HKSAR v. CHU KAR KEET

CACC 284/2019

[2021] HKCA 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2019

(ON APPEAL FROM HCCC NO 319 OF 2018)

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J U D G M E N T

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Introduction

1.  On 11 September 2019, the applicant was convicted after trial before Deputy Judge Woodcock (the judge)and a jury by a majority verdict of 6 to 1 of a single count of trafficking together with Tang Wai-keung (Tang)in a dangerous drug, namely, 4,318.59 grammes of a solid and a powder containing 3,146.03 grammes of cocaine.  Earlier in the proceedings, Tang pleaded guilty to the offence and took no further part in them.  On 12 September 2019, the applicant was sentenced to 25 years’ imprisonment.  He now seeks leave to appeal against his conviction.

The grounds of appeal

2.  The applicant advances four grounds of appeal.  They are as follows:

3.  Ground 1: The judge wrongfully permitted prosecuting counsel to advance an improper and/or misleading submission that the applicant had claimed that he was “homeless”in the video recorded interview and failed  to remedy the resulting unfairness in the summing-up.

4.  Ground 2: The summing-up given by the judge is unfair and/or unbalanced in that she sought to summarise and repeat prosecuting counsel's submissions extensively, but did not do so in respect of defence counsel's submissions and at times made adverse comments on them, in particular: (1) the fingerprint and DNA evidence; (2) resisting arrest; (3) the medical report of the applicant; (4) the substantial value of the drugs.

5.  Ground 3: The judge failed to give proper direction on the issue of joint possession and joint enterprise in accordance with Specimen Directions 8.3 and 61.3 of the Specimen Directions in Jury Trials. 

6.  Ground 4: The judge failed to give a proper Sharpdirection in accordance with Specimen Direction 40.1 of the Specimen Directions in Jury Trials in respect of the applicant’s out-of-court mixed statement.

The prosecution case

7.  On 6 July 2017, a team of police officers from the Narcotics Bureau armed with a search warrant entered Unit B of a single-storey house in a village in Yuen Long. Inside the unit the police officers found the applicant and Tang.  They also found many bags of cocaine and paraphernalia associated with packaging drugs.[1]  The applicant’s fingerprint (left thumb print) was found near the on-off switch of the scale (Exhibit P15) which was next to the cocaine and bags (commonly used for the packaging of drugs) on a desk in the bedroom of the unit.[2]  The applicant’s DNA was also found on the ziplock of one of the plastic bags containing 31.9 grammes of cocaine (Exhibit P7).[3]  The total quantity of cocaine narcotic was 3,146.03 grammes and the estimated street value was about HK$4,387,687.[4]   

8.  Upon being arrested and cautioned, the applicant told the arresting police officer, (PWl), that the drugs found in the premises all belonged to Tang and that the baking soda, the induction cooker and the pot were used by Tang to heat up cocaine to manufacture the drugs.[5] It was acknowledged that this procedure is commonly used to make crack cocaine.

9.  PWl seized from inside the applicant’s cross-shoulder bag two mobile phones, two bundles of cash in the total sum of $3,010 and $21,120 and two sets of keys.  One set of four keys could open the main iron gate, the glass iron gate of the house and the gate and door of Unit B, while the remaining one was for the applicant’s home.[6]

10.  In a subsequent video recorded interview, the applicant said that on the day of arrest he had been sleeping in the unit when Tang woke him up when he arrived at about 1 or 2 pm.  He saw the drugs in the box for the first time that day.  Tang told him that it was cocaine and to go back to sleep.  He later woke up to go to the toilet and saw that Tang was heating something up in the kitchen, mixing baking soda with cocaine.  Tang again told him to go back to sleep.  He was then woken up by a lot of noise when the police came rushing into the unit.  He was scared and thought about running away but was then immediately arrested.[7]

The defence case

11.  The applicant chose not to give evidence and called no witnesses at his trial.

12.  The applicant’s defence, as presented to the jury, was that he had given a “very frank explanation”[8] to the police upon arrest and a truthful account of the events in his video recorded interview.  He explained that at the time he was staying in the unit with Tang’s permission.  He said that the drugs and the related paraphernalia all belonged to Tang.  Although he knew there was cocaine in the unit, he had no control over them, nor did he intend to deal with them in any way.  He just happened to be there when Tang brought the drugs back to the unit.  He was merely present at the time of the offence.[9] 

13.  The applicant also alleged that the police framed him by pressing his thumb against the scale (Exhibit P15) and pressing a bag of drugs (Exhibit P7) against his face and mouth and that he was assaulted by the police.[10]

The issues at trial

14.  The key issues at trial were whether the exculpatory explanation made by the applicant in the video recorded interview was or might be credible, whether the key police witnesses were credible, and whether the jury could draw the necessary inference of possession and control of the drugs against the applicant based on the circumstantial evidence.

