HKSAR v. IP WAI HO

CACC 218/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 218 OF 2008

(ON APPEAL FROM HCCC NO. 304 OF 2007)

________________________

Hon Yuen JA (giving the judgment of the Court):

Charges

1. The Applicant Ip Wai Ho, Mickey was the 1^st Defendant in HCCC304/2007.  He faced 2 charges of trafficking in dangerous drugs.  The 1^st charge related to a quantity of cocaine said to have been found in a shoulder bag he was carrying when he emerged from a lift on the ground floor of a building in Mongkok.  The 2^nd charge related to a quantity of cocaine, ketamine, cannabis and MDMA found in a unit (Room A) in a flat on the 12^th floor of the building.  Also charged with the 2^nd charge was the 2^nd Defendant, the tenant of Room A, said to be the Applicant’s former girlfriend, who was charged with an alternative count (the 3^rd charge) of permitting premises to be used for trafficking in dangerous drugs.

Trial

2. The trial of the Applicant took place in the High Court before Deputy Judge Longley and a jury. The Applicant was represented by counsel Mr Kwan Tong Lee.  He pleaded not guilty and elected not to give evidence.  He called one defence witness, a watchman Mr Lau, whose evidence will be referred to later in this judgment.

Verdict

3. The jury found the Applicant guilty of both the 1^st and 2^nd charges.  It found the 2^nd Defendant not guilty of the 2^nd charge but guilty of the alternative 3^rd charge.  The Applicant was sentenced to a total term of imprisonment of 15 years.

Application for leave to appeal

4. The Applicant originally applied for leave to appeal against both conviction and sentence but abandoned the application relating to sentence on 8 January 2009.

Prosecution evidence

5. Before dealing with the Applicant’s grounds of appeal, it may be helpful to briefly set out the evidence adduced by the prosecution at trial.  Essentially the police had been “staking out” Room A for some time on 23 May 2007.  After the Applicant was seen leaving the premises at 6:39 pm, police officers at the observation post on the 12^th floor alerted police officers at the ground floor lobby. 

6. According to the prosecution evidence, when the Applicant emerged from the lift on the ground floor, he was holding keys in one hand and had a bag across his shoulder.  He was stopped by 3 police officers, PW1, PW3 and PW4.  PW1 showed his warrant card to the Applicant, revealed his identity, and took him to an area away from the watchman’s desk.  He told the Applicant he suspected him of possessing dangerous drugs.  He searched the Applicant’s shoulder bag and found four packets of suspected dangerous drugs inside.  He put them back into the shoulder bag and cautioned the Applicant.  The Applicant said nothing. According to PW3, this took 5 minutes.  According to PW4, this took 2-3 minutes. 

7. PW1 then took the Applicant to a place near the watchman’s desk where he made a post-record of his caution.  The Applicant did not sign it.

8. Meanwhile, the police officers at the observation post on the 12^th floor saw the 2^nd Defendant leaving Room A at 6:55pm.  She was stopped by the police officers and asked a few questions, at which juncture the Applicant and the police officers who had arrested him came up the lift.  An inspector and some other officers also arrived.  An inspection was then carried out of Room A, where the dangerous drugs the subject of the 2^nd charge were found.     

9. According to the prosecution evidence, the keys which the Applicant had been holding in his hand when he emerged from the lift were found to fit the lock of the door to Room A.  His palm print was also found on one of the walls in Room A.  His passport was found near a bed in Room A and there were also some inhalers next to the bed, similar to one found in the Applicant’s shoulder bag.  The defence witness, the watchman Mr Lau, also said that the Applicant had been living on the 12^th floor for some time.

Admitted facts

10. At trial it was an admitted fact that “due to the malfunctioning of the recording system, the CCTV tape Exhibit P148 when played, did not show events which occurred after 6pm on 23^rd May 2007”.  (Emphasis added). 

11. Accordingly there was no video recording of the events at the ground floor lobby at the time of the Applicant’s arrest.  However, as we shall see later in this judgment, there was a video recording shown to the jury of events which occurred there earlier that day.     

