HKSAR v. IP TUNG TAI

CACC 31 of 2020

[2021] HKCA 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 31 OF 2020

(ON APPEAL FROM HCCC 197/2019)

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J U D G M E N T

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1.  On 11 December 2019, the applicant was convicted after trial before Toh J (the judge) and a jury by a majority verdict of five to two, of a single count of trafficking in a dangerous drug, namely 258 grammes of a crystalline solid containing 255 grammes of methamphetamine hyrdrochloride (commonly known as Ice), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 16 March 2020, he was sentenced to 14 years’ imprisonment.

2.  The applicant filed on 30 March 2020 a notice of application for leave to appeal against his conviction, and further filed on 8 April 2020 a notice of application for leave to appeal against his sentence.  

3.  The applicant filed homemade grounds of appeal dated 24 October 2020, which can be briefly described as follows.  Ground 1 complained that the judge’s directions on how the jury should approach the evidence of witnesses, particularly the testimony of PW1, was wrong.  Ground 2 complained that the statements given by witnesses to the police and their evidence at trial were inconsistent.  Ground 3 complained that no lies direction was given by the judge.  Ground 4 complained that the obtaining of the applicant’s identity card and number was not properly proven.  Ground 5 complained that the judge’s directions on the DNA evidence were inadequate.

4.  The applicant has made several applications for legal assistance which have been refused.  Legal aid was refused on 22 July 2020 and 24 February 2021.  Legal assistance under the Bar Free Legal Service Scheme was refused on 20 November 2020.

5.  The applicant’s application for leave to appeal against conviction and sentence was fixed for hearing on 2 March 2021.

6.  On 19 February 2021, the applicant filed a letter dated 11 February 2021 in which he requested that the leave hearing be adjourned as he did not have all the legal documents and transcripts and wished to be represented by a private lawyer, having had legal aid refused. 

7.  On 25 February 2021, the applicant filed a handwritten letter dated 10 February 2021, which attached handwritten Perfected Grounds of Appeal against conviction together with a List of Authorities and an Index of Authorities.  It is stated in the body of the letter that the grounds of appeal submitted were in substitution for all of the grounds of appeal against conviction previously filed.  The applicant sets out three grounds of appeal which combine particulars and submissions and in the substratum of the grounds there are a number of additional issues raised. 

Background

8.  On 24 May 2017, Ms Chung Chung Pik Kei (PW1) was arrested in Tung Choi street. In her possession was a Louis Vuitton handbag (Exhibit P2) which had inside it one Burberry bag made of paper in gold colour (Exhibit P3) inside of which was found the drugs as particularized in the count. These drugs were contained inside a transparent resalable plastic bag.  PW1 pleaded guilty to drug trafficking and gave evidence against the applicant at his trial.

9.  PW1 was sentenced, after the trial of the applicant, to 13 years imprisonment which was reduced by 50% to 6 ½ years’ imprisonment on account of her evidence in the applicant’s case.[1]

The prosecution case

10.  It was the prosecution case that PW1 and the applicant were acting in a joint enterprise to traffic in dangerous drugs.[2]  PW1 testified that it was the applicant who had given her the bag containing the drugs. She was shown photographs of the handbag inside of which was the plastic bag in which the drugs were contained.[3]  It was an admitted fact that the drugs were found in a plastic bag contained inside PW1’s handbag.[4]

11.  The chain of evidence concerning DNA and identification evidence was not in dispute and were adduced by way of admitted facts. The admitted facts provided that the two buccal swab samples given by the applicant after his arrest on 23 November 2018 were compared with cotton bud swabs taken of the two sealing flaps on the plastic bag in which the drugs were found. The government chemist concluded that the chance of the swabs taken from the plastic bag belonging to someone other than the applicant was 1 in 310 billion.[5]

12.  It was also an admitted fact that the applicant had been positively identified by PW1 in an identification parade based on photographs.[6]

13.  The applicant participated in video record of interview (VRI) on 23 November 2018, which was adduced into evidence by way of admitted fact.  It was stated that the applicant took part in the interview of his own free will.[7]

