HKSAR v. CHENG LUNG CHEONG BRIAN

CACC 174/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 174 OF 2011

(ON APPEAL FROM HCCC NO. 257 OF 2010)

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BETWEEN

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was convicted after trial in the High Court before Beeson J of conspiracy to traffic in a dangerous drug, namely ketamine, and was sentenced to 18 years imprisonment.  The appeal is solely against conviction.

2.  The only evidence adduced at trial that directly implicated the applicant came from the testimony of a witnesss, Mr. Tam Kin‑keung (PW1), who was arrested by the police in possession of a small quantity of ketamine but who was found to be in possession of a much larger quantity of the drug in premises that he had rented.  He pleaded guilty to these two drug trafficking offences at the Magistracy and confirmed those pleas before Beeson J on 9 July 2010.  At the time he gave evidence he was awaiting sentence and on the day following this defendant’s conviction he was sentenced to 7 years imprisonment after having received a discount for his guilty plea and his assistance to the authorities.

3.  The day after PW1 was arrested he started cooperating with the police. He implicated the applicant as the mastermind of the drug trafficking activities and this led to the applicant being charged.  The applicant’s conviction was dependent on the evidence of PW1 who testified with the benefit of an immunity from prosecution in respect of his drug trafficking activities prior to the occasion when he was apprehended.

4.  The prosecution led other evidence at trial but none of this evidence individually, nor all of it cumulatively, is sufficient to prove the guilt of the applicant and the trial judge so directed the jury.  The applicant’s conviction, therefore, is wholly attributable to the jury believing the accomplice witness PW1.

5.  Consequently the grounds of appeal all focus in one way or another on the accomplice witness ‑ directions given or not given in respect of him, evidence contradicting him and cross-examination not permitted of him.

The Trial

The prosecution case

6.  The prosecution case consisted of the accomplice witness, PW1, two persons of the real estate agency through whom he rented the premises where the ketamine was stored, some s. 65B statements including those of the two representatives of the real estate agency, and s. 65C admitted facts.  The defence case consisted of the evidence of the applicant and the evidence of two witnesses whom he called.

7.  PW1 was arrested by the police on 10 January 2010 after 6 plastic bags containing 60 grammes of ketamine were found in a pink plastic bag that he was carrying.  He had been intercepted by the police after exiting a building at No. 8 Ka Lok Street, Kwun Tong and the police also found in his possession a rental receipt to a cubicle in Flat M on the 1^st floor of this building.  When, later that day, the police searched this cubicle they found 9.17 kilogrammes of ketamine, an electric scale and drug packaging paraphernalia.

8.  On the day of his arrest PW1 participated in two video interviews with the police during which he adverted to another person called “Ah Fai” who was his boss but made no mention of the applicant.  However the next day, 11 January, PW1 participated in a third video interview and in this interview PW1 made allegations of the involvement of the applicant.  This interview had the status of a non-prejudicial statement and so from this time onwards PW1 had decided that his interests lay in cooperating with the police.  Between 8 February and 31 March 2010 he gave seven written non-prejudicial statements to the police.

9.  This led to him ultimately agreeing to plead guilty to two charges of trafficking in dangerous drugs and to testifying for the prosecution against the applicant in return for an immunity from prosecution for his drug trafficking activities prior to 10 January.  More importantly, his position when he gave evidence was that of a convicted person who had not yet been sentenced but who was at risk of a very lengthy sentence and who, by his testimony, at least hoped, and perhaps expected, to have that sentence substantially reduced.

10.  As he was the key evidence in the prosecution case it is hardly surprising that the defence made much of his status of an accomplice witness testifying with the benefit of an immunity and in the hope that by so doing he would receive a substantial reward in return.  The defence portrayed him as a liar who had fabricated evidence against the defendant in order to serve his own interests.

11.  What he told the jury was that he became friends with the applicant and then worked for him for a while and then agreed to become a storekeeper of ketamine for him.  He was living at home with his parents and was uncomfortable with storing drugs there and so the applicant agreed to rent a place where the drugs could be kept and packaged for retail sale.