Defence case

12. The Applicant did not give evidence at trial. 

13. The Applicant called as his only witness the watchman Mr Lau who was in the ground floor lobby with three police officers (presumably PW1, PW3 and PW4) when the Applicant emerged from the lift.  He said one of the police officers stopped the Applicant and only spoke with him for “one-odd minute” before the three of them took him to the rear staircase area.  He said they took him there for “one-odd minute” then took him out and then went up the lift together.  This evidence contradicted the police officers’ evidence which put the Applicant on the ground floor for considerably longer.  As the CCTV did not record the events at the ground floor lobby at the time of the arrest, there was no objective evidence enabling this dispute to be determined one way or the other.  

Failure of CCTV to record events at time of arrest

14. More important for the purposes of this appeal is how the absence of the CCTV recording impacted on the issue whether drugs had been found in the search of the Applicant’s shoulder bag and what were the keys he had in his hand.  

15. It was suggested by defence counsel to PW1, PW3 and PW4 that no drugs had been found in the search of the Applicant’s shoulder bag and that the keys he held in his hand were car keys and not keys to Room A.  Depending on where the search took place, the CCTV might or might not have shown what happened if the recording system had been operating, but even though it had been operating earlier that day, it was not operating at the relevant time.  In the words of the judge in his summing-up to the jury, 

“in assessing whether you accept the evidence of these three officers about the finding of the four packets in the [Applicant’s] bag, one matter you may wish to consider is whether there is any significance in the fact that while the CCTV machine was working, it was not actually filming [recording] at the time the police officers say the [Applicant] emerged from the lift. Mr Kwan [the Applicant’s counsel] , at one stage, seemed to indicate that there might be something suspicious in this, although I note that he did not repeat that in his final address”.

Recording of events earlier that day

16. The jury was shown the CCTV recording of events earlier that day but it is not known whether it was shown at normal or 4x speed. This court has watched the recording at normal speed. It showed two men entering the building that morning and approaching a female watchman. They then went off to a back part of the lobby together. A recording later that day showed the two men coming back to the building and someone crouching at the watchman’s desk. Later the system stopped recording.

17. It is the Applicant’s case on appeal that the two men were police officers (including PW1) and that it was they who had caused the recording system to stop, with the result that there was no recording later that day of the search of his bag and of what was in his hand.

18. However this was not put to the prosecution witnesses when they gave evidence. The recording was shown only after they had given evidence but the defence did not ask to cross-examine them again.

Grounds of appeal

19. The Applicant was unrepresented at the hearing of the application for leave to appeal on 10 August 2010.

20. The grounds he has put forward are:

(1) The conviction was not secure or safe.

(2) The judge did not refer the jury to the “movement record”.

(3) The judge was partial to the prosecution in his summing-up.

(4) The judge did not direct the jury on the “3-minute body search” and did not direct them on the events in the lobby.

(5) His counsel’s incompetence resulted in an unfair trial in that:

(1) his counsel did not cross-examine the police officers on the events earlier that day, when they met the female watchman (who the Applicant has identified as Madam Ho Shui Ling), after which the CCTV recording system stopped; the Applicant’s solicitors had found out from Madam Ho that the police officers had asked her for the key to the meter room where the recording equipment was placed, but Madam Ho was not called as a defence witness;

(2) his counsel did not ask the police officers why the DNA on cannabis cigarette butts was not examined;

(3) his counsel did not examine the watchman Mr Lau as to whether he saw the police officers writing at the desk;

(4) his counsel did not cross-examine the police officers on interferences with the video recording.

21. The first ground is a general one and does not warrant discussion.

22. As for the second ground, the “movement record”, by which we understand the Applicant means his travel record, was an agreed fact. Nothing turned on it in the circumstances of this case and it was not necessary for the judge to refer the jury to it.

23. As for the third ground, we have read the judge’s summing-up and we do not see any ground for the suggestion that the judge was biased in favour of the prosecution.

24. As for the fourth ground, the judge did direct the jury in some detail on the different versions given by PW3 and PW4 of the one part and the watchman Mr Lau of the other part of the time used for the search of the Applicant, and the events in the lobby at the time of his arrest. See pages 17-19 of the transcript.

25. As for the fifth ground, the Applicant’s former counsel Mr Kwan filed an affirmation in February 2010 dealing with the Applicant’s points.

