HKSAR v. YEUNG SHEK KIN

CACC 43/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 43 OF 2015

(ON APPEAL FROM HCCC 126 OF 2014)

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J U D G M E N T

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Hon Pang JA (giving the judgment of the court):

1.  In the Court of First Instance, before Deputy Judge Woo and a jury, the applicant was convicted after trial of Count 1, ‘trafficking in dangerous drugs’[1], contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) and Count 2, ‘possession of an identity card relating to another person’, contrary to section 7A(1A) of the Registration of Persons Ordinance (Cap 177) .  He was sentenced to a total of 9 years and 2 months’ imprisonment[2].  He applies for leave to appeal against both of those convictions.

THE PROSECUTION CASE

The Raid

2.  On 1 August 2013, at 6.30 pm, a team of police officers took up positions outside Flat A, Room C, 1/F Hong Ning Building, 162-166 Cheung Sha Wan Road (“the flat”) and lay in wait for their target person.  This person was a man named LAU who, according to police intelligence, was going to make a visit to the flat.  LAU was wanted in connection with a case of theft and fraud, and not in relation to anything to do with dangerous drugs.

3.  Three hours later, at 9.18 pm, when LAU was about to be let into the target premises, the officers took action to intercept him and to execute their search warrant.  However, their attempt to enter the flat was blocked by the flat’s tenant, the applicant, who, together with LAU, were then pulled out of the flat, handcuffed and made to sit on the floor outside the flat.  When two other men, KWAN and YEUNG, were located inside the bedroom of the flat, they too were taken out to where LAU and the applicant were held in the corridor.

The Bags

4.  A quick search at the corridor revealed nothing suspicious on KWAN and YEUNG.  Although a quantity of dangerous drugs were found inside LAU’s pockets, those drugs were unrelated to the present case and were dealt with separately.

5.  On the applicant, the police found keys to the flat and cash in the sum of HK$13,760.  He let on that his Hong Kong Identity Card was “in a blue bag on the sofa” and, upon being taken back into the flat to retrieve it, that was where the police located the Identity Card in the living room.  As the bag also contained the applicant’s private papers, the police had no reason not to think that it was the applicant’s bag.

6.  The police did not seize this, the applicant’s bag – albeit that two further sums of cash (HK$17,999 and RMB 420) were found in the bag and were seized as exhibits.  Unapprised of the seizure of that cash by the raid party, and seeing no immediate connection between the applicant’s bag and his unlawful drug trafficking (see below), the Exhibit Officer who arrived much later had simply regarded it as part of prisoner’s property.  As a result, only photographs of the bag, but not the bag itself, were taken.  It was common ground that this bag bore a Louis Vuitton-like pattern.

7.  Also of note is the police evidence that YEUNG too was in possession of a dark colour bag.  It did not however have a Louis Vuitton pattern, and was described as a “slanting bag”, or something similar to a “messenger’s bag”.  This bag was later returned to YEUNG[3] who was released and not charged (see below).  Apart from this bag, and the applicant’s bag (the “blue LV bag”), the police were adamant that no other bags were found in the flat.

The Drugs

8.  When the police entered the flat, they could see that a multiplicity of things had been laid out on the coffee table in the living room.  It was as per the exhibited photographs.  They included items which the trial judge said were for “packaging DD”[4]:

“.... like a pile of white plastic paper; resealable plastic bags containing white translucent white sheets; silver coloured pliers; a black gun-shaped electronic scale ....; a roll of tin foil; and so on ....”

9.  Also on the coffee table was the following assortment of dangerous drugs and drug-related items, as was subsequently confirmed by the Government Chemist[5]:

Exhibit No.	Content[6]
P4	11 packets containing of a total of 6.53 grammes of heroin
P5	14 packets containing a total of 4.12 grammes of heroin
P6	7 packets containing a total of 1.13 grammes of heroin
P7	1 packet containing 0.98 gramme of ketamine
P8	1 plastic bag containing 4.68 grammes of heroin and 0.67 gramme of 6-monoacetylmorphine hydrochloride
P9	1 paper tray containing 2.73 grammes of heroin
P11	1 plastic bottle (not examined), 2 plastic bags containing a total of 2.17 grammes of ICE and 1 plastic bag containing 3.68 grammes of heroin
P12	1 plastic bottle (not examined), 2 plastic bags containing a total of 1.52 grammes of ICE and 1 plastic bag containing traces of methamphetamine
P13	1 plastic box (not examined) and 29 tablets containing famotidine (not a controlled substances)
P14	2 foil packs containing 2 tablets containing ranitidine
P15	1 foil pack containing 1 tablet containing zolpidem
P16	1 foil pack containing 1 tablet containing 0.01 gramme of midazolam
P17	1 plastic bottle with cap containing 2 openings connected to a plastic straw and a glass tube (not examined) and 1 plastic bottle containing 38 millilitres of liquid containing 0.05 gramme of a solid containing methamphetamine (after drying)

