HKSAR v. LEUNG WING FUNG

CACC 324/2018

[2019] HKCA 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 324 OF 2018

(ON APPEAL FROM HCCC 476 OF 2015)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 8 May 2015 at Mong Tseng Tsuen, Tin Shui Wai, New Territories, he unlawfully trafficked in 657 grammes of cocaine. The applicant pleaded not guilty to the charge and was tried before Campbell-Moffat J (“the judge”) and a jury. He was convicted after trial and was sentenced to a total of 20 years and 3 months’ imprisonment.

2.  The applicant subsequently applied for leave to appeal against his conviction. At the hearing of the application I refused it and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The prosecution case

3.  The prosecution case was that in the evening of 8 May 2015, three police officers in plain clothes laid ambush in a van at Mong Tseng Tsuen, Tin Shui Wai. They intercepted the applicant who was carrying a red bag. When the police officers searched this red bag they found it contained 52 packets of cocaine in resealable plastic bags and these drugs are the subject of the charge. It was an admitted fact that the total estimated street value of all the cocaine found was about HK$1,511,613.

4.  The applicant said under caution that he took the cocaine to sell to others in order to earn a little money. He made a full confession in a subsequently conducted video record of interview.

The defence case

5.  The applicant elected to give evidence and called two defence witnesses, the applicant’s father and girlfriend.

6.  The applicant’s case was that on the evening of his arrest he had left his flat and was carrying garbage inside the red bag for disposal whilst talking to his father on his mobile phone. He was assaulted by three men for several minutes and was pinned on the ground and handcuffed. He denied having made any verbal admission and was coached as to what he should say in his video record of interview. He did as he was told because of violent and intimidatory behaviour of the police.

7.  As to his other witnesses, his father testified that prior to the arrest of the applicant, he was speaking to the applicant on his mobile phone. Suddenly he heard the applicant shout “Ouch, ouch, why hit me?” He asked the applicant what had happened but he heard nothing further from the applicant until the time the call was disconnected. It was agreed at trial that there such a call was made at about 2146 hours that evening and it lasted for 90 seconds.   

8.  The applicant’s girlfriend testified that she lived with the applicant at 1/F, 198 Mong Tseng Tsuen. In the evening on 8 May 2015, she was sleeping in the bedroom of the flat when she was woken up by a male police officer. Then a female officer came in and asked her for her identity card. However, she did not know what was going on outside the bedroom. The significance of her evidence is that it was consistent with the defence case and contrary to the prosecution case. The defence case was that the applicant and his girlfriend were kept in separate bedrooms of the flat and so did not witness the search, by the police, of the flat and the weighing of the drugs by the exhibit officer in the living room of the flat. The prosecution case was that both the applicant and his girlfriend were detained in the living room of the flat.

The applicant’s perfected grounds of appeal

9.  Mr Adonis Cheung, for the applicant, relied on three main grounds of appeal, all of which related to the judge’s summing-up.

10.  In Ground 1, Mr Cheung complained that the judge erred in replaying the video record of interview to the jury in the course of summing-up without giving an appropriate direction or warning. Mr Cheung argued that such an exercise was a departure from the usual course of a criminal trial and should not be done unless there is a request to do so as it constituted a “re-run” of the prosecution case by reminding the jury of the highly prejudicial confessional evidence. Mr Cheung relied on a judgment of the Court of Appeal of England in R v Mullen[1] which was concerned with replaying the evidence of a complainant in a sexual case which had been videotaped.

11.  In Ground 2, Mr Cheung complained that the judge’s summing-up was unfair and unbalanced, as evidenced by the judge’s comments in five areas:

(i)  the judge unfairly commented to the jury that the dangerous drug involved in the present case was “657 grammes of it [cocaine] within over 1 kilo of solid … worth HK$1.5 million”, instead of 10 grammes as was the applicant’s belief as to the seizure. Mr Cheung submitted that the comment made by the judge was so unfair that the jury might be influenced into thinking that the fact that a large quantity of drugs were seized would have a greater probative value to the prosecution case and would make the defence allegation of fabrication less credible;

(ii)  the judge erred in stressing the “helpfulness” of the photographic bundle to the jury, hence giving excessive weight to this piece of evidence and impressing upon the jury to consider it in a positive light. Mr Cheung submitted that the judge omitted to direct to the jury these photos did not prove the main issue of this case;

(iii)  the judge in her summing-up unfairly excluded from the jury key issues which the defence had expressly invited them to consider in reaching the verdict, ie the absence of records by the officers, by simply directing them they should not speculate what evidence was there and what was not there;

(iv)  despite the defence’s attack on the officers’ failure to make a record in his notebook of the fact that he had weighed the cocaine the judge erred in commenting to the jury that she could not see the particular importance of the weight of cocaine in this case, which should be a matter for the jury to decide;

(v)  despite the defence’s attack on the officers’ failure in making contemporaneous records in general, the judge erred in directing the jury that they should not disbelieve a witness because he failed to make a record, or believe a witness simply because he made a record. Mr Cheung submitted that the judge should have only directed the jury that they were the one to decide whether they believed the witness or not, instead of directing them not to disbelieve a witness because they did not make a record.

