HKSAR v. TSE HIN YEUNG

CACC 185/2017

[2018] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 185 OF 2017

(ON APPEAL FROM HCCC NO 291 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 7 June 2017, the applicant was convicted after a trial before D’Almada Remedios J (“the judge”) and a jury in respect of one count of trafficking in a dangerous drug, namely 1.92 kilogrammes of a powder containing 1.46 kilogrammes of ketamine. He was sentenced on the same day to 16 years’ imprisonment.

2.  On 20 June 2017, the applicant filed a Form XI Notice applying for leave to appeal against both conviction and sentence. Legal aid was granted for him to pursue his application in respect of conviction only, for which he was represented by Mr Bernard Yuen.  At the hearing before us, the applicant indicated that he intended to abandon his application for leave to appeal against sentence and we formally dismissed his appeal.  At the conclusion of the hearing, we refused leave to appeal against conviction and dismissed the appeal, saying that we would hand down our reasons shortly.  These are our reasons.

3.  As a side note, we should point out that this trial was a re‑trial, pursuant to an order of the Court made on 21 June 2016[1].  Before the re‑trial began some 11 months later, the applicant had discharged two counsel, which necessitated the trial dates being vacated.  That background explains why we are still dealing with an appeal more than 4½ years after the commission of the offence.

Prosecution case

4.  At about 6 pm on 20 August 2013, while conducting an observation on Chik Shun Street in Tai Wai, New Territories, two police officers, SPC 54218 (PW1) and PC 5905 (PW2), saw the applicant carrying a black recycle bag and entering a shop selling desserts.  Shortly after the applicant had sat down at a table and placed the recycle bag on an adjacent chair, he was joined by a Chinese female.  The two police officers thereupon entered the dessert shop and revealed their identities[2].  They then examined the recycle bag, which was found to contain a 12‑can “Carlsberg” beer carton box, sealed with adhesive tape, itself containing eight 250 ml milk beverage boxes.  Inside the milk boxes were found the dangerous drug, the subject-matter of the indictment, which was valued on a retail basis at HK$234,240[3].

5.  Both the applicant and the female were arrested. However, the female was subsequently released and not charged with any offence, a fact which was made the subject of an Admitted Fact between the parties[4].

6.  It was not disputed at trial that a fingerprint impression of the applicant’s right index finger was found on the outside of one milk box inside the “Carlsberg” carton box[5].

7.  The prosecution case was that the applicant was in possession of the dangerous drug for the purpose of trafficking.

Defence case

8.  The applicant elected to give evidence himself but called no witnesses.  He was 25 years of age at the time of the arrest.  He was separated from his wife, had an 8‑year‑old son and worked as a transportation worker.

9.  The applicant testified that the female arrested with him, a Ms Chan, was 16 years of age at the time and an “ordinary friend”. He had met up with her on that day at about 5 pm at a petrol station in Tai Wai.  At the time, she was carrying the recycle bag which was at some stage passed to him because she wanted to go and withdraw some money from an ATM machine nearby.  Ms Chan then walked away for about five minutes, leaving the applicant with the bag.  During that period, she made a telephone call to the applicant asking him to check for her whether any of the eight boxes of drinks was missing from the carton box inside the bag.  He was asked to remove the adhesive tape from the carton box in order to check.  Although he thought it unusual, he then checked the contents of the carton box and found that there was nothing missing.  A minute or two later, he received another telephone call from Ms Chan asking him to meet her in a nearby dessert shop.

10.  According to the applicant, Ms Chan had arrived at the dessert shop before he did.  It was his case that he did not know that dangerous drugs were contained in the recycle bag, which belonged to Ms Chan.

Discussion regarding the evidence about Ms Chan

11.  Given the arguments in respect of Ground 1 of the applicant’s perfected grounds of appeal against conviction, it should be noted that on the first day of trial and before any evidence was called, defence counsel (not Mr Yuen) voiced her concern about the jury possibly misusing the Admitted Fact that Ms Chan was arrested but later released without charge, and requested that the judge ask the jury “not to speculate why the girl wasn’t charged and (was) released subsequently”.  This the judge agreed to do[6].

Summing‑up

12.  The judge told the jury, at the commencement of her summing‑up, that the main issue was whether the applicant knew there were drugs in the recycle bag being carried by him.  She said:[7]

“So if you, the jury, are satisfied so you feel sure that the prosecution have proved to you that the defendant knew what he was carrying in the bag were drugs, then in the circumstances of this case, you may infer that he was trafficking as no one would have such a large quantity of drugs for self-consumption and they would be for the purposes of delivering or supplying to others.”

