HKSAR v. CHAU YUI MING (周銳銘)

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2019

[2019] HKCFA 39

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2019 (CRIMINAL)

(ON APPEAL FROM CACC NO. 441 OF 2015)

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J U D G M E N T

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Chief Justice Ma:

A. INTRODUCTION

1.  The Appellant in this appeal was convicted[1] of trafficking in dangerous drugs contrary to ss 4(1)(a) and (3) of the Dangerous Drugs Ordinance[2] on an indictment containing a single count charging him with this offence.  The particulars alleged that he had trafficked in 86.10 grammes of a crystalline solid containing 85.70 grammes of methamphetamine hydrochloride (ice) and 2.88 grammes of a powder containing 2.08 grammes of ketamine.  These drugs were found in two different places but the drugs were included in a single count.  One of the principal issues therefore was whether the Appellant was in possession of the drugs found in each of the two different places.  At trial, the judge summed up to the jury on this issue on an all or nothing basis meaning that in order to convict, they had to be satisfied that the Appellant was in possession of the drugs found in both locations; it was not enough that they were satisfied that he was in possession of drugs in only one of the places.  The jury convicted the Appellant.  The Appellant sought leave to appeal to the Court of Appeal[3] on the ground[4] that the trial judge ought on his own initiative to have ordered the indictment to be amended so as to divide up the single charge into two or even three separate charges, thereby enabling the jury to decide on these separate charges and if appropriate to arrive at different verdicts in relation to them.  It was said the judge erred in leaving the matter to the jury on an all or nothing basis.  The Court of Appeal, by a majority,[5] refused leave to appeal but certified two questions[6] for this court based on the Appellant’s contentions.  On 21 March 2019, the Appeal Committee[7] granted leave on the two questions and also on the basis that it was reasonably arguable that the judge’s directions to the jury resulted in substantial and grave injustice.

2.  The two questions for which leave to appeal was granted were:-

“(a) Whether on a single count of trafficking in dangerous drugs which involves different quantities and types of drugs, and where there is evidence to support a number of possible defence scenarios in trial (i.e. primary and secondary defence strategy), the prosecution should have applied to amend the indictment to allow for alternative counts of unlawful trafficking in dangerous drugs for the different defence scenarios?

 (b) If the answer to (a) is no, then whether the court should direct the jury that it was an ‘all or nothing case’ thereby depriving the jury of other verdicts which could be open to a defendant?”

3.  In the context of the facts of the present case, the issue arising from these questions, and this is also the issue under the substantial and grave injustice ground, is whether there was a duty on the trial judge to have required the single count of trafficking in dangerous drugs to be amended so as to enable the jury to decide on different charges instead of only a single charge, it being said that there was evidence to support different factual scenarios and notwithstanding that this was not the course submitted by either the prosecution or the defence.  This issue raises broader questions as to the approach which should be adopted in relation to alternative verdicts.  It is first convenient to deal with the facts of the case in more detail.

B. FACTS AND THE TRIAL

4.  The indictment charged as follows:-

“STATEMENT OF OFFENCE

 Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

 PARTICULARS OF OFFENCE

 CHAU Yui-ming, on the 17^th day of March, 2015, at Room A, Mezzanine Floor, Nos. 535-539 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 86.10 grammes of a crystalline solid containing 85.70 grammes of methamphetamine hydrochloride and 2.88 grammes of a powder containing 2.08 grammes of ketamine.”

5.  The prosecution case was simple.  On 17 March 2015, when the Appellant was leaving the premises stated in the indictment, he was intercepted by a police officer. The Appellant tried to go back into the premises and, after a struggle with three police officers, he was subdued.  The Appellant had a sling bag across his chest, in which were found two packets suspected to contain dangerous drugs. Upon being arrested and cautioned, he said that the drugs were for his own consumption and were also to be given to his friends.  The two packets were later confirmed to contain 22.60 grammes of ice.  Also found in the sling bag was cash in the amount of $29,440 and on him were also found keys to the premises.  Inside the bedroom of the premises was found on a bedside table a black bag in which there were ten packets containing 63.10 grammes of ice and one packet containing 2.08 grammes of ketamine.  Electronic scales and an ice pot were also on this table.  A woman, known as Wai Wai, was present in the bedroom when these drugs were found.  Upon being further cautioned, the Appellant said that the ice in the black bag belonged to him and had nothing to do with his girlfriend (presumably he was referring to Wai Wai).  Later, at Cheung Sha Wan Police Station, the Appellant essentially confirmed the verbal admissions he had earlier made in the flat.

