HKSAR v. CHAN HOI WING

CACC 25 /2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2014

(ON APPEAL FROM HCCC NOS. 110 OF 2013 AND 152 OF 2013)

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

1. The applicant sought leave to appeal her conviction on 14 January 2014 after trial by M. Poon J and a jury of a single count (Count 1) of trafficking unlawfully in dangerous drugs on 19 October 2012, namely 39.92 grammes of methamphetamine hydrochloride (“ice”), 25.41 grammes of heroin hydrochloride, 0.03 grammes of methamphetamine contained in five tablets and 0.46 grammes of midazolam contained in 35 tablets, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 1). The applicant was sentenced to 10 years’ imprisonment.

2. At the hearing we allowed the appeal, quashed the applicant’s conviction and make consequential orders.  We said that we would give our reasons in due course.  That we do now.

3. We ordered a retrial on a fresh indictment, directing that the case be listed before the listing judge for the fixing of trial dates within 28 days and that the hearing be expedited.  We ordered that the applicant be remanded in custody pending her retrial.

4. The applicant was arraigned together with her co-accused, Law Oi Sin, on an indictment containing two counts.  She and her co-accused were jointly charged with Count 1, whereas Count 2 was laid in the alternative to Count 1 against the co-accused only.  By Count 2 it was alleged that the co-accused, as tenant, had permitted the storage of the same dangerous drugs at the same date at the premises on which the unlawful trafficking in dangerous drugs was alleged in Count 1. The prosecution accepted the co-accused’s plea of guilty to Count 2 and the trial proceeded against the applicant alone on an unamended indictment.

5. The hearing of the application was adjourned on 6 June 2014 for the preparation of a transcript of exchanges between the judge and counsel then acting for the applicant as to whether or not, following the conviction of the co-accused, the indictment on which both defendants at trial had been arraigned or an amended indictment ought to be put before the jury for the trial of the applicant.  Mr Sadhwani, then counsel for the applicant, indicated that he wished the trial to proceed on the unamended indictment and that he wished the jury to be informed that the co-accused had pleaded guilty to Count 2.  Mr Sadhwani was discharged from representing the applicant soon afterwards and she was unrepresented thereafter.

The Trial

The prosecution case

6. The prosecution case was that at about 04:00, after the applicant’s co-accused had answered the door to the premises at Ground floor, 61 Fu Tei Pai, Sha Tau Kok Road, Lung Yeuk Tau, Fanling PC 5266, one of a number of police officers outside the premises, saw the applicant within the premises throwing with her right hand an object back into the room from which she had just emerged and tucking a pink bag held in her left hand into the waistband of her trousers.  At PC 5266’s request the applicant retrieved the pink bag from inside the waistband and handed it to PC 4115. In the presence of the applicant it was opened and found to contain 12 packets of dangerous drugs.  The applicant made no response to the words of caution being administered to her.

7. The applicant accompanied PC 4115 into the room into which she had been seen to throw an object with her right hand.  There, a bag with the legend Minnie Mouse was retrieved.  It was found to contain packets of dangerous drugs.  The applicant did not respond to enquiries as to the contents of the bag and packets.  Electronic scales and some of the paraphernalia used in inhaling ice were found in one of the rooms.  After the applicant had been separated from her co-accused the applicant was arrested and cautioned for unlawfully trafficking in dangerous drugs by PC 5266, in response to which she admitted that the dangerous drugs belonged to her, that she was merely making a living, but asserted that they had nothing to do with her co-accused.

8. In the afternoon of 19 October 2012, the applicant was taken back to the premises by police officers accompanied by a sniffer dog.  Following the discovery of another pellet of dangerous drugs in one of the rooms and, in response to being cautioned, the applicant made an admission of its possession.

The defence case

9. The applicant testified in the defence case.  She said that she was a visitor to the flat of which her co-accused was the tenant.  That was the first occasion that she had visited the premises.  Although she knew that the co-accused used dangerous drugs by inhaling them, she testified that she knew nothing of any dangerous drugs in the flat.

