HKSAR v. YUEN HOI LAM

[English Translation – 英譯本]

CACC 66/2022, [2024] HKCA 872

On appeal from: [2022] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2022

(ON APPEAL FROM HCCC NO 210 OF 2020)

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JUDGMENT

Hon Anthea Pang JA (giving the Judgment of the Court):

Introduction

1.  The appellant stood trial for two counts of “trafficking in a dangerous drug” [1] before Barnes J (“the trial judge”) sitting with a jury. After trial, she was acquitted of the 1^st count but convicted of the 2^nd count and sentenced to imprisonment for 10 years.

2.  The appellant had originally applied for leave to appeal against both conviction and sentence. However, after her application was dismissed by a single judge,[2] she renewed her application for leave to appeal against conviction only. After the hearing on 6 February 2024, we granted leave for her to raise Ground 2 out of time. The case was then adjourned so that Ground 2 could be dealt with together with the renewed application on Ground 1.

The prosecution case (2^nd count)

3.  This case arose from an anti-drug operation conducted by the police at Tong Mei House, Tong Mi Road on 12 April 2019. The 2^nd count alleged that the appellant unlawfully trafficked in various types of dangerous drugs with a total value of $290,000 inside a flat at Tong Mei House (“the flat”).

4.  At trial, the following matters were not in dispute:

(1)  plainclothes police officers intercepted the appellant in the staircase of the rear block of the building and took her back to the flat for a further search;

(2)  the appellant was the tenant of the flat, the tenancy being from 20 March 2019 to 19 March 2020;

(3)  police officers found in the flat the dangerous drugs particularised in the 2^nd count, two electronic scales, one sealing machine and some resealable plastic bags; and

(4)  the police found the appellant’s DNA, fingerprints, palm prints and footprints on sundry items in the flat.

The defence position

5.  The appellant elected to testify and called three defence witnesses, including two social workers (“DW2” and “DW3”), the appellant’s mother (“DW4”), as well as Dr Choi who testified for the defence as an expert in psychiatry (“DW5”). The testimony of DW2, DW3 and DW5 is not relevant to the present grounds of appeal, and there is no need to set it out.

6.  The defence case, in summary, was as follows: the appellant did not dispute trafficking in the dangerous drugs involved. She admitted that she was responsible for “running the warehouse” but she did so under duress by “unscrupulous elements”.[3]

7.  The incident occurred on 6 March 2019. On that day, a man unknown to the appellant contacted her, claiming that she had lost “the goods” and that she had to compensate for it. The appellant first raised $35,300 from her mother and deposited the money into three accounts as instructed (it was not disputed that $15,000 of that sum was deposited into her personal account). Thereafter, the “unscrupulous elements” again accused the appellant of owing $15,000 and coerced her into handling dangerous drugs to offset the amount owed, claiming that, if not, the appellant or her family would be harmed. The appellant therefore handled dangerous drugs in the flat as told and even stayed there overnight.[4]

8.  The “unscrupulous elements” later changed the amount owed to $30,000 and demanded the appellant to write an IOU. They also indicated that if she did not repay on time, her right hand would be chopped off. The appellant thus continued to handle the dangerous drugs as instructed.

9.  During DW4’s examination-in-chief, the defence produced screenshots of some WhatsApp conversation between DW4 and the appellant at the material time (“D14 to D16”) to show that the appellant had repeatedly asked her mother to raise money and make deposits in early March 2019. DW4 pointed out that she had called the police as her daughter had been pressed to pay debts, but her daughter told her to drop the case.

10.  When cross-examining DW4, the prosecution produced another set of screenshots of WhatsApp conversation between the appellant and DW4 (“P61”), which the defence legal representatives voluntarily handed over to the police for investigation after the appellant had been arrested. The contents were consistent with D14 to D16 but relatively more complete.

11.  The defence did not apply to recall the appellant to testify on P61.

Grounds of appeal

12.  Mr Eric Cheung Tat-ming, solicitor advocate for the appellant, advances two grounds of appeal, including a slightly amended Ground 1 for the renewed application for leave to appeal, and Ground 2, for which extension of time has been granted.

