HKSAR v. KALAWILA WITHANAGE KALUM SIRI VITHANA

CACC 38/2018

[2021] HKCA 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCCC NO 55 OF 2017)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court)

A. Introduction

1.  The applicant and his co-defendant (Mohamed HM Imran, hereafter referred to as D1) were jointly charged with one count of trafficking in a dangerous drug, namely 410 grammes of a powder containing 261 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the charge”).

2.  The applicant pleaded not guilty to the charge and stood trial before Deputy High Court Judge Lee (“the judge”) and a jury. D1 pleaded guilty and testified against the applicant. On 17 January 2018, the applicant was convicted by unanimous verdict of the jury and was sentenced to 14 years and 2 months’ imprisonment.

3.  On 4 November 2019, the applicant was refused leave to appeal against conviction by the Single Judge^[1]. On 15 November 2019, he filed a Notice of Renewal of Application and sought to renew his application for leave to appeal against conviction. It was not until 22 June 2020 that the Bar Free Legal Service Scheme took up this case and counsel was instructed. Amended perfected grounds of appeal against conviction were filed on 4 September 2020 advancing two new grounds. At the hearing, Mr McGowan agreed that this was in essence an application for an extension of time to apply for leave to appeal on grounds that were not argued before. A Notice of Motion to admit fresh evidence in support of the renewal application was filed on 11 January 2021, which was received on a de bene esse basis.

4.  Having heard the application, we granted the extension of time to appeal in which to file grounds of appeal but refused leave to appeal against conviction on those grounds and we dismissed the appeal. We now give our reasons.

B. The prosecution case

5.  The prosecution case was primarily based on the evidence of D1 and the Customs officers. It was the prosecution case that upon instructions of a person referred to as the “black man”, the applicant arranged for D1 to prepare false identity documents to collect a parcel containing cocaine (“the parcel”) from the Sham Shui Po Post Office (“the post office”).

6.  It was not in dispute that the parcel from Panama was addressed to a “LAM Kam Sun”, care of an address in Sham Shui Po with the contact telephone number 9800-4832, which arrived in Hong Kong by air on 6 August 2016 and was intercepted by the Customs and Excise Department. Upon examination, the parcel was found to contain a thermos flask concealing 410 grammes of a powder containing 261 grammes of cocaine.

7.  It was later discovered that the address was a vacant building in Sham Shui Po which was to be redeveloped.

8.  D1 testified that he came to Hong Kong in 2005 from Sri Lanka as an asylum seeker^[2] and became acquainted with the applicant^[3] in 2009. They became close friends only when they both moved to Yuen Long^[4].

9.  D1 said that he was told by the applicant in early July 2016, that there was a job to collect a parcel of cocaine^[5] from Panama which belonged to the “black man”^[6]. D1 was promised a sum of $2,000 for preparation of the documents and collection of the parcel at the post office^[7]. D1 admitted to have prepared a false passport copy and a false electricity bill bearing the name “Lam Kam Sun” and false delivery address. He said that he acted in accordance with instructions sent to him by the applicant via mobile telephone SMS messages^[8].

10.  D1 described how he met up with the applicant and the “black man” on 26 August 2016 at Long Ping MTR Station. From there they took the MTR and then a bus to Sham Shui Po^[9]. D1 said that he and the applicant went to the post office at Sham Shui Po together. He went inside but was told by the postal officer that the parcel had not yet arrived. When he was asked to leave a contact number, he gave the number 9800-4832^[10] which was the number appearing in one of the text messages sent by the applicant to him^[11]. During this time, the applicant stayed inside the post office^[12]. D1 identified the applicant in the CCTV footage from the post office as the other person waiting inside the post office^[13].

11.  The parcel was then arranged to be collected on 29 August 2016, and a controlled delivery was mounted by Customs officers. A Customs officer posed as a postal employee at the counter of the post office and other Customs officers in plain clothes mounted surveillance in and outside the post office.

12.  It was the evidence of D1 that he went to Sham Shui Po with the applicant and the ‘black man”^[14]. He went inside the post office to collect the parcel, while the applicant waited outside^[15]. When he was collecting the parcel, he received three telephone calls from the applicant enquiring about the progress of the collection and instructing him what to do after collection^[16]. When D1 left the post office, he and the applicant were separately intercepted and arrested by Customs officers. It was also not disputed that D1’s mobile telephone had received three telephone calls from the applicant’s mobile telephone while D1 was inside the post office collecting the parcel.

