HKSAR v. LAI KAM FUNG (賴錦鋒)

FAMC No. 8 of 2021

[2021] HKCFA 13

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2021 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 81 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant and indicated that we would hand down our reasons for doing so in due course, which we now do.

2.  The applicant was convicted, before a judge and jury, on one count of trafficking in a dangerous drug, for which he was sentenced to a term of imprisonment of 7 years and 4 months.[1] The charge was that, on 4 April 2018, the applicant unlawfully trafficked in 47.9 grammes of a solid containing 42.2 grammes of cocaine, near a lamp post on Tsuen Nam Road in Tai Wai, Sha Tin.  His appeal against conviction was dismissed by the Court of Appeal.[2]  By this application, the applicant sought leave to appeal to the Court of Final Appeal from the dismissal of his appeal against conviction.

3.  It was the prosecution case that, at 10.54pm on the day in question, two plainclothes police officers (who gave evidence as PW1 and PW2) observed the applicant behaving suspiciously at the location of the offence which was near the Tai Wai MTR station.  They searched him and found two re-sealable plastic bags containing the subject of the charge (now known to be cocaine) inside a white paper bag he had been carrying.  The cocaine had a retail value of HK$45,026 and, according to the undisputed expert evidence, would be sufficient to last 42 days for an occasional drug user and 21 days for an habitual user.

4.  The trial judge directed the jury on the charge of trafficking but did not direct them on the alternative verdict of simple possession.  It is his failure to do so that formed the basis of the application for leave to appeal to the Court of Final Appeal.  Relying on the Court’s judgment in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 (“Ho Hoi Shing”), Mr Bernard Yuen, counsel for the applicant on this application (but not his trial counsel), submitted that the judge’s failure to direct on the alternative verdict of simple possession was a departure from an accepted norm sufficiently serious to constitute substantial and grave injustice to the applicant.

5.  We did not accept Mr Yuen’s submission in this regard for the following reasons.

6.  The applicant denied the charge of trafficking.  He neither testified nor called any witnesses and his case, put to the prosecution witnesses in cross-examination, was simply that the police had framed him for the charge of drug trafficking. The drugs inside the paper bag, it was suggested, had in fact been found by the police on a bicycle near where the applicant had been standing and had nothing to do with him.

7.  At a pre-trial hearing, the judge inquired of the applicant’s counsel[3] whether the applicant would allege that the cocaine was for self-consumption and whether he was a drug addict.  The applicant’s counsel replied that his instructions were that the applicant “would not claim self-consumption, or something like that”.[4]

8.  Before counsel made their closing speeches to the jury, the judge discussed his summing-up with counsel and asked the applicant’s counsel to confirm whether he was seeking a direction on an alternative verdict from the court.  To this, the applicant’s counsel answered, “No, but mainly a direction on drawing inferences from my Lord, on that, obviously.”[5]

9.  In the course of his closing speech, when addressing the jury on the question of whether they should infer that the applicant’s purpose of possession of the drugs, assuming they were sure he possessed them, was for trafficking, the applicant’s counsel said, “Then what was the Defendant carrying the drug for?  There are at least two possibilities, firstly, that is for his own use, his own consumption, right?  What is the second?   It is the purpose that the Prosecution wants to prove.”[6]

10.  This caused the judge to raise with the applicant’s counsel, in the absence of the jury before he began his summing-up, whether there was a basis for saying that the drugs were for the applicant’s self-consumption.  In response, the applicant’s counsel did not suggest there was but submitted that it was for the prosecution to prove that the applicant possessed the drugs for trafficking and that it was arguable whether the applicant appeared not to be going home when he was arrested by the police.[7]

11.  Following this exchange, in his summing-up, when directing them on the elements of the offence of trafficking, the judge instructed the jury:

“You all may agree that, in common sense, cocaine is not worth appreciating or collecting. So if you can be sure that the Defendant, at the time and location as charged, i.e., near the lamp post, did possess the dangerous drug (P1), did he possess this for the purpose of trafficking? Or for any other purpose? It is up to you to decide what the facts are.”

12.  When directing the jury on how they should approach the question of whether an inference of trafficking could be drawn, the judge told them:

“If you are sure that the Defendant did possess the drug in question at the time of the offence and he knew that it was a drug, are you able to make a further, and the only reasonable inference, that the Defendant possessed the drug for the purpose of trafficking? In this regard, you should think about the following: Firstly, the drug in question is worthy to some extent. Secondly, the expert, Dr Cheung Wai Him, testified that the drug in question was enough to last 42 days for a recreational drug user and 21 days for a habitual cocaine abuser. … Thirdly, according to the testimonies of PW1 and PW2, if what they say are true, and if the Defendant was carrying the drug at the scene of the case at that time and the drug was worthy, for his personal use and not well packed, with white powder or white granules seen from outside, would he hurry home, or hurry to hide the drug, or would he wander around? You will also remember the submissions made by [his counsel] that if the Defendant was carrying and trafficking in the drug, he wouldn’t behave suspiciously or look around because it would catch the attention of police officers. Fourth, no paraphernalia related to drug trafficking was found in the Defendant’s home, although as to this point, you may consider that it is not necessary for a drug dealer to have items related to drugs in the home.”[8]

