HKSAR v. LAM HING CHIT

CACC 278/2017

[2021] HKCA 1297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 278 OF 2017

(ON APPEAL FROM HCCC 75 OF 2017)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

A. Introduction

1.  The appellant was charged with one count of conspiracy to traffic in a dangerous drug contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  The appellant pleaded not guilty and was tried before Deputy High Court Judge Andrew Bruce SC (“the judge”) and a jury.  He was found guilty by the unanimous verdict of the jury and sentenced to 26 years’ imprisonment.

3.  The appellant was granted leave to appeal against his conviction on 25 March 2020 on the basis that it was reasonably arguable that the evidence revealed two separate conspiracies and if so there would have been a failure of the judge to direct the jury on the uncharged criminal acts of the appellant that underlay the other conspiracy[1].

4.  At the hearing of the appeal we reserved our judgment. This is our judgment.

B.     The indictment

5.  The count in the indictment alleged that between a day unknown in August 2015 and 4 September 2015, the appellant conspired with Lui Mei Yi (“Lui”) and other persons unknown to “unlawfully traffic in a dangerous drug, namely ketamine”.

6.  These particulars identified the nature of the conspirator’s criminal conduct, namely, trafficking in a dangerous drug, but not the actual agreement pursuant to which this criminal offence would be committed.  The actual agreement on which the prosecution based its case was described by the prosecutor in his closing address as follows:

“… In this case, it’s the prosecution’s case that the defendant, which is what you well know, the defendant, Lui Mei-yi, together with Fu Chai and others, were all acting together, all part of a gang or a syndicate or a company with the object of bringing ketamine into Hong Kong from the Mainland and then selling it here in Hong Kong. That is what the prosecution alleges the conspiracy is in this case and that’s why the defendant has been charged with conspiracy and that’s why Lui Mei-yi admitted to being part of the conspiracy because that’s what the agreement was between her and the defendant, Fu Chai and others.”[2]

7.  From these remarks it is apparent that the unlawful agreement was to import into Hong Kong, from the Mainland, the drug ketamine and then sell it here.  The conspirators who could be identified were Lui Mei Yi (“Lui”) who was a witness for the prosecution and at trial was PW4, the appellant and another person who was referred to only as “Fu Chai”.    

C.     The prosecution case

C.1    The discovery of the importation

8.  A driver at Yat Sing Logistics Company picked up a container from the company’s depot in the Mainland and transported it on his truck across the border into Hong Kong, arriving on 4 September 2015. He parked his truck in Fanling. Once there, three or four more drivers from his logistics company joined him. One of the recipients of one of the parcels, a man who claimed to be a Mr Li, kept calling one of the drivers enquiring about a particular item. This prompted the drivers to get suspicious and they were motivated to open the relevant parcel.

9.  In this parcel they found, concealed within a lampshade of sorts, something that they thought was very suspicious. They called the police. An undercover operation was promptly organised. The driver, who was accompanied by an undercover police officer, drove the truck to Nam Cheong Street in Sham Shui Po to deliver the parcel. There they were met by Lui who received the parcel and paid the driver $120. She was then arrested. Concealed within the parcel was 2,976 grammes of ketamine.

C.2   The evidence of Lui

10.  Lui gave evidence and her testimony formed the basis of the conspiracy charge against the appellant. She testified under a partial immunity from prosecution, having pleaded guilty and been sentenced to 16 years’ imprisonment on 15 July 2016.

11.  It was Lui’s evidence that she met the appellant about a year prior to becoming involved in the trafficking of dangerous drugs. She said she met him whilst out with friends at a bar in Tsim Sha Tsui, and knew him by the name of “Kit Chai”.  She said the appellant attended these frequent social gatherings of her and her friends and when he did so he supplied them with ketamine, free of charge.

12.  Lui was bored with her job and wanted to earn more money and so she asked the appellant if she could work for him.  The appellant eventually agreed to employ her on a trial basis and this was around July or August 2015. Whilst working for the appellant on a trial basis, Lui would only work on a Sunday.  She would meet the appellant at 11:45 am at a McDonald’s restaurant in Mongkok and the appellant would give her 60 bags of ketamine to sell to customers.  The bags came in two size: there were small packets which contained approximately 1.5 grammes of ketamine and large packets which contained approximately 2.85 grammes of ketamine.  The appellant also gave her a mobile phone on which she received calls from his customers.  When this happened, she would then arrange to meet the customers, hand over the drugs and receive payment from them for the drugs.

13.  If she sold all her drugs, she said she would call the appellant and he would replenish her stock. She would do this until just before midnight on the Sunday and then she would meet the appellant, at about 11:45 pm, to give him back the excess stock and money. She said she received 10% of the proceeds of her sales.

14.  After doing this for about two Sundays, Lui resigned from her job as a clerk in order to work full time for the appellant. She explained she worked 2 or 3 days per week for the appellant, selling both the large and small packets of ketamine.  She said she knew that there were other persons who also sold ketamine for him and she had met some of them.  But, as far as she was aware, the appellant was the only person in charge of this drug retail sales operation.

15.  After she had worked for the appellant for about one month, he enquired of her whether she would like to help with the delivery of a large parcel of 250 grammes of ketamine.  When she agreed, the appellant introduced her to a person by the name of “Fu Chai”, who appeared to her to be his friend.  

16.  Lui was aware that these 250 grammes parcels had been transported from the Mainland by a logistics company and been received and unpacked from the containers, in which they had been concealed, by “Fu Chai” or his associates.  Her job was to obtain them from “Fu Chai” and distribute them in accordance with his instructions.  There were as many as 20-21 such parcels each time and Lui could earn up to $10,000 for distributing them.  She had done this on two or three occasions and her instructions always came from “Fu Chai” who she thought was the person in charge of this importation operation. 

17.  Then “Fu Chai” asked her whether she would be willing to receive drugs that had been imported from the Mainland.  This would entail her taking delivery of a parcel from a logistics company.  Lui agreed and ended up performing this type of work for “Fu Chai” on two occasions. It was on the second occasion that she was arrested.

18.  Lui testified that “Fu Chai” had once told her that the appellant was involved in the packing of these 250 grammes parcels in the Mainland. She said she knew the appellant would go to the Mainland but could not recall him ever saying anything to her about what he did there.

19.  Lui described the background to her arrest on 4 September 2015.  She said she met “Fu Chai” in Mongkok on 2 September and was told a batch of drugs would arrive in Hong Kong from the Mainland on 4 September 2015. They agreed to meet each other at 3pm on that day at Sham Shui Po MTR station so that he could give her the details for collecting the item containing the drugs.

20.  Lui explained that on 3 September 2015 she received a call at about 11 pm asking her to meet in Mongkok. She said she met “Fu Chai” first and they waited in McDonalds, until they received a call from the appellant to meet elsewhere. The appellant and Lui met in a stairwell nearby. It was her belief that “Fu Chai” was waiting close by as a look out.  Lui said the appellant gave her a bag of drugs to look after temporarily for which he promised to pay her $1,000 the next day. She then met up again with “Fu Chai” and took a taxi home.  

21.  The next day Lui met the driver and paid the driver $120 for the package.  She was then arrested and “Fu Chai”, who was waiting in the background, disappeared.

22.  A comparison was done between the telephone number that Lui said was hers (61831321) and which she used to contact the appellant, and the number which she testified was that of the appellant (53779774). This number she was able to identify after her arrest as it was saved under the name “Kit Chai” in her smartphone. The prosecution produced a table showing calls between these two numbers that started from about 9 August 2015 and proceeded throughout August and into September. It was the prosecution case that the immigration record of the appellant leaving and entering Hong Kong was consistent with the record of roaming calls made by the number 53779774.

23.  A letter written by the appellant to Lui, dated 24 March 2016, was relied on by the prosecution to show the appellant had an awareness of the ketamine in Lui’s home and a willingness to participate in an attempt to recover it.  In this letter the appellant said:

“On the day when you were busted, ‘Fu Chai’ called me once he saw you being busted to ask me to help you tidy up the house. At that time, I was at Ken’s house and Ah Ting was also there. I contacted [PW1’s sister] immediately … However your younger sister claimed that (she) had to take leave and got stuck in a traffic jam. In the end, she arrived after two hours. Once (we) were upstairs, (we saw that) your home was being kicked….”[3]

24.  The prosecution also adduced evidence that 18 fingerprints and one palm print of the appellant were found on the inside of the adhesive tape which wrapped the packaging of the dangerous drugs.

D.     The defence case

25.  The appellant gave evidence but did not call any witness.  The defence case was that Lui had falsely accused the appellant of being part of a conspiracy in the hope of obtaining a reduction in her sentence.

