HKSAR v. NGIE HON MIU

CACC 263/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2012

(ON APPEAL FROM HCCC NO. 400 OF 2011)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant seeks leave to appeal his conviction on 19 June 2012, after trial before Line J and a jury, of one count of conspiracy, with Chan Tin Yu (‘Chan’) and Luk Chi Fai (‘Luk’), to unlawfully traffic in a dangerous drug, namely methamphetamine hydrochloride (‘Ice’), between 11 and 28 August, 2008, contrary to section 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134, and section 159A of the Crimes Ordinance, Cap. 200, for which he was sentenced to 27 years’ imprisonment.

2. That trial was a re-trial.  In September 2010, the applicant was tried on two counts of conspiracy to traffic unlawfully in a dangerous drug, between January and July 2007 (Count 1) and in August 2008 (Count 2).  The applicant was acquitted of Count 1, but convicted of Count 2.  On appeal his conviction was quashed by this Court on 27 October 2011 and a re-trial ordered.[1]

Delay

3. There has been a truly lamentable delay of 3½ years from the applicant’s conviction to this hearing.  As is apparent from the papers, the applicant is responsible for much of that delay himself.  A total of five Mention hearings were adjourned or vacated at the request of the applicant, three of which were before the Chief Judge of the High Court.  Although his application for legal aid was refused on 17 September 2012, as was his request for the pro bono assistance of the Bar Association on 29 May 2013, it was only on 7 August 2013 that Messrs Tang, Wong & Cheung filed a notice to act with the Court.  However, on 29 October 2013 the applicant filed a notice with the Court to act in person.  On 13 December 2013, on the application of the applicant, who was unrepresented having discharged his legal representatives, a differently constituted Court adjourned the hearing of the application, so that the applicant could instruct counsel.  Although Messrs Pauline Wong & Co filed a notice to act on behalf of the applicant on 7 March 2014, on 22 September 2014 the applicant again filed a notice with the Court to act in person.  On 19 December 2014, Messrs Cheung & Liu, the applicant’s solicitors at this hearing, filed a notice to act.  However, perfected grounds of appeal against conviction were not filed with the Court until 12 March 2015.  On 23 June 2015, this Court adjourned the hearing of the application at the request of Mr Grounds, so that, having been granted leave to amend his grounds of appeal he could draft amended perfected grounds of appeal, averring that the applicant’s trial was unfair arising out of the allegedly incompetent conduct of his defence by counsel, Mr Francis Cheng Ming Bun, at trial.

4. At the direction of the Court, having been supplied with the Appeal Bundle and the proposed amended perfected grounds of appeal, Mr Cheng filed an affidavit with the Court dated 9 September 2015, in which he addressed the allegations made in the amended grounds of appeal.

The trial

5. There was no dispute that at about 12:30 p.m. on 28 August 2008, a team of police officers was conducting an anti-dangerous drug operation near Wah Yau House in Tin Shui Wai.  The applicant was the driver of a Mercedes Benz motor car, which had stopped and parked at Wah Yau House.  Luk was also on board the car.  The applicant alighted and went to a nearby 7-11 store.  Then, Chan came out of Wah Yau House, carrying a plastic bag, which was found later to contain 4.68 kilogrammes of Ice.  Chan boarded the motor car and sat at the rear seat, having placed the plastic bag on the floor of the rear passenger seat.  Next, the applicant returned to the car.  Then, police officers moved in, seized the dangerous drugs and arrested all three men.

6. On 30 August 2008, Chan was charged with the offence of trafficking unlawfully in the dangerous drugs.  Neither the applicant nor Luk was prosecuted at that stage. On 29 March 2009, Chan pleaded guilty to unlawfully trafficking in the dangerous drugs, seized by the police from the Mercedes Benz motor car on 28 August 2008, and was sentenced to 16 years and 6 months’ imprisonment. However, in advance of doing so, on 19 February 2009, Chan had made the first of numerous non-prejudicial witness statements in which he implicated the applicant.

7. On 11 September 2009, the applicant was re-arrested for conspiracy to traffic unlawfully in dangerous drugs.  Luk remained at large.  On 27 August 2010, the Department of Justice issued an ‘Immunity from Prosecution’ [2] to Chan, so that he could be called as a witness for the prosecution at the applicant’s trial.

The prosecution case

8. Chan testified that he first came to know the applicant in 2002, at which time he was 16 years of age, while the applicant was about 35 years of age.

2007

9. Chan said that in July 2007 he agreed to act as a courier for the applicant of dangerous drugs from the Mainland to Hong Kong.  On four to five occasions in 2007, Chan and the applicant went to the Mainland to bring Ice to Hong Kong.  On these occasions, the applicant contacted the supplier on the Mainland and gave Chan directions as to where to go to collect the Ice.  Also, it was the applicant’s role to ensure that the situation was safe on the Hong Kong side before Chan went through the Immigration Control Point. Chan’s role was to carry the Ice strapped to his waist into Hong Kong.  He stopped acting as a dangerous drug courier in July 2007, when he found a job.

2008

10. However, in August 2008, in response to the applicant’s request that he find someone else to act as a courier of Ice from the Mainland into Hong Kong, and having failed to find another person willing to be a courier, Chan agreed to do so himself.  As a result, he made four trips to the Mainland, to which he either travelled with the applicant and Luk or where he met them.  On three of those occasions he was given Ice by the applicant, which was strapped to his body and which he brought back into Hong Kong.

