HKSAR v. LI CHI HO

CACC147/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.147 OF 2001

(ON APPEAL FROM HCCC 272 OF 2000)

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REASONS FOR JUDGMENT

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Suffiad J (giving the judgment of the court) :

1. The applicant was charged with two counts of trafficking in a dangerous drugs and was convicted after trial before Deputy Judge Toh and a jury in the Court of First Instance on 29 March 2001. He was sentenced to 23 years' imprisonment on each count, the sentences to be served concurrently.

2. He now seeks leave to appeal against both conviction and sentence. After hearing what the applicant had to say and after considering the further grounds of appeal handed to the Court by the applicant at the hearing, we dismissed his application for leave to appeal both in respect of conviction and sentence. We indicated that we would give our reasons later which we now do.

Prosecution's case

3. In a nutshell the prosecution's case was that on the morning of 3 June 2000, customs officers who were keeping observation on a car FU2935 parked at the Kai Hing Carpark in Tai Po, saw the applicant and another man approach this car at about 10:10 a.m. They looked around it several times and then the applicant unlocked the left front door of the car with a key, opened the boot of it with a key, searched for something in the boot and eventually took out a plastic bag. He then closed the boot.

4. The applicant then walked to the left side of the car towards the left front door of it holding the plastic bag in his hands. When the customs officer went up to intercept the applicant, he started to run away. He was eventually stopped, put up a struggle and was finally subdued by them. At that time the applicant was holding two keys in one hand and the plastic bag in the other which was found to contain a slab of heroin. The applicant was then arrested.

5. The other man was also stopped by the customs officers but no contraband was found on his person.

6. All these occurrences were recorded on video camera by the customs officers mounting the surveillance.

7. When the applicant was taken back to the car, customs officers were able to open the boot of the car with the keys found in the hands of the applicant. A search of the boot of the car revealed a further 11 slabs of heroin placed in different boxes and paper bags. The applicant was further cautioned in respect of the 11 slabs of heroin.

8. The slab of heroin found in the plastic bag held by the applicant contained 619.69 grammes of heroin hydrochloride while the further 11 slabs of heroin found from the boot of the car contained 2393.68 grammes of heroin hydrochloride.

9. The total drugs seized had a street value of $2,294,005.50. The value of the one slab in the plastic bag was $471,754.10 whilst that of the 11 slabs inside the boot of the car was $1,822,251.40.

10. The above summary of the prosecution's case was contained in the Admitted Facts reduced into writing before the jury.

The defence

11. The applicant gave evidence in his own defence which was that after the applicant finished playing billiards with an acquaintance by the name of Wong in Kowloon Bay at 7:30 a.m. on 3 June 2000, Wong asked the applicant to go with him to Tai Po to return a car key to Wong's friend. At first reluctant, the applicant was however persuaded by Wong to go with him.

12. When they arrived at the Tai Po train station and after waiting for some 10 minutes, Wong's friend called Wong on his mobile phone to say that he was not coming but asked Wong to take something from the car to give to another friend. The applicant and Wong then walked to the car park which was some 10 minutes walk away.

13. When they reached the car park Wong gave the keys to the applicant and told him to get a packet wrapped in yellow paper from a Daewoo car which was gold in colour inside the car park. The applicant did not know the registration number of the car and he did not ask Wong what was the item as he trusted Wong and did not think it was anything important. Nor was he told where the item was in the car.

14. He found the Daewoo car gold in colour, he then looked in the car from the outside, and then went to open the boot of the car with the key. From the boot he took out a packet wrapped in yellow paper and put it in a plastic bag in order to ask Wong if that was the item.

15. After the applicant had closed the boot of the car, he saw a man with long hair rushing up to him. The man looked fierce and he became afraid so he turned and ran. Then many persons rushed up and hit him. He did not hear anyone revealing their identity.

