HKSAR v. LAU WING WING

CACC 243/2019

[2022] HKCA 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 243 OF 2019

(ON APPEAL FROM HCCC NO 363 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  The applicant stood trial before Toh J (the Judge) and a jury on an Indictment containing a single count of conspiracy to manufacture a dangerous drug, contrary to sections 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. The particulars of the offence alleged that between 8 and 16 May 2017, the applicant had “conspired with a person known as ‘Jackie’”, to manufacture cocaine. On 5 August 2019, she was convicted after trial, and on 6 August 2019 was sentenced to 12 years’ imprisonment.

2.  On 13 August 2019, the applicant filed a notice for leave to appeal against her conviction, in which she complained about her conviction in respect of three areas: (1) the Judge’s refusal to allow the defence to show the jury certain telephone exhibits to prove that Jackie did not exist; (2) the absence of any records as to the existence of the applicant’s shoulder bag; and (3) the directions by the Judge after the jury’s retirement.

3.  On 7 September 2021, the applicant appeared in person at the leave application, having had legal aid refused on 19 February and 12 August 2020 and 31 August 2021. At the leave hearing before the Single Judge, the applicant produced a lengthy letter, dated 25 August 2021, addressed to the Legal Aid Department, from Mr Eric Cheung, in his capacity as Principal Lecturer and Director of Clinical Legal Education, Faculty of Law, University of Hong Kong, in which he requested reconsideration of her application for legal aid. In the letter, Mr Cheung mentioned the following matters. First, the suspicious circumstances surrounding the role of a male known as Cheung Chi-kin (Cheung), who had been arrested but not charged concerning the offence. Secondly, concern that a jury question had not been properly answered. Thirdly, the potential issue of whether pressure was put on the jury to reach a verdict. Fourthly, the potential issue of material nondisclosure by the prosecution regarding the involvement of Cheung in the case. The Single Judge refused the application as he did not consider the grounds advanced by or on behalf of the applicant to be reasonably arguable.[1]

4.  On 14 September 2021, the applicant renewed her leave application.

5.  On 8 April 2022, Mr Eric Cheung, as solicitor advocate, and Mr Stephen Keung, counsel, for the applicant, filed perfected grounds of appeal, consisting of two new grounds of appeal.

The prosecution case

6.  The evidence revealed that on 17 May 2017, the police intercepted a male known as Cheung as he was leaving Room 1716 of a hotel in Hung Hom, Kowloon and thereby gained entry into the room. It was not disputed that, in the hotel room, police found and seized 7 bags containing a solid suspected to be a dangerous drug, as well as tools for manufacturing a dangerous drug, including a metal pot, paper boxes, glass beakers, glass tubes, glass bottles, and electronic scales. The solid was subsequently found to be 185 grammes, containing 74.8 grammes of cocaine, with a street value of $232,373 at the time. It was an admitted fact that the applicant had reserved the hotel room for five nights at a cost of $5,858.60[2].

7.  DPC12841 (PW2) testified that he arrested and cautioned the applicant when she came to the room, after which she responded, “I cooked the dangerous drug for distribution to earn money. Give me a chance” [3]. PW2 post-recorded the admission in his notebook[4]. He subsequently conducted a video recorded interview with the applicant, in which she stated how she had met Jackie, who knew she had lost money in gambling and offered her several thousand dollars as a reward for manufacturing cocaine for him, which she accepted. Jackie asked her to rent a room, taught her how to make crack cocaine from a cocaine base and gave her all the tools to perform the task. Jackie had given her a black telephone with the word “Love” on it (exhibit P29), through which his friend would reach the applicant to collect the product. She said that, after meeting Jackie’s friend, she returned to the hotel room, and called up Cheung to come to the room to play as she was bored.[5] She also said Jackie had not yet paid her and the cash of $32,000 found on her person was her wages from working as a hostess.

8.  WPC 14536 (PW3) testified that she found and seized the $32,000 from the applicant, and four mobile telephones and one room card, all of which were in the applicant’s shoulder bag[6]. PW3 was questioned as to why she had never mentioned the bag’s existence before, to which she responded that she did not consider it relevant[7].

9.  DPC7995 (PW1) was the officer who arrested Cheung. It was put to him in cross-examination that he and PW3 had planted the $32,000 cash on the applicant, but he disagreed. He further disagreed that exhibit P29 had been planted on the applicant.

10.  At the time, Cheung was also arrested by the police regarding this case. We are informed that he was not prosecuted because of legal advice from the Department of Justice.

