HKSAR v. LIN CHI YUEN AND ANOTHER

CACC 338/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 338 OF 2015

(ON APPEAL FROM HCCC 208 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.  The 1^st and 2^nd applicants were jointly charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The Particulars of Offence alleged that the trafficking took place on 20 July 2013 at Wo Hop Shek Village, Fanling in the New Territories and involved 0.33 kilogramme of a mixture containing 0.13 kilogramme of heroin hydrochloride and 0.03 kilogramme of 6-monacetylmorphine hydrochloride. On 24 October 2014, after a trial before Deputy High Court Judge Tallentire and a jury, the applicants were both convicted by a majority verdict of 5 to 1. On 22 September 2015, the applicants were each sentenced to a term of 10 years’ imprisonment.

2.  On 5 and 6 October 2015, Notices of Application for Leave to Appeal (Form XI) were filed by both applicants seeking leave to appeal against their convictions.

3.  At the hearing of the application for leave to appeal we reserved our judgment which we said we would hand down at a later date.  This is our judgment.

The prosecution case

4.  On the evening of 20 July 2013, police officers were laying in ambush at Wo Hing Road, Wo Hop Shek Village, New Territories.

5.  At 20:30 hours, PC 5695 (PW2) observed a green taxi stop near a bus stop outside Wo Hop Shek Village.  There was a passenger in the front passenger seat.  The applicants were seen walking out from a path that lead up to Wo Hop Shek Village.  The 1^st applicant carried a paper bag and the 2^nd applicant a mobile phone.  The 2^nd applicant stood by a lamp post while the 1^st applicant approached the front passenger side of the taxi and handed the brown paper bag through the window to the passenger in the taxi.  Thereafter, the 1^st applicant returned to the 2^nd applicant and they both returned to Wo Hop Shek Village where they entered House 91C.  The taxi drove off towards Ming Ying Road.  PW2 positioned himself near the door and could hear noise coming from five to six people in the house.

6.  Meanwhile, other police officers, including PC 10196 (PW1), followed the taxi and eventually stopped it at Kiu Hing Road, Yuen Long at around 20:56 hours.  PW1 testified that he never lost sight of the taxi and saw nothing being thrown out from it and no one alighting from it in the course of the journey.  When the taxi stopped, PW1 ran to the front passenger door and revealed his identity.  He saw a brown paper bag placed between the passenger’s feet which, upon later search, was found to contain the dangerous drugs that are the subject of the count. 

7.  The passenger in the taxi was a male by the name of Chiu King Hong.  He was arrested and he subsequently pleaded guilty to trafficking in the dangerous drugs that were contained in the brown paper bag.  In the trial of these applicants he testified in the defence case. 

8.  It was the 1^st applicant’s case that he had been instructed by the 2^nd applicant to deliver to the passenger in the taxi a brown paper bag containing a comic book.  A police photograph[1], which was adduced as part of the prosecution case, showed a comic book on the passenger seat.  This comic book was not seized by the police and PW1 testified that he could not recall finding a comic book in the brown paper bag. 

9.  Outside House 91C, PW2 kept observation and at around 00:25 hours on the next day, he saw the 1^st applicant, wearing the same clothes, walk down a footbridge and turn onto the Wo Hop Shek Village path.  PW2 saw the 1^st applicant stop in front of House 91C and get out a bunch of keys. He then approached the 1st applicant and revealed his police identity.  The 1^st applicant struggled and tried to get away, waving his hands, and yelling loudly.  After the 1^st applicant was subdued by PW2, the latter took his keys and tried unsuccessfully to open the door of House 91C.  He told the people inside the house to open the door, but he heard the sound of the door being bolted and a male shouting “Police. Get away!”  Finally, PW2 gained entry to House 91C and inside he found seven males and three females amongst whom was the 2^nd applicant.  

10.  The 1^st applicant was arrested and under caution he said to PW2: “It was Sze Tung who told me to pass a bag of things to another person.”  After giving this reply, he pointed at the 2^nd applicant.

11.  The 2^nd applicant was arrested by SPC 49334 (PW3).  Under caution, the 2^nd applicant said: “It’s Fei Hin who told me to pass a bag of things to another person, so I did.”

12.  The mobile phones seized from Chiu King Hong (“Chiu”) and the 2^nd applicant, showed three call records between them from 19:33 hours to 20:26 hours, shortly before the handover of the brown paper bag at 20:30 hours.  Also stored in the call records of both phones was the same number. Prior to 20:30 hours, Chiu had 16 calls with this number and the 2^nd applicant had two calls with it before 20:30 hours and then two more after 20:30 hours.

