HKSAR v. SHAM KIT YI AND ANOTHER

CACC 128/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 128 OF 2003

(ON APPEAL FROM HCCC 131 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 In this case, the first applicant seeks leave to appeal against convictions for drug trafficking. The second applicant ("Yuen") who had pleaded guilty before Deputy High Court Judge Day seeks leave to appeal against sentence. His application is to be heard on a date to be fixed. This judgment addresses only the first applicant's appeal.

The facts

2 We largely take the facts from a helpful summary presented by Ms Sin.

3 The first and second applicants were co-habitees occupying at Flat 222, Fu Chak House, Chak On Estate. On the morning of 29 December 2001 a security guard (Madam CHAN) of Fu Chak House saw the first applicant enter the building with Yuen and another man, press the password and hold the gate open to enable the two men to push a trolley carrying seven to eight bags into the lift. Later in that same morning another security guard (Madam TSUI) saw the two applicants emerge from the lift at the lobby, with Yuen carrying two heavy nylon bags. Madam TSUI asked what they were and the first applicant replied that they had purchased the wrong material and were going to change it.

4 That afternoon police on surveillance saw Yuen drive his motor vehicle and stop outside Fu Chak House. He remained there whilst the first applicant alighted, went into the building and entered Flat 222. When she exited a few minutes later, she was intercepted by WDPC PONG and a search of her handbag produced keys to the flat and an unsealed manila envelope containing four blocks of heroin. Under caution by WDPC PONG, the first applicant is alleged to have said, "Madam, they are dangerous drugs."

5 Then the police took her into the flat by using the keys and there found two and a half bags of heroin next to a sofa. The half-full bag was opened and revealed blocks of heroin packed in transparent wrappings. It was alleged that under caution by WDPC PONG, the first applicant said, "This morning, my boy friend Ah Chung and his friend delivered them here." and then a little later, she is alleged to have said: "Madam, I have already told you that my boy friend Ah Chung and his friends delivered them here this morning. I did not know what they delivered here beforehand. I knew what they were afterwards. I don't know their actual names, but I know that they are dangerous drugs."

6 All these above cautioned statements were recorded by the officer in a notebook which was signed by the 1st Applicant. However, after she had consulted her lawyer at the police station, she asked to delete parts of the answers.

7 When she was later interviewed, she asserted that she did not know that the envelope in her handbag or that the bags in her flat contained dangerous drugs.

The Indictment

8 There were three counts on the indictment. The first alleged that the applicant and her boyfriend Yuen Siu Chung, who was D2 at trial, trafficked in 1.36 kilogrammes of a mixture containing 0.98 kilogrammes of heroin hydrochloride. This count related to the drugs in the manila envelope which envelope the applicant undoubtedly had in her possession.

9 The second count again alleged trafficking in dangerous drugs by the applicant and D2, and this count was directed at the drugs left in the flat, that is the two and a half bags which contained 36.47 kilogrammes of a mixture containing 26.88 kilogrammes of heroin hydrochloride.

10 Count 3 affected D2 alone, and alleged possession of drugs on his arrest, namely, 4.24 grammes of a powder containing 2.88 grammes of ketamine and 18 tablets containing 2.25 grammes of methylenedioxymethamphetamine (MDMA).

11 D1 pleaded not guilty. Her defence has, again, been summarised helpfully by Ms Sin. The first Applicant gave evidence and called Yuen as her witness. Her case was that she had no knowledge of the contents of the envelope and that she was not in possession of the drugs in the flat nor did she know what was in the two and a half bags.

12 She agreed that she bought the trolley used to move the bags of drugs up to the flat, that she entered the password for the door and held the door open so that the men could push the trolley with the bags into the lift and that the bags of drugs were taken into the flat. She said that she then she showered and went for breakfast. When she returned, Yuen took two of the bags downstairs and asked her to go with him. She did so and that was when Madam TSUI asked what was in the bags and she gave the false reply.

13 In the lobby she waited while Yuen disappeared towards the road with the bags and then came back without them. She did not see to whom he had given the bags. They both returned to the flat and at about noon, all three left the flat for lunch. Yuen had a number of manila envelopes with him and they drove first to Hung Hom where he left her sitting in the car for about half an hour. He returned without the envelopes but with a man called Fai Chai. They all went for lunch and Yuen dropped Fai Chai off before returning to Chak On Estate.

14 There, Yuen told her that he had forgotten a manila envelope and asked her to go up to the flat to fetch it for him while he waited in the car. In her evidence in chief she said he told her the envelope was on the sofa. She did as told and was apprehended by police as she left the flat with the envelope in her handbag. She said that she never asked Yuen about the contents of the bags or the envelope, for her experience was that she would not be told even if she had asked.

15 She denied having confessed to WDPC PONG that she knew that in the envelope and the bags were dangerous drugs. Although she had signed the notebook, she had not read the entries nor had they been read to her before she signed, and she was scared of threats and inducements by the police.

