HKSAR v. HO YET HAN DAPHNE

CACC 631/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 631 OF 2002

(ON APPEAL FROM HCCC 207 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 5 December 2002, following a trial in the Court of First Instance before Mr Recorder L. Lok, SC, and a jury, the Applicant, aged twenty-nine, was convicted on count 1 of possessing a variety of dangerous drugs and on count 2 of trafficking in a quantity of powder containing 393.71 grammes of ketamine. The Applicant now seeks leave to appeal against her conviction on each count.

2. Before the trial commenced, the Applicant's co-defendant on the original indictment, Li Wai-hung (Li), pleaded guilty to trafficking in both the quantities of drugs identified in counts 1 and 2 faced by the Applicant. During the trial, Li was called to testify on the Applicant's behalf.

3. This application is concerned with a single point. Mr William Allan, on the Applicant's behalf, submitted that the conviction on each count was unsafe or unsatisfactory because the Recorder failed to give the jury any direction as to their approach to lies in a case where, he alleged, there was a danger that the jury may have believed that a lie told by the Applicant was tantamount to proof of her guilt.

4. We do not need, for present purposes, to recite the facts in any depth. It suffices to say that the prosecution called evidence to show that when the Applicant's flat was searched by customs officers on 31 January 2002, the dangerous drugs were found together with other items of related paraphernalia in the form of weighing scales and transparent plastic bags. The drugs, apart from the large quantity of ketamine in count 2, included small amounts of methamphetamine (ice), nimetazepam, cannabis and ecstasy (also referred to at trial as MDMA and 'fing tau'). These were found on shelves where, allegedly, they could easily be seen without disturbing other items in the flat.

5. The Applicant was the tenant of the flat but it seems she was often visited by Li, her boyfriend, who was in the habit of staying there on about two nights a week. About four and a half hours before the search which led to these proceedings, Li was observed to make a visit to the flat lasting about 25 minutes. On that occasion, customs officers were unable positively to see if either Li or the Applicant, who was with Li when he arrived, were carrying anything with them as they alighted from a car and entered the building to go to the flat.

6. About 20 minutes after Li had driven away, he was arrested in a different vehicle which was found to contain 'ice' and other drugs. Later he was shown the drugs which had been found in the Applicant's flat and he stated they were his.

7. Significantly, the customs officers found that the large quantity of ketamine in count 2, which was found next to some plastic bags and the two weighing scales, was wrapped in a piece of gift paper and foil (Exhibit P42). This package was inside a plastic bag. The Applicant's toe print was found on the foil, part of Exhibit P42.

8. The Applicant's defence was that the drugs were Li's and that during the time Li was in the flat she was unaware of his activities as she had been asleep. The obvious point which was made in relation to the toe print was that no one could say how long ago it had got onto the tinfoil.

9. Li was called as a witness for the defence. He said that he had been given a packet by someone called 'Ah Keung' to deliver to someone else that night. He had put the packet under the driver's seat of his car when the Applicant telephoned him. He asked her out to have a meal. He fetched her from her flat and drove her back afterwards by which time the Applicant, who has apparently suffered all her life from epilepsy, was feeling unwell. He went into the flat with her, taking at the same time 'Ah Keung's' packet from the car. He stated that while on his own in the Applicant's kitchen, he examined the contents of the packet. He then repackaged the drugs he found inside (using the wrapping in Exhibit P42) to make it "look nicer". Li left the flat soon afterwards having received a telephone call from a friend who asked him to deliver some 'ice'.

10. Some hours later, the Applicant also left the flat. She said that she had been feeling unwell and needed to find some medicine. It was at that stage that she was intercepted and brought back to her flat by the customs officers.

11. The Recorder aptly stated more than once that if either the Applicant's or Li's evidence was or might be true, the Applicant had to be acquitted.

12. Mr Allan's submission was that the prosecution were alleging, in essence, a concocted defence between the Applicant and Li, particularly in the light of evidence that the Applicant had visited Li almost daily whilst he was in prison following his arrest. This led the Recorder to say, in his summary of Li's evidence, that "(Li) denied any attempt to fabricate the defence together with the defendant". In such circumstances, Mr Allan contended that the absence of a 'lies' direction to cover the possibility that the jury may have considered the defence to have been fabricated, particularly having in mind a number of contradictions between Li's evidence and the Applicant's, had denied her a fair trial.

13. We disagree. This was not a case where the prosecution appears to have suggested that lies which may or may not have been told by the Applicant were supportive of the prosecution's case. This court, in HKSAR v Mo Shiu-shing [1999] 1 HKC 43 at 57 said:

"In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said."

14. More recently, this was echoed in Yuen Kwai-choi v HKSAR, FACC 6/2002 (unreported) where at paragraph 37, the judgment reads:

"37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. R v. Barnett [2002] 2 Cr. App. R. 11 168, 173. In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. See R v. Dehar [1969] N.Z.L.R. 763, 765; R v. Man Bing Chou [1993] 2 HKCLR 71; R v. Liacopoulos and others, unreported, August 31, 1994, referred to in R v. Burge and Pegg [1996] 1 Cr. App. R. 163, 172 to 173. In these situations, there is no danger of improper use by the jury of any lie told by the accused and there is no risk of miscarriage of justice."

15. This trial left a straightforward issue for the jury to resolve which required no further direction from the judge.

16. Accordingly, we dismiss this application.