13.  In light of the above, we did not accept the premise of Mr Yuen’s submission that there had been a departure from the relevant accepted norm.  The principle established by this Court’s judgment in Ho Hoi Shing is that, if there is evidence upon which a reasonable jury might return an alternative verdict, even if it was not raised by the parties or was inconsistent with the defence run by the accused, a judge is under a duty to place that alternative before the jury.  The rationale for the principle is that a defendant should not be over-convicted or under-convicted, or acquitted when he has committed a lesser offence of the type charged.  The principle reflects the important public interest in ensuring a fair trial, the primary responsibility for which rests on the trial judge.[9]

14.  The principle was recently revisited by this Court in HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368 (“Chau Yui Ming”).  Although that case concerned the question of whether the judge should have required a single count of trafficking in dangerous drugs to be amended to enable the jury to decide on different charges instead of only one single charge, Ma CJ (with whose judgment the other members of the Court agreed) noted that the issue raised “broader questions as to the approach which should be adopted in relation to alternative verdicts”.[10]

15.  In Chau Yui Ming, the issue for the Court was the correctness of the appellant’s contention “that all possible alternatives which are open on the evidence or all possible scenarios submitted by the defence in the trial should be placed before the jury”.[11] There, it was suggested that, although the primary defence strategy was one of denial of possession of all three lots of drugs the subject of the trafficking charge, there was a secondary defence strategy which involved the appellant being in possession of only one or two of the lots of drugs for trafficking and that, for one lot of the drugs, his possession was not for trafficking purposes.

16.  Having set out the principle concerned, Ma CJ sounded a note of caution on the obligation of a trial judge to direct on alternative verdicts:

“In my view, some care needs to be exercised when defining the obligation to direct alternative verdicts. It is unhelpful, not to say confusing, for a judge to have to direct a jury to alternative options based on vague expressions such as ‘possible alternatives’, ‘possible scenarios’, ‘alternative defence scenarios’ or ‘secondary defence scenarios’. This was the type of expression used by McWalters JA in the passages set out above. Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury. Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing‑up, these allegations bearing little or no resemblance to what was the reality at trial. In the passage from the judgment of McWalters JA, he refers to the appellant’s ‘primary defence’ and ‘secondary defence’. This was, with respect, confusing. There was no alternative defence run by the appellant: the only defence he ran was that he had nothing to do with drugs and that he was framed. The other scenarios referred to by defence counsel in his final submissions and by McWalters JA were not alternative defences at all but were mere speculations.”[12]

17.  The critical question in cases involving the possible need to direct a jury on alternative verdicts is whether the threshold requirement, that “the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it”, is met.[13] In Ho Hoi Shing, it was held that the threshold is “a low one …  consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt.”[14]

18.  That passage of Ho Hoi Shing must, however, now be understood and applied in the light of this Court’s more recent judgment in Chau Yui Ming, in which, at [32], Ma CJ said this:

“The answer to the question in what circumstances it would be incumbent on a judge to direct a jury as to the alternative options open to it is, I believe, to ask further whether there is an obvious alternative verdict which is supported by the evidence of that alternative. The requirement of an obvious alternative supported by evidence was discussed by Lord Bingham in the following passage in Coutts:

‘23. The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.’ (Emphasis added.)

Lord Rodger of Earlsferry referred to a ‘viable’ alternative verdict.”[15]

19.  We would endorse the recent observations of McWalters JA in HKSAR v Chow Ching Yin[16] as a correct reflection of the law following this Court’s judgment in Chau Yui Ming.  In that case, at [47], McWalters JA said:

“The legal principles relevant to when a trial judge should direct a jury on an alternative verdict not relied on by the defence were discussed by the Court of Final Appeal in HKSAR v Chau Yui Ming. The judgment in that case is the final word on this question and the court’s earlier decision in Ho Hoi Shing v HKSAR should no longer be regarded as representing a complete statement of the law of Hong Kong on this question. Although Chau Yui Ming did not dramatically alter the law as set out in Ho Hoi Shing, the changes it did make were significant and the approach it lay down must now be the approach of trial judges and appellate courts when being called upon to answer the issue we have described at the beginning of this paragraph …”.

20.  As the Court held in Chau Yui Ming, “[t]he way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict.  If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive.”[17]

21.  Applying the principle so explained in Chau Yui Ming, and in agreement with the Court of Appeal,[18] we were satisfied that the present case was not one in which the judge was obliged to direct the jury on the alternative of simple possession.  Mr Yuen relied heavily on the quantity of drugs (sufficient to support an habitual user for 21 days and an occasional user for 42 days) as being such as to make a verdict of simple possession obvious.  As a matter of common sense, in the circumstances of this trial, that quantity of drugs (and their street value) did not, without more, make simple possession an obvious inference.  The defence case here was an outright denial of possession, with no suggestion that the possession (if, contrary to that defence, proved) was for self-consumption or on the basis of an addiction to cocaine.  Given the chronology of the inquiries made by the judge of the applicant’s trial counsel set out above, the alternative verdict now urged on us in support of the application for leave to appeal was neither an “obvious” nor “viable” alternative in the senses explained in Chau Yui Ming.

22.  In his written submissions, Mr Yuen cited various examples of trafficking cases in which the Ho Hoi Shing principle had been applied and convictions for trafficking set aside in the absence of a direction on the alternative verdict of simple possession.  Those cases are, in our view, distinguishable on their facts and we were not persuaded they provided the support sought to be derived from them by the applicant.

23.  For these reasons, therefore, we were satisfied it was not shown “that there has been to the [applicant’s] disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice”,[19] that being the relevant threshold for the grant of leave to appeal.  The application was accordingly dismissed.