HKSAR v. POSSO VERGARA CRISTHIAN ENRIQUE

CACC 373/2018

[2022] HKCA 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 373 OF 2018

(ON APPEAL FROM HCCC NO 88 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):

Introduction

1.  The appellant (“D1” at trial)  and two other defendants (“D2” and “D3” at trial)  were jointly charged with one count of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  It was alleged that, on 2 June 2017, they trafficked in 1,982 grammes of a solid, containing 1,333 grammes of cocaine, at the junction of Ferry Street and Man Wui Street in Kowloon.

2.  At the commencement of the trial, D2 pleaded guilty to the count, while the appellant and D3 pleaded not guilty and proceeded to trial before Toh J (“the judge”)  and a jury.  On 12 December 2018, the jury by unanimous verdicts convicted the appellant and acquitted D3 of the count.  The judge sentenced the appellant to 24 years and 3 months’ imprisonment.

3.  On 19 December 2018, the appellant filed a notice of application for leave to appeal against conviction and sentence.  He subsequently abandoned his application for leave to appeal against sentence by formal notice filed on 18 May 2020.  In his brief homemade grounds of appeal against conviction, the appellant complained about the judge’s directions to the jury, including her failure to direct on lies and the right of silence.

4.  On 8 October 2019, Mr Cheung Wai-sun, counsel then representing the appellant, filed Perfected Grounds of Appeal against conviction.  Briefly stated the grounds of appeal addressed the following matters.  Ground 1: the judge failed to give an accomplice warning.  Ground 2: the judge failed to direct the jury that the appellant had a right of silence when he did not respond after being arrested and cautioned.  Ground 3: the judge failed to invite the jury to consider the reliability and credibility of all witnesses impartially and fairly.  Ground 4: the trial counsel for the appellant wrongly advised him that he would be cross-examined on his previous convictions if he elected to give evidence.  Ground 5: the election by D3 not to give evidence deprived the appellant of D3’s evidence which might have shown him to be innocent, thus denying the appellant a fair trial.  This ground was accompanied by an application to adduce fresh evidence on appeal in the form of a statement from D3 (who after his acquittal immediately returned to Colombia). Ground 6: the judge erred in telling the jury that Madam Jenny Tom Gee (“PW13”), a Spanish/Cantonese interpreter, did not say the appellant was lying on the floor, rather she said he slept on the floor.  Ground 7: the judge’s directions on the DNA evidence was too generalised and could have confused the jury into thinking that the DNA was found on the banknotes themselves rather than on the edges of some banknotes.  Ground 8: the judge failed to make a favourable point for the appellant that his DNA was not found on the plastic bag containing the dangerous drug, which was consistent with him never having held it.  Ground 9: the judge was wrong to say that Customs officer 7288, Lui Chun Man, (“PW4”), was cross-examined by defence counsel acting for D3 when in fact it was another counsel.  Ground 10: the judge was wrong to say that Customs officer 0770, Ku Siu Lun, (“PW6”)  said he was assisted by another Customs officer to help him count the money in Shop 2 at the Panda Hotel when that was not said by him. Ground 11: the conviction was unsafe or unsatisfactory.

5.  The leave application against conviction was heard on 16 June 2020 by a Single Judge, who refused leave to appeal against conviction on Grounds 1, 3, 5 to 11, while Ground 4 had been withdrawn and Ground 2 did not require leave from the Court, as it was a question of law.[1]

6.  On 22 July 2020, Mr Cheung filed the appellant’s submissions in relation to the appeal on Ground 2.  As for the other grounds for which leave had been refused, the appellant filed a notice of renewal application for leave on 19 June 2020.  In support of his renewal application for leave, the appellant filed skeleton submissions in relation to Grounds 1, 3, 5 to 11 on 29 July 2020; supplemental skeleton submissions in relation to Ground 11 on 13 November 2020; and second supplemental skeleton submissions on 7 January 2021.  The application and submissions were hand-written in English and signed by the appellant, consisting of very detailed argument and the citation of numerous authorities.

7.  The appeal and renewal application were fixed for hearing on 8 January 2021.  However, prior to the hearing Mr Cheung was replaced by Mr Phillip Ross, who filed a written reply submission in respect of Ground 2 on 4 January 2021.

8.  At the appeal hearing before another division of this Court, (Macrae VP, McWalters and Zervos JJA), Mr Ross appeared for the appellant but only in respect to Ground 2, while the appellant appeared in person in respect of the renewal application.  

9.  At the outset of the hearing, the appellant applied for the recusal of Macrae VP, because he had been the Single Judge who heard his leave application.  We refused the application as there was no factual foundation to assert that from the perspective of a fair-minded and informed observer there was a possibility of perceived or actual bias.  Macrae VP gave comprehensive and considered reasons in addressing the grounds and the arguments in support of them and there was nothing contained in his judgment to suggest he would not keep an open mind and properly adjudicate the grounds advanced on appeal.[2]

10.  The Court then proceeded to deal with the grounds and submissions filed in support of the appellant’s appeal.  In his reply submission to Ground 2, filed shortly before the hearing, Mr Ross raised a new ground of appeal concerning the absence of a flight direction, which had been previously alluded to by the Single Judge in his leave judgment.  As a result of this new ground of appeal and the unsatisfactory nature in which the renewed grounds were framed and argued, the Court ordered that the existing legal aid certificate be extended to Mr Ross to cover the appeal against conviction generally.  Mr Ross was requested to carefully consider the grounds of appeal, having been reminded that the appeal should only proceed on reasonably arguable grounds.  Accordingly, the Court ordered that the appeal be re-fixed, and directed that the appellant file and serve Amended Perfected Grounds of Appeal and that the parties thereafter file and serve Consolidated Written Submissions.  The appellant was asked if he understood what had to be done and he said he did.

11.  On 2 February 2021, the appellant filed Consolidated Perfected Grounds of Appeal Against Conviction and Consolidated Submission Against Conviction signed by Mr Ross.  The grounds of appeal were reduced from eleven to four.

12.  Ground 1 complained the judge failed to direct the jury that the appellant was entitled to remain silent prior to and upon arrest, and that no adverse inference could be drawn against him for remaining silent.  Ground 2 complained the judge failed to direct that, in considering whether the appellant was party to a joint enterprise with D2 to trafficking in dangerous drugs, the prosecution had to prove the appellant trafficked in dangerous drugs on an occasion without recourse to D2’s admission that he pleaded guilty to drug trafficking on the same occasion.  Ground 3 averred the judge erred in failing to direct the jury that they should exercise caution before acting on the evidence of D2 unless the evidence was supported, but they could do so if satisfied of the truth of D2’s evidence.  Ground 4 averred the judge erred in failing to direct the jury that it was for them to decide on the whole of the evidence what inference could be drawn from the appellant’s flight but only if they found no innocent reason for flight could they rely on it to support the prosecution case.

