HKSAR v. CHONG WING HOI

CACC245/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 245 OF 2011

(ON APPEAL FROM HCCC NO 19 OF 2011)

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REASONS FOR JUDGMENT

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Stock VP:

1. Barnes J delivers the judgment of the Court in this case.  I wish however to add that one cannot but be dismayed that legal aid was refused for this application.  It is not simply that it was clearly arguable; it is, rather, that the error in the summing up which constitutes the first and entirely meritorious ground of appeal stood out like the proverbial sore thumb.

Barnes J (giving the Reasons for Judgment of the court):

INTRODUCTION

2. The applicant was convicted after trial of one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars were that he unlawfully trafficked 16.62 grammes of a crystalline solid containing 15.89 grammes of methamphetamine hydrochloride (commonly known as “ice”) on 17 July 2010 outside Sau Wah House in Sau Mau Ping.  He was sentenced to seven years and four months’ imprisonment. 

3. The applicant sought leave to appeal against conviction.  He was unrepresented originally but legal aid was granted to him by Stock VP and consequently he was represented by Mr Philip Ross of counsel. 

4. At the conclusion of the hearing we granted leave to the applicant to appeal against conviction, and, treating the leave application as the appeal proper, we allowed the appeal and quashed the conviction.  We indicated we would hand down our reasons in due course, which we now do.

PROSECUTION CASE

5. The prosecution case was that on the day in question, the applicant was intercepted by the police outside a building where his home was situated.  Upon search police officers found two packets containing the ice in question in his trousers’ pocket.  Upon arrest and under caution, the applicant said “Ah Sir, whatever you say, I have nothing to say” (阿Sir, 你話點就點啦，我無嘢好講啦).

6. Inside the shoulder bag carried by the applicant the police found four mobile phones, HK$12,384 and RMB 16.  The cash was scattered around inside the bag.

7. Further searches on the applicant’s person and search of his home revealed nothing suspicious.

8. The applicant refused to sign the post‑record entry made by the arresting officer and he also refused to sign on the tamper‑proof evidence envelope containing the ice. 

DEFENCE CASE

9. The applicant denied ever having the ice on his person as alleged by the police.  He said he saw the dangerous drug for the first time at the police station.  He denied there was any arrest or caution by the police at the scene, or that he had uttered those words attributed to him by the police. 

10. The applicant said he worked as a contractor in the Mainland and he had just returned to Hong Kong after the project had finished.  As he had to pay his workers, he asked for a loan from a friend and after obtaining the loan of HK$7,500 from his friend, he made his way home.  He was intercepted by the police at the entrance of his building.  A search by the police on his person yielded nothing.  One of the police officers took something out of a flower bed nearby and told his colleagues he (ie the officer) “got something” but the applicant did not see what it was. 

11. The applicant complained of being assaulted by the police both outside Sau Wah House and at the rear staircase of 29^th floor of Sau Wah House. 

12. The applicant refused to sign the notebook as nothing was found on him. 

13. The applicant also explained that one of the four mobile phones found on him did not work; two of them were for communication with his workers; and only one of them was for his own use.  He said he was taking the phones back since the project had completed. 

14. The applicant’s previous criminal convictions were revealed as a result of the successful application by the prosecution for leave to cross‑examine him pursuant to section 54(1)(f)(ii) of the Criminal Procedure Ordinance, Cap 221.  The jury heard that the applicant had 26 previous convictions and many of them involved dangerous drugs, including four convictions of trafficking in a dangerous drug/possession of dangerous drug for the purpose of unlawful trafficking and a number for possession of dangerous drugs.  The applicant admitted he had such previous convictions but said he was no longer a drug addict.  Those offences were events of the past.  The applicant denied that he dealt with dangerous drugs to feed his drug habit, a suggestion that had been pressed by prosecuting counsel in the course of cross‑examination.

GROUNDS OF APPEAL

15. Mr Ross raised two grounds of appeal and submitted that the conviction was unsafe and unsatisfactory.

1^st ground of appeal

16. Mr Ross submitted that the judge erred (a) in failing to rule that evidence of the words attributed to the applicant after arrest and caution were inadmissible; and (b) alternatively, in failing to direct the jury that the jury could not draw an inference adverse to the applicant by relying on those words. 

17. In relation to this ground, Mr Ross’s main contention was that the words “Ah Sir, whatever you say, I have nothing to say” was only an assertion by the applicant that he wished to remain silent.  Such words could not amount to an admission that the applicant was “caught red handed”—as contended by prosecution counsel during the trial. 

2^nd ground of appeal

18. Mr Ross submitted that the judge erred in failing to leave the lesser offence of possession of dangerous drug for the jury’s consideration in view of the evidence adduced in court.