(1) Mr Kwan said that after watching the CCTV recording showing events earlier that day, he found the quality so poor that it would have been impossible to discern what was taken out from the Applicant’s shoulder bag and what sort of keys he had been holding at the time. Mr Kwan also said there was no evidence to show the equipment had been tampered with. Further the Applicant had given specific instructions not to call Madam Ho as a witness. He exhibited to his affirmation a document signed by the Applicant in which he acknowledged that having considered that evidence of an earlier visit to the building by the police would lead to the inference that the police were targeting him, he decided to instruct his lawyers not to call Madam Ho.

(2) As far as DNA evidence was concerned, Mr Kwan said that the Applicant’s instructions were that he lived in the premises occasionally and that his DNA may be found on items such as towels and a toothbrush.

(3) Mr Kwan said he did examine the watchman Mr Lau on the discrepancy in timing and also stressed it in his closing speech. Having obtained from Mr Lau the evidence that he saw the police officers and the Applicant spend a brief period of time in the lobby and in the rear staircase area, followed immediately by the journey up the lift, Mr Kwan considered that he did not need to ask the witness whether he saw the police officers writing the caution at the lobby.

(4) Mr Kwan said that there was no evidence that the CCTV recording system had been tampered with.

26. Mr Kwan was present in court and was cross-examined in detail by the Applicant.

27. Dealing first with point (2), Mr Kwan’s reply in his affirmation did not really address the Applicant’s point which was directed at the DNA on cannabis cigarette butts, the point being that, irrespective of whether the Applicant had been inside the premises, it was someone else who had smoked dangerous drugs there. However the omission to advance that point would not have led to an unfair trial as there was evidence that dangerous drugs paraphernalia were on open display in the unit, the Applicant had just left it and important personal belongings such as his passport were found at the unit, indicating that he was living there. There was of course also the evidence of his own witness the watchman Mr Lau that he had been residing there for some time.

28. As for point (3), we agree with Mr Kwan that having obtained from Mr Lau evidence of timing which contradicted that of the police witnesses, a further question on whether he had seen the police officer writing a caution at his desk was unnecessary and may well have rebounded on the defence if the witness then recalled having seen that event.

29. Points (1) and (4) may be taken together and have caused us the most concern. First it would appear from Mr Kwan’s answers in cross-examination before us that he only watched the CCTV recording at 4x speed. Having watched it at normal speed, we consider that it would have been possible to identify the two men who had visited the building twice and spoken to Madam Ho earlier that day, after whose second visit the CCTV recording system stopped.

30. The Applicant says that the two men were in fact the police officers who later arrested him and he suggests that Mr Kwan should have explored the question whether they had something to do with the CCTV recording system, as the recording system stopped after their second visit. The Applicant suggests that the police officers deliberately stopped the recording system so that the events later that day would not be recorded.

31. In this respect, Mr Kwan said that first, there was no evidence that the CCTV recording system had been tampered with, and secondly, that the Applicant had given instructions not to call Madam Ho to testify about the police officers’ earlier visit as that would indicate that the police officers had been targeting him.

32. In respect of the first point, Mr Kwan relied on a letter dated 24^th April 2008 from the property management company to the police saying that it had checked “the CCTV tape” and found that “there is a mechanical fault on the CCTV recorder”. It was on this basis that Mr Kwan advised on the agreed fact that “due to the malfunctioning of the recording system, the CCTV tape Exhibit P148 when played, did not show events which occurred after 6pm on 23^rd May 2007”.

33. However Mr Kwan appeared to have neglected a witness statement made by the operator of the property management company, which showed that the inspection which discovered the mechanical fault was done only on 25 April 2008. As for the relevant date, which was 23 May 2007, the witness statement stated that from March 2006 to that date, the company “did not receive any malfunction complaint on the CCTV recording system”. Had Mr Kwan noticed the witness statement, he should not have agreed to the allegation that the recording system was “malfunctioning” at the time of the arrest.