The defence case

13.  The 1^st applicant testified at trial and denied that he and the 2^nd applicant jointly delivered the brown paper bag to Chiu.  The 1^st applicant said that the 2^nd applicant was suffering from diarrhoea in House 91C and had told the 1^st applicant to bring a comic book in the bag to Chiu in the taxi.  The 1^st applicant said he delivered the comic book to Chiu alone and the 2^nd applicant did not accompany him.  The 1st applicant said he did not recognize Chiu as he was a friend of the 2^nd applicant; however, he later found out that he might have met Chiu before in a previous social gathering.  He denied that he had ever said under caution to PW2: “It was Sze Tung who told me to pass a bag of things to another person”.  He also complained that the police punched and kicked him when they arrested him.

14.  The 2^nd applicant did not testify at trial.  However, the passenger in the taxi, Chiu, was called as a defence witness and he claimed that at the material time, he had gone to Fanling by taxi and in a phone call with the 2^nd applicant had asked him to return a comic book.  He said it was the 1^st applicant who actually gave the comic book to him as he sat in the passenger seat of the taxi.  He explained that the three phone calls he had with the 2^nd applicant were to arrange for the collection of the comic book.  Chiu also claimed that he had to go and meet a customer, but he could not get hold of that person.  He then went to Wo Hop Shek Village to look for a customer nearby and later picked up the comic book.  As he had no container for the heroin brick, he asked the 2^nd applicant over the phone to get him a bag as well.  He claimed that while he was in the taxi, he took the dangerous drugs from his waistband and put them into the brown paper bag.  Chiu said that the mastermind in the dangerous drugs business was called “Fei Hin”. 

The Perfected Grounds of Appeal

15.  In his Amended Perfected Grounds of Appeal filed on 3 February 2017, Mr HY Wong, counsel for the applicants, raised four grounds of appeal, with the fifth ground being simply that in the circumstances the convictions of both applicants were unsafe and unsatisfactory.  The first four grounds of appeal are:

(a)  given the prosecution’s evidence, the judge should have ruled no case to answer in respect of the 2^nd applicant;

(b)  in directing the jury on joint enterprise, the judge failed to follow Specimen Direction 8.3 of the Specimen Directions in Jury Trials issued by the Hong Kong Judicial Institute (“the Specimen Directions”);

(c)   there were grave doubts as to the jury’s apprehension and understanding of the English language, leading to a reasonable doubt as to whether the jury fully understood and appreciated the summing-up of the judge and/or counsel’s speeches.  The jury had requested a “translation” of the conclusion of the judge’s summing-up and in these circumstances there is a lurking doubt that the judge’s direction on the proper approach to defence evidence was sufficient to bring home to the jury that the applicants must be acquitted if the defence's version is or may be true;

(d)  the judge failed to follow Specimen Direction 39.1 of the Specimen Directions on the proper approach to be taken by the jury to their consideration of the out-of-court statements attributed to a defendant where there was an issue as to the circumstances in which the admissions were made, whether or not the defendant was subject to oppression, violence, threat or inducements.  The judge’s direction failed to bring home to the jury that if they found the applicants’ answers were, or may have been, made or given as a result of oppression or something said or done which was likely to render them unreliable, then they must disregard them.  Moreover, the judge’s direction to the jury that they should not draw any adverse inference from the applicants’ refusal to sign the post-record of their answers under caution assumed the applicants had in fact made the admissions.  The judge should have directed the jury that the applicants’ refusal to sign the post-record of their answers under caution supported their case that they did not make the alleged oral admissions in the first place.   

16.  In his submissions, Mr Wong argued in respect of Ground 1 that, taking the prosecution’s evidence at its highest, the judge should have ruled that the 2^nd applicant had no case to answer.  He asserted that by the close of the prosecution’s case, the only evidence against the 2^nd applicant was that he was seen emerging from a path leading to Wo Hop Shek Village together with the 1^st applicant and then was seen talking on the phone and standing by a lamppost.  Mr Wong submitted that the identification of the 2^nd applicant as being the person with the 1^st applicant was weak as the incident only lasted for two minutes and it was at night time with only one street light in the vicinity.  In respect of the 2^nd applicant’s admission under caution Mr Wong submitted that it was so equivocal that no weight should be placed on it. 