13.  In response to the reformulated grounds of appeal, the respondent on 25 February 2021 filed a Consolidated Submission Against Conviction.

14.  At the appeal hearing, Mr Wong Hay Yiu, replaced Mr Ross, to argue the Consolidated Perfected Grounds of Appeal.  Notwithstanding that this document was to contain all the grounds of appeal to be advanced on behalf of the appellant after discussion with counsel, the appellant indicated he still wanted to renew his other original grounds of appeal.  Mr Wong very properly informed the Court that he was only prepared to argue the Consolidated Perfected Grounds of Appeal, which he considered to be reasonably arguable. 

15.  Whilst an appellant can appear in person on appeal, where he or she is represented by counsel, an appellate court will not normally allow the appellant to argue his or her appeal by way of additional submission or by advocating additional grounds of appeal.  See Practice Direction 4.2, Criminal Appeals to the Court of Appeal.  As a general rule, a person represented by counsel in criminal proceedings is bound by the way counsel conducts the case on his or her behalf.  See Chong Ching Yuen v HKSAR (2004)  7 HKCFAR 126.  We were informed that the appellant had affirmed an affirmation, which he had filed with the Court but had been returned to him because it concerned the conduct of his then counsel, Mr Ross, which was a matter he should direct to the Legal Aid Department.  After taking instructions from the appellant, Mr Wong informed us that Mr Ross had agreed with the appellant that he had further reasonably arguable grounds of appeal but had since relocated to Australia.  As Mr Ross had legal aid extended to him to address all grounds of appeal, we therefore allowed the appellant in these unusual circumstances to separately address the Court in respect of his renewed grounds, namely D3 being allowed to give evidence in his appeal (the previous Ground 5); the judge misdirecting the jury on the DNA evidence (the previous Grounds 7 and 8); and the judge making factual mistakes in her summing-up (the previous Grounds 6, 9 and 10). 

The prosecution case

16.  At the trial of the appellant and D3, the prosecution called a total of thirteen prosecution witnesses, comprising nine Customs officers; a taxi driver, Mr Law Chi Ho (“PW7”); a DNA expert, Dr WAI Wing-kong (“PW10”); D2, who testified as PW12 (“D2”); and PW13.

17.  D2 was employed as a seaman on a container ship that had sailed from Colombia to Hong Kong.[3] When the ship was in Colombia,[4] he accepted an offer from a Colombian[5] to receive and deliver dangerous drugs in Hong Kong for a monetary reward of US$7,000 per kilogramme of drugs delivered.[6]  The ship arrived in Hong Kong on 1 June 2017 at 11pm.[7]  The following morning, an unknown person gave the dangerous drugs in question[8] and a SIM card[9] to D2 on board the ship.  D2 was also told there were 2 kilogrammes of drugs[10] and he was to wait for someone to contact him.[11]

18.  Later that morning[12] D2 received a telephone call from the appellant, whom D2 had not met before, via the SIM card given to him.[13] The appellant asked D2 to meet him at the Panda Hotel in Tsuen Wan where D2 was to stay while in Hong Kong.[14]  Subsequently, the appellant, D2 and D3 met in the lobby of the Panda Hotel.[15]  The meeting was captured on closed-circuit television.  The defendants were also under surveillance by Customs officers who kept them under observation from then on.  The three men then boarded a taxi[16] driven by PW7.  D3 sat in the front passenger seat, while the appellant and D2 sat in the back passenger seat, with the appellant sitting behind D3.  The appellant instructed PW7 where to go.  During the journey, the appellant gave D2 a total amount of HK$105,100,[17] consisting of two stacks of HK$500 notes (two hundred HK$500 notes in total)  each being bound by two rubber bands, five HK$1,000 notes and one HK$100 note (collectively referred to as “the banknotes”).  In return, D2 gave the appellant a black plastic bag[18] (“Exhibit P1”)  containing the dangerous drugs in question.[19]

19.  PW7 testified that the man in the left rear passenger seat told him where to go.  The man told him in English, “Jordan MTR”.  At one stage, he heard “the sound of plastic” going on behind him in the rear seat.[20] He was told by the person in the back seat where to stop, which was not near an MTR station.[21]  He was paid by the person in the back of the taxi.  He thought the men who rushed up toward the taxi were police because they had ID cards on them.[22] 

20.  The three men were intercepted by Customs officers when they were alighting from the taxi at the junction of Ferry Street and Man Wui Street at around 3:35pm.  When Customs officer 1032, Ip Siu Fung, (“PW3”), revealed his identity to the appellant, the appellant struggled free, threw Exhibit P1 and his black shoulder bag[23] (“Exhibit P50”)  onto the ground and fled.  The appellant was chased by Customs officers and subsequently subdued.  Upon being arrested and cautioned by PW3,[24] he remained silent.[25]  Meanwhile, D2 and D3 were also apprehended at the scene.

21.  Following his arrest, the appellant was placed in the custody of PW4, who was assigned to guard him.  The appellant was taken by government vehicle to Hoi Fan Street, Kowloon, where Customs officers conducted a body search on the appellant and checked the contents of Exhibit P1.  The appellant was again arrested and cautioned by PW3,[26] but again remained silent.[27]

22.  Later the same evening, the appellant was accompanied by PW4 to go to hospital to seek medical treatment for an injury he sustained when he was being subdued.[28] The medical report on the appellant[29] stated that he had abrasions on his forehead, left elbow, fingers of both hands and left knee.  No fracture was seen in his wrists or hands, nor in his left elbow or forearm.  A CT scan of the appellant’s brain also showed no intracranial haemorrhage or skull fracture.[30]  The clinical diagnosis was that he sustained abrasions.[31] 

23.  After the hospital visit that evening, Custom officers, amongst them PW3[32] and PW4,[33] conducted a house search of premises at The Merton in the presence of the appellant.[34]  Except for some foreign currencies,[35] no large amount of money,[36] nor anything incriminating[37] was found. 

