HKSAR v. NGIE HON MIU

CACC 357/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 2010

(ON APPEAL FROM HCCC 100/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons for judgment of the Court):

1.  The applicant originally faced trial before Wright J and a jury upon an indictment containing two counts of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and section 159A of the Crimes Ordinance, Cap 200. The jury unanimously acquitted the applicant on Count 1, which was a conspiracy alleged to have taken place between a date on or about 27 January 2007 and a date on or about 8 July 2007 in Hong Kong, but unanimously convicted him on Count 2, a conspiracy alleged to have taken place between a date on or about 11 August 2008 and 28 August 2008. He was sentenced accordingly to 27 years’ imprisonment.

2.  The applicant appealed against his conviction on Count 2. On 27 October 2011 we allowed his application, treated the hearing as the appeal, allowed the appeal, set aside the conviction and ordered a retrial on Count 2. We indicated that we would give our reasons in due course. This we now do.

3.  It is neither necessary nor appropriate in the light of the order we have made to traverse in any great detail the facts of this case. The evidence on both counts came principally from the third prosecution witness, Chan Tin-yu (Chan), who on 28 August 2008 was arrested in Tin Shui Wai in the rear passenger seat of a private car together with two other men. Shortly before the arrest, Chan had been seen by police officers carrying a plastic bag to the car which he then boarded. The driver of the car, who was temporarily away from the vehicle in a nearby 7-Eleven store when Chan had boarded it, then returned to the driver's seat; whereupon the police intercepted the vehicle and arrested the occupants. The driver of that vehicle was the applicant. The plastic bag, which had been placed on the floor of the rear passenger seat by Chan, was subsequently found to contain 4.68 kilograms of methamphetamine hydrochloride, commonly known as “ice”. Upon his arrest and caution, the applicant said “Ah Sir, the stuff is not mine. I only drove the car here to pick up my friend.” The arrangements which led to the trafficking in these particular dangerous drugs formed the basis of the conspiracy allegation in Count 2.

4.  On 30 August 2008 the applicant and the third man who had been arrested in the front passenger seat of the vehicle were released without charge. Over a year later on 11 September 2009 the applicant was rearrested in respect of the drugs seized in the car of which he was the driver. By that time, Chan had indicated that he would give evidence at the trial of his alleged co-conspirators, to which end he had given eight witness statements to the police, the first of which was dated 19 February 2009. On 24 March 2009 before Deputy Judge Lugar-Mawson, Chan pleaded guilty to a single count of trafficking in the drugs found in his possession in the vehicle for which he received a sentence of 16 years and 6 months imprisonment.

5.  In relation to Count 1 of the indictment against the applicant, it was Chan's evidence that on five earlier occasions in 2007 he had smuggled dangerous drugs into Hong Kong from the Mainland at the instigation of the applicant. Although there was some other evidence, such as travel and telephone records, which was potentially capable of providing support in general terms for Chan’s assertions in relation to Count 2, it was common ground that central to both conspiracies was the evidence and credibility of Chan. The distinguishing feature of the two counts was that in relation to Count 2 dangerous drugs were actually found in the vehicle of which the applicant was the driver. It was upon this count that the jury unanimously convicted.

6.  The matter which has caused us to allow this appeal arose in this way. At the commencement of his cross-examination of Chan, which took place on 14 September 2010, the witness was asked by Mr Woon, who is junior counsel at this appeal, whether by giving evidence for the prosecution against the applicant he was hoping to benefit from a further discount on the sentence he had received on 24 March 2009. In view of the later questioning of the applicant by the prosecution and the way in which this matter was subsequently dealt with by the judge it is necessary to set out that part of the cross-examination of Chan in full:

“Q. Mr Chan, can I straight away ask you about the last issue that was raised by the prosecution. Can I ask you this? You are now coming to court to tell the truth, purely because, first, your family has not been threatened and, secondly, you thought that you should now tell the truth to the court. That was the only reason why you came to court to tell the truth?

A. And also I reckon that there’s no reason why three people they traffic in dangerous drugs together and only one person had been punished by law so I came forward to tell the truth.

Q. Apart from this reason was there any other reason why you came to court today to testify?

A. No.

Q. Are you really sure about that, Mr Chan?

A. Yes.

Q. Have you been told that if you testified in court against accomplices you would get another discount of perhaps 20 per cent off from the sentence which you received originally?

A. No one had ever told me that.

Q. No lawyer has ever told you that?

A. He had never told me things like if I come forward to testify then I would have a sentence reduction, things like that.

