HKSAR v, TSUI CHI WAI

CACC 315 /2017

[2020] HKCA 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 315 OF 2017

(ON APPEAL FROM HCCC NO 147 OF 2017)

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REASONS FOR JUDGMENT

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The Court:

1.  On 28 September 2017, following a trial before Toh J (“the judge”) and a jury in the High Court, the applicant was unanimously convicted on an indictment containing two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On the same day, the applicant was sentenced to a total sentence of 25 years’ imprisonment.

2.  Count 1 alleged that on 8 October 2016, outside Flat A, 31^st floor, Riviera Lodge, 61 Ting Kok Road, Tai Po in the New Territories, the applicant unlawfully trafficked in 62.7 grammes of a solid containing 38.7 grammes of cocaine.  Count 2 alleged that on the same day, inside the same address, the applicant unlawfully trafficked in 19,440 grammes of a crystalline solid containing 1,541 grammes of methamphetamine hydrochloride (commonly known as “ice”) and 2.83 kilogrammes of a solid containing 1.85 kilogrammes of cocaine.

3.  The applicant sought leave to appeal against his convictions on both counts on the basis of no less than seven grounds of appeal. However, before the hearing of the appeal, Mr Ivan Cheung, on behalf of the respondent, conceded that the conviction could not stand on the basis of one of those grounds of appeal, namely Ground 2, which he accepted.

4.  Having asked Mr Cheung to address us first on his position in respect of this ground, we were persuaded that his concession was properly made and that this was not an appropriate case for the application of the proviso to section 83N(1) of the Criminal Procedure Ordinance, Cap 221.  Accordingly, we granted leave to appeal against conviction on this ground alone, without the need to be addressed on the remaining grounds, and allowed the appeal.  These are our reasons for doing so.

The prosecution case

5.  The applicant was the tenant of the premises in question.  There was no dispute that on the date of offence, the applicant had the keys to the flat, or that he was responsible for paying the rent of the premises.

6.  On 8 October 2016, acting on information, a police party in plain clothes went to the 31^st floor of the building in question at 8:30 am.  Three of the officers, namely, Sergeant 34311 (“PW7”), DPC 8368 (“PW2”) and DPC6264 (“PW5”), hid behind the fire escape door in the lobby and kept watch on the entrance to the premises through the glass pane of the fire door.  The officers had been specifically instructed to intercept anyone leaving the flat.

7.  At 9:12 am, PW2 saw the applicant entering the flat.  Shortly thereafter, at about 9:19 am, the applicant came out of the flat and approached the lift lobby.  PW2 immediately came out from behind the fire escape door, revealed his police identity and showed his warrant card to the applicant.  The applicant immediately tried to escape.  However, PW2 and his colleagues managed to subdue the applicant, who put up a struggle for some 2 to 3 minutes.  PW5 then seized a black shoulder bag from the applicant and handcuffed him.  In the shoulder bag, PW5 found a packet of cocaine and another packet which did not contain dangerous drugs.  The packet of cocaine in the applicant’s shoulder bag formed the subject-matter of Count 1.  PW2 then declared arrest on the applicant for trafficking in a dangerous drug and obstructing an officer in the due execution of his duty.  Under caution, the applicant said, “I came up here only to get some ‘ho lok’ for consumption.  I had no idea who you people were, so I struggled”^[1] (“the verbal admission”).

8.  In the applicant’s shoulder bag, PW5 also found some keys, which the police officers then used to gain entry to the flat.  A search warrant was produced and its contents explained to the applicant before a search of the flat was conducted.  In the living room, a grey suitcase and a yellow suitcase, both of which were open when the police party entered the premises, were each found to contain 10 packets of suspected dangerous drugs.  In the yellow suitcase was a black paper bag, in which there were 3 further packets of dangerous drugs.  Some cling film and an electronic scale were also found inside the flat.  The applicant’s DNA was found on three cigarette ends and on a plastic water bottle inside the premises.

9.  PW2 recorded the results of the search and the verbal admission in his notebook.  However, when he gave the applicant the notebook to sign, the applicant refused to sign it^[2].

10.  Between 7:57 pm and 8:12 pm on the same day, inside Tai Po Police Station, the applicant, in the presence of his legal representative, participated in a video recorded interview (“VRI”).  In essence, the applicant denied being in possession of the dangerous drugs found in his shoulder bag or in the flat and asserted that it was a police “set-up” and that the police officers had assaulted him^[3].

