HKSAR v. LAM, TIMOTHY YAT FUNG

[ENGLISH TRANSLATION - 英譯本]

CACC 178/2013

IN THE HIGH COURT OF THE

HONG KON SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 178 OF 2013

(ON APPEAL FROM HCCC 301/2012)

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the Reasons for Judgment of the court):

1.  The applicant was charged with one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).  The drug involved was 1.46 kg of ketamine (commonly known as “K Chai”).  The applicant pleaded not guilty.  He was convicted after trial before Hon P Li J sitting with a jury and was sentenced to imprisonment for a term of 14 years and 6 months.

2.  The applicant applied for leave to appeal against conviction.  At the conclusion of the hearing, this court dismissed the application, and we now give our reasons.

Prosecution case

3.  The prosecution case reveals that in the afternoon on 23 March 2012, a team of police officers carried out surveillance at the staircase on a floor in Choi Tak Estate, Ngau Tau Kok.  The police saw the applicant come out from one of the units on that floor with the first prosecution witness of the present case (“PW1”) and a person surnamed Tse.  The police went up to intercept them.  At that time, PW1 was holding two wooden boxes, inside which were a bag of cane sugar, resealable plastic bags of various sizes, two electronic scales, two spoons and some desiccant beads.  Subsequently, traces of “K Chai” were found upon examination on those two spoons and one of the electronic scales.  At that time Tse was holding a plastic box and a reusable bag.  There were eight packets of “K Chai” inside the plastic box and twenty-three packets of “K Chai” and a bag containing powder of para-aminobenzenesulfonamide inside the reusable bag.  The applicant was holding three garbage bags, one of which was containing a damaged resealable plastic bag with traces of “K Chai” inside.

4.  The unit was the residence where PW1 lived with his family.  The police went into the unit for a search but did not find any person.  Subsequently, the police seized a thermosealer in the living room of the unit.  The police took samples from the three intercepted persons by wiping their hands, and upon examination, both hands of these three persons found to have traces of “K Chai”, whereas no trace of “K Chai” was found on the applicant’s fingernails.  At that time, each of these three persons was carrying two mobile phones, and PW1 had $7,021.50 with him, Tse $1,171, and the applicant $823.

5.  The retail price of the “K Chai” seized at the scene was $211,120.  The applicant had no previous criminal record.

6.  The applicant, PW1 and Tse were charged with “trafficking in a dangerous drug”.  PW1 pleaded guilty and became a prosecution witness to testify against the applicant.  He said that he had got acquainted with the applicant and Tse one to two months before the present case.  They seldom communicated with each other and usually met by chance when strolling in Kwun Tong.  He said that before this incident, he had never participated in any drug-related activity or dealt with drugs.  He was solicited by the applicant and Tse to participate in the trafficking of the dangerous drug in the present case. One to two weeks before the case, the three of them had once talked, and he was asked if he was in need of money.  He said that he had voluntarily let them use the unit for packaging “K Chai” with a reward of $1,000 for each 1 kg packaged.  He could not recall who had told him to buy cane sugar or electronic scales, dessicant beads, resealable plastic bags and thermosealer, but he did remember that he was repaid some money which was about $300 to $400.  Before the case happened, the applicant and Tse had been to that unit once.

7.  Shortly after 6 am on the day in question, either Tse or the applicant phoned him and told him about going to his home.  Afterwards, he opened the door to let the two go in.  One of them was holding a reusable bag and put it on the table.  PW1 went back to the bed to sleep and from where he saw someone take out a manila envelope from the reusable bag, and later he was told to help in packaging drugs.  The three of them had spent about ten to twenty minutes on drug packaging and after that they went to sleep until around 3 pm when PW1’s mother called and said that she was coming home.  Hence he told the other two to pack things up and leave the unit.  The three of them were intercepted by the police outside the door of the unit.

