HKSAR v. CHEUNG KIM SHING

CACC 439/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 439 OF 2015

(ON APPEAL FROM HCCC NO. 343 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The applicant sought leave to appeal against his conviction on 14 December 2015, after trial by Deputy Judge Campbell-Moffat SC, as Campbell-Moffat J was then, and a jury, of trafficking unlawfully, together with Ms Lee Wai Kwan, in a dangerous drug on 3 August 2014, namely 1,450 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing we allowed the application and, treating the hearing of the application as the hearing of the appeal, we quashed the applicant’s conviction. We ordered a re-trial on a fresh indictment. Now, we give our reasons for those determinations.

The trial

2. There was no dispute that at 23:23:10 hours on 3 August 2014 Ms Lee had been intercepted by officers of the Customs & Excise Department as she entered Hong Kong from the Mainland through the Arrival Hall at the Lo Wu Control Point.  She was found to have the dangerous drugs the subject of the count on the indictment strapped to her thighs and waist.[1]  The Immigration Department’s movement records evidenced the fact that Ms Lee left Hong Kong through the Lok Ma Chau terminal at 20:55:59 hours, whereas the applicant left Hong Kong through the same terminal at 20:55:54 hours and returned to Hong Kong through the Lo Wu Control point at 23:22:40 hours.

The prosecution case

3. It was the prosecution case that Ms Lee unlawfully trafficked in dangerous drugs in importing them into Hong Kong under the control and at the direction of the applicant.  In support of their case, the prosecution relied on the undisputed evidence that two fingerprints of the applicant had been discerned then lifted from the sticky side of the adhesive tape removed from the polythene sheet attaching the dangerous drugs to Ms Lee’s body.[2]

4. Ms Lee testified that she had come to know the applicant in his mah-jong establishment, which she first patronized at the end of 2012.  Thereafter, she patronised the establishment on an almost daily basis.  In playing mah-jong she incurred debts to other players.  In due course they were assigned to the applicant.  She was unable to repay that debt.

5. Ms Lee testified that it was in those circumstances that the applicant offered to give her around $10,000 to import dangerous drugs from the Mainland into Hong Kong.  On 3 August 2014, the applicant telephoned Ms Lee and asked her to meet him in Prince Edward, so that they could take a coach to Shenzhen together.  Having met, they departed Hong Kong through the Lok Ma Chau Terminal at about 20:55 hours.  Then, they had a meal together, after which they went to a serviced apartment, Taiwan Garden.  The applicant opened the door with the key kept under the doormat.  Ms Lee said that she had been to the building with the applicant on two previous occasions in July 2014, but they had gone to a different apartment.

6. Shortly after they had entered into the apartment, a lady came in, deposited a big bag and then left.  The bag was placed in a cupboard in the bedroom.  Around 10 minutes later, another lady came into the apartment and conversed with the applicant.  He asked her if she wanted to take some dangerous drugs to Hong Kong for him.  Although, initially she agreed to do so, later she changed her mind.

7. Then, the applicant removed three bags of Ice from the larger bag, brought by the first lady visitor, and used adhesive tapes to attach them to Ms Lee’s thighs and waist.  Next, the applicant and Ms Lee went to the border crossing intending to return to Hong Kong through the Lo Wu Control Point.  The applicant crossed first.  For her part, Ms Lee was intercepted when she attempted to cross shortly afterwards.

8. After the dangerous drugs had been discovered taped to her person, Ms Lee told the Customs officers that she had been carrying the Ice for someone else.  At their request, to effect a controlled delivery of the Ice to the applicant, she telephoned the applicant and had a short conversation with him in which she explained her delay in crossing into Hong Kong.  She said that she had problems with her identity documents and told him that she would go straight home.  Her efforts to effect a controlled delivery came to nothing.

The defence case

9. The applicant elected to testify but called no other defence witnesses.  He lived on his savings and drew commissions from operating a mah-jong establishment, initially in Prince Edward Road West and in June 2014 at 36, Nam Cheong Street. 