10.  The largest lot of dangerous drugs to be found in this case was in a shopping bag on the floor near the coffee table (Exhibit P27).  The police were unaware of these drugs until a house search was conducted at 11 pm – a search which, the officers insisted, was witnessed by the applicant.  Referred to as the “golden box” by the judge as a whole, Exhibit P27 consisted of one gold colour box and two packets of heroin[7], respectively 15.45 grammes and 32.60 grammes in weight[8]. Together, this heroin and the drugs found on the coffee table constituted the subject matter in Count 1.                                               

Arrest and Caution

11.  At 9.25 pm, based on what she saw on the coffee table, the woman inspector who was in-charge at the scene arrested KWAN, YEUNG and the applicant for the offence of unlawful drug trafficking.  This took place as a group arrest, as it were, in the corridor outside the flat.

12.  At 9.55 pm, the applicant was served and had his rights explained to him by means of a Notice to Persons in Custody.  At 10.15 pm, the applicant was cautioned, for the first time, and, in response, stated the following: “All the dangerous drugs are mine and they are for my own consumption”.

13.  Back at the police station, be it on the occasion of weighing all the drugs seized (1.50 am, 2 August) or of sign-sealing these drugs into tamper-proof envelopes (8.10 am, 2 August), the applicant had made no complaint to the Duty Officers presiding over those procedures.

14.  Under caution, both KWAN and YEUNG denied having anything to do with the drugs in this case.  They were eventually released without charge.

Street Value, Means and Average Consumption

15.  The total estimated street value of all the drugs found in the flat was HK$102,526[9].  It was not contested that the applicant was a past recipient of Comprehensive Social Security Assistance, ceasing to be one on 30 September 2010[10]. In a statement admitted under section 65B of the Criminal Procedure Ordinance (Cap 221), the average amounts involved in the daily consumption of ICE, heroin and ketamine, in the context of substance abuse, were set out by Professor Tang Wai Kwong, a prosecution expert.

Contact Evidence

16.  It was an admitted fact that fingerprint examination was conducted only on the following items: one electronic scale (Exhibit P24), one box of tinfoil (Exhibit P25), one medicine plastic bottle (Exhibit P23), one medicine glass bottle (Exhibit P23) and one lighter with a stand (Exhibit P22). The result was that “no mark of value was found” on any of them[11]. There being no DNA examination[12], such was the extent of the contact evidence in this case.

Someone else’s Identity Card

17.  During the house search, in a cupboard, the police found one Hong Kong Identity Card relating to a person named TAM, and one rental receipt identifying TAM as the tenant[13].  It was, however, TAM’s evidence that (a) he had lost his Identity Card in 2009 and (b) he had not rented any property during the relevant period[14].  That is the long and short of the evidence on Count 2.

THE DEFENCE CASE

18.  The applicant did not give evidence.  Nor did he call any witnesses.  Based on what defence counsel put to the police witnesses, plus the content of his final address to the jury, the applicant’s version of events can be outlined as follows:

(1) When he answered the door for LAU, there were only three items on the coffee table, namely, one ICE-smoking bottle with straws, one alcohol bottle and one small packet of ICE[15] (2.1 grammes in weight[16]).  It was he who had left them there.

(2) He did not try to block the police.  If he did, he was only concerned that the police might find the small packet of ICE just mentioned[17].

(3) The women inspector did not arrest him.  He was formally arrested by DPC 5376 (PW3). Under caution, he did not say, “All the dangerous drugs are mine .... [etc].”  What he said was: “The ICE in the flat is mine.  The ICE is for my own consumption.  My two friends inside the flat do not take drugs.  They were waiting for LAU.”[18]

(4) It was only at the police station, when exhibits were being sealed, that he realized that there were other drugs in the flat.  He denied knowing anything about these drugs, but was nevertheless told to sign on the tamper-proof envelopes[19].