Defence case

8.  The applicant elected to give evidence. He got acquainted with PW1 on 23 March 2012 and had known Tse for about four years.  He had never agreed with PW1 and Tse to traffic in dangerous drugs, nor had he taken part in packaging dangerous drugs or any drug-related activity.  He knew nothing about the dangerous drug involved on the day in question.  Before the incident, in the small hours, he went to play billiards. Afterwards, shortly after 7 am, he accompanied Tse to go to PW1’s home to play computer games.  Having played computer games for a while, he went into the room of PW1’s mother to sleep.  It was not until sometime in the afternoon that PW1 suddenly woke him up, saying his mother was coming back from the Mainland and asked Tse and him to leave quickly.  PW1 gave him some garbage bags, so he helped PW1 clear away the rubbish on the table and wiped the rubbish from the table into the garbage bag with his hands.  Afterwards, he was arrested when leaving the unit with these garbage bags in his hand.  He said he did not know at all that there was “K Chai” inside the unit, and that he had never participated in packaging “K Chai”.  He guessed that his hands got contaminated with the traces of “K Chai” when he wiped the table surface.

Application for disclosure of prosecution information

9.  Before dealing with the application for leave to appeal, we first heard in chambers the application made by the applicant for disclosing whether PW1 was an informer providing information on dangerous drugs to the law enforcement authority.  At the conclusion of the hearing, we dismissed this application.

1) Circumstances at the trial

10.  Before the trial, Mr Clement Lau of counsel, representing the applicant, had requested the prosecution to disclose if PW1 had provided information on dangerous drugs to the police.  At that time, the inspector in charge of the case said that PW1 was not an informer of the team which handled the present case or an informer of any law enforcement authority.  On the basis of such information, Mr Lau did not ask PW1 if he had provided any information to the police when cross-examining him at the trial.  Before this appeal hearing, the lawyers for the applicant wrote to the respondent, requesting the police to reconfirm the information which had been previously disclosed. However, the respondent in reply only confirmed the inspector had said that PW1 was not an informer of the team, but denied the inspector had said that PW1 was not an informer of any law enforcement authority.  The applicant therefore made this application.

2) Applicant’s grounds

11.  Mr Lau submitted that it was a primary principle in criminal trials that the prosecution must disclose information relevant to the case to the defence.  The prosecution’s refusal to disclose material information relevant to the case would cause material impropriety to the trial and render it unfair.  PW1 was the only key witness in the present case, and the prosecution relied on PW1 to prove the applicant’s knowledge of and participation in packaging the dangerous drug in question.  Therefore, on this principle, the information related to PW1 was obviously relevant to whether the applicant was innocent.  What was more important, PW1 testified in court that he had had no experience in drug trafficking, that he had been solicited and hired by the applicant to take part in trafficking in the drug in the present case, that they had before the case already reached an agreement of arranging PW1 to purchase trafficking paraphernalia for packaging drugs, that the agreement was to be carried out on the day in question, and that the applicant instructed him how to package the drug in question.  The prosecution relied upon the testimony to directly show that the applicant must have had the knowledge of and participated in the trafficking of the dangerous drug in question.  This is the key issue in the present case.  The applicant denied having solicited PW1 and claimed that he did not know about the trafficking of the dangerous drug in question or take part in it.

12.  Basing on the above circumstances, if PW1 had previously provided dangerous drug-related information to any law enforcer or had been an informer in a dangerous drug case, it would be directly contradictory with what he said in court: “hav[ing] no experience in drug trafficking, and he was solicited, hired and instructed by the applicant to take part in trafficking in the dangerous drug”.  Obviously, if PW1 already had the experience of trafficking in dangerous drugs before the present case, it must be an important factor for the jury in the consideration of the role and “knowledge” of each person in the case. Such being the case, the information of which the applicant applies for disclosure is clearly directly related to the applicant’s innocence.

13.  Although at this stage, the prosecution and the applicant dispute over the details of the answer that has been given by the prosecution, if it is proved that PW1 has actually provided drug-related information to law enforcers, then regardless of which side is to be relied on, the prosecution has simply failed to disclose such crucial information to the applicant, and it would therefore be an undisputable fact that the applicant has been deprived of the opportunity of cross-examining PW1 at the trial.  More importantly, the jury was deprived of the information in this regard in considering whether the applicant had the knowledge, which amounts to material impropriety and renders the trial unfair, and should be one of the grounds of appeal advanced by the applicant.  Mr Lau submitted that the present case came within the exceptional circumstances which depart from the doctrine of “informer privilege”.