11.  The government chemist confirmed that the dangerous drugs seized from the applicant and inside the flat were those particularised in the indictment.  The street value of the “ice” seized was HK$6,687,360; and of the cocaine, HK$3,025,764.  The total value street value of the dangerous drugs combined, therefore, was HK$9,713,124.

The defence case

12.  The applicant elected to give evidence.  The defence case was that the applicant had no knowledge of the dangerous drugs inside the premises, or of the packet of cocaine allegedly seized from his shoulder bag.  Essentially, his case was that the police had framed him up.

13.  The applicant testified that he was a bartender, earning HK$13,000 per month.  He was not married but had three children, who lived with his mother-in-law.  He had been paying HK$9,500 monthly to rent the flat since February 2016, because he wanted to live alone.  The premises had two bedrooms.  Between May and June 2016, the applicant had taken in four sub-tenants at different times.  After the sub-tenants left in June 2016, they did not return the keys to the flat to the applicant.  It was his case that, apart from the applicant himself, there were other persons having access to the premises.

14.  On 8 October 2016, the applicant entered the lobby of Riviera Lodge at 7:17 am, carrying with him a grey suitcase containing clothes, which his mother-in-law had laundered for him.  He entered the flat and left the grey suitcase unopened in the living room.  The applicant did not have a yellow suitcase in the premises.  Whilst he was in the flat, he received a telephone call from his friend ‘Raymond’, who wished to use the toilet.  The applicant subsequently left the flat with Raymond for breakfast, exiting Riviera Lodge at 7:38 am.

15.  The applicant did not return to the building until 9:12 am.  He then took the lift to the 31^st floor, carrying the shoulder bag and another bag in his left hand.  Inside his shoulder bag were five mobile telephones, a wallet, his passport and some HK$800 in cash.  The applicant inserted the key to the iron gate of the flat but it seemed that the lock had been prised.  Accordingly, he turned around intending to go to the lobby to ask for a locksmith.  When he walked past the fire door, two unknown men placed his neck in an arm-lock and pressed on both his hands.  At the time the applicant had no idea who the attackers were but later identified them to be PW2 and PW5.  The applicant put up a struggle, kicked the fire escape door open and dragged his attackers to the rear staircase.  There, he saw other men. The applicant was dragged back to the outside of the flat, where PW2 kicked him causing him to fall down, with the right side of his face against the floor.  The applicant’s shoulder bag was taken from him and he was handcuffed.  PW5 took the keys to the flat from his hands.

16.  Having used the keys to enter the flat, the applicant was taken into the master bedroom, where he was punched and kicked by PW2 among others.  The applicant was then allowed to smoke a cigarette.  PW2 came into the master bedroom and held one large bag in one of his gloved hands and a small bag in the other.  PW2 told the applicant to hold the two bags, but the applicant refused.  PW7 threatened the applicant that he would take these bags to the applicant’s mother-in-law.  However, the applicant told PW7 that he would not admit to anything.  Then PW2 put the two bags into the applicant’s shoulder bag.  About 15 minutes later, PW5 told the applicant to admit having the two bags in the shoulder bag, while PW2 said to him, “Just admit this bag and you need not admit the others”.  Again, the applicant refused to comply.

17.  The applicant said that he had struggled with his attackers outside the flat because he did not know who they were.  During that struggle, nobody had told him they were police officers.  He denied trying to flee because of the dangerous drugs in his possession.  Inside the flat, during the search of the premises, the applicant remained inside the master bedroom.  At no time during the search did anyone point out to the applicant where the dangerous drugs were found; nor did any police officer show their warrant cards to the applicant; nor did anyone declare arrest on the applicant or explain the search warrant to him.  The applicant never said words to the effect that he came to the flat to get “ho lok” for his consumption.  The cling film and the electronic scale were not stored in the flat to the applicant’s knowledge.

18.  After the applicant had been taken to Tai Po Police Station and placed in a room for interview, PW5 kicked the table at which the applicant was seated so that it hit him in the abdomen.  The applicant shouted out, which caused the duty officer to arrange for the applicant to be placed in a cell instead.  Subsequently, the applicant made a complaint to the Duty Officer about the assaults and the fabrication of evidence against him.  As a result, the applicant was taken to the Nethersole Hospital for medical examination, which revealed that he had redness and bruising on his head, chest and back.  According to the applicant, these injuries were caused by the assaults carried out by the police officers both outside and inside the flat.  On the next day, the applicant underwent two further medical examinations at the Nethersole Hospital and Lai Chi Kok Reception Centre^[4].