12.  He says that to this end he met up with the applicant and they went to a real estate agency where they dealt with PW2 and PW3 and agreed to rent the cubicle at flat M.  PW1 signed the rental receipt because the applicant wished to distance himself from the premises and their rental.

13.  Whilst PW2 and PW3 agreed that PW1 was accompanied by another man neither could identify him.  PW2 went further and asserted in court that the defendant was not that man.  They also gave evidence of the conduct of the other man in the course of this rental transaction which was at odds with the evidence of PW1.  On their evidence the person accompanying PW1, whether or not it was the applicant took a wholly passive and uninvolved role whilst PW1 portrayed him as actually engaged in the transaction.

The Defence Case

14.  The applicant gave evidence and in it he admitted to being a drug user and said that he used cocaine, no. 5, ecstasy and ketamine.  He referred to ecstasy as “fing tau”.  He said that chiefly he took ketamine.  He maintained he was not a drug trafficker, merely a drug user and that PW1 was his supplier.  He had no involvement with PW1 in drug trafficking activities and did not accompany PW1 to the real estate agency to rent the cubicle which became the storehouse for the ketamine.

15.  The defence called two other witnesses one of whom, DW3, was an apprentice at the garage where the applicant had his cars serviced.  The applicant became friends with DW3 who was a ketamine user.  DW3 testified to having socialized on many occasions with PW1 and the applicant during which times they consumed ketamine together.  His evidence supported the applicant’s evidence that the applicant was a ketamine user and contradicted PW1’s evidence that he was not and that he, PW1, had never consumed ketamine together with the applicant.

The Grounds of Appeal

Ground 1

16.  The first ground of appeal is that the trial judge erred in not warning the jury that the demeanour of PW1 may not be a reliable guide when assessing his credibility.  No complaint is or can be made about the adequacy of the judge’s directions that PW1 was key to the case; that assessing whether PW1 was a truthful witness whose evidence they could rely on was their central task and that when assessing his credibility they should do so with great care and caution bearing in mind that he had earlier lied to the police, was now testifying under immunity and had strong reasons to exaggerate his testimony and to lie.  Early on in the trial judge’s summing up she said this at page 22L – S of the appeal bundle:

“It is the defence position that Mr. Tam is framing the defendant by giving false evidence against him in an attempt to ensure that Mr. Tam receives a reduced sentence for the two offences of trafficking with which he has been charged and to which he has pleaded guilty.

The issue in this case for you to decide is very simple. Is Mr. Tam telling the truth about what he says happened? Is he a credible witness whose evidence is accurate and on whom you can rely?

.....The defence says that Mr. Tam has a very strong motive to lie and that he has done so in an effort to save himself from a lengthy prison sentence.”

17.  These early remarks were repeated and expanded upon on a number of occasions in the course of her summing up.  By the end of the summing up the jury can have been in no doubt that:

1)      their central task was to determine PW1’s truthfulness and reliability; and

2)      PW1 was, for all the matters mentioned, a deeply flawed witness in that he was a self confessed drug trafficker who was aware that in implicating the applicant he might be able to obtain for himself a reduction of his own sentence.

18.  The applicant’s concern that the jury might be unduly affected by the witness’ demeanour was prompted by the witness becoming tearful and crying at times in the course of his evidence.

19.  This is not the first occasion that a complaint of this nature has been made and when it is, reliance is invariably placed upon the comments of Litton JA (as he then was) in R v Ng Wing-ming [1994] 2 HKC 464 in which he characterizes demeanour as “a notoriously uncertain guide to the truth” to which recourse should be had only as “a point of last resort”.  Usually the complaint is founded upon a trial judge making a reference to the jury’s entitlement to have regard to a witness’ demeanour without at the same time issuing a cautionary note about the limitations on demeanour as a guide to the truth.