26.  The appellant testified that he made a living from computer games.  He said his name was not “Kit Chai”, rather it was Mr Lam, and this was supported by the letters written between himself and Lui.  He admitted that he knew Lui because he bought drugs off her from time to time.

27.  He said that on 2 September 2015 he went to the Mainland and met up with three other persons. He said they were there to visit a logistics company. He explained that he had been initially waiting inside a vehicle, but that later one of the men there asked him to assist them in preparing strips of adhesive tape.  In this way the appellant sought to explain how his palm and fingerprints came to be on the sticky side of the adhesive tape which had wrapped the package containing the packets of dangerous drugs. His case was that he had not realized he was handling dangerous drugs at the time and he was a victim of circumstances.

28.  In respect of the letter dated 24 March 2016 that he wrote to Lui in which he mentioned tidying her house, the appellant explained how, on the 4 September 2015, he received a phone call from “Fu Chai” asking him to help arrange the tidying of Lui’s house. He testified that by “tidy” he meant going to the home of Lui in order to get some clothing and other personal things that she might need after her arrest.

E.     The Perfected Grounds of Appeal

29.  Mr Trevor Beel, on behalf of the appellant, pleaded only one ground of appeal in the Perfected Grounds of Appeal Against Conviction.  His ground complains that the judge, having identified two distinct criminal conspiracies between the appellant and Lui, of which only the second was the subject of the charge, then erred in law by conflating the conduct involved in each into one evolving conspiracy without properly directing the jury as to how they should resolve the evidence of the uncharged criminal conduct of the first conspiracy.  This failure, it is said, amounts to a material non-direction with the consequence that “the conviction against the Appellant is wrong in law and or unsafe or unsatisfactory.”[4]

30.  In support of this ground Mr Beel submits that the first conspiracy was a conspiracy between Lui and the appellant where there was an agreement the appellant would supply Lui with ketamine which she would sell on a retail basis (the “retail conspiracy”). The second, was a conspiracy instigated by “Fu Chai” in which there was an agreement to use a logistics company to transport ketamine into Hong Kong via a box that had been packed by the appellant on the Mainland and collected by Lui in Hong Kong which was to be handed over to “Fu Chai” (the “importation conspiracy”).

31.  Mr Beel contends the charge against the appellant only concerned the importation conspiracy and the evidence of the retail conspiracy amounted to evidence of uncharged acts which had not been the subject of proper direction by the judge in accordance with HKSAR v Kwok Hing Tony[5] and HKSAR v Ngie Hon Miu (No 2)[6].

F.     The respondent’s submissions

32.  Mr Ned Lai, with Mr Derek Wong, on behalf of the respondent, submits this is a case involving only one conspiracy and that there was no reason for the judge to have directed the jury on the existence of a separate retail conspiracy.

33.  Mr Lai submits that what mattered was whether or not there was an agreement to unlawfully traffic in a dangerous drug and that parties to the conspiracy can have different roles and more than one role.  Thus, in respect of Lui, she was originally a street seller of drugs but this changed into her becoming an importer of drugs into Hong Kong.

34.  Mr Lai submits the evidence adduced at trial was clearly capable of proving the conspiracy as charged, and there was, therefore, no basis upon which to say the evidence at trial involving the retail conspiracy amounted to evidence of uncharged acts.

G.     Discussion

35.  The issue in this appeal is whether the evidence of Lui revealed two separate conspiracies, the first being a conspiracy between the appellant and Lui to sell ketamine at a retail level, a conspiracy in which “Fu Chai” was not proven, or alleged, to have been a participant, and a second conspiracy being a conspiracy to import ketamine into Hong Kong from the Mainland. This latter conspiracy was between the appellant, “Fu Chai”, Lui and others unknown, with Lui being recruited to take delivery of the item, in which the drugs were concealed, from the logistics company that had transported it over the border. If in fact there were two conspiracies, then the consequential issue arose of whether the judge should have directed the jury on the use they could make of the evidence of Lui in relation to the first retail conspiracy as the criminal conduct in that conspiracy constituted evidence of uncharged acts for which special jury directions are required.

G.1    The judge’s directions

36.  As this appeal focusses on the judge’s directions concerning the nature of the conspiracy alleged to have existed between Lui and the appellant it is appropriate to set out what the judge actually said on this issue.  He directed the jury as follows:

“That agreement between the accused and at least one other person was that they should proceed to unlawfully traffic in dangerous drugs. At the time that the accused agreed to unlawfully traffic in dangerous drugs, the accused intended that this should occur and that he would be a party to the trafficking in those drugs. In agreeing with at least one other person to traffic in dangerous drugs, it may be that the parties to the conspiracy had different roles. A conspirator, and that includes the accused, may have more than one role. In this case, if what she says is true, Lui Mei-yi told you that she sold on a retail basis, and later she stored drugs, and we heard her talk about packing drugs, and finally receiving drugs on the last stage of an import chain from the Mainland to Hong Kong.

Each of those is trafficking in dangerous drugs, but as you will see, over time, if you accept her as true, she had a different role at different times. Similarly, if Lui Mei‑yi is to be believed, the accused provided ketamine for her to sell on what I might call a retail basis. She also says that the accused asked her to store what appears to be a substantial quantity of drugs. If you accept her evidence as true, then the accused’s passing the drugs to her for her to sell retail would be involved in supplying the drugs and also storing them. She would be involved in storage. Then it would be also open for you to conclude she was picking up drugs for another person by the name of ‘Fu Chai’ and possibly the accused - we will come to that in a minute - and that the accused was also packing drugs in the mainland.

If that was true, then the accused has another role: packing. What is important, members of the jury, is whether you are sure that there is an agreement - that the accused agreed with Lui Mei-yi to traffic in dangerous drugs, even if that changed or developed over time. That is the critical question. They may have different roles at different times. That really does not matter. What matters is the agreement. If the conspirators do not actually carry out their agreement or do not carry out the agreement at all, that does not matter. What matters is the agreement.

Further, members of the jury, a conspiracy such as a conspiracy to unlawfully traffic in dangerous drugs might start with one form of agreement and alter its scope or nature as things develop. If you were to accept as true the testimony of Lui Mei‑yi, you might think that if there was a conspiracy to unlawfully traffic at the beginning, it related to the retail aspect of it. As I say, if you accept her evidence as true, then that plainly changed, and the nature of the conspiracy changed.

…

… However, according to Lui Mei-yi, she went on to sell dangerous drugs - that is, traffic in them - with him supplying the drugs for her and her receiving 10 or maybe 15 per cent of the proceeds.

So at least as far as that part of the conspiracy is concerned, if you believe Lui Mei-yi, it is pretty explicit evidence from which you could infer an agreement.

…

But the key is the agreement to traffic in dangerous drugs, and I have talked a little bit about how you might prove it. I have talked a little bit about how that conspiracy may not be exactly the same. For example, if you said yes, they started on a retail basis, but it changed to something else, you could not say, well, they are not guilty because it changed. You decide the nature of the conspiracy, and it may develop as time goes on.”[7] (Emphasis added.)

37.  The judge then went on to direct the jury on the meaning of “trafficking”, saying:

“The next element we need to consider is the element of trafficking. Under our law, trafficking in dangerous drugs is defined by the Dangerous Drugs Ordinance. There is a wide range of activity which our law defines to be considered as trafficking, and they include importing into Hong Kong, procuring a dangerous drug, supplying a dangerous drug or otherwise dealing in or with the dangerous drug or even simply possessing it for the purpose of trafficking.

I have not given you the complete list. What I have done is tried to keep it simple so that I can just list the ones which are possibly relevant in this case.

Selling dangerous drugs on a retail basis would be trafficking. If the seller got those drugs from somebody else in order to sell, that would be supplying or dealing in or with the drugs. Handing over drugs from one person to another so that they may store them, that is trafficking. Storing the drugs would be trafficking. Receiving a parcel from outside Hong Kong which contained dangerous drugs, if you knew that dangerous drugs were in the parcel, would be also a form of trafficking.

What is critical is whether it is proved that Lui Mei‑yi agreed with the accused to do those things.”[8]

38.  We would observe that the focus of the judge’s direction is very much on the charge which particularises the conspiracy in terms of the criminal offence, trafficking in a dangerous drug, rather than the unlawful agreement as proven by the evidence.  That unlawful agreement, that the prosecution would seek to prove by the evidence it called, should have been set out in the Particulars of Offence.  Had that been done, we suspect that from the very beginning of the trial the attention of the judge and the parties would then have been on that particularized unlawful agreement and whether and how the evidence proved that agreement.  Focusing on the agreement would have alerted the judge and the parties to the possibility of there being more than one conspiracy and that, consequently, there could be uncharged acts evidence sought to be adduced which might require a ruling on admissibility and, if admitted, special directions to the jury on the use they may make of it. 