Ground 1

15.  The applicant alleges the word “無家可歸” in his video recorded interview was mistranslated into “homeless” and the judge failed to stop prosecuting counsel from making an improper and misleading submission that the applicant was “homeless”.

16.  When Mr Eric Cheung, for the applicant, was asked how the words should be translated, he said: “he had a home, but he did not or could not return to his home for some unknown reasons.”  The court interpreter at the hearing of this application interpreted the words as meaning “no home to go to”.  The applicant had been staying at the unit for about a week prior to his arrest.  He said in his video recorded interview that he lived at a particular address together with his father but did not go home and was merely staying at the unit at the time. 

17.  Mr Cheung complains that prosecuting counsel made disparaging remarks about the applicant being “homeless”, when he was not, which was prejudicial to the applicant.  The remarks in question were as follows:

“As you’ve heard, the defendant claimed that he had been staying at the address since 3 July. So he had been there at least a week and he said he was living there. But remember this is a one-bedroom unit, just one bed. No sofa, only one place for someone to sleep. So if the defendant was sleeping there all that time since 3 July, where was Tang sleeping? You may recall that Tang was the registered tenant, Tang and another lady were the registered tenants. But if the defendant was sleeping at that place for a week in the one-bedroom unit, where was Tang? Something for you to consider.

Another point we, the prosecution, ask you to consider is the defendant’s claim that he was homeless. He was supposed to be homeless according to what he said in his VRI, yet when the police tell him that they want to do a home search, get his permission to do a home search, he takes him to an address where he lives with his father. One can’t be homeless yet at the same time be living with your father. The father’s address or the address where he said he was living with his father was searched and nothing incriminating was found there. But the point is the defendant can’t be homeless when if the police ask him to -- or tell him, ‘We want to do a home search’ then he takes them to an address where he lives with his father. I’d suggest that is the case and he was living there all the time, not in Unit B, as he claimed.”[11] (Emphasis added)

18.  Mr Cheung also complains that the judge should have corrected prosecuting counsel’s remarks and by way of comparison notes that defence counsel’s remarks about the applicant staying in the unit were rebuked by the judge in her summing-up to the jury.  The remarks in question were:

“In closing, Mr Shaw made some suggestions. There was a suggestion that after the defendant was handcuffed he was still very scared. There was a suggestion that he may have been staying in unit B instead of at home because maybe, he did not like his family or had argued with his family. It was suggested that maybe he did not return home and was there when the police arrived because he had wanted to go out with Tang or had not wanted to go home in case he woke up his family. In closing, Mr Shaw has asked you to speculate about certain suggestions. However, these suggestions are not evidence and you must ignore them. Only evidence which comes from a witness himself or through the documents or through Admitted Facts is evidence in this case which you can consider.”[12]

19.  In oral submissions, Mr Cheung acknowledged that there was no evidence that the applicant had stayed at the unit because of an argument with his family and that he remained there because he wanted to go out with Tang.  It is to be recalled that the applicant did not give evidence, nor call any witnesses on his behalf.  This was speculation on the part of defence counsel and the judge was entitled to make the comment that she did.

20.  It is clear from the transcript of the video recorded interview the applicant stated (a) he resided in a flat in Tin Yiu Estate together with his father;[13] (b) he did not return home on the night of 3 July and had no place to sleep nor bath and hence he borrowed the key from Tang and slept at Tang’s place until his arrest;[14] (c) one of the keys found on him was for his home in Tin Yiu Estate.[15]  Whilst the word “homeless” was used in the prosecuting counsel’s closing speech and the judge’s summing-up, it was in the context that the applicant had explained that he lived with his father but had not returned home for some unknown reason. 

21.  The jury were well aware of the rest of the evidence before them, including the applicant’s statements in his video recorded interview that he lived with his father and that he had been staying at the unit since 3 July. In that sense, the jury was well aware of the applicant's defence that he just happened to be present at the unit when Tang brought the drugs there.

22.  It is argued by the respondent that the present case can be distinguished from HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284, where the mistranslations of the video recorded interview of the defendant misled the judge and led her to make adverse comment that the defendant’s answers in the video recorded interview were inconsistent and that there were chronological difficulties in his account whilst summing-up to the jury.

23.  It is submitted by the respondent that the translated word “homeless”, when read in context, was a reasonable and accurate translation.  At no time did the judge make any adverse comment on the applicant’s account for staying at Tang’s unit for the time he was there because he was “homeless”. 