10. When the police officers knocked on the door to the premises in the early morning of 19 October 2012 she had been playing a video game and was clad in underpants only.  So, she put on a pair of jeans lying at the end of the mattress on which she was sitting.  She was not holding a bag of drugs in her right hand so she had not thrown anything back into the room.  Similarly, she did not hold a bag of drugs in her left hand or tuck them into the waistband.  She made no admissions of being in possession of any drugs found on the premises.  Similarly, on having been taken back to the premises in the afternoon she made no admission of possession of dangerous drugs.

Grounds of appeal against conviction

11. On behalf of the 1^st applicant, Mr David Ma submitted that there was a material irregularity in that counsel for the prosecution had made a closing speech to the jury.  In the circumstances of this case, that was impermissible given that the applicant was unrepresented at trial and, whilst she had given evidence in itself, she had called no other evidence.  By a letter to the Court dated 13 May 2014 Mr Francis Lo, on behalf of the respondent, alerted the Court to this arguable ground of appeal and directed the Court’s attention to the judgment of this Court in HKSAR v Tso Kin Shing[1].  For its part, the Court informed the Director of Legal Aid about that communication.  Subsequently, the applicant, who was then unrepresented, was granted legal aid to pursue her application for leave to appeal against conviction.

12. Secondly, it was contended that the judge had erred in permitting the jury to be informed that the 2^nd applicant had pleaded guilty to Count 2.  The judge had failed to direct the prosecution to file a fresh indictment for the trial of the 1^st applicant, following the plea of guilty of the 2^nd applicant.  It was submitted that the error was compounded by the fact that the judge reminded the jury in her summing up of the fact of the 2^nd applicant’s plea of guilty to that count.

The respondent’s submissions

13. On behalf of the respondent, Mr Lo accepted that an irregularity occurred in the trial in that counsel for the prosecution was permitted to give a closing speech in circumstances where, whilst the defendant had given evidence, the defendant had not called any other evidence.  In his written submissions he submitted that, in all the circumstances, it was appropriate to apply the proviso set out in section 83(1) of the Criminal Procedure Ordinance, Cap. 221, so that the Court could be satisfied that inevitably the jury would have returned a verdict of guilty notwithstanding that irregularity.

Unamended indictment

14. In his written submissions Mr Lo invited the Court to note that the unamended indictment was presented to the jury, in which both counts were set out, at the considered request of counsel then acting for the applicant after he was permitted to take specific instructions on the issue.  In those circumstances, in his written submissions he submitted that no prejudice enured to the applicant.

The co-accused’s plea of guilty

15. Mr Lo submitted that similar considerations applied to the fact that the jury was informed that the co-accused had pleaded guilty to Count 2 on the indictment.  That was done at the considered request of the applicant’s then counsel.  In any event, the Court was asked to note that the judge had directed the jury in terms in her summing up that the fact of the co-accused’s plea of guilty “can have no bearing on your position in respect of the evidence of the case against this defendant”. [2]  As a result, in his written submissions Mr Lo submitted that there was no prejudice to the applicant.

16. However, in his oral submissions at the hearing Mr Lo conceded that the judge’s failure to enquire of the applicant at trial, now that she was unrepresented, whether or not she wished the jury to be presented with the unamended indictment and informed that the co-accused had pleaded guilty to Count 2 was a material irregularity, as was the judge’s direction that the trial proceed on that basis.  Having made those concessions, Mr Lo withdrew his submission that it was an appropriate case for the Court to apply the proviso and invited the Court to quash the applicant’s conviction and order a retrial.

