HKSAR v. WU CHI KI

CACC 39/2020

[2021] HKCA 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 39 OF 2020

(ON APPEAL FROM HCCC NO 151 OF 2019)

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J U D G M E N T

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Introduction

1.  The applicant was convicted after trial before Campbell-Moffat J (the judge) and a jury of trafficking in a dangerous drug and sentenced to 28 years’ imprisonment.  He now seeks leave to appeal against his conviction and sentence, having been granted legal aid.

The case background

2.  The particulars of the offence alleged the applicant, together with Cheng San Faat (PW1) and Tjeng Julianto (PW4), on 23 October 2013 trafficked in 1593.36 grammes of a crystalline solid containing 1558.36 grammes of methamphetamine hydrochloride (commonly known as Ice). 

3.  The prosecution case was that the applicant recruited PW1 and PW4 to smuggle the drugs into New Zealand.  He instructed them to book a tour to New Zealand and arranged that they wear custom-made underwear, in which the drugs were secreted and concealed.  PW1 and PW4 were arrested at the airport prior to their departure and each admitted under caution they were to smuggle the drugs found on their person to New Zealand. They each provided information to the police about the involvement of the applicant in the offence, but it was not until 3 July 2017 that the police located the applicant and arrested him for this offence.  The case against the applicant mainly centred on the testimony of his two alleged accomplices, PW1 and PW4, who by then had pleaded guilty to the offence and were serving a term of imprisonment, and the telephone contact between the accomplices and the applicant at material times.

4.  The applicant gave evidence and testified that although he knew PW1 and PW4, he had nothing to do with their offence.  The applicant’s girlfriend also gave evidence on his behalf as an alibi witness. She testified she was with the applicant at the relevant times and therefore the applicant could not have been with PW1 and PW4 as alleged.

The appeal against conviction

5.  As for the appeal against conviction, Mr HY Wong, counsel for the applicant, advances two grounds.  Ground 1 complains that the judge’s summing-up was unfair and unbalanced in that (i) she made unnecessary and inappropriate personal comments about the applicant and his witness; (ii) she failed to accurately set out the applicant’s evidence and made inappropriate comments; (iii) she failed to appropriately address the absence of DNA and fingerprint evidence and incorrectly suggested it was an issue going to identification; and (iv) she descended into the arena by giving a second speech for the prosecution.  Ground 2 complains there was a material irregularity in the course of the trial in that (i) the judge wrongly permitted testimony, over objection from the defence, about how PW1 felt after having pleaded guilty and imprisoned in respect of the offence of trafficking in the drugs; and (ii) the judge failed to direct the jury they should put aside any feelings of sympathy or emotional considerations they might have for PW1 in returning a true verdict.

6.  Mr Eric Cheung, of the Clinical Legal Education Office of the University of Hong Kong, for the applicant, filed a submission in respect of the applicant’s conviction with the Court that was received a day before the leave hearing on 2 November 2021.  He filed the submission unaware the applicant had received legal aid.  He advanced the following three grounds on behalf of the applicant.  Ground 1 complained the judge failed to give a proper direction on two post-offence matters by the applicant, namely the subsequent change of the applicant’s mobile phone number to a new number sometime after the arrest of PW1 and PW4, and the applicant’s discussion with Cheng Wing Ming (PW3) about PW1 and PW4 and a letter he sent to PW4 through PW3.  Ground 2 complained the judge gave a misdirection on motive to implicate the applicant. Ground 3 complained the judge’s summing-up was unfair and unbalanced. 

7.  The leave hearing was adjourned to allow Mr Wong to consider the grounds of appeal against conviction advanced by Mr Cheung and to file an Amended Perfected Grounds of Appeal if he was to adopt any of them. He adopted Grounds 1 and 2 submitted by Mr Cheung, which are now Grounds 3 and 4 respectively.

