HKSAR v. LEE FUK HING

[English Translation]
CACC 376/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

CRIMINAL APPEAL NO. 376 OF 2000

(ON APPEAL FROM HCCC98/2000)

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REASONS FOR JUDGMENT

Hon Leong CJHC (giving the Reasons for Judgmentof the Court):

1. On 26 June 2002, at the completion of the hearing of this appeal, this Court dismissed the defendant’s appeal and stated that written Reasons for Judgment would be delivered some time later.  The Court’s reasons for dismissal of the appeal are as follows:

2. On 16 August 2000, the defendant Lee Fuk Hing was convicted by a jury sitting in the Court of First Instance of the High Court for the offence of Trafficking in a Dangerous Drug, and was then sentenced to serve a term of imprisonment of 11 years.  The defendant was aggrieved at the conviction and applied for leave to appeal against conviction.

3. The prosecution’s case was as follows: On 14 January 2000, a team of police officers intercepted a light goods vehicles with the defendant inside in Nam Wan Road, Tai Po, New Territories.  After the police officer(s) had revealed his/their identity/identities to him, the defendant immediately rushed out from inside of the vehicle but was seized by the police officer(s).  Later, police officer(s) found in the goods vehicle two bags which contained dangerous drug-like item(s).  The police officer(s) then arrested the defendant.  A Government Chemist analysed the seized items and confirmed that they were heroin, namely, the dangerous drugs as stated in the charge.  The market value of that batch of dangerous drugs was $215,044 plus.  At the time of the arrest there were traces of heroin on the defendant’s person.

4. The defendant said in his defence that before the occurrence of the case, he had lent his goods vehicle to a man called Tsang Kei.  On the day of the case, after Tsang Kei had returned the vehicle to him, the two of them then went to a certain place in Tai Po for inspection of decoration work.  After reaching the destination Tsang Kei put up an excuse and left the vehicle first.  Later a vehicle rammed into the back of the goods vehicle.  Then several police officers went forward and broke the glass of the goods vehicle.  He alighted from the vehicle with a view to reason (with them), however, he was then grabbed and assaulted by the police officers, and he was also handcuffed.  The two bags of dangerous drugs which were not his property were left behind in the vehicle by Tsang Kei.

5. The crux of this case hinges on the issue that whether the prosecution’s case had been established beyond doubt, or whether the defence as put forward by the defendant may be true to the extent of casting doubt on the prosecution’s case under which circumstances the jury should not find the defendant guilty.

6. There are three points in the defendant’s Amended Grounds of Appeal: The complaint in the first ground of appeal is that the trial judge erred in his direction to the jury on the consideration of the prosecution’s case. Counsel for the defendant Mr Wong Tat Wah submitted that the trial judge had erred in the following directions:

“But I have to remind you one thing, it is correct that the police officers were executing their public duty as they had received information and suspected that there were dangerous drugs hidden on board this vehicle; however, that information had not yet been confirmed.  Whether they would behave like robbers: boarded the vehicle and allowing no explanation to be offered, broke his glass, dragged him out of the vehicle, beat (him) up severely, handcuffed (him), put a hood on (him), and then inflicted the beating again, this would be a matter for you yourselves to consider.  What was their purpose for doing that? Would such acts in fact bring not only disciplinary actions against them, but even prosecution for criminal offence(s)?  In particular, if no dangerous drugs were found there and then, their acts were no different from that of the robbers and would certainly bring prosecution (on themselves).  When you consider the question of credibility, you can also consider this point.” (line F-I of page 4)

“Another point that has to be pointed out to you is that no one can explain why there was such a large batch of old documents inside that bag.  You have heard Mr Tse’s submission that they were planted there by the police constable(s), ‘they’ being the documents; and he linked the defendant up with this bag.  However, you yourselves have to consider this:  Is it really necessary for the witness(es) to do that? (line T of page 4 to line A of page 5)