20.  A judge cannot direct a jury not to take demeanour into account nor can he direct them as to what weight they should place on demeanour, for this is a matter for them.  As Stuart-Moore VP said in HKSAR v Cheng Kam Fai & anor CACC 263/2001 at paragraph 17:

“It is for the jury to determine the importance of demeanour, and the judge was right to have pointed out to them, on the issue of who they should believe, that they were entitled to take this into account.”

21.  The reason for this is self-evident.  There are two features to our criminal justice system which inevitably lead to the demeanour of witnesses having to be considered.  The first is that in respect of key or disputed evidence the witness is called to give live testimony.  We do not have trials on the papers, rather the witnesses are presented to the jury so that the jury can assess their truthfulness and reliability.  The second feature is that the truthfulness and reliability of evidence is tested by an adversarial process in which a party challenging what a witness asserts has the opportunity to cross-examine that witness.  Cross-examination is intended not just to subject the details of the witness’ evidence to close scrutiny but also to subject the witness himself to intense and probing questioning during which the finders of fact will be able to examine his reactions to it.  Thus the process of adducing evidence before the jury requires the jury to use their aural and visual senses to assess that evidence.  A direction that a jury not have regard to demeanour would be a misdirection.

22.  The issue is not whether a jury may have regard to demeanour, for clearly they may, but rather what weight they should accord demeanour when performing their task of assessing the truthfulness and reliability of a witness’ evidence.  The cases where the courts have been critical of demeanour being accorded excessive or disproportionate weight are usually cases emanating from the Magistracy or the District Court.  In such cases the appellate courts have the benefit of the trial courts’ reasoning and can readily see the extent to which the finder of fact has relied upon demeanour in determining whether a particular witness was truthful and reliable.  This was the position in Ng Wing-ming which, as Stuart‑Moore VP pointed out in Cheng Kam-fai, involved a District Court judge who “had recorded her observations about the applicant’s demeanour without, apparently, sufficiently looking at other materially important aspects of the evidence”.

23.  But that is not the position with a jury trial and in such cases the only course open to an appellate court is to have regard to what occurred at trial in order to assess whether there was such a risk that the jury might give disproportionate weight to witness demeanour when performing their jury functions as to call for the intervention of the trial judge.  But when a judge does intervene he is neither directing the jury to ignore demeanour nor is he directing them to give it little weight or indeed as to what weight they should give it.  He is doing no more than offering his guidance as a person who by virtue of his judicial work has come to recognize that demeanour can be misleading and that there may be more useful and reliable ways of determining a witness’ truthfulness.  But should a judge decide to intervene he must ensure that what he tells the jury is couched in the language of advice and guidance, which they are free to ignore, and not the language of a direction which they are compelled to follow.

24.  Thus whether a judge should issue a cautionary note to the jury about the shortcomings of demeanour will always be a fact sensitive issue in the circumstances of each trial.  Ng Wing-ming does not say that a failure to do so by a judge will result in the conviction being unsafe or deprive the defendant of a fair trial.

25.  In the present case neither counsel in the closing submissions had referred to PW1’s emotional state when giving evidence.  From the exchange with counsel when this issue was raised it is apparent from what the trial judge said that she was concerned at not drawing attention to a matter that neither counsel had mentioned in their closing addresses and rather than raise it now and run the risk of highlighting it, the best course was for herself to make no comment on it.  Instead she focussed the attention of the jury on the evidence itself and the task of the jury in determining whether that evidence was true.

26.  This is what the trial judge said in her summing up at page 32J ‑ S of the appeal bundle:

“You have had the opportunity of seeing and hearing Mr. Tam give evidence in court; you have heard his answers to questions and the accusations made in cross-examination and it is for you to decide, having seen and heard what he said and how he dealt with those matters, whether he is telling the truth about what he said the defendant did.

If, having taken all those matters into account, you are satisfied that Mr. Tam was a credible witness, you are entitled to rely on all, or part, of the evidence he gave in deciding whether the defendant is guilty or not guilty of the charge of conspiracy.  It is your view of his honesty which is important.  If you are satisfied so that you are sure, you are entitled to rely on the evidence which you have heard him give in court.  The important thing is that you must be sure that what he says is true and that what he has told you about the defendant’s activities is both accurate and reliable.  So bear that warning in mind throughout your consideration of the evidence.”