(5) The blue LV bag belonged to YEUNG, not him.  His was a black Louis Vuitton bag (Exhibit D1), placed not on the sofa in the living room but inside the bedroom.  His Identity Card and private papers were in Exhibit D1, not the blue LV bag.  The blue LV bag was returned to YEUNG upon YEUNG’s release[20].

(6) The drugs must have been brought to the flat by YEUNG.  He could not explain why YEUNG should be so motivated, but YEUNG must have done so using his blue LV bag[21].  The misrepresentation of the ownership of the blue and black LV bags by the police suggested this to be the case[22].

(7) The police blamed him but let YEUNG go because, having found a bag of drugs with no direct evidence against any individual, they thought it easier to make him a scapegoat who lived in the flat[23].  To bolster the case against him, they even set the drugs out nicely on the coffee table to make them “picture-perfect”[24].

(8) The officers were able to stage the state of the coffee table for photographic evidence because he was kept in the corridor for 30 minutes[25]. When he was brought back into the flat, he was taken straight to the toilet and made to sit there for more than two hours.  At no time was he allowed to witness the house search[26].

(9) No specific defence was advanced in relation to Count 2.

ISSUE AT TRIAL

19.  Given the type, quantity and location of the drugs seized, and the packing paraphernalia that were found to be in their vicinity, plus the large amount of cash that the applicant had in his possession, it seems to us clear that a properly directed jury could have convicted the applicant, the flat’s tenant, of unlawful trafficking, provided of course that they would  accept the prosecution evidence, which included the applicant’s unqualified admission of ownership of all the drugs in the flat.  That being the case, the only issue at trial was whether the police witnesses had given truthful evidence or whether a reasonable doubt had been cast on their veracity.

20.  On the last point, we would observe that the police witnesses’ answer to the so-called bag question was that the blue LV bag and black LV bag were in fact one and the same, and that colour was but a matter of light and perception, particularly in the context of a bag having a dark blue-grey surface and a black strap[27].  We should add that nowhere in his cross-examination or final address had defence counsel attempted to offer a theory as to why, if it was found inside YEUNG’s bag, the golden box containing the bulk of the heroin in this case[28] was not placed on the coffee table for staging a stronger case against the applicant.

GROUNDS OF APPEAL

21.  A total of four grounds have been raised on the applicant’s behalf.  Trimmed and pruned, they can be summarised as follows:

Re Count 1

(1) Denials by KWAN and YEUNG that they had anything to do with the drugs[29] were hearsay.  The judge recognised this.  He even described them as inadmissible.  Yet, to the prejudice of the applicant, he referred to them three times in his summing-up.

(2) The judge’s directions on circumstantial evidence and/or the drawing of inferences were flawed in that –

(a) They failed to distinguish between inferences that point merely to possession of dangerous drugs and inferences that go further and point to trafficking.

(b) They played up inferences that could be drawn against the applicant without giving proper regard to the possible neutrality of the primary facts.

(c) They were but a disguised negation of the defence case.

Re Count 2

(3) The judge failed to provide any analysis of the evidence on this count.  All he did in his summing-up was to remind the jury that no explanation had been offered in relation to the discovery of TAM’s Identity Card.  By so doing, the judge was in effect directing the jury to convict on account of the applicant’s silence.

Overall

(7) The summing-up as a whole was unbalanced and biased in favour of the prosecution.

DISCUSSION

Hearsay Denials

22.  Below are the three portions of summing-up where the denials of YEUNG and/or KWAN (“the denials”) were mentioned.  They appear at intervals and do not follow immediately one after the other.  Sequential paragraph numbers are nevertheless inserted for easy reference:

1^st portion[30]

“[1] I have to remind you, this is very important, do not take into account any hearsay evidence against the defendant. Now, what is hearsay evidence? That means some witnesses were telling you about what other people told him. That is not admissible evidence. Now, you heard in the evidence that PW6, DPC241, who was responsible for Kwan Kwok-keung, and PW8, DPC58902, who was responsible for Yeung Wai, Teddy, that these two arrested persons denied they had anything to do with the DD found in the premises. Now, the denial is hearsay. Do not consider that. Do not consider that. But what Kwan and Yeung said to the officers, that they had nothing to do with the DD, must not be taken against the defendant. You see, because if you accept that, the defendant is already guiltybecause there are only three persons in the flat, you understand? Do not accept that evidence. That is not evidence against the defendant. What other people said outside court is not evidence against the defendant.

