HKSAR v. CHUNG YAU CHUEN

CACC 301/2018

[2019] HKCA 610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 301 OF 2018

(ON APPEAL FROM HCCC NO 142 OF 2018)

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REASONS FOR JUDGMENT

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

1.  The applicant faced a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It was alleged that on 7 May 2015, at Lok Ma Chau Control Point, New Territories, the applicant unlawfully trafficked in 440 grammes of a crystalline solid containing 421 grammes of methamphetamine hydrochloride, commonly known as “Ice”.

2.  The applicant pleaded not guilty to the count on the indictment.  On 19 September 2018, following a trial in the High Court before Campbell‑Moffat J (“the judge”) and a jury, he was convicted of the offence.  On 21 September 2018, he was duly sentenced to 17 years and 7 months’ imprisonment. 

3.  The applicant sought leave to appeal against his conviction.  On 17 May 2019, having heard argument, we refused leave and dismissed the appeal, indicating that we would hand down our reasons in due course.  These are our reasons.

The prosecution case

4.  It was an admitted fact that at 14:15 hours on 5 May 2015, the applicant left Hong Kong for the Mainland through the Lo Wu Terminal.  He returned to Hong Kong from the Mainland, on 7 May 2015, through the Lok Ma Chau Terminal.

5.  The applicant was returning to Hong Kong by cross-border shuttle bus (“the Bus”), from Huanggang, Shenzhen on the Mainland, to Tsim Sha Tsui, Kowloon in Hong Kong.  Including the applicant, there were some 21 passengers on board, who had also boarded the Bus at Huanggang.

6.  In accordance with the usual practice, all passengers on board the Bus were required to alight at Lok Ma Chau Control Point in order to deal with Customs formalities.  After those formalities had been completed, the applicant entered Hong Kong, according to immigration records, at 02:05 hours on 7 May 2015.

7.  While the passengers were waiting to go through the Customs channel, Hong Kong Customs officers conducted a search of the Bus, which led to the discovery of the Ice particularised in the count on the indictment.  The Ice was found in two packets, each consisting of plastic/paper wrappings and plastic bags, hidden between the window and the second seat from the rear on the right hand side of the Bus; namely, seat number Y3[1].

8.  Having proceeded through Customs, the 21 passengers, including the applicant, re-boarded the Bus[2].  Customs officers then instructed all of the passengers to sit in their original seats.  However, the applicant did not do so but, instead, sat at seat number G1[3].  Indeed, no one returned to sit at seat number Y3[4].

9.  Subsequently, all 21 passengers were questioned. During his questioning, the applicant claimed that he had been sitting in seat number G1 and that he had gone to the Mainland by himself for a massage. Although he said that he was returning to Hong Kong on his own, he also claimed that he knew the person sitting next to him in seat number G2.  Nothing at this stage was said about anyone called “Ah Biu”[5].

10.  Further investigations were subsequently made and the applicant’s fingerprint was discovered on the sticky side of the adhesive tape that had been used to wrap one of the packets of Ice in question.  The fingerprint evidence was not disputed at trial[6].  Accordingly, the applicant was arrested more than two years later, on 30 October 2017, and a video-recorded interview (“VRI”) held the same day.  That VRI was admitted at trial to be voluntary[7].

11.  It was the prosecution case that the applicant was the only one in possession of the Ice in question, and that at the time of the offence he was trying to import dangerous drugs into Hong Kong.  The retail value of the Ice was HK$173,360[8].

The defence case

12.  The applicant did not testify, nor did he call any witness.  It was essentially the defence case[9], derived from the VRI, that the applicant knew the two packets were Ice but they belonged to a person called “Ah Biu”, who was also travelling with him on the Bus to Hong Kong.  However, the applicant had nothing to do himself with the importation of the Ice.

13.  In his VRI, the applicant claimed, inter alia, that:

(1)  He was working as a casual worker earning about HK$6,000 odd per month[10];

(2)  On this occasion he was travelling to the Mainland with “Ah Biu”, a clansman acquaintance, whom he did not know well and whom he had only known for less than 5 hours[11];

(3)  They had gone together to have fun, to look for girls, to have late night snacks and to consume Ice at “Ah Biu”’s home in Shenzhen[12];

(4)  During his visit to “Ah Biu”’s home, he saw “Ah Biu” packing some Ice into packets. Out of curiosity, the applicant had taken a look at one of the packets[13];

(5)  “Ah Biu”’s wife was also present.  When the couple started quarrelling, “Ah Biu” asked the applicant to leave with him, cross the border and go back to Hong Kong together[14];

(6)  The applicant and “Ah Biu” took the same Bus[15]. After “Ah Biu” had successfully passed through Customs, the applicant did not see him again[16];

(7)  “Ah Biu” was sitting on the seat near the aisle on the second last row on the right-hand side[17], and there might have been someone sitting next to him[18];

(8)  “Ah Biu” had told the applicant to sit away from him[19];

(9)  The applicant knew that the package contained Ice[20] and that it belonged to “Ah Biu”[21].  However, he was not aware that “Ah Biu” had brought it into Hong Kong until it was found by Customs officers[22].