A consideration of the submissions

The prosecution’s closing speech

17. At the trial the applicant testified in the defence case but did not call any other evidence.  Having informed the applicant that she had the right to give a closing speech, the judge responded to the applicant’s enquiry as to “what should be contained in a closing submission”. [3]  The judge advised the applicant that whilst she could refer to the evidence and “emphasise those points which you think are strong in your favour” she would not be permitted to refer to matters that were not in evidence.

18. Then, without any issue being raised as to his right to do so, Mr Necholas delivered a closing speech to the jury on behalf of the prosecution.  In doing so, he invited the jury to have regard to the applicant’s testimony :[4]

“ Members of the jury, in examining her evidence, you are very entitled to take into consideration her spontaneity in answering questions, both mine and the learned judges, her demeanour, how she looked when certain questions are put to her. Her body language as she shifted and tried to shy away, like a boxer slipping the good punches. All these are, actually, within your province to ascertain whether she has told you a semblance of the truth, the whole truth or a pack of lies.”

Having adverted to various aspects of the applicant’s evidence and having suggested that the applicant had changed her account in the face of cross-examination, Mr John Necholas said :

“ I would suggest you have heard, really, a pack of lies made up as she went along.”

19. The issue of the impermissibility of the prosecution making a closing speech after an unrepresented defendant had given, but not called, evidence was addressed by this Court in an appeal against conviction after trial by the same trial judge [5] and a jury in its judgment, delivered by Cheung JA, in HKSAR v Tso Kin Shing : [6]

“ 5.5 Section 54 of the Criminal Procedure Ordinance confers competence on every person charged with an offence to be a witness for the defence. Section 55 provides for the point of time at trial when the person charged is to be called as a witness. Section 56(1) concerns the prosecution’s right of reply:

“(1) The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.”

5.6 Although section 56(1) does not contain clear wording to that effect, its intent is that even if the person charged has given evidence in defence of himself, it does not confer on the prosecution the right of reply.

5.7 The decided cases show that the prosecution’s right to make a closing speech differs depending on whether a defendant is legally represented. The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness. However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech. In fact, this principle was laid down in cases dating back to almost a century ago: R v. Harrison (1923) 17 Cr. App. R. 156¹[7] and R v. Baggott (1927) 20 Cr. App. R. 92. In recent times, the courts confirmed this principle in a number of cases, see R v. Mondon (1968) 52 Cr. App. R. 695 (at 698)²[8], R v. Bryant & Oxley [1979] QB 108, [1978] 2 All ER 689, R v. Paul (2013) 2 Cr. App. R. 282. In Hong Kong, this principle was confirmed by the Court of Appeal in R v. Man Ching-Ip & Others [1980] HKLR 890 (at 894)³[9]. See also paragraph 4-200 of the 2014 edition of Archbold Hong Kong. This principle also gains support from the order of speeches of the prosecution and the defence in a trial in which the defendant is not legally represented, as set out in paragraph 4-376 of the English Archbold and paragraph 4-161 of Archbold Hong Kong 2014.

5.8 Although this principle has been called a “convention” applicable to criminal trials, there is authority which says that it is in fact more than a convention: see Paul (at 284). In our understanding, this is a firmly established principle on the practice and procedure of criminal trials. The rationale behind this principle is to ensure that the defendant receives a fair trial. As was pointed out in Mondon (at 698)⁴[10], when the outcome of a case hinges on findings of fact, which in turn depends upon the choice made by the jury between conflicting evidence given by the prosecution and by the defence, the advocate will undoubtedly play a highly influential role in the verdict to be returned by the jury. In our view, there is usually a difference, in terms of the ability to convince the jury, between a person who has received professional training and an unrepresented defendant. In order to redress this considerable imbalance in ability, a workable method is to disallow the prosecution to make a closing speech to the jury. This is a fair rule and a rational approach.

5.9 In Paul the court also stated (at 284) that there is a high responsibility on trial judges and prosecution counsel to guard against breaching this principle.  Generally speaking, non-compliance of this principle will result in the conviction being quashed.  That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case.  See also R v. Pink [1971] 1 QB 508 (at 513).”

