HKSAR v. FUNG SIU LUNG JOE

CACC 73/2021

[2022] HKCA 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 73 OF 2021

(ON APPEAL FROM HCCC NO 370 OF 2019)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was indicted for two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, involving a total of 268.47 grammes of ketamine.  On 18 March 2021, the applicant was unanimously convicted after trial before Hon D’Almada Remedios J (“the judge”) and a jury, and sentenced to 8 years and 6 months’ imprisonment.

2.  The applicant seeks leave to appeal against his convictions by a Form XI filed on 31 March 2021.  He is represented by the defence counsel at trial, Mr Philip Wong, and Mr Wilson Chan in this hearing for leave.  Mr Wong and Mr Chan were assigned by Bar Free Legal Service Scheme.

An overview of the case

3.  The two counts involved the seizure of ketamine from a storage facility known as “Apple Storage” in Mongkok on 10 April 2018.  The unit was rented and solely used by the applicant (“the Locker”).  It was not disputed that the applicant and his girlfriend went to the Locker the night before, and in the small hours on the day in question, the applicant was intercepted by police officers when he was alone at the Locker.  Packets of suspected dangerous drugs which were the subject of the counts were seized from the Locker (exhibit P1 for count 1, exhibits P2 and P3 for count 2).  It was the prosecution evidence that the applicant made an admission under caution.

4.  The defence alleged that the police witnesses were dishonest and unreliable and he was not arrested as alleged at the storage facility.  No admission was ever made at the scene, yet he was subsequently induced into making admissions. The packets seized from the Lockers were tampered with.

Prosecution evidence

5.  The police officers (“PW1” and “PW2”) intercepted the applicant at 0024 hours on 10 April 2018.  PW1 testified that at the time the applicant was holding a transparent bag containing white powder^[1].  CCTV footage showed that the applicant remained in the Locker, at least until the footage ended at 0100 hours.  PW1 arrested the applicant at around 0100-0105 hours, though the time of arrest as recorded in PW1’s notebook was “0050 hours”^[2].  PW1 explained 0050 hours was the time he started writing as he believed that he was going to perform arrest very shortly.  However, it took some time for him to confirm with exhibit officer PW2 the number of packets of suspected dangerous drugs seized.  The applicant verbally admitted under caution that the drug belonged to him and he just treated it as a job, PW1 wrote down the admission right away and had it signed by the applicant^[3].  Apart from the suspected dangerous drugs, there were also an electronic scale, a cutter and some unused re-sealable plastic bags at the scene^[4].

6.  The applicant was taken to Mongkok police station at about 0205 hours.  The duty officer (“PW3”) weighed the packets of suspected drugs in the applicant’s presence.  The dangerous drugs were kept in PW2’s custody^[5], until 0514 hours when they were returned to PW3 for sealing^[6].  (The defence agreed that the chain of evidence in respect of the subsequent handling of the exhibits was not challenged.)

7.  The applicant admitted in a video recorded interview (“VRI”) conducted between 2317-2359 hours that he stored the drugs in the Locker intending to sell them to others.  He said that he bought exhibit P1 just before the arrest and was going to mix them with sugar and Panadol (“P4”) and repack the mixture into smaller packets using the cutter, electronic scale and re-sealable bags.  Exhibits P2 and P3 were already packed by him and his girlfriend did not have any knowledge of the drugs.

8.  The prosecution sought to rely on the CCTV footage showing the applicant’s movement in the vicinity of the Locker, and his admissions to prove that the applicant traffic in the packets of suspected dangerous drugs.

Admissibility issue

9.  The admissibility of the suspected dangerous drugs and his admissions were disputed.  Basing on the difference in weight of the drugs recorded by PW3 and the government chemist (“PW4”), an allegation of tampering by PW2 after they were weighed by PW3 and before they were being sealed into tamper proof envelopes was mounted (the subsequent weight of exhibit P1 turned out to be approximately 20 grammes heavier).  It was also alleged that the applicant did not make any verbal admissions but was induced by police officers into signing the post-record and making admissions in VRI.

10.  The following table shows the difference in weights recorded by PW3 and PW4.  The weights recorded by PW4 was relied on by the prosecution to reflect the accurate weights of the drugs.