This was a very sensible and perfectly acceptable method of dealing with this witness’ evidence.  There is nothing in this ground of appeal.

27.  However before leaving it we feel we should say that on this issue a judge is likely to take the lead from counsel.  If either counsel makes an issue of it in his closing address then the judge may feel it would help the jury to add his or her comments to those of counsel.  But where both counsel make a conscious decision not to refer to demeanour it is hardly surprising if the judge concludes that the prudent and fairest course to adopt is for himself or herself to remain silent on the matter.

Ground 2

28.  The second ground of appeal is that the judge failed to direct the jury that there were discrepancies between the evidence of PW1 and the evidence of PW2 and 3 – the two estate agents ‑ in relation to the roles played by PW1 and the person accompanying him (alleged by PW1 to be the applicant) when renting the flat that was to be used for the storage of ketamine.  Given the importance of PW1’s evidence in the case and therefore the importance of the jury’s task in assessing the truthfulness and reliability of that evidence, it is said that such important discrepancies should have been brought to the attention of the jury.

29.  However to say that the judge made no reference to the contradictions is not true.  After referring to the s. 65B statements of the real estate agents the trial judge said at page 32Q – S:

“The matters in the statements should be considered by you along with all the other evidence. You are not bound to accept what is said in the statements. The oral evidence by Mr. Tam contradicts that of the property agents and you would have to consider that matter separately.”

30.  The judge also gave directions of a more general nature at page 37J – Q:

“ You should consider the evidence of each witness with care. Pay special attention to areas of evidence which have been directly challenged by the defence and bear in mind that some witnesses may be more reliable than others and that the evidence of some witnesses is more important than others.

         Pay attention to inconsistencies，or contradictions.  There may be contradictions between the evidence given by one witness and what another witness has said in his statement, or is different from what one of the oral witnesses said in court, or it does not fit in with the Admitted Facts.  If there are inaccuracies or inconsistencies, it might be because of forgetfulness, because of the lapse of time; the witness may be mistaken or it may be that what they saw or heard was not known to be important at that time.”

31.  These comments of the trial judge were more than enough for the particular contradictions on which this ground so narrowly focuses.  The reason we say that is because there was a much more significant contradiction between the evidence of PW1 and the two estate agents and this contradiction is the subject of the 3^rd ground of appeal.  The contradiction is that PW1 says the applicant accompanied him to the real estate agency whereas PW2 positively asserted in the course of her testimony that the applicant was not the man accompanying PW1.  PW3, the other witness from the real estate agency, said he had no idea if the applicant was the other man.

32.  The judge went to considerable effort with the jury in discussing their evidence and how PW2 was in direct contradiction with PW1.  She puts it quite starkly in respect of PW1 – he is either telling the truth or lying about it for it is not a matter on which he could be mistaken.  In respect of PW2 she says it is unlikely PW2 would lie about it but PW2 could be mistaken.  So there was this very significant difference between the evidence of PW1 and PW2 and the jury clearly resolved it by accepting the evidence of PW1.

33.  Finally it should be said that the judge’s role in a summing up is not to remind the jury of all the evidence but only of the key pieces of evidence and this is what this judge did.  There can have been no doubt that this jury knew that there were differences between the evidence of PW1, PW2 and PW3 and that in determining whether they could conclude that PW1 was a truthful and reliable witness they had to resolve these differences.  There can be no doubt that the jury were aware of all the differences between PW1’s evidence and that of the estate agents if for no other reason than that defence counsel spent so much time in his closing address focusing on them.  There is no merit in this ground of appeal.