13.  Under cross-examination, D1 said that he testified against the applicant because of the interest of the public and his self-interest^[17]. Although no one had promised him any benefit^[18], he was expecting some reduction of sentence by giving evidence^[19]. D1 disagreed with the suggestion that he was lying to incriminate the applicant in order to get a significant reduction on his sentence^[20].

C. The defence case

14.  The applicant’s case was that he had nothing to do with the parcel and he did not know that it contained drugs. He had known D1 for about 6 years and they started working together 2 years before the offence^[21].

15.  The applicant denied he had been to the post office with D1 on 26 August 2016^[22]. He said that he met up with D1 on 29 August 2016 to retrieve the mobile telephone of his sister-in-law which D1 was to repair but could not do so. He went with D1 to Sham Shui Po to repair the mobile telephone. He said that his mobile telephone was used by D1 to run his handyman business^[23] as D1 spoke better English^[24]. He said he saw D1 chatting to his friend, the “black man”, at the Long Ping MTR Station for one or two minutes^[25] but paid no attention as to whether the “black man” went with them on the same train to Sham Shui Po. When he and D1 arrived at the Sham Shui Po MTR Station, he saw the “black man” again who gave something to D1 and left^[26]. He waited for D1 but did not see him entering the post office^[27]. He said that the calls he made to D1 were to inform him that a mobile telephone repair shop had opened^[28] and to ask him what he was doing^[29]. The applicant said he could sense the presence of the police in the vicinity because of his concern about his status as an illegal worker^[30]. He was talking to his wife over the telephone when he was arrested^[31].

16.  It was the evidence of the applicant that during the confrontation arranged by the Customs officers for them to recognise each other, he was asked whether he knew D1, which he denied. He said that, at the time, he saw D1 was moving his head from side to side and he thought D1 was indicating to him that he should not acknowledge D1^[32].

D. Grounds of appeal and fresh evidence on appeal

17.  The applicant sought leave to adduce the following evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, namely, the judgment in D1’s renewed application for leave to appeal sentence^[33] and a redacted copy of his “proof of evidence”^[34] dated 19 October 2017 which, as he deposed, served as his instructions to his trial counsel^[35]. It is submitted that the former could show a post-conviction finding of adverse credibility which could have been a factor for the court to decide the credibility of the key witness. The latter goes to the issue of lack of puttage.

18.  Three grounds of appeal against conviction were advanced in the “Amended Perfected Grounds of Appeal” dated 3 September 2020.

D1. Ground 1: The judge failed to direct the jury that they should treat D1’s evidence “with care” and explained why

19.  Mr McGowan complains that the judge, in telling the jury to assess the credibility, truthfulness and reliability of the Customs officers in the same manner as other witnesses, failed to highlight the danger of relying on the accomplice evidence of D1. Whilst accepting there is no magic wording for such a warning, it is submitted that the words and phrases used by the judge such as “take heed of”, “bear in mind”, “attached whatever weight” and “form your own view”, failed to sufficiently warn the jury against the risks of relying on the evidence of D1. Reliance is placed on the cases of HKSAR v Yu Wing Fung^[36] and HKSAR v Ngie Hon Miu^[37] that the evidence of D1 which, taken at its highest, revealed a vague hope that he might get some reduction for giving evidence against the applicant but without mentioning any additional discount that he would receive, would have led the jury to assess his credibility in a vacuum.

D2. Ground 2: the judge failed to properly direct the jury on the “lack of puttage” of the applicant’s denial of knowing D1 at the post-arrest confrontation

20.  Mr McGowan accepts that whilst the applicant’s denial of knowing D1 was mentioned in the prosecution’s closing speech, the lack of puttage by defence counsel to D1 was not raised. It is submitted the applicant’s credibility was a critical feature. Relying on HKSAR v Chan Hing Kai^[38], Mr McGowan argues that the judge’s direction in respect of the confrontation invited the jury to consider making an adverse finding on the applicant’s credibility because of defence counsel’s failure to put the applicant’s case to D1, thereby creating a “real possibility of the jury engaging in impermissible reasoning”. Such invitation to the jury to consider its effect on the applicant’s credibility is not appropriate, particularly without further explanation, and indeed is an irregularity.

21.  Mr McGowan adds that the judge’s approach to this “Not Putting” is in contrast to how he dealt with the reference in prosecuting counsel’s closing speech concerning the SMS messages in the applicant’s mobile telephone which had also not been put to the applicant. In prosecuting counsel’s closing speech, the jury was invited to use the SMS messages against the applicant. In the summing-up, the judge told the jury that since the applicant had not been asked about the messages, the jury should not speculate whether the sender and the intended recipient were in some kind of business by relying on their contents.

