HKSAR v. SHING KUEN KIN

CACC 100/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 100 OF 2000

(ON APPEAL FROM HCCC 270 of 1999)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1 This applicant was convicted on 14 February 2000 after trial before Deputy Judge McMahon, as he then was, upon an indictment containing two counts of trafficking in dangerous drugs, and was sentenced to twelve years' imprisonment.

2 The case against the applicant depended upon the testimony of a police officer who at the material times had acted as an undercover agent. There were two counts upon the indictment, the first charging that on 13 November 1998 he unlawfully trafficked in 52 grams of methamphetamine hydrochloride ("ice"); and the second that on 11 February 1999 he, with a man called Poon and two others, trafficked in 464 grams of 'ice'.

3 The evidence of the officer, who was PW1 at trial, was the only evidence against the applicant. During the operation he called himself Peter, and his function was to collect information about triads. On an occasion in about September 1998 the applicant, he said, asked if he wanted 'cold stuff', meaning drugs. According to the evidence, PW1 expressed interest, and in due course he was introduced to Poon from whom, in the applicant's presence, drugs, which were the subject of the first count, were acquired by PW1. The applicant is said to have offered thereafter to secure two kilos of drugs. There took place prolonged negotiations, as well as delay, and in due course some of that quantity was passed by Poon and others to the officer, and there was evidence that the applicant, although not himself the person who passed the drugs, negotiated and discussed the supply with the officer.

4 The officer's evidence was much criticised at trial and a reading of the summing up shows the extent to which it was subject of cross-examination and directions: whether there were inconsistencies between the officer's oral testimony and earlier statements; and attacks on the reliability of notebook entries, for example a reference to two meetings with Poon when it was shown that Poon was out of the jurisdiction on those specific dates. The suggestion was that the applicant had been framed by PW1 to extricate PW1 from debts owed by him to the applicant's brother in the course of illicit gambling; and, to this end, reference was made to bank entries showing that monies had passed between them. The jury was asked to consider all this as well as the undercover officer's explanations. The jury convicted the applicant unanimously on the first count and by a majority of five to two on the second.

The Abandonment Issue

(1) Procedural history

5 On 14 March 2000 the applicant filed a Notice of Appeal against conviction and sentence. He there said that he was framed by the undercover operation and he said that he wanted legal aid.

6 There was a mention hearing on 7 July 2000. The applicant told the court that his family was raising money to instruct counsel, so the case was adjourned for six weeks for further mention. On 11 August 2000 the applicant wrote to the court and asked for an adjournment of his appeal for one month and for a full transcript of the trial proceedings together with a translated copy of that transcript. It appears that a full transcript of the whole proceedings was not considered warranted, and was not granted.

7 By letters of 20 August and 6 September 2000 the applicant asked for a transcript of the evidence of PW1. He provided as the reason for his request the suggestion that the witness had a poor memory and had relied heavily on a notebook when giving evidence and his evidence was not believable and should not have been admitted, and by a letter dated 7 October he asked that the hearing scheduled for 7 December 2000 be adjourned and that the court should grant him legal aid. He was provided with a transcript of the evidence of PW1.

8 At a directions hearing on 5 October 2000, the applicant told the court that he would be representing himself; and the acting Chief Judge of the High Court directed 7 December 2000 as the hearing date for the appeal.

(2) The abandonments

9 On 7 October 2000, the applicant wrote to the court informing it that he had decided to abandon his application for leave to appeal against sentence. There is no application before us to revive the sentence appeal and it stands dismissed subject of course to the question of conviction which we must address.

10 When the Court convened for the hearing of the application for leave on 7 December 2000, the applicant said that he had only received the transcript of the evidence of the witness on 29 November, and that he wanted to re-apply for legal aid. He was asked what his grounds of appeal were and he canvassed some grounds. He was told that he could apply to the Court for legal aid and he made submissions, but his application for legal aid was refused. He then said that since he did not have a lawyer and was not in a position to read the documents, he would cancel his appeal against conviction and sentence. The order which the court then made was that the application for leave to appeal against conviction and sentence was dismissed upon abandonment.

