HKSAR v. ZUO YAYING

[English Translation – 英譯本]

CACC 432/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 432 OF 2014

(ON APPEAL FROM DCCC NO 508 OF 2014)

________________________

REASONS FOR JUDGMENT

Hon Yeung VP (giving the reasons for judgment of the Court):

1. The appellant (Zhuo Yaying) and another defendant Cheung Hiu Lai (transliteration) (“Cheung”) were charged with one charge of theft. The prosecution alleged that on 15 April 2014, the appellant and Cheung stole 0.23 kg of the root section of an incense tree (aquilaria sinensis) and 0.03 kg of incense tree wood fragments (prosecution exhibits P2, P6, P7 and P10) from near the hillside of Sum Wat (transliteration) Village, Lantau Island.

2. Cheung pleaded guilty. The appellant, who pleaded not guilty, stood trial in the District Court before H. H. Judge Stanley Chan (“the trial judge”) who convicted him on 24 November 2014 and sentenced him to 37 months’ imprisonment. He applied for leave to appeal against the conviction. An appeal judge sitting alone allowed the application and granted him leave on 2 June 2015.

3. After hearing the matter, this Court allowed his appeal, quashed his conviction and set aside the sentence. The reasons for judgment of this Court are as follows:

Prosecution case and evidence

4. In the morning of 15 April 2014, the police received report that trees were being felled at Sum Wat Village. On arrival at the scene, the police intercepted the appellant and Cheung outside number 7, Sum Wat Village. The duo produced their two-way permit and indicated that they went there for hiking at the vicinity of the scene. Later, a police officer found upon search a section of a root of an incense tree(P2) from the backpack of Cheung and some roots and wood chips of an incense tree from the backpack of the appellant (P6, P7 and P10).

5. P2 was a section of a root of an incense tree that was as long as 21 inches. When it was found, part of the branches of the tree was protruding out of the backpack of Cheung. Cheung said that he uprooted the root of the incense tree with hand/hands when he was hiking with a friend. But the location where he did so could not be found when he led the police officer to look for it.

6. The police officer said that apart from some incense tree branches and tree bark, there were also some personal valuables, including a wallet, bank cards and clothing, inside the backpack. When being questioned, the appellant said that the tree branches and tree bark inside his backpack were Chen Xiang（沉香）(agarwood), but they had already been processed and not just been felled.

7. Under caution, the appellant maintained that the incense tree branches and tree bark found inside his backpack were not felled in Hong Kong but were brought here by him from the mainland to be refined into ornaments.

8. A Conservation Officer of the Agriculture, Fisheries and Conservation Department testified in the capacity of an expert witness. The expert pointed out that the incense tree in question was only brought to the Hong Kong Herbarium for his examination on 24 April 2014 after it had been seized on 15 April 2014. But the evidence did not show the date on which he carried out the examination. He said the tree root (P2) found inside the backpack of Cheung was the root of an incense tree. Its characteristics were the same as the characteristics and texture of that found in the local species of incense trees. He said that the incense tree branches and tree bark (P6 and P7) found in the backpack of the appellant were also the roots of an incense tree. The dark resin was a result of infection in the wood. The expert pointed out at the same time that the other wood chips (P10) found inside the appellant’s backpack had the characteristic of dark resin formed as a result of their own infection, and of the 6 wood chips, one had already been carved into a Goddess of Mercy statuette.

9. The expert also pointed out that incense tree was the only species in Hong Kong that could be used to make Chen Xiang, and the fibres of the incense tree root found inside Cheung’s backpack were still moist and fresh, some even still had earth on them. This showed that they had recently been cut off from the roots of an incense tree. He maintained that he believed that the incense tree root in question was harvested from the countryside in Hong Kong one to two weeks before he conducted the examination. The reasons were that the inside of the root was still very moist with water and its appearance was identical to the incense trees grown locally in Hong Kong.

10. The expert also said that the wood chips inside the appellant’s backpack had been carefully dealt with. The Goddess of Mercy statuette had even been carved with care. Some of the wood chips were cut off from live incense trees and some were harvested from dead trees. There was still water moisture in the wood chips. He believed that P6, P7 and P10 were cut off within one month, within two to three weeks and within one to two months respectively before the examination though he could not confirm whether they grew in the wild.

11. The expert stressed that the species of tree in question could be found in Hong Kong. And although that kind of incense tree also grew in South China, they are “getting more scarce” due to rampant illegal felling. The expert also pointed out that incense tree was a rare plant. The Chen Xiang in question had a market value of $17,200, and there were quite a few, as many as 100, incense trees in Sum Wat Village.

