HKSAR v. LEUNG WAI KIT

CACC 292/2019

[2023] HKCA 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 292 OF 2019

(ON APPEAL FROM HCCC NO 124 OF 2019)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 9 September 2019, following a trial before Deputy High Court Judge Johnny Chan (the Judge)  and a jury, the appellant was convicted of a single count of trafficking in dangerous drugs, namely 28 grammes of a crystalline solid containing 24.33 grammes of methamphetamine hydrochloride (commonly known as “Ice”)  and 5.99 grammes of a crystalline solid containing 0.36 gramme of methamphetamine, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  He was sentenced to 8 years’ imprisonment.

2.  On 21 September 2021, the appellant was granted leave to appeal his conviction[1], which was unopposed by the respondent as it was accepted that it was reasonably arguable that the Judge’s direction to the jury exceeded proper bounds when he told them to consider whether the failure by defence counsel to cross-examine a police witness regarding an alleged conversation he had with the appellant about the search of his home reflected on the appellant’s credibility: HKSAR v Chan Hing Kai [2]. It was complained that the Judge erroneously endorsed the prosecution’s submission inviting the jury to consider the failure to put this conversation to the police witness (the lack of puttage)  in determining whether the appellant had made up a story and therefore lacked credibility.  On the other hand, the respondent maintained that the conviction should be upheld as there was no miscarriage of justice.

The prosecution case

3.  The issue at trial was whether the appellant possessed the Ice found on him for the purpose of trafficking or for his own consumption. 

4.  It was not disputed that, at about 4:45 am on 25 February 2018, the appellant was stopped by a police officer (PW1)  as he was leaving a flat on the mezzanine floor of a building in Hung Hom, Kowloon.  PW1 took the appellant back inside, and later, other police officers arrived to assist him.  In the flat were a male and female, but nothing illegal was found on them, and they were subsequently released.  The appellant’s waist bag was searched, and found inside were 12 transparent resealable plastic bags containing the dangerous drugs as particularised in the count.  Also found on him were $6,000 in cash and another transparent resealable plastic bag containing 10 empty resealable plastic bags.  He was taken to a flat on the rooftop of the building where he lived for a house search, but nothing illegal was found.

5.  The appellant stated under caution that the dangerous drugs found on him were for his own consumption.  In a subsequent video record of interview, he stated, amongst other things, that he purchased about 10 grammes of drugs for a few thousand dollars in Shum Shui Po from a Vietnamese male.  He said he usually consumed 1 to 2 grammes of Ice daily at home using a hookah (a device for consuming Ice).  The $6,000 cash found on him was his own money, of which $4,000 was his salary.  He intended to use the money to pay for family expenses.  He had gone to the flat to find his friends, who were unaware of his drug habit, or that he had drugs on him.

6.  A urine specimen was taken from him on the following day, 26 February 2018, which tested positive for amphetamines and cannabis. 

7.  An expert gave evidence at trial that it was very rare for someone to consume 1 to 2 grammes of Ice per day and that such a consumption rate would cause serious harm to a person.

8.  The total quantity of 33.99 grammes of Ice had a street value of $17,471 at the time of the offence.

The defence case

9.  The appellant elected to testify at trial.  His defence was that he was not trafficking in the dangerous drugs in question because they were for his own consumption.  He explained that he could consume 1 gramme of Ice a day because he had been a drug user since 2012[3] and had a high tolerance for drugs[4]. After work on the day in question, he purchased the Ice for $8,000 from his friend “Ah Au” in Sham Shui Po, which he was told weighed 20 odd grammes.  He admitted that he had lied about the supplier and quantity of drugs in his video recorded interview because he feared that Ah Au would cause trouble for his family and arrange for him to be beaten up in custody[5].

10.  The appellant said that before his apprehension, he had taken Ice in the toilet of his home, after which he placed the hookah on top of the water closet.  He confirmed that when PW1confronted him, he told him that the drugs were for his own consumption.  The appellant’s statement to this effect was recorded in the police officer’s notebook.  He said he also told him when they went to search his home that he had a hookah in the toilet, but the police did not search the toilet nor seize the hookah as an exhibit[6]. The alleged conversation the appellant had with PW1 about the hookah was not put to the police officer when he testified.  Prosecuting counsel made a significant issue about this omission during the course of the trial. 