39.  The agreement that formed the basis of the prosecution case was set out in the prosecutor’s closing address which we have quoted at [6] of this judgment.  That agreement was one to import ketamine to Hong Kong.  Had the judge and the parties focused their attention on that agreement they would have been alerted that Lui was testifying to a wide range of criminal conduct that went well beyond its parameters.  This would then have focused everyone’s minds on the evidence of Lui and what it was that, in fact, she was describing.   

40.  That said, there was one occasion in his summing-up where the judge did appear to recognise the possibility of the jury finding more than one conspiracy, saying:

“ We know from the charge that the overall scheme of the prosecution case is that Lui Mei‑yi trafficked with the accused and, as the indictment says, ‘Others unknown’. She - that is, Miss Lui - testified that she carried out a number of acts of trafficking at the request of ‘Fu Chai’.

If you accept her testimony as true, in order to carry out those drug‑trafficking activities, she must have conspired with him as well. One of the issues you will have to consider in due course is whether - again, assuming she is telling you the truth - whether she was in one conspiracy with the accused and another one with ‘Fu Chai’, or whether they were in the same conspiracy together. And that matters. Why? Because it might be that one branch of the conspiracy is all ‘Fu Chai’ and nothing to do with the accused; or it may be that they were all in it together.[9]

41.  But, the possibility of there being two conspiracies was not further discussed and the consequence of the jury finding that this is what the evidence established, was not a matter that the judge addressed.  

42.  However, the very breadth of conspiracy charges brings with it special problems not always encountered in proving a substantive offence.  Proving criminal conduct that takes place over a period of time, and involving a number of persons, may entail the prosecutor leading evidence of other criminal conspiracies, or substantive offences, that were precursors to, associated with or a natural consequence of the conspiracy that is charged. If the jury found that there were two separate conspiracies then the retail conspiracy was reduced to being background evidence that explained how Lui became acquainted with the appellant, how she became involved in his drug trafficking activities and how she came to meet Fu Chai and be lured into his far more serious cross-border drug importation activities.  

G.2    The evidence

43.  There is nothing in the evidence of Lui which supports the respondent’s submission that there was one conspiracy only. Typical of Lui’s portrayal of her drug trafficking activities is the following testimony by her:

“A. There were two parts. The 250 grams is one part and the large ones and small ones is another part, to which, as far as I know, were responsible fully by Kit Chai.

Q. So, the small bags and the big bags were -- you’re saying that was Fu Chai -- I mean, Kit Chai?

A. Yes.

Q. And that’s all he dealt with, as far as you know?

A. For the large and small ones, I mainly contacted Kit Chai and for the 250 grams parcel, sometimes Kit Chai did mention about it, but not in much details, like, when I contacted Fu Chai about the large parcel.”[10]

44.  Mr Lai conceded that there was no evidence that anyone other than the appellant, his other sellers and Lui were involved in the retail conspiracy.  Lui’s evidence implicated the appellant in a retail conspiracy with his employed sellers to supply ketamine to Hong Kong consumers of the drug.  Lui became just one of his employed sellers and for about one month that was all she was doing in terms of her drug trafficking activity.  She was then introduced to “Fu Chai” who she came to believe was the person in charge of a syndicate of persons importing ketamine from the Mainland.  The appellant was portrayed by her as a member of this syndicate but there was no evidence as to how long this syndicate had been operating or when the appellant may have joined it.  We have no doubt that the evidence of Lui does not support the concept of a single evolving conspiracy. 

45.  Once it is accepted that there were two conspiracies, and that the earlier retail drug trafficking of Lui on behalf of the appellant was not part of the charged conspiracy, then those earlier drug trafficking activities of the appellant became evidence which, though admissible for the purposes we have earlier described, constituted uncharged acts.     

G.3    Uncharged acts

46.  The relevant law in relation to uncharged acts evidence is now settled.  When this type of evidence is adduced as part of the prosecution case the judge must direct the jury that they cannot act on it unless they are sure it is true (the standard of proof requirement), and that they may not use it to infer that just because the defendant has been involved in other criminal conduct he must have also committed the offence for which he is standing trial or is the sort of person likely to commit that offence (the propensity reasoning prohibition).  Because the jury is making findings of fact as to criminal conduct it is important that they understand that they cannot make such findings unless they are satisfied of them to the criminal standard.  But the prejudicial potential of this evidence is so great that it is vital that the risk of that prejudice is firmly quashed by a direction that prevents any possibility of propensity reasoning.

G.4    Conclusion

47.  We are satisfied that the judge erred in not directing the jury on how they should approach the uncharged acts evidence.  The appellant’s Perfected Grounds of Appeal assert this failure by the judge is an error of law which also makes the conviction unsafe or unsatisfactory.  The Court of Appeal’s power to allow an appeal under these grounds can be found in section 83(1)(b) and (a) of the Criminal Procedure Ordinance, Cap 221.  Overlapping with these grounds is the ground that the failure to give such a direction constituted a material irregularity under section 83(1)(c).  That raises the further question of whether in this case it is possible and appropriate to apply the proviso to section 83(1).   

H.     The proviso

H.1    The submissions of the parties 

48.  Mr Lai indicated at the hearing of the appeal that if we were not with him on the issue of whether there was only one conspiracy then he would invite us to apply the proviso and dismiss the appeal.  He argued that this was a very strong case which did not rely exclusively on the evidence of Lui.  Furthermore, given the extent of the supporting evidence the risk of the jury engaging in impermissible reasoning in respect of the uncharged acts was, realistically, very low.

49.  Mr Beel submitted that where the non-direction is in respect of such a highly material matter this court could not be satisfied that the appellant received a fair trial or that the conviction is safe.

H.2    The proviso

50.  The proviso is contained in section 83(1) of the Criminal Procedure Ordinance.  This sub-section sets out the three bases for the Court of Appeal allowing an appeal and is as follows:

“(1) Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks –

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

(c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.” (Emphasis added.)

51.  The purpose of the proviso is to enable the appellate court to do justice.  In Tang Siu Man v HKSAR (No 2) Bokhary PJ, dissenting on whether to allow the appeal, discussed the proviso and said:

“This Court is here to do justice. To allow an appeal just because something has gone wrong at the trial even though it has not resulted in a miscarriage of justice would not be doing justice.”[11]

52.  The question is how it does that in respect of the Court of Appeal’s three bases for allowing an appeal. Particularly relevant to this appellant’s appeal is the (a) basis of “unsafe or unsatisfactory” as it is the view of some textbook authors that the proviso cannot be used to uphold a conviction that the court concludes is unsafe or unsatisfactory.[12] If correct, this would have as an inevitable consequence that if the conviction is unsafe it must be set aside and, subject to an order of retrial being made, the appellant acquitted.  As the appellant specifically relies on this basis for allowing the appeal, we must, therefore, decide first whether the proposition that the proviso does not apply to section 83(1)(a) is correct and this requires us to examine what is meant by the phrase “unsafe or unsatisfactory”. 

H.3    Section 83(1)(a): unsafe and unsatisfactory

53.  In England and Wales the leading decision on the phrase “unsafe or unsatisfactory” is the judgment of the House of Lords in Stafford v Director of Public Prosecutions[13]. This judgment was relied on by the Privy Council in its judgment in Kwong Kin Kung v The Queen[14], an appeal from the Hong Kong Court of Appeal.  Lord Steyn, in giving the judgment of the Board, referred to the famous comment of Lord Widgery in R v Cooper (Sean) where he said:

“That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”[15]

Lord Steyn then observed:

“This guidance has, of course, been repeatedly recited and applied in the Courts of Appeal in England and Hong Kong. Pressed to explain, however, whether it poses a test different from the question whether the conviction is ‘unsafe or unsatisfactory’ within the meaning of the statute, Lord Thomas rightly conceded that the ‘lurking doubt’ test is simply a different and vivid way of expressing exactly the same idea. Thus in Stafford v Director of Public Prosecutions [1974] AC 878, at p.912, Lord Kilbrandon summarized the test to be applied by each member of the appellate court as follows:

Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?