17.  Mr Wong referred to HKSAR v Chan Ming Ngan & ors[2]and HKSAR v Chang Che Wei[3], where the Court of Appeal allowed the appeals as, for one reason or another, the evidence implicating the applicants in the offences with which they were charged was insufficient to prove their guilt.

18.  In support of Ground 2, Mr Wong relied on Specimen Direction 8.3A of the Specimen Directions dealing with joint criminal enterprise:

“… The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it [however great or small] so as to achieve that aim.

Your approach to the case should therefore be as follows: if, looking at the case of either/any defendant, you are sure that with the intention I have mentioned he took some part in committing it [with others/with B and C] he is guilty.” (Emphasis added.)

19.  Mr Wong submitted that, not only had the judge failed to follow the Specimen Direction on joint criminal enterprise in his summing-up, but the repeated reference to “either or both” of the 1^st applicant and the 2^nd applicant in this regard would have misled, or at least, created confusion in the minds of the jury.  Mr Wong illustrated the problem with the judge’s direction by submitting that even if the jury was not sure that the 1^st applicant knew about the dangerous drugs contained in the brown bag, as long as they were sure that the 2^nd applicant had the relevant knowledge and intention to commit the trafficking offence, then it would be sufficient to find the 1^st applicant guilty and vice versa.  Mr Wong submitted that that must be wrong in law.

20.  For Ground 3, Mr Wong first of all submitted that the judge erred when, in directing the jury on the proper approach to Defence evidence, he immediately further directed them that even if they disbelieved the defence case they could not convict the applicants unless the prosecution case satisfied them so that they were sure of the applicants’ guilt.

21.  It was submitted that these directions were in similar terms to the direction the judge gave to the jury in HKSAR v Tse Hin Yeung[4], which was held by the Court of Appeal to have failed to bring home to the jury that the applicant must be acquitted if the defence’s version is or may be true.

22.  Mr Wong further submitted that there were grave doubts as to whether the jury could fully appreciate and understand the judge’s summing-up.  On the second day of the summing-up, there was a request to the judge from the jury “for an immediate translate (sic) of your conclusion”. The request was refused by the judge but he said he would repeat his conclusion and speak more slowly. 

23.  Mr Wong submitted that the jury’s request “gave rise to grave doubts as to the jury’s apprehension and understanding of the English language.”  Mr Wong asked the court to conclude that the jury’s knowledge of English may not have been sufficient for them to understand the whole of the summing-up.  Even if the jury was able to apprehend and understand the English language, it was still not possible to be sure that the jury had acted upon the correct direction,[5] or the direction[6] which immediately followed it, when considering the defence evidence.  That would lead to a lurking doubt of whether the jury understood that they should acquit if the defence case might be true.

24.  Regarding Ground 4, Mr Wong submitted that the judge’s direction to the jury that they should dismiss the applicants’ statements if they were not sure that they had been given freely and fairly without threats, violence, inducements or acts of oppression failed to follow Specimen Direction 39.1 of the Specimen Directions and consequently had failed to bring home to the jury that if they found the statements were, or may have been, made or given as a result of oppression or something said or done which was likely to render them unreliable, they must disregard them. 

25.  Furthermore, when the judge directed the jury that they should not draw any adverse inferences from the applicants’ refusal to sign the post-records this in effect already assumed the applicants had in fact made the verbal admissions.  The judge should have instead directed the jury that the fact that the applicants refused to sign would go to support their case that they did not make the alleged oral admissions in the first place.  At least, the judge should have directed the jury that the notebook entries could not be treated as evidence that the alleged verbal admissions were indeed made, otherwise the jury could have found the notebook entries as supportive evidence that the alleged verbal admissions were made.

The respondent’s submissions

26.  In replying to Ground 1, Mr Bruce Tse, who appeared both at trial and on this application for the respondent, submitted that it was incorrect to say that the only evidence against the 2^nd applicant at the close of the prosecution’s case was that he emerged from the same path with the 1^st applicant.  Mr Tse helpfully identified all the separate pieces of evidence that went to establishing a case to answer.  In order to avoid repetition we shall not describe that evidence here.  It is set out in the Discussion part of our judgment which draws heavily on Mr Tse’s submission. 

27.  Mr Tse submitted that in light of this evidence, an inference that the 2^nd applicant was actively involved in arranging and implementing the handover of drugs could be drawn and, ultimately, that was the inference the jury drew. 

28.  Regarding Ground 2, Mr Tse submitted that the phrase “either or both”, which attracted the applicants’ complaint, was only employed by the judge to direct the jury on the need for them, when determining the guilt of the two applicants, to consider each applicant’s case separately. 