12. Information showed that the appellant and Cheung travelled to Hong Kong through Lowu together on 12 April 2014. When being interviewed by the police, the appellant said he and Cheung came to Hong Kong for sightseeing. They intended to leave on 15 April 2014. On the day in question, they took the MTR to Tung Chung where they took a taxi to go to Sum Wat Village with the intention of “driving around it once” before going back to Tung Chung. He said he brought the big incense tree root found in his backpack from the Mainland to Hong Kong with the intention of making “beads, wrapped in gold”, and the small ones were for making “beads” or pendants. Part of it could be “ground into powder, smelt fragrant”.

13. The appellant maintained that he had a 1,500-acre base in the mainland in which 400,000 incense trees were grown. The Chen Xiang in question was partly taken from the base and partly bought from a “Lo Biu” (transliteration).

The defence of the appellant

14. In his own defence, the appellant testified that he was in the medical equipment business in the mainland. He had set up a medical limited company jointly with his wife with a capital as high as RMB¥1,000,000. He produced a cooperation agreement the content of which showed that the parties had the intention to invest jointly in an incense-tree-planting project with each person putting up a capital of RMB¥200,000. As part of the investment, the appellant had to make 5 gold-wrapped Chen Xiang necklaces and pay for gold-wrapped Chen Xiang necklaces each year. He said he brought Chen Xiang from the mainland to Hong Kong in order to perform his obligation under the contract. He said he had 4 yet-to-be-gold-wrapped Chen Xiang necklaces when he was arrested. But he told someone to bring them back to the mainland after the incident.

15. He said he came to Hong Kong with Cheung in the morning of 12 April 2014 via Lowu and rented a room in Shamshuipo to rest. In the two days after that, they spent the time mainly on checking the value and styles of gold. On 15 April 2014, they went hiking in Lantau and planned to spend a few hours after that to buy gold for putting together gold-wrapped necklaces which would be brought back to the mainland after completion. He said they gave up hiking as Cheung had injured his ankle. Instead, they went to a small shop to eat. He stressed that when being stopped and searched by the police, he did not have any instrument for felling trees on his person and there was $/¥30,000 to $/¥50,000 in the Union Pay card and the credit card on his person which was sufficient to pay for five gold-wrapped necklaces.

16. The appellant maintained that the Chen Xiang found inside his backpack was brought to Hong Kong from the mainland. He indicated that he was aware that Chen Xiang was classified as second-grade state protection plant in the mainland. He repeated that he himself had 1,500 acres of land in the mainland for planting incense trees, and part of the incense tree he brought here was taken from his own farm and part was obtained through purchase.

17. The appellant claimed that he knew nothing about the incense tree found in Cheung’s backpack. He said the incense tree branches in his backpack were from his own farm and the other incense tree wood chips were partly bought from a Chen Xiang shop but the Goddess of Mercy statuette was sourced and bought by his distant uncle from a shop in Ningbo. The appellant said he bought the Goddess of Mercy statuette for $1,300 and the rest of the wood chips was part of the wood chips that he had bought for over $9,000.

18. The appellant further claimed that he and his partner paid over RMB¥300,000 per year to rent land on the hills from villager/s to grow incense trees. There were 200 big trees and 400,000 newly planted trees. What’s more, he and his partner had each invested RMB¥200,000 in the first year.

19. He indicated that as it only took about two hours to complete the gold-wrapping work procedure, it was not necessary for him to go hiking with the finished products after the gold-wrapping work procedure had been completed. He said $30,000 to $50,000 was required for the five gold-wrapped necklaces, and the 4 necklaces that had been brought back to the mainland were not wrapped in gold. He also said that part of the Chen Xiang would be made into gold-wrapped beads, and he had made one necklace with gold-wrapped beads in Hong Kong a few years back.

20. He admitted that he had never been to Sum Wat Village before, and the fact that he went hiking with Cheung was only because the time was suitable. He agreed that P2 was found upon search from the backpack of Cheung but he had no prior knowledge about it.

Findings of the trial judge

21. The trial judge had analyzed the evidence of the appellant very extensively and pointed out how it was not reasonable. He found that the appellant’s explanation was a pack of lies and pointed out that if he had 200 big incense trees and 1,500 acres of land that had 400,000 incense trees grown on it, it was not necessary for him to bring a small quantity of Chen Xiang to Hong Kong. The trial judge was of the view that the appellant had not been able to explain how he had sufficient source of capital to pay for the 1,500 acres of land to grow the 400,000 incense trees, or why he had to handover Chen Xiang necklaces after paying cash for capital.