Ultimately, their Lordships conclude, the words of the statute must govern the position.”[16]

54.  In HKSAR v Hung Wai Tak the Court of Appeal summarised the effect of this decision in the following way:

“Although the court was invited to say that a ‘lurking doubt’ existed as to the integrity of this conviction, we have felt it right to have regard to the provisions of section 83 of the Criminal Procedure Ordinance (Cap 221), in order to determine whether, in the circumstances of the case, the conviction should be set aside on the ground that it is unsafe or unsatisfactory. This follows what was stated in Kwong Kin Hung v The Queen [1997] HKLRD 15 at 19F where Lord Steyn, in giving the judgment of the Privy Council, said that ultimately the ‘words of the statute must govern the position’. Having said this, and without wishing to enter into semantics, if the court had felt a ‘lurking doubt’ existed in relation to this, or any other conviction for that matter, it would be virtually inconceivable that the conviction could be regarded as safe or satisfactory.”[17]

55.  Thus, the Stafford judgment remains not only the leading authority in England on the meaning of “unsafe or unsatisfactory” but also the leading authority in Hong Kong.  That being so, it warrants closer examination. 

H.4    Stafford v The Director of Public Prosecutions

56.  It is important to a proper understanding of Stafford to place it in context.  It was a fresh evidence on appeal case with the fresh evidence being relied upon to attack and undermine the verdict of the jury. 

57.  A further contextual element is that Stafford post-dated the decision of Widgery LJ in R v Cooper (Sean), which is the source of the “lurking doubt” concept.  Cooper was an identification case in which the defence asserted that the victim had misidentified the appellant who, it was said, bore a striking resemblance to the real assailant.  In Cooper no attack was made on the trial judge’s summing-up and the Court of Appeal was being asked to overturn the verdict of a properly directed jury solely on the basis that, in all the circumstances, it was unsafe or unsatisfactory.  For “cases of this kind” Lord Widgery then made his famous comments that are quoted at [53].

58.  By “cases of this kind” we understand Lord Widgery to be referring to appeals based only upon the evidence and which cannot point to any error of law or procedure that would afford a ground of appeal under the (b) and (c) limbs of section 83(1). Such cases can rely only on the unsafe or unsatisfactory limb of section 83(1) in order to ground the appeal.  Evidential cases occur when there is an attack on the quantitative sufficiency of the evidence or an attack on the qualitative character of the evidence or where there is reliance on fresh evidence.  The appeal may, of course, involve one or more or even all of these forms of evidential attack on the safety of the conviction.

59.  Against that backdrop we now turn to a consideration of Stafford’s case.  Viscount Dilhorne, who gave the leading judgment of the House in Stafford, said of attempts to construe the phrase or lay down an exhaustive test for its application:

“ The Act thus gives a wide power to the Court of Appeal and it would, in my opinion, be wrong to place any fetter or restriction on its exercise. The Act does not require the court, in making up its mind whether or not a verdict is unsafe or unsatisfactory, to apply any particular test. The proper approach to the question they have to decide may vary from case to case and it should be left to the court, and the Act leaves it to the court, to decide what approach to make. If would, in my opinion, be wrong to lay down that in a particular type of case a particular approach must be followed.”[18]

60.  This approach was echoed by Lord Bingham of Cornhill in R v Pendleton where he said:

“It is undesirable that exercise of the important judgment entrusted to the Court of Appeal … should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision.”[19]

61.  Despite the phrase containing two terms “unsafe or unsatisfactory” there is no appellate decision which has said that each of these terms bears a different meaning.  In his judgment in Richard McIlkenny & Ors[20] Lloyd LJ, in giving the judgment of the English Court of Appeal, said that the phrase “unsafe or unsatisfactory” is disjunctive but noted that the case law does not reveal any occasion on which the words have been held to bear different meanings.  Whether they are, in fact, tautologous has not been argued before us and in the present appeal it is not necessary for us to decide this issue.[21]

62.  A related issue is whether, within the structure of section 83(1) the three bases for allowing an appeal are mutually exclusive.  An attempt to argue that this was the case was made in R v Maguire where counsel suggested that the (a) basis concerned evidential matters, the (b) basis dealt with questions of law and the (c) basis with procedural matters[22].  However, Stuart-Smith LJ rejected the submission that the three separate bases of appeal were mutually exclusive with each dealing with separate matters, and we agree with him.

H.5    The modern English view of R v Cooper

63.  We cannot conclude this discussion without mentioning the current position in England and Wales of the “lurking doubt” principle which, in Hong Kong, has become firmly entrenched in our law.[23] This is not the occasion to review that principle and, for the purpose of this appeal, we accept that it is one of the routes by which the Court of Appeal may determine the question of whether a conviction is safe.  But, in England and Wales the Court of Appeal has sought to limit the scope of its operation.  In R v Pope the Lord Chief Justice (Lord Judge) said:

“… As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If, therefore, there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.”[24]

H.6    Avoiding intruding into the role of the jury

64.  The desire to limit the lurking doubt principle in appeals based only upon the sufficiency or adequacy of the evidence is partly driven by a concern that the Court of Appeal not become involved, via the unsafe or unsatisfactory basis for allowing an appeal, in a determination of the guilt or innocence of the appellant.  In the McIlkenny case Lloyd LJ said:

“Nothing in section 2 of the Act, or anywhere else obliges or entitles us to say whether we think that the appellant is innocent. This is a point of great constitutional importance. The task of deciding whether a man is guilty falls on the jury. We are concerned solely with the question whether the verdict of the jury can stand.”[25]

65.  This was also emphasised by Lord Bingham in Pendleton at [17] where he said:

“Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second …

…

I am not persuaded that the House laid down any incorrect principle in Stafford so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty.”[26]

66.  It may be that this particular concern arose because in evidential cases the verdict of the jury will frequently flow from a summing-up free of legal error.     

H.7    Determining whether a conviction is safe and satisfactory

67.  Because the words of the statute are to govern its application, the unembroidered language of Lord Diplock in Stafford, who agreed with the speeches of Viscount Dilhorne and the other judges, is often quoted as representing the question the appellate court has to determine.  He said:

“I agree with them that the statute under which the appeal is brought to this House requires each of us to ask himself the question: Under all the circumstances of the case as it now stands in the light of the additional evidence, am I myself satisfied that the verdict of the jury was safe and satisfactory?”[27]

68.  Although the conclusion the Court of Appeal must reach in respect of this basis for allowing an appeal should be expressed in the language of the statute that does not mean that in reaching this conclusion other pathways of reasoning are not open to it.  Thus, despite the efforts of some to determine the merits of this ground by a strict adherence to the language of the statute, Courts of Appeal have been reluctant to abandon completely Lord Widgery’s statement in Cooper.  Even in Stafford, Lord Kilbrandon was lured into explaining the basis for allowing the appeal. He said:

“The setting aside of a conviction depends on what the appellate court thinks of it – that is what the statute says. If it were necessary to expand the question which a member of the court, whose thoughts are in question, must put to himself, it may be, ‘Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?’”[28]

69.  Notwithstanding that the courts have emphasised the importance of not placing any constraint on the language of section 83(1)(a) and notwithstanding that they have eschewed any attempt at an exhaustive interpretation of it, they have not completely shrunk from explaining how a Court of Appeal may go about the task of applying it.

70.  In Pendleton Lord Hobhouse of Woodborough, in a separate concurring judgment, discussed how the Court of Appeal carries out its task of determining whether a conviction was safe.  He said:

“38. It does not help and is in principle wrong to seek to explain or put a gloss on the words of s.2 of the Act. ‘Unsafe’ is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description 'unsafe'. It involves a risk assessment.”[29]

71.  These observations were cited with approval by our Court of Appeal in HKSAR v Ling Kam Wah[30].

72.  Assistance on how this risk assessment may be conducted can be derived from Viscount Dilhorne’s judgment in Stafford.  He said in respect of fresh evidence on appeal cases:

“…I do not think that it is established as a rule of law that, in every fresh evidence case, the court must decide what they think the jury might or would have done if they had heard that evidence. That it is a convenient approach and a reasonable one to make, I do not deny. When a court has said that, it means and can only mean that they think that the fresh evidence might have led to a different result to the case, and that in consequence the verdict was unsafe or unsatisfactory.”[31] (Emphasis added.)

73.  These comments resonate with one of the reasons articulated in the Australian cases for not applying the proviso and that is whether by what took place at trial the appellant has lost a chance which was fairly open to him of an acquittal.  This factor was also relied upon by the Court of Final Appeal in Yuen Kwai Choi v HKSAR[32]. 

