JIM FAI v. HKSAR

FACC No. 8 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 383 OF 2002)

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Between

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Ivor Richardson NPJ

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J U D G M E N T

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Chief Justice Li:

1.  At the conclusion of the hearing we announced our decision allowing the appeal, quashing the conviction appealed against, setting aside the sentence, ordering the appellant to be re-tried and remanding him in custody pending re-trial.  We also directed that the re-trial be listed for hearing at an early date.  We reserved our reasons and now hand them down.  They are given in the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

2.  This appeal illustrates the importance of adopting the proper approach in dealing with evidence given by and on behalf of an accused in a criminal trial and the risk of causing confusion to the jury by giving an unnecessary lies direction.

3.  The appellant was convicted after trial before a judge (Deputy High Court Judge Pang) and a jury of one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  His application for leave to appeal was dismissed by the Court of Appeal (Leong CJHC, Cheung and Yeung JJA).  With the leave of the Appeal Committee, he now appeals against conviction on the ground that he has suffered substantial and grave injustice.  He complains that the trial judge had misdirected the jury as to how they should approach his evidence and had wrongly given a lies direction.  As a result of this misdirection, he was wrongly convicted.

Prosecution case

4.  The prosecution case was hardly disputed.  On 8 August 2001, police officers raided a flat in a public housing estate in Kwun Tong.  The appellant was the registered tenant and the sole occupant of the flat.  He was the only person there when the officers entered the premises.  It was a small flat of about 100 sq. ft. 

5.  Upon a search by the officers, they found some dangerous drugs, the subject matter of the charge, and certain paraphernalia for cutting and packing drugs.  It is important (as will be clear later) to set out what items and where they were found.  In the kitchen, a black plastic bag containing 13 small packets of heroin was placed under the stove and these packets were surrounded by 6 plastic boxes containing additive commonly used to dilute heroin.  In the dining room, there were a box containing an electric mixer with another packet of additive on top of the box and a carrier bag containing various plastic re-sealable bags of different sizes.  The newspaper used to wrap the packets found in the kitchen was dated 2 August 2001.  The total quantity of drugs found was 279.09 gms of a mixture containing 155.01 gms of heroin.  Traces of heroin were also found in the filter of the air conditioner.

6.  The prosecution case was that the appellant was in possession of the drugs and paraphernalia found inside the flat and was either running a cutting and packaging centre at the flat himself or permitting other persons to do so. 

Defence case

7.  The appellant gave evidence at the trial.  He said that in March 2001, since he had to go to the Mainland to receive medical treatment, he gave a set of keys to the flat to a neighbour, Sai Lo Chai.  He told this person to pay rent on his behalf and to keep the premises clean in his absence.  In May 2001, he was told that Sai Lo Chai had without his consent given the keys to another person called Lin Che.  He had asked for the return of the keys, but Sai Lo Chai did not do so.  Although he knew where Lin Che lived, he did not follow this up for the time being.

8.  On 8 August 2001 when the police came, he was resting in the flat after having been hospitalized from 23 July 2001 to 3 August 2001 and returned to the flat.  Between 3 and 8 August 2001, because of his poor health, he stayed at home without paying much attention to what was kept inside the premises.  He had not gone into the kitchen.  He did not know of the existence of the items found in the flat. 

9.  The appellant also called medical evidence to support his case.  That he was not in good health and had a heart disease was not challenged by the prosecution.  It seems that he had previously been hospitalized between 30 March and 23 April and again at the end of April and in July 2001.  It was accepted by the prosecution that shortly after his arrest, he underwent an angioplasty and that he also had kidney troubles. 

10.  His defence was basically that the drugs and paraphernalia were not his, and that he did not know of their presence and had nothing to do with them.  Thus, it is clear that his guilt or innocence depended very much on whether his evidence was believable.  If it was believed by the jury, he could not be found guilty.  Even if his evidence might be true, he was also entitled to be acquitted.  How the jury should approach his evidence was therefore of critical importance.