The evidence regarding the hookah

11.  The alleged conversation about the hookah first arose in the following questions and answers of the appellant’s examination-in-chief [7]:

“Q. So your hookah was placed on top of [the water toilet flush], over there, right?

A. Yes. Because it’s very tall, very high.

Q. Did the police go into your toilet and search around this area?

A. No.

Q. So they didn’t go to the toilet; okay.

Court: Did you want the police to find the hookah which supported your case that you bought the drugs for self-consumption?

Mr Pannu: My Lord, that might be perhaps too much to ask of the witness, to -- very well, my Lord. If you...

Court: Yes. Did you want to tell the police you had a hookah in the toilet?

Q. His Lordship wants to know why didn’t you tell the police, ‘Look, you know, this is a thing I have for my own self-consumption’, that’s his Lordship’s question, which is a fair one.

Court: ‘I have a hookah in the toilet to be used for consuming “Ice”’?

A. Actually, this question was -- actually, a question was put to me by the police officer when they went to my premises to do a house search.

Court: What did they ask you?

A. The officer asked me what else do I have in my home, then I said, ‘Nothing else except a bottle on top of the water closet.’

Q. But did they go into the toilet?

A. No. They entered my premises and talked to my girlfriend for a short while and then they left already. They asked my girlfriend whether this is your boyfriend. I came to take a look at this flat.

Q. I see. His Lordship’s question was why didn’t you voluntarily say, ‘Hey, come into the toilet. This is my hookah. I use this’, you know, that’s his Lordship’s question.

Court: I think he said, when he was asked whether there was anything else in the premises, he told the officer that nothing else apart from a bottle on the top of the water closet.

Mr Pannu: Yes, my Lord.

Court: He did tell the officer there was a bottle.

Mr Pannu: He did. Perhaps the officers didn’t see ‒ bothered about that.

Mr Kuan: It wasn’t put to the officer.

Court: Yes.

Mr Pannu: Right. Was not necessary to put it to him, to expose the officers not performing proper procedures, protecting the officers.

Mr Kuan: My Lord, that’s a matter for...

Mr Pannu: Yes. It’s a matter for submissions.

Court:  It’s a matter for submissions and cross-examination.” 

Mr Pannu:  Right.  I don’t want to get the officers in trouble.  Officers are already in big trouble in Hong Kong.  Let’s carry on.

Q.  So the question from his Lordship was why didn’t you tell them, take it out and say, ‘Hey, this is it’?  Why?

A.  Because the police said, ‘There’s no need for you to say that much as long as you admitted that the bag of dangerous drug belonged to you.’” (Emphasis added)

12.  When the appellant was cross-examined by prosecuting counsel, he raised the issue of the alleged conversation about the hookah.  He suggested to the appellant that this conversation had not been put to PW1 because he was making up a false story, which the appellant denied[8]:

“Q. Well, of course, the police say, you’ve heard that they didn’t find any -- they didn’t find the ‘Ice’ pot in the toilet, you remember you hear that.

A. But I did tell him.

Q. And now, you are telling us that you did tell the officer?

A. Yes.

Q. That the hookah was in your toilet?

A. Yes.

Q. Did you have heard your counsel cross-examining the police?

A. Yes.

Q. It based on your instructions.

A. Yes.

Q. It was not put to the officer that you said you told the officers “There was hookah in my toilet”, you remember that, don’t you?

A. Can you say it again, I don’t understand.

Q. Well, basically your counsel acting on your behalf, did not say to the police, “My client told you ‘I had a hookah.’”, you agree with that, don’t you? It’s all on record.

A. Yes.

Q. So which is why I suggest you are making this up now?

A. Disagree.” (Emphasis added)

The closing speeches regarding the hookah

13.  The issue of the alleged conversation about the hookah and the failure by the defence to put it to PW1 featured prominently in counsel’s closing speeches.  Prosecuting counsel focused particularly on this point.  He stressed to the jury that it was significant that defence counsel did not put to PW1 the alleged conversation about the hookah and invited them to consider that the failure to do so meant the appellant had made it up in the witness box[9]:

“Now, what we say is more important is about his other lies. Right. Now, about that, there are other matters which he mentioned for the first time when he’s giving his evidence, about he said he told the police officer there is a hookah, this ‘Ice’ bottle, ‘Ice’ pot, in his toilet. He said for the first time when he was in the witness-box, ‘I told the officer that there is an ‘Ice’ pot in my toilet, but they didn’t search for it.’ Now, this was not -- the police officer, PW1, was not challenged. What is the important point with that?