29.  Mr Tse took the court to the passages in the summing-up where the judge had repeatedly directed the jury specifically on the issue on joint enterprise.  These five occasions occurred after the passages where the judge employed the phrase “either or both”[7]. Mr Tse submitted that although the judge did not follow the Specimen Direction verbatim, he had extensively elaborated and explained to the jury the meaning and requirements of joint enterprise and his adaptation was relevant to the present case.

30.  On the Ground 3 issue of whether the judge’s direction on the proper approach to Defence evidence was muddled by a direction immediately following it and as a consequence of which the judge had failed to bring home to the jury that the applicants must be acquitted if the defence’s version is or may be true, the respondent submitted that the jury had in fact been repeatedly directed on the proper approach. 

31.  On the issue of whether there was a lurking doubt that the jury understood the summing-up and directions, Mr Tse submitted that there could not be any doubt about the jury’s comprehension of English as:

(a)  throughout the trial, the jury heard all the evidence in both Chinese and English languages.  The trial was not a long one and the evidence was not complicated;

(b)  after the judge told the forelady that he could not provide them with a translation, the forelady communicated perfectly well with the judge in English, and on behalf of the other members of the jury replied to the judge:

“… Okay, fine… That’s fine.”[8];

(c)  also when the judge told the jury:

“… I will take it slowly. If any juror doesn’t understand anything that I am saying, please indicate and I will stop and take it even more slowly.”

the jury raised no objection and neither did either of the applicants’ counsel at trial;

(d)  the judge went on to repeat all the salient points of his summing-up and directions;

(e)  after the judge repeated all the salient points and before he moved on to direct the jury on the “benefit of the doubt”, he had paused and asked the jury whether they had any problem with the directions.  The jury did not indicate they did;

(f)  the judge also told the jury:

“should you need any further directions on law or a further reminder about some aspect of the evidence, then send me a note…and I will…try to assist you.”

(g)  after the jury was sent away for their deliberations, the defence raised no concern about whether there was any possibility that in the circumstances, the jury might not have understood some part of the directions; and

(h)  during their deliberations, the jury did not ask any question, nor did they seek any reminder or clarification of any aspect of the directions.

32.  Mr Tse submitted that in all the circumstances, it would be fanciful to suggest that there was a basis for concluding the jury had not understood the judge’s summing-up. 

33.  In reply to Ground 4, Mr Tse submitted that a proper direction was adequately given to the jury and there is no basis for the applicants’ complaint. 

34.  In addressing the issue that the judge had assumed that the applicants had made the verbal admissions by directing the jury not to draw adverse inference on such fact, Mr Tse submitted that the judge first of all had directed the jury on the applicants’ right of silence. By further directing the jury not to draw any adverse inference, the judge stressed that the applicants had the right not to sign any document whether that document is accurate or not.  Mr Tse submitted that an inference or assumption that the applicants had made the verbal admissions was obviously an adverse inference, which the judge had specifically directed the jury not to draw against the applicants.

35.  Furthermore, Mr Tse argued that the direction given by the judge resembles the direction that was given in HKSAR v Mushtaq Zeeshan[9], which the Court of Appeal approved.  Mr Tse submitted that it was not a requirement that the judge follow the Specimen Direction verbatim and in the present case the direction given by the judge sufficiently impressed upon the jury that they could only consider the statements made by the applicants if they considered that they were made in circumstances free from impropriety. 

36.  Mr Tse asserted that the convictions of the applicants were neither unsafe nor unsatisfactory.

Discussion

37.  The evidence against the 2^nd applicant was not as bare as portrayed by Mr Wong.  At the end of the prosecution case the evidence implicating the 2^nd applicant consisted of:

(i) the 1^st and 2^nd applicants being observed to emerge together from the village path which led to the 1^st applicant’s place of residence;

(ii) the evidence of the applicants emerging from the path which led to the 1^stapplicant’s house allows the jury to infer that they came from that house and that the bag, with the drugs in it, was brought from the house.  The 2^ndapplicant was associated with the house as he appeared to be coming from it and he was later found in it.  Unlike any of the other occupants of the house he chose to accompany the 1^stapplicant to the road;

(iii) notwithstanding that they had walked down the village path together, when they reached the road and were waiting for the taxi to arrive, the 2^nd applicant separated from the 1^st applicant and stood at a lamp post about 15 metres away.  The effect of so doing was that when the 1^st applicant approached the taxi to hand to the occupant of the taxi the brown paper bag he was carrying, which took place at 20:30 hours, he was on his own.  The jury would have been entitled to infer from the 2^nd applicant’s conduct that it was abnormal and that the 2^nd applicant was trying to distance himself from the 1^st applicant’s action of transferring possession of the brown paper bag;

(iv) the 1^st applicant being in phone contact with the occupant of the taxi at 19:33 hours;

(v) the 2^nd applicant being in phone contact with the occupant of the taxi at 20:19 and 20:26 hours;

(vi) heroin being found in the brown paper bag at 20:56 hours;

(vii) the 2^nd applicant saying under caution: “Its Fei Hin who told me to pass a bag of things to another person, so I did.”