“The defendant did not dispute that P1, P2, P3 were in fact found inside that bag.  What he said was just that the things inside were not in his possession.  Though the way the exhibit officer PC No. 2983 handled that exhibit was not quite satisfactory, would it still be a material point?  It is for you yourselves to consider.  (PC) No. 2983 denied that he had planted those old documents inside; was it necessary for him to do that?” (lines L-M of page 8)

7. Mr Wong submitted that the above several passages of directions were made by the trial judge after directions had been given to remind the jury that the defendant had testified that the police officer(s) had assaulted him.  Counsel Wong submitted that those directions would lead the jury to wrongly think that a police officer would be less likely to tell lies when compared with an ordinary person.  Mr Wong cited a series of cases (R v Wong Kim Wah & Anor [1993] 2 HKC 305, R v Shen Da Cheng [1994] 1 HKC 293, R v Chiu Hung Wong (Crim. App. No. 161/1994), R v Fisher (Carl) [1983] Crim. L.R. 486) to suggest that the judge in his direction to the jury should not have led the jury into thinking that police officers’ evidence was more credible than that of other witnesses.  It was also Mr Wong’s view that the above directions were unbalanced and would be unfair to the defendant.

8. The above cases cited by Mr Wong had also been considered and analysed by Woo JA in HKSAR v Leung Ka Yin (Crim. App. No. 225/1999), where Woo JA in his judgment summarized the relevant principles into the following points:

(1)   that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted or liable to lose his job.

(2)   that a trial judge must not indicate to the jury that the police are more unlikely than others to fabricate evidence.

(3)   that words which may mislead the jury to believe that the police are less likely to tell lies, or give undue weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.

9. This Court is of the view that the several passages of directions of the trial judge cited by Mr Wong, considered either individually or as a whole in the context of giving directions, do not suggest any of the situations that Woo JA referred to in Leung Kai Yin.  The trial judge’s directions were no more than directions to the jury to consider whether it was necessary for the police officer(s) to do those acts as alleged by the defendant, namely to direct them to consider whether the defendant’s evidence was credible or not.  Though the trial judge did mention that if the police officer(s) had in fact assaulted the defendant, those acts might bring prosecution on them and cause the loss of their job, that did not constitute a direction to the effect of telling the jury that the police officers were less likely to tell lies or fabricate evidence than other witness.  This Court also disagrees that the judge’s directions were unbalanced and unfair to the defendant.  This Court is of the view that the first ground of appeal fails.

10.     In the second Ground of Appeal, Mr Wong submitted that the trial judge had not made it clear that even if the defendant’s evidence was not accepted, the burden of proof was still on the prosecution.  Mr Wong opined that the following two directions showed that the trial judge had directed the jury to compare the credibility of the evidence of the prosecution and defence with a view to decide whether the defendant was guilty or not:

“However, why are there such significant discrepancies between the cases of the two parties?  You yourselves have to consider whose case is credible…Therefore, it depends on the views that you will take on the witnesses of both parties, which party(’s evidence) will satisfy you.” (lines I-M of page 4)

“…Whether the accused’s version is credible, or the version(s) of the police constable(s) is/are credible?  It is a decision that you yourselves have to make.” (line T of page 5 to line A of page 6)

11.     Mr Wong cited The Queen v Chan Wing Yuen [1977] HKLR 186 in which McMullin J said in the judgment of the case:

“It is sufficient for the purpose of this case to say that the combined effect of these authorities is to establish the principle that it is wrong for a judge or magistrate, in deciding whether a charge has been proved to the requisite standard in a criminal case, to balance the defence and prosecution stories against each other and to conclude that the case has been proved on the basis that the defence story must be rejected and that, consequently the prosecution story must be accepted.”