Legally, it is very important for us, for lawyers, to give the witness a chance to reply to a different version. If I say, ‘Actually, you didn’t do this, you didn’t do that’, you have to give the witness a chance to explain. If the defendant really did say, ‘I told the police that there’s a hookah in my toilet’, I need to tell this officer, ‘Officer, what you are saying is not the truth. My client says he told you he’s got a hookah in his toilet and you didn’t search for it.’ You need to put it to him. That’s what we say. We need to put this version to him and give him a chance to explain.

So what does that mean? It wasn’t put my learned friend and my learned friend was questioning based on instructions given by Mr Leung. That means Mr Leung did not tell my learned friend about this version. What does that mean? That means he made it up in the witness-box. That may be the case. So that’s the importance of not putting a case and shows he’s making it up in the witness-box. That’s one thing for you to consider. Was he making it up? We say he is.” (Emphasis added)

14.  Defence counsel, in response, told the jury that there were other innocent explanations for the failure to put the alleged conversation about the hookah and requested them not to speculate[10]:

“Now, my learned friend has made a very big meal about me not putting certain things to some witnesses. I’ll go to that detailed point a bit later on when I touch on the evidence, but just to nail it right now, we get instructions from the instructing solicitors. They get instructions from them, all right, and he’s been detained since his arrest. We don’t visit our client every day. We are very busy people, okay, so remember that. The next thing is if I did not put any matters to him, that doesn’t mean maybe he has not told me. Maybe I have failed my duty. Let’s not speculate. Okay? So please let’s not speculate.” (Emphasis added)

15.  Defence counsel went on to make the point that the issue about the hookah was irrelevant because it was established that the appellant consumed Ice.  He said[11]:

“…, his Lordship, quite rightly in my view, his Lordship was fair when his Lordship said to the defendant, ‘But why didn’t you tell the police you have a hookah? That helps your case’, as a consumption. Let’s think about this hookah. Let’s not make it like a very big point. Let me tell you why.

We know he consumes ‘Ice’. We’ve got a urine report, okay. The points would have been more relevant if there’s no urine report, so actually he’s lucky he was detained. If he had bail, then we would not have this Lai Chi Kok prison’s -- because he’s been detained until now after his arrest, and the prison department has got a requirement, every prisoner needs a body check and urine check, whatever, right? So therefore we have a urine report taken on the next day of his detention. Therefore, he shows he takes ‘Ice’ and he has got cannabis in his urine.

Imagine if he got police bail; we would not have had that report and now that becomes a big point. So then, ‘You say you take “Ice”. Where is your hookah?’ You understand what I’m trying to say? But now whether or not we have a hookah, whether or not they seize or not seize does not matter. We know he is on ‘Ice’. We also know ‘Ice’ could be -- you heard evidence, it could be smoked with a hookah, with a bong, and the smaller crystal could be sniffed, right? So let’s not make this big hookah point like a mega point. It’s actually irrelevant, in my view.”

The summing-up

16.  The Judge during his summing-up, directed the jury that they were entitled to take into account the defence’s failure to put matters to a witness on which the appellant gave evidence in their assessment of his credibility.  He reminded them of the prosecution’s submission that the failure to put matters to the relevant witness indicated that the appellant was making up a false story.  He instructed them to consider the degree of importance of the matter and whether it should have been put to the police officer in deciding whether this affected their assessment of the appellant’s credibility [12]:

“Now, during cross-examination of the defendant it was pointed out that there were matters he told you had not been put to the relevant witness for the witness to respond. Despite so, what the defendant told you is evidence and you must take it into account in your consideration. However, the fact that such allegations had not been put to the relevant police officer for him to respond is a matter which you are entitled to take into account in your assessment of the credibility of the defendant. In this regard, the submission upon which [the prosecutor] made to you is that it was an indication that the defendant was making up false stories as he went along in giving evidence, otherwise his counsel would have put those allegations to the relevant witness. Whether you agree with this view is a matter for you.