19.  The applicant said he did not sign on PW2’s notebook, which recorded the alleged verbal admission, because nobody had let him read what was written, nor did they read or explain the contents of the notebook.

Grounds of appeal

Ground 2 – Failure to give a Mushtaq direction

20.  There were a number of grounds of appeal, but we are only concerned with the one ground to which Mr Cheung’s concession relates.  Mr Victor Lee, on behalf of the applicant, submitted, in his written submissions, that the judge had failed to give a Mushtaq direction[5] to the jury in relation to the applicant’s verbal admission, which was contested by the applicant.  The applicant’s evidence was that he was assaulted and threatened by police officers to admit to having the two bags of dangerous drugs in his possession.  However, the judge had merely repeated the parties’ submissions in that regard^[6], instead of following a step-by-step approach and the terms of Specimen Direction 39: see HKSAR v Yeung Chun Hin^[7].

Consideration

21.  The history of this matter is instructive.  At a pre-trial review held by the judge two months before the trial, the judge had initially assumed there would be a voire dire, since she was informed that the prosecution were relying on a contested verbal admission.  However, she was firmly disabused of this notion by prosecuting counsel (not Mr Cheung), who informed her, “there won’t be a voire dire”[8]; a position confirmed by defence counsel (not Mr Lee)[9]. Defence counsel then appeared to have second thoughts on the matter and informed the judge that there would be allegations of assault and inducement; consequently, a voire dire might be needed.  The judge was plainly not convinced that a voire dire was required and queried defence counsel’s position[10], resulting in counsel telling the court that it was the applicant’s clear case that he did not in fact make any admission[11].  Prosecuting counsel immediately interjected[12]:

“In that case, my Lady, as you appreciate, it’s not a voire dire question … It’s a jury question. So there’ll be no voire dire in this case.”

Although the judge informed defence counsel that he was not prevented from making allegations of police impropriety in front of the jury[13], she seemed to agree that no voire dire was required, and appeared to be of the view that the defence could not assert that the admission was not made but that if it was, it was involuntary, at the same time.  Matters were then left on that basis.

22.  However, not surprisingly perhaps in view of the applicant’s general allegations against police, the matter unravelled at the trial, resulting in defence counsel having to make an application, whilst the applicant was in the course of giving evidence, to hold a voire dire in front of the jury.  Prosecuting counsel did not object to this course and the judge rightly acceded to the application.   In due course, after the applicant had finished his evidence and in the absence of the jury, submissions were made as to the admissibility of the verbal admission and the judge ruled that it had been made voluntarily^[14]. However, there was no discussion between counsel and the judge prior to the summing-up as to how she should direct the jury on the verbal admission; and it is further acknowledged by Mr Cheung that the judge did not give a Mushtaq direction in her summing‑up.

23.  We accept Mr Cheung’s concession that where the defence were effectively saying that no admission was made at all but that, if it was found to have been made, it was made in circumstances of impropriety, the questions of voluntariness and admissibility were engaged and a voire dire was required.  Here, on the defence case as it unfolded, the circumstances of alleged impropriety began almost as soon as the police intercepted the applicant.  In those circumstances, it is difficult to see how either counsel could have thought the question of voluntariness was not engaged in assessing the integrity and cogency of the verbal admission.  With respect, both trial counsel were in error in their understanding of the law in suggesting otherwise at the pre‑trial review. 

24.  The case which governed this very situation was one of the last criminal cases to reach the Privy Council from Hong Kong in 1997, namely Thongjai and Another v The Queen^[15]. Lord Hutton, giving the judgment of the Board, distinguished between two situations[16]:

“One situation is where the only allegation made by the defendant is that he had not made the alleged admission. The other situation is where the defendant alleges both that he had not made the admission and that he had been ill-treated before or at the time of the making of the alleged admission. In the latter situation the trial judge should hold a voire dire to decide whether (in case the jury find the admission was made) the admission was made in circumstances which rendered it involuntary.”