The defence case

11.  The applicant’s case was essentially that she had been framed by her boyfriend, Cheung, and the police.

12.  She testified that she was supported by Cheung and had lived in his apartment since April 2017, after quitting her work in a nightclub. At the request of Cheung, she rented the hotel room for five nights because his apartment needed to be renovated. She made the booking online. At about 1.00 pm, the next day, 16 May 2017, Cheung was still asleep, so she went by herself and checked into the hotel at 2.45 pm.[8] She paid cash and was given two room cards. She then went to check the room and later left. She returned to the room later that evening with Cheung and they stayed there for the night. She woke up at about 1.00 pm and Cheung told her that he wanted home-cooked soup so she went to the market to buy soup ingredients. On her return to the room, she was arrested by the police at 6.42 pm.[9]

13.  The applicant testified that she had been assaulted and threatened by the police, and coached as to what to say in the video recorded interview; she claimed that she had never confessed to the police. She did not know about the cocaine and paraphernalia, and had not seen the drugs on the table, the pot on the cooker, or the plastic tray containing the beakers when she left the hotel room that day. The $32,000 cash allegedly found on her, as well as the cocaine and paraphernalia found in the hotel room were all planted by the police. She said that exhibit P29 belonged to Cheung.[10]

The jury’s question

14.  After they had retired to consider their verdict, the jury raised a question about Jackie’s identity, with some apparently thinking that it might be Cheung. In the absence of the jury, the Judge discussed the question with counsel. She indicated that she would tell the jury that Jackie was a person mentioned by the applicant in her video recorded interview and there was no other evidence as to who he was; nor was there any evidence that he was Cheung[11]. Defence counsel, however, suggested that the Judge should go further and direct that the conspiracy alleged was between the applicant and Jackie: if the jury thought that the conspiracy was between the applicant and Cheung, they should acquit. The Judge rejected counsel’s suggestion as an invitation to speculation.

15.  The Judge then directed the jury in the following terms:[12]

“Well, members of the jury, the mention of Jackie is actually in the video recorded interview of the defendant. She mentions Jackie as the person who actually taught her how to manufacture. Now, we have no evidence whatsoever who Jackie is, apart from what was said in the video recorded interview. There is no evidence that Jackie is Cheung Chi-kin.

So, as I have said to you, you can only consider the evidence. Do not speculate. Do not guess. The only time that Jackie is mentioned is by the defendant in her video recorded interview. So, members of the jury, that is the evidence. All right.”

The renewed application

16.  We turn to address the two new grounds of appeal.

Ground 1

17.  The first ground complains that the Judge’s direction regarding the jury’s question resulted in a real danger that the jury might have impermissibly convicted the applicant even if they were not sure about the truthfulness of the applicant’s admissions in the video recorded interview or on the basis of an uncharged conspiracy between the applicant and Cheung.

18.  It is complained that the Judge in her summing-up failed to make any reference to defence counsel’s closing submission that the jury must acquit the applicant if they considered that: (1) the admissions in the video recorded interview were or might be involuntarily obtained or untrue; (2) Jackie did not or might not exist; or (3) the subject dangerous drugs belonged or might have belonged to Cheung. In his oral submissions before us, Mr Cheung said the question asked by the jury raised a legal issue. He said the Judge should have told the jury that they could not convict the applicant on the basis that she conspired with Cheung or anyone else other than Jackie.

19.  As already noted, the applicant confessed in her video recorded interview that she agreed with the person known as “Jackie” to make crack cocaine in the hotel room. She said Jackie did not attend the hotel room and she dealt with her outside. It was on this evidence that the prosecution alleged that she had conspired with Jackie to manufacture a dangerous drug. As rightly pointed out by the Judge to the jury, there was no evidence before them that Jackie was Cheung; indeed the applicant had referred to them as different people in her video recorded interview. In respect of the jury’s question, the Judge was correct in reminding them not to speculate and to decide the case only on the evidence before them.

20.  The Judge gave unimpeachable directions concerning the onus and standard of proof. She told the jury, amongst other things, that if they thought what the applicant said was true or may be true, they should acquit her. This included the applicant’s allegations against the police that they forced and coached her to make the admissions in the video recorded interview.[13] The jury were told that they could rely on the applicant’s admissions only if they were sure she had made the admissions and that they were true.[14]

21.  The Judge also explained to the jury that only the applicant was on trial before them and their task was to determine whether she was guilty or not guilty of conspiring with Jackie to manufacture a dangerous drug. In explaining conspiracy to the jury, she said:[15]

“So before you can convict the defendant of this charge of conspiracy to manufacture, you must be sure: (a) that there was an agreement between the defendant and Jackie to manufacture cocaine; and (b) that the defendant was party to the agreement in the sense that she agreed with Jackie that the manufacturing should be committed and at the time of agreeing to this she did intend that she should carry it out.”

