HKSAR v. YU FAI TAT

CACC 41/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 41 OF 2015

(ON APPEAL FROM HCCC NO. 166 OF 2014)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  The applicant was convicted before Deputy Judge Wilson Chan and a jury (by a majority of 5:2) of a single count of trafficking in a dangerous drug, namely 66.70 grammes of a crystalline solid containing 65.60 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced to 9 years and 9 months’ imprisonment. He applied for leave to appeal his conviction.

2.  On 13 November 2015, we dismissed the application for leave to appeal against conviction and said we would hand down our reasons in due course.

The prosecution case

3.  At about 5:45 pm on 3 October 2013, a team of police officers from the District Special Duties Squad, Mong Kok went to the rear staircase between the 11^th floor and the rooftop of an address in Fa Yuen Street, Mong Kok to make observation of persons entering or leaving Room B on the 11^th floor.  PC33116 (“PW1”) took up a position at the rooftop, from where he could observe the windows of Room B which faced the light-well.

4.  The prosecution relied heavily on the evidence of the main prosecution witness, PW1, in relation to the identification of the applicant.  This witness testified that, from his position on the rooftop, he heard a banging sound, which lasted for two to three minutes, at the time when his colleagues were attempting to force open the front door of Room B.  At the same time, he saw a person of thin build with short hair, wearing a white T-shirt, open the window of Room B and throw a blue box out into the light-well.  He said of the lighting conditions at the time that he could see clearly.  PW1 immediately, through his beat radio, informed his colleagues of what he had seen and remained in position to keep observation on the light-well area until he saw another police officer appear at the window of Room B.  He then went down to the light-well where he found two team members waiting for him to conduct a search.  The blue box was retrieved and found to contain suspected dangerous drugs, the subject-matter of the count on the Indictment.

5.  At about 7:13 pm, PW1 entered Room B, where he pointed out the applicant as the person who had thrown the blue box.  At the time, the applicant was wearing a white T-shirt.  There were only two other civilians in the unit: a woman, and a man wearing a black T-shirt.

6.  No issue was taken by the defence that the blue box was retrieved from the light-well, or that it contained the dangerous drugs in question.  The prosecution relied, therefore, on PW1’s identification of the applicant and on the circumstances that at the time the applicant threw the box, he must have known it contained dangerous drugs, and that the contents, by virtue of their weight and value, cannot have been for his own consumption.  PC 59024 (“PW2”) testified that during the course of prising open the front door of Room B, he heard someone inside the room saying, “Cops, quick, cops”, and shortly afterwards, “Quickly, fix the things”.  He managed to open the door slightly and saw that there was a metal pipe placed horizontally across the inside in order to prevent the door from being opened.  It eventually took the police party one or two minutes to gain entry.

7.  As to the quantity and retail value of the dangerous drug seized, it was not disputed that a total of 66.70 grammes of crystalline solid containing 65.60 grammes of methamphetamine hydrochloride was seized, with a street value of HK$45,156.

The defence case

8.  The applicant elected not to give evidence and called no witnesses.  Other than attacking the accuracy of PW1’s identification and the police witnesses’ credibility generally, the defence case relied on the applicant’s exculpatory statements, recorded in the notebook of PW2 and in his subsequent video recorded interview conducted by the same officer; as well as on matters admitted on his behalf by way of Admitted Facts.

9.  In his video recorded interview, the applicant told the police that at about midday on 3 October, he had contacted a person called “Vanilla” in order to buy some heroin.  Accordingly, he went to the doorway of the address in question and paid $200 for a quantity of heroin sufficient for his own consumption.  He returned to Room B later that day at about 6 pm, intending to purchase another $200 worth of heroin for his own consumption.  This time, he was invited into Room B.

10.  The applicant asserted that he had entered Room B about 15 minutes before the police arrived.  He further maintained that he was in the toilet when he heard a banging sound.  He came out of the toilet to find the police breaking into the flat.  Whilst he was in the flat, he did not see the blue box, nor did he see anyone throw it into the light-well.