74.  In his judgment in Stafford, Lord Kilbrandon accepted that a permissible route by which the appellate court could reach its view of the safety of the conviction was to consider what impact the fresh evidence could have on the jury.  He said:

“… We were referred to a number of cases in which, it was said, the potential effect on a jury rather than the actual effect on the appellate judges was held to be the proper test. I agree that this test may be one of the routes which a judge may follow in making up his mind; he may say to himself, ‘I think this verdict is unsafe, because the fresh evidence might have caused a jury to have reasonable doubt.’ But, in my opinion, he cannot say to himself, ‘After hearing the fresh evidence I have no reasonable doubt of the appellant's guilt, but I concede that a reasonable doubt is open, and might influence someone else, that is, a jury.’ To concede that a reasonable doubt is open is to admit that one has a reasonable doubt oneself. Having a reasonable doubt, one must ‘think’ that the conviction is unsafe; on the other hand, being convinced, as the Court of Appeal was in the present case, that ‘the inference of guilt is irresistible,’ they could not think that the conviction was unsafe or unsatisfactory, and therefore had no statutory power to interfere with the verdict.”[33]

H.8    The unfair trial category of an unsafe conviction

75.  This brings us to the second area where the unsafe or unsatisfactory basis for allowing an appeal has been employed.  For want of a better term we shall categorise these cases as “fair trial” cases. 

76.  In Wilde v The Queen, a judgment of the High Court of Australia, Deane J, in a dissenting judgment, explained why a major defect in a trial which rendered it unfair could be an unsafe conviction or, in the language of the Australian statute, a miscarriage of justice.  In doing so he was expanding on the comment of the majority which is set out at [82] of this judgment.  He said:

“ The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s. 6(1) - which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, ‘if it considers that no substantial miscarriage of justice has actually occurred’ - does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been ‘no substantial miscarriage of justice’ in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a ‘relevantly’ fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought.”[34]

77.  The same point was made by the Privy Council in Michel v The Queen.  The judgment of the Board was handed down by Lord Brown of Eaton-Under-Heywood.  The Board was dealing with judicial misbehaviour in the form of excessive interventions and inappropriate remarks.  He said:

“26 If, in the context of a fairness challenge, the sole touchstone of a safe conviction - or more particularly, in the terms of article 26(1) of the Court of Appeal (Jersey) Law 1961, of a ‘substantial miscarriage of justice’ - was whether the appeal court could be satisfied that the jury (here the jurats) would inevitably have come to the same conclusion even without the judge's inappropriate interventions, it might be difficult to upset this verdict: the case against the defendant was in truth a formidable one.

27 There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. This wider principle is not in doubt. Perhaps its clearest enunciation is to be found in the opinion of Lord Bingham of Cornhill speaking for the Board in Randall v The Queen [2002] 1 WLR 2237, 2251, para 28 where, after remarking that ‘it is not every departure from good practice which renders a trial unfair’ and that public confidence in the administration of criminal justice would be undermined ‘if a standard of perfection were imposed that was incapable of attainment in practice’, Lord Bingham of Cornhill continued:

‘But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.’

28 Lord Bingham was, of course, right to recognise that by no means all departures from good practice render a trial unfair. So much, indeed, was plainly implicit in the judgment of the European Court of Human Rights in CG v United Kingdom (2001) 34 EHRR 789 which rejected the complaint that the trial proceedings as a whole were unfair notwithstanding the court’s finding that the judicial interventions had been ‘excessive and undesirable’. Ultimately the question is one of degree. Rarely will the impropriety be so extreme as to require a conviction, however safe in other respects, to be quashed for want of a fairly conducted trial process.”[35]

78.  Thus, if what transpired in the course of the trial undermines its fairness to such an extent that the Court of Appeal cannot be satisfied that the appellant received a fair trial then, irrespective of the strength of the evidence implicating the appellant, the conviction will not be regarded as safe. 

H.9    Section 83(1)(a) and the proviso

79.  We turn now to consider the interplay between s 83(1)(a) and the proviso and to the question of whether the proviso can be employed to save a conviction which the Court of Appeal concludes is unsafe or unsatisfactory.  In Stafford Viscount Dilhorne said without further elaboration:

“ It is well settled that the Court of Appeal should only apply the proviso to section 2(1) if it is of the opinion that, if the jury had been properly directed, it would inevitably have come to the same conclusion. While, of course, the proviso cannot be applied where the court thinks the verdict unsafe or unsatisfactory, …”[36]

80.  In Maguire Stuart-Smith LJ explained why Viscount Dilhorne’s observation in Stafford that the proviso could not be employed to save an unsafe conviction, was correct.  He said:

“If the court is persuaded to think that a verdict is unsafe and unsatisfactory then, as Viscount Dilhorne has observed, at p.893G, the proviso cannot be applied. This is because the thought that a verdict is unsafe or unsatisfactory cannot co-exist with the consideration that no miscarriage of justice has actually occurred. If a court are persuaded that a verdict is unsafe and unsatisfactory, then they may go on to consider whether the interests of justice require that a retrial should be ordered under section 7(1) of the Act of 1968.”[37] (Emphasis added.)

81.  Maguire is particularly relevant to the situation in respect of this applicant as it involved a ground of appeal which might fall under the (a) or the (c) limbs of section 83(1).  In Maguire the ground of appeal was material non-disclosure by the prosecution and there was argument before the Court of Appeal whether this ground of appeal came within the (a) limb or the (c) limb and whether that made any difference to the outcome of the appeal. Stuart-Smith LJ made the following observations:

“The outcome of the debate as to whether non-disclosure of material is an irregularity within ground (c) or is a feature which can render a conviction unsafe or unsatisfactory under ground (a) has, as it seems to us, no consequence in regard to the result (as opposed to the route) of an appeal. This is because of the proviso. If the court is unable to hold ‘that no miscarriage of justice has actually occurred’ in a case of irregularity then, as in Reg v Paraskeva, 76 Cr App R 162, the conviction is not ‘safe’. If it does so hold, then the court is effectively saying that the conviction is safe and satisfactory.”[38]

We find the logic of this observation compelling.

82.  In respect of the unfair trial category of cases the position is quite clear.  We have already quoted at [76] of this judgment the strong comments of Deane J in Wilde v The Queen.  On this issue he and the majority were speaking with one voice.  The majority said:

“… the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being ‘plunged into outworn technicality’ (the phrase of Barwick C.J. in Driscoll v The Queen (18)); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

…

There is no rigid formula to determine what constitutes such radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted.”[39]

83.  The position in England is the same, as can be seen from the comments of Lord Brown in Michel that are quoted at [77] of this judgment.

84.  Finally, we should mention the more recent Privy Council case of R v Cassell[40] where the judgment of the Board was delivered by Lord Hughes.  It was an appeal from Montserrat whose Supreme Court Act contains, in section 39(1), identical provisions to our section 83(1).  The Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appeal by applying the proviso. In this context, Lord Hughes said:

“It is therefore necessary for the Board to apply itself de novo to the grounds now advanced. There can only be one conclusion. Subject to the question of the proviso (below) the convictions can only be regarded as unsafe and unsatisfactory.”[41]

In so far as this comment might suggest that an unsafe conviction could be saved by application of the proviso, it was of some concern to us.  But, after a careful study of his judgment, we are not persuaded that is what Lord Hughes meant. 

85.  In this case the Board was dealing with “extensive misdirections allied with doubtless well-intentioned but quite improper judicial comment which was likely to influence the jury and lead to it not doing its job properly”^[42]. Although Lord Hughes did not discuss the other bases for allowing an appeal, clearly these types of flaws in the trial process would readily fall into the errors of law and material irregularity bases for allowing an appeal.

86.  Lord Hughes went on to discuss whether recourse could be had to the proviso and his reasoning for not applying it in the circumstances of this case is apparent in the following excerpt from his judgment:

“[28] The test for whether a miscarriage of justice has actually occurred is not simply whether the appellate court is itself persuaded of guilt. That would be to substitute trial by appeal judges for trial by jury. True it is that the responsibility for applying or rejecting the proviso is laid squarely on the appellate court. That the appellate court is satisfied of guilt is certainly necessary, but is not by itself sufficient. The test is normally whether the appellate court is, further, satisfied that any jury acting properly must inevitably have convicted the defendant if the flaw(s) in the proceedings had not occurred: see R v Lundy [2013] UKPC 28; [2014] 4 LRC 561, [2014] 2 NZLR 273 (paras [160]- [162]), and the cases there reviewed.

[29] It may be that there can be imagined cases in which the trial process is so perverted that an appellate court would be driven to the view that there was a miscarriage of justice even if satisfied that any jury would inevitably have convicted the defendant if the trial had been properly conducted. It is not necessary to attempt to define such cases; plainly this question will be fact specific and a matter of degree. It is possible that an example might be the bribery of the jury, or a case in which the jury was dismissed and the court purported to record a verdict of guilty of its own motion. But cases of this sort will be very unusual. Ordinarily the whole point of the proviso is that it falls to be considered precisely because there has been some significant defect, which may include unfairness to the defendant, in the trial.