11/12 August

11.On the evening of 11 August 2008, Chan went to Lok Ma Chau Immigration Control Point on the applicant’s instructions.  There, he saw the applicant in the company of Luk.  The three of them went through the Immigration checkpoint together at 11:44 pm.  Having entered the Mainland, the applicant waited for the supplier’s call.  Later, the applicant took Chan and Luk to a hotel room where they collected five packets of Ice.  Chan was informed that Luk would act as a lookout, to signal to Chan and the applicant not to go through the Immigration checkpoint on the Hong Kong side if there were police officers and sniffer dogs around.

12. On the afternoon of 12 August 2008, the applicant strapped three of the five packets of Ice around his waist, whilst Chan strapped the other two packets around his waist.  Then, all three of them returned to Hong Kong, Chan and the applicant doing so at 5:48 pm, whilst Luk did so at 5:55 pm.  On arrival in Hong Kong, they went to a carpark and boarded the Mercedes Benz motor car.  Chan and the applicant took the packets of Ice from where they were strapped to their bodies and put them in a bag. [3]  At the applicant’s request he stored the Ice underneath his bed at home, awaiting further instructions.

14 August

13.  On 14 August 2008, Chan, Luk and the applicant brought another five packets of Ice into Hong Kong from the Mainland.  They collected the Ice at a restaurant.  Inside a toilet, packets of the Ice were strapped to the waist of Chan and the applicant.  Again at the applicant’s request, on their arrival into Hong Kong, Chan stored the dangerous drugs underneath his bed at his home.

16/17 August

14. On the evening of 16 August 2008, on the applicant’s instructions, Chan travelled to the Mainland where he met the applicant and Luk.  Although they stayed until the following evening, they were unable to collect any dangerous drugs.  On the applicant’s instructions he returned to Hong Kong on his own.

19 August

15. On the afternoon of 19 August 2008, Chan returned to the Mainland on the applicant’s instructions conveyed by telephone.  There, he met the applicant and Luk.  Then, they collected six packets of Ice.  Having had three packets of Ice strapped to their respective waists, Chan and the applicant returned to Hong Kong.  Again, on the applicant’s instructions, Chan stored the dangerous drugs underneath his bed at his home.  So, in total Chan had 16 packets of Ice stored underneath his bed.  On the applicant’s instructions, he re-packaged them into five packets of about one kilogramme each, leaving one packet of between 200 to 300 grammes.

28 August

16.  At around 10:00 am on 28 August 2008, the applicant telephoned Chan saying that he and Luk were coming back to Hong Kong from the Mainland.[4]  He asked Chan to get the repacked Ice ready, indicating that he would pick Chan up later.  Having received a telephone call from the applicant at around noon, Chan went downstairs from his home and into the street carrying a bag containing the six packages of Ice, where he boarded the stationary Mercedes Benz motor car in which Luk was sitting on the front passenger seat.  The applicant was not in the car.  A little while later, the applicant boarded the motor car and sat in the driver’s seat.  Chan responded to the applicant’s enquiry as to where the “stuff ” was, by saying that it was inside the bag.

17. Then, the police moved in.  The police officers testified that they manoeuvred two vehicles to prevent the Mercedes motor car from being driven either forwards or backwards.  However, the applicant reversed the motor car for a short distance before coming to a stop.  One police officer used a baton to hit the rear windscreen of the car when it was reversing, causing some slight damage.  All three men were taken out of the motor car and arrested for the offence of trafficking in a dangerous drug.  Under caution, the applicant said, “Ah Sir, the stuff is not mine.  I only drove here to pick up my friend”.

18. Chan said that he had concocted a story he told to police officers that someone else, not the applicant, had asked him to traffic unlawfully in a dangerous drug.

19. In support of the oral testimony of Chan, the prosecution relied on the travel records of the applicant, Chan and Luk together with the telephone records of Chan and the applicant.

20. Chan testified that, six months after his arrest, he agreed to give evidence against the applicant.  At first, he had not offered to testify against the applicant because he was afraid that his family would be hurt.  However, after discussions with his family, he then contacted the police.

21. By admitted facts, evidence was adduced that, having been charged with unlawfully trafficking in “the six packets of dangerous drugs seized in these proceedings”, Chan pleaded guilty on 24 March 2009 to the offence, for which he was sentenced to 16 years and 6 months’ imprisonment.  In June 2011 this Court reduced his sentence to 12 years and 6 months’ imprisonment.[5]

The defence case

28 August

22. The applicant testified that Chan came to be on board the Mercedes Benz motor car, which the applicant was driving, on 28 August 2008 when they were intercepted by police officers merely because, as he had agreed in a telephone conversation with Chan earlier that day, he was giving Chan a lift somewhere.  He denied reversing the car when the police intercepted them.  He said he did not see or hear any baton striking the windscreen and he had no idea what caused the crack on the windscreen.  The applicant denied having any knowledge about the Ice carried by Chan.

23. The applicant denied being involved in any of the unlawful trafficking in Ice described by Chan in his testimony.  He said he and Chan were friends, albeit that Chan was younger than him.  They had made journeys to and from the Mainland for entertainment, not for the purpose of unlawfully trafficking Ice into Hong Kong.

Grounds of appeal against conviction

24. By Ground 1, Mr Grounds contended that the judge erred in failing to assess properly the prejudicial effect of the evidence concerning the 2007 conspiracy and in failing to prevent that evidence being led by the prosecution.  Further, he failed to direct the jury properly and adequately as to the probative value of that evidence, in particular its use and/or non-use.

25. By Ground 1A, it was submitted that the conduct of the defence counsel at trial was flagrantly incompetent in that he failed to:

  (i)  object to and/or seek a ruling from the judge to prevent the prosecution using evidence of the 2007 conspiracy and the Immunity;

  (ii)  have the Immunity amended, so as not to refer to the 2007 conspiracy or to Count 1; and

  (iii)  adduce/seek to adduce into evidence the applicant’s acquittal of the count on the earlier indictment in respect of the 2007 conspiracy.