10. He said he first came to know Ms Lee at the mah-jong establishnment in March or April 2014.  She also patronised the relocated mah-jong establishment on two or three occasions.  Having learnt that her boyfriend was in prison, he developed a sexual relationship with Ms Lee.  In July and August 2014, they travelled to Shenzhen on four occasions to have sex in an apartment of which Ms Lee was the occupier.

11. During their visit to the apartment in July he found the sofa in the apartment was dirty, so he cleaned it using the sticky side of the tape.  Having done so, he screwed up the tape and threw it away. 

12. He said the sole purpose of going to the apartment on 3 August 2014 was to have sex with Ms Lee.  After they had sexual relations, Ms Lee asked him to leave first and meet her at the Lo Wu Border at around 11 p.m.  He did so.

13. When the two of them met as arranged, he had no knowledge that she had dangerous drug taped to her body.  In crossing the border, he maintained a distance ahead of Ms Lee.  He did so because he was a married man and he did not wish to be seen to be travelling together with another woman.  He did not see Ms Lee after crossing the border himself.  So, he made two telephone calls to her.  However, neither call was answered.  Having waited for her for 10 to 20 minutes he returned home and went to sleep.

Grounds of appeal against conviction

14. In his grounds of appeal against conviction Mr Bernard Yuen, counsel for the applicant here and at trial, advanced three grounds of appeal.  By Ground 1, it was submitted that the summing-up was “…unbalanced, one-sided and unfair to the applicant”, so that in effect it “…amounted to a second closing speech for the prosecution.”

15. By Ground 2(a), it was submitted that the judge failed to give proper directions to the jury in respect of their approach to the evidence that the applicant’s fingerprints had been found on the adhesive tape which had been used to tape the Ice to the body of Ms Lee, in particular as to the sufficiency of that evidence to support a conviction, in the event that the jury did not find Ms Lee to be “a credible and reliable witness”.

16. By ground 2(c), it was contended that the judge had failed to give proper directions to the jury in respect of the “effect and relevance” to their consideration of the count on the indictment of Ms Lee’s evidence that prior to 3 August 2014 the applicant supplied dangerous drugs to others at his mah-jong establishment.

17. By ground 3, it was submitted that, in consequence of the judge’s failure to give proper directions to the jury on the matters set out in the other grounds, the applicant was deprived of a fair trial, so that his conviction was unsafe and unsatisfactory.

The respondent’s submissions

18. In his written submissions Mr Eddie Sean said that the judge’s summing up was fair and balanced.  The judge made it clear to the jury that it was a matter for them whether or not they accepted the evidence of Ms Lee.

19. Mr Sean submitted that the judge had reminded the jury accurately of the evidence of the applicant in respect of the fact that two of his fingerprints had been found on sticky tape used to secure the dangerous drugs to the body of Ms Lee, namely that he had used it on an earlier occasion to clean the sofas in the apartment which he visited with Ms Lee on 3 August 2014.  He said that the judge had directed the jury correctly that even if they did not accept the evidence of the applicant they had to be sure on the evidence as a whole of the applicant’s guilt.  Further, he submitted that the judge was correct to direct the jury that, even if they rejected the evidence of Ms Lee, they were entitled to consider the evidence of the finding of the applicant’s fingerprints on the sticky tape and the evidence of the movements of the applicant and Ms Lee in and out of Hong Kong on 3 August 2014 to determine whether or not they could draw as the only reasonable inference that the applicant was unlawfully trafficking in dangerous drugs with Ms Lee.

20. Of the evidence-in-chief of Ms Lee that she had seen customers approaching the applicant in the mah-jong establishment asking for dangerous drugs, Mr Sean invited the Court to note that Mr Yuen had made no objection to the posing of the question when, having regard to the witness statements of Ms Lee, the answer elicited was obviously the expected answer.  He acknowledged that, in all the circumstances, it appeared, that Mr Parry has elicited the evidence deliberately.  Similarly, he invited the Court to note that Mr Yuen did not raise with the judge any issue arising from the evidence until all the evidence had been led at trial.