The direction complained of

11.  The trial judge did direct the jury on how they should consider the appellant’s evidence.  That part of the summing up which touched on this aspect of the case and which Mr Andrew Bruce, SC for the appellant (who did not appear in the courts below) submits is a misdirection runs as follows:

“What I said just now applies to all the witnesses, including the defendant himself and the witnesses he called.  Their testimony is definitely part of the evidence and has an equal effect as the testimony given by others.  Therefore, you must consider it carefully.  On the other hand, as the prosecution has the onus of proof, even if you don’t believe the defendant and his witnesses, you cannot convict the defendant for this reason, because the result depends on whether the evidence which just you have accepted as true is sufficient to make you sure that the defendant is guilty.

As a matter of fact, people being charged may not tell the truth, but that does not necessarily mean they are guilty. Sometimes they just want to bolster a genuine defence, that is, in colloquial terms, to lay it on thick. Or they might think that it would be hard to get people to believe the truth; or the truth involves some disgraceful conduct which is short of the commission of an offence; or they lied simply out of panic, and so on and so forth. So, if you really don’t believe something the defendant has said or you think that he’s told lies, but maybe he has done it for reasons unrelated to guilt as are mentioned above, the only thing you should do is to disregard the part where he told lies, and concentrate on the part where you accept as truthful, and that includes evidence from the defendant which you regard as truthful. I wish to make it clear that I am not saying the defendant has told any lies anywhere, I am just saying that even if you are sure that he has told lies, you should not, and cannot, convict him for this reason.” pp. 5 to 6 (Emphases added)

12.  In the Court of Appeal, the above passages in the summing up were attacked on two grounds.  It was submitted that first, the trial judge had given the jury the wrong impression that the appellant had lied when he said he did not know of the existence of the items found in the flat; and secondly, this direction was misleading and inadequate.  The Court of Appeal rejected both submissions, but accepted that the lies direction was not necessary in the circumstances of this case.  However, they held that the jury had not been confused or misled.

13.  In this Court, Mr Bruce argues the appellant’s case slightly differently.  He submits that the effect of the direction quoted above was such as to mislead the jury on the circumstances in which they could act on or disregard the appellant’s evidence and that it was possible that the jury might have thought that they could only act on the testimony of the appellant if they thought it was true.  It is submitted that this was a serious misdirection.  The attack on the propriety of the lies direction is no longer relied on as an independent submission but only ancillary to his main submission.

Proper approach towards defence evidence

14.  In many criminal trials, the accused may choose to give or call evidence in his defence.  How his evidence should be considered by the judge or jury is an essential aspect of the criminal justice system.  It is therefore not impertinent to start with the basic principles. 

15.  The prosecution has the burden of proving that the accused is guilty of the offence charged.  The accused need not give evidence or call any witness to prove his own innocence, or indeed anything at all.  If he exercises this right, it simply means that there is no evidence from the defence to undermine, contradict or explain the evidence adduced by the prosecution.  If he chooses to give evidence or call any witnesses, he and his witnesses will be examined just like any other witness called by the prosecution and their evidence will be assessed by the jury in just the same way as with any other piece of evidence.  The jury will decide what they would accept and what they would not accept.  They are entitled to accept the whole of a witness’s evidence, or accept parts of it and reject other parts.  They perform this task in respect of every witness, whether a witness for the prosecution or for the defence.  In the present case, the trial judge had in his summing up correctly directed the jury in general terms along these lines.

16.  However, there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict.  It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused.  If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict upon it.  On the other hand, when it comes to defence evidence, even if the jury totally reject it, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused.  If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case.  In that case, the jury have to acquit him.

17.  This crucial difference between the treatment of prosecution evidence and defence evidence necessarily follows from an application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt.  It is therefore essential, in order to be fair to the accused, that the jury should be properly directed on this aspect in clear and simple terms.  As Brennan J said in Liberato & others v R (1985) 159 CLR 507 at 515: “The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”  This was echoed by Bokhary PJ in HKSAR v Sze Kwan Lung (2004) 7 HKCFAR 475: “It was crucial that they receive a clear and accurate direction thereon. …” (at p.486, para.26) and “Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.” (at p.487, para.27)  See also Mortimer NPJ in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at 613, paras 28 and 29.

18.  The direction to the jury on how they should approach defence evidence is thus intrinsically linked up with the direction on the burden and standard of proof.  A wrong direction on the proper approach to be adopted may and often does give rise to confusion in the minds of the jury as to where the burden of proof lies and to what standard it must be discharged. 