14.  PW1 said that on 24 May 2017 she was at an amusement game centre playing games and that sitting next to her was the applicant. She said the applicant put a paper bag into her handbag to deliver to an address in the goldfish market. She said she had known the applicant for several months. Subsequent to her arrest, PW1 was taken to Tuen Mun police station to attend an identification parade; this did not end up taking place and instead she was shown photographs, from which she identified the applicant as the man who put the drugs inside her bag and who paid her $500 to deliver them to the goldfish market.[8]  She used in evidence the term “forced”, however, how or why she was ‘forced’ was not explained.[9]  She said she did not see the applicant put the dangerous drugs into her bag. She said she was the person who contacted her lawyer to contact the police to tell them she was ready to give information. She, explained, in cross-examination, that when she was initially arrested and gave a statement in which she said she had nothing to say, she did so because she was in fear.[10]

15.  PW1 said she initially did not know the applicant’s name and so she had to ask a friend to give her the identity card number of the applicant and she then passed this on to the police.[11]  PW1 said in evidence that she would go to a game centre once per week and that she used to take Ice.[12]  PW1 was in possession of $10,000 cash when she was arrested and she explained this was money given to her by her boyfriend.

16.  PW2 (PC18852) described how the police had a briefing session before they came out on an anti-drug patrol and that they were supposed to look out for a female of about 35 years of age.  PW2 said they were also in possession of a search warrant, and that eventually PW1’s premises were searched but nothing suspicious was found.[13]

17.  PW3 (PC52309) testified that on 23 November 2019, the applicant came to the report room by himself voluntarily and that he was not initially arrested.  He was then interviewed by PW3.  PW3 confirmed the identity of the applicant and found he was wanted in this trafficking case.  He arrested the applicant for trafficking and cautioned him but he had nothing to say.[14] The applicant then participated in the VRI, which was produced into evidence by way of admitted fact.

The defence case

18.  The applicant chose not to give evidence and his case was advanced through cross-examination and submissions. The defence contended that PW1 was not credible and that she was telling lies to get a reduction in her sentence.

19.  PW1 was cross-examined on the basis that at one stage in the game centre the applicant had stepped on her bag and that he then helped her put the contents back into the handbag.  PW1 denied this had ever happened. The judge directed the jury that this was just a suggestion and not evidence.[15]  PW1 admitted in cross-examination that she had lied to the police about not having seen the applicant before.[16]  PW1 was cross-examined about discrepancies between her cautioned statement of 20 December 2018 and her evidence in court.

The summing-up

20.  The judge directed that the applicant’s VRI was not particularly helpful as he was being asked questions about where he was over a year ago, to which the applicant answered he was at home.  He was asked if he knew PW1 and he said no.  The judge directed the jury on the relevant law as to joint possession and that mere presence in the vicinity of an object did not amount to possession.[17]  The judge explained to the jury what constituted drug trafficking and that carrying or distributing drugs from one place to another would constitute trafficking.[18]  The judge explained that it was the prosecution case that the applicant and PW1 had been acting in a joint enterprise to traffic in dangerous drugs, and that, in a joint enterprise each defendant may play a different part “but if they are acting together as part of a joint plan or agreement to commit the offence, each is equally guilty”.[19]  The judge cautioned the jury about PW1 having pleaded guilty and directed her guilty plea had no bearing on the case against the applicant, and that the prosecution still had to prove their case against the applicant.[20]

21.  The judge directed that the applicant’s DNA being found on the plastic bag meant the jury could draw an inference and that they were only permitted to draw an inference if it was the only available inference.[21] The judge reminded the jury there was no evidence as to when the applicant’s DNA came into contact with the plastic bag, other than PW1’s testimony linking him to it. She therefore directed that if the jury accepted the evidence of PW1 then the DNA evidence may serve as corroborative evidence. But that, alternatively, if they rejected the evidence of PW1 the DNA evidence, standing on its own, may be insufficient.[22]

The sentence

22.  Various matters were submitted on the applicant’s behalf in mitigation.  It was brought to the court’s attention that he had worked as a delivery driver earning about $3,000 per month and was the sole breadwinner in his family.  Defence counsel sought to distinguish the applicant’s criminal record from the present offence.  It was submitted that he had committed the present offence due to the financial strain in looking after various members of his family.