Q. Have you heard from - anyone from the Correctional Services Department or any cell mate that should you give evidence for the prosecution against accomplices you may get a maximum of 50 per cent off from your sentence?

A. In fact the cell mates would never discuss with others about their cases and as for the CSD officer, those staff members there would never talk with us about our cases.

Q. So none of your cell mates ever discuss about the fact that apart from the usual 30 per cent discount for pleading guilty you may get extra discount for giving evidence. Nobody ever talked to you about this issue, you are saying.

A. Correct.

Q. Do you now know that in fact you may be able to get further discount since you are now in the witness box testifying against an accomplice?

A. I don't know.

Q. Are you asking the jury to believe that you did not know even up until now that you will get further discount should you testify for the prosecution?

A. Put it this way, regarding this matter well it would not be decided by me. Well, it would be decided by the judge so even if you tell me about that I won't believe you.

Q. Of course it's decided by the court eventually but you have that right to make that application to the court for a further reduction of the sentence, that's what I'm trying to arrive at.

A. If you are saying this now, so does that mean that when I go back I can make an application for that?

Q. Were you ever informed by police officers when you were interviewed by them that you can get further discount if you testify for the prosecution?

A. The police had never told me that.”

7.  When we first read this passage, it is fair to say that each of us was rather surprised by some of the answers from the witness. The judge seems also to have been concerned by the import of these answers, for he subsequently summed up to the jury as follows:

“Mr Woon initially raised with Chan whether he was expecting to receive some form of benefit, probably in the form of a reduced sentence, for his cooperation at this stage. As you know, it was only some six months after their arrest that Chan decided to say anything about the involvement of the accused to the police. Chan, you will recall, denied that he had been told by any lawyer, by any police officer, by any Correctional Services officer, or even by any fellow prisoner that, by testifying against others, he might be entitled to a further reduction in his sentence. It is a matter for you whether you accept that evidence.

You should also bear in mind that Chan is testifying under an immunity from prosecution (in relation to Count 1). That is in respect of the events which he said occurred in 2007. Those are matters which you may wish to take into account in assessing the reliability and truthfulness of his evidence. They are matters which may make you feel that you should approach his evidence with caution or particular care, if you conclude that he has a self-interest in the conviction of the accused. Those are decisions for you to make.”

8.  Mr M K Wong SC, on behalf of the applicant, accepts that the judge's directions above, assuming that the warning about Chan's self-interest applied also to his expectation of a reduction of sentence (which the witness did not, of course, admit), were correct as far as they went. However, he submits they did not go far enough because the jury would not have known that, contrary to Chan's assertions, he could indeed expect to receive a substantial extra discount for giving evidence against the applicant (assuming his evidence was found to be truthful). They would have known nothing of the practice of sentencing accomplice witnesses in such circumstances and had no real basis for finding whether he was telling the truth or not beyond his demeanour under cross-examination. Furthermore, he argues that it was one thing for the jury to disbelieve Chan on this issue, it was another for them to evaluate how their rejection of his evidence on the point might impact on his credibility generally. Since there was no way for them to gauge the extent of any gain from giving evidence against the applicant, the jury would, if they disbelieved Chan on this matter, have simply been left in a vacuum wondering whether their rejection of his evidence on the issue was significant enough to impinge on his credibility and to what extent. (As a matter of history, shortly after the applicant's conviction, Chan sought leave to appeal to the Court of Appeal against his sentence out of time. On 29 June 2011 his appeal was allowed and his sentence reduced by 50 per cent from the original starting point of 25 years imprisonment to one of 12 years and 6 months imprisonment.)

9.  Mr Wong submits, however, that there was a further material irregularity in the conduct of the trial which compounded the problem. When the applicant himself gave evidence, he was asked almost at the end of cross-examination by prosecuting counsel why, if he and Chan were friends, Chan should have effectively made up a story against him:

“Q. So if you were friends up to that time on 28 August 2008, why would Chan want to frame you up for these drugs, if you were friends?

A. I don't know. I don't know whether there is any misunderstanding.

Q. Well, you can't seem to think of any, correct?

A. No.

……..