24.  The appellant attended the hospital again on 4 June 2017 for treatment.[38] The medical report on the appellant for this visit stated that he had some abrasions with scabs on his forehead, left knee and fingers of both hands.[39] 

25.  D2 was subsequently brought back to the Panda Hotel where Customs officers conducted a search of his hotel room.  He was then taken to the offices of the Customs & Excise Department where the rucksack he had been carrying when arrested[40] was opened by PW6,[41] in the presence of D2, an interpreter assigned to D2, and Customs officer 1548, Cheung Shun On.[42]  The banknotes and a black plastic bag were found in D2’s rucksack.  According to PW6, Customs officer 1548 was responsible for helping him count the exhibits and open the bag when he put the items back into it.[43]

26.  Customs officer 0896, Chan Chun Ho, (“PW5”), was instructed to guard D3 following his arrest.  At around 7:35pm on 3 June 2017, PW5 took D3 to confront the appellant at Customs Headquarters in North Point.[44]  After the confrontation, PW5 took D3 to receive medical treatment in respect of an injury he sustained during his arrest.[45]

27.  On 3 June 2017, the appellant was attended by PW13, a Spanish/Cantonese interpreter, during his detention.[46]  PW13 testified she did not see any blood on the appellant’s face or on his forehead,[47] nor any superficial wounds on him.[48] She recalled the appellant told the Customs officer on duty that he was very tired, and he responded by telling the appellant he could bend forward on the desk while seated in a chair.  However, the appellant said he would rather sleep on the floor.[49]  At one point, the appellant said he felt cold, whereupon the Customs officer gave him a blanket.[50]

28.  It was not disputed at trial that Exhibit P1 contained the dangerous drugs in question, which had an estimated street value of more than HK$1.6 million.[51]

The evidence of the DNA expert

29.  The plastic bag containing the drugs, the appellant’s shoulder bag, the banknotes, the four rubber bands holding the banknotes and D2’s rucksack were later sent to a forensic scientist, PW10, for DNA extraction, profiling and comparison with the DNA samples of the appellant, D2 and D3.  For the purpose of the DNA analysis, PW10 divided the banknotes into 41 mini-stacks, each comprising 5 to 6 banknotes.  PW10 gave evidence as an expert, explaining that if a person’s DNA profile appeared in all of the 15 DNA profiling systems then that person could be “included as a possible source” of the DNA mixture, and if the person’s DNA profile appeared in most of the 15 DNA profiling systems, save one or two systems, then that person “could not be excluded as a possible source” of the DNA mixture.[52]  PW10 went on to explain that the reference to a “possible source” meant the chances of someone having the same DNA was one in one quintillion.[53]

30.  The following is a summary of PW10’s findings on the comparison between DNA samples extracted from the exhibits and buccal swaps taken from the appellant:

(1)  The traces of DNA found on Exhibit P1[54] allegedly carried by the appellant gave no result or the results were considered uninterpretable owing to the poor quality of the traces.[55]

(2)  The appellant could be “included as a possible source” of DNA mixture found on the entire surfaces of one of the four rubber bands binding the banknotes and the shoulder strap of the appellant’s shoulder bag, and the edges of the appellant’s shoulder bag.[56]

(3)  The appellant could “not be excluded as a possible source” of DNA mixture found on the edges of 1 mini-stack comprising five HK$500 notes out of the 41 mini-stacks of banknotes.[57] 

(4)  It was “inconclusive” as to whether the appellant was a possible source of DNA mixture found on the edges of 5 mini-stacks each comprising five HK$500 notes out of the 41 mini-stacks of banknotes.[58]  PW10 could not draw any conclusion from this result.[59]

(5)  The appellant was “excluded” as a possible source of 16 mini-stacks each comprising five HK$500 notes out of the 41 mini-stacks of banknotes.[60] DNA samples extracted from these mini-stacks were not from the appellant.[61]

31.  PW10 explained that if a person’s DNA is found on an object, that person should have touched, or been in the vicinity of, the object.[62] A transfer of DNA would also require direct contact from the person concerned by way of pressure and friction on that object.[63]  There would be greater chance of DNA being transferred when the surface of an object was porous or rough.  He considered a banknote to be a porous object.[64]

The defence case

32.  The appellant elected not to testify in court, nor call any witness on his behalf.  He did not dispute he met with D2 and D3 in the Panda Hotel in Tsuen Wan and boarded a taxi to the location where the three of them were intercepted.[65]

33.  Through questions put to the witnesses, the appellant’s case was that he did not know there were drugs present, nor did he give any money to D2.  He had met D2 because he was intending to show him around Hong Kong.[66] It was put to D2 that he had framed up the appellant in order to get a reduced sentence from the court.  In his closing speech, the appellant’s counsel alleged that the banknotes were actually found in The Merton and belonged to the appellant’s father.[67]  It was also alleged that the Customs officers had misconducted themselves such that there were doubts in the case against the appellant.[68]

The summing-up

34.  After a brief introduction of the case,[69] the judge identified the issues before the jury as follows:[70]

“ …But what is disputed is that it is said that it was not the 1^st defendant who threw the plastic bag with the drugs away, but it was the 2^nd defendant who did that; and that it was not the 1^st defendant because the 1^st defendant had nothing to do with the drugs. The 3^rd defendant also said that he knew nothing about what was going on as he did not speak English well, and he did not know the 2^nd defendant and was only there present because the 1^st defendant was taking him shopping.

So these are the main issues that you will have to decide from the evidence.

Now, the prosecution says that from the evidence before you, you would have no trouble in finding that the 1^st defendant and the 3^rd defendant were trafficking in the dangerous drugs, together with the 2^nd defendant as charged. On the other hand, although we have not heard from the 1^st defendant, he, through his counsel, Mr Donald, through questions to the witnesses, said he never knew there were drugs and that therefore he never took possession of any drugs and he never gave money to the 2^nd defendant in the form of the $105,000. In short, the 1^st defendant is saying he has been framed by the 2^nd defendant in order to get a reduced sentence from the court.

  Now, if you think what the 1^st defendant alleges is true or may be true, then he must be acquitted.  The 3^rd defendant said he knew nothing about what was going on as he was only there with the 1^st defendant to do shopping, and he did not know the 2^nd defendant.  Now, this was in the video-recorded interview of the 3^rd defendant.  Basically, his defence is, as Mr Raffell said, he was in the wrong place at the wrong time.  If you think what he said is true, or may be true, then he must also be acquitted.”

35.  In explaining the elements of the offence of trafficking in a dangerous drug, the judge addressed the issue of possession and reminded the jury:

“ In this case, the prosecution is saying that the 1^st defendant was in possession as he had been seen by a customs officer, after he got out of the taxi, to have thrown it away in the course of fleeing from the customs officer. And also found near to that plastic bag was the cross body bag of the 1^st defendant.

So the prosecution is saying that at the relevant time, the 1^st defendant was in possession of the drug. Of course, the case for the 1^st defendant is that he was never in possession of the drug and the cross body bag had been snatched from him after he had been arrested and taken away. So that is the evidence.”[71]

36.  The judge went on to give an overview of the prosecution evidence which consisted of surveillance of the three defendants and the arrest action by Customs officers as well as the testimony of D2.  According to D2, the drugs had been passed to D1 in the back of the taxi and in return D1 gave him a large sum of cash.[72]

37.  A key witness at trial, who also appears predominantly in the grounds of appeal, was the arresting officer, PW3.  The judge summarised his evidence as follows:[73]

“ Then we have the third Customs officer 1032. He said he was instructed to intercept three men from a taxi at the junction of Man Wui Street and Ferry Street. He was the person who intercepted a male in a grey top and blue jeans, holding a black plastic bag in his left hand, and grey-checked bag. He said he produced his warrant card to reveal his identity and requested to search. He said he was a Customs officer. He said the person struggled and broke free, and threw away the two bags he was holding in his left hand and he fled.