D3. Ground 3: Conviction unsafe and unsatisfactory (a catch-all ground)

E. The respondent’s submissions

E1. On Ground 1

22.  Mr Cheung, on behalf of the respondent, submits that it is clear from the evidence that D1 accepted he was expecting a reduction of sentence for giving evidence against the applicant. The present case is distinguishable from Ngie Hon Miu because the jury were expressly told D1 could expect a discount for testifying against the applicant. What was put to D1 was that he lied to get a significant sentence discount and the allegation against D1 was repeated in defence counsel’s closing speech. The issue of D1’s credibility was a live one for the jury. Mr Cheung fails to see how the Court of Appeal’s judgment dismissing D1’s appeal against sentence could be relevant to the present renewed application by the applicant. The judge’s direction had fairly and squarely set out the nature of the challenge to D1’s evidence. Reminding the jury that law enforcement officers should not be treated as deserving more credibility, which merely meant that they were not placed in any special category when it came to credibility, did not diminish in any sense the warning given to the jury about the danger of relying on D1’s evidence.

E2. On Ground 2

23.  Mr Cheung points out that without any evidence from trial counsel, it is unclear whether the redacted and incomplete pages of the applicant’s instructions in October 2017 were the sole instructions given. The preliminary threshold for admission of this new evidence has not been met.

24.  Mr Cheung submits that in respect of the non-puttage of the applicant's case about the confrontation to D1, the course proposed by the judge that this was a matter which went to weight only arose after discussion in which both counsel agreed. It is not for the applicant to gainsay the course adopted by the judge in the appeal. In any event, firstly, the judge correctly directed the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter. Secondly, no adverse comment that the jury might draw an adverse inference as to his credibility was made.

25.  Mr Cheung adds that the judge directed that the applicant’s denial of knowing D1 “is the matter which goes to his credibility only”. He then went on to say whether what the applicant said was or might be true was a matter for the jury’s decision. He then talked about the effect of the non-puttage affecting weight to be given to this part of the applicant’s evidence which had not been put to D1. Lastly, the judge had clearly directed the jury that even if they refused the applicant’s evidence, the jury still had to consider the prosecution evidence and be satisfied to the requisite standard.

26.  Ground 3 was merely a catch-all ground.

F. Discussion

F1. Ground 1

27.  In respect of the credibility of D1, the judge highlighted the submission of counsel for the applicant^[39]:

“… I now come to the evidence of Imran, who, you may take the view, is the most important prosecution witness. However, before I do that, take heed of the matters which Mr Stephenson mentioned in his closing submissions including: (1) Imran is a self-confessed offender; (2) he hopes for a reduction of sentence by giving evidence for the prosecution. Therefore he may have incentive to give false evidence against the defendant; (3) he admits that what he told the Custom officers at his video recorded interview, the transcript of which is P37 and the certified translation P37A, contains exaggerations. In fact, he admits that he made untrue statements in that interview including the assertion that he was threatened by the defendant into committing this offence; and (4) it is put to him, which he denies, that given his education, language ability and computer knowledge, it is unreasonable that he would have taken the risk of committing the offence for just HK$2,000 at the time when he was expecting to be returned to Sri Lanka for a better future than remaining in Hong Kong. However, as I have said yesterday you are entitled to consider whether Imran’s credibility has been undermined by this cross-examination.

You would also remember that when Imran was cross-examined about the false copy passport (P10) and false electricity bill P11, he admitted that this was not the only occasion that he had made false documents. He said that the present case was the third occasion that he made false documents. You are not to speculate what those other false documents were about. The point, however, is that he admits that he had on other occasions committed dishonest acts by making false documents.

Members of the jury, bear those matters in mind when you assess Imran’s credibility and reliability as a witness and attach whatever weight to those matters as you consider appropriate. Bear in mind also what I directed you yesterday on how to assess the evidence of a witness. Form your own view whether, in the end of the day, you accept or reject Imran’s evidence in court.”

28.  It is noted that the judge did not just repeat the submission of defence counsel. He did add on all that could possibly be considered in respect of D1’s credibility: D1’s admission of having made false documents and his dishonesty.

29.  Chan PJ in Wong Chi King v HKSAR^[40]:

“16. A trial judge has charge of the trial. He has heard the evidence of the witness and is well aware of the issues involved, the relevance and importance of the evidence to those issues and other relevant circumstances. He is thus in a position to assess whether there is any need to give a caution warning and if so, in what terms.”

