that Mr Ross would realistically have wanted to advance his defence on the basis that Wong, who was a year younger than the applicant, was the real trafficker and the applicant a mere innocent conduit, when it was accepted that the applicant had torn open the bag containing the drugs and handed one of the green plastic bags to Wong to carry, and when it was the applicant’s own evidence that he had brought Wong in to help with the delivery.

32.With respect, there was no prejudice to the applicant occasioned by the deputy judge answering the jury’s questions correctly as a matter of law.  On the contrary, we think it would have been quite unfair to the prosecution, who had been required by the defence to keep from the jury that Wong had pleaded guilty, if the jury were to be encouraged into thinking that, since there might not be sufficient evidence before them that Wong was a knowing participant and joint principal to the offence in Count 1, they could therefore find the applicant not guilty as principal on the same count.

33.The jury’s questions were correctly answered by the deputy judge and there is no substance in this point.

Ground 2

34.It is quite clear from the deputy judge’s ruling that she was fully aware of the judgment of this Court in HKSAR v Okafor [2012] 1 HKLRD 1041, because she mentioned it in terms when declaring that this case did not fall within its terms so as to require detailed reasons for her ruling to be given.  Mr Ross has made an attempt to suggest that there were a number of matters in the evidence on the voir dire which did call for a reasoned ruling to be given because they fell within the third example set out by Stock VP in the case of Okafor, at 1056, where a reasoned ruling may be required.  But, with respect, he has had conspicuous difficulty in suggesting that those matters were in any way significant or that they were not subsumed in the overall issue of credibility, which the deputy judge obviously by her ruling resolved in favour of the prosecution.

35.The high point of his submission, perhaps, was the inherent improbability supposedly involved in PW1 not noticing that the applicant had made a number of telephone calls to Lo Sai and Sai Ming (or Ming Gor) when PW1 was in the same room at the same time at the Customs Office in Fanling and sitting a matter of a few feet away from the applicant.  However, the evidence on this matter, which PW1 gave some 21 months after the event, was that at the time these calls were being logged, he was so “focussed” on writing up the post-record of his conversation with the applicant at the time of arrest that he had no recollection about these telephone calls.  He went on to explain that “Maybe I was too concentrated”.

36.It was suggested to the deputy judge by Mr Ross during his oral submissions at the close of the voir dire that the officer’s evidence on this issue was inherently improbable and not credible.  However, this was classically a matter of credibility.  We agree with Ms Lai that there was nothing exceptional about the issues of fact emerging in this voir dire, which required the deputy judge to say any more than she did say.  In making her submissions, Ms Lai relied upon the opinion of the Privy Council in Wallace v R [1997] 1 Cr App R 396, where, having stated that there are occasions when good practice required a reasoned ruling to be given, the Board held, at 407:

“Here, the trial judge was faced with an irreconcilable conflict of evidence between the police officers and the defendants, turning on credibility alone. No principles of law were in issue, and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling leaves the answer in no doubt. Simply to announce that he accepted the account given by the officers and the justice, and found the appellants’ story unworthy of credit would not have advanced an appeal. Furthermore, although in cases where reasons are given it is prudent for the judge to say no more than strictly necessary, it is hard to see how a mere summary would have been appropriate in the present case; for there was always the risk that if anything was omitted in the interests of brevity the defendants would argue on appeal that the judge had overlooked it. In practice, he could scarcely stop short of a full reasoned analysis. Their Lordships can see nothing to recommend such a course, and good reason not to follow it.”

37.We agree with Ms Lai and with the application of that passage to the particular case before us.  Furthermore, an examination of the transcript of evidence and the closing submissions of both counsel on the voir dire makes clear that there were no particular issues of law involved nor did Mr Ross suggest any plausible basis upon which the deputy judge might have exercised her discretion to exclude the out-of-court statements of the applicant.  As the submissions of both counsel at the conclusion of the voir dire acknowledged, it was ultimately a simple matter of credibility.  By her ruling, we are left in no doubt as to whom the deputy judge believed.  There is no substance in this ground of appeal.

Ground 3

38.The point here, as we understand it, is that since the out-of-court statements of the applicant were so-called ‘mixed’ statements, there were clearly some parts which were exculpatory.  By directing the jury to ignore the out-of-court statements if they considered them to have been obtained unfairly, she was effectively inviting the jury to ignore also his exculpatory answers, which might have been true and thereby lent strength to his evidence in the witness box.

39.Whatever the legal niceties of that argument, it overlooks the fact that in this case the applicant gave evidence before the jury.  As Mr Ross accepts, the applicant did tell the jury what was true and what was not of his out-of-court statements, and the jury were able to judge his evidence accordingly.  Indeed, the deputy judge told the jury that the applicant’s evidence was “similar to what he said in his video recorded interview, but there were some differences”.  In so saying, she was reminding the jury that the accounts were largely consistent.  As for the post-record, she also reminded the jury that the applicant’s case was that, apart from the figure of $300, “everything else in there was true”.

40.Since the applicant chose to give evidence, there was no need for the jury to be directed that they must consider the exculpatory parts of his out-of-court statements when assessing the truthfulness of his evidence which adopted the exculpatory explanation: see R v Cheung Hon Kwong and others (unrep., CACC503/1989, 14 August 1990); R v Vu Trong Minh [1995] 1 HKCLR 24.  As this Court has held in HKSAR v Huang Xiang Rong [2010] 1 HKLRD 750, at 773:

“There is no dispute that the exculpatory parts of a ‘mixed’ statement are evidence of the truth for the jury to consider, albeit that a jury might consider them as of less weight than the inculpatory parts of the statement. In consequence, a judge is required to give the jury a direction to that effect. Clearly, if in his evidence a defendant adopts the exculpatory explanation contained in his out-of-court statements, adduced into evidence by the prosecution as part of a mixed statement, there is no need or requirement for the jury to be directed to consider separately the exculpatory parts of that statement as evidence of the truth. The resolution of that issue has been overtaken by the defendant’s testimony. A direction that the accounts are consistent may be appropriate.”

Pausing there, the deputy judge in the present case did, as we have just pointed out, remind the jury that the applicant’s evidence was largely consistent with what he had said in his record of interview and that, apart from one small matter, everything recorded in the post-record was true.

41.The Court in Huang Xiang Rong went on to contrast the position where there are differences - and we would interpolate significant differences which are material to the issue before the jury - between a defendant’s evidence and his exculpatory account in an out-of-court statement:

“If the defendant in his evidence gives an account which, although exculpatory, is nonetheless different from the exculpatory account advanced in his mixed out-of-court statements that are before the jury, the out-of-court statements are not subsumed by the defendant’s evidence, rather they stand separately. Nevertheless, it remains evidence that the jury is to be directed to consider as to the truth of the account. Accordingly, the judge is under a duty to give the jury such a direction.”

42.In this case, there was nothing of any material significance which differed in the accounts the applicant gave in his two out-of-court statements and in his oral evidence.  The essential thrust of all three bodies of evidence was that he was instructed to do what he had done by two identified persons and that he had no knowledge that the bags he was being asked to collect and deliver contained dangerous drugs.

43.In our judgment, the jury were given proper directions as to how they should approach the evidence of the applicant’s out-of-court statements in this case, given that the applicant had testified broadly in line with the exculpatory parts of those statements.  Such consistencies as there were would hardly have been lost on the jury, while the inconsistencies, such as they were, really did not matter.  There is nothing in this ground of appeal.

Conclusion

44.There are no merits in this application and leave to appeal against conviction must be refused.

Ms Anna Y K Lai SADPP, of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Littlewoods, assigned by Director of Legal Aid, for the Applicant