(3) The nullity question

11 The application which was put before us today was presented as an application pursuant to Rule 71 of the Criminal Appeal Rules, Cap. 221, for leave to withdraw an abandonment of an appeal against conviction and, further, for leave to appeal. It was initiated by the applicant, then acting in person, on 6 August 2002 in an affirmation and followed the fact that the applicant had learnt of a case in which others allied to him and to the facts of the High Court case had been convicted in the District Court on the testimony of the same officer, and that upon appeal, the Court of Appeal had allowed the appeal on the basis, so the applicant contended in that affirmation, that the officer had given a version of events different from that given in the applicant's High Court trial. Mr Andrews, who appears for the applicant, accepts that this was not in fact the basis upon which the Court of Appeal allowed the appeal, and that the Court of Appeal had made no comment adverse to the witness, that is, to the police officer. Nonetheless, says Mr Andrews, the transcript of the District Court case shows that the officer had in fact given contrary testimony. He wishes also to argue on the appeal itself, if appeal there can be, that the officer's evidence at the applicant's trial was so inherently incredible, and so marked with insignia of impropriety, that the jury's verdict should not be permitted to stand.

12 Applications to revive appeals after an abandonment are regularly framed as applications for leave to withdraw an abandonment, although it is not, strictly speaking, apt to do so. One starts from the fact that the appeals have been dismissed. True, they have been dismissed consequent upon an abandonment, but dismissed nonetheless. That being so, a question of jurisdiction arises, which is to say there must exist a foundation in law upon which the dismissal can be set aside.

13 It is well established in this jurisdiction that the restoration of an appeal after an abandonment is permissible only where it can be demonstrated that the abandonment of the original application was a nullity. This court has consistently followed the reasoning in R v Medway (1976) 62 Cr App R 85 in which that court said at page 98:

"In our judgment the kernel of what has been described as the 'nullity test' is that the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the applicant did not go with his act of abandonment."

14 The applicant's case in relation to abandonment was that when he appeared before this Court on 7 December 2000, he had had insufficient time to prepare his grounds of appeal; and had had insufficient time to have translated to him the English transcript of the evidence of that officer, but that nonetheless the court unfairly refused him an adjournment, and insisted that he present his grounds there and then; and also refused him legal aid. He says that he told the Court that he wanted to abandon his appeal only temporarily, but was not permitted to do so. He says that the grounds which he argued had not been accepted by the Court, the Court saying that the grounds had all been presented at trial, which we take to be a reference to what this Court must have said to him, namely, that all the attacks which he sought to present in relation to the creditworthiness of the officer had been fully placed by the trial judge to the jury in his summing up. The applicant asserts that, in the circumstances described, he felt helpless and unable to present his argument and that he was, in this sense, forced against his will to abandon this appeal. He adds that he thought that if he abandoned the appeal himself, that is without a judgment against him on the merits, he would be entitled to appeal again.

15 There is no transcript of the proceedings of 7 December 2000. We do however have a note made by one of our number during the hearing, although it does not purport to be a comprehensive note, but which shows the applicant indeed told the Court that he had received the transcript of PW1's evidence only on 29 November, but that the Legal Aid Department had not seen that transcript and that he wished to have legal aid. It shows that he did advance grounds of complaint about the verdict or about his trial, and it shows what some of those were, and it was pointed out to him at that hearing that all this had been before the jury (as indeed it had). He was asked whether there was any other matter which he wished to put forward, and he said that during the trial he had wanted the witness Poon to give evidence on his behalf but that his counsel had not accepted that suggestion. The court having heard his submissions refused to grant legal aid. The note then runs as follows:

"I would like to cancel it for time being. I do not know how to read those documents. I would like to cancel it.

Explained: Can't abandon temporarily.

Applicant: wish to cancel my appeal for conviction and sentence."