12.     If the parts of the directions cited by Mr Wong would lead the jury to balance the prosecution and defence evidence against each other and to conclude that if they disbelieved the defendant, then they must believe the police witnesses, and consequently decided that the charge must have been proved, then the trial judge’s directions must be wrong.  However, this Court disagrees that the above two cited directions had such effect.  Moreover, soon after the outset of giving direction to the jury the trial judge had already given the following direction:

“In this case, the prosecution has to prove that the defendant is guilty, whereas the defendant does not have to prove his innocence.  In a criminal case, the burden of proof always rests on the prosecution, and the defendant is not obliged to prove his innocence.  If the defendant has elected to give evidence as in this case to defend himself, also he does not have to prove what he said is true; of course it will serve him the best if he can prove that his words are true.  Even if you are of the view that his words are lies, you cannot find him guilty because of that.” (line D-F of page 2)

The trial judge clearly stated that the burden of proof rested on the prosecution, and he also directed the jury that even if they did not accept the defendant’s evidence, it did not mean that the defendant was guilty, not to mention finding him guilty on that basis.  Subsequently, the trial judge repeatedly reiterated the above direction:

“…At the outset you have already heard me say that the burden of proof is on the prosecution.  What in fact are the contraventions of section 47A?  When will the provisions of section 47A apply?  They only apply when the prosecution can proved beyond reasonable doubt so that you truly believe that the defendant was in physical possession of the Polo bag.  Therefore, the prosecution has to prove beyond reason doubt that the defendant was in physical possession of this Polo bag in order to invoke the two presumptions I have just mentioned.  Thus, the burden of proof still rests on the prosecution.” (lines Q-T of page 6)

“Moreover, I have to remind you that as you know that the defendant is addicted to drug, so I have to ask you to set aside any bias, if you have any such bias.  Do not hold the view that all drug addicts are very likely to traffic in dangerous drugs in passing.  You have to dispel this bias and rely on the evidence you have seen in this case to make a decision consistent with the evidence.  If you are sure that the defendant is guilty, then you have to make a finding of guilty; if you hold the view that he is not guilty, or the prosecution cannot prove to the extent as to satisfy you that the defendant is guilty, then you have to make a finding of not guilty.” (lines F-H of page 9)

This Court is of the view that the second ground of appeal fails.

13.     The third ground of appeal is that the trial judge erred in asking the defendant why he had not revealed the person Tsang Kei to the police.  Mr Wong submitted that the trial judge should not have raised this question, as the question would affect the defendant’s right to remain silent.  Mr Wong opined that though the trial judge in directing the jury had told them to forget this question and answer, he still directed the jury that they should consider whether the two bags of items in the goods vehicle had been left behind by Tsang Kei.  Mr Wong submitted that in the circumstances, whether the jury could totally put aside evidence connected with this question remained doubtful.  Thus, the jury’s verdict was unsafe and unsatisfactory.

14.     This Court is of the view that the defendant based his case on the defence that the two bags of dangerous drugs in question had been left behind by Tsang Kei and they did not belong to him, and he had absolutely no knowledge of it. Thus, Tsang Kei’s existence or otherwise must be relevant to the credibility of the defendant’s evidence.  If there was such a person called Tsang Kei and the occurrence of events did happen as stated in the defendant’s evidence, then common sense dictates that the defendant would as soon as possible inform the police officer(s) that the offender was in fact another person whom he knew.  This Court’s view is that the trial judge’s question concerned the credibility of the defendant’s evidence, and had nothing to do with the defendant’s right to remain silent.  However, the judge’s question might give the jury the impression that the jury had not maintained an impartial stance in the trial, and thus when the judge later gave direction to the jury he had to direct them to forget the matter.  This Court does not hold the view that the judge’s subsequent direction to the jury to consider whether the two bags of stuff had been left behind by Tsang Kei would give rise to the effect that Mr Wong alleged, as that was the very question whether the defendant was in possession of those items, which is the crux of the case.  This ground of appeal also fails.

15.     For the above reasons, this Court refuses the application for leave to appeal.