26. By Ground 2, it was submitted that the judge erred in law in directing the jury that: (i) an agreement to traffic in a dangerous drug could be inferred from the conduct of the parties; (ii) they should consider Chan’s reasons for involving others when dealing with the dangerous drugs.  Further, it was argued that the judge had failed to direct the jury that they could only draw an inference against the applicant on primary facts of which they were sure, and that the inference must be the only reasonable inference.

27. By Ground 3, it was submitted that the judge erred in law in directing the jury that (i) the telephone call records; (ii) the immigration records; and (iii) the fact that Chan took the Ice to the applicant’s car, was evidence that supported Chan’s evidence. They were equally consistent with the applicant’s case at trial.

28. By Ground 4, it was submitted that there was a material irregularity in the trial in that prosecuting counsel had improperly questioned Chan, a prosecution witness, on his prior inconsistent statement.  That led to Chan’s evidence that he had desisted from assisting the prosecution for fear that the applicant might harm his family.  That evidence was highly prejudicial.  The judge erred in failing to direct the jury to disregard this part of Chan’s evidence.

29. By Ground 5, it was alleged that the judge erred in law in making erroneous comments on the facts.  As a result, the summing up was unbalanced against the applicant.  Further, the judge failed to make it sufficiently clear to the jury that Chan might have told a lie concerning his knowledge of the Court’s sentencing practice. 

The respondent’s submissions

30. Ms Anna Lai, SADPP, for the respondent, submitted that evidence of the 2007 conspiracy was admissible at the behest of the prosecution, in order to present the jury with the “setting and context in which the offence occurred.” [6]  Without such evidence, the evidence of Chan would have been “incomplete or incoherent”.  The evidence of the events in 2007 explained why Chan was prepared to wait for payment in 2008.

31. Ms Lai submitted that the verdicts at the first trial were irrelevant.  Evidence of the applicant’s acquittal on Count 1 was inadmissible, because it could not be established that the jury found that Chan had lied or that they had disbelieved him.  Counsel for the defence at trial was correct to recognise that the 2007 acquittal could not satisfy the first threshold requirement in Wong Sau Ming.  In support of that submission, Ms Lai relied on the judgment of the Court of Appeal of England and Wales in R v H(JR) [7], cited with approval in the judgment of the Court of Final Appeal in Chan Ka Man v. HKSAR.[8]

32. Ms Lai submitted that, given the obvious inadmissibility of the 2007 acquittal, counsel for the applicant was correct not to seek a ruling to the contrary.  Further, in the very unlikely event that evidence of the 2007 acquittal had been ruled admissible, there would have been no grounds to resist the admission of evidence, at the behest of the prosecution, in respect of the 2008 conviction.[9] 

33. Ms Lai contended that that admission into evidence of the unamended Immunity caused no unfairness or injustice to the applicant.  It was known from the outset that, Mr Cheng having taken the decision to cross-examine Chan about the 2007 conspiracy, the jury would come to know of that evidence.  Also, it was to be noted that the judge had directed the jury that evidence of the 2007 conspiracy was to be used only as giving background to the evidence the subject of the count on the indictment before the jury, namely the 2008 conspiracy.

34. Of the circumstances in which evidence was led at trial in respect of the 2007 conspiracy, Ms Lai invited the Court to note that counsel for the prosecution at trial, Ms Crebbin, had informed the judge that it was her original intention not to lead any evidence from Chan in respect of the 2007 conspiracy and to obtain a new document evidencing Chan’s immunity from prosecution, in which no reference was made directly or indirectly to the 2007 conspiracy.  It was only in the face of an indication by Mr Cheng that he intended to “raise some questions in relation to 2007” and his invitation that the prosecution open to the jury that there was an arrangement between Chan and the applicant in 2007 that had resulted in several trips in 2007 that Ms Crebbin had canvassed the matter with the judge.

35. Ms Lai submitted that the 2007 conspiracy was used only to a limited extent by prosecution counsel to show the background of the case.  The fact that the applicant had stood trial in 2010 was never disclosed to the jury.  It was submitted that evidence of such ‘uncharged acts’ was relevant and admissible to give the jury a general picture about the setting and context in which the offence occurred; without which Chan’s account would be incomplete or incoherent. 

A consideration of the submissions

36. There was no dispute that in the first trial before Wright J and a jury, the applicant had been acquitted on 20 September 2010 of the count of conspiring with Chan to traffic unlawfully in dangerous drugs in 2007.  Reference was made to that conspiracy, described as Count 1, in the ‘Immunity from Prosecution’ adduced into evidence before the jury in the trial before Line J.  As noted earlier, the trial before Line J was a retrial ordered by this Court on 27 October 2011, following the quashing of his conviction in respect of Count 2 on the indictment, namely conspiring to traffic unlawfully in dangerous drugs in 2008.[10]  The Immunity, which was dated 27 August 2010, stated, inter alia, that it was conditional on Chan giving full and true evidence at the trial or trials of the applicant:

“ …in connection with the alleged offences:-

(1) Conspiracy to traffic in a dangerous drug between a date on or about the 7th day of January 2007 and the date on or about the 8th day of July 2007 in Hong Kong (Count1), and

(2)  Conspiracy to traffic in a dangerous drug between the date on or about the 11th day of August 2008 and 28 August 2008.”  [Italics added.]