11.  There were Admitted Facts to the effect that the applicant was neither the owner nor the tenant of the flat; and that none of the applicant’s fingerprints were found on any of the exhibits seized inside the premises on which examination was conducted, whilst those of other suspects were so found.[1]  The jury were further addressed by defence counsel at trial on the basis that no keys to the flat or any belongings linking the applicant with the premises were found on his person or inside the flat.[2]

Grounds of appeal against conviction

12.  Mr Bullett, on behalf of the applicant at this appeal, argued four grounds of appeal.  First, it was submitted that the judge did not tell the jury that if the defence was or might be true, then the applicant should be acquitted. Instead, he directed that if the explanation in the applicant’s record of interview might be true, he should be acquitted (Ground 1).

13.  To understand the subtlety of this distinction, it was allied to another ground of appeal to the effect that the judge failed to summarise the defence case and/or the points supportive of the defence case made in defence counsel’s closing address to the jury (Ground 4).  Thus, the thrust of the complaint is that there was a danger in the judge’s direction that the jury might have thought the defence rested entirely on the exculpatory parts of the record of interview.

14.  It should be borne in mind that the applicant did not give evidence in his defence, while the record of interview, which was a ‘mixed statement’ containing no admissions of knowledge or possession of the dangerous drugs in question, and in fact including a denial of seeing the box of drugs or anyone throwing it out of the window, was produced without challenge.  The judge was perfectly correct to say of that record of interview:

“If you find that there may be some elements of truth in the defendant’s explanation and if there is a reasonable doubt, you give the benefit of the doubt to the defendant. Even if you reject his explanation completely, you still have to go through the prosecution’s evidence and satisfy yourself beyond reasonable doubt on all the ingredients of the offence.”

15.  As for failing to repeat various points made in trial counsel’s closing address, the reality is that counsel’s speech was given on 12 January 2015, while the summing-up was delivered the following morning.  Defence counsel had specifically reminded the jury in his closing address that (i) the applicant was neither the owner nor the tenant of the flat in question; (ii) that there was no evidence the applicant had any keys to the premises; (iii) that the applicant only had HK$156.60 on his person when arrested (Exh P27), whereas the lady in the flat, known as “Vanilla”, possessed HK$20,100 (Exh P42); (iv) that no fingerprints of the applicant were found on any of the exhibits seized from the premises and subsequently examined for fingerprints.  Even if the judge did not mention these matters specifically in his summing-up, they were either undisputed or included in two sets of Admitted Facts, which the jury would have had with them when they retired, and which the judge correctly told them they must accept as being true.

16.  We do not accept, on any sensible reading of the summing-up as a whole, that the jury could conceivably have thought that the evidence in support of the defence was confined to the matters articulated in his video recorded interview.  The jury were told repeatedly to have regard to all of the evidence[3], that the onus of proof was on the prosecution[4], and that if they thought there was a reasonable doubt, they must give the applicant the benefit of that doubt.[5] In fact, they were told in terms:[6]

“If, having considered all the evidence and having heard the speech by the defence counsel, you find there is a reasonable doubt in this case, then you will have to give the benefit of the doubt to the defendant and acquit him.”

There is no substance in either of these grounds of appeal.

17.  Next, it was argued that the judge did not remind the jury that PW2’s evidence of what he had heard PW1 say over the beat radio from the rooftop was hearsay.  Mr Bullett went so far as to say that the evidence was wholly inadmissible and the jury should have been directed to disregard it (Ground 2).

18.  With respect, the evidence was plainly admissible to explain why the officers in Room B did what they did, and why other officers went to the light-well to conduct a search.  Furthermore, the jury were indeed properly directed about the hearsay nature of PW2’s report of what PW1 had said, in accordance with a specific request from defence counsel to the judge on the matter. The judge’s direction to the jury was as follows:

“Members of the jury, Mr Cheung was quite right in telling you in his speech yesterday that what PW1might have related to his colleagues by way of description of the person who had thrown the box out of the window, whether through the beat radio or, subsequently, at Room B, is hearsay statement which is not admissible to establish the truth of the statement. It is only the evidence of PW1 given in court which is evidence of the defendant having thrown the box out of the window.”