38.  As the 2^nd applicant was never observed to be in possession of the drugs and his liability was based upon the doctrine of joint criminal enterprise, the position in respect of him at the end of the prosecution case was that there had to be evidence on which a jury properly directed could find that he was a party to a joint criminal enterprise with the 1^stapplicant to deal with dangerous drugs by transferring possession of the drugs in the brown paper bag to the occupant of the taxi.

39.  In order to do this the jury would have to have before them evidence from which they could draw the following inferences:

(i) there were drugs in the brown paper bag being carried by the 1^stapplicant;

(ii) the 2^ndapplicant knew that there were drugs in the brown paper bag;

(iii) the 2^ndapplicant knew that the 1^stapplicant was intending to transfer possession of the drugs in the brown paper bag to the occupant of the taxi; and

(iv) the 2^ndapplicant was acting in concert with the 1^stapplicant in the sense that he shared a common intention with the 1^st applicant to transfer the drugs in the brown paper bag to the occupant of the taxi.

40.  The question then becomes:

“Could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case were to be established?”[10]

41.  We are satisfied that the answer to this question is an affirmative one.  The first inference simply flows from drugs being found in the brown paper bag when the taxi was later stopped and the evidence of the police officer was followed the taxi and kept it in sight throughout its journey.

42.  The other inferences can be drawn from all the evidence previously mentioned, especially by his statement under caution.  By this statement the 2^nd applicant associated himself with the handover of the brown paper bag and when this is combined with his two phone calls to the occupant of the taxi very shortly before the handover and his association with the 1^stapplicant in accompanying him to the roadway to hand over the brown paper bag, there is sufficient evidence to allow of the other inferences that had to be drawn.

43.  We are satisfied that on this evidence the 2^nd applicant had a case to answer.  

44.  The second ground of appeal asserts that the judge erred in the directions he gave the jury on joint criminal enterprise and because the prosecution case against the 2^ndapplicant was based upon this legal doctrine it was incumbent on the judge to direct the jury on this form of criminal liability.  A judge doing this would normally have recourse to the Specimen Directions to convey the criminal element of common intention.  The Specimen Directions express it in this way:

“The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it so as to achieve that aim.”

45.  The judge directed the jury on the concept of joint criminal enterprise on a number of different occasions in the course of his summing‑up.  It is necessary to examine those occasions to determine whether, when the jury came to commence their deliberations, they had been properly directed on what they had to find in order to convict the 2^nd applicant. 

46.  The first occasion that the judge mentioned joint criminal enterprise in his summing-up was when he was directing the jury to treat the cases against each applicant separately.  He said:

“ We know that neither defendant admits ever being in possession of the dangerous drugs. Therefore, as a first step, the prosecution does have to prove that either or both was in possession in order to secure a conviction. And I do pause at this point to tell you that you must look at the cases separately, not together. There is different evidence against each of the defendants; you must consider each one in isolation, though there is a question of what is referred to as joint enterprise here.

Now this means, in law, the prosecution has to prove that not only did either or both had physical possession of the dangerous drugs, but also that either or both were aware they were in possession of dangerous drugs.  The prosecution does not have to prove to you exactly what the dangerous drugs were, only that there were dangerous drugs and that either or both of the defendants knew them to be dangerous drugs.  If that is proved beyond all reasonable doubt, they would be guilty of at least possession. However, to obtain a conviction on the specific charge of trafficking, they must go on to prove beyond all reasonable doubt that either or both had it for such a purpose.  In this case, you therefore have to be sure that either or both, D1 and/or D2, had possession of the dangerous drugs and were delivering the said dangerous drugs to the person in the taxi, who received the paper bag with full knowledge.”

47.  To put this passage in context it should be mentioned that it flowed immediately on from the judge telling the jury that they could not convict either of the applicants unless they were satisfied that either or both had possessed the dangerous drugs and that either or both had trafficked in them.