37. On 12 June 2012, the first day of the trial before Line J, immediately after the arraignment of the applicant, Ms Crebbin, who appeared for the prosecution, raised with the judge the issue of the form of the Immunity document, noting that the document, “…refers to the conspiracy in 2007 as well as a conspiracy in 2008”.  Ms Crebbin went on to say:[11]

“My learned friend says he is not worried about that, because I was offering to either phrase it in a way in the admitted facts or to seek a new immunity, but, firstly, I understand that that is acceptable to my learned friend.

That then led to another problem or another query, if I can put it that way, because my intention obviously looking at the charge that we are facing in this court now was not to lead any evidence other than a brief reference to anything in 2007, obviously to concentrate on August 2008.

My learned friend has now told me, and I’m raising it because I’m just not quite sure how far all this should go but I think it is better that the court is aware of our discussion on this matter, that he will raise some questions in relation to 2007. He says that it’s perfectly proper for me to open on the basis that they made an arrangement in 2007, certain trips were allegedly made in 2007, but then to concentrate on 2008.

My Lord, all that concerns me is that if my learned friend is going to go into great details about things in 2007, then obviously I would rather canvass them with my witness first rather than suddenly make it look as if it’s something that the prosecution were hiding, which of course it is not.  So it’s really a question of how far my learned friend wants to go or what your Lordship feels should be the way of dealing with it properly.”  [Italics added.]

38. The judge responded to Ms Crebbin’s enquiry and there followed an interchange with Mr Cheng, counsel for the applicant at trial:

“ COURT: So how far he goes is up to him. How you deal with it in fact is up to you, but the only important thing to note now, and I thank you for raising it, is this, that Mr Cheng...

MR CHENG: My Lord.

COURT: ...you have absolutely no objection to Miss Crebbin opening the basis on the case that there had been some previous association back in 2007(,) without going into the nuts and bolts of it (,) which would explain their relationship in 2008 whereby the conspiracy was launched on her case?

MR CHENG: Indeed.

COURT:  All right.  So let me just -- I’ll make a note of that.  So can open on basis of whole history.”

39. Then, the judge raised the question of the fact that the applicant had been acquitted of Count 1 at the first trial:

“ Now, there was an acquittal in respect of that, wasn’t there? Do you intend to seek to adduce that in front of the jury?

MR CHENG: I beg your pardon, my Lord?

COURT: There was an acquittal in respect of that, wasn’t there?

MR CHENG: The previous trial?

COURT: Yes, at the previous trial. The previous trial had two counts, didn’t it, and there was an acquittal on whichever count it was, the one that dealt with the earlier matters. Do you propose to introduce that?

MR CHENG: No, not for the time -- no.

COURT: Well, what...

MR CHENG: No, no.

COURT: No.

MR CHENG: No. I would like to keep it as a retrial, a new trial.

COURT: Yes. Well, I haven’t looked this all up but I’ve vaguely addressed my mind to it. Since the case of Z in England, acquittals are merely instances of jury’s opinions on those particular facts, they are no bar. Before that there was a case called Hay, wasn’t there, where you had to say to the jury that conclusively means he wasn’t guilty of it.

MR CHENG: Yes.

COURT: That law has gone and it’s now Z.

MR CHENG: Z.

COURT: That’s off the top of my head without looking at the books, you’d better check it though, all right.

MS CREBBIN: Yes.

MR CHENG: Right, I will do the same.

COURT: That’s right, isn’t it? Yes, because otherwise you’d be saying, ‘Look at this, I’ve got in evidence. Now look at the acquittal. It means it can’t be right what he said about the earlier part.’ That is no longer permissible as I understand it. Are we agreed about that?

MR CHENG: Yes.

COURT: Good, all right, but if I’ve got that wrong, that’s no ruling or anything from me, that’s just my recollection.

MR CHENG: I’ll double-check; I’ll double-check.

COURT: All right. Good, okay. So connected on the basis of the whole history. No, I should make it absolutely clear to them too that they are not concerned with any wrongdoing there, it’s just there to explain how it was that they were at it again in 2008, and it will be how you will put it.

MS CREBBIN: Yes. Exactly, my Lord.

COURT: Yes, all right, good.

MS CREBBIN: And I wasn’t even going to go that far until my learned friend said he actually wanted it raised or possibly wanted it raised.

COURT: Well, if he’s going to cross-examine him and he tells us that he has no objection to you opening it...

MS CREBBIN: So that’s why I thought it was better to raise it with the court.

COURT:  Good, thank you for that then.”  [Italics added.]

40. As is readily apparent from the transcript, when the judge was informed first of all of the proposal that the prosecution would refer to dealings between the applicant and Chan in 2007 and would lead related evidence from Chan in evidence-in-chief, there was almost no discussion between counsel and the judge.  There was no discussion as to the ambit of the evidence it was proposed to lead and, in particular, no discussion of the legal foundation for adducing the evidence in that way.  On any view, this was a most problematic area.  As the judge clearly knew, the applicant had been acquitted of a count of conspiracy to traffic unlawfully in Ice with Chan in 2007 in the period 7 January to 8 July 2007.  Even if there had been no acquittal in respect of this conduct, the issue arose of the admissibility of the evidence led by the prosecution through its witness Chan.  In those circumstances, it fell to be regarded as evidence of ‘uncharged acts’ of the applicant.

41. Such reference as there was to the basis on which the prosecution proposed to lead that evidence, was the bare assertion of the defence position, namely that, “it’s perfectly proper for me to open on the basis that they made an arrangement in 2007, certain trips were allegedly made in 2007, but then concentrate on 2008.”  Although Ms Crebbin said that in those circumstances she would “rather canvass them with my witness first, rather than suddenly make it look as if it’s something that the prosecution were hiding” she did not advance any legal basis for being permitted to do so, nor was she called upon to provide one.