Ground 1: In breach of the principle in Browne v Dunn[5]

13.  This complaint concerns two evidential matters:

(1)  the prosecution did not cross-examine the appellant as to why $15,000 had been deposited into her own bank account, but attacked the appellant on this point in its closing submissions; and

(2)  the prosecution did not adduce P61 when cross-examining the appellant, but sought to rebut the case of duress by quoting extensively from this exhibit in its closing submissions.

Ground 2: The prosecution breached the principle of not splitting its case

14.  This complaint also involves the above two matters: since the prosecution relied on the $15,000 deposit and P61 to rebut the defence case of duress, it should have dealt with the evidence when it presented its case.

The submissions in gist

15.  Although different legal principles are involved, the basis of the two complaints is largely the same.

16.  As far as the splitting of the prosecution case (Ground 2) is concerned, Mr Cheung relies on a number of authorities to show that, except in the case of an unexpected issue which could not reasonably be foreseen (ex improviso) or a mere technical omission, the prosecution should deal with all the evidence on which it relies before the close of its case: HKSAR v Tsang Kai On,[6] R v Phillipson,[7] Shaw v R,[8] Killick v R, [9] R v P. (M.B.),[10] R v Biddle,[11]and R v Chin.[12]

17.  Mr Cheung further contends that the reason why the prosecution should not split its case is to give effect to the principle of fair trial, i.e. a defendant has the right to know the full scope of the prosecution case before the commencement of the defence case in order to effectively mount a defence covering all relevant matters, which includes his decision to testify or not. Thus, when the prosecution relies on evidence not included in the prosecution case but adduced after the defendant has testified, the importance of that piece of evidence may be unfairly magnified in the eyes of the jury. This is particularly so if the piece of evidence is used to rebut the defendant’s testimony or other defence evidence. The authorities also point out that even if the defendant is given an opportunity to testify again in response to the prosecution’s rebuttal evidence, the prejudice caused to the defendant by splitting the prosecution case could still not be remedied. For example, the defendant will have to be cross-examined and his credibility questioned again. In the circumstance, the jury may take the view that the defendant has not told the whole truth in his first testimony.

18.  Returning to the present case, Mr Cheung says that the prosecution had been aware of the existence of P61 before opening its case and had understood that the appellant’s defence was duress. However, they   chose not to produce P61. It was only when the defence, taking into account DW4’s deafness and dumbness, produced D14 to D16 to assist her to give evidence on the relevant matters did the prosecution then adduce P61 and use it in its closing submissions to question the defence case of duress. Undoubtedly, this is splitting the prosecution case.

19.  When asked by this Court, Mr Cheung confirms that if the prosecution had only used D14 to D16, or even P61 (its production was not opposed by the defence at the time) to cross-examine DW4 and to challenge her credibility, the appellant would not complain. The problem is that, at its closing submissions, the prosecution sought to establish its case by quoting extensively from P61 (to rebut the existence of duress). This was contrary to the requirement that the prosecution cannot split its case.

20.  As to the $15,000, Mr Cheung is of the view that the same applies. Prior to the commencement of the trial, the prosecution had already gathered from the letter dated 22 October 2019 (which was handed over to the police by the defence lawyer) and from the relevant bank records that the appellant had deposited that amount of money into her own account. However, the prosecution did not deal with it in its case and did not make any criticism concerning this part of the evidence until they closed their case. That was tantamount to splitting the prosecution case and was unfair to the appellant.

21.  In respect of Ground 1, Mr Cheung submits that the failure of the prosecution to first cross-examine the appellant on the matter before making extensive criticism in its closing amounted to a breach of the principle in Browne v Dunn.

22.  Mr Michael WONG Kin-bong, Senior Assistant Director of Public Prosecutions for the respondent, does not dispute the above principles relating to prohibition on splitting the prosecution case and the rule in Browne v Dunn, but considers them not applicable to the present case.