19.  Sometimes, the situation may be complicated by an allegation, often put to the accused by the prosecution in cross examination or made in its final address to the jury, that the accused had not been telling the truth, or to put it more bluntly, had lied to the jury.  The prosecution does not intend to make use of any lies or allegations of lies for any purpose other than to have his evidence rejected.  When such an allegation is made, the trial judge may, with a view to assist the jury in approaching the evidence of the accused, consider what he should say to the jury to clear their minds of any confusion or to dispel any misconception which may have arisen.  It may occur to him to give a lies direction.  But he has to be extremely careful. 

20.  The purpose of a lies direction is to avoid a miscarriage of justice where the jury may embark on an impermissible process of reasoning in that they may be naturally inclined to find an accused guilty simply because they think he has lied.  Whether a lies direction should be given and the contents of such a direction depend on the circumstances of each case, in particular, the use or possible use to which a proven lie or an allegation of lie may be put.  This was discussed in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 from 127 to 130.

21.  Generally speaking, a lies direction is only necessary where the prosecution intends to use a lie alleged to have been told by an accused to establish or assist its case or to strengthen an inference of guilt or where there is a danger that the jury may engage in an impermissible process of reasoning to the disadvantage of the accused.  It is given in order to ensure the accused has a fair trial.  Where, as in the majority of cases, there is simply a conflict between prosecution and defence evidence and an allegation is made that the accused in giving evidence has told a pack of lies and that his evidence is not worthy of belief, it is not only unnecessary but also inappropriate to give a lies direction.  The usual direction on the burden and standard of proof would be sufficient in those circumstances.  The risks in giving too readily a lies direction when it is not necessary are obvious.  As Kennedy LJ in R v Burge and Pegg [1996] 1 Cr App R 163, 173 said: “where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.”  See also R v Barnett [2002] 2 Cr App R 168, 173. 

What went wrong with the direction in question

22.  Regrettably, this is what happened in the present case.  Here, a wrong direction on the proper approach to be adopted towards defence evidence coupled with an unnecessary lies direction has resulted in more harm than good.  The direction in question was a misdirection for the following reasons.

23.  First, the allegation that the appellant had lied in the witness box was nothing more than a submission that the accused should not be believed.  The prosecution was not using it in any other way.  Nor was there any suggestion that there was a risk the jury might consider the mere fact that the appellant was not telling the truth in the witness box as evidence of guilt.  If his evidence that he did not know of the presence of the items found in the flat was not believed, it simply means that there was no explanation which might cast doubt on the prosecution case.  A lies direction was, as the Court of Appeal rightly said, totally unnecessary in these circumstances.  The direction in question might even give rise to the wrong perception in the minds of the jury that the appellant might be more inclined to lie than an ordinary witness when there was no basis for such a perception.  Where there was nothing to suggest that the appellant when giving evidence was any different from any other witness, why was it necessary to single out “people being charged” as people who might not tell the truth?  Instead of avoiding an impermissible process of reasoning, there is a real danger that this direction started the jury thinking whether the appellant as someone who was being charged might be less credible than prosecution witnesses, even before they considered his evidence.

24.  Secondly, and more significantly, the jury were in effect wrongly directed that they could take into account the appellant’s evidence only when they were satisfied that it was truthful.  This direction failed to tell the jury that if they thought that the appellant’s evidence might be true, this might give rise to a sufficient doubt in the prosecution case so as to allow them to return a verdict of not guilty.  The combined effect of these errors is that the jury might be confused as to the burden and standard of proof.  They might think that the appellant had to convince them that what he said was true when in fact all he needed to do in giving evidence was to raise a reasonable doubt.  They might also think that they had to disregard the appellant’s evidence even if they thought that it might be true, thereby depriving the appellant of the benefit of any reasonable doubt which might arise.

25.  Mr D G Saw, SC leading Mr David C Leung for the respondent quite fairly concedes that the direction in question was problematic and that if it could not be saved by the general direction on the burden and standard of proof, there would be a serious misdirection.  However, he submits that it could.  The passage he relies on to support his contention appears at p.3 of the summing up:

“The defendant has no burden to prove his innocence, nor is he obliged to call witnesses or testify for himself in the witness box.  Even if he does call witnesses and testify for himself, he does not have the burden to prove what he said is true. It’s for the prosecution to prove what he said is untrue. In the end, it is the burden of the prosecution to prove the defendant’s guilt.”