Grounds of appeal against conviction

13.  Mr Yuen has advanced two grounds of appeal against conviction.  Both grounds allege that the judge’s directions were unfair and unbalanced.  In particular, by Ground 1, issue is taken with the judge’s direction to the jury[8]:

“Do not speculate as to why she was not charged and was released. You need have no concern about the female. It is not for you to choose who is the trafficker, the female and/or the defendant. You are here to decide only if the defendant was trafficking in the drugs. That is what you are here to decide. The issue being, here, the prosecution have to prove to you that he had knowledge of the drugs in the bag. That is the issue.”

It is argued that the possible implication of this direction was that the jury should ignore what the applicant said in evidence about Ms Chan, yet it was central to his defence that the “Carlsberg” carton box and its contents belonged to her, not him.

14.  By Ground 2, Mr Yuen took issue with various passages in the summing‑up, where he said the judge was one‑sided in her directions, which were tantamount to delivering a second speech for the prosecution. Mr Yuen submitted that the overall effect of the summing‑up was that it was unbalanced and unfair to the applicant, who was thereby deprived of a fair trial.

Respondent’s submissions

15.  In her written submissions in respect of Ground 1, Ms Catherine Ko, on behalf of the respondent, submitted that the judge’s direction in relation to Ms Chan was required so that the jury focussed on the real issue at trial, which was the applicant’s knowledge of the presence of dangerous drugs in the bag, not the guilt or innocence of Ms Chan.  So far as Ground 2 was concerned, Ms Ko submitted that when read as a whole, the summing‑up was entirely balanced and fair.

16.  We did not call upon Ms Ko to address us orally in reply.

Consideration

17.  With respect to Mr Yuen, Ground 1 is not reasonably arguable.  Following the applicant’s evidence and prior to the summing‑up, defence counsel at trial had addressed the judge as follows:

“My Lady, may I respectfully suggest to the court that in the (judge’s) direction it should be mentioned … It’s not our case to choose between the defendant and the girl who is the trafficker and there is nothing in our defence case to say the girl knew it’s dangerous drugs inside. So it’s our case that the defendant didn’t know it’s dangerous drugs inside and he has no proof whether the girl knew it’s dangerous drugs or not.”

The judge evidently agreed with this submission, for she gave the direction set out at paragraph 13 above, which is now the subject of complaint on appeal.  Indeed, the judge adopted the language of defence counsel in her direction to the jury.

18.  In our judgment, the judge was right to give this direction, which was the very direction defence counsel at trial had asked her to give.  We regard the concern expressed by Mr Yuen that the jury might have taken from this direction that they should disregard everything the applicant said about the actions of the female as fanciful.  The judge fully summarised the applicant’s evidence and told them no less than three times that if what he said might be true, they must acquit[9]. The notion that they might somehow have interpreted this direction as an invitation to ignore what the applicant said about Ms Chan’s involvement and to treat her effectively as invisible was wholly unrealistic.  There is absolutely no merit whatsoever in the ground of appeal.

19.  As for Ground 2, Mr Yuen has unfortunately taken parts of the summing‑up completely out of context and treated them in isolation.  The fact is that this summing‑up was a model of succinctness, fairness and balance throughout.  For example, the judge identified the competing inferences invited by the prosecution and the defence, without any comment whatsoever[10]; explained the contrasting evidence about the fingerprint, without any comment at all[11]; and summarised the respective speeches of defence counsel concerning the prosecution evidence[12], and prosecuting counsel concerning the applicant’s evidence[13], again without indicating what she thought of the respective submissions.  That is not to say that the judge could not have made comments either way had she felt it appropriate to do so: the fact is she did not.

20.  In HKSAR v Wiwik Lestari[14], this Court recently expressed its concern about a prevailing culture amongst certain appeal counsel of averring that there was an unfair and unbalanced summing‑up almost as a matter of routine in any set of grounds of appeal against conviction, regardless of its merits.  The Court reminded counsel that they “are expected to bring professionalism, realism and common sense to the performance of their duty”[15] in settling and conducting appeals.

21.  This is again, with respect, an example of the same practice.  There was absolutely no merit whatsoever in the complaint of an unfair and unbalanced summing‑up in this case: on the contrary, as we have said, it was scrupulously balanced and fair.

22.  We consider that it is perhaps time that the procedure of applying for leave to appeal before a Single Judge is extended to all appeals, and not simply those where the sentence is 7 years’ imprisonment or less.  Had that happened in this case, we are in no doubt that leave would have been refused by any Single Judge and the applicant (and his counsel) would then have known that he was at risk of loss of time if he persisted with grounds of appeal that were utterly devoid of merit.