A consideration of the submissions

Uncharged acts

21. Evidence of requests that were made of the applicant by customers of the mah-jong establishment for dangerous drugs emerged first of all in the evidence-in-chief of Ms Lee.  The following interchange ensued between Mr Parry, counsel for the prosecution, and Ms Lee:[3]

“ Q. Right, and in addition to mah-jong, did it offer any other -- any other businesses run from there?

A. Yes.

Q. And what was that?

...

A. The defendant opened this mah-jong establishment and many customers approached him for getting something.

….

Q. And you said customers sometimes asked for something. What was that?

A. That is dangerous drug.”

22. It is noted that Mr Yuen made no objection either to the question being asked or in consequence of the answer that it elicited.  Ms Lee had made three witness statements, copies of which were in the committal papers.  Of the first mah-jong establishment operated by the applicant, Ms Lee said of the applicant that he “was the keeper, responsible for collecting commissions from mah-jong games and acting in selling drugs to other people…Kam Shing sold drugs every day.” [4]  Of the second set of premises, at 36 Nam Cheong Street, she said that it was “…in fact a place for playing mah-jong and selling drugs.” [5]  So, it was readily apparent that the evidence actually elicited from Ms Lee was available to be elicited.  In fact, it is to be noted that in the questions that were posed of Ms Lee Mr Parry returned to the issue of what it was that customers sought from the applicant.  It was clear that Ms Lee’s testimony was going to be that it was dangerous drugs.

23. In his oral submissions, Mr Yuen acknowledged that the issue of Ms Lee’s assertion in her witness statement as to the applicant’s dealings in dangerous drugs in the mah-jong establishment had not been canvassed with the judge either in the pre-trial review or before evidence was led from Ms Lee.  He said that he had raised the matter with Mr Parry and agreement had been reached between them that Mr Parry would not lead that evidence.  If that is the case, it is all the more extraordinary that Mr Yuen did not object to Mr Parry asking Ms Lee to clarify what she meant when she said that “customers approached and forgetting something.”

24. In cross-examination of Ms Lee, having informed the witness that he intended putting the applicant’s case to her, counsel for the applicant addressed that evidence:[6]

“ Q. And also I put it to you that you have never seen the defendant selling any illegal things or dangerous drugs to anyone there.

A. Where are you talking about?

Q. No. 36 Nam Cheong Street.

A. In fact, it did happen but I was very confused because the defendant took something to someone and then somebody else, but at that time, I concentrated on mahjong games.”  [Italics added.]

25. In the course of the applicant’s evidence, Mr Yuen canvassed the subject again:[7]

“ Q. And did you ever provide any dangerous drugs or any illegal substance to anyone at No. 36 Nam Cheong Street?

A. No.”

26. At the conclusion of the evidence in the trial, counsel for the applicant raised with the judge the issue of the evidence of Ms Lee in respect of the supply of dangerous drugs by the applicant to others in the mah-jong establishment:[8]

“ MR YUEN: In fact, my Lady, I wonder if I would be given some time to address your Ladyship on -- there are some areas which I hope could be covered in your Ladyship’s directions.

COURT: Well, you just have to indicate to me. I have a traffic in dangerous drugs summing-up that I do, because, and some might do...

MR YUEN: I think it’s specifically in respect of evidence in this case. For example, what is the fact of PW1 testifying to the effect that he -- she saw some trafficking or supplying of drugs inside...

COURT: I am not going there. I am not going there.

MR PARRY: And I am not.

COURT: No, I am known to be safe, Mr Yuen. So if you want to go there, you can, but I am not going there.

MR YUEN:  But I think they should be given directions on the effect of that piece of evidence, otherwise, if there is a...”

27. After some discussion between the judge and counsel as to how and what evidence had emerged, Mr Yuen renewed his submission:[9]

“ COURT: What direction do you want, Mr Yuen?

MR YUEN: I think the jury should be reminded that as far as the present indictment is concerned, it is not in respect of any trafficking activities that took place inside Number 36 Nam Cheong Street.

COURT: The only thing that instinctively comes to me now is this. It was so in passing that I wondered if I give a direction on it, I make it worse for you, not better, no matter how emphatic I am about the fact that they should ignore it. I might -- by my raising it, I might give credence to it, even if I am telling them forget it. Think about that, all right? Because instinctively, for me as criminal counsel, it was so in passing, if no one else mentioned it, I wonder whether they’d even remember it, but it’s a matter for you.