[2] Now, why is that? Why is there such a rule? Because the defendant was not present when Kwan and Yeung allegedly said this to the officers. The defendant was not there. He did not hear and there are at least two reasons for this evidence not to be taken against the defendant, because, one, he was not present when it was said, he was not able to deny it or give his own version at once, because he can challenge Kwan, he can challenge Yeung Wai, ‘Don’t lie,’ he can say, ‘Don’t lie, that’s yours. Don’t lie, it doesn’t belong to me,’ or things like that, all right? Because he had no opportunity to challenge those persons when they said that to the officers. And, two, Kwan or Yeung is not giving evidence in this court and therefore what was allegedly said by them according to the two officers cannot be verified with this Kwan or with Yeung and could not be challenged against Kwan or Yeung, all right? Because if he gives evidence, Mr Donald is going to ask them, ‘The drugs belong to you,” or “He said he had nothing to do with it.’ You see? So you must not take this evidence against the defendant.”

(emphasis added)

2^nd portion[31]

“[3] PW6, DPC241, he was the person who cautioned Kwan and dealt with Kwan ....  around 9.26 pm, arrest was declared by the woman inspector on the three persons, the defendant, Kwan and Yeung ....  241 cautioned Kwan for the offence of trafficking in DD and Kwan denied it and, as I said to you, Kwan’s denying it is no evidence, all right?  241 seized from Kwan - this is evidence - HK$81 from this person and RMB10, very little money, less than $100.  Kwan was not charged and he was released.”

(emphasis added)

3^rd portion[32]

“[4] Then PW8, DPC58902, Wong Sing-mo, he dealt with Teddy Yeung ....  58902 cautioned Yeung who denied having anything to do with the offence.  Now, again, I have cautioned you not to take this into evidence, this is not evidence.  Yeung denying having anything to do with the offence.  Yeung was not charged and he was released.  That is the evidence.  He was not charged, he was released. That is the evidence.”

(emphasis added)

23.  In his attempt to make good this ground, counsel for the applicant, Mr Donald, has mounted an elaborate argument focusing on the words that we have underlined in the above passages.  For example, it is argued that by saying ‘if the denials were believed, the defendant would be guilty’ (see paragraph [1]), the judge had (a) fallen into the error of a non sequitur, and (b) misled the jury into thinking that no acquittal was possible unless the applicant was able to prove (i) those denials were false or (ii) the drugs belonged to a third party.  This is said to be both prejudicial and tantamount to a reversal of the burden of proof.

24.  Mr Donald argues that, given his preoccupation with the lack of opportunity to verify/challenge these denials (see paragraph [2]), the judge had neglected to instruct the jury what was fundamental, namely, their own deprivation of a chance to see the reliability of these hearsay statements tested out in cross-examination.  Put differently, the jury was never told why the opportunity to verify/challenge these denials was important.  They could labour under the mistaken belief that probative evidence was being ousted by a pure procedural technicality.

25.  It is argued that the impact of the above pitfalls had been aggravated, not lessened, by the judge’s repeated reference to the denials (see paragraphs [3] and [4]).  The caveat to pay no attention to these denials notwithstanding, such references would only serve to remind and therefore enhance the prejudicial leanings that the judge must already have created in the jury, albeit inadvertently.

26.  Putting the impugned remarks in their proper context, we are satisfied that there is nothing more than superficial attraction to this ground.  The subtlety of the nuances that it seeks to rely on suggests that they should have gone completely unnoticed by the jury.

27.  Acase in point is the complaint re paragraph [1].  Given the nature of the proffered defence, which put all the blame on YEUNG, with counsel making it very clear that they were not saying that the police had planted the evidence from outside the flat[33], we are sure that all the jury took the ‘defendant would be guilty’ remark to mean was: (a) the denials directly contradict and therefore undermine the applicant’s defence; (b) unverified and untested, these denials are of an unknown quality; (c) it is unfair to place weight on theses denials and they must be disregarded.