	Exhibit	Recorded by PW3	Result of analysis by the Government Chemist (“PW4”)	Weight Difference
Count 1	P1	228.6 gms	250 gms of a solid containing 204 gms of ketamine	21.4 gms
Count 2	P2	75.6 gms	73.2 gms of a solid containing 59.6 gms of ketamine	2.4 gms
	P3	19.9 gms	18.0 gms of a solid containing 4.87 gms of ketamine	1.9 gms
	P4	47.7 gms	43.0 gms of a powder containing paracetamol	4.7 gms

11.  The applicant did not testify, either in the voir dire or before the jury.  The defence case was put to the prosecution witnesses during cross examination.  It was alleged that he was taken to another aisle inside “Apple Storage” upon interception and the police induced the applicant to make admissions, in return for no action to be taken by the police against his girlfriend. These allegations were denied by the prosecution witnesses.

12.  The defence relied on the inconsistencies and omissions in the prosecution evidence, include the incorrect timing (of arrest^[7]) and the incorrect weights of the packets seized, to show that the prosecution witnesses were incredible.

Weighing of exhibits

13.  Evidence was called to explain the difference in weight of the exhibits.  PW4 testified as to the regular calibration of the scale used in the Government Laboratory.  PW4 said that he would further check the scale against a standard weight^[8] to confirm its accuracy.  On the other hand, the evidence of PW3 was that the scale normally used in the report room was not working on the day in question and he had to revert to use a small electronic scale to weigh the exhibits.  Although the small scale was functioning, he did not check it against a standard weight.  He also explained that the bag containing exhibit P1 was too large to be totally or properly placed on the area of the scale, this might have affected the result.^[9]

Issues of appeal

14.  The issues on this appeal turns on the above admissibility issues which the defence sought to argue in voir dire proceedings and a no case submission which was rejected by the judge.

15.  The 1^st ground alleges material irregularities in the trial, namely, that the judge failed to give adequate reasons and wrongly held:

(a)  that the admissibility of the drugs was an issue to be left to the jury instead of holding a voir dire;

(b)  that all the admissions admissible in the voir dire; and

(c)  that there was a case to answer.

16.  The 2^nd ground complains that the judge’s summing-up failed to direct on the following matters:

(a)  that there was no obligation on the applicant to directly put forward any challenges to the evidence of prosecution witnesses and to adduce evidence in support;

(b)  that the alleged admissions could not prove the exhibits seized were dangerous drugs; and

(c)  that the prosecution adduced no evidence to explain the difference in the weights of the suspected dangerous drugs.

Ground 1(a)

17.  Mr Wong argues it is always upon the court to decide on the relevance of evidence which necessitates the holding of a voir dire to determine its admissibility.  The prejudicial value of leaving such as factual issues for the jury to decide outweighs its probative value.  Mr Wong relies on the case of HKSAR v Wong Kam Yi^[10] and submits that the judge should have given adequate reasons to justify her ruling against holding a voir dire.  He further contends that when ruling in the applicant’s admissions, the ruling failed to demonstrate that the judge had properly evaluated the evidence of witnesses: HKSAR v Poon Chun Kit^[11] .  Mr Wong complains that that reasons for decision to rule the applicant’s admission admissible and a case to answer were both not apparent from the ruling.^[12]

18.  In respect of Ground 2, Mr Wong relies on the case of HKSAR v Lai Wing Huen^[13] and submits that where the Prosecution makes a suggestion on the wrong premises, it is upon the judge to direct the jury to disregard that in strong terms.  He further refers to R v Yu Fung Hi^[14] and submits that the judge failed to direct the jury that the admission of the applicant that the drugs were ketamine was no proof that the drugs seized were indeed such.

Respondent’s submissions

19.  In reply, Mr Derek Lau, SPP, submitted that, a trial judge is under no duty to give reason for the decision to hold or not to hold a voir dire, for his ruling on a voir dire; nor is a trial judge obliged to state his reasons for ruling there be a case to answer.^[15]

20.  In respect of Ground 1(a), Mr Lau contends that the judge rightly pointed out that whether there had been any tampering of the exhibits was a factual issue for the jury which should not be dealt with by way of a voir dire.^[16]

21.  Likewise, Ground 1(b) complains of the assessment of the credibility of the prosecution witnesses in the light of the applicant’s mere assertion that he was induced by the police into making the admissions when there was no testimony from the defendant.  The judge’s ruling demonstrated that she had reminded herself of the prosecution’s burden and standard of proof so that she was satisfied as to the voluntary nature.^[17]

22.  For Ground 1(c), the respondent replies that the chain of evidence relating to the dangerous drugs and the credibility of the witnesses were both matters entirely for the jury to decide^[18] and a ruling of a case to answer was inevitable.

