LIN PING KEUNG v. HKSAR

FACC No. 13 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 514 OF 2002)

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J U D G M E N T

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Chief Justice Li:

1.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3.  The appellant was convicted after trial before a judge (Deputy High Court Judge Pang) and a jury of one count of trafficking in dangerous drugs, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  His appeal to the Court of Appeal (Woo VP, Cheung JA and Tong J) was dismissed.  With leave of the Appeal Committee, he now appeals to this Court on the ground that he has suffered substantial and grave injustice.

4.  The appellant’s complaint is that in summing up to the jury, the trial judge had misstated a fact and that this error, together with his comments made on the basis of such error and his failure to adequately direct the jury when they raised questions arising from the misstated fact, had the effect of undermining the defence case and that this was a departure from accepted norms constituting substantial and grave injustice.

The prosecution case

5.  On 5 January 2002, a team of customs officers, acting on information, intercepted a man called Law Chi-lung (“Law”) and took him to his flat at 6^th floor, 262 Lai Chi Kok Road (“No. 262”).  The flat was rented by the appellant and occupied by the appellant, Law and his girlfriend.  Upon entry, the officers saw the appellant sitting on a long sofa in the living room.  They searched the premises pursuant to a search warrant.  In a room occupied by Law and his girlfriend, they found some cannabis which Law admitted to be his and for his own consumption.  Nothing unlawful was found in the appellant’s room.

6.  According to the officers, on the sofa in which the appellant had been sitting, they found two knapsacks.  The zips of the two knapsacks were partly open.  Inside the knapsacks, there were a large quantity of cannabis, “ice” and cocaine which formed the subject matter of the charge, an electronic scale and some plastic straws.

7.  A few hours later, the officers took the appellant and the others to a nearby flat at 6^th floor, 317 Lai Chi Kok Road (“No. 317”) for a search.  Apparently, the officers were already aware of this address because they were armed with another search warrant for this flat.  Nothing suspicious was found. 

8.  After the appellant and the others were taken back to the Customs and Excise Office for investigation, he was interviewed under caution.  The record of the interview showed that the appellant had admitted that

(1)	he and Law moved into the flat at No. 262 about 2 to 3 days before the search;
(2)	Law’s younger sister, Law Wing-chi, had worked for a Wong Kei-wang and was arrested when she was working for him; and
(3)	the drugs in question were taken there by the wife of Wong Kei-wang who asked for the drugs to be put there for the time being since there was no place to keep them after Law Wing-chi’s arrest.  Mrs Wong also said she would take back the drugs a few days later.

The defence case

9.  The appellant gave evidence and Law testified on his behalf.  His case was this.  He, Law and Law Wing-chi had previously lived at No. 317.  After Law Wing-chi’s arrest in mid December 2001, the two of them found a smaller flat at No. 262 and moved in on 2 January 2002.  When Law visited his sister in jail, she asked for her personal belongings at No. 317 to be moved to the new address.

10.  According to Law, his sister’s belongings included several plastic striped bags inside which were the two knapsacks.  The plastic striped bags were then put behind a plastic chest of drawers which was placed in the living room near the sofa in the flat at No. 262.  The knapsacks were in fact found by the officers inside one of the bags, not on the sofa.  Law Wing-chi did not tell her brother what were inside the bags or the knapsacks.  After the appellant and Law had moved to the new address, neither of them had opened or looked at her belongings. 

11.  In a nutshell, the defence was simply this: the drugs belonged to Law Wing-chi and the appellant did not know that there were drugs in the knapsacks.  With regard to the admissions contained in the record of interview, he alleged that they were not made voluntarily and what was said was not true.  In particular, he denied that Wong Kei-wang had employed Law Wing-chi or that Wong Kei-wang had a wife.