Thongjai was subsequently applied by the Privy Council in Timothy v The State[17], and by the Court of Final Appeal in HKSAR v Pang Hiu San[18], where the Court was at pains to reiterate[19]:

“To distinguish confessions according to whether the defendant denied making them harks back to the time when whether voluntariness could be in issue when the defendant denied making the confession was uncertain. That issue was put to rest in … Thongjai v R. We would not permit it to be resurrected in any shape or form.”

25.  Had both counsel at trial been aware of these authorities, as, with respect, they should have been when conducting any trial, let alone a trial in the High Court, they could not have made the submissions they did at the pre-trial review hearing.  As soon as defence counsel woke up to the problem, the judge rightly permitted the defence to remedy the situation by giving a ruling as to the admissibility of the oral admission, albeit that the evidence relevant to admissibility had already been heard in front of the jury.

26.  Nevertheless, this unusual situation could still have been saved by the giving of a Mushtaq direction in the summing-up. Unfortunately, this was not done; but, again, neither counsel saw fit to ask the judge to give one.

27.  With respect to counsel conducting trials in the High Court, they are expected to be familiar with relevant (and binding) authorities which govern the evidence, issues and procedure at the trial in which they are engaged.  Once again this Court has been placed in the position of having to allow an appeal simply because counsel did not appear to be aware of the operating legal principles emanating from courts of high authority, which ought to have been well known.

The importance of discussions between the court and counsel prior to the summing-up

28.  This case thus brings into sharp focus the importance of discussions taking place between the judge and the counsel before the summing-up in respect of the legal directions that should be given to the jury.  In respect of such discussions, we would emphasise the following matters.

29.  First, such discussions should normally take place at every trial before a judge and jury, and it is desirable that a specific occasion is set aside for such discussions.  Indeed, if circumstances permit, counsel could be required to file with the court, in advance of these discussions, the legal directions which they wish the judge to provide to the jury.

30.  Secondly, counsel should be prepared for these discussions, knowing that what they say during such discussions will, if the case is appealed, be the subject of close scrutiny by the Court of Appeal.

31.  Thirdly, the role of prosecuting counsel, in their capacity as ministers of justice, should be to provide every assistance to the judge and that must be reflected by their pro-active involvement in these discussions.

32.  Fourthly, defence counsel must ensure that they clearly articulate not only the issues, defences and alternative verdicts on which jury directions are sought, but also those defences and alternative verdicts which are not being relied upon but which may be raised by the evidence.

33.  Fifthly, both prosecuting and defence counsel must carefully follow the judge’s summing-up to the jury, in order that they are in a position to draw to the judge’s attention any issues or errors that may occur during the summing-up.

Disposal

34.  As we have said, we must allow this appeal for the reasons discussed above.  We are indebted to Mr Cheung for his responsible attitude on behalf of the respondent in this matter.  In the circumstances, it was not necessary for us to call upon Mr Lee in argument, nor to address his other grounds of appeal, for the appeal must be allowed on this ground alone. Having heard from both counsel, including Mr Lee who did not oppose the ordering of a retrial, and in view of the seriousness of the offence, we ordered the applicant to be retried on a fresh indictment before another judge.

[1] AB, pp 314C-317B.

[2] PW2’s notebook was not produced in evidence because the applicant refused to sign on it, see AB, pp 322A-323H.

[3] Transcript of the VRI, counters 49-76 at AB, pp 121-123; counters 151-186, at AB, pp 128-130.

[4] Paras 12 and 13 of the Admitted Facts at AB, p 12; AB, p 145.

[5] The direction eponymously derived from the House of Lords decision in R v Mushtaq [2005] 1 WLR 1513.

[6] AB, p 41C-Q.

[7] HKSAR v Yeung Chun Hin [2018] 5 HKLRD 412.

[8] AB, p 378H-J.

[9] AB, p 379Q-R.

[10] AB, p 380H-K.

[11] AB, p 381B-C.

[12] AB, p 381F-H.

[13] AB, p 380S-U.

[14] AB, pp 397K-398C; p 399M-P.

[15] Thongjai v The Queen (P.C.) [1997] 3 WLR 667.

[16] Ibid., at 681H.

[17] Timothy v The State (P.C.) [2000] 1 WLR 485, at 492.

[18] HKSAR v Pang Hiu San (2014) 17 HKCFAR 545.

[19] Ibid., at [63].