16 A real question arises in this case whether the applicant's mind in the act of abandonment truly went with his deed. Several matters are clear. It is obvious that this applicant fully intended, when he appeared before the Court in December 2000, to pursue his appeal. It is also clear that he had only received a transcript of the evidence of the main prosecution witness, which formed the basis of his appeal, some eight days before the application, and that he had not had the advantage by that date of a translation service; and, moreover, it is clear that he did say at first that he wanted to abandon his appeal temporarily. The Court had read the papers in the case, and the summing up, and relevant parts of the transcript, and was satisfied on the basis of what it had heard from the applicant as to his proposed grounds of application, that his complaints had been fully covered in the summing up. The Court then took a view of the merits on the matters which the applicant had advanced, which no doubt tallied with that which had been taken by the Legal Aid Department when the Director of Legal Aid refused legal aid. There is no record in the notes made by one of our number of an application for an adjournment but, as we say, there is no transcript of the proceedings and it would be unfair we think, in the circumstances, to conclude that the applicant is wrong in his recollection that he asked for one, even though his recollection in at least one other material regard is shown to be incomplete.

17 Given that the applicant received the transcript so shortly before that hearing; that he undoubtedly expressly mentioned a temporary abandonment; and given, further, that he had no time to consider the implications of the fact that there was no such step as a temporary abandonment open to him, we are prepared to give the applicant the benefit of the doubt, in these wholly exceptional circumstances, by accepting that his mind in the act of abandonment did not truly go with his deed and, accordingly, we determined to treat the abandonment as a nullity. It was in these circumstances, that we agreed to hear Mr Andrews on the merits of the application for leave to appeal against conviction itself.

The Application for Leave

18 We have had the advantage of written arguments from Mr Andrews which he has adopted and upon which he has, to some extent, expanded.

19 The application is mounted upon the basis of the suggested unreliability and dishonesty of the police officer. It is said that he acted with impropriety such as should give such unease to this Court for it to conclude that the conviction is unsafe. In his able submissions to us, Mr Andrews accepts that the summing up was fair; that the defence was fairly put; that the witness was ultimately categorized by the judge in his sentencing remarks, and after a Newton hearing, as impressive; and also that there existed in this case good reason for the prime witness' recollection of events to be uncertain, not least because he was an undercover agent not able to keep contemporaneous notes; and that there were matters in evidence which the officer understandably felt uncomfortable to reveal. In the circumstances of these wholly realistic concessions, Mr Andrews starts with a difficult task indeed.

20 We turn to the grounds, the specific complaints themselves, the impact of which we are invited to view cumulatively.

21 First, it is said that the explanations offered by the witness PW1 as to why he made no official record of, or why he did not account to his superiors about, monies passing through his own account from the defendant's brother, or the defendant, were explanations which were incapable of belief; and that the objective facts supported the applicant's case that he had been framed as a means for the officer to escape repayment of a substantial gambling debt. Mr Andrews in his written submissions points to the evidence that it was accepted by the applicant that he paid monies to the defendant and to the defendant's brother from his bank account. The applicant's explanation for this was that he was specifically asked by these two for the use of his account for this purpose. The cardinal point however made upon the application is that these transactions were not disclosed in the officer's notebook nor were they disclosed to his superior officers.

22 The fact that monies were deposited into a bank account by either the defendant or Ah Fu (his brother) first emerged from the evidence of the applicant himself. In other words, he volunteered the evidence (see page 244 of the transcript). There was then very extensive cross-examination about the matter and the witness gave explanations, including the fact that he allowed this to happen because he thought he was being tested as to whether he was prepared to help these men. He said that he did not report the matter to his superior nor record it because he did not think that these transactions themselves involved anything illicit.

