HKSAR v. POSSO VERGARA CRISTHIAN ENRIQUE

CAC C 202/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 202 OF 2010

(ON APPEAL FROM HCCC NO. 260 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

1.  On 14 May 2010, the applicant was convicted after trial before Deputy High Court Judge P. Li and a jury of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and sentenced to eight years and one month’s imprisonment.

2.  He applied for leave to appeal against conviction.  On 7 July 2011 we granted leave to appeal, treated the hearing of the application as the appeal, allowed the appeal, quashed the conviction and ordered a retrial upon an indictment alleging the same offence.  We said we would give reasons later and this we now do.

3.  The indictment alleged that on 1 April 2009 inside Flat C, 17^th Floor, Yen Men Building, Jaffe Road, Wanchai, the applicant trafficked in a powder containing 35.36 grammes of cocaine; a solid containing 15.75 grammes of cocaine; 46 tablets containing 4.89 grammes of ketamine and 1.18 grammes of cannabis in herbal form.

4.  The prosecution evidence was that at about 10:45 pm on 1 April 2009 the applicant, when opening the door of his residence at the flat in question, was intercepted by a team of police officers armed with a search warrant.  In his apartment, the officers found a small safe on top of a cabinet inside the bedroom.  They said that they seized a key from the applicant and with that key and a password provided by him, they opened the safe and found the drugs as well as an electronic scale, 13 re-sealable plastic bags and an MTR ticket.

5.  On the evening of 2 April 2009, the applicant was interviewed at a police station in the presence of a lawyer engaged by him.  He had seen her before the interview and had received advice from her of his right to silence.  In the course of that interview, he was asked a series of questions but made it clear that there was only one thing he had to say, which was that the drugs found were for his own consumption.  In answer to wide-ranging further questions he kept repeating that the only thing he had to say was that everything found in the safe was for his own consumption and that he had nothing else to say.

6.  In support of the assertion that the drugs were possessed for the purpose of trafficking, the prosecution relied on the fact that the drugs were kept in a safe, there was an electronic scale there, there were a number of empty plastic bags, the quantity of drugs and their value, namely, $91,000.

7.  The applicant testified on his own behalf at trial.  He is a national of Colombia.  He came to Hong Kong, according to his evidence, in 2008 and his wife joined him shortly after.  He said that he had come to Hong Kong because he was fleeing Colombia.  He was fleeing Colombia because he had reported his suspicions, or those of his mother, of drug trafficking in the area in which he lived and someone had taken a shot at him trying to kill him.  He suspected that the police might have tipped off the gangsters.

8.  In Hong Kong, he and his wife lived in the flat in question.  She left Hong Kong in March 2009 to return to Colombia because she was expecting a baby.  The safe was hers.  She had bought it to house her jewelry.  She had told him the combination number and left him with a key.  He had written the combination number of the safe on a slip of yellow paper which he had stuck to the side of the safe.  She also had had a set of keys to the flat but he did not know where they were.

9.  He did not know that there were drugs in the safe.

10.  According to this evidence, whilst he was in remand in Lai Chi Kok Reception Centre pending trial, he heard rumours about a person called Michael said to be a person who worked in conjunction with police “setting up” people on drug trafficking charges.  Indeed he had seen an indictment relating to another inmate accused of trafficking in dangerous drugs who had been set up, allegedly by this person Michael, and the applicant noted that the officer-in-charge of that case was the same person as the officer-in-charge of his own case.

11.  Then, in about March 2010 the applicant met a man in the remand centre named Irfan, who had told him that his, the applicant’s, case had been set up by this person called Michael and by Michael’s girlfriend, a Colombian girl named Paula.

12.  It so happened that the applicant knew a Colombian girl called Paula.  He had met Paula and had allowed her occasionally to use the computer in his flat on occasions to access the Internet.  Indeed Paula had the access code to the building in which the applicant lived.  The applicant’s wife had left a spare set of keys to the flat somewhere in the flat.

13.  The applicant testified that during the night of 31 March–1 April 2009 he had not slept in his flat.  It had, in other words, as far as he knew, been unoccupied during that night.

14.  As for the applicant’s admission to the police that he knew that the drugs were there and that they were for his own consumption, the applicant said that on the journey from his flat to the police station, one of the arresting police officers had suggested to him that if he admitted possession of drugs for his own consumption, he would be freed.  That is why he had made that statement but had insisted on saying no more in answer to questions from police.

15.  Also called on the applicant’s behalf at trial was the man Irfan.  He testified that he had been in the habit of securing drugs from Michael.  His evidence was he had met Michael and Paula on the night of 31 March–1 April 2009; that he had seen Paula give Michael keys to a flat; had seen Michael with drugs in his hand and that Michael had parted company from him saying that he, Michael, was going to put the drugs in Paula’s flat.  On a later occasion, when he met Michael and Paula, when they were the worse for drink, Michael had admitted to him that he, Michael, had planted drugs in the flat of this Colombian male.  He had done so, Michael’s story went, because he had a standing arrangement with a particular police team in Wanchai whereby if he secured incriminating evidence for them, they would leave him alone in the running of his own drugs business.  Irfan said that all this information, or the gist of it, was passed by him to the applicant when he met him in the remand centre.

16.  The ground of appeal in this case is, in essence, that the applicant’s trial was rendered unfair by the manner in which the learned trial judge summed-up the case to the jury, an impression enhanced by the degree to which the judge took over questioning both from prosecuting and defence counsel in the course of the testimony of the applicant and of his witness.