42. Exactly what was encompassed by Mr Cheng’s agreement to the judge’s leading question that he had no objection to the prosecution opening on the basis that, “there had been some previous association back in 2007(,) without going into the nuts and bolts of it(,) which would explain their relationship in 2008 whereby the conspiracy was launched on her case?”, was wholly unparticularised and unclear.  Neither counsel responded to the judge’s statement that he proposed noting of their positions, “So can open on basis of whole history.”  [Italics added.]

43. Although Ms Crebbin agreed with the judge’s suggestion that he should make it “absolutely clear to them that they were not concerned with any wrongdoing there,” in doing so she also agreed to the judge’s observation that the evidence relating to events in 2007 was “just there to explain how it was that they were at it again in 2008”.  [Italics added.]

44. So, the trial proceeded with the prosecution opening speech, followed by the evidence of Chan, without any consideration being given to the issue of the admissibility of the evidence of Chan in respect of the 2007 conspiracy or of its prejudicial effect.

The opening speech of the prosecution

45. In her opening speech to the jury, Ms Crebbin referred to events concerning Chan and the applicant in 2007:[12]

“ Some time late in 2007 Mr Chan, the accomplice met this defendant at a café in Tsuen Wan and, on this occasion, the prosecution say the defendant asked Mr Chan if he wanted to make some quick cash - whether he was short of money and needed to make some money. You will hear that at that time Mr Chan was (un ?)employed so, of course, he was short of money.

The defendant then asked Mr Chan if he was interested in carrying ‘stuff’ for him and he explained that the stuff he was referring to was dangerous drugs, namely, Ice. Mr Chan was told by the defendant that (if ?) he agreed to carry the stuff, or the Ice, then he would be paid HK$20,000 every trip. Mr Chan said he needed time to think it over. A few days later the defendant telephoned Mr Chan to ask his decision and Mr Chan will tell you that he then agreed to transport drugs from China into Hong Kong for the defendant. And the plan that was agreed between the two of them was that Chan would carry the Ice from Shenzhen with the defendant across the border into Hong Kong.

Members of the jury you will hear reference that this plan was carried out many times during 2007 but, of course, that sets the scene for what happened in 2008 - in August 2008.  But you are, other than understanding where the plan originated from, you of course are only interested in relation to what specifically happened in August 2008 in this trial.  The prosecution say that this plan of transporting the drugs across the border in 2007 was resurrected in 2008, some time in early August 2008 when the defendant again telephoned Mr Chan to say that the stuff, meaning the Ice, was ready for collection in Shenzhen.”  [Italics and emphasis added.]

The evidence-in-chief of Chan: 2007

46. Evidence-in-chief was led from Chan of a meeting with the applicant in 2007 in the Fuk Lee Hoi restaurant in Tsuen Wan Centre, at which he had responded in the affirmative to the applicant’s enquiry as to whether he was in need of money.  Then, Chan went on to say:[13]

“ A.  Then he asked me to convey something for him.  I asked him what I should convey for him.  He said, “The dangerous drug ice”.

Q.  Did you know what ice was?

A.  At that time I knew that ice was a dangerous drug.

Q.  Did he tell you where you had to convey it or how you had to convey it for him?

A.  At that stage he did not mention how I should convey but he mentioned that the dangerous drug would be conveyed from Mainland China to Hong Kong.

Q.  Did he say if you would get anything for doing this for him?

A.  He told me that if I completed it once, I would get around $20,000 as a reward….

Q. Did he give you any idea how many times he wanted you to convey dangerous drugs?

A.  At that time he did not say that.

Q.  So when he made this suggestion to you, how did you react?

A.  At that time I did not accept him right away, and a few days later he contacted me again.  At that time I told him that I needed some time to consider it and I did not accept his request.

Q.  How did he contact you at this time?

A.  Then he telephoned me.

Q.  After you had asked for some time to consider, what happened next?

A.  About two to three days later he called me and he asked me about my decision.  I told him that I accepted his request by offering assistance to him.”

47. Of the implementation of their agreement, Chan said:[14]

“ Q. Now, having made that promise to him sometime in 2007, or later in 2007, did you at any stage carry out this promise?

A. Yes.

Q. We know that you were arrested on 28 August 2008. How many times between making this promise to the time of your arrest, approximately can you remember, did you bring drugs from China to Hong Kong?

A. Including the occasion on 28 August 2008, I think around 10 times.

Q. When you say a time, 10 times, is that a round trip? Or in other words, back and forth count as one trip or does one way count as one trip and return journey count as another?

A. What I mean one time was going up to China, getting the dangerous drugs successfully, then back to Hong Kong. That is one time.

Q. On all of these occasions was the defendant with you?

A.  Yes, he must be together with me.”

48. Of the circumstances in which the dangerous drugs were obtained, concealed and brought back to Hong Kong, Chan said:[15]

“ Q. Can you very briefly, Mr Chan, just describe the general pattern of what happened on one trip?

A. First of all, he would arrange to meet me at a certain place, for example, in Lok Ma Chau, in order to go through the control point together. After arriving in China we needed to wait for somebody to send us the dangerous drug. At this time we will usually go for sauna or to have meals in order to wait for the man with the dangerous drug to call him.

Q. Who did he, the man with the dangerous drugs, normally call?

A. I did not know this person. Usually, if I needed to go to somewhere to collect the goods I would be instructed to go to a toilet of a shopping centre or a restaurant in order to wait for that person whom I did not know.