The main issues before the jury

12.  It is not disputed that the drugs were found inside the knapsacks at No. 262.  The question is whether the appellant was in possession of the knapsacks with knowledge of the presence of the drugs inside.  Two main issues of fact were in dispute at the trial and had to be decided by the jury.  First, was the appellant in possession of the knapsacks?  Second, did the appellant know the drugs were in the knapsacks?  Relevant to these two issues was the position in which the knapsacks were found: lying on the sofa as alleged by the prosecution or inside the plastic striped bags placed behind the plastic chest of drawers as alleged by the defence?

13.  If the knapsacks were indeed found on the sofa with the zips half open, this goes some way to show that the appellant had possession of the knapsacks with knowledge of the drugs inside, but if the knapsacks were in the plastic striped bags, this would distance the appellant from the knapsacks and would support his contention that he did not know there were drugs.  To establish the position of the knapsacks, the prosecution relied on the evidence of the officers and in proof of the appellant’s knowledge of the knapsacks’ contents, the prosecution relied on the appellant’s admissions contained in the record of interview.

14.  If the jury were sure that the admissions in the record of interview were true and could be relied upon, this would provide the necessary proof of the appellant’s knowledge of the presence of the drugs.  In that case, they would be entitled to reject the appellant’s defence that the drugs belonged to Law Wing-chi and that he had no knowledge thereof.  Conversely, if the jury considered that the appellant’s defence was or might be true, they would have doubts about the truth and reliability of the admissions.  He would then be entitled to an acquittal.  In deciding whether the admissions were true and reliable, all the evidence including the defence evidence, had to be considered.  The credibility of the appellant’s defence was therefore of great importance to the jury’s deliberation.

The misstatement of fact and the judge’s remarks

15.  The judge’s misstatement of fact related to the date of arrest of Law Wing-chi.  The appellant said in evidence that it was in mid December 2001.  Since there was no evidence to the contrary, this must have been accepted as an undisputed fact.  Yet, twice in his summing up, the judge said it was mid October 2001.  That part of the summing up which was criticized is as follows:

“

On the whole, what the Defence wants you to consider is whether the drugs could belong to Law Wing-chi, as what they said?  Or even could they belong to Law Chi-lung?  Of course, you might ask, Law Wing-chi was allegedly arrested in mid October 2001, why didn't the Customs & Excise search her flat until 5thJanuary 2002?  And if it was the Police who informed the Customs & Excise, why didn't the Police themselves search the flat first long before that?”

16.  The error of fact was, it is submitted, compounded by the judge’s two rhetorical questions which immediately followed.  These comments were obviously made on the basis of the wrong fact.  Mr Plowman, SC, leading Mr Newman Wong for the appellant, argues that fundamental to the jury’s consideration of the defence was the period of time which had elapsed between Law Wing-chi’s arrest and the move from No. 317 to No. 262.  This is because, counsel submits, the longer the period of time between these two events, the less likely it is that the drugs had remained undiscovered in the flat at No. 317 if they were indeed there in the first place and the less likely it is that the appellant would not have come to know about their presence; in effect, the longer the period of time, the less likely it is that the defence would be acceptable to the jury.  It is submitted that this misstatement of fact and the two comments in the form of rhetorical questions had the effect of undermining the defence case.

The jury’s questions

17.  Counsel further submits that the effect of this misdirection on the minds of the jury became apparent when they saw fit to raise two questions four hours after they had started to deliberate.  The two questions raised by the jury were as follows:

“	(1)	was the original dwelling place (i.e. No. 317) searched by  the police after Law Wing-chi’s arrest?
	(2)	in this case, did anybody admit/was anybody charged with trafficking in a dangerous drug/drugs?”

18.  The judge, having discussed the matter with counsel for the prosecution and the defence, directed the jury in respect of each question to the effect that there was no evidence either way. 

19.  It is submitted that the answers given by the judge failed to provide the jury with the assistance they required in order to reach a fair verdict.  An adequate direction would be important, particularly when the jury were obviously troubled by what the judge had said in the early part of the summing up as set out above. 