28.  These hearsay denials should never have been adduced into evidence but once they came out, the preferred approach would have been to immediately, and firmly, direct the jury to disregard them, with explanation, and then not to refer to them again.  If the judge felt it necessary to refer to the fact that KWAN and YEUNG had not been charged, he should simply have informed the jury that there was no evidence as to why charges were not brought against them and they, the jury, should not speculate on the reason.  Given what the judge said as a whole, however, we are satisfied that the resounding theme pervading the three portions of summing-up was for the jury to disregard those hearsay statements.  There is nothing to suggest that this direction had not been followed.

TAM’s Identity Card

29.  The above deals with the first ground of appeal.  The following discussion deals with ground three.

30.  The only passage of summing-up that was devoted to the charge of possessing another person’s Identity Card is reproduced below.  It came after some lengthy directions on the drug charge[34]:

“ Because there are two counts, you have to consider the case for and against the defendant on each count separately. You may find, in fact, throughout the whole course of Mr Donald’s cross-examination he suggested nothing about the ID card, all right? There was no mention except he says, ‘Look at the photograph,’ you know. ‘The ID card, why should it be so blatantly staying there next to the rent receipt or tenancy agreement,’ I do not remember. That is all. There is nothing to suggest against the ID card being there. And you have to consider the case for and against the defendant on each count separately. The evidence concerning each count is different and therefore your verdicts need not be the same.”

(emphasis added)

31.  Short as it is, we do not agree with Mr Donald that the judge was directing the jury to convict on account of the applicant’s silence.  It is a fact that the applicant did not give evidence.  Except for the tentative probing that the judge mentioned, it is also correct that his counsel did not raise any defence in relation to the possession charge.  Significantly, it was not alleged that the Identity Card too was brought to the flat by YEUNG.  That being the case, it is not surprising that the judge was content to finish off his above direction by saying, “There is nothing to suggest against the ID card being there.”  That, together with what the judge had already said about the law, also reproduced below, make his overall directions on Count 2 adequate[35]:

“ I have been dealing with the first count, the drugs. The law with that I am going to deal with regarding possession, similarly applies to possession of an ID card, an identity card, which is the second count. As I told you before when we started the trial, Charge 2, Count 2, is the possession of identity card of another person, namely Tam Chi-kuen - that is Exhibit P1, the ID card - without lawful authority or reasonable excuse.

You have heard Mr Donald cross-examine the witnesses and it has not been suggested in this case that the defendant was authorised to possess that ID card or he had a reasonable excuse for doing so.  So the only question for you to decide on Count 2 is whether he possessed the ID card.  The ID card obviously did not belong to him.  It related to Tam Chi-kuen, all right?”

There is nothing in this ground and it must fail.

The Summing-Up as a whole

32.  We move now to the second and the fourth grounds of appeal.  Since these grounds overlap, it is possible, indeed apt, to deal with them together.  To do so, however, requires an examination of lengthy parts of the judge’s summing-up.  These directions appear towards the end of the summing-up, after which the summing-up is for all practical purposes completed.  As before, paragraph numbers are inserted for ease of reference.

33.  Beginning at where it is relevant, the judge can be seen to be dealing with defence counsel’s closing speech.  He said[36]:

“<1> Regarding the matters raised with Mr Donald for the defence, he raised the following issues to ask you to consider and his conclusion is that the prosecution has failed to make you sure of the defendant’s guilt. That is his submission.

<2> Now, he says, one, at the doorway the defendant did not block the way of the officers and he was not resisting. That is how he put to the witnesses. This implies that the defendant had nothing to hide and he did not possess that large quantity of drugs later found in the flat. On the other hand, the following witnesses said that he was blocking the way, namely PW2, the woman inspector, PW6, DPC241, but he says that he was extending his arms to block the way, PW8, DPC58902, and PW10, DPC3910.

<3> Mr Donald stresses the discrepancies about these officers’ evidence on this aspect, but there seems to me to be a commotion outside the premises. You remember when somebody shout ‘Police, freeze,’ you know, and all these officers rushed towards the main gate of the premises and different officers might see things from a particular angle and therefore differently. You see 5376 said he was following the woman inspector and the woman sergeant and he was the last to arrive from that group of three people hiding in the rear staircase and, of course, he might see things slightly differently from what the woman inspector saw and because of the time lapse in between. Of course, you also ask yourself, why should the police officers lie about this matter? The defendant’s own admission is that he had consumed ‘ice’ inside. I mean, the ‘ice’ was for his own consumption he says. Would he not be resisting, in a way? Would he not just say, ‘Hey, welcome officers, come to my flat’ or what? It is up to you.