6.  The defence case (the Appellant gave evidence) was that he was not in possession of any of the drugs found in the sling bag and black bag, and that the whole case against him was fabricated.  He was merely visiting Wai Wai that day, being one of her regular customers (she was apparently a prostitute), when the police entered the premises and accused him of being in possession of the drugs.  As for the admissions allegedly made by him, they were extracted by force.  The video recorded interviews he gave at the police station were also made involuntarily.

7.  In the conduct of the case and treatment of the evidence, neither prosecuting counsel nor defence counsel sought to distinguish between the Appellant’s possession of the two lots of drugs which the prosecution alleged were contained in the sling bag and black bag.  Specifically, it was no part of the defence case that the Appellant was in possession of the sling bag only but not the black bag.  Nor was it a part of his case either as far as the ketamine was concerned that he was in possession of that drug for self‑consumption only. His principal case on the facts was that the whole prosecution case was a fabrication and that he had nothing to do with any of the drugs mentioned in the indictment.  He also denied that he had keys to the flat.  He admitted that money was found in his possession but said that these were the result of winnings from football betting.

8.  After the evidence in the trial had closed, but before final submissions, prosecuting counsel[8] raised for the first time before the judge (but in the absence of the jury) the possibility that the Appellant might have been in possession of only the drugs found in the sling bag but not those in the black bag.  Counsel indicated to the judge that even if this were so, the jury could still convict on the basis that they needed only to be satisfied that he was in possession and control of the drugs in one of the bags; in other words, that it was not necessary for a conviction that the jury had to be satisfied he was in possession and control of the drugs in both bags.  This elicited an immediate response from defence counsel who indicated that this position was “directly contrary to what my submissions are going to be to the jury”.

9.  Prosecuting counsel then addressed the jury along the lines that he had indicated to the judge and said:-

“You will receive directions, it won’t be today, and it may indeed not be till Tuesday morning, but you will receive directions, and I hope that I shall be right in saying the prosecution do not have to satisfy you that all the drugs were in his possession or control, and that they were, at least in part, for trafficking. They must satisfy you that some of the drugs were in his possession or control, and in part, for trafficking.

 And if, even at the end of the day, in the face of what we say is strong evidence, strong, compelling evidence, you are satisfied only with regard to the drugs in the sling bag, you would then return a proper verdict of guilty to the charge that he is facing.”

10.  When defence counsel addressed the jury, it was made clear that the case was an all or nothing one meaning that the jury could only convict if the prosecution proved that the Appellant was in possession and control of the drugs found in both the sling bag and the black bag.  Counsel said this:-

 “Members of the jury, if, for any reason, you decide that the two packets of “Ice” that the police claim they found in the defendant’s sling bag was his, and only those two bags were his, then you must find him not guilty, before you can find him guilty of the charge, you must be satisfied beyond reasonable doubt that all the dangerous drugs that the police alleged in the indictment was his, before you can convict him.  It’s all or nothing, not guilty.”

11.  In the course of his submissions to the jury, defence counsel postulated a number of possible factual scenarios in order to cast doubt on the prosecution case that the Appellant was in possession and control of the drugs found in both bags.  Counsel said “there are lots of scenarios, different scenarios in this case that indicate the defendant may not be as guilty as you perhaps thought he should be … would be, according to the prosecution case”.  In his dissenting judgment in the Court of Appeal, McWalters JA set out the scenarios that defence counsel put to the jury:-