24.  On this aspect of the complaint in this ground of appeal, I agree with the respondent.

25.  However, Mr Cheung makes a valid point about the possible unfairness to the applicant as a result of prosecuting counsel’s remarks in respect of the applicant’s explanation that he was “homeless”, which gave the impression that the applicant had no explanation for being present at Tang’s unit other than he was dealing in the drugs together with Tang.

26.  The possible unfairness arises because the applicant’s video recorded interview had been redacted in respect of his reason why he was at Tang’s unit at the time and not at his home.  He explained that he had been earlier convicted of an offence of trafficking in a small quantity of cocaine for which he was sentenced on 15 June 2017 to probation for voluntary drug treatment.  However, he ran away after 6 days and he was told by his probation officer that as a consequence he had to attend court on 27 June 2017.  He did not attend the court hearing and so he did not sleep at home.  He lived out of residences of friends, including Tang’s unit from 3 July 2017.[16]

27.  This explanation by the applicant had been redacted from the video recorded interview after discussion between the parties because of the prejudicial effect it would have on the applicant if his criminal record was disclosed. There was discussion about what should be done if the applicant gave evidence but it was left to be resolved if and when that occurred.[17]

28.  In this context, Mr Cheung argues that prosecuting counsel in his closing address by questioning the applicant’s claim that he was “homeless” and his failure to explain why he was at Tang’s unit was seriously unfair.  He further submits that the judge exacerbated the problem by repeating, and not correcting the adverse impression cast on the applicant as a result of prosecuting counsel’s remarks.[18]

29.  In my view, on this narrow compass, the ground of appeal is reasonably arguable.

Ground 2

30.  The applicant complains that the summing-up was unfair and unbalanced in that the judge summarised prosecuting counsel’s submissions extensively yet did not do so in respect of the defence counsel’s submissions, and at times made adverse comments about the defence case.

31.  Mr Cheung produced a table in which he compared the points made by defence counsel in his closing address and whether they were mentioned by the judge in her summing-up to the jury.  This exercise is not normally of useful utility and should be avoided. A summing-up is not an exam paper that you would mark in order to advance a ground of appeal.  The focus should be on whether there has been a material misdirection or non-direction by the judge in what he or she said or omitted to say to the jury.  As stated by Lunn VP in HKSAR v Yuen Cheung Ming, Leon, unrep., CACC 429/2015, 11 January 2018, whilst it is undoubtedly recognised that a summing-up to a jury should be fair and balanced, it does not impose on a judge a duty to repeat the submissions made on behalf of the defendant in the course of counsel’s closing address.  His or her duty is to remind the jury of the salient features of the defence case, although that duty is not discharged merely by the judge inviting the jury to have regard to counsel’s closing address.[19]

32.  From my overall assessment of the judge’s summing-up to the jury she put the defence case to them, although there were occasions when she had to address the fact that there was a lack of evidential support for some of the points made in submission by defence counsel.

33.  There are various subsections to this ground, in which it is complained that the judge gave an unfair and unbalanced summing-up to the jury. 

Fingerprint and DNA evidence

34.  The first matter is that the judge did not fairly or properly explain the fingerprint and DNA evidence.  It needs to be recalled that the applicant’s thumbprint was found on a scale and his DNA was found on the ziplock of one of the bags containing drugs.  The applicant’s defence was that he was framed by the police and that they put the scale on his thumb and rubbed the plastic bag in his face and mouth.  The applicant did not give evidence about these matters and the suggestions to the police officers that they had framed him were denied.  There was a general challenge as to the credibility of the police officers and their evidence as to what took place.  This was all addressed by the judge in her summing-up to the jury.

35.  Mr Cheung complains about the judge’s comments on the lack of fingerprint and DNA evidence:

“Mr Shaw in his closing speech referred to the lack of fingerprint evidence and DNA evidence on other exhibits and that lack was suspicious and supported the defence allegation of the police framing the defendant. A lack of fingerprint evidence on an exhibit is a neutral factor. The absence of such information does not necessarily help the defendant. Where there is no more fingerprint evidence, it proves nothing either way. …”[20]

36.  Mr Cheung also complains about the judge’s comments about the defence allegation that the police had framed the applicant in respect of the fingerprint and DNA evidence.  She said:

“… The defence suggest that the police framed the defendant by pressing his thumb against the weighing scale and pressing a bag of drugs against his face and mouth. They suggest there was no struggle when the police first entered. The defence say his explanation in his video-recorded interview was credible and supports his innocence, whereas the police witnesses are not credible.