23.  Despite the various matters that had been raised on behalf of the applicant the judge noted there was little to say by way of mitigation. Having referred to the relevant authority of HKSAR v Tam Yi Chun,[23] the judge adopted a starting point of 14 years’ imprisonment in respect of 255 grammes of Ice, which was the sentence imposed on him. 

The grounds of appeal

24.  I turn to address the three grounds of appeal that have been advanced by the applicant against his conviction.

Ground 1: Failing to direct on the right of silence

25.  The appellant complains that the judge erred in failing to direct the jury on the applicant’s right of silence when he declined to answer questions by the police at the time of his arrest and refused to participate in an identification parade.  This ground further comprises two discrete complaints concerning the equating of silence with guilt when the judge summarised PW1’s evidence, and the judge inviting the jury to convict on the basis of circumstantial evidence if they rejected PW1’s evidence.

26.  It is complained that the judge failed to deliver to the jury adequate direction on the proper approach they should take in relation to two instances which concerned a defendant’s right of silence. The first concerned the applicant’s arrest and caution when he said to the police officer that he had nothing to say.  The second was when he was asked to participate in an identification parade and said he was not willing. 

27.  It is also important that the two instances are considered in their proper context.  Whilst the judge did not give Specimen Direction 45, which concerns a defendant’s right to silence, she did direct the jury in accordance with Specimen Direction 44 in respect of the fact that the applicant did not give evidence at trial.  She said:

“Now the defendant has chosen not to give evidence. He is entitled not to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case against him. You must not assume he is guilty because he has not given evidence. It is his right, as I have said, to sit back and say to the prosecution, ‘You bring the charge against me, you prove it.’ So the fact that he has chosen not to give evidence proves nothing one way or another. It does nothing to establish his guilt.”[24]

28.   In respect of the first instance, the judge summarised the police officer’s evidence that upon arrest and caution the applicant had nothing to say but that he then participated in a video record of interview, which formed the basis of the defence case.  As noted by the respondent, far from exercising his right of silence, the applicant voluntarily took part in a video record of interview which the judge summarised to the jury.  It was an agreed fact that he participated in the interview of his own free will and it was adduced into evidence.  The applicant stated in his interview that at the time of the offence he was at home and he did not know a person by the name of Chung Chung Pik Kei or the nickname Pui Yi.[25] The applicant complains that this matter was compounded when the judged said of PW1’s evidence that “She agreed she was caught red handed, so she had nothing to say”.  He argues that the judge drew an express connection between the fact of remaining silent upon arrest and caution and the issue of guilt, when she noted that PW1 said she had nothing to say. 

29.   The judge was merely paraphrasing PW1’s evidence in cross-examination and was not equating remaining silent with an admission of guilt.  This is apparent when the sentence is considered in its full and proper context.  The judge said:

“… In cross-examination she agreed that when she was stopped by the police and cautioned she said to the police she had nothing to say. She agreed she was caught red handed, so she had nothing to say. She agreed that on 26 May she gave a statement to the police and she said that she had nothing to say. She said she had nothing to say because she said she was in fear at the time of arrest. …”

30.   The second instance concerned the applicant’s unwillingness to participate in an identification parade.  This explained why a photograph identification parade took place instead.  The applicant complains that his refusal to participate in an identification parade received a high degree of attention during the trial because of the false evidence of Chief Inspector Ng, which had to be resolved by a second set of admitted facts.  It seems that the Chief Inspector suggested that the photograph identification have been arranged because the applicant was a fugitive at the time of his arrest but that was not correct as he had reported to the police when he answered his bail.  The judge directed the jury to ignore the evidence of the Chief Inspector about why the photograph identification was arranged as the matter had been addressed by an admitted fact.[26] In that sense, no issue was taken about the photograph identification, and the situation of the appellant at the time was explained by the admitted fact.