23 It may well be said that the evidence on its face, especially the failure to report to his superiors, is suspect, but, looking at the cross-examination and the very extensive way in which the issue was canvassed in the summing up, we cannot see how we could properly overturn the jury's assessment of it. It is to be remembered that the officer was at all times acting as an undercover operative, leading a life in which he would be expected to avoid any suspicion. The judge emphasised, time and again, how the officer's credibility was the issue before the jury and what factors told against him and which, perhaps, in his favour. Mr Andrews has submitted that it was not a matter of mere credit but of propriety. We think however that the issue of propriety was well before the jury, and is in any event part and parcel of the issue of credibility. The trial judge reminded the jury in the clearest terms of the significance of the evidence as suggested in support of the defence. It is relevant to note some of the comments of the judge in the summing up and which strike us as making good sense:

"One thing you might want to consider is if PW1 wanted to have the defendant arrested to avoid PW1's gambling debts, why did he not simply rely upon the triad offences the defendant had undoubtedly, according to the defendant's own evidence, committed. That the defendant was a triad and PW1 had become his follower is common ground. Why would PW1 need, over a period of months, to fabricate drug offences against the defendant? Were not the triad offences enough? Well, there was some suggestion in evidence that drug offences may be more serious than triad offences, and take that into account there as well." (Tr. p 116I-N)

And shortly thereafter:

"You might consider how much falsely incriminating the defendant was going to help PW1 in avoiding the debt he owed to Ah Fu. PW1 did not owe the defendant, but Ah Fu. How much benefit would he get out of incriminating Au Fu's brother rather than Ah Fu?"(Tr. p 117D-F)

24 That the evidence was suggested to have been unbelievable was specifically pointed out by the judge:

"Take into account what Mr McGowan says about there being this possible motive to avoid debt that the witness PW1 owed Ah Fu. Do bear in mind that the defence case says it is simply unbelievable that these transactions in PW1's bank account between himself and Ah Fu were not recorded if PW1 was recording matters relating to criminal activity. Of course PW1 knew, according to the defence case, that the defendant was a triad and Ah Fu was a bookmaker. Why would he not record it?" (Tr. p 117K-P)

25 We note, too, a telling point against the defence contention which the judge made and which runs as follows:

"Consider these bank statements from the prosecution's case point of view. They say the bank statements of Ah Fu are not consistent with his evidence that PW1 was gambling with him increasingly over the period of the World Cup and eventually owed him $280,000. They pointed out that from Exhibit D4 and Exhibit D5 there are more credits into PW1's account than credits into Ah Fu's account.

In other words, if you look at D4 and D5, then you see, say the prosecution, a preponderance of money going to PW1. Over the period of time when Ah Fu said PW1 was gambling heavily with him on a daily basis towards the middle of the World Cup, where are the moneys coming into Ah Fu's account from PW1's losses if he has built up his losses over the last two stages?" (Tr. p 118F-M)

26 The next point is also an evidential one. It relates to the fact that the officer said that he had met Poon on two dates which turned out to be dates upon which Poon was out of the jurisdiction. It is said that the officer's explanation for the error was again not believable. The officer explained the matter in this way:

"... since my life was different from the life of a normal person so what I mean is that, well, if a normal person, when one wakes up that's the morning of the other day but during that period when I woke up that's the morning of the same day so there may be a difference of one day. There may be a difference of one day, one day forward or one day back." (Tr. p 376)

And earlier:

"Q.	And as I understand your evidence, that's a book that you wrote up every evening or every two days or so.
A.	That's right.
Q.	And it was kept in the safe house.
A.	That's right.
Q.	Sometimes you didn't go to the safe house for several days.
A.	When you say several days what do you mean?
Q.	Well, you didn't go there every day, did you?
A.	That's right.
Q.	So sometimes you'd be recording things that had happened one or two days beforehand.
A.	That's not the case. Though I did not go every day, but it was only under special circumstances that I did not go every day.
Q.	So there would have been gaps in between something happening and you writing it down.
A.	That's right.
Q.	And there were times, it would seem, when you went back to the safe house to record things after you'd been out all night.
A.	That's right." (Tr. pp 225-226)

27 This issue was one which was drawn specifically to the jury's attention by the judge. The judge noted the facts, pointed out that these dates related to Poon and not to the applicant and told the jury to consider whether the point was one of significance or not; having already emphasized how vital to their determination was the issue of the officer's credibility.