He said he pointed at the two bags on the ground and told Customs Officer 12172 that this person threw away two bags. Subsequently, he identified the grey-checked bag as being held by the 1^st defendant in his left hand; that is P50. And he identified the black plastic bag, P1, which he said he saw in the 1^st defendant’s left hand before it was thrown away.

He said he chased after this person who was fleeing and then after subduing the 1^st defendant, he arrested and cautioned him. He subsequently gave an account about what happened.

Subsequent to the arrest and caution, they went on a car. They went to a place called Hoi Fan Road and he searched the 1^st defendant. Nothing prohibited was found on the 1^st defendant’s person, and just found the 1^st defendant’s Samsung phone.

Subsequently, at 1652 hours, Customs officer 12172 came to the car and displayed the bag, which was found on the ground, with the suspected dangerous drug. He said he then arrested and cautioned the 1^st defendant and the defendant did not respond. He asked the 1^st defendant whose bag it was and the 1^st defendant did not respond.

Subsequently, this officer was cross-examined by Mr Donald about his warrant card and said, ‘Well, we can’t see your warrant card in Exhibit D2’. And the officer said that after he produced his warrant card to the defendant, the defendant ran. So he put it back into his trouser pocket and continued to chase after the 1^st defendant.

It was put to the officer by Mr Donald that the 1^st defendant, right from the start said ‘Nothing to do with the dangerous drugs’ and he disagreed.

It was put to him that the 1^st defendant was injured by the customs officers and that was denied. Because he said he was injured when struggling on the ground, and he denied breaking the finger of the 1^st defendant by excessive force. You will recall as far as the medical report is concerned, his finger was not broken. There were abrasions and so you may think, members of the jury, that is consistent with his skin having come into contact with something rough, like the ground. So that is a matter for you.

Now, it was also put by Mr Donald that the 1^st defendant did not have possession of the plastic bag, P1, and that was denied.

Now, subsequently, he said they went to the Merton and it was put to the customs officer that a large amount of money was found in the drawers and this officer denied.

Now, it was also put by Mr Donald to this officer that on 3 June, when the 1^st defendant was in Room 9, he was lying on the floor on a blanket because of his injuries, they were so bad he could not sit in a chair, and this was denied. I would suggest you recall the evidence of the interpreter, Mrs Gee, who gave evidence last. You will recall she said at the end that she was a freelance interpreter, Spanish and Punti, and her evidence on cross-examination was that she did not see any superficial wounds on the 1^st defendant. It was put to her that he expressed pain from his injuries and Madam Gee said, ‘He said he had headache, but not say he had injury.’

Then it was also put or suggested to her that the 1^st defendant was sleeping on the floor with a blanket. She said the 1^st defendant said he was sleepy and the Customs told him that he could bend over the desk and rest. And when the 1^st defendant said he was cold, the Customs gave him a blanket. So that was her evidence.

So this is what I mean, members of the jury, when you are assessing the evidence you have to look at all the evidence. Do not just focus on one, because you will be able therefore at the end of the day after considering all the evidence to be able and also considering all counsel’s speeches to be able to come what you think are the relevant facts of this case.

  The officer was asked if the 1^st defendant was asked if he would give a video-recorded interview and the answer was that he would only do so if he has his specified lawyer.  And the interpreter, according to the customs officer, is Madam Gee.  And it was put to the Customs officer by Mr Donald that the 1^st defendant was willing to give a video-recorded interview but since he was bleeding on the face, the customs officer had refused to give him a video-recorded interview.  That was denied by the customs officer.”

38.  The judge gave a fair and comprehensive summary of PW3’s evidence, which incorporated the matters raised in cross-examination and his response to them.

The grounds of appeal

39.  We will address each ground of appeal in turn, setting out the arguments for and against, and our decision in respect of that ground.

Ground 1: Right of silence

40.  Mr Wong, on behalf of the appellant, submits that although the judge gave three directions that the appellant’s silence in-court was his right and could not be held against him, she did not direct them as to his right of silence out-of-court.  He argues the effect of this is twofold.  First, the jury may have considered that a pre-trial silence direction was purposely left out, and that the pre-trial silence was prejudicial to the appellant because it was his first reaction upon arrest, and in the absence of legal advice.  Secondly, the jury may have reasoned impermissibly that since the appellant gave no interview with the Customs officers, he did not cooperate because he was not an innocent person.

41.  By this ground, it is essentially complained that the judge should have directed the jury in accordance with Specimen Direction 45 issued by the Hong Kong Judicial Institute, 2013.

42.  Mr Derek Lau, on behalf of the respondent, accepts that the judge did not give the full direction in Specimen Direction 45, although the judge did emphasise with the jury the appellant’s right not to give evidence, nor prove his innocence.  He submits this was not a material irregularity when considered in its proper context.  He points out that PW3 in his evidence, said when he arrested the appellant that he administered a caution which he repeated before the jury, informing the appellant that he was not obliged to say anything unless he wished to do so, and that what he said may be put into writing and given in evidence.[74] He submits the jury would have been aware of the appellant’s right of silence as set out in the terms of Specimen Direction 45.  He further submits the judge conveyed to the jury repeatedly the terms of Specimen Direction 44, reminding them that they should not assume a defendant is guilty because he had not given evidence and that this proved nothing one way or another, and it did nothing to establish his guilt. 

43.  In deciding this ground, it is first necessary to examine the two specimen directions in question.  Specimen Direction 44 is the standard direction in respect of a defendant who has not given evidence. It reads:

“The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution. [However, you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.]”

44.  Specimen Direction 45 is the standard direction in respect of the defendant’s right of silence.  It reads:

“Any person suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. You must not hold his [silence] [refusal to answer questions] against him. The exercise of the right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.”

45.  The underlying principle of Specimen Direction 45 was stated by the Court of Final Appeal in Lee Fuk Ming v HKSAR,[75] that it would be unfair for a person to have the right to remain silent, having been reminded of this right through a caution, for his silence to be put against him at trial.[76]

46.  The question comes down to whether it was necessary to give a direction to the jury in terms of Specimen Direction 45 in the circumstances of this case. 