Q. Who was the contact with that unknown person then?...

A. Ah Pau would make contact with this person.

Q. We are just now looking at the general pattern of how this worked. Once you’d gone to your restaurant or the toilet, you had got the drugs handed over, what happened then normally?

A. Usually, after I collected the dangerous drug I would put it on my body and usually in my waist. Then I would put it tightly with my trousers on top of it.

…..

Q. At the time that you were carrying drugs tight or fixed to your waist as you’ve described, did anyone else also carry dangerous drugs?

A. After that person handed the dangerous drugs to me I was the only one who put the drugs on my body.

Q. What did Ah Pau do at this time usually?

A.  Apart from the occasion on 28 August 2008, Ah Pau did not put the dangerous drugs on his own body.  That means, he only put dangerous drug on his person on the occasion of 28 August 2008.”

The cross-examination of Chan

49. The applicant’s case as put in cross-examination of Chan was a general challenge to his evidence that he had been involved in the unlawful trafficking of Ice into Hong Kong from the Mainland with the applicant.  It was suggested that their travel to and from the Mainland was for the purpose of entertainment only. Specifically, it was suggested in respect of their journeys to and from the Mainland in August 2008 that, “… all these involved entertainment only?  Nothing involves drug traffic.”[16]  It was suggested to Chan, on the basis of his non-prejudicial statements, that his evidence differed from those statements in respect of the total money payments that he had received from the applicant in 2007 for his role as a courier of Ice into Hong Kong and also in respect of the total number of times in both 2007 and 2008 working under the direction of the applicant he had brought Ice into Hong Kong.

The prosecution closing speech

50. In her closing speech, Ms Crebbin said of the evidence of Chan in respect of the applicant and their unlawful trafficking in Ice in 2007:[17]

“ And of course, as you’re well aware, there is no charge against this defendant for anything that may have happened in 2007. That evidence is simply before you to show you the background and to explain, or try to explain, the events of August 2008.”

51. Earlier, Ms Crebbin suggested that the applicant had deliberately groomed Chan to establish a relationship of trust.  That element of trust of the applicant by Chan was relevant to the events of August 2008:[18]

“ And in relation to this gaining of trust, you’ll remember that Mr Chan was cross-examined and he said that he did trust the defendant and because he trusted the defendant, he was prepared to store drugs for him, in August of 2008, and he was prepared to wait for payment, he trusted that he would get it.”

The defence closing speech

52. In the closing speech for the applicant, the only reference counsel made to the evidence of Chan of his unlawful trafficking in Ice with the applicant in 2007 was to advert to Chan’s evidence of the circumstances in which he had ceased to do so in July 2007.  Of that, Mr Cheng said:[19]

“ But it seems to be a very casual stop, isn’t it? He just said to the defendant, “I’m not doing it any more”. And according to Mr Chan, the defendant did not tell him things like, “Now, don’t tell anyone about our dealings” or “Be careful of what you say to the others” or “Don’t reveal what, what, this and that,” nothing of that sort.

Now, would that be consistent with large-scale drug trafficking activities, the mastermind?  If the defendant was the mastermind and these 2007 drugs activities did carry on, would he not say something like that?  Because he would be getting into trouble if this young man revealed what he did, even on a casual basis.  That again would be something for your consideration.”

53. On the other hand, significant reliance was placed on the inconsistencies between the evidence of Chan and his out-of-court statements in respect of the issue of the number of trips that he had made with the applicant, in which he smuggled Ice into Hong Kong, and the total amount of money payments he received from the applicant.[20]

Summing up

54. In his summing up, the judge reminded the jury of Chan’s evidence of the circumstances in which he had become involved in unlawful trafficking in Ice at the behest of the applicant in 2007:

“    …in 2007, the defendant asked him if he had a job and needed money; that he was not employed at the time and so responded by saying that yes, he wanted to make some money.  The defendant, he said, then proposed that he carry the dangerous drug “Ice” for him from the mainland into Hong Kong for a reward of $20,000.

  Now, he told you that he did not accept right away, and that he took time to consider; but within two to three days he told the defendant over the telephone that he did accept; that they then met in the blue Mercedes Benz which is featured in this case, and they discussed the matter further, reaching an agreement whereby he would assist the defendant in bringing dangerous drugs from the mainland into Hong Kong.

  He related how he did so on about 10 separate occasions, saying that on each occasion, the defendant was with him, and described the general pattern of making the drug runs: the defendant making contact with a supplier and arranging the pick‑up, after which he would carry the drugs on his person, usually around his waist, back into Hong Kong.

  He said that up to August of 2008, it was he alone who carried the drugs on his person, but that in August, both he and the defendant did so.”

55. Of the relevance of the evidence of Chan in respect of events in 2007 and the use to which the jury was permitted to use that evidence, the judge directed the jury:

“ Now, of course, the charge you are concerned with only concerns the drug activity in August. You hear about the evidence of those earlier runs because without it, it would be impossible to understand how they came to the agreement so quickly then in August. That is the reason you hear about the earlier drug activity, and use the evidence merely for that purpose.”

Then, the judge turned to remind the jury of Chan’s evidence in respect of the applicant of unlawful trafficking in Ice in August 2008. 

56. Of the inconsistencies established in cross-examination, relied upon by the applicant, between the evidence of Chan and his earlier out-of-court statements, the judge said:[21]

“ It was pointed out to him - this was in cross-examination, I remind you - that the first witness statement he gave to the police, he said that he had made almost 20 drug-carrying trips with the defendant. This differed from what he had said in his evidence, which was that there had been 10 trips in all. He explained that at the time of making the witness statement it was his impression that he had done it many times, and that is why he described it as almost 20. He said it was only when he was subsequently shown the Immigration records by the police that he realised that it cannot have been the case that he went so often.