30.  The present case is one where the risk or danger of relying on the evidence of D1 was obvious from the cross-examination of D1 and the defence submission. During cross-examination, the judge asked D1 whether he was expecting some reduction of sentence by giving evidence against the applicant and he agreed he was^[41]. He said he was clear that no one could make him any promise as to his sentence^[42]. It was expressly put to D1 that he was lying to incriminate the applicant so that he could get a significant reduced prison sentence^[43]. This is not a case where the inherent reliability of the witness may not be apparent to the jury. The judge was directing the jury on matters to which they were already very much alive and asking them to “take heed” in assessing D1’s evidence.

31.  Mr McGowan, whilst accepting that there is no hard and fast rule as to how a judge should direct a jury in this regard, submits that without knowing the additional discount that D1 would be receiving, the jury could not realistically determine whether D1 was telling the truth on this issue and, if he was not, how seriously it impacted on his credibility generally: see Ngie Hon Miu^[44]. We are of the view that this submission has fallen into error in the following aspects. Firstly, this is taken out of context. In Ngie Hon Miu, unlike the present case, there was no evidence to contradict the assertion of the accomplice that he did not know and did not expect that by successfully giving evidence against the appellant he would receive a further significant discount in sentence. Similarly, in Yu Wing Fung, defence counsel did not ask about the expectation of a reduced sentence for giving evidence against the appellant at the trial, nor was there any admitted fact to that effect^[45].

32.  Secondly, a fixed formula and a unified approach to inform the jury of the additional discount that an accomplice witness would expect to receive is simply unrealistic. Fok PJ, in the decision of the Appeal Committee in HKSAR v Wong Lin Hung and others^[46], declined to entertain a similar argument. Apart from holding that Ngie Hon Miu was distinguished as it “turned on its unusual facts of an accomplice witness who denied he was aware of any such practice or entitlement to a sentence discount”^[47], Fok PJ said:

“7. …As the Court of Appeal held in HKSAR v Cheng Lung Cheong Brian, unrep, CACC 174/2011 (21 March 2012) at paragraph 43, the sentence discount is not something that can be quantified with any precision. As Mr Bruce frankly accepted, it would be speculative for the judge to indicate what range of discount or other advantage to the witness might be applicable in any given case since this would be highly dependent on the facts of the individual case which the judge would not then be apprised of.”

33.  Ground 1 fails.

F2. Ground 2

34.  The applicant gave evidence that when D1 was taken to him for confrontation, D1 moved his head side to side indicating he should not acknowledge him^[48]. When the judge clarified with him whether he denied knowing D1, he said:

“He also told me that he doesn’t know me. I also said I don’t know him.”^[49]

35.  The judge was concerned about this as this did not accord with the post record of D1 which was admitted into evidence by admitted facts. He raised this matter with counsel in the absence of the jury.^[50] As a result, prosecuting counsel clarified with the applicant^[51] and the applicant replied:

“Because when he came in front of me, he did like this, indicating no.”^[52]

36.  The applicant’s evidence of D1 moving his head from side to side during the confrontation was never put to D1. The judge had a discussion with counsel on this issue before he embarked on the evidence of the applicant in the summing up.^[53] (the “no puttage” argument)

“COURT: All right. Now, just one thing that I would like to seek your -- I would like to confirm with you that’s about the confrontation. You remember that this defendant denied knowing Imran at the confrontation and he explained that on the basis that Imran had at the time moving his head side to side indicating that Imran want this defendant to say that he did not know him. Now, this part of the evidence has not been put to Imran in his cross-examination, is that correct?

MR WRIGHT: Yes.

COURT: So I’m correct.

MR WRIGHT: You are correct.

COURT: So I think this actually goes to weight, isn’t it?

MR WRIGHT: Yes.

COURT: Go to weight as to how much weight should be attached to this part of the defendant’s evidence, but in any -- is it not?

MR STEPHENSON: Well, it does go to weight. The inference -- the possible inference the jury might take is nodding the head like that is to say, “Deny knowledge of me”.

COURT: Yes, that’s what how this defendant understands it.

MR STEPHENSON: Yes.

COURT: So but the fact that this has not been put to Imran goes to any weight, goes to weight of this part of the defendant’s evidence, isn’t it?

MR STEPHENSON: Yes.

MR WRIGHT: Yes.

COURT: But in any event the denial only goes to credibility of this defendant and nothing more.

MR WRIGHT: Correct, I think that’s all.

MR STEPHENSON: Yes.

COURT: Yes, I will direct the jury accordingly.

MR WRIGHT: And even if you add, you know, it might be an understandable reaction if somebody is caught by surprise, arrested and it’s just a reaction.