23.  The reason is that insofar as the prosecution case is concerned, P61 had no probative value (it could be said to be of assistance to the prosecution, or conversely to the defence). This neutral position remained the same even at the time when the appellant testified for she did not produce or explain P61. Mr Wong emphasizes that the prosecution had no direct evidence to prove the provenance of P61. Therefore, the prosecution could not have adduced P61 in the prosecution case. It was after considering all the circumstances, including the danger that the jury might think D14 to D16 contained the entire conversation did the prosecution then decide to adduce P61 (which was a more comprehensive record of the conversation) when cross-examining DW4. This was not a splitting of the prosecution case. As to the $15,000 deposit, it was never part of the prosecution case. It only became relevant when the appellant gave evidence.

24.  As far as the principle in Browne v Dunn is concerned, Mr Wong submits that since the appellant did not produce P61 when she testified, there was nothing wrong with the prosecution not cross-examining her on it. Moreover, the prosecution had cross-examined the appellant on all the surrounding circumstances and the details of the incident and had clearly indicated its utter rejection of the appellant’s alleged case of duress. Further, the prosecution had no contrary case to put to the appellant as to why the $15,000 had been deposited into her account. Therefore, the way the prosecution conducted its case did not cause any prejudice to the appellant: HKSAR v Tsoi Sheung Ki,[13] R v Coswello,[14] Khamis v R,[15] Gutierrez v R,[16] Manukau v R,[17] R. v. A.D.G.[18]and Smith v R. [19]

Discussion

Ground 2

25.  We will first deal with Ground 2.

26.  It is not possible to generalize what constitutes a split of the prosecution case. Taking the authorities relied on by Mr Cheung as examples, the factual backgrounds of the cases vary:

(1)  In Phillipson, the prosecution failed its duty and did not disclose to the defence the relevant evidence prior to trial. Yet, the defendant was cross-examined on it with a view to destroying the defence case of duress;

(2)  Killick is a case where the prosecution already knew at the extradition hearing that the defendant would rely on alibi evidence as a defence. However, they failed to adduce in the prosecution case the evidence which could rebut the claim. Only after the close of the defence case did the prosecution then call witnesses to testify on the matter;

(3)  The case of Biddle was about identification evidence. Likewise, the prosecution did not adduce the evidence capable of rebutting the defence case until after the defendant had testified, and the trial judge even took it as “similar fact evidence”;

(4)  In Chin, although the prosecution had already got hold of the two defendants’ entry application forms and had noted that the telephone numbers of the two applicants shown on the application forms were identical, they did not produce the forms in the prosecution case. Nor did they cross-examine D1 on the numbers in question when he testified. Rather, they cross-examined his co-accused D2 on these identical numbers when D2 gave evidence. As a result, D1 had to be recalled to testify.

27.  In the above authorities, the prosecution denied splitting its case. The reasons included the following: it could not be ascertained beforehand that the defence would rely on the particular defence (Killick); there was no basis to adduce the evidence in the prosecution case (Phillipson and Chin); and the defendant might be able to tailor the defence case if the relevant evidence was disclosed in the prosecution case (Phillipson).

28.  Since different issues and difficulties may arise in a criminal trial, the authorities did not lay down any particular formula for dealing with complaints about the prosecution splitting its case. The general principle is that the prosecution has to adduce all evidence which would assist in proving the charge before the close of the prosecution case, and it is highly exceptional to do otherwise. Before the court would allow the prosecution to do otherwise, the overall circumstances must be that such an approach will not cause any prejudice to the defendant, nor rendering the trial unfair.

29.  In the present case, Mr Wong asserts in both his written and oral submissions that P61 was not evidence relied upon by the prosecution. It was therefore not part of the prosecution case. Mr Wong also states that if the defence had not produced D14 to D16 when DW4 testified, the prosecution would not have adduced P61. We have no intention to question what Mr Wong said, but the fact is that P61 was ultimately admitted into evidence. Therefore, we are concerned as to what use the prosecution made of P61 and whether or not what the prosecution did in this case had caused any unfairness to the appellant.