Ground 1

8.  To illustrate his complaint in Ground 1 that the judge made inappropriate comments during her summing-up to the jury, Mr Wong refers to the following remarks:

“… It might be quite interesting to know how some people think they can get away with trafficking in dangerous drugs, but it most probably is not going to make any difference whatsoever really to your decision-making, which is, was it the defendant who recruited PW1 and PW4.”[1]

9.  Mr Wong submits the judge’s remarks were inappropriate as they imply that people, like the applicant, think they can get away with drug trafficking.  Although it could be interpreted, as suggested by Ms Audrey Parwani, for the respondent, as an innocuous remark that was not directed to the applicant; the issue is whether the judge’s remarks could be interpreted as suggested by Mr Wong.

10.  Mr Wong further submits there were other comments by the judge that reflected either adversely on the applicant or favourably on the alleged accomplices.[2]

11.  One of the passages in the judge’s summing-up that Mr Wong relies on, is where the judge commented on the prosecution point about the applicant having changed his phone number after PW1 and PW4 were arrested, and went on to say:

“He cannot give - if he is innocent of this, he cannot give evidence about dates and times if he is innocent, all right. If he is not innocent, he has chosen not to give evidence about dates and times, that is a matter for you. But I am reminding you that if he is actually innocent of this, he would go ‘Well, you can ask me as many questions as you like, I don’t know.’

And an awful lot of this is perhaps ‘I don’t recall correctly’. And in fact in chief every time he is asked a question about telephone times, he just says ‘I don’t recall’ as you will remember.”[3]

12.  There is debate between the parties as to what the judge was trying to convey to the jury about what the applicant would say if he was innocent or not innocent.  Mr Wong argues the judge’s comments were unfair in that she suggested to the jury that the applicant was not innocent because he chose not to give evidence about dates and times.  He also adds the judge was instructing the jury to determine the applicant’s innocence or guilt on his evidence about the dates and times.  Ms Parwani argues what the judge was saying was that if the applicant was innocent he would not recall dates and times, and the jury would not have decided the applicant’s innocence or guilt on this issue alone, given the judge’s other directions to the jury.  However, in my view, this is a matter for argument.

13.  Ms Parwani argues the judge’s summing-up was fair and balanced, and at best, many of the purported “adverse comments” by the judge were irrelevant and had no prejudicial effect on the applicant’s case. She points to remarks by the judge where she correctly told the jury they were the sole arbiter of facts and any views she expressed they were not required to adopt.[4]  

14.  The applicant testified he worked as a tattooist and had tattoos, which the defence relied on to challenge the evidence of PW1 and PW4.  The judge commented that this was a red herring and was not relevant, given that the applicant and the accomplices knew each other.  Ms Parwani submits the judge’s comments were appropriately qualified by her.[5] 

15.  In the course of her summing-up to the jury, the judge described PW1 and PW4 in the following terms: “I would like to call them “idiots” personally - these two very naive, stupid and greedy young men who were paying the price for that now.”  Ms Parwani submits this repeated description of the two accomplices was not prejudicial to the applicant as she balanced her remarks by reminding the jury to carefully assess their evidence, and it was for them to decide whether their story was all made up and whether they were trying to put the blame on someone else.[6] 

16.  Ms Parwani also points to the judge’s directions on the applicant’s previous conviction, the applicant defaulting on his bail, and the possible rejection of his alibi by the jury.  She submits they were correct and favourable to the applicant. 

17.  Whilst the judge may have given in certain instances correct and appropriate directions, the issue is whether her impugned remarks were incorrect or inappropriate to such an extent that they were unfairly prejudicial to the applicant. 

18.  A trial judge plays an important role in assisting a jury throughout the trial process and what he or she says to them in the summing-up is very often the last word they hear before they retire to consider their verdict.  In Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52, the Court of Final Appeal stressed that a trial judge is under a duty to summarise the issues and the evidence relating to these issues clearly, accurately and fairly to the jury.  While a trial judge is entitled to express to the jury his or her views on the evidence, he or she must tell the jury in clear and unambiguous terms that they are only the judge’s personal views, and that the jury must form their own views on the evidence and can ignore the judge’s views if they do not agree with them.  However, a judge should be very careful in making comments on the evidence, particularly comments adverse to the accused.