22. The trial judge said if the purpose of the appellant’s trip to Hong Kong was to make gold-wrapped beads and pendants, he would not have waited until the last moment to proceed with it. He stressed that the appellant had never been to Sum Wat Village; he would not have taken the MTR to go to Tung Chung and then spent $170 taxi fare to travel all the way to Sum Wat Village, less so to have brought western-style trousers and leather shoes for changing. The trial judge held that the appellant had no reason to go to Sum Wat Village other than to look for or to fell incense trees there.

23. The trial judge accepted the evidence of the police officer and found that the appellant must have noticed that part of an incense tree root (P2) was protruding out of Cheung’s backpack. He found that the incense tree inside the backpack of the appellant was moist with water and bore fresh cut-off marks. He rejected the appellant’s claim that he brought incense tree to Hong Kong.

24. The trial judge found that the appellant had to be held responsible for the incense tree root (P2) found inside the backpack of Cheung and part of the incense tree branches and tree bark (P6 and P7) found inside his own backpack. But he considered that the other wood chips (P10) inside the appellant’s backpack, including the Goddess of Mercy statuette, might have been obtained through other means; they might even have been brought to Hong Kong from the mainland by the appellant. Therefore, he only found that the appellant had stolen P2, P6 and P7.

Grounds of appeal

25. Mr James Tze, counsel for the appellant, submitted that the trial judge should not have rejected the appellant’s evidence. He considered that the evidence the prosecution adduced was not sufficient to support the conviction, particularly when the expert witness could not be sure from where the incense tree in question was cut. Mr Tze argued that the evidence of the prosecution could not prove that the appellant had jointly stolen the incense tree in question with Cheung.

26. Besides, Mr Tze argued in his written submissions that there were some procedural irregularities in the course of the trial which rendered the trial unfair. Those irregularities included:

(1) The prosecution called the first and the second prosecution witnesses in the absence of any written statements from them. The said witness statements were only made available after the above witnesses had finished giving their evidence, hence depriving the appellant of sufficient opportunities to duly cross-examine them; and

(2) The trial judge asked the prosecution to make closing submissions even when the appellant was not legally represented and had called no witnesses.

27. The position of Mr Tze was, whenever a defendant had not given evidence or called any witness to give evidence for him, the prosecution had no right to make a closing submission to the court. And even if the prosecution could make a closing submission pursuant to judge’s direction, it should not submit on facts, less so to attack the evidence of the defendant in the course of the submission.

28. At the beginning of the hearing, Mr Tze made it clear that the appellant would abandon pursuing the irregularity set out in (1) above. Therefore, in respect of the irregularities Mr Tze alleged, we only had to deal with the one regarding whether or not it was proper for the trial judge to ask the prosecution to make a closing submission when the appellant was not legally represented and had not called any witnesses. Did it render the trial unfair?

Discussion

29. We agree that quite a number of areas in the evidence of the appellant were unreasonable. He said that it was the last day he and Cheung were in Hong Kong. Although they had not dealt with all the official business, they took the MTR to go from Nam Cheong to Tung Chung and then spent $170 on taking a taxi to go to a place that he had never been to purely for the purpose of hiking. This is not credible at all. Besides, the trial judge had the benefit of observing the witness giving evidence in the witness box and so was in the best position to judge if his evidence was reliable and to be believed. In our view, the trial judge had sufficient basis to find that the evidence of the appellant was not credible and therefore rejected it.

30. Nevertheless, rejecting the evidence of a defendant does not necessarily mean that he has to be found guilty. The judge still had to consider if the prosecution evidence was sufficient to prove that the defendant was guilty.

31. According to the evidence that the trial judge had accepted, there was an incense tree root that was as long as 21 inches in the backpack of Cheung that was partly exposed when he was intercepted and searched. That root had recently been cut off (within one to two weeks before 24 April 2014). The reasonable inference was that the incense tree root was pulled from the incense tree forest near Sum Wat Village by Cheung on 15 April 2014.

32. The appellant admitted that he came to Hong Kong from Shenzhen together with Cheung on 12 April 2014 and was with him throughout the following few days. Under the instruction of the appellant and with his financial support, Cheung went with him to Sum Wat Village, a place where incense trees were grown. As far as the background of the case was concerned, the main factual issue in dispute was whether or not the appellant was aware of the existence of that tree root (P2) and its nature.