23.  It is submitted that the judge’s summing-up, as a whole, was fair and balanced.   Regarding Ground 2(a), Mr Lau submits that as the jury had been properly directed on the prosecution’s burden and standard of proof^[19]; it was impossible for the jury to be labouring under any misapprehension that the applicant bore any burden of disproving the prosecution’s allegation or establishing his own defence.

24.  In reply to Ground 2(b), it is submitted that the judge was not required to emphasise what the defence had already mentioned in his closing speech that the applicant’s admissions that the drugs were ketamine could not be used to prove the drugs seized were indeed such^[20].  The prosecution never sought to relying that part of the applicant’s admissions to prove the nature of the drugs.  The only dispute of whether the drugs analysed by the government chemist were the same drugs seized from the Locker had already been fully and properly addressed in the summing-up.

25.  Lastly, Mr Lau’s reply to Ground 2(c) contends that PW3’s evidence did provide an explanation for the inaccurate readings by the measuring device used in the police station which accounted for difference weight of the drugs recorded between him and PW4.  The judge reminded the jury of the defence argument and the evidence presented by the prosecution on this issue.

Discussion

26.  Ground 1 alleges that the trial judge failed to give adequate reasons for and wrongly:

(a)  declining to hold a voir dire in respect of the admissibility of the dangerous drugs;

(b)  admitting the confession into evidence; and

(c)  ruling a case to answer.

Ground 1(a)

27.  The defence relied on the difference in weight of the drugs recorded between PW3 and PW4 in advancing the argument that the prosecution failed to prove that the drugs had not been tampered with.  It was contended that the prosecution, in failing that to prove the chain, failed to prove that the drugs so tested by PW4 was relevant to the case.  This issue was canvassed between the judge and counsel for the applicant[21] and the judge pointed out that the admissibility issue usually concerns legal instead of factual issues.[22]

28.  In my view the judge was correct in making a distinction between factual and legal issues.  Examples where voir dire should be held to decide admissibility are given in Bruce & McCoy[23]:

“…whether a communication is privileged, the voluntariness of an admission attributed to the accused, the admissibility of evidence of similar facts and whether the utterance of a dying person is a dying declaration so as to become admissible as an exception to the hearsay rule. …”

29.  Voir dire held when objection is taken to the admissibility of evidence of identification is rare: R v Beveridge[24].  An analogy can be drawn with the admissibility of real exhibits such as tape recording where authenticity is in issue.  Archbold Hong Kong 2022, 4-147, quoting R v Robson & Harris[25]:

“… in considering the question of admissibility the court is required to do no more than satisfy itself that what the prosecution alleges to be original tapes are shown, prima facie, to be original by evidence which defines and describes the provenance and history of the recordings up to the moment of production in court. If that evidence appears to remain intact after cross-examination it is not incumbent on the judge to hear and weigh other evidence that might controvert the prima facie case. To embark on such an inquiry is to trespass on the ultimate function of the jury. Shaw J’s ruling was upheld by the Court of Appeal (unreported). Ordinarily the larger issue of authenticity is manifestly a matter for the jury’s consideration on admissible evidence. …”

Ground 1(b)

30.  Ruling of admissibility of the alleged admission was given after evidence was led and submissions were heard in a voir dire[26].  It is noted that the applicant did not give evidence on this special issue[27].  The core issue was the credibility of the two police officers called, PW1 and PW2.[28]  In her ruling, the judge said that it was for the prosecution to prove the voluntariness beyond a reasonable doubt[29]; she took account of the defence allegation[30].  She was of the view that the circumstances of this case does not warrant the giving of detail reasons.

31.  The leading authority on this matter is HKSAR v Okafor Peter Eric Nwabunwanne[31], an appeal which concerns the detail required of a ruling on admissibility of a statement against interest, amongst other issues.  The Court of Appeal said at paragraph 29:

“29. …if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons; for in such a case the tasks of the adviser and of the appellate tribunal are not obstructed. …

32.    …this judgment is not to be taken as opening the door to a requirement for the giving of reasons on every procedural issue.  If the reason is self-evident from the context and the exchanges, then no distinct time need be devoted to giving reasons. …”

32.  The Court of Appeal in Okafor cited a passage in Wallace and Fuller v R[32].  It is useful here to cite a part of that passage:

“23. …the trial judge was faced with an irreconcilable conflict of evidence between police officers and defendants, turning on credibility alone. No principles of law were in issue and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling leaves the answer in no doubt. …In a case hinging on confessions the tasks of the judge and of the jury, although technically distinct, are in reality very much the same. The decision of the jury is announced in a non-speaking verdict at the end of the trial. For the judge to expound in detail almost at the beginning of the trial his reasons for preferring one story to the other would wholly unbalance the proceedings. …”

33.  It is worth noting that in the present case, attack on the credibility of the police officers was done by way of allegations put to them in cross examination.  The applicant did not testify in the voir dire.  This was not even a case where there was conflict of evidence between the police officers and the applicant. It is clear that the judge based her ruling on a rational consideration of the evidence and was entitled to give the ruling she did.

Ground 1(c)

34.  A no case submission was made at the end of the prosecution case by Mr Wong[33].  He relied on both limbs of Galbraith. The first limb was made based on the allegation that the drugs were tampered with (see paragraphs 9-10 above) and the second limb on the inconsistencies in PW1’s own evidence and between PW1 and PW2’s evidence.  It was further submitted that their evidence was unreasonable and contrary to common sense to the extent of being flimsy.

35.  A ruling was given at Appeal Bundle page 254F-G:

“In respect of the drugs, that is a matter purely for the jury to consider. There is an explanation as to the discrepancy of weight. It is for the jury to consider whether to accept that explanation or not. If they do not accept it then, of course, then there will be certainly a matter which should go no further, and the defendant should be found not guilty. But there is an explanation for the weight. And as for the other matters as to the credibility of the officers, this clearly is and is only an issue to be dealt with by the jury and not by myself. So I find there is a case to answer…on both charges.”

36.  In my view, the judge was entirely correct and the reasons she gave were sound and sufficient.

37.  Ground 1 is not reasonably arguable and I refuse to grant leave.

Ground 2

38.  I shall deal with Ground 2 briefly.  This ground complains of a failure on the part of the judge to direct the jury in respect of certain matters.

39.  It is complained that the judge failed to direct the jury that the applicant was under no obligation to directly challenge the evidence of the prosecution witnesses, nor adduce evidence to support those challenges put; The judge said in clear terms to the jury:

“The burden of proving the guilt of the defendant lies upon the prosecution throughout the trial. It is for the prosecution to prove the defendant’s guilt. The defendant is innocent until he is proven guilty. …the defendant does not have to prove anything…”[34]

…

“If you find yourself suspicious that the defendant might be guilty, then you are not in a position to find him guilty. …”[35]

…

“The defendant elected not to give evidence or call any defence witnesses. The defendant does not have to give evidence or call any defence witnesses. He is entitled to sit there in the dock and require the prosecution to prove its case. You must not assume that the defendant is guilty because he has not given or called any evidence. The fact that he has not given or called any evidence, proves nothing one way or the other. It does nothing to establish his guilt.

On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution. Despite the defendant not giving evidence or not calling any witnesses, you still have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt.”[36]

40.  The judge has followed the specimen directions closely and I do not see that there is any cause for complaint.

41.  The contention that the judge did not tell the jury in that admission of the applicant of knowledge of the nature of the drugs could not on its own prove the drugs seized were dangerous drugs is misconceived.  Mr Wong relies on the case of Yu Fung Hi, in which one of the issue concerned the charge of “being a member of a triad society”, to which the 1^st appellant made a bald admission.  Liu JA (as he then was), in delivering the judgment of the court, said:

“A confession as to triad membership should simply be approached on the usual evidentiary basis. The position can be illustrated by the examples given by Lord Widgery…

But if a man admits possession of a substance as a dangerous drug and if the circumstances such as peddling the drug were part of the admission to lend weight to it, that admission would not be “an admission of some fact about which the admitter knows nothing”. This kind of admission could be accepted as prima facie evidence of the truth of its contents.”