19.  I consider there is substance to Mr Wong’s submission in respect of the judge’s overall style and structure of her summing-up to the jury as well as various comments to them.  I am satisfied Ground 1(i) and (iv) are reasonably arguable.  However, in respect of Ground 1(ii), I am not satisfied that the judge failed to accurately set out the applicant’s evidence.  She provided a fair account of the applicant’s evidence and the defence case presented on his behalf.  Nor am I satisfied that the judge failed to appropriately address the absence of DNA and fingerprint evidence as complained under Ground 1(iii).  No DNA or fingerprint evidence was obtained and in light of the facts and circumstances of the case there was no need for her to specifically address the absence of this evidence. 

Ground 2

20.  In respect of Ground 2, Mr Wong submits when PW1 gave evidence, the judge permitted him to detail how he felt after committing the offence, and how it had affected his life, with the likely consequence that it would invoke from the jury feelings of sympathy and emotive considerations for PW1.  He contends the evidence was irrelevant and should not have been given. 

21.  Mr Wong further contends once the evidence was given the judge should have, at the very least, directed the jury not to be swayed by feelings of sympathy or emotive considerations for PW1’s personal circumstances in their deliberations.[7]

22.  I am satisfied this ground is reasonably arguable.

Ground 3

23.  Ground 3 concerns the lack of directions from the judge about the two post-offence matters.  The judge did not give any specific directions to the jury on how such matters should be considered, but the question arises whether she had to do so, and therefore provide more than just a recitation of the evidence to the jury.  The applicant contends the judge erred in allowing the prosecution to adduce this evidence without first establishing its relevance and admissibility: HKSAR v Wang Jinwei [2018] 4 HKLRD 459. 

24.  The first matter concerned the phone number, 67527922, an unregistered number, which was used by the applicant to contact PW1 and PW4.  According to the call records, calls to PW1 and PW4’s phones were made at the time of relevant events in respect of their travel arrangements to New Zealand.[8] The applicant’s evidence was that he changed his number between mid-2013 and the beginning of 2014, because he preferred another number and had difficulties with the service.  The prosecution questioned why he had done so, suggesting he wanted to distance himself from PW1 and PW4 because of his involvement in the offence.[9]  

25.  The other post-offence matter concerned the applicant’s encounter with PW3 and the mailing of a letter through PW3 to PW4. PW3 spoke to the applicant about PW1 and PW4, having a difficult time in prison, and the applicant submitting a letter to PW4 through PW3, purportedly out of concern for himself.[10]  The prosecution were relying on this evidence to show the applicant’s concern about PW1 and PW4.

26.  No objection was raised by defence counsel as to the admissibility of this evidence, nor to any lack of direction by the judge on post-offence conduct.[11]

27.  It would appear the prosecution relied on the two post-offence matters to show a consciousness of guilt on the part of the applicant.  Mr Wong relies on this Court’s remarks in Wong Jinwei that a defendant’s post-offence conduct might be evidence of his guilt and could even be regarded as part of the offence, if it was closely connected to it. However, a court should establish the basis for admitting such evidence and why it was relevant to the charge or related issues, and, if so, balance the probative value of such evidence with its prejudicial effect on the defendant.[12] 

28.  Ms Parwani submits the judge summed up on these factual matters, putting the arguments of both sides before the jury, and were appropriately covered by the general directions and guidance she gave the jury throughout her summing-up.  Mr Wong disagrees with this submission and argues the defence case in respect of this evidence was not fully and accurately put to the jury.[13]

29.  The issue arising from this ground is whether the prosecution had laid the necessary foundation to adduce the evidence and whether it was appropriately considered and dealt with by the judge, particularly when summing-up the two post-offence matters to the jury. 