31.   The applicant generally complains that (1) the judge in directing the jury that they should reach a decision by “having regard to the whole of the evidence” was by implication suggesting to the jury that they should have regard to the evidence of the applicant exercising his right of silence; and (2) the judge’s directions invited the jury to convict the applicant only upon the basis of circumstantial evidence in the event that the jury rejected PW1’s as being not credible or not reliable.  

32.   The reference to the two incidences was of little, if any, moment in the overall factual issues before the jury.  There is no real risk that the jury would engage in any impermissible reasoning in relation to these matters.  Furthermore, the judge did not invite the jury to convict the applicant only upon the basis of circumstantial evidence in the event that they rejected PW1’s evidence as being not credible or not reliable. What the judge said in the impugned passages was that the jury could not draw an inference against the applicant unless it was the only reasonable and irresistible inference.  She went on to say that there was no evidence, except that of PW1, as to when the applicant’s DNA came into contact with the plastic bag.  She added that if they accepted the evidence of PW1, the DNA evidence may serve as corroboration but if they rejected PW1’s evidence, the DNA evidence itself may not be sufficient for drawing the only irresistible inference against the applicant that he was trafficking in the dangerous drug.[27] 

33.   I agree with the respondent’s submissions.  I am not satisfied that this ground is reasonably arguable.  Nor do I consider the additional issues that are raised to have any merit.

Ground 2: Making inappropriate remarks about PW1’s evidence

34.   The applicant complains that the judge erred in the direction she gave to the jury after summarising the evidence of PW1 of having obtained the name and identity card number of the applicant from a friend and then telling the jury “Now, how reliable or accurate that information is, is again, a matter for you to consider.”  The applicant argues that this amounted to the judge inviting the jury to rely on an out-of-court statement as proof of the truth of its contents and thereby infringed the rule against hearsay.[28]

35.   It is important that the impugned remarks of the judge are put in context.  When summarising the evidence of PW1, the judge said:

“She was asked about whether she said the male who asked her to deliver the dangerous drug is the defendant, also known as 香蕉 in her 2018 statement. She said she needed to find out his name so the police could arrest him. ‘So when the police came this time I gave them the name. My friend gave me his name and identity card number.’ So what she is saying is that she had asked a friend to give her the identity card number of the defendant and the defendant’s name and she passed it on to the police. Now, how reliable or accurate that information is, is again, a matter for you to consider.”[29]

36.   As pointed out by the respondent, PW1’s evidence at trial was that she only knew the applicant as “香蕉” (Banana) and it was her friend who gave her the full name and identity card number of this person, which she passed on to the police.  The judge was merely inviting the jury to consider whether this was reliable and accurate information about how PW1 came to know the name and identity card of the applicant in order to give this information to the police, bearing in mind PW1 already knew who the applicant was, but only knew him as Banana.  The judge was not inviting the jury to rely on the information as proof that the applicant was the one who directed PW1 to traffic the drugs.  The jury would not have misunderstood from the judge’s remark that the applicant had been positively identified not only by PW1 but also by her friend.  The friend simply provided the name and identity card number of the person that PW1 knew as Banana.

37.   This argument also ignores the fact that PW1 identified the applicant in the photograph identification parade and that his DNA was found to have come into contact with the sealing part of the plastic bag that contained the dangerous drug.  The applicant did not dispute that he knew PW1 because in cross-examination it was put to her that at one time in the game centre, he stepped on her handbag and helped her put the contents back in her handbag but she denied that this had happened.[30]

38.   I am not satisfied that this ground is reasonably arguable.

Ground 3: Misdirecting on returning a majority verdict

39.   The applicant complains that the judge erred in her directions on a majority verdict and implied that a four to three split was not a result which the jury could return and this put pressure on the jury to return a five to two majority verdict.