      It was also the case that in that first and in a subsequent witness statement, he said that the defendant had paid him some 40 to $50,000 in total.  This differed from his evidence, which was that it was 80 to $100,000.  He said that his evidence on this was correct and that the statement was wrong, and he explained it by saying that it had been his recollection at the time.  He said that after he was shown the Immigration records, he modified his recollection. In re-examination he added that he had told the police eventually the correct sum of 80 to $100,000, presumably after he had seen the Immigration records.”

Counsel’s affidavit

57. In his affidavit, Mr Cheng said that he had been “specifically instructed” to ask Chan about the “…2007 events in order to discredit the latter.”  Mr Cheng said that he decided “…to introduce the 2007 conspiracy into the picture” to attack Chan’s veracity.  In advance of trial he confirmed to Ms Crebbin that he had no objection to the original document evidencing the Immunity being adduced before the jury.  He informed her that he intended to cross-examine Chan about the 2007 conspiracy.  In particular, he wished to highlight the inconsistency in Chan’s account of how he was rewarded for his role as a courier.  He acknowledged that, in doing so, “…an unavoidable consequence must be that the jury would be aware of PW1’s (Chan) allegations against the Applicant regarding the 2007 Conspiracy.”

58. Mr Cheng said that he hoped that the reference to the 2007 offences in the Immunity would lead to the jury asking themselves why it was that there was no count reflecting that conduct.  For his part, he hoped that would raise in their mind the possibility that the prosecution had reservations about Chan’s account of the events of 2007.  Clearly, he wished the jury to speculate.

59. It was in those circumstances, that he did not object to the “Prosecution opening their case and leading evidence of the Immunity…and the 2007 Conspiracy.”  Further, that is why he did not seek to have the document reflecting the Immunity amended or a fresh document made.

60. Mr Cheng said that he made no attempt to adduce into evidence the fact of the applicant’s acquittal in the first trial on Count 1, which reflected the 2007 conduct as alleged by Chan.  He said that he did so because he concluded that it was not possible to cross the “threshold requirement set down in HKSAR v Wong Sau Ming”.[22]  There was nothing in the verdict of the jury on that count to show that the jury had determined Chan had lied.  Furthermore, he took into account the fact that Ms Crebbin had indicated that, if he sought to adduce evidence of the acquittal on Count 1, she would seek to adduce evidence of the applicant’s conviction on Count 2, which count was the subject of the retrial.  Of those circumstances, Mr Cheng said, “I did not see any ground in resisting an anticipated application by the Prosecution to reveal the conviction of the 2008 Conspiracy as well.  After all, the acquittal of the 2007 Conspiracy only formed part of the outcome of the Previous Trial.”

61. It is most regrettable that the various issues that arose from the manner in which the parties intended to conduct their respective cases were not articulated properly before the judge at the outset of the trial when counsel first alerted the judge to the unusual course proposed, and apparently agreed between the parties.  With respect, in the face of the failure of counsel to articulate the matter properly and fully, the judge ought to have required them to do so. In the result, no application was made on behalf of the prosecution for leave to lead evidence of the uncharged acts by the applicant from Chan. It is that failure that lies at the root of the subsequent problems in the trial.

62. Notwithstanding, Ms Lai’s contention that the evidence was admissible, in effect to put the relationship of Chan to the applicant in context, we are satisfied that, if such an application had been made by the prosecution, it would have failed.  Chan’s evidence in respect of the 2008 conspiracy was not rendered ‘incomplete or incoherent’, without his evidence of the agreement and acts in furtherance of the 2007 conspiracy.  The obvious and seriously prejudicial effect of his evidence in respect of the 2007 conspiracy outweighed any probative value.

63. The fact that the applicant and Chan had a close relationship prior to August 2008, such as would explain Chan being recruited as a courier at that date, was susceptible of being established by evidence that was not prejudicial to the applicant. There was nothing objectionable or prejudicial to the applicant in the prosecution leading evidence of the friendship between the applicant and Chan and their journeys to and from the Mainland on a regular basis. That was a sufficient basis to give context to Chan’s agreement in August 2008 to act as a courier of Ice at the direction of the applicant.

64. Contrary to the explanation that the judge gave the jury [23] that the evidence of the 2007 conspiracy had been led to explain why Chan and the applicant “came to the agreement so quickly …in August”, that agreement was not immediate. First, Chan had been asked by the applicant to find someone else to act as a courier.[24] He contacted a long-term friend, ‘Ah Ching’, but he declined the invitation.[25]  Then, the applicant had suggested that Chan act as a courier once again. He accepted that eventually he had agreed.  In any event, as noted earlier the prosecution had closed its case, not on the basis that their earlier dealings explained a quick agreement by Chan to act as a courier, but on the basis that it explained why Chan had been prepared to make deliveries of Ice without immediate payment and to store the Ice at his home, again without immediate payment, namely that a relationship of trust had arisen between Chan and the applicant from their earlier dealings, including unlawfully trafficking in Ice.

65. If the evidence led by the prosecution of the relationship between Chan and the applicant had been circumscribed in the manner described above, it would then have been a matter for counsel for the applicant, in cross-examination of Chan, to determine what material he wished to place before the jury, or to risk the prosecution seeking to adduce as a result of cross-examination.  The primary thrust of counsel’s cross-examination of Chan was to highlight inconsistencies between his evidence and his out-of-court statements.  First, in respect of the number of journeys that he and the applicant made to and from the Mainland whilst trafficking in Ice and secondly, of the payments that he received from the applicant as a result.  Clearly, it was possible to establish in evidence the fact of the out-of-court assertions by Chan, without Chan giving evidence of the fact of unlawful trafficking in Ice in 2007.