19.  In any event, defence counsel at trial made much of the discrepancies between what PW1 said he said over the beat radio and what PW2 (and PW4) said PW1 had said.  It was a forensic decision for defence counsel to decide how to deal with this evidence, which, although technically hearsay if relied on as to its truth, was not inadmissible per se if it explained other conduct, and we think that he was able to capitalise on a number of inconsistencies, which the judge drew to the jury’s attention in some detail in his summing-up.  The judge directed the jury as follows:

“Members of the jury, the cross examination conducted by Mr Cheung has also brought out a number of inconsistencies between the evidence of PW1 and the evidence of other witnesses. First, according to PW1, the message he conveyed to his colleagues through the beat radio was that someone had thrown something into the light-well. Contrast PW2’s version: “What the person meant was that somebody at the Windsor area had thrown a light (blue?) box in the light-well, the man was wearing a white T-shirt, he was aged about 40 to 50. After he had thrown the thing out of the window into the light-well, then that person went back into the unit”.  This is PW2’s version.

Contrast also PW4, the Exhibits Officer’s version: “I roughly remember a man wearing white, 40 to 50 years old, had thrown a blue box out of the window”. So there are three versions.”

20.  Mr Bullett nevertheless complains that the judge, when reciting PW2’s evidence as to what he had heard from PW1 over the beat radio, did not remind the jury that it was hearsay.  With respect, this submission is wholly unrealistic. First, as we have seen, the judge did give the direction on hearsay in relation to this specific piece of evidence earlier in his summing-up.  Secondly, the evidence had to be recited for the judge to deal sensibly with the inconsistency point (as he did very soon thereafter in his summing-up), which defence counsel had made such an important aspect of his attack on the police evidence.  Mr Bullett may have done things differently, but he was not counsel at trial, who evidently made a conscious tactical decision as to how he was going to use and deal with this evidence.  There is no substance in this complaint.

21.  Finally, it is complained that the judge did not direct the jury that if the applicant had thrown the blue box out of the window in panic, he would not be guilty of intending to traffic in dangerous drugs (Ground 3).  Instead, the judge directed as follows:

“Members of the jury, you may not convict the defendant for trafficking on this basis (namely “dealing with”) unless you are sure the prosecution have proven three things: (1) that it was the defendant who threw the blue box containing the dangerous drugs in question out of Room B, 11^th floor, through the window into the light-well; (2) the defendant knew it was dangerous drugs that he was throwing out; (3) the defendant’s discarding of the dangerous drugs was not actioned by a consumer of drugs, that related to his consumption of them; in other words, the dangerous drugs in question had not been for the defendant’s own consumption.”

Mr Bullett submits that, if the applicant’s action had nothing to do with getting rid of drugs which may have been in his possession for his own consumption, but that he may have acted out of panic at the arrival of the police, he would not be guilty of trafficking, because he was not intending to traffic in any drugs.

22.  We do not accept the correctness of Mr Bullett’s contention that if a man throws a substantial quantity of dangerous drugs out of the window, knowing they are unlawful dangerous drugs, in order to hide them from the police, he is not “dealing with” those dangerous drugs, and thereby trafficking in them.

23.  However, it is not necessary to engage this issue.  The fact is that it was not the applicant’s case that he acted out of panic to conceal the blue box, either not knowing what was inside it or knowing what was inside it but having no intention to traffic in its contents; it was never hinted at in his video record of interview; it was never mentioned by his counsel at trial in his speech to the jury or at any other stage; and it simply does not derive as a reasonable inference from the evidence.  Furthermore, the applicant did not give evidence.  It is not the function of a judge to conjure up fanciful defences (assuming it would even be a defence) and place them before a jury without any credible basis in the evidence.  Quite apart from complicating the summing-up with unnecessary issues which have never arisen, and which have formed no part of the case, it would be an invitation to the jury to speculate.  There is absolutely no merit in this ground of appeal.

24.  In our view, the summing-up was both concise and fair.  Not only did the judge focus the jury’s mind on the real (and relevant) issues which arose at trial, but he went into considerable detail in enumerating the various inconsistencies in the police evidence, which had formed such a significant aspect of the defence attack on the prosecution case.  We do not think there can be any criticism of the summing-up at all.

Conclusion

25.  For the above reasons, we found no merit in the grounds of appeal advanced and, accordingly, refused the application for leave to appeal against conviction.