17.  It has to be said that there was much in the testimony of the applicant that was inherently unlikely and there were material differences between his testimony and that of the witness whom he called in his defence.  Many, though by no means all, of these weaknesses were highlighted by prosecuting counsel in her cross-examination of witnesses and in her closing speech.

18.  The cross-examination by prosecuting counsel (not Mr. Lee who appeared before us) can, with respect, be said to have been less skilful than one might expect; not least in the cross-examination of the witness Irfan, since it consisted almost entirely of putting questions in the form of regurgitating evidence already given by him in-chief.  It may be therefore that the judge felt that the interests of justice required him to restore some balance so that the jury were not left unaware of weaknesses in the defence case, though it has to be said that the prosecution case was self-evidently very strong.  

19.  Be that as it may, whilst a judge is not required to sit mute if he perceives an imbalance and whilst robust comments are permissible, the issue is the manner in which a judge draws points to a jury’s attention and whether he has overstepped the mark from, on the one hand ensuring that a jury is seized of factors relevant to the strengths of both cases and on the other hand so addresses issues that he has, in the round, assumed the role of the prosecuting advocate.  It is a question of degree and feel.

20.  In this case, we concluded that the judge unfortunately crossed the boundary from a robust indication of suggested flaws in the defence case to a point by point demolition of almost every aspect of the defence case, in such a manner as to render the summing-up akin to a prosecution speech.  The problem was aggravated by the fact that some of the points made were new, in the sense that the applicant and his counsel had not had the opportunity of addressing them.

21.  We note too that the transcript of the evidence of the applicant and of his witness Irfan are marked by lengthy passages of questioning by the judge; most particularly in the course of the examination-in-chief of the witness Irfan, questioning which, we think, went further than mere clarification of something the witness had already said.  Counsel for the applicant ought to have been left to examine Irfan as he saw fit and to draw out such information as he wished.  It was then for the judge, at the end of cross-examination, to ask questions if he at that stage thought additional questions which might assist the jury were warranted.

22.  There is a discrete additional point to be made.  At the outset of the interview which took place on the evening of 2 April 2009, the applicant was reminded that he was not obliged to say anything but anything which he chose to say would be recorded and could be used in evidence.  As we have earlier intimated, he told the officers that “the only thing I have to say is that everything found there is for my own consumption”, making clear then and on several occasions thereafter that he intended to exercise his right of silence in respect of any further questions.  Amongst the many questions that, nonetheless, were put to him thereafter were questions about keys to the apartment and as to the history of the safe’s appearance in the flat.  In answer to all these questions he said that he had nothing to say.

23.  In this regard, the judge said in his summing-up:

“Members of the jury, the defendant had answered some questions initially in this interview. He had also made admission. Of course, subject to what you consider, whether the admission was voluntary or not. He just refused to say anything concerning the keys and the safe. However, the defendant explained in detail about these items one year later in this trial. Members of the jury, why was the defendant reluctant to disclose facts, which he must be aware of at the time of the interview, about the key and the safe? It is a matter for you. Certainly, to be fair to the defendant, you should bear in mind that the defendant had the right not to answer questions.”

24.  We do not think that this direction was appropriate.  In its effect it rendered nugatory the right which had been explained to the applicant that he was obliged to answer none of the questions put to him in the course of that interview.  Of course the judge was entitled to draw to the jury’s attention the contradiction between what he did say in the interview and his evidence at trial; but that is not what the judge was doing.  The judge was inviting the jury to draw an inference adverse to the applicant for not providing his account about the keys to the apartment and about the safe at the time of his interview and in waiting until his trial to do so.  It would have been different had the applicant given an account during the interview omitting material facts which were then introduced for the first time at trial.  But that was not the position.  The applicant had given no account and had made it clear at the time that the reason he was not doing so and was limiting himself to one short statement of alleged fact devoid of any padding, was in exercise of his right of silence.  The judge should have made it clear that insofar as the applicant was exercising that right, no inference adverse to him was to be drawn.

25.  We would advance one further suggestion in relation to the summing-up.  On two occasions in the course of the summing-up the judge told the jury that when defence counsel put to a witness the applicant’s version of events, and the witness had disagreed with what had been put the jury “need not consider the version put by defence counsel because they are not evidence.”  It is clear that what the judge intended to tell the jury what it was that constituted evidence, properly so called.  But the manner in which the matter was phrased was unfortunate in that it invited the jury to ignore altogether what had been put; whereas, insofar as what had been put was supported by evidence, it was certainly not to be ignored.  This error would not of itself have founded a successful ground of appeal, given other directions but it is necessary to state that a direction of this nature should be avoided.

26.  There was one matter arising from the closing speech of prosecuting counsel which did not form the subject matter of any ground of appeal but which is deserving of comment.

27.  In the course of her closing submission, counsel for the prosecution said in relation to the testimony of the applicant that:

“Without hesitation, I’m sure you can reject his evidence right away. I hope you all find, as I do, his evidence in court totally unbelievable.”

28.  It is fundamental that counsel never expresses his or her own opinion in the presentation of the case.  Counsel make submissions.  Their own opinions or views are, in the context of advocacy, of no relevance whatsoever.

29.  Accordingly, it was not proper for counsel to tell the jury what her hopes were, nor to tell the jury that she personally disbelieved the applicant.  That would always be an inappropriate mode of address but it is particularly inappropriate for prosecuting counsel to say that to a jury, a body of persons unversed in the law or in criminal procedure, for it runs the risk of placing upon them a form of pressure, even if unintended.

30.  For these reasons, we allowed the appeal and quashed the conviction.  Mr Loughran did not seek to resist an application for a retrial and there were no grounds upon which he could realistically do so.  We therefore ordered a retrial.