66. Of course, if counsel for the applicant had wished to cross-examine Chan about the fact of actual unlawful trafficking in 2007, it was open to him to choose to do so.[26]  However, it is difficult to imagine circumstances in which counsel for the applicant would wish to do so.  In the event, given the ambit of the evidence actually led from Chan in examination-in-chief, by the time of cross-examination no such choice remained.  The evidence of actual trafficking in Ice in 2007 had been led from Chan in evidence-in-chief.

67. Having allowed the prosecution to lead evidence of the uncharged acts of the applicant in respect of the 2007 conspiracy, it was incumbent upon the judgeto give the jury a careful direction in respect of the standard of proof and the use that they could and could not make of that evidence.  As Yuen JA noted in the judgment of this Court in HKSAR v Kwok Hing Tony, in the event that evidence of uncharged acts is led at trial, the judge is required to give specific directions to the jury:[27]

“ (d)  However if the court admits evidence of “uncharged acts”, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof and (b) the use to which such evidence may be put.

(e)

(i)  We consider that generally the standard of proof for evidence of “uncharged acts” should be beyond reasonable doubt.

(ii)  The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (b), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.”

68. Although the judge had provided counsel with some parts of the drafts of his proposed directions to the jury, none of those drafts addressed his proposed directions in respect of the evidence of the uncharged acts in the 2007 conspiracy.

69. Furthermore, although the judge’s summing up encompassed parts of two separate days and, although such directions as he did give in respect of the uncharged acts had been given on the first of those days, neither counsel raised with him the adequacy of those directions.

70. With respect to the judge, we are satisfied that the directions were insufficient and inadequate.  The jury was not directed that they were required to be satisfied so that they were sure of the evidence relating to the uncharged acts before they could act on them.  Furthermore, most importantly they were not given any direction that they could not infer, from their acceptance of evidence in relation to the applicant in respect of the 2007 conspiracy, that he was a party to the 2008 conspiracy or that he had a propensity to commit offences of that kind.  We are satisfied that such a specific direction was required.  The failure to give such directions was a material non-direction.

71. In the result, we are satisfied that the trial miscarried and was unfair to the applicant.  In those circumstances, it is not necessary for the Court to address the other multiple grounds of appeal.  We are satisfied that there is no question of applying the proviso.

72. Sensibly, although Mr Grounds opposed the application by the respondent that we order a retrial of the applicant, he acknowledged that the offence alleged against the applicant was extremely serious, in which circumstances the Court would more readily order a retrial.  We accept that there has been very considerable delay since the applicant was arrested and held in custody on 28 August 2008.  Further, he has undergone two separate trials, both of which have miscarried.  However, as noted earlier, the applicant has contributed very considerably to the delay in this application reaching this Court for this hearing.  In the result, having regard in particular to the seriousness of the offence, we are satisfied that it is appropriate to order a retrial of the applicant.

Conclusion

73. Accordingly, we allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the applicant’s conviction on the single count on the indictment.  We order a retrial on a fresh indictment, which is to be filed with the Court within 14 days, and order an expedited trial.  The trial is to be listed before the Listing judge for trial dates to be fixed within 28 days.

Costs

74. The applicant is to file any application for costs, together with supporting written submissions, within 14 days hereof.  In the event of such an application, the respondent is to file any written response within 14 days thereafter.

[1]  HKSAR v Ngie Hon Miu [2012] 1 HKLRD 137.

[2]  Appeal Bundle, pages 292-293.

[3]  Appeal Bundle, page 64 G-J

[4]  Appeal Bundle, page 72 L-S.

[5]  Appeal Bundle; page 11, paragraphs 21-22.

[6]    R v Pettman (Court of Appeal of England and Wales; unreported, 2 May 1985); R v TM [2000] 2 Cr. App. R. 266; HKSAR v Siu Ming Mei [2013] 1 HKLRD 286 and HKSAR v Kwok Hing, Tony [2010] 3 HLLRD 769.

[7]  R v H(JR) (1990) 90 Cr App R 440.

[8]  Chan Ka Man v. HKSAR (2008) 11 HKCFAR 614.

[9]  Chan Ka Man v. HKSAR;page 622 C-D, paragraph 17.

[10]  HKSAR v Ngie Hon Miu [2012] 1 HKLRD 137.

[11]  Appeal Bundle, page 192 D-P.

[12]  Appeal Bundle, pages 212 N - 213 E.

[13]  Appeal Bundle, page 54 J - 55 B.

[14]  Appeal Bundle, pages 55 P - 56 C.

[15]  Appeal Bundle, pages 56 H - 57 B.

[16]  Appeal Bundle, page 102 F.

[17]  Appeal Bundle, page 241 H-J.

[18]  Appeal Bundle, page 239 F-H.

[19]  Appeal Bundle, page 264 L-R.

[20]  Appeal Bundle, pages 262 A - 263 M.

[21]  Appeal Bundle, pages 25 L - 26 C.

[22]  HKSAR v Wong Sau Ming (2003) 6 HKFCAR 135.

[23]  Appeal Bundle, page 20 L-N.

[24]  Appeal Bundle, page 91 G-H.

[25]  Appeal Bundle, page 92 F-H.

[26] See the judge’s initial response to Ms Crebbin (paragraph 38)

  “Court: So how far he (defence counsel) goes is up to him.”

[27]  HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769; at 777, paragraph 16.