Q. You said that you don't know quite Chan is framing you up, right?

A. Well, right.”

10.  Mr Wong argues that while no exception could be taken to the asking of the question in principle, it was an unfair and unhelpful line of cross-examination, particularly where Chan had steadfastly refused to acknowledge that he expected any benefit in terms of a reduction of sentence by giving evidence against the applicant. Moreover, the prejudice to the applicant was aggravated when, at the end of his review of the applicant's evidence, the judge reminded the jury that the applicant could think of no motive for Chan to lie, but did not go on to remind the jury that the applicant was not required to prove such a motive and that the burden lay upon the prosecution to establish that Chan was telling the truth. He relies in particular upon a passage in the judgment of the Court of Final Appeal in Wong Kwok Wang Warren v HKSAR (2009) 12 HKCFAR 218, where at 235 Chan PJ held:

“The dangers which may arise in the present situation relate mainly to the risk of misuse by the jury of the accused’s answers and the possible adverse impact on the burden and standard of proof. Where such dangers arise, it is important that the jury are reminded clearly and firmly that the accused is not required to prove any motive to lie on the part of the witness, that it is for the prosecution to satisfy them that the witness is telling the truth and that the burden always remains with the prosecution to prove that the accused is guilty of the charge beyond reasonable doubt. In most cases, I do not think specific directions are required.”

11.  What the judge said to the jury in this case at the end of his summary of the applicant’s evidence was that:

“The accused was asked whether he was able to advance any suggestion as to why it may be that Chan would wish to falsely implicate him and he told you that he could think of no reason.”

He then immediately went on to say:

“That concludes my review of the evidence. Before I deal with the issue of your verdicts, let me emphasise that it is not a question of who you believe in this case in the sense of comparing Chan's evidence with that of the accused. That you are not to do. This is because the prosecution bears the onus to satisfy you beyond reasonable doubt of the accused’s guilt.”

12.  Mr Wong submits that in the light of the emphasis which was placed by the judge on the issue of the lack of motive at the conclusion of his review of the applicant’s evidence, his reference to the burden of proof did not adequately discharge the judge's duty to firmly disabuse the jury of the notion that the applicant had to prove a motive for Chan to lie.

13.  Mr Tam, on behalf of the respondent, argues that however surprising Chan's answers might seem there was neither evidence nor even a suggestion that Chan had been told or otherwise knew that by giving evidence, he could expect to receive a further reduction in sentence; still less that the reason for giving (false) evidence was to secure that reduction. Accordingly, the judge’s warning of possible self interest on Chan’s part was sufficient in the light of the dearth of evidence in this regard. Moreover, the jury would have realised from the very questions put by Mr Woon to Chan at the beginning of his cross-examination that, whatever his protestations to the contrary, Chan could in fact have expected to receive a further significant discount in sentence for successfully giving evidence for the prosecution against the applicant.

14.  As for the questioning of the applicant about Chan's motive for lying, Mr Tam placed reliance on an early general direction from the judge to the jury that the applicant did not have to prove his innocence and did not have to prove anything, coupled with the final warning as to the burden of proof at the conclusion of his review of the applicant’s evidence, as providing a sufficient safeguard against the jury straying into impermissible territory. He urges that despite any misgivings about these matters, we can safely apply the proviso and uphold the conviction.

15.  We cannot accept the respondent's argument. It is true that there was no evidence to contradict Chan's assertions that he did not know and did not expect that by successfully giving evidence for the prosecution against the applicant he would receive a further significant discount in sentence (although see paras 18-20 infra). That the jury should have gone to their deliberating room not knowing that Chan could in fact expect to receive (as he ultimately did receive) not only a further discount but a substantial one for giving such evidence was regrettable because without that knowledge they could not realistically determine whether Chan was telling the truth on this issue and, if he was not, how seriously it impacted on his credibility generally. The notion that the jury could somehow divine that Chan could in fact receive a discount and the extent of such discount from defence counsel's questions to the witness does not appeal to us. Indeed, the jury were expressly and correctly told in terms at the outset of the summing up:

“It is important that you remember this, ladies and gentlemen, that questions are not evidence unless the witness to whom they were put accepts the truth, either in whole or in part, of what is put to him in those questions. If the witness rejects what is put in the question, then the suggestion in the question remains nothing more than that. It is simply a suggestion; it is not evidence.”

16.  We are entitled to assume that the jury would have faithfully acted upon that direction. If so, there would have been little basis for the jury to reject those answers which have surprised us and even less warrant for them to have found that Chan did thereby have a self-interest in giving evidence against the applicant by virtue of a supposed incentive which he had denied being influenced by or even knowing about. Accordingly, it is difficult to see from their perspective how the issue could have had any real impact on Chan's credibility. Furthermore, if there were no self-interest, or if that self interest were insignificant, they might have thought there was little or no motive for Chan to lie. In which case, the cross-examination of the applicant as to whether he could think of any motive for Chan to have lied was not merely unhelpful, it was manifestly unfair unless attended by appropriate warnings.

