HKSAR v. TAM KING HON

CACC 31/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 31 OF 2001

(ON APPEAL FROM HCCC 155/2000)

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J U D G M E N T

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Seagroatt J (giving the judgment of the Court):

1. This Applicant seeks leave to appeal against his conviction on the 28 December 2000 and, out of time, against his sentence on 8 January 2001.

2. He had been convicted after a 9-day trial before Nguyen J and a jury of 3 counts of trafficking in heroin. The respective amounts of heroin were 288.78 grams, 144.71 grams and 436.09 grams totaling 869.58 grams. He was sent to prison for concurrent terms of 20 years on each count.

3. The admitted facts relate to the events of the afternoon of 25 February 2000. A private car was seen to stop opposite the taxi stand outside Royal Ascot in Fo Tan, Shatin. Two men, Yuen and Lau alighted. After a short chase Yuen was arrested. He had 2 blocks of heroin which he had abandoned in a taxi he had boarded shortly before the pursuit. Lau was also arrested and found to be in possession of one block of heroin.

4. Meanwhile other officers pursued the private car which they intercepted quickly. This Applicant was the driver and a man, named Ma, was in the rear passenger seat. A Nike sports bag in Ma's possession was found to contain 3 blocks of heroin. Both the Applicant and Ma were charged with trafficking in this heroin which forms the subject of the 3rd count. The Applicant was also charged with trafficking in the heroin of which Yuen and Lau were in possession (counts 1 and 2).

5. The issue at trial was whether the Applicant knew the nature of the contents of the packages which, as far as three were concerned, were in Ma's possession, and in relation to the other three, had been passed by Ma to Yuen and Lau. The co-accused Yuen gave evidence against the Applicant in the trial to the effect that the heroin was handed to him by Ma in the presence of the Applicant, that the Applicant said to two other younger men who had been in the car earlier and when they alighted at the Fo Tan Kowloon Canton Railway Station that they would be "picked up in a while" and "things would be given to them". A male - it turned out to be Ma - then boarded the car. This man then asked Yuen and Lau how much stuff they wanted. Yuen asked for and was given 2 blocks of 'white powder'. The Applicant then asked Yuen and Lau if they had them 'properly placed'. Yuen told him it was done.

6. The other strong evidence against the Applicant was in the form of a video-recorded interview of which the jury also had a transcript to assist them. Some of the answers given by the Applicant were clear admissions that he knew the packages in the car contained "white powder" (heroin). He said that he had been asked if he was willing to carry heroin in the car for Ah Chuen (Ma) before he started work for him. When he gave evidence he explained that he was forced to give such answers by a Police Officer or Officers who had threatened and maltreated him. The jury heard his explanation and version of events. They were entitled on the evidence to reach the verdicts they recorded.

7. The grounds of appeal against conviction originally advanced were that the learned trial judge was prejudiced in favour of the prosecution when directing the jury. There is no basis for this. Some of the examples the Applicant gives are not even examples of prejudice. The others have no foundation. The judge's summing up was wholly fair. More detailed grounds of appeal appeared later.

8. The first ground relates to criticism of the trial judge's direction to the jury concerning the videotaped interview. It is clear that the judge directed the jury properly in relation to this and fully and fairly put the Applicant's case in respect of the explanation he put forward for the material answers.

9. The second ground to the effect that the judge held some negative opinion against the Applicant which influenced the jury because he told them they could rely upon the admitted facts, and he gave them a direction on the contents of the video-recorded interview, has no substance. The judge did not advance any "negative opinion" or give any prejudicial direction.

10. As to the third ground the judge's direction as to the standard of proof does justify close examination. He commented on Defence Counsel's reference, in his closing speech to the jury, to a requirement that the jury should be "absolutely sure" of guilt before they could convict. Plainly the word "absolutely" is superfluous because it might have seemed to indicate two possible states of mind, sure and absolutely sure. If Counsel seek to deal with matters of law in their address to the jury they should use strict terms and not indulge in loose language or seek to add their gloss to established and standard criteria. For our part, in the circumstances of this case, we would not have drawn attention to Defence Counsel's use of the word 'absolutely' which was probably a slip in a moment of forensic enthusiasm. What we have found troubling is that the judge went on to say "But the burden of proof is not as high as requiring the prosecution to satisfy you so that you are absolutely sure." This was unfortunate because as we have said it appears to suggest that there are differences between the two states - sure and absolutely sure.

11. We think that for the judge to give any impression that the burden of proof upon the prosecution is not as high as some other hypothetical state of sureness is a misdirection. He should confine himself to a direction that in simple terms that the jury must be sure of guilt in order to convict. The old expression "satisfied beyond a reasonable doubt" is slowly giving way to a simple statement that a jury should be satisfied so that it is sure. That is not to be regarded as other than a high standard of proof and nothing should be said to suggest that there may be a higher standard. That can only dilute the standard of proof required in criminal cases. There is none higher.

12. In saying this we have had regard to the decision in R. v Lee Yuk-Wah & Others [1985] HKLR 193 - in which the Court (at p. 195) was concerned with a direction -

"I should add that you do not have to be certain of a defendant's guilt before you can convict him. Few things are certain in this uncertain world and you can't be certain in a mathematical sense in any case."

The Court attempted to discourage judges from elaborating upon the direction relating to the standard of proof. Barker JA, (at p. 199) remained of the view that to attempt to draw a 'distinction between concepts of certainty and assurance can at best only confuse the jury and more probably mislead it.'