28 Then we are taken to differences between what the officer said on one occasion as to the date of his first meeting with the applicant, and what he said in his testimony. The judge reminded the jury of the point, and of the officer's explanation for it. We also note a lengthy discussion between counsel and the court below about this testimony when it first emerged, and concern that the officer might well be avoiding reference to the first occasion because of a wish not to mention matters connected with crime other than drug trafficking.

29 Mr Andrews accepts, quite realistically, that given the circumstances of the case where an officer is operating as an undercover agent, much cannot be expected that may be expected of an officer acting openly. For example, the officer could not be expected to make contemporaneous notes of events; and in this case, in particular, the officer was necessarily circumspect when giving evidence in so far as he did not wish to prejudice the applicant unduly by revealing triad activities, or activities not related to the offences in question.

30 We have examined the evidence in question, the explanations given and the manner in which these issues were placed before the jury. We see no valid basis upon which we could properly overturn the jury's conclusion. They had the benefit of seeing and hearing this witness over an extended period; a witness who was described by the judge in his sentencing remarks as impressive. The jury had the benefit of hearing the applicant when he gave contrary evidence; and there is a full and comprehensive, and in our judgment very fair, assessment by the judge of all these issues. There is, on the basis of these grounds, nothing which can lead us properly to say that the verdicts are unsafe.

31 The peculiar circumstances in which the witness was placed whilst an undercover officer, the difficulty in making notes and recalling detail, arises also in relation to the next issue which Mr Andrews seeks to make in relation to evidence given by PW1 at the District Court trial to which we have made earlier reference. There is no application before us to receive fresh evidence, but we have heard Mr Andrews on the point nonetheless. And we have examined those parts of the transcript of that case to which he has taken us. What Mr Andrews takes us to are passages which he says shows the officer giving evidence different from that given at the High Court trial; for example, as to the date of a meeting, where he refers to a particular meeting taking place on 29 May, whereas in the High Court he said it took place on 10 June; so Mr Andrews contends that the evidence in the High Court that a meeting took place on 10 June could not therefore be correct. So, also, the officer mentioned a telephone conversation about betting, a conversation which was said to have taken place on 8 June but which was not mentioned in the High Court proceedings. It was a conversation in which the applicant telephoned the officer to ask if he, the officer, wanted to engage in bookmaking. Mr Andrews says that this conversation was never mentioned in the High Court trial and goes beyond anything the officer had there suggested as to his own involvement in gambling. There are other and similar points of this nature.

32 We have the following specific comments:

(1)	It is clear that the officer was not challenged at the District Court trial about such suggested differences, nor asked for an explanation for them.
(2)	The officer in the District Court was giving testimony about quite different offences involving other persons as well as the applicant; offences which took place much earlier than the drug offences with which the High Court trial was concerned. The drug offences took place in December 1998 and January 1999, whereas the triad offences to which the District Court trial related took place at a time much closer to May and June 1998; so that one might indeed expect greater detail in the District Court trial about events in May and June.
(3)	The officer, at the High Court trial, was apparently anxious to say as little as possible about the applicant's involvement in non-drug related matters.
(4)	It is already conceded that the officer could not be expected to have a precise recollection of dates, and that there is acceptable room for error.

33 We do not see that there is anything in the evidence in the District Court trial which should motivate us to conclude that the convictions for the drugs offences were unsafe or unsatisfactory.

34 Finally, it is said that the verdict on the second count is telling since it was but a majority verdict, meaning that the jury had doubts about the truth of what the officer said and, possibly, about his integrity. With respect, we think not. If that were the reason, then there would not have been a unanimous verdict in relation to the first count. The difference can readily be explained on the basis that the applicant was not present when the drugs were passed on the second occasion, and that two jurors may have felt uneasy in the circumstances about the standard of proof of his involvement in that second offence.

Conclusion

35 In all these circumstances, the application for leave to appeal against conviction is dismissed.