The Court of Appeal’s decision

20.  The Court of Appeal accepted that the judge had erred in directing the jury on the date of Law Wing-chi’s arrest, but considered that

“

… this is not the crucial point in the Applicant’s defence.  In our judgment, this mistake would not have any adverse effect on the jury’s view towards the credibility or reliability of the Applicant’s defence.  The core of the Applicant’s defence is that the drugs and drug packaging tools in the two knapsacks were moved to the new address by him and Law Chi-lung for Law Wing-chi without their knowing what the contents were.  Whether the removal took place 3 weeks or 2 months and 3 weeks after Law Wing-chi was arrested was not the crux of the matter at all.  This Court does not think that this mistake of Judge Pang would affect the judgment of the jury as to whether the Applicant’s defence should be accepted as true or possibly true.  Moreover, whether 6th floor, 317 was searched 3 weeks or 2 months and 3 weeks after Law Wing-chi was arrested is not crucial to the Applicant’s defence either. ”

21.  With regard to the questions asked by the jury, the Court of Appeal held that the 1^st answer given by the judge was correct and, construing the 2^nd question as relating solely to the drugs in this case, considered that the 2^nd answer was also not in error.

22.  It is submitted by the appellant that the Court of Appeal failed to appreciate the significance of the judge’s error and misdirections.

23.  It is interesting to note that in another part of the judgment, the Court of Appeal, quite inconsistently, took the view that a reasonable inference could be drawn from the evidence that the police did not search the flat at No. 317 before 5^th January 2002 and that the evidence in its entirety could show or was capable of supporting the inference that Law Wing-chi was arrested for dangerous drugs.  Of course, if the jury’s second question were designed to ascertain whether Law Wing-chi had admitted trafficking in a dangerous drug – and the question is susceptible of that meaning – the question of Law Wing-chi’s relationship with the drugs in the knapsacks must have been seen by the jury to be an important issue.

Judge’s comments on the evidence

24.  A trial judge is under a duty to summarize the issues and the evidence relating to these issues clearly, accurately and fairly to the jury.  Although the jury are the sole judges of the facts, the trial judge is also entitled to express to the jury his or her views on the evidence, provided that the jury are told in clear and unambiguous terms that those are only the judge’s personal views, that the jury must form their own views on the evidence and that they can ignore the judge’s views if they do not agree with them.However, notwithstanding such direction, it is perhaps understandable that the jury might sometimes attach more weight to the views of the trial judge than those expressed by counsel.  It is therefore important that a judge should be very careful in making comments on the evidence, particularly comments adverse to the accused. 

25.  Where a defence is less than convincing or credible, the judge is often tempted to comment on it with the intention of assisting the jury.  This is permissible.  See Simon Brown LJ in R v. Nelson [1997] Crim L R 234:

“

Of course, the judge must remain impartial.  But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.  Why should pointing out those matters be thought to smack of partiality?”

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 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.

Effect of the judge’s directions

28.  The defence in this case was that the drugs found in the knapsacks belonged to Law Wing-chi who asked to have them brought from No. 317 to No. 262 after her arrest and that the appellant had no knowledge of their presence.  If this defence has any credibility, it would mean that the drugs were inside No. 317 between the time of her arrest and 2 January when they were moved to No. 262.  Common sense dictates that the longer the time between the two events, the higher the risk of the drugs being discovered, the greater the chance that those still residing in the flat would come to know what was there and the less credible the appellant’s allegation.  The date on which Law Wing-chi was arrested (and hence the judge’s mistake on the date) might or might not in itself be significant.  There was no evidence as to what Law Wing-chi was arrested for and no evidence showing that the authorities had any reason to search the premises previously occupied by her.  In fact, it would seem that both counsel for the prosecution and for the defence had either missed the mistake or considered it unimportant since no one raised it with the judge or found it necessary to ask the judge to correct it.  But it is not the mistake of fact alone but also this part of the summing up which gives rise to the appellant’s complaint, and quite rightly so.