COURT: I think it’s a matter of common sense...

MR WRIGHT: Yes, yes.

COURT: ...rather than say that, well, it’s a matter of weight to be attached. It’s a matter entirely.

MR WRIGHT: Yes.

MR STEPHENSON: Yes, that’s right.

COURT: All right, agreeable?

MR WRIGHT: Yes.

MR STEPHENSON: Yes.” (Emphasis added)

37.  The judge directed the jury on how they should approach the evidence on the post-arrest confrontation^[54] as follows:

“The defendant agrees that later, when Imran was brought in front of him for confrontation, he said he did not know him. The defendant explained that it was because he saw Imran moving his head from side to side and he thought that Imran was indicating that the defendant should not say that he knew him. Members of the jury, you would remember that when Imran gave evidence this was not put to him in cross-examination. Therefore, we do not know what Imran would say about this. Members of the jury, the defendant’s denial of knowing Imran at the confrontation is the matter which goes to his credibility only. Whether what the defendant said is true or may be true is a matter for you to decide. The fact that Imran does not have opportunity to respond to this part of the defence case is a factor that you may wish to take into account in assessing the weight, if any, to be given to this part of the defendant’s evidence.” (impugned direction)

38.  Mr McGowan takes issue with this direction. It is submitted remedial measures such as having D1 recalled to minimize any unfairness occasioned by the lack of puttage should have been done. As the credibility of the applicant was a key issue at the trial, the impugned direction implicitly asked the jury to consider making an adverse finding as to the applicant’s credibility based on the lack of puttage.

39.  Mr McGowan seeks to pray in aid an extract from the applicant’s proof of evidence to counsel to show that his evidence relating to the confrontation was not a recent invention. Zervos JA in quoting R v Foley, recognized that “there being many explanation of such omissions which do not reflect upon the credibility of the witnesses”^[55]. He went on to say:

“45. …There are many possible explanations of a failure by counsel to observe the rule (Browne v Dunn), and some of these do not reflect upon the credibility of the client. Counsel, for example, may have misunderstood the instructions, or the failure may be through oversight. … If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding of error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine.”

40.  The first observation from this passage is that courts should not lose sight of the fact that there is a “wide discretion available to counsel as to the manner in which a trial may be conducted”: see R v Birks ^[56]. Secondly, the question is: whether the impugned direction was given in a way which will permit adverse inferences to be drawn against the credibility of a defence witness.

41.  In Chan Hing Kai, the way the jury was directed as to the lack of puttage was this:

“91. …He directed the jury that because the matter had not been put to the relevant witness for him to respond (a reference to Wong), it was a matter that they were entitled to take into account in their assessment of the credibility of the applicant. He then invited the jury to consider whether it was an indication that the applicant was “making up a false story”. He finally told them that if they found the omission of not putting the “factual scenario” affected their assessment of the applicant’s credibility, it was up to them to decide whether it was confined to what the applicant said or went to his overall credibility.”

42.  The Court of Appeal in Chan Hing Kai noted that there had been no further discussion about the lack of puttage either at the time when it arose, or prior to, during or after the judge’s summing up to the jury. There was no discussion about the directions to be given to the jury on this aspect to the applicant’s evidence^[57].

43.  To the contrary, as quoted in the above paragraph 36, there has been such a discussion in the present case. The proposed direction met with no demur from defence counsel. Furthermore, the judge was cautious not to comment or direct the jury to the possibility of drawing an adverse inference from the lack of puttage. The jury was told that because of the lack of puttage, D1 was denied the opportunity to respond to the challenge, and they had therefore been deprived of the opportunity of hearing his evidence in response. It was directed that the evidence of the applicant denying knowing D1 at the confrontation went to his credibility, whilst the lack of puttage went to the weight to be given to this part of the applicant’s evidence.

44.  The summing up totally accords with the judgment of Chan Hing Kai, although it is noted that the former preceded the latter:

“93. . It was open to the Judge to direct the jury that they could take into account the lack of puttage in assessing the weight to be attached to the applicant’s evidence on this matter.

94. However, this did not mean that it was generally appropriate for the Judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the applicant.”

45.  It was for that reasons that the appeal was dismissed.

G. Post-script

46.  As we have said in the beginning, this is an application for extension of time to file new grounds of appeal disguised as a renewal. This practice should not be encouraged. More stringent rules of practice apply to out-of-time applications. The Court will have to be satisfied, as a prerequisite, that there is a valid explanation for the delay. This appeal was heard on a provisional basis to consider the grounds to ensure that we are not shutting up reasonably arguable grounds.