40.   Again it is important that the impugned remarks be considered in their proper context.  What the judge said about the verdict was as follows:

“Now, you must try, members of the jury to reach a unanimous verdict, that is, a verdict upon which you are all agreed. But if having tried your best, you cannot reach a unanimous verdict, then you may return a verdict of six to one or five to two guilty or not guilty. But four to three is not a verdict and if that happens, then I will deal with it.”[31]

41.   The applicant criticises the judge for failing to mention the final sentence of the second paragraph of Specimen Direction 55, which reads:

“2. You should strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed; whether guilty or not guilty. If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least 5 of you are agreed, in other words, a verdict of six-one, or five-two. A verdict of four-three either way does not constitute a verdict, and should that position arise inform the court by written note of the fact of that split, but not the numbers in favour of and against a particular verdict, and I shall direct you further.” (Emphasis added)

42.   The failure to mention theitalicised part of the specimen direction was not a matter of any material significance.  There is no material difference between what the judge said and the specimen direction and the suggestion that the jury may have felt improper pressure to return at least five to two majority verdict by the judge’s direction is without substance.  

43.   I am not satisfied that this ground is reasonably arguable.

The sentence appeal

44.   There remains the application for leave to appeal against sentence which has not been addressed in the applicant’s recent submissions. 

45.   One aspect of the applicant’s complaint about his sentence is that the judge adopted a starting point of 13 years’ imprisonment when sentencing PW1, which was one year less than the figure she adopted for him in respect of the same quantity of drugs.  The respondent points out that an arithmetic calculation of the starting point for the quantity of drugs involved was 14 years and 2 months’ imprisonment, whilst the applicant received the benefit of a figure that was 2 months less than that.  See HKSAR v Tam Yi Chun.[32]  The respondent argues that the applicant has no basis for complaint for the discrepancy between their respective starting points, because he played a greater role than PW1 as he was the one who instructed her to deliver the drugs for $500.  See HKSAR v Herry Jane Yusuph.[33]

46.   Another aspect is that the judge did not appropriately consider mitigation that may have entitled the applicant to a reduction to his sentence.  On this basis, I am satisfied that the applicant has a reasonably arguable ground.

47.   For this reason, I grant the applicant leave to appeal his sentence and an Appeal Aid Certificate so that he can have legal representation at the hearing of his appeal.

Conclusion

48.   It follows from what I have said that I do not consider the grounds of appeal advanced in respect of the application for leave against conviction to be reasonably arguable.  The applicant is therefore refused leave to appeal against his conviction but is grant leave to appeal against his sentence.

49.   The applicant is reminded of his right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application for leave against conviction.

[1] Appeal Bundle, page 64N-Q.

[2] Appeal Bundle, page 25Q-R.

[3] Appeal Bundle, page 27E-F.

[4] Appeal Bundle, page 9, at paragraph 2.

[5] Appeal Bundle, page 11, at paragraph 5.

[6] Appeal Bundle, pages 11 and 12, at paragraph 6.

[7] Appeal Bundle, page 12, at paragraph 9.

[8] Appeal Bundle, page 27 L-P.

[9] Appeal Bundle, page 27Q.

[10] Appeal Bundle, page 28A-F.

[11] Appeal Bundle, page 29K-O.

[12] Appeal Bundle, page 30A-B.

[13] Appeal Bundle, page 30 M-O.

[14] Appeal Bundle, page 30O-T.

[15] Appeal Bundle, page 24I-L.

[16] Appeal Bundle, page 28N-Q.

[17] Appeal Bundle, page 24A-C.

[18] Appeal Bundle, page 25L-O.

[19] Appeal Bundle, page 25S-U.

[20] Appeal Bundle, page 26K-M.

[21] Appeal Bundle, page 34A-C.

[22] Appeal Bundle, page 34G-O.

[23] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[24] Appeal Bundle, page 19D-M.

[25] Appeal Bundle, pages 21Q-22D.

[26] Appeal Bundle, 31I-O. 

[27] Appeal Bundle, page 21M-P and pages 33R-34O.

[28] Appeal Bundle, page 29O-P.

[29] Appeal Bundle, page 29K-P.

[30] Appeal Bundle, page 24I-L.

[31] Appeal Bundle, page 34P-S.

[32] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

[33] HKSAR v Herry Jane Yusuph [2021] 1 HKC 458.