47.  As acknowledged by Mr Wong, the judge on various occasions in her summing-up directed the jury in terms of Specimen Direction 44.  She first said:

“Now, the prosecution must prove that each defendant is guilty. Each of the defendants does not have to prove his innocence. A defendant has no obligation to give evidence. It is his right to sit back and say to the prosecution, ‘You brought the charge against me, you prove it.’”[77]

48.  When addressing the fact that the appellant and the other defendant had not given evidence, she informed the jury:

“Now, the 1^st defendant and the 3^rd defendant as I have said have elected not to give evidence. You should not assume that each is guilty because each has not given evidence. The fact that each has not given evidence proves nothing one way or another, and it does nothing to establish each of his guilt.”[78]

49.  Finally, she repeated that the appellant and the other defendant had a right of silence, and it was for the prosecution to prove its case against them:

“Mr Raffell said the 3^rd defendant, as was his right, elected not to give evidence nor call witnesses. As I have mentioned, neither defendant has an obligation to give evidence or call any evidence and that should not mean anything. It just means that they have a right to sit back and say, ‘You brought the charge against me and you prove it.’

So the fact neither defendant chose to give evidence does not prove anything. You still have to look at the evidence called by the prosecution to see if the prosecution has proved its case to your satisfaction so that you are sure.”[79]

50.  The judge near the end of her summing-up, also stressed to the jury the importance of the burden on the prosecution that it had to prove its case on the evidence:

“It is a fundamental part of your function to resolve any conflict in the material evidence, keeping in mind that in a criminal case the conflict is not between the stories told by the prosecution witnesses and the defence, but between the truth and possible falsehood of a story told by the witnesses for the prosecution because the important thing is has the prosecution proved its case to your satisfaction so that you are sure.”[80]

51.  As already noted, PW3’s evidence was that when he arrested and cautioned the appellant, he did not respond.  However, in cross-examination by counsel for the appellant it was put to him that the appellant said right from the start that he had nothing to do with the dangerous drugs, to which he disagreed.[81] He testified that when the three men got out of the taxi, he intercepted one of the men, whom he identified as the appellant.  He said he produced his warrant card and identified himself as a Customs Officer. He requested to conduct a search of the appellant, who struggled and broke free from him.  The appellant threw away two bags he was holding and fled.  He pursued the appellant and subdued him, whereupon he arrested and cautioned him.  The appellant did not respond.[82]  In cross-examination, it was put to PW3 that he rushed up to the appellant and got into a struggle with him.  It was alleged he then snatched the appellant’s handbag and ripped his T-shirt.  He and his colleagues grabbed the appellant and forced him to the ground and caused serious injuries to him.  He denied this was the case.  It was further put to him that the appellant said right from the start the drugs had nothing to do with him and he denied having done anything wrong.  The appellant made it clear as far as he was concerned he was innocent.  PW3 disagreed and said that the appellant never responded.[83] 

52.  The judge’s directions were comprehensive and clear, and would have left the jury in no doubt that the appellant had a general right of silence in that he did not have to say anything in his defence, nor did he have to prove his innocence.  The issue is whether, in the circumstances of this case, there was a risk that the jury would have adversely used against the appellant his lack of response upon being cautioned at the time of his arrest.

53.  We are of the opinion the jury would not have done so.  At no stage did the prosecution either in its examination of witnesses or closing address to the jury put or submit that the appellant’s lack of response upon being cautioned gave rise to an adverse inference against him.  It was never part of the prosecution case.  Furthermore, as already noted, during PW3’s evidence, he was asked to state the exact terms of the caution he administered to the appellant, so the jury were fully aware that the appellant had a right of silence and was not obliged to say anything at the time of his arrest.

54.  This ground of appeal fails.

Ground 2: D2’s guilty plea

55.  On 27 November 2018, a day before the trial commenced, D2 pleaded guilty to the count on the indictment of jointly trafficking in the cocaine with the appellant and D3.[84]  Thereafter, he gave evidence for the prosecution in the trial against the appellant and D3. 

56.  Mr Wong notes that the judge in her summing-up referred to the joint enterprise nature of the offence, and explained by way of example how by acting together, and by sharing a joint intention, the defendants could be guilty.  However, we note that the judge also directed the jury that D2’s guilty plea had no bearing on whether the appellant or D3 were guilty. 

57.  It is complained that the jury should have been directed that the prosecution had to prove its case against the appellant as if D2 had not pleaded guilty.  In the absence of such a direction, the jury may have engaged in impermissible reasoning by attributing guilt to the appellant because a co-accused admitted guilt himself.

58.  Mr Lau submits that D2’s testimony of admitting his guilt to the count and taking part in the trafficking of the drugs was admissible evidence against the appellant. 

59.  In our view, there is no substance in this ground of appeal.  The fact of D2’s guilty plea to the joint count was subsumed by the evidence he gave for the prosecution as an accomplice witness against the appellant and D3.  It is difficult to comprehend what, if any, conceivable prejudice resulted from D2’s evidence that he had pleaded guilty to the offence when he was giving details of his involvement together with other persons in this crime, particularly the appellant and D3.  Furthermore, the jury by acquitting D3 of the joint count is proof enough they did not use D2’s guilty plea in an impermissible manner against the appellant. 

60.  The unsustainability of this argument is further augmented by the fact that the defence challenged the credibility of D2 on the basis that he had pleaded guilty to the joint count and was seeking a substantial reduction to his sentence by giving evidence for the prosecution.

Ground 3: Accomplice warning

61.  Mr Wong notes that D2 in his testimony said that in the taxi on the way to the scene where the appellant was arrested, he sold the drugs in the plastic bag to the appellant who paid him $105,000 for them. That is not entirely correct because D2 testified he delivered the drugs for a fee; he did not sell the drugs to the appellant.  Mr Wong also notes that at the time D2 gave evidence, he was awaiting sentence which he had been advised would be in the vicinity of 23 to 26 years’ imprisonment.  D2 had been challenged about his evidence against the appellant and that he was testifying against him in order to obtain a substantial discount in his sentence.

62.  It is submitted that D2’s evidence was the only evidence in the case showing that the appellant had participated in the sale and purchase of the drugs.  Further, D2’s evidence also gave added support to PW3’s evidence of the appellant throwing away the bag containing the drugs. 

63.  It is argued that D2 was an important witness, and yet he concealed his involvement in trafficking the drugs when arrested by the Customs officers, and had a motive to falsely implicate the appellant in order to obtain a reduced sentence for himself.  It is submitted that the jury should have been given a warning to exercise care in accepting D2’s evidence unless it was supported by other evidence. 

64.  Mr Wong emphasised that there was no indication whether the judge had ever considered giving an accomplice direction.  He submits that, as the expected sentence of D2 had become an issue in the trial, the judge should have, but did not, warn the jury that a possible sentence reduction may have been a motive for giving false evidence.