MR YUEN: But because my concern is that, if, without such direction to the jury, if at the end of the day, there is a conviction, we cannot be sure whether the conviction is in respect of the trafficking in dangerous...

COURT:  I think we can, because I will be directing them that this case is about the importation and dealing across the border.”  [Italics added.]

28. The judge went on to say:[10]

“ COURT: I am just wondering if I mention that, plus I have to do propensity and credibility, whether in -- highlighting this, and then happening to mention the movement of drugs in his mah-jong establishment, that’s going to make it worse, not better. Whereas they may forget it.”

29. Then, the following interchange ensued:[11]

“ COURT: Yes, but you -- I know Mr Parry won’t touch it. Are you going to go to it in your speech? Because if you go to it in your speech, then I have to.

MR YUEN: Yes, I think I would.

COURT: Very well, then.

MR YUEN:  Because that is already in the evidence, yes.”

30. In the result, the discussion concluded on the following basis:[12]

“ COURT: If you go to it in your speech, I will have to go to it.

MR YUEN: Yes.

COURT: If you don’t go to it in your speech at the moment, I am minded not to mention it, because I think it does you harm, even if I give an emphatic direction. But I will do it if you go to it in your speech and you want me to give that direction.

MR YUEN: Yes, thank you.

COURT:  Of course I will.”  [Italics added.]

31. As noted in the interrupted interchange between the judge and counsel, Mr Yuen sought a direction from the judge in respect of Ms Lee’s evidence that “she saw some trafficking or supplying drugs inside…”  No doubt, although he was interrupted, Mr Yuen intended to say and was taken to be referring to her evidence of the applicant’s activity inside the mah-jong establishment.  Then, although he was interrupted again, he sought a direction to the jury “…on the effect of that piece of evidence.”  Specifically, he asked that the jury be reminded that the indictment was not concerned with “any trafficking activities” that took place in the mah-jong establishment.  As noted above, in face of Mr Yuen’s statement that he proposed to raise the matter in his closing speech, the judge said that she would give “that direction”.  However, the judge provided no details of the direction she intended to give in those circumstances.

32. In the course of his closing speech, Mr Parry made no reference to Ms Lee’s evidence about the applicant dealing in dangerous drugs with customers in the mah-jong establishment.  However, by contrast Mr Yuen made the following submission to the jury:[13]

“ And one final point about PW1’s evidence implicating the defendant in respect of supply of dangerous drugs in the premises at No 36 Nam Cheong Street. Members of the jury, there is only one count in the indictment about the defendant having a joint enterprise with PW1 for trafficking in dangerous drug, that is, by bringing the dangerous drugs from mainland China to Hong Kong. And therefore whatever the -- whatever PW1 said concerning the defendant supplying dangerous drugs to the other, I respectfully submit that this -- such evidence should be disregarded because it must not be evidence adduced to substantiate the present charge against the defendant.” [Italics added.]

33. At the conclusion of the speeches of counsel, the judge raised with Mr Yuen his statement to the jury that the burden was on the prosecution to establish beyond reasonable doubt that Ms Lee was a person both willing and able to tell the truth, given her psychiatric problems.  She did not raise with Mr Yuen his invitation to the jury to disregard her evidence in respect of the supply of dangerous drugs to others in the mah-jong establishment because it did not “substantiate the present charge against the defendant.”  For his part, Mr Yuen explained to this Court that, at that stage, he did not raise with the judge the issue of the direction which the judge was going to give the jury because the judge had made it clear, in the earlier interchange with counsel, that she would give an “emphatic direction” that the jury were to “ignore” or “forget” that evidence.

34. The judge raised with Mr Parry issues arising from his speech in respect of inferences, which she indicated would result in changes to her planned summing up.  She did not inform counsel how it was that she intended directing the jury in respect of Ms Lee’s evidence of the applicant’s conduct in supplying dangerous drugs to others in the mah-jong establishment.

