HKSAR v. HUI MAN MO

CACC 380/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 380 OF 2011

(ON APPEAL FROM HCCC NO. 30 OF 2011)

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REASONS  FOR  JUDGMENT

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

Introduction

1.  The applicant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The particulars of offence alleged that on 17 May 2010 inside Room 18, 6^th Floor, Kam Tong Building, No. 16 Mok Cheong Street, Kowloon he trafficked in 370.81 grammes of powder containing 275.53 grammes of ketamine and 15.16 grammes of a solid containing 12.74 grammes of cocaine.

2.  He was tried in the High Court before Deputy High Court Judge Toh (as she then was) on 22-26 and 29 August 2011 and on the latter date was convicted by the verdict of the jury.  On the same day he was sentenced to 8 years and 6 months’ imprisonment.

3.  By Notice dated 16 September 2011 he applied for leave to appeal his conviction and in subsequent correspondence with the Court he made an allegation of incompetence against his trial counsel, Mr Bernard Yuen. In response to this complaint Yuen JA directed that Mr Yuen file an affirmation in reply and this has been done.

4.  The application for leave to appeal was listed for hearing on 5 July 2013 but on that day it transpired that the applicant had not had Mr Yuen’s affidavit translated to him.  In order for this to be done and to enable the applicant time to consider his position the application for leave to appeal was adjourned.

5.  At the hearing of the application for leave to appeal against conviction we dismissed it and said we would give our reasons later for doing so.  These are our reasons.

The Trial

6.  The prosecution was a relatively simple one.  Police officers went to the premises particularised in the charge and lay in ambush on the stairway. When they saw two Chinese males emerge from the flat they intercepted them and, armed with a search warrant, entered the flat with the intention of searching it.  On entering the flat they saw the applicant coming out of Room A and another person in another room sitting on a sofa.  They said that on seeing the police the applicant looked astonished and tried to return to Room A but was stopped by them from doing so.

7.  Inside Room A were the dangerous drugs the subject of the charge and packaging paraphernalia, such as electronic scales and resealable plastic bags.  The retail values of the drugs were agreed.  They were HK$40,047 for the ketamine and HK$14,811 for the cocaine, making a total value of HK$54,858.

8.  The applicant was searched and keys to the flat were found on his person as was HK$20,502 and RMB400.  He was arrested and cautioned and in response denied that the drugs were his.  His denial was not produced at trial as part of the prosecution case.

9.  The applicant’s fingerprints were found on two resealable plastic bags, one of which contained ketamine.

10.  The applicant gave evidence and testified that although he was intending to live in this flat he had, in fact, slept there for only one night, the previous night.  He said that the drugs and all the packaging paraphernalia were not his.  He said he did not know where all these items came from and said it was possible they may have been left behind by someone in the cabinet above the computer desk.  He said he may have opened one of the bags and that could be how his fingerprints came to be on it.

11.  The applicant also denied he had the keys to the flat on him and said they were, in fact, lying on the coffee table in the sitting room.  He also said that when detained by the police he was in the process of leaving the flat with a friend.  He also said that shoes of his which the police said were in Room A were, in fact, on a shoe rack behind the main door of the flat.

12.  In respect of the quantity of currency that was found on his person he said it was his salary and HK$5,000 which had been given to him by his friend Poon, the person on the sofa, with whom he was intending to live in the flat. He said that HK$16,500 of this money was meant for the original tenant of the flat, a person he named as Madam Lee Suet-fai.

13.  Essentially the prosecution case came down to the applicant being the occupant of Room A with his fingerprints being found on two of the drug packaging items.  From these primary facts the jury was being asked to infer he was in possession of the drugs and all the packaging items.

14.  The defence case was that the applicant was still in the process of moving into the flat, had not yet changed the name on the tenancy agreement, had only slept in the flat for one night and neither the drugs or drug packaging materials belonged to him.