26.  With respect, we do not think this general direction on the burden and standard of proof could in the circumstances of this case save the misdirection.  The direction in question was specific.  It did not merely go to the burden and standard of proof; it also told the jury (wrongly, in our view) how they should approach the appellant’s evidence.  This might have an adverse impact on the defence case in that it might have undermined the credibility of the appellant and effectively excluded from the jury’s consideration evidence which might be true.  In a case such as the present, where it is crucial for the accused to give an explanation for a state of affairs, a general direction on the burden and standard of proof at the beginning of the summing up is not sufficient to remove any prejudice and misconception which might have arisen as a result of the misdirection.  In fact, apart from the direction in question, there are other passages in the later part of the summing up which may arguably be said to have the same adverse effect: 

“Do you really have to believe that the defendant did not bring any newspaper home from the hospital? You don’t have to believe him but you do have to consider whether that is true or not.

I’ve mentioned before that the burden of proof is on the prosecution. Therefore, whether the defendant is guilty or not depends ultimately on the evidence adduced by the prosecution as well as any evidence which you accept as true.” p.23, (Emphases added)

27.  These other passages might further confuse the jury.  In the circumstances, we are of the opinion that the misdirection complained of was a departure from accepted norms so serious as to constitute a substantial and grave injustice to the appellant.

Whether the proviso should be applied ?

28.  The respondent seeks to rely on the proviso to uphold the conviction.  It is common ground that the test for the application of the proviso is whether a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.  See HKSAR v Launder (2001) 4 HKCFAR 457, and Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113.

29.  Mr Saw submits that the evidence against the appellant was overwhelming and not really disputed and that the appellant’s case was improbable: the flat was small and some of the items seized by the police were found in conspicuous places in the flat; even the drugs which were found in the kitchen were not difficult to find. He submits that it is inconceivable that during the few days between his discharge from hospital on 3 August 2001 to the day of search on 8 August 2001, the appellant had not noticed what was kept inside the flat.  It is contended that on the evidence adduced before the court, and bearing in mind the nature of the defence, either the jury believed the appellant’s explanation or they did not; there is no room for the view that the appellant’s evidence might be true.  Counsel submits that whether it is appropriate to apply the proviso might best be determined by an analysis of the consequence that the appellant had not told the truth.

30.  With respect, we do not agree with this submission. It is based on the assumption that the jury would no doubt reject the appellant’s evidence that he had no knowledge of the existence of the items found in the flat.  In our view, in the present case, whether a reasonable jury, properly directed, would, on the evidence, inevitably convict the appellant depends not only on the prosecution evidence alone, but also on whether he could raise a reasonable doubt in the minds of the jury by offering an explanation to them.  If it was possible that the jury, properly directed on how they should approach defence evidence, might think that his explanation was true or might be true, this explanation should be entitled to proper consideration.  One simply cannot be sure that in this case, the appellant’s explanation had received proper consideration.

31.  As Lord Diplock in Kwan Ping Bong v R [1979] 2 WLR 433, at 439:

“A misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate case for the application of the proviso.  In the instant case the misdirection was as to the onus of proving what was, in effect, the only issue in the case that was seriously contested.  The guilt or innocence of the appellants depended on it.  In their Lordships’ view a verdict of guilty based on this misdirection cannot be other than unsafe and unsatisfactory.”

32.  This is such a case.  For these reasons, we do not think this is an appropriate case to apply the proviso.  The result is that the appellant’s conviction cannot stand.  It must be quashed and the sentence set aside.

Should there be a re-trial ?

33.  The prosecution seeks a re-trial.  It is submitted that drug trafficking is a very serious offence, the quantity of drugs involved is not small and the case against the appellant is strong.  Mr Bruce quite properly accepts all that.  His main objection is that the appellant has already served four and a half years out of the 10½ year sentence imposed by the trial judge.  He submits that having regard to the remission in the sentence for good behaviour and the time needed to re-list his case for hearing, the appellant would have served a substantial part of his sentence even if he were to be convicted again.  Taking everything into consideration and without making any comments on the merits of the case, we think that it is in the interest of justice to order a re-trial.  However, it is desirable that the re-trial should be listed for hearing at an early date.