33. In respect of P6 and P7, according to the expert evidence, the tree branches and tree bark (P6 and P7) found inside the backpack of the appellant were cut at an earlier time, respectively within one month and two to three weeks before 24 April 2014. If this is true, then when P6 and P7 were cut off, the appellant was not in Hong Kong. This is consistent with the appellant’s claim that he brought P6 and P7 here from the mainland. In the aforesaid situation, we are of the view that on the question of whether the appellant had stolen P6 and P7, the benefit of the doubt should be given to the appellant.

34. But this case gave rise to a more important question: in a case where the defendant who appeared in-person gave evidence in his own defence but did not call any witness to testify for him, whether or not the prosecution had the right to make a closing submission, in particular in respect of facts, to try to convince the court to reject the defendant’s version and accept the prosecution’s version? At the trial, the appellant was not legally represented; he did testify in his own defence but did not call any witnesses to testify for him. When both parties had finished adducing evidence, the trial judge had the following exchanges with the prosecuting counsel:

“Judge: Does the prosecution have any submissions to make?

Mr Wong: Your Honour, as he appears in-person, I do not propose to make any submissions.

Judge: Theoretically speaking, if the defendant did not give evidence, the prosecution surely need not and should not make any submissions.

Mr Wong: Hmm.

Judge: But he did give evidence.

Mr Wong: Well, OK. I will make a submission. It’s not a problem…

Judge:  Right. Thank you.”

35. The above exchanges indicate that the prosecuting counsel took the view that although the appellant did give evidence in his own defence, as he was not legally represented and had not called any witnesses, the prosecution therefore should not make any closing submissions. The trial judge clearly did not share that view; he considered that as the appellant had given evidence, the prosecution therefore had the right to and should make a closing submission to assist the court to reach its verdict. The prosecuting counsel then proceeded right away to make a closing submission mainly to attack the evidence of the appellant, arguing that it was not credible and that the versions given even differed as the times differed. He submitted that the prosecution evidence was sufficient to prove that the appellant did commit the offence of theft that he was charged with.

36. The trial judge’s understanding of the procedural rules was clearly not correct. When an unrepresented defendant elected not to call any witness, even if he had given evidence in his own defence, the prosecution should not make a closing submission to the court. (See the order of speeches set out in Archbold Hong Kong 2015, P306 para 4-161 I). In Man Ching-ip & others v The Queen [1980] HKLR 890, the Court of Appeal has made clear that:

“… counsel for the prosecution has a right to open the evidence, so, we think, he has a right in every case to sum up the evidence at the end unless the defendant is unrepresented and calls no witnesses to the facts except himself.”

37. Section 56(1) of the Criminal Procedure Ordinance, Cap 221, provides:

“The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.”

38. The Court of Appeal had canvassed the question in HKSAR and Tso Kin Shing [2014] 3 HKLRD 721. It reiterated that the rationale of s.56(1) was that even if the defendant gave evidence in his own defence, it did not confer on the prosecution the right to reply. The Court of Appeal held at 726 of the case that whether or not the prosecution had the right to make a closing submission depended on whether the defendant was legally represented:

“5.7 …The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness. However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.”

39. The Court of Appeal pointed out that this was a firmly established principle in criminal trials and explained the rationale behind it clearly:

“5.8  Although this principle has been called a “convention” applicable to criminal trials, there is authority which says that it is in fact more than a convention: see Paul (at 284). In our understanding, this is a firmly established principle on the practice and procedure of criminal trials. The rationale behind this principle is to ensure that the defendant receives a fair trial. As was pointed out in Mondon (at 698), when the outcome of a case hinges on findings of fact, which in turn depends upon the choice made by the jury between conflicting evidence given by the prosecution and by the defence, the advocate will undoubtedly play a highly influential role in the verdict to be returned by the jury. In our view, there is usually a difference, in terms of the ability to convince the jury, between a person who has received professional training and an unrepresented defendant. In order to redress this considerable imbalance in ability, a workable method is to disallow the prosecution to make a closing speech to the jury. This is a fair rule and a rational approach.

5.9 In Paul the court also stated (at 284) that there is a high responsibility on trial judges and prosecution counsel to guard against breaching this principle. Generally speaking, non-compliance of this principle will result in the conviction being quashed. That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case. See also R v. Pink (Roland) [1971] 1 QB 508 (at 513).”