22.  The Judge directed the jury’s attention to the fact that they did not know what happened to Cheung and told them not to speculate about the matter. She said: [16]

“Only the defendant is on trial before you. You are only concerned about the guilt or innocence of the defendant. What has happened to Cheung Chi-kin, we do not know. We only know that he has been, as the defendant said, she thinks that he was released in October. So we do not know, members of the jury. Again, do not speculate. We are here considering whether the evidence -- on the evidence that is placed before you, you are sure you can be sure of the defendant’s guilt. If you are not sure, then you acquit. If you are sure, then you convict.”

23.  We are satisfied that there was no risk that the jury would have convicted the applicant of an uncharged conspiracy between her and Cheung.

24.  The Judge appropriately reminded the jury of the defence case, having summarised extensively the applicant’s evidence and the points made on her behalf regarding the case against her.

25.  In our judgment, the Judge’s answer to the jury’s question was perfectly in order and appropriate. This ground of appeal is devoid of merit and we have no hesitation in rejecting it.

Ground 2

26.  The second ground of appeal alleges that there has been material non-disclosure by the prosecution rendering the conviction unsafe and unsatisfactory.

27.  Mr Cheung’s complaint centres on the failure of the prosecution to disclose to the defence before trial a police memo dated 25 May 2017. The memo was a request for assistance from the hotel to allow the bearer to view the CCTV for the public areas that covered the Ground floor lobby and the Lift and 17^th floor lobby of the hotel. The police officer involved made a statement dated 12 May 2022, in which he explained that during the operation of this case on 16 and 17 May 2017 he had access to the CCTV recordings of the hotel. He requested the hotel “to burn” the CCTV recordings for those days. However, the hotel staff indicated that maintenance was being undertaken and that they might not be able to save or burn the recordings. On 25 May 2017, he was informed by the hotel staff that the recordings were not saved because of system maintenance, although the recordings from 18:20 to 18:50 hours on 17 May 2017 might have been saved. Accordingly, on that day he issued a request to the hotel in those terms. On 11 July 2017, he took a statement from the hotel manager regarding details of the booking and occupancy of Room 1716 of the hotel. The manager further told him that the CCTV recordings from 18:20 to 18:50 hours on 17 May 2010 were not available because of a computer failure.

28.  As noted, Mr Cheung, having assessed the applicant’s case, wrote a letter to the Legal Aid Department dated 25 August 2021, in which he queried why Cheung had not been charged and whether there had been nondisclosure about his involvement in the case by the prosecution.

29.  On 20 December 2021, ONC Lawyers wrote a letter to the Department of Justice, in which they confirmed they had received instructions from the applicant to act on her behalf in the renewed application on a pro bono basis upon referral from the Clinical Legal Education Office of the University of Hong Kong. It was requested that the Department provide documents and information concerning the applicant’s case, including a list of all unused materials, police reports and minutes, and police file records relating to the investigation of Cheung.

30.  In a letter dated 22 February 2022, the Department confirmed that the police file records relating to the investigation of Cheung had been disclosed as part of the unused material and brought to the attention of the applicant and her legal representatives at trial. It was noted that Cheung had been arrested and interviewed under caution regarding the present case and this had been disclosed to the applicant and her legal representatives. He was charged but this was withdrawn on 6 October 2017. We were informed by Ms Audrey Parwani, for the respondent, that before sending out this letter, she spoke to Mr Cheung and explained in detail the nature of the reply due to be sent out. She told him of the rationale for the decision to drop the charge against Cheung, which was based on that the legal advice regarding the sufficiency of the available evidence. She also told him that Cheung was not an informer in the present case, which was an allegation made at trial and in the present application.

31.  Ms Parwani expressed concern that the applicant in the account given about this matter has painted a one-sided picture. We regret to say that we agree.

32.  It is well established that the prosecution’s duty is to disclose to the defence relevant or possibly relevant material that may undermine the prosecution case or advance the defence case, and extends to information which might lead by a train of enquiry to evidence which is admissible: HKSAR v Lee Ming Tee (No 2)[17]. There is no denying the importance of the duty on the prosecution to disclose unused material. It is an onerous duty that extends to all arms of law enforcement involved in the prosecution of a person for a criminal offence. It is a duty that should be treated very seriously at all times and be subject to constant review. The duty ultimately falls on prosecuting counsel and is to be exercised on a sensible appraisal of the material. When material has not been disclosed it will require making an assessment as to its significance to the case in question. That will involve making an evaluation as to its relevance to any issue in the case and the use to which it could have been put by the defence in either undermining the prosecution case or advancing its case. The nature of the material and whether it was already known is also an important consideration.