30.  We should begin with the prosecution’s closing submissions when examining the above matters.

31.  Anyone having a close reading of the prosecution’s closing submissions would notice that the main plank was P61 (except comments made in respect of the psychiatrist’s evidence). The extent is apparent in the following examples. For instance, the prosecution indicated that P61 was “closely related” to the issue of duress alleged by the defence;[20] that P61 “says it all”;[21] and that “P61 contains all” the answers to the issue.[22]

32.  Furthermore, we are particularly concerned about the following submission:

“What comes next is crucial, at the bottom left corner, ‘I will not be chopped. I have just ‘Chui Tai Cho’ (meaning: overstated the matter).’ Well, I think ‘Chui Tai Cho’ is a slang that people commonly use. Many would say it as a colloquial expression, but not in the bookish manner. Well, I don’t think it’s necessary for an expert in literature to explain the meaning of ‘I Chui Tai Cho’ (meaning: I have overstated the matter).” So was she under duress or not? Well, here it may shed some light on that...”[23] (Emphasis added)

33.  It appears that the purpose of the above submission was not merely to show the context in which the conversation between the appellant and her mother took place, but to use the remark ‘Chui Tai Cho’ in P61 to prove that the appellant was cooking up a story, thus rebutting her case of duress. If prosecuting counsel took the contents of P61 as statements of fact like this, not only did such go against the trial judge’s directions and the agreement between both parties (i.e. the contents of the conversation could not be relied on as true and accurate statements of fact), it would also mislead the jury into believing that they could take this “crucial” remark into account in deciding whether or not the appellant was under duress. However, the fact could be that the appellant did not ‘Chui Tai Cho’ and she was indeed under duress; and she said so merely hoping to pacify DW4 so that she would drop the case. As the appellant was not cross-examined on this, there was no way to know what her response would be. What is clear is that the prosecution could not rely on this remark to prove that the appellant had in fact exaggerated the matter ‘Chui Tai Cho’.

34.  Thus, whatever the original intention of the prosecution might have been, we consider that the prosecution had overstepped the boundary in its closing submissions by making extensive references to P61 so as to rebut the defence of duress, and not merely to undermine DW4’s credibility. In the circumstances, the prosecution was, in effect, relying on P61 to establish its case.

35.  We certainly have much reservation as to whether the prosecution could adduce P61 in its case. We note that P61 was handed over to the police by the appellant’s solicitors. The police were not the ones who extracted the conversation from the appellant’s phone. In other words, the prosecution simply had no witness who could testify on the provenance of P61.

36.  The situation, however, was different when the appellant testified. If the prosecution intended to use P61 to rebut the defence of duress, the prosecution could cross-examine the appellant on this. Such questioning could be conducted irrespective of whether or not the appellant had dealt with it in her evidence-in-chief. If the prosecution decided not to pursue this line of cross-examination, then they should exercise restraint not to use P61 as the main basis in their closing submissions to challenge the appellant’s case of duress, but only to attack DW4’s credibility.

37.  In our view, what the prosecution did in the present case was undoubtedly tantamount to withholding from the appellant the evidence that could rebut the defence of duress until its closing submissions, thereby not giving the defence an opportunity to know in advance all the evidence relating to the prosecution case and to respond accordingly. As a result, unfairness was caused to the appellant.

38.  However, in respect of the matter of $15,000, we accept Mr Wong’s submission that the deposit was never part of the prosecution case. It was only relevant to the defence case when the appellant testified. Thus, there was no splitting of the prosecution case.

Ground 1

39.  Since the prosecution quoted extensively from P61 and highlighted its importance in its closing submissions, we are of the view that they should have cross-examined the appellant on P61. However, as far as the $15,000 is concerned, our view is that the prosecution had made it clear when cross-examining the appellant that the claim of duress was utterly rejected. It was therefore unnecessary for the prosecution to cross-examine on that particular detail: HKSAR v Leung Wai Kit [24] para. 23.

Conclusion

40.  For the reasons given above, Grounds 1 and 2 (the part relating to P61) are made out. We allow the appeal, quash the conviction and set aside the sentence.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.