“43. In discussing the evidence in his closing address for the applicant, his counsel, Mr R Donald referred to the existence of a number of possible scenarios. There is no doubt that the applicant’s primary defence was an assertion that none of the drugs were his and this was Mr Donald’s first scenario. But part of this defence was an assertion by Mr Donald that all the drugs belonged to Wai Wai. This was Mr Donald’s second possible scenario. If the jury found that either of these scenarios may be the truth then they would have to acquit the applicant. However, Mr Donald, anticipating that the applicant’s evidence might not be accepted by the jury, devised a secondary defence to cover that eventuality. This was his third scenario. This secondary defence was that the drugs in the flat belonged to the woman Wai Wai and not the applicant but that the applicant did have possession of the drugs in the sling bag, perhaps having just purchased them from Wai Wai.[9]”

It is significant to remember in relation to these scenarios that it was no part of the Appellant’s case that he was only in possession of one of the bags; his case was that he had nothing to do with any of the drugs.  Nor was it of course the prosecution case that he was in possession of only some of the drugs.  Both sides conducted the case on an all or nothing basis.

12.  Before summing up to the jury, the judge indicated to counsel that he had read some authorities and although he disagreed with defence counsel,[10] he thought the “safest course of action given the state of the evidence and the way the prosecution has chosen to bring this case, [was] that this is pretty much an all or nothing case.”  He continued:-

“It will be very dangerous, I think, to start putting alternative scenarios to the jury when the case is being brought by the prosecution on the basis that all the drugs belong to the defendant.”

I would add that this was entirely consistent with the way the defence was conducted as well.

13.  The above intended summing‑up having been indicated to counsel, neither counsel objected or made any comments.  The judge directed the jury in the following terms:-

“In his closing speech on Friday, Mr Donald said this is a case of all or nothing. If you come to the decision that the defendant did not possess the black bag, Exhibit P9, or the drugs in it for the purposes of trafficking but decided that he did possess the sling-bag, Exhibit P4, and the drugs in it for that purpose, you would have to find him not guilty of the offence charged.

 In strict legal theory, that is an incorrect statement of the law.  But if the prosecution has chosen, no doubt because of the evidence available to them when preparing for trial, to charge the possession of both the drugs the prosecution say were in the sling-bag and the drugs which they say were in the black bag as one offence, I am directing you that if you come to that decision or conclusion, you should find the defendant not guilty of the offence charged.  But in saying that, I want to remind you that just as much as it is the prosecution’s case that the defendant was in possession of both sets of drugs, it is emphatically the defendant’s case that he was not.  The issue of him being in possession of just the drugs in the sling-bag has not been a live issue in this trial.”

14.  The jury convicted the Appellant of the offence charged by a majority of 6 to 1. He appealed to the Court of Appeal which, as stated earlier, refused leave to appeal by a majority of 2 to 1.  However, in view of the dissenting judgment and also the fact that, as the Vice President of the Court of Appeal put it,[11] the circumstances of the case were by no means unique (an accused is arrested allegedly in possession of drugs drawn from a larger stack of drugs subsequently found in premises controlled by him), the two questions earlier set out were certified.

C. THE JUDGMENT OF THE COURT OF APPEAL

15.  As mentioned earlier, a number of grounds of appeal were argued before the Court of Appeal but we are concerned only with what were argued as Grounds 3 and 4 in the application for leave to appeal.  In relation to these grounds, it was contended that it was wrong for the judge to have directed on an all or nothing basis, there being evidence to suggest to the jury that at least the drugs in the black bag belonged not to him, but to Wai Wai.  Accordingly, the judge ought to have required the prosecution to amend the indictment by splitting it so as to raise a different count in relation to the drugs found in the sling bag. This then would have enabled the judge to direct the jury to return a verdict, if they thought fit, confined to the sling bag.  It was also argued that a separate charge ought to have been directed in relation to the ketamine found in the black bag.  This was said to be such a small amount that a charge of simple possession ought to have been left to the jury to decide.