You may ask yourself would it be an indication of the defendant making up a story to you. In this connection you may wish to take into account the degree of importance of the matter and consider whether it is a matter which should have been put to the police officer. Whether this matter affects your assessment of the credibility of the defendant is, as I said, a matter for you.” (Emphasis added)

Discussion

17.  The rule in Browne v Dunn [13] requires that a witness be given the opportunity to explain a matter of substance if the opposing party intends to later contradict or discredit the witness about it.  The purpose of the rule is to secure fairness in the conduct of adversarial proceedings, which is particularly important in criminal trials.  What can or should be done, if anything, will depend upon the nature and context of the failure to comply with the rule.  This will involve a consideration of the various remedial measures available to the court to ensure a fair trial.  The relevant principles and the approach to be taken when the rule is not observed have been comprehensively addressed in Chan Hing Kai.  A key consideration when addressing a material failure to comply with the rule is to remedy any unfairness but to do so without any adverse consequence to the fair trial of the accused. 

18.  In the present case, the appellant contested the charge that he was trafficking in the drugs on the basis that he purchased them for his own consumption.  It was an admitted fact that he had tested positive for amphetamine and cannabis after he had been arrested for this offence[14].  It was accepted that he was a drug abuser.  He testified that he had a hookah on top of the water closet inside the toilet of his flat, where he would consume the drugs. 

19.  In cross-examination of PW1, defence counsel put to him that there was a hookah on the water closet inside the toilet of the appellant’s flat, to which he said he did not see it, and that he failed to seize it because he did not search the flat properly, to which he disagreed[15].  Defence counsel omitted to put to PW1 that the appellant told him he had a hookah inside the toilet. However, this omission has to be assessed in context.  First, in respect of what had been put to PW1 that there was a hookah in the appellant’s flat which he failed to seize.  Secondly, in respect of what was in issue in as much as there was no dispute that the appellant was a drug abuser who consumed Ice and used a hookah to smoke it.  He testified that the water closet was very high on which he placed the hookah, but the police did not search the toilet.  The Judge asked him whether he told the police that he had a hookah inside the toilet. He said he was asked by PW1 when they went to his flat to do the house search if there was anything else at his home, and he had told him, “Nothing else except the bottle on top of the water closet.”  The police were dismissive about the hookah as long as he admitted the drugs belonged to him.  He also mentioned that when the police went to his flat, they did not go into the toilet but spoke to his girlfriend, who was present at the time[16]. 

20.  Prosecuting counsel attacked the appellant’s credibility in cross-examination over this matter, emphasising that defence counsel had not put this conversation to PW1 when he cross-examined him.  He put to the appellant that he was making it up, to which he disagreed, insisting that he told PW1 about the hookah[17]. Prosecuting counsel continued emphasising the matter in his closing speech to the jury.  He explained to the jury the concept of the rule in Browne v Dunn, and invited them to draw an adverse inference against the appellant that his evidence was a recent invention.  In response, the defence counsel, in his closing speech, provided an innocent explanation for the lack of puttage and asked the jury not to speculate.  He explained that as an advocate, he received his instructions from an instructing solicitor, and sometimes difficulties arose in obtaining and remembering those instructions.  He said the fact that he did not canvass a matter in the examination of a witness did not necessarily mean he was not told about it by the appellant, and may have simply reflected a failure on his part.  When prosecuting counsel pointed out the lack of puttage during the appellant’s evidence-in-chief, defence counsel replied that it was “not necessary to put to him” and went on to give an explanation[18].

21.  The Judge did not have the benefit of the decision of Chan Hing Kai, which was handed down four months after the appellant’s trial when addressing the lack of puttage in his summing-up to the jury.  Whilst he directed the jury in neutral terms on the issue, as raised by the prosecution, he did not refer to the defence response, which would have at least given the issue a balanced perspective.  As was noted in Chan Hing Kai, a failure to put a matter to a witness may be due to a myriad of reasons that do not reflect on the accused’s credibility.  However, the jury was invited to consider whether the appellant had given false evidence about matters not put to a witness in assessing his credibility.  Only in exceptional cases should a trial judge consider directing the jury that an adverse inference as to credibility may be drawn against an accused in consequence of the rule in Browne v Dunn not being observed. 