65.  Mr Lau argues the jury was fully aware that D2 by being a prosecution witness, and on the subsequent conviction of the appellant, might get a greater sentencing discount. 

66.  The judge, when addressing D2’s evidence about what he said he did with the drugs, emphasised with the jury, “Now, this important part is whether, as Mr Donald says, he is unworthy of belief, he is lying, or what Mr Ng says, he is a witness of truth.  So it is a matter for you, members of the jury, to decide those issues.”[85] 

67.  The judge had also reminded the jury that it was the appellant’s case that he was framed by D2 in order for D2 to get a reduced sentence.[86] Furthermore, the judge had already brought to the jury’s attention the possible personal interest D2 might benefit from in testifying against the appellant.

68.  Mr Lau also notes that trial counsel for the appellant heavily criticised and attacked D2 as a witness in his closing address to the jury.  Trial counsel repeatedly mentioned that D2 would receive a very substantial discount to his sentence in giving evidence for the prosecution and he therefore had a great incentive to tell lies.  He also criticised the account that D2 had given in his evidence, stating it was implausible and full of inconsistencies.  He stressed to the jury that they should look at D2’s evidence with “a great deal of scepticism”, and that he was “untrustworthy” and “not telling the truth” because he had a great incentive to lie so that he could get a discount of 50% from his sentence.[87]

69.  It is a matter for the judge’s discretion what, if any, warning he or she considers appropriate in respect of a witness that falls into the category of an accomplice witness.[88]  In circumstances where a co-defendant has pleaded guilty and assists the prosecution by giving evidence implicating a defendant on trial, it may be necessary to consider whether a discretionary warning should be given as suggested in R v Makanjuola.[89]  This will inevitably depend upon the particular circumstances of the case.[90]  When considering this issue on appeal a relevant factor will be how the issue had been addressed by the parties and directed by the judge.  It is clear from the judge’s summing-up that she appropriately conveyed to the jury the criticism of D2 as a prosecution witness and that his credibility was very much in issue for them to consider. 

70.  We are therefore not persuaded by this ground of appeal.

Ground 4: Flight direction

71.  As part of the prosecution case, evidence was led that the appellant struggled with the Customs officers, broke free and threw away two bags he was holding and fled.  It was the defence case that the appellant had not fled, he was not in possession of the black plastic bag containing the drugs, and he had not been formally arrested. 

72.  It is complained that the judge gave no direction to the jury as to whether the appellant’s act of fleeing was relevant to his guilt.  It is argued that on the prosecution evidence, the flight occurred to avoid arrest, and simultaneously with the throwing away of the bag of cocaine. If the jury had accepted this evidence, they may have reasoned impermissibly that the evidence was automatically an indicator of guilt.  It is submitted that the jury should have been told the appellant may have fled for innocent reasons.  It was contextually relevant that the Customs officers were in plain clothes and were not displaying their warrant cards at the time of the arrest. In the absence of a direction, the jury may have impermissibly proceeded from accepting the evidence of fleeing and then used this evidence to add weight to the prosecution case.

73.  Mr Lau submitted that the essence of Specimen Direction 43 as to flight was addressed by trial counsel for D3 in his closing address.  He had made the point to the jury that on seeing a group of men running towards them, using a foreign language, the defendants’ initial reaction might be “to run away or at least try and get away”.[91]  He further submitted that the appellant’s reaction had none of the hallmarks of flight and at most appeared to be no more than an immediate, spontaneous reaction of very limited duration, which did not amount to flight.  Therefore, it was not necessary for the judge to give a direction on flight. 

74.  The prosecution evidence was that three men got out of a taxi and PW3 intercepted one of the men, who was the appellant.  PW3 produced his warrant card to reveal his identity and requested that he conduct a search.  He identified himself as “Customs”.  It was then that the appellant struggled and broke free from PW3, threw away two bags he was carrying and fled.  On the prosecution evidence, there was nothing to suggest any “innocent” reason for the appellant trying to run away.[92] The appellant did not give evidence but the account he put to PW3 in cross-examination was that PW3 rushed up to the appellant and got into a struggle with him.  He snatched the appellant’s bag and damaged the T-shirt he was wearing.  The appellant did not throw away his handbag and the plastic bag but rather PW3 and his colleagues grabbed the appellant and forced him to the ground, causing serious injuries to him.[93] 

75.  On the appellant’s case, PW3’s account was fabricated and he never attempted to flee.[94]  PW3 denied this to be the case and there was no evidence from the appellant as to any “innocent” reason for trying to run away.

76.  The standard direction on a defendant’s flight is contained in Specimen Direction 43, which reads:

“It is alleged (admitted)  that the defendant deliberately (ran away)  (disappeared)  after (the crime)  (he had been bailed). You are entitled to consider whether this supports the case brought against him by the prosecution. You will need to consider:

(1)  whether it has been established that the defendant did (run away)  (disappear)  after (the offence was committed)  (he was bailed).

If you are sure he did, then next consider:

(2)  Why did he (run away)? The mere fact that a defendant acts in this way is not in itself evidence of guilt. There are many innocent reasons why a person may do so. [Provide examples, if appropriate] (The defendant has said his reasons for ……)

If you think his explanation is or may be true, then you should take no notice of the fact that he chose to (run away).  It is only if you are sure that he did not (run away)  for an ‘innocent’ reason that his actions (in running away)  can be regarded as evidence which supports the prosecution’s case.”

77.  In HKSAR v Mo Shiu Shing,[95]the Court of Appeal stated that “… we strongly recommend, that, where it is necessary and appropriate to direct upon ‘flight’ because the prosecution has attached proper significance to it, that, the jury is told this may be supportive of the prosecution case if it has been proved that no innocent reason existed to run away.  In some respects, stated in this way, the direction is doing no more than stating the obvious.”[96]

78.  A similar argument to the one before us was advanced in HKSAR v Mutengu Johnson Mikaili,[97] except in that case the applicant gave evidence.  The Court observed:

“31. In the present case, unlike the position in Mo Shiu Shing,the applicant’s evidence was that he had not fled or attempted to flee; had not opposed his arrest in any way and that the police evidence to the contrary was wholly fabricated. The police evidence was that, after the applicant had been approached by them and informed that they were police and that they wished to search him, the applicant had simply commenced to run away. On their evidence there was nothing to suggest any ‘innocent’ reason for him having done so. On the applicant’s evidence the police had wholly fabricated their evidence in this regard and he had never attempted to flee or oppose his arrest. In his evidence he therefore put forward neither explicitly nor by implication any “innocent” reason for his flight.”