33.  It would appear in this case that a quantity of material was disclosed to the defence but the memo for some reason was omitted.

34.  Ms Parwani submits that the memo, which she notes was a request, did not prejudice the defence case, nor would it have advanced the defence case or lead by a train of enquiry to evidence that was admissible. The alleged set up by Cheung and the police had been canvassed extensively at trial. It was not in dispute that the applicant had booked online the hotel room for five days. In the afternoon of 16 May 2017, she checked into the room and paid the hotel fees in cash.[18] The applicant also testified that she and Cheung stayed in the room from the night before her arrest. There was no issue that Cheung had been arrested after he had left the room. As it transpired, no CCTV footage was available because of a malfunction with the hotel recording system, which the hotel manager confirmed. The police officer explained the request for CCTV footage for a specific period.

35.  Experienced counsel represented the applicant at trial, and no request was made or issue raised about the availability of CCTV footage at the hotel. Nor would it appear did the defence consider it necessary to make separate enquiry about the CCTV footage. There was no issue that the applicant and Cheung had stayed at the hotel room and had been arrested in its vicinity. It has not been shown at all how the CCTV footage of the lobby areas of the hotel would have provided or lead to information or evidence that would have assisted the defence case that the applicant was forced and coached by the police to make the admissions in her video recorded interview. Counsel did request CCTV footage at the police station on this issue but none was available. Enquiries with counsel reveal that he was unsure whether the prosecution had told the defence that no CCTV footage was available from the hotel. It was for that reason it was not included in the unused material.

36.  The renewed application was based on very serious allegations of impropriety by the police. In his initial letter to the Legal Aid Department, Mr Cheung referred to the unusual and suspicious circumstances surrounding the role of Cheung and the applicant’s arrest. It was suggested that material had not been disclosed which would have revealed Cheung’s involvement in framing the applicant. Mr Cheung was informed that Cheung had been arrested and charged with the present offence. He was denied bail and released from custody on 6 October 2017, some 5 months later, when legal advice was provided that there was insufficient evidence to prosecute him. With this explanation, we are surprised that Mr Cheung has persisted with these allegations and this ground of appeal.

Conclusion

37.  This renewed application is predicated on a renewal of the applicant’s defence at trial that Cheung and the police framed her. Enquiries confirmed that the allegation that Cheung had received favourable treatment by the police was completely unsubstantiated. He was arrested in relation to this offence and eventually released from custody on legal advice from the Department of Justice.

38.  In an effort to support the renewed application serious allegations were made about the investigation of this case without justification. It was alleged that the police confined the inspection of the hotel CCTV to a short time interval in order to avoid obtaining evidence that may lend support to the defence case of a frame-up, and that would incriminate Cheung or show the falsity of the applicant’s admissions in the video recorded interview. It is difficult to understand how such a submission could be made in the circumstances of this case.[19]

39.  It follows from what we have said the renewed application is refused, and the appeal against conviction is dismissed.

Loss of time

40.  At the conclusion of the hearing, we invited Mr Cheung to address us on the question of loss of time. For the reasons we have given, we found no merit in the two grounds of appeal advanced before us. The first ground was partly raised before the Single Judge who had refused leave to the applicant. It was plainly untenable in light of the circumstances of the case and the relevant material. The second ground was embarked upon as part of a fishing expedition that something untoward had taken place by the authorities in their dealings with Cheung and this would have supported the defence run at trial that the applicant had been framed by Cheung in cooperation with the police. As we have noted, this allegation had been dispelled by the fact that Cheung had been arrested and charged and was only discharged from custody when legal advice was provided that there was insufficient evidence to prosecute him. The legal representatives of the applicant were armed with more than enough information and material to appreciate the fact that this ground was unsustainable. The attempt to marry the request with the general complaint that the applicant had been set up by Cheung was drawing a long bow and this ground should not have been proceeded with given the information and material that had been supplied to the applicant.

41.  This was an unmeritorious application which has wasted the valuable resources of the judiciary and the relevant authorities. This renewed application was maintained on a very flimsy issue concerning the memo and would not have had any meaningful impact on the result of the trial. We therefore order that 2 months of the time that the applicant has been in custody since the filing of her notice of application for leave to appeal against conviction is not to be reckoned as part of the sentence to which she is subject.

42.  Finally, it cannot be overstated that an appellate court’s function is to correct appealable errors at trial and ensure no miscarriage of justice has taken place. It is not the court’s function to retry a case.