20. This Court refused the respondent’s application for certification of a point of great and general importance for leave to appeal to the Court of Final Appeal.  However, that application concerned a different issue, namely whether the prosecution had the right to make a closing speech where an unrepresented defendant, who had given evidence, also adduced evidence other than viva voce evidence as part of the defence case.  The Appeal Committee of the Court of Final Appeal also dismissed the respondent’s application for leave to appeal on that point.

21. We agree entirely with the analysis and conclusion reached by Cheung JA in HKSAR v Tso Kin Shing as to the impermissibly of counsel for the prosecution making a closing speech in these circumstances.  We are satisfied that the fact that counsel for the prosecution was permitted to make a closing speech to the jury in this case was a material irregularity.  As noted earlier, his closing speech was a trenchant attack on the evidence of the applicant at trial in which she was castigated for having told “a pack of lies made up as she went along” and the jury was invited to return “the only verdict in this trial, which is guilty beyond reasonable doubt.” [11]

Unamended indictment

22. As noted earlier, on arraignment the applicant’s co-accused pleaded guilty to Count 2, in the alternative to Count 1 in which the two of them were jointly charged.  In response to an enquiry by Mr Necholas, as to whether or not she wished a fresh indictment to be drawn up, the judge observed that the indictment named the co-accused in both counts, but noted “some counsel would want the jury to know that a co-defendant has in fact pleaded guilty”. [12]  For his part, Mr Sadhwani indicated that he wished that to occur, but that he wished to take specific instructions on the matter from the applicant.  Shortly afterwards he confirmed that it was not necessary for the prosecution to draw up a fresh indictment.  Thereafter, proceedings continued on the existing indictment.

23. On the following day, before the jury had been empanelled, Mr Sadhwani informed the judge that the applicant no longer wished to be represented by him or his instructing solicitors. [13]  Having stated that she intended proceeding with the trial, even if the applicant was unrepresented, and following an adjournment after which counsel confirmed his instructions, the judge discharged those representing the applicant. [14]

24. After the jury had been empanelled, Count 1 of the indictment was read to them by the clerk of the Court, as a result they were informed that the applicant and the co-accused were both charged with the offence set out in Count 1 and that the applicant had pleaded not guilty to the count. [15]  In her opening remarks to the jury the judge drew their attention to the fact that there were two defendants named in the indictment, but told them that, “We are not concerned with the 2^nd defendant in the present trial, so we just concentrate on D1.” [16]

25. In the absence of the jury, the judge told counsel for the prosecution that she wished the fact that the co-accused had pleaded guilty to Count 2, as an alternative to Count 1, to be made known to the jury in the prosecution’s opening speech. [17]  As requested by the judge, counsel for the prosecution told the jury in his opening speech that the co-accused “has, in fact pleaded guilty to the 2^nd charge that is listed in the indictment, namely being a tenant allowing her premises (sic) for the storage of some drugs”.

26. Although the judge directed counsel for the prosecution that what he described as the ‘statement of agreed facts’ could not be used in the trial before the jury, noting that it had been signed by counsel who had now been discharged,[18] neither counsel nor the judge adverted to the other step taken by counsel in the proceedings on behalf of the applicant, namely his request that the unamended indictment be placed before the jury and that they be told that the co-accused had pleaded guilty to Count 2.  Certainly, the judge did not ask the applicant if she wished the unamended indictment to be placed before the jury and that they be told of the plea of guilty of the co-accused to Count 2 on indictment.