You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed. Members of the jury, in a criminal case the inference drawn must be the only inference that can be drawn in all of the circumstances. You must use your common sense and experience as men and women of the world to draw the reasonable inference and the only inference in the circumstances.”[21]

37.  Mr Cheung further complains that prosecuting counsel misrepresented the DNA evidence in his closing address to the jury and this was not corrected by the judge.  Prosecuting counsel said:

“So these allegations by the defence that the police beat him up or assaulted him or forced him to rub the DNA packet against his face is a complete fabrication. And as you heard, rubbing the packet, P7, where his DNA was found against his face would not have resulted in any DNA. The DNA on that packet came as a result of him touching the zip lock on the packet, not from anybody forcing a packet of -- forcing the drugs against his face.”[22]

38.  I find nothing inappropriate with the remarks made by prosecuting counsel.  It needs to be appreciated that there was an admitted fact that the applicant’s fingerprint had been found on the scale and his DNA had been found on one of the plastic bags containing the drugs.[23] The admitted fact in relation to the fingerprint was that it had been located and uplifted on the scale which had been found on the desk in the bedroom and was examined and confirmed by an expert to be the left thumbprint of the applicant.  It was also admitted that the thumbprint was located 3 cm from the on-off switch.  In addition to this, there was the evidence of the police officer from the Identification Bureau about the procedure that he followed in lifting fingerprints and collecting DNA.  His evidence was summarised by the judge and it is worth repeating:

“PW5, PC 9489, was or is attached to the identification bureau and qualified to dust for and lift fingerprints as well as collect DNA. He arrived at about 8.30 that night and he waited for DNA to be collected by the chemist. After that, he was able to dust for fingerprints. He dusted from outside inwards, he said. He dusted the frame of the glass iron gate as well as the gate itself. He found two prints of value and lifted them. He later found a print on a doorframe of unit B which he had dusted and then lifted that print. He also lifted a clear valuable print from the larger electronic digital scale found on the bedroom table. He said he did dust other surfaces but found no more prints of value. He did explain to you, members of the jury, what he meant by a fingerprint of value. He explained that if he dusted and saw with his naked eye a clear print, then that was of value. He explained that a fingerprint had to have 12 or more features before it can be compared to a print and accepted by a court of law as evidence.

We know from the second set of Admitted Facts that there is no challenge to the evidence that the defendant’s thumbprint was located on the surface of P15, the larger digital scale, as well as the wooden main frame of the door to unit B. That officer PW5 did explain that he made the decisions what surfaces to dust, not any other police officer or PW2. And he did explain that he did not dust plastic bags at the scene because they are not flat and therefore it is harder to find fingerprints of value on them by dusting. He would normally suggest that plastic bags and paper items are sent to the identification bureau advanced technology section to conduct an examination there. He also explained that some surfaces retain fingerprints better than others. He said that the smooth mirrored surface of the larger scale made it easier to leave a fingerprint of value on it.”[24]

39.  It was after these remarks that the judge went on to make her comments that had been complained about by Mr Cheung in respect of defence counsel’s closing address to the jury where he referred to the lack of fingerprint and DNA evidence on the other exhibits.

40.  The judge then went on to mention that PW5 gave evidence that the chances of leaving fingerprints of value differs with different surfaces of exhibits or items.  She went on to address the expert evidence of the two government chemists (PW6 and PW7), who gave expert evidence in relation to the DNA evidence.[25]

41.  In the circumstances, the judge was entitled to make the comments she did in relation to defence counsel’s remarks in his closing address to the jury. 

42.  As already noted, the applicant also contends that the judge misdirected the jury on the fingerprint and DNA evidence when she directed them “a lack of fingerprint evidence on an exhibit is a neutral factor.  The absence of such information does not necessarily help the defendant.  Where there is no more fingerprint evidence, it proves nothing either way.”[26] This appears to be taken from HKSAR v Law Wing Hong, unrep.,CACC 169/1998, 11 November 1998, where the Court of Appeal said that the lack of fingerprint evidence was a neutral factor and where there was no fingerprint evidence at all it proved nothing either way.[27]  See HKSAR v Mahabul Alam Khan, unrep.,CACC 116/2016, 8 September 2017,at [17].  See also Specimen Directions in Jury Trials, Chapter 108: Identification.[28]

43.  As pointed out by the respondent, the judge in her the summing-up told the jury that “You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag.  The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed.”[29]  The judge also reminded the jury that “You should remember that this evidence (the evidence of the fingerprint or the DNA) relates only to part of the case, and whilst it may be of assistance to you in reaching a verdict, you must reach your verdict having considered all of the evidence.”[30]   

44.  The respondent submits that the summing-up when considered as a whole, was fair and balanced.  The jury was not prevented from having any regard to the absence of fingerprint or DNA evidence on other items.  The defence case and related issues were properly placed before the jury for consideration.