3) “Informer privilege” — the exceptional circumstances and disclosure procedures

14.  The Court of Appeal in HKSAR v Agara Isaiah Bishop [2014] 2 HKLRD 648 confirmed the importance of “informer privilege” and the exception to such privilege.  The exception is that the disclosure of the information could demonstrate the innocence of the accused.  Yuen JA adopted the principle applied by the Canadian Supreme Court in expounding the privilege in R v Leipert [1997] 1 SCR 281:

“36. The Court held that ‘informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement.  It is premised on the duty of all citizens to aid in enforcing the law.  The discharge of this duty carries with it the risk of retribution from those involved in crime.  The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same’ (at 289).  It acknowledged that the rule against disclosure of information which might identify an informer ‘is of fundamental importance to the workings of a criminal justice system’ and ‘the role of informers in drug-related cases is particularly important and dangerous’ (at 289). 

37. ‘Informer privilege is subject only to one exception, known as the “innocence at stake” exception’ (at 295).  To raise this exception, there ‘must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused’ (at 295).  One such basis is where the informer ‘is a material witness to the crime or acted as an agent provocateur ... Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved’ (at 296).  (Emphasis added).”

15.  The Court of Appeal has laid down the following principles on allowing an exception to informer privilege:

(1) unless the relevant information is necessary to demonstrate the innocence of the accused, no disclosure shall be allowed;

(2) the onus is on the applicant to show that the information is necessary;

(3) there must be evidence that provides a basis for requiring disclosure;

(4) speculation that the information may assist the applicant must be resisted; and mere speculation does not constitute a basis for an invasion of the informer privilege;

(5) the court should be alert to the danger of a proliferation of unmeritorious applications；

(6) the court should accord the special role of informers particular weight.

4)  Steps for applying for disclosure

16.  Regarding the procedures of applying for disclosure, the Court of Appeal also adopted the guidelines laid down at page 300 in R v Leipert:

“First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings. If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused.”

5)  Cases in which the informer is the key witness

17..  The informer being a key witness relevant to the case would be supportive to the application for disclosure, see Leipert and R v Scott [1990] 3 SCR 979.  The Canadian case of R v Davies (1982) 1 CCC (3d) 299 and United States case of Roviaro v United States 353 US 53 (1957) 623 are two precedents showing how an informer is a key witness in the case.  In the case of Davies, the accused got acquainted with a police informer B.  B requested the accused to provide a drug supplier to the police officer who was disguised as a drug buyer, and B agreed to pay reward to the accused.  Subsequently, the accused provided information to B.  The accused arranged for the drug supplier and the disguised buyer to meet for drug purchase but was arrested by the police.  The informer B did not testify.  It was the accused’s defence that that his duty was only to introduce the drug supplier and he had not taken part in the purchase and sale of dangerous drugs.  The court held that the police were required to disclose B’s information for the accused to call him because B was the only support of the accused’s claim, namely he was only responsible for introducing the supplier and any transaction was negotiated by the supplier and the buyer themselves.  B was an important witness to support whether the accused was guilty or innocent.  In the case of Roviaro, the accused got seated on board the informer’s vehicle, instructed the informer to drive to a place, and then got off to pick up a packet of dangerous drug on the road, put it on the informer’s vehicle and then left.  The informer did not give evidence.  The court held that the informer was a key witness and the police were required to disclose his information.

6)  Circumstances in the present case

18.  In the present case, PW1 was a witness called by the prosecution and testified in court.  According to the facts of the case, it was upon receiving intelligence that the police prepared for this operation in which PW1 was the target.  PW1 had not arranged the applicant and Tse to go to his place, and the applicant did not say that either.  Such facts (namely PW1 himself being arrested and prosecuted, pleading guilty and testifying against a co-offender in court) are plainly different from the general situation in which the informer may set up to trap the accused in advance.  We do not see the relevance between whether PW1 was an informer of the law enforcement authority and the applicant’s defence, not to mention any essential relevance.

19.  The applicant contended that if PW1 had previously provided intelligence on dangerous drugs, then he must have the experience in drug trafficking, and this would contradict his testimony in court, namely, that he had not taken part in any dangerous drug activity or deal with drugs before the present case.  PW1 said, “Previously, knew there were such things, but have not touched, no participation.”  He alleged that the applicant and Tse had solicited him to take part in drug trafficking in the present case.  In our view, taking it to the highest, the applicant only used this point to attack PW1’s integrity, showing the inconsistencies and contradictions in his evidence, which however has no direct relation with the key issue of the case — it is not the sort of information that proves the innocence of the accused.   As the Canadian Supreme Court said in R v McClure [2001] 1 SCR 445, if the accused only challenged the credibility or raised collateral matters, it would be difficult to meet the standards required of stage one (see para 55).  It was reiterated that in most cases, unless the privileged information went directly to one of the elements of the offence, it would not be sufficient to meet this requirement.  If the evidence provided simply advanced ancillary attacks on the prosecution case (eg by impugning the credibility of a prosecution witness, or by providing evidence suggesting that some of the prosecution evidence was obtained unconstitutionally) it would very seldom be sufficient to meet this requirement (para 58).