16.  Separate judgments were given by the Court of Appeal.  Macrae VP was of the overall view that the Appellant had received a fair direction.  It was no part of a judge’s duty, he said, to “canvass all permutations of fact in his summing‑up, including those not even put forward by the defendant in evidence.”[12]  The Vice President noted the defence case being that the Appellant was not in possession of any of the drugs.  As he put it:-

“5. The applicant elected to give evidence and it is significant to note that it was never his case that he was in possession of only the 1^st batch of drugs but not the 2^nd batch of drugs. His case was that he never had possession of either. Neither defence counsel nor prosecuting counsel sought to distinguish between his possession of the two batches of drugs during examination‑in‑chief or cross-examination of the applicant. The approach of the prosecution was that the applicant was in possession of all the drugs: the defence account was that he was in possession of none of them.”

Later in his judgment, Macrae VP emphasised the need always to remember that defence counsel had the conduct of the defence at trial.[13]

17.  As for the ketamine part, Macrae VP again referred to the fact that the defence approach was that the Appellant had nothing to do with the drugs, including the ketamine.  He saw no reason to remove the ketamine part into a separate count when there was no evidence to suggest a case of simple possession, this forming of course no part of either the defence or the prosecution case.[14]

18.  Pang JA who arrived at the same conclusion as the Vice President, emphasised the fact that the Appellant got exactly the summing‑up that he had sought from the judge and the direction was one that was “entirely favourable to the defence”.[15]

19.  McWalters JA arrived at the opposite view.  He placed reliance on the decision of this Court in Ho Hoi Shing v HKSAR.[16]  The material part of his judgment is as follows:-

 “55.     The relevant legal principles governing the duty of the judge in such a situation are set out in the judgment of Chan PJ in giving the judgment of the Court of Final Appeal in Ho Hoi Shing v HKSAR.  Those principles make clear that even though a case may be fought on a particular basis, here the primary defence strategy, if the evidence throws up other possibilities, such as the secondary defence strategy, on which a reasonable jury might return an alternative verdict, then the judge is obliged to direct the jury on their right to return these alternative verdicts.  This is so even if the alternative is inconsistent with the defence run by the defendant’s counsel.  The threshold requirement is that “the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it.”  This threshold, the Court of Final Appeal said, is a low one.”

Curiously, it is to be noted that Ho Hoi Shing was neither relied on nor addressed by either party in the appeal.[17]

20.  Applying the principles as he understood them, McWalters JA was of the view that there was sufficient evidence for an alternative verdict in relation to the sling bag to have been placed before the jury.  The indictment should accordingly have been amended.

21.  The Appellant supports the view taken by McWalters JA and it is to his submissions before us I now turn.

D. THE PARTIES’ SUBMISSIONS

22.  Although the Appellant’s written Case dealt at some length with duplicity (both patent and latent), it became clear from leading counsel’s[18] submissions that the Appellant’s principal proposition was this:- that the judge in a criminal trial is under a duty to place before the jury “all possible alternatives which are open to it on the evidence, that is where there is evidence upon which a reasonable jury might return a verdict on that alternative”.  This duty is incumbent on a judge even if such alternatives are not raised by the parties or even if they are inconsistent with the defence run by the defence.  Reliance was placed on Ho Hoi Shing at paras 12 to 13 where Chan PJ said:-

“12. It is not disputed that the 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. He 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. As Lord Clyde in Alexander Von Starck v The Queen[19] put it at p.1275:

It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.

  13. The reason for imposing such a duty on the trial judge is obvious: it is in the public interest that an accused charged with an offence is properly dealt with according to the law.  He should be convicted of, but only of, an offence which is proved to have been committed by him.  As explained by Lord Bingham of Cornhill in R v Coutts[20] at p.2159 para.12:

The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed.  The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves.  The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged … It is the ultimate responsibility of the trial judge …”

23.  It was submitted that the meaning of “possible alternatives” was, according to the way the first of the certified questions was drafted, “all possible defence scenarios in trial (i.e. primary and secondary defence strategy).”  This followed the way McWalters JA put it in those parts of his judgment set out above.[21]

24.  By failing to require the prosecution to amend the indictment, the judge could not therefore direct the jury on the possible defence scenarios said to arise on the evidence.  These included the Appellant having been in possession and control of only the sling bag but not the black bag; and as far as the ketamine was concerned, this ought to have been made the subject of a separate charge of mere possession.