<4> Now, two, Mr Donald criticised the search being conducted by PW4, 3753, in the presence of 5376. Mr Donald places emphasis on the discrepancies between these two officers making a note on a piece of paper or not and when they made a note on the paper. Also he criticised 3753’s instructions merely to search for drugs or anything illegal, but not in relation to the theft case, as instructed by the Woman Inspector Siu. Now also 5376 said he was with the defendant between 11.32 to 1208 hours, but 5735 said he was with the defendant at 11.15 to 11.56. That is the discrepancy he laid emphasis on.

<5> Three, the defendant only had his coffee table and ‘ice’ pot, one packet of ‘ice’ and an alcohol bottle, nothing else. The other DD items and paraphernalia were only set out there by the police to strengthen the case against the defendant. Now, this is denied by PW2, the woman inspector; PW3, 5376; PW6, 241; PW8, 58902; and PW10, 3710. The officers all deny that there were only three items on the table.

<6> Four, the defendant admitted consuming ‘ice’ to the police officers and this is denied by PW2, the woman inspector; PW3, 5376; and PW4, DPC3753. 5375’s evidence is that the defendant said ‘All the DD are mine and they are for my own consumption.’ You see, the suggestion was that the defendant was only admitting to consuming ‘ice’ and admitting possessing the ‘ice’ inside, but whereas the police officers denied hearing the mentioning of ‘ice’ and 5375’s evidence is that the defendant, after caution, said to him that ‘All the DD are mine and they are for my own consumption.’

<7> Now, five, the defendant complained to the sergeant, Tang Chung-ka, when the DD were sealed that the DD, apart from the “ice” did not belong to him. That is how it was suggested to the witnesses and that the defendant was simply asked to sign the TPEs. This is denied by DPC5375 and 3753, but Mr Donald points out that at 1.52 to 2 pm on 2 August, 3753 said that he was weighing the DD in front of the defendant, whereas 5376 said he gave the defendant a copy of the Notice to Persons in Custody, and that was at 1.55. So there is a discrepancy as to time. How can the two officers do something with the defendant at the same time or within the same period of time.

<8> Six, probably according to Mr Donald, the DD were found from the blue bag shown in Exhibit D3. The defendant’s own bag, that is Exhibit D1, was black and greyish. The blue bag did not belong to him and Mr Donald suggests that it was Yeung Wai, AP4, that the bag belonged to Yeung Wai, but there is no evidence. We have no evidence that the bag belonged to Yeung Wai. 5376 says that the defendant told him that his ID card was in the blue bag on the sofa in the flat. The photos, that is photo 7 and Exhibit D3, do show that this bag was blue. This may support the defendant’s allegation that this blue bag is not Exhibit D1. It may, it may not.

<9> You look at the photograph yourself and examine Exhibit D1 with it, against it, to see whether they are the same bag. As I said, this may support the defendant’s allegation or suggestion that this blue bag is not Exhibit D1, his own bag, but why at the material time outside the flat the defendant tell 5376 that his ID card was in the blue bag, while Exhibit D1 is black and greyish? Why did the defendant describe his own bag as blue bag inside the flat on the sofa to 5376. There is also an alleged mishandling of the bag in Exhibit D3 because although cash was found inside, the $17,990, it was not seized as an exhibit and it had been moved from the sofa to the stool without any good or satisfactory explanation. Now, you may consider that.

<10> The last point of significance mentioned by Mr Donald is that there is no fingerprint, DNA or contact evidence against the defendant.  But consider this, there is also no such evidence against Kwan and Yeung Wai.  No DNA, no fingerprint, no contact evidence of the paper bags, you remember the paper bags, the fingernail clippings from the paper bags to cover the evidence.  Now, you may like to take these matters into consideration for reaching your verdict.”

34.  Next, the judge engaged himself in the matter of circumstantial evidence and inferences.  After reminding the jury that the only direct evidence of knowledgeable possession of any drugs in the case was the applicant’s cautioned statement – whether the full prosecution version or the lesser defence version[37], the judge said[38]:

“<11> .... There is no direct evidence except the confession. It depends on whether you can draw irresistible inference of guilty against the defendant from the circumstantial evidence.

<12-14> [Standard directions on circumstantial evidence]

<15-16> [Standard directions on the drawing of inferences]

<17> In this case there are the following items of evidence. See whether you accept them and then whether you can draw inferences from them.