16. After he was hit by these people, the applicant was asked what he was holding and he told them he did not know. He was then asked about the keys and the applicant offered to take these people to the car. Back at the car, when the boot was opened, the applicant again denied knowing what the objects were in the boot of the car.

The issues

17. From the above summary of the prosecution's case and the defence run by the applicant at the trial, it is clear that the real issues for the jury to decide were whether the applicant had knowledge of the drugs which were in the plastic bag he was holding when stopped by the customs officers as well as knowledge of the drugs found in the boot of the car; whether he was in possession of those drugs and whether he was trafficking in them.

The appeal against conviction

18. The applicant appears before us in person, legal aid having been refused him for this appeal. In his grounds of appeal signed by the applicant acting in person, the grounds advanced simply state that the judge instructed the jury in an unfair manner and had informed the jury of evidence which was not produced in the court. No particulars of that evidence not produced in court had been given in the written grounds.

19. At the hearing the applicant handed up to the Court two further grounds of appeal written in English. These further grounds are that firstly, the trial judge misdirected and/or confused and/or failed properly to direct the jury on the issue of lies as evidence of guilt and secondly, that the applicant did not receive a fair trial as the trial counsel had without the applicant's knowledge and consent and failed to properly explain to the applicant the detriment to the applicant's case of the Admitted Facts.

20. At the start of the judge's summing up to the jury, it is apparent that the judge had, in a fair and balanced manner, directed the jury as to the real issues for them to decide.

21. She had gone on to give them a proper direction as to the legal requirements for the offence of trafficking in dangerous drugs, the proper approach to adopt in drawing inferences when it comes to the knowledge (or lack of it) of the applicant in so far as the drugs were concerned, and the meaning in law of possession and of trafficking.

22. Moreover, the judge had gone on to give a full direction to the jury as to the law and had fairly summarized the evidence called by the prosecution and also by the defence.

23. In so far as the further grounds of appeal are concerned, dealing firstly with the lies directions given by the judge to the jury, the judge first directed them as to lies in this way :

"Now I turn to the topic of lies. You will remember that when the defendant was cross-examined by Mr Poon, Mr Poon said to him that he had lied in the witness box. The defendant never accepted that he had told any lies, that is that it means a deliberate untruth when giving evidence in this courtroom.

However, if you are sure that the defendant has lied to you in any part of his evidence, you must not conclude immediately then, 'Oh, you know, I'm sure if he lied on that subject he must be guilty.' That is something you must not do. Because if you are sure, for example, that he lied on something, then you have to go on to ask yourself, 'Why has he lied?'

You must bear in mind the mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example, to bolster or improve an otherwise true defence, to protect someone else, or to conceal disgraceful conduct short of the commission of the offence charged, or simply out of panic or confusion. If you think that there is or may be some innocent explanation for his lies, then you should take no notice of those lies. But if you are sure he did not lie for some such innocent reasons, then his lies can support the prosecution's case."

24. At the end of the summing up, counsel for the prosecution addressed the judge in the absence of the jury effectively inviting the judge to further direct the jury on the direction already given as to the lies of the defendant, in order to say that the lie must be deliberate, must be a material lie, it must be motivated by a realization of guilt and a fear of the truth and that the lie must be shown to be a lie by the evidence.

25. To that invitation by the prosecuting counsel, counsel for the applicant at the trial had nothing to say. The judge then acceded to such invitation, brought back the jury and further directed them as follows :

" Thank you, members of the jury. There is just one matter that Mr Poon thinks I may not have been quite clear. And I think perhaps it is better for me to elaborate on this, and that is about lies. As I told you, you can consider the lies only if you consider that it was a deliberate untruth when giving evidence in court. And you must be sure that he did not lie for an innocent reason before you can use the lie to support the prosecution's case.