45.  Taking into account the above matters, I agree with the respondent’s submissions.

Resisting arrest

46.  The second matter is that the judge did not fairly summarise the defence arguments about the applicant resisting arrest by the police.  Defence counsel stated in his closing address to the jury:

“The prosecution also rely on the defendant resisted arrest. There is no evidence that the defendant intends to run away. He intended to return to the unit. The police officer, taking their evidence to the highest, is that he intended to shut the door and that’s it. As I said, this is only natural.

Now, if the defendant actually tried to run away and resist arrest, why is it that the police officer did not declare arrest on him was resisting arrest or obstructing police officer in the due execution of their duty? All right. This is basically a crime, apart from the trafficking, apart from the manufacturing, resisting arrest is another criminal offence. He should be arrested, cautioned and asked for an explanation.

Remember, the police officer never asked him, ‘Why did you resist arrest? Why did you try to shut the door? Why did you try to run away?’ It was never mentioned in their inquiry at the scene. And further in the video-recorded interview, none of those questions was asked. The police officer never asked the defendant, ‘Why is it at the scene you try to run away? Why is it at the scene you resisted arrest? Why is it at the scene you tried to obstruct our officer in the execution of their duty?’ It was never asked. It was never raised. Do you -- will it cause any suspicion on you that whether he resisted arrest, he struggled, was totally made up by the police officer? If that is what had actually happened why the police officer not make inquiry on two occasions? That is unreal. Unreal. Are we saying that the police officer failed to do their duty or do you think that simply it didn’t happen so that they did not ask?”[31]

47.  Mr Cheung complains about what the judge had said on the issue of resisting arrest in her summing-up.  She said:

“The prosecution relies on the fact that he resisted the police when they arrived. You are entitled to consider whether this supports the case brought against him by the prosecution. However, you should consider two questions. Firstly, you must decide whether the defendant did, in fact, try and shut the door on the police and then struggle when they tried to subdue him. If you are not sure he did this, then ignore this aspect of the evidence completely. But if you are sure he did, then ask yourself why the defendant resisted the police. The defendant may resist the police for many reasons and they may possibly be innocent reasons in the sense that they do not give any indication of guilt. For example, if he did not realise they were police officers. If you think there may be an innocent explanation for the defendant’s resistance, then you should take no notice of it.

It is only if you are sure he did not resist for any such innocent purpose, then his resistance can be regarded by you as evidence which supports the prosecution’s case. The fact that he has not been charged with resisting arrest is irrelevant. It does not mean he did not resist arrest. The prosecution suggest that his innocent explanation of his presence in the unit given in his video-recorded interview is not credible, including the fact that he was homeless and was asleep when woken by noise just before the police burst into unit B and arrested him. There was also the fact that PW1 said he was arrested carrying his cross-shoulder bag, which was not challenged by the defence, yet the defendant’s explanation was that he had been asleep in bed just before the police burst in.”[32]

48.  Mr Cheung’s complaint is that the judge did not mention the admitted fact that a complaint had been made against the police by both the applicant and Tang after their release from custody.[33] However, what Mr Cheung neglected to mention is that the allegation of the police having assaulted the applicant was put to the police officers in cross-examination which was referred to by the judge in her summing-up, including that PW4 had slapped the applicant’s face in the unit, which he denied.[34] 

49.  Mr Cheung also complains about the judge’s comments in relation to the police not charging the applicant for resisting arrest.  In the course of oral argument, it was noted that the transcript of the police officers was not included in the bundle and there was no way of knowing whether they were in fact cross-examined about the failure to charge the applicant for resisting arrest. However, I do not see there is any substance to this complaint as it was not a matter that would have escaped the attention of the jury and did not require the judge to give the jury specific guidance in respect of it other than the comments that she made. 

The medical evidence

50.  It is complained that when addressing the contents of the medical report to the jury, the judge improperly expressed the view that “a diagnosis of tenderness is subjective.  The defendant would have had to say it was tender to the doctor.  The doctor cannot see tenderness.  The doctor had made clear that other than the wrist abrasions there were no other wounds or injuries detected.”[35] The last sentence was not included in the written submissions of the applicant, and it clearly added weight to the judge’s comment.

51.  I do not find any significance in this complaint.  It is a matter of commonsense when someone says that a part of their body is tender, it is how they feel.  In any event, the doctor’s evidence was that apart from the wrist abrasions there were no other wounds or injuries detected.

The substantial value of the drugs and other matters

52.  It is complained that the judge referred to the value of the drugs when summarising the prosecution case, but this ignores that this was an admitted fact and before the jury.[36]

53.  Other points are made about the judge’s failure to mention what are described as “salient features” of the defence case, but I find no substance in this nitpicking exercise.