“55. However, when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standards required of stage one.”

“58. In most cases, this means that, unless the [privileged information] goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. Simply providing evidence that advances ancillary attacks on the Crown’s case (e.g. by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement.”

20.  Furthermore, we agree with Mr Tam DDPP that the applicant had at trial adduced other evidence to suggest the existence of contradictions in PW1’s evidence, and that it was not necessary for the applicant to rely on any additional information to perfect his defence.  With reference to the above precedents, it can be seen that the ground raised by the applicant was not a suitable one to support the application for disclosure.

21.  Since the applicant had failed to prove that whether PW1 had previously provided intelligence of dangerous drugs was sufficient to prove his innocence, his application was dismissed.

Application for leave to appeal

22.  Mr Lau complained that P Li J had not been impartial and had indicated his personal views and stance repeatedly in the course of dealing with the case.  P Li J made mistakes in his summing up, which caused undue influence on the jury.  In summary, P Li J has failed to give proper directions to the jury and thus deprived the applicant of a fair trial.  This ground can be summarised as follows:

I.  P Li J has misdirected the jury in the consideration of the contradictions in PW1’s evidence

23.  At trial, the defence pointed out that there were many inconsistencies and contradictions in PW1’s testimony in court, his written statement and the video recorded interview.

1.1) Firstly, regarding when he had got acquainted with the applicant, PW1 gave different versions, and the details are as follows:

i) In court, PW1 said that he had got acquainted with the applicant one to two months before the case;

ii) In the record of interview on 4 March 2013 which was made without prejudice to his own interests (“non-prejudicial statement”), PW1 indicated that he had got acquainted with the applicant in early March 2012 (the case happened on 23 March 2012);

iii) However, in the video recorded interview on 23 March 2012 (“video recorded interview”), he said that it took place almost one week or one to two weeks before the case and that he could not recall the exact time;

1.2) The defence criticised PW1’s evidence for being inconsistent, aiming at lengthening the time that he knew the applicant in court so as to make his evidence appear to be more reasonable.

2.1) Secondly, regarding how many times that the applicant and PW1 had taken part in packaging dangerous drugs before the day in question, PW1 gave different versions, and the details are as follows:

i) In court, PW1 indicated that the day in question was the first time he had ever taken part in packaging drugs;

ii) In his non-prejudicial statement, PW1 indicated that he had packaged drugs at his residence before the day in question but could not remember the exact date or the number of times. He also said that he had not received any reward;

iii) In the video recorded interview, PW1 said that he had packaged dangerous drugs for the applicant for about 4 or 5 times and that the applicant had delayed in paying the reward owed to him.

2.2) The defence criticised PW1’s evidence for being inconsistent, aiming at shirking his responsibilities.

3) PW1 gave different versions as to the reason for which the three of them left PW1’s residence, and the details are as follows:

i) During examination-in-chief in court, PW1 indicated that in the afternoon on the day in question, his mother called back home and so he requested the applicant and Tse to leave;

ii) Under cross-examination, PW1 agreed that his mother’s return was the only reason that he urged the applicant and Tse to leave;

iii) In his non-prejudicial statement and video recorded interview, PW1, however, indicated that he requested the applicant and Tse to leave because he had arranged with friend(s) to go out in that afternoon.

iv) PW1 also agreed that he had given different versions under different circumstances.

24.  Mr Lau contended that P Li J, in directing the jury to consider the contradictions in PW1’s evidence and his explanations, had thrice requested that the jury should also consider the parts in the applicant’s evidence which were consistent with PW1’s evidence.  The details are as follows:

1)  Regarding the inconsistency in the timing of getting acquainted with the applicant, P Li J said, in considering the inconsistencies in PW1’s evidence and his explanations, the applicant’s evidence should not be neglected.  He said the applicant in his testimony had indicated that he had got acquainted with PW1 one week before the case.  The Judge said:

“… which seems to be consistent with what PW1 said, namely the acquaintance was made one to two weeks before, or even not until early March. So when you consider this contradiction, all these pieces of evidence should be considered.”