Before it can be used, there are four conditions which must be met: firstly, you must decide if the lie is a deliberate one, secondly, the lie must be material - that is it is a lie which is material to the case before you; thirdly, the lie must be motivated by a realization of guilt and the fear of the truth. So if you decide that it was a deliberate lie and that the lie was a material one, then you must consider whether it was motivated by a realization of guilt and the fear of the truth; and fourthly, that the lie must be shown to be a lie by evidence, other than that of a person who himself needs to be corroborated.

So there are four conditions which you have to consider before you can consider the lie to be supportive of the prosecution's case. Firstly, it must be a deliberate lie; secondly, it must be a material lie; thirdly, it must be motivated by a realization of guilt and the fear of the truth; and fourthly, the lie must be shown to be a lie by evidence other than that of a person who he himself needs to be corroborated. So that is basically the four conditions that have to be met."

26. After this supplemental direction was given, the jury was then sent out to deliberate on their verdict at 12:07 p.m. Had the direction on lies rested there, that would undoubtedly have been a wrong direction in law to the jury. However, some one and a half hours later, during the lunch break, the judge came to realize that those directions given by her earlier did not conform with the decision of this Court in the case of Mo Shiu Shing [1999] 2 HKLRD 155. Having armed herself with a judgment of that case, and after admonishing prosecuting counsel in the absence of the jury for misleading her into giving the second direction as to lies in the way that it was given, the judge had the jury brought back into court for the following further directions which she then gave to the jury :

"Members of the jury, I am sorry to have to ask you to come back and interrupt your lunch hour. It is very important that I correct this immediately. Please ignore what I said to you before you went out to deliberate your verdict. You remember you were asked to retire because Mr Poon had something to say to me, and after you came back I read something out to you about lies.

Now, ignore all that I said about that, because it is not appropriate. And remember what I told you earlier in my summing up about lies, and consider that. And I will repeat here what I said to you earlier on, because that is the correct one. And it is this, that you must decide whether the defendant did, in fact, tell lies.

If you are not sure he did tell lies, then you must ignore the matter altogether. If you are sure that he did lie, then you must next consider why did he lie. The mere fact that the defendant tells a lie is not in itself evidence of guilt. So you mustn't think that just because he lied he is guilty.

A defendant may lie for many reasons, and they may possibly be innocent ones in the sense that they do not give an indication of guilt. For example, lies to bolster a true defence or to protect someone else, or to conceal disgraceful conduct short of the commission of the offence, or simply out of panic or confusion. Or it may be because he believed that if he told you the true story, it is unlikely to be believed, so he makes one up which he believes is more convincing. So it may be for a perfectly innocent reason like this.

If you think there is or may be an innocent explanation for his lies, then you should take no notice of those lies. So if you think that he lied out of panic or confusion, or because for any innocent reason, then ignore the lies.

It is only if you are sure that he did not lie for an innocent reason that his lies can be regarded by you as evidence which supports the prosecution's case. The mere fact that the defendant tells a lie - and I reiterate - is not in itself evidence of guilt. If you find the defendant had lied and that the lie may have been for one of the reasons which I have suggested, then pay no attention to that lie. Simply disregard the evidence which you find untruthful and only concentrate on the evidence which the prosecution has satisfied you is true, and on that part of the defence evidence which you find to be true or which you find may be true, all right.

So let me make it very clear to you that this is the acceptable direction on the law relating to lies. Please disregard what I have said to you earlier on just before you retired, all right. Thank you, members of the jury. I am sorry, your lunch will be served now. Thank you very much. And you may depart, thank you."

27. In the light of these further directions given by the judge to the jury during their lunch break, we are of the view that whatever error there may have been in her earlier directions as to lies, was sufficiently put right by these further directions. In particular, the strong words used by the judge telling the jury to ignore and disregard the earlier directions given just before they retired would have left the jury in no uncertainty that what she now directed them on was the proper and correct direction in law in so far as lies were concerned.

28. We further take the view that since the judge was able to correct herself during the lunch break, any damage which might have been done by her erroneous direction on lies was cured in good time. The jury did not come back with their verdict until 4:29 p.m. the same day.