42.  It is noted that at no time did the prosecution ask the jury to rely on the applicant’s admission of his knowledge of the nature of the drugs to prove the drugs seized were such. It is indeed admitted that the sealed packets delivered to the government chemist for analysis yields a positive result for ketamine.[37].  The issue before the jury, as put by the judge, was:

“…whether the prosecution has proven to you that the packets and their contents seized from the locker were the same contents as analysed by the Government Chemist.”[38]

43.  Lastly, the complaint that the prosecution adduced no evidence to explain the difference in weight of the drugs seized and weighed by PW3 and those weighed by PW4 is devoid of merit.  The judge did make it plain to the jury that “it is for the prosecution to satisfy you so that you are sure, the contents of the packets weighed by the duty officer was not tampered with and are the same contents as that as was delivered to the government chemist.”[39] and it was for the jury to satisfy themselves that there was no tampering with the dangerous drugs.[40]

44.  Contrary to the contention of the applicant, there was evidence from PW3 and PW4 as to the scales used by them[41].  The electronic scale used by PW3 was not the normal one he used to weigh drugs.  That scale was not working.[42]  There was also evidence from the PW2 that after the packets were weighed by PW3, they remained in his custody all along until he returned them to PW3.[43]  He said nobody else added or subtracted anything[44].  The summing-up on this area of the evidence was extensive[45].

45.  Ground 2 is not reasonably arguable and leave is refused.

46.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal.  If the Court were to conclude that there was no justification for the renewal of his application, the applicant may face the consequences of a direction for any loss of time spent in custody pending his appeal.

[1] APPEAL BUNDLE PAGE 45H-P.

[2] APPEAL BUNDLE PAGE 20D-F.

[3] APPEAL BUNDLE PAGES 46J-47E.

[4] APPEAL BUNDLE PAGE 43A-C.

[5] APPEAL BUNDLE PAGE 53Q-S, PW2 TESTIFIED THAT HE KEPT THE PACKETS IN HIS CUSTODY (AFTER WEIGHED BY THE DUTY OFFICER), UNTIL HE RETURNED THEM TO THE DUTY OFFICER AT 0509 HOURS TO PUT IN TAMPER PROOF ENVELOPE(S).

[6] APPEAL BUNDLE PAGES 11-12, PARAGRAPHS 6-7.

[7] APPEAL BUNDLE PAGE 31A-P.

[8] APPEAL BUNDLE PAGE 53F-I.

[9] APPEAL BUNDLE PAGES 54D-55H.

[10] HCMA 71/2005

[11] [2007] 4 HKLRD 12

[12] HE REFERRED TO HKSAR V OKAFOR PETER ERIC NWABUNWANNE, CACC 437/2010, IN WHICH THE COURT OF APPEAL STATED THAT THERE WERE CASES IN WHICH REASONS SHOULD BE GIVEN TO JUSTIFY THE RULING THAT THE CHALLENGED ADMISSIONS BEING ADMISSIBLE.

[13] [2014] 2 HKLRD 967.

[14] CACC 710/1995 (JUDGMENT DATE: 10 APRIL 1996) PARAGRAPHS 10-11.

[15] IN RE ATTORNEY GENERAL’S REFERENCE [1988] 1 HKLR 375 AT 386E-I; AND YIP BUN KEUNG V HKSAR (FAMC 3/2001, 9 MARCH 2001, UNREPORTED) AT PAGE 4.

[16] APPEAL BUNDLE PAGE 216N-R AND PAGE 217G-R.

[17] APPEAL BUNDLE PAGES 247R-238Q.

[18] APPEAL BUNDLE PAGE 254F-K.

[19] APPEAL BUNDLE PAGES 27J-28G.

[20] APPEAL BUNDLE PAGE 296E-G.

[21] Appeal Bundle pages 216-217

[22] Appeal Bundle pages 217H, 218F

[23] I [755]-[800]

[24] (1987) 85 Cr App R 255

[25] [1972] 1 WLR 651

[26] Appeal Bundle pages 247R-248Q

[27] Appeal Bundle page 247M

[28] Appeal Bundle pages 239E-F, 242F-G

[29] Appeal Bundle page 247T-U

[30] Appeal Bundle page 248B-I

[31] CACC 437/2010

[32] [1997] 1 Cr App R 396

[33] Appeal Bundle pages 249-252

[34] Appeal Bundle page 27K-N

[35] Appeal Bundle pages 27T-28A

[36] Appeal Bundle pages 32P-33B

[37] Appeal Bundle pages 12-13, paragraph 8

[38] Appeal Bundle page 51D-E

[39] Appeal Bundle page 57J-L

[40] Appeal Bundle page 51J-K

[41] Appeal Bundle pages 51-53

[42] Appeal Bundle page 54D-G

[43] Appeal Bundle 53P-Q

[44] Appeal Bundle pages 53T-54A

[45] Appeal Bundle pages 51-57