[30] However, short of such unusual cases of a wholly perverted trial process, it is plainly true that the more minor the error the easier it is likely to be for the appellate court to address and answer the question whether any jury must inevitably have convicted if the error had not occurred. Conversely the more extensive the error(s) at the trial, the more difficult it is likely to be to be sure that any jury must have convicted, and indeed there sometimes comes a point where the appellate court does not even embark on an analysis of the proviso question, the answer being obvious and/or the view being taken that it would plainly be a miscarriage of justice, because unfair, to sustain the conviction. Randall v R [2002] UKPC 19, [2002] 5 LRC 678, [2002] 1 WLR 2237, and Michel v R [2009] UKPC 41, [2010] 3 LRC 640, [2010] 1 WLR 879, where the defendant was unable properly to present his evidence because of continual unfair interruptions, in the former case from counsel for the Crown and in the latter from the judge, were two such cases.

[31] The present is not a case in which the trial process was so perverted that there would be a miscarriage of justice even if any jury in a proper trial must have convicted. This is a case of extensive misdirections allied with doubtless well-intentioned but quite improper judicial comment which was likely to influence the jury and lead to it not doing its job properly. It is not a case in which it is impossible to address the proviso question, but it is one where the errors are so pervasive that it is difficult to be satisfied that any properly directed jury must have convicted.”[43]

87.  It is clear from [31] of this judgment that Lord Hughes is finding that the flaws that took place in this trial did not fall into the unfair trial category of the unsafe basis for allowing an appeal. That basis, Lord Hughes accepted, would not allow for the application of the proviso.  It seems to us that he is saying that these flaws were of the kind to which, in theory, the proviso could be applied but that in applying the proviso test to them the only conclusion was that the conviction could not be upheld.  For this reason, although the Board concluded that these flaws so infected the fairness of the trial that they rendered the verdict of the jury unsafe, we do not believe that Lord Hughes was saying or assuming that the proviso could be employed to uphold an unsafe conviction.

H.10  A summary of the case law

88.  It is not possible to lay down an exhaustive list of circumstances where the unsafe or unsatisfactory basis for allowing an appeal will be made out.  Although the case law does make clear that there is no restriction on the type of matter or circumstance that may ground a finding that a conviction is unsafe, there are two clear types of appeal that regularly appear in the cases.  They are evidential cases and fair trial cases.  Each has its particular concerns.  In respect of the former the Court of Appeal must be alert to not intruding into the role of the jury; in respect of the latter the Court of Appeal must only overturn the verdict of the jury where the flaws in the proceeding are of such an extremely serious level that they compel the Court of Appeal to the view that what took place was not the fair trial to which every accused is constitutionally entitled. 

89.  Because the conviction is found to be unsafe it is not possible for the Court of Appeal to conclude that “no miscarriage of justice has actually occurred.”  Clearly, for the Court of Appeal to conclude that a miscarriage of justice has occurred any errors of law or material irregularities that have taken place will have to be capable, either singularly or cumulatively, of having a very substantial impact on the trial.  Each appeal will have its own factual circumstances and it will be for the Court of Appeal to consider in each case whether it can conclude that the conviction is safe.

90.  The following principles can be distilled from our discussion of the case law:

(i)  in order to determine whether a conviction is unsafe or, to reverse the question as Lord Diplock did in Stafford, is safe, the members of the Court of Appeal must ask themselves the question whether, under all the circumstances, they are satisfied that the verdict of the jury is unsafe or unsatisfactory or is safe and satisfactory;

(ii)  there is no universal test that can be employed to answer this question;

(iii)  there is no limitation or restriction on the type of matter that might cause the Court of Appeal to conclude that the conviction is unsafe;

(iv)  in addressing this question, particularly in evidential cases, the Court of Appeal must be conscious that it is not determining the guilt or innocence of the appellant and be alert to not usurping the function of the jury.  At all times the focus of the Court of Appeal’s attention must be on the conviction and whether it is safe;

(v)  a conviction may not be safe even if the Court of Appeal has no doubt about the sufficiency of evidence to support it, if the verdict was reached by a trial process so flawed that the accused cannot be said to have received a fair trial;

(vi)  if the Court of Appeal finds that the conviction is unsafe or unsatisfactory it may not have recourse to the proviso.

H.11  Wrong decision of law (s 83(1)(b)) and material irregularity (s 83(1)(c))

91.  For both these bases for allowing an appeal the Court of Appeal has to form a particular view.  It has to think that, in respect of the wrong decision on the question of law, the judgment of the court of trial should be set aside and, in respect of the irregularity, that it is material.  Thus, it is not every wrong decision on a question of law that will be a basis for allowing the appeal but only a wrong decision that causes the Court of Appeal to think that the judgment of the trial court should be set aside; and it is not every irregularity that occurs in the course of the trial that will be a basis for allowing the appeal but only an irregularity that the Court of Appeal thinks is material.  If the Court of Appeal so thinks in respect of the wrong decision on a question of law or the irregularity then, subject to it thinking that the wrong decision or material irregularity does not render the conviction unsafe, it will have regard to the proviso to consider whether, notwithstanding that the requirements of section 83(1)(b) or (c) are met, no miscarriage of justice has actually occurred.

92.  If any error of law and/or material irregularity is of such a level of seriousness as to prevent the Court of Appeal from concluding that no miscarriage of justice has occurred then they will render the conviction “unsafe” for the purpose of section of 83(1)(a).  In a sense, they are simply “different sides of the same coin.”  This point was made by Stuart-Smith LJ in Maguire when he said:

“The outcome of the debate as to whether non-disclosure of material is an irregularity within ground (c) or is a feature which can render a conviction unsafe or unsatisfactory under ground (a) has, as it seems to us, no consequence in regard to the result (as opposed to the route) of an appeal. This is because of the proviso. If the court is unable to hold ‘that no miscarriage of justice has actually occurred’ in a case of irregularity then, as in Reg v Paraskeva, 76 Cr App R 162, the conviction is not ‘safe’. If it does so hold, then the court is effectively saying that the conviction is safe and satisfactory.”[44]

93.  In HKSAR v Howard Kenneth McCall our Court of Appeal relied on comments by Lord Hobhouse and Lord Millett in Ramstead v R[45] on the interplay between the material irregularity basis for allowing an appeal and the proviso.  Stuart-Moore VP, in giving the judgment of the court said:

“70. Mr Tam reminded us of the way Lord Hobhouse and Lord Millett, in their dissenting opinion in Ramstead v The Queen [1999] 2 AC 92 at 108, expressed the matter touching upon the precise issue raised in this ground of appeal. This was not controversial, and fell outside the realms of dissent, and was as follows:

‘… The Court of Appeal are required by statute to consider whether a miscarriage of justice has occurred. It is only irregularities which have led to a miscarriage of justice which permit the Court of Appeal to allow an appeal against conviction. Of course a conviction entered after an unfair trial will ordinarily involve a miscarriage of justice (or, in the English terminology, be unsafe). But in every case an exercise of evaluation has to be undertaken by the appellate court. The conduct of criminal trials cannot be categorised in black and white terms. The common place task of a criminal court of appeal is not to assess whether the criticisms which have been made of the trial are wholly without foundation (they may be) but whether they amount to an unfairness sufficiently substantial in the context of the trial as a whole to lead to the conclusion that there has been a miscarriage of justice (or that the verdict is unsafe). Not every summing up is impeccable: not every exercise of discretion is wholly beyond criticism. The judge has the conduct of the trial and the mere ability to criticise him no more invalidates the outcome than the ability to criticise the verdicts of the jury; it is still necessary to ask whether there has been a miscarriage of justice (or whether the verdict was unsafe).

This equally applies to irregularities. They may be of a minor character or have a character of which a more serious view must be taken. Some irregularities may be so fundamental as necessarily to invalidate the verdict (as, for example, the improper acceptance of a verdict which is not unanimous).’

There can be no doubt, with respect, that this correctly expresses the approach to be taken by a Court of Appeal to irregularities which have occurred at the trial stage.”[46]

94.  Much the same can be said of the wrong decision of law basis for allowing an appeal.  Clearly, for the wrong decision on any question of law to cause the Court of Appeal to think that the judgment of the trial court should be set aside, the wrong decision will, like the irregularity, also have to be material.  We are of the view that in this context material must mean an irregularity or wrong decision of law that is significant in the sense of impacting substantially on the issues to be resolved by the jury or of being capable of affecting the outcome of the trial or of depriving the appellant of his right to a fair trial.  If it is not then the Court of Appeal may conclude that that there is no basis for allowing the appeal.  It is only if they are capable of causing a miscarriage of justice will they provide a basis for allowing the appeal and will there then be a need for the Court of Appeal to consider whether to apply the proviso.