13. Mr Cheung Wai-Sun for the Respondent, in his helpful written submissions, also directed our attention to Archbold (2002 Edn) at §4-385 (d) in particular:

" ... it is well established that the standard of proof is less than certainty. As in ordinary English "sure" and "certain" are virtually indistinguishable, it savours of what the late Sir Rupert Cross might have described as "gobbledygook" to tell the jury that, while they must be "sure", they need not be "certain".

This is a passage with which we agree as indicating the problem in such semantics.

14. Is this a material misdirection which would justify the quashing of the convictions? There is no doubt that throughout the summing up when highlighting the law and the issues, the judge had otherwise been at pains to direct the jury properly as to the burden of proof and it is important to identify those occasions. At page 4 (F-J) of the transcript when dealing with the burden of proof the judge said:

"To what standard or degree must the prosecution prove its case? It is a high standard ... before you can convict ... you must be sure of his guilt ... you must be satisfied so that you are sure ... that is the same thing as being satisfied of his guilt beyond a reasonable doubt."

at K to H :

"If ... you are left with a reasonable doubt about his guilt ... Then you must give him the benefit of the doubt."

and at P to R:

"It is your duty ... if you are sure, if you are satisfied beyond reasonable doubt that he is guilty, then it is your duty to bring in a verdict of guilty in respect of the count on which you are satisfied beyond reasonable doubt."

At page 6 G - in relation to inferences the Judge said:

" ----- you are permitted to draw inferences from facts which you find proved beyond reasonable doubt."

At page 8 (I to K)

"You must nevertheless be satisfied beyond a reasonable doubt that the prosecution has proved its case against the defendant before you can convict him ..."

At page 13 (M-N) the judge quoted to the jury section 4(1)(a) of the Dangerous Drugs Ordinance and in the context of that said:

"In this case you may not convict the defendant unless you are sure that at the place and on the date alleged he trafficked in ... a dangerous drug."

15. At a later stage the jury was supplied with a printed aide-mémoire defining joint enterprise in the context of the case, prepared by the judge. At page 16 (M to N) he said:

"Your approach to the case should therefore be as follows: on each count, if, looking at the case of the defendant, you are sure that he did an act or acts as part of a joint plan ... he is guilty."

16. Finally the judge gave an impeccable direction on the burden of proof immediately before the misdirection [page 23 C-D] saying:

"You have to be sure, members of the jury, you have to be sure that the defendant is guilty before you should convict him. "

17. We have concluded that although the questioned misdirection was a material one ---- it went to a fundamental matter of law ---- the judge had on the occasions identified, given clear, unambiguous and proper directions so that in its overall impact, rather than as a matter of an isolated comment, the summing-up could have left the jury in no doubt as to how they should approach their task in respect of the standard of proof.

18. We would add that the evidence against the Applicant was overwhelming. He was the driver of a car in which blocks of heroin had been distributed to two occupants. One of them had been in the front seat and the Applicant must have been aware of this activity. That co-accused gave evidence against him. There were also the admissions in the video-recorded interview.

19. In our view, notwithstanding the material nature of the misdirection, this is a proper case to exercise the proviso under s.83(1) as we consider that no miscarriage of justice has actually occurred. Accordingly, we shall give leave but treating the hearing as the appeal we dismiss the appeal.

20. There is also an application for leave to appeal against sentence out of time. One of his grounds suggested that the judge failed to take into account the Applicant's role as being merely the driver. There is no merit in this contention. The driver of a vehicle involved in drug trafficking and distribution plays an important part in the scheme of things. It is also suggested by the Applicant that he was cooperative all along. This does not bear examination. He denied any involvement at trial and alleged he was persuaded to make false admissions. In the remaining ground of appeal it was suggested that the Judge should have arrived at a sentence on each count separately, applying the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 and that his concurrent sentences of 20 years' imprisonment from a starting point of 21 years exceeded the guidelines.

21. It is true that for the quantity of heroin in Count 1 the guideline range is 12 to 15 years, for Count 2, 8 to 12 years and for Count 3, 15 to 20 years. There were three counts because the heroin was in three separate lots, in the joint possession of the co-accused. Plainly, an overall sentence of 20 years is a proper sentence, but as this court has frequently said, the sentence on each count should properly reflect the criminality involved and, with totality in mind, appropriate adjustments can then be made. The sensible, and practical course to be adopted in the present case was to look at the total amount of the heroin trafficked and fix a sentence in accordance with the guidelines in Lau Tak Ming. For a little under 870 grammes the range was upwards of 20 years. However, the judge took a starting point of 21 years for each individual count and deducted one year from that for the Applicant's hitherto good character, arguably a deduction to which a heroin trafficker is not entitled.

22. Mr Cheung has submitted that the judge's approach was wrong because the concurrent sentences imposed on the first two counts are well in excess of the Lau Tak Ming guidelines. Whilst the judge's overall approach to sentence cannot be faulted, we agree that the individual sentences imposed by the judge were too high. Accordingly we will give leave out of time and treating the hearing as the appeal, we will substitute on Count 1 a sentence of 14 years, on Count 2, a sentence of 10 years, those terms being concurrent with each other, and on Count 3 a sentence of 16 years, 6 years of which will be consecutive to the other terms, making a total of 20 years. The sentence is therefore in its totally left unaffected.