54.  The respondent argues the judge pointed out the main issues at trial.[37]  She drew the jury’s attention to what circumstantial evidence that the prosecution relied upon.[38]  She also drew the jury’s attention to the defence case by summarizing the relevant parts in the summing-up as follows:

(1)  The applicant was staying in that unit with the permission of Tang as he was homeless at the time.  The drugs and the related paraphernalia belonged to Tang and although he knew it was cocaine in the unit, he had no control over them, nor did he intend to deal with them in any way.  He just happened to be there when Tang brought back the drugs to his unit.  He was merely present.[39]  

(2)  There was a lack of fingerprint and DNA evidence on other exhibits, which was suspicious and supported the defence allegation of the police having framed the applicant.  Although it should be noted that the judge remarked that the lack of fingerprint evidence was a neutral factor, having referred to PW5’s evidence about the chances of leaving fingerprints on different surfaces.[40]

(3)  The applicant explained to the police that although he was present and knew there was cocaine in the unit and Tang was preparing crack cocaine, he had nothing to do with the drugs.[41]

(4)  The defence case was that the circumstantial evidence did not add up to the only inference that could be drawn in all the circumstances.  The defence suggested that the police framed the applicant by pressing his thumb against the scales and pressing the bag of drugs against his face and mouth.[42]

(5)  The applicant’s explanation in his video recorded interview was credible and supported his innocence, whereas the police witnesses were not credible.[43]

(6)  The defence suggestions to the prosecution witnesses in cross-examination that the applicant was framed.[44]

55.  It is submitted by the respondent that the relevant matters and issues were placed before the jury for their consideration and the defence case was fairly presented to the jury.

56.  Furthermore, the respondent submits that the judge did not make any adverse comments on or refute the defence counsel’s submissions.  Her comments on resisting arrest and the medical report as highlighted by the applicant were fair and proper and could not be criticized.  The judge also specifically gave directions to the jury that “my review of the evidence are not evidence.”[45]  and “in the course of summing-up, if I appear to express my views of the evidence or the facts to which you do not agree, then reject my views.  Do not adopt my views unless you agree with them.  If I do not mention something which you regard as important, then you should regard it, in any event, and keep on thinking it is important.  Give it whatever weight you think necessary.  When it comes to the facts of this case it is your judgment alone that counts.”[46] 

57.  I am not persuaded that this ground of appeal and its subsections are reasonably arguable. 

Ground 3

58.  The applicant alleges that the judge failed to give proper directions on the issues of joint possession and joint enterprise.

59.  The judge explained to the jury the concept of joint enterprise[47] and joint possession[48] largely following the standard directions.  She specifically explained to the jury that: “Mere presence at the scene of crime is not enough to prove guilt.  But if you find that the defendant was at the scene, was also in possession of the drugs and intended to deal with the drugs for the purpose of trafficking in them, then he is guilty.”[49] when explaining the elements of the offence of jointly trafficking in the drugs with Tang. 

60.  It is complained by Mr Cheung that this was not said when the judge gave her directions on joint possession but I find little substance to this complaint as the jury would have clearly understood from the judge’s overall directions on the ingredients of the offence that mere presence was not enough to convict the applicant of the offence.

61.  Mr Cheung also seeks to rely on what was said in HKSAR v Li Jin [2010] 4 HKLRD 614 about joint possession in the context of the offence of trafficking in a dangerous drug which involves a close or personal relationship between persons that are likely to share or come into contact with each other’s personal items.  In such special circumstances, the jury should be directed that the exercise of control required proof of more than knowledge and acquiescence, in the sense that it must be proved that the defendant did something to advance or promote or encourage the possession in order to establish joint possession.  In this regard, he complains that the judge failed to give the additional directions suggested in Li Jin, but it is clearly apparent that this was not necessary, nor appropriate, in the circumstances of the present case.  See HKSAR v Wong Chun Yau, unrep., CACC 118/2019, 25 March 2021, in which a similar argument in similar circumstances was advanced and rejected.[50] 

62.  As already noted, the applicant’s fingerprint and DNA were respectively found on the scale and the plastic bag containing drugs.  This was strong evidence relied upon by the prosecution to allege the applicant was jointly involved with Tang in trafficking the drugs.  The judge reminded the jury to consider under what circumstances such evidence would be where it was found.  In addition to the directions on joint possession and joint enterprise, she further directed the jury that “if you, members of the jury, infer and ultimately find this defendant knew there were drugs in the flat, was in possession of those drugs and that they were to be supplied or delivered to others, then you, the jury, should have no difficulty in finding him guilty of this charge.”[51]and “You may not convict the defendant unless you are sure that the prosecution has proved that on that day (a) the defendant possessed the dangerous drugs in Unit B, (b) he knew it was dangerous drugs in Unit B, and (c) he possessed the dangerous drugs for the purpose of supplying it to others or dealing in or with or was in possession for the purpose of trafficking in those drugs.”[52] 

63.  The respondent submits that the directions were adequate and tailored to address the factual issues in the case and the jury would not have misunderstood the issues that they had to consider and address in considering the evidence as a whole. 