25.  Accordingly, by reason of the jury having been deprived of the opportunity to consider verdicts based on the possible defence scenarios, the Appellant was deprived of a fair trial.  This was notwithstanding that the judge summed up on the all or nothing basis that defence counsel had insisted on.  There was, it was so submitted, a real danger of the jury having over‑convicted the Appellant.  Reliance was placed on the following part of Chan PJ’s judgment in Ho Hoi Shing:-

“23. It is also impossible to say that the jury's choice would not have been affected by the offers of alternative verdicts open to them. See Callinan J in Gilbert v R (2000) 201 CLR 414, p.441:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered.”

26.  The Respondent’s position was that the all or nothing direction to the jury was generous and entirely favourable to the Appellant.  In any event, there was no need to provide the jury with alternatives because there was simply no evidential basis to support such.  As for the scenario that the Appellant was in possession of the sling bag alone but not the black bag, this was never a part of the Appellant’s case nor did the evidence suggest such a scenario.  In relation to the ketamine, there was again no evidence whatsoever to support the scenario that the Appellant possessed this for his own consumption.

E. ANALYSIS OF THE LAW

27.  There are a number of important connected features of a criminal trial that ought to be reiterated in the present case.  First, most important of all, is the public interest in ensuring a fair trial and the primary responsibility for this rests on the trial judge.  Fairness applies to both the defence and the prosecution. Secondly, the defence must be free to conduct its defence as it sees fit in the way the evidence is treated and the way the defence is presented to the court, provided this is done reasonably and properly.  Thirdly, the prosecution must also similarly be free to conduct the prosecution as it sees fit.  All this is of course subject to professional obligations and the overriding duties owed to the court and the administration of justice.

28.  We are in this case particularly concerned with that aspect of fairness being the public interest in the fair outcome of a trial.  This was set out in clear terms by Lord Bingham of Cornhill in R v Coutts.[22]  I have already set out an extract contained in the judgment of Chan PJ in Ho Hoi Shing[23] but it is useful to set out the whole of that part of Lord Bingham’s speech:-

“12. In any criminal prosecution for a serious offence there is an important public interest in the outcome: R v Fairbanks [1986] 1 WLR 1202, 1206. The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge: Von Starck v The Queen [2000] 1 WLR 1270, 1275; Hunter v The Queen [2003] UKPC 69, para 27.”

29.  It is clear from this general statement of principle, much relied on by the Appellant in the present case, that Lord Bingham was referring to the context of alternative verdicts in relation to lesser offences.  I will in due course return to this aspect.  For the time being, one of the important questions that arises is to ask in what circumstances would it be incumbent on a judge (in a trial by jury) to direct the jury as to the alternative options open to it?

30.  As set out above, it was the contention of the Appellant in the present case that all possible alternatives which are open on the evidence or all possible scenarios submitted by the defence in the trial should be placed before the jury, and in order to enable a jury to be so directed, a judge may have to order the indictment to be amended.  This, it will be recalled, was essentially the view taken by McWalters JA, referring to “secondary” defence strategies. The only limitation, it was submitted, was that there must be some evidence in support of such possibilities that was not “incredible or tenuous or uncertain”.[24]

31.  In my view, some care needs to be exercised when defining the obligation to direct alternative verdicts.  It is unhelpful, not to say confusing, for a judge to have to direct a jury to alternative options based on vague expressions such as “possible alternatives”, “possible scenarios”, “alternative defence scenarios” or “secondary defence scenarios”.  This was the type of expression used by McWalters JA in the passages set out above.[25] Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury.  Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios.  Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing‑up, these allegations bearing little or no resemblance to what was the reality at trial.  In the passage from the judgment of McWalters JA, he refers to the Appellant’s “primary defence” and “secondary defence”.  This was, with respect, confusing.  There was no alternative defence run by the Appellant: the only defence he ran was that he had nothing to do with drugs and that he was framed.  The other scenarios referred to by defence counsel in his final submissions and by McWalters JA were not alternative defences at all but were mere speculations.