48.  The judge’s use of the phrase “either or both” is, as we have earlier mentioned, the basis of a complaint by Mr Wong.  However, we are satisfied that when read in context it is clear that the judge’s use of this phrase was only meant to emphasize the direction he was giving that the evidence against each applicant had to be separately considered and that separate conclusions had to be reached by the jury as regards each element of the offence as against each applicant.  We are further satisfied that is how the jury would have understood his repeated use of this phrase.

49.  The judge then went on to emphasize to the jury that there was a distinction between the two applicants in that the 2^nd applicant never had possession of the drugs and so his criminal liability flowed from the allegation that he was acting in concert with the 1^st applicant.  The judge directed the jury:

“As far as D2 is concerned, the prosecution would need to prove beyond all reasonable doubt that he acted in concert; that is, acted together with D1, that is, the man who physically delivered the bag. Because as you will recall from the evidence, D2 was never, according to prosecution evidence, never seen to be physically in possession of the bag which they allege contained the dangerous drugs.” (Emphasis added.)

50.  Throughout his summing-up the judge used the phrase “act in concert” to convey the element of common intention that is core to the legal liability of joint criminal enterprise. 

51.  The next occasion that the judge referred to joint criminal enterprise was when he was directing the jury on eleven points that he considered were important to the jury’s deliberations.  He referred to these points as concluding his summing-up.  His fourth point addressed the knowledge and intent of both applicants.  He said:

“(4) Even if – and I say if you were to find that PW3(P3?) contained the dangerous drugs that were passed to Chiu at Wo Hing Road, you must look carefully at the evidence and be sure D1 knew he was passing over dangerous drugs and that D2 was present, actively involved, and also had the same knowledge before you can convict both or either of them.

To convict both, you need evidence of acting together in a joint venture (enterprise?). I shall mention that later.” (Emphasis added.)

52.  Although the judge did not use the language of “common intention” that is employed in the Specimen Directions he did direct the jury that they had to find that the 2^nd applicant was present with the 1^st applicant at the scene of the handover of the drugs by the 1^st applicant, was actively involved with the 1^st applicant in that handover and had the same knowledge as the 1^st applicant in respect of what was taking place, that is that the 1^st applicant was handing over a brown paper bag containing dangerous drugs to a passenger in a taxi.

53.  The third occasion he directed the jury on the criminal liability of the 2^ndapplicant was after he referred to the 1^stapplicant’s evidence that the 2^ndapplicant had requested him to deliver the bag whilst the 2^ndapplicant remained in the toilet.  The judge said:

“(10) D1’s evidence was that at the request of D2, who was suffering diarrhoea, he delivered the brown bag with the comic to Chiu, who was in a taxi on Wo Hing Road. Chiu, as we know, confirms this and expands on it. This is evidence how this came about. To convict D1 and D2 you would have to totally disbelieve and discount the evidence if you find only that it might be true, that is sufficient to find – support a finding of not guilty. The basis of the charge against D2 is joint enterprise and that they acted in concert; that he acted in concert with D1 in passing over the dangerous drugs, which was in the bag, and which was known to be dangerous drugs. You must look at the evidence carefully on this.”

54.  Again, the judge distinguished the different cases against each applicant and emphasized that for the 2^nd applicant it was not enough for the jury to simply disbelieve the evidence of the 1^st applicant; they had to, additionally, go on to consider whether the 2^nd applicant had been acting in concert with the 1^st applicant in handing over to another what he knew to be dangerous drugs.

55.  At the request of the jury he repeated his eleven points and so the directions on joint enterprise that are contained in points (4) and (10), quoted above, were repeated.

56.  The fact that a judge has not followed the Specimen Directions does not necessarily mean that he has erred in the direction or that he has failed to impart to the jury the essential aspects of the legal direction that he is required to give.  Indeed the Specimen Directions make clear that what is important is not so much a slavish adherence to them but rather a direction which conveys the same message, made more relevant and intelligible to the jury by adapting it to the evidence in the case being tried.

57.  Here the judge repeatedly emphasized that the jury had to be satisfied that the two applicants were acting in concert and acting together; that the 2^nd applicant was present, actively involved with the 1^st applicant in passing over the dangerous drugs and had the same knowledge as the 1^st applicant that dangerous drugs were in the brown paper bag.

58.  The Specimen Directions require that the jury be told that they cannot convict unless they are sure in respect of each defendant that he shared a common intention to commit the offence and played his part in it to achieve that aim.