Grounds of appeal against conviction

14.  Mr Cheung Wai-sun, on behalf of the applicant, has essentially advanced a single ground of appeal.  He complained that the judge, in her summing‑up, erred by not giving the jury a “mixed statement” direction regarding the VRI; and that such error rendered the conviction unsafe and unsatisfactory.

15.  Mr Cheung relied upon the statement of Lord Lane LCJ in R v Duncan[23], which was subsequently approved by the House of Lords in R v Sharp[24], and endorsed by Lord Hoffmann NPJ in Li Defan & Another v HKSAR[25], that:

“Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies ... [W]here appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight.  Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.”

16.  Counsel submitted that the circumstances of the present case called for the standard “mixed statement” direction to be given, in accordance with Direction 40 of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute.  He argued that, whilst no particular form of words was required, and the judge was entitled to depart from the strict terms of the Specimen Direction, she would have to have had a good reason for doing so.  Since the Specimen Direction was entirely comprehensible to an ordinary member of the public, who would have no prior knowledge of the law, it was contended that the judge should have given it in its entirety.

17.  Mr Cheung also complained that the summing-up was problematic because it was likely to cause confusion to the jury.  Having correctly instructed the jury that a defendant had a right of silence and was not required to give evidence, the consequence of which was simply that there was no oral evidence from him to undermine, contradict or explain the prosecution case, the judge went on to say that his answers in the VRI, which amounted to a “mixed statement”, were tantamount to oral evidence.  Mr Cheung argued that the jury might have been left wondering whether the applicant’s account in his VRI could in fact undermine, contradict or explain the prosecution case.  If there was a chance that the jury might have been confused by these conflicting directions, the ensuing verdict must be unsafe and unsatisfactory.

The respondent’s submissions

18.  In response, Mr Gary Leung, for the respondent, rightly accepted that the VRI was a “mixed statement” and that the judge did not give the standard Specimen Direction in her summing‑up.  Nevertheless, he submitted that no prejudice or unfairness could conceivably be said to have resulted to the applicant.  Having properly directed the jury on the burden and standard of proof[26], the judge then said of a defendant who did not testify[27]:

“In terms of the video-recorded evidence, that is very similar to the evidence that you see from witnesses in the box. You listened to it. You have got a transcript of it at P15. You decide, because you are the judges of fact, whether you believe what is said in there; what you accept; what you do not accept. You may accept some parts, you may reject some parts. You may accept it in whole, you may reject it in whole. That is for you to decide. …” (emphasis added)

19.  Of his answers in the VRI, the judge had directed the jury[28]:

“Some of the answers to that you might be able to find in the video-recorded interview because he gave you an explanation of events. He did not give you a complete explanation of events. Although, I have to say, ladies and gentleman, as with witnesses who give evidence from the witness box, you only get the answers to the questions that are asked. So, sometimes if a question is not asked, it does not mean to say there was not an answer, it is just that they were not asked. …” (emphasis added)

20.  Mr Leung argued that the combined effect of the above passages, in the context of the summing‑up as a whole, did not prejudice the applicant at all; on the contrary, the directions were unduly favourable to the defence.  In particular, the judge did not direct the jury that the inculpatory parts of a mixed statement were more likely to be true, otherwise why say them, nor did she direct the jury that they might attach less weight to the applicant’s excuses or explanations, since they were not made or repeated on oath and had not been tested in cross-examination; directions which are contained in the Specimen Direction.  Instead, what the jury were told was that the applicant’s answers in the VRI were effectively the same as if he had given evidence in the witness box.

21.  In support of his submissions that the directions were in fact favourable to the defence, Mr Leung cited the decision in HKSAR v Leung Fun Shing[29], where the defendant, who stood trial for murder, also did not testify or call witnesses.  In his video-recorded interviews, the defendant had admitted the killing but denied having the necessary mens rea for the offence of murder.  The Specimen Direction in respect of a “mixed statement” was likewise absent from the summing‑up.  Nevertheless, the Court held[30]:

“13. Although the applicant’s out-of-court statements were “mixed” statements, containing both inculpatory and exculpatory parts, the judge did not give the jury the standard direction, in particular that they may feel that less weight is to be attached to the exculpatory parts of a mixed statement. Further, in circumstances where “the defence is relying by way of answer upon some extra-judicial statement proved by the prosecution which the accused has not supported in evidence” the judge may comment to that effect. To that extent, the summing up was unduly favourable to the applicant…” (emphasis added)

Discussion

22.  We accept that the judge did not give the jury the Specimen Direction in respect of a “mixed statement”.  Be that as it may, this Court 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.  It does not follow that simply because there is an error in, or omission from, a set of standard legal directions, the conviction must inevitably be set aside.