32.  The answer to the question in what circumstances it would be incumbent on a judge to direct a jury as to the alternative options open to it is, I believe, to ask further whether there is an obvious alternative verdict which is supported by the evidence of that alternative.  The requirement of an obvious alternative supported by evidence was discussed by Lord Bingham in the following passage in Coutts:-

“23. The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.” (emphasis added)

Lord Rodger of Earlsferry referred to a “viable” alternative verdict.[26]

33.  The reference to alternative verdicts obviously raised by the evidence is instructive.  In the main cases relied on by the Appellant in the present appeal, the alternative verdict (although not raised in the way the defence was run as a matter of law) was nevertheless a clear and obvious alternative on the evidence.  Further, all these cases involved the alternative offence being lesser offences to the one charged:-

 (1)     Coutts was a murder case in which it was held that manslaughter should have been left to the jury, even though defence counsel at trial had not asked for this course to be adopted.  Though this course was inconsistent with the defence run at trial as a matter of law,[27] it arose from the evidence of the accused in that case.  His evidence was to the effect that he had no intention to kill the deceased and that it was an accident.  There was therefore evidence to suggest a reasonable possibility that the accused lacked the necessary intent to kill or cause grievous bodily harm.[28]

 (2)     Ho Hoi Shing was similarly a case in which the obvious alternative manslaughter arose from the defendant’s own evidence to the effect that his mind was blank and that he did not intend to hurt the deceased.

 (3)     Reference was made in Ho Hoi Shing (and in Coutts) to Von Starck,[29] which was again a case in which the alternative verdict of manslaughter arose from the evidence to the effect that the accused did not have the requisite intent for murder.  Such evidence in support of a manslaughter alternative arose from the accused’s own case and evidence.[30]

34.  What is the position when the alternative scenario relied on is contrary to the way the defence has conducted or presented its case on the facts?  In the passage from Ho Hoi Shing quoted above,[31] Chan PJ referred to a judge not being absolved of the duty to direct on an alternative verdict “even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused”.  However, it is relevant to read the extract from the judgment of Lord Clyde in Von Starck which follows immediately after.  This passage refers to conclusions open to the jury “on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions”.  (emphasis added)

35.  The way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict.  If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive.  In R v Fairbanks,[32] another lesser offence case, the question was whether a jury ought to have been directed on the alternative lesser charge of careless driving, the main charge being dangerous driving causing death.  The English Court of Appeal held that the lesser alternative charge ought to have been put to the jury given the evidence and the way the evidence was approached by the defence.  Mustill LJ, who gave the judgment of the court, however, said this:-[33]

“There appear to be three relevant authorities. The first two cases were Rex v. Vaughan (1908) 1 Cr.App.R. 25 and Rex v. Naylor (1910) 5 Cr.App.R. 19. In each case the appellant had been convicted of a serious offence of violence, and complained that the trial judge had not left to the jury the possibility of convicting on the lesser offence of unlawful wounding. The court dismissed each appeal. The reports are brief, but they demonstrate that the judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial. …

 These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice.  Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant.  Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”

36.  The quoted passage assists in determining whether an obvious alternative verdict ought to be placed before the jury in emphasising the need to look at the way the case on the facts has been run.  It is to be noted that a part of this passage was referred to by Lord Bingham in Coutts.[34]  The decision in Fairbanks was approved by the House of Lords in R v Maxwell,[35] and although Maxwell was said to be not “unproblematical” in Coutts,[36] the problem did not lie with the passage just quoted from Fairbanks.

37.  The trial judge has a discretion in deciding on the most appropriate course to take when faced with the possibility of an alternative verdict.  Orders under s 23 of the Criminal Procedure Ordinance[37] involve a judicial discretion.  If such a situation arises or may reasonably arise, it will be good practice for the judge to elicit the views of the parties.  Such views may not necessarily be decisive but they are certainly relevant.  Counsel of course have the duty to assist the court in putting forward any relevant considerations, particularly those relating to a fair trial, for the judge to consider.

38.  Lastly, before returning to the facts, I should mention this.  The application of the approach in cases like Coutts, Ho Hoi Shing and Von Starck seems only to have been in cases involving alternative verdicts in relation to lesser offences.  I have earlier alluded to this.[38]  We have not been shown any authority where the approach has been applied in relation not to an alternative lesser offence, but to a situation (as in the present case) where it is said an indictment should be split into different counts.

