HKSAR v. TSONG YI JIAN

CACC 218/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 218 OF 2010

(ON APPEAL FROM HCCC 354 & 385 of 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons of the Court):

1.  The applicant was convicted after trial before Line J and jury on an indictment containing three counts.  He was sentenced to concurrent terms of 20 years imprisonment in respect of Count 1 and two years imprisonment in respect of Count 2, both of which counts alleged trafficking in a dangerous drug.  In relation to Count 3, which was a charge of manufacturing a dangerous drug, the applicant was sentenced to 10 years imprisonment, two years of which were ordered to run consecutively to the 20 years, the remainder concurrently; making an overall sentence of 22 years imprisonment.  He appeals against conviction only.

2.  At the hearing of the application for leave to appeal, we refused the application and said we would hand down our reasons in due course.  This we now do.

The prosecution case

3.  In the evening of 1 April 2009, a team of police officers conducting a dangerous drugs operation hid themselves on the rear staircase of one of the upper floors of a residential building in Tai Kok Tsui, Kowloon. When they saw the front door to one of the units on that floor being opened, they emerged from their position and identified themselves to the person who was standing at the front door.  That person, who was subsequently identified as the applicant, was holding a black bag in his left hand.  He immediately tried to shut the door but the police party succeeded in overpowering him and gaining access to the premises.  Inside the flat were two other men, one of who was to become the second defendant at trial.  No charges were ultimately filed against the third man.

4.  Inside the black bag which the applicant had been seen holding was found 963.18 grammes of a solid containing 653.07 grammes of cocaine hydrochloride in block form together with 24.4 grammes of a solid containing 16.4 grammes of crack cocaine.  These drugs formed the subject matter of Count 1.  Openly displayed on a coffee table in the living room, the police found a shoe box containing HK$600,500 in cash, next to which was a transparent plastic bag containing 2.73 grammes of the solid containing 1.82 grammes of crack cocaine.  These drugs formed the subject matter of Count 2.

5.  Some time thereafter, a forensic scientist with the government laboratory attended the scene.  As a result of what she found, the police seized from the kitchen a quantity of sodium bicarbonate and piperine.  She subsequently gave evidence at trial that sodium bicarbonate could be mixed with cocaine hydrochloride in water to produce cocaine base, a process called “cracking” the cocaine so as to create a more valuable commodity in the dangerous drug market.  She further explained that piperine was commonly used in the packaging of cocaine and crack cocaine in order to mask its smell.  In the kitchen, the police also seized at her direction an electrical blender base, two blender blades, two blender cups, two sieves, eight metal bowls, a metal knife, a metal container, a cutter and two sets of electronic scales, most of them bearing traces of cocaine.  Her evidence was that all of these items would be used in, and were commonly associated with, the process of cracking cocaine.  These items gave rise to the allegation of manufacturing a dangerous drug in Count 3.

6.  Also in the premises were found five ‘Blackberry’ and three ‘Nokia’ mobile telephones.  Evidence was further given that the average retail price for cocaine in April 2009 was HK$758 per gramme; whereas the average retail price for crack cocaine was HK$1188 per gramme.  A quantity of 990.31 grammes of solids containing 671.29 grammes of cocaine would have had a street value of HK$750,654.

The defence case

7.  The applicant elected to give evidence.  He denied being in possession of the bag containing the dangerous drugs and further denied seeing or having any knowledge of the drugs or the cash found in the premises.  Although he accepted that he lived in the flat which belonged to a friend, he said he was not sure how the drugs or the money came to be in the flat or who put them there, since other people also had access to the premises. As for the items found in the kitchen, he maintained he had no idea how traces of cocaine came to be on them.  He said he did not often use the kitchen or open any of the drawers save for one particular drawer.  He claimed he was beaten and threatened by police officers in the course of which other officers claimed to have found drugs in the flat.  He was then told to admit that the drugs were his, but he refused to do so.

The grounds of appeal

8.  In his grounds of appeal, the applicant asserts that the judge magnified the weaknesses in the defence case (Ground 1), played down the errors and mistakes in the evidence of the police witnesses (Ground 2) and minimised the discrepancies between the police witnesses and other prosecution witnesses (Ground 3) during his summing-up.  It is further alleged that during the trial, the judge assisted the prosecution by re-phrasing certain “unfair and sensitive” questions during his own cross-examination (Ground 4), and that the judge then failed in his summing-up to direct or warn the jury how to treat the evidence derived from such questioning (Ground 5).  These questions were concerned with why the police should have chosen to frame him as the one holding the bag of drugs rather than either of the other two men in the flat.  Finally, it is alleged that leading counsel representing him at trial did not follow his instructions by repeatedly putting to the relevant prosecution witnesses that they had planted the drugs and cash inside the flat, when his instructions (and ultimately his evidence) were that he did not know how the drugs or cash came to be in the premises or who put them there (Ground 6).

Discussion

9.  We can deal with the first three grounds of appeal shortly.  Although no further particulars have been given, we can see nothing in the evidence or in the summing-up to justify any of the assertions made.  The evidence was placed before the jury in a way that was not only balanced but would assist them to identify the issues concerned. 