79.  In that case, the applicant’s flight was an important aspect of the prosecution’s case against him, and the Court held:

“35. But given the circumstances of this case, while we accept that the direction to the jury on the evidence of the applicant’s flight fell short of what it should have been, there can be no doubt that the jury’s verdict would inevitably have been the same even had a fuller direction been given. That is because there was no suggestion of any ‘innocent’ reason for the applicant having run from the police and because, given the nexus between the finding of the drugs upon the applicant’s person and his flight, there was no possibility of the jury convicting on the evidence of flight alone. That evidence could only have, in the circumstances of the case, been regarded by them as ancillary to and merely supportive of the rest of the evidence in the prosecution case.”

80.  Although the Court concluded there was an irregularity in the judge’s direction on this issue it was of the view the proviso should be applied.[98]

81.  In our view it is of particular significance that no issue was taken by the prosecution in its case against the appellant that he tried to flee when he was arrested.  The prosecution case was based mainly on the accomplice evidence of D2, the surveillance evidence and CCTV footage, and the finding of the appellant’s DNA on the surface of one of the four rubber bands binding the banknotes and the edges of some other banknotes.  The prosecution alleged that the appellant was in possession of the bag containing the drugs, which he threw away when he was intercepted, while the appellant claimed he was never in possession of the bag containing the drugs.[99]  Nowhere does the judge make reference to the appellant’s attempt to flee in her summing-up as a basis on which the prosecution were seeking to support an inference of guilt.  At most, it was the throwing away of the bag, not the attempt to flee that the prosecution sought to rely on in its case against the appellant. 

82.  This ground of appeal fails.

Renewed Ground 5: D3 giving evidence on appeal

83.  By a notice of motion dated 7 December 2020 and an affirmation in support dated 14 May 2020, the appellant applied for leave to adduce (1)  an undated note purportedly written by D3 in Spanish; and (2) a letter dated 24 January 2020 purportedly from the Consulate General of Colombia in Hong Kong.

84.  In his affirmation, the appellant deposed that while the appellant and D3 were detained at the cells of the High Court on or about 7 December 2018, D3 expressed his willingness to testify for the appellant that he was not carrying anything when the appellant was alighting from the taxi.  However, D3 subsequently elected not to give evidence in the trial upon the advice of his trial counsel.  The appellant last spoke to D3 on 12 December 2018 when the appellant was convicted and D3 was acquitted by the jury.  On 20 December 2018, while in prison the appellant received a note purportedly written by D3.  The appellant further deposed that D3 always asked for updates in respect of the appellant’s appeal after D3 had returned to Colombia. 

85.  On 6 February 2020, the appellant received a letter from the Consulate General of Colombia, enclosing an envelope containing the note purportedly written by D3.  In the note, the writer expressed his dissatisfaction towards the fact that he was not allowed to see the recipient (allegedly the appellant)  in Stanley Prison.

86.  According to the covering letter of the Consulate General of Colombia, the enclosed envelope containing the note was given to the Consulate by D3’s relative.  In the note, the writer, allegedly D3, stated he wanted to make two points in addition to those matters mentioned in his video record of interview.[100] First, the appellant was not carrying anything in his hand when he got out of the taxi.  Secondly, the appellant had a wound on his forehead when D3 saw him while both of them were detained at Customs Headquarters.  Further, the writer stated he was willing to give evidence to the Court, but through video link because he had no plan to return to Hong Kong.

87.  The two matters that D3 claims took place are contradicted by other evidence and to some extent by his defence at trial and his video record of interview.

88.  We have no hesitation in rejecting this application to adduce the evidence of D3 on appeal.  In our view, it has all the hallmarks of being contrived by the appellant with the assistance of D3, now that he is outside the jurisdiction.

89.  D3’s case was succinctly stated by the judge in her summing-up to the jury as follows:

“The 3^rd defendant’s case is that he did not know what was going on. He was only there because he knows the 1^st defendant and the 1^st defendant promised to meet him there to show him where to go shopping. So that is the case of the 3^rd defendant. So he did not give evidence, but this was said by him in his video-recorded interview as to why he was present at the scene.”[101]

90.  D3 in his video record of interview said he sat in the front passenger seat of the taxi and did not turn around to see what was happening between D1 and D2.  When he got out of the taxi, he was terrified because he thought the men were rushing up to him.[102]

91.  It is argued that D3’s election not to give evidence at his joint trial deprived the appellant of this evidence which might have shown him to be innocent, and as a consequence he did not receive a fair trial. 

92.  By virtue of section 83V(1)  of the Criminal Procedure Ordinance, Cap 221, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, receive evidence in the following circumstances: (a)  order the production of documents, exhibits and other things, the production of which appears to be necessary for the determination of the case; (b)  order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination; and (c)  receive the evidence if tendered of any witness (by section 83V(3)  this includes any witness who would have been competent but not compellable at trial, including the appellant).  Section 83V(2)  further provides that where evidence is tendered to the Court, it shall exercise its powers of receiving evidence if: (a)  it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (b)  it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”  If the Court thinks that the evidence would not afford any ground for allowing the appeal, then it can refuse to admit the evidence. 

93.  The English Court of Appeal in R v Lattimore,[103] discussed the interrelationship between subsection (1)  and subsection (2)  of the English equivalent provision.  Scarman LJ, giving the judgment of the Court, explained that subsection (2)  imposed a duty upon the Court to receive further evidence, if the conditions of this subsection were met.  But the subsection does not restrict the power to receive further evidence under subsection (1), if the Court thinks it is necessary or expedient in the interests of justice. However, he pointed out that in exercising its discretion to receive further evidence under subsection (1), the Court will have regard to matters such as the availability of the evidence at trial and its likely credibility.  He said:

“… it is common sense that the Court will not receive evidence under subsection (1)  if satisfied that ‘it would not afford any ground for allowing the appeal’: for its reception would not be ‘necessary’ in the interests of justice. It is also inconceivable that the court would receive inadmissible evidence: for the Court must act according to law. But these curbs upon the discretion arise not from the fact that they happen to be mentioned in subsection (2), but from the terms of subsection (1)  and the general law, including the law of evidence.”

94.  Clearly, D3 could not be ordered to be examined before this Court under section 83V(1)(b)  because he was not a compellable witness “in the proceedings from which the appeal lies”.  But, in any event, we do not accept that the unsworn note is likely to be credible.

95.  In the circumstances, we do not see how the admission of this unsworn note could possibly afford any ground for allowing the appeal. Nor are we of the view that its production was necessary or expedient in the interests of justice.

Renewed Grounds 7 and 8: the DNA evidence

96.  The appellant complains that the judge in her summing-up told the jury that his DNA had been found on the banknotes which was incorrect and would have confused the jury.  The judge reminded the jury of PW10’s evidence that the appellant’s DNA was found on a rubber band and the shoulder strap of the bag he was carrying and also on the banknotes.[104]  This was correct and consistent with the evidence given by PW10.  This had been also accepted as part of the defence case, which was that the money was seized from the appellant’s home and the money belonged to his father whose DNA was on the banknotes.  