Summing up

35. The judge began summing up on Friday morning, but reserved her concluding remarks until Monday morning.  In the course of her summing up on Friday she addressed the two issues of whether or not gambling in the applicant’s mah-jong establishment was illegal and the evidence of Ms Lee as to the supply by the applicant of dangerous drugs to customers in the establishment.  Of the former matter, she said:[14]

“ The issue of whether the mah-jong establishment… was an illegal gaming establishment is not an issue before you, and you should put it out of your mind when considering whether or not the defendant is guilty of trafficking in dangerous drugs. Even if it was an illegal establishment - and I am not going to say one way or the other what view the court takes of whether it was an illegal establishment - it does not follow that he is necessarily guilty of trafficking in dangerous drugs because somebody who commits one type of offence might not commit another type of offence.

  But the fact that he operated the mah-jong establishment is part and parcel of the circumstances, is it not?  It is part and parcel of the background of this offence because this is where PW1 met him, and according to her, how the whole situation arose whereby she was eventually asked to carry drugs.  So it is relevant, the nature of the mah-jong establishment and what was going on there is relevant.  Just put it out of your mind whether it was legal or illegal.”

36. Then, of the issue of the supply of dangerous drugs to customers in the mah-jong establishment, the judge said:[15]

“ In the same way, there has been a suggestion that there was a supply of dangerous drugs going on within that establishment. In fact, Mr Cheung was asked about it in his evidence-in-chief by Mr Yuen and it is something that Mr Yuen mentioned at the end of his speech to you. That was an allegation by PW1 in her evidence and the defendant denied it. He accepts he is a user of dangerous drugs and you know he has got previous convictions for possession of dangerous drugs. But PW1 did give that evidence. She says that there was the supply of drugs going on in the mah-jong establishment and it is up to you to decide whether you believe her on that issue or not.”

37. Of the relevance of that evidence, the judge said:[16]

“ The fact that the defendant supplied drugs to others within the mah-jong parlour may be relevant to your consideration of whether it was in his interests to traffic in dangerous drugs. It forms part of the background of the offence. So just as the fact that PW1 was an abuser of ‘Ice’ may give you some indication of why it was she was prepared to play her part, the illegality of it put to one side, the fact of it may be something that you should take into consideration because it forms part and parcel of why people do what they do and whether this was done on this occasion.” [Italics added.]

38. The judge continued her summing up until about 3 p.m. on Friday, at which point she invited the jury to leave court and return to hear her concluding remarks on Monday morning.  Then, in the absence of the jury she said to counsel:[17]

“ Gentlemen, I only have the concluding directions, so if you think I’ve done anything wrong, or if you think I’ve missed something that - as opposed to disagreeing with me - if you think I’ve missed anything that you did expect me to give a direction on, can you let me know before Monday morning? But I have covered everything in the way I think I wanted to cover it.”

39. Neither counsel raised any issue with the judge, either then or on Monday morning when, in the absence of the jury, the judge enquired of counsel:[18]

“ COURT: Mr Parry, Mr Yuen, nothing coming up, we’re all right? First having the jury in and sending them out?

MR PARRY: No, my Lady.

MR YUEN:  No.”

40. Notwithstanding the judge’s restrictive invitation to counsel to raise with her only matters that she had missed out in her summing up, “as opposed to disagreeing with me”, it is difficult to understand, with respect to Mr Yuen, why he did not object to the direction given by the judge, either when the jury was sent away on Friday afternoon or on Monday morning, by which time he would have had the benefit of the weekend to reflect on the direction.  Similarly, it is extraordinary that Mr Parry did not raise the matter himself.

41. Remarkably, neither counsel had drawn the judge’s attention to any textbook or any authority relevant to the issue that arose from evidence that was before the jury of the uncharged acts of the applicant.

42. Obviously, a variety of issues arose.  First, was the evidence admissible?  For what purpose was it admissible?  Secondly, if it was not admissible, what was to be done.  Was it appropriate that the jury be discharged?  In that context, it is to be noted that the impugned evidence adduced from Ms Lee in evidence-in-chief occurred in the first 20 minutes or so of her evidence, she being the first prosecution witness.