29.  In my view, the judge’s error of fact together with his questions immediately following it and the way in which he put them to the jury had the following effect.  By erroneously stating to the jury that the time of Law Wing-chi’s arrest was in mid October (instead of mid December), the judge was suggesting that there was a lapse of 2 months and 3 weeks, not a short period of time, during which such a large quantity of drugs was stored at No. 317.  By asking the rhetorical questions as to why customs officers and the police did not search those premises for such a long time, the judge was implying that those premises had not been searched by the authorities during this period of time.  He was also suggesting that given that Law Wing-chi had been arrested since mid October 2001, if she really had anything to do with the drugs, there was no reason why the police would not have conducted a search of those premises long before 5^th January 2002.  This was tantamount to telling the jury that the appellant’s allegation that drugs belonging to Law Wing-chi had been stored at No. 317 since mid October and were only moved to No. 262 in early January was highly suspicious. 

30.  The judge’s mistake and comments had raised an element of uncertainty and unreliability in the defence.  In effect, he was inviting the jury to doubt its veracity.  But these comments were neither fair nor justified because they were based on a wrong fact, asking the jury to speculate as to why there was no previous search of the flat at No. 317 and drawing the inference that Law Wing-chi was unlikely to be involved in the drugs found at No. 262.

31.  The judge’s adverse comments obviously had an effect on the jury.  For within hours of their retirement, they raised two questions for the judge which touched precisely on the points made by the judge: the possibility of a previous search and Law Wing-chi’s possible involvement.  They were clearly concerned about the truthfulness of the defence.  They would like to know: whether there was any earlier search at No. 317; what was the result of such a search if it had been conducted; and whether any person, particularly Law Wing-chi, was suspected of or connected with drug trafficking, either generally or in relation to the drugs in this case.  Answers to these questions would be highly relevant to their consideration.  As counsel pointed out, the judge’s further direction was not helpful to their assessment of the defence.

32.  It is of course permissible for a judge to make adverse comments on the defence provided it is based on an accurate reflection of the evidence and is fair and balanced.  Whether in the present case, had the judge not made an error of fact, his comments were within permissible limits is debatable.  But making such comments on a basis which did not accurately reflect the evidence is unacceptable. 

33.  Mr Reading, SC, leading Mr David Leung for the prosecution submits that the date of Law Wing-chi’s arrest was not relevant to the issue the jury had to decide, namely, whether the appellant knew the drugs were in the knapsacks.  By convicting the appellant, it is submitted, the jury must be taken to have accepted the record of interview in which the appellant had admitted knowledge of the presence of the drugs and rejected his defence.

34.  I do not agree.  The date of Law Wing-chi’s arrest was relevant to the defence.  The defence was undermined by the mistake of fact and the judge’s adverse comments.  It cannot be said with any degree of certainty that if the jury had been accurately and fairly directed by the judge on the defence, the jury would still have found beyond reasonable doubt that the admissions were true and reliable.  The fact that they were minded to ask those questions indicates quite affirmatively that they were seriously considering those admissions in the light of all the circumstances, including the possibility that the defence might be true, otherwise they would not have found it necessary to have asked those questions. 

Conclusion

35.  The combined effect of the judge’s error of fact, his comments in the form of rhetorical questions and his failure to clarify the situation in his further direction had, in my view, unfairly and unjustifiably cast doubt in the defence case.  With respect to the Court of Appeal, it had failed to appreciate the effect which this part of the summing up might have had, or was likely to have had, on the minds of the jury. 

36.  In my view, there has been a departure from accepted norms resulting in substantial and grave injustice to the appellant.  I would quash the conviction and set aside the sentence.  The prosecution seeks a re-trial in case the appeal is successful and Mr Plowman quite properly accepts that.  I would also order a re-trial.

Mr Justice Ribeiro PJ:

37.  I agree with the judgment of Mr Justice Chan PJ.

Sir Gerard Brennan NPJ:

38.  I agree with the judgment of Mr Justice Chan PJ.

Chief Justice Li:

39.  The Court unanimously allows the appeal.  It quashes the conviction, sets aside the sentence and orders a re-trial.