The Grounds of Appeal

15.  In a letter to the court dated 5 March 2012 the applicant, who is unrepresented on the appeal, made the following complaints:

(i) the original tenant of the flat, Madam Lee Suet-fai did not testify despite being listed as a prosecution witness;

(ii) the police evidence as to his conduct at the time they entered the room and as to the presence of drugs and drug packaging tools on the computer desk in Room A were lies;

(iii) the claim that he was the one packaging the drugs was inconsistent with his fingerprints being found on so few items; and

(iv) on the evidence the drugs could have belonged to the other three persons in the flat.

The complaint against trial counsel

16.  In a letter to the court dated 3 June 2013 the applicant revised his grounds of appeal.  In this document he expanded upon his first complaint concerning Madam Lee Suet-fai, repeated his complaints in (ii) ‑ (iv) above and referred to the case of HKSAR v Chan Yuk Ling CACC 102/2012 now reported at [2013] 1 HKLRD 1093.  His complaint in respect of Madam Lee Suet-fai is that his counsel did not protect his interests by requiring the prosecution to tender Madam Lee Suet-fai for cross-examination.  As to the case of HKSAR v Chan Yuk Ling he maintains that it bears some factual similarity to his own, namely that it was a case where the Court of Appeal allowed the appeal because of concerns over procedures employed by the police in relation to admissions purportedly made by the applicant in that case.

17.  The applicant attached to his letter a copy of the police statement of Madam Lee Suet-fai.  In this statement Madam Lee confirmed that on 28 January 2010 she rented the flat the subject of the charge so that her daughter, who was not yet 18, could live in it.  Her daughter, together with the applicant who was her cousin, then took up residence in this flat.  However, in April 2010 Madam Lee’s father died in the Mainland and so she and her daughter travelled there for his funeral.  Afterwards, her daughter remained in the Mainland and Madam Lee returned to Hong Kong.  After her return she contacted the applicant and informed him she did not have the money to pay the rent.  He told her he would keep the flat and take over the responsibility for paying the rent. Since then Madam Lee has never returned to the flat.  That statement was taken on 15 March 2011.

18.  In his affidavit Mr Yuen explained that on the first day of the trial the prosecuting counsel informed him that the police were having trouble in locating Madam Lee as she now had a job in China and was residing there.

19.  Given that Madam Lee’s evidence was very unfavourable to the applicant as it linked him more closely to the flat and directly contradicted his claim that he had first slept there the night before his arrest, Mr Yuen regarded this as good news and that was how he portrayed it when informing the applicant of it.  He said he clearly explained to the applicant the tactical advantages for the defence of Lee not testifying and the applicant accepted his analysis of the situation and did not instruct him to apply to the trial judge to require the prosecution to produce Madam Lee.  Mr Yuen said that such an application would make no sense at all.

20.  Mr Yuen asserted that he had at all times maintained close communication with the applicant and defended the applicant to the best of his ability.  He says the allegations of the applicant are unfair to him and false.

21.  In response to Mr Yuen’s affidavit, the applicant wrote a further letter to the Court dated 26 October 2013 in which he reiterated his assertion that Lee’s statement was false and that at the time of trial he instructed Mr Yuen to summons Lee so that she could be cross-examined.

22.  The applicant said he agreed that Mr Yuen did explain to him the tactical benefits to the defence of Lee being unavailable, but that notwithstanding his counsel’s advice to him he held a contrary view.  He was then, and remains now, of the view that Lee had to be called so that the jury would be able to uncover the truth of his case.  He referred to Exhibit P36, a tenancy agreement and rent receipt, which he said was in the name of Lee and showed that she was “the only legitimate and authorized (person) to manage and access that unit, as well as every item inside that unit”.  Accordingly, he instructed his counsel to summons Lee for cross-examination and, it is said, his failure to do so evidences that he was not trying to defend the applicant to the best of his ability.

23.  In respect of his other grounds of appeal the applicant summarised the prosecution and defence cases and then sought to argue that the police had behaved improperly.  His argument asserted:

(i) when the police entered the flat they already suspected dangerous drugs were present but did not immediately arrest and caution the occupants;

(ii) the police delayed for 13 minutes in arresting anyone and there was no reasonable cause for this delay;

(iii) the police fabricated his denial that the drugs were his and used that denial as a confession to pinpoint him as the culprit; and

(iv) the police made no record of his denial in contravention of proper procedures.