Ground 3

34.  The third ground of appeal is that the conviction is perverse in the light of PW2’s denial that the applicant was the person who accompanied PW1 at the time PW1 came to the real estate agency.  For this ground of appeal to succeed the applicant has to be able to say that no jury properly instructed could accept PW1’s evidence in light of PW2’s assertion.  In her discussion of this conflict in the evidence the trial judge did no more than to refer the jury to approaches to the evidence that they could properly take and then left to them as to how they might resolve the evidential conflicts.  It was quite proper for her to inform the jury that it was open to them to find PW2 mistaken in her evidence on this issue and this is clearly what the jury did find. Nothing that has been advanced under this ground persuades us that this was not a course that the jury could properly take.

Ground 4

35.  The fourth ground of appeal is that the trial judge failed to direct the jury on the significance of DW3’s evidence, Mr. Poon Sing Wai.  DW3 gave evidence that on many occasions he had consumed ketamine together with the defendant and PW1.  His evidence was significant for two reasons.  First it supported the applicant’s claim that he was a user of ketamine, as opposed to being a trafficker of it, and secondly because it contradicted the evidence of PW1.

36.  It is quite clear that the judge was aware of the significance of DW3’s evidence. At the end of her introductory remarks the judge said at page  23B – D of the appeal bundle:

“If you have any doubts about Mr. Tam’s credibility, or if you think that what the defendant or his witnesses have said is true, or might be true, it would be your duty as jurors to acquit the defendant.”

37.  There can be no doubt but that the jury would have appreciated that there was a significant conflict between the evidence of the applicant and DW3 on the one hand and the evidence of PW1 on the other as to whether the applicant was a user of ketamine.  For example in respect of the applicant’s evidence she said at page 50K – L:

“Although he took cocaine and ecstasy, which is what he refers to as “fing tau”, chiefly he took ketamine.  You will recall that Mr. Tam strongly denied that the defendant took ketamine.”

38.  The trial judge also spent some time in her summing up on the evidence of DW3, reminding the jury of what he said, for example at page 49A – C where she said:

“Mr. Poon Sing-wai, who was the second (sic) defence witness, said the defendant took ketamine and nothing else, and he told us that he himself took ketamine and in fact had been dismissed from his job for taking too much. He claimed that he had often taken drugs socially with Mr. Tam and the defendant.”

The judge expanded upon her recital of DW3’s evidence later in her summing up at page 56J – S.

39.  Defence counsel made much of DW3’s evidence, portraying DW3 as an independent witness.  This characterization of DW3 was an important part of defence counsel’s closing submission as he sought to persuade the jury that by testing PW1’s evidence against the evidence coming from independent witnesses such as PW2, PW3 and DW3, they would conclude that PW1 was a liar.

40.  In response to this submission the trial judge quite properly put the other side in a passage which in a very balanced way placed all relevant considerations before the jury.  At pages 56T – 57H she said:

“It has been suggested that this witness is a truly independent witness but you may think that, given his initial commercial relationship, or the commercial relationship that his boss had with the defendant and his family and later the drug-taking relationship that he had with the defendant and the lending of the car, might make him feel that he owes the defendant something. However, against that I would point out that he was prepared to risk giving evidence about his drug use and his drug habit even though he was warned in court that he had no obligation to do so.

Also, the fact that he was good friends with the defendant does not really prevent him giving truthful, accurate evidence about what happened but you should approach his evidence with caution, bearing in mind, in particular, that Mr. Tam denied the social occasions that he described as having taken place.”

41.  All of these matters were ones that the jury could legitimately consider in deciding how to resolve the conflict and whom they should believe.  We see nothing in this ground of appeal.

Ground 4A

42.  The final ground of appeal is that the trial judge erred in preventing defence counsel from cross-examining PW1 on the extent of the sentencing discount that he expected to receive in return for testifying against the applicant. What the applicant is referring to is the following exchange between the trial judge and his counsel which appears at page 182B – D of the appeal bundle:

“Q: You know that by giving evidence in this court against the defendant you may be entitled to a discount of sentence of up to 15 percent

Court: I don’t think it’s for you to discuss discount percentages. He’s already said that he understands he’s likely to get a discount or has the possibility of getting a discount.

Mr. Wong: Very well, my Lady.

Q: I put it to you that the reason why you are now giving evidence against the defendant is that you hope to get a reduction in sentence.