<18> One, the DD found on the coffee table, plus that found inside the golden box. Now, there is the DD there anyway. Nobody is denying the existence of the DD, although it is suggested by the defendant’s counsel that the DD were not originally placed on the table. But, still, there were DD and the golden box with two rounds of heroin.

<19> Two, the flat is small and the defendant as the tenant and living there must be in possession of these DD items knowingly. He must know. If it these DD items were on the table, if these three items might be hidden somewhere, he may not know, I do not know, all right? But if the DD items, if you accept the police evidence that the DD items were on the table, he must know because he had connection with the drugs, he smoked ‘ice’, he consumed ‘ice’.

<20> Three, his friends, Kwan and Yeung, could not have brought so many items to his flat and put them there. They were visitors. Why should they have brought so many items to his flat. Doing what? For showing him or what? Put them on the table, showing him?

<21> Fourth, he admits consuming the ‘ice’ inside the flat. ‘The “ice” is for my own consumption,’ he says.

<22> Apart from the fact that Kwan and Yeung Wai were there, there is no evidence whatsoever to link these two men with the drugs found in the flat. They were there, they were the defendant’s friends being there.

<23> Six, if what was on the coffee table was set up by the police, why not include the golden box? Why not put the golden box on the table, right? And why include three kinds of medicine, Exhibit P13, P14 and P15? Why get so mixed up with the non-DD? But, of course, Mr Donald suggests that the police did not know they were not controlled substances. The police might believe they were controlled substance. Then how about the golden box then? Why should the golden box be not on the table?

<24> Seven, Kwan and Yeung were inside the bedroom and they would not have been so quick to set up the DD on the coffee table in order to lay blame on the defendant and to avoid trouble for themselves. Now, the defendant said when he left the flat to open the flat for Lau, the coffee table was only with three things, the ‘ice’ bong, his packet of ‘ice’ and also this alcohol bottle. Only three things. Now, if his two friends had been in the living room, they would see the three things, but how would they be so quick as to place other DD so neatly on the table when the defendant just went to open the door and, in fact, despite whether he was resisting or not, the police officers entered the flat really quickly? How could that have happened? And it would be more difficult if Kwan and Yeung were in the bedroom. They did not know what was happening in the living room, how would they have been so quick as to put all these things on the table?

<25> Eight, the defendant’s possessing so much cash as compared with the little cash that Kwan and Yeung had with them. Kwan had less than $100 and Yeung had less than $500 as compared with the defendant, the defendant had over $30,000 on him.

<26> All these may enable you to draw the irresistible inference against the defendant that he possessed the DD for the purpose of trafficking. Now I come to how trafficking can be inferred.

<27> Trafficking can be inferred from the packaging and the large quantities of small items apparently designed to sell in small quantities to abusers. If one were to have dangerous drugs for one’s consumption, one would not have such a large quantity, first, because one is limited by one’s finances. One cannot afford to keep $100,000-worth of drugs for one’s smoking, especially when one is not extremely wealthy, see? And if the drugs were kept for one’s consumption, why should you have it in small pellets, the orange one, the red one, the white one? So many items and this is not only good for sale, is it not, one pellet, I sell one pellet to you at a certain amount of money?

<28> Now, the daily consumption rate and the value of the DD also supports trafficking instead of self-consumption. The defendant could not have so many items and quantities of DD for his own consumption instead of selling and making them available to others and that is trafficking.

<29> Also, the large amount of monies found on the defendant and if you look at those exhibits, I told you 68 to 73 or 74, with numerous $100 notes and small notes. I mean, it is not $1,000 or $500 notes only. There are a lot of $100 with a lot of $20 notes, $50 notes. That adds strength to the inference that the defendant was a drug peddler. Drug peddler is drug trafficking.

<30> Now, on the other hand, the defendant says the DD could have been brought by either Kwan or Yeung or both and they were discarding the DD before the police entered the flat. Obviously when he left the flat there was only one packet of ‘ice’ on the coffee table. That means the DD were put on the table, either by Kwan and Yeung when the defendant entered together with the police later on, all right, within minutes, within a minute or two, in fact, or it was set up by the police and I do not know why the police will have to set up these things in such a neat manner, with proper medicine, without the golden box? Why should they? They may as well find the drugs somewhere in the premises, that will do. The police just set out the DD so neatly on the coffee table in order to make the evidence stronger against the defendant. That is the suggestion. The inference from the neatness of the setting up of the drugs on the coffee table is against the defendant owning or possessing the drugs, because the police would have to set it up. That is the logic you have to consider.