23.  There was little dispute concerning the prosecution case, the defence case essentially turning on what the applicant had said in his VRI, which was a “mixed statement”.  The judge told the jury[31]:

“If the defence put forward by the defendant is or may be correct, then the defendant is entitled to be acquitted. You do not have to positively believe the evidence relied upon by the defence. If that evidence gives rise to a reasonable doubt about the issue you are considering at the time, you cannot find that issue against the defendant contrary to the evidence. That will become more clear later.”

24.  The exculpatory parts of his VRI were never repeated on oath and tested in cross‑examination.  Yet the judge effectively equated what the applicant had said in interview with giving evidence on oath. Indeed, she went so far as to describe his account in the VRI as “documentary evidence”[32]:

“The defendant relies upon that documentary evidence for his defence and you have got, have you not, because it was gone through at great length by (defence counsel), the video-recorded interview. That is documentary evidence. You have got the actual physical video recording of what the defendant said at the time he was interviewed. But you have also got the admitted facts and you have got two sets of admitted facts. Those are documents signed by both parties. They are evidence for both parties. They are what they agree. So, you do actually have defence evidence.

Of course, they are slightly different types of evidence. In terms of the video-recorded evidence, that is very similar to the evidence that you see from witnesses in the box. You listened to it. You have got a transcript of it at P15. You decide, because you are the judges of fact, whether you believe what is said in there; what you accept; what you do not accept. You may accept some parts, you may reject some parts. You may accept it in whole, you may reject it in whole. That is for you to decide.” (emphasis added)

25.  In our judgment, the italicised part of these directions were far more favourable to the applicant than the terms of Specimen Direction 40.  It has long been accepted that the exculpatory parts of an out‑of‑court statement may carry less weight than the incriminatory parts.  In Western v Director of Public Prosecutions[33], for example, the Divisional Court in England and Wales held[34]:

“... if having given an account to the police a defendant fails to give evidence in support of it, and there is no other evidence to support that account, it is highly likely that the weight to be attached to what the defendant has said [in a mixed statement] will be minimal....”

And, as we have seen, the passage from Duncan, at paragraph 15 above, which distinguished between the weight a jury might accord to evidence given on oath on the one hand and to answers which are given in out-of-court statements but not repeated on oath on the other, has been specifically endorsed in this jurisdiction.

26.  Notwithstanding that the judge could have drawn a distinction between the relative weight a jury might attach to the inculpatory and exculpatory parts of the applicant’s VRI, she effectively drew little or no distinction at all and invited the jury to treat the applicant’s exculpatory account as though it were his evidence on oath, which, if might be true, would oblige them to acquit.  We cannot see how this could have been anything but favourable to the applicant.  Indeed, Mr Cheung, when pressed, had to concede as much; although he maintained his position that the jury may still have been confused by the judge’s directions.

27.  Furthermore, when dealing with the question of whether and, if so, why the applicant had changed his seat when he re‑boarded the Bus, the judge once again compared the applicant’s answers in his VRI to the testimony of a live witness, and told the jury that even if the applicant did not provide a complete explanation of events in the VRI, that might be because those questions were simply not asked by the interviewing officer[35]:

“Some of the answers to that you might be able to find in the video-recorded interview because he gave you an explanation of events. He did not give you a complete explanation of events. Although, I have to say, ladies and gentlemen, as with witnesses who give evidence from the witness box, you only get the answers to the questions that are asked. So, sometimes if a question is not asked, it does not mean to say there was not an answer, it is just that they were not asked. So, he never says why it is he actually moved forward by four or five rows to sit somewhere else. So, you do not know why he did.” (emphasis added)

And later[36]:

“There is no doubt that he was at the back of the bus, what I would call the back of the bus, at the beginning. It is a little difficult to work out quite where he was sitting, but he was at the back of the bus and because he said he was one of the last to get off as well, in any event. But that he accepts that when he got back on, in interview, he did come some quite a few rows further forward, he is just not asked why.”(emphasis added)

These directions were also very favourable to the applicant, effectively treating his answers to questions in the VIR as though they had been given in evidence on oath.

28.  In our judgment, the omission to give Specimen Direction 40 was not material and could not have led to any miscarriage of justice whatsoever in the present case.  On the contrary, the directions the judge did give, when read as a whole, were extremely favourable to the applicant and we do not accept that they could have engendered any confusion as to their application.

29.  For these reasons, the application for leave to appeal against conviction was refused and the appeal dismissed.