64.  I agree with the respondent’s submissions.  The jury clearly would have understood its task in deciding whether the applicant and Tang were jointly trafficking in the drugs found in the unit, in that they were in joint possession of the drugs for the purpose of trafficking in them.  I do not find this ground of appeal reasonably arguable.

Ground 4

65.  The applicant alleges that the judge did not give a mixed statement direction in accordance with Specimen Direction 40.1 of the Specimen Directions in Jury Trials.

66.  Whilst the applicant did not testify in the trial, he sought to rely on his video recorded interview, which was a mixed statement.  It contained inculpatory parts, namely, the applicant admitted that (a) he was present in the premises where the drugs were found; (b) he knew that there were drugs on the table in the room where he stayed and the drugs were cocaine; (c) he saw the drugs and related paraphernalia in the room; and (d) he also saw Tang using the cooker, pot and baking soda to heat the cocaine.  It also contained exculpatory parts, namely, the applicant denied (a) he was in possession of the drugs as he stated the drugs and related paraphernalia belonged to Tang; and (b) he was involved with Tang as he stated he happened to be in the unit when Tang brought the drugs to the unit and was merely present at the relevant time.

67.  In the course of the summing-up, the judge made references to both the inculpatory and exculpatory parts of the video recorded interview.[53]  The judge told the jury that “the defence say his explanations in his video-recorded interview was credible and supports his innocence, whereas the police witnesses are not credible.”[54]She alsoreminded the jury that “ … if you find what the defendant says is true or may be true, then you should find the defendant not guilty of the charge.”[55]and that “Do bear in mind throughout your deliberation that the prosecution also always bears the burden of proof If the defence version is true or may be true, then it means that the prosecution has failed to make your sure  that the accused, the defendant, is guilty, and you must acquit.  Even if you were to completely reject the defence version, the burden will still be on the prosecution to prove its case against the defendant.”[56]   

68.  The respondent contends that these directions, when read as a whole, were eminently fair to the applicant.  Whilst the respondent accepts that the judge did not give the standard direction on a mixed statement, it is submitted that despite not doing so, the non-direction was not material and the applicant suffered no prejudice.

69.  In respect of the circumstance where there has been a failure to give a mixed statement direction, it was held in HKSAR v Chung Yau Chuen, unrep., CACC 301/2018, 30 May 2019, that the Court of Appeal “has ultimately to ask itself whether this non-direction was material and, if it was, whether it resulted in a miscarriage of justice.  In making that determination, the effect of the judge’s non-direction must be weighed in the context of the summing-up as a whole.”.[57]

70.  The defence case essentially turned on what the applicant had said in his video recorded interview.  However, as set out in Specimen Direction 40.1 the jury would be told that the exculpatory parts in the interview were never repeated on oath and tested in cross-examination and that they may feel the incriminating parts are likely to be true.  So the applicant had the benefit of this part of the direction not being mentioned, let alone stressed, to the jury.  When the summing-up is considered as a whole, the judge effectively equated what the applicant had said in the interview with giving evidence on oath.  This was far more favourable to the applicant than the terms of Specimen Direction 40.1. 

71.  In my judgment, the omission to give the specimen direction on a mixed statement was not material and the summing-up when read as a whole was favourable to the applicant.

72.  I am not persuaded that this ground is reasonably arguable.

Conclusion

73.  In light of the foregoing, I grant the applicant leave to appeal on Ground 1, to the extent that I have explained in this judgment, but I refuse him leave to appeal on Grounds 2, 3 and 4. 

74.  In respect of the grounds of appeal on which I have refused leave, the applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application in respect of those grounds.

[1] Appeal Bundle (AB), 118J-M.

[2] AB, 118S-T.

[3] AB, 118R-S.

[4] AB, 118T-119B.

[5] AB, 1180-Q.

[6] AB, 129A-E.

[7] AB, 136S-137D.

[8] AB, 102C.

[9] AB, 119G-K.

[10] AB, 146K-O.

[11] AB, 97G-Q.

[12] AB, 121J-P.

[13] AB, 13 Counter 64.

[14] AB, 26 Counters 225-234.

[15] AB, 56 Counters 598-606.

[16] The unedited video recorded interview, at Counters 78, 149-211 (AB, 211-217) and 212-268 (AB, 25-29).