30.  I am satisfied this ground is reasonably arguable.

Ground 4

31.  Ground 4 concerns the judge’s comments on motive of the accomplices to implicate the applicant.  It has two parts.  The first part is the judge wrongly attributed PW4’s reason for giving evidence against the applicant to PW1.[14] This concerns the applicant telling PW1 and PW4 that the sentence they would receive if caught would be 2 to 3 years.  Whether or not the applicant had told one or both of them the sentence would be short is not a matter of any great significance, in light of the other issues raised in respect of the two accomplice witnesses.  As rightly pointed out by Ms Parwani, what really mattered was whether the judge gave proper directions to the jury to treat PW1 and PW4’s evidence with care as they both had a motive to lie, which the judge did in clear terms.

32.  I am not satisfied this point is reasonably arguable. 

33.  The second part is the judge failed to direct the jury that the applicant was not required to prove any motive for PW1 and PW4 to lie.  Mr Wong cites HKSAR v Wong Kwok Wang, Warren (2009) 12 HKCFAR 218, where such a direction was discussed but adding in most cases it would not be required, depending on the other directions given by the judge.[15]  In the present case, the judge repeatedly reminded the jury on the issue of the credibility of PW1 and PW4, especially their motivation in giving evidence.[16] 

34.  I am not satisfied this point is reasonably arguable.

The appeal against sentence

35.  As for the appeal against sentence, Mr Wong advances three grounds.  Ground 1 complains that the judge erred in adopting a starting point of 23 years and 6 months’ imprisonment by reference to the sentencing guidelines adopted in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 which was after the date of the offence.  Ground 2 complains the judge erred in enhancing the sentence by 2 years for the international element and a further 2 years and 6 months on account of the role played by the applicant and having put forward a positive case.  Ground 3 complains the enhancement for the aggravating factors offended the totality principle.

36.  Ms Parwani argues no prejudice resulted from the judge adopting a starting point of 23 years and 6 months’ imprisonment, although she did acknowledge it was on the high side.  She submits that the enhancements of 2 years, and 2 years and 6 months were for the international element and the role played by the applicant respectively, and not for the applicant putting forward a positive case as suggested under this ground of appeal.

37.  Ms Parwani argues the enhancements were justified.  She submits an enhancement was warranted for the role played by the applicant, given the judge’s finding that he was the organizer of the entire arrangement to have PW1 and PW4 smuggle the drugs into New Zealand.

38.  I am prepared to grant leave to appeal the sentence as to whether the total sentence was manifestly excessive. 

Conclusion

39.  It follows from what I have said that I grant the applicant leave to appeal against conviction on Grounds 1(i) and (iv), Ground 2 and Ground 3, and against sentence as to the totality of the sentence.

[1]  Appeal Bundle (AB), 34C-F.

[2]  See AB, 34G-I, 49B-C, 78T-79B, and 82D-I.

[3]  AB, 82E-K.

[4]  AB, 26P-S, 34Q, 37S and 38J-L.

[5]  AB, 34G-L and 34J-Q. 

[6]  AB, 49F and 45H-46Q. 

[7]  See Specimen Directions 4.1 and 4.2 of the Specimen Directions and Jury Trials, 2013.

[8]  AB, 308R-S and 310F-H.

[9]  AB, 311S, 312A and 312G-H.

[10]  AB, 66N-69P.

[11]  AB, 366R-T.

[12]  At [47]-[51].

[13]  See the judge’s summing-up at 81S to 82, and the prosecution closing address at 308D-312K, and the defence closing address at 366E-367K and 371C-373H. 

[14]  AB, 24C-F, 46P-47B and 87A-H.

[15]  Ibid., at 235C-G.

[16]  AB, 44R, 45H-46O, 49F and 88C-K.