59.  We are satisfied that by his directions the judge conveyed to the jury the essence of joint criminal enterprise even though he did not use the language of the Specimen Directions. 

60.  In his third ground of appeal Mr Wong asserts that the jury may not have clearly understood that they must acquit the applicants if they were to find that the 1^st applicant’s evidence might be true. Mr Wong submitted that the reasons why the jury may not have clearly understood this important legal principle are twofold.  They are, firstly, because the judge did not properly give the jury the Liberato direction and secondly, because they may have had a poor understanding of English which, he argued, was evidenced by their request to the judge that he translate his conclusion. 

61.  Of the two applicants, only the 1^st applicant gave evidence and only one witness, Chiu Kin Hong, was called.   In respect of this defence evidence the judge gave the following direction:

“D1’s evidence was that at the request of D2, who was suffering diarrhoea, he delivered the brown bag with the comic to Chiu, who was in a taxi on Wo Hing Road. Chiu, as we know, confirms this and expands on it. This is evidence how this came about. To convict D1 and D2 you would have to totally disbelieve and discount the evidence if you find only that it might be true, that is sufficient to find – support a finding of not guilty.”

62.  This direction was point 10 in the judge’s conclusion to his summing-up and so when the jury asked him to repeat his conclusion this direction was restated.  This was the Liberato direction.

63.  Mr Wong argued that the direction by the judge which immediately followed the above quoted direction was a misdirection and prayed-in-aid the case of HKSAR v Tse Hin Yeung[11]. The direction which he criticized was point 11 of the judge’s summing-up. In this part of the summing-up the judge directed the jury:

“(11) The final point I wish to make is that even if – and I say even if you disbelieve and reject the evidence of D1 and D2 – and DW1, sorry, be clear I am not suggesting for a moment that you should, that is your decision, and still, you must examine the evidence carefully to see if the prosecution case amounts to proof beyond all reasonable doubt. In other words, if you reject the defence version, can you be sure the prosecution version is capable of supporting guilt of D1 or D2. Remember the onus stays with the prosecution to prove its case beyond all reasonable doubt no matter how suspicious you may be.”

64.  The reliance on Tse Hin Yeung by Mr Wong is misconceived.  In that case the direction that is the judge’s point (11) was given but it was not accompanied by the Liberato direction that is the judge’s point (10).  It was that absence that led the Court of Appeal to be critical of the judge’s directions.  It was not critical of the direction that was given; rather it was critical of the judge’s failure to give the Liberato direction.

65.  In respect of these applicants both directions were needed, both were given and in their content they were correctly given.

66.  But, this ground of appeal also asserts that there is reason to believe the jury’s level of English was poor and if it was then they might not have understood that they should acquit if they found that the defence case might be true.

67.  The submission that the jury might not have understood the judge’s directions is based upon their request that he translate his concluding directions which consisted of 11 points, some of which we have already quoted in this judgment.  In order to put this matter in context it is necessary to set out how the jury’s request came to be made and how the judge responded to it.  It arose, as jury requests do, by the jury sending a note to the judge and the judge then raising the contents of that note with counsel.

68.  In their note the jury made three requests.  Although the other requests are not relevant it is worth knowing what they were, for, if anything, they indicate that the jury were well aware of the evidence and the issues in the case.  This is what the judge said to counsel:

“COURT: Now gentlemen, two things have happened. The first is last night I received a request from the jury and that requests that I go through the what I call ‘my conclusion’ again. I think maybe I went through it a little bit too quickly for them and I think they want me to repeat it so I intend to do that and incorporate the supplemental parts that you asked me to put in, Mr Percy.

The other thing I think that I missed out I should deal with is that number that Mr Tse mentioned ‘59377588’, as being a common number that was rung by both D2 and DW1. I think I’ve got to say something on that to the jury because that’s not been mentioned, but you did mention it, Mr Percy.

The other thing that they’ve asked is they want to view the evidence of the paper bag and the newspaper. They want to have that placed before them when they retire, and they want to know the exact size of the brick of heroin.

Now do we have that information, Mr Tse? I am sure someone would have measured the size of it, I know they certainly weighed it, but …

MR TSE: I doubt it, but I’ll double-check all the information – all the materials I have.

COURT: Right. Now the brick itself, the dimensions are not new evidence so they are entitled to know if there’s been a measurement taken of that …

COURT: There is – it’s three requests.

MR PERCY: Three requests.

COURT: To repeat – this affects you, Mr Chau. There’s a request from the jury to have a look at D2’s tattoos.