H.12  The appellant’s appeal: Section 83(1)(a)

95.  In applying these principles to the present case, we note that it is not an evidence based appeal nor is it an unfair trial appeal.  It is an appeal that is concerned with a failure to give a legal direction in respect of a particular type of evidence. This non-direction clearly is an irregularity that has occurred in the course of the trial but, equally clearly to us, it is not of such a serious level as to cause us to think that the conviction is unsafe.  Assuming, without deciding, that the non-direction is also a wrong decision on a question of law, for the same reasons we would also conclude that the conviction is unsafe.

96.  We shall now address the question of whether there is a basis for allowing the appeal under section 83(1)(b) or (c).

H.13  The appellant’s appeal: Section 83(1)(b) and (c) 

97.  There is no doubt that this was a strong case with a considerable body of evidence that supported the testimony of Lui.  Even the appellant was forced to admit he had a drug relationship, as customer, with PW4 and “Fu Chai” and that, in an extraordinary coincidence, he happened to be at the logistics company in the Mainland just as the drugs were being packaged.  It is no wonder his evidence was not believed.

98.  The evidence that went to support Lui has been set out earlier in this judgment and we shall not repeat it other than to mention two very powerful pieces of evidence.  This was, firstly, the statement made by “Fu Chai” to Lui that the appellant was involved in packing the ketamine in the Mainland.  Secondly, that he happened to be at the logistics company that coincidentally was used by the drug traffickers and was present at it when, coincidentally, the traffickers were packing a consignment of ketamine and, again coincidentally the adhesive strips that he was helping to tear off, which came to bear his finger and palm prints, were used on the drug package.

99.  As important as Lui was to the prosecution case there was a considerable body of other, very compelling, evidence that proved the appellant’s participation in this conspiracy.  This other evidence provided support for her testimony and made it more credible. 

100.  But the court is concerned not just with the volume of evidence implicating the appellant but also with how the jury’s reasoning process in assessing and evaluating that evidence might have been affected by the error that took place at trial, especially where the error related to something said or not said by the judge in his summing-up.  If the error impacts significantly upon the reasoning process of the jury in their assessment of the evidence, including the credibility of witnesses, the Court of Appeal will most likely think that the irregularity is material and/or the wrong decision on a question of law is so significant that the verdict of the jury should be set aside and may not be able to conclude that “no miscarriage of justice has actually occurred.”

101.  In this trial the key task for the jury was to assess the credibility of Lui as a reliable and truthful witness.  In this respect there can be no doubt that the judge, and the parties, emphasised the importance of Lui to the prosecution case.  The judge, in a ruling, described her as the “be all and end all of the prosecution case”.[47] The prosecutor told the jury in his closing address that they had to be sure that Lui was telling the truth and that even though she had good reason to lie “It all depends on whether she is deemed to be an honest and reliable witness.”  He concluded his address by saying:

“That’s all I really want to say about this case. Just in conclusion, as I say, the prosecution puts Ms Lui Mei-yi forward as an honest and reliable prosecution witness. She is certainly not a perfect woman. She was on her own initiative or as her own testimony said, she was quite prepared or volunteered to become a drug trafficker. She wasn’t forced to get involved. Her life as a clerk was boring and she wanted to become a drug trafficker and earn money. She had been in trouble with the police before for deceptions and even for misleading the police. You will have to take these things into consideration when you’re deciding whether she was telling you the truth or not.

She has received a lengthy sentence for her involvement in this case and clearly she wants to get that sentence reduced so that she doesn’t -- so that she can spend less time in prison than she is currently serving. But, as I say, as I said at the start, before she can do that, she has to prove or has to give true -- give full and true evidence. Telling lies, making up stories, is not true -- is not full and true evidence and, in fact, likely to result in her getting an even longer prison sentence if she is found to be telling lies.

So, as I say, in the conclusion, the prosecution says that you can rely upon Ms Lui as an honest and reliable and credible witness and in doing so the prosecution says you will have no difficulty in finding the defendant guilty of the charge of conspiracy. Thank you.”[48]

102.  Defence counsel in his closing also emphasised the importance of Lui to the prosecution case, saying:

“And with regard to the prosecution case, the prosecution have told you in the opening and the closing that the main witness is Lui Mei-yi and she was put forward as an honest, truthful and reliable witness. …”[49]

103.  He concluded his address by saying:

“In this particular case, the prosecution heavily relies on the evidence of Lui Mei-yi. Without her evidence, you cannot convict.”[50]

104.  The only evidence of the retail conspiracy came from Lui.  The jury could not find the retail conspiracy proven to the criminal standard unless they believed Lui.  They were given, on numerous occasions, directions on the standard of proof.  There can be no doubt that they would have been well aware that they could not act on Lui’s evidence unless they were satisfied beyond reasonable doubt that it was reliable and truthful.  That being so, the jury must have been sure Lui was telling the truth in respect of her early involvement with the appellant.  The requirement of the uncharged acts direction that the jury be told that they cannot act on the evidence of the uncharged acts unless they are sure that evidence true, was satisfied. 

105.  The next question is whether there was any risk that the jury would, having found Lui’s testimony of the retail conspiracy to be true, reason that belief in that part of her evidence would make it more likely that what she said in respect of the importation conspiracy was likely to be true.  In the situation where the only source of the uncharged acts evidence is also the main source of the charged act evidence, care must be taken not to confuse propensity reasoning with legitimate reasoning.  For example, there is nothing wrong with the jury reasoning:

“We believe Lui in respect of the retail conspiracy, for which there is no independent supporting evidence; we shall also believe her in respect of the importation conspiracy as in respect of that conspiracy there is substantial independent supporting evidence.”

We do not see how, in the circumstances of this case, there was any risk of impermissible propensity reasoning by the jury. 

106.  We are of the view that the non-direction by the judge in respect of the uncharged acts part of Lui’s evidence, whilst an irregularity, was not material.  The irregularity not being material, there is no basis for us to allow the appeal.  Assuming, without deciding, that the non-direction is also a wrong decision on a question of law, for the same reasons we do not think that this non-direction was sufficiently serious to cause us to think that the judgment of the court of trial should be set aside. 

H.14  The proviso: the test for its application

107.  Should we be wrong in thinking that the requirements of section 83(1)(b) and (c) have not been met and there is no basis for allowing the appeal we shall consider whether, if we had been persuaded to the contrary, we would have nevertheless applied the proviso and dismissed the appeal.  The test for determining this issue has been formulated as:

“… whether a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion. … The reasonable jury is a hypothetical jury, not the jury that convicted the appellant.”[51]

108.  In applying this test the court will look to see whether the error of law or material irregularity may have affected the outcome of the trial.  It will not be possible for the Court of Appeal to conclude that there has been no miscarriage of justice if, by the failure to afford the accused a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed, the accused may have lost a fair chance of acquittal.[52]

109.  In this respect the way the Court of Appeal and the Court of Final Appeal have approached the use of the proviso where there has been a failure to give a lies direction is particularly relevant and instructive.  In Yuen Kwai Choi v HKSAR Chan PJ, in giving a judgment with which the other members of the court agreed, said:

“55. Counsel for the appellant referred to a number of authorities showing that where a lies direction was required but was omitted by the trial judge, the Court of Appeal would normally be very reluctant to apply the proviso. For example, R v Mok Lun (unrep., Crim App No 502 of 1993); R v Ho Che Chung [1994] 2 HKCLR 250 and R v Wai Wing Sang & Another [1992] 2 HKCLR 23. It is not surprising that this has been the attitude of the Court of Appeal. A lies direction is aimed at warning the jury not to adopt an impermissible reasoning process. Where this is required either as a matter of law or as a matter of practice, and if the judge had failed to give such a direction, there is a risk that the jury might adopt such a reasoning process, and if so, they might not have given the accused's case a fair assessment. This is particularly detrimental to a defendant (as the appellant in the present case) who has the burden to rebut a statutory presumption on the balance of probabilities. His credibility is clearly of crucial importance and where credibility is an important issue and the jury is left with an inadequate or incorrect direction on credibility, the appellate court is reluctant to apply the proviso. See eg White v R (1997) 53 WIR 293 and Barrow v The State (1998) 52 WIR 493, PC.