27. On its face, it was surprising that Mr Sadhwani had told the judge that he wished the unamended indictment to be given to the jury and that in addition he wished that they be told of the plea of guilty of the co-accused.  The offence alleged in Count 2, highlighted by the Particulars of Offence, namely: that the co-accused, “being the tenant of premises…permitted the said premises to be used for unlawful storage of dangerous drugs” stipulating the dangerous drugs to be the same ones identified in the Particulars of Offence of Count 1, begged an obvious question: for whom was that done?  The obvious potential prejudicial effect on the applicant was that she was the only other person found on the premises at the time of the entry of the police officers.  Whilst it might have been that counsel hoped to take forensic advantage in some way of the information that he asked to be placed before the jury, once he had been discharged a real issue arose of whether or not an unrepresented defendant would be aware of the use which might be made of the point, if any, let alone that she would be able to do so.  Certainly, there was nothing in the Appeal Bundle that suggested that the applicant had made any use to her advantage of that information in the conduct of the trial.

28. We are satisfied that it fell squarely within the judge’s duty to an unrepresented defendant at trial, her counsel having been discharged, to have revisited the issue of whether or not the unamended indictment ought to be placed before the jury and counsel’s request that the jury be told that the co-accused had pleaded guilty to Count 2.  Her failure to do so was a material irregularity.

Proviso

29. Having regard to our determinations in respect of both grounds of appeal, we are satisfied that it is not appropriate to apply the proviso.

Conclusion

30. Accordingly, we allowed the application for leave to appeal against and, treating the hearing of the application as a hearing of the appeal, we quashed the appellant’s conviction.

Retrial

31. Mr Ma did not oppose Mr Lo’s invitation that the Court order a retrial of the appellant.  We were satisfied that it was appropriate to do so ordered a retrial of the appellant on a fresh indictment on the offence alleged in Count 1.  We directed that the case be listed before the listing judge for the fixing of trial dates within 28 days and that the hearing be expedited, ordering that the applicant be remanded in custody pending her retrial.

[1] HKSAR v Tso Kin Shing [2014] 3 HKLRD 736.

[2] Appeal Bundle, page 19 B-C.

[3] Appeal Bundle, page 108.

[4] Appeal Bundle, page 113 C-F.

[5] It is to be noted that the trial of this applicant concluded in mid-January 2014, one month before the application for leave to appeal against conviction was heard by this Court in HKSAR v Tso Kin Sho.

[6] HKSAR v Tso Kin Shing [2014] 3 HKLRD 736; at 743-744, paragraphs 5.5-5.9.

[7]¹ “There is one point that arises in this case: counsel for the Crown addressed the jury a second time, after the appellant, who was undefended, had given evidence. That course is irregular and cannot be justified.  Thomas, 17 Cr. App. R. 34: 1922.  We have, however, to consider whether any miscarriage of justice took place, and in this case we do not think there was any such miscarriage, but we desire to point out very clearly that the rule about counsel in such circumstances not addressing the jury a second time is one which ought to be carefully observed, and it might be that in another case this Court would have to hold that a conviction, in a trial where such an irregularity occurred, must be quashed.”

[8]² “The practice is now well established that in circumstances such as these, where an accused person is professionally unrepresented and calls no witnesses, other than giving evidence for herself or himself, the Crown is not entitled to make a second speech.  That has long been a rule of practice.”

[9]³ “Just as counsel for the prosecution has a right to open the evidence, so, we think, he has a right in every case to sum up the evidence at the end unless the defendant is unrepresented and calls no witnesses to the facts except himself.”

[10]⁴ “It was a case the outcome of which depended solely upon the view which the jury formed of the conflicting versions given by the Crown witnesses on the one hand and by the accused herself on the other, the sort of issues of fact upon which the role of the advocate could well play a very big part in determining the nature of the verdict which in due course would be returned by the jury.”

[11] Appeal Bundle, page 114 N.

[12] Appeal Bundle, page 124 E - 125 F.

[13] Appeal bundle, page 129 M.

[14] Appeal Bundle, page 130 E.

[15] Appeal Bundle, pages 136 P - 137 C.

[16] Appeal Bundle, page 137 F-H.

[17] Appeal Bundle, page 142 Q.

[18] Appeal Bundle, page 142 J-O.