2)  In respect of the inconsistency in how many times the applicant and PW1 had taken part in drug packaging before the day in question, P Li J said:

“All right, but the accused’s evidence should also be considered. The accused has said the following in the witness box. He said that before the case he had gone [to PW1’s residence] once. He said that on that occasion, he left after playing video games. He said this case was the second time that he went [to PW1’s residence]. Could this support what PW1 has said, ie it was the first time that the three of them packaged drugs there [at PW1’s residence]? It should be noted that it is necessary to look at the whole thing, including the accused’s evidence, before making a decision.”

3)  In respect of the discrepancies in the reason for which PW1 requested the applicant and Tse to leave on the day in question, P Li J said:

“Also, the accused’s evidence should not be overlooked. What did the accused say in his testimony? He said that PW1 woke him up and in fact told him, ‘[My] mother will be back soon, leave at once.’ In such case, this seems to be consistent with what PW1 has said. All right, while you are considering if PW1 was lying or justifying himself, you have to consider all his evidence with contradictions together with the accused’s evidence before making any decision”.

25.1.  Mr Lau contended that by doing so, P Li J had contravened the primary principle that the jury should consider the evidence of the prosecution and that of the defence separately, that is to say, the jury should consider the prosecution evidence independently to determine if PW1 was credible or reliable, instead of considering the consistencies and inconsistencies between the evidence of PW1 and that of the applicant at the same time so as to determine the PW1’s credibility.  Even if the evidence of PW1 and the applicant are partly consistent, this should not be considered as the facts to resolve the contradictions existing among PW1’s testimony in court, his non-prejudicial statement and the video recorded interview.

25.2.  By doing so, P Li J not only shattered the focus of the defence’s criticism on PW1, but his comment in fact also went beyond the proper limit.  In the circumstances of the present case, P Li J should have only pointed out to the jury that if they accepted defence’s criticisms on PW1’s evidence for being full of discrepancies and contradictions, they might find PW1’s evidence unreliable, which would affect the credibility and reliability of the prosecution evidence for proving the “knowledge” of the applicant.

25.3.  By doing so, P Li J also gave the impression that he, as the trial judge, expressing his personal opinion and inclination, was directing the jury to accept his views on the facts, which was obviously unfavourable to the applicant and depriving him of having a fair trial.

26.  With respect, we do not agree with Mr Lau.  P Li J had set out in details to the jury the differences among PW1’s testimony in court, the record of interview and the statement given to the police previously.  He directed the jury that they were required to consider the facts of the case in its entirety in considering such conflicts. We find such direction correct. The jury may not conclude, only on the basis of PW1’s testimony in court and the statement given previously, that he had given different versions and thus find him an incredible witness.  P Li J had rightly explained to the jury that they might also consider the evidence given by the applicant himself to determine if PW1 was a credible witness.  In fact, the most essential dispute on this issue is, when P Li J told the jury that they might consider the evidence of the applicant, whether the judge intended to make PW1 less incredible so as to shatter the criticism that the defence had made on him.  We do not find that P Li J made such a mistake in his directions.  PW1 was a tainted witness. After summing up the evidence of both sides to the jury, P Li J specifically reminded the jury that they should be particularly careful in considering PW1’s evidence because he had already pleaded guilty to trafficking in a dangerous drug.  PW1 had also agreed that he testified against the applicant because he could by doing so get additional reduction in sentence, which thus was a motive to exaggerate or shirk the criminality to the applicant or others.  Furthermore, PW1 had multiple conviction records, including a number of records of “theft”.  In our view, P Li J had sufficiently reminded the jury of the danger of relying on PW1’s testimony.  We do not find P Li J has biased towards the prosecution.

II.  Wrongly applied the applicant’s testimony in court

27.  Mr Lau suggested that P Li J had applied the applicant’s testimony to resolve the discrepancies in PW1’s evidence in respect of whether the day in question was the first time that PW1 had participated in packaging dangerous drugs.  However, he failed to apply the applicant’s evidence in full correctly.  It was the applicant’s evidence that in fact before and on the day in question, the applicant had visited PW1’s residence twice in total but the applicant had never participated in drug packaging.  Therefore, this part of the applicant’s evidence had absolutely no value for reference or comparison regarding whether PW1 had participated in packaging drugs for the first time on the day in question, and what was more important, it could not support anything said by PW1.  By inviting the jury to consider whether this part of the applicant’s evidence could support PW1’s evidence, P Li J not only took things out of context but also made mistakes in the logical sense.