22.  There is no absolute rule as to how a witness’s evidence should be challenged if it is intended to contradict it.  The method and manner of the challenge will depend on a variety of factors and circumstances, including the subject and significance of the contradictory evidence; the status and quality of the witness, such as a child or vulnerable witness, or an evasive or unresponsive witness; and the nature and issues of the case.  In a typical case, the cross-examiner asks questions of the witness that are sufficient to put the witness on notice that he intends to impeach the witness’s evidence on a matter and to provide him an opportunity to explain his position.  Depending upon the subject matter, it does not necessarily involve a direct confrontation with the witness by examining the matter in minute detail. The challenge may be apparent by how the case is being conducted, the general line of questioning or the cross-examination of another related witness.  It may not be necessary to put questions in cross-examination if a witness has given evidence about a matter that is patently incredible or if it has been made plain in some other manner that the evidence of the witness is challenged: Wong Wah Yee v HKSAR [19]. Sometimes it will be sufficient for the “raised eyebrow” approach to discharge the duty of counsel in this sense: Lo Chun Nam v HKSAR [20].

23.  The consequences of failing to cross-examine a particular matter need to be considered in light of the nature and course of the proceedings.  The remedies usually applied are either to allow the party to recall the witness or to take the failure to cross-examine into account in evaluating the weight to be given to the evidence in question, although this should be assessed with other evidence adduced at trial.  Only in exceptional cases should the judge consider directing the jury that an adverse inference as to credibility may be drawn against the accused as a consequence of the breach.

24.  It is open to a judge to direct the jury that they can take into account the lack of puttage in assessing the weight to be attached to an accused’s evidence on the matter in question.  But when the lack of puttage is relied upon to attack the accused’s veracity and credibility, the issue needs to be approached with care and circumspection because it could result in serious unfairness to the accused when the case against him is assessed on a failing by his counsel rather than on the evidence presented by the prosecution.  This is why when such an issue arises, all available remedial measures should be reasonably explored and exhausted.  In any event, the direction to the jury should be in line with what is laid out in Chan Hing Kai[21].

25.  The respondent submitted that the direction did not exceed proper bounds, and if it did, the irregularity was not material, given the practical effect of the direction.  It was argued that the significance of the conversation in the context of the case as a whole was minor, and it was unlikely the jury would have placed much weight on it in determining the appellant’s credibility.  The simple answer to this submission is that it was not a minor matter.  It played a prominent role in prosecuting counsel’s attack on the appellant’s credibility and was significantly emphasised by him in his closing speech to the jury. 

26.  In our view, the directions to the jury exceeded proper bounds because they sought to attribute a failure by defence counsel to put a matter to a witness due to the appellant’s lack of veracity and credibility without laying the requisite and onerous foundation for doing so.  Furthermore, we consider the matter was given far greater prominence by the prosecution than it deserved and became an inflated issue in the case against the appellant.  Through no fault of the Judge, the matter was not properly addressed or directed as required.  As a consequence, his directions to the jury inappropriately encouraged them to take it into account in assessing the appellant’s credibility. 

Conclusion

27.  For the foregoing reasons, we allowed the appeal, quashed the appellant’s conviction for unlawfully trafficking in a dangerous drug and substituted for it a conviction of possession of a dangerous drug.  We were informed that the appellant had served the equivalent of a sentence of 6 years and 3 months’ imprisonment, taking into account a remission of one third for good conduct, and ordered that the appellant be sentenced to the time he had already served.

28.  We substituted the conviction pursuant to s.83A of the Criminal Procedure Ordinance, Cap 221, having been satisfied that (1) the substituted conviction was for an offence of which the jury could, on the indictment, have found the appellant guilty; and (2)  the jury would have been satisfied with facts which proved the appellant guilty for the substituted conviction: Hau Tung Ying v HKSAR[22]. Those conditions having been met, we were also satisfied that the substitution served the public interest and was fair to the appellant.  As stated by Chan PJ in Hau Tung Yin:

“68. If the conditions in s.83A are met, the appellate court has a discretion whether to substitute a conviction on the other offence for the conviction on the offence which it has quashed. This depends on the justice of the case, including on the one hand, the public interest in having a guilty person properly convicted and on the other hand, whether it is fair to the accused to convict him on the other offence.”