12.  Grounds 2(iii)-(v) are all concerned with the judge’s directions on how they should approach evidence that no record was made of certain events in police notebooks or witness statements.

13.  In his Ground 3, Mr Cheung complained that the judge failed to refer to the evidence of the applicant’s father and girlfriend at all which had effectively left the jury only with the evidence in support of the prosecution case, resulting in an unbalanced summing-up to the prejudice of the applicant.

Discussion

14.  In respect of the first ground of appeal, the legal principles in relation to video records of interview are quite clear. They are:

(i)  the video is the evidence;

(ii)  the transcript is just an aide memoire;

(iii)  the judge can properly refer to parts of the transcript in his summing-up and quote parts that he thinks are helpful to the jury;

(iv)  the jury may take the transcript and the video with them into the jury room and have regard to them in the course of their deliberations.

15.  Bearing these principles in mind I do not see that replaying the video in court will necessarily give undue emphasis to it. On this question I do not see that the decision in Mullen is relevant.

16.  Furthermore, the judge explained why she was replaying the video to the jury. She said:

“I am going to play that VRI again to you because it is only a short video-recorded interview. I think when you first see it in the prosecution’s case you do not have a full flavour of all of the evidence in both cases and seeing it again now you will allow you look at it in perhaps a different way, so I think it is really valuable to you. They have both mentioned the video-recorded interview but you watch it again because it is only half an hour, so I am going to play that in the summing-up.”[2]

17.  It is clear from the above passage that the judge was replaying the video record of interview simply because she thought it would be helpful to the jury to see it again so that they could now view it with full knowledge of all the defence allegations that were being made in respect of it. I see nothing wrong in such a course of action.

18.  In my view it is not reasonably arguable that what the judge did was, in principle, improper and nor is it reasonably arguable that the reason the judge gave for replaying it was improper.

19.  The only question that remains under this ground is whether the replaying of the video was accompanied by any comments by the judge which may have resulted in an unbalanced or unfair summing-up such as a comment that by re-viewing the video the jury were more likely to find it true and voluntary or to conclude that the prosecution witnesses were truthful.  

20.  I have carefully considered all the passages referred to me by Mr Cheung but also had regard to the fact that the judge gave full and proper directions on how the jury must approach confessional material (that is, was it said, was it true, was it voluntary), to which no objection is taken. I do not find that there is anything in what the judge said in relation to the video record of interview that could form the basis of a reasonably arguable complaint of an unbalanced and unfair summing-up.      

21.  The complaints in Ground 2(i) and Ground 2(ii) are completely devoid of merit and should never have been advanced. They add nothing to Grounds 2(iii)-(v) and are wholly unarguable.

22.  In respect of the remaining complaints under Ground 2, ie (iii) – (v), it is necessary to place the judge’s comments in context and to understand their purpose. The need for these directions arose because some police officers did not mention in their witness statements the finding of the cocaine, or the conduct of the house search, in which nothing was found or seized, or the weighing of the cocaine which was just an on site weighing so they had some idea of the size of their seizure.

23.  The judge had one simple point to make, namely that just because an event is not recorded does not, by itself, mean that the event did not happen. She illustrated this simple point by examples. These examples sought to make the further points that whether a person makes a record of the event may depend on a range of factors, such as how important they perceive the event to be and whether they are in the habit of keeping a record. She also made the point that whether a person recorded an event may still have relevance as it may go to the credibility of that person’s evidence.

24.  I have carefully considered all the passages to which Mr Cheung has referred me. I do not believe that any of the complaints in Ground 2(iii)-(v), either singly or cumulatively, can ground a reasonably arguable complaint of an unbalanced summing-up.

25.  With respect to Ground 3, whilst it is true that the judge did not discuss in detail the evidence of the applicant’s father and girlfriend, she did refer to what they said. Their evidence was quite short and of limited probative value. Clearly, neither of them was present when the applicant was arrested and their evidence could only go to the credibility of the prosecution witnesses. The evidence of the father was to a certain extent as consistent with the prosecution case as it was with the defence case because, even on the prosecution case there was a physical struggle in the course of the applicant’s arrest.

26.  In respect of the girlfriend’s evidence there was reference to it in the summing-up and I am in no doubt that its importance to the defence case and its significance to the issues they had to decide would have been readily apparent to the jury. I am of the view that the judge’s failure to discuss the evidence of the father and girlfriend in greater detail in a discrete part of her summing-up cannot found a reasonably arguable ground of appeal.

27.  Having reached the views that I have in respect of Grounds 1‑3 it follows that I do not think that it is reasonably arguable that the court should entertain a lurking doubt over the safety of the conviction.   

Disposition

28.  For these reasons I refused leave to appeal against conviction in respect of all grounds in the Perfected Grounds of Appeal. I reminded the applicant of his right to renew his application before the Court of Appeal. I also reminded him that should he do so and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power in section 83W(1) of the Criminal Procedure Ordinance, Cap 221 to direct that part of the time the applicant has spent in custody pending the determination of his appeal should not be reckoned as part of his sentence.