16 On 13 March 2003 the first applicant was convicted by a majority of 5-2 on Count 1 and acquitted on Count 2.

The Ground of Appeal

17 There is one ground of appeal and it is the failure of Deputy Judge Day to deliver any lies direction, that is to say, a direction warning the jury that lies told by the applicant, if any were established, were not to be treated as evidence of guilt. There is one suggested lie to which this complaint is directed and it is referred to in the following passage of the summing-up to which we are invited:

"Miss Sham was cross-examined about how she knew which manila envelope she was to collect for Yuen. In the video interview she had told the officers that she took the envelope because it was the only one in the flat with anything in it. She told you in her evidence-in-chief that Mr Yuen had told her to collect the one on the sofa. She denied that she had been inconsistent in this, saying that she was simply now giving more details than were in the interview. Mr Ma, when dealing with this point, referred you to answer 357, suggesting that there was no inconsistency. He did not, however, deal with answer 210. In his address to you Mr Tam referred you to question 209 and the defendant's answer 210, where she was asked which place Mr Yuen asked her to get the envelope from, and her answer in the video interview was, "He didn't say, he just asked me to go home and get the manila envelope downstairs." Mr Tam urges you to conclude that she is not telling you the truth about this, and reminds you that Mr Yuen also when cross-examined, confirmed that he was sure that when he sent her to collect the envelope he told her it was on the sofa. Both versions cannot be right. Either he did not tell her where to find the envelope or he did. Whether one or both of the defendant and Mr Yuen are lying about this or have made mistakes is a matter for you to decide, members of the jury." (page 26 appeal bundle) (Emphasis added).

18 Mr Fenton who appears for the first applicant presents an argument which falls within a narrow compass. He asserts that the suggested lie was upon a collateral issue; in other words, that it did not of itself determine whether or not the applicant knew that there were drugs in the envelope, but that it was used in the way the judge framed the matter as suggestive of guilt, an approach that carried with it the danger of impermissible reasoning by the jury, so that a lies direction should have been given.

The Evidence about the Envelope

19 In her interview of 30 December 2001 with the police, the first applicant had said that her boyfriend had asked her "to go home and get the manila envelope downstairs", which we take to mean that she was asked to collect the manila envelope and bring it downstairs from the flat. She was then asked where the envelope was and she said to the police that it was on the sofa. She was later asked:

"	Q:	How did you know that it was there when he asked you to take the manila envelope downstairs?
	A:	He asked me to go home to take the manila envelope downstairs. I went home and saw it. Therefore I took it downstairs." (page 48 appeal bundle)

20 Later still in the course of the interview she described the delivery of two bags by Yuen outside the block of flats, and how she then returned to the flat before the lunch trip which in turn preceded the afternoon events to which the first count relates. On that pre-lunch return to the apartment she saw, she said, a few manila envelopes on the sofa. She was asked whether it was "an empty manila envelope" and she said that there was something in it, and that it was placed on the sofa. Then they went out for lunch. On their return Yuen "stopped the car downstairs and asked me to go home to get the manila envelope downstairs."

"	Q:	Well, he knew ... which place did he ask you to go to get the Manila envelope downstairs?
	A:	He didn't say. He just asked me to go home and get the Manila envelope downstairs [this is item 210 to which the judge referred and upon which the prosecution relied as inconsistent with her oral testimony]
	Q:	How did you know - - which Manila envelope you were going to get at home?
	A:	When I got home, there was only one Manila envelope with something contained in it.
	Q:	He wanted you to get - - the Manila envelope in which something was contained and then take it downstairs to him?
	A:	Yes."

She added that she did not see what was in the envelope and that she did not ask him either.

"	Q:	How did he ask you to get the things? Can (you) tell (me) what happened at that time?
	A:	I was asked to go home to take the Manila envelope downstairs.
	Q:	Did (he) say anything else? Did (he) say what was contained in the Manila envelope?
	A:	No.
	Q:	Okay, how did you find the Manila envelope on returning home?
	A:	(I) saw it.
	Q:	(You) saw it. Was it the only Manila envelope in the flat?
	A:	No.
	Q:	And also - - you mean there were a lot of Manila envelopes as well, right?
	A:	Yes.
	Q:	Why did you take that Manila envelope?
	A:	It is because that was the only Manila envelope with something inside.
	Q:	That means Ah Chung asked you - - it means you - - that means Ah Chung asked you to get the Manila envelope which contained something inside, is that right? Is that what (you) mean?
	A:	He asked me to take the Manila envelope which contained something inside downstairs. It's not that I was asked to take an empty Manila envelope downstairs.
	Q:	Okay. As to the Manila envelope, before you left, that means, before you returned, er - (you) went out before, did you see this Manila envelope in the flat?
	A:	(I) didn't pay attention to it.
	Q:	(You) didn't pay attention to it. Why were you able to find it eventually when Ah Chung asked you to go upstairs to get the Manila envelope which contained something inside?
	A:	It is because when I went out, I didn't take a look in the flat at all." (Appeal bundle pages 82-85)

21 It will be seen from the tenor of this interview that the question how this applicant knew where the envelope was when she was asked to retrieve one, received significant emphasis at the hands of the interviewer. As we shall shortly see, it received similar emphasis in her cross-examination at trial. Presumably the thought process was that if she had not been told where to find the envelope and what envelope to take, there was to be attributed to her an awareness at all material times of its whereabouts and of the significance of this particular envelope.