97.  In his closing address to the jury, the appellant’s counsel stated that the appellant lived in the residence at The Merton with his father and the money was kept there together with foreign currency which belonged to his father.[105] He said:

“… D1 is saying, members of the jury, is the Customs officers tried to strengthen their case against him by saying that the money in The Merton belonged to D1 and putting it in D2’s backpack, trying to indicate that a drug trafficking transaction had taken place.”[106]

98.  Later in his closing address, he said:

“Now, of course, the prosecution make a fuss about D1’s DNA being found on a rubber band and on the money. As I say, if you accept that the money came from the Merton where defendant -- where the defendant’s father sometimes resided and obviously where the defendant would go and visit his father, then it’s not surprising that a rubber band would contain his DNA. And as far as the money is concerned, you may remember the evidence from the DNA expert that only one subdivided banknote was -- contained the defendant’s -- D1’s DNA. One banknote.”[107]

99.  There was a match with his DNA on a rubber band and on the edges of a mini-stack of banknotes.  In summarising the DNA evidence, the judge told the jury that the appellant’s DNA was found on a rubber band, the shoulder strap of the appellant’s shoulder bag and on the banknotes.  The explanation of the phrase “could not be excluded” offered by PW10 in his evidence was also set out by the judge.  PW10’s evidence on how a person’s DNA could be transferred to an object was mentioned together with the submission of the appellant’s trial counsel in his closing speech.[108]  Without reciting the detailed findings, the judge told the jury to read the relevant report:

“So, members of the jury, I don’t think you have any problems reading Dr Wai’s statement, which is lengthy but also very well set out. You will see he actually explained to you in his annexe the various 15 typings and I do not think I need to go through that with you. He was very clear on that.”[109]

100.  Later in the summing-up, when referring to the closing address of the appellant’s counsel in respect of absence of the appellant’s DNA on Exhibit P1, the judge noted the evidence of PW10 in the following passage:

“The only person talking about DNA is really Dr Yeung and Dr Wai. His evidence, you will understand, he did say he does not know how the DNA actually got onto the banknotes, but he did find DNA which matched, out of the various systems, with that of the 1^st and the 3^rd defendants. And he explained to you that DNA sometimes can fall off an object, sometimes if the grip is not tight enough, the person handling that object may not leave any DNA.

You will notice Mr Donald’s submission that if the 1^st defendant was holding the plastic bag with the drugs and threw it away on the ground, there must have been some friction caused and he questioned why the 1^st defendant’s DNA was not found on the plastic bag at least.”[110]

101.  It is also complained that the judge failed to make a particular point favourable to the appellant, namely, that since no DNA was found on Exhibit P1, which held two kilogrammes of cocaine, it was consistent with the appellant never having held the bag in the first place.  This point was repeated by the judge as part of her summing-up:[111]

“You will notice Mr Donald’s submission that if the 1^st defendant was holding the plastic bag with the drugs and threw it away on the ground, there must have been some friction caused and he questioned why the 1^st defendant’s DNA was not found on the plastic bag at least.”

102.  The judge’s directions when read as a whole were clear, fair and balanced and the criticisms made under this ground are without merit. 

Renewed Grounds 6, 9 and 10: Factual mistakes in the summing-up

103.  These grounds concern alleged factual mistakes in the recital of the evidence that have absolutely no substance to them.

104.  Ground 6 concerns the judge’s statement in relation to PW 13’s evidence that the appellant did not sleep on the floor.[112]  PW13’s evidence was that the appellant said he was very tired and he wanted to sleep.  She said the Customs officer told him that he could bend forward on the desk while seated in a chair, but he said he would rather sleep on the floor.  The judge then asked PW13 a double-barrelled question as to whether he said he would rather sleep on the floor and did he sleep on the floor, to which PW13 said he did.  PW13 then continued with her answer that the appellant said he felt cold and the Customs officer gave him a blanket.[113] It is a little confusing but it seems that PW13 was confirming her previous answer that the appellant said he would rather sleep on the floor.  It is argued by the appellant that PW13 testified that the appellant was actually sleeping on the floor which was inconsistent with the evidence of the two Customs officers, PW3 and PW4, but we find no substance in the point. 

105.  Under Ground 9 it was initially complained that the judge stated in her summing-up that PW4 was cross-examined by counsel for D3 when it was another counsel.  This was a ridiculously insignificant matter that was not worthy of complaint.  This ground was later redrafted to complain that the judge made “a slip” during the recital of the evidence and confused the evidence of PW5[114] with the evidence of PW4.[115]  This hardly had any impact on the state of the evidence, nor the quality of the summing-up to the jury. 

106.  Ground 10 concerns the judge’s summary of PW6’s evidence that he was helped to count the money in Shop 2 of the lobby of the Panda Hotel.  It is complained that this confused the jury that the money had been found earlier in the Panda hotel.  This aspect of PW6’s evidence concerned where the money was counted, while the prosecution case was all along that the money was found on D2 when he was apprehended together with D1 and D3.[116]  

107.  These complaints about factual matters have no merit in them whatsoever.

Conclusion

108.  It follows from what we have said, the appellant’s appeal against Grounds 1 to 4 and the renewal for leave to appeal against Grounds 5 to 10 are without merit and accordingly the appeal is dismissed.

Torture claimant with a previous criminal conviction

109.  It would be remiss of us not to comment on the fact that this is yet another case that has come before this Court involving a torture claimant who had a previous serious criminal conviction, and after serving his sentence was able to remain in Hong Kong as a torture claimant, receiving various welfare and other benefits, while continuing his criminal activities.  

110.  The appellant’s criminal record reveals that he was born on 30 November 1980 in Colombia.  He was sentenced to 3 weeks’ imprisonment on 9 June 2010 for breach of condition of stay, 2 months’ imprisonment on 5 October 2010 for common assault, 8 years’ imprisonment on 13 December 2011 for trafficking in a dangerous drug, and 2 months’ imprisonment on 20 March 2017 for possession of a dangerous drug.  Together with the conviction in the present case of trafficking in a dangerous drug, which he committed on 1 June 2017, and for which he was sentenced to 24 years and 3 months’ imprisonment, it is quite apparent that the appellant came here to embark on a life of crime in trafficking dangerous drugs, having committed his first drug trafficking offence soon after he arrived here and continuing soon after he was released from prison for that offence.

111.  As a torture claimant he is given the freedom of the city together with welfare and other benefits, such as food and accommodation, so it lies ill in his mouth to claim he is a victim of an oppressive and cruel foreign regime while repeatedly perpetrating serious crimes that harm this community and the people of Hong Kong.