24.  As a result of these improprieties it is said that the applicant’s conviction is unsafe.

Discussion

25.  At the hearing of the appeal the applicant did not wish to add to his complaints as set out in the letters he wrote to the court.  Mr Yuen attended the hearing but we saw no need for him to testify in support of his affidavit and the applicant did not wish to cross-examine him.

26.  The applicant’s complaint in respect of the way his counsel handled the evidence of Madam Lee is totally devoid of merit.  There is absolutely no doubt that Madam Lee was a witness whose evidence would be of great value to the prosecution and very harmful to the applicant.  There is nothing in her statement that would suggest she was likely to say anything in evidence that would be beneficial to the applicant.  We agree with Mr Yuen that the unavailability of Madam Lee was a tactical windfall for the defence and that an application to require her to be called would not make sense.  Quite apart from this as Madam Lee was living outside the jurisdiction the court had no way of compelling her attendance at the applicant’s trial even if her whereabouts on the Mainland became known.

27.  Most of the other matters of which the applicant complains are all jury matters relating to the credibility of the police witnesses and, of course, the applicant’s own credibility.  It is not for this Court to determine which witnesses in a jury trial are truthful and which are not.  We have examined the summing‑up and can find no reason why the jury should not have accepted the evidence of the police witnesses and rejected that of the applicant.  There is no merit whatsoever in any of these other evidential complaints of the applicant.

28.  That just leaves the applicant’s allegations of police impropriety and his reliance on the case of HKSAR v Chan Yuk Ling [2013] 1 HKLRD 1093. This case turns very much on its own facts.  It concerns the adequacy of the trial judge’s treatment of police evidence in respect of a verbal admission allegedly made at the time of search but prior to arrest which was not recorded and not subsequently put to the suspect in the course of an interview.  Those facts, the police procedures involved, and indeed the legal principles which it discusses have no relevance to this applicant’s case.  The applicant’s complaints about police improprieties which he said took place in respect of his arrest appear to be an attempt by him to create for himself a set of facts similar to those in Chan Yuk Ling.  However, in this respect he falls at the first hurdle for, quite apart from the fact that he made no admission to the police, he has not been able to substantiate any failure by the police to follow proper procedures or any other form of impropriety by them.

Conclusion

29.  For all these reasons we dismissed the applicant’s application for leave to appeal against his conviction.

Order Under Section 83W of Cap 221

30.  Because the applicant’s grounds of appeal were totally devoid of merit, we informed him that we were considering making an order under section 83W of the Criminal Procedure Ordinance, Cap 221 that part of the time he had spent in custody pending determination of his appeal not be reckoned as part of his sentence.  We invited him to address us on why we should not do so.  He referred to his two appearances before a Justice of Appeal prior to his case being set down for hearing and said that no indication had been given to him on either of those occasions that his application should not be pursued for lack of sufficiency in the grounds.  In those circumstances he said it would be unfair to make a section 83W order against him.

31.  The two occasions to which the applicant referred were just two mentions of his case and were not applications for leave to appeal.  On the first occasion, no grounds of appeal had been filed and by the second occasion, the Court had only received his letter of 5 March 2012 which made no complaint against counsel.  It was over one year later, in his letter of 3 June 2013, that the applicant first raised his complaint about his trial counsel.  That complaint has led to much unnecessary work and inconvenience for Mr Yuen who has to prepare an affidavit in reply and attend at court in case he should be needed to give evidence.  The criticism of counsel by this applicant was patently without justification and wholly without merit.

32.  Given the total lack of merit in any of the grounds of appeal and given that one of those grounds involved a completely unwarranted assertion of incompetence of counsel we decided that this was an appropriate case for use of the power contained in section 83W(1) of the Criminal Procedure Ordinance.  We, therefore, ordered that pursuant to that provision one month of the time during which the applicant had been in custody pending determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.