10.  Grounds 4 and 5 may be dealt with together.  It is true that on at least seven occasions during cross-examination of the applicant by prosecuting counsel (all of which were in the presence of the jury), the judge intervened either to stop or to re-phrase counsel’s questions.  However, this was in no way to angle the questions or to render them more unfair to the applicant, nor could his intervention have conceivably had that effect: rather, it was to ensure that the questions properly elicited facts rather than invited conjecture or opinion from the witness.  In so doing, the judge was actually trying to protect the applicant from what he perceived to be unfair or improper questioning.  The following exchanges exemplify the judge’s purpose:

“Q. You suggested all the police officers were lying, even you agree that they were total strangers to you and they have no personal grudge against you.

A. Yes.

COURT: You haven’t read paragraph 8-111 (of Archbold) over have you?

PROSECUTING COUNSEL: Yes, I’m sorry. Yes.

COURT:  You’ve established there is no personal grudge, okay.  Next question.”

Later, the judge reiterated the point during prosecuting counsel’s cross-examination:

“Q. So the police was again telling lies that when…

COURT: Look, you heard me. Refer to the actual thing. You keep breaking the rule. I’ve pulled you up about it once already. You’re not meant to say in cross-examination the police are lying. That’s what you say in your speech to the jury. This is about facts, right? Look at paragraph 8-111 of Archbold. I have it open at the place.

PROSECUTING COUNSEL:  Yes, my Lord, I’ll carry on.”

11.  It could not have been lost on the jury from the repeated and explicit references to Archbold and the correct way to conduct cross-examination, that the judge was concerned to ensure that cross-examination of the applicant was proper and elicited facts as opposed to speculation or comment.  The seventh time the judge intervened during cross-examination of the applicant, which on this occasion was as the result of leading counsel for the applicant’s objection to a question from prosecuting counsel, was as follows:

“COURT: Yes, cross-examination is about questions of fact. I keep repeating this. What you’re doing is, in effect, trying hard to make a speech to a jury in the cross-examination.

PROSECUTING COUNSEL: Yes, my Lord.

COURT:  All advocates do it the whole time.  It’s to be resisted.  Save your comment for the speech.  Ask about facts then and it’s on those facts you elicit now that you base your comments in the speech to the jury.  If you do that, everything lasts half the time.  We don’t have to have a repetition and you should remember too its quality and not quantity that counts.”

12.  Given that this was the judge’s obvious purpose, we cannot see how the jury would have interpreted his repeated interventions during cross-examination as in any way hostile to the applicant.  On the contrary, they might well have interpreted the interventions as hostile to prosecuting counsel’s cross-examination.  We see nothing in this complaint.

13.  As for whether the judge should have specifically directed the jury as to how to treat those questions and answers in cross-examination concerned with why the police should lie or frame up the applicant, prosecuting counsel never specifically asked that question.  Rather, the thrust of his question, which was then re-phrased by the judge so as to make it a proper one, was whether the applicant could point to anything that had happened inside the flat that evening which might indicate why the police had picked on the applicant as the one holding the bag of drugs rather than the other two men in the flat.  That was a legitimate question and one to which the applicant offered a not insensible answer.

14.  When the judge came to sum up the applicant’s evidence, he prefaced the section summarising the applicant’s evidence with a direction that the applicant did not have to prove his innocence and was not obliged to prove anything.  Coupled with the other general directions as to the burden of proof, we think there was no risk in the circumstances of a question which went not to why the police should have framed him up but why he should have been the one singled out as the one holding the drugs having any adverse impact on the burden and standard of proof.  We find nothing in either of these grounds.

15.  The final ground of appeal avers that leading counsel representing the applicant at trial did not follow his instructions when putting to the police witnesses that they had planted the drugs and cash inside the flat.  As we have observed, it was the applicant’s own evidence that he did not know how the drugs or the cash had come to be inside the flat. 

16.  We have some doubt whether such an allegation was explicitly understood to have been made in those terms to the witnesses.  For example, when cross-examining the Chief Inspector (PW5), who was the officer in charge of the case on the day in question, leading counsel put the matter as follows:

“Q. Well, you see, I have to suggest to you that these drugs were not found on the premises, they were planted there by the police, in all probability by the police.” (emphasis supplied)

17.  Even if the allegation of planting the drugs in cross-examination was understood to be more explicit than that, it was clearly the obvious avenue to be explored in cross-examination.  After all, three police witnesses alleged that the applicant was actually holding a bag containing almost a kilo of cocaine in solid form in his hand.  If that were not true, then it is difficult to see how the police could have been doing anything other than deliberately framing up the applicant.  There is nothing in this complaint.

Conclusion

18.  The evidence against the applicant in this case was overwhelming.  We see nothing in the conduct of the trial or in the summing-up which in any way renders these convictions unsafe or unsatisfactory.  For these reasons the application for leave to appeal against conviction was refused.

Post-script

19.  Before we leave this case, we wish to remind counsel that it is no part of their function to tell a court, let alone a jury, what they think or what their personal views or opinions are about a case.  Prosecuting counsel began his closing address to the jury by saying this:

“What we are going to tell you - or what we are going to say is not evidence. It is only our views, our comments on the evidence. So we just try to tell you and try to assist what are the views that we have on the evidence. Of course, my views will be different from that of the defence. So it is for you, members of the jury, after hearing all the evidence and also after hearing our views, to decide what are the facts of the case.”

He then concluded his speech with these words:

“So these are only my views and my observations on the evidence, and I ask you to consider that when you consider the evidence and in your deliberations.”

20.  This sort of advocacy has no place in any court room and judges at all levels of the court system have a duty to stop it. Advocates “submit”: they do not say what they personally “think” or “feel” about a particular argument or piece of evidence.