29. For these reasons that ground of appeal fails.

30. Turning now to deal with the second of the further grounds of appeal, namely that the Admitted Facts were admitted by defence counsel without the applicant's knowledge or consent and that they were not properly explained to the applicant, it is submitted by the applicant that he had never run away from the customs officer or put up a struggle but that those matters were included in the Admitted Facts. The applicant also takes objection to paragraphs 3, 5, 7, 9, 12 and 13 of the Admitted Facts.

31. Firstly, we note that the occurrences which took place at the car park in relation to the applicant, the other male and the car FU2935 were recorded on video camera by the surveillance officers carrying out the observation on that car. That video recording was produced in evidence at the trial. In those circumstances, we can see no other alternatives open to the defence but to admit those occurrences which were captured on video recording and produced into evidence. Those occurrences certainly encompass paragraphs 3 and 5 of the Admitted Facts.

32. Secondly, the applicant gave evidence in the trial which the judge summarized as follows :

"When he (the applicant) said he took that one, and he closed the boot, and he was walking after closing the boot, when he saw a long-haired man rush up, he was afraid as the man looked fierce and came at him 'with an evil mind' he said. So he turned and ran, and many people rushed up and hit him. And he did not hear anyone reveal their identity."

33. That summary of the applicant's evidence by the judge put paid to his contention now that he did not run away and he did not struggle.

34. Paragraph 7 of the Admitted Facts deals with the medical certificates, confirming neither the applicant nor Customs Officer 88110 suffered any injury when they were examined shortly after the arrest. That admission was based on the contents of the medical certificates.

35. Paragraph 9 of the Admitted Facts deals with street value of the drugs seized.

36. Paragraphs 12 and 13 of the Admitted Facts deal with the fact that the fingerprints of the applicant were not found on any of the exhibits (which incidentally is in the applicant's favour) and also various reasons factually why identifiable fingerprints may not be left on an object even when it has been touched by a person.

37. We take the view that those matters admitted under paragraphs 7, 9, 12 and 13 are not matters in issue in the trial. If these matters had not been admitted, the Prosecution would have called evidence from the doctor, the drugs expert and the fingerprint expert to prove them.

38. In all the circumstances of this case we are unable to see any merit in this ground of appeal either.

39. In conclusion we are of the view that the judge had fairly and properly summed up the case leaving it to the jury to decide on the real issues in dispute.

The appeal against sentence

40. The ground of appeal against the sentence was that the 23 years sentence passed on the applicant was manifestly excessive.

41. The guideline set by this court in the case of Lau Tak Ming [1990] 2 HKLR 370 indicates that a 20 years starting point is appropriate for offences involving more than 600 grammes of heroin.

42. In line with the decision by this court in the case of HKSAR v. Chow Yu Chi, CACC 395 of 2000, the judge was correct to have calculated the starting point by combining the weights of the heroin in both counts to arrive at a total weight. That total weight in the present case would come to 3,013.37 grammes.

43. On that basis the sentence of 23 years' imprisonment cannot be said to be manifestly excessive and there is no merit in this ground of appeal against sentence.

44. In his further grounds of appeal against sentence, the applicant attempted to compare his sentence of 23 years with the sentence of 18 years passed by another judge in another case on another defendant who was convicted after trial of trafficking in a not dissimilar amount of heroin and whose application for leave to appeal against sentence came before us on the same morning as did this applicant's. In fact, that application was abandoned at the start of the hearing and in dismissing the application upon such abandonment, we commented that the applicant in that case should consider himself lucky to have been given an inordinately light sentence for the offence for which he was convicted. However, the good fortune of that applicant in receiving a sentence which was far lower than it should have been does not assist the applicant in the present case whose sentence was well within the proper level for the amount of heroin in which he was trafficking.

Conclusion

45. It is for the reasons given above that leave was refused for both the appeal against conviction and sentence.