[17] AB, 202-210.

[18] AB, 119H, 121J-P, 129U-S, 136O-S and 145M-P.

[19] At [28] and [29].

[20] AB, 133S-134C.

[21] AB, 146K-T.

[22] AB, 98H-K.

[23] AB, VIII and IX, Admitted Facts (No 2), at [1] and [4].

[24] AB, 133B-S.

[25] AB, 134D-135N.

[26] AB, 134A-C.

[27] At 8. 

[28]  “1.   Absence of fingerprint evidence:

(1)  The circumstances in which the absence of a defendant’s fingerprints on a material exhibit may present itself in a particular case are infinitely varied. They include, but are not restricted to, the case:

(a)  where no fingerprint examination has been conducted but defence counsel invites the jury to draw an inference in the defendant’s favour;

(b)  where prints on an exhibit or surface disclose insufficient characteristics for identification; and

(c)  where, upon examination, the fingerprints of a third party have been found on an exhibit but none is attributable to the defendant and either (i) there is expert evidence or (ii) there is no expert evidence, explaining the significance or non-significance of those findings.

(2)  Given the wide variety of circumstances in which the issue may present itself, it is neither sensible nor practicable to suggest specimen directions which will cover all eventualities and only one example is given at A below. The appropriate direction will be one which is tailor-made for the specific case. However, the following points should be noted:

(a)  Where there is no fingerprint evidence at all, it proves nothing either way (HKSAR v Law Wing-Hong, CACC 169/1998, unrep., 11 November 1998.  See also HKSAR v Jassey Francis Ja & Anor, CACC 262/2017, unrep., 29 June 2018 at [42] and the cases there cited.) and it would be improper of counsel to suggest the contrary to the jury. The effect is the same where the evidence is that finger or palm prints have been examined but disclosed insufficient characteristics for identification or where, otherwise, an expert testifies that in the particular circumstances, the absence of fingerprints identifiable as those of the defendant does not exclude the possibility of his contact with the exhibit or surface (but see note (c) below).

(b)  Where examination of an exhibit reveals no fingerprint attributable to the defendant and the prosecution has not seen fit to adduce expert evidence to explain what conclusions may or may not be drawn, it may not be appropriate for the judge to fill the gap left by the prosecutor, for example, by informing the jury that “there are many reasons why contact may not result in fingerprints.” (HKSAR v Silva Barba [2017] 1 HKLRD 29.  See also HKSAR v Au Yeung Fu [1998] 2 HKC 81; HKSAR v Manan Abdul, CACC 64/2019, unrep., 13 November 2019; and HKSAR v Hoang Gia-huan, CACC 264/2018, unrep., 28 November 2019).

(c)  The absence of the defendant’s fingerprints on an examined exhibit does not invariably have a neutral effect. So, for example, the presence of the fingerprints of a third party, where there is no fingerprint attributable to the defendant, might support the defence case. (HKSAR v Tsuchiya Koji [2015] 6 HKC 463, a case where the finding of the DNA of female origin on the relevant exhibits was relevant to the credibility of the male defendant’s account.  See also HKSAR v Joseph Nabeel, CACC 181/2018, unrep., 15 January 2020 and HKSAR v Manan Abudul, CACC 64/2019, unrep., 13 November 2019.) By way of further example, the issues in and facts of a particular case may require the judge to draw the jury’s attention to the absence of any evidence, including fingerprint evidence, linking the defendant to premises where drugs were found. (See HKSAR v Au Yeung Fu [1998] 2 HKC 81.

(3)  These principles and suggestions apply equally to cases where DNA evidence is adduced.”  See also the Specimen Directions in this Chapter.

[29] AB, 146O-Q.

[30] AB, 135M-N.

[31] AB, 111P-112G.

[32] AB, 145C-R.

[33] AB, VI, Admitted Facts, at [9].

[34] AB, 132U-133A.

[35] AB, 126N-T.

[36] AB, VII, at [11].

[37] AB, 119M-O; 120D-F.

[38] AB, 144N-145C; 145R-146A.

[39] AB, 119G-K. 

[40] AB, 133S-134C.

[41] AB, 138J-K.

[42] AB, 146H-M.

[43] AB, 146M-O.

[44] AB, 146Q.

[45] AB, 121C-D.

[46] AB, 121Q-U.

[47] AB, 138A-G.

[48] AB, 141J-R.

[49] AB,138J-M.

[50] At [44], [85] and [86]. 

[51] AB, 119D-G.

[52] AB, 138U-139D, 140D-G.

[53] AB, 119H-K; 136S-137D; 137H-L.

[54] AB, 146M-O.

[55] AB, 119L-M.

[56] AB, 148J-M.

[57] At [22].