<31> Also there is another point. It is an admitted fact that there was no mark of value, that is the fingerprint, no fingerprint, no DNA found on the various items, but no DNA was tested anyway. No fingerprint of value was found on the various items of alleged packaging paraphernalia and this shows that the defendant had not touched the drugs. That is a strong point. That is a strong point that the defendant had not touched the drugs.

<32> Now, all of these are for your consideration.  You may adopt any of the views if they appeal to you.  But if they do not appeal to you, you can disregard them.  Forget what I said.  You see, although I summarise the thing for you, supposedly I try to make it easier for you, but you can forget them if what I say does not appeal to you, it does not matter.  You are the sole deciders of facts.  You are fully entitled to form your own view on any of the issues and, most important of all, on the question whether you are sure of the defendant’s guilt ....”

35.  Without rehearsing Mr Donald’s detailed submissions in full, not a small number of which appear to us to turn only on how the judge expressed himself and are not truly indicative of any misdirection, we are of the view that ground two and ground four are nevertheless substantiated.

36.  In sum, we are disturbed by two things.  The first is the judge’s mistreatment of the defence case.  We say ‘mistreatment’ because it was wrong for the judge to suggest that (a) there was no discernible reason for KWAN and/or YEUNG to bring drugs to the flat (see paragraph <20>) and (b) there was no evidence to link these individuals to the drugs in the flat except for their presence (see paragraph <22>).

37.  These suggestions are untenable because, when intercepted, LAU was found to be in possession of an unspecified quantity of dangerous drugs.  It is also an admitted fact all LAU, KWAN and YEUNG were men of bad character, each having multiple previous convictions[39]. Specifically, KWAN had two previous convictions for unlawful drug trafficking whilst YEUNG had one[40].

38.  Far from being irrelevant, such background, including the fact that, on his own admission, the applicant was part of the illegal drug scene as a drug user, was sufficient to, as it were, start the applicant’s defence rolling[41].  In the end, it may be that the jury would reject this defence, but this defence must be left to the jury for their decision[42].

39.  As it is, the applicant’s version of events was unjustifiably discredited.  The situation was made worse, we should add, by (a) the judge introducing into the deliberation[43] a scenario that was never part of the defence case, namely, it was KWAN and/or YEUNG who had discarded their drugs on the coffee table to avoid arrest and (b) the judge ruling that scenario out as an impossible feat in the same breath, given the very limited amount of time available for it to be successfully carried out (see paragraphs <24> and <30>).

40.  Conveniently, that leads us to the second disturbing feature of the summing-up.  We have shown how, on an erroneous basis, the judge had sought to traverse the defence case. A more meritorious point was made when the judge posed the searching question as to why, if it was the police who had staged the scene by laying everything out on the coffee table, the officers would have left Exhibit P27, the golden box, in a bag beside the sofa[44] (seeparagraph <23>).

41.  Either way, these and other pointed remarks all took place in the course of the judge instructing the jury on how to “draw inferences” (see paragraph <17>) and, if one goes back a little and observes how he addressed the defence closing speech, the judge can be seen to be offering a reply, even retort, to every point that counsel made (see paragraphs <1> to <10>).  

42.  This makes relevant the comments of the Court of Final Appeal in Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52.  At page 60, in delivering a judgment with which the other members of the court agreed, Chan PJ said:

“26. However, what a judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury and must avoid the use of sarcastic, unnecessary, inappropriate or even extravagant language. See R v Berrada (1990) 91 Cr App R 131. As the Lord Chief Justice said in R v Marr (1990) 90 Cr App R 154 at p 156:

It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge.

27. If a trial judge chooses to make adverse comments on the defence, it is important that the facts on which the comments are based are correctly stated.”

43.  We are satisfied that all of the matters to which we have referred above led to the defence case not being accurately and fairly presented to the jury and to an unbalanced summing-up.

DISPOSAL

44.  For the above reasons, we dismiss the application in relation to Count 2.  We allow the application in relation to Count 1 and, treating the hearing of the application as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.  We will hear submissions on the question of a retrial on Count 1.