39.  It is conceivable that the general principle that an accused should not be over‑convicted or under‑convicted may in some exceptional cases require a judge to direct on possible alternative verdicts where it is said an indictment should be amended to be split into different counts because the evidence may be said to support alternative factual scenarios.  Both parties have assumed this principle to apply in the present case, as did the Court of Appeal.  While I do not consider that any such principle has been established on the authorities, I am content to examine the circumstances of the present case on the hypothesis that such a rule exists.  I note, however, that there may be other considerations that could conceivably be relevant in this situation on which we have not heard argument.[39]

40.  I now return to the facts.

F. APPLICATION TO THE FACTS

41.  I have already set out the essence of the Appellant’s submissions in this appeal.  In brief, it was submitted that the judge ought to have amended the indictment to split it into two, if not three, separate charges involving trafficking in the drugs found in the sling bag, trafficking in the drugs found in the black bag and mere possession of the ketamine.

42.  The ketamine aspect can be quickly disposed of.  Even though the amount of ketamine was small, it was found together with the other drugs in the black bag on a table on which there were also found electronic scales.  There was no evidence whatsoever to indicate that the ketamine was for the Appellant’s own consumption, nor was this a part of his case on the facts.  This was clearly not an alternative scenario that was obvious.

43.  In relation to the possible splitting up of the indictment into the drugs found in the sling bag and the black bag, it was not the Appellant’s factual case that he was in possession of one of the bags but not the other.  Although defence counsel submitted that the drugs in the black bag belonged to Wai Wai, this did not involve the Appellant accepting he was in possession and control of the sling bag.  His position on the facts was simple: he was not in possession of any of the drugs specified in the indictment.  However, it was prosecuting counsel who first raised the possibility of this alternative scenario both before the judge and then in his final submissions.[40]  Given that this was not the factual position adopted by the defence, it may have been somewhat odd for the prosecution to make reference to this.  Pang JA described this as “enigmatic”.[41]

44.  The scenario that the Appellant was in possession of only the drugs in the sling bag was not an obvious alternative.  Be that as it may, the reality was that the jury heard submissions on the alternative scenario that the Appellant may have been in possession of only one of the bags containing drugs.  The judge, however, dealt with this alternative in clear terms.  He told counsel that it would be very dangerous to put alternative scenarios to the jury when the case had been conducted by the prosecution on an all or nothing basis.[42]  More important, he alerted the jury in his summing‑up that although it was not a live issue that the Appellant was in possession of only one of the bags, nevertheless if the jury thought that, he directed them to acquit.[43] Thus, the jury were directed on the specific factual situation that the Appellant now focuses on and he was given what was undoubtedly a favourable direction in the present case.

45.  The Appellant’s complaint, based on the cases discussed above, was that the judge gave an all or nothing direction to the jury and accordingly there was a danger, given this limited choice, that they may have over‑convicted.  There are three reasons why this complaint should be rejected.  First, this was the very direction sought by the defence.  Secondly, if there was any potential injustice to the Appellant arising from such a direction, it was incumbent on both prosecuting and defence counsel to have alerted the judge to this.  No such indication was given.  Thirdly, the judge made reference to the specific factual scenario of the Appellant being in possession of the drugs in the sling bag only but not the black bag, directing the jury that in this contingency, they had to acquit.

G. CONCLUSION

46.  For the above reasons, the appeal should be dismissed.  The two questions in respect of which leave to appeal was given are not sufficiently precise to be capable of being answered Yes or No.  Much depends on the circumstances of any given case.

Mr Justice Ribeiro PJ:

47.  I agree with the judgment of Chief Justice Ma.

Mr Justice Fok PJ:

48.  I agree with the judgment of Chief Justice Ma.

Mr Justice Cheung PJ:

49.  I agree with the judgment of Chief Justice Ma.

Lord Neuberger of Abbotsbury NPJ:

50.  I agree with the judgment of Chief Justice Ma.

Chief Justice Ma:

51.  The appeal is accordingly dismissed.