…

58. If the jury were not warned about the lie told by the appellant in respect of his contact with Liu, it was possible that he might have lost an opportunity of acquittal. See Mraz v R (1955) 93 CLR 493 at p.514; Wilde v The Queen (1988) 164 CLR 365 at pp.371-372. In the circumstances of this case, it simply cannot be said that a reasonable jury, properly directed, would inevitably have come to the same conclusion.”[53]

110.  We note that in HKSAR v Cheung Kim Shing the Court of Appeal declined to apply the proviso where there had been a failure to give an uncharged acts direction.  But, in that case the Court of Appeal regarded the uncharged acts evidence as being of little probative value and being more prejudicial than probative of the applicant’s guilt.  The Court of Appeal concluded:

“The misdirection was fundamental and undermined the safety of the conviction.”[54]

111.  Similarly, in HKSAR v Wong Hei Chit, a differently constituted Court of Appeal declined to apply the proviso in a situation where the prosecution did not lead evidence of uncharged acts but nevertheless alleged that the transportation business in which the applicant was engaged was a front for drug trafficking.  In giving the judgment of the court Macrae JA (as Macrae VP then was) said:

“The issue is finely balanced. However, we have come to the conclusion, not without some hesitation, that we cannot apply the proviso. There was a significant body of evidence adduced by the applicant and his witness to the effect that he operated a genuine transportation business. It was a matter for the jury what they made of that evidence and of the applicant. We cannot say that the jury must inevitably have convicted had they received an appropriate direction that they must not use the imputation that the applicant had previously trafficked in dangerous drugs to decide whether the elements in the two specified counts on the indictment had been made out.”[55]

112.  Clearly, what was important in this case was the credibility of the applicant and there was evidence independent of the applicant which supported his claim that he was operating a genuine transportation business.

113.  In HKSAR v So Tsz Kon[56] the Court of Appeal declined to apply the proviso where there had been a failure to give a flight direction in respect of flight evidence which the prosecution was relying on to prove its case.     

114.  Returning to the present case, the factors that would ordinarily militate against applying the proviso to save the conviction are:

(i)  there was uncharged acts evidence on which the prosecution was positively relying to prove its case;

(ii)  this evidence required a direction which was not given;

(iii)  this evidence impacted upon the credibility of the appellant’s own testimony; and

(iv)  absent an appropriate direction the reasoning process of the jury could have been adversely affected.

115.  Baldly stating them in this way gives the impression that a non-direction on uncharged acts evidence must be an irregularity that is material and must have had such an impact upon the reasoning of the jury that it would not be appropriate to have recourse to the proviso.

116.  But, this is not how the irregularity is to be judged. It is not to be judged in a factual vacuum but rather within the overall circumstances of the case, having due regard to the evidence and the likely effect, assessed realistically, on the jury’s reasoning in reaching their verdict.

117.  As we have earlier indicated, in the unusual circumstances of this particular case we are unable to see how there existed a realistic risk that the jury would act on the evidence of Lui without being sure that she was telling the truth in respect of the events the subject of the charge and the prior events that constituted uncharged acts.  Nor can we see any realistic risk that the jury, having found themselves sure of Lui’s evidence of the uncharged acts evidence, might engage in impermissible propensity reasoning in respect of it when determining the appellant’s guilt on the charge for which he was being tried.

118.  Had we been called upon to consider the proviso we would have considered that no miscarriage of justice had actually occurred and dismissed the appeal.

I.     Disposition

119.  For these reasons we are satisfied that notwithstanding the judge’s failure to direct the jury on the uncharged acts evidence there is no basis under section 83(1) for us to allow the appeal.  The appellant’s appeal against his conviction is dismissed.

[1] See HKSAR v Lam Hing Chit [2020] HKCA 125, at [36] – [40].

[2] Appeal Bundle, page 287L–P.

[3] Appeal Bundle, page 220.

[4] Perfected Grounds of Appeal against Conviction at [11].

[5] [2010] 3 HKLRD 769

[6] [2016] 1 HKLRD 991

[7] Appeal Bundle, pages 7 L-10 G.

[8] Appeal Bundle, pages 10 H-T.

[9] Appeal Bundle, page 13 I-P.

[10] Appeal Bundle, page 80 M-Q.

[11] (1997-98) 1 HKCFAR 107, 147F.

[12] See, for example Christopher Corns, “Criminal Appeals in Hong Kong”, page 253 at 7.4.5. and Andrew Bruce “Criminal Procedure Trial on Indictment” Vol 2, VIII 1.101 at [155].

[13] [1974] AC 878

[14] [1997] HKLRD 15

[15] [1969] 1 QB 267, 271F-G.

[16] [1997] HKLRD 15, 19D-F. This decision, being a Privy Council decision on appeal from the Hong Kong Court of Appeal, remains binding on the Court of Appeal post 1997. See Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117.

[17]  [2000] 4 HKC 641, 649G-I.

[18] [1974] AC 878, 891H-892A.

[19]  [2002] 1 WLR 72, 83 at [19].  This passage was quoted with approval by the Court of Appeal in HKSAR v Ling Kam Wah [2002] 3 HKC 297, 298 at [80].

[20] (1991) 93 Cr App R 287, 313.

[21] In R v Maguire [1992] 1 QB 936 the English Court of Appeal, after discussing the Stafford judgment, said at page 951E-F:

     “We shall address it [ie the question whether the conviction is safe and satisfactory] without any consideration of whether the disjunctively employed words ‘unsafe’ and ‘unsatisfactory’ are or are not tautologous. No one suggested any distinction between them which had any relevance to these appeals.”

[22]  Ibid, at 955H-956A.

[23] See, for example, HKSAR v Chan Shu Ho [2008] 5 HKLRD 796.

[24] [2013] 1 Cr App R 14, 217 at [14].  However, it should be noted that in England the equivalent of our section 83(1) has been amended so that there is now only one basis for the Court of Appeal to allow an appeal and that is that the conviction is unsafe.  This provision does not have a proviso empowering the Court of Appeal to save a conviction if satisfied that there is no miscarriage of justice.   

[25] (1991) 93 Cr App 287, 311.

[26]  [2002] 1 WLR 72, 82H-83F.

[27] [1974] AC 878, 906F-G.  In R v Maguire [1992] 1 QB 936, 951E Stuart-Smith LJ said:

     “We have ourselves not found it helpful to seek an answer to the question of whether we think the verdicts were unsafe or unsatisfactory by posing some other question.  The statutory question is only and always that put by Lord Diplock.  No party argued otherwise and it is that question alone that we shall address.”

[28] [1974] AC 878, 912B-C.

[29] [2002] 1 WLR 72, 90 at [38].

[30] [2002] 3 HKC 297, 299 at [80].

[31] [1974] AC 878, 893B-C.

[32] (2003) 6 HKCFAR 113, 133 at [58], applying the judgment of the High Court of Australia in Mraz v R (1955) 93 CLR 493.

[33]  [1974] AC 878, 912D-G.

[34] [1987-88] 164 CLR 1 365, 375-376.

[35] [2010] 1 WLR 879, 886C-887A, at [26]-[28].

[36] [1974] AC 878, 893G.

[37] [1992] 1 QB 936, 951G-H.

[38] Ibid, at page 957E.

[39] [1987-1988] 164 CLR 365, 372-373. See also the observations of the Deane J at pages 377-378 on why the proviso could not be used to save a conviction in respect of which there was overwhelming evidence and no real defence but which was the product of an unfair trial. 

[40] [2017] 2 All ER 904 at 914 [27]-[31].

[41]  Ibid, at 913d, [24].

[42]  Ibid, at 914j-915a, [31].

[43] Ibid, at 914d-915a, [28]-[31].

[44]  [1992] 1 QB 936, 957D-F.

[45] [1992] 2 AC 92 at 108

[46] CACC 81/2006, unreported, 14 November 2007.

[47] Appeal Bundle, page 348 E-G.

[48] Appeal Bundle, page 293 E-O.

[49] Appeal Bundle, page 303 C-D.

[50] Appeal Bundle, page 306G-H.

[51] Ewan Quayle Launder v HKSAR (2001) 4 HKCFAR 457 at 471, [61].  In Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at 132, [54] the Court of Final Appeal said of the verdict of the actual jury:

     “Although the test anticipates the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor - albeit not conclusive - to be taken into account in considering what the view of the hypothetical reasonable jury would be.”

[52] Wilde v The Queen (1988) 164 CLR 365 at 372, applied in Yuen Kwai Choi v HKSAR at [58].

[53] (2003) 6 HKCFAR 113 at 133, [55] and [58].

[54] [2017] 1 HKLRD 60, 76 at [56].

[55] [2017] 1 HKLRD 928, 940 at [37].

[56] [2015] 3 HKRD 169