MR CHAU: That’s not possible, that’s new evidence, my Lord …

COURT: That’s my view, I agree with you on that…

[Jury returns]

COURT: I must say I am most impressed to how seriously you are taking your role as jurors, and I am very happy to assist you as much as I can.

  I have got from you four requests.  The first one is you would like me to go through my conclusion again, that is, the major points.  I am very happy to do that.  I think maybe I went through it a little bit too quickly in the first place so I am very happy to go through it a little more slowly.  There’s also one or two supplemental points that I wish to make as well at the request of counsel, so that will be done.”

69.  As is apparent from the request neither the judge nor counsel understood the juries’ request to flow from a poor understanding of English.  For this reason and for the reasons advanced by Mr Tse as set out in paragraph 31 of this judgment we are satisfied that there is nothing in the jury’s request to support a claim that they were not able to understand what the judge said by reason of poor English language skills.

70.  We are satisfied there is no merit in this ground of appeal.

71.  In his fourth ground of appeal Mr Wong complains of the judge’s failure to give a Mushtaq direction.

72.  The judge’s directions on the applicants’ admissions were as follows:

“ D1 insists he never said this and you would have considered that, whether or not you come to the conclusion it was ever said, and that he was subject to acts of oppression and violence before this is alleged to have been said. So, if you find that it was said, even though – as I said, I see it very much consistent with the version put forward by D1, you still have to come to the conclusion that it was given freely and fairly without threats, violence, inducements or acts of oppression. If you are not sure of that, then you must dismiss it from the evidence.

D2 has disputed his alleged reply to – after arrest and caution. Bearing also in mind that both claim they were never arrested and cautioned in the first place. His reply is namely, ‘It is Fei Hin told me to pass a bag of things to another person, so I did.’ His challenge was put via cross-examination of PW3 by Mr Chau. He put it to PW3 that he never made it at all. So we have the same situation. Also, that he had been induced by threats. It is therefore for you to decide, again in the first place, whether or not you are satisfied he said those words, and if you find he did say those words, whether or –- you have to be satisfied they were not made as a result of threats, violence, inducements or oppression. If you think they might be, then you dismiss them from your evidence – from the evidence. It is therefore for you to decide the circumstances and whether he did make it voluntarily. You will bear in mind that even if you accept it, consider how much further it takes the prosecution case. Look at the exact words said.” (Emphasis added.)

73.  The italicised words reflect what is required by the Mushtaq direction and there is no merit in the complaint that the judge failed to give the direction.

74.  Mr Wong submits that the judge did not adequately convey to the jury that, firstly, they had to decide if the admissions were made and in deciding this question they should take into account, in the applicants’ favour, that they had both refused to sign the police post-records of their allegedly fabricated admissions.  Instead the judge directed the jury to not draw any inference from the applicants’ refusal to sign against the police post-records of their admissions.

75.  From the passages of the judge that we have quoted we are satisfied that the judge made it clear to the jury that they had to decide the question of whether either of the applicants made the statements attributed to them.  We are equally satisfied that the judge’s comment not to draw any inference from the failure of the applicants to sign the police notebook was a proper one.  It was motivated by a desire to ensure that the jury did not use this conduct by the applicants in a way that would prejudice them.  He said:

“ The refusal by D1 and D2 to sign the notebook of PW2 and PW3 respectively, and (to?) acknowledge the verbal admissions. Again, you must draw no adverse inferences. They have absolute right to do this because it is part of the absolute right to silence, it is part of the right to not self-incriminate oneself. So, again, nothing adverse can be drawn from the fact that they refused to sign the book(notebook?). And that is all I wanted to say on that.”

76.  As Mr Tse pointed out if the jury were to use this evidence to support a conclusion that the applicants did in fact make the statements attributed to them then they would be acting contrary to the judge’s direction in using this piece of evidence adversely to the applicants.  It is important to remember that the judge was not directing them on how they might use this piece of evidence but rather that they must not misuse it in a particular way.  He did not prohibit them from otherwise acting upon this piece of evidence and it remained available to them to use in the favourable way suggested by Mr Wong.  But that does not mean that the judge was required, as part of a balanced summing-up, to remind the jury that they could use it in this way.  In our view he was not.

77.  There is nothing in this ground of appeal.

78.  There being no merit in any of the substantive grounds of appeal we are satisfied that there is nothing unsafe or unsatisfactory in respect of the applicants’ convictions.

Conclusion

79.  For these reasons we refuse the applications for leave to appeal.