FINAL SPEECHES AND THE JUDGE’S SUMMING UP ON THE APPLICANT’S RESPONSE

19. The prosecutor in his final speech suggested the words uttered by the applicant amounted to an admission, that it meant “the game is up, I’ve been caught red-handed, that’s it”. 

20. Defence counsel in his final speech urged upon the jury that the suggestion by the prosecutor was not the only view they could take—if the jury found that the applicant had indeed uttered those words.

21. The judge said this in his summing up:

“ Now, members of the jury, you have had the chance of observing these three main prosecution witnesses giving evidence and cross-examined by [defence counsel]. It is a matter for you to consider whether these officers are credible witnesses. It is also for you to interpret, using your knowledge of language, Chinese or English, the real meaning of the reply, ‘Ah Sir, whatever you say, I have nothing to say.’ It is for you to interpret that reply, taking into account all the circumstances. I cannot help you. You have to use your commonsense.”

And later on he said:

“… Now, I advise you to approach this issue in three steps: first, you should first decide whether the defendant had said this. As I told you earlier on, it is mainly the credibility of the officers and the defendant. You should consider all evidence and decide whether you believe in the officers or the defendant. Of course, in doing so you should take into consideration all evidence. Now, members of the jury, you should also consider the meaning of that sentence. Is it an admission or a denial, or is it equivocal, because the meaning of this reply may be relevant when you decide whether it is a frame up or a fabrication. Use your commonsense.

   Now, if you are not sure the defendant made the reply, you should ignore it.  But if you are sure that the defendant had made the reply then you should go on to consider whether there is any circumstances, such as improper conduct of the police, that made the reply unreliable.  If there is, you should not rely on it … [reference was made to the alleged assault ] … If there are no such circumstances and you accept that the defendant had made the reply, then you go on to consider the meaning of the reply and how much you could rely on it.  Again, you should take into consideration all the circumstances when you decide the meaning of this reply.  Those are the three stages I advise you to resolve this issue.”

OUR CONSIDERATION OF THE SUBMISSIONS

22. In our view, what the applicant had allegedly uttered under caution by no means necessarily amounted to an admission.  At best, it was an equivocal statement.  Depending on the tone and the way those words were uttered, it could be interpreted to mean that the applicant accepted the fact that dangerous drug was found on him and he had nothing to say; or that he simply let the police say whatever they wanted and did not wish to say anything himself. What was important was he had made it clear that he had “nothing to say”, which could readily amount to an exercise of his right to remain silent.

23. It should be noted that at the Pre‑trial Review, prosecution counsel (not the prosecutor at trial) made it clear to the judge (not the trial judge either) that the prosecution would not adduce either the utterance or the notebook entry during the trial.  However, when the trial commenced, the prosecutor informed the trial judge that the prosecution wanted to adduce both the utterance and the notebook entry.  A voir dire was conducted and both the verbal response and the notebook entry were ruled admissible.

24. It seems to us difficult to construe what the applicant is alleged to have said was an admission but even if such a construction were possible, the one thing the judge did not do—which clearly he ought—is to place before the jury the obvious possibility that the applicant was exercising his right of silence and then to direct the jury as to the effect of that right and that if he may have been exercising that right, no adverse inference of any kind was to be drawn against him from the response which he gave.  This failure in itself constituted a material non-direction and warranted the quashing of the conviction. 

25. We now turn to the 2^nd ground of appeal. 

26. As properly conceded by Ms Lau, it is not disputed that a judge in a criminal trial is under a duty to place before the jury all possible alternatives which are open to them on the evidence, and that the judge is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused: see HKSARv Ho Hoi Shing (2008) 11 HKCFAR 360. 

27. It is true that the defence raised was a total fabrication on the part of the police.  There was never any admission to the possession of the ice in question.  The defence was one of “all or nothing”.

28. However, there was an evidential basis upon which the jury should have been left to determine the alternative of simple possession of the drugs:

(1)  much play was made in cross‑examination of the fact (albeit denied by the applicant) that the applicant was a drug addict who needed, it was said, to feed his addiction.  That assertion was based on the fact that the applicant’s previous convictions which were before the jury included convictions for offences of simple possession;

(2)  the value of the drugs in question was about HK$12,000; not in itself necessarily inconsistent with the possibility of simple possession;

(3)  no trafficking paraphernalia was found at his home; and

(4)  there was evidence that the applicant was walking towards his home at the time of his arrest.

29. In those circumstances the judge should have canvassed with counsel the issue of leaving the lesser offence and, in any event, should have left the issue to the jury.

30. For these reasons, we allowed the appeal.

RETRIAL APPLICATION

31. By the date of this appeal the applicant had served almost three years of his sentence and we did not in the circumstance consider that the interests of justice required a retrial; so that, accordingly, the respondent’s application for a retrial was denied.