34. Of course the fact that the recording system stopped without malfunctioning might or might not have been due to the police officers’ activities earlier that day. The Applicant’s complaint is that defence counsel should have cross-examined the police officers as to whether they did have some dealing with the recording system and found out why it stopped after their second visit. However because of the oversight regarding the property management company’s witness statement which led to the agreement of “malfunctioning”, the defence did not do so.

35. We agree that the agreement of “malfunctioning” had an impact on the defence which was run at trial. Immediately after the judge referred the jury to the fact that Mr Kwan had “at one stage, seemed to indicate that there might be something suspicious in this, although I note that he did not repeat that in his final address”, he went on to refer to the admitted fact that it was agreed that “the tape did not play due to a malfunction” and that the jury must accept the Admitted Facts as proved beyond reasonable doubt. He said:

“Bear in mind also that no suggestions of impropriety were put by Mr Kwan to any of the police officers regarding the CCTV machine. So you may think, and it is a matter for you, that there is no sinister significance in the fact that the CCTV was not actually recording … at that material time”.

36. This would suggest that if the defence had pursued the line that the police officers did have something to do with the CCTV machine, that would have been a matter of significance.

37. However Mr Kwan’s second answer was that the Applicant had given instructions not to call Madam Ho to testify about the police officers’ earlier visit. Mr Kwan agreed that the Applicant had given him instructions at the time of the trial that the police officers had told him that they were targeting the 2^nd Defendant, who was the tenant of the unit. However the written instructions stated clearly:

“My team of lawyers reported to me that if I insist on applying to the court for recalling the first prosecution witness and calling the female watchman, the prosecution will reveal that I was the identified target before I had been arrested. Under the circumstances, I decided to withdraw the instruction after thorough consideration. Now the first prosecution witness and the female watchman will not be called”.

38. According to the Applicant, he signed those instructions as Madam Ho had gone back to the Mainland for a visit and as Mr Kwan told him she could be called on appeal. This was denied by Mr Kwan.

39. The Court of Final Appeal has in Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126 established the principles governing appeals grounded on counsel incompetence. As a general rule, an accused person is bound by the way the trial was conducted by counsel, even if decisions made involved negligence. The crucial question was whether the appellant had a fair trial. It was unlikely that anything short of a very high degree of defence incompetence would ever reduce a trial to something less than a fair trial.

40. In the present case, Mr Kwan agreed that even before the Applicant knew that the CCTV recording was not available, he had given instructions that the drugs had not been found in his shoulder bag and that he was only holding car keys in his hand when he emerged from the lift. The correspondence showed that the Applicant through his solicitors sought the CCTV recording from the police persistently. Had Mr Kwan realized that the system was functioning properly, he should not have agreed that it was “malfunctioning”. He should have cross-examined the police officers as to whether they had any dealings with the recording system earlier that day, and if they had caused the system to stop, how and why they did so.

41. However it is important to note that there was other evidence available from Madam Ho that police officers had met with her that morning and had asked for the key to the meter room where the recording equipment was placed. It was an agreed fact that the recording system stopped thereafter. Presumably if the defence had called Madam Ho, a request to recall the police officers would probably have been allowed by the judge and the defence could have withdrawn the agreement of “malfunctioning”. However there were specific instructions from the Applicant not to call Madam Ho. This is clear from the Applicant’s written instructions exhibited to Mr Kwan’s affirmation. The Applicant’s suggestion that Mr Kwan told him that Madam Ho could be called on appeal was not raised previously and was not included in the written instructions as a reason for not calling Madam Ho.

42. As for the Applicant’s suggestion that the recording showed that the police officers had visited the building and met Madam Ho before the “briefing” at 11:00 am recorded in PW1’s notebook, there is nothing in the notebook to indicate that it was only at that briefing that PW1 learnt of police interest in that building.

Conclusion

43. In conclusion, although we were disturbed by Mr Kwan’s mistake in agreeing that the recording system was malfunctioning in the circumstances described above, we do not consider that it led to an unfair trial because (if the Applicant had so wished) he could have adduced evidence of police interference with the recording system through Madam Ho. However he chose not to do so for a valid reason. The Court of Final Appeal has held that only a very high degree of defence incompetence would reduce a trial to something less than a fair trial, and in the present case we do not think that that high threshold has been reached.

44. The application for leave to appeal is accordingly dismissed.