A: Disagree.”

43.  Counsel for the applicant, who was also trial counsel, complains that by preventing him from pursuing this line of cross‑examination “the jury would not know as a matter of policy or practice of the court what is the range of the discount of sentence that PW1 would get and what discount did PW1 in fact expected to get”.  In focusing on what the witness expected to receive counsel is correct in what he says.  But that is not the question he asked.  His question focussed upon what PW1 was entitled to and this is not something that can be quantified with any precision as it is a discretionary matter for the sentencing judge who will take into account a broad range of circumstances, including whether by rendering the assistance he has, the witness has exposed himself and his family to the risk of harm.  In this case it was a matter to which the trial judge would have been particularly sensitive as it was she who had the responsibility of assessing that discount at the end of the trial.

44.  Had the question focussed on the witness’s belief or expectation it would not have been objectionable.  However it is unlikely that the witness would have been told anything very precise about the form his benefit may ultimately take but the point defence counsel wanted to make, and it is a perfectly legitimate point, is that the benefit was likely to be a substantial one, sufficiently large to be worth lying for.  But nothing done or said by the judge prevented him from asking such questions.

45.  Is there any chance that the jury was not aware that the witness might be able to receive a discount on his sentence in return for having testified against the applicant?  The answer to this question is a resounding “no”.  The defence case was based entirely on the assertion that PW1 was lying in order to get a reduced sentence for the two trafficking offences to which he had pleaded guilty but for which he had yet to be sentenced.  The jury were well aware of PW1’s position.  At page 28J – L of the appeal bundle the judge informed the jury:

“You know that the chief prosecution witness, Mr. Tam, has pleaded guilty to two offences of trafficking in dangerous drugs and he is awaiting sentence on these charges. He gave detailed evidence against the defendant and his evidence has been challenged in almost every respect.”

46.  Then, at pages 29 – 31 of the appeal bundle the judge spends considerable time explaining to the jury why they must approach Mr.  Tam’s evidence with care and caution.  She explained to the jury how Mr. Tam fell into the category of an accomplice witness or a tainted witness and made the following comments about such witnesses:

“ Accomplices may give evidence because they feel remorse for what they have done and, certainly, Mr. Tam said that remorse was one of the reasons that led him to give the evidence that he did. He says that he wanted his family to know the truth about what happened. But a stronger reason for his giving evidence perhaps is because he had the hope that, by giving evidence, he will obtain a lasting benefit from it in the form of a reduced sentence of imprisonment. As you know, he has pleaded guilty and is still awaiting sentence.

There is nothing improper in the court giving that sort of reduction and of course it is very natural that a person in the position of Mr. Tam will wish to have a reduced sentence. If we were in a similar position, we would doubtless be hopeful of a reduction also. But it is because of that possible advantage being given to such a witness that the need for caution arises.

         A reduction in sentence is well deserved as long as the evidence given is true and accurate.  When examining such evidence, you, the jury, must be aware that a tainted witness might invent evidence, or exaggerate what happened, or omit relevant facts in order to secure a conviction and thus ensure the reduction of his sentence.”

47.  In support of this ground of appeal the applicant relies upon a recent decision of the Court of Appeal in HKSAR v Ngie Hon Min [2012] 1 HKLRD 137 where, in allowing the appeal, the Court said that the trial judge erred in not ensuring that the jury, in assessing the credibility of an accomplice witness, was aware that it was the policy of the courts to grant sentencing discounts to defendants who assisted the law enforcement and prosecution authorities.  This was in a case which had the quite unusual factual situation of a witness who denied he was aware of any such practice or of any entitlement he might have in this regard.  That is plainly not the situation in the present case.  There is no merit in this ground of appeal.

Ground 5

48.  This ground of appeal is simply that by virtue of what is advanced under grounds 1 – 4A the conviction is unsafe and unsatisfactory.  It follows from what we have said in respect of those other grounds that we see no merit in this ground and are satisfied that there is no basis for disturbing the conviction.

49.  For the reasons we have given, we dismiss the application.