28.  We agree that the applicant’s evidence on the visit to PW1’s residence may simply be consistent with PW1’s testimony in court but it does not help in respect of the discrepancies among PW1’s testimony in court, the record of interview and the statement given to the police previously.  However, P Li J did not tell the jury that the applicant’s evidence could wholly resolve the discrepancies in PW1’s evidence.  P Li J only told the jury that they should consider the applicant’s evidence, but they had to consider by themselves if the applicant’s evidence support PW1’s testimony in the sense that the day in question was the first time that they packaged dangerous drugs.

III.     Drastic difference in dealing with the evidence of the applicant and PW1

29.  Mr Lau said that P Li J, in directing the jury to consider the applicant’s evidence, had obviously taken a completely different approach.  P Li J merely repeated the applicant’s evidence without suggesting to the jury that PW1’s evidence might support the applicant’s evidence in certain aspects, which was quite different from the way in which PW1’s evidence was dealt with.  Such contradictory approaches were unfair to the applicant, and hence P Li J’s summing up as a whole appeared to be not impartial and give the impression of unfairness.

30.  We do not agree that P Li J in dealing with the applicant’s evidence gave an impression of unfairness.  P Li J recited not only the applicant’s testimony, but also the evidence in support of the applicant’s defence, and in respect of the evidence unfavourable to the applicant, he asked the jury not to jump to a conclusion prematurely and to give the benefit of doubt to the applicant.  The following is examples set out by Mr Tam:

1)  Regarding the applicant’s testimony that he had taken a Youth Employment and Training Programme (“YETP”) course, P Li J asked the jury to consider exhibit D2, ie the YETP certificate.

2)  The applicant had two phones on his person and he said Tse also had two phones.  P Li J said that merely carrying two phones did not mean anything and not necessarily relate to drug trafficking, and advised not to draw any immature conclusion.

3)  Upon asking the jury to consider PW1’s criminal records, P Li J immediately told them that the applicant was of good character and more credible and had a lower propensity to contravene the law.

4)  The applicant had traces of “K Chai” on his hands but this cannot prove that there was “K Chai” on each finger.  The applicant had no “K Chai” on his fingernail. If it is not sure how the applicant’s hand was contaminated with “K Chai”, for example by packaging dangerous drugs or by wiping rubbish on the table, the benefit of the doubt should be given to him.

5)  PW1 testified that the dangerous drug was taken out from a manila envelope, but no such envelope was retrieved.

6)  No fingerprint of the applicant was found on the package of the dangerous drug.

7)  When the applicant was arrested, Tse was holding a plastic box with dangerous drug inside.  The video recording of the lift did not show that Tse or the applicant was holding the plastic box when going to PW1’s flat.

8)  If the applicant’s testimony is true or may be true, he should be found not guilty.  Even if the applicant’s testimony is not accepted, provided it is not sure whether PW1 has told the truth, he should be found not guilty.

IV. Failed to remind the jury that allegations with no evidential basis should not be considered

31.  The prosecution in cross-examining the applicant did not challenge his enrolment inthe YEPT course, however, in their closing submission, the prosecution alleged that the applicant’s enrolment in the YEPT course before the case took place was not true and challenged the reasonableness and credibility of the applicant's testimony.  This has contravened the principle in Browne v Dunn (1894) 6 R 67, and P Li J in his summing-up had failed to properly remind the jury that they should not take into account the prosecution’s allegation above because this part of the allegation had not been put to the applicant in his cross-examination, thereby depriving the applicant the right to explain, and it was just a repetition of the relevant evidence of the applicant in examination-in-chief and cross-examination.

32.  We do not agree with this view.  It can be seen from the transcript of the trial that counsel for the prosecution did challenge the applicant’s enrolment in the course concerned.  Thesharp questions in his cross-examination clearly showed that he did not accept what the applicant had said.  See: Lo Chun Nam v HKSAR [2001] 1 HKLRD 180.  In our view, this ground has no merit.

V.  Empanelment of jury

33.  This ground of appeal has been abandoned

Conclusion

34.  We do not agree that the applicant was deprived of having a fair trial or that his conviction was unsafe or unsatisfactory, and therefore the application is dismissed accordingly.