17.  We are not unsympathetic to the position in which the judge found himself when faced with Chan’s evidence that he did not even know about, let alone expect, a reduction in sentence for giving evidence at the applicant’s trial. Notwithstanding that there was no evidence to contradict the answers which Chan gave about his own (lack of) self-interest, the judge rightly told the jury that it was a matter for them whether they accepted that evidence. However, without knowing about the practice or policy of the courts to reward such accomplice witnesses with further discounts in appropriate circumstances and the extent of those discounts, the jury would indeed have been examining the issue in a vacuum and would not have been able to judge its significance in relation to Chan's credibility. Had the trial been in the District Court, the judge as hypothetical jury would not have needed to be informed about these matters because they would form an essential part of his knowledge, experience and training. He would be receiving such answers in evidence armed with that knowledge and experience and be in a position to judge them accordingly. Jurors in the High Court are not in that position. They would not know what the policy or practice of the courts is towards sentencing such witnesses in these circumstances unless they are told. It would have been appropriate for this matter to have been made the subject of a suitably worded admitted fact by the parties. But, in the absence of such admission, the only person who could have told the jury, in the light of Chan’s answers, about the practice or policy of the courts to sentencing such witnesses was the judge himself. It is not a matter of giving evidence from the bench: it is simply informing a jury in general terms, preferably after discussing the matter with counsel, what the policy or practice of the courts is to sentencing such witnesses in appropriate circumstances so as to do justice to an important issue in the case.

18.  The matter, however, does not end there. During the course of argument, we were alerted by a conscientious judicial clerk to the existence in the High Court bundle of a sealed confidential envelope marked ‘Not to be inspected without leave of the court. (Documents submitted by the Defence at the hearing heard in Chambers (not open to the public) on 24 March 2009).’ The hearing concerned was the sentencing of Chan before Deputy Judge Lugar-Mawson on that same day. Inside that envelope was a type written note to the judge dated 24 March 2009, detailing among other things the following information:

“....... Following his arrest the defendant indicated a willingness to co-operate with the authorities; to give information and assistance that could lead to the arrest and charging of his co-accused and other syndicate members. His offer was accepted and the Hong Kong Police Narcotics Bureau has interviewed the defendant.

…….

As a result of the defendant’s non prejudicial witness statement police enquiries continue. At this stage those enquiries are far from complete. To date no one has been arrested or charged. The defendant has been fully cooperative and is prepared to give evidence in court if required.

While it is accepted that for the purposes of the sentencing today, the above cannot be used or taken into account, this information is being presented to the court for the court’s information and as part of the court record for future developments. None of the above will be mentioned in open court today.”

19.  There was no mention at Chan’s subsequent sentencing hearing in open court (the recording of which we had ourselves listened to) of the fact of this note or of any prior Chambers hearing before the sentencing judge. But for the finding of the sealed envelope, we would never have known that there was such a hearing. Accordingly, we drew the attention of counsel for both parties to the existence and contents of this note. They like us were hitherto unaware of its existence.

20.  On one view, the note serves to reinforce our surprise at Chan’s answers to the questions put to him by Mr Woon in cross-examination, while at the same time rather undermining Mr Tam’s position that there was no suggestion Chan had ever been told or otherwise knew that by giving evidence he could expect to receive a further reduction in sentence. It might seem rather unlikely that Chan could have been so cooperative with the police and yet not been made aware at least by his own lawyers of the potential benefit of that cooperation by the time this note was presented to the deputy judge in Chambers at his own sentencing; which was some 18 months before he gave evidence at the applicant’s trial. However, on another view, the note might help to explain why Chan answered those questions in the way that he did, given the obvious secrecy with which his cooperation had been cloaked when he himself appeared for sentence. He may under cross-examination and without the benefit of immediate legal advice have found himself in a dilemma. We do not think we should say anything further on this issue, which will no doubt be explored in evidence at the retrial we have ordered.

21.  For the reasons we have given, we did not consider that on an issue as central as the credibility of Chan it would be appropriate to apply the proviso. Accordingly, we allowed the applicant’s appeal against conviction. We should say that in the light of our resolution of Mr Wong's principal grounds, we do not need to deal with his other supplementary grounds, which we indicated at the hearing would not have succeeded in overturning this conviction.

22.  Given the large quantity of dangerous drugs which were seized from the vehicle in which the applicant was the driver, we considered that this was an appropriate case for retrial, on which occasion the matters which have given rise to our concern will no doubt be fully ventilated before the jury. In the light of our order we awarded the applicant the costs of the trial and this appeal to be taxed if not agreed.