43. Certainly, in exchanges with the judge, Mr Parry suggested that he had not intended to elicit the evidence.  In the discussion between the judge and counsel prior to closing speeches, the following interchange ensued on that subject:[19]

“ MR PARRY: No, I can tell you. What happened that -- I asked her questions about what was going on in that establishment to get a massage, but -- and then she came out about the dangerous drugs.

COURT: No, he gave something. She didn’t say dangerous drugs. She said “he passed something to someone.” Which was...

MR PARRY: Something, but I asked -- yes, but I later asked what something was, and then it was drugs.

COURT: And she said drugs.

MR PARRY:  And then I left it alone.”  [Italics added.]

44. It is correct, that the limit of the evidence adduced as a result of Mr Parry’s questions was that customers of the mah-jong establishment asked him for dangerous drugs, not that he had supplied customers with dangerous drugs.  On the other hand, the immediate context of that evidence was in respect of Ms Lee’s evidence that another business was run on the premises.  It was in response to Mr Yuen’s assertion to Ms Lee in cross-examination, that she had never seen the applicant selling dangerous drugs to anyone in the mah-jong establishment, that she replied “It did happen.”  Notwithstanding that evidence, Ms Lee went on to say “…but I was very confused because the defendant took something to someone and then to somebody else, at that time, I concentrated on mahjong games.”

45. Clearly, that was a wholly insubstantial evidential foundation to support Ms Lee’s bare assertion that the applicant supplied dangerous drugs to customers on the premises.  It had very little, if any, probative value.  Clearly, such probative value it might have had was outweighed by the prejudicial effect.  In those circumstances, clearly it was open to the judge to direct the jury to ignore that evidence on that basis, but also on the basis advanced by Mr Yuen, essentially that it was irrelevant to the count in the indictment.

46. Far from taking that course, the Judge directed the jury:[20]

“ The fact that the defendant supplied drugs to others within the mah-jong parlour may be relevant to your consideration of whether it was in his interests to traffic in dangerous drugs.”

47. The judge did so, notwithstanding the fact that Mr Parry had eschewed any and all reliance on the evidence and notwithstanding that she had indicated to Mr Yuen that she would direct the jury to ignore this evidence.

48. In the judgment of this Court delivered by Yuen JA in HKSAR v Kwok Hing Tony [21], the issue of the approach to be taken to evidence of uncharged acts was addressed:[22]

“ In our view, the principles of law on evidence of “uncharged acts” derived from the above Australian cases and other English cases are as follows:

(a) The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7.  Citing R v Pettman (unrep. Engish Court of Appeal 2 May 1985), R v M & Ors was followed in HKSAR v Chan Pui Mun ( unrep., CACC 514/2006 , [2008] HKEC 2071).

(b) Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following: 

•   to prove the setting and context in which the offence occurred, or

•   to explain the defendant’s confidence in repeating the offence, or

•   to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or

•   to explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of “Uncharged Acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.

(c)   Of course the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.”

49. Of course, given the position that Mr Parry took to the evidence of Ms Lee as to the applicant dealing in dangerous drugs in the mah-jong establishment, the judge did not have the benefit of any argument whatsoever as to the basis on which the evidence was admissible.  In that context, we pose the rhetorical question which arises from the passage quoted from the judgment of Yuen JA: would the jury have an incomplete or incomprehensible account of events in the absence of this evidence?

50. Ms Lee’s evidence was perfectly understandable without any reference to the applicant’s dealing in dangerous drugs in the mah-jong establishment.  She said that she had come to know the applicant at the mah-jong establishment.  She had fallen into debt, which at the end of the day she owed to the applicant.  In those circumstances, she accepted his offer of a monetary reward to act as a courier of dangerous drugs.

51. In her judgment, Yuen JA went on to consider the directions that should be given to the jury in the event that evidence of uncharged acts was adduced at trial.  First, that the jury should be directed as to the standard of proof, generally that proof of the uncharged acts was required beyond reasonable doubt.[23]  Secondly, that the judge must direct the jury as to the use to which the evidence may be put, in particular:

“ … the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.”

52. Of Ms Lee’s evidence and the approach to be taken by the jury, the judge said:[24]

“ She says that there was the supply of drugs going on in the mah-jong establishment and it is up to you to decide whether you believe her on that issue or not.”