40. In HKSAR and Chan Hoi-wing CACC 25/2014, the Court of Appeal also dealt with the same question; namely, whether the prosecution had the right to make a closing submission when an unrepresented defendant had given evidence in his own defence without going on to call any other witnesses. Lunn VP confirmed and concurred with the analysis made and conclusion reached in this respect in Tso Kin Shing, and held that it was a serious irregularity for the trial judge to allow the prosecution to make a closing submission to the jury in a case where the defendant was unrepresented and called no witness to testify for him. It constituted procedural unfairness in the trial.

41. Mr David Chan, Assistant Director for Public Prosecutions, acting for the respondent, submitted that the cases of Man Ching-ip, Chan Hoi-wingand Tso Kin Shing etc all being jury trials, were not applicable to District Court cases dealt with by a judge sitting alone. The position of Mr Chan was that District Judges were different from juries, the former were professional judges who therefore were familiar with the role the prosecution played. For example, they were aware of the relevant legal principles such as closing speeches were only what the prosecution side said about the case and were not part of the evidence of the case etc. Therefore, District Judges would not easily be affected by what the prosecuting counsel said in his closing submissions. Mr Chan’s position was: “the closing speeches of the prosecution and the defence might be highly influential on a jury, and a professionally trained legal representative enjoys an unfair advantage over an unrepresented defendant in his ability to convince the jury. Therefore the purpose of disallowing the prosecution to make a closing submission to a jury was to redress this considerable imbalance in ability”. Mr Chan stressed that no regard should be given to this consideration in cases dealt with in the District Court where the judges sat alone. He held the view that the legal principle established in Tso Kin Shing was not necessarily applicable to non-jury trials.

42. Mr Chan pointed out in particular that inThe Queen v Au-Yeung Tat-shing & another(CACC 19/1985), the Court of Appeal held that the prosecution was entitled to make a closing submission in the case where an unrepresented defendant tried by a single magistrate in a magistracy gave evidence but did not call any witness. As Mr Chan had frankly admitted, Au-Yeung Tat-shingturned entirely on the express provisions in section 19(1) and (2) of the Magistrates Ordinance, and that section conferred on the prosecution the right to make a closing submission to the court even when the defendant was not represented and had not called any witnesses to testify for him. As a matter of fact, Barker JA said clearly in 3G-H of the judgment of the case:

“The cases mentioned in the reference to us, and cited before us, were all cases on indictment and in our view are irrelevant to a trial in a Magistrates Court. Whatever be the position as to closing speeches so far as trials by jury or before a District Judge are concerned (and we express no view upon this matter) we are satisfied that the prosecution does have the right to make such a speech in the case of an unrepresented defendant who alone gives evidence in a Magistrates Court.”

43. We do not think that Au-Yeung Tat-shing cited by Mr Chan provides any guidance on the question.

44. Although Chan Hoi-wing, Tso Kin Shing etc were all jury trials, we do not see any logical reason why the principle laid down in these cases are not applicable to District Court cases dealt with by a judge sitting alone. When a case concerns findings of facts, the factor that the closing submissions made by the prosecution and the defence are highly influential on the juries is also applicable to cases tried by a judge sitting alone. The ability of a professionally trained lawyer to convince a trial judge and a jury is the same; he may enjoy an unfair advantage over an unrepresented defendant. This imbalance in ability also figures in cases that are dealt with by a judge sitting alone.

45. We are of the view that the legal principle laid down in Tso Kin Shing, viz:

“The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness. However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.”

is applicable to criminal trials dealt with by a judge sitting alone. But we take the view that the above principle is only applicable to closing submissions that concern facts. A District Judge is entitled to require counsel representing either side to assist the court at any stage of the trial regarding questions of law. Even where the defendant is not represented and has called no witness, if at any stage of the trial the trial judge finds the need to ask the prosecution to assist the court on certain questions of law, the prosecution has the right and the obligation to address the court on these points of law to assist the court. But where there is an unrepresented defendant who has not called any witness, even if he has given evidence in his own defence, the prosecution cannot and should not make any closing submissions regarding the facts of the case to attack the evidence of the defendant.

46. In our view, in the circumstances of the present case, when the judge had to make a finding of fact on an issue in dispute, it was a serious irregularity for the trial judge to have invited the prosecution and/or allowed the prosecution to make a closing submission on the facts. We take the view that even pursuant to an invitation extended to the prosecution by the judge, it should not have made any closing submission on the facts on the case. The aforesaid irregularity rendered the trial unfair. We therefore allow the appeal and quash the conviction against the appellant and set aside the sentence.