22 This interview then is to be compared with her oral testimony which was said to have been materially different, in that in her testimony, she said that she had been told by Yuen specifically where the envelope was that she was to fetch. She explained this difference by saying that when she was interviewed by the police she did not provide full details, and that this was a matter of detail.

Analysis

23 The essence of the complaint, as it must be if there is to be any chance of its success, is that:

(1)	the prosecution was suggesting that her oral testimony was untruthful in its assertion that she was told by Yuen where precisely the envelope was;
(2)	that the prosecution was using that lie in support of the prosecution case, rather than as going merely to the applicant's credit; and
(3)	alternatively to (2), that there was in any event a danger that the lie would be used by the jury as proof of guilt.

24 It is said by Mr Fenton that it did not follow that if the applicant was not told where the envelope was, she must have known that the envelope contained drugs; which issue as to knowledge was the only live issue in the case. The lie, if lie it was, could have been told in order to embellish her defence, and that that is precisely the type of innocent reason for a lie that needs to be pointed out to a jury.

25 Having heard argument on the application, we ordered the preparation of a transcript of the cross-examination of the applicant and of Yuen, and of prosecuting counsel's closing speech to the jury. In the light of what we have there found, it is not necessary to rehearse at any length the principles which have emerged from the cases, and in particular from Yuen Kwai Choi v HKSAR [2003] 2 HKLRD 176. In HKSAR v Chan Boon Nin, 7 August 2003, unreported, we said that:

"... a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.";

and we pointed to that passage in R v Burge & Pegg [1996] 1 Cr App R 163, 172-173, which said that a lies direction was necessary where prosecuting counsel had:

"... identified and sought to prove a particular lie on a material issue which is alleged to be explicable only on the basis of a consciousness of guilt on the defendant's part. This is, as Professor Birch says, a very specific prosecution tactic, quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that in so far as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false."

26 The advantage of the transcript in this case is that it shows what use the prosecution sought to make of the suggested lie, when the applicant and her witness said that he had told her precisely which envelope to fetch by reference to where it was to be found. It is clear that prosecuting counsel suggested in cross-examination that the inconsistency between the oral testimony and the statement made in interview was the result of a deliberate lie (appeal bundle p 130); and that she and the witness had put their heads together to fabricate the lie (pages 150 and 151). In his closing address, prosecuting counsel spent some time emphasizing this inconsistency, and the relevance of her knowledge of the place at which to find and pinpoint, as he put it, the manila envelope which she had been asked to fetch. He then suggested in terms that where they both said in their testimony that Yuen had explained precisely what envelope to fetch and where it was to be found, they had put their heads together and that "these aspects of the accused's evidence, I submit, would help you to determine she knew what the contents of the manila envelope ... were ..."; "these" being a reference to this contradiction as well as to other aspects of the evidence.

27 It is clear therefore that the prosecutor expressly relied on the suggested lie by the applicant and her witness as probative of guilty knowledge. Whether or not it should so have been used is not to the point. The fact of the matter is that it was and, that being so, it was incumbent upon the trial judge to give a lies direction.

28 We note in this case that no invitation was made to the judge to give such a direction. Indeed we see that the issue of a lies direction was raised by prosecuting counsel albeit in relation to another matter altogether; namely, the lie told by the applicant when she spoke to the security guard and said that she and Yuen were merely returning material, when in fact there was no question of any material being returned. We are told that counsel for the applicant suggested, somewhat surprisingly, that in relation to that lie, no lies direction was called for. Whilst the failure of counsel to take the point now taken may be a factor in some cases which will assist in determining the use to which everyone understood a suggested lie should be put, and whilst it may be a factor in determining whether to apply the proviso to section 83 of the Criminal Procedural Ordinance, the applicant is not by counsel's silence at trial estopped from taking the point now.

29 In the event, we think the point is well taken and that the failure to give a lies direction in this case constituted a material omission. We do not think this is an appropriate case in which to apply the proviso.

30 Accordingly, the first applicant is granted leave to appeal against the conviction, we treat the hearing of the application as the appeal, and allow the appeal and quash the conviction and set aside the sentence. We order a retrial on Count 1 of the indictment. The appellant is remanded in custody pending her re-trial.