53. In giving that direction, the judge did not direct the jury that they were required to be sure of the occurrence of the uncharged acts.  Of course, the judge had given the jury the standard directions that before they could convict the applicant they had to be “sure of the defendant’s guilt”.  But, that was a matter that was separate from the need to be sure of the occurrence of the uncharged acts as testified to by Ms Lee.

54. Furthermore, the judge did not direct the jury specifically that they may not infer from the evidence of the uncharged acts that the applicant had “committed similar offences, or that he is the sort of person with a propensity to commit the offence.”  On the contrary, as noted earlier, she suggested

“ The fact that the defendant supplied drugs to others within the mah-jong parlour may be relevant to your consideration of whether it was in his interests to traffic in dangerous drugs.”

55. In his oral submissions, Mr Sean conceded that the judge’s direction was a mis-direction.  We are satisfied that he was correct to do so.  The judge erred in failing to direct the jury to ignore the evidence of Ms Lee in respect of the applicant’s dealing in dangerous drugs in the mah-jong establishment.  Further, that the directions that she did give in respect of that evidence were mis-directions and non-directions.

The proviso

56. When asked to address the Court on the issue of the applicability of the proviso, Mr Sean said that in light of the evidence of the finding of the applicant’s fingerprints on the tape securing the dangerous drugs to Ms Lee’s body and the evidence of the synchronised movements of the applicant and Ms Lee in and out of Hong Kong on 3 August 2014, it was appropriate to apply the proviso.  For his part, Mr Yuen submitted that it was not appropriate to apply the proviso.  The misdirection was fundamental and undermined the safety of the conviction.

57. We are satisfied that Mr Yuen is correct.  Clearly, it is not appropriate to apply the proviso.

58. The Court having indicated to the parties that it was minded to grant the application on the aforesaid basis, Mr Yuen did not take issue with the statement of the Court that in those circumstances it was not necessary for the Court to address the other grounds of appeal.

Conclusion

59. Accordingly, we allowed the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction.

Re-trial

60. Mr Sean asked the Court to order a re-trial of the applicant. He informed the Court that Ms Lee was in custody and, therefore, available to be called as a witness in a retrial.  Mr Yuen said that he was unable to resist that application.  We were satisfied that it was appropriate to order a re-trial of the appellant.

Orders

61. We ordered that the applicant be re-tried on a fresh indictment before another judge, which indictment is to be filed within 14 days hereof, and that the matter be listed before the Listing Judge for the fixing of trial dates within 28 days hereof.  We remanded the applicant in custody pending his re-trial.

[1] Appeal Bundle, page 7 - Admitted Facts, paragraph 1.

[2] Appeal Bundle, page 9 - Admitted Facts, paragraph 10.

[3] Appeal Bundle, pages 58 P - 59 F.

[4] Committal Bundle, pages 13-14.

[5] Committal Bundle, page 14.

[6] Appeal Bundle, page 118 M-P.

[7] Appeal Bundle, page 155 E-F.

[8] Appeal Bundle; page 177 C, E-N.

[9] Appeal Bundle; page 177 D, C-M.

[10] Appeal Bundle; page 177 D, T to page 177 E, A.

[11] Appeal Bundle; page 177 E, G-J.

[12] Appeal Bundle; page 177 E, L-Q.

[13] Appeal Bundle; page 204 D-H.

[14] Appeal Bundle; page 28 P-M.

[15] Appeal Bundle; page 28 N-T.

[16] Appeal Bundle; pages 28 T - 29 E.

[17] Appeal Bundle; page 206 E-H.

[18] Appeal Bundle; page 207 B-D.

[19] Appeal Bundle; page 177 C, R to page 177 D, C.

[20] Appeal Bundle; page 28 T - page 29 A.

[21] HKSAR v Kwok Hing Tony[2010] 3 HKLRD 769.

[22] HKSAR v Kwok Hing Tony, paragraph 16.

[23] HKSAR v Kwok Hing Tony, paragraph 16(e).

[24] Appeal Bundle; page 28 S-T.